TortsProf Blog

More Torts at the AALS Annual Meeting

In addition to the traditional Torts Section's panel, there is a Jurisprudence panel entitled "Recognizing Wrongs:  Philosophy of Tort Law":

Start Date: 01/05/2019, 10:30 am End Date: 01/05/2019, 12:00 pm Room: Grand Salon Section 15 Floor: First Floor Hotel: Hilton New Orleans Riverside

Speakers   Speaker: Maria Glover, Georgetown University Law Center  Speaker: John C. Goldberg, Harvard Law School  Speaker: Gregory C. Keating, University of Southern California Gould School of Law  Moderator: Joshua Kleinfeld, Northwestern University Pritzker School of Law  Speaker: Alexandra D. Lahav, University of Connecticut School of Law      Though not explicitly about torts, Ben Zipursky is speaking on a panel entitled "Philosophy Within the Departments of Law": Start Date: 01/05/2019, 9:00 am End Date: 01/05/2019, 10:25 am Room: Grand Salon Section 15 Floor: First Floor Hotel: Hilton New Orleans Riverside   Speakers Moderator: Emad H. Atiq, Cornell Law School  Speaker: Joshua Kleinfeld, Northwestern University Pritzker School of Law  Speaker: Daniel S. Markovits, Yale Law School  Speaker: Jeremy James Waldron, New York University School of Law  Speaker: Benjamin C. Zipursky, Fordham University School of Law

Torts at the AALS Annual Meeting

Stacey Tovino is concluding her term as Chair of the Torts and Compensation Systems Section.  The program is as follows:

Start Date: 01/04/2019, 1:30 pm End Date: 01/04/2019, 3:15 pm Room: Grand Salon Section 16 Floor: First Floor Hotel: Hilton New Orleans Riverside

Speakers   Speaker: Mark A. Rothstein, University of Louisville, Louis D. Brandeis School of Law  Speaker: Nadia N. Sawicki, Loyola University Chicago School of Law  Moderator: Stacey A. Tovino, University of Nevada, Las Vegas, William S. Boyd School of Law  Speaker: Elizabeth Weeks, University of Georgia School of Law  Speaker: John Valery White, University of Nevada, Las Vegas, William S. Boyd School of Law    This panel will explore the bi-directional relationship between the fields of tort law and health law. The influence of tort law on some basic aspects of health law is well known. For example, tort law provides causes of action, privileges, and defenses on which plaintiffs and defendants rely in traditional medical malpractice cases. This panel will focus on some of the less obvious ties and relationships between the fields, including the potential of tort law to perpetuate healthism (i.e., differential treatment based on health status) through various doctrines, including the active versus passive distinction, contributory negligence, assumption of the risk, and damages rules; the duty to warn of health care providers; the availability of governmental immunity for public hospitals; and the availability of assumption of the risk in cases in which patients select care that falls outside the standard of care. Business meeting at program conclusion.

SELF DRIVE Act Dies in the Senate

The shutdown is getting the most attention right now, but one of the bills that died when the Senate adjourned last week was the SELF DRIVE Act, designed to regulate and create federal safety standards for self-driving cars.  Politico had an article summarizing the fate of various bills, and it said this about the SELF DRIVE Act:

— Self-driving, but not self-passing: Senators conceded earlier this week that the SELF DRIVE Act, H.R. 3388 (115), would not be passed in 2018. House Energy and Commerce Chairman Greg Walden (R-Ore.) called it "extremely disappointing that the Senate will not be able to finish its work on self-driving car legislation this year.” The proposal would regulate and create federal safety standards for self-driving cars.

Wriggins on Domestic Violence and Gender Equality

Jenny Wriggins has posted to SSRN Domestic Violence and Gender Equality:  Recognition, Remedy, and (Possible) Retrenchment.  The abstract provides:

This paper is based on the author's presentation at the gender equality symposium. Professor Wriggins connects domestic violence and gender equality before turning to some significant reforms of the U.S. legal system concerning domestic violence-all of them relatively recent. Moving on, she discusses her reflections on the 12-year law practice that informs her expertise before becoming a law professor and also her long involvement in the movement for LGBTQ equality. Drawing on that experience, Professor Wriggins shares firsthand views of some of the consequences of not having legal protections. Outlining some of the shortcomings and critiques of the reforms, she finally turns to the future-what the law would be wise to anticipate and to do.

