TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Thursday, July 28, 2016

Procter & Gamble's Products Liability Exposure

Dan Monk at WCPO in Cincinnati has written an article about P&G's products exposure.  Monk finds suits against 9 of P&G's products (they have between 100 and 200 products).  He chronicles the various cases against such brands as Tide Pods, Old Spice, and Charmin.   

July 28, 2016 in Products Liability | Permalink | Comments (0)

Wednesday, July 27, 2016

Hnylka on Recklessness in Sports Injury Litigation in California

Joseph Hnylka has posted to SSRN California Drops the Ball:  The Lack of a Clear Approach to Recklessness in Sports Injury Litigation.  The abstract provides:

California jurisprudence lacks a uniform, clear, and manageable approach to recklessness in sport injury cases. In Knight v. Jewett, 3 Cal. 4th 296 (1992), the California Supreme Court adopted a unique “duty” approach for primary assumption of risk cases involving sports. The Court ruled that a plaintiff’s subjective knowledge and awareness of risks were irrelevant. Instead, the Court noted that the focus of the inquiry should be whether “in light of the nature of the sporting activity in which defendant and plaintiff were engaged, defendant’s conduct breached a legal duty of care to plaintiff.” Under the new duty approach, although there is no duty to protect a plaintiff from risks inherent in the sport itself, participants, coaches, and instructors will be liable for intentionally injuring the plaintiff or engaging in conduct that is “so reckless as to be totally outside the range of ordinary activity involved in the sport.” In the past two decades, California recklessness cases involving coaches and sport participants have become confusing. Courts lack a uniform approach and continue to apply different standards for recklessness.

First, courts have difficulty applying the California Supreme Court’s definition of recklessness, which requires courts to determine whether conduct is “totally outside the range of ordinary activity involved in the sport.” This standard provides no guidance to the court or to the trier of fact who must distinguish reckless conduct from negligent or careless conduct.

Second, courts are confused by the relationship between the concepts of recklessness and inherent risk. The concept of inherent risk is critical to the application of the primary assumption of risk doctrine. Inherent risk defines duty, and a defendant has no duty to protect plaintiff from risks inherent in the sport. However, because recklessness requires conduct “totally outside the range of ordinary activity involved in the sport,” does a finding that plaintiff was injured by a risk inherent in the sport preclude a finding of recklessness? When a court rules that a risk is not inherent, is the court also saying the risk is “totally outside the range of ordinary activity involved in the sport”?

Third, California’s courts are confused by the relationship, if any, between recklessness and the defendant’s duty not to increase the risk. Are these duties essentially the same when defendant is a coach or sport participant? If not, may courts and plaintiff’s attorneys use the duty not to increase the risk as a vehicle to bypass the intentional/reckless standard and instead apply a negligence standard to coaches and participants in sport injury cases?

Fourth, some courts of appeal, perhaps frustrated by the lack of a clear standard for recklessness, have traveled beyond the California Supreme Court’s recklessness definition and have used different standards to determine whether a defendant’s conduct was reckless. Some courts have used the Restatement of Torts to define recklessness in sports injury cases. Other courts have used a policy-based test for recklessness.

The confusion can be significantly decreased, and perhaps eliminated, if the courts adopt a uniform, policy-based approach to inherent risk and use the Restatement standard for recklessness in sport injury cases. Under the policy-based approach to inherent risk, a risk is inherent if the prohibition of the defendant’s conduct would neither chill vigorous participation in the sport or activity nor alter the nature of the sport or activity. California courts also should use the Restatement standard for recklessness in sport injury cases. The Restatement approach can be used as a recklessness standard in sport injury cases without difficulty if the question of recklessness is raised, as it should be, after the court has applied the policy-based test for inherent risk, suggested above. Finally, the courts should abandon the defendant’s duty not to increase the risk beyond what is inherent in a sport. The duty not to increase the risk is unnecessary and only increases confusion.

July 27, 2016 in Scholarship, Sports | Permalink | Comments (0)

Friday, July 22, 2016

Teaching Single Versus Dual Intent

I had an inquiry about teaching single and dual intent for battery and I want to appeal for your collective wisdom.  About the time I started teaching there was a robust list-serv discussion on this topic that I found helpful.  Given that the ALI is working on the Restatement of Intentional Torts right now, many of you may have thought about this recently.  I take the inquiry to be more about pedagogy than doctrine, but all tips are welcome.  How do you teach single versus dual intent?  How do you integrate it with purpose and substantial certainty?  Do you recommend any good sources for students?  Thanks!

