TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Thursday, July 11, 2019

Gifford's Tribute to Judge Sally Adkins of the Maryland Court of Appeals

Judge Sally Adkins, who recently retired from Maryland's high court, wrote a number of significant tort opinions during her tenure.  Don Gifford recently published his tribute to her in the Maryland Law Review.  Rescuing Maryland Tort Law:  A Tribute to Judge Sally Adkins is here.

July 11, 2019 in Scholarship | Permalink | Comments (0)

Tuesday, July 9, 2019

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.

July 9, 2019 in Current Affairs, Web/Tech | Permalink | Comments (0)

Monday, July 8, 2019

JOTWELL Torts: Steel on Descheemaeker on Emotional Distress Recovery

At JOTWELL, Sandy Steel reviews Eric Descheemaeker's Rationalising Recovery for Emotional Harm in Tort Law

July 8, 2019 in Scholarship | Permalink | Comments (0)

Tuesday, July 2, 2019

Jim Henderson, R.I.P.

I am sorry to report that James A. Henderson Jr., the Frank B. Ingersoll Professor of Law, Emeritus at Cornell Law School, has passed away.  His biography at Cornell's website is here.  When an obituary is available I will post that as well.

July 2, 2019 in TortsProfs | Permalink | Comments (0)

Kahn on the Tax Treatment of Liability Insurance

Jeffrey Kahn has posted to SSRN The Tax Treatment of Liability Insurance.  The abstract provides:

This article reviews the policy justification for liability insurance tax treatment.

July 2, 2019 in Scholarship | Permalink | Comments (0)

Monday, July 1, 2019

Sawicki on Context-Sensitivity in Tort Defenses

Nadia Sawicki has posted to SSRN Defining the Known Risk:  Context-Sensitivity in Tort Law Defenses.  The abstract provides:

The law of negligence is designed to apply uniformly across contexts. Whether dealing with a car accident, medical malpractice, or a slip-and-fall case, tort law consistently asks whether a defendant owed a duty of care to the plaintiff and whether he exercised reasonable care in fulfilling that duty. Tort law defenses, too, are generally understood to be context-neutral. The doctrines of comparative negligence and assumption of risk should not vary depending on the precise circumstances surrounding an injury. 

And yet, there is a peculiar inconsistency in how some defenses are applied in cases of medical malpractice as compared to cases outside the health care context. Specifically, reliance on secondary implied assumption of risk seems to require greater knowledge on the part of the plaintiff in malpractice cases than in other contexts. In recreational sport cases, for example, a plaintiff will be denied recovery if he voluntarily encountered a known risk of physical injury – regardless of whether he understood that the risk was the result of a defendant’s negligence. In contrast, in medical malpractice cases, most people’s intuition is that the plaintiff’s recovery should be denied or limited only if he had knowledge of the risk of physical injury as well as the fact that this risk was created by a negligent defendant. There is no clear doctrinal explanation for this distinction. 

This article describes this conundrum and poses the question of whether and when such context-specific adjustments might be doctrinally justified. Ultimately, the most likely explanation is grounded in medical exceptionalist claims that the unique nature of health care justifies a more flexible and nuanced application of legal doctrine. While this conclusion may be unsatisfying to some, it presents a valuable opportunity to revisit debates about the supposed context-neutrality of tort law.

July 1, 2019 in Conferences, Scholarship | Permalink | Comments (0)

Friday, June 28, 2019

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)

June 28, 2019 in Current Affairs | Permalink | Comments (0)

Thursday, June 27, 2019

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.

June 27, 2019 in Current Affairs | Permalink | Comments (0)

Wednesday, June 26, 2019

Geisel on Mistake Doctrine and Personal Injury Releases

Grace Giesel has posted to SSRN A New Look at Contract Mistake Doctrine and Personal Injury Releases.  The abstract provides:

One might expect a court to look very skeptically when a party to a personal injury release asks a court to set aside the release. But many courts have reacted atypically when injured parties who have settled their claims have sought to have those releases set aside on the basis of a lack of understanding or knowledge about the injury. Absent facts supporting a claim of fraud or duress, injured parties have turned to the mistake doctrine for relief.

June 26, 2019 in Scholarship | Permalink | Comments (0)

Tuesday, June 25, 2019

PA: Carnival Safety

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

June 25, 2019 in Current Affairs | Permalink | Comments (0)

Thursday, June 20, 2019

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

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

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

The Legal Intelligencer has the story.

