TortsProf Blog

Shavell on Liability for Autonomous Vehicle Accidents

Steven Shavell has posted to SSRN On the Redesign of Accident Liability for the World of Autonomous Vehicles.  The abstract provides:

This article proposes a scheme of liability that would desirably control accident risks in the coming world in which motor vehicles will be autonomous. In that world, travelers will not be drivers, rendering liability premised on driver fault irrelevant as a means of reducing accident dangers. Moreover, no other conventional principle of individual or of manufacturer liability would serve well to do so. Indeed, strict manufacturer liability, recommended by many commentators, would actually tend to leave accident risks unchanged from their levels in the absence of liability. However, a new form of strict liability – the hallmark of which is that damages would be paid to the state – would be superior to conventional rules of liability in alleviating accident risks and would be easy to implement.

PA: Football Players Injured in Tackling Drill Can Sue University

Two football players at Lackawanna Junior College were injured during the same tackling drill in 2010.  Their suits against the school were dismissed by the trial court on the ground the players had signed a waiver.  The Superior Court reinstated the suits and now the Pennsylvania Supreme Court has affirmed that ruling.  The court noted waivers against gross negligence and recklessness were ineffective and held there were sufficient facts for the players to present the case to a jury.  The "Oklahoma Drill" the players were engaged in later became subject to criticism during investigations about concussions and the school did not have licensed athletic trainers present to treat injuries.  PennLive has the story.

Keating: "Is Tort Law Private?"

Gregory Keating has posted to SSRN Is Tort Law 'Private'?.  The abstract provides:

A prominent, important strand of contemporary thinking about tort law — represented most powerfully by the work of Arthur Ripstein and Ernest Weinrib — has coalesced around the thesis that the concept of “private law” is the key to the subject. In one familiar usage of the term, the thesis that tort is private law is innocuous. Tort is private law in the sense that it is concerned with relations among persons in civil society. As the banner under which a school of thought marches, “private law” is a much weightier concept. It asserts that the essence of tort law is encapsulated in the traditional bipolar lawsuit. Within that formal structure, all that matters are the relations between the particular plaintiff and the particular defendant.

This book chapter argues that modern tort law is not private in the way that these theorists claim, for reasons that are both historical and normative. Modern tort took shape in response to the emergence of accidents as a social problem and its rise involved the displacement of traditional bipolar wrongs from the center of the field. Long established intentional wrongs — battery, trespass, defamation, and the like — arise out of episodic, one-off collisions between individual persons going about their lives. In an industrial, technological society, accidents are the recurring byproducts of organized and fundamental social activities. Modern fault liability emerges as the center of modern tort law in response to this social transformation. When this happens, accidents become the focal point of tort law and fault is sharply divorced from moral notions of personal responsibility and blameworthiness. To be sure, negligent wrongs remain genuine wrongs. The fault standard is an attempt to articulate what a right to the physical integrity of one’s person requires in the way of care owed by others. Failures to exercise reasonable care are wrongs when they result in harm to persons who can claim the right to such care. But they are also wrongs that may be blamelessly committed. Negligence is wrongful conduct, not culpable mens rea. We require reasonable care not because failing to be reasonably careful is always and everywhere egregiously blameworth, but because even blameless and slight negligence can inflict severe harm.

Champions of tort as private law implicitly recast tort in a pre-modern form, thereby obscuring fundamental and significant features of our law. Modern tort law responds to a pressing social problem and protects persons’ fundamental interest in physical integrity. It is a part of basic justice concerned with interactions that cannot be avoided in the course of normal modern lives — not a law which addresses random and voluntary individual interactions. And almost since its inception, modern tort law has been only one of a family of institutions that address organized, systematic, risk. Direct regulation of risk and administrative schemes are two others. This family of institutions is not sundered by a radical separation of the private law of torts from the public law of regulation. Tort law, direct regulation of risk, and administrative schemes are complementary and competitive alternatives to one another, responding to overlapping problems and articulating related values.

