TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Monday, January 21, 2019

18th Annual Conference on European Tort Law

The European Centre of Tort and Insurance Law and the Institute for European Tort Law of the Austrian Academy of Sciences and the University of Graz will host the 18th Annual Conference on European Tort Law from April 25th through April 27th in Vienna, Austria. 

The Annual Conference provides a unique opportunity for both practitioners and academics to discover the most significant tort law developments from across Europe. A Special Session on Saturday morning is dedicated to the increasingly relevant topic of ‘Human Rights Violations in Global Supply Chains’. 

January 21, 2019 in Conferences | Permalink | Comments (0)

Saturday, January 19, 2019

Barker & Grantham: Apportionment in Private Law

Kit Barker & Ross Grantham have edited Apportionment in Private Law with Hart Publishing.  The blurb provides:

This collection of essays investigates the way in which modern private law apportions responsibility between multiple parties who are (or may be) responsible for the same legal event. It examines both doctrines and principles that share responsibility between plaintiffs and defendants, on the one hand, and between multiple defendants, on the other.

The doctrines examined include those 'originating' doctrines which operate to create shared liabilities in the first place (such as vicarious and accessorial liability); and, more centrally, those doctrines that operate to distribute the liabilities and responsibilities so created. These include the doctrine of contributory (comparative) negligence, joint and several (solidary) liability, contribution, reimbursement, and 'proportionate' liability, as well as defences and principles of equitable 'allowance' that permit both losses and gains to be shared between parties to civil proceedings. The work also considers the principles which apportion liability between multiple defendants and insurers in cases in which the cause, or timing, of a particular loss is hard to determine.

The contributions to this volume offer important perspectives on the law in the UK, USA, Canada, Australia and New Zealand, as well as a number of civilian jurisdictions. They explicate the main rules and trends and offer critical insights on the growth and distribution of shared responsibilities from a number of different perspectives – historical, comparative, empirical, doctrinal and philosophical.

Table Of Contents

1. Apportionment in Private Law: Nothing, All, or Something in Between?
Kit Barker
2. Allocating Liability Among Multiple Responsible Causes: Principles, Rhetoric and Power
Richard W Wright
3. Full, No, or Partial Liability? That is the Question – Some Answers from a Civilian Perspective
Helmut Koziol

4. Vicarious Liability: A Pailful of Slops and Other Hazards
Warren Swain
5. Accessories, Joint or Independent Liability and Apportionment
Joachim Dietrich

6. Contributory Negligence and Apportionment in Canadian Tort Law
Lewis Klar
7. Contributory Negligence and Professional Negligence: An Empirical Perspective
James Goudkamp and Donal Nolan
8. Allocating the Costs of Making Restitution: Change of Position
Ross Grantham
9. Certainty in Calculating Monetary Remedies for Breach of Fiduciary Duty
Simone Degeling

10. Contribution Among Wrongdoers: Reducing the Risk of Contribution Recovery Shortfall and Other Issues
David Cheifetz
11. Reforming a Reform: Why Has It Been So Hard to Reform Proportionate Liability Reforms?
Barbara McDonald
12. Causation and Proportional Recovery
Rob Merkin and Jenny Steele
13. Justice Between Defendants: A New Zealand Note on (non) Law Reform
Geoff McLay

January 19, 2019 | Permalink | Comments (0)

Friday, January 18, 2019

Bernstein: The Common Law Inside the Female Body

Anita Bernstein has published The Common Law Inside the Female Body with Cambridge University Press.  The blurb provides:

In The Common Law Inside the Female Body, Anita Bernstein explains why lawyers seeking gender progress from primary legal materials should start with the common law. Despite its reputation for supporting conservatism and inequality, today's common law shares important commitments with feminism, namely in precepts and doctrines that strengthen the freedom of individuals and from there the struggle against the subjugation of women. By re-invigorating both the common law - with a focus on crimes, contracts, torts, and property - and feminist jurisprudence, this highly original work anticipates a vital future for a pair of venerable jurisprudential traditions. It should be read by anyone interested in understanding how the common law delivers an extraordinary degree of liberty and security to all persons - women included.

January 18, 2019 in Books, Scholarship | Permalink | Comments (0)

Thursday, January 17, 2019

Swan on Preempting Plaintiff Cities

Sarah Swan has posted to SSRN Preempting Plaintiff Cities.  The abstract provides:

Within the city-state relationship, states hold an enormous amount of power. Recently, states have been using that power to pass extremely aggressive preemption laws that prohibit cities’ regulatory efforts on many fronts. These new preemption laws most commonly occur in the context of red states limiting the regulatory scope of blue cities, inflaming those already tense city-state relationships and cutting into what many view as the appropriate scope of local autonomy.

