TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Friday, March 30, 2012

New Orleans Saints's Bounty Program: An Intentional Tort?

Over at The Atlantic, Jake Simpson ponders whether the New Orleans Saints could face tort liability for the "bounty program," where players were paid incentives to injure opposing players:

"There's always the possibility of litigation," said Gabe Feldman, sports law professor at Tulane University Law School. "The real question is the likelihood of success."

Feldman said that current or former players who were injured on plays that may have involved bounty programs could file an intentional tort claim in state court. Defendants in a tort claim could include players, coaches and even top Saints officials if they were aware of the bounty scheme.


March 30, 2012 in Current Affairs | Permalink | Comments (1) | TrackBack (0)

Thursday, March 29, 2012

TX: Med Mal Cap Upheld

On Tuesday, a federal judge ruled that Texas's cap on non-economic damages in medical malpractice cases is not an unconstitutional taking of private property.  News Radio 1200 has the details.


March 29, 2012 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 28, 2012

MO: Constitutional Challenge to Med Mal Cap

Yesterday the Missouri Supreme Court heard arguments on whether that state's 2005 cap on non-economic damages in medical malpractice cases violates the state constitution.  In 2011, a jury decided that physicians failed to act when an unborn child showed signs of distress in the womb.  The child was born with cerebral palsy and will not progress beyond the mental capacity of a three-year-old.  The jury awarded $4,821,000 in total damages.  Of that amount, $1.45M was non-economic and was reduced to $350,000 pursuant to the cap.  The Springfield News-Leader has the details.


March 28, 2012 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 27, 2012

Two Oil Spill Lawsuits Filed

A Nigerian village has filed suit against Shell in London over a 2008 spill in the Niger Delta Region.   Bloomberg Business Week has more.

Salt Lake City residents have filed suit against Chevron over a 2010 spill into Red Butte Creek.  WaPo (AP) has more. 



March 27, 2012 in Current Affairs | Permalink | Comments (1) | TrackBack (0)

Monday, March 26, 2012

House Passes Tort Reform Bill

The U.S. House of Representatives has passed nationwide tort reform measures as part of a bill repealing the Medicare Independent Payment Advisory Board, created as part of the Affordable Care Act in 2010.  Per an ABA summary,  the bill, H.R. 5, the "Protecting Access to Healthcare Act," would 

  • Cap noneconomic damages at $250,000 in medical suits,
  • Allow courts to reduce contingent fees and to redirect damages to plaintiffs,
  • Create a “fair share” rule in which each party would be liable only for its share of any damages, pre-empting state laws that call for joint and several liability, and
  • Abolish the collateral-source rule.

The Senate is unlikely to consider the bill, and President Obama has threatened to veto it, if passed.  The Hill's Floor Action Blog has more.


March 26, 2012 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Saturday, March 24, 2012

Coleman on Porat on Misalignments

In the Yale Law Journal Online, Jules Coleman responds to Ariel Porat's Misalignments in Tort Law.  Entitled Mistakes, Misunderstandings, and Misalignments, the introduction provides:

In a recent article appearing in The Yale Law Journal, Ariel Porat argues that the tort of negligence is beset by a range of misalignments that threaten to induce inefficient behavior. In this Response, I argue that Porat is working with an unhelpful notion of misalignment; that tort law has its own internal conception of alignment; and that once we understand the nature of alignment in torts, none of his examples are problematic. If anything, his arguments reveal problems in his understanding of the tort of negligence rather than problems in the tort itself or in its practical implementation. Many of the confusions that beset Porat’s argument are common in the law and economics of tort literature, which has for far too long run fast and loose with a confused understanding of the nature of liability in torts as well as of liability’s relationship to the elements of a tort. Porat’s article is my main focus, but my objections are intended to cut more broadly and deeply.


March 24, 2012 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, March 23, 2012

OT: Davidson Wins Grisham Short Story Contest

It's obvious that Sheila and I have talented friends.  Last month, Sheila posted that her friend Anthony Franze had published a Supreme Court thriller, The Last Justice.  This week, it was announced that my close friend, law school roommate, and godfather of my daughter, John Davidson, won a short story contest judged by none other than John Grisham.  Congratulations, John!


March 23, 2012 | Permalink | Comments (0) | TrackBack (0)

Thursday, March 22, 2012

Comer v. Murphy II: Case Dismissed

On Monday, a federal district judge in Mississippi dismissed a climate change suit over Hurricane Katrina-related property damage, holding the connection between any individual's conduct and weather-related harm was too tenuous to support a tort judgment.  The opinion is here:  Download 17881470_D.E. 291 2012.03.20 Memorandum Opinion & Order Granting Def. Motions to Dismiss[1].

Thanks to Phil Goldberg for the tip.


March 22, 2012 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 21, 2012

Rapp on R3

Geoff Rapp (Toledo) has posted to SSRN Torts 2.0.  The abstract provides:

In this Symposium Essay, I analogize the American Law Institute's Restatement (Third) of Torts to "Web 2.0." The story of the Third Restatement and its progenitors bears a remarkable resemblance to the great technological revolution of the last century's end: the World Wide Web. Web. 1.0, the first generation of internet activity, treated users as passive. Web 2.0, by contrast, is organic and allowes user preferences to drive site development.