June 20, 2019 in Current Affairs | Permalink | Comments (0)

Wednesday, June 19, 2019

Ohio Medical Malpractice Improvement Act

On March 20th of this year, the Ohio Medical Malpractice Improvement Act became law.  Its sponsor spoke of its provisions as "gap-filling."  JD Supra put together a list of those provisions:

  1. Correcting language related to a nursing home plan of care in the statutory definition of a “medical claim,” to ensure that certain claims apply to nursing homes, but not to hospitals or other medical providers;
  2. Establishing an alternative standard of liability when a natural or man-made disaster or an epidemic overwhelms emergency care providers: specifically, medical providers will only be held liable in these circumstances if their actions constitute a reckless disregard for the consequences to the life and health of the patient;
  3. Providing immunity to health care providers who elect to keep as inpatients those whose medical condition allows for discharge, but whose mental health condition may threaten the safety of the patient or others;
  4. Adding the terms “error” and “fault” to the list of communications in the Apology Statute – which bars the admission of evidence of healthcare providers’ statements apology, sympathy, or benevolence made to patients and their representatives following an unanticipated outcome of medical care – thereby allowing for more open conversations between patients and physicians when an unanticipated outcome in medical care occurs;
  5. Making inadmissible at trial medical records that contain reference to any communications by a medical provider that are protected by the Apology Statute;
  6. Making inadmissible at trial evidence of communications by a healthcare provider and/or by a victim that are made during a health care provider’s review of the cause of an unanticipated outcome, unless the communications are recorded in the victim’s medical records;
  7. Prohibiting at trial the use of guidelines, regulations and standards in the Patient Protection and Affordable Care Act, and in the Social Security Act, as evidence of the standard of care;
  8. Prohibiting at trial the use of insurer reimbursement policies and reimbursement determinations, and of Medicare and/or Medicaid regulations as evidence of the standard of care or a breach in the standard of care; and
  9. Reducing the need for a plaintiff to “sweep” unnecessary defendants into a lawsuit due to the expiration of the statute of limitations, by providing a plaintiff an additional 180 days after the filing of a medical claim to conduct discovery for the purpose of identifying any other potential claims or defendants not named in the complaint, and allowing such claims and individuals to be added to the lawsuit (even though the statute of limitations has run) at any point during the 180-day period.

June 19, 2019 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Monday, June 17, 2019

KS: Supreme Court Strikes Down Non-economic Damages Cap

On Friday, the Kansas Supreme Court declared that state's cap on non-economic damages in personal injury cases unconstitutional as violating a person's right to a jury trial.  The 4-2 decision affected a cap put in place in the 1980s.  At the time of the appeal, the cap was $250,000, but it has since risen to $325,000.  The Washington Post has the story.

June 17, 2019 in Damages, Legislation, Reforms, & Political News | Permalink | Comments (0)

Friday, June 14, 2019

Calnan on Reasonableness

Alan Calnan has posted to SSRN The Nature of Reasonableness.  The abstract provides:

Though the notion of reasonableness dominates Anglo-American law, its meaning has been clouded by traditional conceptual analysis. This Essay argues that greater clarity can be gained by taking a scientific approach to the subject, exposing the natural foundations beneath the concept’s varied interpretations.

June 14, 2019 in Scholarship | Permalink | Comments (0)

Wednesday, June 12, 2019

Janecek on Vicarious Liability

Vaclav Janecek has posted to SSRN Vicarious Liability of Juristic Persons:  A Historical, Comparative and Philosophical Study.  The abstract provides:

This chapter advances two claims regarding vicarious liability. First, that every legal system must be capable of theoretically devising the idea of vicarious liability (as opposed to direct liability and responsibility). Second, that juristic persons and other artificial legal entities may be liable only vicariously for wrongs committed by other persons, who ultimately must be human beings. To cast new light on the concept of vicarious liability, this chapter analyses the changing relationship of the terms liability (in Czech: “ručení”) and responsibility (in Czech: “odpovědnost”) in the historical development of Czech law from the beginning of the 19th century until mid-20th century. This development was marked not only by radical changes in the posited law and by the problematic connections of the Czech legal terminology with the German one (especially with the terms Haftung and Verantwortung), but especially by the normative theory of law, internationally known especially thanks to Hans Kelsen’s writings. A peculiarity of the Czech tradition in the normative theory of law (analysed in this chapter primarily through the pioneering work of František Weyr, whose publications are mostly unknown in English-speaking countries) is that it has arrived at the concept of vicarious liability by analysing the abstract nature of legal duties, i.e. regardless of any positive legal system. This happened already in the 1930s, although the Czech normative theory of law did not take into account any developments in the common law systems with which the concept of “vicarious liability” is typically associated. This chapter presents and develops the “normativist” theory of vicarious liability to arrive at the two main claims as set out above.

