TortsProf Blog

Civil Liability and New Technologies

Congratulations to Ewa Baginska, the University of Gdansk, and the European Group on Tort Law for a successful and enjoyable conference on "Civil Liability and New Technologies" last week.  Most of the presentations focused on liability for autonomous vehicles (there are relatively recent laws in the UK and Germany) and platforms such as Google, Twitter, and Facebook.  Speakers included EGTL members Piotr Machnikowski, Bernhard Koch, Ken Oliphant, Ulrich Magnus, and me, as well as Constantijn Bakker (Amsterdam School of International Business) and Dorota Masniak (Gdansk).  Some of the papers will appear in Insurance Review.  The program is here:  Download Civil liability and new technologies_program

NC: $750,000 Alienation of Affection Verdict

Only 6 states (HI, MS, NM, NC, SD, and UT) continue to recognize the cause of action of alienation of affection between spouses, but North Carolina is the undisputed champion in terms of volume.  A Pitt County, NC man sued his spouse's alleged lover in August 2017, two months after the couple separated.  The couple divorced in September 2018 after 12 years of marriage.  In August, a judge ruled the interloper--the spouse's lover--had to pay the former husband $750,000.  This verdict is on the small side.  A year ago, an interloper was hit with an $8.8M verdict for conducting a 16-month affair with another man's wife.  The ABA Journal has details.

Oscar S. Gray (1926-2019)

Sadly, we must share the news that our friend and colleague, Oscar S. Gray, passed away today (October 3) in New York City.  Oscar, the Jacob A. France Professor Emeritus of Torts at the University of Maryland Carey School of Law, was one of the nation’s preeminent tort scholars from the 1970s until the time of his death. He published the second and third editions of the definitive six-volume treatise on tort law, Harper, James and Gray on Torts. He also was a co-editor of the influential torts casebook, Cases and Materials on Torts, along with Harry Shulman, Fleming James, Jr., and Don Gifford. During the mid-1990s, he served as chair of the AALS Section on Tort and Compensation Systems, and in 2010, he received the William L. Prosser Award for lifetime service from the section.

Oscar, a native of Maryland, attended Yale College from which he graduated Phi Beta Kappa. He decided to attend Yale Law School because, as he said in a 2011 interview, “law [is] a mechanism for bringing about social change, and … a way—perhaps the most striking way—of fighting for the righting of wrongs.” There he received, from Harry Shulman and Fleming James, Jr., what he described as “the best introduction to Torts I could have hoped for.” He also worked as a research assistant with Fowler Harper.

In the early 1950s during the anti-Communist hysteria of the McCarthy era, Professor Gray served as an attorney-adviser in the Legal Adviser's Office of the U.S. Department of State.   Both in this role and when he applied for admission to the Maryland Bar, he was asked, but refused as a matter of principle, questions about his political beliefs or the people whom he knew. From 1957 until 1971, he became a vice president and director of a start-up company in the nuclear materials field. He later served the government as special counsel to the President's Task Force on Communications Policy and as acting director of the Office of Environmental Impact for the U.S. Department of Transportation where, as he later described it, he “had a dandy time trying to prevent roads from doing unnecessary environmental harm.”

As a result of this work, in the late 1960s, Oscar received offers to teach the newly developing subject, Environmental Law, at Georgetown and Catholic. While doing so, he assembled a casebook on environmental law because there were no commercial offerings in the field.  In 1970, Georgetown Law School offered him a full-time faculty position teaching Torts. Oscar’s first step was to visit his own Torts teacher, Fleming James, at Yale to seek his suggestions regarding teaching torts. At the end of their encounter, Professor James asked Oscar if he was willing to coedit a new edition of the Shulman and James tort casebook and Oscar enthusiastically accepted the offer. A year or so later, Oscar joined James as a coeditor of the torts treatise. When asked in the 2011 interview what he regarded as his most important professional accomplishment, Oscar answered that it was “keeping alive the voices of Shulman and James, and Harper, so that they can continue to speak to new generations of students and scholars.” Oscar was extremely active in the activities of the American Law Institute and its drafting of the earlier parts of the Restatement (Third) of Torts.

