TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Friday, February 27, 2015

JTL: "Tort, No-Fault and Real-World Compensation," A Volume in Honor of Jeffrey O'Connell

The next issue of the Journal of Tort Law is a tribute to Jeffrey O'Connell, who died in January of 2013.  From the Introduction:

O’Connell’s overriding goal was to make compensation more readily available to the injured. He saw traditional tort law as dilatory, unfair, inefficient and hence inadequate to address the pressing needs of injury victims. In pursuing reform, he necessarily took a stand in the theoretical debate about the purposes of tort law. In the typical case, he believed, tort should be compensatory; matters of individualized justice or deterrence were secondary. Given the realities of tort litigation as he saw them, O’Connell believed justice and deterrence goals were both harder to accomplish and harder to measure than a compensation objective. On this understanding, tort law is best justified as insurance and yet, for that very reason, was ripe for radical reform, given its deficiencies. At heart, O’Connell was deeply practical and pragmatic. He wanted his ideas to matter for the world and he valued the tangible good of victim compensation over what he took to be more speculative goods.

The papers that follow reference O’Connell’s pragmatism, but also branch out to touch on many different aspects of his work. Robert Rabin finds that mass tort and disaster relief claims are today being handled on terms congruent with O’Connell’s efforts to realign the tort system to focus on compensation. Kenneth Abraham and G. Edward White combine O’Connell’s love of biography with his interest in tort law to study the life and influence of a scholar who was in many ways a forerunner and kindred spirit: William Prosser. Nora Freeman Engstrom, in the spirit of O’Connell’s critiques of tort, turns the tables by subjecting no-fault programs to careful analysis. Anthony Sebok finds one of O’Connell’s early first-party insurance proposals relevant to currently heated debates over litigation finance. Zoë Sinel challenges O’Connell’s claim that tort is properly understood and assessed by its ability to deliver compensation. Finally, Christopher Robinette finds in O’Connell’s scholarship guidance as to how to begin distinguishing those tort suits worthy of individualized justice treatment from those better suited to serve a compensatory objective.

The pieces are available at De Gruyter's "Ahead of Print" section, though I believe Tony's and Nora's articles are not yet included.

February 27, 2015 in Scholarship, TortsProfs | Permalink | Comments (0) | TrackBack (0)

Thursday, February 26, 2015

Thomas on GM, Discovery, and Juries

Over at Save Our Juries, Suja Thomas (Illinois) has a post about the role of discovery in the GM ignition litigation and a proposal to change the discovery rules.  Pursuant to the proposed rule, parties would be able to resist discovery on the grounds that the request is not "proportional" to "the needs of the case."

February 26, 2015 in Weblogs | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 25, 2015

VT: "Spite Fence" Standard Established

In a case of a boundary dispute turned ugly (mooning, public urination, etc.), the Vermont Supreme Court adopted the dominant-purpose test for determining the existence of a spite fence.  Moreover, the standard was met when the fence blocked the view of a mountain (from a bed-and-breakfast property), caused backed-up drainage, and contained signs on the side facing the neighbor's property.  The case is Obolensky v. Trombley.  Coverage from Roger McEowen at the Iowa State Center for Agricultural Law and Taxation is here.

February 25, 2015 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 24, 2015

IL: Bill Seeks to Limit "Open and Obvious" Premises Exception

The West Virginia Senate recently passed a bill reinstating the "open and obvious" doctrine in premises liability.  In Illinois, a bill introduced in the House would go in the opposite direction, restricting consideration of open and obvious conditions to the trier of fact on the issue of comparative fault.  Thus, a judge would not be able to consider open and obvious on the duty issue.   The National Law Review has the story

February 24, 2015 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Monday, February 23, 2015

IN: Civil Immunity for Medical Volunteers

Current law in Indiana restricts medical providers from volunteering their services unless they have malpractice insurance.  Similar to laws in several other states, House Bill 1145:

would establish a licensing procedure for both volunteers and locations at which medical services can be offered. Volunteers must sign a waiver and be working without compensation at a licensed facility in order for civil immunity to be applicable.

Exceptions to the malpractice immunity will be made in instances where gross negligence or willful misconduct has taken place or if a nonapproved procedure is performed by a volunteer.

Indiana Daily Student has the story.

February 23, 2015 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Sunday, February 22, 2015

WV: Senate Reconsiders Punies Cap

On Wednesday, on an 18-16 vote, the Senate defeated a punitive damages cap.  On Thursday, on a 26-8 vote, the Senate passed a bill that capped damages at $500,000 or four times compensatory damages (up from 3x in the bill defeated a day earlier), whichever is greater.  WV MetroNews has the story.

February 22, 2015 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Saturday, February 21, 2015

Defences in Tort by Dyson, Goudkamp, & Wilmot-Smith

Defences in Tort

Edited by Andrew Dyson, James Goudkamp and Frederick Wilmot-Smith 

This book is the first in a series of essay collections on defences in private law. It addresses defences to liability arising in tort. The essays range from those adopting a primarily doctrinal approach to others that examine the law from a more theoretical or historical perspective. Some essays focus on individual defences, while some are concerned with the links between defences, or with how defences relate to the structure of tort law as a whole. A number of the essays also draw upon concepts and literature that have been developed mainly in relation to the criminal law and consider their application to tort law. The essays make several original contributions to this complex, important but neglected field of academic enquiry.

