Monday, July 2, 2018
Donal Nolan has posted two pieces to SSRN. First, Strict Products Liability for Design Defects. The abstract provides:
A case note discussing the decision of Hickinbottom J in Wilkes v DePuy International Ltd  EWHC 3096 (QB);  3 All ER 589, which is now the leading case on the application of the Consumer Protection Act 1987 in the case of an alleged design defect. It is argued in the note that the approach taken by Hickinbottom J to the issue of defectiveness should be seen as complementing or supplementing the guidance given in A v National Blood Authority  3 All ER 289, and that taken together with that earlier decision – and provided that due attention is paid to the significance of the standard/non-standard product distinction that the facts of the two cases encapsulate – the decision in Wilkes represents a solid foundation for future analysis of that issue under the strict product liability regime laid down by the 1987 Act.
Second, Rights, Damage, and Loss. The abstract provides:
This article is an exploration of the relationship between the concepts of rights, damage and loss. The focus of the analysis is on the law of negligence, though some of the claims have wider ramifications. The article is divided into three main parts, with each part centred around a different relationship: first, the relationship between rights and damage; second, the relationship between rights and loss; and third, the relationship between damage and loss. In each of these three parts, a separate, but related, claim is made: (1) that a concept of damage is a necessary component of a plausible rights-based conception of negligence law; (2) that a right not to suffer loss is conceptually impossible; and (3) that damage and loss are fundamentally different concepts.
Thursday, June 28, 2018
Yesterday, the Wisconsin Supreme Court ruled 5-2 that the $750,000 non-economic damages cap in med mal cases is constitutional. The trial court had ruled the cap unconstitutional as applied to this plaintiff, and the intermediate appellate court went further and held it was unconstitutional on its face. The majority acknowledged the sympathetic facts, but held the legislature was acting within its authority to make policy decisions. The Milwaukee Journal Sentinel, which covers tort and tort reform issues in depth, has the story.
Wednesday, June 27, 2018
A federal judge in San Francisco dismissed public nuisance suits for climate change brought by the cities of San Francisco and Oakland against five of the nation's largest oil companies. The judge accepted the "vast scientific consensus" that fossil fuels cause climate change. However:
“Questions of how to appropriately balance these worldwide negatives against the worldwide positives of the energy itself, and of how to allocate the pluses and minuses among the nations of the world, demand the expertise of our environmental agencies, our diplomats, our executive, and at least the Senate,” [the judge] said. “Nuisance suits in various United States judicial districts regarding conduct worldwide are far less likely to solve the problem and, indeed, could interfere with reaching a worldwide consensus.”
The ABA Journal has the story.
Monday, June 25, 2018
Martha Chamallas has posted to SSRN Feminist Legal Theory and Tort Law. The abstract provides:
Tort law in the US has failed to provide adequate protection against gender-related harms that disproportionately affect women. Because of the imposition of doctrinal and other restrictions on recovery, there is no reliable means of tort compensation for victims of domestic violence, rape and sexual assault. Only a small number of intentional tort cases have been brought directly against offenders, mainly leaving the criminal law to deal the problem. Although more negligence suits have been brought against institutional defendants for failure to prevent sexual violence, the developing law has not yet had an appreciable effect on cases of domestic violence or acquaintance rape. In the realm of reproductive harms affecting pregnancy, childbirth, and fertility, tort protection has also been precarious, with claims of women and other plaintiffs relegated to the disfavored tort of negligent infliction of emotional distress. The chapter connects these recent developments to feminist theory.
Note: This is a draft chapter. The final version will be available in Research Handbook on Feminist Jurisprudence, edited by Robin West & Cynthia Bowman, forthcoming 2018, Edward Elgar Publishing Ltd.
Friday, June 22, 2018
On July 1, the compulsory auto insurance minimum limits in Nevada increase from 15/30/10 to 25/50/20. To translate, the new requirements in Nevada are $25,000 per person for bodily injury/$50,000 per accident for bodily injury/$20,000 per accident for property damage. The increase leaves Pennsylvania even more isolated on the low end of the spectrum with 15/30/5.