In 1971, Oscar joined the faculty at the University of Maryland School of Law where he actively taught until 1996. To his colleagues, he was a steadfast figure of uncompromising integrity and commitment to scholarly excellence and precision in the use of language.

In 2018, Oscar celebrated fifty years of marriage with Dr. Sheila Hafter Gray, a leader in the psychoanalytic education and accreditation community. She survives him.

Despite his demanding scholarly agenda, Oscar was a huge fan of baseball and his Baltimore Orioles, through good times and bad. For decades, he “scored” each baseball game he attended with pencil and paper. He and Sheila also enjoyed chamber music and opera. Finally, Oscar was a serious wine collector.

Oscar Gray’s life will be celebrated at the University of Maryland Carey School of Law at a date and time to be announced later.

--Don Gifford and Chris Robinette

Data Privacy at the ALI

Daniel Solove and Paul Schwartz have posted to SSRN ALI Data Privacy:  Overview and Black Letter Text.  The abstract provides:

In this Essay, the Reporters for the American Law Institute Principles of Law, Data Privacy provide an overview of the project as well as the text of its black letter. The Principles aim to provide a blueprint for policymakers to regulate privacy comprehensively and effectively.

The United States has long remained an outlier in privacy law. While numerous nations have enacted comprehensive privacy laws, the U.S. has clung stubbornly to a fragmented, inconsistent patchwork of laws. Moreover, there long has been a vast divide between the approaches of the U.S. and European Union (EU) to regulating privacy – a divide that many consider to be unbridgeable.

The Principles propose comprehensive privacy principles for legislation that are consistent with certain key foundations in the U.S. approach to privacy, yet that also align the U.S. with the EU. Additionally, the Principles attempt to breathe new life into the moribund and oft-criticized U.S. notice-and-choice approach, which has remained firmly rooted in U.S. law. Drawing from a vast array of privacy laws and frameworks, and with a balance of innovation, practicality, and compromise, the Principles aim to guide policymakers in advancing U.S. privacy law.

Sokol on State Tort Law and Climate Change

Karen Sokol has posted to SSRN Seeking (Some) Climate Justice in State Tort Law.  The abstract provides:

Over the last decade, an increasing number of path-breaking cases have been filed throughout the world seeking to hold fossil fuel industry companies and governments accountable for their actions and inactions that have contributed to the current climate crisis. This Article focuses on an important subset of those cases-namely, the recent surge of cases brought by states, cities, and counties all over the United States alleging that the largest fossil fuel industry actors, including ExxonMobil, Shell, BP, and Chevron, are liable in state tort law for harms caused by climate change.

The Article begins with a synthesis of the history of U.S. climate tort litigation, grouping the cases into two "waves." The current state tort cases are in the second wave and represent an attempt to avoid the legal pitfalls that plagued the first. The Article then undertakes the first close examination of the defendants' response to the second-wave climate tort cases; namely, that federal common law preempts all the plaintiffs' state tort claims. Unsurprisingly, the issue has divided the courts that have decided it, as the Supreme Court caselaw is sparse and unclear. The Article identifies the doctrinal problem in the caselaw, and then argues that the only way to bring coherence to the law while adhering to federalism principles is to disallow preemption of state tort law by federal common law. Finally, the Article offers a new perspective on why that is also the right result as a policy matter.

The second-wave climate tort suits are part of larger global movement of resorting to the courts to demand climate justice that should be given a full hearing. The current era of climate disruption and its catastrophic threats demand not only new and improved legal and policy mechanisms, but also the use of current ones-including state tort law-to the fullest extent possible. 

