TortsProf Blog

NY: Grandparents in the "Zone of Danger" Can Recover Emotional Distress Damages

Last week, the New York Court of Appeals ruled that a grandparent in the zone of danger can recover emotional distress damages for the death of their grandchild.  Unlike many jurisdictions, New York does not recognize negligent infliction of emotional distress for bystanders.  However, this holding expands recovery within the "zone of danger" by including grandparents as an "immediate family" member.  Debra Cassens Weiss has the story at ABA Journal.

Goldberg & Zipursky Respond to Sharkey's Review of Recognizing Wrongs

In December, I posted about Cathy Sharkey's review of Recognizing Wrongs, by John Goldberg & Ben Zipursky.  They have now responded in "Thoroughly Modern Tort Theory."

Nolan on Limiting English Vicarious Liability

Donal Nolan has posted to SSRN Reining in Vicarious Liability.  The abstract provides:

The English law of vicarious liability has changed dramatically over the course of the last 20 years. The overall effect of this transformation has been a significant expansion in the scope of the doctrine, accompanied by high levels of uncertainty, as reflected in the frequency with which appeals on the subject have been heard by the Supreme Court in recent years. The two most recent of those appeals, Barclays Bank v Various Claimants and WM Morrison Supermarkets plc v Various Claimants, are the subject of this commentary. In these two decisions, the Supreme Court has attempted to impose some order on the chaos, and to replace the old structures of vicarious liability with a new framework offering comparable levels of certainty and predictability. This ‘modified orthodox’ approach preserves some continuity with the old law, and is also characterised by the abandonment or downgrading of open-ended tests and multi-factorial analysis in favour of more structured and tightly drawn enquiries, as well as a strong attachment to precedent. With these two decisions, it seems that the limits on the expansion of vicarious liability are now coming into clearer focus.

Stapleton: Three Essays on Torts

Oxford University Press has published Jane Stapleton's Clarendon Law Lectures as Three Essays on Torts.  The blurb provides:

This book of essays champions tort scholarship that puts judges at centre stage: what they do, how they understand their role, the heterogeneous reasons they give for their decisions, and their constitutional responsibility to identify and articulate the 'living' and 'evolving' common law. This is 'reflexive tort scholarship'. Reflexive tort scholars seek dialogue with Bench and Bar. Their approach is very different from the currently fashionable academic search for 'grand theories' that descriptively assert that tort law is fundamentally 'all about one thing', a unifying idea that alone explains and justifies the whole of tort law. This book illustrates the advantages and pay-offs of the reflexive style of scholarship by showing how it illuminates key features of tort law. The first essay contrasts the reflexive approach with the Grand Theory approach, while the second essay identifies a principle of tort law (the 'cooperative principle'), that is latent in the cases and that vindicates the value of collaborative human arrangements. Identifying this principle calls into question, in disputes between commercial parties, the reasoning used to support one of the most entrenched lines of authority in tort law - that based on the famous case of Hedley Byrne v Heller. The final essay deploys the reflexive method to argue that the iconic 'but-for' test of factual causation is inadequate and narrower than the concept actually utilized in the cases. Application of the method also prompts a reassessment of the 'scope of duty' concept and of the appropriate characterisation of the much-discussed decision in SAAMCO. These essays, based on the 2018 Clarendon Law Lectures given at Oxford University, clearly demonstrate the value of scholarship that 'takes the judges seriously'.

A flyer containing a discount is here:  Download Stapleton_-_Three_Essays_on_Torts

20th Annual Conference on European Tort Law

The European Centre of Tort and Insurance Law (ECTIL) and the Institute for European Tort Law of the Austrian Academy of Sciences and the University of Graz (ETL) cordially invite you to attend the 20^th Annual Conference on European Tort Law (ACET), which will be held in digital format from 8 to 9 April 2021.

The Annual Conference on European Tort Law provides a unique opportunity for both practitioners and academics to discover the most significant tort law developments from across Europe in 2020. A Special Session is dedicated to the topic of ‘Duty to Prevent Harm’. 

Participation via online livestream is free of charge.

The flyer is here:  Download 20thACET_Invitation_Folder

Registration is open now and can be accessed on our website:  https://www.oeaw.ac.at/etl/events/annual-conference-acet

If you have never attended this conference, which is fantastic, this is a great opportunity to do so!

