TortsProf Blog

Keating on AVs

Greg Keating has posted to SSRN Pouring New Wine into Old Skins:  The Case of Self-Driving Cars.  The abstract provides:

When torts scholars write about autonomous vehicles (AVs), they take it as axiomatic that self-driving cars are a revolutionary technology of transportation, and they require a revolutionary change of automobile liability regime. Ken Abraham and Rober Rabin, for example, argued that the rise of AVs requires that we replace our existing, human-driver and product-centric liability regimes with an administrative scheme of strict manufacturer liability. Even scholars who propose reforms less radical agree that AVs present a radical challenge to our existing, human-driver centric, automobile liability regime. Mark Geistfeld, for instance, asserts that “[a]utonomous vehicles raise questions of legal responsibility fundamentally different from those involving conventional vehicles” because the vehicle “cannot be legally responsible for its performance (it is, after all, not truly autonomous).” This seems indisputably correct: AVs have neither the moral status nor the moral powers of human persons. Yet, as is normally the case, the law is already setting about slotting autonomous vehicles into our existing automobile liability regime. It has been almost ten years since federal regulators determined that the operating systems of AVs can be considered drivers. This paper considers how this radically new technology might be shoehorned into old legal categories. It suggests that—precisely because AVs lack basic powers of moral agency—the law of torts might do best to hold them strictly liable for their accidents in a manner reminiscent of strict liability for animal trespass. Responsibility can only run through them; it cannot end with them—either by refusing to attribute responsibility to them for the accidents that they cause or by allowing liability to come to an end with them.  If this is correct, the fundamental question that we face is to whom their strict liability should then be imputed. 

Boldt & Gifford on Interference with the Democratic Process as Public Nuisance

Richard Boldt & Don Gifford have posted to SSRN Interference with the Democratic Process as Public Nuisance.  The abstract provides:

This Article argues that the tort of public nuisance provides a vehicle for holding accountable those engaged in antidemocratic conduct. Recent history suggests that neither the criminal justice system nor Constitutional checks and balances are always up to the task. Following the 2020 election, some supporters of President Trump stormed the Capitol to prevent the counting of the electoral votes, tampered with election machines, and intimidated election workers and voters. Depending on the results of the 2024 election, criminal charges against Trump and some of his followers may be dismissed. The Senate failed to convict the President on articles of impeachment for instigating the January 6th insurrection, and the Supreme Court delayed Trump's criminal trial, depriving voters of knowing the outcome, and then granted the former President expansive new immunity from prosecution. If Trump is not elected, it is nevertheless likely that our nation will again face similar attacks on democratic governance at some point in the future. 

 

Courts and scholars agree that the tort of public nuisance protects against violations of rights held in common by members of the public. The rights of democratic participation comprise such rights. To mitigate concerns that the boundaries of the tort are vague, we suggest that courts initially protect only those rights clearly delineated by the Constitution, federal statutes, and well-defined common law. Our primary objective is not to expand the conduct deemed unlawful, but rather to assure that accountability remains when other remedies prove inadequate, or charges are declined, dismissed, or pardoned for illegitimate political reasons. State common law torts, including public nuisance, are largely immune from the immediate effects of extreme political movements. Either state attorneys general or private citizens who suffer a "special injury" have standing to file the action, and remedies include both damages and injunctive relief.

Simons on Nonconsequentialist Accounts of Negligence

Ken Simons has posted his contribution to A Research Agenda for Torts (Bublick & Goldberg, eds.) (forthcoming 2025).  Entitled, Exploring Nonconsequentialist Accounts of Negligence and Risky Tradeoffs, the abstract provides:

Negligence doctrine dominates tort law, yet its scope and underlying justification remain contested. One of the most controversial questions is the propriety of employing the Learned Hand test as a criterion of reasonable care or ordinary prudence. Is it helpful, or even essential, to evaluate whether the actor’s burden of taking a precaution (B) is less than the probability of the harm that the precaution would avoid (P) multiplied by the severity of that harm (L)?

The debate about the Hand test is really a debate about more fundamental issues. Does a determination of negligence depend on whether the actor failed to make the proper tradeoff of the advantages and disadvantages of taking a precaution? Is that tradeoff best understood in either narrow economic or broadly utilitarian terms? Or instead in nonconsequentialist or deontological terms?

