Washington high court finds state university can be held liable for hazing death at fraternity

 A split Washington Supreme Court on Thursday found that Washington State University owed a duty to protect a freshman who died from alcohol poisoning during a fraternity hazing ritual in 2019.  You can read the opinion here and more on the story here (on the Court of Appeals decision) and here (on the Supreme Court decision).

US Supreme Court opens term considering case under the Federal Torts Claims Act

 This week, the US Supreme Court heard oral arguments in a case involving the Federal Torts Claims Act.

In this case the plaintiff sued the federal government and the US Postal Service alleging damages because postal workers refused to deliver mail to the plaintiff’s property.  The lower court dismissed the claim, the Torts Claims Act recognizes immunity for the federal government in matters involving the handling of postal matters, which includes lost and delayed mail.  But the 5th Circuit Court of Appeals reversed, holding that intentional non-delivery is not a “loss,” “miscarriage,” or “negligent transmission” of mail, because those terms don’t cover intentional acts.

Here an article on the background of the case:  "How a mail delivery dispute made it to the Supreme Court."

Here is an article reviewing the oral argument: "Court debates lost catalogs and delayed Christmas cards while hearing case on intentionally undelivered mail."  

Teacher can sue school district system for injuries suffered when a 6 year old, first grade, student shot her

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.  

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.

Given the ruling, the plaintiff can proceed with the torts claim she filed in court, which asked for $40 million in damages. 

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.”

You can read more about the story Courthouse Network News, NPR and The Hill.

As the case moves forward now, I expect it will raise issues related to intervening causes, proximate cause, and governmental immunity.  Stay tuned!

Big news of the week: Sandy Hook families reach $73M settlement in suit targeting gun marketing

 The big news this week was the announcement of a settlement in the case of the Sandy Hook families against gun manufacturers.  This is the first time a firearms manufacturer has settled a lawsuit brought by gun violence victims since Congress granted the industry sweeping immunity from civil liability in 2005.  The $73 million settlement is covered by The ABA Journal (where you can find more links), NPR (print) and NPR (audio).

The plaintiffs (Sandy Hook families) hope the settlement will lead to changes in the gun industry.  Yet, here is an article arguing why it probably won't.

Wrongfully Convicted Man who was Imprisoned for 23 Years Sues Prosecutor

 A recently exonerated man who spent 23 years in prison has filed a complaint against a longtime Mississippi district attorney alleging various violations of the U.S. and Mississippi state constitutions.  The plaintiff was tried six times for the 1996 murders of four people.  The defendant prosecuted all six trials, none of which resulted in a legally valid conviction.  Four of those murder trials resulted in convictions and death sentences but all convictions were vacated due to prosecutorial misconduct.  One of the opinions reversing one of those convictions was written by now Supreme Court Justice Brett Kavanaugh who wrote that “The state’s relentless, determined effort to rid the jury of black individuals strongly suggests that the state wanted to try Flowers before a jury with as few black jurors as possible, and ideally before an all-white jury.” 

The background story is very compelling but the case will be an uphill battle.  I expect that the prosecutor will argue qualified immunity and will cite Supreme Court precedent which makes it very difficult if not almost impossible for exonerated plaintiffs to win claims against former prosecutors.  For this reason, cases like this often settle out of court, which provides some level of compensation.

For more information on the case go to Law&Crime, NPR, and Courthouse News Service.

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.

Iowa Senate approves bill to recognize qualified immunity

 At a time when some courts and states are eliminating qualified immunity (see here, here, here and here, for example), Iowa has decided this is a good time to do the opposite.  

TechDirt has the story here.

New Mexico abolishes qualified immunity in state claims

Last week, Governor Michelle Lujan Grisham of New Mexico signed a law which eliminates the defense of qualified immunity for public officials in state claims.  New Mexico is now the third state to have eliminated the defense.

The new law provides: "In any claim for damages or relief under the New Mexico Civil Rights Act, no public body or person acting on behalf of, under color of or within the course and scope of the authority of a public body shall enjoy the defense of qualified immunity for causing the deprivation of any rights, privileges or immunities secured by the bill of rights of the constitution of New Mexico."

It is important to note that the new state does not relate to claims brought under federal law, which still recognizes qualified immunity as a defense.

Reason.com has more on the story here; Jurist has more information here.

Article and program on settlements in police misconduct cases

  Yesterday I posted a video on data related to how much money is spent on settling cases of police misconduct.  Today, I am posting another conversation on the subject.  In this one, Benjamin Wittes sat down on Lawfare Live with Rashawn Ray, the David M. Rubenstein Fellow in Governance Studies at the Brookings Institution, to talk about civil settlements. Rashawn is the author of a recent Lawfare article about how to reform the civil settlement system to make it more effective in deterring police misconduct, and they discussed the series of reforms that Rashawn recommends.  You may want to read the article first (here) and then listen to the conversation (by clicking on the play button below or by going here.)

