Friday, November 30, 2018
The respondeat superior (vicarious liability) standard by which courts hold corporations liable for the crimes of their employees has been widely criticized as being overly inclusive insofar as it punishes fault-less entities. Less acknowledged is that, due to its requirement that the employee have intended in part to benefit the corporation, the standard is also under inclusive in cases of sexual violence facilitated by a corporate entity. This article argues that, to solve these problems within the criminal law, we should learn from their parallel development in the sphere of tort law, from which respondeat superior was derived in the first place. No comprehensive effort has yet been made to examine how courts have, in tort respondeat superior, addressed the problems of over- and under-inclusiveness that emerge in that realm. In light of the lessons revealed in the tort case law, I argue that criminal respondeat superior should apply only where the government can show 1.) an omission by the corporation to take reasonable steps to prevent a crime; 2.) that the substantial risk of such a crime was objectively foreseeable to a reasonable person undertaking the corporation’s enterprise and 3.) that such a crime occurred, regardless of whether or not any individual employee had the intent to benefit the corporation.
Tuesday, November 27, 2018
An Indonesian resident has filed suit on behalf of his son, who died last month when a newly delivered Boeing 737 Max 8 crashed off the coast of Indonesia. The complaint was filed in Illinois' Cook County Circuit Court and alleges strict product liability, negligence, and failure to warn. Plaintiff specifically alleges the new Boeing flight control system contributed to the plane's crash, and further alleges the defendant's plane lacked proper and adequate instructions and warnings regarding the design and functions of the auto-dive system. The Cook County Record has details.
Monday, November 26, 2018
Last week, the Washington Supreme Court ruled unanimously that the Department of Corrections did not act grossly negligent in the supervision of a felon who killed his girlfriend. The felon was a serial domestic abuser who killed his girlfriend 15 days after his release from prison (for punching the girlfriend) in October 2012. The gross negligence standard, applicable to a governmental unit, was not met:
A Corrections Department victim liaison spoke with Patricelli four times before Miller’s release to ensure she had a safety plan in place, and Patricelli assured the liaison she was moving to a new residence, had no interest in seeing Miller and would call the police if she did, the opinion says.
“It turns out that Miller, his mother, and Patricelli herself lied to DOC about Miller’s living arrangements while on probation, the opinion states. “In fact, Patricelli had seen Miller, even though she said she had not. And Miller was not staying with his mother, despite his mother saying, in a signed document, that he was.
“Miller was actually living with Patricelli. But the only people who knew that fact were Patricelli, her daughters, their roommate, and Miller. And all of them were actively hiding the relationship from DOC and others.”
The News Tribune has the story.
Wednesday, November 21, 2018
Maria Guadalupe Martinez Alles has posted to SSRN Tort Remedies as Meaningful Responses to Wrongdoing. The abstract provides:
Tort theorists’ unceasing efforts to draw a clear-cut line between tort law (i.e., private law) and criminal law (i.e., public law) has cabined the understanding of tort remedies as private responses to wrongdoing which are predominantly compensatory. The practice of awarding additional damages contradicts this view. It indicates that in fact tort remedies represent substantive responses to wrongdoing that may involve private and public aspects which may or may not be compensatory. An example of this mismatch between practice and theory is observable in the dialogue between court decisions and scholars where it is openly acknowledged that the practice of awarding damages in tort cases actually represents punitive motives that judges camouflage under classic compensatory labels and the correlative reaction by tort theorists who counter with arguments for a reduction-to-compensation approach to those punitive elements. Against this backdrop, I argue in this article that, in order to properly channel tort victims’ substantive responses to wrongdoing, the time is ripe for revising the classic private understanding of tort remedies to take into account not only the central role of holistic considerations of the circumstances of the wrongdoing and the significance and meaning that the wrongdoing holds for the private parties in tort cases, but also the advantages of providing victims with a legitimate avenue for voicing the private and public values affected by the particular instances of wrongdoing.
Tuesday, November 20, 2018
Monday, November 19, 2018
On Thursday, the Kentucky Supreme Court ruled that the medical malpractice panel law, passed in 2017, was unconstitutional. The law required medical malpractice claimants to go through a panel procedure (review by health care professionals) prior to obtaining a jury trial. The process consumes nine months and the outcome is admissible, but not binding, at the subsequent trial. In reporting on the reason the court held the law unconstitutional, J.D. Supra stated:
In holding the Act unconstitutional, the Kentucky Supreme Court focused its analysis on Section 14 of the Kentucky Constitution. Section 14 is entitled the “Right of judicial remedy for injury -- Speedy trial”. Section 14 states that “All courts shall be open, and every person for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.” The Court found that Section 14 not only applied to the Judicial branch but also to the Legislative branch, holding that the Legislative branch cannot enact legislation contrary to the rights guaranteed in Section 14, including a right to have justice without delay. The Court reasoned that, even though there are natural delays in judicial proceedings, the Act was unconstitutional because it created a mandatory delay. The Court found that due to the Act’s provisions, claimants were now unable to seek immediate redress through the Judiciary, which was unconstitutional.
