Thursday, January 4, 2018
I hope to see many of you tomorrow at the Torts and Compensation Systems Section's program at the Annual Meeting. The program is Friday, January 5 from 1:30-3:15. We will do three things:
1. Present the William L. Prosser Award: Mike Rustad will introduce the 2018 winner, Marshall Shapo.
2. Panel presentations on "The Role of History in Tort Theory": Speakers are Martha Chamallas, Don Gifford, John Goldberg, and Ted White. Unfortunately, John Witt is not able to speak. The panel will take questions from the audience.
3. Elect the 2018-19 Executive Committee: The slate is Chair: Stacey Tovino; Chair-Elect: Adam Scales; Secretary: Scott Hershovitz; Treasurer: Mary Davis; Members: Tim Lytton and Nora Freeman Engstrom.
Wednesday, January 3, 2018
Cathy Sharkey has posted to SSRN Cutting in on the Chevron Two-Step. The abstract provides:
This Article aims to address an all-too familiar scenario: a federal agency, under the guise of supposed legal interpretation of a statute, earns automatic judicial deference for what is, in reality, its policy-based interpretation—a scenario that, I argue, is translating into courts' insufficient oversight over agency action. Where an agency effectively uses Chevron Step One legal statutory interpretation arguments to justify its implicitly policy-based interpretation at Step Two, judicial oversight at Step Two is weakened, if not annulled.
This Article advocates incorporation of State Farm into the Chevron framework. Put simply, State Farm’s demand for “reasoned decision-making” from agencies mitigates Chevron's mandate for deference to agency statutory interpretations. The Chevron-State Farm model highlights the agency expertise rationale that infuses the implied delegation rationale for agency deference, particularly at Step Two. As a practical matter, the model expands the domain of State Farm, widening the scope of agency rules subject to hard look review, and, further, aims to increase the stringency of re-view. Perhaps most significantly, where the Chevron interpretive issue arises between private parties when the agency is not a party and litigants accordingly have no recourse to direct State Farm challenge to the rulemaking, the model would open the door to an indirect State Farm challenge.
The Article explores how this new doctrinal approach, one of hard look review at Chevron Step Two, will affect courts and, most of all, affect agency decisionmaking. Moreover, this particular form of Chevron retreat—widening the space for the application of State Farm—is fundamentally distinct from, and preferable to, setting Chevron aside. Whereas knocking down the Chevron pillar deals a blow to over-exuberant regulators and promises to stem the tide of over-regulation of the economy and health and safety, heightened judicial scrutiny of the Chevron-State Farm variety will force the agency’s hand in the context of deregulation as well.
Tuesday, January 2, 2018
Donal Nolan has posted 2 pieces on nuisance to SSRN, both of which are book chapters. First, 'A Tort Against Land': Private Nuisance as a Property Tort. The abstract provides:
The thesis of this chapter is that private nuisance can only properly be understood as a tort which protects rights in land, and that, understood in this way, it is a thoroughly coherent cause of action. I begin by introducing this ‘property tort analysis’ of private nuisance and by providing a definition of the tort. The bulk of the chapter is then devoted to showing that the central doctrines of private nuisance law are consistent with the property tort analysis. In the remainder of the chapter, I look at the relationship between private nuisance and trespass to land, identify some sources of confusion which have served to obscure the underlying coherence of private nuisance and consider the implications of the property tort analysis for the traditional distinction between property and obligations. I finish off by making some more general observations about the value of a rights-based analysis of private law.
Next, Nuisance, Planning and Regulation: The Limits of Statutory Authority. The abstract provides:
In this chapter, I examine the defence of statutory authority in the law of private nuisance. I argue that if we let our guard down, the de facto extension of the defence could put at risk the continued vitality of private nuisance as a cause of action. Recent developments in the law of private nuisance have threatened in effect to extend the defence of statutory authority to encompass the defendant’s compliance with regulatory regimes governing his activity, and at least some instances in which planning permission has been granted for the use of land causing the alleged nuisance. I argue that there are fundamental objections to these de facto extensions of statutory authority, and that they are inconsistent with core features or aspects of that defence. The core message of the chapter is summed up by Tony Weir’s characteristically pithy remark that ‘administrators cannot authorise torts’.
Saturday, December 30, 2017
George Conk has posted to SSRN Deadly Dust: Occupational Health and Safety as a Driving Force in Workers' Compensation Law and the Development of Tort Doctrine and Practice. The abstract provides:
Many observers, looking back at the early twentieth century’s creation by states of the workers compensation laws have seen a grand bargain. In this view tort remedies were compromised for the certainty of more modest scheduled statutory benefits. This study argues that the tort laws were a major victory for labor. Workers gained the right to medical treatment, temporary total disability benefits, and permanent disability benefits. The medical benefits and temporary disability were prompt and reliable for all work related accidental injuries. The loss of the tort remedy against the employer was of little significance since compensation via tort was highly uncertain. Further the right to sue third parties in tort was preserved – and enabled to some degree by the workers compensation benefits received.