Billauer on Wrongful Birth Claims

Barbara Billauer has posted to SSRN Re-Birthing Wrongful Birth Claims in the Age of IVF and Abortion Reforms.  The abstract provides:

Claims for reproductive negligence typically fall under two rubrics. Claims by the wrongfully birthed child are almost never countenanced, while claims by the wronged parent generally are. Nevertheless, in these wrongful birth claims, usually recovery is strictly limited. While damages for rearing a child with congenital ailments may be allowed, those for raising healthy child are not. The bases for denying healthy child care are couched in policy grounds and derive from an anathema of abortion, a view of the sanctity of life and an outmoded judicial ipse dixit that child-rearing is one of life’s greatest gifts for which damages will not lie, even if such result shields a clearly negligent defendant. Here, I first point out that current vogue restricting abortion may have an adverse impact on efforts seeking to reverse this approach. I further argue that whatever gifts accrue to healthy child-rearing also may apply to non-healthy children, and the health or disability of the child should not be relevant to the outcome of these claims. And finally I propose a novel approach: broadening the damage ambit by noting that the birth of the child is not the only harm accruing to the parents. A court’s focus on only the birthed child and parents’ bliss in raising her ignores the impact of the negligence on the family unit as a whole, and on the parents as individuals and denies the individual plaintiffs their rights of autonomy, liberty and the pursuit of happiness.

CA: Proposed Ballot Initiative Would Raise Med Mal Cap

In 1975, California enacted MICRA.  Among other things, the law capped pain and suffering damages in med mal cases at $250,000.  The cap has not been raised since.  Back in 2014, California attempted a ballot initiative to raise the cap; it failed by a large margin.  Now a couple whose infant daughter received a large med mal award that was significantly reduced by the cap has filed an initiative to update the cap by the amount of inflation, raising it to over $1.2M.  The sponsors need to obtain the signatures of at least 5% of voters who cast ballots in the previous election for governor (623,000 signatures).  In 2014, a coalition of medical groups spent nearly $60M to defeat the initiative.  The leader of a consumer advocacy group stated he is counting on a progressive electorate in 2020, intent on defeating President Trump, to boost the initiative's chances.  KTLA has details.

Lemann on Liability for Autonomous Vehicles

Alex Lemann has posted to SSRN Autonomous Vehicles, Technological Progress, and the Scope Problem in Products Liability.  The piece is one of four in the "New Voices" symposium in the fall 2019 issue of the Journal of Tort Law.  The abstract provides:

Autonomous vehicles are widely expected to save tens of thousands of lives each year by making car crashes attributable to human error—currently the overwhelming majority of fatal crashes—a thing of the past. How the legal system should attribute responsibility for the (hopefully few) crashes autonomous vehicles cause is an open and hotly debated question.

Most tort scholars approach this question by asking what liability rule is most likely to achieve the desired policy outcome: promoting the adoption of this lifesaving technology without destroying manufacturers’ incentives to optimize it. This approach has led to a wide range of proposals, many of which suggest replacing standard rules of products liability with some new system crafted specifically for autonomous vehicles and creating immunity or absolute liability or something in between.

But, I argue, the relative safety of autonomous vehicles should not be relevant in determining whether and in what ways manufacturers are held liable for their crashes. The history of products liability litigation over motor vehicle design shows that the tort system has been hesitant to indulge in such comparisons, as it generally declines both to impose liability on older, more dangerous cars simply because they lack the latest safety features and to grant immunity to newer, safer cars simply because of their superior aggregate performance. These are instances in which products liability law fails to promote efficient outcomes and instead provides redress for those who have been wronged by defective products.

Applying these ideas to the four fatalities that have so far been caused by autonomous vehicles suggests that just as conventional vehicles should not be considered defective in relying on a human driver, autonomous vehicles should not be immune when their defects cause injury.

