TortsProf Blog

PA: Football Players Injured in Tackling Drill Can Sue University

Two football players at Lackawanna Junior College were injured during the same tackling drill in 2010.  Their suits against the school were dismissed by the trial court on the ground the players had signed a waiver.  The Superior Court reinstated the suits and now the Pennsylvania Supreme Court has affirmed that ruling.  The court noted waivers against gross negligence and recklessness were ineffective and held there were sufficient facts for the players to present the case to a jury.  The "Oklahoma Drill" the players were engaged in later became subject to criticism during investigations about concussions and the school did not have licensed athletic trainers present to treat injuries.  PennLive has the story.

UT: Pre-Injury Waivers Signed by Parents on Behalf of Children Not Enforceable

Not long after a similar holding in Kentucky, the Utah Supreme Court held that pre-injury releases signed by parents on behalf of their children "generally offend Utah public policy."  From Shook, Hardy & Bacon's State Supreme Court Watch:

Rutherford v. Talisker Canyons Fin., Co., LC, 2019 WL 2710230 

Holding:  Pre-injury liability releases executed by a parent on behalf of a minor “generally offend Utah’s public policy” and are unenforceable. 

The parents of a 10-year-old advanced skier who sustained brain injuries in a crash at a ski resort brought negligence and premises liability claims against the ski resort.  The ski resort argued that the minor’s injuries were due to the inherent risks of skiing and barred pursuant to both Utah’s Inherent Risks of Skiing Act (IRSA) and a pre-injury liability release executed by the minor’s father.  The trial court determined that the resort’s pre-injury liability release was unenforceable and that a question of fact existed as to whether the resort exercised reasonable care in the circumstances.  The court of appeals affirmed this decision, but recognized that other pre-injury releases signed by a parent on behalf of a child are generally enforceable.  The Utah Supreme Court affirmed the judgment of the lower courts, but also took the opportunity to clarify that pre-injury liability releases executed by a parent on behalf of a minor generally offend state public policy. 

Toddler Dies After Falling into Grease Trap at Tim Hortons

Here is a danger and liability concern I had never considered.  Yesterday morning, a three-year-old boy died in Rochester, New York after falling through a restaurant grease trap.  The trap was covered by a plastic lid (like a manhole cover) that was green to blend in with the surrounding grass.  The police said it appears the boy ran over the lid, popped it loose, and then fell.  A similar incident happened at an Alabama ice cream shop in October 2017.  CNN has the story.

Amicus Brief in Georgia Sperm Donor Case

Download Norman v. Xytex Draft Brief in Support of Cert. (Jul. 5 2019)

If you wish to sign this amicus brief, please email Tim Lytton at tlytton@gsu.edu.

Dear Friends:

In the coming days, the attorneys for the plaintiffs in the case of Wendy Norman, et al. v. Xytex Corp., et al. will be filing a petition for writ of certiorari with the Georgia Supreme Court seeking review of the dismissal of their claims against Xytex, a sperm bank headquartered in Atlanta, Georgia. This case is of crucial importance for buyers of reproductive cells in Georgia who, currently, have no recourse against providers/sellers. Liza Vertinsky (Emory), Tim Lytton (Georgia State), and I have co-written an amicus brief  in support of the plaintiffs’ petition (attached) and would like to invite others to join. We are also interested in comments on the brief including, in particular, suggestions on how to convince a court—which typically grants only 1-in-10 cert. petitions—to take this sensitive case. Please send comments on or before July 20 and let us know if you are interested in seeing and signing on to the final draft by July 22.   

Background

To provide some more background: this is one of numerous cases filed in both state and federal courts in Georgia and elsewhere against Xytex over the last few years by parents of children conceived from sperm purchased from Xytex. The donor in the Norman case, Chris Aggeles, applied to become a donor in 2000 and continued to donate sperm for many years. He claimed he had multiple college degrees and was pursuing a Ph.D. in neuroscience engineering, although in reality he did not have a college degree. At the encouragement of Xytex employees, he falsely claimed he had an IQ of 160. He did not, however, disclose that he had been given diagnoses of and was hospitalized for psychotic schizophrenia, narcissistic personality disorder, and grandiose delusions. In 2002 he qualified for Social Security Disability for his mental illnesses and in 2005 he was convicted of residential burglary and sentenced to 8 months in jail, all the while remaining a donor with Xytex. The Xytex suits came about after the donor’s personal information was accidentally revealed in 2014. Despite representations to the contrary, Xytex did not investigate Aggeles’s background, including his criminal background. The company promoted him as one of their best donors and he ultimately fathered at least 36 children. The child born to the plaintiffs in the Norman case has serious mental health problems and has been hospitalized for psychoses, depression, and suicidal and homicidal ideations.