Keating on Corrective Justice

Gregory Keating has posted to SSRN Corrective Justice:  Sovereign or Subordinate?.  The abstract provides:

The concept of “corrective justice” has figured prominently in debates over the formal structure and normative commitments of private law — especially tort law — over the past generation. This chapter organizes those debates around two very different conceptions of the role and significance of corrective justice in private law, especially tort law. One conception sees corrective justice as “sovereign” the other sees it as “subordinate”. On a subordinate conception, corrective justice is an aspect of the institution of tort law and it must be accounted for by an adequate theory of tort. On a sovereign conception, corrective justice is the master concept of tort law; it does the explaining. In the disciplinary battles of the past few decades, economically inclined theorists of tort — especially Richard Posner — have conceived of corrective justice as subordinate whereas philosophically inclined theorists have taken it to be sovereign. The thought behind the subordinate conception is obvious enough. Ordinary tort adjudication does corrective justice; a theory of tort worthy of the name ought to explain way. The argument for the sovereignty of corrective justice is less obvious. It grows out of a critique of the economic analysis of tort developed by Jules Coleman and Ernest Weinrib. In a nutshell, they argue that corrective justice is a backwards-looking practice and is therefore poorly explained by the forward-looking logic of economic analysis.

On their face, the central concepts of negligence law — duty, breach, harm, actual and proximate cause — hang together to articulate a relationship of right and responsibility between victim and injurer. Breach of duty is a reason to hold a defendant responsible for harm done to a victim by the breach of that duty. Tort law looks backwards toward the past interactions of the parties in order to determine if the defendant should be held responsible for the plaintiff’s injury. For orthodox economic analysis, however, liability is not imposed because the defendant breached a duty of care and was the actual and proximate cause of harm done. Liability is imposed when and because we rightly conclude that the imposition of liability for past harm will induce optimal prevention of accidental harm going forward. For economics, the concepts of duty, breach, actual and proximate cause, and harm are not the real grounds of liability. They are evidentiary markers that do a respectable job of identifying cheapest cost-avoiders going forward.

This chapter argues that the corrective justice critique of economic analysis is powerful, but that the conclusion that corrective justice is the sovereign principle of tort, and perhaps even private law more generally, is not. Corrective justice in tort looks back to the violation of tort law’s primary norms. Those norms, and the values they seek to institute, deserve to be at the center of our understanding of the field. For the economic analysis of tort, the path forward may lie in moving towards the kind of indirect account of the institution now familiar in property scholarship. Such an account would give due recognition to the norms that figure prominently in tort adjudication, and seek to show how the institution as a whole is justified by its desirable consequences.

Abraham & White on the Constitutionalization of Tort Liability

Ken Abraham & Ted White have posted to SSRN First Amendment Imperialism and the Constitutionalization of Tort Liability.  The abstract provides:

To what extent does the First Amendment impose limits on the permissible scope of tort liability? Until recently, the clear answer would have been, “only under very limited circumstances.” During the last few decades, however, the First Amendment has been so greatly expanding its empire that giving this answer is no longer possible. “All bets are off” would be a more accurate answer, because the forms of speech to which the Supreme Court has extended First Amendment protection have become impressively broad. Although existing First Amendment restrictions on the permissible scope of tort liability currently are limited, the very existence of those restrictions confirms that many torts involving speech potentially are subject to First Amendment protection. And many torts do involve speech – the duty to warn about the dangers of prescription drugs, fraud, and even some forms of simple negligence are just a few examples.

If the First Amendment of the future limited all or even many of these different constitutionally unprotected forms of tort liability, then its scope would be pervasive. We contend, however, that neither existing First Amendment doctrine nor sensible constitutional policy supports extending free speech protection to torts that are accomplished through speech, except in extremely narrow circumstances. Extending First Amendment protection to such torts would aggravate what we argue are two of the principal risks posed by First Amendment imperialism: the erosion of the cultural distinction between truth and falsity, and devaluation of the status of speech about matters of public concern. Our contention is that most of the forms of speech involved in torts that are accomplished through speech currently are, and should remain, excluded from First Amendment protection. To support this contention, we examine the First Amendment’s extension to previously unprotected forms of speech over the last three-quarters of a century, compare the new First Amendment protections to the doctrinal elements of a series of torts that always or often are accomplished through speech, and argue that it would make little sense, as a matter of tort or constitutional law, to restrict liability for those torts on First Amendment grounds.

