TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Friday, March 31, 2017

Goudkamp & Nolan on Contributory Negligence at the Appellate Level

James Goudkamp and Donal Nolan have posted to SSRN Contributory Negligence on Appeal.  The abstract provides:

Contributory negligence is a private law doctrine of considerable practical importance, and trial court decisions applying the doctrine are frequently the subject of appeals. In this article, we report the key findings of an empirical study of the operation of the contributory negligence doctrine in the Court of Appeal. A fuller report of the results of our study can be found in James Goudkamp and Donal Nolan, “Contributory Negligence in the Court of Appeal: An Empirical Study” (2017) 37 Legal Studies (forthcoming). This study builds upon an earlier exploration of the handling of the contributory negligence doctrine at first instance: James Goudkamp and Donal Nolan, “Contributory Negligence in the Twenty-First Century: An Empirical Study of First Instance Decisions” (2016) 79 Modern Law Review 575.

March 31, 2017 in Scholarship | Permalink | Comments (0)

Wednesday, March 29, 2017

Judge Dismisses Federal Claim Against Man Who Shot Down Drone

Defendant was sued after shooting plaintiff's drone out of the sky when it was over defendant's property.  Plaintiff sued in federal court claiming the drone was an aircraft, and, thus, under the regulation of the FAA.  Senior U.S. District Judge Thomas Russell, based in Louisville, disagreed:

Russell wrote in a March 21 opinion that the suit was essentially a garden-variety state tort claim that should not be in federal court. Although the Federal Aviation Administration has an interest in enforcing regulations governing federal airspace, “its interest in applying those regulations in the context of a state tort law claim for trespass to chattels is limited or nonexistent,” Russell said. At most, the FAA regulations are ancillary issues in the case, he concluded.

ABA Journal has the story.

March 29, 2017 in Current Affairs | Permalink | Comments (0)

Tuesday, March 28, 2017

Geistfeld on Autonomous Vehicles

Mark Geistfeld has posted to SSRN A Roadmap for Autonomous Vehicles:  State Tort Liability, Automobile Insurance, and Federal Safety Regulation.  The abstract provides:

The vast majority of motor vehicle crashes are now caused by driver error. Autonomous vehicles will eliminate driver error and prevent thousands of fatalities and serious bodily injuries, making a compelling safety case for policies that foster the rapid development of this technology. Considerable technological advances have occurred over the past decade, but there is widespread concern that the rate of development is hampered by substantial uncertainty about potential manufacturer liabilities for the crash of an autonomous vehicle. This uncertainty is compounded by apparent variations in the requirements of state tort law across the country, which make it even more difficult for manufacturers to assess their liability exposure in the national market. The considerable uncertainty and potential patchwork of state laws has prompted calls for the federal safety regulation of autonomous vehicles.

The uncertainty stems from the complexity of driving behavior. Autonomous vehicles will not be perfectly safe; in this respect, they will inevitably fail at times. Given the complexity of driving and the inherent limitations of coding that behavior, how can courts reliably determine whether such a failure — the crash of a fully functioning autonomous vehicle — subjects the manufacturer to tort liability?

Framing the liability problem in this manner masks one central behavioral factor that considerably simplifies matters. Autonomous vehicles will transform the individualized behavior of human drivers into a collective, systemized form of driving. In effect, the entire fleet will be guided by a single driver — the operating system comprised of the hardware and software that determines how this class of autonomous vehicles executes the dynamic driving task. Systemized driving is properly evaluated in relation to the performance of an entire fleet of autonomous vehicles with the same operating system, an inquiry that is often quite different from the case-by-case analysis of crashes involving conventional motor vehicles.

When a crash was caused by the fully functioning operating system, the autonomous vehicle was engaged in systemized driving performance that should be evaluated with aggregate driving data for the fleet. Regardless of the particular circumstances of the crash, the programming or design of the operating system would be reasonably safe under widely adopted rules of products liability if the aggregate, premarket testing data show that the autonomous vehicle performs at least twice as safely as conventional vehicles. To avoid liability for the crash of a fully functioning autonomous vehicle, the manufacturer must also adequately warn consumers about this inherent risk. Once again, the risk involves systemized driving performance, and so aggregate driving data provide the appropriate measure. Based on these data, auto insurers can establish the risk-adjusted, annual premium for insuring the vehicle. By disclosing such a premium to consumers, the manufacturer would satisfy its obligation to warn about the inherent risk of crash, eliminating this final source of manufacturer liability for crashes caused by a fully functioning autonomous vehicle.

