TortsProf Blog

More on Williams

The Tortellini (which is, by the way, a new daily read for me) has a post on the Williams argument, concluding that the plaintiffs seem to end up in a better place, with the argument focusing on the propriety of the jury considering conduct related to people other than the plaintiff in suit.

First Look at Williams Argument

The WSJ Law Blog has an initial review of the Supreme Court argument today in the punitives case.  The main conclusion: the core approach is unlikely to change.

Risk-Benefit Decisions and Financial Provisions

I've no idea if BP acted properly or not in the case referred to here at Tort Deform, relating to the massive March 2005 explosion that killed 15 employees in the company's Texas City plant.  The Tort Deform post doesn't currently link to the article it quotes, but here's a Washington Post story that certainly suggests that BP's conduct was at least negligent and possibly reprehensible.  Indeed, BP has conceded responsibility for the accident in question and has settled many of the claims brought.  So we can start off with the sound assumption that the company acted negligently.  Good so far.

But the Tort Deform posts suggests that BP "put aside money to pay the foreseeable legal claims from the accident it knew would only happen in a matter of time."  Wrong.  BP has set aside $1.6 billion to pay claims, but that's obviously a provision for financial reporting purposes for existing liabilities, not something that was done in advance, as the Tort Deform post suggests. 

Put another way, BP did not, back in the '90s, say, "Gosh, we could fix this or we could set aside $1.6 billion to pay for the lawsuits to come."  Rather, in 2006, BP told investors, "We think $1.6 billion will resolve all of these issues." It's different, and in an important way.

As with my prior reference to Tort Deform (with the incorrect representation of the Ford Pinto memo), I agree with what I take to be the post's main point: Corporate defendants sometimes act badly (as do individual defendants, and plaintiffs, for that matter) and many liability modifications proposed have the potential to reduce deterrence.   It's worth noting, though, that the post does not identify which modifications would let BP go "unpunished" (by which I assume the poster means "would make it so the victims would go uncompensated").  I expect it's a reference to caps on noneconomic damages and on punitive damages.

But to imply that BP set aside billions of dollars instead of engaging in proper safety is both incorrect and exceedingly unlikely -- I don't know much about what it would have taken to make the tragedy not occur, but I'll bet it was a lot less than $1.6 billion. 

It's really a similar error to that made in the prior post, too, contending that a company made a decision in advance to pay tort liabilities rather than make a facility or product safer.  No doubt that happens (and rationally must happen), but that's not what this story is about.  And, again as with the Pinto post, it detracts from the value of the point.

OT: Happy Halloween

I try to resist most cute picture posts, but my daughter's Amelia Earhart costume was simply impossible to resist.  We're still working on my son's costume (he wishes to be a book).

Bill Bryson on Warning Defects

Well, not exactly, but this Weekend Edition story (click on "listen") has an entertaining bit where Bryson discusses growing up in a time (the 1950s) when smoking was healthy, people didn't need to be warned about the unfortunate possible interactions between gasoline and matches, and so on.

Olive Pits in Iowa

The Iowa Supreme Court ruled [PDF] in September that a failure-to-warn claim could survive summary judgment, notwithstanding the foreign-natural doctrine:

Plaintiff has alleged that he opened a jar of pimento-stuffed, green  olives, which had been imported and sold at wholesale by defendants.  He  alleges that he used several of these olives, which bore the label Italica  Spanish Olives, in the preparation of a salad and, when eating the salad, bit  down on an olive pit or pit fragment and fractured a tooth.   

* * *

We are satisfied that, in the case of processed foods, consumers may  develop reasonable expectations that certain components of food products  in their natural state that serve to impede human consumption will be  removed.  Specifically, we believe that the purchaser of pimento-stuffed  olives may reasonably anticipate that the olive pits have been removed.  We  need not decide whether this expectation would create an implied warranty  of merchantability because such a claim is precluded by statute in the  present case.  We are convinced, however, that a seller of stuffed olives  must be cognizant that consumers will assume that the olives will be free  from pits and act on that assumption in consuming the product.

"You know dozens of flower pots spontaneously combust each year, it’s just not really widely reported."

Beware the spontaneously combusting flower pots!

It's actually quite an interesting story with some potentially good facts for a products liability question:

As a result, the department issued a consumer alert about the fire hazards of potted plants. One reason for the risk, the alert explained, is that there is little, if any soil, in commercial potted plants these days. "What you find is a mixture of peat and vermiculite. When peat is dry it burns easily," the alert said.

(Bonus points if you know the source of the quote in the title of this post.  Alternative quote from a different source: "It happens sometimes. Flower pots just explode. Natural causes.")

Top Five SSRN Torts Papers

Back in March, I posted the top five torts-related SSRN papers.  Today, they're the same five with minimal changes in order.

