TortsProf Blog

Mullenix on Conflict of Laws and the Foreign Sovereign Immunities Act

Linda Mullenix has posted to SSRN Federal Courts:  What Law Applies to Nazi-Appropriated Art Under the Foreign Sovereign Immunities Act?.  The abstract provides:

On January 18, 2022, the Supreme Court will hear arguments in Cassirer v. Thyssen-Bornemisza Collection Foundation concerning the legal ownership of an impressionist painting by Camille Pissarro -- Rue Saint-Honoré Afternoon, and Rain Effect -- that the Cassirer family originally purchased in the early twentieth-century. During the 1930s the Nazi regime appropriated the painting and the Jewish painting’s owner fled to the United States. After World War II the painting subsequently changed ownership several times in the United States. Ultimately the painting came into the possession of the Baron Hans Heinrich von Thyssen-Borenmisza of Lugano, Switzerland, who subsequently sold it to the Thyssen-Bornemisza Collection Foundation (TBC) in the Kingdom of Spain.

At the beginning of the twenty-first century several California Cassirer heirs became aware that the Pissarro painting was held in the Thyssen-Bornemisza Collection and was displayed in Madrid. In 2005 the heirs instituted legal proceedings in California federal court pleading California state claims, to recover the painting as the rightful owner. The district court and the Ninth Circuit applied federal common law to determine that the TBC was the rightful owner. After sixteen years of litigation and four appeals to the Ninth Circuit, the Supreme Court will address the appropriate law that federal courts should apply under the Foreign Sovereign Immunities Act when plaintiffs assert state law claims for remediation because of Nazi-era appropriated art. The Court will consider whether federal courts should apply the forum state’s choice of law rules or federal common law.

IN: NIED Extended to Child Sexual Abuse by Caretaker

The Indiana Supreme Court has extended negligent infliction of emotional distress.  In K.G. v. Smith, 2021 WL 6063878, at **1, 8, 2021 Ind. LEXIS 775, at *2, 23-24 (Ind. 2021), the court stated:

"[W]hen a caretaker assumes responsibility for a child, and when that caretaker owes a duty of care to the child's parent or guardian, a claim against the caretaker for the negligent infliction of emotional distress may proceed when the parent or guardian later discovers, with irrefutable certainty, that the caretaker sexually abused that child and when that abuse severely impacted the parent or guardian's emotional health.”; “To satisfy this rule, the parent or guardian must show (A) that the tortfeasor had a duty of care to the parent or guardian; (B) that there is irrefutable certainty of the act's commission; (C) that the tortious act is one rarely, if ever, witnessed by the parent or guardian; and (D) that the abuse severely impacted the parent or guardian's emotional health."

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.

OK: Supreme Court Rejects Public Nuisance Theory Against Opioid Maker

The Oklahoma Supreme Court, 5-1, overturned a $465M verdict against Johnson & Johnson for creating a public nuisance because it concerned the sale of a lawful product.  Among others, the court cited Don Gifford and Victor Schwartz & Phil Goldberg.  Debra Cassens Weiss at the ABA Journal has the story.

False Imprisonment in a Zoom Meeting?

A recent case in California alleges an employee was falsely imprisoned during a Zoom meeting.  At Law.com, Meghann Cuniff has the story, and experts are skeptical.

Liability from the Alec Baldwin Prop Gun Shooting?

Experts, including Greg Keating, weigh in for this LA Times article.

SoCal Gas Agrees to $1.8B Settlement Over 2015 Leak

In 2015, fumes from a failing natural gas storage well were released into the mountains above the San Fernando Valley, sickening people with nausea, headaches, and nosebleeds.  On Monday, SoCal Gas announced agreements to pay up to $1.8B to settle litigation over the leak.  The first agreement requires around 97% participation from approximately 36,000 plaintiffs and court approval of how the money will be distributed.  Second and third agreements involve separate settlements and dismissing named plaintiffs in a business class action, both of which are subject to court approval.  Plaintiffs' attorneys spoke from the steps of the Los Angeles federal courthouse:

“There was no plan when the well blew up on what to do,” said attorney Brian Panish. “Because of those failures, these people suffered. We’re thankful we can do our best to offer fair and just compensation.”

