TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Wednesday, December 31, 2008

Happy New Year!

Happy New Year to all our readers!


December 31, 2008 | Permalink | Comments (0) | TrackBack (0)


At about 9:00 this morning, we received our 200,000th visitor to the TortsProf blog.  (We're closing in on the 300,000th page view.)

(In case you're curious, the 200,000th visit was from someone at the Chicago office of Jones Day.  Thanks for coming, and sorry you're having to work today.)

We're a couple of weeks from the third anniversary of the blog's existence.  Sheila joined the blog about eighteen months ago; Chris joined about a year ago.

We had some plan to note the 200,000th visitor (beyond this) but I've been buried in alternating grading and illness so we haven't followed through.  But perhaps we will in the new year.

In any event, thanks to everyone for continuing to visit and to the network for its support.


December 31, 2008 | Permalink | Comments (0) | TrackBack (0)

Arkansas Sizzler Suit Settled

Earlier this year, I noted the lawsuit, related to the death of a seven-year-old boy on a Sizzler carnival ride on Easter 2007.  It's now settled for an undisclosed amount.

I've posted about the Sizzler and somewhat similar incidents here, here, here, and here.


December 31, 2008 in Products Liability | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 30, 2008

Negligent Cheerleading

According to the WSJ Law Blog, the Wisconsin Court of Appeals has cleared the way for a ninth grade cheerleader to bring a negligence claim against her fellow student cheerleader for allegedly failing to properly spot her during a stunt. The court found that cheerleading was not a contact sport, and therefore, not covered by a Wisconsin statute requiring recklessness or intent to impose liability.  More on the decision from Matthew Mitten at the Marquette U Law Faculty BlogHoward Wasserman at Prawfs also adds his thoughts, and questions the court's approach (i.e., the focus on contact between "opponents"), but not the result.  Howard notes that the case is now before the Wisconsin Supreme Court.


December 30, 2008 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Tort Reform on GOP Agenda in Tennessee

The Tennessean reports that GOP lawmakers have tort reform on their agenda for next year.   Possible legislation may include caps on damages against nursing homes, although a similar measure died in committee last year. 


December 30, 2008 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Saturday, December 27, 2008

China Prepares Tort Legislation

Tort legislation is now under consideration in the National Peoples' Congress.  From

The Beijing-based "Guang Ming Website" published a commentary saying that the long-awaited tort liability law will classify civil wrongs against persons or properties and protect people's rights from been violated.

The article argues that as a "Bible" to deal with civil wrongs, tort liability laws in western countries are specific to each corner of a person's daily life, yet the law in China has developed at a rather more laggardly pace.

In 2007, Chinese courts at all levels accepted 870,000 civil lawsuits. In the face of varied torts, the public are essentially in the dark when it comes to deciding the black and white of an issue, and the general confusion presents difficulties to judges and other law enforcement officials when they make a ruling.

The article praises the draft of the tort liability law, calling it a significant step to provide a comprehensive protection to people's physical and mental well-being and the security of an individual's property.


December 27, 2008 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Friday, December 26, 2008

Professor Dan Dobbs Receives 2009 William L. Prosser Award

From the announcement e-mail:

Dan Dobbs will receive the William Prosser award for outstanding contributions to Torts scholarship, teaching, and service at this year's AALS Torts Section Meeting.

Professor Dan B. Dobbs, the Regents & Rosentiel Distinguished Professor of Law at the James E. Rogers College of Law, University of Arizona, has been a leading light in the field of Torts for the past 45 years. An expert in both torts and remedies, he is the author of leading treatises in each area: The Law of Torts and The Law of Remedies. He is also the co-author of prominent Torts and Advanced Torts casebooks, as well as dozens of book chapters and articles on the comparative, procedural, substantive and remedial aspects of tort.


December 26, 2008 in TortsProfs | Permalink | Comments (0) | TrackBack (0)

Mark Lanier Addresses Jon Hanson's Torts Class

Mark Lanier, of Vioxx litigation fame, addressed Jon Hanson's Torts class at Harvard last month.  He discussed the psychological aspects of tort law, focusing on communicating with juries.  A summary and webcast are available here.


December 26, 2008 in Current Affairs, Teaching Torts | Permalink | Comments (0) | TrackBack (0)

Thursday, December 25, 2008

Grady on Tort Liability and Irrational Actors

Mark Grady (UCLA) has posted The Free Radicals of Tort on SSRN.  Here is the abstract:

Rational and irrational people are typically held to an identical tort standard when it is a question of their own liability. On the other hand, when it is a question of whether someone else has encouraged some dangerous behavior, as under the doctrines of duty and proximate cause, the encouragers will be liable only when the persons were part of a group whose members typically lack rationality. The courts' apparent purpose is to prevent accidents in every way possible even if it means diluting the incentives of irrational people in order to increase the incentives of responsible people to refrain from creating tempting opportunities for them.

(Via Solum/Legal Theory Blog)

Merry Christmas to our Christian readers!


December 25, 2008 | Permalink | Comments (0) | TrackBack (1)

Wednesday, December 24, 2008

Tiger Mauling Victim Sues SF Zoo

Last Christmas, a seventeen-year-old was mauled to death at the San Francisco Zoo.  His parents are suing, contending that the barriers around the tiger's pen were inadequate.  Another story points out that his friends (who were not killed) sued earlier for, among other things, defamation for suggesting that they had provoked the tiger.


December 24, 2008 in Current Affairs | Permalink | Comments (1) | TrackBack (0)

Medical Publisher Reviews Claim of Ghostwriting by Wyeth

The New York Times reports that Elsevier, a publisher of medical journals, is investigating whether an article published in the May 2003 edition of the American Journal of Obstetrics and Gynecology was ghostwritten by Wyeth.   The article found "no definitive evidence" that Wyeth's Prempro hormone drug caused breast cancer.  The author of the article stands by the article; Wyeth similarly denies any ghostwriting.


