TortsProf Blog

Geistfeld on the Connection between Tort and Regulation

Mark Geistfeld (NYU) has posted to SSRN The Tort Entitlement to Physical Security as the Distributive Basis for Environmental, Health, and Safety Regulations.  The abstract provides:

In a wide variety of contexts, individuals face a risk of being physically harmed by the conduct of others in the community. The extent to which the government protects individuals from such harmful behavior largely depends on the combined effect of administrative regulation, criminal law, and tort law. Unless these different departments are coordinated, the government cannot ensure that individuals are adequately secure from the cumulative threat of physical harm. What is adequate for this purpose depends on the underlying entitlement to physical security. What one has lost for purposes of legal analysis depends on what one what was entitled to in the first instance.  For example, different specifications of the entitlement can produce substantially different measures of cost that fundamentally alter the type of safety regulations required by cost-benefit analysis, even for ordinary cases involving low risks.  Consequently, any mode of safety regulation that requires an assessment of losses or costs ultimately depends on a prior specification of entitlements. For reasons of history and federalism, the entitlement to physical security in the United States can be derived from the common law of torts. In addition to establishing how costs should be measured, the tort entitlement also quantifies any distributive inequities that would be created by a safety standard and shows how they can be redressed within the safety regulation, thereby enabling federal regulatory agencies to conduct cost-benefit analyses that account for matters of distributive equity as required by Executive Order.  When applied in this manner, the tort entitlement to physical security promotes substantive consistency across the different departments of law by serving as the distributive basis for environmental, health, and safety regulations that operate entirely outside of the tort system.

--CJR

Coomer v. Kansas City Royals Decided

On Tuesday, the Supreme Court of Missouri issued an opinion in Coomer, the case of the fan injured by a flying hot dog.  The court ruled that getting hit with a hot dog is not an inherent risk of baseball and the trial judge should not have allowed an assumption of risk instruction.  The opinion is here.  Alberto Bernabe, who has followed the case, has comments here.  Michael McCann wrote a guest post for TortsProf in 2010 that foreshadowed the holding.

--CJR

Principles of Liability Insurance Conference

at Rutgers-Camden; details here:   Download Call for Papers.

--CJR

PA: More Med Mal Declines

There is new med mal data from my home state of Pennsylvania.  Since the base years of 2000-2002, med mal cases in PA have declined 43%, with the biggest drop occuring in Philly (68%).  In 2003, a certificate of merit requirement and venue restrictions went into effect.  In 2013, 77% of jury verdicts were for the defense; 2 of 5 non-jury verdicts were for the defense.

--CJR

CA: No Duty for Business to Provide AED

The California Supreme Court held yesterday that a business has no common law duty to provide automatic defibrillators in anticipation that a customer will experience heart failure while on the premises.  The decision (Verdugo v. Target) is here:  Download S207313.

--CJR

Iowa State's Center for Agricultural Law & Taxation

In 2006, Iowa State created the Center for Agricultural Law & Taxation.  The Center's mission is to provide information to agricultural producers in important areas such as regulation and taxation.  One of the Center's points of focus is tort law.  Run by Roger McEowen, the Center keeps up with tort decisions and analyzes how they will impact agriculture.  For example, the Iowa Supreme Court recently ruled that neither the federal Clean Air Act nor the Iowa counterpart preempts common law claims of negligence, nuisance, and trespass against a grain processor (Freeman v. Grain Processing Corp., No. 13-0723, 2014 Iowa Sup. LEXIS 72 (Iowa Sup. Ct. Jun. 13, 2014).  The Center's Kristine Tidgren analyzed the opinion and made the analysis available to producers (and the public). 

Updated:  The Center just added an annotation today about the Wisconsin Supreme Court's holding that spraying herbicides is an inherently dangerous activity and, therefore, a property owner may be liable for an independent contractor/sprayer's torts.

--CJR

NY Launches Statewide Med Mal Settlement Program

New York is expanding a program that uses specially trained judges to negotiate early settlements in med mal cases.  The uncertainty, delay, and transaction costs that undermine tort law are especially bad in med mal, so this program deserves attention.  The Daily News has details.

--CJR

JTL: Tribute to Jeffrey O'Connell

Volume 6 of the Journal of Tort Law will contain a tribute to Jeffrey O'Connell, who died in January of 2013.  Contributors are:  Kenneth Abraham (Virginia), Nora Engstrom (Stanford), Mark Geistfeld (NYU), Bob Rabin (Stanford), Adam Scales (Rutgers-Camden), Tony Sebok (Cardozo), Zoe Sinel (Western Ontario), Ted White (Virginia), and me.  John Goldberg graciously arranged the issue, which will appear in spring 2015.