The collective learning of state tort law can then inform federal regulations governing the reasonable safety of automated driving technologies. The foregoing analysis is based on tort rules that have been widely adopted across the country. States that do not follow the majority approach might reach different conclusions. To ensure that manufacturers face uniform obligations within the national market, the National Highway Transit Safety Administration could adopt two federal regulations that clearly fit within its recently announced regulatory approach, each respectively derived from the associated tort obligations concerning adequate premarket testing and disclosure of the inherent risk of crash. These regulations would largely retain the role of tort law, because regulatory compliance would also satisfy the associated tort obligations in most states. The regulations would promote the federal interest in uniformity in a manner that minimizes the displacement of state tort law, thereby optimally solving the federalism problem.

The federal regulations would be supplemented by state tort law in important instances, yielding a comprehensive regulatory approach. Within this legal framework, a regulatory compliant autonomous vehicle would subject the manufacturer to tort liability only for crashes caused by malfunctioning physical hardware (strict products liability); malfunctions of the operating system due to either programming error (same) or third-party hacking (strict liability again, with an important caveat); or the manufacturer’s failure to adequately warn about safe deployment of the vehicle (an ordinary products liability claim). A manufacturer would also be subject to tort liability for not complying with the federal regulations (negligence per se).

By eliminating driving error and otherwise reliably performing in accordance with system standards, autonomous vehicles will not subject manufacturers to tort liability. Autonomous vehicles can be regulated in a manner that ensures reasonably safety without impeding the rapid development of this life-saving technology.

March 28, 2017 | Permalink | Comments (0)

Friday, March 24, 2017

Lens on Defective Punitive Damage Awards

Jill Wieber Lens has posted to SSRN Defective Punitive Damage Awards.  The abstract provides:

Private redress theories of punitive damages recognize an individual victim’s right to be punitive. That right exists because the defendant knew its conduct would probably cause the victim a severe injury, yet the defendant still acted, willfully injuring the victim. The injured victim can seek and obtain punitive damages to punish the defendant for disrespecting her rights.

This Article is the first to apply private redress theories of punitive damages to claims involving a defective product. This application is unexpectedly difficult because of the importance of evidence of harm to nonparties in establishing defect, and because the defendant’s knowledge of the probable injury was not specific to the injured victim but instead general to all potential victims.

Absent special circumstances, the manufacturer disrespected each of the injured victims in the same way. Consistent with private redress theories, each injured plaintiff can seek punishment for that disrespect. But the disrespect is not unique and each injured plaintiff should receive an identical punitive damage award.

March 24, 2017 in Scholarship | Permalink | Comments (0)

Thursday, March 23, 2017

Wrongful Birth Versus Wrongful Conception in Georgia

A Georgia sperm bank is facing numerous suits based on a donor who was touted as a Ph.D. in neuroscience with an IQ of 160 when he was, in fact, a college dropout with a criminal record and a diagnosis of schizophrenia.  The suits, however, have run afoul of a distinction in Georgia law between wrongful birth and wrongful conception.  Wrongful birth claims normally arise when the parents contend they would have aborted the child if they had been fully aware of the child's condition.  By contrast, wrongful conception claims generally arise when a sterilization or abortion procedure goes wrong and a live birth unintentionally results, allowing a plaintiff to recover for medical expenses, pain and suffering and other claims. Georgia courts recognize the latter, but not the former; courts are finding the claims to be of the disfavored wrongful birth variety.

 The judge dismissing the most-recent claims stated:  "The reason why Georgia courts have looked on wrongful birth claims with disfavor is not because of the timing of the tort or the causal link between the defendant and the harm.  The true difference between the two torts is the measure of damages. Wrongful birth claims are disfavored because they require the court to decide between the value of a life with disabilities and the value of no life at all."

The National Law Journal has the story.

In related news, the Texas Senate has voted 21-9 to abolish that state's wrongful birth cause of action.  Thanks to Jill Lens for the tip.

