TortsProf Blog

Parks & McKee on Intra-Fraternal, Sexually Predatory Behavior and Civil Liability

Gregory Parks & Ryan McKee have posted to SSRN Civil Liability and Intra-Fraternal, Sexually Predatory Behavior.  The abstract provides:

Sexual assault has been a critical issue within college fraternities. While the typical victims have been collegiate young women, some victims have been collegiate young men. That includes other college fraternity members. The conduct may include force, drugging, plying with alcohol, coercion, grooming, and quid pro quo arrangements. Power imbalances—e.g., hazing, dynamics between college and alumni members—may exacerbate the issue. This terrain, often unspoken and unacknowledged, is a difficult one for college fraternities to navigate from a moral and liability standpoint. In recent decades, sexual predator issues have bedeviled organizations like the Catholic Church, Boy Scouts of America, and Pennsylvania State University’s football program. Crucial missteps that these organizations made in dealing with sexual predators within their ranks parallel those that collegiate fraternities make. Ignoring the culture of predatory behavior, sweeping specific incidents under the rug, only dealing with the issue internally, and not holding powerful perpetrators and enablers accountable can create civil liability for organizations. Homophobia often leads organization members astray, leading them to assume that "openly" gay or bisexual members engage in more sexually predatory behavior than heterosexual members. However, that assumption is inconsistent with the research literature. Additionally, organizations that try to deal with this issue may fail to provide alleged perpetrators with the appropriate due process resulting in other forms of civil liability—i.e., defamation. As such, this manuscript highlights the difficulty and necessity of tackling this issue.

Nolan & Plunkett on Negligence in the UKSC

Donal Nolan & James Plunkett have posted to SSRN Keeping Negligence Simple.  The abstract provides:

In this case note, we consider the UK Supreme Court decision in Meadows v Khan [2021] UKSC 21, [2022] AC 852, which concerned the scope of the duty of care that a GP owed to a patient who was a carrier of the haemophilia gene. Although we agree with the decision in the case, we argue that the approach of the majority Justices was unnecessarily complex, and that the issue should have been dealt with as a question of remoteness rather than duty. We also subject the majority’s six-part ‘roadmap’ for negligence cases to critical review, and conclude that it is likely to obfuscate rather than illuminate.

Nolan on Tort and Regulation

Donal Nolan has posted to SSRN Tort and Regulation.  The abstract provides:

In this paper I consider the many and varied ways in which the law of tort interacts with regulatory law (by which I mean mandatory regulatory norms, rather than voluntary codes of practice and the like). Examples of these interactions include (1) the indirect influence of regulatory norms on substantive tort law, whereby for example regulatory norms inform decisions on breach of duty in negligence or substantial interference in private nuisance; (2) the more direct influence of regulatory norms on tort via mechanisms such as a tort of breach of statutory duty, a doctrine of negligence per se, a regulatory compliance defence or a rule of regulatory pre-emption; and (3) various other forms of potential or actual interaction. Although I draw on all areas of tort law in the paper, my particular focus is on the law of negligence, the law of private nuisance and the law of product liability. The overall message of the paper is twofold: first, that the relationship between tort and regulation is complex and multifaceted; and second, that as a matter of general principle tort law should not automatically defer to regulatory norms and outcomes but should instead incorporate them into its own analytical frameworks.

National Civil Justice Institute Announces Civil Justice Scholarship Award Winners

Torts profs are heavily represented.  From the letter by NCJI President, Christopher Nace:

The Officers and Trustees of the National Civil Justice Institute are proud to bestow the Institute’s 2023 Civil Justice Scholarship Award to Professor John C. P. Goldberg (Harvard Law School), Professor Benjamin Zipursky (Fordham Law School), and Professor Diego A. Zambrano (Stanford Law School).

It is our distinct privilege to honor Professor Goldberg and Professor Zipursky for their book, Recognizing Wrongs (Harvard University Press, 2020), in which they explain how their “civil recourse” concept makes sense of tort doctrine and captures the ways in which the law of torts contributes to the maintenance of a just polity. 

We are also privileged to honor Professor Zambrano for his article, Federal Expansion and the Decay of State Courts, 86 U. Chi. L. Rev. 2101 (2019), in which he explores how federal expansion may be contributing to the decay of state courts and has reinforced a plaintiff-defendant divergence between the two systems.

Finally, the Institute also recognizes with High Distinction Professor Jonathan Cardi (Wake Forest University School of Law), Professor Valerie Hans (Cornell Law School), and Professor Gregory Parks (Wake Forest University School of Law) for their article, Do Black Injuries Matter?: Implicit Bias and Jury Decision Making in Tort Cases, 93 So. Cal. L. Rev. 507 (2020). After conducting one of the first comprehensive experimental examinations of how race affects judgments on personal injuries, the authors found that the dollar awards for the injuries suffered by black plaintiffs in hypothetical cases were lower than awards for the same injuries experienced by white plaintiffs.