Wednesday, June 20, 2018
Last Friday, the Court of Appeal, Fourth Appellate District handed down a ruling in Coyle v. Historic Mission Inn Corp. The short version of the case is that the court, reversing a trial court's grant of summary judgment, held that a restaurant owner has a duty of care to protect patrons from foreseeable black widow spider bites. Such a holding should surprise no one. The court differentiated between the elements of duty and breach:
If a restaurant were overrun with poisonous spiders, it would be shocking to say the restaurant had no duty whatsoever to protect patrons from the spiders. However, that is what happened in the trial court. The trial court concluded that a restaurant has no duty to use reasonable care in relation to black widow spiders. Because the trial court concluded there is no duty, the trial court created a categorical exception to the general rule that one must exercise due care. (See Cabral, supra, 51 Cal.4th at p. 777 [the exemption concerns the "entire category of negligent conduct"].) We cannot agree with such a conclusion.
It is possible that it will be found that the Mission Inn met its reasonable standard of care—that despite reasonable efforts being made, an accident occurred, which is relevant to breach. However, under the generalized foreseeability analysis that is relevant to duty, because it is reasonably foreseeable that the failure to take any action more than recording the presence of spiders could lead to harm, there is not a good reason in the foreseeability portion of the analysis to create an exception to the general rule that there is a duty to exercise reasonable care. (See Cabral, supra, 51 Cal.4th at p. 775 ["generalized sense of foreseeability pertinent to the duty question"].)
Thanks to Christopher Ng for the tip.
Monday, June 18, 2018
After having been struck down by the Arkansas Supreme Court right before it was scheduled for a vote, tort reform is back on the ballot this November:
The proposed constitutional amendment would set caps on attorneys' fees and certain lawsuit damages, plus -- in what lawyers say is the biggest affront to their business -- give lawmakers the final rule-making authority over the courts. Its backers in business and the Legislature pitch the amendment as tort reform that they say will reduce the costs of doing business in Arkansas by making companies less exposed to frivolous or costly litigation.
The bar generally opposes the measure, and business groups favor it. The Northwest Arkansas Democrat Gazette has a story from the Arkansas Bar Association convention.
Thursday, June 14, 2018
John Goldberg has posted to SSRN Benjamin Cardozo and the Death of the Common Law. The abstract provides:
Although a member of the Supreme Court at the time, Benjamin Cardozo did not participate in Erie Railroad Co. v. Tompkins. He was dying. It is a mere fortuity that Cardozo’s death coincided with the death of the general common law. Yet it has since proved to be something more—or so this symposium essay argues. It is in part because our highest court took itself out of the business of making law in contract, property, tort, and related areas that Cardozo’s beloved common law has fallen on hard times, and that even state-court judges have increasingly lost their feel for how to reason about it. Today, there is no member of a state judiciary who rivals Cardozo in stature. Mainly this is a testament to his extraordinary gifts. But it also reflects the waning of the common law in the United States, and a concomitant loss of the sense of what it means to be a great common-law judge.
Tuesday, June 12, 2018
The Reporters for R3: Torts: Intentional Torts to Persons, Ken Simons & Jonathan Cardi, respond to critiques from prominent torts scholars in a symposium published in the Journal of Tort Law. Entitled Restating the Intentional Torts to Persons: Seeing the Forest and the Trees, the abstract provides:
The five thoughtful, incisive articles by Professors Bernstein, Chamallas, Geistfeld, Moore, and Sugarman offer a breathtaking range of perspectives on the Restatement, Third of Torts: Intentional Torts to Persons (“ITR”). Some view tort law from the widest vantage point, inquiring whether this forest deserves its own appellation or should instead be assimilated to the rest of tort’s greenery. Some focus more on the trees–on the distinct doctrines that characterize the torts and defenses that ITR is restating. In this response, we engage with the participants at both levels.
Our response also addresses two fundamental questions–the role of a Restatement and the significance of the “intentional tort” category. First, ITR is a Restatement of tort law. It is not a model code of tort law, nor is it an academic article committed to a particular vision of the proper purposes and principles of tort law. We see our task, not as creating a grand theory from which all of intentional tort doctrine can be deduced, but as a bottom-up endeavor, accurately characterizing developments in the case law and then providing the most sensible and persuasive justifications for extant doctrine. At the same time, however, we strive to provide intellectual coherence to this body of law. Thus, we examine not only the holdings in narrow doctrinal categories, but also the consistency of those holdings with more general tort law principles.