Like Web 2.0, the Third Restatement embraces the "architecture of participation" in the development of tort law. Instead of a top-down approach, ala Web 1.0 and the Second Restatement of Torts, the Third Restatement's embrace of a flexible and open-ended formulation of key tort principles encourages judges and juries to play a participatory role in developing the law of torts.


March 21, 2012 in Conferences, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 20, 2012

Canada Recognizes Invasion of Privacy Tort

The Lawyers Weekly (CA) reports that the Ontario Court of Appeals has recognized a new cause of action, "intrusion upon seclusion," as a common law invasion of privacy tort.  Law Times also has more on the decision, and in particular, analyzes its impact on family law. 



March 20, 2012 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Monday, March 19, 2012

MN Passes Cap on State/Local Liability

MN Governor Mark Dayton has signed legislation restoring caps in wrongful death cases against state or local governments to pre-2008 levels.  The new law caps liability at $1 million because of  “a single occurrence, if the claim involves nonprofit corporations engaged in or administering outdoor recreational activities funded or operating under a government-issued permit.”  StarTribune Politics has more. 


March 19, 2012 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Friday, March 16, 2012

NH: "Early Offers" Med Mal Proposal in State Senate

The New Hampshire Senate is touting an early offer approach to medical malpractice.  The proposal was designed with the input of Jeffrey O'Connell (Virginia) who conceived of the concept of early offers and has championed it for years.  The NH proposal allows the patient, not the health care provider, to initiate the early offer process.  One proponent of the bill explained:

victims of malpractice would send a notice of injury to the medical provider. The provider then has 90 days to decide to extend an early offer and can ask the patient to undergo a physical exam. The patient then has 60 days to accept or reject the early offer, and can ask for a hearing with state insurance officials if any disputes need to be resolved.

The Union Leader has the details.


March 16, 2012 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 14, 2012

AALS Torts Panel on Civil Recourse Podcast

AALS has posted the podcasts from the Annual Meeting.  Former Chair of the Torts & Compensation Systems Section Mike Rustad planned and moderated the panel "Twenty-First Century Tort Theories:  A New Audit of Civil Recourse Theory."  One Torts Prof said it was the best torts panel he had heard in nearly 30 years of Annual Meetings. 

After Mike brought the meeting to order, Ben Zipursky nominatedJudge Richard Posner for the Prosser Award.  Judge Posner was unable to attend, but Mike read a letter from Judge Posner accepting the award.  The panelists then spoke in the following order:  John Goldberg, Ben, Judge Guido Calabresi, Martha Chamallas, and me.  The presentations were terrific and I had the best seat in the house--literally inches from the speakers.

The Indiana Law Journal will publish the papers of the panelists--and a piece from Judge Posner--early in 2013.  The podcast is here.  I tried to upload the podcast, but it was too large.  You will need to enter your e-mail address and AALS password.  Then, you will have to scroll down to the appropriate podcast.



March 14, 2012 in Conferences, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 13, 2012

Conk on the BP Settlement

George Conk analyzes the BP settlement at TortsToday.


March 13, 2012 in Weblogs | Permalink | Comments (0) | TrackBack (0)

Monday, March 12, 2012

Green & Gilead on Misalignments in Tort Law

Mike Green (Wake Forest) and Israel Gilead (Hebrew University) have posted to SSRN Maligned Misalignments.  The abstract provides:

This article responds to a fascinating and provocative article entitled “Misalignments in Tort Law,” authored by Ariel Porat and published at 121 Yale L.J. 82 (2011). Porat argues that the rule embodied in Section 29 of the Restatement (Third) of Torts: Liability for Physical and Emotional Harm creates a doctrinal misalignment that should be removed. This "scope of liability" provision, which Porat names "the wrongful risks limitation," provides that "[a]n actor‘s liability is limited to those harms that result from the risks that made the actor‘s conduct tortious" (wrongful risks). Porat argues that as "all foreseeable risks created by the injurer should be and are considered by courts when they set the standard of care," liability should not be limited to wrongful risks, as required by Section 29, but rather extend to all harms materializing from foreseeable risks. Limiting liability to wrongful risks, Porat argues, is a misalignment which should be removed because it is unjustified in terms of efficiency and cannot be convincingly justified in terms of corrective justice.

This article argues that Porat's analysis and criticism of the "scope of liability" rule in Section 29 is flawed. While courts should take all foreseeable risks into account when deciding whether a conduct was negligent (namely, when determining whether the standard of care was breached), they should nevertheless for scope of liability purposes distinguish between unreasonable risks on the one other hand and reasonable risks on the other. When an actor is found negligent, liability should be limited to harms materializing from the unreasonable risks and exclude harms materializing from reasonable risks. The article seeks to demonstrate that such a limitation on liability, sanctioned by Section 29, constitutes a rule, even if a misalignment, that, contrary to Porat, contributes to more appropriate incentives to avoid unreasonable conduct and produces fairer results.