July 22, 2016 in Teaching Torts | Permalink | Comments (4)

Wednesday, July 20, 2016

Central States Law School Association Conference

From Chris Odinet at PropertyProf Blog:


Registration is now open for the Central States Law Schools Association 2016 Scholarship Conference, which will be held on Friday, September 23 and Saturday, September 24 at the University of North Dakota School of Law in Grand Forks, ND. We invite law faculty from across the country to submit proposals to present papers or works in progress.
CSLSA is an organization of law schools dedicated to providing a forum for conversation and collaboration among law school academics. The CSLSA Annual Conference is an opportunity for legal scholars, especially more junior scholars, to present on any law-related topic in a relaxed and supportive setting where junior and senior scholars from various disciplines are available to comment. More mature scholars have an opportunity to test new ideas in a less formal setting than is generally available for their work. Scholars from member and nonmember schools are invited to attend. 

Please click here to register. The deadline for registration is September 2, 2016.  

Hotel rooms are now available for pre-booking. The conference hotel is the Hilton Garden Inn in Grand Forks. The hotel phone number is (701) 775-6000. When booking, identify yourself as part of the “UND School of Law” block to receive a daily rate of $89. Please note that conference participants are responsible for all of their own travel expenses including hotel accommodations.

For more information about CSLSA and the 2016 Annual Conference please subscribe to our blog.
We look forward to seeing you in Grand Forks!


The 2016 CSLSA Board
For more information about CSLSA, visit our website at or contact a board member.

July 20, 2016 in Conferences | Permalink | Comments (0)

Tuesday, July 19, 2016

USSC: ERISA Reimbursement Liens Only Enforceable Against Traceable Assets

In Montanile v. National Elevator, the Court held, 8-1, that an ERISA health benefit plan could not enforce its reimbursement lien created by contract against a member's general assets.  The lien is only enforceable against specifically identifiable (traceable) funds within the plan member's possession at the time enforcement is sought.  ABA Health eSource has the story.

Thanks to Bob Bohrer for the tip. 

July 19, 2016 | Permalink | Comments (0)

Monday, July 18, 2016

Most-Cited Torts/Products Liability Scholars (2010-2014)

Brian Leiter has posted the most-cited torts and products liability scholars in the period 2010-2014.  The data is drawn from a 2015 study led by Gregory Sisk.





Age in 2016


John C.P. Goldberg

Harvard University




Benjamin Zipursky

Fordham University




Tom Baker

University of Pennsylvania




Robert Rabin

Stanford University




Catherine Sharkey

New York University




Kenneth Abraham

University of Virginia




Anita Bernstein

Brooklyn Law School




Stephen Sugarman

University of California, Berkeley




David Rosenberg

Harvard University


73 (est.)


Michael Green

Wake Forest University




Other highly-cited scholars who work partly in these areas


Richard Epstein

New York University; University of Chicago




Steven Shavell

Harvard University




Saul Levmore

University of Chicago




Keith Hylton

Boston University



July 18, 2016 in Scholarship, TortsProfs | Permalink | Comments (0)

OH: DuPont Loses "C8" Suit

DuPont has been defending multiple lawsuits over C8, a detergent-like chemical used to make Teflon at a DuPont plant in West Virginia.  DuPont released C8 into the Ohio River and approximately 3,500 plaintiffs from river towns in Ohio and West Virginia allege C8 has caused various types of cancer.  Earlier this month, a jury in Columbus found that DuPont acted with malice when it dumped C8 into the river and awarded a plaintiff with testicular cancer $500,000 in punitive damages.  The Columbus Dispatch has coverage here and here.  

July 18, 2016 in Current Affairs | Permalink | Comments (0)

Friday, July 15, 2016

OT: An Appreciation of Tim Duncan at His Retirement

My heroes are family members, some friends, and an occasional religious, political, or academic figure.  I enjoy sports but I don't engage in hero worship of athletes.  There is, however, one exception:  Timothy Theodore Duncan.  Through an announcement put out by his team, the San Antonio Spurs, Timmy retired on Monday after 19 seasons in the NBA. 

His individual accomplishments are legion and have secured for him wide acknowledgment as the best power forward to ever play basketball.  Selected first in the 1997 draft, Timmy earned the Rookie of the Year award in 1998.  Timmy was named All-NBA a record-tying 15 times, was the league MVP twice (2002, 2003), and was the Finals MVP three times (1999, 2003, 2005).  Unlike many modern players, Timmy was at least as focused on defense as offense; he was named to the NBA All-Defensive Team a record 15 times.  Timmy is one of only two players in NBA history (Kareem Abdul-Jabbar) to record at least 26,000 points, 15,000 rebounds, and 3,000 blocked shots. 