March 23, 2017 in Current Affairs | Permalink | Comments (0)

Wednesday, March 22, 2017

IA: Senate Passes Med Mal Reform Bill

The Iowa Senate passed a tort reform bill in an attempt to attract more physicians to the state:

Senate File 465 includes provisions governing doctor-patient communications after adverse medical incidents; capping limits on non-economic damages, such as  pain and suffering, at $250,000; requiring a "certificate of merit" to screen out frivolous litigation; and establishing standards for expert witnesses.  The Des Moines Register has this story.

These reforms, including the cap, are unlikely to significantly affect physician supply in Iowa, as I stated back in 2014.

March 22, 2017 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Tuesday, March 21, 2017

Idaho Seeks Entry-Level Torts Professor

The University of Idaho College of Law is conducting an off market search for Torts, Advanced Torts, Professional Responsibility, and a fourth course to be negotiated with the Dean. We anticipate this position will be in Boise, as opposed to the main law school campus in Moscow. The law school’s location in Boise currently only offers second and third year law students. However, the law school has received ABA provisional accreditation for first year classes in Boise beginning in the fall of 2017.
Members of this search committee include Monique Lillard, David Pimentel (chair), and Shaakirrah R. Sanders . Please feel free to ask us any questions that you may have. Also, please feel free to pass this message along to anyone that you think may be interested or qualified.
You can view the posting here: 

March 21, 2017 in Teaching Torts | Permalink | Comments (0)

Monday, March 20, 2017

AALS Torts Section Mentoring Program

The AALS Torts & Compensation Systems Section announces its new mentoring program.  The Torts Section may be able to help if you are a professor who:

  • is starting a career in torts or shifting to torts from another subject area, and
  • lacks a torts colleague to discuss scholarship and teaching.

The Executive Committee and the Section at large have numerous professors happy to work with you.  The goal is to match mentors and mentees based on specific areas of interest.  To start the process, please contact the Chair of the Torts Section, currently Chris Robinette ( or 717-541-3993).

March 20, 2017 in Scholarship, Teaching Torts, TortsProfs | Permalink | Comments (1)

Friday, March 17, 2017

JOTWELL Torts: Zipursky on Goold on Copyright Infringement as Tort

At JOTWELL, Ben Zipursky reviews Patrick Goold's Unbundling the "Tort" of Copyright Infringement.

March 17, 2017 in Scholarship, Weblogs | Permalink | Comments (0)

Thursday, March 16, 2017

Jane Wright: Tort Law and Human Rights

Hart Publishing announces the second edition of Jane Wright's "Tort Law and Human Rights".  The blurb provides:

This is a completely revised and expanded second edition, building on the first edition with two principal aims: to elucidate the role that domestic tort principles play in securing to citizens the human rights standards laid down in the European Convention on Human Rights, including the new 'remedy' under the Human Rights Act 1998; and to evaluate tort principles for compliance with those standards. The first edition was written when the Human Rights Act 1998 was newly enacted and many questions existed as to its potential impact on tort law. Answers to many of the questions, which were raised at that time, are only now emerging. Therefore, the text has been updated to reflect these developments. Whether it is appropriate to attribute particular goals and functions to tort law is highly contested and the analysis begins by locating the discussion within these contemporary debates. The author goes on to examine the extent to which the action against public authorities under section 7 of the Act has impacted on the development of common law principles, as well as the issue of horizontal effect of the Act between non-state actors. New chapters include: 'A Human Rights Based Approach to Tort Law' and 'Public Authority Liability and Privacy – From Misuse of Private Information to Autonomy.'

This flyer includes a 20% discount:  Download Wright

March 16, 2017 | Permalink | Comments (0)

More on the House Tort Reform Bills

Wednesday, March 15, 2017

Engstrom on LARA

Nora Engstrom has a short piece on the bill to mandate sanctions for "frivolous" lawsuits in which she looks at an earlier attempt to do the same thing.

March 15, 2017 in Legislation, Reforms, & Political News, Scholarship | Permalink | Comments (0)

Monday, March 13, 2017

House Passes Bill Mandating Sanctions for "Frivolous" Lawsuits

Bruce Kaufman at Bloomberg has the story.

