TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Monday, February 28, 2022

Duff on Workers' Compensation

Mike Duff has posted to SSRN Fifty More Years of the Ineffable Quo?  Workers' Compensation and the Right to Personal Security.  The abstract provides:

During the days of Covid-19, OSHA has been much in the news as contests surface over the boundaries of what risks of workplace harm are properly regulable by the federal government. Yet the original statute that created OSHA—the Occupational Safety and Health Act of 1970—was not exclusively concerned with front-end regulation of workplace harm. Just over fifty years ago, the same Act mandated an investigation of the American workers’ compensation system, which consists of a loose network of independent state workers’ compensation systems. The National Commission created by the Act to carry out the investigation issued a report of its findings in 1972 and concluded that American workers’ compensation was neither fair nor adequate. The Commission made nineteen “essential recommendations” for the system’s improvement. The federal Department of Labor shifted into high gear to monitor state compliance with the recommendations under implicit, but vague, threat of workers’ compensation federalization if progress was not achieved. In what is perhaps the most interesting part of the story, nothing changed. Today, the Department of Labor no longer monitors workers’ compensation’s attainment of any benchmarks, although some organizations monitor workers’ compensation “trends.”

Lost in discussions of workers’ compensation is any sense of a baseline . Why does this matter? Because workers’ compensation was conceived as a “Grand Bargain” or “quid pro quo,” in which workers surrendered tort rights for adequate statutory benefits. This article contends that the absence of investigation as to whether workers’ compensation benefits are too low has effectively unmoored workers’ compensation from the faintest echoes of the tort rights for which it was exchanged. The article seeks to provoke discussion of what it means, as a matter of both policy and constitutional law, for a state to dispossess injury remedies by converting workers’ compensation from a reasonable substitute remedy for tort to a pale, anti-destitution law relegated to functioning as a form of “welfare.” The article explores the phenomenon of permanent partial disability benefits paid to workers for injuries according to bizarre schedules that are not to any degree based on workers’ lost earning capacity nor on any rational criteria that anyone can identify. Permanent partial benefits—the largest component of workers’ compensation indemnity benefits—are arbitrary.

In its essence this article is about whether state legislatures have carte blanche to annihilate meaningful remedies for workers wrongfully injured in the workplace. Furthermore, to the extent that state legislatures pursue such objectives, the article presses for recognition of a Blackstonian “absolute” right to personal security. Evisceration of remedies not only makes workers poorer, but also leads to their insecurity because they work for actors with insufficient incentives to act safely. The solution to the problem is for legislatures to be more transparent about the relationship between workers’ compensation benefits and foregone negligence remedies—particularly because the original Grand Bargain was struck at a time when negligence affirmative defenses would instantly defeat tort claims, a situation that no longer obtains. The time for benefit inscrutability and ineffability is over.

February 28, 2022 in Scholarship | Permalink | Comments (0)

Friday, February 25, 2022

Abraham on Lessons from the Reptile

Ken Abraham has posted to SSRN Shadow Tort Law:  Lessons from the Reptile.  The abstract provides:

For over a decade, a battle has been raging in the trial courts of this country over something called the "reptile theory," often simply referred to by insiders as "the reptile." The term comes from the book Reptile: The 2009 Manual of the Plaintiff's Revolution. The book's thesis is that the way for plaintiffs to win tort cases and secure large verdicts is to appeal to the reptilian part of jurors' brains, which (like threatened snakes) reacts with anger at threats to their security. This reaction is created mainly by subtly modifying the applicable standard of care in negligence cases. At the core of the reptile battle, then, is a dispute about the meaning of negligence. Though it is notorious among trial lawyers, the reptile has been invisible or barely visible to torts scholars, because the issues it poses are governed by a body of trial-level substantive tort law that is unreviewed, and for practical purposes largely unreviewable, by the appellate courts. This is what I call "shadow tort law," arising from rulings on questions that can be asked prospective jurors on voir dire, on motions in limine intended to preclude use of the reptile strategy, and on what counsel may and may not argue during closing argument.

In order to uncover how the reptile figures in the development of shadow tort law, this Article first describes what the reptile is and how its proponents and opponents deal with it pre-trial and trial settings. The Article then turns to the meaning of negligence as applied in these settings, analyzing the arguable gap between what the reptile strategy prescribes and what the law of torts provides, as well as the significance of that gap. Finally, the Article reflects on the jurisprudential implications of the analysis. It turns out that a lesson of the reptile controversy is that the law of torts (and arguably other bodies of law as well) is not always a single, continuous body of doctrine running from the filing of a complaint through to a final appeal. Rather, tort law is to a meaningful extent partly discontinuous, often operating in different, largely autonomous domains.

