tag:blogger.com,1999:blog-47637427936699172332024-02-26T15:01:49.940-06:00Torts BlogProfessor Alberto Bernabe - The University of Illinois-Chicago School of LawProfessor Alberto Bernabehttp://www.blogger.com/profile/05249350712732072457noreply@blogger.comBlogger2054125tag:blogger.com,1999:blog-4763742793669917233.post-6833385673505796292024-02-25T16:34:00.005-06:002024-02-26T15:01:03.396-06:00More commentary on the Alabama decision on wrongful death of frozen embryos<p> A few days ago I posted my comments on the Alabama case deciding a plaintiff could support a claim under the state's wrongful death act based on the destruction of frozen embryos. <a href="https://bernabetorts.blogspot.com/2024/02/more-on-consequences-of-alabama-case.html">See here</a>.</p><p>If you have been following the news, you know the case has attracted a lot of attention and I have not been able to keep up with all of it, but I will post a few stories, and let you google (now a verb) the rest.</p><p><a href="https://www.americanlegalblogger.com/2024/02/frozen-embryos-now-considered-children-unpacking-the-alabama-supreme-court-decision-and-the-future-of-fertility-care/">Frozen Embryos Now Considered Children: Unpacking the Alabama Supreme Court Decision and the Future of Fertility Care</a> (Lex Blog)</p><p><a href="https://www.msnbc.com/opinion/msnbc-opinion/alabama-ivf-supreme-court-consequences-rcna140004">The massive legal fallout from Alabama’s IVF ruling is just the beginning</a> (MSNBC)</p><p><a href="https://www.npr.org/2024/02/22/1233217698/uncertainty-looms-after-alabamas-ivf-court-ruling">Uncertainty looms after Alabama's IVF court ruling</a> (NPR Audio)</p><p><a href="https://www.politico.com/news/2024/02/22/two-clinics-in-alabama-follow-suit-pausing-ivf-treatments-after-the-court-ruled-embryos-are-children-00142742">Two more clinics in Alabama pausing IVF treatments after court ruling</a> (Politico)</p><p><a href="https://omny.fm/shows/bloomberg-law/ivf-threatened-by-unprecedented-alabama-decision">IVF Threatened by Unprecedented Alabama Decision</a> (Bloomberg Law podcast)</p><p><a href="https://www.msnbc.com/opinion/msnbc-opinion/ivf-alabama-supreme-court-pro-life-rcna140037">My eldest daughter was born through IVF. Here’s what ‘pro-life’ conservatives don’t understand</a> (MSNBC)</p><p><a href="https://www.thenation.com/article/society/alabama-ivf-ruling/">Alabama’s IVF Ruling Is Christian Theology Masquerading as Law</a> (The Nation)</p><p><a href="https://www.npr.org/sections/health-shots/2024/02/23/1233023637/ivf-alabama-frozen-embryo-personhood-abortion-supreme-court">The science of IVF: What to know about Alabama's 'extrauterine children' ruling</a> (NPR Audio)</p><p><a href="https://www.npr.org/2024/02/25/1233771248/what-the-alabama-ivf-ruling-means-for-parents-going-through-ivf">What the Alabama IVF ruling means for parents going through IVF</a> (NPR Audio)</p><p><a href="https://www.nytimes.com/2024/02/26/podcasts/the-daily/alabama-embryo-ivf.html">The Alabama Ruling That Could Stop Families From Having Kid</a> (NY Times Audio)</p><p><br /></p>Professor Alberto Bernabehttp://www.blogger.com/profile/05249350712732072457noreply@blogger.com0tag:blogger.com,1999:blog-4763742793669917233.post-81824863857043841362024-02-21T20:13:00.009-06:002024-02-22T01:35:02.088-06:00More on the consequences of the Alabama case holding that embryos are "children" for purposes of a wrongful death case<p> Yesterday I posted <a href="https://bernabetorts.blogspot.com/2024/02/alabama-supreme-court-rules-frozen.html">a comment</a> about a recent case in Alabama holding that plaintiffs had a valid cause of action for wrongful death based on the accidental destruction of frozen embryos. I updated that post soon after I posted it, so if you read it immediately after it was picked up in your news aggregator you may want to go back to read it again because I added a quote from an article by someone else that had some good analysis.</p><p>The other part of the equation is the discussion of the possible consequences of the decision for issues outside of the litigation and outside of tort law in general. That discussion picked up quite a bit today in the news. Some of those consequences are already coming true: The University of Alabama has terminated providing IVF care! The University Hospital is a huge public facility so this decision will affect a lot of patients. The hospital said they would continue to extract eggs, but they would not fertilize them.</p><p> Here are a few links to articles on the subject. </p><p><a href="https://www.theguardian.com/us-news/2024/feb/21/alabama-ivf-embryo-extrauterine-children-ruling">The Guardian</a>: "Alabama’s supreme court ruled embryos are ‘extrauterine children’. IVF patients are worried"</p><p><a href="https://www.msnbc.com/opinion/msnbc-opinion/alabama-ivf-embryo-ruling-trump-rcna139649">MSNBC</a>: Alabama’s embryos ruling is a terrifying preview of another Trump presidency [this link lead to a page that has a video on top; the video is not related to the story; read the article below the video]</p><p><a href="https://www.npr.org/2024/02/21/1232827220/alabamas-high-court-rules-frozen-embryos-are-children-under-state-law">NPR (3 minute audio</a>): Alabama's largest hospital says it is halting IVF treatments in wake of court ruling</p><p><a href="https://www.theguardian.com/us-news/2024/feb/21/university-alabama-ivf-embryo-care-paused-supreme-court-ruling">The Guardian</a>: Alabama university pauses IVF care after frozen embryos deemed ‘children’</p><p><a href="https://www.politico.com/news/2024/02/21/embryos-children-uab-alabama-00142508">Politico</a>: Major Alabama hospital stops IVF treatment after court rules embryos are children</p><p><a href="https://www.npr.org/2024/02/21/1232998693/university-of-alabama-in-birmingham-pauses-ivf-procedures-due-to-embryo-ruling">NPR (3 minute audio</a>): University of Alabama in Birmingham pauses IVF procedures due to embryo ruling</p><p><a href="https://thehill.com/newsletters/health-care/4481837-alabama-hospitals-halt-ivf-after-ruling/">The Hill</a>: Alabama hospitals halt IVF after ruling</p><p><a href="https://thehill.com/policy/healthcare/4481856-how-alabamas-frozen-embryo-decision-is-shaking-the-nation-what-you-need-to-know/">The Hill</a>: How Alabama’s frozen embryo decision is shaking the nation: What you need to know</p><p><a href="https://www.politico.com/news/2024/02/21/alabama-ivf-abortion-00142536">Politico</a>: ‘Another hot potato’: Alabama’s IVF ruling risks political, legal backlash</p><p>Alex Wagner Tonight (<a href="https://www.msnbc.com/alex-wagner-tonight/watch/ivf-in-red-states-under-threat-as-alabama-supreme-court-says-embryos-are-children-204679237699">video segment</a>)</p>Professor Alberto Bernabehttp://www.blogger.com/profile/05249350712732072457noreply@blogger.com0tag:blogger.com,1999:blog-4763742793669917233.post-50231587942960262532024-02-20T20:35:00.009-06:002024-02-21T00:45:27.733-06:00Alabama Supreme Court rules frozen embryos are ‘children’ for purposes of the state's wrongful death statutes -- UPDATED<p>As you probably have heard by now, the Alabama Supreme Court recently ruled that a group of in vitro fertilization (IVF) patients could sue for wrongful death because their frozen embryos were destroyed while in the defendant's facility. </p><p>The decision has gathered a lot of attention (see links below) and it does have significant consequences, but there are a couple of things that the coverage is not mentioning. First, the decision is not unprecedented and, in Alabama's case, it is not that surprising since the state's supreme court had already decided (years ago) to recognize a wrongful death claim for the death of a fetus.