TortsProf Blog

Reflections on Changing Textbooks

Last night, I finished teaching my (two-semester) Torts class for the third year in a row.  I really love the teaching part of the job.  I thoroughly enjoy the Socratic dialogue, exploring the concepts, and interacting with students.  However, I'm beginning to wonder if I should change textbooks.  It's not that I dislike the text I use.  In fact, I think it's great.  But I feel a little stale teaching the cases yet again.  I know the cases are new for these students, but I worry that my familiarity with them dampens my enthusiasm somewhat.  Obviously the downside to changing texts is the amount of preparation time.  That time could, of course, be spent on scholarship instead.  The positive points seem to include a potential for increased enthusiasm and the ability to use cases from the old text as fairly complete hypotheticals.  If anyone has changed textbooks, I would appreciate hearing about your experience.

--CJR

Vermont Seeking a Torts Visitor

Vermont Law School may need a visitor to teach Torts in fall semester 2008. This is a one-semester, four-credit class. If you are interested, please contact Vice Dean Stephanie J. Willbanks.

Stephanie J. Willbanks
Vice Dean for Academic Affairs and
Professor of Law
Vermont Law School
PO Box 96, Chelsea Street
South Royalton VT 05068
802-831-1277
swillbanks@vermontlaw.edu

Georgia Seeks Torts Podium Visitor Next Fall

The University of Georgia law school is seeking a podium visitor for Torts I in the fall - one or possibly two sections. If it's one section, the visitor would also teach an upper-division elective. They're moving quickly, so contact Paul Kurtz ASAP if interested.

--BC

Assumption of the Risk in Jello Wrestling

A great teaching opportunity on assumption of the risk from WNBC (New York):

... Avram Wisnia was an NYU junior in 2004 when he and his dorm mates organized a party called "Beach Bash." While horsing around a kiddie pool filled with gelatin, Wisnia was pushed and shattered his hip....Wisnia's 2005 lawsuit blamed NYU for allowing the event and for having the school's food service provide the gelatin. But Manhattan Justice Carol Robinson Edmead ruled that Wisnia knew what he was doing.

(Via Walter Olson at Overlawyered).

- SBS

More Exam Stuff

Lawrence Savell (Chadbourne & Parke) sent along a couple of entertaining links relevant to exam season -- one because it is about exams, and one because it might distract from the chore of grading and/or taking exams.

In the former category is his short story Dear Professor Rosenstein [PDF], published in Washington Lawyer magazine.

In the latter is his LawTunes website (warning! starts playing music!), featuring what he describes as "Unique CDs of 'Appealing' Allegedly-Humorous, Lawyer-Created, Law-Related Rock-and-Roll Songs."

--BC

Larry Solum on "The Reasonable Person"

Over at Legal Theory Blog, Larry Solum has a fascinating Lexicon entry on "the reasonable person."   Solum explores various interpretations of the reasonable person (including Rawls, Hand, Kant, and Aristotle).  Great read.

- SBS

Exam Tips

I am sure there are dozens or more of sites and posts offering tips on first-year exams.  But I suspect that none, save the one I wrote a few years ago for Legal Underground, includes a suggestion as to what kind of exam would have been turned in by Faulkner on methamphetamine:

Annie Operator muttered (‘Oh, Andy, Andy, you’ve fallen.  Andy!’) and she stood there just as she had for thirty-five years or perhaps three months and she thought, the straight line he traveled seemed quick and harmless but then the straight line intersected the uttermost curved wall and the lines were no longer far apart but together, too together. Annie, brooding, musing, drooling, thinking, feeling, knew she had duty and breach (‘After all, the burden was less than the expected value, but those are just words that sing in our ears.’) and damages and causation but was it both factual and legal? She did not know and she was afraid she had been tricked by words, words full of agony and song again. Now, where can I score some crank? That gackle-a fackle-a shit Howard Hawks got me was great.

--BC

Another Possible Exam Scenario...

OnPoint has this complaint by a wife against her husband for his neligent operation of a hot air balloon:

As the balloon with two passengers aboard took off, the vent ropes caught [the wife] by the ankle and hoisted her into the air.

Strong winds prevented John Long from returning to the take-off site, so he aimed for trees in the hope that his wife, who was dangling upside down, could grab onto something and untangle herself. After hitting one of the trees, she fell through the roof of a barn, landing on rotting floorboards.

And the students think we make these things up...

