TortsProf Blog

JOTWELL Torts: Sharkey on Gifford & Jones on Racism in Tort Law

At JOTWELL, Cathy Sharkey reviews Don Gifford and Brian Jones's Keeping Cases from Black Juries:  An Empirical Analysis of How Race, Income Inequality and Regional History Affect Tort Law.

Postdoctoral Fellowships in Private Law at Harvard

The Project on the Foundations of Private Law at Harvard Law School is seeking applicants for a Postdoctoral Fellowship in Private Law.  The Fellowship is a two-year, residential postdoctoral program specifically designed to identify, cultivate, and promote promising scholars early in their careers with a primary interest in private law.  For more information and application procedures, please visit the Project's website: http://blogs.harvard.edu/privatelaw/people/

Bernstein on Voluntary Recalls

Anita Bernstein has posted Voluntary Recalls to SSRN.  The abstract provides:

The voluntary recall of a defective product, whereby a manufacturer or seller encourages purchasers to return a defective item, looks like a much happier phenomenon than what it fends off: injury for the buyer, liability for the seller, burdens on regulators. Acknowledging these advantages, this Article reviews other aspects of the voluntary-recall fix. First, the term recall has no consistent definition or usage in the United States Code and the Code of Federal Regulations. Second, product recalls are not really voluntary: sellers and buyers alike do not make informed, uncoerced choices to participate in this remedy. The Article concludes with two sets of recommendations to reform the law of product recalls, the first modest and the second ambitious.

IN: Med Mal Cap Increase Stalls

The author of a bill in the state senate to raise the med mal cap in Indiana admitted it was dead after affected groups (lawyers, hospitals, and insurers) failed to reach a consensus.  WFYI has details.

Increase in Nursing Malpractice Claims

Nursing Services Organization has examined five years of data on malpractice claims against nurses.  Property Casualty 360 has the story, but the basics represented here:

IN: Legislature to Consider Increase to Med Mal Cap

Today an Indiana Senate committee is debating an increase in the med mal cap from $1.25M to $1.65M, the first increase in 17 years.  The potential increase is driven by a desire to protect the cap from constitutional challenges:

The Illinois Supreme Court struck down a similar law in 2010 that capped jury payouts, ruling they were unconstitutional under the Illinois Constitution's "separation of powers" clause because juries were not able to determine fair damages. Caps have also been ruled unconstitutional in Alabama, Georgia, Oregon, New Hampshire and Washington.

nwitimes.com has the story. 

NYT: Ted Cruz as Both Tort Reformer and PI Lawyer

The NYT is reporting that Ted Cruz worked as both a defender of tort reform (including caps) and a defender of large verdicts.  It's not unusual for lawyers to take cases on different sides of an issue, but as he is touting one side of his work to voters, this is information some of them may find troubling. 

CA: Manitoba First Province to Provide Remedy for "Revenge Porn"

On Friday, Canada's first law against "revenge porn," the non-consensual sharing of intimate images often by an ex-lover, went into effect in Manitoba.  The law provides a civil remedy for the victim against the perpetrator.  Explicit consent is required before such images may be shared.  In the U.S., 9 states have civil remedies and 27 states have criminal provisions regarding revenge porn.  VICE News has the story.

Sheley & Frank on Prospective Injunctive Relief and Class Action Settlements

Erin Sheley (Calgary) and Ted Frank (Competitive Enterprise Institute) have posted to SSRN Prospective Injunctive Relief and Class Action Settlements.  The abstract provides:

Despite much controversy and criticism, the class action is alive and well. In particular, the injunctive remedy, requiring the defendant to change some aspect of its business practice, has become a common feature of class action settlements. This article explores a taxonomically distinct remedial category of injunction that has, as of yet, not generally been considered by courts and scholars as such: the prospective injunctive remedy. We demonstrate how the prospective injunctive remedy operates and argue that, in light of the special policy and legal problems it creates, courts should observe a presumption against approving settlements that contain provisions for prospective injunctive relief. In Part I we show how the parties to a class action have, in general, no incentive to benefit either absent class members or society at large and therefore require courts to police them to ensure justice. In Part II we describe the public law underpinnings of prospective injunctive relief and provide three case studies of consumer class actions that demonstrate how and why courts fail to accurately police this relief in the private law context. We compare the approved relief in these cases to the regulatory regimes they disrupt to argue that courts in this way allow class action litigation to produce bad public policy. In Part III we explore the ways in which these prospective remedies likewise produce bad law: namely, through the inappropriate creation of regulatory preemption and the potential violations of attorney-client fiduciary duty, the adequacy requirement of Rule 23(a)(4), and constitutional standing requirements. In Part IV we consider counterarguments and in Part V we conclude.

