TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Friday, September 30, 2011

IL Clarifies Duty Analysis, Post-Sale Duty to Warn in Products Case

In Jablonski v. Ford Motor Co., the Illinois Supreme Court held that duty analysis in a negligent-product- design case encompasses a risk-utility balancing test in which compliance with industry standards is relevant, but not dispositive.  The court further refused to adopt a post-sale duty to warn for a product not defective at the time of manufacture.  The opinion (pdf) is here

Thanks to DePaul's Mark Weber for the tip.


September 30, 2011 in Products Liability | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 28, 2011

Indiana Stage Collapse Leads to Lawsuit, Challenges

Most people know that a stage collapsed during the Indiana State Fair, killing several people.  Not surprisingly, survivors of the victims have filed suit.  One suit challenges both Indiana's $5 million total cap on damages in claims seeking damages from the state and seeks to make damages available for surviving same-sex partners.  (Indiana does not recognize same-sex marriage.)


September 28, 2011 in Damages, Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Intermediate Appellate Court Upholds Damages Cap in California

I missed it earlier this month, but an intermediate appellate court in California upheld a $250,000 cap on noneconomic damages in medical malpractice claims. 


September 28, 2011 in Damages, Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Heymann on Interests in Reputation

Laura Heymann (W&M) has posted to SSRN The Law of Reputation and the Interest of the Audience.  The abstract provides:

Although an individual has control over many of the statements, acts, and other biographical data points that are used to construct her reputation, she does not ultimately have control over the result of that reputational assessment, the pronouncement of which is a task re-served to others. Reputation is fundamentally a social concept; it does not exist until a community collectively forms a judgment about an individual or firm that has the potential to guide the community’s future interactions. Despite reputation’s relational nature, discussions of the law’s interest in reputation tend to focus on one of two parties: the individual or firm holding the reputation and the defendant accused of having unlawfully harmed that reputation. This framework leads to particular conceptions of the reputational interests, such as from a property or dignity perspective, and of the countervailing, often First Amendment–related, interests of the defendant. But the community that constructs one’s reputation also has an interest in the soundness of a reputation’s foundation so that future uses of others’ reputations will be effective. A more complete conception of reputation, therefore, should take such community interests into account.


September 28, 2011 in Scholarship | Permalink | Comments (2) | TrackBack (0)

Tuesday, September 27, 2011

NJ Teen Sues NYC for Negligence

A New Jersey teen, injured after jumping the fence at the new High Line park, has filed a notice of claim against New York City. The notice alleges that city workers were negligent in locking the teen into the park when the park closed at 11:00 p.m. NY Daily News has more.


September 27, 2011 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Monday, September 26, 2011

CALL FOR PAPERS: Second issue of Scientia Juris (Metz Law School Journal)

Francois-Xavier Licari sent the following announcement:

Legal Maxims in the 21st Century – Law in Books or Law in Action?

“Hence, in all civilized nations, we always witness the formation, alongside the temple of enacted laws under the legislator’s supervision, of a repository of maxims, decisions, and doctrinal writings which is daily refined by the practitioners and their clashing debates in court, which steadily grows as all acquired knowledge is added to it, and which has always been regarded as the true supplement of legislation”.

- Translation of J.-E.-M. Portalis in Alain Levasseur, ‘Code Napoleon or Code Portalis?’ (1968) 43 Tulane Law Review 762, 769-70.

This famous quotation of Portalis expresses in a brilliant phrase that statutes are not the only sources of law and that alongside them are maxims or adages, as well as judge-made law and doctrine.

The second issue of Scientia Juris will focus on the most fascinating of these ‘supplements’ of the statutory law, one whose very existence actually seems to give reason to the supporters of the Historical School: the maxims.

Whether they are principles of interpretation or vehicles of a substantive rule, they are abundant in the treatises. They seem to exist in all legal systems (continental law, common law, religious law, etc.). The judge sometimes relies on them to base his decision. The most famous of them have been the subject of scholarly study. Their legal strength seems well established. They are probably one of the last islands of customary law. However, at the end of the first decade of this century, it seems that a reexamination of this question is worthwhile. The maxims still contain many mysteries.

