Saturday, December 9, 2017

US Supreme Court denies review in case challenging the constitutionality of the damages cap in Nebraska

Nebraska has one of the few caps in the nation that is applied to total, as opposed to non-economic, damages in med mal cases.  In August 2015, a jury awarded the family of a brain-damaged infant $17M in damages, but pursuant to the cap, the trial judge reduced the award to $1.75M.  Last June, the Eighth Circuit unanimously affirmed the trial judge.  The plaintiffs argued the cap is unconstitutional and appealed to the US Supreme Court. 

The argument is based on the notion that the Constitution recognized a right to a trial by jury and it is the jury (not the legislature) who should be allowed to determine the value of the claim.  Other jurisdictions have so held.

Yet, last Monday, the United States Supreme Court declined to hear the case.

The TortsProf blog has more on the story here.

Monday, December 4, 2017

Short article on fraternity houses and hazing

Almost a year ago I reported that the Illinois Supreme Court had granted review on a case that asked whether the officers, pledge board members of a fraternity or the fraternity itself should be liable for the death of a student who died while participating in a social event at a college fraternity.  Since then other similar incidents have been reported in other states.  

I am coming back to this topic today because I just saw that Prof. Gregory Parks (Wake Forest) has a short article in The Huffington Post about the tort duties of fraternities and sororities with regard to hazing.

Thanks to the TortsProf blog for the link.

Friday, November 24, 2017

Victims of the Las Vegas mass shooting file lawsuits

A few days ago I posted a note on whether the victims (or relatives of the victims) of a mass shooting could bring a cause of action.  (See here.)  Now comes news that hundreds of victims of the Oct. 1 shooting in Las Vegas filed five lawsuits in Los Angeles Superior Court on Monday.  The largest of the suits names 450 plaintiffs. Among those being sued are MGM Resorts International, Live Nation, organizer of the country music festival and the estate of Stephen Paddock, the shooter.  NPR has the story here.

Monday, November 20, 2017

Should a university and its professors be liable when a student commits suicide?

An interesting case heading to the Massachusetts supreme court will explore whether schools can be held responsible when students take their own lives.  The case arouse out of a suicide at MIT.  The student was reportedly battling depression and “struggling” at school.  One day, moments after a professor confronted him about an offensive e-mail, the student took his own life.

The student’s family has argued that the University had a legal duty to use reasonable care to protect the student from harm because professors and other MIT officials knew he was a suicide risk.

Torts students will recognize the connection between two lines of cases discussed in class.  Typically, courts will not impose a duty on institutions of higher education to control or intervene with their adult students decisions, even if the students cause harm to themselves.  On the other hand, in cases originating in the famous decision in Tarasoff v.  Regents of the University of California, many jurisdictions have adopted a duty to help unsuspecting victims based on confidential patient information obtained by therapists. 

The case in Massachusetts seems to combine elements from both of these lines of cases.  The big difference is that the new case seems to seek to impose a duty to act on all employees of the University who can be claimed to have had some knowledge of the state of mind of the student. 

This would put a new, and unprecedented, burden on professors, who are not really in a position to evaluate the state of mind of their students.  In fact, according to one account I read on this case, none of the nine professionals who treated the student while he was at MIT believed he was an imminent risk of killing himself.  On the other hand, however, at least one of the professors involved apparently had a good sense of the problem, since he is quoted as having warned others that they needed to act or they would have "blood on their hands."

In fact, one point of contention in cases like Tarasoff is whether, or at what point, can a therapist really know that the patient will act up.  Thus, it can easily be argued that it would be a bad idea to place a similar burden on Professors who are not trained to recognize warning signs or to provide therapy.  Among other things, fear of liability may cause professors and others without mental health expertise to overreact, which in turn could discourage students from coming forward with their problems.  It may also create chilling effects on professors willingness to provide feedback, or to cover certain topics in class. 

Although I have not done a full search on the question, I don’t remember every hearing of a case in which a court has held that an university has a legal duty to prevent student suicides.