Citron on the Internet as It Is and Should Be

Danielle Keats Citron has posted to SSRN Cyber Mobs, Disinformation, and Death Videos:  The Internet As It Is (And As It Should Be).  The abstract provides:

Fiction and visual representations can alter our understanding of human experiences and struggles. They help us understand human frailties and suffering in a visceral way. Nick Drnaso’s graphic novel Sabrina does that in spades. In Sabrina, a woman is murdered by a misogynist, and a video of her execution is leaked. Conspiracy theorists deem her murder a hoax. A cyber mob smears the woman’s loved ones as crisis actors, posts death threats, and spreads their personal information. The attacks continue until a shooting massacre redirects the cyber mob’s wrath to other mourners. Sabrina captures the breathtaking velocity of disinformation online and the rapid escalation to terroristic threats.

Every day, people are radicalized online to wreak havoc and violence. On August 3, 2019, in El Paso, Texas, a twenty-one-year old man posted a racist manifesto on 8chan and then walked into a Wal Mart with a powerful rifle, killing 20 people and injuring many others. The killer trafficked in and engaged with others in hateful conspiracy theories. 

Drnaso invites a conversation about cyber mobs, conspiracy theories, and death videos and the norms, attitudes, and laws enabling them. Right now, it is cheap and easy to wreak havoc online and for that havoc to go viral. Platforms act rationally — some might say responsibly to their shareholders — when they tolerate abuse that earns them advertising revenue and costs them nothing in legal liability. Combatting cyber-mob attacks must be a priority. Law should raise the cost of cyber-mob attacks. It is time for tech companies to redress some of the negative externalities of their business model. Platforms should not enjoy immunity from liability for user-generated content unless they have earned that immunity with reasonable content moderation practices. Education should play a role as well. As digital citizens, we need to do better.

Hiring at the University of British Columbia

The Peter A. Allard School of Law at UBC is in the process of hiring several Assistant Professors to begin in 2020-2021.  Torts is an area of particular interest.  The deadline to apply is September 10, and the link to information is here:  http://www.allard.ubc.ca/sites/www.allard.ubc.ca/files/images/homepage/assistant_professor_job_posting.pdf

They are also hiring Full or Associate Professors (any fields) and recruiting to nominate a Canada Research Chair (Tier 2) in Health Law, Law and Technology, or Legal Ethics.  A link listing UBC's current academic employment opportunities is here: http://www.allard.ubc.ca/about-us/careers-allard-school-law  

JOTWELL Torts: Green on Yeung on Computer Code as Law

At JOTWELL, Sarah Green reviews Karen Yeung's Regulation by Blockchain:  the Emerging Battle for Supremacy between the Code of Law and the Code as Law.

Hedley on Insurance's Effect on Negligence Liability

Steve Hedley has posted to SSRN The Unacknowledged Revolution in Liability for Negligence. The abstract provides:

Wide availability of insurance today makes nonsense of most of tort’s traditional justifications. No longer can it punish or deter wrongs, or deal even-handedly between claimant and defendant: the defendant simply drops out of the picture in favour of their employer or insurer. Tort therefore merely compensates, though theorists are reluctant to concede this. Modern theoretical accounts emphasise deterrence, personal responsibility and corrective justice – all of which are important goals, yet none of which has much to do with tort’s bureaucratic reality. But tort is not so easy to uproot, and the interest groups which can speak most authoritatively have too much to gain from its operations to permit substantial reform. For theorists, therefore, the justification of tort is an important problem with no plausible solution: it is an itch which constantly irritates, but which we cannot properly scratch.