What maxims apply in real life from the law: do they have normative importance that make legal traditionalists jealous of their knowledge? Do they still have a place in a world saturated with legislation as regulation? Do they constitute one of the last havens of stability among ever-changing standards? Is this permanence through their generality? Is this imprecision compatible with legal certainty? How otherwise explain the strength of the expression that they show?

And for those that exist in multiple families of law or in different jurisdictions, how have they traveled? Does a similar expression signify a similarity in meaning and scope? What about maxims in mixed jurisdictions (Louisiana, Quebec, Malta, Israel, etc.): does their introduction into a hybrid system lead to a separation from the original?

This list is far from complete; numerous other problems and points could be addressed as well. Similarly, the bibliography ... is only meant as a research tool; consultation of documents mentioned here is thus neither required nor objectively indispensable. The papers sought should put forth and defend ideas, hypotheses, models or theories, but not simply present data or already published research work in a more or less descriptive way. Submissions shall be sent as an Open Office or Word file to the editors by March 30, 2012. There is no minimum or maximum length. Our working languages are French, English, German, and Spanish. The Metz Law School Journal is peer-reviewed.

Note that contributors can also submit papers outside of the focus of this call on any comparative or transnational subject. All submissions should be sent to or

More information is available at Juris Diversitas.


September 26, 2011 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, September 22, 2011

Tort-Focused PAC in Texas

A few weeks ago, the New York Times published an interesting piece (from the Texas Tribune) about Texans for Lawsuit Reform, a very powerful PAC in that state.  Worth a read.


September 22, 2011 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 21, 2011

Top 10 Recent SSRN Torts & Products Liability Downloads


Rank Downloads Paper Title
1 205 The Reasonable Person
Alan D. Miller, Ronen Perry,
University of Haifa - Faculty of Law, University of Haifa - Faculty of Law,
Date posted to database: July 16, 2011
Last Revised: September 7, 2011
2 156 Rawls' Concept of Reflective Equilibrium and its Original Function in 'A Theory of Justice'
John Mikhail,
Georgetown University - Law Center,
Date posted to database: July 21, 2011
Last Revised: July 27, 2011
3 154 Corporate Human Rights Violations and Private International Law – The Hinge Function and Conductivity of PIL in Implementing Human Rights in Civil Proceedings in Europe: A Facilitating Role for PIL or PIL as a Complicating Factor?
Veerle Van Den Eeckhout,
Leiden University - Leiden Law School,
Date posted to database: July 26, 2011
Last Revised: July 28, 2011
4 150 Torts and Other Wrongs
John Gardner,
University of Oxford - Faculty of Law,
Date posted to database: August 9, 2011
Last Revised: August 17, 2011
5 83 Strict Liability in Negligence
Kenneth S. Abraham,
University of Virginia School of Law,
Date posted to database: August 15, 2011
Last Revised: September 6, 2011
6 79 Why There is No Duty to Pay Damages: Powers, Duties, and Private Law
Nathan B. Oman,
William & Mary Law School,
Date posted to database: August 9, 2011
Last Revised: August 9, 2011
7 76

The Concept of a Right to Privacy
Eoin Carolan,
University College Dublin (UCD),
Date posted to database: July 21, 2011
Last Revised: July 21, 2011

8 72 Immunity Shopping: Exploiting Variation in Liability Rules
Robert Flannigan,
University of Saskatchewan,
Date posted to database: August 23, 2011
Last Revised: August 23, 2011
9 68 How Medical Apology Programs Harm Patients
Gabriel H. Teninbaum,
Suffolk University Law School,
Date posted to database: August 21, 2011
Last Revised: September 10, 2011
10 67

Optimal Cartel Deterrence: An Empirical Comparison of Sanctions to Overcharges
Robert H. Lande, John M. Connor,
University of Baltimore - School of Law, Purdue University,
Date posted to database: August 28, 2011
Last Revised: September 20, 2011


September 21, 2011 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, September 19, 2011

Baby Mixup Does Not Support Claim for Emotional Distress

A Brooklyn woman sued Long Island College Hospital after discovering that the nurses had given her the wrong baby to breast feed and that her baby had been given to another woman.   The Appellate Division reveresed the trial court's denial of the motion to dismiss.   It's a bit unclear from the story the exact claim brought (i.e., negligence, IIED, etc.), though the story reports that the plaintiff sought damages for "extreme emotional pain."   The Brooklyn Eagle has the details. 