Parkland Shooting Cases

Marjory Douglas Stoneman High School has at least 103 claims pending against it related to a February 14, 2018 mass shooting.  Judges made rulings recently in two of them.  The father of one of the 17 people killed that day filed suit in state court against a number of defendants, including the law enforcement officer assigned to protect the high school.  The officer stayed outside the building instead of going inside when the shooting began.  The officer's attorneys filed a motion to dismiss, arguing that tort law does not impose “a duty of care to prevent a person from harming another.”  Broward County Circuit Judge Patti Englander Henning denied the motion, holding the officer had a duty to the school community as someone whose job was security.  The officer had an ‘obligation to act reasonably’ under the circumstances of the shooting.  The judge also denied the officer was entitled to sovereign immunity.  

In a federal civil rights suit filed by 15 students present during the shooting who allege psychological injuries, U.S. District Judge Beth Bloom ruled to dismiss all of the constitutional rights violations claimed by the plaintiffs.  The plaintiffs' claims hinged on the Due Process Clause, which protects people from actions taken by the state.  The judge stated that “nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors.” 

OPB has the story.

FDA Withdraws Proposal for Liability for Generic Drug Makers

The Supreme Court's preemption cases shield generic pharmaceutical manufacturers from liability.  In 2013, the FDA proposed a new federal rule that would have allowed liability against manufacturers of generic drugs.  Last week, the FDA withdrew that proposal.  The Wall Street Journal has details.

OH: Non-economic Damages Cap Applies to Defamation Cases

Earlier this month, the Supreme Court of Ohio ruled that the statutory cap on non-economic damages applies to compensatory damages awarded in defamation cases.  At Legally Speaking Ohio, Marianna Bettman has analysis.

50-State Survey of Damage Caps and the Collateral Source Rule

At mondaq, W. McDonald Plosser has a 50-state survey of damage caps and the collateral source rule.

JOTWELL Torts: Goldberg on Engstrom on Auto Accidents

At JOTWELL, John Goldberg reviews Nora Engstrom's When Cars Crash:  The Automobile's Tort Legacy.

Shavell on Expanding Strict Liability for Abnormally Dangerous Activities

Steven Shavell has posted to SSRN The Mistaken Restriction of Strict Liability to Uncommon Activities.  The abstract provides:

Courts generally insist that two criteria be met before imposing strict liability. The first--that the injurer’s activity must be dangerous -- is sensible because strict liability possesses general advantages in controlling risk. But the second -- that the activity must be uncommon -- is ill-advised because it exempts all common activities from strict liability no matter how dangerous they are. Thus, the harm generated by the large swath of common dangerous activities -- from hunting, to construction, to the transmission of natural gas -- is inadequately regulated by tort law. After developing this theme and criticizing ostensible justifications for the uncommon activity requirement, the article addresses the question of how it arose. The answer is that its legal pedigree is problematic: it appears to have been invented by the authors of the first Restatement of Torts. The conclusion is that the uncommon activity requirement for the imposition of strict liability should be eliminated.

PA: Should Liability Be Allocated Differently in Asbestos Cases?

In 2011, Pennsylvania replaced joint and several liability with a statute referred to as the "Fair Share Act."  The statute provided that if an individual defendant was found less than 60 percent liable in a given case, then dollar-amount damages for said defendant would be set at a level proportional to their percentage of liability in that case.  A Court of Common Pleas judge in Philadelphia held that the Fair Share Act did not apply to asbestos, despite the lack of an explicit carve-out, because asbestos exposure is not quantifiable.  The Superior Court held this was erroneous and now the case is before the Supreme Court of Pennsylvania.  The case is Roverano v. Crane, Inc.  The Pennsylvania Record has the story.

Monster Energy Drink Wins Jury Verdict in Texas

Monster Beverage Corp., makers of Monster Energy drinks, has been hit with numerous products liability suits alleging its drinks cause heart attacks.  Some of those cases have been settled, but many have been dismissed.  In the first case to reach a verdict, a Texas jury deliberated for just 15 minutes before deciding that a Monster Energy drink did not lead to a heart attack for the then-18-year-old plaintiff.  The company argues its product is safe and that a 16-ounce drink has less caffeine (160 mg) than a 16-ounce cup of Starbucks coffee (310 mg).  The Bristol Herald Courier has details.

