TortsProf Blog

AALS Torts Section Annual Meeting Events

On Friday, January 7, the Torts Section has two events at the Annual Meeting.  From 2:00-3:00 Eastern, there is a Section Networking Session.  Martha Chamallas, winner of the 2022 Prosser Award, will make remarks.  From 3:10-6:00 Eastern, the Section will team up with the Natural Resources and Energy Law Section for a program on "The Rising Tide of Climate Torts."

Steve Sugarman, RIP

Berkeley Law has announced today the sad news that Steve Sugarman has passed.  The announcement is here.

Abraham & Baker on the Effects of History on Insurance

Ken Abraham & Tom Baker have posted to SSRN What History Can Tell Us About the Future of Insurance and Litigation After COVID-19.  The abstract provides:

This Article, written for the annual Clifford Symposium on Tort Law and Social Policy, chronicles a series of developments in American history that profoundly influenced the course of insurance and insurance law, in order to predict the post-Covid-19 future of these fields. In each instance, there was a direct and decided cause-and-effect relationship between these developments and subsequent change in the world of insurance and insurance law. As important as the influence of Covid-19 is at present and probably will be in the future, in our view the Covid-19 pandemic will not be as significant an influence on insurance and insurance law as the historical developments we identify, and that is part of our message. Nonetheless, the Covid-19 pandemic will cause change, and change does not take place from a standing start. The world of insurance and insurance law have a history that places them already in motion when such new developments as a pandemic occur. Understanding how major historical developments influenced and continue to influence insurance can help us to predict the post-Covid future of insurance.

The developments this Article identifies exercised three different forms of influence. First, certain events in the twentieth-century – most notably the rise of modern tort liability and the introduction of automobiles and computers – stimulated the insurance marketplace, by generating entirely new forms of insurance to protect against the risks posed by or brought into being by these events. Second, other developments – including mass tort and pollution liability, climate change, and natural catastrophes -- influenced the evolution of insurance law doctrine in important ways, bringing modern insurance law into existence. Third, modern finance has affected insurance, and in turn insurance coverage, through the "financialization" of insurance. Having chronicled these events and developments and assessed their influence, the Article concludes by identifying some lessons that can be learned from our analysis, and applies them to support our predictions about the post-Covid world of insurance and insurance litigation.

Abraham & White on Tort Theory

Ken Abraham & Ted White have posted to SSRN their contribution to the upcoming Journal of Tort Law symposium on "The State of Tort Theory."  Entitled The Inward Turn and the Future of Tort Theory, the abstract provides:

The future of tort theory cannot be sensibly imagined without understanding its past. Our aim is to understand where tort theory has been in order to predict where it may go. We contend that tort theory has experienced two different eras, and that it may well be about to enter a third. In the first era, spanning roughly the first three-quarters of the twentieth century, tort theory faced outward to the world, focusing on issues affecting redress for civil injuries that were being decided in the courts and emerging in American society at large. In the second era, roughly the last 30 to 40 years, tort theory turned inward and focused mostly on itself. The tort theory that has been done during this second era, valuable though it has been, may well have borne most of its scholarly fruit. We may therefore be ready to move into a third era, in which tort theory turns outward again and becomes occupied with the cutting-edge issues of tort law policy and principle that will be generated as the twenty-first century progresses. This Essay chronicles the first era, in which tort theory faced outward, the second era, in which tort theory turned inward, and identifies three issues that we believe may be on the tort theory agenda, when and if tort theory turns outward again. These involve the coordination and systematization of tort with other sources of regulation and compensation; redressing data theft and digital invasions of privacy; and heightened sensitivity to harm associated with sex, gender, and race-related misconduct.

Feldman on Tort Theory

Heidi Li Feldman has posted her contribution to the upcoming Journal of Tort Law symposium on "The State of Tort Theory."  Entitled From Liability Shields to Democratic Theory:  What We Need from Tort Theory Right Now, the abstract provides:

Among possible legal responses to a pandemic, quashing tort liability might seem startling. Common sense indicates that a deadly and debilitating disease would call for possible tort liability, to enable recovery for losses by those subjected to the disease because of others’ carelessness while also discouraging careless conduct that could lead to preventable cases illness in the first place. Yet, when faced with SARS-CoV-2 and COVID-19, the life-threatening disease caused by the virus, the first response of many American lawmakers was to enact, or attempt to enact, COVID-19 “liability shield” statutes. These laws introduced doctrine to eliminate or narrow grounds for tort claims against those who caused others to contract COVID-19.