McBride: Private Law Book Reviews 2015-2020

Nicholas McBride has posted to SSRN Private Law Book Reviews 2015-2020.  The abstract provides:

This collects together a number of reviews of books on private law published over the last five years, including: Gardner, From Personal Life to Private Law; Ripstein, Private Wrongs; and Goldberg and Zipursky, Recognizing Wrongs.

JOTWELL Torts: Bernstein on Perry on Cyberbullying

At JOTWELL, Anita Bernstein reviews Ronen Perry's Civil Liability for Cyberbullying. 

Smith Reviews Recognizing Wrongs

Stephen Smith has posted to SSRN Taking Torts Seriously, his review of Recognizing Wrongs by John Goldberg and Ben Zipursky.  The abstract provides:

In Recognizing Wrongs, John Goldberg and Benjamin Zipursky argue that tort law is just what ‘it looks to be’—and that what it looks to be is a law of wrongs and recourse. According to Goldberg and Zipursky, it is not necessary to turn to economics, sociology, philosophy or any other discipline to understand tort law: it is sufficient to take seriously judges' reasons for why they decide tort cases as they do. In advancing this argument, the authors seek to distinguish themselves from two influential camps in contemporary tort theory: (1) theories that argue that tort law’s rights are ‘rights’ in only a nominal sense; and (2) theories that regard tort law’s rights as genuine but that defend those rights by invoking a comprehensive moral theory. In this review essay, I argue that Goldberg and Zipursky largely succeed in their ambitions. The reservations that I explore are two-fold. First, certain tort remedies are not recourse for wrongs, even at the level of appearances. Second, it is not easy to construct a theory of tort law while sticking as close to tort law’s appearances as Goldberg and Zipursky purport to stick. The theory that Goldberg and Zipursky ultimately defend relies on certain philosophic ideas (though it does not rely on a comprehensive moral theory). It is also complex, multi-layered, and skeletal in its account of tort law’s primary duties—and so, for some scholars, it may appear to be less of a ‘theory of tort law’ than those offered by their competitors (though I argue that this feature is a virtue of their account).

AMTL: Two New Founders

The American Museum of Tort Law has added two new founders:  James E. Fitzgerald of Wyoming and Marc J. Bern of New York.  The entire list is here:  Download Our founders February 2021

Allars on Statutory Intrusion into the Liability of Public Authorities

Margaret Allars has published Private Law Remedies and Public Law Standards:  An Awkward Statutory Intrusion into Tort Liability of Public Authorities in the FIU Law Review.

GMU Law & Econ Center: "The Economics and Law of Civil Remedies"

Friday, February 19, 2021 from 10:00-3:00; virtually.  The agenda is here.  You can register here.

Blackstone quite famously explained that “[I]t is a general and indisputable rule, that where there is a legal right, there is also a legal remedy, by suit or action at law, whenever that right is invaded.” 3 William Blackstone, Commentaries on the Laws of England 23, 109  (Univ. of Chicago Press 2002) (1765). Of course, it has long been understood that this concept of ubi jus ibi remedium, and the choice of remedies that flow from it, should be shaped and applied against the backdrop of foundational Rule of Law principles and applying sound economic reasoning.  After all, as Tobin v. Grossman opined, “While it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world.”  Tobin v. Grossman, 249 N.E.2d 419, 424 (N.Y. 1969).  And, to borrow a lesson from outside the law, Pubilius Syrus’s Maxim 301 reminds us that “There are some remedies worse than the disease.”

As the legal system works to develop a system of remedies that recognizes all of those sentiments, the Symposium on the Economics and Law of Civil Remedies: Developments in Damages and Nationwide Injunctions seeks to help by presenting four panels that explore a few critical remedies-related topics facing lawyers, litigants, judges, state attorneys general, state and federal government administrators, federal and state legislators, and others. Diverse perspectives from leading experts will be featured on each panel—discussing nationwide injunctions, punitive damages, high damage awards and their causes and consequences, methods of calculating damages including recent controversies over medical finance and phantom damages, and proposed and enacted legislative interventions in each of these categories.