December 24, 2008 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 23, 2008

Who Should Pay for Litigation Costs?

In today's Wall Street Journal, Dan Slater examines the question of who should pay the costs of litigation - a loser pays rule as in Canada, Germany and the U.K., or the so-called American rule where each side bears its own costs?


December 23, 2008 in Current Affairs | Permalink | Comments (1) | TrackBack (0)

Kim on "Imposing Tort Liability on Websites for Cyber-Harassment"

The new volume of the Yale Law Journal Pocket Part includes an article by Nancy S. Kim (Cal Western) on "Imposing Tort Liability on Websites for Cyber-Harassment."   Kim acknowledges that websites are immune from liability as publishers, but argues that they should be held liable as business proprietors under a "reasonable care" standard.


December 23, 2008 | Permalink | Comments (0) | TrackBack (0)

Monday, December 22, 2008

Good Samaritans in California

I linked to a story about it in Friday's Roundup, but it's worth noting separately that California's Supreme Court last week ruled that the tort liability protection for rescuers is narrow.  For more, see,, and the opinion itself [PDF].


December 22, 2008 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Friday, December 19, 2008

Personal Injury Roundup No. 19 (12/19/08)

Note: There will be no roundup for the next two weeks.  We'll return with the roundups on January 9.  Posting will otherwise continue, though perhaps sporadically, over the break.

Last week, Chris wrote from amidst Blue Books.  This week, I'm in the same situation...

Reform, Legislation, Policy

New Lawsuits

  • Brawl -- literally -- over class action [].
  • Strange things afoot at the IHOP: suit against NFL players for fight in pancake place's parking lot [Deadspin].
  • ...and a domestic violence tort suit against a Padres outfielder [SignOnSanDiego, Deadspin].
  • Overserving allegedly caused husband to beat wife [Chicago Tribune].

Trials, Settlements & Other Ends

  • Exam-like facts: University of Vermont settled a lawsuit for wrongful death brought by widow of man killed in car crash with driver who fell asleep; driver had been (allegedly negligently) allowed to drive home after receiving clinical trial drugs [Burlington Free Press].
  • Tennessee excessive force tort suit settled; same cop had earlier suit settled in different Tennessee town [MSNBC].
  • Dennis Quaid & wife settle suit against hospital over kids' overdose [Injury Board].
  • Makers of Airborne settle deceptive advertising suit [MSNBC].



  • Feel free to become a Facebook fan of The Tippling Badger, a fictional bar that was featured in my Torts exam this semester.

Thanks to Ron Miller for tips.

Happy holidays, everyone!



December 19, 2008 in Roundup | Permalink | Comments (0) | TrackBack (0)

Thursday, December 18, 2008

No full posts today

I'm on jury duty today, so no full posts today most likely.

I will note briefly that there is something odd about seeing lawyer ads on the TV while in the jury pool room.


December 18, 2008 | Permalink | Comments (0)

Noah on "Product Stewardship" in Torts

Lars Noah (Florida) has posted Platitudes about "Product Stewardship" in Torts:  Continuing Drug Research and Education on SSRN.  Here's the abstract:

This paper focuses on one emerging aspect of tort litigation against pharmaceutical manufacturers that, if it gained traction, portends a dramatic (and potentially counterproductive) expansion in the prescription drug industry's exposure to liability. A growing chorus of commentators would impose on pharmaceutical manufacturers a broader duty to test and educate (aspects of what they call an obligation of "product stewardship" or "informed choice"). This paper explains the serious flaws in such proposals, but it also suggests one novel basis for imposing liability (distribution restrictions) that might make some sense. Genuine product stewardship, at least if understood as an effort to make the most of a scarce resource, strikes me as far more defensible than the approaches suggested by other commentators.

(Via Solum/Legal Theory Blog)


December 18, 2008 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 17, 2008

Australia Redefines Old Tort of "Breach of Confidence"

The Australian reports that the Victorian Court of Appeal in Australia has expanded the old tort of "breach of confidence" to allow liability even if the publisher of material created in confidence was "unaware the material in question is covered by the relationship of confidence."

Before last week's ruling, damages were only payable for a breach of confidence in Australia if the plaintiff had suffered a psychological or psychiatric injury.  But the Court of Appeal liberalised this test so damages can be claimed in Victoria by those who are merely distressed by publication of material created during a relationship of confidence. Because the decision affects material generated during a relationship of confidence, it has a narrower effect than the proposed statutory tort for breach of privacy that the Federal Government is considering.

- SBS 

December 17, 2008 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 16, 2008

British Group Claims Child Food Ads Are "Misleading"

The BBC reports that the British Heart Foundation has called for tougher regulation of child food advertisements in Britain:

It suggested that companies used a variety of "misleading" techniques to make them seem healthier than they actually are.  One example it gave was Kellogg's "Coco Pops" Cereal Bars, which are marketed as the "best choice for a lunchbox treat". 

Manufacturers, however, noted that the advertisements comply with current British and EU regulations.


December 16, 2008 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

"Judicial Hellholes 2008"

The American Tort Reform Association has released its annual "Judicial Hellholes" (pdf) ranking:

  1. West Virginia
  2. South Florida
  3. Cook County, Illinois
  4. Atlantic County, New Jersey
  5. Montgomery and Macon Counties, Alabama
  6. Los Angeles County, California
  7. Clark County, Nevada

Rio Grande Valley and the Gulf Coast of Texas, Madison County, Illinois, Baltimore, Maryland, and the City and County of St. Louis make the "watch list."    An executive summary is available on-line.


December 16, 2008 in Current Affairs | Permalink | Comments (2) | TrackBack (1)