Interestingly, even if the court were to recognize a cause of action, it would still have to address the issue of whether the conduct of the victim in deciding to commit suicide should be considered to be a superseding cause that defeats the cause of action.  

You can read more about the case here.

Do Texas mass shooting victims have a chance to support a cause of action?

In an interesting short article, Professor John Culhane, of the Family Health Law and Policy Institute at Widener University Delaware Law School, argues that the victims of the recent mass shooting in Texas have a good chance to win a claim against the federal government.  As discussed in other posts on the subject, the gun industry is well protected by statute, but in his article Prof. Culhane focuses on the possible liability for the Air Force’s "unexplained and appalling failure to enter the shooter’s domestic-violence conviction into a national database that would have prevented him from obtaining a firearm is actionable."  He discusses the applicability of the Federal Torts Claims Act to conclude that he thinks the case against the Air Force is strong. 

In addition, he argues that Congress should pass specific legislation entitling the victims to compensation outside of the judicial process because "the government almost surely was at fault." He argues that "[t]hat’s the easiest, and the fairest, thing to do in this case. Victims shouldn’t have to multiply their pain by slogging through what would surely be a painful case, leading to no certain outcome"

You can read the full article there.

Saturday, November 4, 2017

Court upholds the so-called "baseball rule" in case against New York Yankees; rules no liability for injury caused by foul ball

Not too long ago, I posted a story about a recently filed claim against the Chicago Cubs by a fan injured by a foul ball.  The claim will not be an easy one to support given the current law in Illinois but also the long standing trend in the rest of the United States.  This trend, which typically holds the defendants only have a limited duty to a relatively small number of spectators, was reaffirmed recently in New York in a case that had been filed against the New York Yankees.  In that case, a state appeals court in Manhattan ruled that the baseball team was not responsible for a fan's foul ball-related injuries at a 2011 game.  Bob Van Voris, a legal reporter for Bloomberg News, discusses the story here (8 minute audio). 

It sounds like the plaintiff will appeal the decision.  If he does, it is possible the state's highest court may reconsider the validity of the baseball rule.  Stay tuned.

Utah nurse who was unjustifiably arrested for refusing to comply with illegal order by police officer agrees to $500,000 settlement

You probably remember the story from a few months ago involving a police officer who arrested a nurse after she refused to draw blood from an unconscious patient because the police officer did not have a warrant.  The police officer arrested the nurse and placed her in a squad car for some time before releasing her.  A video of the incident went viral, and the story gained national attention.  Eventually, the police officer was fired.  Since then, the hospital changed its policies and no longer allows police officers access to patient care areas.

At the time, I remember thinking this seemed like an easy false imprisonment case.  And it now certainly looks like it was.  Just a couple of months removed from the incident, there is news that the nurse has agreed to a half a million dollar settlement.  

The ABA Journal has the story with links to more information.  Here is the original video:

Oklahoma Supreme Court declares med mal certificate requirement unconstitutional

The Oklahoma Supreme Court has ruled the state's med mal certificate of merit requirement unconstitutional calling it "a costly, meaningless and arbitrary barrier to court access".  This is the third time the court has rejected a certificate of merit requirement, striking down laws in 2006 and 2013. The TortsProf blog has a link to the story.

Medical malpractice legislation that requires claims to go through a panel of doctors declared unconstitutional in Kentucky

Earlier this year, the Kentucky legislature passed a law requiring med mal cases to go through a panel of doctors prior to going to trial.  A state judge ruled recently the law was unconstitutional and issued an order banning the state from enforcing it.  The state has announced it will appeal the ruling. The Torts Prof blog has a link to the story.

Tennessee Court of Appeals reverses summary judgment in case on whether suicide should be considered a superseding cause

Many jurisdictions, including Illinois, consider suicide a superseding cause that eliminates the plaintiff's ability to support a prima facie case for wrongful death.  I have always thought this is wrong because whether the act of committing suicide should be considered to be foreseeable depends on the circumstances.

