Missouri getting ready to abolish collateral source rule

Bad news for victims in Missouri.  TortsProf blog is reporting that the Missouri House passed a bill abolishing the collateral source rule.  A version of the bill has already passed the Missouri Senate.  The Missouri Times has details.

The collateral source rule is an old doctrine, which at one point applied pretty much everywhere, that prevented courts from taking into account any amount of money the plaintiff receives from a source other than a defendant when determining the amount of compensation in a lawsuit.  Over time, with the backing of tort reformers, some jurisdictions have abolished the doctrine based on the phony argument that it allows the plaintiff to get unjustly enriched.  The argument is that because of the doctrine the plaintiff can get paid by the plaintiff's insurance and then on top of that gets paid again by the defendant.

The argument is phony because the payment by the insurance company comes after the plaintiff has been paying the insurance premiums for however long the plaintiff had the insurance.  So eliminating the doctrine actually penalizes the plaintiff for having gotten insurance to begin with.  

Arkansans to vote on possible med mal reform: limits to punitive damages and limits on fees

TortsProf blog is reporting that the Arkansas' attorney general recently approved the wording of a proposed ballot item to amend the constitution that would instruct the state's legislature to set a cap on punitive damages in med mal cases at no less than $250,000, to be adjusted for inflation every 2 years. 

Long time readers of this blog know I am opposed to caps in general, and caps on punitives in particular make little sense to me.  Punitive damages are meant to be used as a strong deterrent for particularly bad conduct.  The imposition of punitive damages is actually very rare, but when used by juries they are used to send a clear message.  They are also meant to be punitive.  They are supposed to hurt.  These goals are best met if punitives are unpredictable.  Once the defendants know what they punitives are likely to be, they can start calculating the risk and using a formula to count them as a cost of doing business. I am not sure what the wording at issue here is going to be or the final effect, but if it results in making the possible amounts imposed as punitives predictable then I'd say it is a bad idea.

Another aspect of the ballot item is to limit how much plaintiffs attorneys can charge their clients.  This, as usual, is an attempt to make it more difficult for victims to find legal representation, which will in turn benefit those who caused the injuries.  Reportedly, the new measure will ban lawyers from charging more than one-third as a contingency fee.  This does not sound like much but it can make a difference in some cases.

With the approval, the sponsor can begin gathering the 84,859 signatures needed to place the proposal on the November ballot. 

Colorado Supreme Court has held that attorneys do not owe any duties to non-clients

The Colorado Supreme Court held attorneys owe no duties to non-clients, such as the beneficiaries of a will, absent allegations of fraud, a malicious or tortious act, like negligent misrepresentation.

You can read more about the decision here and here.

The ruling goes against the view expressed in the Restatement of the Law Governing Lawyers (Sec 51), followed in several states, which recognizes duties to third parties (non-clients) in several circumstances.

Utah Supreme Court Holds Children Under the Age of Five Cannot Be Liable for Negligence

The Utah Supreme Court recently adopted a bright-line cutoff for liability for negligent children, setting the limit at 5 years old.  The case involved a 4 year old who threw a rubber dolphin at his babysitter.  Unfortunately, the dolphin hit the babysitter in the eye.  She had just had a cornea transplant and the accident blinded her.  The Volokh Conspiracy has the story.

Setting an age limit is not that unusual, but the age itself varies among states.  I have read somewhere that the more common age is 7, but I have not done the research to confirm it.  The Restatement (Third) of Torts suggests the age of 5, which is one of the reasons the Utah Supreme Court chose it.

One interesting thing about age cut offs is that the most famous case regarding intent (as an element for intentional torts) involved a 5 year old.  Remember  Garratt v. Dailey?  I am sure you read it in law school.  It's the case case about the 5 year old who pulls a chair out from under a woman who was about to sit down on it. 

Thanks to TortsProf for the information.

Article on Prosser's letters

Back in 2009, I posted a link to an article by Professor Chris Robinette (Widener) on the "Prosser Notebook" - a notebook of one of Prosser's students at the University of Minnesota in 1938.  See here and here.

Chris has now published another article on Prosser's letters which is now available here.  It contains material from an unpublished dissertation on Prosser's father, who played a crucial role in the development of vocational education, and materials from the Harvard archives.

Thanks to Chris for the link.