Wednesday, December 31, 2014
Tuesday, December 30, 2014
For the eighth time since 2008, Louisiana-based LAMMICO is returning a percentage of premiums to its customers. The physician-owned company will return five percent of premiums during the first quarter of 2015. The Daily Journal has details.
Monday, December 29, 2014
A panel created by the General Assembly has recommended a compensation fund for babies suffering neurological injuries at birth. Virginia and Florida set up similar funds years ago. The Baltimore Sun has the story.
Saturday, December 27, 2014
Wednesday, December 24, 2014
Rick Rinaldi (EiC of the Widener Law Journal) has posted his Note, Fracturing the Keystone: Why Fracking in Pennsylvania Should Be Considered an Abnormally Dangerous Activity, to SSRN. The abstract provides:
During the early morning hours of December 15, 2007, Thelma and Richard Payne, an elderly couple, were startled awake when an explosion in their basement dislodged their Ohio home from its foundation. Their homestead for more than a half-century was completely destroyed due to nearby hydraulic fracturing (“fracking”) operations. In a similar instance in 2010, high levels of methane were discovered in a Pennsylvania family’s basement. The discovery came after Michael Leighton found his drinking water bubbling over the top of his 100-foot well and twenty small geysers on his property spewing water mixed with methane into nearby streams. Again the likely culprit was a nearby fracking operation. Such events epitomize just some of the risks associated with fracking, which have led many concerned citizens to vehemently voice their opposition to the practice in the Marcellus Shale region. Analyzing those risks, this comment argues that unconventional horizontal fracking should be considered an "abnormally dangerous" activity in Pennsylvania because such a classification is both legally appropriate and paramount in mitigating the future harms of fracking. Part II(A) describes the geological characteristics of the Marcellus shale deposit, including its potential gas reserves and the technological challenges of extracting it. Part II(B) provides a detailed description of the recently pioneered fracking procedure and the environmental risks it presents. Part III discusses the current regulatory framework that applies to fracking in Pennsylvania and discusses the failures of that framework to sufficiently protect the public. Part IV traces the common law development of strict liability, applies the current rule to fracking, and discusses the negative results of alternatively analyzing fracking under a negligence regime. Part V concludes that fracking will become increasingly safer through the imposition of strict liability, which will mitigate the negative environmental impacts of the industry, and in time, allow for expanding gas production through safer methods.
Tuesday, December 23, 2014
Many jurisdictions have fewer civil than criminal jurors. On Friday, Illinois Governor Pat Quinn signed legislation to reduce civil juries from 12 to 6, effective June 1, 2015. In cases filed prior to June 1, the parties are entitled to a jury of 12. Public Act 098-132 is here. (Via The National Law Review)
Monday, December 22, 2014
Claudia Landeo (Alberta-Department of Economics) has posted to SSRN Law and Economics and Tort Law: Theory and Experiments. The abstract provides:
In tort litigation, delayed settlement or impasse imposes high costs on the parties and society. Litigation institutions might influence social welfare by affecting the likelihood of out-of-court settlement and the potential injurers' investment in product safety. An appropriate design of litigation institutions and tort reform requires good knowledge of the factors that affect litigants' behavior. The combination of theoretical and experimental law and economics, which represents the cornerstone of the application of the scientific method, might enhance our understanding of the effects of litigation institutions and tort reform on settlement and deterrence.
We evaluate the interaction between theoretical and experimental law and economics in the study of tort litigation institutions. Special attention is devoted to liability, litigation and tort reform institutions, and behavioral factors that might affect impasse. Our analysis suggests a productive interaction between theoretical and experimental law and economics. In particular, findings from experimental economics work on litigation institutions indicate the presence and robustness of cognitive biases, and provide evidence of the effects of litigants' biased beliefs on the likelihood of impasse. These findings have motivated the construction of new economic models of litigation involving more empirically-relevant assumptions about litigants' beliefs. As a result of the application of the scientific method, the contributions of law and economics to the design of legal institutions might be strengthened.
Friday, December 19, 2014
Sean Williams (Texas) has posted to SSRN Dead Children: Tort Law and Investments in Child Safety. The abstract provides:
Should tort law treat cases of dead children differently than cases of dead adults? A diverse set of research — including bioethics studies, contingent valuation, and analyses of consumer behavior — all suggest that the answer is Yes. That research coalesces around a single pattern: people are willing to invest about twice as many resources in protecting children as they are in protecting adults, even when each are equally vulnerable to the relevant risk. This pattern extends to non-fatal risks as well, even those as mundane as the risk of catching a cold. These investment patterns suggest that, as a prima facie matter, a deterrence-oriented tort system should impose standards of care that are about twice as stringent for children as for adults, and award tort damages that are about twice as high for child victims. These insights — generated by focusing solely on deterrence — remain robust when we instead view tort law through the lenses of corrective justice or civil recourse. Each of these individual justice accounts of tort law is consistent with child exceptionalism, although some require fewer caveats than others. Such child exceptionalism is also consistent with plausible and attractive moral theories despite the fact that it could be framed as a deviation from formal equality. In addition to laying out the empirical and normative cases for heightened standards of care and heightened damages, the Article offers a set of tools that courts and legislatures can use to move tort law toward these goals.