--CJR

Carey on Domestic Violence Torts

Camille Carey (New Mexico) has posted to SSRN Domestic Violence Torts:  Righting a Civil Wrong.  The abstract provides:

Tort law, especially personal injury law, has become an integral aspect of American society.  Domestic violence injuries – including physical injury, pain and suffering, and death – have been conspicuously absent from the development of tort law.  The common law history of chastisement, coverture, and spousal immunity contributed to the current dearth of domestic violence tort claims.  Today tort law offers a number of underused claims that can be used to address domestic violence harms.  Victims can use existing common law causes of action – such as battery, assault, and intentional infliction of emotional distress – to sue their abusers for abusive conduct.  Specific causes of action for domestic and gender-motivated violence also offer ready remedies to victims of domestic violence.  Through these actions, victims can achieve financial compensation for harm, obtain therapeutic outcomes, and seek deterrence of the abuser’s conduct.  Domestic violence tort claims should be pursued aggressively and frequently and should become a prominent approach to addressing domestic violence.

 

--CJR

Perry & Zarsky on Liability for Online Anonymous Speech

Ronen Perry & Tal Zarsky (Haifa) have posted to SSRN Liability for Online Anonymous Speech:  Comparative and Economic Analyses.  The abstract provides:

This is a pre-edited draft of of an article presented in the special session of the Annual Conference on European Tort Law. The article examines various models for handling the problem of online anonymous defamation from comparative and economic perspectives. The comparative analysis reveals four main paradigms. The US model bars content providers’ indirect liability, but facilitates identification of the speaker. The Israeli model recognises content providers’ fault-based liability but does not provide procedural tools for identifying the speaker. The EU framework enables the victim to request identification of the speaker, and at the same time bring an action against the content provider. Although there is variance among Member States, this model seems to comply with the relevant Directives and European court decisions. The recently-adopted English model (‘residual indirect liability’) enables the victim to pursue a claim against the speaker and, if the speaker is unavailable, imposes liability on the content provider.

From an economic perspective, the main problem with exclusively direct liability is that the special effort in identifying and pursuing the anonymous speaker. Additional, yet probably less serious, problems are the high likelihood of judgment-proof defendants and high transaction costs which prevent a contractual transfer of the burden to the content provider when it is the cheapest cost avoider. The drawbacks of exclusively indirect liability are the relatively high cost of precautions, the fact that content providers do not capture the full social benefit of their activity, and the asymmetric legal response to errors with respect to ‘defamatoriness.’ Concurrent liability of the speaker and the content provider overcomes the high cost of identifying and pursuing anonymous speakers, and the problem of judgment-proof defendants. It also induces content providers to facilitate identification of anonymous speakers, increasing the likelihood of internalisation by primary wrongdoers. But concurrent liability has potentially conflicting effects on deterrence, and may result in an aggregation of the implementation costs of both direct and indirect liability. The residual indirect liability regime eliminates (or at least reduces significantly) the need for monitoring, and prevents over-deterrence associated with unaccounted benefits and asymmetric response to errors. It also incentivises content providers to reduce the cost of identifying anonymous wrongdoers, and does not raise the characteristic problems of multiple-defendants. This model may raise some difficulties but they seem either insignificant or solvable, making the English model (with some modifications) the most efficient.

--CJR

JOTWELL Torts: Chamallas on Sheley on Informed Consent

At JOTWELL, Martha Chamallas (Ohio State) reviews Erin Sheley's (GW) Rethinking Injury:  The Case of Informed Consent.

--CJR

Victims of 2004 GM Crash Sue to Reopen Case

Victims of a Saturn Ion crash in 2004 are suing GM to reopen a case over the death of one person and serious injuries of another.  GM settled the case for $75,000 and argued the driver was 100% to blame.  Now lawyers argue the case should be reopened in light of the recall of defective switches in many of GM's cars, including the Ion.  The Chicago Tribune has the story.

--CJR

Seattle Doctor Suspended for Sexting During Surgery

His malpractice premiums may rise next year.  WaPo has details.

--CJR

Two by Sharkey on the Role of Agencies

Cathy Sharkey (NYU) has posted two pieces to SSRN.  First up is Tort-Agency Partnerships in an Age of Preemption.  The abstract provides:

At the core of the tort preemption cases before the U.S. Supreme Court is the extent to which state law can impose more stringent liability standards than federal law. The express preemption cases focus on whether the state law requirements are “different from, or in addition to” the federally imposed requirements. And the implied conflict preemption cases examine whether the state law standards are incompatible (impossibility preemption) or at least at odds (obstacle preemption) with the federal regulatory scheme.

But the preemption cases in the appellate pipeline — what I shall term the “second wave” of preemption cases — address a separate analytic question. Their focus is less on the substantive aspects of regulatory standards, and more on their enforcement. When can state tort law impose substantive duties or obligations that are “parallel” to federal requirements without thereby encroaching upon a federal agency’s discretionary enforcement prerogative? This is the new frontier in products liability preemption.

