TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Monday, September 25, 2023

Waisman on Voluntary Undertakings and Liability

Dov Waisman has posted to SSRN Making Things Worse, Failing to Make Things Better.  The abstract provides:

This article presents the first extensive analysis of a question in American tort law that has remained unresolved for nearly a century. When someone voluntarily attempts to protect another person from a pre-existing, independent risk of harm, should they be held liable for negligently failing to make the situation better or should they be held liable only if they negligently make the situation worse? Different courts have answered this question differently. Significantly, the Second and Third Restatements of Torts both expressly decline to take a position, leaving it an open question.

I argue that the question should be settled as follows: except in narrow and unusual circumstances involving emergency situations, it should be a necessary condition of liability for negligence in a voluntary undertaking that the actor’s conduct have made the situation worse by increasing the risk of harm to the victim beyond what it would have been absent the undertaking. Negligent conduct that does not increase the risk to another person—which I dub "non-endangering negligence"—generally should not give rise to liability unless nonfeasance (complete inaction) would have done so in the same circumstances. This follows from a principle lying at the heart of the common law of torts: tort liability generally requires that the defendant have engaged in affirmative conduct that made the world more dangerous to the plaintiff than it would have been in the defendant’s absence.

Examining the question through the theoretical lenses of incentive-based tort theory and wrongs-based tort theory, I argue that non-endangering negligence in a voluntary undertaking should give rise to liability only in an emergency situation where a volunteer rescuer engages in bad-faith misconduct after taking charge of the imperiled person. In such circumstances, wrongs-based considerations weigh so heavily in favor of liability as to overcome tort law’s strong presumption against imposing negligence liability on a defendant who has not increased the danger to the plaintiff beyond what it would have been in the defendant’s absence.

September 25, 2023 in Scholarship | Permalink | Comments (0)

Monday, September 18, 2023

Lawyers Generally Leery of AI to Estimate Damages

Charles Toutant at has an interesting piece on AI services to estimate damages for plaintiffs' lawyers.  So far, the verdict is that they don't see the value in it.  Here is a sample:

“I wouldn’t do it. I don’t feel comfortable enough delegating my work to anyone other than the attorneys in my office,” said Nicholas Leonardis, a personal injury lawyer at Stathis & Leonardis in Edison, New Jersey. “We’re hired by the clients for our skill and expertise, and that’s what they pay for, and that’s what they’re entitled to. I don’t think the clients hire an AI company. The way I look at it, the clients hire me, the clients want my expertise and they’re going to get it.”

The article (behind a paywall) is here.

September 18, 2023 in Damages, Web/Tech | Permalink | Comments (0)

Friday, September 15, 2023

Ken Abraham is the 2024 Prosser Award Honoree


Congratulations to Ken Abraham!  The Executive Committee of the AALS Torts & Compensation Systems Section has just announced that he is the 2024 Prosser Award honoree.  From the UVa Law website:

Kenneth Abraham is one of the nation’s leading scholars and teachers in the fields of torts and insurance law. He is a fellow of the American Academy of Arts and Sciences and a life member of the American Law Institute. For 20 years he served on the Council of the ALI — the board of lawyers, judges and academics that governs the Institute. He is also an adviser to the ALI’s Restatement of Torts (Third) and was the senior advisor to the Restatement of the Law of Liability Insurance. He has served on a number of other boards and commissions concerned with tort law and insurance reform.

Abraham is a recipient of the All-University of Virginia Outstanding Teacher Award, the Distinguished Faculty Achievement Certificate from the State Council of Higher Education for Virginia for "outstanding achievement in teaching, research and public service,” and the American Bar Association's Robert B. McKay Law Professor Award, given for "outstanding contributions to tort and insurance law." He has been a visiting professor at Harvard Law School and Case Western Reserve Law School. He was the first law professor to be elected an Honorary Fellow of the American College of Coverage Counsel.

Abraham is the author of more than 70 law review articles and six books. His first book, "Distributing Risk: Insurance, Legal Theory, and Public Policy" (1986), brought modern legal theory to the study of insurance law. His torts treatise, "The Forms and Functions of Tort Law" (6th ed. 2022), has become a basic text for first-year law students across the country. And his casebook, "Insurance Law and Regulation" (7th ed. 2020) has been used as the principal text in courses on insurance law in more than 100 American law schools.

