TortsProf Blog

The Innocent Sellers Fairness Act

Twelve U.S. House members are sponsoring the Innocent Sellers Fairness Act (H.R. 1199), designed to remove liability for product injuries from sellers and keep it on manufacturers.

The bill would make it so that no seller of any product would be liable for damages, except in the following cases:

• The seller was the manufacturer of the product;
• The seller participated in the design of the product;
• The seller participated in the installation of the product;
• The seller altered, modified or expressly warranted the product in a manner not authorized by the manufacturer;
• The seller had actual knowledge of the defect in the product as a result of a recall from the manufacturer or governmental entity authorized to make such recall or actual inspection at the time the seller sold the product to the claimant;
• The seller had actual knowledge of the defect in the product at the time the seller supplied the product;
• The seller intentionally altered or modified a product warranty, warning or instruction from the manufacturer in a way not authorized by the manufacturer; and
• The seller knowingly made a false representation about an aspect of the product not authorized by the manufacturer.

A version of the bill has been in the House since 2007, but the number of sponsors has risen recently.  U.S.Glass News Network has details.

New Private Law: Posts by Goldberg & Zipursky, Hylton

Over at New Private Law, there are two recent torts posts:

John Goldberg & Ben Zipursky discuss the duty/breach distinction in a post about a recent Second Circuit decision, Munn v. Hotchkiss.

Keith Hylton jumps into the recent discussion about tort law and discriminatory damages in his post (see the comment by Ronen Avraham).

Reducing Med Mal Through Cameras in ORs?

Earlier this month, I reported on a bill in Wisconsin to allow patients to have surgeries recorded.  On Tuesday, The Washington Post (Tom Jackman) covered the idea in an article.  A sample:

Currently, re-creating what went wrong in an operating room involves a mixture of memories and whatever notes were taken at the time or shortly afterward, a vague combination that vexes families trying to get to the truth about a failed procedure or a fatal complication. Recording surgeries “offers transparency, truth and accuracy,” Ayer said, “in collecting data for the medical record and testimony. It offers data and insight for medical boards and even prosecutors. It offers oversight and policing.”

The medical industry is treading cautiously. The American Hospital Association, the American Medical Association and the American College of Surgeons all declined to comment for this article. In 2005, the AMA adopted a policy on filming patients in health-care settings — it encouraged the practice for educational purposes — but focused on patient privacy and on filming only those who give their consent.

TX: High Court Addresses Premises Liability Duties

Texas is the only state in the country that has voluntary workers' compensation; employers can subscribe to it or not as they see fit.  An employee of a non-subscribing employer, Kroger, as part of his duties, was mopping up a very slick substance in Kroger's bathroom.  He slipped and seriously injured himself.

The Fifth Circuit certified the following question concerning the premises liability claim to the Texas Supreme Court:  “Pursuant to Texas law . . . can an employee recover against a non-subscribing employer for an injury caused by a premises defect of which he was fully aware but that his job duties required him to remedy? Put differently, does the employee's awareness of the defect eliminate the employer's duty to maintain a safe workplace?” Importantly, because Texas law forbids an employer who opts out of the workers’ compensation system from asserting an employee’s contributory negligence or assumption of the risk as a defense, if Kroger owed plaintiff a duty of care, and if it breached that duty, it would be liable for the all of the damages, regardless of plaintiff’s negligence or assumption of the risk.   

The court provided the following answer to the certified question:

Under Texas law, an employee generally cannot “recover against a nonsubscribing employer for an injury caused by a premises defect of which he was fully aware but that his job duties required him to remedy.” As is the case with landowners and invitees generally, employers have a duty to maintain their premises in a reasonably safe condition for their employees, but they will ordinarily satisfy their duty as a matter of law by providing an adequate warning of concealed dangers of which they are or should be aware but which are not known to the employee. “The employee's awareness of the defect” does not “eliminate the employer's duty to maintain a safe workplace,” but with respect to premises conditions, that duty is ordinarily satisfied by warning the employee of concealed, unknown dangers; the duty to maintain a reasonably safe workplace generally does not obligate an employer to eliminate or warn of dangerous conditions that are open and obvious or otherwise known to the employee. Exceptions to this general rule may apply in premises liability cases involving third-party criminal activity or a necessary use of the premises. If an exception applies, the employer may owe a duty to protect the employee from the unreasonably dangerous condition despite the employee's awareness of the danger, and the [workers’ compensation act] will prohibit a nonsubscribing employer from raising defenses based on the employee's awareness.