OH: Grocery Store Not Liable When Customer Drives One of Its Motorized Carts Into Another Customer

At a Giant Eagle grocery store, one customer drives one of the motorized carts provided by Giant Eagle into another customer.  The injured customer sues Giant Eagle for negligence and negligent entrustment.  (The injured customer settled with the driver.)  Plaintiff argued Giant Eagle failed to train customers to use their motorized carts, and this lack of training led to her injuries.  Plaintiff won both compensatory and punitive damages at the trial level, and the intermediate appellate court affirmed with modifications.  The Supreme Court of Ohio reversed, finding a lack of causation.  The court found it was sheer speculation that the driving customer, who had driven these carts regularly for a year without incident, hit the injured customer because of a lack of training.  Marianna Brown Bettman has extensive analysis at Legally Speaking Ohio.  

Anita Bernstein is the 2020 Prosser Award Honoree

 

Congratulations to Anita Bernstein, who has been selected the 2020 William L. Prosser Award honoree!  Anita is the Anita and Stuart Subotnick Professor of Law at Brooklyn Law School.  Her biography:

Professor Bernstein is a nationally recognized authority on tort law and feminist jurisprudence, as well as professional responsibility and products liability. Her awards include the first Fulbright scholarship in European Union affairs given to a law professor. She is a member of the American Law Institute and a past chair of the Association of American Law Schools Executive Committee on Torts and Compensation Systems. 

 

Her writings have appeared in dozens of law reviews, including the principal ones of Harvard, Yale, Columbia, California, Michigan, Cornell, Duke, Texas, and Vanderbilt. Her books address torts, products liability, and the law of marriage. Professor Bernstein’s wide-ranging interests extend to microfinance, diversity as a rationale for affirmative action, and comparative and international law. Her scholarship has been cited in decisional law by federal courts (both trial and appellate) and the supreme courts of Pennsylvania and Texas. She has also authored a series on legal malpractice in the New York Law Journal.

 
Prior to joining Brooklyn Law School, Professor Bernstein was the Sam Nunn Professor of Law at Emory University School of Law, the Wallace Stevens Professor of Law at New York Law School and Norman & Edna Freehling Scholar and Professor of Law at Chicago-Kent College of Law. She also served as a visiting professor at Michigan Law School, Cornell Law School, and the University of Iowa College of Law, where she was the Mason Ladd Distinguished Visiting Professor of Law. Before her academic career, she practiced with Debevoise & Plimpton and was a law clerk to Judge Jack Weinstein of the U.S. District Court for the Eastern District of New York.

Sugarman and Boucher on Re-Imagining the Dignitary Torts

Stephen Sugarman & Caitlin Boucher have posted to SSRN Re-Imagining the Dignitary Torts.  The abstract provides:

Tort law is cluttered with different causes of action that permit financial recovery for emotional harms arising from what we call wrongful affronts to human dignity. These include the common law torts of offensive battery, assault, false imprisonment, privacy invasion, defamation, some nuisance claims, and the more broadly labeled actions for intentional and negligent infliction of emotional distress. We don’t need all this clutter. Plus, simplifying our approach to dignitary harm would eliminate unjustified inconsistencies found in this group of torts. This article paves the way for a more coherent approach to the protection of personal dignity.

Goudkamp & Nolan on The Story of Tort Scholarship

James Goudkamp and Donal Nolan have posted to SSRN Pioneers, Consolidators and Iconoclasts:  The Story of Tort Scholarship, the introduction to Scholars of Tort Law.  The abstract provides:

Common law scholarship is overwhelmingly focused on judicial decisions, with the result that the writings of even highly influential legal scholars have, by comparison, rarely been the subjects of scrutiny in their own right. This represents a serious gap in our understanding of the common law and its development. The purpose of the current volume is to begin the process of redressing this imbalance, by considering the role played by leading scholars of tort law from across the common law world in the development of the subject. The focus of the contributions is on the nature of the work produced by each of the scholars in question, important influences on them and the influence which they in turn had on thinking about tort law.

Torts Professor Listserv

For several years we have been without a torts professor listserv in the United States.  Thanks to Gus Hurwitz at Nebraska, that is no longer the case. 