One of the things that made Timmy so special was that his individual accomplishments were nowhere near as important to him as team wins.  He made that clear in every way possible, including taking salary reductions to recruit other players and accepting a reduced role to allow those players to flourish.  It paid off in spades.  Timmy's Spurs won 5 national titles (1999, 2003, 2005, 2007, 2014).  Timmy is one of only three players in NBA history to win over 1,000 games, and the only one to do so with a single team.  His consistency and longevity while winning is astonishing.  He is the only NBA player to start on teams that won titles in three different decades.  Timmy's Spurs posted at least a .600 winning percentage in each of his 19 seasons.  During his tenure, the Spurs had a .710 winning percentage, which is the best 19-year stretch in NBA history and was the best in all of the NBA, NFL, NHL, and MLB over the last 19 seasons. 

What truly sets him apart, though, is how he carried himself during this dominance.  To begin, there are the things Timmy did not do.  There were no Tim Duncan scandals.  He was not arrested.  He never embarrassed himself or his team.  Instead, he dedicated himself to his craft.  Much of modern sports elevates style over substance.  Flashy plays garner a player a spot on ESPN's "Top 10 Plays of the Day".  In this world, Timmy focused on the fundamentals and defense.  His trademark shot was not a vicious dunk, but a bank shot.  Shaquille O'Neal, fond of nicknames, dubbed Timmy the "Big Fundamental".  His discipline was legendary.  During hot San Antonio summers, he worked out relentlessly to be ready for the next season.  As he aged, he lost dozens of pounds to keep the strain off his knees and extend his career. 

In an era when almost everyone screams for attention, Timmy was old fashioned.  He didn't need attention.  He wanted to do a good job and win games.  He preferred that attention went to others.  In 2003, the Spurs beat the Nets in 6 games to win the NBA Finals.  Timmy was a monster in the final game, nearly earning a quadruple double.  He had 21 points, 20 rebounds, 10 assists, and 8 blocked shots.  His teammate, David Robinson, had just played his last game and the two of them were being interviewed by a reporter.  Timmy made a brief, polite comment, got up, slapped Robinson on the shoulders and walked off.  The message was clear:  talk to David Robinson, not me. 

This, perhaps, is the most unusual of Timmy's traits.  Contrary to his bland public image, he has a rich personal life.  He is a terrific practical joker.  He dotes on his children.  He practices martial arts.  He loves comic books and video games.  He owns his own car shop.  He doesn't talk about these things, or speaks of them only rarely, for two reasons.  First, Timmy is a humble man.  He doesn't understand why people would care about his personal life.  Second, he has an admirable sense of the private sphere.  Even if people want to know more about him, he understands that some parts of yourself should be reserved for loved ones.  

Timmy cared about his teammates.  He was the last player to leave the floor, waiting until everyone else headed for the locker room.  He wanted to make sure everyone was okay.  He cared about people, generally.  He once spent $12,000 to save the life of a stranger's dog.  The essence of the man is best summed up by those who played with and against him:

Steve Kerr (former teammate and current coach of the Golden State Warriors):  "One of the best teammates I ever had.  Incredibly confident with his game but humble with his approach, always taking the criticism for the rest of us.  He'd come into the locker room after a loss and he'd say, 'My fault,'and you'd look at the stats and he's got 38 points and 24 rebounds.  Pretty sure it wasn't your fault, Tim."

Tony Massenburg (former reserve teammate; played on 12 NBA teams):  "This is the first team I've been on where everybody is treated the same.  Usually a coach will yell at the man next to The Man to make his point.  Pop (the coach) gets in Tim's face and Tim takes it.  That lets everyone know that when Pop chews you out, it's strictly about what you need to do to get better.  He can do that because of Tim--the most laid-back superstar I've ever known."

Shaquille O'Neal (former rival):  "The Spurs won because of Tim Duncan, a guy I could never break.  I could talk trash to Patrick Ewing, get in David Robinson's face, get a rise out of Alonzo Mourning, but when I went at Tim he'd look at me like he was bored."

