TortsProf Blog

USSC Unanimously Rejects Mexico's Lawsuit Against Gun Manufacturers

Yesterday, the United States Supreme Court ruled unanimously that Mexico failed to plausibly allege that gun manufacturers aided and abetted gun dealers' unlawful sales of firearms to Mexican traffickers.  The Mexican government sued several gun manufacturers in the United States, attempting to rely on the predicate exception to the Protection of Lawful Commerce in Arms Act, which may come from aiding and abetting someone else's firearms offense.  The Court, through Justice Kagan, rejected the claim:

Mexico’s complaint does not plausibly allege that the defendant manufacturers aided and abetted gun dealers’ unlawful sales of firearms to Mexican traffickers. We have little doubt that, as the complaint asserts, some such sales take place—and that the manufacturers know they do. But still, Mexico has not adequately pleaded what it needs to: that the manufacturers “participate in” those sales “as in something that [they] wish[] to bring about,” and “seek by [their] action to make” succeed.

The opinion is here:  Download 23-1141_lkgn;  NPR coverage is here.

Miller & Telesetsky on Prescribed Fire Liability and Administration in Western States

Stephen R. Miller & Anastasia Telesetsky have posted to SSRN Prescribed Fire Liability and Administration in Western States:  An Empirical Analysis and Call for Reform.  The abstract provides:

Wildfires have grown exponentially over the last few years due to fuel loads, range- and timber-management policies, and climate change. The cost of fire suppression is also growing in both rural and urban areas. For instance, the 2023 Pioneer Fire in rural Idaho cost over $100 million to fight, while the 2025 urban conflagrations in Los Angeles, California destroyed over 30,000 structures despite an astonishing array of suppression resources deployed. Something new, and something big, in terms of law and policy interventions is needed to stem the intensity of wildfires. Increasingly, governments, private citizens, and even corporate interests like insurance industries, are looking to prescribed fire as a potential landscape-scale solution. Prescribed fires provide the kinds of fire that fire-adapted landscapes need to flourish while wildfires can burn too intensely, scar the landscape, and provide an entry for invasive species. Prescribed fire lessens the intensity and prevalence of wildfires, as well, which makes them more manageable. It also has the potential to reduce risk for homeowners and, as a result, place less strain on for-profit insurers and governmental insurers of last resort. The problem, however, is that a complex set of laws and antiquated liability standards make the broad deployment of prescribed fire challenging. This Article succinctly summarizes the major benefits of prescribed fire as well as the major legal problems that prohibit its broader deployment. The Article  presents results from a first-of-its-kind empirical survey of 11 western states’ laws, administrative regulations, and case law governing prescribed fire. The Article provides detailed summaries of how each state complies with requirements of the Clean Air Act and environmental review. The Article also articulates how each state uses some combination of  common law liability standards for negligence,  nuisance and trespass claims to address liability in the prescribed fire context. The Article also evaluates how states’ administrative processes try to encourage, or discourage, prescribed fire through a mix of certified burner programs, indemnity funds, and burn facilitation. The Article concludes by offering options for legal reforms that could lead to the safe deployment of prescribed fire as a bulwark to prevent future  out of control wildfires and the suppression costs that otherwise follow.

TX: Supreme Court Clarifies Relationship Between Common Law Torts and Statutory Liability

In a case on a question certified by the Fifth Circuit, the Supreme Court of Texas clarified the relationship between common law torts and statutory liability.  The Texas Labor Code, in Chapter 21, authorizes suits against employers for certain types of discrimination, harassment, and retaliation.  In a previous case, the court held that Chapter 21 was the exclusive remedy when the gravamen of the plaintiff's case is Chapter-21 covered discrimination.  The Fifth Circuit certified the following question:         

Does [Chapter 21] preempt a plaintiff-employee’s common-law defamation and/or fraud claims against another employee to the extent that the claims are based on the same course of conduct as discrimination and/or retaliation claims asserted against the plaintiff’s employer?

The court answered the certified question in the negative:  "The availability of a Chapter 21 claim against an employer forecloses other entwined claims from being asserted against the same defendant, but it does not immunize other defendants, who are not subject to liability under Chapter 21, from liability under recognized common law causes of action for their own tortious conduct. Because no 'clear repugnance' exists between common law defamation and fraud claims against an employee and Chapter 21 claims against an employer, even when they are 'based on the same course of conduct,' we hold that Chapter 21 does not abrogate such claims.  We answer the Fifth Circuit’s certified question 'no.'”

The case involves a law professor.  The opinion is here:  Download Texas Supreme Court Decision in Butler v. Collins (1)  Thanks to Warigia Bowman for the pointer.