Second, what is distinctive about the intentional torts to persons? How do they differ from torts of negligence or from other intentional torts? These questions have no simple answer, because most of the intentional torts to persons have very long historical roots, and because the common law process of reformulating doctrine has played a vital role in defining the scope of these torts in current American law. It is thus not at all surprising to find tensions and apparent inconsistencies between some current doctrines.
Nevertheless, we believe that the contemporary formulations of these torts are indeed justifiable in principle. First, these intentional torts sometimes reflect a hierarchy of fault or culpability. Purposely injuring someone is more culpable, ceteris paribus, than negligently causing the same injury. Second, these torts sometimes protect distinct interests, such as the interest in avoiding emotional harm or in freedom of movement, that for various policy reasons are not protected by liability rules if they are only negligently invaded. Third, the intentional torts do not simply identify species of conduct that reflect greater fault or culpability than negligence. Comparing intentional torts is sometimes akin to comparing apples and oranges, because these torts protect a varied set of interests or protect them in varying ways. Fourth, the intentional torts express a pluralistic set of values and principles. No single principle (such as welfare, autonomy, or freedom) fully explains all of these torts. And fifth, although these intentional torts contain some reasonableness criteria, for the most part they reject the reasonableness paradigm of negligence, and thus reject the more flexible, less structured criteria of liability that that paradigm engenders.
Friday, June 8, 2018
F. Patrick Hubbard & Evan Sobocinski have posted to SSRN Crashworthiness: The Collision of Sellers' Responsibility For Product Safety with Comparative Fault. The abstract provides:
Crashworthiness cases often involve the following issue: Should any wrongdoing by the plaintiff in causing the initial collision reduce or bar the plaintiff’s recovery for defective crashworthiness? Jurisdictions disagree on the answer to this issue. This disagreement results in large part from differing positions on two questions. First, should products liability law use duty rules to impose liability in a way that ensures efficient accident cost reduction or should it seek fairness through relatively unstructured jury allocations of liability based on fault? Second, in addressing the first issue, should for-profit corporations be viewed as: (1) “tools” to achieve human goals like efficient reduction of accident costs or (2) “persons” entitled to fair treatment in the same way as humans.
Relying on an analysis of doctrine, history, and policy, this Article argues (1) that for-profit corporations are tools, not persons with moral rights, and (2) because these corporations are not “moral persons”, the concern for efficient reduction of accident costs by internalizing the cost of injuries from product defects to corporations should prevail over a concern for “fairness” to these corporations in allocating accident costs. Therefore, because reducing manufacturers’ liability for crashworthiness also reduces the efficient internalization to manufacturers of the cost of their failure to provide cost-effective safety, the plaintiff’s role in causing the initial accident should be irrelevant to plaintiff’s claim for defective crashworthiness. This concern for internalization also supports the expansion of plaintiff’s rights in other areas of liability for defective vehicle design.
Wednesday, June 6, 2018
In California, the "tort wars" have been quiet recently. That may change due to wildfires and a court decision finding lead paint manufacturers liable for a public nuisance. The state's utilities, potentially on the hook for billions of dollars in damage caused by wildfires, and lead paint manufacturers have sought legislation to protect themselves from damages. The Mercury News has details.
Monday, June 4, 2018
John Goldberg has posted to SSRN The Fiduciary Duty of Care. The abstract provides:
Fiduciary duties of care are at once familiar and strange. They partake of many of the characteristics of duties of care in other domains of private law, particularly tort law. But they also bear the distinctive marks of the fiduciary context. This chapter identifies two ways in which fiduciary duties of care tend to be distinct from tort duties of care. First, with some important exceptions, they are less demanding and less vigorously enforced. Second, breaches of the fiduciary duty of care can give rise to liability even if no injury results to the beneficiary. These distinctive features, I argue, reflect judicial efforts to harmonize the fiduciary’s duty of care with her duty of loyalty. As such, they are defensible, even if not in all respects justified.