You can either subscribe via the web interface at https://listserv.unl.edu/signup-anon (the list name is tortsprof), or by sending an email to listserv@listserv.unl.edu with an empty subject line and a body that contains nothing but "subscribe tortsprof" (including no signature).

Connecticut Adopts Alternative Liability

The Connecticut Supreme Court adopted alternative liability in a decision to be officially released tomorrow.  In Connecticut Interlocal Risk Management Agency and Town of Somers v. Jackson , it was alleged three men trespassed at a mill in June 2012.  The group drank and smoked approximately 15 cigarettes throughout the building.  The group failed to extinguish some of the cigarettes, sparking a fire that destroyed the building and a sewer line.  The plaintiffs, a town and its insurer, were not able to prove which specific defendant was responsible for lighting the fire, and the Superior Court granted a motion for summary judgment based on the failure to prove causation.  The Supreme Court reversed and remanded, adopting alternative liability.  

Thanks to Richard Wright for the tip.

Goudkamp & Nolan: Scholars of Tort Law

James Goudkamp and Donal Nolan have edited (and written for) Scholars of Tort Law, now available from Hart Publishing.  A discount is available with this flyer:  Download Goudkamp & Nolan  The blurb provides:

The publication of Scholars of Tort Law marks the beginning of a long overdue rebalancing of private law scholarship. Instead of concentrating on judicial decisions and academic commentary only for what that commentary says about judicial decisions, the book explores the contributions of scholars of tort law in their own right. The work of a selection of leading scholars of tort law from across the common law world, ranging from Thomas Cooley (1824–1898) to Patrick Atiyah (1931–2018), is addressed by eminent current scholars in the field. The focus of the contributions is on the nature of the work produced by each of the scholars in question, important influences on their work, and the influence which that work in turn had on thinking about tort law. The process of subjecting tort law scholarship to sustained analysis provides new insights into the intellectual development of tort law and reveals the important role played by scholars in that development. By focusing on the work of influential tort scholars, the book serves to emphasise the importance of legal scholarship to the development of the common law more generally.

And the Table of Contents:

1. Pioneers, Consolidators and Iconoclasts: The Story
of Tort Scholarship ..................................................................................1
James Goudkamp and Donal Nolan
2. Thomas McIntyre Cooley (1824–1898) and Oliver Wendell Holmes
(1841–1935): The Arc of American Tort Theory .....................................43
John CP Goldberg and Benjamin C Zipursky
3. Professor Sir Frederick Pollock (1845–1937): Jurist as Mayfly ..................75
Robert Stevens
4. Professor Sir John Salmond (1862–1924): An Englishman Abroad ......... 103
Mark Lunney
5. Professor Francis Hermann Bohlen (1868–1942) ................................... 133
Michael D Green
6. Professor Sir Percy Winfield (1878–1953) ............................................... 165
Donal Nolan
7. Professor Leon Green (1888–1979): Word Magic and the
Regenerative Power of Law .................................................................. 203
Jenny Steele
8. Professor William Lloyd Prosser (1898–1972) ........................................ 229
Christopher J Robinette
9. Professor Fleming James Jr (1904–1981) ............................................... 259
Guido Calabresi
10. Professor John G Fleming (1919–1997): ‘A Sense of Fluidity’ ................. 289
Paul Mitchell
11. Professor Patrick Atiyah (1931–2018) .................................................... 309
James Goudkamp
12. Mr Tony Weir (1936–2011) .................................................................. 337
Paula Giliker
13. Law, Fact and Process in Common Law Tort Scholarship ..................... 359
Peter Cane

Kysar & Reynolds on Tort as Regulation

Douglas Kysar & Conor Dwyer Reynolds have posted to SSRN Regulation Through Recourse:  Rediscovering Tort as Regulation.  The abstract provides:

Most scholars hold that tort has little or no power to effectively or legitimately regulate complex risks such as environmental pollution. This consensus has spurred a broad skepticism about tort’s regulatory capacity within the judiciary, altering the contours of tort law itself. This Article challenges such skepticism by presenting a case study of farmers who used tort to manage the risk of air pollution from a nearby aluminum plant. The scope of their success suggests that features of tort adjudication such as equitable powers, discovery and procedure, settlement, and community have been overlooked by tort theorists. By reintegrating these features into theoretical visions of tort law, we can rediscover tort’s potential as a powerful tool within what might be called society’s ‘ecosystem’ of risk regulation.

