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.
Friday, November 17, 2017
PA: State Senator Introduces Bill Banning Non-disclosure Agreements in Sexual Assault and Harassment Cases
Sen. Judy Schwank introduced a bill in the Pennsylvania Senate designed to prevent sexual offenders from settling cases without exposure:
Schwank's proposal, rolled out at a Capitol press conference Wednesday, would bar any contract or out-of-court settlement from containing provisions that:
* Prohibit disclosure of the name of any person suspected of sexual misconduct or any information relevant to a claim.
* Would block reports of such claims to an "appropriate person."
* Requires the destruction or expungement of related evidence.
The bill would, however, grant a shield of confidentiality to victims making allegations of abuse, giving them rights similar to juveniles in a child welfare case who can have cases brought through their initials or other identifiers.
California is the only state with such a law. Opponents argue the bill would discourage defendants from settling these cases.
Pennlive has details.
Thursday, November 16, 2017
One woman from Florida and one from California filed suit against Uber on Tuesday in federal court in San Francisco. The women alleged they were sexually assaulted by Uber drivers and the cause was inadequate background screening and monitoring by Uber. The suit seeks class action status, and:
It asks the court for unspecified damages to compensate the women, and also seeks court-ordered safety measures including fingerprint background checks for drivers and a panic button on the Uber app that would alert the company and authorities to safety problems.
The lawsuit was filed by the New York firm Wigdor LLP, which is suing Uber in a separate case on behalf of a woman who was raped by an Uber driver in India. The firm also is suing Fox News on behalf of employees who allege race discrimination and sexual harassment.
The New York Post has the story.
Wednesday, November 15, 2017
Jeffrey Abramson has posted to SSRN Full Court Press: Drawing in Media Defenses in Libel and Privacy Cases. The abstract provides:
Recent jury verdicts against Rolling Stone Magazine and Gawker Media raise fundamental issues in defamation and privacy lawsuits, including who is a public figure, what counts as newsworthiness, and whether truth is always a defense under the First Amendment. Using those verdicts as a starting point, I reexamine the democratic arguments the Supreme Court relied on to protect free speech and the press in New York Times v. Sullivan. I conclude that subsequent cases overextended the New York Times rule in ways that weakened its democratic foundation. I suggest three reforms. Regarding the public figure doctrine, courts should enforce the oft-quoted, but frequently ignored, requirement that private individuals morph into public figures only to the extent that they voluntarily thrust themselves into a public controversy. In regard to privacy torts, truth should not be an absolute defense, no matter how uncomfortable such a conclusion is to one reading of the First Amendment. Judges and juries will have to continue to struggle over norms of newsworthiness when truth and privacy collide. Finally, media attention to the private lives of public officials, however justified on occasion, has become so routine as to defeat what New York Times v. Sullivan promised—a press focused on the investigation and criticism of official acts.
Monday, November 13, 2017
Almost two weeks ago, I reported that a Kentucky judge held unconstitutional the state's 2017 law requiring med mal cases to be reviewed by a panel of doctors prior to proceeding to trial. On Friday, the Kentucky Court of Appeals issued a stay of the order. The 89 current cases will proceed and prospective cases will have to proceed through the panel process. The stay is in effect until further notice. The Northern Kentucky Tribune has details.
Friday, November 10, 2017
The Pennsylvania Professional Liability Joint Underwriting Association (JUA) was created by state law in 1975, but the entity is not a part of state government. The JUA was founded as a last-ditch insurer for doctors at a time when malpractice insurance was in the first of several cyclical crises. It has a surplus of $268M. Pennsylvania, trying to balance its budget, passed a law requiring the JUA to turn over $200M of the surplus by December 1. If it fails to comply, the law abolishes the JUA and transfers its money to the Department of Insurance. The JUA has sued Governor Tom Wolf in federal court, asserting the seizure is an unconstitutional deprivation of property without due process of law. The Inquirer has details.
Thursday, November 9, 2017
At Politico, John Culhane analyzes the potential case against the federal government for the failure to enter the shooter's domestic violence conviction in a national database that would have prevented him from legally purchasing a gun.