TortsProf Blog

JOTWELL Torts: Engstrom on Cardi, Jenne & Villarreal on the Continuing Risk Rule

At JOTWELL, Nora Freeman Engstrom reviews Jonathan Cardi, Ashton Jenne & Chace Villarreal's The Paradox of Continuing Risk.

Wright on Causation and Legal Responsibility

Richard Wright has posted to SSRN a series on Causation and Legal Responsibility, Parts 1 and 2.  Part 1 is "Actual Causation and Scope of Liability," and the abstract provides:

This is part 1 of an article published in the Connecticut Trial Lawyer Association's journal, the CTLA Forum, which discusses the confusion caused in Connecticut and elsewhere by the first and second Restatement of Torts' misdescription and merging of the actual causation and scope of liability elements of a tort liability claim and the Restatement Third's correction of most of the problems in the prior Restatements while still misstating or not properly understanding several significant issues. Part 2 is available at https://papers.ssrn.com/abstract_id=5291799. A complete and more readable version of the article is available at https://papers.ssrn.com/abstract_id=5130213.

This part 1 discusses the substantial confusion regarding the required elements for tort liability caused by the the first and second Restatements’ misdescription and merging together of the actual causation and scope of liability elements under the question-begging and misleading phrases “substantial factor,” “legal cause” and “proximate cause.” It describes the first and second Restatements' defective treatments of actual causation, their unsupported adoption of the harm-risked (foreseeable consequences, harm matches the risk) limitation as a limitation on duty, and their unsuccessful attempt to make that limitation more consistent with the cases by excluding significant aspects of the foreseeable risks, acknowledging significant exceptions, and employing explanations that gutted the limitation by using hindsight rather than foresight. Many of the comments in the first and second Restatements employed normatively more attractive and descriptively more plausible risk playout (harm results from the risk) language rather than harm-risked language, without apparently being aware of the significant difference between these two formulations.

The Restatement Third abandons use of the “substantial factor,” “proximate cause” and “legal cause” terminology and clearly distinguishes the “factual causation” issue from the “scope of liability” issue. It adopts (except for the deficient blackletter in section 27) the proper NESS analysis as the comprehensive test of factual causation. It  adopts Andrews’ position in the Palsgraf case that a duty is owed to everyone to exercise reasonable care when engaging in conduct that creates foreseeable risks to others, subject to categorical principle-or-policy-based limits in specific types of situations. It adopts the risk-playout limitation on the scope of liability in place of the previously adopted harm-risked limitation on duty, although it also does not seem to recognize the significant difference between the two limitations. It properly recognizes, as distinct limitations on the scope of liability, the “no worse off” and “trivial contribution” limitations.

    Part 2 is "Superseding Causation and Case Study," and the abstract provides:

This is part 2 of an article published in the Connecticut Trial Lawyers' Association's journal, the CTLA Forum, which discusses the confusion caused in Connecticut and elsewhere by the first and second Restatement of Torts' misdescription and lumping together of the actual causation and scope of liability elements of a tort liability claim under the question-begging and misleading phrases “substantial factor,” “legal cause” and “proximate cause" and the Restatement Third's correction of most of the problems in the prior Restatements while still misstating or not completely understanding several issues. Part 1 is available at https://papers.ssrn.com/abstract_id=5291875. A complete and more readable version of the entire article is available at https://papers.ssrn.com/abstract_id=5130213.

In this part 2, I discuss the arguments in all three Restatements, which are implemented in the Third Restatement, that the superseding cause limitation on the scope of liability can and should be absorbed and replaced by the harm-risked (foreseeable consequences, harm matches the risk) limitation, despite the courts’ continued regular use of the superseding cause limitation and the Third Restatement’s having correctly replaced the harm-risked limitation with the risk playout (harm results from the risk) limitation. The Restatements fail to note the significant differences in the proper formulation and application of each limitation. The Restatement Third argues that the primary/sole rationale for the superseding cause limitation was mitigation of the inequitable allocation of liability among multiple responsible parties, which supposedly is no longer a concern given the modern practice of using comparative responsibility principles to allocate liability between plaintiffs and defendants and among defendants. Both parts of this argument are defective. First, the superseding cause limitation has never been based on a concern about inequitable apportionment of liability among multiple responsible parties in the absence of modern apportionment rules, but rather a concern that a defendant should not be deemed responsible at all for a harm that occurred only because of some highly unexpected or extraordinary conduct or event for which it would not be just to hold her responsible. Second, elimination of the superseding cause limitation would not change existing apportionment rules, none of which provide for comprehensive pure comparative responsibility and most of which would continue, in the absence of the superseding cause limitation, to impose substantial and even full legal responsibility on an actor for a harm that would not have occurred if not for the intervention of some highly unexpected or extraordinary conduct or event for which he should not justly be held responsible.

