TortsProf Blog

JOTWELL Torts: Goldberg on Engstrom on Auto Accidents

At JOTWELL, John Goldberg reviews Nora Engstrom's When Cars Crash:  The Automobile's Tort Legacy.

Shavell on Expanding Strict Liability for Abnormally Dangerous Activities

Steven Shavell has posted to SSRN The Mistaken Restriction of Strict Liability to Uncommon Activities.  The abstract provides:

Courts generally insist that two criteria be met before imposing strict liability. The first--that the injurer’s activity must be dangerous -- is sensible because strict liability possesses general advantages in controlling risk. But the second -- that the activity must be uncommon -- is ill-advised because it exempts all common activities from strict liability no matter how dangerous they are. Thus, the harm generated by the large swath of common dangerous activities -- from hunting, to construction, to the transmission of natural gas -- is inadequately regulated by tort law. After developing this theme and criticizing ostensible justifications for the uncommon activity requirement, the article addresses the question of how it arose. The answer is that its legal pedigree is problematic: it appears to have been invented by the authors of the first Restatement of Torts. The conclusion is that the uncommon activity requirement for the imposition of strict liability should be eliminated.

PA: Should Liability Be Allocated Differently in Asbestos Cases?

In 2011, Pennsylvania replaced joint and several liability with a statute referred to as the "Fair Share Act."  The statute provided that if an individual defendant was found less than 60 percent liable in a given case, then dollar-amount damages for said defendant would be set at a level proportional to their percentage of liability in that case.  A Court of Common Pleas judge in Philadelphia held that the Fair Share Act did not apply to asbestos, despite the lack of an explicit carve-out, because asbestos exposure is not quantifiable.  The Superior Court held this was erroneous and now the case is before the Supreme Court of Pennsylvania.  The case is Roverano v. Crane, Inc.  The Pennsylvania Record has the story.

Monster Energy Drink Wins Jury Verdict in Texas

Monster Beverage Corp., makers of Monster Energy drinks, has been hit with numerous products liability suits alleging its drinks cause heart attacks.  Some of those cases have been settled, but many have been dismissed.  In the first case to reach a verdict, a Texas jury deliberated for just 15 minutes before deciding that a Monster Energy drink did not lead to a heart attack for the then-18-year-old plaintiff.  The company argues its product is safe and that a 16-ounce drink has less caffeine (160 mg) than a 16-ounce cup of Starbucks coffee (310 mg).  The Bristol Herald Courier has details.

PA: Supreme Court Holds There Is a Legal Duty to Protect Employee's Sensitive Personal Information

Late last month, the the Supreme Court of Pennsylvania held that an employer has a legal duty to exercise reasonable care to safeguard its employees’ sensitive personal information stored by the employer on an internet-accessible computer system.  The case is Dittman v. UPMC.  Data Protection Report has details.

Wright on Allocating Liability among Multiple Legally Responsible Causes

Richard Wright has posted to SSRN Allocating Liability Among Multiple Responsible Causes:  Principles, Rhetoric and Power.  The abstract provides:

In Part II of this paper, I discuss the principles underlying just allocation of liability among the multiple responsible causes of an indivisible injury. I argue that those principles support either (1) the standard method adopted by almost all courts, according to which the plaintiff's claim for compensation is reduced by her percentage of comparative responsibility if she was contributorily negligent, those who wrongfully contributed to the plaintiff's injury are each held fully (solidarily) liable for the plaintiff's possibly reduced claim, and the wrongdoers who pay the plaintiff are able to maintain contribution actions against the other wrongdoers based on their comparative responsibility, or (2) a modification of the standard method which would allow the wrongdoers who pay the plaintiff to have a contributorily negligent plaintiff share in bearing the portion of damages that are uncollectible from other wrongdoers. The various proportionate liability rules adopted by the legislatures in many states (but not the federal government) in the United States and (for injuries other than to the plaintiff's person) by all the Australian states are neither justifiable nor fair.

In Part III, I explain and criticize the rhetorical arguments used by the defense advocates to attempt to convince judges (unsuccessfully) and legislators (successfully) that replacing solidary liability with proportionate liability is necessary to be consistent with the common law and allocation of liability consistent with each person's individual responsibility.

In Part IV, I describe (1) the primary role played by recurrent cycles of "soft" and "hard" liability insurance markets, made possible by lack of proper regulation of the insurance industry, in creating recurrent liability insurance crises, (2) the successful effort of the insurance industry and other defense interests to portray tort liability rather than the flaws in the liability insurance market as the cause of the recurrent liability insurance crises in order to promote "tort reform" while avoiding needed regulation of the insurance industry, and (3) the recurrent failure of the enacted "tort reforms" to provide the promised reduction or moderation in liability insurance premiums.