Draymond Green (former rival):  “I do have a Tim Duncan story. My rookie year I kind of talked junk to everybody. In the middle of the game I started talking to Tim, and I had already got into it with somebody on their team. I don’t remember who it was. But I started talking to Tim and he kind of just stared at me. I just kept talking junk to him and he kept staring at me.  At that point I realized during the rest of my career that I might as well not talk to him. Either, one, he is not going to talk back because he has no respect for me. Or, two, he is not going to talk back because that is who he is. Or, three, both. I figured then that was the last time I would talk junk to Tim. And that was the last time.”

Few athletes, few people, are worthy of the phrase "role model".  Timmy is.  The world would be a better place if people went about their jobs the way Timmy went about his.  He will be missed. 

July 15, 2016 in Sports | Permalink | Comments (0)

2d Cir: Tort Claims Can Proceed in GM Ignitition Switch Products Cases, Despite Bankruptcy

This week, the Second Circuit endorsed the general proposition that certain types of bankruptcy asset sales bar successor liability.  Regarding claims against GM based on ignition switch defects, however, the court ruled the 2009 bankruptcy of "Old GM" does not bar those cases against "New GM", the company that bought Old GM's assets.  The court based its ruling on the fact GM hid the defect at the time of the bankruptcy proceeding.  The New York Times has more

July 15, 2016 in Products Liability | Permalink | Comments (0)

Tuesday, July 12, 2016

Products Liability as a Capstone Course

As I wrote last month, I am teaching Products Liability this summer.  It has been over 4 years since I last taught it; the last time through, the course was a 2-credit, paper course.  I am now teaching a 3-credit, exam course.

Perhaps I wasn't thinking in these terms in 2012, but I am struck this time through by how well Products could serve as a capstone course, roughly understood as a culminating course that integrates multiple subject areas.  Obviously, Products is heavily tort-oriented.  One of the common causes of action for an injury by product is negligence, and that is covered (again), including duty, breach, causation, damages, and defenses.  Of course, the sales concept of warranty is thoroughly covered.  But there is more.  A lot of evidence concepts are reviewed, such as Daubert, subsequent remedial measures, admissibility for injuries in the same or similar circumstances, and the burden of proof.  Administrative law is covered because of the regulations passed by agencies and their effect on private litigation (including preemption, which has a connection to constitutional law).  Civil procedure is also touched upon in the form of statutes of limitations, statutes of repose, and the discovery rule. 

As a whole, the course requires students to connect areas of practice to one another, which I think is extremely beneficial.  That is, of course, how they will function in practice.  The course also reviews a number of concepts they will soon face on the bar, including the specific MBE questions about products liability, often given little to no attention in the basic Torts course due to time constraints.     

July 12, 2016 in Teaching Torts | Permalink | Comments (2)

Monday, July 11, 2016

NJ: Liability in Take-Home Toxic Tort Cases Extends Beyond Spouses

Take-home exposure cases, in which a worker brought home a toxic substance like asbestos on his or her clothes and sickened a spouse, are being expanded in New Jersey.  Last week the court unanimously held such cases were not restricted to spouses.  The facts involve a woman who later became the spouse of a worker bringing home toxic substances.  She was not, however, married to him at the time the exposure began.  The court stated the spousal relationship was not necessary; several factors must be weighed, the most important of which is foreseeability.  NJ Spotlight has the story.

July 11, 2016 in Current Affairs, Products Liability | Permalink | Comments (0)

Sunday, July 10, 2016

More on Liability for "Self-Driving" Cars

CNN Money has more on liability in the case of the Florida fatality and an accident on the Pennsylvania Turnpike.  Kip Viscusi and John Goldberg are quoted.

July 10, 2016 in Current Affairs | Permalink | Comments (0)

Friday, July 8, 2016

Varuhas: Damages and Human Rights

Hart Publishing announces a new book by Jason Varuhas, Damages and Human Rights.  The blurb provides:

Damages and Human Rights is a major work on awards of damages for violations of human rights that will be of compelling interest to practitioners, judges and academics alike. Damages for breaches of human rights is emerging as an important and practically significant field of law, yet the rules and principles governing such awards and their theoretical foundations remain underexplored, while courts continue to struggle to articulate a coherent law of human rights damages. The book's focus is English law, but it draws heavily on comparative material from a range of common law jurisdictions, as well as the jurisprudence of international courts.The current law on when damages can be obtained and how they are assessed is set out in detail and analysed comprehensively. The theoretical foundations of human rights damages are examined with a view to enhancing our understanding of the remedy and resolving the currently troubled state of human rights damages jurisprudence. The book argues that in awarding damages in human rights cases the courts should adopt a vindicatory approach, modelled on those rules and principles applied in tort cases when basic rights are violated. Other approaches are considered in detail, including the current 'mirror' approach which ties the domestic approach to damages to the European Court of Human Rights' approach to monetary compensation; an interest-balancing approach where the damages are dependent on a judicial balancing of individual and public interests; and approaches drawn from the law of state liability in EU law and United States constitutional law. The analysis has important implications for our understanding of fundamental issues including the interrelationship between public law and private law, the theoretical and conceptual foundations of human rights law and the law of torts, the nature and functions of the damages remedy, the connection between rights and remedies, the intersection of domestic and international law, and the impact of damages liability on public funds and public administration.

