Puerto Rico Senate adopts bill to eliminate joint and several liability

 About two weeks ago, the Puerto Rico Senate approved a bill to undo over 120 years worth of precedents and eliminate joint and several liability in Torts cases.  

If you have followed this blog for some time, or are familiar with my work, you won’t be surprised to know that I think this is a bad result.  I have, in fact, authored several law review and law journal articles in defense of joint and several liability.

Interestingly, even though some people think that law review articles are irrelevant and that no one reads them, the preamble to this new bill cites two of those articles of mine and includes a long quote from one of them.  In both articles I explained why it is a bad idea to do what the bill does, but I guess the authors of the bill thought their project would not be convincing unless they explicitly tried to refute my work. 

This is not the first time that lawmakers have tried to eliminate joint and several liability in Puerto Rico.  Most recently, it had been part of the proposal for a new Civil Code in the early 2000s and then again in 2019-2020.  For good reasons, though, both times, the propoal was quickly defeated and did not make it to the new code.

Yet, now, with the backing of the insurance industry, and to the detriment of future injured plaintiffs, they got the bill through the Senate and it now awaits the Governor’s signature.  I heard there is a group of law professors trying to convince the Governor not to sign it, but I don’t know what to expect.  

If you can read Spanish you can take a look at the bill here.

ABA opposes federal bill that would impose caps in med-mal cases

The ABA Journal is reporting that the ABA recently sent a letter to House lawmakers urging them to reject a bill that would impose a  cap of $250,000 on non-economic damages in medical malpractice cases.  You can read the letter here.

The bill, ironically known as the Protecting Access to Care Act of 2017, also would eliminate joint and several liability and would authorize courts to reduce contingent fees. The ABA opposes those provisions as well.

Were it to become law, this bill would be terrible for victims of medical malpractice which is now the third most common cause of death in the US (also here, here and here).  As all other tort reform efforts its purpose is to make it difficult, if not impossible, for victims to be able to recover for their injuries.  There is no support for the proposition that bills like this one will reduce costs of medical care, or result in better care and their implementation impact those who need protection the most:  the elderly, the poor, children, etc.

Hopefully, legislators will do the right thing and follow the ABA's advice.  Otherwise, give it some time and we will see medical malpractice move up from the third spot in the list of causes of death. 

Good news for victims in Missouri: Governor vetoes two tort reform bills

Back in April I commented on a pending bill in Missouri to abolish the collateral source rule.  In that post, I explained what this means and why, if adopted, the new law would be "bad news" for torts victims. 

Today I am happy to report that Missouri's Governor has vetoed the bill.   Go here for more information.  Reportedly, the Governor concluded that the bill would be unfair to those who purchase insurance, which is exactly right.  Tort reformers always argue that the collateral source rule is unfair because it allows plaintiffs to recover more that what they should in compensation. But this argument is based on a simplistic approach that does not take into account the fact that plaintiffs have paid for insurance.  Thus the Governor is right that the new bill would essentially penalize those who have been paying for insurance all along and unduly benefit the wrongdoers. 

Should a social media app company be liable for the damages caused by a driver distracted by the app while driving? -- UPDATED

Earlier today I posted a note about a recent case on whether a person who sends a text to someone who is driving should be liable for injuries caused by the driver if the driver is distracted by the text.  Now, here is a story with a similar theme.

Abnormal Use is reporting on an interesting case from Georgia in which social media giant Snapchat has been sued for allegedly causing a motor vehicle accident in which the at-fault motorist was distracted while using the application.  You should go to AU and read the full report to get the whole story, which I will just summarize here.

The plaintiff in the case is claiming that the defendant driver struck her car while going at more than 100 miles an hour while using Snapchat.  According to the report Snapchat has a feature that will show the speed you are going when taking a photo or posting a video.  Apparently, according to the plaintiff's allegations, the driver wanted to show the world she was going more than 100 mph (with passengers in her car, one of whom was pregnant, by the way).  She failed in her attempt to show this because she rammed into the car in front of her just before posting causing the plaintiff brain damage.  But she was definitely able to show how stupid and reckless she is, and more since after the accident, she had the bright idea to snap and post a photo of herself on a stretcher.

But now back to whether the plaintiff should have a cause of action against Snapchat.  One could argue that Snapchat should not be liable for the irresponsible conduct of the driver in this case.  After all, the driver was the one that acted and caused the accident, right?  Why should the social media company be responsible for how the user uses the app?

