TortsProf Blog

Restatement of Intentional Torts: IIED

In an attempt to elicit comments about the ALI's Restatement of Intentional Torts, Ken Simons and Ellen Pryor asked that I post the black letter portions of the current draft.  If you have comments, you can post them here or send them directly to Ken and Ellen (or both).  Ken can be reached at:  [email protected] and Ellen at [email protected].  The entire draft, comments and all, is here.

§ 104. Intentional (or Reckless) Infliction of Emotional Harm

An actor who by extreme and outrageous conduct intentionally or

recklessly causes severe emotional harm to another is subject to liability for

that emotional harm and, if the emotional harm causes bodily harm, also for

the bodily harm.

--CJR

Restatement of Intentional Torts: Assault

In an attempt to elicit comments about the ALI's Restatement of Intentional Torts, Ken Simons and Ellen Pryor asked that I post the black letter portions of the current draft.  If you have comments, you can post them here or send them directly to Ken and Ellen (or both).  Ken can be reached at:  [email protected] and Ellen at [email protected].  The entire draft, comments and all, is here.

§ 103. Assault

An actor is subject to liability to another for assault if:

(a) the actor intends to cause the other to apprehend that a harmful or

offensive contact with his or her person is imminent;

(b) the actor’s conduct causes the other to apprehend that a harmful or

offensive contact with his or her person is imminent; and

(c) the actor does not actually consent to the apprehension [or to the conduct

causing the apprehension].

--CJR

More Sections from the Restatement of Intentional Torts: Purpose

In an attempt to elicit comments about the ALI's Restatement of Intentional Torts, Ken Simons and Ellen Pryor asked that I post the black letter portions of the current draft.  If you have comments, you can post them here or send them directly to Ken and Ellen (or both).  Ken can be reached at:  [email protected] and Ellen at [email protected].  The entire draft, comments and all, is here.

§ 102. Purposeful Infliction of Bodily Harm

An actor is subject to liability to another if:

(a) the actor purposely causes bodily harm to the other; and

(b) the other does not consent to the conduct [or to the harm].

--CJR

Your Chance to Comment on the Restatement of Intentional Torts: 101 Battery

In an attempt to elicit comments about the ALI's Restatement of Intentional Torts, Ken Simons and Ellen Pryor asked that I post the black letter portions of the current draft.  Today we start with section 101 on battery.  If you have comments, you can post them here or send them directly to Ken and Ellen (or both).  Ken can be reached at:  [email protected] and Ellen at [email protected].  The entire draft, comments and all, is here.

§ 101. Battery

(1) An actor is subject to liability to another for battery if:

(a) the actor intends to cause a contact with the person of the other;

(b) the actor’s conduct causes such a contact;

(c) the contact (i) is offensive or (ii) causes bodily harm to the other;

and

(d) the other does not actually consent to the contact [or to the

conduct that causes the contact].

(2) A contact is offensive if:

(a) the contact offends a reasonable sense of personal dignity; or

(b) the actor knows that the contact seriously offends the other’s sense

of personal dignity, and it is not unduly burdensome for the actor to refrain

from causing the contact.

--CJR 

Simons and Pryor Respond to Wright's Comments on the Restatement of Intentional Torts

Last Tuesday, the membership of the ALI considered for the first time a draft of the Restatement of Intentional Torts.  We published Richard Wright's comments on the draft here.  Reporters Ken Simons and Ellen Pryor respond:

1. Professor Wright's answer to the "consent to what?" question is intriguing: P must consent to D's "engaging in the conduct with the [relevant] intent."  We have yet to decide on a formulation, so this is one that we will consider.

2.  Prof. Wright is correct, that we need to make clearer that the required legal injury must be caused by the tortious aspect of D's conduct.

3.  We are not yet convinced that the offensiveness requirement should be eliminated from battery doctrine; there are some cases that don't readily count as consented to (even under the doctrines of apparent or implied in law consent), but in which P does not recover because P does not suffer legally adequate offense, e.g., Illus 20 on p. 26, and Illus 22 on p. 27.

4.  Prof. Wright expresses the concern that § 101(2)(b) is too narrow in the protection it offers (and specifically, that the "unduly burdensome" qualification should be eliminated).  This is a valid concern.  But many ALI members have been very troubled by even this narrow provision for liability where D knows that P will suffer serious offense.