Part 2 concludes with a description and critique of the jury instructions, interrogatories and judicial opinions in Snell v. Norwalk Yellow Cab, Inc. (Conn. 2019), as an example of the confusion generated by the Restatements, especially the first and second Restatements, which has yet to be fully clarified and resolved in the Restatement Third.

Satz & Vertinsky on Custom in Medical Malpractice

Ani Satz & Liza Vertinsky have posted to SSRN Customary Corruption.  The abstract provides:

For over a hundred years, it has been well-accepted among tort scholars that physicians—as one of the legally recognized professions—determine their own customary practices. Within tort law, and medical malpractice more specifically, customary practice establishes whether physicians breach or uphold the required standard of care toward their patients. The results of our hand-coded examination of decided cases and statutes show a more complex picture. While some states have endeavored to shift the standard away from professional custom, it continues to play a critical, and in many cases a determinative, role in establishing physician liability in most states.

Using illustrative case studies, we demonstrate how this outsized role of customary practice may undermine the ability of tort law to protect patients from harm. Customary practice is shaped by a variety of factors, including physician education, scientific studies, and government regulation. Pharmaceutical companies influence these factors to alter physician practices and expand markets for their drugs, often at the expense of patient and public health. This industry pressure directly influences whether a physician is viewed as breaching their legal standard of care, undermining tort law as a form of private regulation of prescribing practices.

To address this problem, this Article argues for a shift in tort doctrine—the explicit abandonment of the rule that customary practice determines breach for prescribing practices, and a move to a reasonableness standard under which professional custom is only one aspect of determining breach. We address the doctrinal and medical benefits of such a shift and conclude that it is essential to the integrity of the private regulation of pharmaceuticals. Our thesis and arguments have significant implications for the role of custom in medicine more generally and for other legally recognized professions.

USSC Unanimously Rejects Mexico's Lawsuit Against Gun Manufacturers

Yesterday, the United States Supreme Court ruled unanimously that Mexico failed to plausibly allege that gun manufacturers aided and abetted gun dealers' unlawful sales of firearms to Mexican traffickers.  The Mexican government sued several gun manufacturers in the United States, attempting to rely on the predicate exception to the Protection of Lawful Commerce in Arms Act, which may come from aiding and abetting someone else's firearms offense.  The Court, through Justice Kagan, rejected the claim:

Mexico’s complaint does not plausibly allege that the defendant manufacturers aided and abetted gun dealers’ unlawful sales of firearms to Mexican traffickers. We have little doubt that, as the complaint asserts, some such sales take place—and that the manufacturers know they do. But still, Mexico has not adequately pleaded what it needs to: that the manufacturers “participate in” those sales “as in something that [they] wish[] to bring about,” and “seek by [their] action to make” succeed.

The opinion is here:  Download 23-1141_lkgn;  NPR coverage is here.

Miller & Telesetsky on Prescribed Fire Liability and Administration in Western States

Stephen R. Miller & Anastasia Telesetsky have posted to SSRN Prescribed Fire Liability and Administration in Western States:  An Empirical Analysis and Call for Reform.  The abstract provides:

