TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Thursday, March 28, 2019

Abraham & White on Nameless Torts, New Torts, and Intangible Harm

Ken Abraham & Ted White have posted to SSRN Torts Without Names, New Torts, and the Future of Liability for Intangible Harm.  The abstract provides:

Torts have names for a reason. A tort without a name would very nearly be a contradiction in terms, because it would not describe itself. But torts do not always get names immediately upon birth. Typically, it takes some time to recognize what they are, because they are in search of an identity or have a vaguely defined content. The law of torts of the future may well experience this process, as it works through the rights and liabilities that govern harms characteristic of the information age: invasions and misuses of digitized personal data, and sexualized attitudes and misconduct, for example. The dominant form that new liabilities took in the twentieth century was through the establishment of new, particularized torts. An alternative but much less known form of liability, however, competed with the named-tort approach during this same period, and to some extent still competes with it. This is the application of what we call a “residual category” of liability. In our judgment, however, a residual category approach to the intangible harms of the twenty-first century should and would fail in the same way, and for the same reasons, that this approach largely failed in the twentieth century. The new torts of the twenty-first century will have to be particular, named torts. This Article explains why this will be the case, and then undertakes to demonstrate how these explanations apply to the most salient forms of intangible harm on the current scene–harms that inevitably will be candidates for tort liability in the years to come. We identify the aspects of each form of loss that we think may well become actionable through the adoption of new torts or the expansion of existing torts, as well as the aspects of loss that will continue not to be actionable.

March 28, 2019 in Scholarship | Permalink | Comments (0)

Wednesday, March 27, 2019

ALI Podcast: "Consent and Sexual Assault in Criminal v. Tort Law"

...with Erin Murphy and Ken Simons is here.  The blurb:

From start to finish, criminal and tort cases differ in many ways, including how a case is initiated, in which court it is heard and decided, standards of proof, and the consequence if the defendant is found liable (punishment if defendant is convicted of a crime; payment of money damages if defendant is liable for a tort). Some cases [or fact patterns] qualify as both crimes and torts. These differences are especially evident in sexual assault claims where a single legal term, such as “consent,” may be defined quite differently, depending on the type of legal claim asserted.

In this episode, NYU Law’s Erin Murphy and UC Irvine Law’s Ken Simons explore the difference between criminal law and tort law in the United States and then focus on how “consent” is, and should be, defined in sexual assault allegations.

March 27, 2019 in Current Affairs | Permalink | Comments (0)

Tuesday, March 26, 2019

MI: College Not Liable for Murder Committed by Student Studying Abroad

Johnathan Hindenach was a student at Olivet College in Michigan in 2008; he took a class that included a trip to Florence, Italy.  While in Italy, Hindenach killed someone.  An Italian court found him criminally responsible and placed him in a psychiatric hospital.  Hindenach's family sued Olivet College, alleging it failed to properly monitor Hindenach's mental health before the murder.  An appellate court in Michigan sided with Olivet College, stating the school was aware Hindenach suffered from depression and took medication, but it was not foreseeable he would murder someone and be hospitalized for his actions. has details.

March 26, 2019 in Current Affairs | Permalink | Comments (0)

Monday, March 25, 2019

4th Cir.: "the Flaming Headlamp Case"

Last week the Fourth Circuit heard arguments in an appeal to answer the following question:  Is Amazon responsible when a third-party seller's product malfunctions and burns down a buyer's home?  Buyer purchased a headlamp from a third-party seller through Amazon.  The headlamp, delivered by Amazon, malfunctioned and burned the buyer's house to the ground.  The buyer's homeowner's insurer paid the buyer over $300,000 in damages.  Insurer then sued Amazon in negligence, breach of warranty, and strict liability to recoup the money. 

A Maryland district judge dismissed the claim on the ground that Amazon was not the seller of the headlamp; the court also held Amazon was insulated by the Communications Decency Act, which protects providers from liability for content created by third-parties.  The insurer argued that Maryland state law, including its Uniform Commercial Code, defines seller as “a person who sells or contracts to sell goods,” which should include Amazon considering its platform was used in the transaction and the product was warehoused at an Amazon facility.  Amazon's attorney claimed that every court that had ruled on this issue sided with Amazon.  There is no timetable for a ruling on the case.  Courthouse News Service has the story.

March 25, 2019 in Products Liability | Permalink | Comments (0)

Friday, March 22, 2019

Two Studies Find Misdiagnosis Leading Complaint in Med Mal Claims

Two recent studies concluded the most common problem for which plaintiff file med mal claims involves diagnosis:

Coverys, a malpractice carrier based in Boston, reported that a review of 1,800 closed claims against physicians from 2013 to 2017 showed 46% were related to the diagnosis. Those claims accounted for 68% of paid indemnity costs, according to the report. In 45% of the diagnosis-related cases, the patient died, Covery said.

