TortsProf Blog

Fraley on Unintentional Nuisances

Jill Fraley has posted to SSRN Liability for Unintentional Nuisances.  The abstract provides:

The Second Restatement of Torts aligned private nuisance law squarely with the law of torts by altering the elements of liability to require 1) intent, 2) negligence, or 3) abnormally dangerous activities. The Restatement then concluded: “an actor is no longer liable for accidental interferences with the use and enjoyment of land.”

Nearly forty years later, textbooks tend to teach the Restatement approach, but the majority of courts have never adopted this switch in the intent requirement for nuisance. In a number of states, accidental interferences remain actionable under nuisance law. The old approach to nuisance is not dying away quietly. In fact, in the new millennium courts have often gone to some trouble to explain and emphasize their resistance—and for good reason. This article defends the positions of those courts and argues that the Restatement got it wrong.

While the Restatement was correct that there had been “confusion” in the case law, the confusion was not about the conduct versus the interest invaded, but rather the muddling of the law of negligence with the law of nuisance. This article argues that nuisance was historically unique in tort law, because of its special role in protecting property rights. In other words, nuisance historically had distinct features addressed to the special situation of land. Most importantly, nuisance protected the right to exclude in a way that no other cause of action did. The Restatement’s change then diminished our rights to private property.

Chesney & Citron on "Deep Fake" Technology

Robert Chesney & Danielle Keats Citron have posted to SSRN Deep Fakes:  A Looming Challenge for Privacy, Democracy, and National Security.  The abstract provides:

Harmful lies are nothing new. But the ability to distort reality has taken an exponential leap forward with “deep fake” technology. This capability makes it possible to create audio and video of real people saying and doing things they never said or did. Machine learning techniques are escalating the technology’s sophistication, making deep fakes ever more realistic and increasingly resistant to detection. Deep-fake technology has characteristics that enable rapid and widespread diffusion, putting it into the hands of both sophisticated and unsophisticated actors.

While deep-fake technology will bring with it certain benefits, it also will introduce many harms. The marketplace of ideas already suffers from truth decay as our networked information environment interacts in toxic ways with our cognitive biases. Deep fakes will exacerbate this problem significantly. Individuals and businesses will face novel forms of exploitation, intimidation, and personal sabotage. The risks to our democracy and to national security are profound as well.

Our aim is to provide the first in-depth assessment of the causes and consequences of this disruptive technological change, and to explore the existing and potential tools for responding to it. We survey a broad array of responses, including: the role of technological solutions; criminal penalties, civil liability, and regulatory action; military and covert-action responses; economic sanctions; and market developments. We cover the waterfront from immunities to immutable authentication trails, offering recommendations to improve law and policy and anticipating the pitfalls embedded in various solutions.

Baker & Silver on Liability Insurance and Patient Safety

Tom Baker & Charles Silver have posted to SSRN How Liability Insurers Protect Patients and Improve Safety.  The abstract provides:

Forty years after the publication of the first systematic study of adverse medical events, there is greater access to information about adverse medical events and increasingly widespread acceptance of the view that patient safety requires more than vigilance by well-intentioned medical professionals. In this essay, we describe some of the ways that medical liability insurance organizations contributed to this transformation, and we catalog the roles that those organizations play in promoting patient safety today. Whether liability insurance in fact discourages providers from improving safety or encourages them to protect patients from avoidable harms is an empirical question that a survey like this one cannot resolve. But, as we show, insurers make serious efforts to reduce their losses by encouraging and helping health care providers to do better in at least six ways. (1) Insurers identify subpar providers in ways that provide the opportunity for other institutions to act. (2) Insurers provide incentives for providers by charging premiums that are based on risk and by refusing to insure providers who are too high risk. (3) Insurers accumulate data for root cause analysis. (4) Insurers conduct loss prevention inspections of medical facilities. (5) Insurers educate providers about legal oversight and steps that they can take to manage their risks. (6) Finally, insurers provide financial and human capital support to patient safety organizations.