Suppose the owner of a baseball stadium is deciding how much protection she must provide to spectators at risk of injury from baseballs. Should she simply compare the costs and benefits of more extensive netting? Suppose she is deciding how much protection to offer to bystanders outside the stadium who are at risk but who receive no benefit from the game. Should she now put a thumb on the scale, and thus invest in greater safety precautions than cost-benefit analysis would require? A nonconsequentialist can give an affirmative answer, while a consequentialist cannot.

This chapter will review some of the most illuminating proposals that legal scholars have offered on this topic. But there is a parallel debate in moral philosophy about risky tradeoffs. Fuller understanding of the philosophical literature should be helpful to scholars and practitioners of tort law who try to explain and justify negligence doctrine.

Section IIA of the chapter introduces the Hand test and how it has been understood in case law and legal commentary, while IIB explores alternative conceptions of the test, including both consequentialist and nonconsequentialist variants. Section III reviews an important philosophical literature that addresses, from a nonconsequentialist perspective, what tradeoffs are permissible when actors must choose between alternative courses of action. The discussion first explores tradeoff scenarios in a “certain” world, i.e., when the actor is certain about the results or the circumstances, and then addresses tradeoffs in an “uncertain” world, i.e., when there is a risk but not a certainty that the result will occur or the circumstance will obtain. Section IV considers implications of the analysis.  Subpart A argues that for actors facing risks, the value of the abstract analysis of permissible risk is indirect, because that analysis provides a criterion of permissible conduct, not a concrete decision-procedure. Subpart B identifies implications of the analysis for the standards that should govern autonomous technology and artificial intelligence. Subpart C discusses the value of empirical analysis of the issues addressed in the chapter.

USSC on §1983 Malicious Prosecution Claim

Recently, the Court weighed in on a Fourth Amendment malicious prosecution claim under section 1983:

Chiaverini v. City of Napoleon, Ohio, 602 U.S. ­­__, ­­__, 144 S. Ct. 1745, 1751, 219 L. Ed. 2d 262, 268 (2024) (“[T]he bringing of one valid charge in a criminal proceeding should not categorically preclude a claim” when another charge is brought without probable cause and it “causes a detention either to start or to continue”).

Guest Post: Jonathan Cardi--Should Nonpecuniary Damages Be Adjusted According to Plaintiffs’ Cost of Living?

In March 2019, an Ethiopian Airlines flight on a Boeing 737 Max 8 airplane crashed in a field six minutes after take-off from Ethiopia’s capital Addis Ababa, killing all 157 passengers and crew. Many on the flight were en route to a United Nations meeting, so the flight carried people of many nationalities.

In the consolidated litigation stemming from the crash, defendants admitted liability, leaving damages the only issue to be tried. In the flurry of pre-trial motions, defendants argued that the jury ought to be allowed to adjust the noneconomic damages awarded to each plaintiff according to the cost of living in that plaintiff’s country and region. Although defendants sometimes make such arguments, they are rarely credited—but Judge Jorge Alonso of the Federal District Court for the Northern District of Illinois accepted the argument, ruling:

I agree with Boeing that cost of living is an important or likely to be an important consideration in understanding what amount is appropriate or reasonable as compensation. . . . Boeing can make arguments about cost of living and whether an amount is, quote-unquote, generational wealth in a particular country, to the extent that these arguments are limited, to helping the jury understand what amount is appropriate to compensate the beneficiaries for their loss.[1]

I have found no case in which a court ruled as Judge Alonso did. With defendants’ success on this issue in such a high-profile case, one wonders whether defendants will be incentivized to make the argument more often and whether judges will be emboldened by Judge Alonso to similarly hold.

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Nora Freeman Engstrom is the 2025 Prosser Award Honoree

Congratulations to Nora Freeman Engstrom, who has been named the 2025 Prosser Award honoree!  From the announcement at ALI:

The Association of American Law Schools’ (AALS) Section on Torts and Compensation has named Stanford Law School Professor Nora Freeman Engstrom the winner of the 2025 Prosser Award. Named in honor of William L. Prosser, author of the seminal treatise on tort law, the award recognizes lifetime contributions to scholarship, teaching and service in the field of tort law. Engstrom will receive the Prosser Award at the annual AALS meeting in January 2025.

