Monday, March 30, 2015

Tennessee Appeals Court holds that the state's cap on non economic damages is unconstitutional

A couple of weeks ago, a Tennessee circuit court judge ruled that the state's cap on non-economic damages is unconstitutional, likely triggering review by the Tennessee Supreme Court. Go here for more on the story (including a video).  Interestingly, the cap in Tennessee is relatively high in comparison to that of many other states.

Tuesday, March 17, 2015

Yet another report on the dangers of energy drinks

As you may remember, a couple of years ago there was a lot of discussion on whether "energy" (ie, highly caffeinated) drinks are harmful to children. Go here for links to my posts on the issue.  Now, AboutLawsuits.com is reporting that according to yet another new report, consumers of energy drinks may face serious health risks.  Go here for the full story.

Saturday, March 7, 2015

Podcast on legal issues related to "driverless cars"

Lawyer-2-Lawyer has posted a new podcast on the many legal issues related to "driverless cars."  You can listen to it by clicking on the play button below or, if you can't see that button, by going here.  Here is the description:
Are you tired of driving yourself to work? Have you always wanted a chauffeur but never could afford one? If this sounds like you, then happy days are here with the advent of the driverless car. Institutions like Google, Carnegie Mellon, and Uber are developing what they hope to be totally autonomous vehicles capable of ushering passengers to and from destinations without the need for a human driver. But what does that mean for the law, safety standards, and our freedoms?
In this episode of Lawyer 2 Lawyer, host J. Craig Williams interviews attorney and author of Robots Are People Too John Weaver, researcher and writer for Michigan Auto Law Todd Berg, and litigator and author of Motorista Anna Eby. Together they discuss liability for passengers, possible federal regulations, and risks associated with vehicle hacks. In addition, they debate when the government might pilot your driverless car, how medical emergencies in autonomous vehicles will be handled, and the possibility of the repo man summoning your automobile. Tune in to hear about existing driverless car laws and much much more!
Here is the podcast:

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."