A separate report released by The Doctors Company, also a malpractice insurer, found that 38% of malpractice claims against physicians involving the treatment of children involved a misdiagnosis. The carrier reviewed 1,215 claims closed from 2008 to 2017.

Missed, failed or wrong diagnoses are largely the result of inadequate medical assessments, according to The Doctors Company study.

Claims Journal has the story.

March 22, 2019 in Current Affairs | Permalink | Comments (0)

Wednesday, March 20, 2019

USSC Decides Air & Liquid Systems Corp. v. DeVries

Yesterday the Supreme Court handed down its decision in Air & Liquid Systems Corp. v. DeVries.  From the syllabus:

Petitioners produced equipment for three Navy ships. The equipment required asbestos insulation or asbestos parts to function as intended, but the manufacturers did not always incorporate the asbestos into their products. Instead, the manufacturers delivered much of the equipment to the Navy without asbestos, and the Navy later added the asbestos to the equipment. Two Navy veterans, Kenneth McAfee and John DeVries, were exposed to asbestos on the ships and developed cancer. They and their wives sued the manufacturers, alleging that the asbestos exposure caused the cancer and contending that the manufacturers were negligent in failing to warn about the dangers of asbestos in the integrated products. Raising the “bare-metal defense,” the manufacturers argued that they should not be liable for harms caused by later-added third-party parts. The District Court granted summary judgment to the manufacturers, but the Third Circuit, adopting a foreseeability approach, vacated and remanded.

Held: In the maritime tort context, a product manufacturer has a duty to warn when its product requires incorporation of a part, the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended uses, and the manufacturer has no reason to believe that the product’s users will realize that danger.

March 20, 2019 in Current Affairs | Permalink | Comments (0)

Oman on John Calvin's Quarrel with Civil Recourse Theory

Nathan Oman has posted to SSRN John Calvin's Quarrel with Civil Recourse Theory.  The abstract provides:

This essay traces in skeletal form a history of the Christian critique of litigation, with a focus on the well-articulated argument of the Reformation theologian John Calvin. Most of contemporary private law theory focuses on the idea of liability. For law and economics liability is a price placed on certain conduct in order to create optimal incentives. For moral theorists, such as partisans of corrective justice theory in tort law, liability is the manifestation of a duty of repair that the law imposes on wrong doers. Missing from these theories is the agency of the plaintiff, yet this is precisely the feature of private litigation that Christianity has criticized through the centuries. In contrast to other contemporary approaches to private law, civil recourse theory emphasizes the way that private law empowers plaintiffs to act against those that have wronged them. In contrast to much of contemporary private law theory, Calvin’s argument is indifferent to the scope of duties and liabilities. Rather, like civil recourse theorists, he focuses on the agency of plaintiffs. Calvin’s argument, however, is critical of key assumptions of those theorists. First, it suggests that generally speaking instituting a suit is immoral. Second, Calvin’s argument suggests that revenge and “the right to be punitive,” which civil recourse theorists have offered as the basis for punitive damages, cannot be proper reasons for the law. Finally, and most controversially, Calvin seems to reject the “right to reparation” on which some civil recourse theorists have sought to normatively ground private law.

March 20, 2019 in Scholarship | Permalink | Comments (0)

Tuesday, March 19, 2019

CT: Supreme Court Allows Sandy Hook Families Trial Against Remington

Last Thursday, the Connecticut Supreme Court, in a 4-3 ruling, allowed plaintiff families from the 2012 Sandy Hook Elementary shootings to proceed to trial against Remington, the manufacturer of the Bushmaster AR-15 rifle used in the attack.  The cause of action was based on the Connecticut Unfair Trade Practices Act (CUPTA) for "personal injuries that result directly from wrongful advertising practices.”  Significantly, the court held the suit was not barred by the Protection of Lawful Commerce in Arms Act (PLCAA) of 2005, which, with limited exceptions, immunizes firearms manufacturers, distributors, and dealers from civil liability for crimes committed by third parties using their weapons.  The court held the plaintiffs' CUPTA claim fell within a:

“predicate exception  [that] permits civil actions alleging that ‘a manufacturer or seller of a [firearm] knowingly violated a State or Federal statute applicable to the sale or market of the [firearm], and the violation was a proximate cause of the harm for which relief is sought …’ 15 U.S.C. § 7903 (5) (A) (iii) (2012) … [I]f the defendants did indeed seek to expand the market for their assault weapons through advertising campaigns that encouraged consumers to use the weapons not for legal purposes such as self-defense, hunting, collecting, or target practice, but to launch offensive assault against their perceived enemies, then we are aware of nothing in the text or legislative history of PLCAA to indicate that Congress intended to shield the defendants from liability for the tragedy that resulted."

