TortsProf Blog

Shapiro on Civil Wrongs and Civil Procedure

Matthew Shapiro has posted to SSRN Civil Wrongs and Civil Procedure.  The abstract provides:

Civil wrongs are conventionally redressed through civil litigation, which, in turn, is constituted and governed by “transsubstantive” rules of civil procedure. What place, if any, should the general processes of civil litigation and rules of civil procedure have in a theory of private law organized around the concept of civil wrongs? In answering that question, this chapter makes three claims. First, the civil recourse theory of tort law, which attaches particular importance to the concept of civil wrongs, presupposes a process for redressing those wrongs with several distinctive features, features associated more with the general structure of the civil justice system than with any substantive private law doctrines. Second, civil recourse theory follows many other wrongs-based accounts of private law in employing an “interpretive” methodology that commits it to deeming those procedural features a “basic” part of the substantive body of law it purports to illuminate through the concept of civil wrongs. Third, the procedural landscape presumed by wrongs-based accounts of private law such as civil recourse theory has been upended in recent decades by significant changes to the ways in which civil wrongs are, in practice, redressed. The upshot is that private law theorists may well have to choose between the “pragmatic” desire to situate private law in its modern procedural context and the normative ambition to explain private law in terms of a plaintiff-empowering understanding of civil wrongs.

AALS Torts Section Call for Newsletter Items and Prosser Award Nominations

 Dear Colleagues,

We hope this email finds you well. We are writing as the Secretary and Treasurer of the AALS Torts & Compensation Systems section to pass along two important notices.

1.  Torts and Compensation Systems Section Newsletter

As most of you know, our section publishes a newsletter each fall listing: (1) symposia related to tort law; (2) recent law review articles on tort law; (3) selected articles from Commonwealth countries on tort law; and (4) books relating to tort law. If you know of any works that should be included, please forward relevant citations and other information to mjdavis@uky.edu. The deadline for inclusion in this fall's newsletter is Friday, August 16, 2019.

2.  2020 William L. Prosser Award

This is the first call for nominations for the 2020 William L. Prosser Award. The award recognizes “outstanding contributions of law teachers in scholarship, teaching and service” in torts and compensation systems. Recent recipients include Ken Simons, Marshall Shapo, Steve Sugarman, Aaron Twerski, Mike Green, James Henderson, Jane Stapleton, Guido Calabresi, Robert Rabin, Richard Posner, Oscar Gray, and Dan Dobbs. Past recipients include scholars such as Leon Green, Wex Malone, and John Wade.

Any law professor is eligible to nominate another law professor for the award. Nominators can renew past nominations by resubmitting materials. Living tort scholars and those who have passed away within the last five years are eligible for the award. Selection of the recipient will be made by members of the Executive Committee of the Torts & Compensation Systems section, based on the recommendation of a special selection committee. The award will be presented at the annual AALS meeting in Washington, D.C. in January 2020.   

Nominations must be accompanied by a brief supporting statement and should be submitted no later than Friday, July 19, 2019. Please email submissions to tlytton@gsu.edu.

Warm Regards,

Mary Davis and Tim Lytton

IN: Insurer Posts List of STD Tests in Online Portal; Privacy and IIED Claims Dismissed

While attempting to reconcile with her husband, wife is tested for STDs.  The insurer posts the list of diseases for which wife was tested in an online portal that is accessed by her husband as the primary policyholder.  Husband ceases reconciliation efforts and proceeds with a divorce.  Wife sues insurer for disclosure of private facts, intrusion upon seclusion, and IIED (also called outrage in Indiana).  A divided Indiana Court of Appeals dismissed the disclosure claim because Indiana does not recognize disclosure claims, and dismissed the intrusion claim because Indiana does not recognize intrusion claims that only invade a person's emotional solace.  Regarding outrage, the court dismissed it, as well, because posting the list of tested diseases in the online portal was not extreme and outrageous:

“This is not conduct which is utterly intolerable in a civilized community but, rather, routine in today’s technologically-driven society,” Judge Cale Bradford wrote for the divided panel, with Judge Elaine Brown concurring. “Health insurance companies maintain web portals to allow policyholders instant access to their personal medical information, insurance claims, etc., and the current matter is no exception.”

The Indiana Lawyer has the story.

