Thursday, January 31, 2019
Dorit Rubinstein Reiss & John Diamond have posted to SSRN Measles and Misrepresentation in Minnesota: Can There be Liability for Anti Vaccine Misinformation that Causes Bodily Harm?. The abstract provides:
Balancing protecting and compensating victims of harmful fake news and protecting freedom of speech and the information flow is both important and challenging. Vaccines are one area where misinformation can directly cause harm. When misrepresentation leads people to refuse vaccines, disease outbreaks can happen, causing harms, even deaths, and imposing costs on the community. The tort of negligent misrepresentation that causes physical harm appears a custom-made remedy for those affected. However, courts – appropriately – narrowed the tort to protect freedom of speech and the flow of information. This article uses an especially egregious example of anti-vaccine misrepresentation to examine the boundaries of the tort. In 2017, a measles outbreak in Minnesota sickened tens of people, mostly young children of the Somali community in Minneapolis, and hospitalized over twenty young children. The outbreak can be clearly linked to efforts by anti-vaccine groups to target the Somali community and convince its members that the measles, mumps, rubella vaccine (MMR) causes autism – a claim countered by extensive evidence. Using this case, the article examines under what circumstances promoters of misinformation can be held liable for negligent misrepresentation, suggesting a distinction between counseling-like situations and purely public speech, and between types of communications.
Wednesday, January 30, 2019
Plaintiff alleged an Indiana hardware store was negligent in renting to him and two co-workers an aerial lift without warnings in Spanish, given that the three spoke limited English. Plaintiff was severely shocked when he either touched an electric line or was the victim of electrical arcing. The Indiana Court of Appeals ruled that the hardware store did not have to provide warnings in Spanish. Instead the court stated that, absent special circumstances, if the manufacturer provides adequate warnings and the seller passes them along, the seller has no obligation to provide additional warnings. Unlike several other cases, the court did not focus on whether the product had been marketed to non-English speakers. The case is here. Thanks to Susan Raeker-Jordan for the tip.
Tuesday, January 29, 2019
Yesterday the American Law Institute announced the approval of 3 projects that will conclude the Restatement (Third) of Torts, began back in the 1990s with Products Liability. The three projects are:
Defamation and Privacy; Reporters Lyrissa Lidsky & Robert C. Post
Remedies; Reporter Douglas Laycock
Concluding Provisions; Reporters Nora Freeman Engstrom, Mike Green, and Bill Powers; Associate Reporter Mark Hall
The press release is here: Download Torts-Release-Final
Monday, January 28, 2019
Alex Long has posted to SSRN Abolishing the Suicide Rule. The abstract provides:
Suicide is increasingly recognized as a public health issue. There are over 40,000 suicides a year in the U.S., making suicide the tenth-leading cause of death in the country. But societal attitudes on the subject remain decidedly mixed. Suicide is often closely linked to mental illness, a condition that continues to involve stigma and often triggers irrational fears and misunderstanding. For many, suicide remains an immoral act that flies in the face of strongly held religious principles. In some ways, tort law’s treatment of suicide mirrors the conflicting societal views regarding suicide. Tort law has long been reluctant to permit recovery in a wrongful death action from a defendant who is alleged to have caused the suicide of the decedent. In many instances, courts apply a strict rule of causation in suicide cases that has actually been dubbed “the suicide rule” in one jurisdiction. While reluctance to assign liability to defendants whose actions are alleged to have resulted in suicide still remains the norm in negligence cases, there has been a slight trend among court decisions away from singling out suicide cases for special treatment and toward an analytical framework that more closely follows traditional tort law principles. This Article argues that this trend is to be encouraged and that it is time for courts to largely abandon the special rules that have developed in suicide cases that treat suicide as a superseding cause of a decedent’s death.
Friday, January 25, 2019
For those of you teaching the Prosser, Wade, and Schwartz casebook: This is about the time of year I cover Perry v. S.N. and S.N., a Supreme Court of Texas case from 1998. The case focuses on negligence per se/implied right of action regarding a failure to report the alleged child sexual abuse committed by day care owners. Those day care owners, Fran and Dan Keller, were declared "actually innocent" by the state of Texas in August 2017 and awarded $3.4 million in damages. This isn't breaking news, but I just learned it (thanks to Shannon Smith in my 1L Torts class), and I thought some of you might not know either. The article from Jezebel is here.