Movement on Federal Legislation for Autonomous Vehicles

Last year, the House passed legislation on autonomous vehicles, but a complementary bill died in the Senate.  Given the lack of progress since then, industry leaders did not expect much to happen this year.  In the past few weeks, however, a bipartisan group in both houses of Congress has held five meetings in an attempt to reach a deal.  A new bill is reportedly being written.  The Verge has the story.

UT: Supreme Court Rules Agency Pre-Approval of Med Mal Claims Unconstitutional

Earlier this week, the Utah Supreme Court ruled that a law requiring medical malpractice plaintiffs to obtain a certificate of compliance from a state agency is unconstitutional because it violates separation of powers.  Jurist has the story.

McClellan: Healthcare and Human Dignity

Frank McClellan has a new book coming in October entitled Healthcare and Human Dignity.  From the blurb:

The individual and structural biases that affect the American health care system have serious emotional and physical consequences that all too often go unseen. These biases are often rooted in power, class, racial, gender or sexual orientation prejudices, and as a result, the injured parties usually lack the resources needed to protect themselves. In Healthcare and Human Dignity, individual worth, equality, and autonomy emerge as the dominant values at stake in encounters with doctors, nurses, hospitals, and drug companies. Although the public is aware of legal battles over autonomy and dignity in the context of death, the everyday patient’s need for dignity has received scant attention. Thus, in Healthcare, law professor Frank McClellan’s collection of cases and individual experiences bring these stories to life and establish beyond doubt that human dignity is of utmost priority in the everyday process of health care decision making.

FRANK McCLELLAN is a professor of law emeritus at the Beasley School of Law, Temple University, Philadelphia and author of Medical Malpractice: Law, Tactics and Ethics and co-author of Tort Law: Cases, Perspectives, and Problems.

A flyer (with a 30% discount) is here:  Download Mcclellan author flyer (1) (1)

Geistfeld on Tort Liability for Human Rights Violations in Global Supply Chains

Mark Geistfeld has posted to SSRN The Law and Economics of Tort Liability for Human Rights Violations in Global Supply Chains.  Appearing in a forthcoming issue of the Journal of European Tort Law, the paper is based on a presentation at April's Annual Conference of European Tort Law in Vienna.  The abstract provides:

The human rights of foreign workers in global supply chains are routinely violated, yet the problem so far has largely evaded a legal solution. Economic analysis shows why domestic tort liability can partially address this problem. Many consumers in developed countries have a lower willingness-to-pay for products produced by global supply chains that systemically subject foreign workers to egregiously dangerous working conditions in gross violation of their human rights. This attribute of consumer demand provides a basis for subjecting the domestic chain leader to domestic tort liability for the bodily injuries suffered by these foreign workers, including those employed by independent suppliers. Chain leaders, like other product sellers, are obligated to warn about foreseeable safety risks that are not known by consumers and would be material to their decision about whether to purchase or use a product. The tort duty also requires sellers to instruct consumers about the ways in which the purchase or use of the product might foreseeably harm third parties. A domestic seller that is the chain leader of a global supply chain would breach this duty by not warning domestic consumers that the product is produced by foreign workers who are systemically subjected to working conditions that are so unsafe as to amount to a gross violation of their human rights. Because the purchase of the product foreseeably exposes foreign workers to this ongoing risk of physical harm, they are protected by the tort duty and can recover for its breach. Causation can be established by the logic of the breached tort duty. If consumers had been warned that the product is produced in such a systemically unsafe work environment, a substantial number of them would not have purchased it--they would instead have purchased the same product at the higher price necessary to protect the foreign workers from these ongoing safety violations. By distorting consumer demand in this manner, the domestic product seller’s failure to warn domestic consumers of these human rights violations in the global supply chain proximately caused injury to these foreign workers, entitling them to compensation. By remedying these human rights violations, domestic chain leaders would satisfy the reasonable expectations of domestic consumers who have altruistic preferences to rescue foreign workers from extreme dangers within the production process. Tort law cannot redress the full range of human rights violations in global supply chains, but consumer demand provides a sound basis for tort liability that addresses a limited, though important component of the problem.