Gilead on Models of Negligence

Israel Gilead has posted to SSRN the abstract to his piece Models of Negligence - The Debate in Israel's Supreme Court.  The abstract provides:

A model of negligence in common law jurisdictions is a conceptual structure that basically seeks to align the three legal concepts used by courts to administer negligence law with the three substantive elements that constitute, justify and limit negligence liability. The three legal concepts are carelessness, legal causation (assuming factual causation) and duty. The three substantive elements are undesirable conduct, sufficient link between this conduct and harm, and the desirability of liability. Another major task of model of negligence is explain the role and meaning of the foreseeability requirement in each concept and element of liability.

The traditional model of negligence, identified with the sequence duty-breach-causation, is characterized by the double role that is assigns to the duty concept. This concept is aligned both with the element of undesirable conduct (conduct is undesirable only when breaching a pre-existing duty), and with the element of desirable liability (liability is desirable only where policy considerations justify a finding of duty to compensate). Being a servant of two masters, the duty concept is the major source of the confusion and ambiguities that plague negligence law for generations.

On this background the traditional model was challenged in Israel's Supreme Court by a Justice who embraced an alternative model formerly suggested by the author. The essence of this change is to align the duty concept only with the element of desirable liability, severing it from the element of undesirable conduct. That change arguably disperses confusion and ambiguities, and clarifies the roles and meaning of the foreseeability requirement.

This paper explains why the new model is preferable to the traditional model in all relevant aspects. The analysis sheds new light on the notions of proximity, special relations, reliance, assumption of responsibility and prima-facie duty. The analysis also serves as a comparative perspective on fault-based liability in continental Europe jurisdictions.

See the Journal of European Tort Law for the full article.

IN: Senate Passes COVID-19 Immunity Bill

Last week, the Indiana Senate passed a COVID-19 immunity bill.  As with many such bills, there is an exclusion for gross negligence or willful and wanton conduct.  The Indiana House of Representatives votes on a similar bill this week.  Lexology has details.

MO: COVID-19 Immunity Bill Ready for Vote in Senate

In Missouri, a COVID-19 immunity bill passed out of committee and is ready for a full vote in the Senate.  Senate Bill 51 provides:  "No individual or entity engaged in businesses, services, activities or accommodations shall be liable in any COVID-19 exposure action."  There is an exception for recklessness or willful misconduct.  Additionally, a one-year statute of limitations is imposed.  News-Press Now has details.

Abraham on Qualified Immunity and Police Liability Insurance

Ken Abraham has posted to SSRN Police Liability Insurance after Repeal of Qualified Immunity, and Before.  The abstract provides:

Recently there have been calls for and legislation proposed to repeal or modify the defense of qualified immunity in suits against police for deprivation of individuals' civil rights under Section 1983. These reforms would expand the liability of police by closing off a defense that limits such liability. An issue that naturally arises in connection with these possible reforms is the impact they could have on the availability and affordability of insurance against liability imposed under Section 1983. The market for insurance against such liability is already tight. Municipalities and law enforcement organizations are paying higher premiums for less coverage, because liability has been expanding, and because the scope of future expansion is uncertain.

This Article discusses the current state of the insurance market and predicts that repeal of qualified immunity under Section 1983 would likely aggravate a market that is already in turmoil. Most of the devices that insurers sometimes use in other lines of liability insurance to manage the challenges they face are not suited for addressing the underlying causes of market turmoil. Consequently, we can expect that repeal of qualified immunity would generate more of what is already occurring – coverage would become even less available, and the coverage that municipalities are able to buy would provide less insurance for even higher premiums.

Nursing Homes Plead PREP Act Immunity to COVID-19 Cases

Nursing homes across the country are invoking the Public Readiness and Emergency Preparedness (PREP) Act to claim immunity from COVID-19 suits.  The PREP Act was originally passed in 2005 in order to encourage production of emergency vaccines during an epidemic by providing immunity to pharmaceutical manufacturers.  The Trump administration invoked the Act in March relating to COVID-19:

It authorizes the Secretary of the Department of Health and Human Services (HHS), during a public health emergency, to shield from liability makers of “countermeasures” such as diagnostic tests, protective gear and vaccines like those developed by Pfizer Inc, Germany’s BioNTech and Moderna Inc.

