TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Saturday, December 30, 2017

Conk on the Role of Occupational Health and Safety in Workers' Comp and Tort

George Conk has posted to SSRN Deadly Dust: Occupational Health and Safety as a Driving Force in Workers' Compensation Law and the Development of Tort Doctrine and Practice.  The abstract provides:

Many observers, looking back at the early twentieth century’s creation by states of the workers compensation laws have seen a grand bargain. In this view tort remedies were compromised for the certainty of more modest scheduled statutory benefits. This study argues that the tort laws were a major victory for labor. Workers gained the right to medical treatment, temporary total disability benefits, and permanent disability benefits. The medical benefits and temporary disability were prompt and reliable for all work related accidental injuries. The loss of the tort remedy against the employer was of little significance since compensation via tort was highly uncertain. Further the right to sue third parties in tort was preserved – and enabled to some degree by the workers compensation benefits received.

But occupational diseases were excluded until pressure by labor and pro labor interests achieved reforms. Much of the driving force was the recognition of pneumoconiosis – particularly silicosis. The granite cutters of Vermont spurred studies which demonstrate the limits of the germ theory of disease and identified the deadly granite dust as the cause of lung disease. Many states broadened their definitions of occupational disease.

Asbestos related disease – particularly the form of pneumoconiosis known as asbestosis advanced the science of pulmonary disease. The landmark studies by Irving Selikoff of morbidity and mortality of insulation workers created a body of evidence that supported the massive wave of third party asbestos litigation. The asbestos epidemic litigation advanced the doctrines of strict product liability law, drove courts to advance management of “mass torts” via multi-district litigation, and increased the competence of courts to deal with epidemiological and other forms of scientific evidence of disease causation.

December 30, 2017 in Scholarship | Permalink | Comments (0)

Tuesday, December 26, 2017

WI: Supreme Court Aligns State Class Actions Rule With FRCP 23

Last week the Wisconsin Supreme Court unanimously adopted proposed amendments to the state's class action procedures designed to bring them into alignment with Federal Rule of Civil Procedure 23.  The order replaces a one-sentence class action statute that is a hold-over from the nineteenth century Field Code.  The order is here:   Download DC-#649050-v1-2017_amendments_to_Wisconsin_class_action_rule

December 26, 2017 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Friday, December 22, 2017

JOTWELL Torts: Sebok on Sugarman on Merging Battery and Negligence

At JOTWELL, Tony Sebok reviews Steve Sugarman's contribution to the JTL symposium on the Restatement of Intentional Torts to Persons.

December 22, 2017 | Permalink | Comments (0)

Thursday, December 21, 2017

WY Recognizes Intrusion Upon Seclusion

On Tuesday, the Wyoming Supreme Court recognized intrusion upon seclusion.  According to the opinion, there is now only one jurisdiction in the U.S. that has not taken a stand on the invasion of privacy torts.  Of the other 48 states, only 2 have explicitly refused to adopt intrusion upon seclusion.  The case involved allegations that a rent-to-own company installed software on laptops without plaintiffs' knowledge.  The software allegedly could be used to remotely access the laptops’ cameras, capture the content of the laptops’ screens and log keystrokes entered on the laptops.  KPVI has the story.

December 21, 2017 in Current Affairs | Permalink | Comments (0)

Wednesday, December 20, 2017

NY: UM/UIM Law Changes

On Monday, Governor Cuomo signed legislation making the default purchase of UM/UIM (called SUM in NY, for Supplemental Uninsured/Underinsured Motorist coverage) the same as the insured's purchase of liability insurance; the default had been the state minimum.  Insureds can opt out.  As someone who has seen terrible under-compensation of injuries due to failure to purchase, or failure to purchase sufficient amounts of, UM/UIM coverage, I applaud this change.  Eric Turkewitz covers it here.

December 20, 2017 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Tuesday, December 19, 2017

Feldthusen, Green, Goldberg & Sharkey on Product Liability in North America

Bruce Feldthusen, Mike Green, John Goldberg & Cathy Sharkey have posted to SSRN Product Liability in North America.  The abstract provides:

This book chapter provides an overview of the rules governing liability for product-related injuries in the U.S. and Canada, as well as the context in which those rules operate. Included are discussions of the rationales for, and the development of, the U.S. doctrine of strict products liability, and the application of strict products liability and negligence doctrines to hypothetical cases.

December 19, 2017 in Products Liability | Permalink | Comments (0)

Friday, December 15, 2017

Atlas Obscura Covers the American Museum of Tort Law


December 15, 2017 in Travel | Permalink | Comments (0)

Thursday, December 14, 2017

WI: Bill to Allow Patients to Request the Recording of Operations

A state representative in Wisconsin has introduced a bill allowing patients to request audio and video recordings in operating rooms.  The rationale is to have better evidence of whether an alleged medical error occurred.  A similar bill was introduced in 2015, but did not gain traction.  No jurisdiction in the United States has such a law.  WDJT Milwaukee has the story.