Thursday, January 24, 2019
In 2016, a 13-year-old and 14-year-old were left with a babysitter and three younger children in Mt. Pleasant, PA. The 14-year-old found a gun and it discharged, killing the 13-year-old. The deceased's parents sued:
The Gustafsons’ lawsuit alleged Springfield Armory and Saloom made and sold a 9mm semiautomatic handgun without warnings and safety features, including one that would prevent a gun from firing when the magazine is removed.
The judge dismissed the case, citing the 2005 Protection of Lawful Commerce in Arms Act. Trib Live has the story.
Wednesday, January 23, 2019
David W. Robertson, the William Powers, Jr. and Kim L. Heilbrun Chair in Tort Law at the University of Texas School of Law, passed away at the end of 2018. The University's announcement is here. Thanks to blog founder, Bill Childs, for the information.
Tuesday, January 22, 2019
Nicholas McBride has published The Humanity of Private Law with Hart Publishing. The blurb provides:
The Humanity of Private Law presents a new way of thinking about English private law. Making a decisive break from earlier views of private law, which saw private law as concerned with wealth-maximisation or preserving relationships of mutual independence between its subjects, the author argues that English private law's core concern is the flourishing of its subjects.
- presents a critique of alternative explanations of private law;
- defines and sets out the key building blocks of private law;
- sets out the vision of human flourishing (the RP) that English private law has in mind in seeking to promote its subjects' flourishing;
- shows how various features of English private law are fine-tuned to ensure that its subjects enjoy a flourishing existence, according to the vision of human flourishing provided by the RP;
- explains how other features of English private law are designed to preserve private law's legitimacy while it pursues its core concern of promoting human flourishing;
- defends the view of English private law presented here against arguments that it does not adequately fit the rules and doctrines of private law, or that it is implausible to think that English private law is concerned with promoting human flourishing.
A follow-up volume will question whether the RP is correct as an account of what human flourishing involves, and consider what private law would look like if it sought to give effect to a more authentic vision of human flourishing.
The Humanity of Private Law is essential reading for students, academics and judges who are interested in understanding private law in common law jurisdictions, and for anyone interested in the nature and significance of human flourishing.
Monday, January 21, 2019
A 12-year-old boy took the wheel when his grandfather suffered a stroke driving on Interstate 495 near Boston. The boy successfully steered off the road and called 911. Emergency responders arrived and administered a "stroke-busting drug." Grandfather and grandson are both doing well. There are a number of interesting torts angles here: sudden physical illness, the applicability of the child standard and adult activities exception, and the emergency doctrine. This could easily be incorporated into an exam. The Boston Globe has the story.
The European Centre of Tort and Insurance Law and the Institute for European Tort Law of the Austrian Academy of Sciences and the University of Graz will host the 18th Annual Conference on European Tort Law from April 25th through April 27th in Vienna, Austria.
The Annual Conference provides a unique opportunity for both practitioners and academics to discover the most significant tort law developments from across Europe. A Special Session on Saturday morning is dedicated to the increasingly relevant topic of ‘Human Rights Violations in Global Supply Chains’.
Saturday, January 19, 2019
Kit Barker & Ross Grantham have edited Apportionment in Private Law with Hart Publishing. The blurb provides:
This collection of essays investigates the way in which modern private law apportions responsibility between multiple parties who are (or may be) responsible for the same legal event. It examines both doctrines and principles that share responsibility between plaintiffs and defendants, on the one hand, and between multiple defendants, on the other.
The doctrines examined include those 'originating' doctrines which operate to create shared liabilities in the first place (such as vicarious and accessorial liability); and, more centrally, those doctrines that operate to distribute the liabilities and responsibilities so created. These include the doctrine of contributory (comparative) negligence, joint and several (solidary) liability, contribution, reimbursement, and 'proportionate' liability, as well as defences and principles of equitable 'allowance' that permit both losses and gains to be shared between parties to civil proceedings. The work also considers the principles which apportion liability between multiple defendants and insurers in cases in which the cause, or timing, of a particular loss is hard to determine.
The contributions to this volume offer important perspectives on the law in the UK, USA, Canada, Australia and New Zealand, as well as a number of civilian jurisdictions. They explicate the main rules and trends and offer critical insights on the growth and distribution of shared responsibilities from a number of different perspectives – historical, comparative, empirical, doctrinal and philosophical.