- SBS

Black Friday Exam Question

This morning, shortly after 4:00 a.m, I made my way to Kohl's for my first, and last, foray into Black Friday shopping.  I wanted a particular item for my daughter, and Kohl's advertised a fantastic price on it.  As an amateur, I had no idea what I was doing.  But I was optimistic.  How many people could possibly be at a Kohl's in suburban Harrisburg at 4:20 a.m.?  Apparently, a lot. 

The item I was seeking was no longer in stock.  However, my instinct to avoid this carnival all of these years has been vindicated.  On the bright side, it was a target-rich environment for a Torts exam, especially for those of us with a two-semester course emphasizing intentional torts in the fall.  There are a lot of people in a crowded space, some of whom are desperate to get a particular item.  The assault and battery/self defense opportunities are obvious.  And it wouldn't take much of a stretch to see the animus from the original encounter create the desire for some intentional infliction of emotional distress.  Finally, it's a department store, so it is easy to envision a shoplifting/detention scenario that can be used to test false imprisonment.  The setting is perfect to analyze the common statutory "shopkeeper's privilege."  Enjoy your day off--and avoid malls.

CJR

Consent Gets Media Attention

Here.  One man's estate is suing another estate for a death in a three-day sadomasochism session gone very wrong.  As you can imagine, the key issue is the scope of consent.  I've already had two students note the case for me, so if you're teaching Torts, you'll probably be hearing about it too.

--BC

Some Other Resources on Tort Law

The folks at our law library do a monthly online publication called CyberCites, each month focusing on a different subject area.  This month, it's Personal Injury Law, and they've got a nice batch of sites (including, happily, this one).

--BC

A Death From the Coney Island Cyclone...Maybe.

The New York Post has a story (with the typically restrained title "Cyclone Rider's 'Killer' Thriller") relating the story of one Keith Shirasawa.

Shirasawa, a California musician, was visiting Coney Island with his girlfriend and rode the famous Cyclone roller coaster.  According to his family, during the ride's first drop (which is, I can confirm from many rides, quite a drop) he felt pain in his neck.  After the ride, he started to lose sensation, and, after some time, went to a local hospital, where he learned he had fractured three vertebrae.  The surgery apparently went well -- he was "walking around -- but due to a complication not explained in the story, he died the next day.

His family has retained counsel but has not filed sued as yet; the park says they don't have any record of the injury and is clearly walking cautiously. 

The story raises interesting potential questions of risk assumption, both general (what injury risks do you assume when boarding any coaster?) and specific (what what injury risks do you assume when boarding the Cyclone, which the Post describes as "famously rickety"?).

--BC

Dream Exam Material

For your weekend reading pleasure: Bicycle Built for Brew.

You don't have to thank me.  Just send me copies of exams based on it.

--BC

ABA To Honor Professor Twerski

The Brooklyn Daily Eagle reports that the ABA Tort Trial & Insurance Practice Section will honor Professor Aaron Twerski on Sunday with the 2007 Robert B. McKay Law Professor Award.   The story reports that the award "recognizes law professors who are committed to the advancement of justice, scholarship and the legal profession in the fields of tort and insurance law."  Prior recipients of the award have include Judge Richard A. Posner, and the late Charles Alan Wright. 

- SBS

Which Comes First - Negligence or Intentional Torts?

With the start of a new school year almost upon us, the question arose:  how do you structure your Torts course?  Do you begin with intentional torts or negligence? 

Readers, please post a comment.  As new torts professors consider how to design their course, we'd love to gather comments on what has worked for you, and why you chose your approach. 

- SBS

Rock Concert Injuries

An entertaining Above The Law post about this ad at Q101 in Chicago, where Goldberg Weisman Cairo, a personal injury firm, seeks clients injured at rock concerts.

As a general matter, I find the header ("The pit is dangerous!") to be a pretty compelling argument for assumption of risk.  I've been in quite a number of pits and I was quite aware of the risks.  Indeed, the risks are generally the purpose, no?

Additionally, this caught my eye:

June 29, 1998 A 17-year-old girl attended a rock concert where promotional compact discs were being thrown into the audience as prizes. She suffered an extensive corneoscleral laceration with vitreous hemorrhage and retinal detachment when a compact disc struck her in the eye. An alternative, safer method must be used for distributing compact discs as prizes.

And why did it catch my eye?  Because of how closely it tracked part of my exam [PDF] in Torts last fall, which featured all sorts of bands from the '80s you don't want to hear again:

The Fixx performs at Second Street, at a show attended by (among others) Gregory Pajeski, who paid $10 for his ticket.  At the end of the performance, all of the members of the band (including Pyrnin, Prown, and guitarist drummer Adam Poods) throw several dozen free CDs into the crowd as promotions.  Pajeski just misses catching one of them.  At the end of the encore, all three members of the band again throw several dozen free CDs into the crowd.  This time, one hits Pajeski in the ear and slices it open, requiring many stitches and several thousand dollars worth of medical care.