Thanks to Meredith Miller for the story.

- SBS 

September 19, 2011 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 14, 2011

AALS Torts & Compensation Section Panel on Civil Recourse Theory

The 2012 AALS Annual Meeting Torts & Compensation Section meeting will include a panel on civil recourse theory scheduled for Thursday, January 5th at 9:00 a.m.  

Twenty-First Century Tort Theories:  A New Audit of Civil Recourse Theory

Recently, civil recourse theory has emerged as an attempt to unify tort law around the concept of private wrongs. By arguing that the point of tort law is to empower victims to rectify civil wrongs against them, civil recourse theory offers an elegant means to reduce the plurality of theories that have dominated tort scholarship since the 1970’s. This panel will explore the implications of paring down tort law to civil recourse.  John Goldberg and Benjamin Zipursky, who have been pioneers in developing civil recourse theory, will present the concepts and methods of this theory. Guido Calabresi, the 2010 Prosser Award recipient, will explore the implications of deemphasizing loss-spreading and deterrence. Martha Chamallas will examine civil recourse theory drawing upon her work on how race, gender, and class interrelate with tort law developments. Finally, Christopher Robinette will address the question of whether civil recourse can unify the law focusing on whether it is a complete account.  Panelists will also address whether tort law should have a public purpose beyond civil recourse.


Speaker: Guido Calabresi, Yale Law School U.S. Court of Appeals, 2nd Circuit
Speaker: Martha E. Chamallas, The Ohio State University Michael E. Moritz College of Law
Speaker: John C.P. Goldberg, Harvard Law School
Speaker: Christopher J. Robinette, Widener University School of Law
Moderator: Michael L. Rustad, Suffolk University Law School
Speaker: Benjamin C. Zipursky, Fordham University School of Law


September 14, 2011 in Conferences | Permalink | Comments (2) | TrackBack (0)

Keating on Corrective Justice

Greg Keating (USC) has posted The Priority of Respect Over Repair to SSRN.  The abstract provides:

Contemporary tort theory is dominated by a debate between legal economists and corrective justice theorists. Legal economists suppose that tortfeasors and tortious wrongs are false targets for cheapest-cost-avoiders and avoidable future losses. Rational actors recognize that the past is beyond their control. They ignore sunk costs – the consequences of past wrongs – and focus on influencing the future. Holding people accountable for having inflicted past harm makes sense only as a way of creating the proper incentives to avoid future harm. The right people to hold responsible for past harm, therefore, are not those whose wrongs are responsible for that harm, but those who are in the best position to avoid future harm efficiently. Properly understood, then, tort is about providing the proper incentives to minimize the combined costs of paying for and preventing future accidents. Tortfeasors responsible for past wrongs are false targets for cheapest cost-avoiders going forward.

Corrective justice theorists have argued powerfully that this economic account does not capture the most fundamental fact about tort adjudication, namely, that the reason why we hold defendants liable in tort is that they have wronged their victims and should therefore repair the harm that they have done. You can no more recover from someone in tort by showing only that they are the cheapest cost-avoider with respect to a class of future wrongful losses than you can convict someone of a crime by showing only that their conviction will deter future crime. People are liable in tort when and because they commit tortious wrongs just as they are punishable for crimes when and because they commit those crimes. Deterring cheapest cost-avoiders from committing future harms no more justifies imposing liability in tort than deterring future crime justifies hanging the innocent.

