TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Thursday, July 30, 2020

Dagan & Zipursky on Private and Public Law

Hanoch Dagan & Ben Zipursky have posted to SSRN The Distinction Between Private and Public Law.  The abstract provides:

Twentieth Century legal theorists – especially the American legal realists – provided vigorous critiques of the putative distinction between private law and public law, persuading jurists that the distinction relied upon legal formalism. In the latter third of the Twentieth Century, the law and economics school constituted a focused and dominant version of the legal realist capture of private law theory. By the 1990s, however, new forms of private law research developed, many of which we characterize as instances of “neo-realism.” And philosophical theorists brought private law theory full circle, re-embracing the distinction between private law and public law. These views are depicted here as forms of “neo-conceptualism,” and they are in many ways the polar opposite of neo-Realism. In this Chapter, Dagan and Zipursky each defends a view of the private/public distinction that falls in between the neo-realists and the neo-conceptualists. Dagan’s relational justice theory is a form of neo-realism highly receptive to the deontological concerns of the neo-conceptualists. Zipursky’s pragmatic conceptualism is a form of neo-conceptualism sensitive to the pragmatic and modernist concerns of legal realism.

July 30, 2020 in Scholarship | Permalink | Comments (0)

Wednesday, July 29, 2020

AMTL: Is Trump a Tort?

Rick Newman, the Executive Director of the American Museum of Tort Law, interviews Jim Zirin, author of Plaintiff in Chief:  A Portrait of Donald Trump in 3,500 Lawsuits.

July 29, 2020 in Current Affairs | Permalink | Comments (0)

Monday, July 27, 2020

LA: Tort Reform Bill Signed by Governor

In early July, I reported that a tort reform bill in Louisiana had passed both houses of the legislature, and the governor said he would sign it.  Governor Edwards did sign the bill and JD Supra has this overview.

July 27, 2020 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Friday, July 24, 2020

Feinman on "Five Myths about Lawsuits"

Jay Feinman has an opinion piece in WaPo:  "Five Myths about Lawsuits."

July 24, 2020 in Current Affairs | Permalink | Comments (0)

Wednesday, July 22, 2020

CA: Med Mal Cap Vote in 2022

In 1975, California enacted MICRA, a law which, among other things, capped pain and suffering damages in medical malpractice cases at $250,000.  In 2013, there was an unsuccessful ballot initiative to raise the cap to $1.1 million.  Proponents of the "Fairness for Injured Patients Act" have collected enough signatures to again attempt to alter the cap, this time in 2022.  The initiative would do three things:  1. adjust the cap for inflation, and adjust it annually thereafter; 2. allow judges and juries to exceed the cap in certain cases of catastrophic injury or death; and 3. require the cap be revealed to jurors.  Insurance Journal has the story.

July 22, 2020 in Current Affairs, Damages, Legislation, Reforms, & Political News | Permalink | Comments (0)

Monday, July 20, 2020

CFP: Oxford Studies in Private Law Theory, Volume II

 Oxford University Press is pleased to announce a call for papers for volume two of Oxford Studies in Private Law Theory, edited by Paul Miller (Notre Dame) and John Oberdiek (Rutgers).

Oxford Studies in Private Law Theory is a series of biennial volumes showcasing the best article-length work across private law theory.  The series publishes exceptional work exploring the full range of private law’s domains and doctrines—including contract, property, tort, and fiduciary law as well as equity, unjust enrichment, and remedies—and employing diverse methodological approaches to individual areas of private law as well as to private law in general.  Submissions should be approximately 12,000 words, inclusive of footnotes.  The deadline for submission is March 1, 2021.

Circumstances permitting, all accepted papers will be presented at a workshop at the National University of Singapore on August 6-7 2021.  The National University of Singapore and the Rutgers Institute for Law and Philosophy will cover the expense of contributors’ travel and accommodation. 

Please send submissions to both Paul Miller (paul dot miller at nd dot edu) and John Oberdiek (oberdiek at rutgers dot edu).