</p><p>Typically, wrongful death statutes state the circumstances under which survivors of "a person" who dies because of someone's negligence can recover. And, typically, that language ("a person") is subject to interpretation. Some statutes provide a definition, while in other states courts have had to interpret the meaning of the words or to decipher the intent of the legislature. </p><p>On the issue of who should be considered a person, jurisdictions fall into one of three categories: (1) those that define a person as someone who is born alive (which requires evidence of a live birth before the death for which the wrongful death suit is brought; (2) those who consider life to begin at conception (Illinois uses this approach in its statute) and (3) those who "compromise" by holding that "personhood" starts at the point of "viability" (usually defined as the point in time when the fetus could survive independently of the mother).</p><p>Back in 2011 or 2012, Alabama decided a case adopting the view that life begins at conception. In that case, the court held that it would be an "unfair and arbitrary endeavor to draw a line that allows recovery on behalf of a fetus injured before viability that dies after achieving viability but that prevents recovery on behalf of a fetus injured that, as a result of those injuries, does not survive to viability." I wrote about that case <a href="https://bernabetorts.blogspot.com/2012/02/alabama-supreme-court-recognizes.html">here</a>. Alabama then <a href="https://bernabetorts.blogspot.com/2017/01/alabama-supreme-court-reaffirms-ruling.html">reaffirmed its decision</a> in 2017. </p><p>And Alabama is not alone in considering this question. I do not remember how these cases were ultimately decided but I know the question was litigated in <a href="https://bernabetorts.blogspot.com/2012/11/wrongful-death-of-fetus.html">Nebraska</a>. Also, in 2013 trial court in <a href="https://bernabetorts.blogspot.com/2013/01/colorado-courts-may-be-next-to-decide.html">Colorado</a> dismissed a wrongful death claim for the death of a fetus, and the state's supreme court <a href="https://bernabetorts.blogspot.com/2013/04/colorado-supreme-court-refuses-to.html">denied review</a>. (the links are to my posts at the time the cases were reported).</p><p>I wrote a short comment on the issue back in 2015 <a href="https://bernabetorts.blogspot.com/2015/04/on-fetal-homicide-and-pre-natal-torts.html">here</a> and again in 2021 <a href="https://bernabetorts.blogspot.com/2021/05/trial-related-to-destroyed-frozen.html">here</a>.</p><p>One can say that once the court took the position that there is a right to a wrongful death claim for the death of an unviable fetus, the view of the court is that life begins at conception. But then the question becomes what constitutes "conception"? And that is where the question of the distinction between a fetus, a fertilized egg, a frozen embryo and an implanted embryo becomes important. I have not seen commentary about that, other than in a short article <a href="https://abovethelaw.com/2024/02/alabama-declares-frozen-embryos-are-children-creating-nightmare-rule-against-perpetuities-hypo/">here</a>. This is the only comment I have seen that makes the important distinction between cases that involve recognizing a cause of action for the wrongful death of a fetus and the recent case related to an frozen embryo:</p><p></p><blockquote><p>Embryos don’t just automatically turn into kids. IVF families can go through multiple implants in an effort to get a child. And for this reason, clinics try to successfully fertilize a number of eggs in case of failure. That creates a bunch of embryos that won’t end up being implanted and that probably wouldn’t result in a child even if they were. Without the freedom to get rid of those cells after the fact, IVF is an untenable industry.</p><p>This case, by itself, doesn’t get that far. Families who consent to ending the process aren’t going to sue. But the court didn’t limit itself to giving the plaintiffs a cause of action, and instead went on a tear laying the groundwork to expand the state’s criminal laws to not only shut down IVF, but to greenlight the next prosecutor who wants to charge women with murder for having a miscarriage.</p></blockquote><p>You can read the Alabama Court's opinion <a href="https://publicportal-api.alappeals.gov/courts/68f021c4-6a44-4735-9a76-5360b2e8af13/cms/case/343D203A-B13D-463A-8176-C46E3AE4F695/docketentrydocuments/E3D95592-3CBE-4384-AFA6-063D4595AA1D">here</a>. To read more commentary about the decision, you can go to the links below. </p><p><a href="https://thehill.com/homenews/state-watch/4477607-alabama-supreme-court-rules-frozen-embryos-are-children/">The Hill</a></p><p><a href="https://www.msnbc.com/rachel-maddow-show/maddowblog/alabama-supreme-courts-ruling-embryos-matters-rcna139541">Why the Alabama Supreme Court’s ruling on embryos matters</a></p><p><a href="https://www.npr.org/2024/02/20/1232769560/an-alabama-supreme-court-ruling-may-have-wider-implications-for-people-seeking-i">NPR</a> (4 minute audio)</p><p><a href="https://www.politico.com/news/2024/02/20/alabama-supreme-court-embryos-ivf-00142338">Politico</a></p><p><a href="https://www.npr.org/2024/02/20/1232815486/alabama-supreme-court-frozen-embryos">NPR</a></p><p><a href="https://www.courthousenews.com/alabama-supreme-court-rules-frozen-embryos-are-children-under-state-law/">Courthouse News Service</a></p><p><br /></p><p><br /></p>Professor Alberto Bernabehttp://www.blogger.com/profile/05249350712732072457noreply@blogger.com0tag:blogger.com,1999:blog-4763742793669917233.post-41123947332632508792024-02-03T13:10:00.005-06:002024-02-03T13:10:54.385-06:00Follow up on the possible criminal liability of a parent <p> A few days ago I posted <a href="https://bernabetorts.blogspot.com/2024/01/news-reports-that-case-in-michigan-will.html">a comment</a> on the ongoing prosecution of the mother of a child who engaged in a mass shooting at a school. The case is a criminal prosecution but some of the issues are similar and relevant for tort law because they involve the possibility of imposing vicarious liability (which is not what is being charged) and the underlying issue of causation (which is very much at issue in the case). </p><p>I am following up on this today because Joseph Margulies. a Professor of Government at Cornell University, recently published <a href="https://verdict.justia.com/2024/02/02/tragedy-foresight-and-the-carceral-state">a comment</a> on these issues over at Justicia. In it he points out, correctly, that one important issue in the case (as in a torts case) is the question of proximate cause and, although he does not mention it by name, the question of duty. And, in the end, he questions whether it would be a good idea to impose a duty on parents that could result in criminal liability under the circumstances of the case. The comment is short and you can read it <a href="https://verdict.justia.com/2024/02/02/tragedy-foresight-and-the-carceral-state">here</a>. </p>Professor Alberto Bernabehttp://www.blogger.com/profile/05249350712732072457noreply@blogger.com0tag:blogger.com,1999:blog-4763742793669917233.post-53809310977597468982024-01-26T15:24:00.005-06:002024-01-26T15:28:00.516-06:00News reports that a case in Michigan will decide if parents can be criminally responsible for a child's actions are wrong<p> If you have been paying attention to the news, you may have heard that a criminal case is just underway in Michigan in which the mother of a child who killed a number students in a school shooting spree is on trial for involuntary manslaughter. And, you may have noticed that an often repeated version of the story is that the case is about whether parents can be held responsible for the conduct of their child.</p><p>This formulation of the issue is wrong. </p><p>The parents are not on trial for the conduct of their child. That would mean that the state is looking to convict them based on vicarious liability. Instead, the parents are on trial for their own conduct, which led to and resulted in the conduct of the child. That's very different. In other words, the parents are being tried for direct (as opposed to vicarious) liability. They are not facing convictions "for the conduct of their child"; they are facing conviction <i>for their own</i> conduct.