Panish said that affected residents gave depositions by Zoom during the pandemic and that some still living in the area believe that the storage field, which is active, should be shut down.

But he said that the settlement shows that the gas company has taken some responsibility.

“It sends a loud message about what had happened — people were justified in their complaints,” he said.

Gregory Yee, Tony Barboza, and Leila Miller of the LA Times have the story (behind a paywall).

COVID-19 Suits Against Businesses Through the Lens of Cruise Ship Cases

At Bloomberg News, Robert Iafolla & Jake Holland cover COVID-19 suits against businesses through the lens of cruise ship cases.  Here's the lede:

The limited success of cruise line Covid-19 lawsuits showcases the high bar consumers must meet to hold businesses liable for alleged virus exposure, suggesting they can overcome legal hurdles—but only in the right circumstances.

Cruise ship passengers filed at least 42 lawsuits in federal court alleging injuries—ranging from emotional distress to death—due to exposure to Covid-19, an analysis of Bloomberg Law data shows. About 15% of those cases have settled on undisclosed terms, and 40% of them have been dismissed. None have advanced to trial.

The data highlight the long odds consumers face to win such lawsuits in less confined environments than a cruise ship. The pervasive presence of the virus makes it very difficult to prove that spending time at a specific business caused a consumer to get sick, legal observers say.

Lytton on New York's New Firearms Public Nuisance Statute

Writing in The Regulatory Review, Tim Lytton analyzes New York's recently passed statute on firearms and public nuisance. 

NJ Tarasoff Case: Coleman v. Martinez

The New Jersey Supreme Court upheld the Appellate Division's overturn of a grant of summary judgment; the majority held that a licensed social worker owed a common law duty to the victim of a schizophrenic patient:

In sum, Martinez treated a patient convicted of two violent assaults at a
dire time in her life and proceeded to watch her decompensate. Further, once
that decompensation became a barrier to T.E.’s reunification with her children,
Martinez identified Coleman as an antagonist and personification of that
barrier. “It does not seem highly extraordinary” that those actions would result
in a violent assault against Coleman.

The opinion is here:  Download Coleman.martinez.nj.2021  (Thanks to George Conk for the tip.)

U.S. Air Force Held Primarily Responsible for 2017 Church Shooting

In 2017, a former serviceman killed 26 people and injured over 20 more when he opened fire in a Baptist church in Sutherland Springs, Texas.  A federal judge has ruled the U.S. Air Force was 60% responsible based on its failure to submit the shooter's criminal history to the FBI database, allowing him to purchase the weapon he used in the attack.

"The argument in this case was that the government had in its possession, particularly the Air Force, had in its possession information about a conviction for an offense of a service member which they failed to report — carelessly — to federal government authorities so it could be included in the National Crime Information Center database that then could be accessible for background checks at retail," [Timothy] Lytton said. "And that carelessness on the government’s part made them liable for the resulting harms, which were of course the mass shooting.”

Unlike other "high-profile" mass shootings, the Sutherland Springs lawsuit didn't involve a venue that was negligent or a gun store that sold a firearm illegally.

"We don’t have a lot of mass shootings where the problem is that a person who’s currently enlisted in the armed services had a conviction that wasn’t properly reported by the service to the federal government, that’s a sort of unusual fact pattern so I can’t really identify a trend of liability against the federal government in mass shootings," he said.

Texas Public Radio has the story.

Lytton on Illegal Firearms as Public Nuisance

Tim Lytton has an article at The Conversation regarding New York's new law defining illegal firearms as a public nuisance.  He anticipates a Second Amendment challenge to the law, but even if it survives:

The main impact of these lawsuits is to put pressure on gun manufactures to do more to prevent inventory theft and illegal sales by retailers. Since 2000, the gun industry has operated a program to prevent illegal straw purchases, suggesting manufactures think they may be able to affect how retailers operate. Even still, little is known about whether this program has had any impact on gun violence rates. That’s why no one really knows if forcing gun manufacturers to more closely supervise retailers will work.

Part of the problem is a lack of government funding since the mid-1990s for public health research on alleged links between industry sales practices and gun crimes. Recent funding for this kind of research may clarify the value of regulating illegal gun sales as a public nuisance.