Abraham has been a consulting counsel and an expert witness in a variety of major insurance coverage cases, involving commercial general liability, directors and officers liability, environmental cleanup liability, toxic tort and products liability, and property insurance claims. He has also served as an arbitrator for the Dalkon Shield Claimants Trust, resolving over 100 claims by women seeking damages for injuries caused by the Dalkon Shield intrauterine device, both in the United States and Europe.

September 15, 2023 in TortsProfs | Permalink | Comments (0)

Tuesday, September 12, 2023

Abraham & White on Offensive Battery

Ken Abraham & Ted White have posted to SSRN How an Old Tort Became New:  the Case of Offensive Battery.  The abstract provides:

This paper, prepared for the 2023 Clifford Symposium on “New Torts” at DePaul Law School, addresses the tort of offensive battery. This is an ancient tort, having been actionable for centuries under the old common law writ of trespass. When the forms of action were abolished in the second half of the nineteenth century, it continued as a civil wrong. Offensive battery was recognized in the first Restatement of Torts in cases involving physical contacts that were “offensive to a reasonable sense of personal dignity.” Although for many decades there were few cases alleging this form of battery, it was also included in the second and third Restatements of Torts. Around 1985, the number of cases alleging offensive battery increased dramatically.

This Article describes how the old tort became a new one. It chronicles the history of offensive battery, breaks down the characteristics of the cases that were reported after 1985, and offers explanations for the transformation of the old tort. Two explanations stand out. First, many of the modern cases involve offensive sexual touching of female plaintiffs. Heightened sensitivity to this wrong and increased receptivity to suits alleging it are, in our view, part of the explanation for the number of increased cases. The other part of the explanation involves the synergy between offensive battery and the other causes of action with which offensive battery was allied in the modern cases. Whether in Title VII, law enforcement use of excessive force, or cases involving other alleged wrongs, the offensive battery claim gained normative weight through its linkage with the larger narrative of wrongful conduct, and the larger narrative gained normative weight through its linkage with offensive battery. In short, the “new” tort of offensive battery typically is employed as just one weapon in an arsenal in which separate causes of action are allied together.

September 12, 2023 in Conferences, Scholarship | Permalink | Comments (0)

Friday, September 8, 2023

Geistfeld on Vicarious Liability for Sexual Assaults in the Workplace

Mark Geistfeld has posted to SSRN Reformulating Vicarious Liability in Terms of Basic Tort Principles:  The Example of Employer Liability for Sexual Assaults in the Workplace.  The abstract provides:

The most common form of vicarious liability subjects an employer to liability for the torts an employee commits within the scope of employment. Under the motive test, an employee’s tortious misconduct is outside the scope of employment when wholly motivated by personal reasons—a rule that almost invariably prevents the victims of sexual attacks at the workplace from recovering against the employer. The motive test is based on agency law, not tort law. A few alternative approaches have reformulated vicarious liability in a different manner, but each one has largely foundered. The motive test rules the land.

Neither courts nor commentators have adequately considered whether vicarious liability can be reformulated as a tort doctrine that makes the employer (or principal more generally) legally responsible for the employee’s (or agent’s) conduct. As a matter of tort law and not agency law, responsibility is ordinarily defined by the requirements that the individual’s affirmative conduct (feasance) created a foreseeable risk of physical harm. In cases of vicarious liability, these two essential requirements for attributing individual responsibility to an employer for the conduct of an employee are satisfied whenever the employee acts to further some interest of the employer. The employer’s tort responsibility can extend beyond the agency relationship to encompass some forms of employee misconduct that have no purpose of furthering the employer’s interests, as in certain cases of sexual misconduct at the workplace. Since this formulation of vicarious liability relies on the ordinary tort principles concerning feasance and foreseeability, it does not require courts to engage in any kind of inquiry different from ones already embodied in ordinary negligence liability.

September 8, 2023 in Scholarship | Permalink | Comments (0)

Wednesday, September 6, 2023

Simons on Loss of Chance

Ken Simons has posted to SSRN Lost Chance of a Better Medical Outcome:  New Tort, New Type of Compensable Injury, or New Causation Rule?.  The abstract provides:

In certain medical negligence cases, such as cases of doctors negligently failing to diagnose a potentially fatal disease, the defendant significantly increases the risk of harm to the plaintiff, but that increase in risk is insufficient to satisfy the preponderance test of factual causation, which requires proof that but for the defendant’s negligence, the plaintiff would not have suffered harm. For example, suppose a doctor’s delayed diagnosis of cancer increased the risk of death to the patient from 30% (if the doctor had not been negligent) to 45%, and further suppose that there is no feasible way to determine whether the patient is within the group who would have died apart from that negligence or within the group who died because of the negligence. If the patient dies of cancer, the preponderance test of causation cannot be satisfied, because the doctor’s negligence only increased the risk of death by 15 percentage points, and the patient is more likely to be in the 30% group of patients who would have died apart from that negligence.