The court's opinion:

puts the victims’ families in a position where they may be able to try to prove a connection between Remington’s marketing for its Bushmaster AR-15 rifle and the horrific act of violence by a disturbed 20-year-old. The state Supreme Court said they can try; making the connection, lawyers and experts say, is a steep challenge.

“It is a Herculean task,” said Victor E. Schwartz, co-chairman of the public policy practice in the Washington, D.C. office of the law firm Shook, Hardy & Bacon — quoting from the Supreme Court’s majority opinion.

The Litchfield County Times has the story.  Alberto Bernabe has coverage here.  Thanks to Don Gifford for language from the opinion.

March 19, 2019 in Current Affairs | Permalink | Comments (0)

Monday, March 18, 2019

FL: Prospects for Tort Reform Increase

A newly reconfigured Florida Supreme Court and 6 tort reform bills mean the likelihood of tort reform in Florida has increased.  Newly elected Governor DeSantis made 3 appointments to the high court, turning a 4-3 conservative minority into a 6-1 majority.  There are 4 House bills and two in the Senate proposing tort reform.  Among other provisions, the bills would cap pain-and-suffering damages at $1M, without the jury being informed, and reform "bad faith" suits.  Florida Watchdog has details.

March 18, 2019 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Friday, March 15, 2019

Weeks on Healthism in Tort Law

Elizabeth Weeks has posted to SSRN Healthism in Tort Law.  The abstract provides:

This article draws on the author's recently published book, Healthism: Health Status Discrimination and the Law (with Jessica L. Roberts) (Cambridge University Press 2018), examining tort law doctrine and policy for examples of differential treatment of health status or behaviors. Just as scholars previously have drawn attention to discrimination based on race, sex, age, and other protected categories in tort law, the article urges similar examination of tort law's potential to discriminate against the unhealthy. The article discusses the potential for healthism in the reasonably prudent person standard of care, contributory negligence, assumption of the risk, noneconomic damages caps, impaired driver and physician cases, failure to mitigate, intentional infliction of emotional distress, and other tort law rules. It concludes by applying the book's decisional rubric for distinguishing between permissible and impermissible health status differentiation to specific examples from tort law.

She presented this piece at AALS in January, and it is forthcoming in the Journal of Tort Law.

March 15, 2019 in Conferences, Scholarship | Permalink | Comments (0)

Thursday, March 14, 2019

Insurance for the Marijuana Business

Marijuana laws are undergoing a rapid transformation.  Although still criminal at the federal level, 33 states and D.C. have authorized medical marijuana and 10 states and D.C. have authorized it for recreational use.  The business incentives are certainly there.  Expected revenue from marijuana businesses in 2019 is projected at $13.7B, and will grow to $22.1B in 2022.  One problem involves insurance.  Commercial general liability, property liability, and products liability policies often provide only $1M per occurrence and $2M in the aggregate.  According to a report released yesterday by A.M. Best, that may be insufficient for marijuana businesses.  Moreover, because this is an emerging market, insurers are inclined to stick with the limits.  Business Insurance has details.

March 14, 2019 in Current Affairs, Products Liability | Permalink | Comments (0)

Wednesday, March 13, 2019

Donahue & Witt on Tort as Private Administration

Nathaniel Donahue & John Witt have posted to SSRN Tort as Private Administration.  The abstract provides:

What does tort law do? This Article develops an account of the law of torts for the age of settlement. A century ago, leading torts jurists proposed that tort doctrine’s main function was to allocate authority between judge and jury. In the era of the disappearing trial, we propose that tort law’s hidden function is to shape the process by which private parties settle. In particular, core doctrines in tort help to structure and sustain the systems of private administration by which injury claims are actually resolved. Though an observer could hardly guess it from judge-centric theories of tort or by reading the typical reported appellate cases, repeat-play stakeholders such as the plaintiffs’ bar, insurers, and others are developing and managing claims resolution facilities that have turned the resolution of one-off tort claims in the United States into something akin to aggregate litigation or a public compensation program. Hidden deep in the shadows of the law, private administration is becoming a standard feature of torts practice with substantial implications for the theory of tort law and litigation.

