TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Thursday, May 31, 2018

MI: High Standard for Intentional Tort Exception to Workers' Comp Bar Upheld

The Michigan Court of Appeals recently upheld the high standard necessary to overcome the workers' compensation bar to suing an employer in tort.  As in other jurisdictions, Michigan makes it difficult for an injured employee to sue his or her employer in tort.  A common exception is for intentional torts.  Michigan requires the employee demonstrate he or she was injured "as the result of a deliberate act of the employer and the employer specifically intended the injury."  In a decision announced last month, Shumaker v. Meritt Tool & Dye, an employee was working with a large press used to cut steel.  The employee lost three fingers when the machine unexpectedly double-cycled.  The employer had received safety citations a few years prior relevant to the press:

Ultimately, the Court of Appeals held that (1) despite the employer having actual knowledge that the machine could double-cycle, the plaintiff failed to show there was a genuine issue of material fact about whether an injury was "certain to occur" as is required by MCL 418.131; and (2) even if the plaintiff had established that the defendant had actual knowledge that the injury was certain to occur, the plaintiff showed no evidence that the employer "willfully disregarded" such knowledge.

Lexology has the story.

May 31, 2018 in Current Affairs | Permalink | Comments (0)

Wednesday, May 30, 2018

Workers' Compensation Law Blog

There is an obvious connection between tort law and workers' compensation.  Both provide compensation to the injured, but they are based on different philosophical underpinnings.  Mike Duff leads a team of editors at Workers' Compensation Law Blog, an active and very thorough blog.  Check it out here.

May 30, 2018 in Weblogs | Permalink | Comments (0)

Tuesday, May 29, 2018

Goldberg & Zipursky on the Law-Equity Distinction

John Goldberg & Ben Zipursky have posted to SSRN From Riggs v. Palmer to Shelley v. Kraemer:  The Continuing Significance of the Law-Equity Distinction.  The abstract provides:

This chapter begins with a sharp distinction between two kinds of judicial authority — the authority to apply law and to do equity. Plaintiffs who file suit on a claim of legal right assert an entitlement to recourse from the defendant, and to judicial assistance in obtaining it. By contrast, equitable claims request a court to exercise its discretion to block or modify the ordinary operation of the law, or to provide relief to which there is no legal entitlement. This distinction, we argue, sheds light on some of American law’s most famous and controversial decisions, including Riggs v. Palmer, Moore v. Regents, and Shelley v. Kraemer. Indeed, insofar as each reaches a defensible result, it is because it is an instance of a court doing equity rather than applying law. As our analysis of these and other decisions demonstrates, an appreciation of the law-equity distinction remains necessary for an adequate understanding of Anglo-American legal systems.

May 29, 2018 in Scholarship | Permalink | Comments (0)

Wednesday, May 23, 2018

ALI: Update on Torts-Related Projects

The ALI's 95th Annual Meeting concludes today, but the torts and torts-related projects are finished.  Two of the projects are truly complete.  The membership approved a Proposed Final Draft of the Economic Harm project (Ward Farnsworth, Reporter) and the Law of Liability Insurance project (Tom Baker and Kyle Logue, Reporters).  Several additional sections of the Intentional Torts project (Ken Simons and Jonathan Cardi, Reporters) were also approved.

May 23, 2018 in Conferences | Permalink | Comments (0)

Tuesday, May 22, 2018

PA: State Cannot Seize $200M from JUA to Balance Budget

Pennsylvania, facing a large budget deficit, attempted to take $200M from a state-created joint underwriting association for medical malpractice insurance.  The state passed a law requiring the JUA to give up $200M of its $268M surplus by December 1, 2017 or be dissolved.  Judge Christopher Conner of the Middle District of Pennsylvania issued a preliminary injunction to halt the dissolution.  Stating the money was private property, Judge Conner has held that the transfer is a seizure of property without compensation and is unconstitutional.  

May 22, 2018 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0)

Tuesday, May 15, 2018

JOTWELL Torts: Steel on Voyiakis on Causation

At JOTWELL, Sandy Steel reviews Emmanuel Voyiakis' Causation and Opportunity in Tort.

May 15, 2018 in Scholarship, Weblogs | Permalink | Comments (0)

Friday, May 11, 2018

Lens: "Recognizing Stillborn Babies Does Not Threaten Abortion Rights"

Jill Wieber Lens has published "Recognizing Stillborn Babies Does Not Threaten Abortion Rights" at HuffPost.  Here's a sample:

Abortion rights groups rationally ― and rightly ― fight against abortion limits, including bans on abortions after however many weeks of pregnancy and mandatory ultrasounds. But the fight against recognition of stillbirth feels a bit irrational. The Supreme Court in Roe v. Wade specifically recognized that a tort claim for parents after the death of an unborn child does not give the unborn baby any rights. It is the parents’ claim, not the unborn baby’s claim.

May 11, 2018 in Current Affairs | Permalink | Comments (0)

Thursday, May 10, 2018

OH: Further Restrictions on Spoliation of Evidence

Ohio recognizes an independent tort of intentional, but not negligent, spoliation of evidence.  The Supreme Court has further restricted the tort:

In Elliott-Thomas v. Smith, Slip Opinion No. 2018-Ohio-1783, the Supreme Court narrowed the scope of intentional spoliation claims by adding the requirement of actual proof of destruction or alteration of evidence. Further, the Supreme Court held that claims for intentional concealment of, or intentional interference with, evidence are excluded from intentional spoliation claims. 

JDSupra has details.

