TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Friday, December 2, 2022

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.”

December 2, 2022 in Current Affairs | Permalink | Comments (0)

Monday, November 7, 2022

Engstrom, Hyman & Silver Amicus Brief on Damages

Nora Engstrom, David Hyman & Charles Silver have filed an amicus brief in a Texas case on damages:

The brief addresses two misguided proposals that Petitioners—tort defendants in the trial court below—are pushing in a case currently before the Supreme Court of Texas.  The first proposal is to require Texas courts to consider comparison cases when reviewing the reasonableness of awards of noneconomic damages.  The brief argues that that proposal is unsound conceptually and unworkable empirically, which is why other courts that have tried the approach have quickly abandoned it.  Second, Petitioners insist that noneconomic damages should be limited to a predetermined ratio of economic damages, as is currently the case for compensatory damages and punitive damages.  The brief argues that, in addition to violating the bedrock principle that prevailing tort plaintiffs are to be made whole, this second proposal, by tethering damages for pain and suffering to lost wages, would disproportionately harm certain (low-wage-earning) accident victims, including women, children, and the elderly.  In the brief’s words:  “If Petitioners have their way, Texas’s civil justice system will systematically (but irrationally) discount the pain endured by old persons, young persons, and stay-at-home moms.”  Finally, the brief takes issue with the contention by Petitioners and their supporting amici that noneconomic damage awards in Texas have “skyrocketed.”  For starters, the brief notes that, although the insurance industry amici have proprietary data on which their business models depend, they have offered no evidence to support their empirical claim.  That silence is telling.  Moreover, after compiling and analyzing the best data that is publicly available, the brief reports that it appears that noneconomic damages aren't increasing but are, rather, in sharp decline.  

The brief is here:  Download Law Professor Amici Curiae Brief in Support of Respondents (1)

November 7, 2022 in Current Affairs, Damages | Permalink | Comments (0)

Sunday, October 16, 2022

Seattle Jury Awards $275M Against Monsanto in PCB Trial

Last Thursday, a Seattle jury awarded $275 million to six adults and seven children who alleged they suffered brain damage due to exposure to PCB (polychlorinated biphenyls) manufactured by Monsanto.  This was the fifth case against Monsanto over exposure to PCB at Sky Valley Education Center in Washington.  Juries awarded damages in three of the other cases, but a fourth case ended in a mistrial.  Monsanto plans to appeal the verdict.  Amanda Bronstad at has the story (behind a paywall).  Thanks to Leslie Rowan for the tip.

October 16, 2022 in Current Affairs, Products Liability | Permalink | Comments (0)

Monday, September 26, 2022

Spectrum Stabbing Damages Reduced to $1.15 Billion

In late June, a Texas jury found Spectrum liable in the death of one of its customers.  The company employed an internet installer who robbed and stabbed an 83-year-old woman to death.  The jury found the murderer was 10% responsible and Spectrum was 90% responsible.  The jury awarded $375 million in compensatory damages; Spectrum's share was $337.5 million.  In late July, in a second phase of trial, the jury awarded the family $7 billion in punitive damages.  Earlier coverage is here.  

As anticipated, the $7 billion punitive damages award has been reduced by the trial judge.  The plaintiffs' attorneys actually requested the reduction to protect the verdict on appeal.  They requested a ratio of 2:1 and received it.  The total award is now $1.15 billion.  Spectrum states it will appeal.  Dave Simpson at Law360 has the story (behind a paywall; it is also available on Lexis).  

September 26, 2022 in Current Affairs, Damages | Permalink | Comments (0)

Saturday, August 27, 2022

Ford Hit With $1.7 Billion Punitive Damages Verdict in Pickup Truck Rollover Case

A Georgia jury awarded $24 million in compensatory and $1.7 billion in punitive damages to the sons of a couple killed when their Ford pickup truck rolled over.  The roof of the truck collapsed after a tire blowout, killing the couple.  The jury heard evidence of a number of prior similar incidents, but many of those cases have been resolved with confidential settlements.  The jury also heard evidence of Ford's wealth.  Even the plaintiffs' lawyer admits the punitive damages award is likely to be reduced, as it is approximately 70 times the compensatory damages award.  Georgia has a split-recovery system, one of approximately eight, in which the state receives a portion of a punitive damages awards (in this case, 3/4).