March 13, 2019 in Scholarship | Permalink | Comments (0)

Tuesday, March 12, 2019

CO: 7-Year-Old Injured in After-School Science Experiment; Parents Sue

The parents of a 7-year-old Colorado Springs elementary student are suing for injuries she sustained in an after-school science experiment.  The plaintiff's attorney expects the school district and parent-teacher organization to be relieved of financial obligations early in the procedure; he believes an organization that provides hands-on, after-school science, technology, engineering and math programs on school grounds will bear responsibility:

The complaint alleges that on Feb. 28, 2017, the couple’s then 7-year-old daughter suffered first- and second-degree burns from “scalding hot liquid from a glass container that was dangerously placed on a counter on an unsupervised hot plate and knocked off.”

The girl was burned on her face, left ear, left arm, left shoulder, both legs and right foot, according to court documents. The injuries required surgical removal of the damaged tissue and skin grafts, leaving her with scars, the lawsuit states.

The Gazette has the story

March 12, 2019 in Current Affairs | Permalink | Comments (0)

Monday, March 11, 2019

William C. Powers, Jr. (1946-2019)

I am sad to announce the passing of Bill Powers, former president of the University of Texas, dean of the Texas School of Law, and Reporter for the Restatement (Third) of Torts.  I did not know Bill well, but I was impressed with him in every encounter we had.  He was kind to me.  Brian Leiter has a post here, and UT has a memorial notice here.

March 11, 2019 in TortsProfs | Permalink | Comments (0)

CA: $2M Verdict for Molested Student in Negligence Suit Against School District

On Thursday, a jury in Los Angeles reached a $2M verdict against a school district for failing to properly supervise a teacher who had a sexual relationship with a student in 2013, when she was 15 years old.  The overall award was $5M, but the jury split responsibility 60% for the teacher, who was not a party to the suit, and 40% for the school district.  The teacher had been arrested in 2004 for an alleged act against a minor at another high school.  NBC4 has the story.

March 11, 2019 in Current Affairs | Permalink | Comments (0)

Thursday, March 7, 2019

Two by Billauer on Wrongful Life and Wrongful Birth

Barbara Pfeffer Billauer has posted two pieces on wrongful life to SSRN.  The first is The Sperminator as a Public Nuisance:  Redressing Wrongful Life and Birth Claims in New Ways (AKA New Tricks for Old Torts).  The abstract provides:

Faced with an increase in sperm bank “accidents” – the lacuna of suitable legal redress for sperm-bank imposed harms begs to be filled. This article demonstrates for the first time that some sperm-bank generated harms transcend violating the personal goals of the parent and the rights of the child. In addition, sperm bank errors infringe on societal rights by, for example, saddling it with health costs for children born with genetic diseases. Moreover, introducing inherited diseases into the gene pool in large numbers sets the stage for a public health crisis. To address these harms, I propose repurposing an old of cause action, the private claim of a public nuisance. This harm-driven approach expands the class of would-be plaintiffs, broadens the spectrum of allowable claims, and bypasses restrictions imposed by traditional negligence law. Insofar as punitive damages are also allowed, the claim also has the potential to act as a deterrent of a host of sub-par sperm bank practices. I also discuss the implications of holding the sperm bank to fiduciary standards.

The second is Wrongful Life in the Age of CRISPR-CAS:  Developing a Legal Fiction for Wrongful Gamete Manipulation Cases.  The abstract provides:

Virtually all wrongful life claims (those brought by children harmed prior to gestation), are denied. The basis for these holdings pivots around refusal to allow recompense for actions which result in the child’s being born, an offshoot of cases where parents are denied the right of abortion. We therefore are faced with a legal lacuna, where children suffering serious harms as a result of wrongful genetic manipulation (WGM) caused by the latest reproductive technologies are legal orphans. This article details avenues of potential harm generated by the latest technologies before proceeding to create a legal fiction, “the conceptual being” which would enable these children to bypass current restrictions and claim an expanded class of damages, including pain and suffering, emotional injury and unjust enrichment.

March 7, 2019 in Scholarship | Permalink | Comments (0)

Wednesday, March 6, 2019

Popper on the Feres Doctrine

Andy Popper has posted to SSRN Rethinking Feres.  The abstract provides:

In 1946, the ancient wall of sovereign immunity gave way with the passage of the Federal Tort Claims Act (FTCA) opening the courthouse doors to those harmed by individuals acting on behalf of the federal government. Liability was limited from the outset by the vague and vexing discretionary function exception as well as limits on punitive damages, jury trials, attorney’s fees, injuries sustained abroad, and injuries sustained in combat. Unresolved by the FTCA was the fate of service members injured by actions incident to military service but outside of armed conflict.