March 13, 2017 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Tejani on Deterrence

Riaz Tejani (Illinois-Springfield Department of Legal Studies) has posted to SSRN Efficiency Unbound:  Processual Deterrence for a New Legal Realism.  The abstract provides:

Optimal deterrence theory seeks to promote resource maximization by identifying the most economically useful occasions and magnitudes for legal liability. But liability is only the final outcome of a burdensome process made more onerous for many today by widening inequalities in wealth and access to justice. Omission of this may reflect a preoccupation among tort theorists with large corporate actors and a drift further from the dilemmas of individual and social justice. Select lessons from American Legal Realism prompt us to go beyond liability to think about the deterrent function of legal process itself. These lessons challenge us to consider the interpretive dimension of human behavior in its response to not only norm enforcement but also threats thereof. Taking up that challenge, this Article suggests that considerations of optimal deterrence should account for the behavioral impact of what it terms the “specter of process,” in other words the fear of litigation itself, and that doing so requires a stronger bridge between economic and interpretive empirical studies of law. The revised theory may be said to include processual deterrence, the degree to which the behavior of legal subjects is shaped ex ante by fears of being implicated in the burdens of litigation.

March 13, 2017 in Scholarship | Permalink | Comments (0)

Friday, March 10, 2017

House Passes Class Action Bill

Tuesday, March 7, 2017

NC: $500,000 Settlement for Facebook Defamation

A woman who implied a mother got drunk and caused the death of her child has settled a defamation case for $500,000.  10 News has the story, quoting Mike Green.

March 7, 2017 in Current Affairs | Permalink | Comments (0)

Monday, March 6, 2017

KY: Med Mal Review Panels Pass Both Houses

Both the House and Senate have passed a med mal review panel bill, and it is on its way to Governor Matt Bevin.  The gist:

 The proposed law would require plaintiffs to submit medical malpractice claims for review to an advisory panel that would review the case and determine whether it has merit or is frivolous before issuing a nonbinding opinion as to whether the case should proceed.

Trial judges would decide the admissibility of the panel's finding.  

When our firm represented med mal plaintiffs in Virginia, a review panel law was in place.  We routinely declined to participate in the process.  When the results were provided to the jury our non-participation in the panel procedure was noted.  The panels are a waste of time.  A better way to reduce suspect lawsuits is to use a certificate of merit procedure.  It is not perfect, but it accomplishes the goal of reducing frivolous suits more directly, and without an impact on plaintiffs whose suits are meritorious.  Needless to say, it is far superior to caps for the same reason.  

The National Law Review has the story.

March 6, 2017 in Legislation, Reforms, & Political News | Permalink | Comments (2)

Sandy Hook Plaintiffs Appeal Dismissal to State Supreme Court

Attorneys representing the families of the children slain at Sandy Hook attempted to fit their allegations within an the negligent entrustment exception to the 2005 Protection of Lawful Commerce in Arms Act.  Their case was dismissed, and now they are appealing to the state supreme court.  The attorneys rely on a 1977 Michigan case:

The families attorneys are hoping a case involving a slingshot injury in Michigan will help them prove that one of the largest gun manufacturers in the world negligently entrusted the AR-15 to Lanza even though he didn't actually purchase it and help them overcome PLCAA's strict language favoring the gun manufacturers.

The case in Michigan was a 1977 lawsuit by the family of a 12-year-old against a company that manufactured slingshots. The boy was injured when he was struck in the eye by a pellet fired from a slingshot that richocheted off a tree.

The court allowed the case to go before a jury ruling that the company entrusted the slingshot to a class of people, in this case younger children, that made the ultimate accident foreseeable.

In this case, Koskoff argued instead of a slingshot Remington used marketing and product placement to purposefully target a "younger demographic of users" interested in the most dangerous and lethal use of their weapon.

The Hartford Courant has the story.

March 6, 2017 in Current Affairs, Products Liability | Permalink | Comments (0)

Friday, March 3, 2017

Bloomberg Series on Federal Tort Reform Concludes

The third of three in Bruce Kaufman's series on federal tort reform is here:

Trump Seen as Supportive of Business-Backed Litigation Bills

March 3, 2017 in Legislation, Reforms, & Political News | Permalink | Comments (0)

House Judiciary Committee Approves Med Mal Caps

The House Judiciary Committee, by an 18-17 margin, approved legislation capping damages in medical malpractice cases.  The federal legislation would cover individuals who are insured under Medicare, Medicaid, veterans or military health plans, and the Affordable Care Act, and could also impact people covered under COBRA or health savings plans.  The vote surprised opponents of caps, who expected a vote in conjunction with the ACA replacement.  STAT has the story

March 3, 2017 in Legislation, Reforms, & Political News | Permalink | Comments (0)