This is a powerful critique of the economic theory of tort, but it overshoots the mark. As an account of tort law, corrective justice puts the cart before the horse. To be sure, reparation looms large in tort. Rights require remedies, and reparation for harm wrongly done is the most common tort remedy. Yet in tort law itself, remedial responsibilities arise out of failures to discharge antecedent responsibilities not to inflict injury in the first instance. Tort is a law of wrongs, not just a law of redress for wrongs. In the first instance, it enjoins respect for people’s rights. Remedial responsibilities in tort are thus subordinate, not fundamental. By itself, the principle that wrongful losses should be repaired is incomplete; its application presupposes an antecedent account of wrongs. Logically and normatively, obligations of repair are dependent on primary obligations. Logically, remedial responsibilities are conditioned on and arise out of failures to discharge primary ones. Normatively, primary responsibilities provide the reason for honoring remedial responsibilities and largely determine the shape of remedial responsibilities. Breaching primary responsibilities leaves those responsibilities undischarged, and puts the breaching party in a position where it is no longer able to discharge its primary responsibilities in the best way possible. Remedial responsibility is thus grounded in the failure to comply with primary responsibility. Repairing harm wrongly done is the next best way of complying with an obligation not to do harm wrongly in the first place. Rights and remedies form a unity in which rights have priority. Corrective justice is thus an essential, but subordinate, aspect of tort.

The Priority of Right over Repair develops this line of criticism of corrective justice theory in detail, and offers an alternative account of tort which places primary norms of harm avoidance and respect for rights at its center. On this conception, tort is – as the corrective justice theorists rightly insist – a law of wrongs, but its distinctiveness lies in the content and character of the wrongs with which it is concerned. At its core, tort is concerned with establishing the autonomy and security of persons in civil society with respect to one another.


September 14, 2011 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 13, 2011

Miller & Perry on the Reasonable Person

Alan Miller & Ronen Perry (Haifa) have posted to SSRN The Reasonable Person.  The abstract provides:

The Article sets forth a conclusive and unprecedented answer to one of the most fundamental questions in tort law, which has bedeviled and divided courts and scholars for centuries: should reasonableness be a normative or a positive notion? Put differently, should the reasonable person be defined in accordance with a particular normative ethical commitment, be it welfare-maximization, equal freedom, ethic of care, etc., or in accordance with an empirically observed practice or perception? Only after answering this question can one move on to selecting a concrete definition of reasonableness. Our own answer is radical but inescapable: only normative definitions are logically acceptable.

The Article does not endorse a particular definition of reasonableness. Instead, it focuses on the fundamental choice between the two conflicting paradigms. We put forward and defend the thesis that normative definitions are categorically preferable to positive definitions, because the latter are logically unacceptable, whereas the former merely raise partially surmountable practical problems. Although the Article focuses on the reasonable person in torts, the implications of our analysis are far-reaching, because the concept of reasonableness prevails in most areas of American law.

Part I presents the most salient normative definitions of the reasonable person, namely those that stem from the ideas of welfare maximization, equal freedom, and the feminist ethic of care. It explains their practical weaknesses, and shows that these weaknesses surface mostly at the margins, and can be alleviated to some extent. In contrast, Part II shows that a positive definition of reasonableness is a logical impossibility. We do not study any specific positive definition but construct a formal model of the reasonable person that allows us to study all such definitions simultaneously. The formal model is built with tools from a branch of economics known as social choice theory, and is analogous to the groundbreaking theorem for which Kenneth Arrow was awarded the Nobel Prize in 1972. We impose five axioms on the reasonable person; all of them are necessary characteristics of any positive definition. We then prove that a positive definition cannot possibly satisfy all five. Consequently, any empirical methodology used to study the reasonable person is necessarily invalid.