Four years after the passage of the FTCA, the Supreme Court decided Feres v. United States, and in a few pages placed dramatic limits on the rights of millions of Americans. The Court rationalized these limitations on the need to maintain order and discipline, chain-of-command, unfair or unjust enrichment, and efficiency. The force of this decision was apparent immediately: most of those injured incident to military service would be denied access to the very system of justice they pledged to defend. Also lost was the potent deterrent effect of civil tort sanctions and the corresponding accountability those sanctions generate.

On enlistment, service members agree to be bound by a separate set of rules, a system bounded by discipline and unquestioning compliance with lawful orders. That oath does not include the concession to be without recourse should they be injured by impermissible misconduct. More than a half century ago, the late Chief Justice Warren stated that “citizens in uniform” should not be stripped of their basic rights simply because they are members of the armed forces, and yet, to date, Feres continues to be the law of the land.

In recent years, those who serve have been thanked by presidents and lauded at the start of nationally broadcast sporting events. Service members are routinely called heroes – and they are. Yet these gestures are incomplete when accompanied by a deprivation of one of the basic rights due to all citizens. Those most entitled to it, those willing to fight and die for it, cannot experienced the great promise of our legal system: fair hearings, a level playing field – in short, the blessings of simple justice.

The challenge of this article is that the same immunity that shields wrongdoers has also played a role in the evolution of our unquestionably extraordinary and exceptional armed forces. These are potent competing forces. Against this backdrop, it is time to rethink Feres.

This article discusses Feres v. United States, the FTCA, the expansion of the “incident to service” prohibition, and makes the following recommendation: Feres should be overturned and the FTCA amended to allow access to justice in Article III courts for those injured by actions that are neither incident to nor essential to military service. These actions include sexual assault, rape, vicious and unjustified physical violence, clear or gross medical malpractice, repetitive incidents of driving under the influence, nonconsenting exposure to toxins, and invidious discrimination.

When those who engage in misconduct are held accountable, when government is obligated to remedy those wrongs, respect for order, discipline, and all standards will increase. When uniformly condemned actions are subjected to public scrutiny in Article III courts, the probability of future similar misconduct will decline.

March 6, 2019 in Scholarship | Permalink | Comments (0)

Tuesday, March 5, 2019

Lens on Children, Wrongful Death, & Punitive Damages

Jill Wieber Lens has posted to SSRN Children, Wrongful Death, & Punitive Damages.  The abstract provides:

Starting in the mid-nineteenth century, state legislatures created wrongful death claims, including claims for bereaved parents against the tortfeasor who killed their child. Legislatures limited recoverable damages to pecuniary damages, meaning parents could recover the lost economic contributions they expected to receive from their child during his minority, minus the costs of raising the child. That pecuniary damage measure still controls today, with most states now also allowing recovery of noneconomic loss-of-relationship damages, although many states also cap the recovery of noneconomic damages. In sum, parents’ recovery of damages for their child’s death—a personal and cultural tragedy—is limited to pecuniary damages, which today’s parents lack, and a possibly capped noneconomic damage award.

The first Part of this Article explores the historical context—the antiquated assumptions about children—existing when state legislatures adopted the pecuniary measure. Those assumptions rely on two realities of the nineteenth-century child—that he was likely to die in his youth, and that he was valued economically. The infant and child mortality rates were high in the nineteenth century, which historians agree caused parents to expect at least one of their children to die and possibly also caused parents to be indifferent to that child’s death. Relatedly, parents valued their children economically, most evident in still-increasing prevalence of child labor in the nineteenth century. Under these realities, a pecuniary measure of damages was appropriate. But these realities of the nineteenth-century child long ago faded. Child death is now a personal and cultural tragedy, a reality in which pecuniary damages make no sense. 

The second Part of this Article suggests the adoption of a remedy consistent with the current tragedy of child death. That remedy is the exclusive use of punitive damages in wrongful death of children cases, a remedy for parents that is actually a substantive response to the death of a child and that could provide parents something significant and meaningful. The use of punitive damages is consistent with private redress punitive damage theory, empowering victims to obtain damages for the moral injury suffered, allowing parents to recover damages for the moral injury they suffer when their child is tortiously killed. The appreciation that parents suffer a moral injury better encapsulates parents’ actual experience—an experience involving much more than compensable grief. Also, punitive damages, unlike compensatory damages, actually express the wrongfulness of the wrongful death of a child.

March 5, 2019 in Scholarship | Permalink | Comments (0)