But despite this intense clash in the regulatory sphere, when we move away from the world of city regulation and toward the world of city litigation, things look surprisingly different. Although cities have been bringing forward hundreds of quite controversial claims against corporate wrongdoers for harms ranging from the subprime mortgage crisis to the opioid epidemic, such plaintiff city litigation has provoked relatively little state hostility. States have not ratcheted up their response to this exercise of city power in at all the same way as they have for regulation. Rather, states have shown a remarkably limited appetite for preempting plaintiff city litigation.

What accounts for these differing responses? Three main factors are likely in play. First, while regulatory preemption is largely the result of intense political polarization, states have historically viewed litigation against corporate wrongdoers in less partisan terms. Both blue and red states have themselves engaged in this type of litigation, and there is thus an institutional tradition of flexibility in this context. Second, and relatedly, the issues at the heart of plaintiff city litigation are often not as politically divisive as those at the heart of the preempted regulations. Harms like lead paint poisoning and the opioid epidemic have attracted widespread condemnation, while many of the regulation preemption subjects remain hotly contested. Finally, unlike regulation, litigation is not an obvious instrument of governance. It has unpredictable outcomes, it is not an exclusively governmental power, and it relies on existing law.

Since plaintiff city litigation operates mostly outside of state crosshairs, it can provide a space for cities looking to pursue progressive goals. Plaintiff city litigation may not achieve the same immediate governance goals as regulation, but it does have significant political benefits for cities and their residents. Thus, even in an era of rampant regulatory preemption and deep political animosity between cities and states, plaintiff city litigation presents a viable parallel track for cities to continue their pursuit of urban social justice. Although such litigation does not directly address the contentious issues forming the basis of regulatory battles, it does offer a means of protecting vulnerable communities and advancing goals of democratic equality in other ways.

January 17, 2019 in Scholarship | Permalink | Comments (0)

Wednesday, January 16, 2019

Robinette & Wachtel on Kentucky Holding Medical Malpractice Panels Unconstitutional

I have been fortunate to have a series of very talented research assistants over the years.  One of my current RAs, Dani Wachtel, and I wrote a short piece for Insurance Journal on the Kentucky Supreme Court striking down med mal review panels as unconstitutional. 

January 16, 2019 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Simons on the Tort/Crime Distinction

Prosser Award winner Ken Simons has posted to SSRN The Crime/Tort Distinction:  Legal Doctrine and Normative Perspectives.  The abstract provides:

This essay provides an overview of the crime/tort distinction. It first investigates some of the fundamental differences between criminal law and tort law in doctrine and legal structure. It then explores some important similarities and differences in normative perspectives between the two doctrinal fields. This typology should prove analytically useful for examining some of the specific issues at the borderline of crime and torts — such as the proper scope of punitive damage liability and the question whether criminal law as well as tort law should vary legal sanctions simply because of the fortuitous occurrence of harm.

This is a piece he wrote for a symposium here at Widener.

January 16, 2019 in Conferences, Scholarship | Permalink | Comments (0)

Tuesday, January 15, 2019

Oliphant, Pinghua, & Chen: European and Chinese Perspectives on Personality Rights

Ken Oliphant, Zhang Pinghua, & Lei Chen have edited The Legal Protection of Personality Rights:  Chinese and European Perspectives.  The abstract provides:

This book aims to investigate the way in which personality rights are protected in China through a comparative and cross-cultural lens drawing on perspectives from Europe and elsewhere in the world. Currently, the question whether or not to incorporate a special law on personal rights – the right to life, the right to health, and the rights to reputation and privacy – into a future Chinese Civil Code is heatedly debated in the Chinese legal community. The essential topics that are addressed in this book include general issues of personality rights, personality rights in Constitutional law, personality rights in private law, the legislative development of personality rights in China, case studies of the right to privacy, personality rights in the mass media and the internet, competition law aspects of the right of publicity, the protection of patients’ personal information, and personality rights in the family context. The book offers a broad investigation of personality rights protection in both China and Europe and provides the first substantive comparison of the Chinese and European regimes. The project is conceived as a joint effort on the part of a carefully chosen team of Chinese and European academics, working closely together. The team consists of both senior scholars and young researchers led by well-known experts in the field of comparative tort law.