February 25, 2022 in Scholarship | Permalink | Comments (0)

Wednesday, February 23, 2022

Graham on Predicting the Future in Tort Law

Kyle Graham has posted to SSRN Predicting the Future in Tort Law.  The abstract provides:

Many predictions have been made, especially lately, about how tort law will interact with new technologies. But what can one actually foresee in this respect? This essay considers what lessons the emerging field of forecasting science might provide for predictions regarding tort law and innovations, and proposes some rules and best practices for these kinds of forecasts.

February 23, 2022 in Scholarship, Web/Tech | Permalink | Comments (0)

Monday, February 21, 2022

Cardi: Another Reason to Get Rid of Contributory Negligence

Another Reason to Get Rid of Contributory Negligence


For those few jurisdictions hanging on to contributory negligence, there recently emerged yet another reason to get rid of the rule: even our brightest stars in the judiciary get it wrong. I am referring here to the recent D.C. Circuit Court of Appeals opinion in Whiteru v. Washington Metropolitan Area Transit Authority, D.C. Cir., February 11, 2022 (which may be found on the D.C. Circuit website at$file/20-7087-1934759.pdf)


The case was brought by the family of a man who, while intoxicated, fell over a walkway railing in the D.C. Metro, becoming stuck behind a wall near the train tracks below. The man survived the fall, but suffered a broken spine rendering him unable to move. He was not found for four and a half days, at which point he had perished. The man’s family sued the Metro in federal court, alleging that had its employees not negligently failed to discover him, he would have survived. The law of the District of Columbia—which retains contributory negligence—applied to the case.

A proper torts analysis of this case (presuming immunity does not bar liability) would proceed as follows: As a common carrier, the Metro owed Mr. Whiteru a duty to use reasonable care to rescue him, regardless of his negligence in falling over the railing. The common carrier-passenger relationship qualifies as a special relationship sufficient to give rise to this affirmative duty pursuant to long-established precedent, captured in the Restatement Second § 314A and Restatement Third § 40. It would typically be left to a jury to determine whether the Metro had breached this duty. A jury would also need to decide whether the Metro’s failure to rescue Mr. Whiteru in a timely manner was a cause of his death—there was expert evidence that had Whiteru been discovered within fifteen minutes or so, he would have survived.

Even if defendant Metro was negligent, however, it seems clear that Mr. Whiteru was also negligent in falling from the parapet—perhaps even negligent per se assuming his public intoxication constituted a crime. So, without some exception to the rule of contributory negligence, Mr. Whiteru’s family would be barred from recovery.

As it turns out, an exception readily applies: the last clear chance doctrine, expressed in Restatement Second § 479 and adopted by the District of Columbia. See District of Columbia v. Huysman, 650 A.2d 1323, 1326 (D.C. 1994). Under this doctrine, a plaintiff who has negligently subjected himself to a risk of harm, and who is helpless to avoid that harm, may hold a defendant liable notwithstanding contributory negligence if the defendant had the “last clear chance” of preventing the harm—that is, if the defendant knew or should have known of the plaintiff’s danger and could have rescued the plaintiff using reasonable care. In Mr. Whiteru’s case, once he fell from the balcony and was trapped with a broken spine, he was certainly helpless to prevent further injury—and it is this further injury (death) that is relevant because this is the injury the plaintiff is claiming the Metro negligently caused. The only remaining question is whether the Metro knew or should have known of his plight and whether reasonable people in their position should have rescued him. These are jury questions, about which Whiteru’s family and the Metro asserted different facts and normative arguments.

So, in summary, a court’s analysis has three steps: (1) determine defendant’s negligence, (2) determine plaintiff’s negligence, (3) determine whether an exception to contributory negligence is satisfied. Where did the D.C. Circuit go wrong? In short, the court appears to have confused step 1 with step 3. At one level, this is understandable, as the existence of Metro’s affirmative duty is likely to turn, in part, on Whiteru’s helplessness and Metro’s ability to know of his danger—also factors central to the last clear chance doctrine. The court’s opinion does cite last clear chance but appears not to rely on it, instead relying on an exception to contributory negligence based on the defendant’s status as a common carrier. (Slip Opinion, p. 10.) The problem is that there exists no such exception—not in District of Columbia precedent, nor any other common-law holding that I can find. The court’s only support for this supposed exception is § 314A of the Restatement Second of Torts—but § 314 does not restate an exception to contributory negligence (a topic covered in a different chapter of the Restatement), but rather restates the special relationship between common carriers and their passengers. In other words, § 314A—which appears in the Restatement Topic, “Duties of Affirmative Action”—is a duty rule (relevant to step 1 in the analysis), not a contributory negligence rule (relevant to step 3).

