TortsProf Blog

Stein Appointed to Israeli Supreme Court

Alex Stein, who teaches torts and evidence courses at Brooklyn, has been appointed to the Israeli Supreme Court.  The news release is here.

JOTWELL Torts: Zipursky on Hershovitz on Tort as Expression

At JOTWELL, Ben Zipursky reviews Scott Hershovitz's Treating Wrongs as Wrongs:  An Expressive Argument for Tort Law.

Herstein on Legal Luck

Ori Herstein has posted to SSRN Legal Luck.  The abstract provides:

Explaining the notion of "legal luck" and exploring its justification. Focusing on how legal luck relates to "moral luck," legal causation and negligence, and to civil and criminal liability.

Miller on Suicidal Patients and Physician Immunity

Lauren Miller (Student, Maryland) has posted to SSRN Taking a Chance on Patient Life:  Suicidal Patients, Involuntary Admissions, and Physician Immunity in Maryland.  The abstract provides:

Maryland jurisprudence exempts from liability any physician that elects not to involuntarily admit a mentally ill patient into treatment. This article explores through both statutory and case law jurisdictional differences in the duty owed by physicians to their foreseeably suicidal patients. These findings are applied to Chance v. Bon Secours Hospital and used to advocate against expanding statutory immunity to physicians that recklessly release involuntarily admitted patients from treatment before improvements to their mental health are achieved.

MI: Bill to Replace No-Fault Auto System with Tort

A state lawmaker has filed a bill to shift Michigan from a no-fault auto system to tort law.  Michigan has the highest insurance rates in the nation; it is also the only state with an unlimited amount of lifetime benefits.  Florida is also considering reverting to the tort system.  WTOL 11 has the story.

The Duty of Care in Negligence by James Plunkett

Hart Publishing announces The Duty of Care in Negligence by James Plunkett.  The blurb provides:

This book aims to provide a detailed analysis and overview of the duty of care enquiry, drawing on both academic analyses and judicial experience in leading common law systems. A new structure through which duty problems can be analysed is also proposed. It is hoped that the book provides some fresh insights and clarity of the concept to the reader.

The flyer, with a 20% discount, is available here:  Download Plunkett

Yale Fellowship in Private Law

The Yale Law School Center for Private Law is now accepting applications for the 2018-19 Fellow in Private Law. The Fellowship in Private Law is a full-time, one-year residential appointment, with the possibility of reappointment. The Fellowship is designed for graduates of law or related Ph.D. programs who are interested in pursuing an academic career and whose research is related to any of the Center for Private Law's research areas, which include contracts (including commercial law, corporate finance, bankruptcy, and dispute resolution), property (including intellectual property), and torts. More information is available here.

Fordham Symposium: Civil Litigation Reform in the Trump Era

The Fordham Law Review is hosting a symposium on Friday, February 23.  Speakers are:  Mark Behrens, John Beisner, Andrew Bradt, Stephen Burbank, Scott Dodson, Howard Erichson, Sean Farhang, Jonah Gelbach, Maria Glover, Deborah Hensler, Alexandra Lahav, and Judge Lee Rosenthal.  From the announcement:

In the first year of the Trump presidency, several litigation reform bills passed the House of Representatives. The fate of these bills remains uncertain, but the set of issues they raise will not disappear anytime soon. Legal reform advocates see an opportune moment to pursue an aggressive reform agenda, while critics view the bills as threats to civil justice. In addition, the Trump administration has been at the center of a swirl of litigation, raising issues about the role and processes of civil justice. This one-day symposium will address the prospects of civil litigation reform in the Trump era, taking seriously both the threat to the justice system and the opportunities for improving the litigation process.

IL: Plaintiff Dies the Day Before Verdict, Which is Reduced by $15M

An Illinois appellate court has cut a med mal verdict from $22M to $7M because the plaintiff died the day before the verdict was handed down.  Among the reasons cited was that the money for the plaintiff's suffering was no longer relevant.  The Peoria Journal Star has details.

KY: Med Mal Reform Bill Advances

Last year, Kentucky passed a law requiring med mal cases to be reviewed by a panel prior to advancing to court.  Now another reform is working its way through the legislature.  Senate Bill 20, which just advanced out of committee, would place caps on a plaintiff's attorney's fees and prohibit expressions of sympathy from being used against physicians in med mal cases.  The story from ctpost is here.

Rabin on Tort and Workers' Compensation

Bob Rabin has posted to SSRN Accommodating Tort Law:  Alternative Remedies for Workplace Injuries.  The abstract provides:

In this paper, I explore the often-contested territory that tort occupies within the more expansive domain of worker’s compensation. This exploration reveals that, far from being substitutes, tort and worker’s compensation are, in fact, deeply and inextricably joined: A complementarity that underscores the trade-offs intrinsic to each system. Whatever the source and scale of harm, the incentives to pursue a third-party tort suit—in light of the bar on a direct claim against the employer—are straightforward. Worker’s compensation no-fault benefits feature stringent caps on economic loss beyond medical expenses, and bar non-economic recovery altogether. By contrast, tort provides the prospect of recovery for total wage loss, as well as pain and suffering, which is considerably more remunerative than worker’s compensation benefits—particularly in the case of more serious injuries or workplace-related fatalities.

These tort claims, in turn, can raise a related question that again demonstrates the inextricable tie between worker’s compensation and tort: Whether the third-party product manufacturer, if responsible in tort, can recover a portion of the tort award through a contribution claim against the employer, despite the ban on a direct employee tort claim against the employer. Correlatively, there is the prospect of the employer seeking to recapture worker’s compensation benefits paid to the employee through a subrogation claim against the third-party tort defendant.

These intersecting claims most frequently involve accidental harm in the workplace, rather than intentional misconduct or reckless disregard for the safety of workers. But in the latter cases of egregious employer misconduct, most states recognize an exception from the bar on tort recoveries. As a consequence, these are situations where tort recovery may be a substitute for worker’s compensation rather than standing side-by-side with tort, as in accidental harm cases. Similarly, Title VII claims for sexual harassment in the workplace stand as a distinct tort-type source of recovery entirely apart from the worker’s compensation system.

Gardner on Tort Theory

John Gardner has posted to SSRN Tort Law and Its Theory.  The abstract provides:

This paper explores the body of scholarly writing known as 'tort theory', and in particular the polarization of 'economic' and 'moral' approaches to the subject. It queries the ambitions, the discourses, and the presuppositions of work on both sides of that divide. In particular it investigates: the sense in which both approaches are (and are not) inevitably 'normative'; what counts as tort law, and what counts as a tort, according to the two approaches; and what it means (and what it does not mean) to think of tort law as 'instrumental'.