Hannah Albarazi at Law 360 has the story, quoting Cathy Sharkey, Ben Zipursky, and me.

August 27, 2022 in Current Affairs, Damages | Permalink | Comments (0)

Thursday, August 11, 2022

TX: Jury Awards $7 Billion in Punitive Damages Against Cable Company

In late June, a Texas jury found Spectrum liable for the death of one of its customers.  The cable company employed an internet installer who robbed and stabbed an 83-year-old woman to death.  The jury found the murderer 10% responsible and Spectrum 90% responsible.  Years earlier, Spectrum had ceased industry-standard, pre-employment verification checks.  Such a check would have revealed that the murderer had fabricated his work history and was fired from several jobs for theft and misconduct.  The company also had notice that the murderer was suffering emotional and financial problems prior to the robbery and murder.  The jury awarded $375 million in compensatory damages, of which part Spectrum was to pay $337.5 million.  The jury also determined that Spectrum forged an arbitration agreement.

In late July, the jury awarded the plaintiffs $7 billion in punies.  The forgery finding allowed the plaintiffs to avoid Texas's cap on punitive damages.  That verdict, however, is going to be severely tested on post-trial motions and appeal.  The Court's Due Process jurisprudence does not impose a hard cap, but it does set limits.  In State Farm v. Campbell, the Court stated that few awards exceeding a single-digit ratio between punitive and compensatory damages will satisfy Due Process.  It further stated that an award of more than four times might be close to the line of constitutional impropriety, and that when compensatory damages are substantial, a one-to-one ratio is likely the outermost limit.  The current ratio is approximately 20:1.  

Awards of this magnitude are often reduced.  The largest punitive damages award to an individual of which I am aware is a 2002 California jury verdict of $28 billion against Phillip Morris.  Ultimately, after 9 years of appeals, the award was reduced to $28 million.  The plaintiff had died years earlier.   

Cara Salvatore at Law 360 has the story (behind a pay wall).

August 11, 2022 in Current Affairs | Permalink | Comments (1)

Monday, August 8, 2022

Magliocca on Dobbs and Wrongful Birth Actions

At Prawfsblawg, Gerard Magliocca discusses the effects of Dobbs on wrongful birth actions.

August 8, 2022 in Current Affairs | Permalink | Comments (0)

Thursday, July 14, 2022

Levin & Lytton on Bruen

Hillel Levin and Tim Lytton have written Firearms Regulation through Constitutional Litigation.  A sample:

“Beyond its impacts on gun control legislation, Bruen also has implications for another front in the battle over gun control: civil litigation against the firearms industry.”

Bruen may have erected an immunity shield for the firearms industry that is far more extensive than the one that Congress constructed in PLCAA.”

July 14, 2022 in Current Affairs | Permalink | Comments (0)

Saturday, July 9, 2022

Karnaukh on the Territorial Tort Exception

Bohdan Karnaukh, a Ukrainian tort scholar, has written a note about a recent opinion of the Ukrainian Supreme Court on the availability of tort actions against Russia for torts/crimes against Ukrainian citizens.  The abstract provides:

The jurisdictional immunity of a state means that the state cannot be involved as a defendant in a case considered by a foreign court. In Ukraine, the rule on the jurisdictional immunity of a foreign state is enshrined in Art. 79 of the Law of Ukraine ‘On Private International Law’. Until 14 April 2022, the Ukrainian Supreme Court rigidly applied the provisions of the said article and recognised the Russian Federation’s immunity with regard to claims brought by Ukrainian citizens seeking compensation for harm caused by the armed conflict that commenced in 2014. Yet shortly after 24 February 2022, when Russia’s aggression against Ukraine entered a new phase, i.e., the phase of full-scale war, the Supreme Court changed its mind.