5.  The "substantially certain" language might indeed be infelicitous, but it has already been adopted by the ALI in Rest. Third Liab. for Phys. and Emotional Harm §1.  Still, we might say more in the current draft to emphasize that substantial certainty should be understood as "nearly" or "almost" certain, and should require a subjective belief in a probability greater than recklessness.

6.  Thanks for catching the typo in § 103(c), which indeed should say "the other does not actually consent..."  The gremlins are responsible for that one.

7.  We will consider your suggestion that the transferred intent section should contain stricter scope of liability limits.  If you know of cases that clearly support this view, we would be grateful if you would share them.  Alas, our research did not disclose very many transferred intent cases since the Second Restatement.

--CJR

Vairo on Disaggregation in Asbestos Cases

Georgene Vairo (Loyola LA) has posted to SSRN Lessons Learned by the Reporter:  Is Disaggregation the Answer to the Asbestos Mess?.  The abstract provides:

Described as an “elephantine mass” that “defies customary judicial administration,” asbestos litigation remains the longest-running mass tort in U.S. history. Ultimately, the efforts made to resolve the ever-expanding asbestos litigation failed. In 1997, in Amchem Products, Inc. v. Windsor, the United States Supreme Court struck down the use of a class action settlement to achieve a global resolution of all asbestos claims — those pending at the time and those of future claimants. In the wake of Amchem, dozens of asbestos defendants sought bankruptcy protection while plaintiffs continued to file claims in state and federal courts.  Between 1988 and 2010, a United States Government Accountability Office (GAO) analysis of the approximately 100 bankruptcy trusts’ payment data showed that the asbestos trusts had paid about $17.5 billion to 3.3 million claimants.

Since then, much has happened but basic problems remain. The patchwork system of plaintiffs claiming in federal and state courts, as well as the separate administrative claiming before bankruptcy trusts, raises complicated issues about how injured persons can be properly compensated while assuring that defendants are not assessed damages that are not warranted, and how to protect the trusts from fraud and preserve trust funds for future meritorious claimants.

The American Bar Association Torts and Insurance Section appointed a Task Force to look into issues currently confronting asbestos stakeholders.  I was appointed its Reporter.  This Article focuses on how the Task Force went about its work and developed a record.  It then presents some thoughts on how my service brought together my long-standing academic interest in how mass torts ought to be resolved and the realities of the current asbestos litigation.  What I have learned thus far has led me to question my once zealous advocacy of aggregated mass tort claims resolution.

When I served as Chairperson of the Dalkon Shield Claimant’s Trust, I wrote articles that focused on how the Trust resolved hundreds of thousands of claims. It is fair to say that I was a fan of aggregate resolution of mass torts. In my view, the use of multidistrict litigation, class actions, other aggregation tools, and even Chapter 11 reorganization provided fair and efficient vehicles for the resolution of mass torts.  Indeed, the Dalkon Shield Board of Trustees expressly adopted motivating principles as they began to put meat on the bones of the CRF.  First, and foremost, among these principles, was to “[t]reat all claimants fairly and equally, always focusing on the best interests of claimants collectively instead of on the interests of a particular claimant or group of claimants.” Another principle harkened back to the first:  “Prefer settlement and prompt payment of claims over arbitration and litigation.” Rereading these principles in light of the compelling testimony of two of the Task Force witnesses challenged my weltanschauung about mass tort dispute resolution.  Judge Robreno’s and Judge Davidson’s testimony about disaggregating cases into their core components, “letting lawyers be lawyers,” and getting cases ready for trial instead of obsessing about global or individual settlements is what led to the successful resolution of the cases before them.

Moreover, Judge Robreno’s testimony suggests that attempts at aggregated resolution of the “elephantine mass” were all failures, except for the MDL itself, which has largely wrapped up its work.  Rather, as Judges Robreno and Davidson testified, the disaggregation of asbestos claims allowed asbestos cases to be prepared for trial (or settlement discussions) more expeditiously.  Now, dying plaintiffs can get a shot at a prompt trial date rather than having to wait out a global settlement. Perhaps tending to the needs of particular plaintiffs is the best way to protect the interests of the whole in mass tort litigation after all.

--CJR

Burch on Judging Multidistrict Litigation

Beth Burch (Georgia) has posted to SSRN Judging Multidistrict Litigation.  The abstract provides:

High-stakes multidistrict litigations saddle the transferee judges who manage them with an odd juxtaposition of power and impotence.  On one hand, judges appoint and compensate lead lawyers (who effectively replace parties’ chosen counsel) and promote settlement with scant appellate scrutiny or legislative oversight.  But on the other, without the arsenal class certification once afforded, judges are relatively powerless to police the private settlements they encourage.  Of course, this power shortage is of little concern since parties consent to settle. 