January 15, 2019 in Books, Scholarship | Permalink | Comments (0)

Monday, January 14, 2019

NY: Parents Sue Supportive Living Center for Negligence, Mishandling of Son's Body

A Troy non-profit supportive living center has been sued by the parents of a former resident.  The plaintiff's decedent completed rehabilitation for drug addiction and then moved into the facility in November 2017.  His parents last spoke to him on December 3 of that year.  Around 6 days later, when no one had heard from him, the parents asked the facility where their son was.  A staff member allegedly informed the parents their son had left several days earlier.   On Jan. 11, 2018, they learned the truth: Raolik had never left the facility.  A pest control worker entered his room and found his body on the bed.  Allegedly staff members were checking the wrong room.  The condition of the body made it difficult to determine a cause of death, but it appears the man died of a heart attack on December 4, 2017.  Toxicologists found no traces of illicit drugs in his system.  The Times Union has the story, including a copy of the suit.

January 14, 2019 in Current Affairs | Permalink | Comments (0)

Friday, January 11, 2019

KY: Bill Would Amend Constitution to Allow Tort Reform

Sen. Ralph Alvarado has filed a bill to amend Kentucky's constitution to allow the General Assembly to create statutes of limitation for civil actions involving death, personal injury and property damage and to set limits on non-economic damages in civil cases.  Last year a similar bill failed to get out of committee.  Sen. Alvarado was the sponsor of the medical malpractice panels law that was enacted in 2017 and struck down by the Kentucky Supreme Court in November.  Louisville Business First has the story.

January 11, 2019 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Thursday, January 10, 2019

Neethling & Potgieter on Municipal Responsibility for Rape

Johann Neethling & J.M. Potgieter have posted to SSRN Delictual Liability of a Municipality for the Rape of a Mentally Disabled Woman --Bridgman v. Witzenberg Municipality.  The abstract provides:

An 18-year-old woman (L) with a mental disability (she functioned cognitively at the level of a 6 to 8 year old child) was abducted and raped by three youths at the Pine Forest Holiday Resort in Ceres, Western Cape (South Africa), where she was staying with her adoptive parents. The resort was owned, managed and controlled by the defendant, the Witzenberg Municipality (the Municipality). The plaintiff, in his capacity as the curator ad litem of L, instituted an action against the Municipality, claiming damages arising from injuries suffered by L as a consequence of the rape. He submitted that the rape was caused by the negligent omissions and conduct of the Municipality. The Municipality denied that it had been negligent. In the alternative it argued that, if it had been negligent, the rape had been caused partly through its own negligence, and partly through the negligence of L’s parents.

January 10, 2019 in Current Affairs, Scholarship | Permalink | Comments (0)

Tuesday, January 8, 2019

Comparative Pharmaceutical Products Liability

The latest issue of the journal "Pharmaceuticals Policy and Law" is devoted to comparative pharmaceutical products liability.  Mike Green and I contributed a descriptive piece on U.S. law, and Marshall Shapo did as well.  The lineup:

Pharmaceutical Product Liability Systems:  Regulatory Models and Challenges, Miquel Martin Casals & Jose Luis Valverde

Some Comparative Remarks on Pharmaceutical Product Liability, Miquel Martin Casals

Pharmaceutical Product Liability in the United States of America, Christopher J. Robinette & Michael D. Green

Some Aspects of Pharmaceutical Product Liability in the United States of America, Marshall S. Shapo

Pharmaceuticals Products Liability in Japan, Fumihiro Nagano & Antonios Karaiskos

Pharmaceuticals Product Liability in Brazil, Rafael Peteffi da Silva

Pharmaceutical Product Liability in France, Zoe Jacquemin

Product Liability for Medicinal Pharmaceuticals in Germany, Ulrich Magnus

Pharmaceutical Products Liability in the United Kingdom, James Goudkamp

Pharmaceutical Products Liability in Poland, Piotr Machnikowski

Pharmaceutical Product Liability in Spain, Josep Sole Feliu

The Development Risk Defence of the EU Product Liability Directive, Bernhard A. Koch

January 8, 2019 in Products Liability | Permalink | Comments (0)

Monday, January 7, 2019

Are Apps Products?

Couple breaks up.  Upset former lover creates fake profiles on a dating app that leads to harassment of ex, including over a dozen instances of people showing up at the person's home and workplace ready for sex.  The victim files police reports and eventually obtains a restraining order against the company that created the dating app.  The victim sues the company alleging, among other things, products liability.  The trial court dismisses the action based on section 230 of the Telecommunications Decency Act of 1996, protecting those providing interactive computer services from the statements of third parties.  Today the Second Circuit hears an appeal of that case, Herrick v. Grindr.  In the meantime, Dave Ingram of NBC has an interesting piece on the issue of whether apps qualify as products for purposes of products liability.