Most courts that have addressed this issue have permitted partial damages in these cases, and I agree. But I disagree with the “subtraction” computation method that courts almost uniformly employ. In the example, they would award 15% of the damages that the plaintiff’s estate would ordinarily receive if the plaintiff had been negligently killed in a fact pattern satisfying the preponderance test. In my view, the estate should receive 1/3 of ordinary damages, not 15%, because the chance that the doctor’s negligence caused the death is more accurately computed by the ratio 15/45. The subtraction method, as compared to the ratio method, undercompensates plaintiffs.

My disagreement with the predominant judicial approach is not just a technical dispute about how to compute partial damages. The main reason that most courts give for endorsing the subtraction method is that the relevant legal injury that the plaintiff suffered was not the death itself, but the loss of a chance of avoiding the death. But this rationale is unpersuasive, because it relies on an ad hoc and unnecessary redefinition of the legal injury. Moreover, that redefinition has radical implications, potentially supporting tort liability whenever a negligent actor exposes people to harm, even if harm does not result.

The most persuasive justification for awarding partial damages in this special class of cases is that courts are fully justified in creating an exception here to the usual preponderance requirement for factual cause—just as they are justified in modifying that requirement in other well-accepted categories of cases, such as multiple sufficient tortious causes, uncertainty about which of two tortious defendants was the cause, and uncertainty about whether a plaintiff would have heeded a legally adequate warning. Thus, to answer the question posed by the title, recovery for a lost chance is best understood not as a new tort, and not as a new type of compensable injury, but as a new causation rule.

September 6, 2023 in Scholarship | Permalink | Comments (0)

Tuesday, September 5, 2023

Geistfeld on Loss of Chance

Mark Geistfeld has posted to SSRN Duty-Preserving Tort Rules as an 'Old Category' for Justifying the Loss-of-Chance Doctrine in Medical Malpractice.  The abstract provides:

The loss-of-chance doctrine paradigmatically applies to wrongful-death cases in which a physician commits malpractice and seeks to avoid liability on the causal ground that the patient probably would have died anyway from the preexisting medical condition, even if it had been treated properly. By rejecting this argument and permitting recovery in these cases, courts purportedly have either relaxed the plaintiff’s ordinary burden of proving causation or otherwise redefined the compensable harm as the patient’s lost chance of survival rather than the wrongful death. Either modification of ordinary tort principles could have profound effects that extend well beyond the context of medical malpractice.

The loss-of-chance doctrine has divided courts across the country, with about half of the states rejecting, deferring, or not yet addressing it. This halting development suggests that it might be useful to consider whether the doctrine can be justified by established principles based on what Guido Calabresi has called “old categories” of tort law.

In other contexts, courts have adopted special rules to preserve the tort duty. Courts can rely on this “old category” to justify the loss-of-chance doctrine. For preexisting conditions that probably can’t be cured, a negligent physician could always avoid liability by invoking this exculpatory causal evidence, which in turn would negate the duty for the entire category of cases the duty governs. To preserve the duty, courts must preclude malpractice defendants from using the preexisting condition to defeat liability.

Under this approach, the defendant incurs liability for the wrongful death itself, with the lost chance of survival then factoring into the damages award. The ordinary measure of compensatory damages for wrongful death (or any permanent injury) depends on the patient’s life expectancy at the time of the malpractice, which incorporates the extent to which the patient’s preexisting condition had already reduced her life expectancy. The negligent physician accordingly incurs liability only for the extent to which the malpractice caused the patient to lose the remaining chance of surviving to a normal life expectancy—the same measure of damages courts use in the loss-of-chance cases. Loss of chance can be a new tort or an old one, depending on its underlying rationale.

September 5, 2023 in Scholarship | Permalink | Comments (0)

Friday, September 1, 2023

JOTWELL Torts: Kendrick on Keating on Irreparable Injury and Deterrence

At JOTWELL, Leslie Kendrick reviews Greg Keating's Irreparable Injury and the Limits of the Law of Torts.