Good times.

--BC

The Golfing Gizmo in All Its Glory

Several of my students in my Products Liability course (all of whom were in my very first class three years ago and who are graduating this spring) chipped in and got me a gift of a "Golfing Gizmo," a device from the 1960s and 1970s that is the subject of the Hauter v. Zogarts case (534 P.2d 377 (Cal. 1975)) in David Owen et al.'s Products Liability and Safety casebook and possibly others.  And they even found the same model and manual as is in the case, including the almost-blank-verse notation on the front: "COMPLETELY SAFE BALL WILL NOT HIT THE PLAYER."

The manual (in PDF form) is here: Download Gizmo0001.PDF

For others who teach the case, I present some images you're welcome to use (click on the smaller images to get a bigger one):

The graphic design of the packaging is really quite good.

Ah, the famous House of Zog, right up there with the House of Blues and the House of Representatives.

The key language (which is replicated but with the article "the" added before "player" on the manual, provided above).

A golf ball on a 20-foot cord attached to an elastic strap -- what could possibly go wrong?

The device set up.  (Yes, our yard has seen better days, but we're putting on an addition this year and it's going to be dug up anyway, so that's my excuse, this year, for not reseeding.)

The top of the "T" is made of elastic attached to ground spikes.  The longer part is thick non-stretchy cord.

The full set-up.  The golf ball is attached at the far end of the cord (next to the treehouse post).  And, um, yes, that is a sled on the ground.  Hey, we had snow less than two weeks ago, honest.

Thanks to my students for the very thoughtful gift.

Congratulations to WNEC Products Liability Moot Court Team

Pardon my personal plug here, but it is related.  I'm returning home this morning from Cincinnati, where the team from Western New England College School of Law got to the seminfinal round in the Rendigs Memorial Products Liability Moot Court competition.   It was our first year participating, and to get to the final four was a terrific result (and, so far as anyone recalls, unprecedented for new participants).

The team -- made up of 3Ls Stephanie Schlatter and Neal Eriksen and 2L Andy Kralios -- wrote a terrific brief [PDF] and presented the arguments very well, receiving uniformly excellent feedback from the judges.

The problem [PDF] was a good one, involving interesting and close questions about duty to subsequent purchasers, open and obvious dangers, sophisticated users, and (in what made my heart sing) a dispute about whether Frye or Daubert is the better standard for scientific evidence.

Thanks to everyone at the University of Cincinnati College of Law for running a great competition, and congratulations to the finalist teams, both from South Texas College of Law.

AALS Prosser Award

The Torts and Compensation Systems section of the American Association of Law Schools (AALS) is reviving the William L. Prosser Award.  The award "recognize[s] outstanding contributions of law teachers in scholarship, teaching and service in ... torts and compensation systems ...."   The award has lain dormant for perhaps two decades, but past recipients include luminaries such as Leon Green, Wex Malone, and John Wade.

Any law professor is eligible to nominate another law professor for the award.  Selection of the recipient will be made by members of the Executive Committee of the Torts and Compensation Systems Section, based on the recommendation of a special selection committee.  The announcement of the award will be made at the annual AALS meeting in January, 2008.   

Nominations, accompanied by a brief supporting statement, should be submitted to Prof. John Goldberg, Secretary of the Executive Committee, either by regular mail or e-mail (addresses below).  Nominations must be received no later than 5 pm eastern time (U.S.) on July 2, 2007.

John C. P. Goldberg
Associate Dean for Research
Professor of Law
Vanderbilt University
131 21st Ave. South
Nashville, TN 37203-1181
john.goldberg@vanderbilt.edu

Crazy Love for Torts

Kate Butler (Cooley) points out that the story on which the Sundance entrant Crazy Love was based is also a reported case (Riss. v. New York) featured in at least the Prosser Torts casebook.  The dissent in the case describes its facts and the plaintiff's claim thus:

Linda Riss, an attractive young woman, was for more than six months terrorized by a rejected suitor well known to the courts of this State, one Burton Pugach. This miscreant, masquerading as a respectable attorney, repeatedly threatened to have Linda killed or maimed if she did not yield to him: "If I can't have you, no one else will have you, and when I get through with you, no one else will want you". In fear for her life, she went to those charged by law with the duty of preserving and safeguarding the lives of the citizens and residents of this State. Linda's repeated and almost pathetic pleas for aid were received with little more than indifference. Whatever help she was given was not commensurate with the identifiable danger. On June 14, 1959 Linda became engaged to another man. At a party held to Page 584 celebrate the event, she received a phone call warning her that it was her "last chance". Completely distraught, she called the police, begging for help, but was refused. The next day Pugach carried out his dire threats in the very manner he had foretold by having a hired thug throw lye in Linda's face. Linda was blinded in one eye, lost a good portion of her vision in the other, and her face was permanently scarred. After the assault the authorities concluded that there was some basis for Linda's fears, and for the next three and one-half years, she was given around-the-clock protection.

No one questions the proposition that the first duty of government is to assure its citizens the opportunity to live in personal security. And no one who reads the record of Linda's ordeal can reach a conclusion other than that the City of New York, acting through its agents, completely and negligently failed to fulfill this obligation to Linda.

Linda has turned to the courts of this State for redress, asking that the city be held liable in damages for its negligent failure to protect her from harm.

The majority opinion affirms the dismissal of the case on the basis of sovereign immunity.

The story gets more interesting after Pugach's release from prison.  From the recent NYT story (which is now subscription-only):

Ms. Riss became engaged to someone else and tried to end the affair with Mr. Pugach, who reacted by stalking her; he then hired three men who threw lye in her face, leaving her blind. During 14 years in prison for the crime, he remained obsessed with Ms. Riss, sending her letters and eventually persuading her to meet him after he was released in 1974. The two were married that year, and are still married today.

But there was more. A widely publicized trial in 1997 found Mr. Pugach back in a courtroom, defending himself against charges that he had sexually abused another woman and threatened to kill her. Standing by his side this time was Linda Pugach, who not only proclaimed her husband's innocence, but also took the stand in his defense.

A jury found him not guilty of making threats against his ex-mistress, but guilty of one count of second-degree harassment, which drew a sentence of 15 days in jail.

After prison he returned home to his wife.

Magnolia Pictures has acquired distribution rights.

Mission: Space Lawsuit Settles

I previously wrote about the Mission: Space lawsuit filed based on the death of four-year-old Daudi Bamuwamye after riding the spinning attraction.  (There are a number of interesting comments to that post as well.)  That lawsuit has now settled.

Disney, after several incidents on the ride, has started to offer a non-spinning version of the space flight simulator.

Football and Disability

An interesting story in yesterday's Washington Post, even if not directly torts-related, about an aging football player attempting to prove that his current disabilities are related to his injuries (including a broken neck) when playing professional football.

"House of Zog" Would be a Good Name for a Band.

A number of Torts and Products Liability casebooks use Hauter v. Zogarts, 534 P.2d 377 (Cal. 1975) for a variety of issues relating to misrepresentation and warranty, and for good reason.  It's a great case involving something called the "Golfing Gizmo" produced by the wonderfully-named "House of Zog."  Each year, I've tried to find a picture of the gizmo, and I've failed.

Until now.  I think.

Check out this site, which appears to have the Canadian version of the same device, lacking, sadly, the "COMPLETELY SAFE BALL WILL NOT HIT PLAYER" inscription (which, incidentally, should be the name of House of Zog's first album).

Enjoy.

Torts and Forgiveness

Early last year, I had a series of posts bout humanizing Torts.  This story is a fascinating short exploration of both sides of a tragic case and the litigation results.

ComAir Revelations & Damages

This Insurance Journal article describes some of the recent revelations in the investigation into the fatal ComAir plane disaster in Kentucky last August, and discusses them in the context of the airline's exposure for compensatory and punitive damages.  It focuses in particular on the apparently non-immediate death of at least one passenger; if you're yet to address damages for pain and suffering in your course, it might be a useful example case. 

USA Today has more, including a lengthier discussion of the pilots' confusion just before the incident about whether they were on the right runway and their violation of the FAA's "sterile cockpit" rule, which forbids non-essential conversation.

All of it can be relevant to a punitive damages discussion as well.

About That Amusement Park Safety Interest

I notice Stephanie at The Tortellini has (I think a little tongue-in-cheek) credited me with "enlighten[ing] me about the dangers of amusement parks (as if I didn't already suspect that those places were sort of a problem!)"

Just to be clear, I actually think that amusement parks and carnivals have a very solid safety record, for all sorts of reasons.  Partially it's due to some decent regulators in many states, and partially it's due to the incentives created by tort law, and partially it's because the people who get into the amusement park industry are good and decent people who don't want their customers to get hurt.