The case is Austin v. Kroger Tex., L.P., __ S.W.3d __, 2015 WL 3641066 (Tex. June 12, 2015). Shannon Ramirez at LeClair Ryan has more in Virtual Strategy.

More on Race and Tort Damages

This is a hot topic.  Judge Weinstein issued a ruling in late July and Tony Sebok blogged about the decision at New Private Law.  Now, in recent postings to SSRN, Ronen Avraham and Alberto Bernabe take up the topic.

Avraham's piece, Is Race- and Sex-Based Targeting Efficient?  A Look at Tort Law's Discriminatory Damage Awards, has the following abstract:

Under traditional law and economics analysis, it is deemed efficient to target individuals and communities based on race and gender when doing so results in the lowest tort liability for a rational actor.  This results in the targeting of low income minorities and women - a fact which law and scholars economics would stamp with analytical approval, but are likely embarrassed to admit.  Surprisingly, the basis for this targeting is the seemingly neutral use of race- and gender-based statistical tables (for example life expectancy or worklife expectancy) which, when used in tort damage calculations, result in a large disparity between damages awarded to whites versus blacks, and men versus women.  First, this paper provides a full account of courts' existing discriminatory practices, identifying both theoretical and actual examples of race and gender targeting. It then challenges the conventional wisdom that the use of race- and gender-based tables are justified on efficiency grounds, pointing out fatal flaws inherent in the tables, in how the tables are used in courts to calculate damages for individuals, and in the incentives they create.  Under the status-quo, tort law’s remedial damage scheme both perpetuates existing racial and gender inequalities and creates ex-ante incentives for potential tortfeasers to engage in future discriminatory harm (discriminatory targeting) towards women and minorities.  The paper then shows that similar discriminatory practices surprisingly and ironically exist in federal law such as the ADA and even Title VII. After discussing the legal and theoretical background, statistical shortcomings, and efficiency concerns associated with the use of race- and gender-based statistical tables, this paper proposes a feasible, low cost, and logical solution to save American courts as well as the law and economics movement from this great embarrassment, and push towards a more efficient, and fair tort law remedial system.

Bernabe's piece, Do Black Lives Matter?: Race as a Measure of Injury in Tort Law, has the following abstract:

Much of the current debate over race relations in the United States revolves around police brutality and legal injustice.  However, prior to the events that made the phrase “black lives matter” the signature message of a protest movement against racism in the American justice system, the nation’s media was captivated briefly by another legal question: whether a child’s race should be used as a measure of injury to the child’s parents as part of a torts claim based on the “wrongful birth” of the child.  Unfortunately, once the attention turned to the events that prompted the protests and the debate that has developed since, the discussion about whether someone’s racial identity could be used as a measure of injury faded.

Yet, the issues raised by the case are too interesting and important to be relegated to the background of the debate.  The case not only offers the opportunity to discuss the issue of using race as an element in a tort law claim, it also poses interesting questions about the extent to which modern reproductive technologies change the way we think about injuries for purposes of tort law. 

Obviously, there have been many wrongful birth and wrongful pregnancy cases in the past, but this one is different.  Because the mother wanted to have a child and because the child was not born with a disability, the basis of the complaint is that the child’s race should be considered to be an injury to her and that the child’s existence should be considered to be an injury to the mother.  If we are ready to recognize a claim in cases where the child is born with a condition that could have been avoided had the defendant not been negligent, should we also recognize a claim if the child turns out to have different physical traits than planned, or expected?

Martha Chamallas and Jenny Wriggins, who have focused on this topic for years, must be smiling.

West on Gatsby and Tort

Robin West has posted to SSRN Gatsby and Tort.  The abstract provides:

The Great Gatsby is filled with potential tort claims, from drunken or reckless driving to assault and battery. In a pivotal passage Nick Carraway, the narrator of The Great Gatsby, judges Daisy and Tom as “careless people,” who “destroy creatures and leave others to clean up the mess.” The carelessness, negligence, and recklessness portrayed by Fitzgerald’s characters shows an absence of due care, long regarded as the foundation for tort law. Although there are torts, tortfeasors, and tortious behavior aplenty in The Great Gatsby, the novel is void of even a mention of tort law. Why?