Causation in European Tort Law

Marta Infantino and Eleni Zervogianni are editors of "Causation in European Tort Law," available from Cambridge University Press.  From the blurb:

Through a comprehensive analysis of sixteen European legal systems, based on an assessment of national answers to a factual questionnaire, Causation in European Tort Law sheds light on the operative rules applied in each jurisdiction to factual and legal causation problems. It highlights how legal systems' features impact on the practical role that causation is called upon to play, as well as the arguments of professional lawyers. Issues covered include the conditions under which a causal link can be established, rules on contribution and apportionment, the treatment of supervening, alternative and uncertain causes, the understanding of loss-of-a-chance cases, and the standard and the burden of proving causation. This is a book for scholars, students and legal professionals alike.

• Examines many causation problems through the use of factual questionnaires, engaging those with a practical interest in the subject
• Covers sixteen different European jurisdictions, offering a coordinated analysis of each
• Improves the awareness of all factors affecting the application of causation rules in European jurisdictions

Thanks to Richard Wright for the tip.

Lewis on Tort Litigation Tactics

Richards Lewis has posted to SSRN Strategies and Tactics in Litigating Personal Injury Claims:  Tort Law in Action.  The abstract provides:

This article reveals some of the tactics which lawyers may use when conducting personal injury litigation. The research is empirically based by being drawn from structured interviews with a cross section of practitioners. This qualitative evidence helps to place the rules of tort in a wider context and suggests that tactical considerations may affect the outcome of individual cases irrespective of their legal merits. A range of strategies are considered here to illustrate how they may be used at different points during the litigation. In addition, the article updates our understanding of the compensation system by considering the practitioners’ responses in the light of the major changes made to this area of practice in recent years. It reveals how negotiation tactics have developed since research in this area was last carried out. Overall the article adds to a very limited literature dealing with negotiation and settlement of personal injury claims. The picture of litigation painted here runs counter to the misleading image of individualised court-based justice that is often portrayed as the defining characteristic of tort law.

OH: State Fair Ride Disaster, One Year Later

On July 26, 2017, a ride at the Ohio State Fair catastrophically failed, killing one, seriously injuring four, and injuring 22 others.  The "Fire Ball," which has six "arms" that spin riders around, had one arm crack off due to rust.  It was later discovered that all six arms had significant corrosion.  Ohio Department of Agriculture inspectors had reviewed the ride a few hours prior to the incident.  State inspectors, however, have a form of qualified immunity that protects them from liability for negligence.  The ride manufacturer is protected by a statute of repose.  Several settlements have been reached, including an approximate $1.3M settlement on behalf of the 18-year-old man who was killed.  Those settlements are with the ride operator, which has an aggregate $10M insurance policy in place, and a private company that inspected the ride.  The Columbus Dispatch wrote a great update piece yesterday (you may need to sign in to obtain access).

PA: Federal Judge Blocks PA from Taking Approximately $300M from Med Mal JUA

Judge Christopher Conner has issued a preliminary injunction stopping the Commonwealth of Pennsylvania from absorbing the JUA (and its money) into its Insurance Department.  In May, Judge Conner ruled Pennsylvania could not take $200M from the JUA in an attempt to balance its budget because the money was private property and such a seizure violated the Takings Clause of the United States Constitution.  The current ruling indicates those principles apply equally to an absorption.  The May ruling is on appeal to the Third Circuit.  PennLive has the story.  Thanks to Dan Noon for the tip.

AR: Former Judge Challenges Constitutionality of Tort Reform Measure by Ballot

AMP (Arkansas Money & Politics) has the story.  The gist:

Former Pulaski County Circuit Court Judge Marion Humphrey is challenging the ballot measure that would cap damages awarded in lawsuits and give legislative control over court rules in Arkansas.

Humphry filed the lawsuit last week, challenging the proposed constitutional amendment, also known as Issue 1, that Arkansas legislators voted in 2017 to put on the November ballot. The measure limits damages that can be awarded in civil lawsuits and contingency fees attorneys can receive in those suits. The measure also would give the Legislature power to change, repeal or adopt rules for the state’s courts.

In the lawsuit, Humphry claims the measure unconstitutionally combines four separate proposals. He also suggests it violates the separation of powers by giving the legislative branch power over the judicial branch. Humphry asks that a Pulaski County judge disqualify the measure and prevent election officials from counting any votes for it.