FRAMEWORKS, ETHICS AND POLITICS
1. Apportionment in Private Law: Nothing, All, or Something in Between?
2. Allocating Liability Among Multiple Responsible Causes: Principles, Rhetoric and Power
Richard W Wright
3. Full, No, or Partial Liability? That is the Question – Some Answers from a Civilian Perspective
4. Vicarious Liability: A Pailful of Slops and Other Hazards
5. Accessories, Joint or Independent Liability and Apportionment
6. Contributory Negligence and Apportionment in Canadian Tort Law
7. Contributory Negligence and Professional Negligence: An Empirical Perspective
James Goudkamp and Donal Nolan
8. Allocating the Costs of Making Restitution: Change of Position
9. Certainty in Calculating Monetary Remedies for Breach of Fiduciary Duty
APPORTIONMENT BETWEEN DEFENDANTS
10. Contribution Among Wrongdoers: Reducing the Risk of Contribution Recovery Shortfall and Other Issues
11. Reforming a Reform: Why Has It Been So Hard to Reform Proportionate Liability Reforms?
12. Causation and Proportional Recovery
Rob Merkin and Jenny Steele
13. Justice Between Defendants: A New Zealand Note on (non) Law Reform
Friday, January 18, 2019
Anita Bernstein has published The Common Law Inside the Female Body with Cambridge University Press. The blurb provides:
In The Common Law Inside the Female Body, Anita Bernstein explains why lawyers seeking gender progress from primary legal materials should start with the common law. Despite its reputation for supporting conservatism and inequality, today's common law shares important commitments with feminism, namely in precepts and doctrines that strengthen the freedom of individuals and from there the struggle against the subjugation of women. By re-invigorating both the common law - with a focus on crimes, contracts, torts, and property - and feminist jurisprudence, this highly original work anticipates a vital future for a pair of venerable jurisprudential traditions. It should be read by anyone interested in understanding how the common law delivers an extraordinary degree of liberty and security to all persons - women included.
Thursday, January 17, 2019
Sarah Swan has posted to SSRN Preempting Plaintiff Cities. The abstract provides:
Within the city-state relationship, states hold an enormous amount of power. Recently, states have been using that power to pass extremely aggressive preemption laws that prohibit cities’ regulatory efforts on many fronts. These new preemption laws most commonly occur in the context of red states limiting the regulatory scope of blue cities, inflaming those already tense city-state relationships and cutting into what many view as the appropriate scope of local autonomy.
But despite this intense clash in the regulatory sphere, when we move away from the world of city regulation and toward the world of city litigation, things look surprisingly different. Although cities have been bringing forward hundreds of quite controversial claims against corporate wrongdoers for harms ranging from the subprime mortgage crisis to the opioid epidemic, such plaintiff city litigation has provoked relatively little state hostility. States have not ratcheted up their response to this exercise of city power in at all the same way as they have for regulation. Rather, states have shown a remarkably limited appetite for preempting plaintiff city litigation.
What accounts for these differing responses? Three main factors are likely in play. First, while regulatory preemption is largely the result of intense political polarization, states have historically viewed litigation against corporate wrongdoers in less partisan terms. Both blue and red states have themselves engaged in this type of litigation, and there is thus an institutional tradition of flexibility in this context. Second, and relatedly, the issues at the heart of plaintiff city litigation are often not as politically divisive as those at the heart of the preempted regulations. Harms like lead paint poisoning and the opioid epidemic have attracted widespread condemnation, while many of the regulation preemption subjects remain hotly contested. Finally, unlike regulation, litigation is not an obvious instrument of governance. It has unpredictable outcomes, it is not an exclusively governmental power, and it relies on existing law.
Since plaintiff city litigation operates mostly outside of state crosshairs, it can provide a space for cities looking to pursue progressive goals. Plaintiff city litigation may not achieve the same immediate governance goals as regulation, but it does have significant political benefits for cities and their residents. Thus, even in an era of rampant regulatory preemption and deep political animosity between cities and states, plaintiff city litigation presents a viable parallel track for cities to continue their pursuit of urban social justice. Although such litigation does not directly address the contentious issues forming the basis of regulatory battles, it does offer a means of protecting vulnerable communities and advancing goals of democratic equality in other ways.