The first part of this piece discusses tort law during Gatsby’s decade -- the beginning of the “era of automobility” -- and explains tort law’s absence from the novel: Tort law is absent from The Great Gatsby, in part, because tort law itself was dysfunctional and could not provide meaningful access to the legal system. Tort victims of automobile accidents were largely unable to access legal avenues, and recovery was hindered by a host of rules, prominently the contributory negligence system. The piece then briefly describes a reform movement, led by progressive legal realists, to replace tort recovery for automobile accidents with a no-fault compensation scheme. One consequence of that movement, I suggest, was the loss of tort law’s traditional “moral center,” the idea of the law of torts as a “law of wrongs.” The second part of the piece then discusses the costs of this change, politically and conceptually, and briefly defends traditional “wrongs” and “justice-based” tort law against compensation-minded reforms. I conclude that while the moralistic tort law of Gatsby’s era expressed plenty of blame for tortfeasors, it failed to hold them accountable, thus contributing to the death of our understanding of the law of tort as a law of wrongs -- and only partly and fitfully replaced by compensation schemes.

(In writing my Prosser Letters piece in the spring, two legal historians, Ted White and Al Brophy, independently remarked that Prosser reminded them of Nick Carraway.)

Ralph Nader Invites You to the Grand Opening of the American Museum of Tort Law

The American Museum of Tort Law in Winsted, Connecticut has the Convocation heralding its grand opening on September 26, 2015 and you are invited:  Download TortMuseumInvitation

Request for Empirical Study Results from Torts Classes

James Stark (Connecticut) makes the following request:

Dear Colleagues:

 

I will be working this year with a PhD psychologist from the University of Maryland on an empirical research study designed to learn more about the role of individual differences in lawyers' susceptibility to cognitive and motivational bias in a representative lawyering role.  The exercise at the core of the study asks students to assume the role of counsel for plaintiff or defendant in a personal injury case and assess its value, based on condensed pleadings and discovery materials from a (real) Texas motorcycle accident case.      

 

Asking your students to do the exercise is a great way to teach them-- in a fun, hands-on way-- about the risks of bias they will face as representative lawyers, and how these biases may affect them in a partisan lawyering role. It is also an opportunity to expand knowledge in the field of behavioral economics as it applies to law students and lawyers.  It's a 45 minute, on-line homework exercise that need not take significant class time to debrief, and should fit very well in most any Torts course, once students have completed their study of negligence.  

 

If you find this short description at all intriguing, a more complete description is attached. We need 400 research subjects, so I hope you will consider joining us.  Happy to answer any and all questions, by phone or offline.

 

Apologies for cross-listings and wishing everyone a happy and productive fall semester.

 

Download Appendix B Recruitment Email Revised IRB-1 Final (00000005)

 

Jim

  

James H. Stark

Professor of Law and Director, Mediation Clinic

University of Connecticut Law School

65 Elizabeth Street

Hartford, CT 06105

(860) 570-5278 (telephone)

(860) 570-5242 (telefax) 

Please send all emails to my new email address: [email protected] 

PA: Blue Cross Must Produce Documents from Review-of-Care in Med Mal Case

The Superior Court of Pennsylvania has ruled that, in a med mal case,  a Blue Cross affiliate must turn over documents relating to a quality-of-care review.  Blue Cross attempted to use the Pennsylvania Peer Review Protection Act to shield the documents, but the court rejected the attempt.  The crux of the decision was that Blue Cross was not a health care provider:

Though the appellees claimed confidentiality, a key point which led The Superior Court of Pennsylvania to concur with the Lackawanna County Court of Common Pleas in this matter was delineating precisely between a provider of health insurance and a provider of medical care.

“In the present appeal, appellants admit that they are not professional health care providers as defined in the Act. This Court concluded [in McClellan v. Health Maintenance Organization] that an IPA-HMO could not be considered a professional health care provider because it does not deliver any type of medical services,” Bowes said. 

Nicholas Malfitano at PennRecord has the story. 

Sebok on Weinstein's Holding on Discriminatory Damages

At New Private Law, Tony Sebok discusses Judge Jack Weinstein's ruling in G.M.M. v. Kimpson that a plaintiff's race is irrelevant when calculating future damages.