Because there's no consistent reporting of injuries (which I do think is a regulatory and statutory failure), it's impossible to be certain, but the best evidence is that the rate of injuries is quite small and of fatalities that can reasonably be attributed to the parks is exceedingly small.  And that attribution includes many things that don't necessarily suggest a defect, at least in design, like heart attacks or other results of the stress and excitement that inhere in the rides.  (Do a Technorati search for some of my posts about Mission: Space for some of those issues.)

So I hope nobody reading what I write about amusement park safety takes it as a warning to stay away.  I love amusement parks and almost all of the industry and go to parks, with my kids, frequently.  I do pay attention, as should you, and I know the limitations of my kids.  But I go, and I feel safe doing so.

I post about and think about amusement safety because the issues are interesting, they're accessible and compelling to students and others, and they're easily expandable to fit into other discussions.  Virtually every issue of importance in torts and products liability law can be explored, with great stories, in amusement park fact patterns.  But it's not an attempt to scare folks off.

Sure Enough, A Lawsuit Against the Radio Station

In a not-remotely-surprising (and entirely appropriate, in my view) action, the family of Jennifer Strange, the woman who died from water intoxication after participating in a radio station's "Hold your Wee for a Wii" contest, has filed suit.

It will certainly be interesting if we get to see the release in question, but this seems like an appropriate suit to be settled quickly, especially since, as I've previously suggested, I think the station's actions could reasonably be construed as gross negligence, claims for which I believe are not waivable under California law.

(Prior posts are here, here, and here.)

Reliance in Fraud

A frequent concern in fraud litigation is the somewhat-fading requirement to show reliance.  A forthcoming Arizona Law Review article (on SSRN) by John C.P. Goldberg (Vanderbilt), Anthony J. Sebok (Brooklyn), and Benjamin C. Zipursky (Fordham), addresses the question, arguing that it needs to stay central in fraud claims but not necessarily consumer protection statutes.  The abstract:

To prevail on a claim of common law fraud, the plaintiff must prove reliance on the defendant's misrepresentation. This requirement is puzzling, given that, under many modern formulations of the tort, the plaintiff must also prove that the misrepresentation was a factual and proximate cause of the plaintiff's detriment. One standard view of reliance emphasizes its role as the mechanism by which defendant's misrepresentation generates harm to the plaintiff. But, cast as such, it seems redundant with factual causation. Another way reliance is understood is as setting a practical limit on the amount of liability that a misrepresentation can generate. So regarded, it seems redundant with proximate cause.

In this Article, we explain why reliance forms a distinct element of fraud. Conceptually, we argue, the wrong of fraud is not an interference with the victim's interest in avoiding certain types of harm, such as economic loss, but instead an interference with her interest in being able to make certain kinds of decisions free of misinformation generated by others. Thus, a knowing misrepresentation that foreseeably causes harm to another does not defraud that other unless and until she is induced by that misrepresentation to make a decision she would not have otherwise made. Structurally, we argue that the requirement of reliance is linked to a more general feature of tort law, namely, the relational structure of tort duties. To commit a tort is to breach a duty that is owed by an actor to a class of potential victims. Therefore, to prevail, a tort plaintiff must establish not merely that wrongful conduct has caused harm to her, but that the conduct was wrongful as to a person in her position. When it comes to fraud, plaintiff's reliance is essential to establishing that the defendant's conduct was wrongful as to her, and hence to establishing her right to recover.

Having explained the place of reliance within fraud, we next explain why reliance need not be central to other wrongs that bear some resemblance to fraud, including, for example, private enforcement actions brought under consumer protection statutes. Likewise, we demonstrate that some claimants who have been injured by misrepresentations without relying on them will have valid claims for other torts, such as negligence and tortious interference with contract. The take-away point is this: An understanding of why reliance functions (or doesn't function) as a component of a legal wrong that involves misrepresentation must be sensitive to the institutional source of the legal prohibition that defines the wrong and, relatedly, the interests that are meant to be served by that prohibition.

For a different view, read this guest post from Arnold Friede from Pfizer.

Still More on Casebooks

Ellen Bublick (Arizona) reports that the Seattle University Law Review's symposium in its 25th volume is all about Torts casebooks.  Unfortunately, the journal doesn't have those pieces online (though they have most of the rest of the volume online), but they are, no doubt, available on Westlaw and Lexis.