Until then, passing laws to prompt litigation against the gun industry is just a shot in the dark.

Nestle v. Doe

The USSC just issued its most-recent opinion on the Alien Tort Statute in Nestle v. Doe.  At JD Supra, Dechert's Andrew Boutros & Jay Schleppenbach review the decision.  The highlights:

• In its just-issued opinion in Nestle USA, Inc. v. Doe, No. 19-416, slip op. (2021), the Supreme Court reaffirmed its holding from Kiobel v. Royal Dutch Petroleum Co., 569 U. S. 108 (2013), that the Alien Tort Statute does not apply extraterritorially.

• Allegations that “financing decisions” that took place in the United States related to Ivory Coast cocoa farms that allegedly used child labor were insufficient to make plaintiffs claims domestic; these were just allegations of “general corporate activity” not sufficiently related to the actual wrongdoing alleged.
• The Court did not resolve the question on which it originally granted certiorari, which was whether Alien Tort Statute exempts corporations from suit altogether.

New at the American Museum of Tort Law

Bob Rabin discusses Dominion's defamation suit against Rudy Giuliani here.

Dorit Reiss answers two questions:  1. What happens if the Covid vaccine injures you?  2.  Should we deny medical care to those who refuse the vaccine?.  

NY: Grandparents in the "Zone of Danger" Can Recover Emotional Distress Damages

Last week, the New York Court of Appeals ruled that a grandparent in the zone of danger can recover emotional distress damages for the death of their grandchild.  Unlike many jurisdictions, New York does not recognize negligent infliction of emotional distress for bystanders.  However, this holding expands recovery within the "zone of danger" by including grandparents as an "immediate family" member.  Debra Cassens Weiss has the story at ABA Journal.

AMTL: Two New Founders

The American Museum of Tort Law has added two new founders:  James E. Fitzgerald of Wyoming and Marc J. Bern of New York.  The entire list is here:  Download Our founders February 2021

IN: Senate Passes COVID-19 Immunity Bill

Last week, the Indiana Senate passed a COVID-19 immunity bill.  As with many such bills, there is an exclusion for gross negligence or willful and wanton conduct.  The Indiana House of Representatives votes on a similar bill this week.  Lexology has details.

MO: COVID-19 Immunity Bill Ready for Vote in Senate

In Missouri, a COVID-19 immunity bill passed out of committee and is ready for a full vote in the Senate.  Senate Bill 51 provides:  "No individual or entity engaged in businesses, services, activities or accommodations shall be liable in any COVID-19 exposure action."  There is an exception for recklessness or willful misconduct.  Additionally, a one-year statute of limitations is imposed.  News-Press Now has details.

Nursing Homes Plead PREP Act Immunity to COVID-19 Cases

Nursing homes across the country are invoking the Public Readiness and Emergency Preparedness (PREP) Act to claim immunity from COVID-19 suits.  The PREP Act was originally passed in 2005 in order to encourage production of emergency vaccines during an epidemic by providing immunity to pharmaceutical manufacturers.  The Trump administration invoked the Act in March relating to COVID-19:

It authorizes the Secretary of the Department of Health and Human Services (HHS), during a public health emergency, to shield from liability makers of “countermeasures” such as diagnostic tests, protective gear and vaccines like those developed by Pfizer Inc, Germany’s BioNTech and Moderna Inc.

The PREP Act does not apply to instances of serious injury or death caused by willful misconduct; when immunity applies, the injured person may seek compensation from a government fund (though most claims are denied).  

All rulings have been against nursing homes so far, but pleading the Act, which allows defendants to move from state to federal court, can buy them time.  In December, the Trump administration added agency guidance in favor of nursing homes.  Only one ruling, against a defendant, has come down since the guidance, so it remains to be seen whether nursing homes will begin winning cases.  Tom Hals at Reuters has the story.

COVID-19 Suits in 2020

Relatively few suits alleging physical or economic harm due to COVID-19 were filed in 2020:

Lex Machina released its first Torts Litigation Report in November, identifying 173 tort cases related to COVID-19. Most were filed against cruise lines and nursing homes, and as Law.com reports, judges have dismissed many of them.

The largest group of COVID-19 suits were filed by businesses against their insurers.  ABA Journal has the story.