TortsProf Blog

JOTWELL Torts: Geistfeld on Long on Suicide

At JOTWELL, Mark Geistfeld reviews Alex Long's Abolishing the Suicide Rule.

European Tort Law

Congratulations to Mike Green on his seventeen-year tenure as the U.S. representative to the European Group on Tort Law.  Mike took emeritus status last week; he was both respected and loved by members of the Group.  His involvement began in 2002, in the intense period prior to the Group's 2005 publication of the Principles of European Tort Law.

Last week, for the first time, I attended the Annual Conference on European Tort Law, sponsored by the European Centre on Tort and Insurance Law and the Austrian Academy of Sciences.  For those of you in the U.S. interested in comparative law, I highly recommend it.  The conference covers the highlights of the previous year in tort law for over 20 European countries in 8-minute country reports.  I was dubious that academics could be restricted to speaking for 8 minutes, but the conference is run like a well-oiled machine.  Another wonderful feature of the conference is the atmosphere.  Speakers and attendees are serious about the material, and do not hesitate to debate issues.  There is, however, a remarkable sense of good will present, evident in the custom of attending Heurigen on Friday night.  Heurigen, which translates as something like "first wine," is when the speakers and attendees go to a traditional Austrian restaurant and enjoy dinner, wine, and even singing together.  The opening lecture this year was delivered by Mark Lunney, who discussed Australia as an important point of comparative common law.  The closing lecture on law and economics was delivered by Mark Geistfeld.  Do consider attending next year.

Shapiro on Civil Wrongs and Civil Procedure

Matthew Shapiro has posted to SSRN Civil Wrongs and Civil Procedure.  The abstract provides:

Civil wrongs are conventionally redressed through civil litigation, which, in turn, is constituted and governed by “transsubstantive” rules of civil procedure. What place, if any, should the general processes of civil litigation and rules of civil procedure have in a theory of private law organized around the concept of civil wrongs? In answering that question, this chapter makes three claims. First, the civil recourse theory of tort law, which attaches particular importance to the concept of civil wrongs, presupposes a process for redressing those wrongs with several distinctive features, features associated more with the general structure of the civil justice system than with any substantive private law doctrines. Second, civil recourse theory follows many other wrongs-based accounts of private law in employing an “interpretive” methodology that commits it to deeming those procedural features a “basic” part of the substantive body of law it purports to illuminate through the concept of civil wrongs. Third, the procedural landscape presumed by wrongs-based accounts of private law such as civil recourse theory has been upended in recent decades by significant changes to the ways in which civil wrongs are, in practice, redressed. The upshot is that private law theorists may well have to choose between the “pragmatic” desire to situate private law in its modern procedural context and the normative ambition to explain private law in terms of a plaintiff-empowering understanding of civil wrongs.

AALS Torts Section Call for Newsletter Items and Prosser Award Nominations

 Dear Colleagues,

We hope this email finds you well. We are writing as the Secretary and Treasurer of the AALS Torts & Compensation Systems section to pass along two important notices.

1.  Torts and Compensation Systems Section Newsletter

As most of you know, our section publishes a newsletter each fall listing: (1) symposia related to tort law; (2) recent law review articles on tort law; (3) selected articles from Commonwealth countries on tort law; and (4) books relating to tort law. If you know of any works that should be included, please forward relevant citations and other information to [email protected]. The deadline for inclusion in this fall's newsletter is Friday, August 16, 2019.

2.  2020 William L. Prosser Award

This is the first call for nominations for the 2020 William L. Prosser Award. The award recognizes “outstanding contributions of law teachers in scholarship, teaching and service” in torts and compensation systems. Recent recipients include Ken Simons, Marshall Shapo, Steve Sugarman, Aaron Twerski, Mike Green, James Henderson, Jane Stapleton, Guido Calabresi, Robert Rabin, Richard Posner, Oscar Gray, and Dan Dobbs. Past recipients include scholars such as Leon Green, Wex Malone, and John Wade.