January 7, 2019 in Current Affairs, Web/Tech | Permalink | Comments (0)

Friday, January 4, 2019

Torts Section Presents William Prosser Award to Ken Simons


From Chair Stacey Tovino's Twitter page.  Congratulations, Ken!

January 4, 2019 in Conferences, TortsProfs | Permalink | Comments (0)

Thursday, January 3, 2019

Wright on Haack on Proof

Richard Wright has posted to SSRN Haack on Legal Proof.  The abstract provides:

In this paper, I discuss and agree with Susan Haack’s illuminating discussion and constructive critique of the current confusion regarding required evidence and the related standards of proof in the law, focusing especially on mathematical probability rather than warranted belief interpretations of those standards. However, I question Haack’s claim that statistical evidence is relevant not only for establishing the existence of a causal process but also, although usually insufficient by itself, for proving actual causation in a specific case.

January 3, 2019 in Scholarship | Permalink | Comments (0)

Wednesday, January 2, 2019

Lemann on Flood Risk

Alexander Lemann has posted to SSRN The Assumption of Flood Risk.  The abstract provides:

2017 was the costliest year for flood damage in American history. Somewhat fortuitously, the beleaguered National Flood Insurance Program came up for reauthorization just as the country was bearing the brunt of Hurricanes Harvey, Irma, and Maria. With the program at its borrowing limit and facing the prospect of being unable to pay claims, Congress punted on the question of long-term reform by forgiving its past debt and extending its reauthorization deadline. That deadline has since been extended seven more times, with little substantive discussion of the widely-felt need for reform.

Scientists expect a warmer climate to cause more intense rainfall, more powerful hurricanes, and higher sea levels, all of which will significantly worsen the flood risk we face. Meanwhile, many see federal policy as failing to encourage sustainable development. Indeed, the dominant view of experts is that programs like the NFIP have made the problem worse, by insulating property owners from the effects of storms and thus artificially inflating the value of flood-prone real estate. This viewpoint, however, assumes that the purpose of federal policy in this area should be to incentivize some objectively optimal level of exposure to the risk of floods. The behavior of policymakers, on the other hand, strongly suggests that this utilitarian approach to the problem is not the only — or even the default — way of thinking about our exposure to risk.

Drawing on tort doctrine, and particularly the defense of assumption of risk, I argue that there is instead a set of deeply moral instincts underlying our response to flood risk. The doctrine of assumption of risk assigns responsibility for the realization of risks not when our decisions to confront them are objectively rational, but rather when they are made freely, with meaningful knowledge of the risk and a choice of whether to accept it. These ideas, I argue, can already be detected in the rate structure of the NFIP, and yet they are largely ignored in the broader policy debate about how best to share the burden of flood risk. If tort law represents a distillation and application of our common moral intuitions about risk and responsibility, it can shed light on how this complex problem should be resolved.

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

Monday, December 31, 2018

More Torts at the AALS Annual Meeting

In addition to the traditional Torts Section's panel, there is a Jurisprudence panel entitled "Recognizing Wrongs:  Philosophy of Tort Law":

Start Date: 01/05/2019, 10:30 am
End Date: 01/05/2019, 12:00 pm
Room: Grand Salon Section 15
Floor: First Floor
Hotel: Hilton New Orleans Riverside
Speaker: Maria Glover, Georgetown University Law Center 
Speaker: John C. Goldberg, Harvard Law School 
Speaker: Gregory C. Keating, University of Southern California Gould School of Law 
Moderator: Joshua Kleinfeld, Northwestern University Pritzker School of Law 
Speaker: Alexandra D. Lahav, University of Connecticut School of Law 
Though not explicitly about torts, Ben Zipursky is speaking on a panel entitled "Philosophy Within the Departments of Law":
Start Date: 01/05/2019, 9:00 am
End Date: 01/05/2019, 10:25 am
Room: Grand Salon Section 15
Floor: First Floor
Hotel: Hilton New Orleans Riverside
Moderator: Emad H. Atiq, Cornell Law School 
Speaker: Joshua Kleinfeld, Northwestern University Pritzker School of Law 
Speaker: Daniel S. Markovits, Yale Law School 
Speaker: Jeremy James Waldron, New York University School of Law 
Speaker: Benjamin C. Zipursky, Fordham University School of Law 