The proposed amendment caps noneconomic damages awarded in lawsuits to $500,000 and would restrict punitive damages to $500,000 or three times the amount of compensatory damages awarded, whichever is higher. The Legislature would be able to increase these limits with a two-thirds vote of the House and Senate. It also caps attorneys’ contingency fees at 33 1/3 percent of the net amount recovered in the suit.

3d Cir: TSA Screeners Not Law Enforcement Under FTCA; Claim Barred by Sovereign Immunity

In a case of first impression at the circuit level, the Third Circuit ruled that TSA screeners are not law enforcement officers under the Federal Tort Claims Act; claims related to their conduct are barred by sovereign immunity:

In a statement, U.S. Attorney William M. McSwain said he is pleased with the decision.

“Through the Federal Tort Claims Act, Congress sought carefully to balance the federal government’s sovereign immunity and duty to protect taxpayer dollars against the need to provide a remedy for plaintiffs in certain cases,” McSwain said. “The court rightly concluded that Congress did not provide for suits against the government for the acts of federal employees, including Transportation Security Administration Officers, who are not empowered by law with traditional law enforcement responsibilities.”

Lizzy McLellan of The Legal Intelligencer has the story.

PA: Families of Girls Killed in Fire Sue Manufacturer of Hoverboard

Last March,  a tragic fire here in Harrisburg killed two girls (a two-year-old and a ten-year-old).  The fire allegedly occurred when a LayZBoard hoverboard overheated while it was charging.  The families are now suing the manufacturer and seeking more than $500,000 in damages.  A further tragedy occurred as a fireman was responding to the call; he was killed when a driver who was high ran a stop sign.  The proximate cause implications are exam-worthy.  The Tampa Bay Times has details.

JOTWELL Torts: Chamallas on Skinner-Thompson on Privacy

At JOTWELL, Martha Chamallas reviews Scott Skinner-Thompson's Privacy's Double Standard.

PA: JUA Sues State Over One More Attempt to Take Its Money

Back in May, Judge Christopher Conner of the Middle District of Pennsylvania ruled that the Commonwealth could not take $200M from the state-created joint underwriting association (JUA) for medical malpractice insurance to balance the budget.  The judge ruled it was a seizure of property without compensation and was unconstitutional.  (Coverage here)  Having been thwarted, the Commonwealth passed a budget that simply absorbs the JUA's operations into the Insurance Department.  The JUA has sued again and has filed a motion for a temporary restraining order and preliminary injunction.  WITF has the story.

Happy Fourth of July from the Texas Law Hawk

Teaching Professional Responsibility, one sees a number of attorney advertisements, many of them from personal injury lawyers.  Apropos of the holiday, I give you Bryan Wilson, the Texas Law Hawk, in a fireworks safety video.  If this whets your appetite for the Law Hawk, check him out on YouTube.  Thanks to Caroline Robelen for the tip.

Two By Nolan

Donal Nolan has posted two pieces to SSRN.  First, Strict Products Liability for Design Defects.  The abstract provides:

A case note discussing the decision of Hickinbottom J in Wilkes v DePuy International Ltd [2016] EWHC 3096 (QB); [2017] 3 All ER 589, which is now the leading case on the application of the Consumer Protection Act 1987 in the case of an alleged design defect. It is argued in the note that the approach taken by Hickinbottom J to the issue of defectiveness should be seen as complementing or supplementing the guidance given in A v National Blood Authority [2001] 3 All ER 289, and that taken together with that earlier decision – and provided that due attention is paid to the significance of the standard/non-standard product distinction that the facts of the two cases encapsulate – the decision in Wilkes represents a solid foundation for future analysis of that issue under the strict product liability regime laid down by the 1987 Act.

Second, Rights, Damage, and Loss.  The abstract provides:

This article is an exploration of the relationship between the concepts of rights, damage and loss. The focus of the analysis is on the law of negligence, though some of the claims have wider ramifications. The article is divided into three main parts, with each part centred around a different relationship: first, the relationship between rights and damage; second, the relationship between rights and loss; and third, the relationship between damage and loss. In each of these three parts, a separate, but related, claim is made: (1) that a concept of damage is a necessary component of a plausible rights-based conception of negligence law; (2) that a right not to suffer loss is conceptually impossible; and (3) that damage and loss are fundamentally different concepts.