TortsProf Blog

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

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

Choi on "Crashworthy Code"

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

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

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

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

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

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

2018 Torts Section Newsletter

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

Sharkey on Vicarious Liability for Intentional Torts

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

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

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

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

Sharkey on the Economic Loss Rule

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

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

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

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

OH: Football Widow's CTE Case Allowed to Proceed

At Legally Speaking Ohio, Marianna Bettman has an extensive analysis.  She summarizes:

On October 31, 2018, the Supreme Court of Ohio handed down a merit decision in Schmitz v. Natl. Collegiate Athletic Assn., Slip Opinion No. 2018-Ohio-4391. In a decision written by Justice French, joined in full by Chief Justice O’Connor and Justices DeWine and DeGenaro, the court allowed a lawsuit to proceed which was filed by the widow of a football player who sustained repetitive blows to the head during his college playing days in the 1970’s, but who was not diagnosed with chronic traumatic encephalopathy (“CTE”) until December of 2012. The court ruled that the 12(B)(6) motions to dismiss the claims as time-barred should have been denied. Justice Fischer concurred in judgment only. Justice Kennedy, joined by Justice O’Donnell, concurred in part, and concurred in judgment only in part, with an opinion. The case was argued April 11, 2018.

Essentially, the court held the discovery rule applied to the claims and the court could not rule as a matter of law that the plaintiff's negligence claims were time-barred based on the discovery rule.  Of course, the discovery process may unearth facts that establish the claims as time-barred, but the plaintiff has the chance to move forward.

FL: Patient Goes in for Back Surgery; Kidney Removed

Having just covered the "wrong ear" case for informed consent, this ripped-from-the-headlines case would do nicely to illustrate the distinction between medical negligence and informed consent.  Both are potentially here in this fact pattern.  The patient went into surgery to fuse together a couple of vertebrae.  The surgeon allegedly noticed a mass in the patient's pelvis.  Believing it to be cancerous, the surgeon cut it out.  It was the patient's kidney.  The Washington Post has the story.

Class Action Against Electric Scooter Companies

The use of electric scooters has increased substantially, particularly in urban areas.  Injuries caused by the scooters have increased as well.  Nine people claiming injuries to hands, fingers, knees, and faces filed a class action in Los Angeles Superior Court against four companies:  Bird, Line, Xiaomi, and Segway.  Allegations include gross negligence, manufacturing or design defects, and failure to warn.  Denver's ABC 7 has details.

Remedies for Breach of Privacy

Editors Jason Varuhas and NA Moreham have published "Remedies for Breach of Privacy" with Hart Publishing.  The blurb provides:

Over the last 15 years, privacy actions have been recognised at common law or in equity across common law jurisdictions, and statutory privacy protections have proliferated. Apex courts are now being called upon to articulate the law governing remedies, including in high-profile litigation concerning phone hacking, covert filming and release of personal information. Yet despite the practical significance of the courts' approach to damages, injunctions and other remedies for breach of privacy, very little has been written on the topic. This book comprehensively analyses these developments from a comparative perspective and provides solutions to issues which are coming to light as higher courts forge this remedial jurisprudence and practitioners look for guidance.

Significantly, the essays are important not only for what they say about remedies, but also for the attention they give to the nature of the new privacy actions, providing deep insights into substantive law. The book includes contributions by academics, practitioners and judges from Australia, Canada, England, New Zealand and the United States, who are expert in the legal disciplines implicated by privacy remedies, including torts, equity, public law and conflict of laws. By bringing together this range of perspectives, the book offers authoritative insights into this cutting-edge topic. It will be essential reading for all those seeking to understand and resolve the new issues associated with privacy remedies.

Discount Price: £64

Use the code CV7 at the checkout to get 20% off your order!

Goudkamp & Nolan on Contributory Negligence

James Goudkamp & Donal Nolan are publishing "Contributory Negligence  Principles and Practice" from OUP.  The blurb provides:

Despite the centrality of the contributory negligence doctrine in practice, very little is known about how it functions in reality. This volume provides legal practitioners with a ‘one-stop-shop’ where they can find clear and succinct exposition of the legal principles governing contributory negligence alongside an empirically informed analysis of the way doctrine operates in various recurrent factual scenarios, based on cases decided between 1998 and 2017.