This note addresses the ruling of the Ukrainian Supreme Court of 14 April 2022 in case no. 308/9708/19, where the Court held that the Russian Federation could not plead immunity with regard to tort claims brought by the victims of the Russia-Ukraine war. In reaching this conclusion, the Court relied on the territorial tort exception enshrined in the European Convention on State Immunity (Basel, 16 May 1972) and the UN Convention on Jurisdictional Immunities of States and Their Property. Though neither of the two conventions has been ratified by either Ukraine or the Russian Federation, the Court found that these conventions indicate a general tendency in international customary law towards limiting the jurisdictional immunity of the states.

The reasoning of the Supreme Court is examined by scrutinising the authorities the Court adduced in support of its ruling, as well as by putting the ruling in the broader context of the jurisprudence of the International Court of Justice (ICJ) and European Court of Human Rights (ECtHR). 

It is concluded that what the Supreme Court utilised is not the territorial tort exception but rather the ‘human rights/jus cogens’ exception. Further, the case before the Ukrainian Supreme Court is distinguishable from the ICJ and the ECtHR cases, where it was held that notwithstanding gross violations of human rights, the respondent state should nevertheless enjoy immunity. Unlike those cases, the Ukrainian case was tried amid the ongoing war, when no reparation agreements had been concluded, the legitimate aim of ‘promoting comity and good relations between states’ had been frustrated, and it was no longer possible to justify the restriction of the plaintiff’s right of access to a fair trial.

July 9, 2022 in Current Affairs, Scholarship | Permalink | Comments (0)

Tuesday, July 5, 2022

COVID-19 Business Interruption Claims

The Hollywood Reporter has an article on COVID-19 business interruption claims, relying heavily on Tom Baker.  An excerpt:

According to the COVID-19 insurance litigation tracker, 85 percent of cases considered for dismissal in federal court get tossed, compared with 66 percent in state court. “The federal courts have largely gone for the insurance industry,” Baker says. “In state court, it’s been much more variable. That’s where the action is, because at the end of the day, these are state law questions.”

The article is here.  Coverage from the ALI website is here.

July 5, 2022 in Current Affairs | Permalink | Comments (0)

Friday, June 10, 2022

Engstrom on Medicaid and Personal Injury Litigation

On Monday, the USSC interpreted the federal Medicaid Act as allowing a state, exercising its right of subrogation, to recoup not only past but also future expenses from Medicaid beneficiaries.  Nora Freeman Engstrom and Graham Ambrose discuss the implications of Gallardo v. Marstiller here.

June 10, 2022 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0)

Wednesday, June 1, 2022

The Kingston Coal Ash Spill and the Tennessee Silica Claims Priorities Act

I have been covering a case in the Eastern District of Tennessee brought by workers alleging injuries sustained during the cleanup of a massive coal ash spill in 2008.  Today the Tennessee Supreme Court hears arguments about whether the Tennessee Silica Claims Priorities Act, a statute passed in the wake of fraudulent silicosis claims in the early 2000s, applies to coal ash.  In a recent post, I wrote:

The Tennessee Supreme Court, meanwhile, is going to decide whether the Tennessee Silica Claims Priorities Act applies to the case.  That statute is a reform that includes a 10-year lung cancer latency requirement, a five-year substantial occupational exposure requirement, and various requirements for medical experts providing testimony.  If the statute applies, many of the plaintiffs will be dismissed.  The issues include whether coal ash qualifies as "mixed dust" for purposes of the statute and whether the statute, not invoked until considerably after the complaints were filed, is an affirmative defense.

Earlier posts on the case are here and here.  Anila Yoganathan of the Knoxville News Sentinel, who is providing excellent coverage of the case, has a new piece about today's arguments.  The proceeding is on YouTube here.  Anila's (post-argument) coverage of it is here.

June 1, 2022 in Current Affairs | Permalink | Comments (0)

Thursday, May 26, 2022

CA: Newsom Signs MICRA Med Mal Cap Increase

Last month, I reported that a compromise had been reached to raise the $250,000 noneconomic damages cap for California med mal claims.  On Monday, Governor Gavin Newsom signed that legislation into law.  The basics of the deal, as reported by Cheryl Miller at

The deal will raise California’s current $250,000 limit on noneconomic damages starting in 2023 to $350,000 in incidents where the victim does not die, and to $500,000 in wrongful death incidents. The caps will continue to rise incrementally over the following 10 years to $750,000 and $1 million. After 2033, the award limits will increase by 2% annually.