The Norman case was originally filed at the Georgia Superior Court for Fulton County and included 13 different causes of action, including fraud, negligence, breach of warranty, unfair business practices, product liability, and more. The Superior Court summarily dismissed virtually all of the plaintiffs’ claims under the reasoning that the plaintiffs are asserting what is essentially a wrongful birth claim, which is barred under Georgia Supreme Court case law. On June 21, the Georgia Court of Appeals affirmed the Superior Court’s decision.  

Our arguments in this brief, in a nutshell, are as follows:

1. The lower courts’ characterization of the plaintiffs’ claims as, essentially, a wrongful birth claim is erroneous because this case does not share essential characteristics of wrongful birth claims (primarily, the claim of loss of opportunity to abort a fetus) and is more akin to a case of wrongful conception and nondisclosure of a medical condition prior to adoption.  
2. Characterizing the claims brought against the sperm bank as, essentially, a wrongful birth claim leads to an unjust result and ignores the realities of sperm markets.
3. The lower courts’ decisions amount to an absolute immunity for sperm banks regardless of the conduct of the bank and its employees, which may have negative public policy and public health ramifications.  
4. Dismissal of this case is inconsistent with Georgia common law tort principles.

If you have any questions or are interested in reading more about this case and other cases against Xytex, please let me know and I’ll be happy to send you more information (or you can just Google “Xytex” and “Donor 9623”).

Yaniv Heled, J.S.D.

Associate Professor of Law

Co-Director, Center for Intellectual Property

Georgia State University College of Law

P.O. Box 4037, Atlanta, GA 30302-4037

Tel: (404) 413-9092

Email: yheled@gsu.edu 

3d Cir: Amazon Is a Seller of Goods Through Website, Even if Owned by 3rd Parties; CDA Not Applicable Except as to Failure to Warn

In Oberdorf v. Amazon.com, Inc., the Third Circuit held that Amazon was a "seller" for purposes of Pennsylvania state law when it sold items on its website through Amazon Marketplace.  Amazon Marketplace connects buyers to third-party sellers on Amazon's website.  Amazon does not own the goods and in many cases does not deliver them.  After determining Amazon to be a seller, the court further held that section 230 of the Communications Decency Act of 1996 only shields Amazon from failure to warn claims.  Section 230 states:  "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."  The Third Circuit panel unanimously held that this provision would immunize Amazon from failure to warn claims because the warnings or lack thereof were provided by a third party.  No immunity would be available, however, for non-speech-related claims such as manufacturing or design defects. 

The holding that Amazon is a seller is unusual, perhaps even novel.  A recent Fourth Circuit case, based on Maryland law, came to the opposite conclusion.  In the "flaming headlamp" case, reported on here, the Fourth Circuit affirmed the district court's finding that Amazon was not a seller under nearly identical circumstances.  In a recent related case, Herrick v. Grindr, reported on here, the Second Circuit concluded that section 230 of the CDA did protect Grindr from claims brought when an angry ex-boyfriend allegedly created fake profiles that induced numerous men to come to plaintiff's home and work demanding sex.

Andrew Keshner of MarketWatch has a piece on the Third Circuit case, with a focus on the CDA holding here.

AK: Bystander NIED Claims Don't Require Contemporaneous Knowledge of Negligence

Doan v. Banner Health, Inc.,2019 WL 2312537 

Holding:  A bystander claim for negligent infliction of emotional distress (NIED) does not depend on the plaintiff’s contemporaneous realization that the injuries she observed were negligently caused.

A mother, who was in a hospital waiting room when her daughter died, brought a NIED claim against medical providers for the distress she suffered upon seeing her daughter’s body.  The trial court granted summary judgment in favor of the medical providers, finding the NIED claim failed because the mother offered no evidence that she contemporaneously understood that her daughter’s death was due to alleged negligence on the part of caregivers.  The Alaska Supreme Court reversed this decision, holding as a matter of law that a viable bystander NIED claim does not require a plaintiff to contemporaneously comprehend her injuries were negligently caused.   The court reasoned that there is no requirement in other negligence cases that a plaintiff must contemporaneously comprehend whether an injury is negligently caused, and that NIED claims should not be treated differently.  The court added that to “require that an emotionally distressed plaintiff also recognize negligence as it is occurring is asking too much.”