For each of the given recurring acts of contributory negligence, the average discount, the range of discounts, and the distribution of discounts are reported. These statistics are supplemented by way of illustrations drawn from the case law. Short summaries of typical cases for the relevant act of contributory negligence are given, along with summaries of cases that fall towards the higher and lower ends of the range of discounts.

A 30% discount is available with this flyer:  Download Goudkamp and Nolan Contributory Negligence (Oct 18)

 

Abraham & Kendrick on Affirmative Duty

Ken Abraham & Leslie Kendrick have posted to SSRN There's No Such Thing as Affirmative Duty.  The abstract provides:

Tort law has long distinguished between misfeasance, which is accompanied by a duty of care, and nonfeasance, which is generally not. Thus a driver has a duty to brake for a pedestrian in the street, but a bystander has no duty to rescue him. Only in rare cases do parties like the bystander have an “affirmative” duty to exercise reasonable care. But the idea of affirmative duty has done more harm than good. The doctrinal treatments of nonfeasance and affirmative duties too often encompass situations that could just as easily be considered regular misfeasance cases. This, we argue, is because even textbook illustrations of misfeasance and nonfeasance reveal little real distinction between the two.

In effect, there is no such thing as affirmative duty, as tort law uses that term. This article’s primary objective is to show that this is the case and explain why it is so. We reveal the descriptive and normative confusion surrounding the concept of affirmative duty. We explain the sources of this confusion, both conceptual and historical. And we begin the project of reconstructing existing law on a firmer conceptual footing. As it turns out, this does not involve the categories historically relied on by tort law. Instead, these categories contain within them other factors that help to define the scope of liability. In the end, ideas such as misfeasance and nonfeasance, and regular duties and “affirmative” duties, are largely beside the point.

AR: Supreme Court Again Strikes Tort Reform Measure from the Ballot

I'm a bit late covering this; it happened while I was away.  The Arkansas Supreme Court, for procedural reasons, threw tort reform (Issue 1) off of the November ballot.  The opinion is here.  Proponents could certainly try again (they have in the past).  But, to me, the bigger issue is the emergence of a traditionally conservative advocacy group (family-oriented Christians) opposing reform instead of supporting it or remaining neutral.  If this portends a national movement, the politics (and success) of tort reform may change dramatically.  As I understand it, Issue 1 was not doing well.  The only poll I saw had it losing about 2-1.  As proof of the unusual combination of interests, here is a link to an opinion piece written by (in their description) a liberal law professor and a conservative public interest advocate.  Joshua Silverstein and Jerry Cox cover some of the empirical data on tort reform and argue this ballot measure would have hurt Arkansas.

Federal Legislation on Autonomous Vehicles?

In the U.S. Senate, a bill called AV START (American Vision for Safer Transportation Through Advancement of Revolutionary Technologies) has been proposed.  The bill would require the National Highway Traffic Safety Administration to regulate design, construction, and performance of self-driving cars — preempting state laws already in place.  State and local governments would continue to handle registration, licensing, insurance, and safety and emissions inspections.  The bill is similar to the SELF DRIVE (Safely Ensuring Lives Future Deployment and Research in Vehicle Evolution) measure already passed by the House of Representatives.  Some safety advocates object to the bill primarily on the grounds it would increase the number of exemptions from safety standards applicable to human drivers.  Automated vehicles are expected to save numerous lives by replacing human drivers, whose errors cause the vast majority of traffic accidents, with artificial intelligence.  The Washington Examiner has the story.

Duck Boat Owners Invoke the Protection of Admiralty Law

In July, a duck boat operating in a Branson, Missouri lake capsized in a storm; 17 people drowned.  The families of the deceased victims are seeking damages of $100 million from the two companies operating the boat.  Those companies, however, have invoked 167-year-old admiralty law that limits a ship owner's liability to the value of a salvaged vessel and its freight (defendants claim there is no salvage value and no more than $8,000 in parts).  Admiralty experts opine the move is unlikely to succeed, but note the companies are also reaching out to the plaintiffs and trying to leverage lower settlement amounts.  Bloomberg Law has the story.

CFP: Oxford Studies in Private Law Theory

Oxford University Press is pleased to announce the launch of Oxford Studies in Private Law Theory, edited by Paul Miller (Notre Dame) and John Oberdiek (Rutgers), and to issue a call for papers for the first volume. 