Via Stier/Mass Tort Profs

Torts Today: Schorr on Holmes and Water Pollution

At Torts Today, George Conk has posted a piece by David Schorr (Tel Aviv University) on Holmes's decision in Missouri v. Illinois (1906), in which Missouri sued Illinois for Chicago's reversal of the Chicago River.  Holmes ruled for Missouri essentially on causation (and Schorr argues, a bit of distributive justice).

Drones and Trespassing

Out of Kentucky comes a case that may help resolve issues surrounding drones and trespass.  A hobbyist whose drone was shot out of the sky while recording video over private property has filed suit for $1,500 in damages.  The big question is limits of the ad coelum doctrine.  How far above the ground would the drone have to fly not to be a trespasser?  Witnesses stated the drone was flying below the level of the trees; the drone owner claims the drone was flying about 200 feet above the ground.  Drones also raise issues regarding intrusion upon seclusion.  The ABA Journal has the story.

Feinman's Introduction to the Rutgers Symposium on the Restatement of Liability Insurance

Jay Feinman has posted to SSRN The Restatement of the Law of Liability Insurance as a Restatement.  The abstract provides:

This is an Introduction to volume 68, issue 1 of the Rutgers University Law Review which published papers from a conference on the American Law Institute’s Restatement of the Law of Liability Insurance held on February 27, 2015 at Rutgers Law School in Camden, New Jersey. Sponsored by the Rutgers Center for Risk and Responsibility and co-sponsored by the Institute for Professional Education, the conference engaged academics and practicing lawyers in a discussion of the issues raised by the Restatement.

This Introduction first describes the articles in the symposium, the topics into which they fall, and the papers of other speakers who participated in the conference. Because only a few months prior to the conference the ALI Council had changed the project from a Principles project into a Restatement, many participants framed their analysis in light of the project’s new status as a Restatement. Part II of the Introduction highlights this feature of the articles and discusses the nature of a Restatement and the ALI process that produces Restatements.

The concept of “Restating” the law with a capital “R” has always been controversial, in concept and in application. This Introduction offers four propositions about Restatements, using the Restatement of the Law of Liability Insurance as an illustration: A. Restatements address easy cases and hard cases; B. Precedent matters for a Restatement; C. A Restatement is about weighing, not counting; D. A Restatement is a product of the ALI process.

DC: Over 80 to Sue Metro Over Smoke Inhalation

On January 12, 2015 an electrical malfunction caused a Metro train to fill with smoke.  Dozens were allegedly sickened and filed individual lawsuits yesterday, the anniversary of the fire:

Attorneys say their clients have suffered ongoing health complications from the smoke inhalation, although a version of the complaint shared with reporters on Monday does not provide details. The lawsuit also says Metro has failed to disclose the chemical compounds that were part of the smoke, which may have impaired treatment for patients.

One woman died and her sons have also filed suit.  WJLA in DC has details.

AALS Torts Section Meeting

On Friday in New York, the Torts & Compensation Systems Section met; the Section: 1. presented the Prosser Award to Aaron Twerski; 2. conducted a panel on "MacPherson at 100;" and 3. elected a slate of officers for the coming year.

The chair, Tony Sebok, moderated the panel and presented the Prosser Award.  In accepting the award, Twerski stated, "It's an incredible honor to be recognized by my colleagues to win this very prestigious award."

The panel consisted of John Goldberg & Ben Zipursky (presenting a paper together), John Witt, Franz Werro, and Anita Bernstein.  Goldberg and Zipursky started the discussion by presenting three myths about MacPherson.  The first myth:  "Cardozo rejected privity because he embraced a nonrelational duty."  In reality, Goldberg and Zipursky stated, a duty may be owed to an indefinite class of persons, but it is always a relational duty.  The manufacturer owes care to those who will use its product without inspection, and who stand to be injured if the product is made without due care.  The second myth:  "Cardozo reached a sound result because he reasoned instrumentally, not doctrinally or morally."  In reality, Goldberg and Zipursky argued that Cardozo's approach is not instrumental, but one of pragmatic conceptualism.  Macpherson's rule is by far the better reading of the precedents, especially as interpreted against the background of prevailing mores.  The question is "are users among those to whom manufacturers owe vigilance?" and not "will society benefit if manufacturers are subject to liability?"  Third myth:  "Cardozo partly effaced the line between negligence and strict liability."  Instead, the focus in MacPherson is on duty and breach, but the focus in Greeman is on compensation and deterrence.  Goldberg and Zipursky believe that the myths are problematic because they lead to conceptions of tort law that are problematic.  A nonrelational conception of duty, they argued, slides easily into a liability rule conception of tort that overlooks the sense in which product manufacturers should regard themselves as duty-bound not to injure consumers.  What should be understood as a responsibility comes to be understood as a mere potential cost.  An instrumentalist approach--leads judges to analyze tort cases as calling for judicial policymaking, which in turn renders their decisions more vulnerable to overturning by the legislature (tort reform).  Finally, if the difference between negligence and strict liability is overlooked, preemption of products liability law becomes more palatable and the special strengths and rationales for strict products liability law are at risk of being obliterated.  Goldberg & Zipursky's message:  It is mistaken to think that the way to be a progressive in tort law is to be an instrumentalist.

