TortsProf Blog

AALS Torts Section 2017 Newsletter

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Parks on Tort Law and Fraternity and Sorority Hazing

Gregory Parks (Wake Forest) has a piece in The Huffington Post about the tort duties of fraternities and sororities with regard to hazing.  The issue is relevant in Pennsylvania due to the February death of a pledge at a Penn State fraternity.  Stacy Parks Miller, the Centre County District Attorney, has been aggressive in prosecuting numerous members of the now-defunct fraternity where the death occurred.  The pledge is on tape (the tape having been recovered by the FBI after allegedly being deleted by a fraternity member) being given 18 drinks in 82 minutes.  Other footage shows fraternity members not seeking help during the course of an entire night for the unconscious pledge who suffered several falls. 

Parks focuses on tort law.  After discussing custom in the "industry," Parks continues:

Regarding hazing, fraternities and sororities have reached a point—and probably did so long ago—when what is expected of them should be heightened. No longer should they be able to say that they’ve done their best or that their approaches are consistent with others in their industry. At its most basic level, what should be expected of fraternities and sororities is that they have harnessed, internalized, and employed the totality of research on hazing. They must also engage with hazing researchers and consultants who employ hazing research and hazing prevention best-practices. You can’t say that you’ve adequately attempted to address hazing and are grossly ignorant of the research on the topic and haven’t engaged with those grappling with the issue.

PA: Federal Judge Issues Preliminary Injunction to Prevent State from Dissolving Med Mal Insurer and Taking its Money

Two weeks ago, I reported that the Commonwealth of Pennsylvania was attempting to use surplus funds from a med mal insurer that was created by state law, but was not a part of state government.  Pennsylvania, trying to balance its budget, passed a law requiring the Pennsylvania Professional Liability Joint Underwriting Association (JUA)  to turn over $200M of a $268M surplus by December 1.  If it fails to comply, the law abolishes the JUA and transfers its money to the Department of Insurance.  Now Judge Christopher Conner has issued a preliminary injunction barring the state from carrying out that action.  The judge's order puts the issue on hold until a federal trial can be held.  PennLive has the story.

Marzen on the Pollution Exclusion and Carbon Monoxide

Chad Marzen has posted to SSRN The Pollution Exclusion and Carbon Monoxide.  The abstract provides:

Approximately 400 individuals die each year and an additional 4,000 individuals are hospitalized annually in the United States due to unintentional carbon monoxide exposure. For the past several decades, insurance policies have generally included a pollution exclusion. This article is intended to contribute to the literature by examining pollution exclusion cases that involved carbon monoxide exposure.

A majority of courts uphold the validity of the pollution exclusion in insurance policies to bar coverage for personal injuries resulting from carbon monoxide. The first part of this article discusses the majority rule and the various arguments courts have utilized to uphold the exclusion. A minority rule has also emerged that the pollution exclusion does not apply to cases involving carbon monoxide. The second part of this article examines the arguments courts have utilized in ruling that carbon monoxide is not a “pollutant.”

In the wake of conflicting guidance from the courts on the applicability of the pollution exclusion in cases of carbon monoxide exposure, the final part of this article proposes that as a matter of public policy states amend their respective insurance codes to require that insurance policies specifically provide coverage for personal injuries involving carbon monoxide exposure.

PA: State Senator Introduces Bill Banning Non-disclosure Agreements in Sexual Assault and Harassment Cases

Sen. Judy Schwank introduced a bill in the Pennsylvania Senate designed to prevent sexual offenders from settling cases without exposure:

Schwank's proposal, rolled out at a Capitol press conference Wednesday, would bar any contract or out-of-court settlement from containing provisions that:

* Prohibit disclosure of the name of any person suspected of sexual misconduct or any information relevant to a claim.

* Would block reports of such claims to an "appropriate person."

* Requires the destruction or expungement of related evidence.

The bill would, however, grant a shield of confidentiality to victims making allegations of abuse, giving them rights similar to juveniles in a child welfare case who can have cases brought through their initials or other identifiers.

California is the only state with such a law.  Opponents argue the bill would discourage defendants from settling these cases.

Pennlive has details.

2 Women Sue Uber for Sexual Assault; Allege Inadequate Background Screening

One woman from Florida and one from California filed suit against Uber on Tuesday in federal court in San Francisco.  The women alleged they were sexually assaulted by Uber drivers and the cause was inadequate background screening and monitoring by Uber.  The suit seeks class action status, and:

It asks the court for unspecified damages to compensate the women, and also seeks court-ordered safety measures including fingerprint background checks for drivers and a panic button on the Uber app that would alert the company and authorities to safety problems.

The lawsuit was filed by the New York firm Wigdor LLP, which is suing Uber in a separate case on behalf of a woman who was raped by an Uber driver in India. The firm also is suing Fox News on behalf of employees who allege race discrimination and sexual harassment.

The New York Post has the story.

Abramson on Media Defenses in Libel and Privacy Cases

Jeffrey Abramson has posted to SSRN Full Court Press:  Drawing in Media Defenses in Libel and Privacy Cases.  The abstract provides:

Recent jury verdicts against Rolling Stone Magazine and Gawker Media raise fundamental issues in defamation and privacy lawsuits, including who is a public figure, what counts as newsworthiness, and whether truth is always a defense under the First Amendment. Using those verdicts as a starting point, I reexamine the democratic arguments the Supreme Court relied on to protect free speech and the press in New York Times v. Sullivan. I conclude that subsequent cases overextended the New York Times rule in ways that weakened its democratic foundation. I suggest three reforms. Regarding the public figure doctrine, courts should enforce the oft-quoted, but frequently ignored, requirement that private individuals morph into public figures only to the extent that they voluntarily thrust themselves into a public controversy. In regard to privacy torts, truth should not be an absolute defense, no matter how uncomfortable such a conclusion is to one reading of the First Amendment. Judges and juries will have to continue to struggle over norms of newsworthiness when truth and privacy collide. Finally, media attention to the private lives of public officials, however justified on occasion, has become so routine as to defeat what New York Times v. Sullivan promised—a press focused on the investigation and criticism of official acts.