Study on how much money cities' pay to settle police misconduct cases

As you probably know, police misconduct trials are rare, often because the defendants are granted qualified immunity.  However, those claims are claims brought against individuals.  The situation in cases brought against cities or other government entities is different.  In those cases, cities often pay high amounts of money to settle misconduct claims.  

Over at the website FiveThirtyEight, their quantitative editor Laura Bronner recently spoke with Galen Druke about FiveThirtyEight and The Marshall Project’s investigation into the amount of money cities have spent on police misconduct settlements — in the range of $3 billion over the last decade. What’s less clear is whether the situation has improved within that time period.

You can watch the conversation by clicking on the play button below or by going here.

Florida enacts immunity for Covid-19 related claims

Last week, Florida enacted legislation shielding businesses and health care providers from COVID-19 injury and death lawsuits, which is good news for business but bad news for consumers.

The new law gives civil immunity to corporations, hospitals, nursing homes, government entities, schools and churches, among others, for injuries related to Covid-19 caused by negligent conduct.  It does allow plaintiffs to bring causes of action based on alleged gross negligence or intentional misconduct, but in those cases, it raises the burden of proof and places other procedural requirements to make it more difficult for plaintiffs to bring their claims.  For example, according to the statute, plaintiffs will have to prove that a defendant did not make a good faith effort to comply with public health standards and that a defendant committed gross negligence under a "clear and convincing" evidentiary standard.  The law also establishes a one-year limitation period from the later of the date of death, hospitalization or COVID-19 diagnosis that forms the basis of the claim. 

Not surprisingly, tort reform advocacy groups, the Florida Chamber of Commerce, and defendants' lawyers have expressed their approval of the new law, claiming, among other things that "[w]ith the governor's signing of Senate Bill 72, [businesses] no longer have to be worried about fighting frivolous lawsuits from plaintiffs alleging they contracted COVID-19 at their place of business."

This statement is, of course, nonsense.  The law was not enacted (and does nothing new) to eliminate frivolous lawsuits.  The law, like most other tort reform measures, was enacted to prevent valid litigation.  

What the law does is eliminate incentives for businesses, hospitals, and nursing homes to act reasonably in order to protect the public from whom they derive all their profits.  One of the main goals of tort law is to deter conduct that creates unreasonable risks of harm to others.  The statute adopted in Florida does the opposite.  It does nothing to protect employees, customers and front line workers who have sacrificed to keep communities safe and the economy open by eliminating the possibility of accountability for negligent businesses and health care facilities.

Now businesses, including hospitals and nursing homes, do not have to worry about acting with due care and will not be liable for any injuries they cause as a result.  How is that a good thing?

Law360 has more on the story here.

Podcast on qualified immunity

 A few minutes ago, I reported that New York City has abolished qualified immunity.  Meanwhile, below you will find a podcast in which Prof. Alexander Reinert (Cardozo School of Law) discusses an empirical assessment and comprehensive study on the actual way that courts of appeals have handled qualified immunity cases.  You can listen to the podcast by clicking on the play button below or by going to the podcast website here.

New York City Council abolishes qualified immunity

Yesterday, the New York City Council passed legislation that will effectively end qualified immunity for police officers; thus removing one of the largest impediments to holding officers personally liable for violating citizens’ civil rights, several local news outlets reported.  In doing so, New York became the first city in the country to abolish the defense.  Law & Crime has more information here.

Courts find that police officers do not have immunity in two recent cases

As you probably know, police officers often escape possible tort liability because they claim to have qualified immunity.  According to the doctrine of qualified immunity, officials performing discretionary functions have immunity as long as their conduct does not violate clearly established statutory or constitutional rights or which a reasonable person would have known.

The use of qualified immunity in cases involving alleged police misconduct has been increasingly criticized of late, and two courts recently decided that the officers involved did not have immunity for their actions.

In one case, the Court of Appeals for the 11th Circuit unanimously ruled that an Alabama police officer is not entitled to immunity for an incident in which he repeatedly deployed a Taser on an innocent teenager who was having seizures at a concert.  You can read about that case here.

In the other case, the Court of Appeals for the Tenth Circuit held that the defendant did not have immunity in a case in which the plaintiff alleged that the officer punched a suspect in the face, whipped him with a chain, and released a police dog on him.  Evidently, the Court felt that a reasonable officer should know that that type of conduct violates someone's rights.  You can read about that case here.