As it turns out, the COVID-19 liability shields have an extensive pedigree in the American law of torts. In this article, I review the steady introduction of what I call “eliminative” tort doctrines, especially the wave of them dating back to the 1970s. Individually and together, these doctrines sharply reduce the grounds for personal injury claims, burden the injured’s ability to prevail in permitted claims, and restrict the recovery available even when such claims succeed. Eliminative tort doctrines appear in both federal and state law and apply in a variety of factual circumstances. I maintain that existing eliminative tort doctrines facilitated the rapid promulgation of intricate, detailed COVID-19 liability shield statutes.

A fifty-year surge in eliminative doctrines is a distinctive development. It calls for explanation and interpretation. In this article, I introduce a tort theory that centers eliminative tort doctrines, rather than dismiss them as aberrations or passing political fads. I title the theory “tort deflationism.” It is deflationary because it treats tort law as a field that should be modest in the legal liability it creates and the extent of the liability it allows. I argue that tort deflationism is latent in the post-1960s eliminative tort doctrines and their relationship to modern American conservatism, a broad social, intellectual, and political movement that arose after World War II and continues to the present day.

I myself do not endorse tort deflationism. I have chosen to articulate it in this article in order to explore its explanatory power, evaluative force, implications for alternative tort theories, and potential significance for democratic theory and practice. Tort deflationism deserves serious attention, if for no other reason than to clarify grounds for objecting to it or to criticize its conception of the law of personal injury.

The article examines the COVID-19 liability shields and their predecessors so as to identify the features that any theory geared to them must illuminate. It then spells out the mid-level principles central to tort deflationism and develops a full-blown theoretical synthesis of these principles by showing their ties to the intellectual and ethical commitments of modern American conservatism. Next, the article canvases how tort deflationism can make sense of developments in American tort law other than the post-1960s surge in eliminative tort doctrines, using as an example the law of workplace injury. Then, it covers how tort deflationism compares to other tort theories, showing how it serves as a useful foil. Finally, the article considers how tort deflationism relates to ongoing debates about the legitimacy of law in pluralist democracies.

Wriggins on Race and Torts Pedagogy

Jenny Wriggins has posted to SSRN How to Include Issues of Race and Racism in the Torts Course for First Year Law Students:  A Call for Reform.  The abstract provides:

Race and racism have always played a significant role in the U.S. tort system as research has long shown and as hundreds of published decisions demonstrate. Do torts casebooks reflect the importance of race and racism in torts? The article first surveys 23 torts casebooks published from 2016 to 2021 to see whether and to what extent they discuss race and racism. Most avoid discussions of race and racism in torts; and although they always discuss tort history, they omit the racial history of torts. Although publishers frequently issue new editions of torts casebooks, newer editions generally have not expanded their focus to include race and racism. Two notable exceptions are the new open source casebook, TORTS: A 21ST CENTURY APPROACH, by Prof. Zahr Said, and TORT LAW AND PRACTICE by Prof. Dominick Vetri and co-authors.

Following the casebook survey, the article turns to this question: How can professors incorporate issues of race and racism in their torts courses? I recommend that law teachers incorporate issues of race and racism in first year torts courses in two major ways. First, law professors should teach a number of pedagogically interesting cases that deal with race and racism and that also illuminate significant doctrinal issues. This article suggests specific cases keyed to most of the important doctrinal areas in torts. These cases are less known than cases that are commonly taught, but they are also important and can convey the relevant doctrinal points equally well. Second, law professors in teaching damages should include material on the devaluation of injuries to African-Americans in torts. Important background also includes information about the unequal distribution of liability insurance – a key part of the torts system – by race. Since torts is a required first year course, and race and racism have had a significant role in the U.S. torts system, law students should gain at least a general understanding of race and racism’s role in torts. Including race and racism in torts courses strengthens the first year curriculum. While this may seem daunting for some instructors, ample materials now on offer make it very feasible. The time is certainly ripe for this essential change.