As an interesting side note, Supreme Court short-lister Judge Ketanji Brown Jackson wrote the district court opinion in the Whiteru case. Although a torts scholar might take minor issue with some of the language in her opinion, Judge Jackson properly refused to recognize an exception to the contributory negligence rule for common carriers. She also dismissed application of the last clear chance doctrine, but only because the plaintiff’s attorney stated at oral argument that the doctrine does not apply. It is hard to understand why the plaintiff’s attorney took this stance. Perhaps there were circumstances that made such a concession the best strategic choice—but under the facts as reported in the opinions, the plaintiffs had a strong argument for last clear chance.

One might wonder why the law would, on the one hand, impose a duty of care on a common carrier to rescue passengers who have negligently put themselves at risk, but then nevertheless allow contributory negligence to bar a negligent plaintiff’s claim. This seeming-contradiction seems to underlie the Circuit Court’s holding. The answer lies in tort law’s careful division of labor between each element of a claim, and between those elements and any affirmative defenses. In a comparative fault jurisdiction, for example, it is necessary to separate the duty of the defendant from the negligence of the plaintiff—they are independent and not-inconsistent inquiries. A negligent passenger’s recovery will only be reduced, in a failure-to-rescue suit against a common carrier. Similarly, in a contributory negligence jurisdiction, a common carrier’s duty must be established first, without regard to the plaintiff’s negligence, because the plaintiff’s fault might or might not bar recovery. If no exception to contributory negligence applies, then the negligent defendant wins; in a last-clear-chance scenario, even a negligent plaintiff recovers.

There are many reasons to abrogate contributory negligence. If our best and brightest struggle with the analysis, perhaps it is time to put this doctrine to rest.

--Jonathan Cardi

February 21, 2022 in Current Affairs | Permalink | Comments (0)

Thursday, February 17, 2022

Klein Named Interim Chancellor of IU Indianapolis

Andy Klein, torts prof and former dean at IU Indianapolis, has been named interim chancellor of the University.  The announcement, via Tim Zinnecker at Faculty Lounge, is here.

February 17, 2022 in TortsProfs | Permalink | Comments (0)

Wednesday, February 16, 2022

21st Annual Conference on European Tort Law

The European Centre of Tort and Insurance Law (ECTIL) and the Institute for European Tort Law of the Austrian Academy of Sciences and the University of Graz (ETL) cordially invite you to attend the 21st Annual Conference on European Tort Law (ACET), which will be held in digital format from 21 to 22 April 2022.

The Annual Conference on European Tort Law provides a unique opportunity for both practitioners and academics to discover the most significant tort law developments from across Europe in 2021. A Special Session is dedicated to the topic of ‘Competition Law, Data Protection and Liability – Where is EU Tort Law Heading?’. 

Participation via online livestream is free of charge.

Please find the Conference folder attached.  Registration is open now and can be accessed on our website:

Download ACET_Invitation_final

February 16, 2022 in Conferences | Permalink | Comments (0)

Monday, February 14, 2022

UCI Law Conference on Defamation

On March 4, 2022, UCI Law hosts "Defamation:  Philosophical and Legal Perspectives" from 9-5:30 Pacific.  The format is hybrid:  a remote option is available.  Information and registration are here.

Speakers include:

Jeffrey S. Helmreich
Associate Professor of Philosophy and Law
Co-director, Center for Legal Philosophy

Lyrissa Lidsky
Dean and Judge C.A. Leedy Professor of Law
University of Missouri School of Law

Collin O’Neill
Associate Professor of Philosophy
Lehman College

Robert Post
Sterling Professor of Law
Yale Law School

Kenneth W. Simons
Chancellor's Professor of Law
Co-director, Center for Legal Philosophy

David Sussman
Associate Professor of Philosophy
University of Illinois Urbana-Champaign

Lynne Tirrell
Professor of Philosophy
University of Connecticut

Eugene Volokh
Gary T. Schwartz Distinguished Professor of Law
UCLA School of Law

Benjamin Zipursky
James H. Quinn '49 Chair in Legal Ethics; Professor of Law
Fordham University School of Law

February 14, 2022 | Permalink | Comments (0)

Friday, February 11, 2022

FL: Bill to Allow Parents of Adult Children to Sue for Med Mal Damages Fails to Advance

A bill to end a liability protection for doctors and hospitals in place since 1990 has died in the Florida Senate.  The bill would have allowed the parents of adult children to sue for medical malpractice damages.  Insurance Journal has the story.

