Wednesday, February 11, 2015

Recent Illinois case clarifies the extent of vicarious liability, kind of...

As you probably know, the principle of vicarious liability allows a plaintiff to recover compensation from an employer for the conduct of an employee, but only if the conduct of the employee is "within the scope of employment."  For this reason, there is a lot of case law out there attempting to explain how to determine if a certain act is within the scope of employment and the case law is not always consistent.  Also, some courts have a tendency to define the scope of employment too narrowly, thus allowing employers to escape liability.

Now comes a decision from the Illinois Appellate court that adds to the confusion.  In this case, called Dennis v. Pace,  the plaintiff alleged that after becoming intoxicated she passed out while riding a Pace bus, and that, rather than calling for help or notifying his supervisor, the driver took her home at the end of his shift and sexually assaulted her.  She then sued Pace Suburban Bus Service. 

The lower court dismissed the complaint finding that vicarious liability did not extend to a sexual assault that occurs after work at an employee’s home.  However, the appellate court reversed concluding that the plaintiff could support the claim because the driver “initiated the sexual assault when plaintiff was riding on the bus at a time when she was a passenger and the common carrier and passenger relationship existed.”  This seems to suggest that the court was willing to define "within the scope of employment" more broadly to include conduct committed outside business hours and away from the work place as long as the conduct was initiated within business hours and within the workplace (thus being "within the scope of employment").

And I would agree with that application of the general principles to the facts.  However, although it reaches the correct result, the court's decision is not based on what can or cannot be considered to be "within the scope of employment."

The court's decision is based on an interpretation of case law in the state that appears to hold that vicarious liability rules are different in cases where the defendant is a common carrier.  According to the court, the law in Illinois has long held that a common carrier can be liable for the intentional acts of its employees even if the intentional act is outside the employee’s scope of employment and does not benefit the employer.

This is a strange result because it suggests that common carriers have strict liability over injuries caused by their employees, something I don't think is supported by the cases, particularly since the reasoning seems to be combining the principles of vicarious liability (for an employees conduct) and the high degree of care expected of a common carrier (for its own conduct).

I wonder if the case will be appealed to the state supreme court.  Stay tuned.

Kentucky Senate approves bill creating panels to review medical malpractice cases before they go to court

The Kentucky Senate recently approved a bill creating three-member panels to review medical malpractice claims before they can go to court. The Senate has passed this bill before, but it has not passed in the House, which is a good thing because the proposal is a horrible idea!  For malpractice victims in Kentucky's sake, let's hope the bill dies again.  The TortsProf blog has more on the story here.

The bill would create a three-member panel of medical experts to review claims of medical malpractice before a lawsuit can be brought to court. The bill’s supporters claim Kentucky’s lack of such a law is driving physicians out of state and driving up medical costs.  Multiple studies over the years, however, have demonstrated that these allegations are not supported by the evidence.  Lacking that evidence, the senator who sponsored the bill (a physician himself) has been quoted that the argument for the bill is “common-sense logic.”  I don't know about you, but I would rather base my vote on actual evidence than "common sense logic" claimed by someone who stands to benefit personally from the passing of the bill.

Short article that reminds us of what we already knew (if you have been paying attention)

Anyone who reads this blog knows my position on "tort reform."  It is directed at eliminating the right of people to have a chance to recover for injuries.  It is an attempt to either eliminate the chance to recover or to limit how much people can recover for no justifiable reason.  And, more than anything, it is not meant to eliminate frivolous litigation but valid claims.  Those are the ones that tort reformers really want to get rid of.  In short, tort reform is a load of crap designed to hurt victims of accidents and it disproportionately hurts women, the poor and the elderly.

Today, Joanne Doroshow, who has written extensively on the subject, published a short comment on the issue here.  It starts as follows,
For years, Big Business lobby groups like the U.S. Chamber of Commerce have been advancing a legislative agenda to limit the liability of corporations that cause injuries (also known as "tort reform.") One of their principal arguments is that tort restrictions are needed to save jobs, and to allow small businesses, "the engines of job growth," to survive. Yet internal business surveys have consistently shown this view to be utterly groundless. For years, liability issues have hardly appeared on lists of actual business concerns (as opposed to views expressed by paid lobbyists and other hired staff.) Small businesses virtually always put issues like "lawsuits" "liability" "tort reform" or the cost of "liability insurance" at the bottom of any list of concerns -- that is, if they mention them at all. They usually don't.
Go here to read the full article.

Wednesday, January 28, 2015

Podcast on the wrongful death case against gun manufacturer related to shooting at Sandy Hook Elementary School

Last month I reported that the families of nine of the 26 people killed two years ago at the Sandy Hook Elementary School in Connecticut have filed a lawsuit against the manufacturer, distributor and seller of the Bushmaster AR-15 rifle used in the shooting.  In my previous post, you can find a link to the complaint and my comments.