PA: Supreme Court Holds There Is a Legal Duty to Protect Employee's Sensitive Personal Information

Late last month, the the Supreme Court of Pennsylvania held that an employer has a legal duty to exercise reasonable care to safeguard its employees’ sensitive personal information stored by the employer on an internet-accessible computer system.  The case is Dittman v. UPMC.  Data Protection Report has details.

Wright on Allocating Liability among Multiple Legally Responsible Causes

Richard Wright has posted to SSRN Allocating Liability Among Multiple Responsible Causes:  Principles, Rhetoric and Power.  The abstract provides:

In Part II of this paper, I discuss the principles underlying just allocation of liability among the multiple responsible causes of an indivisible injury. I argue that those principles support either (1) the standard method adopted by almost all courts, according to which the plaintiff's claim for compensation is reduced by her percentage of comparative responsibility if she was contributorily negligent, those who wrongfully contributed to the plaintiff's injury are each held fully (solidarily) liable for the plaintiff's possibly reduced claim, and the wrongdoers who pay the plaintiff are able to maintain contribution actions against the other wrongdoers based on their comparative responsibility, or (2) a modification of the standard method which would allow the wrongdoers who pay the plaintiff to have a contributorily negligent plaintiff share in bearing the portion of damages that are uncollectible from other wrongdoers. The various proportionate liability rules adopted by the legislatures in many states (but not the federal government) in the United States and (for injuries other than to the plaintiff's person) by all the Australian states are neither justifiable nor fair.

In Part III, I explain and criticize the rhetorical arguments used by the defense advocates to attempt to convince judges (unsuccessfully) and legislators (successfully) that replacing solidary liability with proportionate liability is necessary to be consistent with the common law and allocation of liability consistent with each person's individual responsibility.

In Part IV, I describe (1) the primary role played by recurrent cycles of "soft" and "hard" liability insurance markets, made possible by lack of proper regulation of the insurance industry, in creating recurrent liability insurance crises, (2) the successful effort of the insurance industry and other defense interests to portray tort liability rather than the flaws in the liability insurance market as the cause of the recurrent liability insurance crises in order to promote "tort reform" while avoiding needed regulation of the insurance industry, and (3) the recurrent failure of the enacted "tort reforms" to provide the promised reduction or moderation in liability insurance premiums.

Puerto Rico Adopts Med Mal Panels

Puerto Rico's governor signed a law creating 13 panels composed of 3 people--including a health expert, a public advocate, and a lawyer or former judge--to review medical malpractice claims.  Claimants, with an exclusion for the indigent, will be required to post a bond-like payment with the panel.  If the panel finds evidence of malpractice, the money will be returned.  The governor hopes it will stem the exodus of doctors from Puerto Rico; of the approximately 1,000 claims each year, 900 are dismissed.  

The exodus from Puerto Rico is widespread, and is largely caused by a weak economy and damage from recent hurricanes.   There are better ways to handle a number of weak claims than adding another layer of delay for all claims, including the good ones.  (It is important to remember that studies also suggest a large number of valid claims are never filed.)  For example, a certificate of merit requirement is more relevant handling the precise problem.

The Province has details.

OH: Method of Drug Testing Can Be an Invasion of Privacy

An Ohio appellate court has ruled that direct observation of an employee's genitals during a mandatory drug screening can state a valid cause of action pursuant to the common law tort of invasion of privacy.  Ohio and other jurisdictions have ruled drug screening itself is not an invasion of privacy, but left open the issue regarding the testing method.  The case is Lunsford v. Sterilite of Ohio, LLC,  108 N.E.3d 1235 (Ohio Ct. App. 2018).

IN: Misuse Is a Complete Bar to Recovery in Products Cases

Last month, the Supreme Court of Indiana held that Indiana's statutory defense of misuse is an absolute bar to recovery and not a mere factor in a comparative fault analysis.  In dicta, earlier cases had leaned in the other direction.  The court issued a caveat:

This is not to say that any allegation on the part of a seller that a plaintiff misused the product will suffice. The misuse defense is qualified by the plain language in the statute. That is, in order to successfully employ misuse as a defense, the seller must show both that the misuse of the product is: 1) the cause of the harm; and 2) not reasonably expected by the seller. If a plaintiff misuses a product but it is not the cause of the harm and/or the misuse can reasonably be expected by the seller, then the misuse would not serve as a complete defense and comparative fault principles would apply.

The case is Campbell Hausfeld/Scott Fetzer Co. v. Johnson, , 109 N.E.3d 953 (Ind. 2018).