(Via Solum/Legal Theory Blog)


September 13, 2011 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, September 12, 2011

Judicial Review of Private Mass Tort Settlements

Jeremy Grabill (Weil Gotshal) has posted "Judicial Review of Private Mass Tort Settlements" to SSRN. The abstract provides:

In the mass tort context, class action settlements have largely given way to a unique form of non-class aggregate settlements that this Article refers to as “private mass tort settlements.” Although it has been argued that aggregation in tort law is “inevitable,” the legal profession has struggled for many years to find an effective aggregate settlement mechanism for mass tort litigation that does not run afoul of the “historic tradition” that everyone should have their own day in court, assuming they want it. Over the last decade, however, as a result of the evolution of non-class aggregate settlements, a new opt-in paradigm for mass tort settlements has emerged that is true to that historic tradition. This Article discusses the new opt-in paradigm and the appropriate contours of judicial authority vis-à-vis private mass tort settlements.

Private mass tort settlements present a difficult conundrum for presiding judges. On one hand, mass tort litigation requires active judicial involvement and oversight due to the sheer size and complexity of such matters. Thus, having been intimately involved in the litigation from its inception, it understandably seems natural for courts to want to exercise some degree of control over private mass tort settlements. But, on the other hand, like traditional one-on-one settlements and unlike class action settlements and other specific settlements, private mass tort settlements do not impact the rights of absent or unrepresented parties. Perhaps not surprisingly then, courts have struggled in applying established principles concerning the scope of judicial authority to evaluate and oversee the implementation of traditional settlements in the unfamiliar context of private mass tort settlements.

This Article seeks to provide a clear path forward by first examining the limited contexts in which courts have the authority to evaluate and oversee the implementation of traditional settlements, highlighting the nature of the absent or unrepresented interests that judicial review is designed to protect in those traditional contexts. The Article then discusses the emerging opt-in paradigm for mass tort settlements and traces the paradigm’s lineage to three recent cases: In re Baycol Products Liability Litigation, In re Vioxx Products Liability Litigation, and In re World Trade Center Disaster Site Litigation. The Article argues that the well-established maxim that courts lack authority over private one-on-one settlements should apply with equal force to private mass tort settlements because these non-class aggregate settlements allow each individual plaintiff to decide whether or not to settle on the terms offered and do not impact the rights of absent or unrepresented parties. In short, courts do not have - and do not need - the authority to review private mass tort settlements. The Article concludes by addressing the arguments that have been advanced to support judicial review of non-class aggregate settlements, debunking the “quasi-class action” theory that some courts have relied upon to regulate attorneys’ fees in connection with mass tort settlements, and discussing the various ways in which courts may nevertheless be able to influence private mass tort settlements.



September 12, 2011 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, September 11, 2011

Welcome to the Blogosphere: Private Law Theory

Stephen Hedley (University College Cork, Ireland) has launched a new blog, Private Law Theory, that covers a great deal of our concept of torts.  It's a great addition to your favorites.


September 11, 2011 in Weblogs | Permalink | Comments (0) | TrackBack (0)

Friday, September 9, 2011

Call for Papers/Conference Announcement: "The Paisley Snail"

An international torts conference will be held in May 2012 in Scotland celebrating the 80th anniversary of Donoghue v. Stevenson.

University of the West of Scotland, Renfrewshire Law Centre, the Law Society of Scotland and the Faculty of Advocates, will host the Major International Conference of the decade in Paisley, the locus delicti, to examine, discuss and celebrate eighty years of the law of tort, negligence and delict.

What was the decision in this most famous case of all time? Why was it so important? How has the law developed since then? What does the future hold? And was it really a snail in the bottle?What was the decision in this most famous case of all time? Why was it so important? How has the law developed since then? What does the future hold? And was it really a snail in the bottle?

The call for papers has been extended to November 1, 2011. Submissions are accepted electronically via the conference website.


September 9, 2011 in Conferences | Permalink | Comments (0) | TrackBack (0)

Thursday, September 8, 2011

Emotional Distress Claims: Still Limited

In early 2010, a SeaWorld trainer, Dawn Brancheau, drowned during a public session ("Dinner with Shamu").  Among the members of the audience were Suzanne and Todd Connell and their son, who all witnessed the drowning and were, understandably, traumatized by the experience.  The Connells filed suit against SeaWorld on behalf of their son (and, I think, themselves) for both intentional and negligence infliction of emotional distress.