The PREP Act does not apply to instances of serious injury or death caused by willful misconduct; when immunity applies, the injured person may seek compensation from a government fund (though most claims are denied).  

All rulings have been against nursing homes so far, but pleading the Act, which allows defendants to move from state to federal court, can buy them time.  In December, the Trump administration added agency guidance in favor of nursing homes.  Only one ruling, against a defendant, has come down since the guidance, so it remains to be seen whether nursing homes will begin winning cases.  Tom Hals at Reuters has the story.

Stone on Civil Recourse Theory

Rebecca Stone has posted to SSRN The Circumstances of Civil Recourse Theory.  The abstract provides:

What circumstances create the need for an institution that conforms to civil recourse theory? I consider polities that vary in the extent to which they instantiate justice and argue that only a moderately non-ideal polity has a need for such an institution. When a polity gets close to the ideal, the polity needs institutions of corrective justice. When the polity gets very far from the ideal, tort law is at best instrumentally justified. Somewhere in between those two extremes, a civil recourse conception has significant justificatory advantages over both corrective justice and instrumental accounts. Even under these conditions, however, it remains difficult to explain within the confines of civil recourse theory why enforcement of tort law’s primary norms should remain in the hands of the victim. I suggest a possible explanation, but it requires us to jettison the claim that the wrongs of tort law are genuine wrongs.

Kaplan on Defending Compensation

Yotam Kaplan has posted to SSRN In Defense of Compensation.  The abstract provides:

In recent years, tort victims in the U.S. have been finding it increasingly difficult to secure compensation through the legal system. This decline of compensation is the result of a decades-long campaign by corporate defendants to reshape the litigation landscape in their own favor. The most recent volley in this ongoing battle is an unprecedented, forceful attack against compensation launched by the Trump Administration. Regrettably, the inaccessibility of compensation often spells tragedy for tort victims. To justify these attacks, supporters of the anti compensation campaign utilize the economic theory of tort law to formulate forceful arguments against compensation as a general legal principle.

This Article demonstrates that the prevailing economic argument, and the legal order that follows therefrom, is based on a fundamental oversight. In particular, current economic theory fails to consider the possibility of investments by victims to shift harm to others. This Article is the first to examine the possibility of harm shifting in the context of tort doctrine.

This additional consideration proves to be crucial for the analysis of compensation. Existing economic theory argues that compensation is “inefficient” as it annuls victims’ incentive to invest in self-protection. This argument is reversed once we consider the possibility of harm-shifting. When investing to protect themselves, tort victims can pass harms on to others. Such investments are wasteful as they are designed only to redistribute harms, not to eliminate them. Therefore, compensation can actually prove beneficial precisely because it annuls victims’ incentive to invest in self-protection.

Once harm-shifting investments are considered, the economic argument against compensation is overturned. The case, therefore, for compensation is stronger than economic theory currently leads us to believe, and action must be taken to reverse the trending decline of compensation.

Two by Parks & Grindell on Hazing

Gregory Parks & Elizabeth Grindell have posted to SSRN two pieces on hazing.  The first is The Litigation Landscape of Fraternity and Sorority Hazing:  Criminal and Civil Liability.  The abstract provides:

In this article, we explore the criminal liability that adheres to individuals and organizations as well as the development of criminal statutes in this domain. Also, we grapple with member, chapter, and national organization civil liability as well as university and university staff civil liability. This article is part of a series of articles that have tried to make sense of the underlying factors that undergird and propel hazing. It also serves as a basis for a book trilogy I am currently working on about hazing—its roots and solutions.

The second is The Litigation Landscape of Fraternity and Sorority Hazing:  Defenses, Evidence, and Damages.  The abstract provides:

In this article, we explore the various approaches to litigation defense that may be employed—e.g., the role of the insurance industry, arbitration and its pitfalls, assumption of risk, comparative fault, contributory negligence, and consent. We also explore evidentiary matters—e.g., poems and songs, signs and symbols, social media, organizational culture, how discovery devices may be used, and the role of expert witnesses. Lastly, we explore damages—general, actual, punitive, and the difficulty of collecting them.

JOTWELL Courts: Mullenix on Russell on Frivolous Defenses

At JOTWELL, Linda Mullenix reviews Thomas Russell's Frivolous Defenses.