Engstrom is believed to be the youngest winner of the Prosser Award since the award’s inception in 1974. Past honorees include Boston University School of Law Professor Fleming James, federal judge and former Yale Law School Dean Guido Calabresi, retired federal judge and renowned legal scholar Richard Posner, and SLS’s Robert L. Rabin, the A. Calder Mackay Professor of Law.

Engstrom is a nationally recognized expert in tort law and legal ethics and has played a leading role in clarifying, modernizing, and advancing tort law in the United States. She has authored numerous award-winning articles, is the author or co-author of three casebooks, including the classic tort law casebook Tort Law and Alternatives, and is the past Chair of the AALS Section on Torts and Compensation Systems.

Engstrom also co-directs SLS’s Deborah L. Rhode Center on the Legal Profession, the premier academic Center in the United States devoted to making the civil justice system more equitable, accessible, and transparent.

Since 2019, she has served as a Reporter on two Restatement Third of Torts projects: the Miscellaneous Provisions project, as well as the Medical Malpractice project. In 2022, the ALI awarded Engstrom the R. Ammi Cutter Reporter’s Chair for her outstanding work as a Reporter.  

“The Prosser Award highlights the fundamental importance of tort law to our justice system and to the promotion of fairness and responsibility throughout society,” Engstrom said. “Tort law reinforces the principle that no one is above the law, and everyone has a right to their day in court.”  

Engstrom continued: “Winning the Prosser Award has special resonance for me because the roster of past recipients includes so many of my heroes, mentors, and friends. Even being mentioned in the same breath as such luminaries as Ken Abraham, Guido Calabresi, Mike Green, Richard Posner, Judge Jack Weinstein, and my mentor and dear friend, Bob Rabin, is thrilling and humbling. All are people I have long revered.”

Rabin, who received the Prosser Award in 2008, said Engstrom “truly fits the bill” for an award designed to honor a torts professor “who has contributed singularly distinguished service to the torts community.”

“From the beginning of her academic career, she has authored one illuminating article after another, ranging from the internal dynamics of the tort system in action to superb doctrinal studies of cutting-edge issues,” Rabin said. “All of this in combination with her outstanding teaching skills and distinctive, institutional work refining and refocusing the field of accident law. From a personal perspective, she is a gem to have as a colleague, co-author, and co-teacher.”

Mike Green of Washington University School of Law, winner of the Prosser Award in 2015 and a fellow Reporter with Engstrom on two current Torts Restatement projects said, “Nora has contributed monumentally to our understanding of tort law and compensation systems. She has subjected a variety of subjects to her deep research, keen analytical mind, and elegant writing. Her work on the Third Restatement of Torts will benefit courts, lawyers, and academics for decades to come. She is also a delightful colleague to work with and a hero to her students.”

Cappelletti on Keating on Harm-Based Strict Liability

Marco Cappelletti has posted to SSRN Justifying Harm-Based Strict Liability:  Reflections on Keating's Reasonableness and Risk.  The abstract provides:

In this article, I discuss Gregory Keating’s Reasonableness and Risk (OUP 2023) and critically assess the arguments he puts forward to justify harm-based strict liability, namely the idea of a conditional wrong of harming-without-repairing and the justification based on proportionality of burdens and benefits. I argue that harming-without-repairing is best seen as a moral wrong rather than as a legal wrong, and that harm-based strict liability is best seen as not based on ideas of wrongdoing. I also argue that Keating's argument based on proportionality of burden and benefit comprises two distinct ideas which can sometimes conflict and prescribe different outcomes. Finally, I explore the relationship between proportionality of burden and benefit and loss spreading, explaining the connection between the two as well as the reasons why proportionality of burden and benefit is unattractive to most deontological theorists.

JOTWELL Torts: Bublick on Bernstein on Sex and Candor

At JOTWELL, Ellie Bublick reviews Anita Bernstein's Renewing Products Liability with Semen.