Next, John Witt presented an historical angle on MacPherson.  He approached it by starting with a case decided five years prior:  Ives v. South Buffalo Railway.  In Ives, the New York Court of Appeals, speaking through William Werner, entertained the first constitutional challenge to workers' compensation.  The court went through what Witt described as a "full-0n" discussion of the values at stake in the Constitution and held workers' compensation unconstitutional.  The opinion was not well received; by the time of MacPherson only 2 judges remained from the Ives Court.  Cardozo's opinion in MacPherson is internal to the doctrine and does not discuss "regulatory" criteria at all.  This is especially striking given that automobile accidents at the time had become a significant issue and were being discussed in the same vein as industrial accidents had been before Ives.  Witt wondered why Cardozo stuck to the internal approach.  He offered several possibilities.  One is that Cardozo was engaged in deception.  He decided the case on different grounds than he used in the opinion.  He realized he couldn't get away with an explicit statement (especially in light of the reaction to Ives) and so he deceived.  A slightly different reason is that "purely legal" decisions have more durability.  Thus, Cardozo stuck with the internal to preserve the holding for the long haul.  Witt rejected these possibilities.  He believes them inconsistent with Cardozo's character.  In Witt's opinion, Cardozo's approach is based in a moral modesty.  Commissions (like the Wainwright Commission for workers' compensation) will inevitably make mistakes.  Cardozo, by not relying on such pronouncements, based his decision on more reliable, less grand, principles. 

Franz Werro approached MacPherson from a comparative perspective.  What influence did MacPherson have in Europe?  Werro indicated MacPherson did not have much of an effect on the Continent (largely because it was not needed).  It was, however, particularly important to a significant 1932 Scottish case (later adopted in English law by the House of Lords):  Donoghue v. Stevenson, better known as the "Paisley snail" case.  In that case, a woman was drinking a bottle of ginger beer (at a café in Paisley) when she discovered a decomposing snail in it.  The woman sued the manufacturer directly and asserted a legal duty to, in essence, produce snail-free beer.  The case established negligence-based liability by setting out general principles whereby one person owes a duty of care to another.  The "neighbor principle" was based on whether harm was reasonably foreseeable.  MacPherson served as a basis for the principles announced in Donoghue.  Werro closed with 3 observations.  First, he said it was striking for a civil lawyer to see how long it took the common law to recognize a general tort of negligence.  He attributed this to the power of laissez-faire.  Second, he noted the French and German civil codes have been far more generous.  Third, he celebrated the adaptability of French law until World War II.  Since that time, however, he noted tort lost its place to insurance schemes.  Europeans trust regulation and insurance far more than Americans.

Finally, Anita Bernstein focused on the changes in society, and thus law, from the time of MacPherson until today.  In a presentation entitled the "Reciprocal of MacPherson," Bernstein noted the holding of MacPherson was that care and vigilance were owed by an auto manufacturer.  Although privity offered "comfort and care" to the manufacturer, the holding in MacPherson, coming during the Progressive Era, offered "comfort and care" to consumers.  Modern law, however, is producing a shift toward obligations owed to an auto manufacturer.  Bernstein referenced Geier (2000) (preemption limits design defect cases); Kumho Tire (1999) (making expert testimony for plaintiffs more costly and harder to find); and BMW v. Gore (1996) (restricting punies against auto manufacturers).  She then noted the bailout of the big 3 auto manufacturers, which cost taxpayers roughly $9.26 billion.  Moreover, tort reform, Bernstein suggested, extends the reciprocal.  The emphasis has shifted from what is owed to consumers to what consumers owe potential defendants.

Papers from the panel will be published in the Journal of Tort Law.