A flyer with more information, and a discount, is here:  Download Varuhas

July 8, 2016 in Books | Permalink | Comments (0)

Thursday, July 7, 2016

Sharkey on the Relationship Between the Administrative State and the Common Law

Cathy Sharkey has posted to SSRN The Administrative State and the Common Law:  Regulatory Substitutes or Complements?  The abstract provides:

The modern administrative state looms larger than ever, and grows at an ever-accelerating pace. Not everyone is pleased with these developments. Four such individuals — Chief Justice Roberts, Justices Thomas, Alito, and the late Justice Scalia — have expressed their displeasure, indeed their alarm, with consistency, clarity, and vigor. They warn that the rise of administrative agencies, and the attendant ascendance of doctrines of mandatory judicial deference to agency interpretations of federal law, signals no less than the end of our government’s separation-of-powers structure, and our right to live our lives without fear of bureaucratic encroachment at every turn. Their opinions and dissents sounding this theme reverberate with seemingly unprecedented urgency in the face of a never-before-encountered threat.

As it turns out, however, the same alarm bell was sounded decades ago — by Roscoe Pound. Pound viewed administrative action as lawless, capricious, and marred by prejudice. He warned that agencies were self-interested, too powerful, and ever grasping for even more power.

After outlining the uncannily similar attitude towards agencies expressed by Pound and our Supreme Court’s conservative core, this Article probes how those views diverge. For Pound, the ideal regulatory alternative to agency action was the common law of torts, which he characterized as the last bastion of a democratic society. This is decidedly not the view of the conservative core. Their antagonism towards the common law of torts, which apparently runs even deeper than their hostility towards agencies, is on full display in their federal preemption decisions. How, then, to fill the regulatory void the conservative core seems to leave agape? This Article proposes one possible path to the answer.

Drawing inspiration from the views of Pound himself, as well as the work of Guido Calabresi, this Article proposes that courts should adopt an altogether new approach, one whereby they effectively incorporate input from federal agencies, while at the same time ensuring that such agencies do not overreach. This need not entail the wholesale rejection of agency interpretive authority espoused by the conservative core in its non-preemption decisions. Instead, and as even Pound recognized, courts can and should exercise oversight to ensure that agency interpretations and conclusions are backed by responsible rulemaking procedures and empirical support. This approach can lead to an effective tort-agency partnership, where the administrative state and common law can operate as regulatory complements.

July 7, 2016 in Scholarship | Permalink | Comments (0)

Wednesday, July 6, 2016

First Self-Driving Car Fatality

A man driving a Tesla Model S in Florida has become the first self-driving car fatality.  Statements by Tesla and NHTSA concur that, while in Autopilot mode, the car failed to distinguish the white side of a turning tractor trailer from the bright May sky; the brakes were not applied.  The man's family has retained an attorney.  This case will begin sorting out all of the unanswered questions created by the new technology.  The ABA Journal has details.

Updated:  Analysis from The Guardian here.

July 6, 2016 in Products Liability, Web/Tech | Permalink | Comments (0)

Tuesday, July 5, 2016

Assumption of Risk, Iceland-Style


Thanks to Jill Family!

July 5, 2016 in Travel | Permalink | Comments (0)

Monday, July 4, 2016

Happy Fourth of July; Careful with the Fireworks

Happy Fourth to our readers in the U.S.  Recent statistics demonstrate that as fireworks laws are liberalized, injuries increase.  Be safe today.

July 4, 2016 in Current Affairs | Permalink | Comments (0)

Friday, July 1, 2016

JOTWELL Torts: Chamallas on Swan on Bystanders and Bullies

Martha Chamallas reviews Sarah Swan's Bystander Interventions at JOTWELL.

July 1, 2016 in Scholarship, Weblogs | Permalink | Comments (0)