Wildfires have grown exponentially over the last few years due to fuel loads, range- and timber-management policies, and climate change. The cost of fire suppression is also growing in both rural and urban areas. For instance, the 2023 Pioneer Fire in rural Idaho cost over $100 million to fight, while the 2025 urban conflagrations in Los Angeles, California destroyed over 30,000 structures despite an astonishing array of suppression resources deployed. Something new, and something big, in terms of law and policy interventions is needed to stem the intensity of wildfires. Increasingly, governments, private citizens, and even corporate interests like insurance industries, are looking to prescribed fire as a potential landscape-scale solution. Prescribed fires provide the kinds of fire that fire-adapted landscapes need to flourish while wildfires can burn too intensely, scar the landscape, and provide an entry for invasive species. Prescribed fire lessens the intensity and prevalence of wildfires, as well, which makes them more manageable. It also has the potential to reduce risk for homeowners and, as a result, place less strain on for-profit insurers and governmental insurers of last resort. The problem, however, is that a complex set of laws and antiquated liability standards make the broad deployment of prescribed fire challenging. This Article succinctly summarizes the major benefits of prescribed fire as well as the major legal problems that prohibit its broader deployment. The Article  presents results from a first-of-its-kind empirical survey of 11 western states’ laws, administrative regulations, and case law governing prescribed fire. The Article provides detailed summaries of how each state complies with requirements of the Clean Air Act and environmental review. The Article also articulates how each state uses some combination of  common law liability standards for negligence,  nuisance and trespass claims to address liability in the prescribed fire context. The Article also evaluates how states’ administrative processes try to encourage, or discourage, prescribed fire through a mix of certified burner programs, indemnity funds, and burn facilitation. The Article concludes by offering options for legal reforms that could lead to the safe deployment of prescribed fire as a bulwark to prevent future  out of control wildfires and the suppression costs that otherwise follow.

TX: Supreme Court Clarifies Relationship Between Common Law Torts and Statutory Liability

In a case on a question certified by the Fifth Circuit, the Supreme Court of Texas clarified the relationship between common law torts and statutory liability.  The Texas Labor Code, in Chapter 21, authorizes suits against employers for certain types of discrimination, harassment, and retaliation.  In a previous case, the court held that Chapter 21 was the exclusive remedy when the gravamen of the plaintiff's case is Chapter-21 covered discrimination.  The Fifth Circuit certified the following question:         

Does [Chapter 21] preempt a plaintiff-employee’s common-law defamation and/or fraud claims against another employee to the extent that the claims are based on the same course of conduct as discrimination and/or retaliation claims asserted against the plaintiff’s employer?

The court answered the certified question in the negative:  "The availability of a Chapter 21 claim against an employer forecloses other entwined claims from being asserted against the same defendant, but it does not immunize other defendants, who are not subject to liability under Chapter 21, from liability under recognized common law causes of action for their own tortious conduct. Because no 'clear repugnance' exists between common law defamation and fraud claims against an employee and Chapter 21 claims against an employer, even when they are 'based on the same course of conduct,' we hold that Chapter 21 does not abrogate such claims.  We answer the Fifth Circuit’s certified question 'no.'”

The case involves a law professor.  The opinion is here:  Download Texas Supreme Court Decision in Butler v. Collins (1)  Thanks to Warigia Bowman for the pointer.

Lytton on Nuisance and Food Safety

Tim Lytton has posted to SSRN Using Nuisance Law to Advance Food Safety.  The abstract provides:

This Essay proposes a novel approach to the most urgent food safety problem currently facing U.S. consumers: fresh produce contaminated with virulent microbial pathogens. Despite extensive regulation, growers have been unable to rid their fields of toxic bacteria, and processors have been unsuccessful in sanitizing tainted produce before it reaches store shelves. As a result, tainted produce sickens millions of consumers every year. 

An emerging consensus is calling for new efforts to address one source of the problem. Nearby cattle operations produce manure that contains harmful pathogens. When this manure escapes from grazing fields or feed lots—for example, via stormwater runoff, lagoon overflow, or dust migration—it conveys the pathogens into growing fields or into wells, rivers, and canals from which farmers draw water to irrigate or spray crops. 

 

Attempts to enlist the beef and dairy industries' voluntary cooperation to address this problem have so far been unsuccessful. This Essay advocates for another solution: using nuisance claims to incentivize cattle operations to reduce the escape of manure, vaccinate cows against infection, and treat infected animals with antimicrobial feed additives. Private lawsuits will complement the enforcement of existing environmental regulations that prohibit the discharge of manure into waterways or the air—regulations that have, for a variety of reasons, proven inadequate.

JOTWELL Torts: Swan on Archer & Schottenfeld on Public Nuisance

At JOTWELL, Sarah Swan reviews Deborah Archer & Joseph Schottenfeld's Defending Home:  Toward a Theory of Community Equity.