July 20, 2020 in Books, Conferences, Scholarship | Permalink | Comments (0)

Friday, July 17, 2020

PA: Hospital Admits Fault in Deaths of, and Injuries to, Three Premature Babies

A Pennsylvania hospital has taken the "extraordinary step" of admitting fault as it settled cases stemming from the deaths and injuries to three premature babies.  Geisinger Medical Center of Danville, PA acknowledged the process it used to prepare donor breast milk led to a fatal outbreak in the neonatal ICU.  The monetary terms of the settlement were not disclosed.

Attorney Matt Casey, who represented the families of two of the infants who died and a third who suffered serious brain injury, said Wednesday his clients insisted that Geisinger take full legal acceptance of responsibility as a condition of the settlement.

He said Geisinger agreed — something he said he’s never before seen in a civil settlement in over two decades of medical malpractice work.

PennLive has the story.

July 17, 2020 in Current Affairs | Permalink | Comments (0)

Thursday, July 16, 2020

First COVID-19 Lawsuit Filed Is Dismissed

You may recall that back on March 19, I posted a link to Ron Miller reporting on the first COVID-19 lawsuit, arising out of the Grand Princess cruise ship.  The plaintiffs in that case sued the cruise line for emotional distress because of fear of exposure to COVID-19.  Yesterday, a federal judge dismissed the lawsuit and warned of a "flood of trivial cases."  Tom Hals at Reuters has the story.

July 16, 2020 in Current Affairs | Permalink | Comments (0)

Wednesday, July 15, 2020

Tilley on IIED

Cristina Tilley has posted to SSRN The Tort of Outrage and Some Objectivity about Subjectivity.  The abstract provides:

The tort of outrage has been sidelined in recent decades by judges and academics who question its legitimacy. This Article is an attempt to move outrage from the margins to the center of American tort law. It begins by unearthing the complex intellectual history that produced judicial skepticism about this tort, also known as intentional infliction of emotional distress. The Legal Realists who “invented” outrage made a strategic decision to condition liability on the “outrageousness” of behavior rather than to identify discrete acts as wrongful. This doctrinal indeterminacy was necessary to quell corporate opposition to the tort at the time. Ultimately, however, it has led modern courts and scholars to label outrage as “inherently subjective” and therefore “disfavored.”

This Article challenges that conventional view by proposing a scientific basis for distinguishing ordinary aggression from its outrageous counterpart. Neuroscience literature suggests that when the target of a threat can execute a biologically reflexive fight or flight response, he experiences benign, adaptive, stress. But when an impediment blocks the target from following through on that biologically compelled response, he experiences physiologically maladaptive distress. Consequently, the behavioral factor that separates ordinary aggression from outrageous aggression is the defendant’s use of threats coupled with awareness that the plaintiff cannot react prosocially. While many impediments to response are physical facts known to the entire community, others are social facts of which some community segments may claim ignorance. Thus, when plaintiff paralysis results from defendant exploitation of physical impediments recognized by all, jurors can stigmatize the defendant without exercising any subjective judgments about how “real” the impediment was. But when plaintiff paralysis is claimed to result from social conditions – particularly in the case of women and people of color who have reason to believe that a prosocial response will draw retribution – jurors who assign liability are expressing a belief that the plaintiff’s experience was “real” despite the defendant’s claimed unawareness of it. In other words, the tort’s “objective” version assigns liability based on physical facts, while its “subjective” version assigns liability based on an acceptance of social facts that have been the subject of some dispute.

In its concluding section, the Article investigates how often jury verdicts for plaintiffs require endorsement of the plaintiff’s worldview and rejection of the defendant’s claimed ignorance. Specifically, it examines jury verdicts in five states over several decades to determine the relative frequency of “objective” and “subjective” liability assignments. In three-fifths of the cases studied, outrage liability arose from behavior that was objectively understood by both the defendant and the community at large to be antisocial, and thus did not require the jury to determine whose version of “reality” to accept. However, in a third of cases, juries assigned liability where women or people of color felt paralyzed by experiences of social hierarchy the defendant implicitly claimed not to have recognized, meaning the jury accepted as real the plaintiff’s experience of the world. The Article ultimately argues this small sector of outrage liability is in keeping with the best tort tradition. It foregrounds information about life experiences that are often excluded from mainstream narratives. Further, it gives institutional weight to those experiences, and by doing so deprives future defendants of a safe harbor for exploitation grounded in claims of social naivete.