Puerto Rico Adopts Med Mal Panels

Puerto Rico's governor signed a law creating 13 panels composed of 3 people--including a health expert, a public advocate, and a lawyer or former judge--to review medical malpractice claims.  Claimants, with an exclusion for the indigent, will be required to post a bond-like payment with the panel.  If the panel finds evidence of malpractice, the money will be returned.  The governor hopes it will stem the exodus of doctors from Puerto Rico; of the approximately 1,000 claims each year, 900 are dismissed.  

The exodus from Puerto Rico is widespread, and is largely caused by a weak economy and damage from recent hurricanes.   There are better ways to handle a number of weak claims than adding another layer of delay for all claims, including the good ones.  (It is important to remember that studies also suggest a large number of valid claims are never filed.)  For example, a certificate of merit requirement is more relevant handling the precise problem.

The Province has details.

OH: Method of Drug Testing Can Be an Invasion of Privacy

An Ohio appellate court has ruled that direct observation of an employee's genitals during a mandatory drug screening can state a valid cause of action pursuant to the common law tort of invasion of privacy.  Ohio and other jurisdictions have ruled drug screening itself is not an invasion of privacy, but left open the issue regarding the testing method.  The case is Lunsford v. Sterilite of Ohio, LLC,  108 N.E.3d 1235 (Ohio Ct. App. 2018).

IN: Misuse Is a Complete Bar to Recovery in Products Cases

Last month, the Supreme Court of Indiana held that Indiana's statutory defense of misuse is an absolute bar to recovery and not a mere factor in a comparative fault analysis.  In dicta, earlier cases had leaned in the other direction.  The court issued a caveat:

This is not to say that any allegation on the part of a seller that a plaintiff misused the product will suffice. The misuse defense is qualified by the plain language in the statute. That is, in order to successfully employ misuse as a defense, the seller must show both that the misuse of the product is: 1) the cause of the harm; and 2) not reasonably expected by the seller. If a plaintiff misuses a product but it is not the cause of the harm and/or the misuse can reasonably be expected by the seller, then the misuse would not serve as a complete defense and comparative fault principles would apply.

The case is Campbell Hausfeld/Scott Fetzer Co. v. Johnson, , 109 N.E.3d 953 (Ind. 2018).

Corporate Crime Reporter Reviews Sheley on Vicarious Liability

CCR has an interesting piece on Erin Sheley's Tort Answers to the Problem of Criminal Mens Rea, including an interview with the author.  The abstract to the article provides:

The respondeat superior (vicarious liability) standard by which courts hold corporations liable for the crimes of their employees has been widely criticized as being overly inclusive insofar as it punishes fault-less entities. Less acknowledged is that, due to its requirement that the employee have intended in part to benefit the corporation, the standard is also under inclusive in cases of sexual violence facilitated by a corporate entity. This article argues that, to solve these problems within the criminal law, we should learn from their parallel development in the sphere of tort law, from which respondeat superior was derived in the first place. No comprehensive effort has yet been made to examine how courts have, in tort respondeat superior, addressed the problems of over- and under-inclusiveness that emerge in that realm. In light of the lessons revealed in the tort case law, I argue that criminal respondeat superior should apply only where the government can show 1.) an omission by the corporation to take reasonable steps to prevent a crime; 2.) that the substantial risk of such a crime was objectively foreseeable to a reasonable person undertaking the corporation’s enterprise and 3.) that such a crime occurred, regardless of whether or not any individual employee had the intent to benefit the corporation.

IL: Father of Man Killed in Indonesian Plane Crash Sues Boeing

An Indonesian resident has filed suit on behalf of his son, who died last month when a newly delivered Boeing 737 Max 8 crashed off the coast of Indonesia.  The complaint was filed in Illinois' Cook County Circuit Court and alleges strict product liability, negligence, and failure to warn.  Plaintiff specifically alleges the new Boeing flight control system contributed to the plane's crash, and further alleges the defendant's plane lacked proper and adequate instructions and warnings regarding the design and functions of the auto-dive system.  The Cook County Record has details.

WA: Dep't of Corrections Not Grossly Negligent In Case of Felon Killing Girlfriend

Last week, the Washington Supreme Court ruled unanimously that the Department of Corrections did not act grossly negligent in the supervision of a felon who killed his girlfriend.  The felon was a serial domestic abuser who killed his girlfriend 15 days after his release from prison (for punching the girlfriend) in October 2012.  The gross negligence standard, applicable to a governmental unit, was not met:

A Corrections Department victim liaison spoke with Patricelli four times before Miller’s release to ensure she had a safety plan in place, and Patricelli assured the liaison she was moving to a new residence, had no interest in seeing Miller and would call the police if she did, the opinion says.

“It turns out that Miller, his mother, and Patricelli herself lied to DOC about Miller’s living arrangements while on probation, the opinion states. “In fact, Patricelli had seen Miller, even though she said she had not. And Miller was not staying with his mother, despite his mother saying, in a signed document, that he was.