(From Shook, Hardy & Bacon's State Supreme Court Watch)

KY: Pre-Injury Waivers by For-Profit Companies Signed by a Parent Are Not Enforceable Against a Minor Child

The Kentucky Supreme Court has unanimously ruled that for-profit companies can be liable for injuries to minor children even if their parents signed a pre-injury waiver.  The ruling came in a case in which an 11-year-old girl broke her ankle jumping on a trampoline at the House of Boom in Louisville, KY in 2015.  The mother had checked a box saying that she, on behalf of her daughter, would "forever discharge and agree not to sue" the trampoline park.  The court noted that for the most part, under Kentucky law, "a parent has no authority to enter into contracts on a child's behalf."  The court also stated that in 11 of 12 jurisdictions in the U.S., waivers between parents and for-profit entities have been found unenforceable.  WDRB.com has the story.

I found this story by reading State Supreme Court Watch, a bi-weekly email available from Shook, Hardy & Bacon.  Written by Phil Goldberg & Chris Appel, the email includes sections on Cases Granted Review and Cases Decided.  I highly recommend signing up.  To do so, email Phil Goldberg at pgoldberg@shb.com.

PA: Carnival Safety

Today's The Patriot News (Harrisburg, PA) has a story by Bennett Leckrone about the safety of carnival rides.  Regulation of fixed sites (amusement parks) and mobile rides (carnivals) is divided.  The CPSC has authority to regulate the latter, but not the former.  If there is to be regulation of fixed rides, it must come from the states.  Most states have adopted regulations for fixed rides.  The quality of regulation, however, varies significantly.  Pennsylvania's regulations, the responsibility of the Department of Agriculture, are relatively strong.  The nightmare for carnival rides is something like the fireball disaster at the Ohio State Fair in 2017.

PA: Supreme Court Holds Evidence of Risks and Complications Can Be Admissible in Med Mal Cases

Two days ago, the Pennsylvania Supreme Court ruled that evidence of risks and complications associated with surgical procedures can be admissible in medical malpractice cases.  The concern was that jurors would mistake such evidence for informed consent, evidence of which has been held inadmissible in cases in which plaintiffs are not alleging an informed consent violation.  Whether evidence of risks and complications is relevant is a case-by-case inquiry:

[Justice Debra] Todd said, “risks and complications evidence may assist the jury in determining whether the harm suffered was more or less likely to be the result of negligence. Therefore, it may aid the jury in determining both the standard of care and whether the physician’s conduct deviated from the standard of care. We recognized as much in Brady.”

The Legal Intelligencer has the story.

IL: Suit Claims Jimmy John's "Freaky Fast" Delivery Slogan Led to Accident

A mother and daughter injured in an auto accident claim that Jimmy John's "freaky fast" delivery slogan is responsible.  The Madison-St. Clair Record has details.

CA: Family Injured in Amusement Park Incident

On Saturday, at Castle Park in Riverside, a family of three was injured--the mother critically--on a log flume ride.  According to reports, the ride malfunctioned and the family's log flipped, throwing the family into the water:

"What it appeared is that there was no water flowing on the ride. There was a pump that had malfunctioned on the ride that caused that one car to come down the descent rapidly," Fire Captain Brian Guzzetta told KTLA-TV.

Castle Park stated that each of their rides is tested every day.  USA Today has the story.

Florida Becomes a Daubert Jurisdiction

The Florida Supreme Court has adopted the Daubert standard pursuant to its rulemaking authority, reversing a recent reaffirmation of the Frye standard.  

The decision is here:  Download 2019-107_disposition_146334_d29

Thanks to Mark Behrens for the tip.

USSC Clarifies "Clear Evidence" for Preemption

Yesterday, in Merck Sharpe & Dohme v. Albrecht, the Court held that judges, not juries, should decide whether FDA actions preempt state tort suit alleging failure to warn.  The opinion explained that Wyeth v. Levine's "clear evidence" standard contemplates an irreconcilable conflict between federal and state law, rather than a heightened standard of evidentiary proof:

This point of procedural clarity has enormous strategic value for products-liability defendants because it confirms that courts may conclusively rule on the pre-emption defense as early as a pre-answer motion, though the factual complexity of FDA communications likely will push the issue in many drug-pre-emption cases to summary judgment. 

Elizabeth McCuskey at SCOTUSblog has details.

USSC Refuses to Reconsider Feres Doctrine

Yesterday the Court refused to hear a case reconsidering the Feres Doctrine.  Justices Ginsburg and Thomas dissented from that decision.  ABA Journal has the story.