Conk on Comparative Products Liability Jury Instructions

George Conk has posted one of his older pieces to SSRN:  Compared to What?  Instructing the Jury on Product Defect Under the Products Liability Act and the Restatement (Third) of Torts:  Products Liability.  The abstract provides:

Products liability litigation relating to mechanical devices has centered on the concept of design defect, specifically, the unreasonable failure of a manufacturer to take advantage of current design capabilities that would reduce or even eliminate a product's potential dangers. The Restatement (Third) of Torts: Products Liability (Restatement (Third)), promulgated by the American Law Institute in 1997, places the focus of design-defect litigation on proof of the existence of an alternative, safer design for a product, which demonstrates that the product was not designed to be reasonably safe.

The Restatement rejects the long-dominant consumer expectations test of defect and asserts that the risk-utility analysis everywhere relied up must specify that the plaintiff prove as a fact that there was available a safer alternative design which, if omitted, renders the product not reasonably safe.

By concretizing the relevant design-defect considerations, we will be better able both to hold the designer to the ideal of prudence and to avoid the uncritical sympathy for the injured that courts have long seen as a danger of unclear limitations on liability. In case after case, courts uphold verdicts rooted in risk-utility proof and argument - on the balance of costs and benefits of improving the safety of a product's design - without inquiring closely into how to formulate the balance properly.  The New Jersey Products Liability Act states that it is a complete defense if: "At the time the product left the control of the manufacturer, there was not a practical and technically feasible alternative design that would have prevented the harm without substantially impairing the reasonably anticipated or intended function of the product."

Simons on Moore on Negligence

Ken Simons (now at UC Irvine) has posted to SSRN Reluctant Pluralist:  Moore on Negligence.  The abstract provides:

Michael Moore has addressed the meaning and desirability of legal liability for negligence on several occasions.  His early writings treat negligence as a consequentialist concept and as an appropriate basis for tort but not criminal liability.  But in more recent writings, he is more pluralistic, recognizing that nonconsequentialist considerations play a proper role in tort negligence judgments, and tentatively endorsing negligence liability in criminal law as well.  The evolution in his views is welcome.  At the same time, neither Moore nor other scholars have yet provided a satisfactory account of this protean legal and moral concept.  More attention should be paid to the questions whether negligence is a type of wrongdoing, a type of culpability, or both; and whether negligence differs from recklessness in kind or only in degree.

Hiring: Iowa

   

            THE UNIVERSITY OF IOWA COLLEGE OF LAW anticipates hiring several tenured/tenure track faculty members and clinical faculty members (including a director for field placement program) over the coming year. Our goal is to find outstanding scholars and teachers who can extend the law school’s traditional strengths and intellectual breadth. We are interested in all persons of high academic achievement and promise with outstanding credentials. Appointment and rank will be commensurate with qualifications and experience. Candidates should send resumes, references, and descriptions of areas of interest to:  Faculty Appointments Committee, College of Law, The University of Iowa, Iowa City, Iowa  52242-1113.

            THE UNIVERSITY OF IOWA is an equal opportunity/affirmative action employer. All qualified applicants are encouraged to apply and will receive consideration for employment free from discrimination on the basis of race, creed, color, national origin, age, sex, pregnancy, sexual orientation, gender identity, genetic information, religion, associational preference, status as a qualified individual with a disability, or status as a protected veteran.

10th Cir: OK Recognizes Exception to Open and Obvious

An Oklahoma oil field worker, employed by one company and contracted out to another, lost his thumb in an accident with a piece of machinery lacking mandatory guards.  He collected workers comp from his employer and sued under the intentional tort exception to workers  comp; he also sued the company for whom he was a contractor for premises liability.  The Tenth Circuit affirmed dismissal of the claim against the employer, but held the premises liability claim could go forward against the contract employer:

“Oklahoma now recognizes an exception to the open and obvious doctrine where the landowner should have reasonably foreseen the harm,” the appeals court ruled.

Business Insurance has the story.

Palmer on His Role in Compensation-Oriented Tort Reform

Sir Geoffrey Palmer QC has posted to SSRN the chapter of his 2013 memoir covering his role in various tort reforms, including New Zealand's move away from tort.  Entitled Big Change, Exciting Adventures: Accident Compensation, the abstract provides:

This comprises a chapter of the author’s 2013 memoir that was published by the Victoria University Press, Wellington, New Zealand. It concerns New Zealand’s novel accident compensation scheme that replaces tort law as a means of compensating the victims of accidents. It reviews the author’s involvement with the reform from its earliest days up until the present. It traces the difficulties with enacting the scheme, its administration and its financing. It also reviews efforts to take the reform to Australia where it was not enacted. It reflects upon the difficulties of securing general deterrence through the allocation of accident costs.