September 1, 2023 in Scholarship, Weblogs | Permalink | Comments (0)

Wednesday, August 30, 2023

3M Agrees to Settle Earplug Cases for $6B

3M has agreed to pay approximately $6 billion to settle lawsuits brought by servicemembers who used earplugs supplied by the company.  Plaintiffs alleged the earplugs were defective and they suffered hearing damage as a result.  The cases were consolidated as an MDL in Florida, and plaintiffs have won 10 of the 16 trials so far.  3M reached the agreement after failing to have the cases moved to bankruptcy court earlier this year.

There are approximately 240,000 people expected to be eligible for the settlement; 98% of them must agree to accept the settlement or 3M will not be bound by it.  Payments will be made from 2023 through 2029, and $1 billion will be in the form of 3M stock.  3M shares have gone up after the settlement was announced; some analysts had estimated 3M's potential liability at $10 billion.  Brendan Pierson at Reuters has the story.

Yesterday Judge M. Casey Rogers ordered plaintiffs' lawyers to disclose outside funding deals, indicating concern about third-party litigation funding.  Emily Siegel at Bloomberg has the story.

August 30, 2023 in Current Affairs, MDLs and Class Actions | Permalink | Comments (0)

Tuesday, August 29, 2023

Bublick on Posner and Mathias v. Accor

Ellie Bublick has posted to SSRN Mathias v. Accor Economy Lodging:  Judge Richard A. Posner's Message and Method on Punitive Damages.  The abstract provides:

Judge Richard Posner’s famous opinion in Mathias v. Accor tells a powerful story. In a case involving the tiny harms inflicted by bed bugs, Mathias argues that courts’ proportionality analysis should measure punitive damages awards against the wrongfulness of defendant’s conduct and need for deterrence, not against the amount of compensatory damages awarded in the case. Judge Posner raised his powerful critique of the punitive damages standard, in poetic fashion, shortly after the United States Supreme Court had decided State Farm v. Campbell—a key moment in the punitive damages discourse. In this book chapter, Professor Bublick reveals another, more important, lesson of the Mathias opinion that has been obscured from view. Once readers understand a fact that was (deliberately?) misstated, the Mathias opinion becomes more deeply telling and instructive about Judge Posner’s pragmatic method of review and his commitment to commercial fair dealing as the site at which economic and moral perspectives merge.

August 29, 2023 in Scholarship | Permalink | Comments (0)

Friday, August 25, 2023

Torts Art

Blake Wells sells law-related art at Term of Art Co.  His torts prints are herePalsgraf and Byrne v. Boadle are by Christian Ceci.


August 25, 2023 | Permalink | Comments (0)

Thursday, August 24, 2023

Innsbruck Conference on Medical Liability

The University of Innsbruck and the European Group on Tort Law are holding a conference on Medical Liability in the Digital Age on September 28. 

10:00 Opening of the conference
            *Bernhard A. Koch (University of Innsbruck):
            *Ewa Bagińska (University of Gdańsk):
             A Call for Risk-based Liability for Adverse Effects of Advance Therapy
             Medicinal Products – Hospital Exemption (ATMP-HE)
             *Ken Oliphant (University of Bristol):
             Liability for Black-Box Medicine: Fault, Risk or Social Solidarity?
12:00 Lunch break
13:00 *Israel Gilead (The Hebrew University of Jerusalem):
            Extending Fault-based Medical Liability by Notions of Enhanced Protection
            of Autonomy and of ‘Evidential Loss’
            *Giovanni Comandé (Scuola Universitaria Superiore Pisa):
            AI and Health Care Related Liability Between Old and New Paradigms
14:45 Coffee break
15:15 *Christopher Robinette (Southwestern Law School):
            A Restatement of the Law of Medical Liability
            Speakers and other members of the European Group on Tort Law:
            Round Table:
            Medical Liability in the Digital Age – Need for Reconsideration?
17:00 End of conference

Times are local.  The event is hybrid and free of charge; please register here:

The flyer is here:  Download Medical Liability in the Digital Age

August 24, 2023 in Conferences | Permalink | Comments (0)

Wednesday, August 23, 2023

Bell on Aggressive Police Actions to Dislodge Intruders

Bernie Bell has posted to SSRN Aggressive Police Actions to Dislodge Intruders and Competing Takings Clause and Fourth Amendment Regimes.  The abstract provides:

This article examines the potential overlap between the currently invigorated “regulatory takings” regime, extended most recently in Cedar Point Nursery v. Hassid, 141 S. Ct. 2063 (2021), and the Fourth Amendment regime governing searches and seizures. The two regimes suggest strikingly divergent approaches to claims for recompense arising out of law enforcement destruction of owners’ residential or commercial premises in the course of dislodging an intruder. Typically, most courts have resisted recognizing such destruction as a “taking,” even though such police responses to intruders may render the premises uninhabitable or unusable — a far more serious and potentially long-term frustration of investment-backed expectations than many actions that undoubtedly qualify as takings. The result in most jurisdictions has been judicial refusal to recognize potential liability for such damage to residential and commercial premises, with the civil rights or torts actions grounded in search-and-seizure law rarely mentioned.

Takings Clause doctrine provides a categorical entitlement to “just compensation” once a taking has occurred, without considering the reasonableness of law enforcement officials’ actions. By contrast, the ex ante or ex post Fourth-Amendment-based protection of property turn on the reasonableness of law enforcement officials’ actions — the government will be liable or denied authorization to conduct only unreasonable searches and seizures. The interest invaded in cases involving police dislodging of intruders is not the property owner’s right to possess and exclude, which lie at the heart of regulatory takings doctrine — indeed in most cases police restore those rights by expelling the intruder. Rather the property owner solely suffers property damage, and such harms, divorced from infringement upon the rights to possess and exclude, are subject to causes of action based on fault, not mere damage. Such fault-based causes of action include standard negligence causes of action for property damage, nuisance causes of action, and non-tort causes of action alleging “waste.”

The article assesses the relative merits of the competing Takings Clause and Fourth Amendment Clause approaches, finding both problematic. It then suggests self-help as the most appropriate means to ensure that property owners recoup losses due to damage to their premises in “intruder” situations. Such self-help can, and may to some extent already, be accomplished through the mechanism of insurance. Here, the paper takes it cue from the “economic loss” doctrine in torts. However, it is unclear whether standard insurance policies cover losses resulting from police responses to intruders. The article suggests that jurisdictions use their regulatory powers to preclude insurance companies from selling policies that exclude coverage of such claims. Ultimately, a combination of pooling risk among property owners through the mechanism of insurance, combined with Fourth-Amendment-based (or tort) liability based on unreasonable law enforcement conduct provides a better approach than that promised by extending the takings regime to include damage to property necessitated by law enforcement efforts to dislodge intruders.

August 23, 2023 in Scholarship | Permalink | Comments (0)

Monday, August 21, 2023

Tylenol MDL

At Barron's, Josh Nathan-Kazis has an article about the MDL in the Southern District of New York of cases alleging that Tylenol taken by pregnant mothers causes ASD and ADHD in their children.  Plaintiffs in these cases face a number of high hurdles such as causation and preemption.  The cases have survived several preliminary motions and are approaching a Daubert hearing.  I was surprised by the number of studies finding an association between the drug and the conditions, but of course that does not mean causation exists.  Kenvue, the defendant, was spun off from Johnson & Johnson, and a stock swap has just concluded.  Liability for another mass tort, the talc litigation, stayed with J&J in an attempt to make Kenvue stock more appealing to investors.  The article (behind a paywall) is here.

August 21, 2023 in MDLs and Class Actions | Permalink | Comments (0)

Thursday, August 17, 2023

Abraham & White on the Offensiveness Torts

Ken Abraham & Ted White have posted to SSRN The Offensiveness Torts.  The abstract provides:

Three established torts require the defendant’s behavior to be “offensive” or “highly offensive” in order to be actionable: offensive battery, public disclosure of true private facts, and intrusion on seclusion. Although what links these “offensiveness” torts together has not been recognized before, this Article demonstrates that they occupy a sub-category of tort liability that is coherent, insight-generating, and useful. The torts developed at different times and in a sense for different reasons, but all three rest on the same principle: the idea that individual autonomy involves not only inviolable bodily space, but also inviolable private and informational space. What counts as actionable wrongdoing for these torts depends on the cultural context, because what is considered offensive conduct may vary, as cultural conditions change. The typical victim (or observer) of one of these torts must plausibly have the reaction “How dare you?” for the offensiveness element of the tort to be satisfied. That is what links these three superficially disparate torts together, and warrants understanding them together, as protections against invasions of the different forms of inviolable space that are a core feature of every individual’s autonomy.

