TortsProf Blog

NJ: Public Defenders and the Tort Claims Act

On Monday, the New Jersey Supreme Court heard oral arguments in the case of a wrongly convicted man now suing his public defender.  The court is considering two issues.  First, whether an attorney acting on behalf of the government to represent a private client, where representation is required by the constitution, is entitled to protections under the state's tort claims act when sued for legal malpractice.  Second, whether the plaintiff's loss of liberty is separate from pain and suffering.

George Conk represented the state bar association on the first issue.  He has details at Otherwise.

CA: PG&E Reaches $13.5B Settlement with Wildfire Victims

On Friday, Pacific Gas & Electric announced a $13.5B settlement with victims of multiple wildfires alleged to have been started by the company's negligence.  Dozens of people died in those fires and tens of thousands of homes were destroyed.  The settlement "will cover claims stemming from some of the deadliest and most destructive fires in the state’s history, including the 2018 Camp Fire and the 2017 Tubbs Fire. A federal bankruptcy judge needs to approve the accord before it becomes final."  Derek Hawkins at WaPo has the story.

PA: Commonwealth Alters Statute of Limitations on Child Sexual Abuse

Last week I reported a breakthrough in a dispute over extending the statute of limitations for child sexual abuse in Pennsylvania.  As expected, bills were passed by the full Senate and signed by Governor Wolf.  Under new law:

Victims would have until they turn 55 to sue, compared to age 30 in current law. Young adults ages 18-23 would have until age 30 to sue, where existing law gives them just two years.

A separate law started a constitutional amendment process to open a two-year window for child sexual abuse victims whose claims are currently time-barred:

The multi-year amendment process has begun, but the bill must again pass both the House and Senate in the 2021-22 legislative session before voters will decide its fate in a statewide referendum.

Pennlive has the story.

Lytton on the Sandy Hook Case

Tim Lytton has responded to the USSC denying cert. in the case filed by plaintiff families of the Sandy Hook shooting victims against Remington, the manufacturer of the gun used by Adam Lanza in the attack.  Here is a sample:

The U.S. Supreme Court on Nov. 12 refused to block a lawsuit filed by the families of the Sandy Hook Elementary mass shooting victims, clearing the way for the litigation to proceed. Remington Arms, which manufactured and sold the semiautomatic rifle used in the attack, had hoped the broad immunity the industry has enjoyed for years would shield it from any liability.

The prospect of more claims from victims of mass shootings puts new pressure on the gun industry to reconsider the way it does business.

My research over the past 20 years on lawsuits against the gun industry examines how the threat of civil liability has the potential to promote safer gun designs, encourage more responsible marketing practice and reduce the risk of illegal retail sales.

USSC Denies Cert In Sandy Hook Shooting Case Against Remington

     In March, the Connecticut Supreme Court ruled, 4-3, that plaintiff families from the 2012 Sandy Hook school shooting could proceed to trial against Remington, the manufacturer of the Bushmaster AR-15 used in the attack.  The cause of action was based on the Connecticut Unfair Trade Practices Act for "personal injuries that result directly from wrongful advertising practices."  Significantly, the Connecticut high court rejected Remington's defense based on the Protection of Lawful Commerce in Arms Act.  The court ruled the suit fell into a “predicate exception  [that] permits civil actions alleging that ‘a manufacturer or seller of a [firearm] knowingly violated a State or Federal statute applicable to the sale or market of the [firearm], and the violation was a proximate cause of the harm for which relief is sought …’ 15 U.S.C. § 7903 (5) (A) (iii) (2012).

     Yesterday the United State Supreme Court declined to hear Remington's appeal.  Coverage from The Litchfield County Times at the time of the Connecticut Supreme Court opinion noted the case:

puts the victims’ families in a position where they may be able to try to prove a connection between Remington’s marketing for its Bushmaster AR-15 rifle and the horrific act of violence by a disturbed 20-year-old. The state Supreme Court said they can try; making the connection, lawyers and experts say, is a steep challenge.

“It is a Herculean task,” said Victor E. Schwartz, co-chairman of the public policy practice in the Washington, D.C. office of the law firm Shook, Hardy & Bacon.

Amtrak Removes Right to Sue

In the wake of a $265M settlement for 8 deaths and hundreds of injuries in Philadelphia in 2015, Amtrak added a clause to its ticket purchases requiring arbitration.  Though the change, made in January, has not received a lot of attention, that may change shortly.  Connecticut Senator Richard Blumenthal is looking into the issue, and the House Transportation Committee holds a hearing on Amtrak on Wednesday.  Politico broke the story last week. 

Can an Abortion Clinic (or Other Business) Be a Nuisance Because it Attracts Protesters?