Or do they?  Contrary to conventional wisdom, this Article introduces new empirical data revealing that judges appoint an overwhelming number of repeat players to leadership positions, which may complicate genuine consent through inadequate representation.  Repeat players’ financial, reputational, and reciprocity concerns can govern their interactions with one another and opposing counsel, often trumping fidelity to their clients.  Systemic pathologies can result:  dictatorial attorney hierarchies that fail to adequately represent the spectrum of claimants’ diverse interests, repeat players trading in influence to increase their fees, collusive private deals that lack a viable monitor, and malleable procedural norms that undermine predictability.

Current judicial practices feed these pathologies.  First, when judges appoint lead lawyers early in the litigation based on cooperative tendencies, experience, and financial resources, they often select repeat players.  But most conflicts do not arise until discovery and repeat players have few self-interested reasons to dissent or derail the lucrative settlements they negotiate.  Second, because steering committees are a relatively new phenomenon and transferee judges have no formal powers beyond those in the Federal Rules, judges have pieced together various doctrines to justify compensating lead lawyers.  The erratic fee awards that result lack coherent limits.  So, judges then permit lead lawyers to circumvent their rulings and the doctrinal inconsistencies by contracting with the defendant to embed fee provisions in global settlements — a well recognized form of self-dealing.  Yet, when those settlements ignite concern, judges lack the formal tools to review them.

These pathologies need not persist.  Appointing cognitively diverse attorneys who represent heterogeneous clients, permitting third-party financing, encouraging objections and dissent from non-lead counsel, and selecting permanent leadership after conflicts develop can expand the pool of qualified applicants and promote adequate representation.  Compensating these lead lawyers on a quantum-meruit basis could then smooth doctrinal inconsistencies, align these fee awards with other attorneys’ fees, and impose dependable outer limits.  Finally, because quantum meruit demands that judges assess the benefit lead lawyers’ conferred on the plaintiffs and the results they achieved, it equips judges with a private-law basis for assessing nonclass settlements and harnesses their review to a very powerful carrot: attorneys’ fees.

--CJR

Behrens & Silverman on the Garlock Bankruptcy Order

Here:  Download DC-_595649-v1-DRI_For_the_Defense_Garlock_Article_(Behrens_Silverman).

--CJR

Wright Comments on R3 Intentional Torts

The discussion draft of the Restatement Third, Torts: Intentional Torts to Persons, was discussed this morning at the American Law Institute annual meeting.  

Richard W. Wright (IIT Chicago-Kent) submitted the following comments on the draft:  Download ALI Intentional Torts RWW comments

- SBS

Fox & Stein on the Physical/Emotional Harm Distinction

Dov Fox (San Diego) & Alex Stein (Cardozo) have posted to SSRN Dualism and Doctrine.  The abstract provides:

What kinds of harm among those that tortfeasors inflict are worthy of compensation? Which forms of self-incriminating evidence are privileged against government compulsion? What sorts of facts constitute a criminal defendant’s intent? Existing doctrine pins the answer to all of these questions on whether the injury, facts, or evidence at stake are "mental" or "physical." The assumption that operations of the mind are meaningfully distinct from those of the body animates fundamental rules in our law.

A tort victim cannot recover for mental harm on its own because the law presumes that he is able to unfeel any suffering arising from his mind, by contrast to his bodily injuries over which he exercises no control. The Fifth Amendment forbids the government from forcing a suspect to reveal self-incriminating thoughts as a purportedly more egregious form of compulsion than is compelling no less incriminating evidence that comes from his body. Criminal law treats intentionality as a function of a defendant’s thoughts altogether separate from the bodily movements that they drive into action.

This Essay critically examines the entrenchment of mind-body dualism in the Supreme Court doctrines of harm, compulsion, and intentionality. It uses novel insights from neuroscience, psychology, and psychiatry to expose dualism as empirically flawed and conceptually bankrupt. We demonstrate how the fiction of dualism distorts the law and why the most plausible reasons for dualism’s persistence cannot save it. We introduce an integrationist model of human action and experience that spells out the conditions under which to uproot dualism’s pernicious influence within our legal system.