</p><p>Now, before we go any further, let's remember that this case is a criminal case, not a torts case. But the implications of the possible liability of a parent for the results of the conduct of a child are obviously important for tort law.</p><p>In torts, parents are typically not held vicariously liable for the conduct of their children. But they can be held liable for their own conduct if their conduct is a cause that leads to the injury of the plaintiff. Thus, the principle at issue is the same. </p><p>However, making the case for tort liability is easier. There seems to be pretty solid support for the arguments of all the elements of the cause of action, including proximate cause since it is relatively easy to argue that the injury was a foreseeable consequence of the negligent conduct, which included giving the child a gun knowing the child was mentally unstable. Of course, the defendant will argue that the conduct of the child was a superseding cause, but the argument will come down to whether the child's conduct was unforeseeable, and there is good support to defeat that argument.</p><p>BUT back to the actual case in Michigan, what is different is that for criminal liability, the conduct in question must have been defined as a crime by the penal law. And that is the issue in the criminal case. The state is trying to extend the definition of manslaughter to include the conduct of the parents which allegedly "facilitated" the manslaughter committed by the child. This creates the confusion. Rather than charge the parents for the "facilitation" of the crime, or with a crime like "reckless endangerment" or aiding and abetting or something like that, the state is charging the parents with the actual manslaughter. </p><p>Whether that is the proper charge given the evidence is a matter of criminal law about which I am not an expert. But the issue was argued before the court. The court held against the parents, and was affirmed by two higher courts on appeal. Here is the decision of the Michigan Court of Appeals which holds that the lower court did not abuse its discretion in finding The district court did not abuse its discretion in determining that the child's decision to shoot four classmates was not a superseding cause because it was foreseeable.</p><p>Interestingly, take a look at the finding of the trial court on the issue, which if you did not know otherwise you would think was taken from a torts case (other than the reference to "as alleged by the People"):</p><p></p><blockquote>The Court concludes that sufficient evidence has been presented to allow a reasonable juror to find factual causation and to allow a reasonable juror to conclude that the deaths of the victims were a direct and natural result of the Defendants’ gross negligence. The Court further concludes that the criminal misconduct of the Defendants’ son was an intervening cause but that a reasonable juror could conclude that his actions were reasonably foreseeable. Therefore, the causal link between Defendants’ actions and their liability for the deaths of the victims, as alleged by the People, is not severed by the actions of their son. A reasonable juror could conclude that the action of the Defendants’ son was a related link in the causal chain. </blockquote><p></p><p>According to the news, the case is the first instance in which a parent is charged (for her own conduct) with the crime that corresponds to the conduct of the child. Not too long ago, the mother of a 6-year-old who shot a teacher was tried in relation to the incident, but she was tried (and convicted) of child neglect, not with the crime that would correspond to the conduct of the child -- which is what the prosecutors are trying to do in Michigan.</p><p>The case is clearly an attempt to send a message and put pressure on parents to take better care or control of a child when there are signs that the child needs it. This may start a trend in prosecutions and it may influence how courts deal with similar issues in torts cases. </p><p>You can read coverage about the case here:</p><p><a href="https://www.npr.org/2024/01/23/1226251779/mich-case-to-decide-if-parents-can-be-criminally-responsible-for-a-childs-action">NPR</a> (audio)</p><p><a href="https://thehill.com/regulation/court-battles/4423765-michigan-school-shooters-mother-stand-trial/">The Hill</a> (includes video)</p><p><a href="https://thehill.com/homenews/4428930-prosecutor-tells-jury-that-mother-of-michigan-school-shooter-is-at-fault-for-4-student-deaths/">The Hill</a> (includes video of the opening statements)</p><p><br /></p>Professor Alberto Bernabehttp://www.blogger.com/profile/05249350712732072457noreply@blogger.com0tag:blogger.com,1999:blog-4763742793669917233.post-13477035366977739332024-01-22T20:55:00.002-06:002024-01-23T11:12:34.462-06:00Camp Lejeune Plaintiffs Seek Partial Summary Judgment on Issue of Cause in Fact<p> AboutLawsuits is reporting that the Plaintiffs pursuing Camp Lejeune injury lawsuits have filed a motion for partial summary judgment in the litigation, asking the U.S. District Judges presiding over the cases to hold that, instead of having to prove actual contact with toxic materials, each plaintiff would only be required to prove that they were on the North Carolina military base for 30 days during the period of time that contaminants were in the water. You can <a href="https://www.aboutlawsuits.com/camp-lejeune-plaintiffs-judgment-causation/">read the full story here</a>.</p>Professor Alberto Bernabehttp://www.blogger.com/profile/05249350712732072457noreply@blogger.com0tag:blogger.com,1999:blog-4763742793669917233.post-17472891326684756382024-01-21T08:00:00.000-06:002024-01-21T08:00:00.303-06:00Comment on the recent case on whether a suicide is an unforeseeable intervening event<p> A few days ago I reported (<a href="https://bernabetorts.blogspot.com/2024/01/il-appellate-court-holds-that-mental.html">here</a>) that the Illinois Appellate Court recently decided a case on whether a decedent’s conduct in committing suicide constitutes a superseding cause that defeats a plaintiff’s cause of action for wrongful death. The case is called <i>O’Donnell v. Bailey & Associates Counseling</i>. </p><p>I mentioned that I was interested in the subject because Illinois is one of those states that has decided in the past that a suicide is an unforeseeable, and therefore superseding, intervening cause “as a matter of law.” I finally had a chance to read the opinion, and, oh my! What a mess!</p><p>If you want a course on how to make something much more difficult and confusing than it needs to be read this case and, more importantly, the state supreme court's cases it cites. By working through a word salad based on statements about “general rules” that apply “as a matter of law” but that end up having exceptions, which means they should not always apply a matter of law, and ignoring basic rules of tort law, in the end the court manages to decide the case by going against the language of precedent cases, while stating that it is following precedent, which is actually correct, because the precedent cases do not say what the court has been saying they said since they were decided. </p><p>Did you get all that? Let’s see if we can figure it out. And let’s start at the very beginning.</p><p>As you probably know, the prevailing approach to the issue of proximate cause is the so-called scope of the risk analysis (adopted by the Restatement) the main ingredient of which is the notion of foreseeability. According to this analysis, a defendant’s conduct is a proximate cause of the injury if the injury is a foreseeable consequence of the risk created by the negligent conduct. But you also probably know that this long version of the analysis is usually shortened to simply asking whether the injury is foreseeable. If the plaintiff can convince that the injury is foreseeable given the conduct of the defendant, the plaintiff will meet the element of proximate cause.