Lahav on Party Participation in Mass Torts

Alexandra Lahav has posted to SSRN Participation and Procedure.  The abstract provides:

How much participation should a procedurally just court system offer litigants? This question has always been especially difficult to answer in complex litigation such as class actions and mass torts because these cases involve so many litigants that it would be impossible for each of them to be afforded the kind of individualized hearing that we associate with the day in court ideal. To address the problem, we need to go back to first principles and ask what purposes participation in litigation is meant to serve. Participation serves two purposes: as a predicate to litigant consent and to engage public reason. This Article, written for the Clifford Symposium honoring Judge Jack Weinstein, argues that the public reason rationale offers the best normative underpinning for participation in large-scale litigation and demonstrates how public reason can be realized through procedural innovations such as those Judge Weinstein has pioneered.

Weinstein Rules Ethnicity Irrelevant to Reduce Damages in Lead Paint Cases

Last week, Judge Jack Weinstein rejected a landlord's attempt to use a tenant's Hispanic ethnicity to reduce damages in a lead paint poisoning case.  NYT coverage is here.  Thanks to Jenny Wriggins for the tip.

Schwartz on How Governments Pay for Claims Against Law Enforcement

Joanna Schwartz has posted to SSRN How Governments Pay:  Lawsuits, Budgets, and Police Reform.  The abstract provides: 

For decades, scholars have debated the extent to which financial sanctions cause government officials to improve their conduct. Yet little attention has been paid to a foundational empirical question underlying these debates: When a plaintiff recovers in a damages action against the government, who foots the bill? In prior work, I found that individual police officers virtually never pay anything towards settlements and judgments entered against them. But this finding begs another question — where does the money come from, if not from individual officers? The dominant view among those who have considered this question is that settlements and judgments are usually paid from jurisdictions’ general funds with no financial impact on the involved law enforcement agencies, and many have suggested that agencies would have greater financial incentives to improve behavior were they required to pay settlements and judgments from their budgets. But, beyond anecdotal information about the practices in a few large agencies, there has been no systematic inquiry into the source of funds used by governments to satisfy suits.

In this Article, I report the results of the first nationwide study to examine how cities, counties, and states budget for and pay settlements and judgments in cases against law enforcement. Through public records requests, interviews, and other sources, I have collected information about litigation budgeting practices in 100 law enforcement agencies across the country. Based on the practices in these 100 jurisdictions, I make two key findings. First, settlements and judgments are not always — or even usually — paid from jurisdictions’ general funds; instead, cities, counties, and states use a wide range of budgetary arrangements to satisfy their legal liabilities. All told, half of the law enforcement agencies in my study financially contribute in some manner to the satisfaction of lawsuits brought against them. Second, having a department pay money out of its budget towards settlements and judgments is neither necessary nor sufficient to impose a financial burden on that department. Some law enforcement agencies pay millions from their budgets each year towards settlements and judgments, but the particularities of their jurisdictions’ budgeting arrangements lessen or eliminate altogether the financial impact of these payments on these agencies. On the other hand, smaller agencies that pay nothing from their budgets toward lawsuits may nevertheless have their very existence threatened if liability insurers raise premiums or terminate coverage as a result of large payouts. These findings should expand courts’ and scholars’ understandings of the impact of lawsuits on police reform efforts, inspire experimentation with budgeting arrangements that encourage more caretaking and accountability by law enforcement, and draw attention to the positive role local government finance officials and insurers can and do play in efforts to promote risk management and accountability in policing.

WI: Bill to Allow Patients to Have Surgeries Recorded

A lawmaker in Wisconsin has introduced a bill that would allow patients to have their surgeries videotaped.  The purpose is to preserve data that could later shed light if a patient had a poor outcome.  The application to med mal is obvious.  The National Law Review has the story.

JOTWELL Torts: Chamallas on Priaulx

Martha Chamallas reviews Nicky Priaulx's Injuries That Matter:  Manufacturing Damage in Negligence at JOTWELL.