Reputation Defender in Action

A ways back, I noted a new company that tries to improve clients' reputation online by trying to get unpleasant content about those clients removed from the web, among other things.  Consumerist received, and posted, an example of the company's efforts.

Disney Suit Settled

I'm a few days late on it, but since I've written previously about it, it's worth noting that Disney settled the injury lawsuit relating to a rider's death from a brain aneurysm on its Indiana Jones ride.

The suit has had two potentially significant rulings in it, one evidence-related, one torts-related.

Most recently, the trial court ruled that the park's subsequent changes to the ride could be entered into evidence.  The story is maddeningly silent on the basis for the ruling and how it jibes with California's Evidence Code's subsequent remedial measures exclusion.  One amusement law blog identifies the ruling as the biggest amusement-related legal story of 2006; I'm not ready to go that far without knowing more about the reason given by the court.  I imagine it was being nominally offered to show feasibility or something other than negligence.  If so, it's a fairly mundane ruling.

Back in 2005, in the same case, the California Supreme Court held that the jury in the case should be instructed to evaluate the ride under the common carrier standard.  As I noted last May, this resulted in much gnashing of teeth, including an outright prediction by a spokesman for the California Attractions and Parks Association that it "puts roller coasters out of business."  It has, of course, done no such thing (just as I had predicted).  Another publicly-traded company, Cedar Fair, is building yet another coaster in California and even purchased another major park in the state as part of buying Paramount Parks.

(As an aside, it's not quite as crazy as you might think to conclude that a coaster or other amusement ride is a common carrier under the broad California statute in question.  Should it be one?  That's a different question.  But the court opinion is not ridiculous.  I wrote about it here.)

In any event, it's interesting that it settled; I think the evidence of amusement rides causing aneurysms any more than sneezing, jumping, and the like is pretty sparse (somewhere there's an industry-funded study that suggests no significant link).  But I bet one of the other evidentiary rulings was to admit expert testimony on causation, creating enough risk to justify settlement, especially by Disney, who is known for settling most everything.

Statutes of Repose

A while back, I posted about a carnival ride called the Sizzler.  There have been a few incidents, including one in 2005 in Austin, Texas, where young riders have been thrown from the ride and injured or killed when they have failed to keep themselves in the designated seating position.  In addition to being tragic, they're interesting cases in how they raise issues of comparative fault in the context of young riders and their parents, of design obligations as to foreseeable misconduct, and so on.

But, as Kathy Fackler of SaferParks.org points out to me in an e-mail, no court will evaluate those questions, at least as to that rider and that ride. 

You see, the ride is over fifteen years old.  And part of Texas's 2003 tort reform legislation creates a limitations period [PDF] of fifteen years from the date of sale of the product by the defendant.

Perhaps that's okay in the big picture.  But it's worth considering the impact in small pictures too.  I think most people looking at the design of the ride and the height restriction issues would concede that there's at least enough evidence of design defect to get to a jury.  (The manual describes the ride on the one hand as being appropriate for 11 year olds to ride alone, but then permits people who are 52" or up to ride alone.  The average 52" person is significantly younger than 11.) 

There's probably also a claim for negligent operation, even with the apparent fact that the operator followed the instructions (mostly).  Given the history, one could no doubt argue that the height restrictions in the manual were comparable to the absent radios in TJ Hooper.

But carnival operators are, as a group, generally very low-assets (many rides are leased or heavily leveraged) and most states' insurance requirements are relatively low (I believe Texas requires $1 million, which isn't pocket change, but still).

And, as I noted, this isn't the first time something like this has happened.  It's not an annual occurrence, I don't think, but without mandatory reporting, it's hard to be sure.

So there are dozens or hundreds of Sizzlers in operation (it is, I have read, the most popular carnival ride in existence), with the same restraint system.  But due solely to its age, its manufacturer is immune from suit, and the operators will generally be effectively immune from suit.  Where's the appropriate deterrence and motivation to (for instance) urge ride owners to update the restraints?

Again, perhaps that's a fine outcome in the end -- there are lots of good reasons to at least consider giving manufacturers some date certain after which no claims will be brought.  But if you're looking for a good basis for pushing students to consider the issue more carefully, it might be worth thinking about.

Shapo & Peltz Casebook

A note from Rick Peltz (UALR):

Shameless self promotion, but sometimes one must.  I'm naturally a fan of Shapo & Peltz (3d ed. Carolina Academic Press 2006).  I was a fan of Shapo (2d ed. Lexis) previously, which is why I signed onto it.