</p><p>Now, the defendant, of course, can then argue that the injury is not foreseeable and one way to do that is to argue that an intervening event which was not foreseeable interrupted, and broke, the chain of causation. Thus, if the defendant can convince that the intervening event was not foreseeable, the defendant will be able to say that the plaintiff can’t establish the element of proximate cause.</p><p>This is the basic tort law principle at issue in suicide cases. In an attempt to defeat the plaintiff’s prima facie case, the defendant will always argue that the conduct of the decedent, ie, committing suicide, was unforeseeable. </p><p>Now here is where things start to get complicated. Usually, what is or is not foreseeable is a matter of fact to be decided by the jury, but a number of jurisdictions have held that a suicide is unforeseeable “as a matter of law.” </p><p>This conclusion is based on the notion that committing suicide goes so against human nature that it is inconceivable that someone would decide to do so and therefore it should always be thought of as unforeseeable. The problem with this is that this view is not realistic. Suicide is common. In fact, it is one of the top leading causes of death among juveniles in the US. And, if you take into account mental health issues, and known medication side effects, it is unrealistic to say that suicide is necessarily unforeseeable. In many cases, it can fairly be argued (and proven) that it was totally foreseeable.</p><p>Now let’s talk about the state of the law in Illinois. </p><p>In Illinois, the Supreme Court decided long ago that a suicide is unforeseeable “as a matter of law.” Yet, in 2015, it decided a case called <i>Turcios v. DeBruler Co</i>. in which, probably without realizing it, the court twisted the analysis into such a pretzel that it ended up exactly where it said it wouldn’t. I wrote about this back when the case was decided and you can read my comment <a href="https://bernabetorts.blogspot.com/2015/05/illinois-supreme-court-holds-proximate.html">here</a>, but let me repeat the basics.</p><p>In <i>Turcios</i>, the court reiterated its precedent position that a suicide is unforeseeable as a matter of law, but then referred to that position as “the general rule” and recognized the possibility that a plaintiff could support a claim if the plaintiff could “plead facts demonstrating that the suicide was foreseeable, i.e., that it was a likely result of the defendant’s conduct.”</p><p>Hmm. Does that sound familiar? If not, go up an re-read the paragraphs where I explain the basic tort law principle of proximate cause. </p><p>What does this mean? It means that in 2015, the court, for all practical purposes abandoned the position that a suicide is unforeseeable as a matter of law and changed its approach to asking whether the suicide is foreseeable and (as always) putting the burden of proof of the plaintiff to argue <i>facts</i> to support the <i>argument</i> that the suicide was foreseeable. </p><p>And what is that if not simply saying what we know from Torts 101: that knowing the defendant will argue that the intervening event (the suicide) was unforeseeable, the plaintiff will have to argue and prove that the intervening event was foreseeable. </p><p>Given this decision, it makes no sense to continue to say that a suicide is unforeseeable as a matter of law. But the court keeps doing it; and tries to make sense of it by claiming that that is “the general rule” but that there are exceptions to the general rule. That contradicts its decisions, and more importantly, its logic. It makes no sense.</p><p>Enter the new case, decided just a few days ago, which makes everything even more confusing but oddly reaches the correct result.</p><p>In this case, the Appellate Court discusses the possibility of imposing liability on a medical professional for alleged negligent conduct toward an outpatient who later committed suicide. The plaintiffs, as you would expect, argued that the defendant’s conduct resulted in the decedent’s death and the defendant argued that the act of committing suicide was an unforeseeable and, therefore, superseding cause. </p><p>Following precedent, the lower court dismissed the claim holding that the suicide was unforeseeable as a matter of law. But the Appellate Court then reversed, once again contradicting the supposed precedent - but which makes sense now that we understand that precedent was abandoned (only the Supreme Court did not really say so when it happened).</p><p>This result, on the one hand, add to the confusion about the issue. Yet, on the other hand, the good news is that the Appellate Court actually used the correct analysis and reached the correct result. It found that a suicide is not necessarily unforeseeable as a matter of law and, refuting an argument by the defendant, that it does not matter whether the decedent was a patient or an outpatient. </p><p>Citing approvingly a number of decisions from other jurisdictions, the court agreed with one of them in that “[i]f those who are caring for and treating mentally disturbed patients know of facts from which they could reasonably conclude that the patients would be likely to inflict harm on themselves in the absence of preventative measures, then those caretakers must use reasonable care under the circumstances to prevent such harm from occurring.” </p><p>However, the full analysis should be much more simple than the explanation given by the court (and the Supreme Court’s precedent cases). First, the plaintiff has the burden to show proximate cause, and if the defendant argues that an intervening event is superseding, the court must determine whether that intervening event is foreseeable. And, second, if the alleged intervening event is a suicide, it must be determined if that unfortunate event was foreseeable under the circumstances, which is not a question decided “as a matter of law.”</p><p>Now we sit and wait to see if the case will be appealed to the Illinois Supreme Court. If it is, let’s hope the Court admits that the state of the law is a mess and takes the chance to clean it up. Given the mess they have created up to this point, I am not too hopeful, but we’ll see. It is a new year and maybe good things will come.</p><p><br /></p>Professor Alberto Bernabehttp://www.blogger.com/profile/05249350712732072457noreply@blogger.com0tag:blogger.com,1999:blog-4763742793669917233.post-60263560600375634152024-01-14T14:47:00.000-06:002024-01-14T14:47:04.514-06:00IL Appellate Court Holds that Mental Health Providers Can Be Liable for the Suicide of Outpatient Mental Health Clients<p> The <a href="https://tinyl.io/A6cY">TortsProf Blog</a> recently reported that the Illinois Appellate Court decided a case holding that a mental health professional can be liable for the suicide of an outpatient. This is an interesting development because Illinois has decided in the past suicide is an unforeseeable intervening (and therefore superseding) cause <i>as a matter of law</i>. I am interested in reading how the court distinguishes this case from those precedents. The case is called O’Donnell v. Bailey & Assocs. Counseling, and you can search for it with this cite: 2023 IL App (1st) 221736.</p>Professor Alberto Bernabehttp://www.blogger.com/profile/05249350712732072457noreply@blogger.com0tag:blogger.com,1999:blog-4763742793669917233.post-49145518781226426502023-12-10T15:01:00.000-06:002023-12-10T15:01:48.459-06:00Panera faces second wrongful death lawsuit related to its ‘Charged Lemonade’ <p> About a week ago I reported that a recently filed lawsuit against Panera Bread Co. alleges it should be liable for the death of a young woman who suffered cardiac arrest after drinking Panera's "charged lemonade" which allegedly contained more than 300 ml of caffeine at the time. </p><p>Now comes news that a second wrongful death lawsuit (on behalf of the beneficiaries of a 46-year old man) based on similar allegations has been filed in Delaware. <a href="https://thehill.com/regulation/court-battles/4343027-panera-faces-second-lawsuit-after-charged-lemonade-blamed-for-florida-mans-death/">The Hill</a> has the story. <a href="https://www.npr.org/2023/12/07/1217758671/a-lawsuit-says-a-man-died-after-drinking-a-highly-caffeinated-beverage-at-panera">NPR</a> also has coverage.