But occupational diseases were excluded until pressure by labor and pro labor interests achieved reforms. Much of the driving force was the recognition of pneumoconiosis – particularly silicosis. The granite cutters of Vermont spurred studies which demonstrate the limits of the germ theory of disease and identified the deadly granite dust as the cause of lung disease. Many states broadened their definitions of occupational disease.
Asbestos related disease – particularly the form of pneumoconiosis known as asbestosis advanced the science of pulmonary disease. The landmark studies by Irving Selikoff of morbidity and mortality of insulation workers created a body of evidence that supported the massive wave of third party asbestos litigation. The asbestos epidemic litigation advanced the doctrines of strict product liability law, drove courts to advance management of “mass torts” via multi-district litigation, and increased the competence of courts to deal with epidemiological and other forms of scientific evidence of disease causation.
Tuesday, December 26, 2017
Last week the Wisconsin Supreme Court unanimously adopted proposed amendments to the state's class action procedures designed to bring them into alignment with Federal Rule of Civil Procedure 23. The order replaces a one-sentence class action statute that is a hold-over from the nineteenth century Field Code. The order is here: Download DC-#649050-v1-2017_amendments_to_Wisconsin_class_action_rule
Friday, December 22, 2017
Thursday, December 21, 2017
On Tuesday, the Wyoming Supreme Court recognized intrusion upon seclusion. According to the opinion, there is now only one jurisdiction in the U.S. that has not taken a stand on the invasion of privacy torts. Of the other 48 states, only 2 have explicitly refused to adopt intrusion upon seclusion. The case involved allegations that a rent-to-own company installed software on laptops without plaintiffs' knowledge. The software allegedly could be used to remotely access the laptops’ cameras, capture the content of the laptops’ screens and log keystrokes entered on the laptops. KPVI has the story.
Wednesday, December 20, 2017
On Monday, Governor Cuomo signed legislation making the default purchase of UM/UIM (called SUM in NY, for Supplemental Uninsured/Underinsured Motorist coverage) the same as the insured's purchase of liability insurance; the default had been the state minimum. Insureds can opt out. As someone who has seen terrible under-compensation of injuries due to failure to purchase, or failure to purchase sufficient amounts of, UM/UIM coverage, I applaud this change. Eric Turkewitz covers it here.
Tuesday, December 19, 2017
Bruce Feldthusen, Mike Green, John Goldberg & Cathy Sharkey have posted to SSRN Product Liability in North America. The abstract provides:
This book chapter provides an overview of the rules governing liability for product-related injuries in the U.S. and Canada, as well as the context in which those rules operate. Included are discussions of the rationales for, and the development of, the U.S. doctrine of strict products liability, and the application of strict products liability and negligence doctrines to hypothetical cases.
Friday, December 15, 2017
Thursday, December 14, 2017
A state representative in Wisconsin has introduced a bill allowing patients to request audio and video recordings in operating rooms. The rationale is to have better evidence of whether an alleged medical error occurred. A similar bill was introduced in 2015, but did not gain traction. No jurisdiction in the United States has such a law. WDJT Milwaukee has the story.
Wednesday, December 13, 2017
Tuesday, December 12, 2017
A Columbus, GA woman brought suit against a hospital and one of its physicians based on an allegedly botched neck surgery. After the surgery, among other injuries, the plaintiff went blind, suffered brain damage, and was confined to a wheelchair. Following a two-week trial, the jury awarded $26 million in damages. The Ledger-Enquirer has the story.
Friday, December 8, 2017
Avidan Cover has posted to SSRN Revisionist Municipal Liability. The abstract provides:
The current constitutional torts system under 42 U.S.C. § 1983 affords little relief to victims of government wrongdoing. Victims of police brutality seeking accountability and compensation from local police departments find their remedies severely limited because the municipal liability doctrine demands plaintiffs meet near-impossible standards of proof relating to policies and causation.
The article provides a revisionist historical account of the Supreme Court’s municipal liability doctrine’s origins. Most private litigants’ claims for damages against cities or police departments do not implicate the doctrine’s early federalism concerns over protracted federal judicial interference with local governance. Meanwhile the federal government imposes extensive reforms on local police departments through the Violent Crime Control and Law Enforcement Act, 42 U.S.C. § 14141. The resulting system of bifurcated municipal liability for police misconduct ignores history. It permits government-initiated systemic, injunctive relief claims to flow readily, but effectively bans individual victims’ discrete damages claims.
The article proposes making it easier to sue local governments for police brutality. Reducing the standard for damages relief does not offend federalism principles and realizes objectives critical to the constitutional remedial system: compensation, trust, vindication of rights, and appropriate assignment of responsibility. The article proposes a remedial scheme authorizing civil actions for police brutality victims against local governments for (1) a pattern or practice of local government police misconduct, and (2) isolated instances where a local police department lacks a policy, of which there is national consensus by other local departments that the policy is necessary to prevent a particular constitutional harm. The proposal also expands the potential for individual officer liability when the local police department has a specific policy in place aimed at preventing wrongdoing that the officer ignores.