A couple of days ago, the Lawyer2Lawyer network broadcast the podcast that appears below on the issues raised by the case.  The panelists agree with some of my original comments including the fact that the case is not likely to be successful, but they discuss many other interesting issues.

You can listen to the podcast by clicking on the "play button" below or by going here.

Monday, January 19, 2015

Indiana Court of Appeals upholds constitutionality of damages cap -- UPDATED

A few days ago, the Indiana Court of Appeals upheld the constitutionality of that state's damages cap for claims against the state which sets the limit for compensation at $700,000 per person and $5 million per incident.  Unfortunately, I don't have more details so I can't comment fully.  I will say this:  I assume that the cap is on non economic damages and not on all damages but I am not sure.  Based on that assumption, I will repeat what I have said in the past.  I am not in favor of caps (and certainly not of a cap that limits out of pocket expenses and other economic damages), but compared to most other states I know of, this cap is relatively generous.  Compare it to the limit in California which is set at $250,000.  (A proposal to increase that cap failed late last year but may be revised again this year.)

Thanks to the TortsProf blog for the update on Indiana.

Tuesday, January 6, 2015

NY Times article on the effect of tort reform on litigation against auto manufacturers

I have often argued that the purpose of tort reform is not to limit frivolous litigation (as claimed by tort reformers), but to limit valid litigation.  Not too long ago, the NY Times published an article that supports my view.  It discusses the effect of Wisconsin's damages cap on the ability of law firms to take cases against the auto industry.  You can read the article here.

Max Kennerly has a comment on the article here, called "Tort Reform Kills."

Wednesday, December 17, 2014

Wrongful death claim filed against gun manufacturer and other sellers of the rifle used in the Sandy Hook Elementary School shooting

The families of nine of the 26 people killed two years ago at the Sandy Hook Elementary School in Connecticut have filed a lawsuit against the manufacturer, distributor and seller of the Bushmaster AR-15 rifle used in the shooting.  You can read the complaint here.

The complaint alleges that the defendants should be liable because they knowingly marketed a rifle to the civilian public that has little or no utility for civilian purposes.  The rifle was designed for military purposes.

This type of claim is not totally new, and, unfortunately for the plaintiffs, similar claims have failed in the past.  Also, it should be noted that in 2005, Congress enacted The Protection of Lawful Commerce in Arms Act to protect gun manufacturers from lawsuits for injuries caused by people using guns for criminal activity. Part of the motivation for the bill came from a case filed by the victims of a shooting rampage by a white supremacist who killed a number of people, including several children, at a Jewish center. The lawsuit claimed that the defendant made more guns than they could sell on the legitimate market with the intention of selling the remainder on the “secondary market” where criminals often buy their guns. In other words, the plaintiffs alleged that the manufacturer marketed the guns knowing they would be used for criminal activity. The lawsuit survived for a long time after the adoption of the Act, but was finally dismissed, in a 2-1 opinion, by a panel of the United States Court of Appeals for the Ninth Circuit.

The new complaint related to the Sandy Hook shooting is trying to distinguish the case from those older cases by framing the claim as an exception to the 2005 act, which recognizes a possible claim against someone who "entrusts" a weapon to another.  I am not sure the allegations support that distinction.

In the end, the Sandy Hook complaint is based on the notion that the manufacturer knowingly placed in the market a gun that should not have been marketed because it did not have any appropriate use.  That is similar to the old claims raised against the manufacturers of "Saturday Night Specials" and the "nuisance" claims used against manufacturers who continued to market guns knowing the market among civilians was saturated, etc.

Jonathan Turley has a comment on the case here (he thinks it has little merit).  AboutLawsuits has a little more information here.

Friday, December 12, 2014

Number of wrongful death claims caused by defective GM cars is likely to continue to rise

The number of confirmed wrongful death claims associated with accidents that may have been caused by recalled ignition switches used in General Motors (GM) vehicles has risen to 30, but officials indicate that the number is expected to continue to rise as the manufacturer processes claims over the next year. Reuters has a story here.  AboutLawsuits has a story here.

UPDATE 12/12/14:   AboutLawsuits is reporting that more than 2,200 personal injury claims have been filed with a General Motors ignition switch recall victim’s compensation fund launched in August, with at least 36 involving wrongful death claims confirmed by the auto maker.

Pennsylvania Supreme Court rejects Restatement Third of Products Liability

About three weeks ago, the Pennsylvania Supreme Court issued an important opinion in which it rejected adopting the language of the Restatement Third on Products Liability.  The court decided to retain its analysis based on the principles and case law on Section 402A of the Restatement Second instead.  This includes the choice of arguing/proving a design defect based on a consumer expectations analysis or a cost-benefits analysis.   You can read the opinion here and the concurring opinion here.  (Thanks to the TortsProf blog for the links.)