</p>Professor Alberto Bernabehttp://www.blogger.com/profile/05249350712732072457noreply@blogger.com0tag:blogger.com,1999:blog-4763742793669917233.post-23040041184409119222023-12-10T14:49:00.002-06:002023-12-10T14:49:09.293-06:00Federal Court denies motion to dismiss claim against Amazon for damages caused by product sold by a "third party seller" through Amazon's website<p>Two years ago I reported that a California Appellate Court held that Amazon can be liable in products liability for products sold by other vendors through Amazon. See <a href="https://bernabetorts.blogspot.com/2021/05/california-appellate-court-finds-that.html">here</a>. A few months later, the Texas Supreme Court reached the exact opposite result. See <a href="https://bernabetorts.blogspot.com/2021/07/texas-supreme-court-holds-that-amazon.html">here</a>.</p><p>I am writing about this today again because a a federal court in Louisiana recently declined to issue judgment in favor of Amazon on its argument that it is not liable for products sold by about two million “third party sellers,” such as the one that sold a defective battery charger that caused a deadly house fire resulting in this wrongful death lawsuit. You can read the <a href="https://webservices.courthousenews.com/sites/Data/AppellateOpinionUploads/2023-29-11--14-34-28-WDLA-PICKARD-V-AMAZON-11-27-23.pdf">decision here</a>.</p>Professor Alberto Bernabehttp://www.blogger.com/profile/05249350712732072457noreply@blogger.com0tag:blogger.com,1999:blog-4763742793669917233.post-77503678759816496532023-12-04T20:33:00.033-06:002023-12-10T15:02:13.349-06:00Panera Bread Co sued for wrongful death allegedly caused by Panera's highly caffeinated lemonade<p><i>December 4, 2023</i></p><p>Back in 2012-2013 there was a lot of discussion on possible claims for damages caused by "high energy" (read: highly caffeinated) drinks. Go <a href="https://bernabetorts.blogspot.com/search?q=energy+drink">here</a> and scroll down to refresh your memory.</p><p>The topic is now back in the news. A recently filed lawsuit against Panera Bread Co. alleges it should be liable for the death of a young woman who suffered cardiac arrest after drinking Panera's "charged lemonade" which allegedly contained more than 300 ml of caffeine at the time. </p><p>The <a href="https://youtu.be/vKwrMD7zDvM?si=TCjLXkVErT9MhyMW">Legal Eagle</a> YouTube channel has a detailed explanation of the case.</p><p><b>UPDATE 12/10/23:</b></p><p>Additional coverage on the case at <a href="https://www.legalexaminer.com/home-family/dangerous-products/wrongful-death-lawsuits-filed-over-highly-caffeinated-panera-drink/">The Legal Examiner</a> </p><p>A second wrongful death lawsuit has been filed in Delaware. <a href="https://bernabetorts.blogspot.com/2023/12/panera-faces-second-wrongful-death.html">See here</a>.</p>Professor Alberto Bernabehttp://www.blogger.com/profile/05249350712732072457noreply@blogger.com0tag:blogger.com,1999:blog-4763742793669917233.post-60176670924535798062023-11-11T20:45:00.000-06:002023-11-11T20:45:00.138-06:00Teacher can sue school district system for injuries suffered when a 6 year old, first grade, student shot her<p>In an important, and somewhat surprising, decision, a state judge has ruled that a teacher who was shot by a 6-year-old student in Virginia can proceed with a $40 million lawsuit against a school system over claims of negligence by school administrators. </p><p>The issue in the case was whether the claim should be considered to be a claim for a work related injury. If so, the claim could only be brought as a workers’ compensation claim which would have provided much lower compensation for the plaintiff.</p><p>Given the ruling, the plaintiff can proceed with the torts claim she filed in court, which asked for $40 million in damages. </p><p>The judge based its decision on the conclusion that the plaintiff's injuries “did not arise out of her employment” and therefore did not “fall within the exclusive provisions of workers’ compensation coverage.” The judge also concluded that “[t]he danger of being shot by a student is not one that is peculiar or unique to the job of a first-grade teacher.”</p><p>You can read more about the story <a href="https://www.courthousenews.com/judge-greenlights-suit-by-virginia-teacher-shot-by-6-year-old-student/">Courthouse Network News</a>, <a href="https://www.npr.org/2023/11/04/1210640984/virginia-teacher-shot-by-6-year-old-can-proceed-with-40-million-lawsuit">NPR</a> and <a href="https://thehill.com/homenews/state-watch/4292830-judge-rules-virginia-teacher-shot-move-forward-lawsuit/">The Hill</a>.</p><p>As the case moves forward now, I expect it will raise issues related to intervening causes, proximate cause, and governmental immunity. Stay tuned!</p>Professor Alberto Bernabehttp://www.blogger.com/profile/05249350712732072457noreply@blogger.com0tag:blogger.com,1999:blog-4763742793669917233.post-78363732018252252752023-11-10T21:04:00.033-06:002023-11-10T21:04:00.144-06:00Passengers sue Alaska Airlines for emotional distress caused by off duty pilot's attempt to shut down an airplane's engines<p>Three passengers who claimed to have suffered emotional distress as a result of a recent incident in an Alaska Airlines flight have filed a complaint against the airline, and have asked for the case to be recognized as a class action. The claim is based on the incident in which an Alaska Airlines flight that was nearly downed due to an alleged attempt by an off-duty pilot to shut down the engines last month have filed a class-action suit against the airline. The lawsuit alleges that the airline did not properly follow its policy by allowing the off duty pilot to fly in the cockpit’s jump seat, despite him admitting that he was not right of mind. </p><p>For the story on the original incident, go <a href="https://thehill.com/blogs/blog-briefing-room/4272911-off-duty-pilot-cut-engines-on-jet-facing-federal-charge/">here</a>. For more on the recently filed complaint, go <a href="https://thehill.com/regulation/court-battles/4292863-passengers-sue-airline-pilot-attempts-engine-shut-down/">here</a>.</p><p>I do not understand why this claim would be considered to be a class action, but we'll have to wait and see what happens to that request.</p>Professor Alberto Bernabehttp://www.blogger.com/profile/05249350712732072457noreply@blogger.com0tag:blogger.com,1999:blog-4763742793669917233.post-58336688762993272482023-10-27T10:41:00.000-05:002023-10-27T10:41:28.809-05:00Alex Jones must pay families of Sandy Hook shooting victims despite bankruptcy -- UPDATED<p><i>October 21, 2023</i></p><p>If you have been following the news about the lawsuit filed by the surviving families of the Sandy Hook school shooting against millionaire conspiracy theorist Alex Jones, you know that a Connecticut jury ordered Jones to pay $965 million in damages to 15 relatives of the victims. Soon, Jones tried to weasel his way out of having to pay for the damages he caused by filing for bankruptcy. </p><p>But I just learned that another judge has ruled that Jones can’t use bankruptcy protections to avoid paying money to the families of the victims. The Hill has more on the story <a href="https://thehill.com/homenews/4267650-judge-alex-jones-must-pay-families-of-sandy-hook-shooting-victims-despite-bankruptcy/">here</a>.</p><p>Unfortunately, it may be a while before the families see any of the money, but I hope they do sooner rather than later. </p><p><b>UPDATE 10/27/23:</b> Above the Law has an <a href="https://abovethelaw.com/2023/10/alex-jones-just-got-a-new-boss-forever-and-it-is-the-sandy-hook-plaintiffs/">update and commentary here</a>.