Melody Gutierrez at the LA Times has the story.

May 26, 2022 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0)

Thursday, May 19, 2022

Sixth Circuit Holds No Derivative Immunity in Kingston Coal Ash Spill Case

Recently, I wrote about a case filed by workers alleging their exposure to coal ash during a clean up resulted in numerous health issues.  The plaintiffs worked for a contractor hired to clean up a coal ash spill from a power plant owned and operated by the Tennessee Valley Authority (TVA).  Plaintiffs filed suit against the contractor and the contractor argued it was entitled to share the immunity of the government agency with which it contracted.  The case has been going on for nine years and this was the second trip to the Sixth Circuit over this issue.

Yesterday, the court rejected the claim to derivative immunity (opinion here:  Download 6thCircuit_Decision_Opinion (1)).  Although most tort immunity issues involving the federal government are focused on the Federal Tort Claims Act, the TVA is explicitly excluded in that statute.  TVA is a hybrid government/private entity and the legislation creating it included a sue-and-be-sued clause.  The proper immunity analysis to be applied to TVA was recently covered in Thacker v. TVA, 139 S. Ct. 1435 (2019).  Based on that analysis, when determining derivative immunity, the two broad questions are:  (1) would the TVA have been immune if it were sued directly?; and (2) is the contractor entitled to share the immunity of TVA?.  The second question revolves around whether the contractor followed the TVA's instructions, but there is a dispute in this case about how to phrase the standard.  The test for TVA's immunity is itself divided into two parts.  The first is whether the act in question was commercial or governmental.  If it was commercial, there is no immunity.  If it was governmental, there is a further issue to be resolved.  If TVA is operating in a governmental capacity, the sue-and-be-sued clause is limited by implied exceptions if: (1) the suit is not consistent with a statutory or constitutional scheme; (2) the suit would gravely interfere with the performance of a government function; or (3) for other reasons it was plainly the purpose of Congress to use the sue-and-be-sued clause in a narrow sense (essentially a catch-all).  

In this particular case, the court worked through the following analysis.  First, would the TVA have been immune if it were sued directly?  (Was the act in question--cleaning up a coal ash spill--commercial or governmental?  And are these tort suits inconsistent with the Supremacy Clause and CERCLA (the statute under which the clean up proceeded)?  Are these torts suits a grave interference with a government function?  Second, should the contractor share in the TVA's immunity?

The court found no need to decide whether the clean up was commercial or governmental and no need to decide if the contractor would share the TVA's immunity.  It held that even if the clean up was a governmental function, the suits were not inconsistent with the Supremacy Clause or CERCLA and were not a grave interference with a governmental function.  As to the consistency with the Supremacy Clause and CERCLA, the court noted that the plaintiffs' theory does not challenge the adequacy of the safety plan drawn up pursuant to CERCLA; the plaintiffs allege that the contractor failed to comply with those terms (a jury in a phase I trial has concluded the contractor did fail to comply with the terms).  As to the grave interference issue, the court emphasized the existence of the sue-and-be-sued clause and again noted that the plaintiffs were not challenging the safety plan itself, only the contractor's compliance with it.

Next up is a case in the Tennessee Supreme Court (June 1) on whether the Tennessee Silica Claims Priorities Act applies to these cases and perhaps after that a phase II trial.  Anila Yoganathan at the Knoxville News Sentinel has the story.

May 19, 2022 in Current Affairs | Permalink | Comments (0)

Wednesday, April 27, 2022

CA: Deal to Raise MICRA Med Mal Damage Cap

A compromise among trial lawyers, medical groups, and lawmakers has been reached that will raise California's medical malpractice caps and avert a November ballot initiative.  In 1975, California passed MICRA, which capped pain and suffering damages in med mal cases at $250,000.  The cap has not been raised since.  In today's money, $250,000 is equivalent to approximately $1.3 million.  According to Cheryl Miller at

The deal will raise California’s current $250,000 limit on noneconomic damages starting in 2023 to $350,000 in incidents where the victim does not die, and to $500,000 in wrongful death incidents. The caps will continue to rise incrementally over the following 10 years to $750,000 and $1 million. After 2033, the award limits will increase by 2% annually.