The top five new (i.e., last 60 days) papers, ranging from 123 downloads to 102 downloads:

A Taxonomy of Obesity Litigation 
Theodore H. Frank,
American Enterprise Institute for Public Policy Research,
Date posted to database: August 28, 2006
Last Revised: August 28, 2006

The Case Against Vicarious Jurisdiction 
Lonny Sheinkopf Hoffman,
University of Houston Law Center,
Date posted to database: March 31, 2006
Last Revised: October 4, 2006

Restitution for Wrongs and the Restatement (Third) of the Law of Restitution 
James Steven Rogers,
Boston College Law School,
Date posted to database: September 5, 2006
Last Revised: September 22, 2006

It Might Have Been: Risk, Precaution, and Opportunity Costs 
Douglas A. Kysar,
Cornell University - School of Law,
Date posted to database: September 5, 2006
Last Revised: September 5, 2006

Hedonic Damages, Hedonic Adaptation, and Disability
Samuel R. Bagenstos,  Margo Schlanger,
Washington University, St. Louis - School of Law, Washington University, St. Louis - School of Law,
Date posted to database: September 8, 2006
Last Revised: October 17, 2006

Northern Punitives, Eh?

The Ontario Court of Appeal recently ruled on a punitive damages case with strikingly similar considerations as those evaluated by U.S. courts -- in particular those the Supreme Court will presumably be considering tomorrow in the Williams case.

In applying this principle [of proportionality] to the facts of this case, the Court held that a punitive damage award must be proportionate to the blameworthiness of the employer’s conduct, with particular attention paid to the duration of the misconduct. . . . The Court also considered whether [the defendant's] conduct in relation to [the plaintiff] was malicious and high-handed. . . .

The decision of the Court of Appeal also cautions against placing too much weight on the relative size of the corporate defendant in assessing punitive damages, recognizing that "Indiscriminate use of the relative power of the defendant and the plaintiff as a significant factor would lead to unprincipled awards." [T]he Court recognized that a defendant’s financial power could become relevant where it may rationally be concluded that a lesser award would fail to achieve deterrence. . . .

As part of the proportionality analysis, the Court also considered the totality of all other damages assessed against [the defendant] including the compensatory damages awarded [in this case].

Capping Appellate Bonds

Doug Rendleman (W&L) has an article forthcoming in a remedies symposium in the Akron Law Review addressing caps on appellate bonds.  The abstract:

The defendant's supersedeas or appeal bond was a servile drudge of appellate procedure until enormous punitive damages verdicts catapulted it out of local courthouses into headlines. From the verdict that exceeded $10 billion in Pennzoil v. Texaco in the 1980s to the punitive damages verdict of $145 billion in Engle v. Liggett Group that was reversed in the summer of 2006, appeal bonds have played a crucial role in huge-verdict litigation. This article's topic - tort reform statutes that cap an appeal bond - stemmed from punitive damages verdicts in smokers' trials against tobacco companies.

Beginning with appellate procedure, the article traces the appeal bond through related topics: federal abstention, bankruptcy, the arguments for and against state tort-reform statutes that cap an appeal bond, and state and federal constitutional doctrines, including the United States Constitution's Full Faith and Credit Clause.

Since constitutions neither compel nor forbid a limited appeal bond, the author resolved that the decision to cap or not to cap resides in the legislature's realm of evaluating public policy. The appeal bond cap's function of facilitating the defendant's entryway to the appellate court whose warranty is a crucial imprimatur for accurate and legitimate judicial decisionmaking convinced the author to commend a cap of $25 to $50 million for a defendant's appeal bond on a jury's verdict for punitive damages.

As If T.O. Wasn't Enough

The receivers coach for the Dallas Cowboys has sued McDonald's after finding a six-inch rat in his salad.

The dead rodent, believed to be a juvenile roof rat, was about 6 inches long and was found on its back with its mouth opened, Scott Casterline, a spokesman for the family, told The Associated Press.

He said the women didn't find the rat until taking the salad home to eat, and that a manager from the McDonald's "didn't offer any comfort" after driving to their house to see the rodent. The suit was filed after the restaurant didn't follow through on promises "to make things right," he said.

"The family needs closure," Casterline told The Associated Press. "It came to a point where you have to draw a line."

* * *

According to the lawsuit, Christine Haley and Kelley had eaten part of the salad purchased June 5 before the dead rodent was uncovered.

The women became violently ill and endured long-lasting physical injuries, the lawsuit said. Chritine Haley, who was nursing, states she had to feed her baby with formula.

The roof rat is common in Texas.

Also: Yuck.

[via DeadSpin]

Kids, Sit on Your Hands and Enjoy Recess!

You've probably already heard about the Attleboro, Massachusetts, elementary school banning tag and other kinda-sorta-contact sports at recess.

Frank DeFord on Wednesday's Morning Edition had an commentary on the subject, and on school recess more generally.

