All those attempts to get immunity for coronavirus related injuries are paying off now

About 200 lawsuits in nearly half the states have been filed against nursing homes, and many more are expected.  Patient advocates contend that some nursing homes were negligent in their handling of the virus, pointing to the industry’s documented history of problems with infection control. Unfortunately, the nursing home industry spent at least $4 million lobbying Congress and statehouses to grant expanded protections, arguing that they faced shortages of personal protective equipment and shifting guidance from the federal government on battling the virus.

This is a battle that we all saw coming a mile away.  Back in May of last year, I published a comment in which I argued that granting blanket immunity related to COVID-19 injuries is a bad idea and later, I published links to other articles (here, here, here, here, here and here).

Politico has the latest here.

ALI adopts Restatement Third on Intentional torts to persons

Last week, at the ALI's Annual Meeting, the membership approved the Restatement (Third) of Torts:  Intentional Torts to Persons.  The ALI's press release is here.

Parents of teen who committed suicide sue Snapchat and other "apps" developers

A few days ago I posted a news story about a decision against Snapchat.  Yesterday, I posted a story about a new decision involving a suicide.  Tragically, today's story combines both themes.

Law & Crime is reporting that the mother of a teenager who took his own life after months of online harassment is suing Snapchat and the makers of third-party anonymous messaging apps YOLO and LMK, alleging that the products violated consumer protection laws by failing to comply with their own terms of service that promise safeguards against cyberbullying.

You can read more on the story and the complaint itself here.

Court in Alabama holds suicide is not a superseding cause

In many other jurisdictions, a decedent's conduct in committing suicide is considered a superseding cause, presumably based on the notion that it is always unforeseeable that someone would commit suicide. 

But we all know that this statement is simply not true.  Depending on the circumstances, whether someone might commit suicide is as foreseeable as any other intervening event.  And, for that reason, it is not convincing to hold as a matter of law that suicide is always unforeseeable.  Yet, that is what many courts do.

I am writing about this today because I just read in Courthouse News that an appeals court in Alabama recently ruled that a man accused of sexually assaulting a college student who later killed herself can be sued for wrongful death, finding that suicide arising from an alleged sexual assault does not “absolve the alleged assailant of liability.”

The case is Rondini v. Bunn and you can read the decision here.

Federal judge orders NFL and players to mediation to address concern over racist methodology when calculating compensation for players - UPDATED

March 13, 2021

There are some good news and some bad news related to the lawsuit against the NFL seeking compensation for players related to concussions and other injuries.  

The good news is that the judge overseeing the litigation has ordered the parties to revise the compensation methodology to address serious concerns over "race norming" which results in lower compensation for black athletes.  The judge stated that “the Court . . . remains concerned” about the race-based formula used to measure cognitive impairment to determine eligibility for compensation.

The bad news is that the judge took the issue out of the courtroom and sent it to mediation.  As stated by the lawyer who represents some of the retired players, this means that the court's proposed solution is to order the very parties who created the discriminatory system to negotiate a fix while apparently excluding  some of the players affected by it.  

As you may know, the NFL had agreed to a settlement with retired players, but at some point later several players filed a lawsuit attacking the terms of the settlement, at least in part based on allegations of "race norming" in the process used to determine the proper compensation for players.  It is this lawsuit that the federal judge dismissed as “an improper attack on the Settlement Agreement.” 

You can read more about the story here and here.

The Nation has a good short op-ed piece on the topic here, which explains how the notion of "race norming" has changed over time.

In this story from ABC news you can also access a 11 minute video from the TV show Nightline.

 

Here is the key part of the story:

At the crux of the controversy is the fact that the NFL's concussion settlement program manual recommends the use of a "full demographic correction," in which a player's cognitive test scores are compared to average scores, or "norms," for similar demographic groups, and then adjusted to account for expected differences in age, gender, education -- and race. 

The practice of adjusting test scores for race, widely known as "race-norming," is in use across several different medical fields as a supposed safeguard against misdiagnosis. But because these "norms," as used in a neuropsychology context, assume that the average Black player starts at a lower level of cognitive functioning than the average white player at the outset of their careers, Black players need to show larger cognitive declines than white players to qualify for compensation. 

. . . . 

In response to questions from ABC News, an NFL spokesperson issued a statement in February saying that . . . "[t]he settlement seeks to provide accurate examinations to retired players," . . ."and thus permits, but does not require, independent clinicians to consider race in adjusting retired players' test scores as they would in their typical practice." 

But in email correspondence obtained by ABC News, those same clinicians appear to disagree. One bemoaned their possible complicity in a system that perpetuated "racial inequity" in payouts. 

 . . . . 

"Bottom line is that the norms do discriminate against Black players," [one] clinician wrote. "So now what? In this time of reckoning, like many professions, I think we need to look closely at the expected and unexpected ramifications of our practices." 

 And a dataset shared exclusively with ABC News suggests that race-based adjustments could have a significant impact on payouts. 