The Editors

Andrew Dyson is an Assistant Professor in Private Law at the London School of Economics and Political Science.

James Goudkamp is a Fellow of Keble College, Oxford and an Associate Professor in the Oxford Law Faculty.

Frederick Wilmot-Smith is a Prize Fellow at All Souls College, Oxford and Lecturer in Law at Balliol College.

Book Details

February 2015    452pp   Hbk   9781849465267    RSP: £75 / US $150

20% DISCOUNT PRICE: £60 / US$120

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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.

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February 21, 2015 in Books | Permalink | Comments (0) | TrackBack (0)

Friday, February 20, 2015

Barnes & Burke on How Policy Shapes Politics Regarding Compensation

Jeb Barnes (USC-Political Science) and Thomas Burke (Wellesley-Political Science) have published How Policy Shapes Politics:  Rights, Courts, Litigation, and the Struggle Over Injury Compensation

How Policy Shapes Politics analyzes the politics of injury compensation in the United States, a field in which judicialized policies operate side-by-side with bureaucratized social insurance programs. The authors conclude that the choice between judicialized and bureaucratized injury compensation policies can have powerful political consequences.  

Litigation, by dividing social interests into victims and villains, winners and losers, generates a fractious, chaotic politics in which even seeming allies-business and professional groups on one side, injured victims on the other-can become divided amongst themselves. By contrast, social insurance programs that compensate for injury bring social interests together, narrowing the scope of conflict and over time producing a more technocratic politics. 

By comparing the political trajectories of different types of policies, some more court-centered, others less so, the authors probe the consequences of arguably one of the most significant developments in post-World War II government, the increasingly prominent role of courts, litigation, and legal rights in politics.

February 20, 2015 in Books, Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, February 19, 2015

WV: Punies Cap Fails in Senate

West Virginia has been an extremely busy place for tort law this month.  Yesterday the Senate declined to enact a punies cap of $500,000 or three times compensatory damages, whichever is greater.  The vote was 18-16, with two Republicans joining the Democrats in opposition.  WV MetroNews has the story.

February 19, 2015 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

WV: Senate Passes Bill Reinstating "Open and Obvious" Doctrine in Premises Cases

On Tuesday, the state Senate passed a bill reinstating the "open and obvious" doctrine in premises liability cases on a 29-3-3 vote.  The Beckley Register-Herald has a short piece here.

February 19, 2015 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 18, 2015

Cardi on Duty Analysis and Employment Discrimination

Jonathan Cardi (Wake Forest) has posted to SSRN The Role of Negligence Duty Analysis in Employment Discrimination Cases.  The abstract provides:

In a concurring opinion in the 1989 decision Price Waterhouse v. Hopkins, Justice O’Connor first referred to Title VII of the Civil Rights Act as a "statutory employment 'tort.'" Since then, the Supreme Court and federal courts generally have reified Justice O’Connor’s words, gradually altering the legal perception of employment discrimination legislation from its intended nature as a set of civil rights statutes aimed at ridding the nation of a pernicious social problem to a narrowly tailored provision of compensation for private wrongs. Courts have done so, in part, by importing doctrine from the common law of torts — particularly in the realm of factual causation and scope of liability — to interpret and fill supposed gaps in the statutes. This Article asserts that courts’ embrace of tort concepts runs even deeper than they have expressly stated — that courts have drawn not only upon the concepts of causation and scope of liability (proximate cause), but also engaged the question of whether employers owe a duty not to take allegedly discriminatory actions. The Article urges that use of duty reasoning is problematic for two torts-internal reasons. First, the nature of wrongfulness in employment discrimination cases is not analogous to negligence or, indeed, to any tort. It is therefore improper for courts to apply tort conceptions of wrongfulness to answer questions of liability in employment discrimination cases. Second, if employment discrimination claims are, as the Supreme Court has referred to them, statutory torts, then drawing upon common-law duty reasoning is improper, as it is an incorrect application of the law of statutory torts.

February 18, 2015 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 17, 2015

TX: Evidence of Seat Belt Non-Use is Admissible to Apportion Responsibility

The Texas Supreme Court case, which was announced on Friday, is Nabors Wells Services, Ltd. v. Romero.  The case (pdf) is here:  Download TX Sup Ct = Seat Belt Admiss  From the opinion:

We hold relevant evidence of use or nonuse of seat belts, and relevant evidence of a

plaintiff’s pre-occurrence, injury-causing conduct generally, is admissible for the purpose of

apportioning responsibility under our proportionate-responsibility statute, provided that the

plaintiff’s conduct caused or was a cause of his damages.

Thanks to Jill Lens (Baylor) for the tip.