Last week, a Florida judge dismissed their claims with prejudice, finding that they had failed to allege outrageous conduct by the park (for the intentional claim) and that they had failed to show any precedent supporting a negligence claim for purely emotional distress when the plaintiff was "a complete stranger to the injured party."

Since we're starting IIED in the next week or so in my Torts class, and the boundaries of emotional distress claims generally are a foundational theme to the class, it's a compelling set of facts for me -- and perhaps for you.

I'm trying to get a copy of the opinion and will post it here if so.

Here's the opinion: Download SeaWorldIIED [PDF].


September 8, 2011 in Teaching Torts | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 7, 2011

Journal of Tort Law: Tort and Property

 The second of three issues of the Journal of Tort Law featuring papers presented initially at a 2010 conference on Property and Tort at the U.S.C. Gould School of Law is now available:

The conference was organized by Professors Gregory Keating and Benjamin Zipursky, and sponsored by U.S.C., Fordham, and Harvard Law Schools.   The papers published in this issue are listed below: 

Private Law Theory and Corrective Justice in Trade Secrecy
Eric R. Claeys

Property and Precaution
Lee Anne Fennell

Is Public Nuisance a Tort?
Thomas W. Merrill

Modularity and Morality in the Law of Torts
Henry E. Smith


September 7, 2011 in Conferences, Scholarship | Permalink | Comments (0) | TrackBack (0)

Public Health Law Section Call for Papers

From an e-mail I received from Temple's Scott Burris:


PHLR invites submission of abstracts for oral presentation at the PHLR Annual Meeting in New Orleans, January 18-20, 2012. Abstracts should be no more than three pages in length and should focus on public health law research related to communicable diseases, non-communicable diseases, or injury prevention. Visit for more information on the Request for Abstracts.



September 7, 2011 in Conferences | Permalink | Comments (0) | TrackBack (0)

Temple's Center for Health Law Practice and Policy Seeks Injury Prevention Legal Research Associate

From an e-mail I received from Temple's Scott Burris:

     The Center for Health Law Practice and Policy (CHLPP) at Temple University is hiring a grant-funded, Injury Prevention Legal Research Associate to support the Pennsylvania Department of Health’s (PA DOH) Violence and Injury Prevention Program (VIPP) that receives funding from the National Center for Injury Prevention and Control at the Centers for Disease Control and Prevention (CDC). A JD or an MPH or equivalent experience is required. This is a great opportunity for someone interested in public health law and policy to get experience taking substantial responsibility for creative, credible policy analysis and development within a state-wide coalition. Though nothing is certain in the current climate, this is meant to be a multi-year program and may strike some people as worth moving to Philadelphia for (not to say Philadelphia is a charming place even without the job). If you have likely candidates among your recent graduates or interns, please direct them to Temple’s personnel web page, where this week some time they should be able to read about and apply for the job listed as  “Injury Prevention Legal Research Assoc III.”


September 7, 2011 | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 6, 2011

Southeastern Law Scholars Conference

I am delighted to be involved again organizing the second Southeastern Law Scholars Conference on October 28-29, 2011, at the Charleston School of Law. This regional conference will bring together junior law school faculty to present published papers or works-in-progress across all disciplines within the law. The conference is open to all junior law faculty (one to seven years teaching experience) at law schools in the southeastern United States. To ensure an atmosphere conducive to feedback, space is limited to twenty participants.

The conference will begin with dinner for all participants on Friday, October 28, 2011. On Saturday, October 29, 2011, conference participants will present either a completed paper or work-in-progress, and comment on the papers and ideas presented by others. As the host school, the Charleston School of Law will provide dinner on Friday, October 28, as well as breakfast and lunch on Saturday, October 29. There is no registration fee. Participants, however, are responsible for their own travel expenses.

To participate in the conference, please email me by Friday, September 29, 2011. Please note whether you will be attending dinner on Friday, October 28, in your email. In addition, please include the title of your presentation topic. A short abstract would also be helpful.


September 6, 2011 in Conferences | Permalink | Comments (0) | TrackBack (0)