Wednesday, December 6, 2017
Nebraska has one of the few caps in the nation that is applied to total, as opposed to non-economic, damages in med mal cases. In August 2015, a jury awarded the family of a brain-damaged infant $17M in damages. Pursuant to the cap, the trial judge reduced the award to $1.75M. Last June, the Eighth Circuit unanimously affirmed the trial judge. On Monday, the United States Supreme Court declined to hear the case. The family had argued the cap is unconstitutional:
The Eighth Circuit’s ruling contravened the Supreme Court’s 1998 holding in Feltner v. Columbia Pictures, which gives juries, rather than a trial judge, the authority to determine damages, Schmidt contended.
Further, the Seventh Amendment’s constitutional right to a jury trial should be made applicable to the states through the due process clause of the Fourteenth Amendment, Schmidt argued. She drew a parallel to the Supreme Court’s 2010 ruling in McDonald v. City of Chicago, in which the justices applied the right of gun ownership to the states, and by extension local governments, that attempted to ban handguns.
Law 360 has the story.
Monday, December 4, 2017
Roisin Aine Costello has posted to SSRN Reviving Rylands: How the Doctrine Could Be Used to Claim Compensation for Environmental Damages Caused by Fracking. The abstract provides:
Contemporary societies are characterized by complex interdependence, with industrial activity increasingly having the potential to cause effects beyond local and national borders. Courts have previously illustrated that liability for injurious action must lie with the individual who created the risk of damage under the common law rule of Rylands v. Fletcher. Having fallen out of favour in the twentieth century, this article proposes a re-articulation of the rule to cover situations in modern society in which invasive methods are used in the extraction of volatile fuels from the earth, specifically in the case of ‘fracking’. The article examines recent rulings from the United States and the United Kingdom, as well as precedent from the United Kingdom and Ireland to establish the manner in which the rule of Rylands v. Fletcher might be successfully rearticulated in the context of contemporary common law jurisdictions – specifically focusing on Ireland – as a means for redressing environmental damage.
Wednesday, November 29, 2017
Monday, November 27, 2017
Gregory Parks (Wake Forest) has a piece in The Huffington Post about the tort duties of fraternities and sororities with regard to hazing. The issue is relevant in Pennsylvania due to the February death of a pledge at a Penn State fraternity. Stacy Parks Miller, the Centre County District Attorney, has been aggressive in prosecuting numerous members of the now-defunct fraternity where the death occurred. The pledge is on tape (the tape having been recovered by the FBI after allegedly being deleted by a fraternity member) being given 18 drinks in 82 minutes. Other footage shows fraternity members not seeking help during the course of an entire night for the unconscious pledge who suffered several falls.
Parks focuses on tort law. After discussing custom in the "industry," Parks continues:
Regarding hazing, fraternities and sororities have reached a point—and probably did so long ago—when what is expected of them should be heightened. No longer should they be able to say that they’ve done their best or that their approaches are consistent with others in their industry. At its most basic level, what should be expected of fraternities and sororities is that they have harnessed, internalized, and employed the totality of research on hazing. They must also engage with hazing researchers and consultants who employ hazing research and hazing prevention best-practices. You can’t say that you’ve adequately attempted to address hazing and are grossly ignorant of the research on the topic and haven’t engaged with those grappling with the issue.
Friday, November 24, 2017
PA: Federal Judge Issues Preliminary Injunction to Prevent State from Dissolving Med Mal Insurer and Taking its Money
Two weeks ago, I reported that the Commonwealth of Pennsylvania was attempting to use surplus funds from a med mal insurer that was created by state law, but was not a part of state government. Pennsylvania, trying to balance its budget, passed a law requiring the Pennsylvania Professional Liability Joint Underwriting Association (JUA) to turn over $200M of a $268M surplus by December 1. If it fails to comply, the law abolishes the JUA and transfers its money to the Department of Insurance. Now Judge Christopher Conner has issued a preliminary injunction barring the state from carrying out that action. The judge's order puts the issue on hold until a federal trial can be held. PennLive has the story.
Monday, November 20, 2017
Chad Marzen has posted to SSRN The Pollution Exclusion and Carbon Monoxide. The abstract provides:
Approximately 400 individuals die each year and an additional 4,000 individuals are hospitalized annually in the United States due to unintentional carbon monoxide exposure. For the past several decades, insurance policies have generally included a pollution exclusion. This article is intended to contribute to the literature by examining pollution exclusion cases that involved carbon monoxide exposure.
A majority of courts uphold the validity of the pollution exclusion in insurance policies to bar coverage for personal injuries resulting from carbon monoxide. The first part of this article discusses the majority rule and the various arguments courts have utilized to uphold the exclusion. A minority rule has also emerged that the pollution exclusion does not apply to cases involving carbon monoxide. The second part of this article examines the arguments courts have utilized in ruling that carbon monoxide is not a “pollutant.”
In the wake of conflicting guidance from the courts on the applicability of the pollution exclusion in cases of carbon monoxide exposure, the final part of this article proposes that as a matter of public policy states amend their respective insurance codes to require that insurance policies specifically provide coverage for personal injuries involving carbon monoxide exposure.