--CJR

JOTWELL: Hershovitz on Radzik on Tort and Relational Repair

At JOTWELL Torts, Scott Hershovitz (Michigan) reviews the contribution of Linda Radzik (Texas A&M-Philosophy) to Philosophical Foundations of the Law of Torts (John Oberdiek ed., 2014).

--CJR

Krueger & Slesnick on Worklife Expectancy

Kurt Krueger & Frank Slesnick has co-authored Total Worklife Expectancy Download Total_Worklife_Expectancy_Krueger_Slesnick_April_2014.  The abstract provides:

This paper appends the standard Markov increment-decrement worklife

expectancy model used in forensic economics to measure the years that people

perform the non-market work of taking care of their homes or families. We find

that adding non-market working years to the worklife model nearly equalizes

men and women's estimated lifetime total working years. The paper begins

with the gender-related problems of solely using labor force worklife tables as a

tort compensation determinant. We then present demographic characteristics

of persons that perform full-time, non-market work. A Markov life table model

that incorporates two work activities (market and non-market work) is specified—

we name the sum of market and non-market working years “total worklife

expectancy.” Ending the paper are examples of using total worklife expectancy

as a tort compensation estimator.

--CJR

The Europeanisation of English Tort Law by Giliker

Hart Publishing is offering a discount for TortsProf readers on The Europeanisation of English Tort Law by Paula Giliker.  The abstract provides:

Tort law is often regarded as the clearest example of traditional common law reasoning. Yet, in the past 40 years, the common law of England and Wales has been subject to European influences as a result of the introduction of the European Communities Act 1972 and, more recently, the implementation of the Human Rights Act 1998 in October 2000. EU Directives have led to changes to the law relating to product liability, health and safety in the workplace, and defamation, while Francovich liability introduces a new tort imposing State liability for breach of EU law. The 1998 Act has led to developments in privacy law and made the courts reconsider their approach to public authority liability and freedom of expression in defamation law.

 

This book explores how English tort law has changed as a result of Europeanisation - broadly defined as the influence of European Union and European human rights law. It also analyses how this influence has impacted on traditional common law reasoning. Has Europeanisation led to changes to the common law legal tradition or has the latter proved more resistant to change than might have been expected?

 

March 2014    262pp   Hbk   9781849463195  RSP: £45 / €58.50 / US$90

20% DISCOUNT PRICE: £36 / €46.80 / US$72

 

Order Online US

If you would like to place an order you can do so through the Hart Publishing website (link below). To receive the discount please mention ref: ‘TORTSPROFBLOG’ in the special instructions field. Please note that the discount will not be shown on your order but will be applied when your order is processed.

US Website - http://www.hartpublishingusa.com/books/details.asp?ISBN=9781849463195

 

Order Online in the UK, EU and ROW

If you would like to place an order you can do so through the Hart Publishing website (link below). To receive the discount please type the reference ‘TORTSPROFBLOG’ in the voucher code field and click ‘apply’.

UK, EU and ROW Website  - http://www.hartpub.co.uk/BookDetails.aspx?ISBN=9781849463195

If you have any questions please contact Hart Publishing

Hart Publishing Ltd, 16C Worcester Place, Oxford, OX1 2JW

Telephone Number: 01865 517 530

Fax Number: 01865 510 710

Website: http://www.hartpub.co.uk

 

 

- SBS

Foreseeability & Duty in New Mexico

Deborah J. LaFetra blogs over at Pacific Legal Foundation about a new case by the New Mexico Supreme Court,  Rodriguez v. Del Sol Shopping Center, where the court held that "a foreseeability-driven duty analysis is inappropriate." 

Visit Deborah's post for a more on the case. 

- SBS

 

Two by Sebok on Litigation Financing

Tony Sebok (Cardozo) has posted two pieces to SSRN on litigation financing.  First up is Litigation Investment and Legal Ethics:  What Are the Real Issues?.  The abstract provides:

One of the foundational principles of legal ethics is that the lawyer owes an obligation of undivided loyalty to the client, and no other interests or relationships can be permitted to interfere with the lawyer’s exercise of independent professional judgment on behalf of the client. The strongest objections to litigation investment by third parties is that it may compromise a lawyer’s independence. This article examines this objection in the context of a recent report from the Ethics Committee of the Commercial and Federal Litigation Section of the New York State Bar Association and argues that it misses the real legal ethics risks posed by litigation investment, which include the risk of self-dealing. The article compares the risk of self-dealing in commercial and consumer litigation investment in the United States with the risk of self-dealing in class action litigation investment in Ontario. It concludes by noting that courts in Ontario have properly identified the self-dealing risk in litigation funding for class actions and suggests that American courts and others concerned with the ethical risks for lawyers created by litigation investment can learn from the Canadian experience.