Feldman on the Sandy Hook Ruling

Heidi Li Feldman has posted to SSRN Why the Latest Ruling in the Sandy Hook Shooting Litigation Matters.  The abstract provides:

On March 19, 2019 the Connecticut Supreme Court officially released its opinion in Soto v. Bushmaster Firearms International, LLC. Because the decision greenlights civil discovery and trial for the Sandy Hook plaintiffs seeking compensation from the maker, distributor, and retailer of the gun used by the shooter, the ruling received much attention in the popular press. It is, however, very easy to get the wrong impression about the significance of the Connecticut Supreme Court’s decision and the avenues it creates for both the plaintiffs and the defendants in the litigation. The decision is both more and less significant than it seems at first glance. It opens a serious pathway to liability under the PLCAA and creates a strategic dilemma for the defendant as to whether to appeal or go to trial. Yet the PLCAA remains a bar to most types of civil action to which other product makers and sellers are subject. In the absence of comprehensive congressional regulation, it will remain difficult to require or motivate gun makers to enhance the safety of firearms design and distribution.

Fisher-Price Rock 'N Roll Play Sleepers Recalled

Last week, all models of Fisher-Price's Rock 'N Roll Play Sleepers (approximately 5 million units) were recalled.  Since the product debuted in 2009, it is reported that over 30 infants have died using the product.  Days before the recall, the American Academy of Pediatrics urged it upon the CPSC and Fisher-Price.  WaPo has the story.

The Waiver Society Project

Yesterday, I posted an article written by John Witt, Ryan Martins, and Shannon Price.  They are also involved in a website called The Waiver Society Project.  From the website:

The general aim of the Waiver Project is to communicate something about the ubiquity of waivers in our world and to promote better understanding of the role  these complex documents play in the world around us. We want to understand the waiver not only as a legal tool, but as a sociological phenomenon. Why are waivers so common in modern society? Whose interests do they serve? Do differences among courts in waiver enforcement translate to better or worse waivers?

In short, we aim to stimulate thinking on the significance of waivers in our society. To this end, we hope to collect, share, and analyze waivers from all across the country. 

To do this we need your help!

• • Please send us any and all waivers you have, ideally with the date and time of the conduct in question.  Please see the “Contact & Submit” section of the website for instructions on how to submit your waivers, and let us know about your own experience with these strange legal documents. 

  • Send us new cases or articles from your jurisdiction so that we can keep the state summaries and bibliography updated.

  • Send news articles that catch your eye about waivers and waiver cases.  

We look forward to hearing from you!

Witt, Martins & Price on Waivers

John Witt, Ryan Martins & Shannon Price have posted to SSRN Contract's Revenge:  The Waiver Society and the Death of Tort.  The abstract provides:

A generation ago observers confidently predicted the death of contract and the triumph of tort. But contract has risen from the dead. Contracts waiving tort rights have become ubiquitous in the American marketplace. We survey the history and doctrine of exculpatory clauses in a wide variety of consumer contracts. We find that mid-twentieth-century skepticism about waivers has given way to a new age of increased waiver enforcement. The story of waiver enforcement, we conclude, is of a piece with the resurgence of free contract and market thinking in the 1980s and 1990s, a process we call “contract’s revenge.”

UPDATED: FL: Bill Would NOT Cap Non-Economic Damages at $1M in All Personal Injury Cases

A bill that would cap non-economic damages in all Florida personal injury cases at $1 million is headed to the House Judiciary Committee.  Decisions in 2014 and 2017 by the Florida Supreme Court struck down caps in wrongful death and medical malpractice cases.  The Florida Record has the story. 

UPDATED:  In the comments, someone sent me evidence the $1M cap was removed from the bill on March 29.  The bill now focuses on requiring the jury in some tort cases to consider an estimated value of the medical services rendered, based on a database containing amounts patients paid for similar care, in addition to the amounts actually billed by the provider to the claimant.

NJ: Jewish Man Files Tort Claim Notice Over Alleged Religious Harassment in Jail

A 29-year-old Jewish man has filed a tort claim notice against Ocean County, New Jersey regarding alleged harassment he suffered while incarcerated.  According to the notice, the man was placed in a cell with two large swastikas and a large target mark with the words "pop him" and his last name.  Moreover:

One officer allegedly made the comment, "You Jews own everything. You buy off Lakewood and Toms River and Jackson. Out there you may make the rules but in here we make the rules," according to the tort claim.

The claim alleges that corrections officers elicited other inmates to join in the mistreatment. The claim alleges that inmates threatened [the claimant's] life several times, with one inmate allegedly threatening to "knife him."

app has the story.

Lindsey Graham Appears to Support Class Action Reform

Lindsey Graham, who chairs the Senate Judiciary Committee, recently stated that "litigation abuse is real" and further stated that class action reform should be considered.  Graham's comments are interesting not only because of his position, but also because he receives donations from, and has sided with, plaintiffs in the past on some reform issues.  Legal Newsline has the story.