Max Kennerly, of Litigation and Trial, has a nice comment on the opinion here, and he provides links to shorter comments here, here and here.

Supreme Court hears oral argument regarding Federal Torts Claims Action

Over at the Supreme Court of the US blog (SCOTUS), Howard Wasserman, reports that a couple of days ago, "a subdued Court spent two hours hearing oral arguments in United States v. Wong and United States v. June, considering whether the limitations periods under the Federal Tort Claims Act are jurisdictional or subject to equitable tolling. The Justices asked relatively few questions, allowing all four attorneys to speak uninterrupted for long stretches and to provide lengthy answers to many questions."  Go here and here for his complete review of the case and links to the relevant documents. You can listen to the audio of the oral arguments here and here.

California Supreme Court to review constitutionality of damages cap

About a month ago, I lamented the fact that California Proposition 46, an initiative to, among other things, raise the cap on pain and suffering damages, which has not been increased since it was adopted in 1975 was defeated. As I said back then, this is bad new for consumers, victims of malpractice and, as usual, particularly bad for women, the poor, children and people with disabilities, all of whom are most affected by measures that limit recovery of non-economic damages.  (For my coverage of the process leading to the vote on the proposition, go here, here, here, here and here.)

However, just a week or two later it was reported that the California Supreme Court has agreed to review the Constitutionality of the same damages cap at issue in the proposition.  Go here for the story.  This means it is possible the cap will be invalidated entirely which would be beyond what Proposition 46 actually proposed.  Obviously, though, if this happens the legislature probably would work out a new cap. 

The question remains whether the new cap would increase the limits.  But let's not get ahead of ourselves.  First we have to wait and see what the Supreme Court says.  Stay tuned....

Wrongful death lawsuit filed for death of 12 year old boy killed by police in Cleveland

Unless you have been living under a rock for the last few weeks, I am sure you have heard of the cases involving police shooting and the protests that followed the lack of indictments in those cases.  You probably also heard of another case in Cleveland where a police officer shot a 12 year old boy just seconds after arriving at a park where the boy was playing with a toy gun, and act that has now been officially ruled a homicide.

It is now being reported that the family of the 12-year-old boy has filed a wrongful death lawsuit against two police officers and the city.  Go here for the full story.

Court of Appeals for the 11th Circuit holds that a cruise line can be held liable for the medical malpractice of a ship's doctor

About a month ago, the Court of Appeals for the 11th circuit issued an opinion that breaks away from a longstanding approach to medical malpractice cases against cruise lines.  The case is called Franza v Royal Caribbean and you can read it here

Before this decision, courts typically ruled that plaintiffs could not recover from a cruise line for injuries caused by the medical personnel on board a cruise ship because either the doctors were not employees (but independent contractors) or because they were exercising independent medical judgment over which the cruise line had no control and for which it should not be held liable.  In Franza, however, the court held that things have changed and that cruise lines should be subject to liability for the medical personnel they employ.  Accordingly, the court stated
we now confront state-of-the-art cruise ships that house thousands of people and operate as floating cities, complete with well-stocked modern infirmaries and urgent care centers. In place of truly independent doctors and nurses, we must now acknowledge that medical professionals routinely work for corporate masters. And whereas ships historically went 'off the grid' when they set sail, modern technology enables distant ships to communicate instantaneously with the mainland in meaningful ways
The case may also have implications outside of the medical liability areas since cruise lines also employ many other people to provide services to passengers.

Bloomberg law has a short podcast discussing the case and its implications here.  The Daily Report has an article here.

Tuesday, November 25, 2014

New study on the possible effects of energy drinks on children

As you may remember, about two years ago there was a lot of discussion on whether "energy" (highly caffeinated) drinks are harmful to children.  (I posted comments and links to articles on the subject here, here, here, here, here, here, here, here, here, here, here, here, here, here and here.)

Now, is reporting that according to a new report, young children may face serious health risks from popular energy drinks, such as Monster, Red Bull and Rock Star, potentially causing seizures, heart problems and other life-threatening conditions.

Podcast on the Takata airbag cases that have settled confidentially

Go here to listen to a Bloomberg law four minute interview on the Takata airbag cases that have settled confidentially

Honda Failed to Report 1,789 Auto Injuries and Deaths to NHTSA

Read the full story here.

Comment on the NFL concussion claims settlement

Over at Mass Tort Profs, Prof. Howie Erichson (Fordham) analyzes the NFL concussion settlement. He's not in favor.

Thanks to the TortsProf blog for the link.

Criticism of GM's compensation fund

Here is a comment criticizing GM's compensation fund (administered by Kenneth Feinberg), which claims the Fund has approved only 79 of 2180 claims in five months.