KY: CoA Rules Med Mal Panels Can Proceed

Almost two weeks ago, I reported that a Kentucky judge held unconstitutional the state's 2017 law requiring med mal cases to be reviewed by a panel of doctors prior to proceeding to trial.  On Friday, the Kentucky Court of Appeals issued a stay of the order.  The 89 current cases will proceed and prospective cases will have to proceed through the panel process.  The stay is in effect until further notice.  The Northern Kentucky Tribune has details.

PA: Can the Commonwealth Use a Med Mal Insurer's Surplus to Balance the Budget?

The Pennsylvania Professional Liability Joint Underwriting Association (JUA) was created by state law in 1975, but the entity is not a part of state government.  The JUA was founded as a last-ditch insurer for doctors at a time when malpractice insurance was in the first of several cyclical crises.  It has a surplus of $268M.  Pennsylvania, trying to balance its budget, passed a law requiring the JUA to turn over $200M of the surplus by December 1.  If it fails to comply, the law abolishes the JUA and transfers its money to the Department of Insurance.  The JUA has sued Governor Tom Wolf in federal court, asserting the seizure is an unconstitutional deprivation of property without due process of law.  The Inquirer has details.

Culhane on the Texas Shooting Victims Suing the Federal Government

At Politico, John Culhane analyzes the potential case against the federal government for the failure to enter the shooter's domestic violence conviction in a national database that would have prevented him from legally purchasing a gun.

Rabin on NHTSA's Role in Auto Safety

Bob Rabin has posted to SSRN Pathways to Auto Safety:  Assessing the Role of the National Highway Traffic Safety Administration.  The abstract provides:

The Motor Vehicle Safety Act directs the National Highway Traffic Safety Administration (NHTSA) to promulgate and enforce vehicle safety regulations, issue vehicle and component recalls, and conduct research and gather data to support its safety mission. Published twenty-five years ago, Jerry Mashaw & David Harfst’s study, The Struggle for Auto Safety, offered a comprehensive critique of the agency’s performance through its early decades. The authors concluded that after an initial flurry of important rulemaking activity, extending through 1974, NHTSA’s record on the rulemaking front was marked by failed opportunities. Essentially, they concluded that the agency abandoned meaningful rulemaking after its early years and took a path of lesser resistance — resistance, in particular, from Congress, the courts and the auto industry — relying on inefficacious recalls, rather than rulemaking, as its principal regulatory strategy.

In this chapter of a collection of essays celebrating the career of Prof. Mashaw, I reassess their critique twenty-five years later. Reviewing NHTSA’s rulemaking and recall activities since 1990, I conclude that Mashaw and Harfst’s criticisms of NHTSA’s rulemaking performance remain largely valid. I am somewhat more optimistic, however, with regard to the potential for a robust recall program to improve auto safety—despite the agency’s substandard response, discussed in detail in my essay, to the GM ignition switch engine shutdown cases.

I surmise that if NHTSA were to receive adequate resources, adopt the necessary political will, and work towards a culture of “skeptical receptiveness” in its approach to the auto industry — undeniably big ifs — its recall program could become a vital and effective regulatory tool. To provide context, I also discuss the complementary roles that tort and no-fault liability might play.

Should Facebook Notify People Who Saw Fake Russian Posts?

This issue was debated on Capitol Hill and beyond last week, and included analogies to tort law such as the "post-sale duty to warn" in products liability. Reuters has details. 

Wertheimer & Rahdert on PA Products Law

Ellen Wertheimer & Mark Rahdert have posted to SSRN The Force Awakens:  Tincher, Section 402A and the Third Restatement in Pennsylvania.  The abstract provides:

In Tincher v. Omega Flex (2014), the Pennsylvania Supreme Court reached two important decisions regarding Pennsylvania product liability law. First, it overruled an earlier decision, Azzarello v. Black Brothers, Inc., which had mandated a bifurcated process for assessing product defects that required trial judges first to assess whether a product was potentially unreasonably dangerous before submitting the question of whether it was defective to the jury. Second, it rejected efforts by some Justices, federal courts and the defense bar to have the Court adopt the negligence-oriented principles of the American Law Institute’s Third Restatement of Torts: Product Liability. Instead, the Court reaffirmed Pennsylvania’s commitment to the strict product liability principles set in Restatement (Second) Section 402A. This article assesses the implications of the Tincher decision for the future development of product liability law in Pennsylvania and elsewhere. It explains the foundational principles of strict product liability that the decision affirms, discusses the Court’s establishment of a composite consumer expectation and risk-utility test for determining defects in product design, defends the Court’s commitment to modest and incremental common-law adjudication, and discusses the development of jury charges that are faithful to Tincher’s approach. The article also takes issue with attempts by the product liability defense bar to push post-Tincher adjudication toward a negligence-based framework that is inconsistent with the Court’s reaffirmation in Tincher of a doctrine of strict product liability.

This article will be published in Volume 27 of the Widener Law Journal. It is currently in draft form and should not be quoted without the permission of its authors.

KY: Judge Declares Med Mal Panels Unconstitutional

Earlier this year, the Kentucky legislature passed a law requiring med mal cases to go through a panel of doctors prior to going to trial.  A state judge ruled Monday the law was unconstitutional and issued an order banning the state from enforcing the law.  The state has announced it will appeal the ruling.

WKMS has details.