July 15, 2020 in Scholarship | Permalink | Comments (0)

Monday, July 13, 2020

Lahav on Causation

Alexandra Lahav has posted to SSRN Chancy Causation in Tort.  The abstract provides:

This Essay demonstrates that the causation inquiry in tort law, at least where causation is chancy, is largely a normative inquiry. Chancy causation is where the cause of an event can only be attributed probabilistically. Contrary to the understanding popular in both tort theory and doctrine, scientific fact plays only a minimal role in chancy causation cases. Understanding this reality opens the door to considering what approach to causation is normatively desirable. The Essay proposes a change in the doctrine that effectuates this observation.

Methodologically, the Essay utilizes a metaphysical inquiry into causation as a first step to understanding this legal concept. If it is true that causation cannot be pinned down deterministically, as chancy causation cannot, then what determines factual causation? The answer is policy. I call this approach “pragmatic” because like the pragmatists of the late 1800s, it evaluates the use of an idea rather than claims regarding its metaphysical truth. But there is a metaphysical piece here as well. We only get to the point of applying a pragmatic analysis by understanding something about the metaphysics of causation.

July 13, 2020 in Scholarship | Permalink | Comments (0)

Friday, July 10, 2020

GA: Non-driver in DUI Accident Potentially Liable for Uncapped Punies

The Georgia Supreme Court unanimously ruled that a non-driver in a DUI accident can be an "active" tortfeasor, and, thus, potentially liable for uncapped punitive damages.  The allegations in the case involved a drunk man loaning his car to a man he knew to be drunk, devoid of a license, and having a habit of recklessness.  The driver then hit and injured someone.  Neither of the defendants was represented by counsel and a concurrence asked the legislature to consider whether the decision was the desired law of Georgia.  Property Casualty 360 has the story.

July 10, 2020 in Current Affairs, Damages | Permalink | Comments (0)

Thursday, July 9, 2020

NY: Lawmaker Introduces Bill Requiring Police Officers to Carry Personal Liability Insurance

Last month, I reported on a proposal by Deborah Ramirez to require police officers to carry liability insurance.  The idea was to provide financial incentives to police officers to behave reasonably, in that claims against them would result in higher premiums.  In New York, Senator Alessandra Biaggi has introduced a bill to make that idea the law of the jurisdiction.  The Hill has the story.  

July 9, 2020 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0)

Tuesday, July 7, 2020

French on COVID-19 Business Interruption Claims

Christopher French has posted to SSRN COVID-19 Business Interruption Insurance Loses:  The Cases For and Against Coverage.  The abstract provides:

The financial consequences of the government-ordered shutdowns of businesses across America to mitigate the COVID-19 health crisis are enormous. Estimates indicate that small businesses have lost $255 to $431 billion per month and more than 44 million workers have been laid off. When businesses have requested reimbursement of their business interruption losses from their insurers under business interruption policies, their insurers have denied the claims. The insurance industry also has announced that business interruption policies do not cover pandemic losses, so they intend to fight COVID-19 claims “tooth and nail.” More than 450 lawsuits throughout the country already have been brought against insurers, including dozens of class actions. Legislators in several states have proposed legislation that would require insurers to pay business interruption claims regardless of whether the claims are covered by the wording of the policies. In the absence of a government bailout, the losers of this epic insurance battle—either insurers or their insureds’ businesses—will likely face bankruptcy. Thus, the financial consequences of this battle, and its implications for America’s economy, cannot be overstated.

This is the first scholarly Essay to discuss the arguments for and against business interruption policies covering COVID-19 business interruption losses. In doing so, it sets forth the strongest arguments on each side of the fight regarding the meaning of the applicable policy language in the context of the existing caselaw and the purpose of business interruption insurance. It also addresses the insurance industry’s claim that pandemic losses are not covered by business interruption policies because such losses are simply uninsurable. Finally, it discusses the competing public policies that support each side.