December 14, 2017 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Wednesday, December 13, 2017

TX: PI Lawyer Reported to Spend $4M on Son's 18th Birthday Party

Seems reasonable.

The ABA Journal has details.

December 13, 2017 in Current Affairs | Permalink | Comments (0)

Tuesday, December 12, 2017

GA: $26M Med Mal Verdict in Columbus

A Columbus, GA woman brought suit against a hospital and one of its physicians based on an allegedly botched neck surgery.  After the surgery, among other injuries, the plaintiff went blind, suffered brain damage, and was confined to a wheelchair.  Following a two-week trial, the jury awarded $26 million in damages.  The Ledger-Enquirer has the story.

December 12, 2017 in Current Affairs | Permalink | Comments (0)

Friday, December 8, 2017

Cover on Municipal Liability

Avidan Cover has posted to SSRN Revisionist Municipal Liability.  The abstract provides:

The current constitutional torts system under 42 U.S.C. § 1983 affords little relief to victims of government wrongdoing. Victims of police brutality seeking accountability and compensation from local police departments find their remedies severely limited because the municipal liability doctrine demands plaintiffs meet near-impossible standards of proof relating to policies and causation.

The article provides a revisionist historical account of the Supreme Court’s municipal liability doctrine’s origins. Most private litigants’ claims for damages against cities or police departments do not implicate the doctrine’s early federalism concerns over protracted federal judicial interference with local governance. Meanwhile the federal government imposes extensive reforms on local police departments through the Violent Crime Control and Law Enforcement Act, 42 U.S.C. § 14141. The resulting system of bifurcated municipal liability for police misconduct ignores history. It permits government-initiated systemic, injunctive relief claims to flow readily, but effectively bans individual victims’ discrete damages claims.

The article proposes making it easier to sue local governments for police brutality. Reducing the standard for damages relief does not offend federalism principles and realizes objectives critical to the constitutional remedial system: compensation, trust, vindication of rights, and appropriate assignment of responsibility. The article proposes a remedial scheme authorizing civil actions for police brutality victims against local governments for (1) a pattern or practice of local government police misconduct, and (2) isolated instances where a local police department lacks a policy, of which there is national consensus by other local departments that the policy is necessary to prevent a particular constitutional harm. The proposal also expands the potential for individual officer liability when the local police department has a specific policy in place aimed at preventing wrongdoing that the officer ignores.

December 8, 2017 in Scholarship | Permalink | Comments (0)

Wednesday, December 6, 2017

USSC Declines to Review NE's Med Mal Damages Cap

Nebraska has one of the few caps in the nation that is applied to total, as opposed to non-economic, damages in med mal cases.  In August 2015, a jury awarded the family of a brain-damaged infant $17M in damages.  Pursuant to the cap, the trial judge reduced the award to $1.75M.  Last June, the Eighth Circuit unanimously affirmed the trial judge.  On Monday, the United States Supreme Court declined to hear the case.  The family had argued the cap is unconstitutional:

The Eighth Circuit’s ruling contravened the Supreme Court’s 1998 holding in Feltner v. Columbia Pictures, which gives juries, rather than a trial judge, the authority to determine damages, Schmidt contended. 

Further, the Seventh Amendment’s constitutional right to a jury trial should be made applicable to the states through the due process clause of the Fourteenth Amendment, Schmidt argued. She drew a parallel to the Supreme Court’s 2010 ruling in McDonald v. City of Chicago, in which the justices applied the right of gun ownership to the states, and by extension local governments, that attempted to ban handguns.

Law 360 has the story.

December 6, 2017 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Monday, December 4, 2017

Costello on Rylands and Fracking

Roisin Aine Costello has posted to SSRN Reviving Rylands:  How the Doctrine Could Be Used to Claim Compensation for Environmental Damages Caused by Fracking.  The abstract provides:

Contemporary societies are characterized by complex interdependence, with industrial activity increasingly having the potential to cause effects beyond local and national borders. Courts have previously illustrated that liability for injurious action must lie with the individual who created the risk of damage under the common law rule of Rylands v. Fletcher. Having fallen out of favour in the twentieth century, this article proposes a re-articulation of the rule to cover situations in modern society in which invasive methods are used in the extraction of volatile fuels from the earth, specifically in the case of ‘fracking’. The article examines recent rulings from the United States and the United Kingdom, as well as precedent from the United Kingdom and Ireland to establish the manner in which the rule of Rylands v. Fletcher might be successfully rearticulated in the context of contemporary common law jurisdictions – specifically focusing on Ireland – as a means for redressing environmental damage.

December 4, 2017 in Scholarship | Permalink | Comments (0)