No-Fault, Traditional Auto Insurance, and Reform

NPR's Bill Chappell has a story on Michigan providing a $400 refund to Michigan drivers for each vehicle that they own.  Refunds were possible because the legislature instituted reforms last year that saved Michiganders a lot of money on auto insurance.  Michigan is one of approximately a dozen states that retains some form of no-fault auto insurance law.  For years, Michigan has also had the highest auto insurance rates in the nation.  The major reform allowed drivers to choose how much personal injury protection medical coverage they want when they purchase or renew a policy.  

In this post, I don't intend to advocate for no-fault auto insurance.  Jeffrey O'Connell, my torts professor, mentor, and friend, was the co-author of the work that led to no-fault laws.  Despite my respect and affection for him, I don't support passing traditional no-fault laws.  The choice no-fault plans he embraced later in life are appealing, but I am not advocating for those in this post either.  Nor do I necessarily oppose the reform passed in Michigan.  Auto insurance cannot be prohibitively expensive, something Jeffrey himself believed wholeheartedly.  

My point is a more modest one.  Saying Michigan has the highest auto insurance rates in the nation is not an apples-to-apples comparision.  First, everyone injured in a no-fault system receives compensation, regardless of whether they were at fault.  So all Michiganders are protected from injuries in auto accidents.  Second, Michigan is the only state that, until the 2020 reform, required drivers to purchase lifetime medical benefits.  Anyone injured in an auto accident in Michigan would have all of their health care needs provided for the rest of their lives.  The situation is very different in other states.  In both Pennsylvania, where I lived for 18 years, and California, where I live now, someone injured in an auto accident could receive as little as $15,000 from an at-fault driver.  The $15,000 amount is the mandatory minimum amount of liability insurance required for bodily injuries to a single person.  That is not half the cost of a helicopter ride to the hospital.  Technically, the driver is personally liable for all costs above insurance coverage, but it is rare they have the assets for that.  One of the bigger problems with tort law for auto accidents is that smaller claims tend to be overcompensated and larger claims tend to be undercompensated, sometimes dramatically so.  So, although Michiganders paid more for auto insurance, they received a lot more protection. 

Again, I am not arguing the reform was a mistake.  If the costs are too high, it may not be reasonable to require such levels of protection.  (Though, undoubtedly, there will be those who rue the change.)  But if lifetime medical coverage is too high, surely $15,000 is too low.  Those states requiring only $15,000, or even $25,000, of liability insurance per person for physical injuries need to review those laws and consider changing them.  (For an article specific to Pennsylvania, but applicable more broadly, see here.)  You can, and should, protect yourself using UM/UIM and medical insurance, but so many people do not or cannot understand the need to do so.   With auto accident deaths rising again, now is an excellent time to reconsider the minimum auto insurance requirements.

Thanks to Sheila Scheuerman for the tip.

Perry on Instrumental Comparative Tort Law

Ronen Perry has posted to SSRN Instrumental Comparative Tort Law.  The abstract provides:

This contribution to the JTL symposium on "The State of Tort Theory" aims to delineate the potential use of comparative tort law in practice and theory. It takes the view that comparative law is always a means, never an end in itself, demonstrates how it can be utilized by judges, legislatures, and legal scholars, and puts forward important caveats and qualifications.

Part 2 exemplifies the more traditional role of comparative law in interpreting and implementing shared or similar tort doctrines and in providing ideas, often accompanied by relevant empirical evidence, for domestic tort law gap-filling and reform. It explains the challenges that lawmakers and scholars who use comparative tort law for these purposes might face.

Part 3 maintains that comparative law is the cornerstone of unification endeavors. It starts with coordinated projects, such as the Restatements of Torts and the Principles of European Tort Law, demonstrating that unification is in itself an instrument (making comparative law a second-order instrument) and that it cannot be pursued without taking into account some concerns about its desirability and practicability. Part 3 then discusses uncoordinated unification processes, whereby lawmakers in one jurisdiction identify a “global consensus” and decide to join it. It elaborates on the two components of these strategies—the normative (justifying adherence to consensus) and the positive (proving consensus through comparative research).