More Torts at the ALI

In addition to the conclusion of Miscellaneous Provisions, Reporters Doug Laycock and Rick Hasen of Remedies covered preliminary injunctions and temporary restraining orders and Reporter Mark Geistfeld took the Civil Liability for Artificial Intelligence project in front of the membership for the first time.

Once a member has been with the ALI for twenty-five years, they become a Life Member.  The class of 2000 was an exceptional torts class, including Martha Chamallas, Mary Davis, Don Gifford, and Jane Stapleton (plus David Hyman, whose empirical work often appears in torts debates).

R3: Miscellaneous Provisions Approved by ALI Membership

On Monday in Washington, D.C., the ALI membership voted to approve the Restatement (Third) of Torts:  Miscellaneous Provisions.  Congratulations to the Reporters, Nora Freeman Engstrom and Mike Green.  For Mike, this completes his fourth (!) section of the Restatement (Third).  ALI coverage is here.

Manta on Dating App Safety

Irina Manta has posted to SSRN Tinder Backgrounds.  The abstract provides:

In an era in which dating apps have become the primary matchmaker for millions of Americans, the lack of basic safety requirements for these platforms is both striking and dangerous. This Article explores how the rise of dating apps has created unprecedented opportunities for predators to exploit victims through deception and violence, while leaving those victims with virtually no legal recourse. Although dating apps have become critical infrastructure for modern relationship formation, their operators face minimal legal obligations to verify user identities or screen for unsafe individuals. Users have attempted to fill this regulatory void through self-help measures like crowdsourced warning groups on social media, but these informal solutions expose participants to defamation liability while failing to provide systematic protection.

As the Supreme Court considers ID verification requirements for adult websites in Free Speech Coalition, Inc. v. Paxton, this Article argues that similar measures—combined with mandatory background checks—are actually of greater importance in the dating app context where physical safety is at stake. While dating apps match users who would otherwise never meet, this convenience brings heightened risks when perpetrators can easily misrepresent their identities and histories. This Article proposes a federal framework requiring dating apps to verify and store user identities through government-issued IDs and conduct criminal background checks. This approach would help to prevent sexual, financial, and other predation while preserving the core benefits that make online dating valuable. The Article demonstrates why traditional objections to regulating intimacy and dating markets hold less force in an era of industrialized matchmaking, and how existing precedents support reasonable verification requirements that protect user safety as technology-assisted deception (including via artificial intelligence) continues to evolve. Through carefully calibrated regulation focused on prevention rather than after-the-fact remedies, the law can better protect the many individuals who rely on dating apps to find connection.

OH: Ohio Product Liability Act Abrogates Public Nuisance Claims

Trumbull Cnty. v. Purdue Pharma, L.P. (In re Nat’l Prescription Opiate Litig.), 2024-Ohio-5744, ¶ 1, ___ Ohio St. 3d ____, ____, ____ N.E.3d ____, ____ (2024) (answering certified question; “[A]ll common-law public-nuisance claims arising from the sale of a product have been abrogated by the Ohio Product Liability Act”).

JOTWELL Health Law: Coleman on Pelled on Strict Liability for Unreasonable Harm in Medical Malpractice

At JOTWELL, Carl Coleman reviews Omer Pelled's Aggregating Liability for Medical Malpractice.

Cardi, Jenne & Villareal on Continuing Risk

Jonathan Cardi, Ashton Jenne, and Chance Villareal have posted to SSRN The Paradox of Continuing Risk.  The abstract provides:

The continuing-risk rule is ubiquitously cited by Restatements, casebooks, and treatises as a core duty rule in negligence cases. Indeed, as this Article reveals, the rule has been "adopted"-in the sense that at least one court in a jurisdiction has applied the rule, and no court has rejected it-in 32 jurisdictions. In addition to the breadth of its adoption, the continuing-risk rule is also far-reaching: it imposes an affirmative duty to warn, protect, or rescue another from a risk if the defendant's conduct contributed to the initial creation of that risk. Because most negligence cases involve risk-creating conduct by the defendant, one would expect the continuingrisk rule to supply the basis for an affirmative duty in scores of cases in any adopting state. But this is not the case. To the contrary, as this Article reveals, courts frequently fail to apply or even discuss the continuing-risk rule in relevant cases. The Article seeks an explanation for this phenomenon and proffers a limitation on the rule that might assuage courts' apparent resistance to its application.