Eugene Volokh writes:

     Yes, a Georgia trial court held, and the jury awarded the neighbors $1.5 million, see https://www.mdjonline.com/news/cobb-jury-tells-abortion-doctor-to-pay-million-for-creating/article_f2719f5a-de46-11e9-b3de-8fab09664f5b.html .  As best I can tell from the article and from some of the court papers, the plaintiff neighbors’ claim was chiefly that the clinic attracted a constant stream of protesters, some of whom displayed graphic images of aborted fetuses, some of whom trespassed and accosted visitors to other businesses in the office park, some of whom tried to organize a boycott of the whole office park, and some of them (people suspect) had set a fire and might do it again.  (Part of the claim seems also to be that the clinic’s operation violated parts of the office park owners association’s rules, in which all the owners promised not to create nuisances, but let’s set that aside here.)

     I’m quite skeptical of this result, as I would be if plaintiffs could sue a bookstore that drew protesters or even attackers because it sold controversial literature, a fur store that drew anti-fur protesters, or a business that drew labor protesters.  But I want to make sure I understand the proper nuisance law analysis here; any thoughts from people who have studied nuisance law more closely than I have? 

 

     Please respond in the comments. 

IL: $101M Med Mal Verdict for Baby Born with Brain Damage

Jurors deliberated for 6 hours before awarding $101M in damages to the family of a baby born with brain damage in Oak Park.  Attorneys alleged health care providers ignored the baby's external fetal monitoring strips for 6 hours before and during delivery, and experts testified the baby would have had normal functioning  if a doctor had been alerted and a C-section performed.  The Clifford Law Office represented the family.  The Chicago Sun-Times has the story.   

Bellwether Opioid Trial Settles; Talks Resume on $48B Larger Resolution

Behind an aggressive approach by Judge Polster of the Northern District of Ohio, the bellwether trial of Cuyahoga and Summitt (Ohio) counties against various manufacturers, distributors, and retailers of opioids has settled for $260M.  The settlement has increased momentum for a grand resolution of all opioid claims at $48B, with talks to resume as early as today.  Reuters has coverage here. 

NC: $750,000 Alienation of Affection Verdict

Only 6 states (HI, MS, NM, NC, SD, and UT) continue to recognize the cause of action of alienation of affection between spouses, but North Carolina is the undisputed champion in terms of volume.  A Pitt County, NC man sued his spouse's alleged lover in August 2017, two months after the couple separated.  The couple divorced in September 2018 after 12 years of marriage.  In August, a judge ruled the interloper--the spouse's lover--had to pay the former husband $750,000.  This verdict is on the small side.  A year ago, an interloper was hit with an $8.8M verdict for conducting a 16-month affair with another man's wife.  The ABA Journal has details.

OH: Grocery Store Not Liable When Customer Drives One of Its Motorized Carts Into Another Customer

At a Giant Eagle grocery store, one customer drives one of the motorized carts provided by Giant Eagle into another customer.  The injured customer sues Giant Eagle for negligence and negligent entrustment.  (The injured customer settled with the driver.)  Plaintiff argued Giant Eagle failed to train customers to use their motorized carts, and this lack of training led to her injuries.  Plaintiff won both compensatory and punitive damages at the trial level, and the intermediate appellate court affirmed with modifications.  The Supreme Court of Ohio reversed, finding a lack of causation.  The court found it was sheer speculation that the driving customer, who had driven these carts regularly for a year without incident, hit the injured customer because of a lack of training.  Marianna Brown Bettman has extensive analysis at Legally Speaking Ohio.  

Connecticut Adopts Alternative Liability

The Connecticut Supreme Court adopted alternative liability in a decision to be officially released tomorrow.  In Connecticut Interlocal Risk Management Agency and Town of Somers v. Jackson , it was alleged three men trespassed at a mill in June 2012.  The group drank and smoked approximately 15 cigarettes throughout the building.  The group failed to extinguish some of the cigarettes, sparking a fire that destroyed the building and a sewer line.  The plaintiffs, a town and its insurer, were not able to prove which specific defendant was responsible for lighting the fire, and the Superior Court granted a motion for summary judgment based on the failure to prove causation.  The Supreme Court reversed and remanded, adopting alternative liability.  

Thanks to Richard Wright for the tip.

OK: J&J Liable for Opioid Abuse; Must Pay $572M

In the first trial against an opioid manufacturer, a judge in Oklahoma found Johnson & Johnson liable for a public nuisance and ordered it to pay $572 million to the state of Oklahoma.  The court found J&J played down the dangers and oversold the benefits of opioids, forcing the state to pay addiction treatment costs.  The state had sought $17 billion.  J&J promises to appeal.  NYT has the story.

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.