Lemann on Opioids and Tort Theory

Alex Lemann has posted to SSRN The Opioid Litigation's Challenge for Tort Theory.  The abstract provides:

Tort litigation related to the opioid crisis has spanned several decades and led to tens of billions of dollars in liability. While several important opioid cases remain pending in various stages of litigation, it is now possible to sketch a basic outline of the results: individual plaintiffs sued opioid manufacturers on a variety of theories, seeking redress for the harms resulting from their addictions. They all lost. Following a pattern established by the tobacco litigation thirty years earlier, municipal plaintiffs, including city, county, and tribal governments, then sued opioid manufacturers, distributors, and retailers principally on public nuisance theories. These cases were much more successful (though not universally so), leading to billions of dollars in settlements and judgments.

This Article offers an early assessment of what insights these cases might offer for our theoretical understanding of tort law. Tort theory remains divided between utilitarians and deontologists, and the peculiar results of the opioid litigation—individuals losing and municipalities winning—offer challenges for both camps.

From a utilitarian perspective, the success of the public nuisance cases seems welfare-maximizing. By holding the opioid industry liable for the negative externalities of its otherwise socially beneficial products, public nuisance liability might help induce socially optimal levels of care or curb harmful overconsumption of opioid painkillers. The failure of individual cases is harder to justify on utilitarian grounds, but could perhaps be said to be a reflection of courts’ search for the cheapest cost avoiders of opioid overuse.

The doctrines that determined the outcome of the individual cases seem much more compatible with a deontological account of tort law, turning as they do on moral concepts like autonomy and fault and responsibility. The success of the public nuisance cases, on the other hand, is harder to justify in deontological terms, as the rights and responsibilities at issue are less well-developed.

Recent Products Cases in OR, WV

A decision from the Oregon Supreme Court held that a hospital that supplies and administers a dangerous defective drug while rendering emergency services is a product “seller” under the state’s product liability statute:

Providence Health Sys. v. Brown, 372 Or. 225, 227, 239, 548 P.3d 817, 820, 826 (2024) (holding that “a hospital that supplies and administers a dangerously defective drug in conjunction with providing a healthcare service can be a ‘seller’ that is ‘engaged in the business of selling’ for purposes of liability” under state products liability statute; “[T]he distinction between one who is ‘engaged in the business of selling’ a product and one who is not depends on whether the seller sells the product as part of the usual course of its business, even if selling the product is ancillary to providing services to the consumer”).

An opinion from the West Virginia Supreme Court of Appeals adopted the requirement that a plaintiff in a design defect case must prove that a reasonable alternative design exists, but emphasized that the alternative design need only have substantially reduced, and not necessarily eliminated, the risk of the specific injury suffered by the plaintiff:

Shears v. Ethicon, Inc., ___W. Va.___, ___, 902 S.E.2d 775, 777, 785 (2024) (answering certified question) (accepting the requirement that “[a]s part of a prima facie case of strict product liability based upon a design defect, a plaintiff is required to prove that an alternative, feasible design existing at the time the subject product was made [that] would have substantially reduced the risk of the specific injury suffered by the plaintiff”; emphasizing that the alternative design must only have substantially reduced, and not eliminated, the risk of the specific injury suffered by the plaintiff).

Tort and Social Equality Speakers Series: Dembroff & Kohler-Hausmann

The Tort and Social Equality Speakers Series is back for the fall semester:

Robin Dembroff & Issa Kohler-Hausmann

September 20, 2024, 12:00 p.m. EST

*This is a hybrid talk will take place in person at the University of Toronto Centre for Ethics (15 Devonshire Place), with a synchronous broadcast on Youtube (link here)

 

“But-for What? When Anti-Discrimination Law Tried to Borrow from Tort Law and Missed Something”