Federal court rules that parents of a third grader who committed suicide have a cause of action against school board and school principal

 In a case that has a number of interesting implications the Court of Appeals for the Sixth Circuit has affirmed the denial of a motion to dismiss in a case involving the suicide of a young boy due to bullying in school.

The case involves a third grader who committed suicide after allegedly being the victim of multiple bullying incidents over a couple of years.  According to the complaint, school officials either downplayed the severity of incidents or flat out refused to notify them. Also, despite surveillance footage of the most recent incident, the school's principal and vice principal misrepresented the nature of Taye’s injuries to the boys parents.  

The parents sued the school board, and the principal and vice principal in their personal capacities.  The defendants filed a motion to dismiss which was denied by the lower court, and the Court of Appeals affirmed.

The case is interesting for a number of reasons.  First, there is the question of whether state immunity should protect the defendants.  

Second, there is the question of proximate cause.  Most often courts find that suicide is an unforeseeable intervening cause that severs the chain of causation preventing plaintiffs from supporting proximate cause.  However, in this case the court found that the boy’s suicide was plainly foreseeable, especially considering the school’s guidelines on bullying include suicide as a risk.

As I am sure you remember the prevailing test for proximate cause is to ask whether the injury is a foreseeable consequence of the risk created by the negligent conduct.  If the school guidelines actually mention suicide as a risk, it will be very difficult for the defendants to say that it was an unforeseeable consequence.

The case is called Myers v. Cincinnati Board of Education and you can find a copy here.

For more information on the case you can read stories in Law & Crime, and Courthouse News.

Article on a way to argue cases to avoid qualified immunity issues

I just read an interesting article on an alternative way to argue cases seeking compensation against the government.  The article begins, 

Recent officer-involved shootings and public allegations of police misconduct have sparked legal discussion around accountability for law enforcement. Much of this discussion has come to focus on reforming qualified immunity, a complicated legal doctrine that can shield officers from liability in police misconduct lawsuits. However, plaintiffs may have another option for recourse that does not require grappling with qualified immunity . . .  

 

Third Circuit issues opinion on whether prosecutor can be sued for conduct that resulted in wrongful conviction

Prosecutors are usually protected from possible civil liability because they can claim immunity.  However, immunity only applies to their conduct as litigators, not as investigators and defining the line between one and the other is a matter of much debate.  

There are many cases out there that discuss the issue and now the Court of Appeals for the Third Circuit has added a new one.  In a case Weimer v. County of Fayette, Pennsylvania, the court examines the claim of plaintiff Crystal Dawn Weimer who spent more than eleven years in prison, and then, after her convictions were vacated, filed suit under 42 U.S.C. § 1983, alleging that the County of Fayette, Pennsylvania; its former District Attorney, Nancy Vernon; the City of Connellsville; and several city and state police officers violated her rights under the U.S. Constitution and Pennsylvania law. 

The Court found that certain aspects of the prosecutors conduct were protected by immunity, but many others were not and remanded the case for further  proceedings.

You can read more about the case here, where you can also find an embedded copy of the opinion. 

USA Today publishes op-ed on why blanket COVID-19 liability immunity is not a good idea.

USA Today publishes Op-Ed on why blanket COVID-19 liability immunity is not a good idea. You can read the article here.

More on the issue of whether businesses and other institutions should be immune for liability related to Covid-19

During the past few weeks there has been a lot of discussion on whether it would be a good idea to grant immunity or to make it more difficult for plaintiffs to recover for injuries suffered when the defendant's negligence causes the plaintiff to catch the Covid-19 virus.  I have posted articles about it here, here, here and here.

NPR has the latest here.

Missouri holds that public defenders are immune for discretionary functions

In a case called Laughlin v. Perry, decided on June 30, 2020, the Missouri Supreme Court found that public defenders are immune for legal malpractice liability under the doctrine of discretionary functions.   You can read the opinion here.   The court summarized its conclusion as follows:

As public defenders, Perry and Flottman are entitled to official immunity because they are public employees whose official statutory duties concern the performance of discretionary acts. . . . One need not be a public official engaged in the essence of governing to be entitled to official immunity; such immunity extends to protect public employees from liability for alleged acts of negligence committed during the course of performing discretionary acts requiring exercise of a degree of reason and judgment. There is no dispute Perry and Flottman were acting pursuant to their constitutionally and statutorily mandated duties in representing Laughlin, and . . .  choosing which defenses to raise and which arguments to pursue on appeal on behalf of indigent clients constitutes a discretionary act entitled to official immunity.