February 17, 2015 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Monday, February 16, 2015

Ogden & Hylton on Incentives to Take Care Under Contributory and Comparative Fault

Benjamin Ogden (Boston University-Economics) and Keith Hylton (Boston University) have posted to SSRN Incentives to Take Care Under Contributory and Comparative Fault.  The abstract provides:

Previous literature on contributory versus comparative negligence has shown that they reach equivalent equilibria. These results, however, depend upon a stylized application of the Hand Formula. We show that, under a correct application of the Hand Formula, there are differences between the two regimes: under bilateral harm, comparative negligence generates greater incentives for care, but this care occurs only when care is not socially optimal. By contrast, under unilateral harm or asymmetric costs of care, contributory negligence creates more care, but only when such care is not socially optimal. Therefore, it is possible to socially rank negligence regimes depending upon the symmetry of potential harm and costs of care. We discuss a potential reform the court could undertake, the Retrospective Negligence Test, that when applied in the case of bilateral harm would make comparative negligence optimal.

February 16, 2015 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, February 13, 2015

WV: Bill to Extend Med Mal Caps to Nursing Homes Sent to House Floor

The House Judiciary Committee approved a bill to extend West Virginia's $500,000 non-economic damages cap in med mal cases to nursing homes.  The Senate has already passed the bill.  WV Metro News has the story

February 13, 2015 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Thursday, February 12, 2015

JOTWELL Torts: Hylton on Klerman & Reilly

At JOTWELL, Keith  Hylton has posted his review of Daniel Klerman & Greg Reilly's Forum Selling.

February 12, 2015 in Scholarship, Weblogs | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 11, 2015

AZ: Learned Intermediary Doctrine Is Inconsistent With Uniform Contribution Among Tortfeasors Act

In Watts v. Medicis Pharmaceutical Corp., an intermediate appellate court in Arizona reversed the dismissal of plaintiff's complaint, holding that the Uniform Contribution Among Tortfeasors Act abrogates the learned intermediary doctrine.  The opinion is here:  Download AMANDA WATTS, an adultindividual, PlaintiffAppellant, v. MEDICIS PHARMACEUTICAL CORPORATION.  Thanks to Bob Bohrer (Cal Western) for the tip.

February 11, 2015 in Current Affairs, Products Liability | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 10, 2015

WV: Conflicting Bills on Several Liability

In West Virginia, the Senate and House have passed different reforms regarding liability by multiple tortfeasors.  Currently in West Virginia , if a defendant adjudged at fault can't pay its share of damages and another party was adjudged more than 30% responsible, the second party may be required to pay all the remaining damages.  The Senate bill would still require other parties to pay for damages the insolvent entity can't cover, but the amount of damages required to be covered would depend on the amount the solvent party was adjudged at fault.  The House bill moves to pure several liability in most cases.  It will be interesting to see what comes out of conference committee.  West Virginia Pubic Broadcasting has the story

February 10, 2015 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Arguments Over SD's Med Mal Cap

In 1976, the legislature in South Dakota enacted a $500,000 non-economic damages cap in medical malpractice cases; the cap was not indexed to inflation.  The Tribune covers the cap with familiar arguments about access and fairness on one side and retaining physicians on the other.  Nora Freeman Engstrom is quoted.

February 10, 2015 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Monday, February 9, 2015

FL: Woman Shot in Common Area of Apartment Complex Loses Premises Case

In a case out of Palm Beach County, a woman who had repeatedly been told to stay off the premises was shot in the leg at a common area of an apartment complex.  Pursuant to Florida law, the premises liability status categories are invitee, discovered trespasser, and undiscovered trespasser.  The duty of care owed to the entrant on land varies with the category; the standards are negligence for invitees, gross negligence for discovered trespassers, and intentional conduct for undiscovered trespassers.  Because the plaintiff was a discovered trespasser, the apartment complex was only liable for gross negligence, which was not proved.  The Naples Daily News has the story

February 9, 2015 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Friday, February 6, 2015

KY: Medical Review Panels Bill Goes to Full Senate

The Senate Health and Welfare Committee sent to the full Senate a bill creating three-member panels to review claims before they can go to court.  The panel's findings would not be binding, but would be admissible in court.  The Senate has passed this bill before, but it has not passed in the House.   The Glasgow Daily Times has the story.  

Update:  The Senate passed the bill 24-12.

The bill is a bad idea because it adds more delay and transaction costs to an already lengthy and expensive process, without resolving anything.  Studies conclude the average med mal claim lasts about 5 years from event to resolution, with more money being used to run the system than to compensate victims.  Review panels increase the time to resolution by adding another layer of procedure.  They also increase transaction costs as lawyers and experts for both sides try to convince an additional decision maker of the merits of their case. 

To the extent reducing frivolous claims is the goal, a certificate of merit requirement would be preferable:  it is quicker and less expensive.  Moreover, reducing the length and adversarialism of the process should be the focus.  Review panels were in place in Virginia when I practiced.  Most plaintiff's lawyers simply didn't participate.  The result was admissible at trial, but so was the information that the plaintiff was not involved in the panel's decision.  The claim was delayed, but at least it was not also more expensive.

February 6, 2015 in Legislation, Reforms, & Political News | Permalink | Comments (1) | TrackBack (0)