The entire J.D. Supra article is here.
I won't opine on the constitutionality of the law, but I will say that as a matter of policy the delay is a bad idea. Med mal cases are too slow already. This was my reaction in 2015 when Kentucky was considering an earlier version of the law:
The bill is a bad idea because it adds more delay and transaction costs to an already lengthy and expensive process, without resolving anything. Studies conclude the average med mal claim lasts about 5 years from event to resolution, with more money being used to run the system than to compensate victims. Review panels increase the time to resolution by adding another layer of procedure. They also increase transaction costs as lawyers and experts for both sides try to convince an additional decision maker of the merits of their case.
To the extent reducing frivolous claims is the goal, a certificate of merit requirement would be preferable: it is quicker and less expensive. Moreover, reducing the length and adversarialism of the process should be the focus. Review panels were in place in Virginia when I practiced. Most plaintiff's lawyers simply didn't participate. The result was admissible at trial, but so was the information that the plaintiff was not involved in the panel's decision. The claim was delayed, but at least it was not also more expensive.
Friday, November 16, 2018
Wednesday, November 14, 2018
Bryan Choi has posted to SSRN Crashworthy Code. The abstract provides:
Code crashes. Yet for decades, software failures have escaped scrutiny for tort liability. Those halcyon days are numbered: self-driving cars, delivery drones, networked medical devices, and other cyber-physical systems have rekindled interest in understanding how tort law will apply when software errors lead to loss of life or limb.
Even after all this time, however, no consensus has emerged. Many feel strongly that victims should not bear financial responsibility for decisions that are entirely automated, while others fear that cyber-physical manufacturers must be shielded from crushing legal costs if we want such companies to exist at all. Some insist the existing liability regime needs no modernist cure, and that the answer for all new technologies is patience.
This Article observes that no consensus is imminent as long as liability is pegged to a standard of “crashproof” code. The added prospect of cyber-physical injury has not changed the underlying complexities of software development. Imposing damages based on failure to prevent code crashes will not improve software quality, but impede the rollout of cyber-physical systems.
This Article offers two lessons from the “crashworthy” doctrine, which was pioneered in the late 1960s in response to a rising epidemic of automobile accidents, and which helped push rapid improvements in crumple zones, seat belts, and other critical safety features. The first is that tort liability can be metered on the basis of mitigation, not just prevention. When code crashes are statistically inevitable, cyber-physical manufacturers may be held to have a duty to provide for safer code crashes, rather than no code crashes at all. Second, a shift to crashworthiness allows both engineers and lawmakers to focus heightened scrutiny on a narrower subset of code, i.e., only those modules necessary to handle fault tolerance. Requiring all code to be perfect is impossible, but demanding some code to be closer to perfect is feasible.
Crashworthy code solves the paralysis of the crashproof mindset, by reframing the software liability problem in terms that engineers can readily undertake.
Sunday, November 11, 2018
Friday, November 9, 2018
Cathy Sharkey has posted to SSRN Institutional Liability for Employees' Intentional Torts: Vicarious Liability as a Quasi-Substitute for Punitive Damages.
Modern day vicarious liability cases often address the liability of enterprises and institutions whose agents have committed intentional acts. Increasingly, when an employer is sued, the line is blurred between the principal’s vicarious liability for its agent’s acts and its own direct liability for hiring and/or failing to supervise or control its agent.
In this Article, I argue that, as a form of strict liability, vicarious liability will have an edge over direct employer negligence liability to the extent that there is a significant risk of under-detection of the failures of an employer’s preventative measures. Traces of this under-detection rationale for vicarious liability can be found in the academic literature and court decisions, but it warrants further elaboration. The risk of under-detection provides a strong justification for the expansion of the scope of institutional or employer vicarious liability.
The under-detection rationale, moreover, has the potential to serve as a coherent framework for some modern doctrinal debates, including whether punitive damages should be imposed either vicariously or directly upon employers when their employees commit intentional torts. Specifically, I argue that the under-detection rationale correspondingly strengthens the case for punitive damages in direct negligence cases and weakens the case for punitive damages imposed in vicarious liability cases. Focusing on under-detection, vicarious liability acts as a quasi-substitute for punitive damages. And seen through this lens, Restatement (Second) of Torts § 909, Punitive Damages Against a Principal — typically defended as a “complicity rule” limiting the imposition of vicarious punitive liability on fairness grounds — is justified on economic deterrence grounds by allowing punitive damages coupled with direct negligence liability but limiting its operation in the vicarious liability sphere.