My proposed model suggests that courts facing these new issues should solicit input from federal agencies before resolving them. The model thereby offers a hybrid private-public model for the regulation of health and safety. It advocates an extension of my “agency reference model” to the “enforcement preemption” context: courts should place more emphasis on FDA input when deciding whether tort requirements are “parallel” to federal dictates, and (perhaps even more so) whether, even if they are, they nonetheless infringe on the federal agency’s discretionary enforcement prerogatives. Courts would thus seek guidance from federal agencies to determine whether a private right of action exists for the enforcement, via state law claims, of federal regulations.

Next is Agency Coordination in Consumer Protection, and the abstract provides:

The federalization of consumer protection has created thorny issues of agency coordination.  When multiple federal agencies interpret and enforce the same statute, should a single agency’s interpretation be accorded Chevron deference? Should it matter whether it is in synch, or at odds, with its fellow agencies?  This Article explores two agency coordination strategies that point in opposite directions. The first, a balkanization strategy, attempts to overcome the overlapping agency jurisdiction problem by urging agencies to create separate, non-overlapping spheres of authority to thereby regain Chevron deference due the agency that reigns supreme. We can expect “agency self-help measures” that stake out respective turfs to emerge from this strategy.  Courts have accepted the balkanization approach — carving out discrete fiefdoms from spheres of overlapping agency jurisdiction — and may accept it more readily as the jurisprudence after City of Arlington develops with regard to agency interpretations of jurisdiction. 

The second (and more novel) strategy, a model of judicial review as agency coordinator, exploits (rather than constrains) overlapping agency jurisdiction. Under this model, when faced with an interpretation by an agency that operates in shared regulatory space, courts would solicit input from the other relevant agencies. And, to the extent that there is agreement among the different agencies, Chevron deference would be especially warranted (regardless of whether all of those agencies were parties before the court), in sharp contrast to certain courts’ blanket stance that Chevron deference is inappropriate when multiple agencies interpret the same statute.

--CJR

Feinman Wins Gold Medal for Distinguished Service from NJAJ

Jay Feinman (Rutgers-Camden) has won the Gold Medal for Distinguished Service from the New Jersey Association for Justice.  Details here.

--CJR

JETL: Volume 5, Issue 1

Now Available:

Journal of European Tort Law, vol 5 issue 1 (2014)

Articles:

Daily Wuyts ‘The Product Liability Directive More than two Decades of Defective Products in Europe’ (2014) 1 JETL 1

Louis Visscher  ‘Time is Money? A Law and Economics Approach to ‘Loss of Time’ as Non-pecuniary Loss’ (2014) 1 JETL 35

Chunyan Ding ‘Development of Employer’s Vicarious Liability: A Chinese Perspective’ (2014) 1 JETL 67

Case Commentaries:

Piotr Machnikowski ‘Sufficiently Serious Breach of a Rule of Law Intended to Confer Rights on Individuals’ (2014) 1 JETL 98

Janno Lahe and Irene Kull ’ Motor Vehicle Operational Risk and Awarding Damages in the Event of a Traffic Accident’ (2014) 1 JETL 105

Book Reviews:

Gert Brüggemeier ‘Michael Lobban/Julia Moses (eds), The Impact of Ideas on Legal Development(Cambridge University Press, 2012), Comparative Studies in the Development of the Law of Torts in Europe’ (2014) 1 JETL 121

Mark Lunney ‘Paul Mitchell (ed), The Impact of Institutions and Professions on Legal Development (Cambridge University Press, 2012), Comparative Studies in the Development of the Law of Torts in Europe’ (2014) 1 JETL 125

Anthony Sebok 'John Bell/David Ibbetson, European Legal Development: The Case of Tort(Cambridge University Press, 2012), Comparative Studies in the Development 2014) 1 JETL 129

--CJR 

Restatement of Intentional Torts: Transferred Intent

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.

§ 110. Transferred Intent

(a) For purposes of liability for battery, purposeful infliction of bodily harm,

assault, or false imprisonment, an actor shall be deemed to satisfy the intent

required for the tort if the actor’s intent is directed at causing the relevant tortious

consequence to a third party, rather than to the plaintiff, but the actor’s conduct

causes that consequence to the plaintiff.

(b) For purposes of liability for battery, an actor shall be deemed to satisfy

the intent required if the actor either intends to cause a contact with the person of

another or intends to cause the other to apprehend that a harmful or offensive

contact with his or her person is imminent.

(c) For purposes of liability for assault, an actor shall be deemed to satisfy

the intent required if the actor either intends to cause a contact with the person of

another or intends to cause the other to apprehend that a harmful or offensive

contact with his or her person is imminent.

(d) The liability of an actor under rules (a), (b), and (c) is subject to the

ordinary tort-law requirement that the actor’s conduct must be a factual cause of

the relevant tortious consequence within the scope of the actor’s liability.

--CJR