When I am first starting out in a new course, I like a strong TM.  I tend not to use it at all after a couple years, but it's a great security blanket from the get go.  Shapo's original TM, which we've improved, was terrific.  Packed with tidbits.

Also in Torts specially, I like to look at what cases the authors chose, because there are of course a lot of areas in which you have a good deal of flexibility, i.e., many cases from various jurisdictions that could do the job.  I like to see cases that have amusing angles, compelling facts, twists.. the sort of thing students will find entertaining reading.  I thought Shapo had a knack for picking such cases, and I have tried to keep up in that tradition.

I also like a text that is not shy about throwing in a comparative angle here and there.  Shapo included in his text various comparative references, including fascinating treatment of the new zealand comp system, which i've since learned a good deal about, and even the occasional reference to Jewish canon.

Finally something I like to see, though it is not necessarily dispositive, is that an author is supportive of his or her casebook users.  I'll usually contact an author to let 'em know I am using the book and thank them for the materials.  I have had a range from no response to very kind and supportive responses.  Shapo was of the latter sort, and I pledge to serve likewise.

Further comments on casebooks would be welcome!

Your Favorite Casebook?

A new Torts prof contacted me asking if I'd ever posted about the relative merits of the many Torts casebooks, and I haven't. I haven't looked at other ones seriously since 2004 (when I started), so I don't have a lot to say -- but I suspect some readers might. 

I use the David Robertson et al. book from West (I forget which West entity it is).  It's tightly-edited, well-organized, relatively short (in a four-hour course, I like covering at least half of the book to avoid annoying students), and pretty current.  Plus, the authors are responsive, which was especially important to me when I was starting out.

What book do you use?  Please post your thoughts on various casebooks in the comments.

(I'm at AALS today so comments will be approved sporadically.)

Wow, That's Disgusting.

This is a good and oh-so-gross criminal law hypothetical, but also a pretty solid Torts one. 

(My students should note: I've already turned my exams into the student records office, so this won't show up on your final.)

Let me reiterate: Ick.  If you are easily or even not-so-easily grossed out, don't follow that link.

Texas Football and Torts

There's an interesting torts subplot developing on Friday Night Lights.  (We PVR it, so forgive me for being a little late.)

The series, as you may know, follows a season of small-town high school football in Texas, where football is, shall we say, kinda important.  The starting quarterback as the season begins, Jason Street, is paralyzed in the season's first game while tackling an opposing player running back an interception.  He's been in rehabilitation since then and the series has taken him through what could reasonably be described as some tough times.

In the most recent episode (full video free online after some ads) the possibility of litigation relating to his injuries has come up for the first time.  (He appears to come from a comfortably middle-class but not wealthy families, and the financial stress of his medical care has been acknowledged, fairly subtly, a couple of times.)  The meeting with the plaintiff's lawyer who's exploring the case was well-done, with the lawyer looking for factual theories of liability ("Did your coach ever instruct you in the proper ways to tackle a player?" or something like that) and Street's resistance to anything like blaming his coach (roughly, "I threw the interception, I made the tackle").  The attorney is made to seem like neither an angel nor the devil incarnate, but instead a smart guy trying to see if there's a case to be brought.

I assume the subplot will continue, and it should be interesting to follow.  If you're not watching the show, it's well worth-watching apart from (despite?) the torts-related aspect -- it's not at all only for football fans, and it's one of the best new shows.  It has phenomenal production values, generally good performances, and solid writing.

Of note, one of the executive producers is my law school classmate Sarah Aubrey.

We'll Flame Back for Under $20/Month!

...that's the pitch of ReputationDefender.com, which -- along with defamation law in the Internet age -- is discussed by Julie Hilden at Writ.  I don't get to defamation in my Torts class (curse the four-credit Torts!) but maybe you do.

Station Documents

I mentioned earlier the release of documents in The Station nightclub fire.  The AP writer involved points out to me that the original documents are available in PDF form on the Rhode Island AG's site.

Adventures in Manuals

You: the happy owner of a newly-purchased used Deluxe Sizzler carnival ride:

"Hooray!" you think.  "It's got a manual!  I'll know what sort of restrictions to put on it.  Page 1 tells you this:

"Okay, so, 11 or younger 'must' be accompanied by an adult.  Get that sign made!" you think.  Oh, wait, though, on the very next page, there's this:

"Huh?  The average 11 year old is 57 inches tall or so."