Wells on the Role of Fault in Section 1983 Municipal Liability

Michael Wells has posted to SSRN The Role of Fault in Section 1983 Municipal Liability.  The abstract provides:

Under Monell v. Department of Social Services, local governments are not vicariously liable for constitutional violations committed by their employees. Those governments, however, are liable under 42 U.S.C. § 1983 for violations committed by "policymaking" officials. In the face of these two principles, courts have struggled with cases in which an underling commits a constitutional violation and the claim of municipal liability is based on a policymaker's failure to prevent it. The government can be liable in these "indirect-effect" cases for a policymaker's "deliberate indifference" to safeguarding constitutional rights, a standard that demands an even greater showing of culpability than gross negligence. Critics argue that this approach is misguided and that the Court should instead impose a rule of vicarious liability for all § 1983 claims made against municipalities. The goal of constitutional tort law, however, should not be either to remedy every constitutional violation or to limit liability to only the most egregious cases. Rather, the law should be structured in a way that better accommodates the competing policies that are at play in this context. These include the pro-liability values of vindication of constitutional rights and deterrence of violations, but also due regard for depletion of municipal resources and for the risk that officials will exercise too much caution. With accommodation as its guideline, the Court or Congress should abandon the deliberate-indifference test, because it is too lenient. General vicarious liability, however, is too expansive. A better approach is to adopt an objective negligence standard of liability, under which local governments would face liability in indirect-effect litigation for unreasonable failures to prevent subordinates' constitutional violations.

JOTWELL Torts: Keating on Steel on Reparation

At JOTWELL, Greg Keating reviews Sandy Steel's Compensation and Continuity.

PA: Wawa Settles Claim for Defective Coffee Cup

A Philadelphia man alleged Wawa knowingly sold coffee in defective cups, leading to his scalding injury:

The main thrust of the litigation is that the defendants allegedly knew the model cup manufactured by RPC Letica and used by Wawa, the Model 24 HDC Cup, was defective, but took no action to correct the cup’s design and make it safe for consumers.

The suit stated on Feb. 25, 2017, Hall purchased coffee from a Wawa store and when holding the cup in his hand, the sides of the cup buckled, causing the cup's contents of scalding hot coffee to spill onto his lap, resulting in severe injuries.

The case settled for an undisclosed amount of money.  The plaintiff was seeking damages in excess of $50,000, plus punitive damages, costs and interest.  Pennsylvania Record has the story.

Geistfeld on Folk Tort Law

Mark Geistfeld has posted to SSRN Folk Tort Law.  The abstract provides:

The standard of reasonable care is the most important example of a substantive tort obligation that is largely determined by folk law or the understanding that jurors as lay individuals have about the legal obligation. In order to be adequately determinate, the folk law of reasonable care must be based on a widely shared metanorm that jurors use to evaluate socially acceptable behavior. Studies of jury decision-making in tort cases assume that there is such a metanorm without identifying it. These studies, like torts scholarship more generally, have not accounted for the substantial body of evidence showing that individuals are guided by a metanorm of reciprocity that is highly relevant to the resolution of negligence cases. By applying this metanorm to the case at hand, jurors enforce behavioral obligations that map into the modern tort rules of negligence and strict liability. A metanorm of reciprocity quite plausibly defines folk tort law, although it is a separate question why the legal system chooses to enforce this social norm. Folk tort law is not fully capable of answering this question, but as an important component of modern tort law, it should be accounted for by any persuasive interpretation of the practice.