“Miller was actually living with Patricelli. But the only people who knew that fact were Patricelli, her daughters, their roommate, and Miller. And all of them were actively hiding the relationship from DOC and others.”

The News Tribune has the story.

Martinez Alles on Tort Remedies

Maria Guadalupe Martinez Alles has posted to SSRN Tort Remedies as Meaningful Responses to Wrongdoing.  The abstract provides:

Tort theorists’ unceasing efforts to draw a clear-cut line between tort law (i.e., private law) and criminal law (i.e., public law) has cabined the understanding of tort remedies as private responses to wrongdoing which are predominantly compensatory. The practice of awarding additional damages contradicts this view. It indicates that in fact tort remedies represent substantive responses to wrongdoing that may involve private and public aspects which may or may not be compensatory. An example of this mismatch between practice and theory is observable in the dialogue between court decisions and scholars where it is openly acknowledged that the practice of awarding damages in tort cases actually represents punitive motives that judges camouflage under classic compensatory labels and the correlative reaction by tort theorists who counter with arguments for a reduction-to-compensation approach to those punitive elements. Against this backdrop, I argue in this article that, in order to properly channel tort victims’ substantive responses to wrongdoing, the time is ripe for revising the classic private understanding of tort remedies to take into account not only the central role of holistic considerations of the circumstances of the wrongdoing and the significance and meaning that the wrongdoing holds for the private parties in tort cases, but also the advantages of providing victims with a legitimate avenue for voicing the private and public values affected by the particular instances of wrongdoing.

Stapleton Gives Fleming Lecture at Berkeley

Jane Stapleton, the Master of Christ's College at Cambridge University, delivered the 2018 John G. Fleming Lecture at Berkeley Law last week.  The University's announcement is here.  Congratulations to Jane!

KY: Supreme Court Holds Med Mal Review Panel Law is Unconstitutional

On Thursday, the Kentucky Supreme Court ruled that the medical malpractice panel law, passed in 2017, was unconstitutional.  The law required medical malpractice claimants to go through a panel procedure (review by health care professionals) prior to obtaining a jury trial.  The process consumes nine months and the outcome is admissible, but not binding, at the subsequent trial.  In reporting on the reason the court held the law unconstitutional, J.D. Supra stated:

In holding the Act unconstitutional, the Kentucky Supreme Court focused its analysis on Section 14 of the Kentucky Constitution. Section 14 is entitled the “Right of judicial remedy for injury -- Speedy trial”. Section 14 states that “All courts shall be open, and every person for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.” The Court found that Section 14 not only applied to the Judicial branch but also to the Legislative branch, holding that the Legislative branch cannot enact legislation contrary to the rights guaranteed in Section 14, including a right to have justice without delay. The Court reasoned that, even though there are natural delays in judicial proceedings, the Act was unconstitutional because it created a mandatory delay. The Court found that due to the Act’s provisions, claimants were now unable to seek immediate redress through the Judiciary, which was unconstitutional.

The entire J.D. Supra article is here. 

I won't opine on the constitutionality of the law, but I will say that as a matter of policy the delay is a bad idea.  Med mal cases are too slow already.  This was my reaction in 2015 when Kentucky was considering an earlier version of the law:

The bill is a bad idea because it adds more delay and transaction costs to an already lengthy and expensive process, without resolving anything.  Studies conclude the average med mal claim lasts about 5 years from event to resolution, with more money being used to run the system than to compensate victims.  Review panels increase the time to resolution by adding another layer of procedure.  They also increase transaction costs as lawyers and experts for both sides try to convince an additional decision maker of the merits of their case. 

To the extent reducing frivolous claims is the goal, a certificate of merit requirement would be preferable:  it is quicker and less expensive.  Moreover, reducing the length and adversarialism of the process should be the focus.  Review panels were in place in Virginia when I practiced.  Most plaintiff's lawyers simply didn't participate.  The result was admissible at trial, but so was the information that the plaintiff was not involved in the panel's decision.  The claim was delayed, but at least it was not also more expensive.

JOTWELL Torts: Avraham on Ben-Shahar on "Data Pollution"

At JOTWELL, Ronen Avraham reviews Omri Ben-Shahar's Data Pollution.

Choi on "Crashworthy Code"

Bryan Choi has posted to SSRN Crashworthy Code.  The abstract provides:

Code crashes. Yet for decades, software failures have escaped scrutiny for tort liability. Those halcyon days are numbered: self-driving cars, delivery drones, networked medical devices, and other cyber-physical systems have rekindled interest in understanding how tort law will apply when software errors lead to loss of life or limb.

Even after all this time, however, no consensus has emerged. Many feel strongly that victims should not bear financial responsibility for decisions that are entirely automated, while others fear that cyber-physical manufacturers must be shielded from crushing legal costs if we want such companies to exist at all. Some insist the existing liability regime needs no modernist cure, and that the answer for all new technologies is patience.