Just about a year ago, a 55-inch-tall 9-year-old rode a Deluxe Sizzler at a fair in Austin, Texas, without an adult (she in fact rode with her brother, also under 52").  She apparently attempted to shift herself to avoid smashing her brother.  She was thrown from the ride and died.  The ride operator followed the height restrictions; no Sizzler operator to my knowledge attempts to follow the age suggestions.

The CPSC report: Download cpsc_report.pdf

Might be a good case to explore in either a products or torts class.

Nancy Grace Sued

Embodiment of evil TV host Nancy Grace has been sued by the parents of Melinda Duckett, the mother of a missing boy.  Duckett underwent a rather harsh interview by Grace that at least suggested suspicion of Ducket in her son's disappearance.

Overlawyered is unsurprisingly skeptical.  I'm not so sure that -- if the facts as alleged are true -- there's not a decent intentional infliction of emotional distress claim, though certainly I'm hesitant to go so far as to find liability for the suicide.  In general, of course, unless the decedent acted while insane or suffering delirium, legal cause in most states precludes liability for suicide.  I haven't looked at Florida law, but I'd be surprised if it's different.

The key fact for a claim based on something short of the suicide to me in the complaint is the alleged bait and switch, where Ms. Duckett apparently believed she was going on the show only to publicize her son's disappearance, not to undergo a cross-examination.  The complaint certainly focuses on Ms. Duckett's suicide, but presumably the plaintiffs could prove some level of distress short of the suicide (perhaps using the suicide as evidence of that distress, even if no recovery was allowed for her death itself).

The claim for IIED asserted by the parents in their own right, based on the decision to air the interview within hours of Ms. Duckett's suicide, seems somewhat more problematic, in particular in showing intent (even under the reckless disregard standard) and causation.

In any event, if you cover intentional torts late in the course, or if you're just looking for a good IIED hypothetical, this might be worth considering.

Exam Strategy

A couple of years ago, after my first go-round of grading Torts exams, I wrote a piece for Evan Schaeffer's Legal Underground.  The piece, A Law Professor Shares The Top Arbitrary Number (Turns Out to be Six) of Things Not to Do on Law School Exams, discusses, well, the top six things not to do on law school exams.  I think it was good advice then and remains generally good advice now; you might want to share it with your students.

Britney & Defamation

Julie Hilden has a Writ column criticizing the dismissal of Britney Spears's complaint against Us Weekly; if you get to defamation in your Torts class, (a) I'm jealous, and (b) it's worth reading.

As I mentioned earlier, I will be out of town today through late Friday, so posting may be sporadic or nonexistent.

Best Hearsay Lesson Video Ever

Thanks to AboveTheLaw:

I almost wish I could teach Evidence, just to use that video.

New Lawyers' Preparation Survey

Check out this post at the Law School Innovations blog.

Wax On, Wax Off...and Sorry About Your Nose.

Nice example case for discussions of assumption of risk (and consent, though it's not mentioned)

A woman whose nose was broken during a sparring match at a Long Island, N.Y., karate school was an experienced practitioner of the sport and had assumed the inherent risk of injury or "even death," a state judge has concluded in dismissing her lawsuit against the school and its owner.

* * *

"Therefore, the court finds that being struck in the face while sparring, which itself involves punching and kicking your opponent while attempting to block punches and kicks from your opponent, was a risk that was known and apparent to this plaintiff when she chose to take this sparring class," Doyle wrote. "Indeed plaintiff signed a contract with the school which states, in part, that plaintiff acknowledges that the risk of sustaining an injury resulting from broken bones or even death is inherent in the sport of karate and plaintiff waives her right to recover against the karate school in the event she sustained such an injury."

The claim against the instructor was allowed to stand, as genuine issues of material fact were present about the claim that the contact was intentional.

Speaking of the Scope of Consent (Updated)

By the way, the NCAA rules for football [PDF] do not have any sort of disclaimer of relevance to civil liability comparable to the NFL's.

Also, your host's fantasy football team, the Raspberry Tort(e)s, finally returned to the win column after dropping three straight, beating the Jersey Teamsters 127-84.  The Jersey Teamsters are owned by the entertaining Unbillable Hours, who will, no doubt, provide more detail on the loss.  Until then, you can read his discussions of the last two weeks.

Complex Poltiics in Florida

As I've posted about a number of times (just look through the legislation/reform category), Florida has been making all sorts of modifications to the tort system.  Today''s Sun-Sentinel has an interesting piece on Rep. Kottkamp, a republican who voted against last spring's measure. 

He is himself a plaintiffs' lawyer and he has a personal injury suit pending against a contractor who, he contends, negligently constructed the hospital in which he contracted an infection.

"This looks