Punitive Damages for Maritime Personal Injury?

The Supreme Court is in the process of deciding its second maritime personal injury case of the term.  (The first was a ruling on the "bare-metal defense" in asbestos cases.)  In The Dutra Group v. Batterton, the Court will determine whether a Jones Act seaman can recover punitive damages in a personal injury suit based on the unseaworthiness of a vessel on which he was working.  At SCOTUSblog, Joel Goldstein breaks down the oral argument.

NJ: State Bans Non-Disclosure Provisions in Settlement Agreements for Discrimination, Retaliation, and Harassment

Last month, New Jersey adopted a law banning certain waivers of rights in employment contracts, as well as non-disclosure provisions in employment contracts and settlement agreements. 

Specifically, the Law declares as against public policy and unenforceable:

• • any provision in an employment contract that waives an employee’s substantive or procedural right or remedy relating to a discrimination, retaliation, or harassment claim under the LAD (law against discrimination) or any other statute or case law (a so-called “waiver of rights” provision), and

  • nondisclosure provisions in employment contracts and settlement agreements that conceal the details relating to a claim of discrimination, retaliation, or harassment (so-called “NDA” provisions).

The National Law Review has the story.  In 2017, a bill that would have prohibited non-disclosure agreements in similar circumstances was introduced, but not passed, in Pennsylvania.

JOTWELL Torts: Zipursky on Abraham & White on Cardozo's Wagner Opinion

At JOTWELL, Ben Zipursky reviews Ken Abraham and Ted White's Recovering Wagner v. International Railway Company.

Abraham & White on Nameless Torts, New Torts, and Intangible Harm

Ken Abraham & Ted White have posted to SSRN Torts Without Names, New Torts, and the Future of Liability for Intangible Harm.  The abstract provides:

Torts have names for a reason. A tort without a name would very nearly be a contradiction in terms, because it would not describe itself. But torts do not always get names immediately upon birth. Typically, it takes some time to recognize what they are, because they are in search of an identity or have a vaguely defined content. The law of torts of the future may well experience this process, as it works through the rights and liabilities that govern harms characteristic of the information age: invasions and misuses of digitized personal data, and sexualized attitudes and misconduct, for example. The dominant form that new liabilities took in the twentieth century was through the establishment of new, particularized torts. An alternative but much less known form of liability, however, competed with the named-tort approach during this same period, and to some extent still competes with it. This is the application of what we call a “residual category” of liability. In our judgment, however, a residual category approach to the intangible harms of the twenty-first century should and would fail in the same way, and for the same reasons, that this approach largely failed in the twentieth century. The new torts of the twenty-first century will have to be particular, named torts. This Article explains why this will be the case, and then undertakes to demonstrate how these explanations apply to the most salient forms of intangible harm on the current scene–harms that inevitably will be candidates for tort liability in the years to come. We identify the aspects of each form of loss that we think may well become actionable through the adoption of new torts or the expansion of existing torts, as well as the aspects of loss that will continue not to be actionable.

ALI Podcast: "Consent and Sexual Assault in Criminal v. Tort Law"

...with Erin Murphy and Ken Simons is here.  The blurb:

From start to finish, criminal and tort cases differ in many ways, including how a case is initiated, in which court it is heard and decided, standards of proof, and the consequence if the defendant is found liable (punishment if defendant is convicted of a crime; payment of money damages if defendant is liable for a tort). Some cases [or fact patterns] qualify as both crimes and torts. These differences are especially evident in sexual assault claims where a single legal term, such as “consent,” may be defined quite differently, depending on the type of legal claim asserted.

In this episode, NYU Law’s Erin Murphy and UC Irvine Law’s Ken Simons explore the difference between criminal law and tort law in the United States and then focus on how “consent” is, and should be, defined in sexual assault allegations.

MI: College Not Liable for Murder Committed by Student Studying Abroad

Johnathan Hindenach was a student at Olivet College in Michigan in 2008; he took a class that included a trip to Florence, Italy.  While in Italy, Hindenach killed someone.  An Italian court found him criminally responsible and placed him in a psychiatric hospital.  Hindenach's family sued Olivet College, alleging it failed to properly monitor Hindenach's mental health before the murder.  An appellate court in Michigan sided with Olivet College, stating the school was aware Hindenach suffered from depression and took medication, but it was not foreseeable he would murder someone and be hospitalized for his actions.  WRAL.com has details.