May 10, 2018 in Current Affairs | Permalink | Comments (0)

Wednesday, May 9, 2018

PA: Med Mal Statute of Repose Challenged as Unconstitutional

A mother and son who together experienced a failed liver transplant argued to the Pennsylvania Supreme Court on Monday that the seven-year med mal statute of repose should be struck down as violating the state constitution's "open courts" provision.  The statute of repose was one of many provisions included in the MCARE statute, passed in 2003 to deal with an alleged med mal crisis in Pennsylvania.  Law 360 has the story.

May 9, 2018 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Tuesday, May 8, 2018

Geistfeld on Cost-Benefit Analysis

Mark Geistfeld has posted to SSRN Cost-Benefit Analysis Outside of Welfarism.  The abstract provides:

Welfarism is the principle that the goodness of a social state is an increasing function of individual welfare and does not depend on anything else. As Gregory Keating convincingly argues in the lead article for this symposium, welfarism cannot account for important normative differences among different types of welfare losses or costs. Welfarism entails that all welfare losses and gains — regardless of their source — are to be rendered fungible and then compared within a cost-benefit analysis (CBA) of the welfare changes. According to Keating, liberal egalitarian principles such as equal freedom or self-determination normatively distinguish bodily injuries from harms to liberty and economic interests. Bodily integrity and related forms of security are necessary conditions for the meaningful exercise of liberty, and that normative difference must be fairly accounted for by legal standards that govern significant risks threatening human health and safety. Hence Keating concludes that liberal egalitarian principles rule out CBA for setting such safety standards.

Despite its apparent logic, the idea that economic analysis is incompatible with or irrelevant to a rights-based principle of fairness is mistaken. Tort law shows why a legal system that protects the individual right to physical security can be usefully guided by the methodology of CBA and distributive economic analysis more generally. The governing principle of substantive equality determines the appropriate use of CBA, thereby framing the issues that can be usefully addressed by distributive economic analysis. Welfare does not have to be the master value in order to be relevant. As fully illustrated by the normative framework that Keating otherwise persuasively defends, CBA has an integral role outside of welfarism.

May 8, 2018 in Scholarship | Permalink | Comments (0)

Monday, May 7, 2018

Geistfeld on the Regulation of Autonomous Vehicles

Mark Geistfeld has posted to SSRN The Regulatory Sweet Spot for Autonomous Vehicles.  The abstract provides:

Although federal legislation governing highly automated vehicle (“HAV”) technology has yet to be enacted, developments so far strongly indicate that Congress will finally settle upon a framework that establishes the same roles for federal regulatory law and state tort law that now exist for conventional motor vehicles. Like the HAV bills pending in Congress, the National Traffic and Motor Vehicle Safety Act of 1966 contains both an express preemption provision along with a saving clause, which says that “[c]ompliance with” a federal safety standard “does not exempt any person from any liability under common law.” These two provisions of the 1966 Act were harmonized by the U.S. Supreme Court in Geier v. American Honda Motor Company, which held that the saving clause embodies a legislative purpose to retain a meaningful role for tort law that can be displaced by federal regulations only as a matter of implied preemption. Because the pending federal HAV bills establish the same roles for federal regulatory law and state tort law that exist under the 1966 Act, the Court’s interpretation of that Act in Geier should extend to the HAV legislation.

As fully illustrated by the safety issue involving the reasonably safe performance of fully functioning autonomous vehicles, federal regulators meaningfully preserve state tort law when they base a federal safety regulation on the associated tort requirement enforced by the majority of states. By complying with this type of regulation, manufacturers would fully satisfy the associated tort obligations in these states, making regulatory compliance a complete defense. In the remaining minority of states, regulatory compliance would foreclose tort liability as a matter of implied preemption. This framework would uniformly regulate HAV technology across the national market while maximally preserving state tort law, thereby hitting the regulatory “sweet spot” that optimally solves the federalism problem.

May 7, 2018 in Scholarship | Permalink | Comments (0)

Thursday, May 3, 2018

Recent Publications of the Institute for European Tort Law and the European Centre of Tort and Insurance Law

Wednesday, May 2, 2018

Folmer, Desmet, and Van Bloom on Tort Law, Compensation, and Apologies

Chris Reinders Folmer, Pieter Desmet, and Willem H. Van Bloom have posted to SSRN Is it Really Not About the Money?  Victim Needs Following Personal Injury and Property Loss and Their Relative Restoration Through Monetary Compensation and Apology.  The abstract provides:

Tort law currently debates the value of facilitating apology, particularly in the domain of personal injury litigation, where victims’ immaterial needs are claimed to be neglected by monetary remedies. However, insight on its remedial value is limited, as extant evidence does not yet illuminate 1) which immaterial needs victims experience in tort situations, 2) how prominent these needs are relative to their material needs, 3) how monetary remedies may redress either need, 4) how apologies contribute beyond this, and 5) how this may impact case resolution (i.e., settlement decisions). We present two experimental studies that illuminate these questions by demonstrating that 1) tort victims experience several distinctive immaterial needs (for interpersonal treatment, responsibility taking, punishment, and closure); 2) these needs are relatively less prominent than victims’ material needs, and no more prominent in personal injury cases than following exclusively pecuniary loss; 3) greater monetary compensation enhances the satisfaction of both victims’ material and immaterial needs; 4) apologies further enhance their satisfaction beyond monetary compensation; 5) however, apology had little impact on settlement, which remained mostly contingent on monetary compensation. No indications were found that apologies are especially effective in personal injury cases (relative to exclusively pecuniary loss). Implications are provided for the role of apology in tort law.

May 2, 2018 in Scholarship | Permalink | Comments (0)