December 31, 2018 in Conferences | Permalink | Comments (0)

Sunday, December 30, 2018

Torts at the AALS Annual Meeting

Stacey Tovino is concluding her term as Chair of the Torts and Compensation Systems Section.  The program is as follows:

Start Date: 01/04/2019, 1:30 pm
End Date: 01/04/2019, 3:15 pm
Room: Grand Salon Section 16
Floor: First Floor
Hotel: Hilton New Orleans Riverside
Speaker: Mark A. Rothstein, University of Louisville, Louis D. Brandeis School of Law 
Speaker: Nadia N. Sawicki, Loyola University Chicago School of Law 
Moderator: Stacey A. Tovino, University of Nevada, Las Vegas, William S. Boyd School of Law 
Speaker: Elizabeth Weeks, University of Georgia School of Law 
Speaker: John Valery White, University of Nevada, Las Vegas, William S. Boyd School of Law 

This panel will explore the bi-directional relationship between the fields of tort law and health law. The influence of tort law on some basic aspects of health law is well known. For example, tort law provides causes of action, privileges, and defenses on which plaintiffs and defendants rely in traditional medical malpractice cases. This panel will focus on some of the less obvious ties and relationships between the fields, including the potential of tort law to perpetuate healthism (i.e., differential treatment based on health status) through various doctrines, including the active versus passive distinction, contributory negligence, assumption of the risk, and damages rules; the duty to warn of health care providers; the availability of governmental immunity for public hospitals; and the availability of assumption of the risk in cases in which patients select care that falls outside the standard of care.

Business meeting at program conclusion.

December 30, 2018 in Conferences | Permalink | Comments (0)

Friday, December 28, 2018

SELF DRIVE Act Dies in the Senate

The shutdown is getting the most attention right now, but one of the bills that died when the Senate adjourned last week was the SELF DRIVE Act, designed to regulate and create federal safety standards for self-driving cars.  Politico had an article summarizing the fate of various bills, and it said this about the SELF DRIVE Act:

— Self-driving, but not self-passing: Senators conceded earlier this week that the SELF DRIVE Act, H.R. 3388 (115), would not be passed in 2018. House Energy and Commerce Chairman Greg Walden (R-Ore.) called it "extremely disappointing that the Senate will not be able to finish its work on self-driving car legislation this year.” The proposal would regulate and create federal safety standards for self-driving cars.

December 28, 2018 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Friday, December 21, 2018

Wriggins on Domestic Violence and Gender Equality

Jenny Wriggins has posted to SSRN Domestic Violence and Gender Equality:  Recognition, Remedy, and (Possible) Retrenchment.  The abstract provides:

This paper is based on the author's presentation at the gender equality symposium. Professor Wriggins connects domestic violence and gender equality before turning to some significant reforms of the U.S. legal system concerning domestic violence-all of them relatively recent. Moving on, she discusses her reflections on the 12-year law practice that informs her expertise before becoming a law professor and also her long involvement in the movement for LGBTQ equality. Drawing on that experience, Professor Wriggins shares firsthand views of some of the consequences of not having legal protections. Outlining some of the shortcomings and critiques of the reforms, she finally turns to the future-what the law would be wise to anticipate and to do.

December 21, 2018 in Scholarship | Permalink | Comments (0)

Thursday, December 20, 2018

Parkland Shooting Cases

Marjory Douglas Stoneman High School has at least 103 claims pending against it related to a February 14, 2018 mass shooting.  Judges made rulings recently in two of them.  The father of one of the 17 people killed that day filed suit in state court against a number of defendants, including the law enforcement officer assigned to protect the high school.  The officer stayed outside the building instead of going inside when the shooting began.  The officer's attorneys filed a motion to dismiss, arguing that tort law does not impose “a duty of care to prevent a person from harming another.”  Broward County Circuit Judge Patti Englander Henning denied the motion, holding the officer had a duty to the school community as someone whose job was security.  The officer had an ‘obligation to act reasonably’ under the circumstances of the shooting.  The judge also denied the officer was entitled to sovereign immunity.  

In a federal civil rights suit filed by 15 students present during the shooting who allege psychological injuries, U.S. District Judge Beth Bloom ruled to dismiss all of the constitutional rights violations claimed by the plaintiffs.  The plaintiffs' claims hinged on the Due Process Clause, which protects people from actions taken by the state.  The judge stated that “nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors.” 

OPB has the story.

December 20, 2018 in Current Affairs | Permalink | Comments (0)