Next is What Do We Talk About When We Talk About Control?.  The abstract provides:

Despite the recent rejection by the ABA of attempts to weaken the limitations on the sharing of fees with non-lawyers, pressure to allow laypersons to invest in lawsuits remains.  This article looks at one argument against lay investment in litigation, which is that laypersons should not be able to control how litigation is conducted.

The intertwined questions of control and investment have two dimensions.  The first is whether and to what extent non-lawyers may invest in a stranger’s lawsuit; this is know as litigation investment and is limited by statute or the common law doctrine of champerty.  The second is whether and to what extent non-lawyers may invest in a lawyer’s anticipated legal fees; is the known as fee-splitting and is limited by the rules of professional responsibility.  This paper focuses on the second question, but it will be illuminated by work I have done on the first question.

I approach the question of investment and control of lawyers by asking two subsidiary questions.  First, what do we mean by “loss” of control when we say that investment in a lawyer’s anticipated fees risks allowing the investor to control the lawyer’s legal advice and judgment?  Are there any investment structures under which the risk of control could be eliminated or minimized?  Second, what do we mean by the “control” which is the subject of the forbidden transfer from the lawyer to the investor?  Lawyers, after all do not actually control the litigation they conduct. Clients ultimately have control; lawyers are agents of the client. Therefore, the autonomy which opponents of fee-splitting wish to protect possesses a paradoxical quality.  On the one hand, it can’t be ‘full’ control, equal to that of the client, since that would violate the fundamental agent/principal relationship that exists between lawyer and client.  On the other hand, it must reflect aspects of discretion and judgment which are lacking in the investor qua non-lawyer.  The paper concludes by asking whether clients are helped or hurt by insisting, as we do now, of one-size-fits-all answers to these questions regardless of the sophistication of the client and the nature of the legal representation at issue.

--CJR

MS: Ten Years of Tort Reform

The Clarion-Ledger reviews the 2004 tort reform package passed in Mississippi:

• Caps on damages: The law limited noneconomic, or pain-and-suffering damages to $500,000 on medical liability cases and $1 million in other civil cases. It also reduced caps on punitive damages for defendants, based on their net worth.

• Joint and several liability: The law did away with joint and several liability, limiting damages defendants could face to the fraction for which they were at fault.

• Venue: Created stricter rules for establishing venue, or where a case can be brought and tried. For instance, doctors can only be sued in their home county.

• Product and premise liability: Added protection to “innocent sellers” of products and protects property owners from liability.

--CJR

NLJ on GM's Use of Ken Feinberg

...is here; Sheila is quoted.

--CJR

Chamallas on Vicarious Liability in Sex Cases

Martha Chamallas (Ohio State) has posted to SSRN Vicarious Liability in Torts:  The Sex Exception.  The abstract provides:

The vicarious liability of employers for the torts of their employees is one of the most firmly established principles in the common law world. Yet in cases of sexual abuse or exploitation, U.S. courts have created an exception to the rule, applying the familiar “course and scope of employment” requirement far more restrictively. Despite growing awareness that sexual abuse constitutes a predictable risk in many workplaces, the sex exception has stubbornly persisted, even in jurisdictions that embrace new, more “liberal” approaches to vicarious liability centered on “enterprise risk.”  This article, based on the 2013 Valparaiso University Monsanto Lecture on Tort Law and Jurisprudence, examines the confusing body of U.S. cases, finding a double standard in the way courts approach sex abuse cases as compared to cases of intentional non-sexual violence. Drawing upon feminist theory, cognitive psychology and interdisciplinary scholarship on institutional culture, the article critiques the U.S. version of sexual exceptionalism and proposes a new rule that would cover the most common cases of sexual abuse.

--CJR

VA: $8M in Case of Woman Who Froze to Death

A Virginia jury in Montross has ordered a restaurant owner to pay $8M to the daughters of the man's wife, who froze to death on their property in 2010.  The woman's body was found partially covered with snow about 80 yards from the couple's house.  The jury foreman reported that jurors believed the woman's death could have been prevented if defendant/husband had done more to find her; defendant did not report her disappearance for 48 hours.  Virginia Lawyers' Weekly has the story.

--CJR