Bravo to all involved!  The story (behind a paywall) is here.

April 27, 2022 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0)

Monday, April 18, 2022

Feldman on Public Nuisance and the Second Amendment

Heidi Li Feldman has posted to SSRN Public Nuisance Liability and the Irrelevance of the Second Amendment.  The abstract provides:

In 2005, the U.S. Congress bestowed on gun makers and sellers broad immunity from civil lawsuits by enacting the Protection of Lawful Commerce in Arms Act (PLCAA). Congress explicitly based this immunity on the need to protect Second Amendment rights, pitting defenders of those rights against victims of criminal gun violence seeking to hold gun merchants accountable for their role in such violence. But a contest between civil liability for gun makers and sellers and respect for Second Amendment rights is neither inevitable nor necessary. As a new effort to ground civil liability in state legislation shows, the theory underlying the litigation that precipitated PLCAA has nothing to do with the rights secured by the Second Amendment. It may be politically expeditious or commercially advantageous for the gun industry to link the two, but the link is not legally sound.

States have begun to consider and pass statutes that codify the public nuisance theories of civil liability that animated a wave of litigation against gun industry actors in the late 1990s and early 2000s. New York has already enacted such legislation. A similar bill has been introduced in California. The New York law identifies precise ways in which the conduct of gun makers and sellers can, in combination with unlawful use of their products, constitute a public nuisance. It therefore invites renewed attention to the issue that Congress identified as the central basis for PLCAA: whether there is any threat to Second Amendment rights from litigation premised on the theory that manufacturers who create an overabundance of guns with excessive criminal appeal create a public nuisance. By codifying the precise elements of a cause of action based on this theory, New York’s statute makes it easy to show it does not.

April 18, 2022 in Current Affairs, Scholarship | Permalink | Comments (0)

Friday, April 15, 2022

The Kingston Coal Ash Spill, Derivative Immunity, and the Tennessee Silica Claims Priorities Act

In 2008, a dike failure at the Kingston Fossil Fuel Plant operated by the Tennessee Valley Authority released 5.4 million cubic yards of coal ash sludge from an 84-acre containment pond onto an area of approximately 300 acres.  TVA was eventually named the lead agency for cleanup  under CERCLA and hired a contractor to clean up the coal ash; the process continued through 2015.  In 2013, a number of the contractor's workers filed lawsuits claiming the contractor failed to protect them from the coal ash and they developed numerous health problems as a result.  Nine years later, the litigation sprawls across two appellate courts, the Sixth Circuit (for the second time) and the Tennessee Supreme Court.  The Sixth Circuit is set to decide whether the contractor has immunity derivative of any immunity the TVA (a hybrid government agency) would have.  The Tennessee Supreme Court, meanwhile, is going to decide whether the Tennessee Silica Claims Priorities Act applies to the case.  That statute is a reform that includes a 10-year lung cancer latency requirement, a five-year substantial occupational exposure requirement, and various requirements for medical experts providing testimony.  If the statute applies, many of the plaintiffs will be dismissed.  The issues include whether coal ash qualifies as "mixed dust" for purposes of the statute and whether the statute, not invoked until considerably after the complaints were filed, is an affirmative defense.

Anila Yoganathan of the Knoxville News Sentinel has the story.  

April 15, 2022 in Current Affairs | Permalink | Comments (0)

Wednesday, March 30, 2022

Podcast: COVID-19 and Cruise Ships

The National Sea Grant Law Center at the University of Mississippi School of Law hosts a podcast entitled "Law on the Half Shell."  Their second episode of the season covers COVID-19 and cruise ships and features Center Director Stephanie Otts and me.  I discuss COVID-19 tort cases against the cruise ship industry.

March 30, 2022 in Current Affairs, 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, January 13, 2022

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.

January 13, 2022 in Current Affairs, Scholarship | Permalink | Comments (0)