TortsProf Blog

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.

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.

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.

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 Law.com:

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.

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.

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 Law.com:

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.

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.

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.  

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.

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 https://www.cadc.uscourts.gov/internet/opinions.nsf/EA0847DA866B2BB6852587E600551961/$file/20-7087-1934759.pdf)

United States Court of Appeals United States Court of Appeals . FOR THE DISTRICT OF COLUMBIA CIRCUIT. Argued September 22, 2021 Decided February 11, 2022 . No. 20-7087 . CAMEROON WHITERU, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF OKIEMUTE C. WHITERU AND AGNES WHITERU, . APPELLANTS. v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, . APPELLEE. Appeal from the United States District Court www.cadc.uscourts.gov

 

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

Mullenix on Conflict of Laws and the Foreign Sovereign Immunities Act

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

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

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

IN: NIED Extended to Child Sexual Abuse by Caretaker

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

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

OH: Duty Case on Mailbox Construction

In Snay v. Burr, 2021-Ohio-4113 (2021), the Supreme Court of Ohio wrestles with a property owner's duty to construct a mailbox within the right-of-way that is safe for drivers on the road.  Defendant put up a mailbox on an eight-inch-diameter pipe that was buried 36 inches deep, both contrary to guidelines published by the Postal Service.  Plaintiff lost control of his car and crashed into the mailbox, which did not collapse.  Plaintiff became a quadriplegic, and sued defendant over the mailbox.  The court held defendant had no duty to the plaintiff:

 The Burrs’ mailbox did not affect the safety of ordinary travel on the regularly traveled portion of Young Road. And Burr's knowledge that the mailbox's construction was inconsistent with nonbinding postal-service guidelines does not warrant a departure from the general rule that the duty to motorists owed by an adjacent landowner or an occupier of land adjacent to the road extends only to conditions in the right-of-way that render ordinary travel on the regularly traveled portion of the road unsafe. This is true even though there existed the possibility that a vehicle might negligently veer off the regularly traveled portion of the road and hit the mailbox.

 

Because the Burrs’ mailbox did not present a hazard to ordinary travel on the regularly traveled portion of the road and because Snay's deviation from the regularly traveled portion of the road did not constitute a normal incident of ordinary travel, we conclude that the Burrs did not owe a duty of care to Snay with respect to their mailbox. And because there can be no liability in negligence without a duty of care, we affirm the judgment of the Sixth District Court of Appeals.

OK: Supreme Court Rejects Public Nuisance Theory Against Opioid Maker

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

False Imprisonment in a Zoom Meeting?

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

Liability from the Alec Baldwin Prop Gun Shooting?

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

SoCal Gas Agrees to $1.8B Settlement Over 2015 Leak

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

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

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

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

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

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

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

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

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

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

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

Lytton on New York's New Firearms Public Nuisance Statute

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

NJ Tarasoff Case: Coleman v. Martinez

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

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

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