UT: Four-Year Med Mal Statute of Repose Upheld

Bingham v. Gourley, 2024 UT 38, ¶ 55, 556 P.3d 53, 68-69 (2024) (upholding the Utah Health Care Malpractice Act's four-year statute of repose).

GA: Governor Kemp Signs Tort Reform Bills

Earlier today, Georgia Governor Brian Kemp signed into law two tort reform bills--S.B. 68 and 69--that generally limit tort damages and litigation funding.  Earlier coverage here, here, and here.

KY: Firefighter's Rule Not Applicable to Independent Acts

Wooster Motor Ways, Inc. v. Gonterman, 701 S.W.3d 511, 518 (Ky. 2024) (“[T]he [Firefighter’s] Rule does not apply to independent or intervening acts of negligence that cause a rescuer to be injured as he or she is engaged in his or her professional duty.”).

NV: Supreme Court Declines to Adopt Suicide Rule in Med Mal Cases

Bourne v. Valdes, ___ Nev. ___, ___, 559 P.3d 361, 363, 365 (2024) (declining “to adopt a rule that a patient's suicide relieves a medical provider of liability for the patient's death.”; “[I]nstead…the determination as to whether a medical provider is liable for a patient's injuries must be resolved under established medical malpractice law.”; “If the patient's suicide is a foreseeable consequence of the medical provider's negligence, then the medical provider may be held liable. However, where the patient's suicide is not foreseeable, then the suicide is a superseding intervening cause, severing the causal chain and relieving the medical provider of liability for his or her negligence.”).

GA: Litigation Financing Bill Passes in House

The Georgia bill restricting litigation financing passed in the House of Representatives yesterday.  Governor Kemp is expected to sign both bills shortly.  Tyler Wilkins has the story (behind a paywall).

Duty of Children and Family Services Regarding Foster Care

Recently, the Supreme Court of Louisiana determined that there is a non-delegable duty of care and well-being owed by the state department of children and family services to children in its legal custody, and the agency is liable for the acts of foster parents who breach that duty irrespective of an employer/employee relationship.  Howe v. Gafford, 395 So.3d 844, 845 (La. 2024) (“[T]here is a non-delegable duty of care and well-being owed by the Louisiana Department of Children and Family Services (“DCFS”) to children in its legal custody….and DCFS is liable for the acts of foster parents who breach that duty irrespective of an employer/employee relationship.”).

In a case arising in a similar factual context, a New York appellate court held that a municipality that has assumed legal custody of a foster child, and which selects and supervises the foster parents of that child, necessarily owes a duty to the child more than that owed to the public generally.  Adams v. Suffolk Cnty., ___ N.E.3d___, ___, 222 N.Y.S.3d 501, 510 (App. Div. 2024) (“[A] municipality that has assumed legal custody of a foster child, and which selects and supervises the foster parents of that child, necessarily owes a duty to the child ‘more than that owed [to] the public generally’” (internal citations omitted)).

WA: Appellate Court Holds There Is a Duty to Protect Personal Identifiable Information

Nunley v. Chelan-Douglas Health Dist., 32 Wash.App.2d 700, 704, 558 P.3d 513, 517 (2024) (“[C]ompanies that collect and store personal identifiable information…and personal health information…have a duty to use reasonable care in collecting and storing the information. This duty includes taking reasonable steps to prevent unauthorized access and disclosure of the information.”).

IN: Supreme Court Fine-tunes Strict Liability for Blasting

The Indiana Supreme Court declined to follow the Second Restatement factors test to determine whether strict liability applies to blasting, instead retaining the “bright line” approach of the First and Third Restatements. The court further held that strict liability is applicable for neighbors and bystanders, but not the entity that hires the blaster.  Cave Quarries, Inc. v. Warex LLC, 240 N.E.3d 681, 693 (Ind. 2024) (“[W]e maintain the bright-line rule that a party is strictly liable for the damage its blasting causes to neighbors and bystanders, but not to one who hires the blaster.”). 

IL: Appellate Court Declines to Extend Conversion to Intangible Assets

Recently, an Illinois appellate court insisted on the traditional limitations of tangible property or the merger doctrine for the tort of conversion.  Z’s IT Consulting Servs., Inc. v. Hunt L. Grp., LLC, 2024 IL App (3d) 230333, ¶ 21, ___ Ill. Dec. ___, ___, ____ N.E.3d ___, ____ (2024) (declining to extend conversion to intangible assets;  “[Counterclaimant] fails to allege that plaintiffs converted a document in which intangible rights were merged or that plaintiffs prevented the exercise of [counterclaimant’s] intangible rights that are customarily merged into a document.”). 