Thursday, December 18, 2014
Back in July, I posted about a case in front of the Pennsylvania Supreme Court over whether the statutory component of bad faith is assignable. The issue, specifically, was whether the statutory bad faith remedies, sounding in tort, are, like the common law bad faith contract action, assignable. On Monday, the court answered in the affirmative. The court stated:
We recognize that the policy considerations (which are ably developed in the
arguments of the litigants and their amici) are mixed in character. On balance,
however, we find that consideration of the occasion and necessity for Section 8371, the
object to be attained, the previous legal landscape, as well as the consequences of our
interpretation, favor Wolfe’s position. Centrally, we simply do not believe the General
Assembly contemplated that the supplementation of the redress available for bad faith
on the part of insurance carriers in relation to their insureds would result either in a
curtailment of assignments of pre-existing causes of action in connection with
settlements or the splitting of actions. Certainly, if we are incorrect in our assessment in
this regard, the General Assembly may seek to implement curative measures pertaining
to future cases, subject to constitutional limitations.
Widener alumnus Scott Cooper co-authored an amicus brief, cited in the opinion, on behalf of the Pennsylvania Association for Justice.
Wednesday, December 17, 2014
Like many jurisdictions, Indiana has a tort claims act. Pursuant to Indiana's version, the maximum total payout to victims for any single event is $5M. In 2011, a stage at the Indiana State Fair collapsed; 62 victims have been paid damages from the incident. One of the injured, 10-years-old at the time, opted to sue the state. On Monday, an appellate court heard arguments that the cap is unconstitutional. In a filing, plaintiff's lawyers stated:
“The $5 million cap, both on its face and as applied, violates Plaintiff’s constitutional rights, which provides in relevant part [that] all courts shall be open, and every person for injury done to him and his person, property or reputation, shall have remedy by due course of law."
WISHTV.com has the story.
Tuesday, December 16, 2014
The Harvard Law School Program on Private Law is seeking applicants for a post-doctoral fellowship. Information is here: Download PostdoctoralFellowshipinPrivateLawCallforApps
Monday, December 15, 2014
A California appellate court has concluded there is no duty on the part of a premises owner to warn of take-home asbestos dangers. The court was concerned about "limitless liability." A dissenter argued the Rowland factors establish a duty. Legal Newsline has the story.
Wednesday, December 10, 2014
Deborah Brake (Pittsburgh) has posted to SSRN Tortifying Retaliation: Protected Activity at the Intersection of Fault, Duty, and Causation. The abstract provides:
In University of Texas Southwestern Medical Center v. Nassar, the Supreme Court broke its string of plaintiff victories in the eight retaliation cases it has decided since 2005. In its 2013 decision in that case, the Court rejected a mixed motive framework for Title VII’s retaliation provision, a part of the statute that Congress did not amend in 1991 when it adopted the motivating factor standard for proving discrimination under Title VII. For help construing what “because of” means in the retaliation claim, the Court looked to tort law, which it read as requiring plaintiffs to prove but-for causation to establish causation in fact. In doing so, the Court extended its turn to tort law in deciding statutory employment discrimination cases into the field of retaliation. The Court’s tort analogy in Nassar seemingly invites courts to explore additional tort-inspired limits on recovery. Even before Nassar, however, lower courts had crafted doctrines sounding in tort to limit what counts as protected activity under the statute. Two of these doctrines bear a strong resemblance to tort law. First, the Title VII reasonable belief doctrine draws on tort-inspired concepts of plaintiff fault to limit recovery for retaliation. Second, lower courts have recently restricted the class of persons protected by the retaliation claim, effectively injecting a tort-like no-duty rule into the employer’s obligation toward employees who have internal anti-discrimination responsibilities. This Article uses the lens of tort law to explain and critique these retaliation doctrines, with an eye toward pressing the tort analogy in a new direction, one that is more deeply grounded in employer fault.
Tuesday, December 9, 2014
Michael Stein (W&M), Christopher Guzelian (Thomas Jefferson) & Kristina Guzelian (Thomas Jefferson) have posted to SSRN Expert Testimony in Nineteenth Century Malapraxis Actions. The abstract provides:
Medical negligence evolved as an independent tort during the nineteenth century. Despite pervasive professional concerns about its ethicality, paid medical expert testimony became routine. In a manner strikingly similar to modern commentary, prominent jurists disparaged testimony for commonly relating anecdotal experience rather than scientifically derived knowledge. Also notable among cases was a dominant tendency to rule for medical practitioners when both parties presented expert testimony. Conversely, suits resolved in favour of whichever party unilaterally retained a testifying expert.
Monday, December 8, 2014
A family with a 5-year-old son was staying in a second-floor room at a hotel in La Jolla. The mother had asked for a ground-floor room, but none were available. The family opened the window to hear the ocean. While they were distracted, their son pushed through the screen, fell to the ground, and suffered serious injuries. The hotel had safety bars in many of the windows, including other windows in the same room, but not at the particular window through which the child fell.
The parents filed suit alleging premises liability. The hotel filed a motion for summary judgment and the trial court granted it. The Court of Appeal, Fourth Appellate District reversed. The court held the hotel had failed to carry the burden on summary judgment that it had no duty. The court found such an incident was reasonably foreseeable and, in the process, indicated that compliance with building codes was essentially irrelevant. The opinion is here. JD Supra comments here.
Thursday, December 4, 2014
The Ohio General Assembly is considering a bill to expand the state's apology immunity statute in med mal cases to include admissions of fault. The bill passed the state House last week and is expected to get hearings in the Senate prior to the end of the lame-duck session this month. The Akron Beacon Journal has the story.
Wednesday, December 3, 2014
If you have 7 or fewer years of teaching experience, you are eligible for the Yale/Stanford/Harvard Junior Faculty Forum, this year including Torts as a subject matter. The deadline is March 1, 2015. Details are here: Download JFF final call for submissions
Tuesday, December 2, 2014
Monday, December 1, 2014
As part of the overhaul at the VA, a website is being created so veterans can check if their doctors have ever been sued for malpractice and found at fault. CBS Los Angeles has the story, including data that is not surprising given this story from last year.