 At the request of an attorney who represents several former NFL players, a neuropsychologist who has evaluated former NFL players under the concussion settlement program recently rescored the results of cognitive tests from a group of 94 Black former players. . . . When the clinician interpreted the test scores as if those former players had been white, 34 of them met the criteria to receive payouts through the program. When the clinician applied the recommended demographic correction to those same scores, however, only 10 of those same players qualified.

 

UPDATE May 17, 2021:  Courthouse News has a new story on this topic here.

UPDATE October 21, 2021:  NFL changes its position on race norming

Justice Clarence Thomas again affirms the Court should get rid of the Feres doctrine

In Feres v US, the US Supreme Court expanded the interpretation of one of the exception to the Federal Torts Claims Act resulting in a ban on any claim for any injury suffered while the plaintiff is in military service (active or otherwise).  This has resulted in findings that members of the military can't sue for injuries caused by medical personnel, for example. The debate over whether the Feres Doctrine should be abandoned has raged ever since.  For all the stories I have published over the years on the Feres Doctrine, go here.)

Recently, Justice Thomas has repeatedly argued that Feres should be overruled.  He did so in 2019 in a dissent from a cert petition (see here); and he did so again earlier this month.  

In yet another dissent from a cert petition Justice Thomas argued should have agreed to hear the appeal of a West Point cadet who sued claiming she was raped by another cadet.  

Justice Thomas opined that Feres v. United States was wrongly decided because the decision was not based on the wording of the Federal Tort Claims Act.  The exception in the Act was meant to protect the government from suits “arising out of … combatant activities … during time of war” but Feres extended that notion by recognizing immunity from suits in any way incident to military service.

The case is called Doe v. United States and you can read Justice Thomas' opinion here.

Court of Appeals for the 9th Circuit recognizes cause of action against Snapchat

A three-judge panel of the 9th U.S. Circuit Court of Appeals recently decided that the parents of a teenager killed in a traffic accident can sue Snapchat based on the argument that Snapchat's speed filter entices young people to drive at astounding speeds.

The decedent and two other teenagers were driving at over 120 miles an hour and wanted to capture the experience using an app feature called "speed filter" which documents real-life speed.  After one of them opened and started using the app, the driver lost control of the car and hit a tree.  All three died in the crash.

This type of allegation is not new.  It was the same type of allegation used in cases involving people playing "Pokemon Go" (remember that craze?). I posted a podcast on those claims back in 2016 here.

Other cases have found against the sender of a text which distracts a driver.  For example, see here, and here.

So, the plaintiffs' argument that the app "entices" young people to do stupid or dangerous things is not new; but it is not an easy one.  First of all, there is the issue of whether the conduct of one of the kids should be considered a superseding intervening cause.  Was the goal of the joy ride to use the app?  Or did they decide to use it after they were already driving fast?

Also, and even more problematic for the plaintiffs is the issue of comparative negligence, or assumption of the risk (if the jurisdiction still recognizes it as a defense).  If the jurisdiction is a modified comparative negligence jurisdiction, the defendants will argue that the plaintiffs' negligence should defeat the cause of action. 

What is most interesting about this case is that the plaintiffs argued the case as a products liability case while the defendant tried to defend the case by arguing it is protected from liability by the Communications Decency Act.

According to Courthouse News, the Ninth Circuit’s rejection of the defendant's attempt to hide behind the Communications Decency Act is the second opinion by an appellate court.  The other one was the Georgia Court of Appeals which rejected virtually identical arguments made by Snap in another Speed Filter case.  NPR has more on the case here.

The case is called Lemmon v. Snap, Inc, and you can read the opinion here.

California Appellate Court finds that Amazon can be liable in products liability for products sold by other vendors through Amazon

Last year I reported on a recently decided case in California finding that Amazon.com could be liable for products liability.  See here.  Earlier this year, I reported that the Texas Supreme Court heard oral arguments on a similar case.  See here.

Today, I am reporting that an appellate court in California recently decided that Amazon can be held liable for injuries caused by product bought from independent third party sellers through Amazon.  The case is called Loomis v. Amazon.com, and you can read the opinion here.

In Loomis, the plaintiff bought a product from a manufacturer who paid Amazon a "subscription" to sell products in Amazon and a small fee (15% of the sale price).  Amazon argued that it should not be liable to the consumer because it operates only as a marketplace, not as a seller in the chain of commerce.  The court didn't buy it (excuse the pun!).

The court found that Amazon operated as a seller, or at least a distributor in the chain of commerce, rather than as a neutral "mall".  Amazon handled all product advertising, payment processing, and communication between Loomis and the manufacturer, which was not allowed to speak with her directly.  Also, Amazon may be the only member of the distribution chain reasonably available for an injured consumer to recover damages.

Short article on the dangers of driverless cars

 The National Law Review has published a short comment on "the dangers of driverless cars."  You can read it here.