</p>Professor Alberto Bernabehttp://www.blogger.com/profile/05249350712732072457noreply@blogger.com0tag:blogger.com,1999:blog-4763742793669917233.post-84465051154740079352023-10-22T11:43:00.039-05:002023-10-22T11:43:00.147-05:00The importance of understanding the difference between a wrongful death claim and a survival statute claim<p> Day on Torts is reporting (<a href="https://www.dayontorts.com/tort-proceeds-belonged-to-decedents-estate-rather-than-surviving-spouse.html">here</a>) on a recent case in Tennessee that reminds us of the importance of the difference between a wrongful death claim and a claim under a survival statute. And what is that difference? In a nutshell, the recovery in a wrongful death claim goes to the beneficiary as defined in the wrongful death statute, which is usually the decedent's surviving spouse; but the recovery in a claim under the survival statute goes to the decedent's estate. This means that in a case under the survival statute, it is possible the surviving spouse will get a much more reduced recovery - or none at all.</p><p>In this new case, called Sanders v. Higgins (available <a href="https://www.tncourts.gov/sites/default/files/OpinionsPDFVersion/Majority%20Opinion%20-%20M2022-00892-COA-R3-CV.pdf">here</a>), the plaintiff was the surviving spouse of someone who died in an accident. Plaintiff brought a claim against the decedent’s insurance company alleging misrepresentation and negligence. The parties reached a settlement on the negligence claims, and the trial court ordered disbursement of the settlement proceeds to plaintiff as surviving spouse but the decedent’s estate appealed arguing that the proceeds should have been distributed to the estate. On appeal, the court of appeals agreed with the estate and reversed.</p>Professor Alberto Bernabehttp://www.blogger.com/profile/05249350712732072457noreply@blogger.com0tag:blogger.com,1999:blog-4763742793669917233.post-57675675219994173812023-10-05T10:50:00.004-05:002023-10-05T10:50:48.161-05:00Not surprisingly, Court dismisses Patrick Reed's most recent defamation suit<p> Back in August of last year I reported that professional golfer Patrick Reed filed a defamation claim against a number of defendants including commentators for the Golf Channel, and I explained how the complaint was a good model to teach how NOT to draft a complaint. See <a href="https://bernabetorts.blogspot.com/2022/08/golf-and-how-not-to-plead-defamation.html">here</a>.</p><p>The complaint was based on obviously wrong arguments and I predicted it would be dismissed. My prediction was correct and the case was dismissed in November. But the dismissal was without prejudice and, thus, Reed and his lawyers were given a chance to amend the complaint and try again.</p><p>They shouldn't have because, as I argued back then, the claim was flawed from the start; but they did. </p><p>And, predictably, they lost again. As expected, the court found that the alleged defamatory statements were either not defamatory, rhetorical hyperbole, true or substantially true, or statements of opinion.</p><p>You can read the opinion, which is pretty detailed and long, <a href="https://webservices.courthousenews.com/sites/Data/AppellateOpinionUploads/2023-27-9--11-46-00-golf.pdf">here</a>.</p><p><br /></p>Professor Alberto Bernabehttp://www.blogger.com/profile/05249350712732072457noreply@blogger.com0tag:blogger.com,1999:blog-4763742793669917233.post-8524131111774051842023-09-10T11:37:00.007-05:002023-09-10T11:44:39.920-05:00Idaho joins the modern trend that requires proof of "the case within the case" in legal malpractice cases based on alleged negligence in litigation<p> I have to confess that I assumed that, as part of the analysis of cause in fact, all states required a plaintiff in a legal malpractice cased based on alleged negligence in handling the litigation of case to argue that they would have won "the case within the case" (or, in other words, that they would have won the underlying case had it not been for the negligent conduct of the defendant lawyer). But it turns out that until recently, Idaho apparently did not require this. Now they do.</p><p>Last week, the Legal Profession Blog <a href="https://lawprofessors.typepad.com/legal_profession/2023/09/idaho-clarifies-proof-requirement-in-legal-malpractice-.html">reported</a> that the Idaho Supreme Court decided a case in which it rejected a standard that the suing plaintiff only had to show "some chance of success" in the underlying medical malpractice case. In doing so, the Court adopted the much more popular test of requiring the plaintiff to show that they <i>would</i> have won the underlying case (had it not been for the negligent conduct of the defendant lawyer). This analysis is usually referred to as the "case within the case" analysis because it requires the plaintiff to show that they would have won the underlying (old) case in order to be able to win the new case they are litigating. (Note that the court apparently says that showing the case within the case is needed to meet the element of proximate cause, although it is more accurate to say it relates to cause in fact.)</p><p>Meeting the case within the case standard makes it more difficult for the plaintiff to support their claim but it is the logical analysis that is consistent with the notion of cause in fact. And, like I said, I always thought it was "universally" accepted, but now I see I was wrong about that. </p><p>So I wonder if there are any other states that still recognize a cause of action without requiring that the plaintiff meet the "case within the case" approach. Do you know of any? </p><p>The case is called <i>Rich v. Hepworth Holzer</i> and you can read the opinion <a href="https://isc.idaho.gov/opinions/49300.pdf">here</a>.</p>Professor Alberto Bernabehttp://www.blogger.com/profile/05249350712732072457noreply@blogger.com0tag:blogger.com,1999:blog-4763742793669917233.post-89418558425714216782023-09-03T21:46:00.001-05:002023-09-03T21:46:05.075-05:00Rudy, that's not how anything works, Part III: Giuliani found liable for defamation by default<p>A few days ago, I posted a story questioning why Rudy Giuliani would concede the main elements of a cause of action for defamation he had been fighting (based on his comments about two election workers). Giuliani -- or perhaps, more accurately, the lawyer representing him -- apparently thought that it was a good tactic in order to avoid complying with a discovery request, but that made no sense. <a href="https://bernabepr.blogspot.com/2023/07/why-did-rudy-giuliani-concede-that-he.html">My original comment explaining why the tactic was likely to fail is here</a>. </p><p>As I predicted, the tactic not only failed, it backfired spectacularly. <a href="https://bernabepr.blogspot.com/2023/08/rudy-i-told-you-thats-not-how-anything.html">See here</a>. First it resulted in an order to explain his argument and eventually in a finding of liability by default.</p><p>Maybe Giuliani and his lawyer did not realize that what they did amounted to conceding the main elements of the cause of action and for that reason, and because of the fact that they did not comply with discovery, the court has found Giuliani liable by default. </p><p>Now that default judgment has been imposed, the case will move to trial on the question of the value of the injury, ie, on the damages issue alone. And if you have been paying attention to the story in the news and have watched some of the testimony by the plaintiffs, you know it is fair to say that the value will likely be high. Plus, Giuliani will have to pay attorneys' fees to the plaintiff's lawyers and more in sanctions.</p><p>Giuliani is in real trouble. He is reportedly in dire financial trouble and a huge verdict against him in this case will cause him a lot of distress. He has been trying to find funding for his legal bills, which include pending disbarment proceedings in New York and Washington DC, the indictment in Georgia, and at least one other defamation case. Reportedly, Trump is not contributing to his defense fund and Giuliani has put up his NY condo up for sale and is hosting events in attempts to raise funds. (Trump apparently agreed to appear in one of them, although I won't be surprised if he makes the appearance all about himself and ends up trying to get contributions for his legal defense fund rather than for Giuliani, but that's another story for another day.)