July 7, 2020 in Current Affairs | Permalink | Comments (0)

Monday, July 6, 2020

PA: Suit Filed Over Failure to Properly Restrain 9-Year-Old on Roller Coaster

A father has sued the owner of Hershey Park and the designer and builder of the Storm Runner roller coaster over an incident from June 2018.  The suit alleges that his 9-year-old son was not able to pull the harness down and secure it, and that park employees did not come and help or check that he was securely fastened.  The boy was able to leap off the ride as it was starting.  The suit includes allegations of design defect; plaintiff claims the roller coaster should not be able to move unless all of the harnesses are securely fastened.  Although no physical injuries resulted, plaintiff alleges negligent infliction of emotional distress on behalf of both himself and his son.  PennLive has the story.  Thanks to Shannon Costa for the tip.

July 6, 2020 in Current Affairs, Products Liability | Permalink | Comments (0)

Friday, July 3, 2020

LA: Tort Reform Bill Passed; Governor Will Sign It

In the final hours of a special session in Louisiana, the legislature passed a tort reform bill that the Governor Edwards said he would sign.  He vetoed an earlier version.  The impetus for the reform was automobile insurance rates:  Louisiana's are among the highest in the country. 

The bill makes several changes:  a limitation of the collateral source rule, removal of the ban on mentioning whether a plaintiff was wearing a seat belt, limits on when the insurance company's name can be mentioned in court, and a reduction of the threshold for jury trials from $50,000 to $10,000.  The last reform likely strikes many as odd.  Juries have a reputation for calculating damages more liberally than judges.  Defense interests in Louisiana, however, believe that juries will be more conservative than judges, and are expanding the number of cases tried to a jury.  The bill does not address direct reductions in insurance rates.  WWL has details.

July 3, 2020 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Thursday, July 2, 2020

MO: Governor Signs Bill Reforming Punitive Damages

On Wednesday, Missouri Governor Mike Parson signed a bill overhauling that state's punitive damages regime.  The bill codifies a standard of punitive damages in which the "defendant intentionally harmed the plaintiff without just cause or acted with a deliberate and flagrant disregard for the safety of others."  In medical malpractice cases, the standard is more stringent, "the health care provider intentionally caused damage or demonstrated malicious misconduct. Evidence of negligence, including indifference or conscious disregard for the safety of others, does not constitute intentional conduct or malicious misconduct."  The bill also requires punitive damages be proved by clear and convincing evidence.  Moreover, punies may not be alleged in the complaint, but may only be added by permission of the court no later than 120 days prior to the final pretrial conference or trial date.  The Missouri Times has the story.

July 2, 2020 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Wednesday, July 1, 2020

Is Amazon a Seller for Purposes of Products Liability? Issue Certified to PA Supreme Court

A year ago, the Third Circuit held that Amazon was a seller for purposes of Pennsylvania products liability, even if the goods were owned by third parties.  (Coverage here)  Then the Third Circuit decided to revisit the case en banc.  Last month, the Third Circuit certified the issue to the Pennsylvania Supreme Court:

This is an issue of first impression and substantial public importance, yet we cannot discern if and how 402A applies to Amazon. We are,as a result, unable to predict how the Pennsylvania Supreme Court would rule in this dispute. NOW THEREFORE, the following question of law is certified to the Supreme Court of Pennsylvania for disposition according to the rules of that Court:

Under Pennsylvania law, is an e-commerce business, like Amazon, strictly liable for a defective product that was purchased on its platform from a third-party vendor, which product was neither possessed nor owned by the e-commerce business?

We shall retain jurisdiction over the appeal pending resolution of this certification.

Oberdorf v., Inc., No 18-1041, 2020 U.S. App. LEXIS 17974 (3d Cir. June 2, 2020)

Thanks to Shannon Costa for the tip.

July 1, 2020 in Products Liability | Permalink | Comments (0)