Any law professor is eligible to nominate another law professor for the award. Nominators can renew past nominations by resubmitting materials. Living tort scholars and those who have passed away within the last five years are eligible for the award. Selection of the recipient will be made by members of the Executive Committee of the Torts & Compensation Systems section, based on the recommendation of a special selection committee. The award will be presented at the annual AALS meeting in Washington, D.C. in January 2020.   

Nominations must be accompanied by a brief supporting statement and should be submitted no later than Friday, July 19, 2019. Please email submissions to t[email protected].

Warm Regards,

Mary Davis and Tim Lytton

IN: Insurer Posts List of STD Tests in Online Portal; Privacy and IIED Claims Dismissed

While attempting to reconcile with her husband, wife is tested for STDs.  The insurer posts the list of diseases for which wife was tested in an online portal that is accessed by her husband as the primary policyholder.  Husband ceases reconciliation efforts and proceeds with a divorce.  Wife sues insurer for disclosure of private facts, intrusion upon seclusion, and IIED (also called outrage in Indiana).  A divided Indiana Court of Appeals dismissed the disclosure claim because Indiana does not recognize disclosure claims, and dismissed the intrusion claim because Indiana does not recognize intrusion claims that only invade a person's emotional solace.  Regarding outrage, the court dismissed it, as well, because posting the list of tested diseases in the online portal was not extreme and outrageous:

“This is not conduct which is utterly intolerable in a civilized community but, rather, routine in today’s technologically-driven society,” Judge Cale Bradford wrote for the divided panel, with Judge Elaine Brown concurring. “Health insurance companies maintain web portals to allow policyholders instant access to their personal medical information, insurance claims, etc., and the current matter is no exception.”

The Indiana Lawyer has the story.

Feldman on the Sandy Hook Ruling

Heidi Li Feldman has posted to SSRN Why the Latest Ruling in the Sandy Hook Shooting Litigation Matters.  The abstract provides:

On March 19, 2019 the Connecticut Supreme Court officially released its opinion in Soto v. Bushmaster Firearms International, LLC. Because the decision greenlights civil discovery and trial for the Sandy Hook plaintiffs seeking compensation from the maker, distributor, and retailer of the gun used by the shooter, the ruling received much attention in the popular press. It is, however, very easy to get the wrong impression about the significance of the Connecticut Supreme Court’s decision and the avenues it creates for both the plaintiffs and the defendants in the litigation. The decision is both more and less significant than it seems at first glance. It opens a serious pathway to liability under the PLCAA and creates a strategic dilemma for the defendant as to whether to appeal or go to trial. Yet the PLCAA remains a bar to most types of civil action to which other product makers and sellers are subject. In the absence of comprehensive congressional regulation, it will remain difficult to require or motivate gun makers to enhance the safety of firearms design and distribution.

Fisher-Price Rock 'N Roll Play Sleepers Recalled

Last week, all models of Fisher-Price's Rock 'N Roll Play Sleepers (approximately 5 million units) were recalled.  Since the product debuted in 2009, it is reported that over 30 infants have died using the product.  Days before the recall, the American Academy of Pediatrics urged it upon the CPSC and Fisher-Price.  WaPo has the story.

The Waiver Society Project

Yesterday, I posted an article written by John Witt, Ryan Martins, and Shannon Price.  They are also involved in a website called The Waiver Society Project.  From the website:

The general aim of the Waiver Project is to communicate something about the ubiquity of waivers in our world and to promote better understanding of the role  these complex documents play in the world around us. We want to understand the waiver not only as a legal tool, but as a sociological phenomenon. Why are waivers so common in modern society? Whose interests do they serve? Do differences among courts in waiver enforcement translate to better or worse waivers?

In short, we aim to stimulate thinking on the significance of waivers in our society. To this end, we hope to collect, share, and analyze waivers from all across the country. 

To do this we need your help!

• • Please send us any and all waivers you have, ideally with the date and time of the conduct in question.  Please see the “Contact & Submit” section of the website for instructions on how to submit your waivers, and let us know about your own experience with these strange legal documents. 

  • Send us new cases or articles from your jurisdiction so that we can keep the state summaries and bibliography updated.