August 17, 2023 in Scholarship | Permalink | Comments (0)

Tuesday, August 15, 2023

Geistfeld on Unifying Principles for Pluralist Tort Adjudication

Mark Geistfeld has posted to SSRN Unifying Principles Within Pluralist Tort Adjudication.  The abstract provides:

The ongoing fact of pluralist tort adjudication calls into serious question whether tort law plausibly coheres into a single integrated moral justification such as welfarism or Kantian right. A healthy political society values diverse viewpoints and their associated moral theories. Recognizing as much, Jane Stapleton and numerous other tort scholars have concluded that tort law is committed to pluralism as a substantive matter. Their reasoning seems incontrovertible: tort adjudication has always been conducted in terms of incompletely theorized mid-level principles such as reasonableness or fairness that can be justified by a plurality of values. Attempts to interpret tort law in terms of a single integrated justification miss the mark on this view, turning them into “grand theories” that are practically useless for the bench and bar.

Though otherwise valuable, substantive pluralism is problematic in the context of adjudication. If tort law must always be formulated to protect a plurality of competing values, it could not justify judicial decision-making in hard cases, nor could it meaningfully protect individual rights or otherwise provide individuals with requisite guidance on how they should behave when pluralist values conflict. Rather than entailing a commitment to pluralism as the substantive rationale for tort law, pluralist adjudication is more plausibly characterized as a dynamic process of constructive interpretation. As I will try to demonstrate, pluralist tort adjudication that proceeds on the basis of incompletely theorized agreements embodies unifying principles that can satisfy the demands of law as integrity.

Most obviously, pluralist tort adjudication is normatively coherent when conducted in the context of an overlapping consensus of the competing pluralist values. To identify an overlapping consensus, one must apply the different foundationalist moral principles that plausibly describe tort law in order to determine whether their demands conflict for the class of cases under consideration. Doing so is not merely a pedantic exercise. When cases are situated within an overlapping consensus, doctrinal analysis is considerably sharpened by eschewing mid-level theorizing in favor of the more fully theorized foundationalist moral principle best fitted for addressing the issue at hand. Wide swaths of tort law find justification within an overlapping consensus, an important point that tort scholars have largely overlooked.

A focus on this attribute of tort law also reveals important classes of cases in which pluralist values conflict. Within this space of hard cases, there is an overlapping consensus concerning the reasonable structure of pluralist adjudication. Litigants have an institutional right to be treated equally under the law, which precludes judges from resolving hard cases by simply invoking their preferred value systems when doing so would conflict with other pluralist values. The common law implements this requirement of equal treatment with its characteristic mode of judicial decision-making based on analogical reasoning—treating like cases alike. Analogical reasoning depends on unifying properties for categorizing cases that make pluralist tort adjudication a dynamic process for rendering tort law normatively coherent, thereby implementing law as integrity. Throughout this entire process, monistic interpretive theories are integral for developing the concepts and doctrines of tort law.

August 15, 2023 in Scholarship | Permalink | Comments (0)

Wednesday, August 9, 2023

Goudkamp on New Torts

James Goudkamp has posted to SSRN New Torts.  The abstract provides:

One of the most enduring themes regarding tort law is that it is a dynamic institution that adapts in response to evolving social conditions and emerging forms of wrongdoing. Thus, centuries ago Pratt LCJ said that ‘torts are infinitely various, not limited or confined’. In the current age, Hoffmann J wrote that tort law ‘is not static’ and added ‘that new forms of tort may develop’. Torts scholars agree. For example, John Fleming observed that:‘tortious liability is constantly expanding and there is ample evidence that a plaintiff’s claim is not necessarily prejudiced because he is unable to find a specific label for the wrong of which he complains. New and innominate torts have been constantly emerging in the long course of our history and the courts have shown no inclination at any stage to disclaim their creative functions, if considerations of policy pointed to the need for recognising a new cause of action’.

Although the courts have long been in the business of updating the list of civil wrongs, the process by which this occurs has received scant attention and certainly much less than it deserves. There is, of course, a large literature that considers whether particular torts should be welcomed into the fold. Thus, a substantial body of learning exists on whether spoilation of evidence and invasion of privacy should be recognised as torts. But this literature does not grapple with the process by which the courts create torts. Accordingly, this chapter’s purpose is to cast some light on that topic. Although legislatures can and often do create torts too, the recognition of new torts by the courts involves different issues, largely because of the restrictions to which the courts but not Parliament are subject. This chapter’s focus is on the creation of torts at common law.