Mullenix on the PLCAA at the Supreme Court

Linda Mullenix has posted to SSRN High Noon at the Supreme Court.  The abstract provides:

This article analyzes the Supreme Court appeal in Smith & Wesson Brands, Inc. v. Estados Unidos Mexicanos, argued on March 4, 2025. This unusual gun litigation does not involve the Second Amendment protection of the right to bear arms. Instead, this is the Court’s first appeal concerning interpretation of the 2005 federal firearms immunity statute, the Protection of Lawful Commerce in Arms Act, (15 U.S.C. § 7901 et seq.). The Court will consider whether firearms production and sales in the U.S. is a proximate cause of alleged injuries to the Mexican government from drug cartel violence in Mexico, and whether the industry’s firearms U.S. production and sale amounts to unlawful aiding and abetting because the firearms companies allegedly knew some of their products were unlawfully trafficked.

In August 2021, the Mexican government sued seven firearms manufacturers and one distributor in Massachusetts federal district court. Mexico contended the defendants’ negligent marketing, distribution, and sales practices allowed traffickers to obtain high-capacity firearms. Mexico also asserted a public nuisance claim because the gun dealers were engaged in straw sales, and despite knowing the practice, continued to supply guns to these dealers. The allegations included damages attributable to the costs to Mexico of increasing police and military forces and the judicial system. Damages were estimated in the range of $10 billion dollars. Mexico asserted  PLCAA did not apply because Mexico’s damages occurred outside the U.S. but if the court were to apply PLCAA, several exceptions vitiated PLCAA immunity. 

The defendants requested dismissal of Mexico’s lawsuit. They argued: (1) that PLCAA provided the defendants with immunity from civil lawsuits, (2) that the Mexican government lacked standing to sue, and (3) that the Massachusetts court lacked personal jurisdiction over defendants without sufficient Massachusetts contacts to support jurisdiction. The defendants moved to dismiss for failure to state a claim upon which relief could be granted, a lack of Article III standing, and a lack of personal jurisdiction. On September 30, 2022, the Massachusetts district court dismissed Mexico’s lawsuit.

On January 22, 2024, the First Circuit reversed, reinstating Mexico’s lawsuit. The court addressed PLCAA’s extraterritorial reach, the predicate statute exception, and Mexico’s plausible pleading of claims within PLCAA’s predicate statute exception. The court rejected Mexico’s argument that PLCAA had no extraterritorial effect. Applying PLCCA, the court held that Mexico plausibly pleaded claims that came within PLCAA’s exceptions to immunity, reversing the district court’s holding that PLCAA barred Mexico’s common law claims. The court rejected the defendants’ arguments that Mexico’s claims were not for statutory violations, that Mexico failed to adequately plead predicate statute violations, and failed to adequately plead proximate cause. Therefore, PLCAA did not prevent its litigation from proceeding.

The Smith & Wesson firearms lawsuit is the first PLCAA litigation to reach the Supreme Court. It will involve the Court in a statutory exegesis of the PLCAA previsions relating to proximate causation and its “aiding and abetting” language. The appeal is signally important because if the Court agrees with Mexico’s position on these statutory questions, this could open a pathway for additional litigation against firearms industry defendants.

GA Senate Passes Bill on Third-Party Litigation Financing

Yesterday the Georgia Senate passed S.B. 69, placing restrictions on third-party litigaiton financing.  The bill passed 52-0.  Tyler Wilkins has coverage (behind a paywall).

S.B. 68 Passes in GA Senate

Governor Kemp took the extraordinary step of threatening to primary any Republican voting against S.B. 68, and he got his way in a near-party-line vote.  The bill passed 33-21, with one Republican against and one Democrat in favor.  It appears there was a compromise on the collateral source rule issue that allows plaintiffs to show jurors both the initial medical bill and the actual amount paid for the medical bill.  The proposal now goes to the Georgia House of Representatives.

S.B. 68 Vote Scheduled for Tomorrow (2/21)

The main GA tort reform bill is set for a vote in the Georgia Senate tomorrow.

More on GA Tort Reform Bills

The bills may come up for a vote as early as next week.  Tyler Wilkins of the Atlanta Business Chronicle has more coverage (paywall):  Kemp's tort reform proposal draws support from Georgia businesses including Waffle House, RaceTrac.

GA Tort Reform Bills Advance

Both S.B.68 (general provisions) and 69 (third-party financing) passed the Senate Judiciary Committee this week.  S.B. 68 passed 8-3 and S.B. 69 passed 10-1.  The next step is the full Senate.  Tyler Wilkins has the story (behind a paywall).