4th Cir.: "the Flaming Headlamp Case"

Last week the Fourth Circuit heard arguments in an appeal to answer the following question:  Is Amazon responsible when a third-party seller's product malfunctions and burns down a buyer's home?  Buyer purchased a headlamp from a third-party seller through Amazon.  The headlamp, delivered by Amazon, malfunctioned and burned the buyer's house to the ground.  The buyer's homeowner's insurer paid the buyer over $300,000 in damages.  Insurer then sued Amazon in negligence, breach of warranty, and strict liability to recoup the money. 

A Maryland district judge dismissed the claim on the ground that Amazon was not the seller of the headlamp; the court also held Amazon was insulated by the Communications Decency Act, which protects providers from liability for content created by third-parties.  The insurer argued that Maryland state law, including its Uniform Commercial Code, defines seller as “a person who sells or contracts to sell goods,” which should include Amazon considering its platform was used in the transaction and the product was warehoused at an Amazon facility.  Amazon's attorney claimed that every court that had ruled on this issue sided with Amazon.  There is no timetable for a ruling on the case.  Courthouse News Service has the story.

Two Studies Find Misdiagnosis Leading Complaint in Med Mal Claims

Two recent studies concluded the most common problem for which plaintiff file med mal claims involves diagnosis:

Coverys, a malpractice carrier based in Boston, reported that a review of 1,800 closed claims against physicians from 2013 to 2017 showed 46% were related to the diagnosis. Those claims accounted for 68% of paid indemnity costs, according to the report. In 45% of the diagnosis-related cases, the patient died, Covery said.

A separate report released by The Doctors Company, also a malpractice insurer, found that 38% of malpractice claims against physicians involving the treatment of children involved a misdiagnosis. The carrier reviewed 1,215 claims closed from 2008 to 2017.

Missed, failed or wrong diagnoses are largely the result of inadequate medical assessments, according to The Doctors Company study.

Claims Journal has the story.

USSC Decides Air & Liquid Systems Corp. v. DeVries

Yesterday the Supreme Court handed down its decision in Air & Liquid Systems Corp. v. DeVries.  From the syllabus:

Petitioners produced equipment for three Navy ships. The equipment required asbestos insulation or asbestos parts to function as intended, but the manufacturers did not always incorporate the asbestos into their products. Instead, the manufacturers delivered much of the equipment to the Navy without asbestos, and the Navy later added the asbestos to the equipment. Two Navy veterans, Kenneth McAfee and John DeVries, were exposed to asbestos on the ships and developed cancer. They and their wives sued the manufacturers, alleging that the asbestos exposure caused the cancer and contending that the manufacturers were negligent in failing to warn about the dangers of asbestos in the integrated products. Raising the “bare-metal defense,” the manufacturers argued that they should not be liable for harms caused by later-added third-party parts. The District Court granted summary judgment to the manufacturers, but the Third Circuit, adopting a foreseeability approach, vacated and remanded.

Held: In the maritime tort context, a product manufacturer has a duty to warn when its product requires incorporation of a part, the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended uses, and the manufacturer has no reason to believe that the product’s users will realize that danger.

Oman on John Calvin's Quarrel with Civil Recourse Theory

Nathan Oman has posted to SSRN John Calvin's Quarrel with Civil Recourse Theory.  The abstract provides:

This essay traces in skeletal form a history of the Christian critique of litigation, with a focus on the well-articulated argument of the Reformation theologian John Calvin. Most of contemporary private law theory focuses on the idea of liability. For law and economics liability is a price placed on certain conduct in order to create optimal incentives. For moral theorists, such as partisans of corrective justice theory in tort law, liability is the manifestation of a duty of repair that the law imposes on wrong doers. Missing from these theories is the agency of the plaintiff, yet this is precisely the feature of private litigation that Christianity has criticized through the centuries. In contrast to other contemporary approaches to private law, civil recourse theory emphasizes the way that private law empowers plaintiffs to act against those that have wronged them. In contrast to much of contemporary private law theory, Calvin’s argument is indifferent to the scope of duties and liabilities. Rather, like civil recourse theorists, he focuses on the agency of plaintiffs. Calvin’s argument, however, is critical of key assumptions of those theorists. First, it suggests that generally speaking instituting a suit is immoral. Second, Calvin’s argument suggests that revenge and “the right to be punitive,” which civil recourse theorists have offered as the basis for punitive damages, cannot be proper reasons for the law. Finally, and most controversially, Calvin seems to reject the “right to reparation” on which some civil recourse theorists have sought to normatively ground private law.