Gentry & McMichael on Tort Incentives

Elissa Philip Gentry and Benjamin McMichael have posted to SSRN Responses to Liability Immunization:  Evidence from Medical Devices.  The abstract provides:

The Supreme Court's decision in Riegel v. Medtronic unexpectedly and immediately immunized medical device manufacturers from certain types of state tort liability. Riegel immunized manufacturers from liability if their devices had been approved through the Food and Drug Administration's most rigorous|and costly|review process, premarket approval ("PMA"). Exploiting this unanticipated decision, we examine whether manufacturers strategically respond to this new immunity. We find evidence that, following the Riegel decision, device manufacturers file more PMA applications for high risk product categories (relative to the comparable change for low risk categories), suggesting that firms are sensitive to the newly immunized risk. We additionally find evidence that physician treatment patterns with respect to medical devices also change, consistent with Riegel shifting liability away from device manufacturers and towards physicians. The analysis provides evidence that sophisticated actors respond to changes in their expected legal liability and that technical legal decisions have important ramifications for the provision of health care.

John Gardner (1965-2019)

Another sad death to report.  John Gardner, Senior Research Fellow at All Souls College at Oxford, has passed away from cancer at the age of 54.  I met him only once.  He was interesting, interested, charming, and kind.  The Oxford obituary is here.

UT: Pre-Injury Waivers Signed by Parents on Behalf of Children Not Enforceable

Not long after a similar holding in Kentucky, the Utah Supreme Court held that pre-injury releases signed by parents on behalf of their children "generally offend Utah public policy."  From Shook, Hardy & Bacon's State Supreme Court Watch:

Rutherford v. Talisker Canyons Fin., Co., LC, 2019 WL 2710230 

Holding:  Pre-injury liability releases executed by a parent on behalf of a minor “generally offend Utah’s public policy” and are unenforceable. 

The parents of a 10-year-old advanced skier who sustained brain injuries in a crash at a ski resort brought negligence and premises liability claims against the ski resort.  The ski resort argued that the minor’s injuries were due to the inherent risks of skiing and barred pursuant to both Utah’s Inherent Risks of Skiing Act (IRSA) and a pre-injury liability release executed by the minor’s father.  The trial court determined that the resort’s pre-injury liability release was unenforceable and that a question of fact existed as to whether the resort exercised reasonable care in the circumstances.  The court of appeals affirmed this decision, but recognized that other pre-injury releases signed by a parent on behalf of a child are generally enforceable.  The Utah Supreme Court affirmed the judgment of the lower courts, but also took the opportunity to clarify that pre-injury liability releases executed by a parent on behalf of a minor generally offend state public policy. 

Toddler Dies After Falling into Grease Trap at Tim Hortons

Here is a danger and liability concern I had never considered.  Yesterday morning, a three-year-old boy died in Rochester, New York after falling through a restaurant grease trap.  The trap was covered by a plastic lid (like a manhole cover) that was green to blend in with the surrounding grass.  The police said it appears the boy ran over the lid, popped it loose, and then fell.  A similar incident happened at an Alabama ice cream shop in October 2017.  CNN has the story.

James A. Henderson Jr. (1938-2019)

Cornell Law has now posted a notice for Jim Henderson.

Amicus Brief in Georgia Sperm Donor Case

Download Norman v. Xytex Draft Brief in Support of Cert. (Jul. 5 2019)

If you wish to sign this amicus brief, please email Tim Lytton at tlytton@gsu.edu.