February 11, 2022 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Wednesday, February 9, 2022

Wright on Causation and the "No Worse Off" Limitation on Liability

Richard Wright has posted to SSRN Causation (Contribution) and the "No Worse Off" Limitation on Liability.  The abstract provides:

In this article, I rebut claims that there is no core sense of causation that underlies all of our uses of causal expressions, identify that core sense as causation in accordance with and as determined by the laws of nature, and elaborate and defend the NESS (necessary for the sufficiency of a sufficient set) weak-necessity analysis of those laws and their instantiation in specific situations. I explain that omissions/absences are aspects of real states of affairs that usually, but not always, contribute negatively to some result by causing, through lack of instantiation, the failure of a causal process that would have prevented the result from occurring, and that analysis of the failure of a causal process requires focusing on the point at which it irretrievably failed, which differs from the focus on complete instantiation of a successful causal process. Finally, I discuss the ‘no worse off’ (NWO) limitation on liability for damages for wrongfully caused harm, which applies when the damages would have occurred anyway in the absence of any wrongful conduct by anyone. It is frequently applied but infrequently acknowledged due its very often being confused with the strong necessity (but-for/sine qua non) analysis of causation. I criticise its rejection in the current (CD1) draft of the Restatement Third of Torts: Remedies based on dicta in a few cases drawn from a narrowly specified set of cases, despite its being required by the ‘rightful position’ interactive-justice principle upon which that project is grounded and its being applied generally in many cases outside of and in that narrowly specified set, as has been recognised by the reporters for the Restatement Third of Torts: Liability for Physical and Emotional Harm and the reporters for the Restatement Third of Torts: Economic Harm.

February 9, 2022 in Scholarship | Permalink | Comments (0)

Tuesday, February 8, 2022

JOTWELL Torts: Nolan on Geistfeld on Proximate Cause

At JOTWELL, Donal Nolan reviews Mark Geistfeld's Proximate Cause Untangled.

February 8, 2022 in Scholarship, Weblogs | Permalink | Comments (0)

Monday, February 7, 2022

Arbel on Defamation

Yonathan Arbel has posted to SSRN A Status Theory of Defamation.  The abstract provides:

Defamation law occupies a privileged position in our constitutional order. Despite grave First Amendment concerns, courts around the country routinely muzzle speech to protect good-name interests. Yet, to a growing movement of reformers, this protection is still too weak. With calls reverberating across the political spectrum—emanating from the President, the Supreme Court, scholars, and pundits—there is a growing pressure to reshape defamation law. In all of this, one crucial question remains unanswered: what is the purpose of defamation law?

The most sustained attempts to answer this basic question vacillate between three purposes: protection of honor, dignity, or property. Helpful as they are, these attempts ultimately fail to explain the particular doctrinal architecture of defamation law or to offer a clear vision as to its future design. They leave us bereft of a general understanding in a time of great need. What these accounts lack is what sociologists such as Weber and Veblen have long understood. We care about our good name so much not because it represents our property or even dignity, but because it captures a fundamental human need: social status.

This Article demonstrates that a status theory of defamation law offers a more appealing framework—descriptively, functionally, and normatively—than our current menu of explanatory options. Descriptively, status theory is shown to untangle intricate doctrinal knots, rendering them sensible, indeed, necessary. Functionally, status theory reveals the downstream effects of decisions in particular cases: how they promote certain status norms while unraveling others. Normatively, status theory decloaks the judicial role in defamation cases, exposes it to critical scrutiny, and offers concrete guidance in hard cases.

Status theory has immediate practical importance. This is demonstrated in the context of bigoted defamation cases where the prevailing intellectual fog allowed judges to render decisions that either embraced bigoted status hierarchies or whitewashed them. Status theory exposes the faulty logic underlying these decisions. It offers modern judges a sound footing to reach the right decisions in bigoted defamation cases. And most critically, status theory furnishes judges and legislators with a tool to dismantle bigoted racial and ethnic hierarchies.

February 7, 2022 in Scholarship | Permalink | Comments (0)

Thursday, February 3, 2022

Abraham & White: Tort Law and the Construction of Change

Ken Abraham and Ted White have published, with UVa Press, Tort Law and the Construction of Change:  Studies in the Inevitability of History:

The book argues that two versions of history–one grounded in the application of previous legal rules and the other responsive to larger societal changes—must be considered in tandem to grasp fully how American tort law has evolved over time. The book covers a number of understudied areas of tort law, such as liability for nonphysical harm—including lawsuits for defamation, privacy, emotional distress, sexual harassment, and the hacking of confidential information—and aspects of tort litigation that have now disappeared, such as the prohibition against "interested" parties testifying in civil actions and the intentional infliction of temporal damage without justification. What emerges is a picture of the complicated legal dance American judges performed to cloak radical changes in tort law in response to social transformations. When confronting established tort doctrines under pressure from emerging social changes, the courts found ways to preserve at least the appearance of doctrinal continuity.

Order it here.  I just bought my copy!

February 3, 2022 in Books, Scholarship | Permalink | Comments (0)