March 12, 2012 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, March 9, 2012

Philly Asbestos Verdict Challenged

The Legal Intelligencer reports on a variety of issues raised by the plaintiffs in a post-trial motion challenging a defense verdict in Webber v. Ford Motor Co.   In particular, plaintiffs' counsel alleges that the verdict form was the result of ex parte contact by defense lawyers and the supervising judges in Philadelphia's Mass Torts Program.

Thanks to Lisa Smith-Butler for the alert.


March 9, 2012 in Current Affairs, Products Liability | Permalink | Comments (0) | TrackBack (0)

Thursday, March 8, 2012

Med Mal Study: Poor Are Less Likely to Sue

Frank McClellan (Temple) has co-authored a study finding that the poor are not as likely to sue in medical malpractice as other socio-economic groups. 


March 8, 2012 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 7, 2012

Simons on the Purpose/Knowledge Distinction and the NFL Bounty Issue

Over at Prawfs, Ken Simons is posting on the purpose/knowledge distinction and its role in the NFL bounty issue. 


March 7, 2012 | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 6, 2012

Abraham on Four Conceptions of Insurance

Ken Abraham (Virginia) has posted to SSRN Four Conceptions of Insurance, a paper extending the analysis he made in a guest post at TortsProf.  The abstract provides:

This Article, awarded the 2011-12 Liberty Mutual Prize by Boston College Law School, identifies four different conceptions of insurance that have operated in the debates about insurance and insurance law in recent decades, analyzes these conceptions, and examines the normative agendas that drive them. These are the contract, public utility-regulated industry, product, and governance conceptions. Although these conceptions adopt very different perspectives, each is a way of struggling with the two fundamental questions that modern insurance law has continually faced. The first question involves the extent to which the language of an insurance policy should determine its legal effect. This is the insurance law version of the age-old question of the validity of one-sided provisions in contracts of adhesion. Because virtually all insurance policies, including high-end corporate insurance policies, are standard-forms, it is a question at the core, not the periphery, of insurance law. The second question involves the proper influence of what are sometimes called “public law” values on the scope of private insurance coverage. This is a version of the question with which much of modern private law struggles. To what extent should private law be about doing justice between two contracting parties, and to what extent should it also be concerned with other, more nearly public law matters, such as the impact of litigation outcomes on the future behavior of other parties, or equal treatment of similarly-situated policyholders?

Ultimately, the Article argues, adopting a particular conception of insurance is no substitute for making or rejecting the normative choices that each conception entails. It is not our concepts, but our political, economic, and social values that underlie and underwrite legal doctrines and practices. Nonetheless, sometimes we do not see through our conceptual structures but instead are led around by them. This is part of what is taking place in the contests among different conceptions of insurance. In such circumstances it takes the kind of critical analysis this Article undertakes in order to expose the normative agendas that are doing the actual work within each conceptual structure.



March 6, 2012 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, March 5, 2012

AALS Torts & Compensation Section: Prosser Award Nominations; Solicitation of News

Andy Klein (Indiana-Indianapolis), the Secretary of the Section, posts the following:

Dear Colleagues,

Greetings!  In my capacity as secretary of the AALS Torts & Compensation Systems section, I am writing to pass along two important notices.

1. Torts and Compensation Section Newsletter

As most of you know, our section publishes a newsletter each fall listing: (1) Symposia related to tort law; (2) recent law review articles on tort law; (3) selected articles from Commonwealth countries on tort law; and (4) books relating to tort law.  We are now beginning the process of compiling material for this year’s newsletter.  If you know of anything that should be included, please forward relevant citations and other information to me at [email protected].  The deadline for inclusion is August 15, 2012.  

2.  Prosser Award 

This is the first call for nominations for the 2013 William L. Prosser Award.  The award "recognize[s] outstanding contributions of law teachers in scholarship, teaching and service in ... torts and compensation systems ... ."   Recent recipients are Richard Posner, Guido Calabresi, Oscar Gray, and Dan Dobbs.  Past recipients include scholars such as Leon Green, Wex Malone, and John Wade. 

Any law professor is eligible to nominate another law professor for the award.  Nominators can renew past nominations by resubmitting materials.  Selection of the recipient will be made by members of the Executive Committee of the Torts & Compensation Systems section, based on the recommendation of a special selection committee.  The announcement of the award will be made at the annual AALS meeting in January, 2013.   

Nominations must be accompanied by a brief supporting statement and should be submitted no later than July 2, 2012.   E-mail submissions to [email protected] are preferred.   If you would rather mail hard copies of nomination materials, please use the address in the signature line below. 

Our committee will send additional reminders about both the newsletter and the Prosser Award as the deadlines approach.  In the meantime, feel free to contact me if you have any questions.



Andrew R. Klein

Indiana University Robert H. McKinney School of Law

(317) 274-2099

[email protected]

March 5, 2012 in Scholarship, TortsProfs | Permalink | Comments (0) | TrackBack (0)