I'm co-chair of the PTO at my daughter's school and recess is, to say the least, an interesting discussion.  While the Attleboro administration cites liability concerns, my guess is that the topic was even open for discussion because parents brought it up, due as much to fear about their kids having their feelings hurt as anything else.  Perhaps liability concerns are an easy reason to give -- and no doubt it's in the mix -- but I'd bet it's at least as much (over?) protective parents as real legal concerns.

Batteries Go Boom

Scientific American has posted online a prepublication preview [PDF] of a story in its next issue, addressing the chemistry behind the troubles with lithium-ion batteries, complete with a discussion of economic pressure resulting in allegedly closer calls, safety-wise.

Of perhaps note, last spring when I taught Products Liability, a student was late for the first day of class.  Why?  Because her laptop's battery had caught on fire and started a fire in her home.  (Nobody was injured.)

Borat and the Law

Slate has a fun Explainer piece about the Borat film (trailer page) being released in a couple of weeks, addressing the release signed by people who appear in it and its unusual specificity:

The waivers encompass claims of defamation, invasion of privacy, and infringement of publicity rights—and they do so in unusual detail. The document diverges most clearly from the standard "standard consent agreements" when it gets into issues of fraud, "breach of alleged moral rights," and copyright infringement. There's even a reference to the federal Lanham Act, which covers unfair business practices that could mislead consumers. (This clause may protect against the claim that consumers were made to believe that the participant has endorsed—or voluntarily acted—in the film.)

Slate has the actual release involved posted.

MySpace Suit Update

I don't have the new complaint, but I understand that the Austin-filed MySpace complaint has been nonsuited and refiled, with five additional similar claims from plaintiffs in somewhat similar circumstances, in the Bronx.  The defendant News Corp. has apparently removed the matter.

If I have a chance later on today, I'll spend some time on PACER and grab the complaint, assuming it's available.

A Couple More Williams Pieces

Ted Frank points out two more columns on the upcoming Williams case.

Sebok & Frank on Punitives

Anthony Sebok (Brooklyn) has the second part of his discussion of the upcoming Williams case up on FindLaw.  And Ted Frank (Overlawyered, etc.) has an analysis at the Business & Media Institute.  Both are worth reading in advance of the Halloween argument.

OT: A Tragic Anniversary

Four years ago today, Paul Wellstone, his wife Sheila, their daughter Marcia, and three campaign aides were killed in a tragic plane accident in outstate Minnesota.  I still remember my wife calling in tears, asking if I'd heard yet.  I hadn't.  It was a terrible day.

I took a semester off from college to work on Senator Wellstone's first campaign for Senate, volunteering (with occasional paid stints) full-time from precinct caucuses through the endorsing convention (i.e., when his election was impossible).  I continued to work for the campaign that fall, as campus organizer at Macalester College, where we hosted one of the largst rallies of the campaign.  I also interned in his office the spring following his remarkable election, working on immigrant and refugee issues.

I remember seeing him on an plane, flying from Minneapolis to D.C., sometime after I started in practice, probably in early 2001.  I hadn't seen him since sometime in the mid-90s, but he immediately greeted me, asked after Dena, and asked after my parents.

Regardless of your views of his politics (and I did not agree with him on all issues), Paul had the courage of his convictions, he said what he believed, and he voted consistently.  Our public debate is poorer for his absence.

The Wellstone Alliance has posted a rememberance and has a page relating to the memorial.

"Never separate the lives you live from the words you speak."

Wax On, Wax Off...and Sorry About Your Nose.

Nice example case for discussions of assumption of risk (and consent, though it's not mentioned)

A woman whose nose was broken during a sparring match at a Long Island, N.Y., karate school was an experienced practitioner of the sport and had assumed the inherent risk of injury or "even death," a state judge has concluded in dismissing her lawsuit against the school and its owner.

* * *

"Therefore, the court finds that being struck in the face while sparring, which itself involves punching and kicking your opponent while attempting to block punches and kicks from your opponent, was a risk that was known and apparent to this plaintiff when she chose to take this sparring class," Doyle wrote. "Indeed plaintiff signed a contract with the school which states, in part, that plaintiff acknowledges that the risk of sustaining an injury resulting from broken bones or even death is inherent in the sport of karate and plaintiff waives her right to recover against the karate school in the event she sustained such an injury."

The claim against the instructor was allowed to stand, as genuine issues of material fact were present about the claim that the contact was intentional.

OT: Technology Beats Torts

Bringing your Raspberry Tort(e)s fantasy football team to 3-4, Tech Law Advisor's creatively-named team "Tech Law Advisor" won a tough game, 134-124.  Donte Stallworth's last-minute inactive status hurt, as did Julius Jones's last-minute failure to do anything useful.

I hate having Cowboys on my team.