Part 4 acknowledges that comparative analysis more frequently uncovers trans-jurisdictional diversity and argues that such findings can be used as the foundation for normative and positive theories of tort law. As regards normative theories, a comparison can offer a systematic taxonomy of possible legal solutions to a particular problem, enabling legal scholars to critically evaluate and compare the alternatives from their preferred theoretical perspective. As regards positive theories, any hypothesis about the impact of cultural, economic, political, technological, and other conditions and changes on the law can be substantiated or refuted through comparative analyses that seek out legal differences (or similarities) among systems with different (or similar) underlying backgrounds.

OH: Duty Case on Mailbox Construction

In Snay v. Burr, 2021-Ohio-4113 (2021), the Supreme Court of Ohio wrestles with a property owner's duty to construct a mailbox within the right-of-way that is safe for drivers on the road.  Defendant put up a mailbox on an eight-inch-diameter pipe that was buried 36 inches deep, both contrary to guidelines published by the Postal Service.  Plaintiff lost control of his car and crashed into the mailbox, which did not collapse.  Plaintiff became a quadriplegic, and sued defendant over the mailbox.  The court held defendant had no duty to the plaintiff:

 The Burrs’ mailbox did not affect the safety of ordinary travel on the regularly traveled portion of Young Road. And Burr's knowledge that the mailbox's construction was inconsistent with nonbinding postal-service guidelines does not warrant a departure from the general rule that the duty to motorists owed by an adjacent landowner or an occupier of land adjacent to the road extends only to conditions in the right-of-way that render ordinary travel on the regularly traveled portion of the road unsafe. This is true even though there existed the possibility that a vehicle might negligently veer off the regularly traveled portion of the road and hit the mailbox.

 

Because the Burrs’ mailbox did not present a hazard to ordinary travel on the regularly traveled portion of the road and because Snay's deviation from the regularly traveled portion of the road did not constitute a normal incident of ordinary travel, we conclude that the Burrs did not owe a duty of care to Snay with respect to their mailbox. And because there can be no liability in negligence without a duty of care, we affirm the judgment of the Sixth District Court of Appeals.

Goldberg on 510(k) Evidence

Phil Goldberg discusses two cases before the New Jersey Supreme Court on the issue of 510(k) evidence, i.e., whether courts should allow juries to hear evidence regarding the FDA's review of medical devices when determining whether those devices are defective.  The lede:

  The New Jersey Supreme Court has agreed to hear a pair of cases that will have a major impact on medical
device liability and, in turn, the availability of important new devices that offer technological advances over
previous products. The issue is over the admissibility of evidence that the manufacturer received the U.S. Food
and Drug Administration’s (FDA) clearance before bringing the device to market. Plaintiffs’ lawyers want juries
to decide core liability issues—whether a medical device is defective or its manufacturer should be subject to
punitive damages for how it brought the device to market—as if the FDA did not exist.

The piece is here:  Download Goldberg 510(k) Article for WLF

2021 AALS Torts Section Newsletter

is available here:  Download AALS Torts Newsletter - December 2021

Pojanowski & Miller on the Internal Point of View in Private Law

Jeffrey Pojanowski & Paul Miller have posted to SSRN The Internal Point of View in Private Law.  The abstract provides:

Many leading private law theorists claim to analyze private law from an internal point of view; a vantage point within which private law doctrine, institutions and procedure enjoy pride of place. Private law theory of a generation ago distinguished the internal from external points of view, valorizing the former and criticizing the latter for ignoring the normativity of private law or for mistaking private law for public law or regulation. The New Private Law, by contrast, asserts the complementarity of internal and external points of view, partly by emphasizing the value of functionalist analyses of legal form. In this article, we canvas leading accounts of the internal point of view in private law (provided by corrective justice and civil recourse theorists, respectively) and identify their shortcomings: notably, their inability to ground assertions about the normative and
explanatory priority of the internal point of view, and about its relationship (whether of exclusivity or complementarity) to external points of view. We offer an alternative, and we think better, rendering of the internal point of view, drawing on the work of John Finnis. Amongst other things, our account vindicates the New Private Law’s alluring but elusive promise of perspectival integration, showing how private law may be understood as an interlocking set of practices of public practical deliberation equally concerned with reasoned compliance and behavioral conformity with practically reasonable laws.