GA Tort Reform Legislation: SB 68

SB 68 contains multiple initiatives.  McGuireWoods Consulting prepared an excellent writeup of the bill's contents, which have changed somewhat since Governor Kemp released a summary in late January.  My reactions follow.

Damages. The proposed legislation limits recoverable damages in two significant ways: first, it prohibits attorneys from arguing for or eliciting testimony referencing any specific amount for noneconomic damages; secondly, it limits medicals to only the damages paid out to a provider, not billed by that provider.

I oppose both changes.  Deciding to ask and asking for a specific amount for pain and suffering is advocacy, and both sides can engage in it over the proper amount to be awarded.  Let them do it.  Although I appreciate that the bill does not fully abrogate the collateral source rule, it still undermines it.  The collateral source rule ensures that the plaintiff receives payment for the medical bills caused by the defendant from the defendant.  Why should the defendant receive the benefit of a writeoff, usually offered because of plaintiff's insurance?   

Civil Procedure. Under the bill, if a party files a motion to dismiss before or at the time of filing an answer, discovery is automatically stayed until the court rules on the motion. If the court has not ruled within 90 days, a party may request the court to terminate or modify the discovery stay for good cause. This effectively delays and possibly precludes unnecessary discovery costs in frivolous matters that are highly deserving of early dismissal.

This change seems reasonable to me.  Why should defendant have to answer discovery for a claim that is not legally sufficient?

Voluntary Dismissal. The bill alters the timeline for plaintiffs to voluntarily dismiss a case without prejudice. If enacted, plaintiffs must file a written notice of dismissal before the opposing party serves an answer or a motion for summary judgment. This marks a significant departure from current law, which allows dismissal at any time before the first witness is sworn in.

This appears to change one extreme deadline for another; perhaps a middle point would be fairer to both sides.

Litigation Costs. The proposed legislation prohibits parties from recovering the same attorney’s fees, court costs, or litigation expenses more than once.

This change certainly seems reasonable, but I would want to know more about how Georgia law operates now.

Seat Belt Admissibility. In a significant shift from current law, Senate Bill 68 permits judges and juries to consider seat belt usage as evidence at trial; the evidence may be admitted for purposes of negligence, comparative negligence, causation, assumption of risk, or fault apportionment. However, the bill explicitly states that insurance companies cannot use a driver’s failure to wear a seat belt as grounds for canceling coverage or increasing policy rates.

This change seems reasonable to me.  Don Gifford and I have written about this issue before.

Premises Liability. The bill refines the liability standards for landowners and occupiers regarding negligent security. Owners or occupiers may be held liable for injuries to invitees for a third party’s wrongful conduct in one of two ways – first, they may be liable if they had received a particularized warning; alternatively, they may be held liable if the wrongful conduct was reasonably foreseeable and the wrongful conduct exploited a known physical condition of the premises. For licensees, liability applies if the owner or occupier had specific warning of imminent wrongful conduct, took no action to mitigate the risk, and this failure led to the injury where, again, the wrongful conduct that caused the injury exploited a known physical condition of the property. However, landowners and occupiers are not liable for injuries sustained by trespassers, individuals off the premises, or those harmed by tenants or their guests when eviction proceedings have begun. The bill also clarifies that property owners are not required to provide extraordinary security measures or assume the responsibilities of law enforcement, though courts will consider existing security measures at the time of an incident.

I don't have a strong opinion about this change, but I would want to know more about how Georgia law operates now.

Trial Bifurcation. The trial process will be divided into two phases. In the first phase, the trier of fact determines the defendant’s liability and assigns a percentage of fault to each defendant. If liability is established, the trial moves to the second phase, where compensatory damages are calculated and awarded to the plaintiff.

I strongly oppose this change.  The only time tort law mandates bifurcated trials is for punitive damages.  Because certain evidence, such as the defendant's wealth, is admissible in a punitive damages case, but not for basic liability, we bifurcate trials to protect defendants from a jury hearing evidence that is not relevant.  The proposal here actually prohibits a jury from hearing evidence that is not only relevant, but is required in order to establish liability in negligence cases.  Moreover, bifurcating trials can further delay tort cases that are already too slow.  

Abraham on the California Fires

Ken Abraham has posted to SSRN About the California Fires.  The abstract provides:

This short essay analyzes the issues that arise in connection with the fire insurance and other sources of compensation for the damage caused by the recent California fires, and future fires. There is a grim reality that must be faced: no insurance magic, or trick, or legerdemain is going to solve the problem on its own.