The meeting concluded with the election of the Executive Committee for the year:

Chair:  Leslie Kendrick; Chair-elect:  Chris Robinette; Secretary:  Stacey Tovino; Treasurer:  Adam Scales; Member:  Scott Hershovitz

TX Rejects "Dual-Role Theory" in Premises Liability

In 1992, Occidental Chemical installed a pH-balancing system on its premises in order to keep its employees from having to haul containers up a ladder.  Six years later, the company sold the premises.  Eight years after the sale, an employee of the new owner was injured on the system.  Is Occidental liable for the injury?  The "dual-role theory" would hold owners of property liable in premises liability and as designers of defective equipment.  Reversing the intermediate appellate court's opinion for the plaintiff, the Texas Supreme Court wrote:

We conclude, however, that a claim against a previous owner for injury allegedly caused by

a dangerous condition of real property remains a premises-liability claim, regardless of the previous

property owner’s role in creating the condition. Because the previous owner sold the property

several years before the plaintiff’s accident and did not otherwise owe the plaintiff a duty of care

apart from its ownership and control of the property, we reverse the court of appeals’ judgment and

render judgment that the plaintiff take nothing.

The opinion is here.  Commentary by Wen Fa of Pacific Legal Foundation is here.

AALS Torts Panel This Friday!

Don't forget the Torts and Compensation Systems Section Panel this Friday at 1:30:  "MacPherson at 100: Perspectives on its Influence and Meaning."  Aaron Twerski will receive the Prosser Award at the beginning of the presentation.

Challenging Indiana's Med Mal Cap

In 2003, Juliann Bobbitt was born a quadriplegic and unable to speak.  Her parents filed a medical malpractice action in 2005.  An expert estimated her lifetime care costs between $8 and $10 million.  In 2013, a jury awarded $15 million in damages to her parents.  Indiana, however, has a $1.25 million med mal damages cap.  To date, Medicaid has paid over $500,000 on Juliann's care, an amount that would have to be reimbursed out of the proceeds of any verdict or settlement.  The parents are challenging the constitutionality of the cap.  The Elkhart Truth has the story.

Symeonides's Annual Choice-of-Law Survey

Symeon Symeonides has posted his 29th annual choice-of-law survey to SSRN.  The abstract provides:

This is the Twenty-Ninth Annual Survey of American Choice-of-Law Cases. It was written at the request of the Association of American Law Schools Section on Conflict of Laws, and is intended as a service to fellow teachers and to students of conflicts law, both inside and outside the United States.
This Survey covers cases decided by American state and federal appellate courts from January 1 to December 31, 2015, and posted on Westlaw by December 31, 2015. Of the 1,188 appellate cases that meet these parameters, the Survey focuses on those cases that may contribute something new to the development or understanding of conflicts law—and, particularly, choice of law. The following are some of the cases discussed:
 --Three Supreme Court decisions, the first declaring unconstitutional all state laws against same-sex marriages, the second interpreting the commercial activity exception of the Foreign Sovereign Immunity Act, and the third further constricting the range of state law in matters relating to arbitration;
 --A Second Circuit decision resuscitating for now that court’s theory that corporations are not accountable for international law violations under the Alien Tort Statute (ATS), and two decisions holding that the violations at issue did not “touch and concern the territory of the United States . . . with sufficient force”;
 --Two cases refusing to allow a Bivens action for an extraterritorial violation of the Fourth Amendment and an intra-territorial violation of the Fifth Amendment, respectively, and several cases upholding the extraterritorial application of criminal statutes;
 --Several cases refusing (and some not refusing) to enforce choice-of-law and forum-selection or arbitration clauses operating in tandem to deprive employees or consumers of their otherwise unwaivable rights;
 --A New York Court of Appeals case explaining why a New York choice-of-law clause in a retirement plan did not include a conflicts rule contained in New York’s substantive successions statute;
 --Several cases involving the “chicken or the egg” question of which law governs forum-selection clauses;
 --A New Jersey decision ruling on actions for “wrongful birth” and “wrongful life,” and several other cases arising from medical malpractice, legal malpractice, deceptive trade practices, alienation of affections, and, of course, traffic accidents, along with products liability cases involving breast implants and pharmaceuticals;
 --The first case granting divorce to a spouse married under a “covenant” marriage in another state, and a Texas case recognizing a Pakistani talaq;
 --An Alabama Supreme Court decision refusing to recognize a Georgia adoption by a same-sex spouse on the ground that the Georgia court misapplied its own law regarding subject matter jurisdiction;
 --A Delaware case holding that the Full Faith and Credit clause mandates recognition of a sister-state judgment that has recognized a foreign judgment, and does not allow examination of the underlying foreign judgment; and
 --A case recognizing a foreign judgment challenged on the ground that the foreign country did not provide impartial tribunals or procedures compatible with due process.