</p><p>You can read the court's opinion <a href="https://storage.courtlistener.com/recap/gov.uscourts.dcd.238720/gov.uscourts.dcd.238720.94.0.pdf">here</a>. You can find reports and commentary on the default judgment against Giuliani in the following:</p><p><a href="https://www.courthousenews.com/giuliani-loses-by-default-in-defamation-case-brought-by-georgia-poll-workers/">Courthouse News Service</a></p><p><a href="https://lawprofessors.typepad.com/legal_profession/2023/08/another-well-earned-condemnation-of-americas-mayor-by-the-united-states-district-court-for-the-district-of-columbia-judge-ho.html">The Legal Profession Blog</a></p><p><a href="https://www.npr.org/2023/08/30/1196802338/rudy-giuliani-defamation-georgia-election-workers">NPR</a></p><p><a href="https://www.theguardian.com/us-news/2023/aug/30/rudy-giuliani-liable-damages-election-2020">The Guardian</a></p><p><a href="https://abovethelaw.com/2023/08/judge-beryl-howell-welcomes-rudy-to-the-find-out-phase-with-defamation-default-judgment/">Above the Law</a></p><p><a href="https://www.npr.org/2023/08/30/1196875212/judge-finds-rudy-giuliani-liable-for-defamation-of-two-georgia-election-workers">NPR audio</a></p><p><a href="https://www.jurist.org/news/2023/08/federal-judge-finds-rudy-giuliani-liable-for-defaming-2-georgia-election-workers/">Jurist</a></p><p><a href="https://www.msnbc.com/opinion/msnbc-opinion/rudy-giuliani-trump-defamation-lawsuit-georgia-rcna103015">MSNBC</a></p><p><br /></p>Professor Alberto Bernabehttp://www.blogger.com/profile/05249350712732072457noreply@blogger.com0tag:blogger.com,1999:blog-4763742793669917233.post-71557610263385453662023-08-15T21:09:00.003-05:002023-08-15T21:09:27.305-05:00Illinois statute eliminates ban on punitive damages in death cases<p> Back in May I reported that the Illinois General Assembly was considering a bill that would allow plaintiffs to seek punitive damages in cases for Wrongful Death and in cases filed under the survival statute. In that post I explained why I thought the bill was a good idea (and why the old doctrine it sought to replace was wrong). See <a href="https://bernabetorts.blogspot.com/2023/05/illinois-considers-eliminating-ban-on.html">here</a>.</p><p>Today, I am here to report that just a few days ago, on August 11, Illinois Governor J.B. Pritzker signed the bill into law. The new law allows the recovery of punitive damages in wrongful death and survival actions. </p><p>However, as I argued in my previous post, the bill did not go gar enough because punitive damages still are not recoverable in actions against doctors, lawyers, and public entities.</p>Professor Alberto Bernabehttp://www.blogger.com/profile/05249350712732072457noreply@blogger.com0tag:blogger.com,1999:blog-4763742793669917233.post-49754337486571491972023-08-09T22:15:00.007-05:002023-08-09T22:16:15.085-05:00Rudy, I told you that's not how things work!<p> Last Friday I posted a story about how Rudy Giuliani attempted to prevent having to comply discovery in a defamation case by conceding all the elements of the cause of action against him and, at the same time, trying to raise defenses in the case. And, after explaining the situation I concluded "Unfortunately for Giuliani, that’s not how anything works." My original story is <a href="https://bernabetorts.blogspot.com/2023/07/why-would-rudy-giuliani-concede.html">here</a>.</p><p>I fully expected Giuliani's tactic to be rejected and that is just what happened. Reportedly, the judge overseeing the case has given Giuliani the following options. He can:</p><p>1. submit a new stipulation conceding liability to the claims “all factual allegations ... as to his liability for plaintiffs’ defamation, intentional infliction of emotional distress, and civil conspiracy claims, and his liability as to plaintiffs’ claim for punitive damages” and that a default judgment as to his liability is appropriate, or</p><p>2. explain why he is declining to submit such a stipulation by clarifying “what precisely his original stipulation conceded regarding the plaintiffs’ factual allegations and legal claims.”</p><p>Should Giuliani fail to choose one or two, the judge will convene a hearing (on August 15) to determine how, if at all, he has complied with her prior order to search and produce all materials responsive to the plaintiffs' discovery requests. </p><p>Stay tuned!</p><p>MSNBC has coverage <a href="https://www.msnbc.com/rachel-maddow-show/maddowblog/rudy-giuliani-georgia-lawsuit-shaye-moss-ruby-freeman-rcna98678">here</a>. TechDirt has a comment <a href="https://www.techdirt.com/2023/08/09/court-ask-rudy-giuliani-why-he-wont-admit-defeat-after-he-admitted-he-defamed-plaintiffs-in-an-election-related-lawsuit/">here</a>.</p>Professor Alberto Bernabehttp://www.blogger.com/profile/05249350712732072457noreply@blogger.com0tag:blogger.com,1999:blog-4763742793669917233.post-57351356478469691292023-07-28T22:48:00.002-05:002023-10-21T19:36:15.610-05:00Why would Rudy Giuliani concede the elements of a defamation claim against him?<p>Last Tuesday Rudy Giuliani filed a <a href="https://storage.courtlistener.com/recap/gov.uscourts.dcd.238720/gov.uscourts.dcd.238720.84.2.pdf">two-page stipulation</a> in a long-running defamation lawsuit by two Georgia election workers stating that he “does not contest” that his statements about the plaintiffs were “false” and “carry meaning that is defamatory.” According to the reporting, Giuliani’s attorney added that Giuliani was not in fact “admitting” to the plaintiffs’ allegations against him but making a decision to stop contesting them, which he says should end the plaintiffs’ effort to seek further factual evidence – emails, text messages and other communications – from Giuliani.</p><p>Unfortunately, for Giuliani, that’s not how anything works.</p><p>First of all, trying to make a distinction between conceding the allegations and not contesting them is nonsense. You can’t have it both ways. In the document, Giuliani conceded that he made the statements alleged in the complaint, that the statements were false and that they were defamatory per se. That means he conceded all the elements of the cause of action. Period, end of story. All Giuliani has left after that is arguing affirmative defenses. And which ones are there? I don’t see any. </p><p>He apparently claims that either the statements were statements of opinion or that they were constitutionally protected. Both arguments are wrong. </p><p>Once he admits that the statements he made were “false” he has admitted they were not opinions. By definition opinions can’t be true or false – that’s what distinguishes them from statements of fact. But Giuliani has conceded they were statements of fact. So that argument is out - he defeated it himself! </p><p>The other possible argument – that the statements were constitutionally protected, is also flawed. First, the notion of defamation is based on the doctrine that not all speech is protected and that if it is not protected, it can result in possible liability. That’s what defamation law is all about. So the question becomes whether the plaintiff can meet the standard needed to show that the speech is not protected and, therefore, should subject the defendant to liability.