Courts and commentators often define discrimination in causal terms. Moreover, they often claim that the causal definition of discrimination is tracks role that causality plays establishing liability in tort law. But such articulations often trade between two different articulations of the causal showing required for a discrimination claim. In one articulation the claimant must show that the outcome would not have happened but for the discriminatory act or policy; in the other articulation the claimant must show that the outcome would not have happened but for their “protected status”—e.g., race, sex, religion. In this talk, we explain that the only the first showing is consistent with the role causation plays in tort law where the inquiry into causation is structured by a prior independent theory of duty which limits the range of counterfactuals relevant to the case. However, the Supreme Court and many legal scholars have insisted that the second articulation is the relevant causal showing in antidiscrimination and equal protection law: “but-for” the claimant’s racial, sex, religious, etc. status. We show that this so-called but-for test cannot define what counts as discrimination because it is inherently indeterminate. One cannot set up the counterfactual thought experiment without more specificity about the relevant counterfactual contrasts, and one cannot choose which counterfactual contrasts are relevant without a prior normative theory of how the defendant ought to have behaved vis-a-viz the claimant’s (e.g.) sex or racial status. This last part requires a theory of what people are owed in various domains (e.g., employment, contracts, etc.) given the social meanings and relations that constitute sex or race in our society.

ME: Employer Not Vicariously Liable for Racial Slurs of Employee

The Maine Supreme Court recently considered whether an employer is liable for the racial slurs of its employees directed at customers:

Vargas v. Riverbend Mgmt. LLC, 2024 ME 27, at ¶¶ 1, 29-30, 314 A.3d 241, 244, 250-252 (2024) (holding that owner of fast-food restaurant was not vicariously liable under state human rights acts for employee’s racial slurs directed toward customers after his serving them concluded; “ ‘[An] employee's conduct is not within the scope of employment, although the employee is physically present on the employer’s premises, when the employee’s actions are far removed in purpose from work assigned by the employer.’ Restatement (Third) Of Agency § 7.07 cmt. d. . . . [A]lthough an employee’s intent to serve the employer’s interests often determines whether the employer is vicariously liable, it is not dispositive if the conduct is so extreme and remote from the employer’s interests that it could not reasonably have been intended to serve the employer. . . . ‘[I]ntentional misconduct that is distinct from an employee’s actions in performing assigned work . . . is not a risk that an employer can effectively control and its occurrence may be related causally to employment no more than to other relationships and circumstances in an errant employee's life more generally.’ [Id.], cmt. b.”)

Damages in FL, TX

The highest courts in Florida and Texas recently issued rulings on damages issues.  In Florida, the supreme court construed that state’s wrongful death statute to allow recovery by the “surviving spouse,” even though the plaintiff’s marriage to the decedent took place after the injury:

Ripple v. CBS Corp., 385 So.3d 1021, 1023-1024 (Fla. 2024) (construing state wrongful death statute to enable “a spouse who married the decedent after the injury” to “recover damages as a ‘surviving spouse’ ” under statute).

Meanwhile, in Texas, the supreme court allowed the claim of a mother of a healthy child born as a result of a negligently performed sterilization procedure but denied recovery of damages for both the costs of raising a healthy child and any noneconomic damages claimed by the parents:

Noe v. Velasco, 690 S.W.3d 1, 12 (Tex. 2024) (“When . . . medical negligence proximately caused an unplanned pregnancy, that claim is not foreclosed merely because the ultimate result is the birth of a healthy child. But the recoverable damages are limited. The mother may recover the cost of the sterilization procedure and economic damages designed to compensate for injuries proximately caused by the negligence, such as medical expenses incurred during the pregnancy, delivery, and postnatal period . . . But Texas law does not permit recovery of the expenses of raising the healthy child, or any noneconomic damages, because the birth and life of a healthy child do not constitute an injury under Texas law.”).

Virginia's Punitive Damages Cap

Virginia has capped punitive damages at $350,000 since before I practiced there in the late 90s and early 2000s.  Recently, the Fourth Circuit had to apply that damages cap to a case arising out of the August 2017 "Unite the Right" rally in Charlottesville.  The court held that the cap applies to each plaintiff and not each claim and that it applies broadly to all cases:

Sines v. Hill, 106 F.4th 341, 344, 352-354 (4th Cir. 2024) (Virginia law) (holding that the limit applies to each plaintiff and not each claim, regardless of the number of defendants; rejecting, additionally, the plaintiffs’ argument that the limit applies only to “ ‘run-of-the-mill tort claims’ ” and not to hate crimes such as those arising from the August 2017 “Unite the Right” rally of “ ‘white nationalists, white supremacists, and neo-Nazis’ ” in Charlottesville, Virginia).  