Friday, June 1, 2018
Ronen Perry has posted to SSRN Tort Law. The abstract provides:
This book chapter systematically analyzes the fundamental principles of Israeli tort law. Given space limits it focuses on core areas, and does not profess to be comprehensive. Part II discusses fault based liability—intentional torts, negligence, and presumptions of negligence. Part III examines strict liability, including the special regimes pertaining to road accidents, defective products, and defamation, and the general tort of breach of statutory duty. Part IV discusses general defenses—particularly those deriving from the plaintiff’s fault or consent, and the special defenses afforded to the state, public authorities, and civil servants. Part V explains how the bilateral wrongdoer-victim model has been extended by allowing claims against or by third parties. Part VI examines the available remedies.
Thursday, May 31, 2018
The Michigan Court of Appeals recently upheld the high standard necessary to overcome the workers' compensation bar to suing an employer in tort. As in other jurisdictions, Michigan makes it difficult for an injured employee to sue his or her employer in tort. A common exception is for intentional torts. Michigan requires the employee demonstrate he or she was injured "as the result of a deliberate act of the employer and the employer specifically intended the injury." In a decision announced last month, Shumaker v. Meritt Tool & Dye, an employee was working with a large press used to cut steel. The employee lost three fingers when the machine unexpectedly double-cycled. The employer had received safety citations a few years prior relevant to the press:
Ultimately, the Court of Appeals held that (1) despite the employer having actual knowledge that the machine could double-cycle, the plaintiff failed to show there was a genuine issue of material fact about whether an injury was "certain to occur" as is required by MCL 418.131; and (2) even if the plaintiff had established that the defendant had actual knowledge that the injury was certain to occur, the plaintiff showed no evidence that the employer "willfully disregarded" such knowledge.
Lexology has the story.
Wednesday, May 30, 2018
There is an obvious connection between tort law and workers' compensation. Both provide compensation to the injured, but they are based on different philosophical underpinnings. Mike Duff leads a team of editors at Workers' Compensation Law Blog, an active and very thorough blog. Check it out here.
Tuesday, May 29, 2018
John Goldberg & Ben Zipursky have posted to SSRN From Riggs v. Palmer to Shelley v. Kraemer: The Continuing Significance of the Law-Equity Distinction. The abstract provides:
This chapter begins with a sharp distinction between two kinds of judicial authority — the authority to apply law and to do equity. Plaintiffs who file suit on a claim of legal right assert an entitlement to recourse from the defendant, and to judicial assistance in obtaining it. By contrast, equitable claims request a court to exercise its discretion to block or modify the ordinary operation of the law, or to provide relief to which there is no legal entitlement. This distinction, we argue, sheds light on some of American law’s most famous and controversial decisions, including Riggs v. Palmer, Moore v. Regents, and Shelley v. Kraemer. Indeed, insofar as each reaches a defensible result, it is because it is an instance of a court doing equity rather than applying law. As our analysis of these and other decisions demonstrates, an appreciation of the law-equity distinction remains necessary for an adequate understanding of Anglo-American legal systems.
Wednesday, May 23, 2018
The ALI's 95th Annual Meeting concludes today, but the torts and torts-related projects are finished. Two of the projects are truly complete. The membership approved a Proposed Final Draft of the Economic Harm project (Ward Farnsworth, Reporter) and the Law of Liability Insurance project (Tom Baker and Kyle Logue, Reporters). Several additional sections of the Intentional Torts project (Ken Simons and Jonathan Cardi, Reporters) were also approved.
Tuesday, May 22, 2018
Pennsylvania, facing a large budget deficit, attempted to take $200M from a state-created joint underwriting association for medical malpractice insurance. The state passed a law requiring the JUA to give up $200M of its $268M surplus by December 1, 2017 or be dissolved. Judge Christopher Conner of the Middle District of Pennsylvania issued a preliminary injunction to halt the dissolution. Stating the money was private property, Judge Conner has held that the transfer is a seizure of property without compensation and is unconstitutional.
Tuesday, May 15, 2018
Friday, May 11, 2018
Jill Wieber Lens has published "Recognizing Stillborn Babies Does Not Threaten Abortion Rights" at HuffPost. Here's a sample:
Abortion rights groups rationally ― and rightly ― fight against abortion limits, including bans on abortions after however many weeks of pregnancy and mandatory ultrasounds. But the fight against recognition of stillbirth feels a bit irrational. The Supreme Court in Roe v. Wade specifically recognized that a tort claim for parents after the death of an unborn child does not give the unborn baby any rights. It is the parents’ claim, not the unborn baby’s claim.