More details are at https://ncji.org/civil-justice-scholarship-award/.  Contact NCJI’s Executive Director, Mary Collishaw, at [email protected] or 202-944-2841 with any questions.

We are very proud to recognize this important legal scholarship, and the academics responsible.

Keating on Irreparable Injury

Greg Keating has posted to SSRN Irreparable Injury and the Limits of the Law of Torts.  The abstract provides:

Tort law safeguards security by requiring reparation for harm wrongly done. The fact that reparation is the institution’s default remedy limits tort law’s powers. Some harms are simply irreparable. Death is the most vivid case in point. No amount, or form, of compensation can restore the dead to the lives they have lost. No remedy can return them to the position that they would have occupied had they not died. Faced with this stark truth early modern tort law did not award any damages for wrongful death and contemporary tort law still stops short of awarding damages for the value to those who are wrongly killed of the lives that they have lost. Wrongful death doctrine exposes tort law’s Achilles’ heel. On the one hand, premature death is the harm that we most wish to be protected against. On the other hand, premature death is the harm against which tort law is least able to protect us. Tort law relies on reparation to enforce its obligations, both prospectively and retrospectively. Tort fails prospectively because it does not price, and therefore does not deter, the harm of wrongful death. It fails retrospectively because money damages cannot udo the harm of death. Direct regulation of risk is required to remedy the incompleteness of tort law. This chapter examines the two most relevant regulatory norms—the “safe level” and “feasibility” standards— against the background of tort law’s limitations.

Lytton on Private Third-Party Verification of Product Claims

Tim Lytton has posted to SSRN Private Third-Party Verification of Product Claims:  Lessons from Kosher Certification.  The abstract provides:

Food consumers often desire products with attributes that are not discernable from a product’s appearance. Unscrupulous sellers may be tempted to misrepresent the presence of these “credence qualities.” In response, reputable sellers wishing to distinguish truthful product claims from spurious ones can provide verification using third-party certification. Third-party certification marks on product labels attesting to a wide variety of credence qualities are now commonplace. This chapter analyzes the global system of kosher food certification to develop a general model of reliable third-party verification of credence qualities.

The Kingston Coal Ash Workers and the Tennessee Damages Cap

Anila Yoganathan of the Knoxville News Sentinel has been covering the lawsuits filed by workers who cleaned up a coal ash site in eastern Tennessee following a spill in 2008.  Yesterday she published a story about the potential effects of Tennessee's noneconomic damages cap, which generally caps pain and suffering at $750,000.  Her story is here.  

Earlier coverage is here, here, and here.

AALS Torts Section: Call for Nominations to the Executive Board

Current Chair Tim Lytton posts:

If you would like to nominate yourself or another person as a candidate for a position on the Executive Board of the section, please send an email to current Chair Timothy Lytton at [email protected] by January 3, 2023. Elections for the new executive board will take place at the section business meeting immediately following the section session at the AALS on January 5.  I had a fantastic experience on the Executive Committee and recommend it highly.

Cyndi Nance to Receive Ruth Bader Ginsburg Lifetime Achievement Award

Cyndi Nance, Dean of the University of Arkansas School of Law, will receive the Ruth Bader Ginsburg Lifetime Achievement Award from the AALS Section on Women in Legal Education.  The ceremony is at the Annual Meeting on Friday, January 6 from noon until one.  More details here.  Dean Nance's specialty is labor and employment law, but she regularly teaches Torts, so we can claim her!

Geistfeld & Witt File Amicus Brief in USSC Labor Case

Mark Geistfeld and John Witt have filed an amicus brief in Glacier Northwest v. Teamsters Local 174.  The issue is whether the National Labor Relations Act preempts state tort claims for conversion and trespass to chattels filed by an employer against employees and their union.  That general issue has been regarded as settled for decades, but the Court agreed to hear the case.  Witt explains the case here.  The brief is here.

Stephen A. Smith (1958-2022)

I am sorry to learn of the passing of Stephen A. Smith.  Brian Leiter has the McGill memorial notice here.

CA: Claims for Fradulent Inducement Not Barred by Economic Loss Rule; Cites R3 Economic Harm

From the ALI website:

In Dhital v. Nissan North America, Inc., 2022 WL 14772909 (Cal. Ct. App. Oct. 26, 2022), the California Court of Appeal held that claims for fraudulent inducement were not barred by the economic-loss rule as defined by Restatement of the Law Third, Torts: Liability for Economic Harm § 3. The case was brought by consumers who alleged that they purchased a vehicle with a defective transmission system from the defendant manufacturer, and that the defendant, “by fraudulently concealing the defects, induced them to purchase the car.”

The court explained that the plaintiffs’ claim for fraudulent inducement fell within an exception to the economic-loss rule because the defendant’s fraudulent inducement violated a duty that was “independent of [its] alleged warranty breaches.” Citing § 9 of the Restatement, it observed that the expectation of honesty during negotiation of the purchase contract called for remedies not customarily available from the law of contract or restitution, because “parties to a contract generally [did] not treat the possibility that they [lied] to each other as a risk for the contract to allocate.”