Sebok on Damages

Tony Sebok has posted to SSRN his presentation from last year's symposium at Southwestern, Damages:  Symposium Presentation of Anthony Sebok.  The abstract provides:

Restatement of the Law Third, Torts: Liability for Physical and Emotional Harm §27 adopts the "Anderson Rule," stating that a simultaneous sufficient cause does not prevent a tortious actor from being considered a cause-in-fact and thus potentially liable for the harm caused. However, Comment d of §27 reserves the issue of apportioning liability among sufficient tortious causes for a later section.

Restatement of the Law Third, Torts: Remedies §12 addresses this reserved issue, offering the following: (1) When a tortious cause and another tortious cause simultaneously cause harm, both are liable for all or part of the damages. (2) When a tortious cause and a non-tortious cause simultaneously cause harm, the Restatement does not take a position on liability. (3) When a tortious cause precedes a non-tortious cause that would have caused the same harm, the tortious cause is not liable for damages that would have occurred anyway. (4) When a tortious cause precedes another tortious cause that would have caused the same harm, the first tortious cause is liable for the damages.

In this transcript of a Southwestern Law School conference presentation on the Restatement of the Law Third, Torts, I argue that point (2) is inconsistent with points (1) and (4). If a tortious cause can be liable for damages even when harm would have occurred from another tortious cause (1), and is not liable when a subsequent natural cause would have caused the same harm (4), then (2) is contradictory. It doesn’t make sense to exempt a tortious cause from liability just because a prior tortious cause also contributed to the harm. If points (1) and (4) are correct, then point (2) fails to account for the moral responsibility of the tortious cause, regardless of the sequence of events.

CA: The Learned Intermediary Doctrine and Causation

The California Supreme Court recently clarified causation in the context of the learned intermediary doctrine:

Himes v. Somatics, LLC, 16 Cal. 5th 209, 219, 235-236, 322 Cal. Rptr. 3d 1, 6, 20, 549 P.3d 916, 921, 933 (2024) (holding that “[i]f a prescription drug or medical device manufacturer has breached its duty under the learned intermediary doctrine to provide an adequate warning . . . to the physician, . . . [a] plaintiff is not required to show that a stronger warning would have altered the physician's decision to prescribe the product to establish causation. A plaintiff may instead establish causation by showing that the physician would have communicated the stronger warning to the patient and an objectively prudent person in the patient's position would have thereafter declined the treatment  notwithstanding the physician's continued recommendation of the treatment.”).

CA: Contemporaneous Awareness of Defendant's Role in Causing Family Member's Injury Not Required for NIED Claim

The California Supreme Court held that in a negligent infliction of emotional distress case, the plaintiff need not be aware of the defendant’s role in causing the family member’s physical injury at the time the injury occurs:

Downey v. City of Riverside, ___ Cal. 5th ___, ___, ___ Cal. Rptr. 3d ___, ___, ___ P.3d ___, ___, 2024 WL 3491142, at *1, 2024 Cal. LEXIS 3887, at **2-3 (2024) (“For purposes of clearing the awareness threshold for emotional distress recovery, it is awareness of an event that is injuring the victim — not awareness of the defendant's role in causing the injury — that matters”; holding that plaintiff, who “was giving driving directions to her daughter over cell phone when her daughter was severely injured in a car crash . . . [,] heard the collision and its immediate aftermath” and allegedly suffered emotional distress as a result, could recover from “individuals and entities responsible for the condition of the roadway where the crash occurred” even though she did not know at the time of the accident that these parties were partially at fault.).

Recent Cases in Torts and Family Relationships in HI, IL

The Hawaii Supreme Court recognized a claim for loss of parental consortium by a child, whether a minor or an adult, when the parent is severely injured:

HELG Admin. Servs., LLC v. Dep’t of Health, 154 Haw. 228, 236, 549 P.3d 313, 321 (2024) (holding “that loss of parental consortium is cognizable for a child, whether a minor or an adult, when a parent is severely injured”; noting “that since 1977, ‘there has been a clear and substantial trend toward recognizing parental consortium.’ (quoting Restatement (Third) of Torts: Concluding Provisions (renamed Miscellaneous Provisions) § 48C, cmt. a (2022)); recognizing “a ‘split on whether an adult child [versus a minor child] can pursue a parental consortium claim.’ ” [Id.] at cmt. g (bracket in text included in court’s opinion)).