Dear Friends:

In the coming days, the attorneys for the plaintiffs in the case of Wendy Norman, et al. v. Xytex Corp., et al. will be filing a petition for writ of certiorari with the Georgia Supreme Court seeking review of the dismissal of their claims against Xytex, a sperm bank headquartered in Atlanta, Georgia. This case is of crucial importance for buyers of reproductive cells in Georgia who, currently, have no recourse against providers/sellers. Liza Vertinsky (Emory), Tim Lytton (Georgia State), and I have co-written an amicus brief  in support of the plaintiffs’ petition (attached) and would like to invite others to join. We are also interested in comments on the brief including, in particular, suggestions on how to convince a court—which typically grants only 1-in-10 cert. petitions—to take this sensitive case. Please send comments on or before July 20 and let us know if you are interested in seeing and signing on to the final draft by July 22.   

Background

To provide some more background: this is one of numerous cases filed in both state and federal courts in Georgia and elsewhere against Xytex over the last few years by parents of children conceived from sperm purchased from Xytex. The donor in the Norman case, Chris Aggeles, applied to become a donor in 2000 and continued to donate sperm for many years. He claimed he had multiple college degrees and was pursuing a Ph.D. in neuroscience engineering, although in reality he did not have a college degree. At the encouragement of Xytex employees, he falsely claimed he had an IQ of 160. He did not, however, disclose that he had been given diagnoses of and was hospitalized for psychotic schizophrenia, narcissistic personality disorder, and grandiose delusions. In 2002 he qualified for Social Security Disability for his mental illnesses and in 2005 he was convicted of residential burglary and sentenced to 8 months in jail, all the while remaining a donor with Xytex. The Xytex suits came about after the donor’s personal information was accidentally revealed in 2014. Despite representations to the contrary, Xytex did not investigate Aggeles’s background, including his criminal background. The company promoted him as one of their best donors and he ultimately fathered at least 36 children. The child born to the plaintiffs in the Norman case has serious mental health problems and has been hospitalized for psychoses, depression, and suicidal and homicidal ideations.

The Norman case was originally filed at the Georgia Superior Court for Fulton County and included 13 different causes of action, including fraud, negligence, breach of warranty, unfair business practices, product liability, and more. The Superior Court summarily dismissed virtually all of the plaintiffs’ claims under the reasoning that the plaintiffs are asserting what is essentially a wrongful birth claim, which is barred under Georgia Supreme Court case law. On June 21, the Georgia Court of Appeals affirmed the Superior Court’s decision.  

Our arguments in this brief, in a nutshell, are as follows:

1. The lower courts’ characterization of the plaintiffs’ claims as, essentially, a wrongful birth claim is erroneous because this case does not share essential characteristics of wrongful birth claims (primarily, the claim of loss of opportunity to abort a fetus) and is more akin to a case of wrongful conception and nondisclosure of a medical condition prior to adoption.  
2. Characterizing the claims brought against the sperm bank as, essentially, a wrongful birth claim leads to an unjust result and ignores the realities of sperm markets.
3. The lower courts’ decisions amount to an absolute immunity for sperm banks regardless of the conduct of the bank and its employees, which may have negative public policy and public health ramifications.  
4. Dismissal of this case is inconsistent with Georgia common law tort principles.

If you have any questions or are interested in reading more about this case and other cases against Xytex, please let me know and I’ll be happy to send you more information (or you can just Google “Xytex” and “Donor 9623”).

Yaniv Heled, J.S.D.

Associate Professor of Law

Co-Director, Center for Intellectual Property

Georgia State University College of Law

P.O. Box 4037, Atlanta, GA 30302-4037

Tel: (404) 413-9092

Email: yheled@gsu.edu 

6th Cir.: Amazon Can Be a "Seller" of Products of Third Party

A week after a similar holding in the Third Circuit, the Sixth Circuit ruled that, under Tennessee law, Amazon can be a "seller" of products owned by a third party and advertised on its website.  The case involved a hoverboard fire that destroyed the plaintiffs' home.  The court further held plaintiffs had not actually proven Amazon was a seller on these specific facts, but sent the case back to the district court on the theory that Amazon assumed a duty to warn when it sent an email about the dangers of the product.  The district court must decide if Amazon's warning was negligent.  ABC News has the story.