Tort Law and Social Equality Project Speakers Series: Sam Beswick

The final session of the Tort Law and Social Equality Project Speakers Series for the term takes place virtually over Zoom on Friday, May 16 at 12:00-1:30 pm EST. 

Sam Beswick, who is an Assistant Professor in the Peter A. Allard School of Law at the University of British Columbia, will speak on a new online tort law wiki he has created that integrates and links to various media and sources to as a pedagogical tool for helping students appreciate the social context within which tort judgments and concepts arise.  At Sam's request, I'm also sharing a link to the poster for the Common Law Torts Wiki that he will be speaking about: https://open-2021.sites.olt.ubc.ca/files/2025/03/2025-TLEF-Poster-SamuelBeswick.pdf

Sam will speak for about 45 minutes after which there will be a Q&A period. The Zoom link is copied below.

Zoom link: https://utoronto.zoom.us/j/85395595129

JETL Special Issue: The Torts Scholarship of Gregory C Keating

The Journal of European Tort Law (anyone with interest in comparative law should read this journal!) has posted a special issue:  The Torts Scholarship of Gregory C Keating (available with a subscription).

Reasonableness and Risk: The Torts Scholarship of Gregory C Keating

A Special Issue of the Journal of European Tort Law (2025, vol 16, issue 1)

 

Diego M Papayannis and Henry M Reyes Garcés, 'Foreword: Reasonableness and Risk: The Torts Scholarship of Gregory C Keating' (2025) 16 JETL 1

 

Jenny Steele, 'Heterogeneity, Risks, and Torts: Exploring the Worlds of Acts and Activities' (2025) 16 JETL 4

 

Felipe Jiménez, 'Rights, Interests, and Tort Law as an Instrument: A Commentary on Gregory C Keating’s "Reasonableness and Risk"' (2025) 16 JETL 20

 

Diego M Papayannis, 'Tort Law without Interpersonal Justice' (2025) 16 JETL 31

 

Silvia Zorzetto, 'Beyond the Reasonable: Philosophical Assumptions, Deonto­logical Justification and Proportional Balancing' (2025) 16 JETL 52

 

Gregory C Keating, 'Reasonableness and Risk: Replies to Professors Jiménez, Papayannis, Steele and Zorzetto' (2025) 16 JETL 71

JOTWELL Technology: Ajunwa on Sharkey on Products Liability and AI

At JOTWELL, Ifeoma Ajunwa reviews Cathy Sharkey's A Products Liability Framework for AI.

JOTWELL Torts: Sebok on Kaplan, Libson & Parchomovsky on the Renaissance of Private Law

At JOTWELL, Tony Sebok reviews Yotam Kaplan, Adi Libson & Gideon Parchomovsky's The Renaissance of Private Law.

UT: Four-Year Med Mal Statute of Repose Upheld

Bingham v. Gourley, 2024 UT 38, ¶ 55, 556 P.3d 53, 68-69 (2024) (upholding the Utah Health Care Malpractice Act's four-year statute of repose).

Keating Responds to Criticism of Reasonableness and Risk

Greg Keating has posted to SSRN Reasonableness and Risk:  Replies to Professors Jiménez, Papayannis, Steele, and Zorzetto.  The abstract provides:

This article responds to four thoughtful critics of my book Reasonableness and Risk (OUP, 2022). In response to Professor Jimenez’ argument that my view is instrumentalist, I explain why I think that instrumentalism and formalism play complementary roles in my view. Because persons, not law, have intrinsic value the formal concepts of the law must be articulated in ways which further the interests of the persons whose relations they govern. My reply to Professor Papayannis explains why I believe that strict liability does not collapse into a price system when it is understood as a conditional wrong, and why even administrative schemes do interpersonal justice. Agreeing with Professor Steele, I elaborate on why my view is supportive of her thesis that enterprise liability informs modern negligence law. In response to Professor Zorzetto, I explain how it is that my view moves from the metaphysics that she emphasizes to moral and political theory.