For that reason, I am happy to see that at least one court has decided to follow what I think is the better approach to the issue.  Day on Torts is reporting that in a case called In re Estate of Cotten, decided last September, the Tennessee Court of Appeals decided that the trial court was wrong to grant summary judgment because the issue of foreseeability of the suicide was for the jury to decide.

In that case, the plaintiff alleged that the defendant was negligent when he showed the decedent a gun he had at home and failed to properly store the gun in order to prevent accessibility to the gun given that the defendant (who happened to be a psychiatrist) knew that the decedent had attempted suicide in the past, and that she was suffering from depression.  The defendant showed the gun to the decedent on the same day he decided to tell her he wanted to end their relationship, and she used the gun to end her life about two weeks later.

Given these circumstances, the Court concluded:
Based on Decedent’s history of depression and previous suicide attempt, coupled with the loss of custodial rights concerning her son and the termination of her relationship with [defendant], it was reasonably foreseeable that Decedent might inflict harm upon herself by utilizing the deadly weapon of which [defendant] made her aware. [Defendant’s] act of showing the firearm to Decedent and then returning it to an unsecured location within the home created an unreasonable risk of harm to Decedent. We further conclude that the degree of foreseeability of the risk and the gravity of the harm outweighed the burden that would be imposed if [defendant] had engaged in an alternative course of conduct that would have prevented the harm.
The court identified the question as an issue related to the element of duty, but it very well could have addressed it as an issue of superseding cause related to the element of proximate cause.  As we all learned from Cardozo and Andrews in Palsgraf, duty and proximate cause are two sides of the same coin.

On that issue, the court stated:
In this action, with regard to causation, we determine that reasonable minds could draw more than one conclusion regarding causation. …Prior cases establish that liability could exist when a defendant knew or should have known that the decedent presented a reasonably foreseeable risk of suicide, as demonstrated by evidence indicating that the decedent’s demeanor or actions should have raised concerns about her mental stability and that the defendant’s actions increased such risk. …We therefore determine that because a genuine issue of material fact exists regarding causation, summary judgment was improperly granted on the basis of lack of causation.
As I said, some jurisdictions often find that suicide is unforseeable per se; but the analysis applied by the court in this case is both more logical and more consistent with general principles of tort law.  I wish other jurisdictions would follow it. 

You can read more about the case in Day on Torts.

Tuesday, October 17, 2017

Injured Spectator vs The Chicago Cubs; Will This Be the Case That Establishes a New Rule?

Readers of this blog probably saw the news that a baseball fan has sued the Chicago Cubs seeking compensation for the loss of sight in his left eye after he was hit by a foul ball during a Cubs game earlier this year.  This question has been litigated many times in many jurisdictions and, as it stands right now, the law favors baseball stadium owners.

In most cases, the discussion of the courts has focused on either whether the defendants have a duty to the spectator or whether the spectator assumed the risk of injury by choosing to sit close to the field.  Often, whether the issue is defined as the former or the latter, court and commentary refer to the analysis as one involving "the baseball rule," which is really a reference to the result of the application of the analysis. The case against the Cubs is different, however, because in Illinois, there is a specific statute that limits the possible liability of baseball stadium owners. 

I wrote a short comment on this a few days ago in The John Marshall Law School Law Review blog.  You can read it here.

Friday, October 13, 2017

Lawsuit filed against manufacturers of "bump stocks" in response to Las Vegas shooting

The Torts Prof blog is reporting that witnesses to the mass shooting in Las Vegas have filed a would-be class action lawsuit against manufacturers of bump stocks, the device used by shooter Stephen Paddock to accelerate gunfire from his semi-automatic weapon.  Causes of action include negligence, infliction of emotional distress, products liability, and public nuisance.  The ABA Journal has more details.

Unfortunately, given the state of the law, the lawsuit is not likely to be successful.  Again, The ABA Journal has more information here.