Wednesday, January 16, 2019
I have been fortunate to have a series of very talented research assistants over the years. One of my current RAs, Dani Wachtel, and I wrote a short piece for Insurance Journal on the Kentucky Supreme Court striking down med mal review panels as unconstitutional.
Prosser Award winner Ken Simons has posted to SSRN The Crime/Tort Distinction: Legal Doctrine and Normative Perspectives. The abstract provides:
This essay provides an overview of the crime/tort distinction. It first investigates some of the fundamental differences between criminal law and tort law in doctrine and legal structure. It then explores some important similarities and differences in normative perspectives between the two doctrinal fields. This typology should prove analytically useful for examining some of the specific issues at the borderline of crime and torts — such as the proper scope of punitive damage liability and the question whether criminal law as well as tort law should vary legal sanctions simply because of the fortuitous occurrence of harm.
This is a piece he wrote for a symposium here at Widener.
Tuesday, January 15, 2019
Ken Oliphant, Zhang Pinghua, & Lei Chen have edited The Legal Protection of Personality Rights: Chinese and European Perspectives. The abstract provides:
This book aims to investigate the way in which personality rights are protected in China through a comparative and cross-cultural lens drawing on perspectives from Europe and elsewhere in the world. Currently, the question whether or not to incorporate a special law on personal rights – the right to life, the right to health, and the rights to reputation and privacy – into a future Chinese Civil Code is heatedly debated in the Chinese legal community. The essential topics that are addressed in this book include general issues of personality rights, personality rights in Constitutional law, personality rights in private law, the legislative development of personality rights in China, case studies of the right to privacy, personality rights in the mass media and the internet, competition law aspects of the right of publicity, the protection of patients’ personal information, and personality rights in the family context. The book offers a broad investigation of personality rights protection in both China and Europe and provides the first substantive comparison of the Chinese and European regimes. The project is conceived as a joint effort on the part of a carefully chosen team of Chinese and European academics, working closely together. The team consists of both senior scholars and young researchers led by well-known experts in the field of comparative tort law.
Monday, January 14, 2019
A Troy non-profit supportive living center has been sued by the parents of a former resident. The plaintiff's decedent completed rehabilitation for drug addiction and then moved into the facility in November 2017. His parents last spoke to him on December 3 of that year. Around 6 days later, when no one had heard from him, the parents asked the facility where their son was. A staff member allegedly informed the parents their son had left several days earlier. On Jan. 11, 2018, they learned the truth: Raolik had never left the facility. A pest control worker entered his room and found his body on the bed. Allegedly staff members were checking the wrong room. The condition of the body made it difficult to determine a cause of death, but it appears the man died of a heart attack on December 4, 2017. Toxicologists found no traces of illicit drugs in his system. The Times Union has the story, including a copy of the suit.
Friday, January 11, 2019
Sen. Ralph Alvarado has filed a bill to amend Kentucky's constitution to allow the General Assembly to create statutes of limitation for civil actions involving death, personal injury and property damage and to set limits on non-economic damages in civil cases. Last year a similar bill failed to get out of committee. Sen. Alvarado was the sponsor of the medical malpractice panels law that was enacted in 2017 and struck down by the Kentucky Supreme Court in November. Louisville Business First has the story.
Thursday, January 10, 2019
Johann Neethling & J.M. Potgieter have posted to SSRN Delictual Liability of a Municipality for the Rape of a Mentally Disabled Woman --Bridgman v. Witzenberg Municipality. The abstract provides:
An 18-year-old woman (L) with a mental disability (she functioned cognitively at the level of a 6 to 8 year old child) was abducted and raped by three youths at the Pine Forest Holiday Resort in Ceres, Western Cape (South Africa), where she was staying with her adoptive parents. The resort was owned, managed and controlled by the defendant, the Witzenberg Municipality (the Municipality). The plaintiff, in his capacity as the curator ad litem of L, instituted an action against the Municipality, claiming damages arising from injuries suffered by L as a consequence of the rape. He submitted that the rape was caused by the negligent omissions and conduct of the Municipality. The Municipality denied that it had been negligent. In the alternative it argued that, if it had been negligent, the rape had been caused partly through its own negligence, and partly through the negligence of L’s parents.