Thursday, November 8, 2018
Cathy Sharkey has posted to SSRN In Search of the Cheapest Cost Avoider: Another View of the Economic Loss Rule. The abstract provides:
The economic loss rule in tort engages two fundamental theoretical questions: (1) which interests should tort law protect; and, more pointedly, (2) how should we think about claims that arise along the boundary line between tort and contract?
This Article advances two claims that aim to clarify this controversial, often misunderstood, doctrine. First, it is imperative to distinguish what I will term the “stranger paradigm” from the “consensual paradigm.” The specter of the economic loss rule is raised in different categories of cases: products liability, contracting party, third party, and stranger. It should not be surprising that the economic loss rule plays out differently and has different ramifications across these categories. As an initial cut, classifying such categories of cases as either “stranger” or “consensual” (and treating them accordingly) helps clarify doctrinal confusion. More specifically, holding firm to such a distinction should prevent conventional rationales for the economic loss rule developed in stranger cases — such as the floodgates or limitless liability rationale — from being imported vel non into two-party contracting cases that comprise the bulk of commercial torts. It would also expose the flaw in courts’ holdings that the economic loss rule applies full stop in the products liability realm, yet has no application in two-party contracting cases, thus failing to recognize the common thread connecting these cases, both of which fit on a continuum within the consensual paradigm.
Second, and more ambitiously, I depart from conventional justifications and develop a unifying theoretical justification for the economic loss rule based on cheapest cost avoider principles that does apply across the categories of cases — albeit with less determinacy in the stranger paradigm than the consensual one. This framework also provides a way to resolve third-party cases, which straddle the stranger/consensual dividing line. That the cheapest cost avoider rationale can be applied across case categories and paradigms lends further weight to its promise as a unifying theoretical justification for the economic loss rule in tort.
Tuesday, November 6, 2018
At Legally Speaking Ohio, Marianna Bettman has an extensive analysis. She summarizes:
On October 31, 2018, the Supreme Court of Ohio handed down a merit decision in Schmitz v. Natl. Collegiate Athletic Assn., Slip Opinion No. 2018-Ohio-4391. In a decision written by Justice French, joined in full by Chief Justice O’Connor and Justices DeWine and DeGenaro, the court allowed a lawsuit to proceed which was filed by the widow of a football player who sustained repetitive blows to the head during his college playing days in the 1970’s, but who was not diagnosed with chronic traumatic encephalopathy (“CTE”) until December of 2012. The court ruled that the 12(B)(6) motions to dismiss the claims as time-barred should have been denied. Justice Fischer concurred in judgment only. Justice Kennedy, joined by Justice O’Donnell, concurred in part, and concurred in judgment only in part, with an opinion. The case was argued April 11, 2018.
Essentially, the court held the discovery rule applied to the claims and the court could not rule as a matter of law that the plaintiff's negligence claims were time-barred based on the discovery rule. Of course, the discovery process may unearth facts that establish the claims as time-barred, but the plaintiff has the chance to move forward.
Monday, November 5, 2018
Having just covered the "wrong ear" case for informed consent, this ripped-from-the-headlines case would do nicely to illustrate the distinction between medical negligence and informed consent. Both are potentially here in this fact pattern. The patient went into surgery to fuse together a couple of vertebrae. The surgeon allegedly noticed a mass in the patient's pelvis. Believing it to be cancerous, the surgeon cut it out. It was the patient's kidney. The Washington Post has the story.
Friday, November 2, 2018
The use of electric scooters has increased substantially, particularly in urban areas. Injuries caused by the scooters have increased as well. Nine people claiming injuries to hands, fingers, knees, and faces filed a class action in Los Angeles Superior Court against four companies: Bird, Line, Xiaomi, and Segway. Allegations include gross negligence, manufacturing or design defects, and failure to warn. Denver's ABC 7 has details.
Thursday, November 1, 2018
Editors Jason Varuhas and NA Moreham have published "Remedies for Breach of Privacy" with Hart Publishing. The blurb provides:
Over the last 15 years, privacy actions have been recognised at common law or in equity across common law jurisdictions, and statutory privacy protections have proliferated. Apex courts are now being called upon to articulate the law governing remedies, including in high-profile litigation concerning phone hacking, covert filming and release of personal information. Yet despite the practical significance of the courts' approach to damages, injunctions and other remedies for breach of privacy, very little has been written on the topic. This book comprehensively analyses these developments from a comparative perspective and provides solutions to issues which are coming to light as higher courts forge this remedial jurisprudence and practitioners look for guidance.
Significantly, the essays are important not only for what they say about remedies, but also for the attention they give to the nature of the new privacy actions, providing deep insights into substantive law. The book includes contributions by academics, practitioners and judges from Australia, Canada, England, New Zealand and the United States, who are expert in the legal disciplines implicated by privacy remedies, including torts, equity, public law and conflict of laws. By bringing together this range of perspectives, the book offers authoritative insights into this cutting-edge topic. It will be essential reading for all those seeking to understand and resolve the new issues associated with privacy remedies.