This Article observes that no consensus is imminent as long as liability is pegged to a standard of “crashproof” code. The added prospect of cyber-physical injury has not changed the underlying complexities of software development. Imposing damages based on failure to prevent code crashes will not improve software quality, but impede the rollout of cyber-physical systems.

This Article offers two lessons from the “crashworthy” doctrine, which was pioneered in the late 1960s in response to a rising epidemic of automobile accidents, and which helped push rapid improvements in crumple zones, seat belts, and other critical safety features. The first is that tort liability can be metered on the basis of mitigation, not just prevention. When code crashes are statistically inevitable, cyber-physical manufacturers may be held to have a duty to provide for safer code crashes, rather than no code crashes at all. Second, a shift to crashworthiness allows both engineers and lawmakers to focus heightened scrutiny on a narrower subset of code, i.e., only those modules necessary to handle fault tolerance. Requiring all code to be perfect is impossible, but demanding some code to be closer to perfect is feasible.

Crashworthy code solves the paralysis of the crashproof mindset, by reframing the software liability problem in terms that engineers can readily undertake.

2018 Torts Section Newsletter

Scott Hershovitz has released the 2018 AALS Torts Section newsletter:   Download AALS Tort Section Newsletter November 2018

Sharkey on Vicarious Liability for Intentional Torts

Cathy Sharkey has posted to SSRN Institutional Liability for Employees' Intentional Torts:  Vicarious Liability as a Quasi-Substitute for Punitive Damages.

Modern day vicarious liability cases often address the liability of enterprises and institutions whose agents have committed intentional acts. Increasingly, when an employer is sued, the line is blurred between the principal’s vicarious liability for its agent’s acts and its own direct liability for hiring and/or failing to supervise or control its agent.

In this Article, I argue that, as a form of strict liability, vicarious liability will have an edge over direct employer negligence liability to the extent that there is a significant risk of under-detection of the failures of an employer’s preventative measures. Traces of this under-detection rationale for vicarious liability can be found in the academic literature and court decisions, but it warrants further elaboration. The risk of under-detection provides a strong justification for the expansion of the scope of institutional or employer vicarious liability.

The under-detection rationale, moreover, has the potential to serve as a coherent framework for some modern doctrinal debates, including whether punitive damages should be imposed either vicariously or directly upon employers when their employees commit intentional torts. Specifically, I argue that the under-detection rationale correspondingly strengthens the case for punitive damages in direct negligence cases and weakens the case for punitive damages imposed in vicarious liability cases. Focusing on under-detection, vicarious liability acts as a quasi-substitute for punitive damages. And seen through this lens, Restatement (Second) of Torts § 909, Punitive Damages Against a Principal — typically defended as a “complicity rule” limiting the imposition of vicarious punitive liability on fairness grounds — is justified on economic deterrence grounds by allowing punitive damages coupled with direct negligence liability but limiting its operation in the vicarious liability sphere.

Sharkey on the Economic Loss Rule

Cathy Sharkey has posted to SSRN In Search of the Cheapest Cost Avoider:  Another View of the Economic Loss Rule.  The abstract provides:

The economic loss rule in tort engages two fundamental theoretical questions: (1) which interests should tort law protect; and, more pointedly, (2) how should we think about claims that arise along the boundary line between tort and contract?

This Article advances two claims that aim to clarify this controversial, often misunderstood, doctrine. First, it is imperative to distinguish what I will term the “stranger paradigm” from the “consensual paradigm.” The specter of the economic loss rule is raised in different categories of cases: products liability, contracting party, third party, and stranger. It should not be surprising that the economic loss rule plays out differently and has different ramifications across these categories. As an initial cut, classifying such categories of cases as either “stranger” or “consensual” (and treating them accordingly) helps clarify doctrinal confusion. More specifically, holding firm to such a distinction should prevent conventional rationales for the economic loss rule developed in stranger cases — such as the floodgates or limitless liability rationale — from being imported vel non into two-party contracting cases that comprise the bulk of commercial torts. It would also expose the flaw in courts’ holdings that the economic loss rule applies full stop in the products liability realm, yet has no application in two-party contracting cases, thus failing to recognize the common thread connecting these cases, both of which fit on a continuum within the consensual paradigm.

Second, and more ambitiously, I depart from conventional justifications and develop a unifying theoretical justification for the economic loss rule based on cheapest cost avoider principles that does apply across the categories of cases — albeit with less determinacy in the stranger paradigm than the consensual one. This framework also provides a way to resolve third-party cases, which straddle the stranger/consensual dividing line. That the cheapest cost avoider rationale can be applied across case categories and paradigms lends further weight to its promise as a unifying theoretical justification for the economic loss rule in tort.