Oxford Studies in Private Law Theory is a series of biennial volumes showcasing the best article-length work across private law theory.  The series will publish exceptional work exploring the full range of private law’s domains and doctrines—including contract, property, tort, and fiduciary law as well as equity, unjust enrichment, and remedies—and employing diverse methodological approaches to individual areas of private law as well as to private law in general.  Submissions should be approximately 12,000 words, inclusive of footnotes.  The deadline for submission is May 6^th, 2019.

All accepted papers will be presented at a workshop at Notre Dame’s Global Gateway campus in London in late summer/early fall 2019.  The Notre Dame Program in Private Law will cover the expense of contributors’ travel and accommodation.  

To submit a paper for consideration, please email John Oberdiek at oberdiek AT law.rutgers.edu.

NJ Supreme Court Dismisses Hundreds of Claims Against Manufacturer of Accutane

From the Boston Globe's "Talking Points" earlier this month:

New Jersey’s Supreme Court has dismissed more than 500 lawsuits against the maker of an acne drug that caused some patients to develop a gastrointestinal disease. The court ruled Wednesday that Hoffmann-LaRoche’s warning labels for its Accutane treatment were adequate. Plaintiffs have contended the warnings should have said Accutane ‘‘causes,’’ rather than ‘‘is associated with,’’ inflammatory bowel disease. A trial court had dismissed the suits in 2015, but an appeals court had reinstated most of them. The Supreme Court also ruled the 532 product-liability claims from patients in multiple states were properly consolidated in New Jersey, where Hoffmann-LaRoche has its principal place of business.
— ASSOCIATED PRESS

CFP: AI at Duquesne

Jan Levine and Wes Oliver are planning a conference at Duquesne on April 26 & 27 entitled "Artificial Intelligence:  Thinking About Law, Law Practice, and Legal Education."  The CFP is here:   Download Artificial Intelligence Conference%2c Call for Proposals%2c 10-3.18

Reilly on Catholic Dioceses in Bankruptcy

Marie Reilly has posted to SSRN Catholic Dioceses in Bankruptcy.  The abstract provides:

The Catholic Church is coping with mass tort liability for sexual abuse of children by priests. Since 2004, eighteen Catholic organizations have filed for relief in bankruptcy. Fifteen debtors emerged from bankruptcy after settling with sexual abuse claimants and insurers. During settlement negotiations, sexual abuse claimants and debtors clashed over the extent of the debtors’ property and ability to pay claims. Although such disputes are common in chapter 11 plan negotiations, the Catholic cases required the parties and bankruptcy courts to account for unique religious attributes of Catholic debtors. This article reviews the arguments and outcomes on property issues based on reported decisions, pleadings, plans, and disclosure statements. It explains the key characteristics of Catholic dioceses under canon and secular organization law and the bankruptcy contexts in which these characteristics became hot button issues. It offers an analysis of the legacy of the Catholic cases for bankruptcy law, religious liberty, and for the relationships among entities within a Catholic diocese.

NC: Case Alleging Doctor Drugged, Videotaped Sexual Assault of Wife Proceeds

The wife of a North Carolina doctor has sued her husband, three of his colleagues, and a former secretary in his office.  She alleges her husband placed video equipment in their home, obtained prescriptions from his colleagues allowing him to knock her out, and made videotapes of himself sexually assaulting her:

Wanda Leinweber filed the lawsuit claiming that her husband, Clinton Leinweber, used controlled substances that had been prescribed for her by three other oncologists to drug and sexually assault her. She claims Drs. Hyder H. Arastu, Andrew Wenhua Ju and Eleanor Elizabeth Harris wrote the prescriptions in her name or allowed their signatures to be used to write the prescriptions, even though she was not their patient.

The fifth defendant, Sharon L. Grice, is listed as a former secretary in the oncology department. The lawsuit claims that Clinton Leinweber wrote multiple prescriptions for hydrocodone-chlorpheniramine to Grice, who then filled those prescriptions and gave the drugs back to the doctor, who used them to render his wife unconscious.

Hydrocodone-chlorpheniramine is a narcotic cough suppressant.

This week, a Pitt County Superior Court judge denied a motion to dismiss filed on behalf of the three colleagues and former secretary.  Those defendants argued they had no duty to the plaintiff because they could not foresee harm to her.  Reflector.com has the story.

JOTWELL Torts: Keating on Abraham & White on the Dignitary Torts

At JOTWELL, Greg Keating reviews Ken Abraham and Ted White's The Puzzle of the Dignitary Torts.