  • Send news articles that catch your eye about waivers and waiver cases.  

We look forward to hearing from you!

Witt, Martins & Price on Waivers

John Witt, Ryan Martins & Shannon Price have posted to SSRN Contract's Revenge:  The Waiver Society and the Death of Tort.  The abstract provides:

A generation ago observers confidently predicted the death of contract and the triumph of tort. But contract has risen from the dead. Contracts waiving tort rights have become ubiquitous in the American marketplace. We survey the history and doctrine of exculpatory clauses in a wide variety of consumer contracts. We find that mid-twentieth-century skepticism about waivers has given way to a new age of increased waiver enforcement. The story of waiver enforcement, we conclude, is of a piece with the resurgence of free contract and market thinking in the 1980s and 1990s, a process we call “contract’s revenge.”

UPDATED: FL: Bill Would NOT Cap Non-Economic Damages at $1M in All Personal Injury Cases

A bill that would cap non-economic damages in all Florida personal injury cases at $1 million is headed to the House Judiciary Committee.  Decisions in 2014 and 2017 by the Florida Supreme Court struck down caps in wrongful death and medical malpractice cases.  The Florida Record has the story. 

UPDATED:  In the comments, someone sent me evidence the $1M cap was removed from the bill on March 29.  The bill now focuses on requiring the jury in some tort cases to consider an estimated value of the medical services rendered, based on a database containing amounts patients paid for similar care, in addition to the amounts actually billed by the provider to the claimant.

NJ: Jewish Man Files Tort Claim Notice Over Alleged Religious Harassment in Jail

A 29-year-old Jewish man has filed a tort claim notice against Ocean County, New Jersey regarding alleged harassment he suffered while incarcerated.  According to the notice, the man was placed in a cell with two large swastikas and a large target mark with the words "pop him" and his last name.  Moreover:

One officer allegedly made the comment, "You Jews own everything. You buy off Lakewood and Toms River and Jackson. Out there you may make the rules but in here we make the rules," according to the tort claim.

The claim alleges that corrections officers elicited other inmates to join in the mistreatment. The claim alleges that inmates threatened [the claimant's] life several times, with one inmate allegedly threatening to "knife him."

app has the story.

Lindsey Graham Appears to Support Class Action Reform

Lindsey Graham, who chairs the Senate Judiciary Committee, recently stated that "litigation abuse is real" and further stated that class action reform should be considered.  Graham's comments are interesting not only because of his position, but also because he receives donations from, and has sided with, plaintiffs in the past on some reform issues.  Legal Newsline has the story.

Punitive Damages for Maritime Personal Injury?

The Supreme Court is in the process of deciding its second maritime personal injury case of the term.  (The first was a ruling on the "bare-metal defense" in asbestos cases.)  In The Dutra Group v. Batterton, the Court will determine whether a Jones Act seaman can recover punitive damages in a personal injury suit based on the unseaworthiness of a vessel on which he was working.  At SCOTUSblog, Joel Goldstein breaks down the oral argument.

NJ: State Bans Non-Disclosure Provisions in Settlement Agreements for Discrimination, Retaliation, and Harassment

Last month, New Jersey adopted a law banning certain waivers of rights in employment contracts, as well as non-disclosure provisions in employment contracts and settlement agreements. 

Specifically, the Law declares as against public policy and unenforceable:

• • any provision in an employment contract that waives an employee’s substantive or procedural right or remedy relating to a discrimination, retaliation, or harassment claim under the LAD (law against discrimination) or any other statute or case law (a so-called “waiver of rights” provision), and

  • nondisclosure provisions in employment contracts and settlement agreements that conceal the details relating to a claim of discrimination, retaliation, or harassment (so-called “NDA” provisions).

The National Law Review has the story.  In 2017, a bill that would have prohibited non-disclosure agreements in similar circumstances was introduced, but not passed, in Pennsylvania.

JOTWELL Torts: Zipursky on Abraham & White on Cardozo's Wagner Opinion

At JOTWELL, Ben Zipursky reviews Ken Abraham and Ted White's Recovering Wagner v. International Railway Company.