</p><p>On that, the doctrine has created different standards for different categories of plaintiffs. If the plaintiff is a public official or a public figure, the plaintiff has to meet a higher standard because speech about them is more protected. But the plaintiffs in this case were neither. They were private persons performing a volunteer job as election officials. I could be wrong about this, but I don’t think they were elected officials for that job, and they were not known celebrities before the elections and before Giuliani and others started accusing them of misconduct. If I am correct in those assumptions, the plaintiffs in this case do not have to show actual malice on the part of the defendant and will have an easier time defeating the argument that the statements were constitutionally protected. </p><p>Second, Giuliani can’t just say that he wants to end discovery because he does not want to disclose more information. Discovery exists to allow the parties access to information and, as everyone knows, discovery is not limited to evidence that can be used at trial. You can use discovery to get access to evidence that will likely lead to evidence that can be used at trial. </p><p>The fact Giuliani says he is conceding the element of the claim to end the plaintiffs’ effort to seek further factual evidence just makes me wonder what he has that wants to hide so badly. </p><p>And, further, defamation was not the only claim in this case. The plaintiffs’ also sued for emotional distress which is a separate cause of action and they should have the right to continue discovery in order to get evidence related to that claim, which should include the evidence that Giuliani apparently does not want them to get access to.</p><p>For these reasons, it seems to me the decision to concede the elements of the cause of action was not a very smart one. It defeats one of his defenses, makes it easier for the plaintiffs to support their claim and should not stop discovery.</p><p>Finally, as an aside, I also can't imagine that publicly admitting that he lied in a way that caused so much injury to private individuals is going to help Giuliani's chances to avoid discipline in the various disciplinary proceedings he is facing.</p><p>For coverage of Giuliani's confession see <a href="https://www.politico.com/news/2023/07/26/giuliani-trump-election-00108205">Politico</a>, <a href="https://www.npr.org/2023/07/26/1190173929/rudy-giuliani-georgia-election-workers">NPR</a>, <a href="https://www.msnbc.com/rachel-maddow-show/maddowblog/giuliani-admits-made-false-statements-troubles-worsen-rcna96409">MSNBC</a>, <a href="https://www.theguardian.com/us-news/2023/jul/26/rudy-giuliani-georgia-election-defamation-lawsuit">The Guardian</a>, <a href="https://thehill.com/regulation/court-battles/4120295-giuliani-concedes-he-made-false-statements-about-georgia-election-workers/">The Hill</a>, <a href="https://theconversation.com/giuliani-claims-the-first-amendment-lets-him-lie-3-essential-reads-210514">The Conversation</a> and <a href="https://abovethelaw.com/2023/07/rudy-admits-he-defamed-georgia-poll-workers-but-claims-he-had-a-first-amendment-right-to-do-it/">Above the Law</a>.</p><p><b>UPDATE: 8/9/23</b>: As expected, the judge did not buy it. See <a href="https://bernabetorts.blogspot.com/2023/08/rudy-i-told-you-thats-now-how-things.html">here</a>.</p><p><b>UPDATE: 9/3/23</b>: The story continues <a href="https://bernabetorts.blogspot.com/2023/09/rudy-thats-not-how-anything-works-part.html">here</a>.</p>Professor Alberto Bernabehttp://www.blogger.com/profile/05249350712732072457noreply@blogger.com0tag:blogger.com,1999:blog-4763742793669917233.post-25441801309823219552023-07-24T21:35:00.000-05:002023-07-24T21:35:01.379-05:00With all this talk about "AI", where does Tort law fit in?<p>Christopher Robertson (Boston University) has published a very good short piece in The Hill explaining how Tort Law is, and will continue to be, relevant as "AI" becomes more prevalent and may (or may not) lead to injuries. The article is called "A simple solution to regulate AI" and you can find it <a href="https://thehill.com/opinion/technology/4106191-a-simple-solution-to-regulate-ai/">here</a>.</p><p>Here is the gist:</p><p></p><blockquote><p>[Executives from the leading artificial intelligence (AI) companies] . . . may be genuinely concerned about the profound dangers of AI. But as a law professor, I have seen this dynamic before, and I worry that these executives may write laws that actually leave us less safe. . . . </p><p>. . . I am reminded of the industrial-age transition from horses to trains and then automobiles, a revolution that also changed the way the law manages risk at an industrial scale. . . . </p><p>. . . Courts developed a flexible set of laws that require everyone who creates risks to take reasonable precautions to protect against foreseeable harms. . . . </p><p>. . . . </p></blockquote><blockquote><p>The beauty of negligence law is its flexibility; it puts the onus on companies to recognize those risks and to fix them, long before anyone is injured. In contrast, given the almost limitless number of ways that AI could cause harm, I worry that legislators or regulators will be slow and unimaginative.</p></blockquote><blockquote><p>. . . . </p></blockquote><p>Read the <a href="https://thehill.com/opinion/technology/4106191-a-simple-solution-to-regulate-ai/">full article here</a>. </p><p></p>Professor Alberto Bernabehttp://www.blogger.com/profile/05249350712732072457noreply@blogger.com0tag:blogger.com,1999:blog-4763742793669917233.post-7414134240271619802023-06-30T21:57:00.001-05:002023-06-30T21:57:30.556-05:00Court of Appeals for the Fourth Circuit finds that TSA screeners are subject to liability under the Federal Torts Claims Act<p> As reported in the TortsProf blog: The Fourth Circuit has now joined the Third and Eighth Circuits in holding that TSA screeners are subject to suit pursuant to the Federal Tort Claims Act. Osmon v. United States, 66 F.4th 144, 147 (4th Cir. 2023) (“[T]he FTCA permits people who allege they were assaulted by TSA screeners to sue the federal government.”).</p>Professor Alberto Bernabehttp://www.blogger.com/profile/05249350712732072457noreply@blogger.com0tag:blogger.com,1999:blog-4763742793669917233.post-33718988594129753942023-06-10T13:49:00.005-05:002023-06-10T13:49:47.638-05:00OpenAI Sued For Defamation Over Statements Created by ChatGPT<p>It has finally happened: someone has sued ChatGPT maker OpenAI over an AI “hallucination” (i.e., confidently spewing out something that is blatantly wrong). The complaint, filed by Mark Walters, in state court in Georgia, argues that OpenAI made up false and defamatory claims about himself. TechDirt has the <a href="https://www.techdirt.com/2023/06/08/openai-sued-for-defamation-over-chatgpt-hallucination-but-who-should-actually-be-liable/">full story here</a>.</p>Professor Alberto Bernabehttp://www.blogger.com/profile/05249350712732072457noreply@blogger.com0tag:blogger.com,1999:blog-4763742793669917233.post-35998840216808481402023-06-01T20:40:00.000-05:002023-06-01T20:40:16.203-05:00Federal Court denies motion to dismiss, allowing claim for emotional distress based on pre-impact terror to move forward<p>As reported in <a href="https://www.dayontorts.com/">Day on Torts</a>:</p><p>A federal judge in Chicago has agreed to allow a jury to consider whether airplane crash victims experience preimpact terror before their deaths. Faced with no Illinois law directly on point, the federal court determined that the reasoning in Haley v. Pan American World Airways, Inc., 746 F.2d 311, 314-15 (5th Cir. 1984), was persuasive. The Haley court found the courts of Louisiana would permit recovery for emotional distress “during a negligently produced ordeal”</p><p>From the opinion:</p><p>A jury could reasonably infer from the evidence that will be presented at trial that the passengers on ET 302 perceived that they were going to crash, horrifically, to their certain death. Boeing has not demonstrated that Illinois authority bars plaintiffs from recovering for the preimpact emotional distress they suffered as a result, and the Court concludes that the Illinois Supreme Court likely would permit recovery of such damages.</p><p>The Court also concluded that there was sufficient evidence of emotional distress to create a jury question given the anticipated testimony about the movements of the plane before the crash.</p><p>You can <a href="https://www.dayontorts.com/files/2023/05/1749-Alonso-Order-re-Motion-to-Enforce-Stip-and-Various-MILs-053023.pdf">read the opinion here</a>.</p>Professor Alberto Bernabehttp://www.blogger.com/profile/05249350712732072457noreply@blogger.com0