June 12, 2019 in Scholarship | Permalink | Comments (0)

Tuesday, June 11, 2019

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

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

June 11, 2019 in Current Affairs, Food and Drink | Permalink | Comments (0)

Monday, June 10, 2019

Maliha on the Distortive Effect of the National Practitioner Data Bank on Medical Malpractice

George Maliha has posted to SSRN The Distortive Effect of the National Practitioner Data Bank on Medical Malpractice Litigation and Settlement.  The abstract provides:

Congress created the National Practitioner Data Bank ("NPDB") in 1986 to address a concern that medical liability cases were increasing throughout the nation. In order to prevent physicians from moving from state to state in order to escape a poor outcome, the NPDB was supposed to provide a central clearinghouse of information for every physician in the country-regardless of where they practiced. However, the NPDB distorts medical malpractice litigation and settlement-harming defendant-physicians, plaintiff-patients, and insurers. The NPDB's brooding shadow over medical malpractice has led many litigants and commentators to term it a "blacklist." Part II explores whether this term is appropriate by describing the NPDB in the context of insurer-physician relations. This discussion will connect the well-described model of insurer-insured relations to the prescient concerns raised about the NPDB's potential distortive effect on litigation and settlement as the data bank was being enacted in the late 1980s. Part III will explore mechanisms to alter reports-and place a physician's "side" into the record kept by the NPDB. Attempts to alter reports have triggered litigation against reporting entities and the NPDB itself, and although they have largely failed, these suits illustrate the unique problems that the NPDB causes physicians. In Part IV, these unsuccessful suits will be contrasted against a body of law surrounding the accuracy of another putative "blacklist"-credit scores. Part V will begin to sketch out some basic policy recommendations.

June 10, 2019 in Scholarship | Permalink | Comments (0)

Friday, June 7, 2019

Cortez on Technology and Patient Safety

Nathan Cortez has posted to SSRN A Black Box for Patient Safety?.  The abstract provides:

Technology now makes it possible to record surgical procedures with striking granularity. And new methods of artificial intelligence (A.I.) and machine learning allow data from surgeries to be used to identify and predict errors. These technologies are now being deployed, on a research basis, in hospitals around the world, including in U.S. hospitals. This Article evaluates whether such recordings – and whether subsequent software analyses of such recordings – are discoverable and admissible in U.S. courts in medical malpractice actions. I then argue for reformulating traditional "information policy" to accommodate the use of these new technologies without losing sight of patient safety concerns and patient legal rights.

June 7, 2019 in Scholarship, Web/Tech | Permalink | Comments (0)

Thursday, June 6, 2019

OR: Senate Narrowly Defeats Bill to Eliminate Non-Economic Damages Cap

On Tuesday, the Oregon Senate, in a close vote, defeated a bill that would have eliminated the state's $500,000 cap on non-economic damages in personal injury cases.  An alternative proposal would have raised the cap, established in 1987, to $1.5M, with increases over time.  That bill was also voted down, with the support of lawmakers who want to completely eliminate the cap.  OregonLive.com has the story.

June 6, 2019 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Wednesday, June 5, 2019

PA: J&J Subsidiary Loses Motion to Move Mesh Mass Tort Cases from Philly

Citing media coverage, Ethicon, a subsidiary of Johnson & Johnson, filed a motion to move consolidated pelvic mesh cases outside of Philadelphia and the five counties surrounding it.  In the past few months, several large verdicts have been returned against Ethicon in Philly.  Court of Common Pleas Judge Arnold New denied the motion in a one-page order that did not provide reasoning.  The Legal Intelligencer has the story.

June 5, 2019 in MDLs and Class Actions, Products Liability | Permalink | Comments (0)