In another decision, an Illinois appellate court declined to recognize a claim for tortious interference with custodial rights:

Hulsh v. Hulsh, 2024 IL App (1st) 221521, ¶¶ 18, 26, 29, ___ Ill. App. 3d ___, ___, ___ N.E.3d ___, ­___ (2024) (“[N]o cause of action for tortious interference with custodial rights exists in Illinois.”; acknowledging “that a number of other states have recognized the tort”, but concluding that “the Hague Convention and ICARA [International Child Abduction Remedies Act, 22 U.S.C. § 9001 et seq. (2018)] already provide” the plaintiff “with a statutory remedy for the very damages she seeks”).

Recent Nuisance Cases in OK, CA

The Oklahoma Supreme Court rejected a lawsuit against municipal officials claiming that their racially disparate treatment of residents, beginning at the time of the 1921 Tulsa Race Massacre, constituted a public nuisance:

Randle v. City of Tulsa, 2024 OK 40, at ¶¶ 0-4,19-20,  ___P.3d___, ___ (2024) (holding that defendants’ “unlawful acts and omissions that began with the Tulsa Race Massacre of 1921 and continue to this day” allegedly causing Plaintiffs to “ ‘continue to face racially disparate treatment and City-created barriers to basic human needs’ ” do not constitute a legally actionable public nuisance; “Plaintiffs’ claim does not present a conflict resolvable by way of abatement. . . . The continuing blight . . . born out of the Massacre implicates generational-societal inequities that can only be resolved by policymakers—not the courts. . . . [E]xpanding public nuisance liability to include lingering social inequities from historical tragedies . . . runs the risk of creating a new ‘unlimited and unprincipled’ form of liability wherein both State and non-State actors could be held liable for their predecessors’ wrongdoing, in which current actors played no part.”) (citation omitted).

Meanwhile, a California appellate court held a liquor store liable under a state drug-house nuisance statute when the defendant tolerated the sale of illegal drugs on its premises:

People v. Freetown Holdings Co., 100 Cal. App. 5th 1195, 1208, 320 Cal. Rptr. 3d 20, 31, ___P.3d___, ___ (2024) (“ ‘A possessor of land upon which a third person carries on an activity that causes a nuisance is subject to liability for the nuisance if it is otherwise actionable, and [¶] (a) the possessor knows or has reason to know that the activity is being carried on and that it is causing or will involve an unreasonable risk of causing the nuisance, and [¶] (b) he consents to the activity or fails to exercise reasonable care to prevent the nuisance.’ ”; holding liquor store liable under state statute declaring places used for sales of illegal drugs to be public nuisances (quoting Restatement (Second) of Torts § 838 (1979)) (emphasis and brackets added by court)).

Roberts & Richardson on Privacy, Punishment and Private Law

Andrew Roberts and Megan Richardson have posted to SSRN Privacy, Punishment and Private Law.  The abstract provides:

While private law has developed various causes of action for breach of privacy, the criminal law has seldom used the concept of privacy in defining its proscriptions. There is no recognised category of ‘privacy crimes’. But new technologies are posing ever more serious threats to our privacy. On the one hand, this has led to a ‘ramping up’ of privacy law protections, including a tort of misuse of private information recognised by UK courts (and explicit reliance on a broadly construed doctrine of breach of confidence for the protection of privacy in Australia). At the same time, there is a growing appreciation that privacy is a collective and social good, not only an individual good, and that some breaches of privacy affect large numbers of people and constitute serious public harms. In this chapter we suggest that as the law of privacy generally tilts more towards the public interest side, greater thought should be given to the benefits of including a punitive element in privacy cases that still ostensibly fit within the rubric of private law (or a data protection regime, or both together) but involve significant public harms. However, there is still a need to reconcile this position with the basic tenet of criminal law that that law, along with all its traditional protections, should be employed as the primary means of dealing with cases of egregiously wrongful conduct that results in serious harm. Specifically, the question we address concerns the role that private law ought to play in punishing breaches of privacy.