In terms of the structure of the chapter, it begins by examining how new torts can be identified (Section II). As we will see, it is often unclear whether one is dealing with a novel tort or an extension to an extant one. Attention is then turned to a range of instances where the courts have established new torts or declined to do so (Section III). Thereafter, regard is had to a sample of reasons that the courts have given both in favour of and against establishing new torts (Section IV). A wide range of reasons have been offered most of which are, as we will see, unconvincing. The final substantive part of the chapter offers some short observations regarding the other end of tort law’s lifecycle, namely, the process by which torts die (Section V).


August 9, 2023 in Scholarship | Permalink | Comments (0)

Thursday, August 3, 2023

Heymann on Trolley Problems, Private Necessity, and the Duty of Rescue

Laura Heymann has posted to SSRN Trolley Problems, Private Necessity, and the Duty of Rescue.  The abstract provides:

Laidlaw v. Sage is generally, at best, an oddity in Torts casebooks today. A case that captured the imagination of New York newspaper readers at the time, Laidlaw involved an explosion that, William Laidlaw argued, the wealthy Russell Sage survived only because, at the last moment, he pulled Laidlaw in front of him to absorb the brunt of the blast. As taught in Torts classrooms, Laidlaw is either a case about the intent requirement for battery or a case about causation. But the case, assuming the plaintiff’s story was true, also provides an interesting window into what would seem to be contradictory tort doctrines: the defense of private necessity and the lack of any duty to rescue. When one’s property is used without prior consent in an emergency situation, one is essentially being made an unwilling rescuer, even though one would not normally, absent a preexisting duty, be compelled to contribute to a rescue at all. This confluence of doctrines because even more heightened when one’s bodily integrity is at stake, such as in the classic trolley problem, where one individual is, essentially, forced to become an involuntary rescuer of five others by giving up their life. And while the trolley problem has been criticized on the basis of its departure from reality, the proliferation of autonomous vehicles will increasingly force us to determine how these tradeoffs should be made.

August 3, 2023 in Scholarship | Permalink | Comments (0)

Monday, July 31, 2023

Segal on Deterring Public Misconduct

Boaz Segal has published Utlilizing Tort Law to Deter Misconduct in the Public Sector.  

This article analyzes tort law’s ability to effectively guide the actions of
public officials and agencies and proposes separating tort judgments into
two components: the imposition of accountability and the imposition of
liability. This separation leads, in turn, to the conclusion that it is sufficient
to impose accountability—and to label the public official and agency
negligent—in order to effectively guide their conduct. An important
perspective is thereby added to the discourse on the deterrent power of tort
law. To date, tort law discourse has been largely dominated by the paradigm
of the economic analysis of law, thereby focusing on the financial sanction
component and ignoring to some extent the imposition of accountability.

July 31, 2023 in Scholarship | Permalink | Comments (0)

Tuesday, July 25, 2023

Faure, Visscher & Weber on Speeding Up Tort Cases

Michael Faure, Louis Visscher & Franziska Weber have p0sted to SSRN The Impact of Speed and Accuracy in Personal Injury Cases:  A Law and Economics Analysis.  The abstract provides:

In various countries, initiatives have been taken to speed up the process to provide compensation to victims of personal injury. There are some concerns that speeding up the process (inter alia via alternative dispute resolution mechanisms) may go at the expense of accuracy. Within this paper, we use a law and economics framework to show that generally accuracy in individual cases comes at high costs but is less important than often thought. Neither from a deterrence, nor from a compensation perspective is perfect accuracy in each individual case the necessary aim to strive for. As long as the injurer is held to pay compensation that is on average correct, the right behavioral incentives are provided for both tortfeasors ex ante. Also victims are generally appreciative of averaging compensation payments. We discuss recent developments in claims handling in Belgium, Ireland and Sweden, showing how these countries have attempted to speed up victim compensation (and therewith increased victim satisfaction) and how these processes have been facilitated by a standardization of the compensation payments. We argue that the experiences in these countries show that speeding up compensation to victims is indeed possible and that the reduction of accuracy in specific cases (resulting from a standardization of the compensation) is not problematic, neither from the deterrence, nor from the compensation perspective. Cautious policy conclusions in awareness of the lack of a one-size-fits-all-approach are formulated.

July 25, 2023 in Scholarship | Permalink | Comments (0)