IN: Insurer Posts List of STD Tests in Online Portal; Privacy and IIED Claims Dismissed

While attempting to reconcile with her husband, wife is tested for STDs.  The insurer posts the list of diseases for which wife was tested in an online portal that is accessed by her husband as the primary policyholder.  Husband ceases reconciliation efforts and proceeds with a divorce.  Wife sues insurer for disclosure of private facts, intrusion upon seclusion, and IIED (also called outrage in Indiana).  A divided Indiana Court of Appeals dismissed the disclosure claim because Indiana does not recognize disclosure claims, and dismissed the intrusion claim because Indiana does not recognize intrusion claims that only invade a person's emotional solace.  Regarding outrage, the court dismissed it, as well, because posting the list of tested diseases in the online portal was not extreme and outrageous:

“This is not conduct which is utterly intolerable in a civilized community but, rather, routine in today’s technologically-driven society,” Judge Cale Bradford wrote for the divided panel, with Judge Elaine Brown concurring. “Health insurance companies maintain web portals to allow policyholders instant access to their personal medical information, insurance claims, etc., and the current matter is no exception.”

The Indiana Lawyer has the story.

Feldman on the Sandy Hook Ruling

Heidi Li Feldman has posted to SSRN Why the Latest Ruling in the Sandy Hook Shooting Litigation Matters.  The abstract provides:

On March 19, 2019 the Connecticut Supreme Court officially released its opinion in Soto v. Bushmaster Firearms International, LLC. Because the decision greenlights civil discovery and trial for the Sandy Hook plaintiffs seeking compensation from the maker, distributor, and retailer of the gun used by the shooter, the ruling received much attention in the popular press. It is, however, very easy to get the wrong impression about the significance of the Connecticut Supreme Court’s decision and the avenues it creates for both the plaintiffs and the defendants in the litigation. The decision is both more and less significant than it seems at first glance. It opens a serious pathway to liability under the PLCAA and creates a strategic dilemma for the defendant as to whether to appeal or go to trial. Yet the PLCAA remains a bar to most types of civil action to which other product makers and sellers are subject. In the absence of comprehensive congressional regulation, it will remain difficult to require or motivate gun makers to enhance the safety of firearms design and distribution.

NJ: Jewish Man Files Tort Claim Notice Over Alleged Religious Harassment in Jail

A 29-year-old Jewish man has filed a tort claim notice against Ocean County, New Jersey regarding alleged harassment he suffered while incarcerated.  According to the notice, the man was placed in a cell with two large swastikas and a large target mark with the words "pop him" and his last name.  Moreover:

One officer allegedly made the comment, "You Jews own everything. You buy off Lakewood and Toms River and Jackson. Out there you may make the rules but in here we make the rules," according to the tort claim.

The claim alleges that corrections officers elicited other inmates to join in the mistreatment. The claim alleges that inmates threatened [the claimant's] life several times, with one inmate allegedly threatening to "knife him."

app has the story.

ALI Podcast: "Consent and Sexual Assault in Criminal v. Tort Law"

...with Erin Murphy and Ken Simons is here.  The blurb:

From start to finish, criminal and tort cases differ in many ways, including how a case is initiated, in which court it is heard and decided, standards of proof, and the consequence if the defendant is found liable (punishment if defendant is convicted of a crime; payment of money damages if defendant is liable for a tort). Some cases [or fact patterns] qualify as both crimes and torts. These differences are especially evident in sexual assault claims where a single legal term, such as “consent,” may be defined quite differently, depending on the type of legal claim asserted.

In this episode, NYU Law’s Erin Murphy and UC Irvine Law’s Ken Simons explore the difference between criminal law and tort law in the United States and then focus on how “consent” is, and should be, defined in sexual assault allegations.

MI: College Not Liable for Murder Committed by Student Studying Abroad

Johnathan Hindenach was a student at Olivet College in Michigan in 2008; he took a class that included a trip to Florence, Italy.  While in Italy, Hindenach killed someone.  An Italian court found him criminally responsible and placed him in a psychiatric hospital.  Hindenach's family sued Olivet College, alleging it failed to properly monitor Hindenach's mental health before the murder.  An appellate court in Michigan sided with Olivet College, stating the school was aware Hindenach suffered from depression and took medication, but it was not foreseeable he would murder someone and be hospitalized for his actions.  WRAL.com has details.

Two Studies Find Misdiagnosis Leading Complaint in Med Mal Claims

Two recent studies concluded the most common problem for which plaintiff file med mal claims involves diagnosis:

Coverys, a malpractice carrier based in Boston, reported that a review of 1,800 closed claims against physicians from 2013 to 2017 showed 46% were related to the diagnosis. Those claims accounted for 68% of paid indemnity costs, according to the report. In 45% of the diagnosis-related cases, the patient died, Covery said.

A separate report released by The Doctors Company, also a malpractice insurer, found that 38% of malpractice claims against physicians involving the treatment of children involved a misdiagnosis. The carrier reviewed 1,215 claims closed from 2008 to 2017.

Missed, failed or wrong diagnoses are largely the result of inadequate medical assessments, according to The Doctors Company study.

Claims Journal has the story.