The problem is that the issue is not that simple.  The fact that one actor is more culpable than the other, does not mean the other is not culpable at all.  The relevant question is whether Snapchat should be considered culpable at all, and to answer that question first we have to ask whether the plaintiff can make an argument in support of a claim against Snapchat.

I think she can. As, Abnormal Use points out, "While a speed filter may be an interesting piece of technology, we assume in order for it to be useful there would need to be “speed” involved. The filter probably lacks the appeal of users taking a leisurely stroll through Central Park. We can appreciate the plaintiffs’ argument that the filter incentivizes users to go fast and, unfortunately, the most available means of doing so is by car."

In other words, Snapchat created a feature that it knew or should have known would induce users to speed thus creating risks of harm.  Thus, it seems to me that you can argue that Snapchat created an unreasonable risk of a foreseeable type of harm, which gives the plaintiff support for a prima facie case.

Whether Snapchat should be as liable as the driver,... that's is different another question.

But whether you can make an argument that Snapchat should be liable at all...  Yes, I think you can...

UPDATE 5/10/16, 8:40 pm:  Abnormal Use has a published a longer post on the Snapchat lawsuit after downloading and testing the app.

New case on whether a person who sends a text to someone who is driving can be liable if the driver gets distracted by the text

Back in 2013 I reported that the New Jersey State Appeals Court had ruled that texting someone while that person is driving may cause the sender to be liable if an accident occurs. See here, here and here.  To my knowledge, that was the only case that had been decided that way.  Until now.

Eric Turkewitz of the NY Personal Injury Law Blog is reporting that a lower court in Pennsylvania has reached a similar result in a case called Gallatin-v-Gargiulo. You can read Eric's comment here.

Missouri getting ready to abolish collateral source rule

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

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

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

Illinois Supreme Court Agrees to Clarify When Workers’ Comp Settlement Eliminates Contribution Claim from Third-Party Tortfeasor

According to Illinois law, when a party settles a claim in good faith against one tortfeasor, the finding of good faith automatically discharges that tortfeasor from any liability for contribution to another tortfeasor.  Now, the Appellate Strategist is reporting that the Illinois Supreme Court had agreed to clarify whether a workers’ compensation settlement eliminates the right to a contribution claim the same way.  Go here for the full story.

Auto accident victim sues the person who called driver on a cellphone

Last year I wrote about a case in New Jersey that involved a plaintiff who had been injured by a driver who was distracted by a text message. (See here and here.) In that case, the Appellate Division of New Jersey Superior Court decided that a person who sends a text to a driver can be liable but only if the texter knew that the recipient was driving and likely to read the text message while driving. The case is called Kubert v. Best.

After discussing the case, I wrote that "one important question that needs to be asked is whether the reasoning of the case can, will or should be extended to cover phone calls (as opposed to "texts.")"

The opportunity to answer that question has arrived.  The Chicago Daily Law Bulletin is reporting today that the estate of a woman who died in a car accident has filed a wrongful-death lawsuit against a man who called the cellphone of the driver involved in the accident. The case is named Hope Farney v. Matthew Geerdes, et al.

Not surprisingly, the plaintiff has alleged that the caller knew the call’s recipient was driving and that it would provide a distraction from the road.

Also not surprisingly, the defendant has moved to dismiss the case, arguing the complaint failed to allege a recognizable duty against him and failed to allege the negligent conduct was a proximate cause of the accident. 

Podcast on whether there can be liability for texting a driver

I recently reported that the Appellate Division of New Jersey Superior Court decided that a person who sends a text to a driver can be liable for damages caused by the driver if the driver is distracted by the text if the texter knew that the recipient was driving and reading texts while driving.  Here is a link to a 30 minute podcast discussing the case.

New Jersey Appellate Court recognizes cause of action against someone who sends a text to someone who is driving at the time

Back in May, I wrote about a case pending in New Jersey that involved a plaintiff who had been injured by a driver who was distracted by a text message. (See here.) The plaintiff argued that "the court should impose a duty of care on those who know the recipient is both behind the wheel and likely to be reading texts while driving."

As I wrote back then, both plaintiff and defendant had good arguments and the issue depended on the circumstances:  "If the plaintiff can prove that the texter knew the driver was driving at the time and would pay attention to the text immediately, I have no problem recognizing a possible cause of action. Why? Because I think reasonable people would disagree as to whether a reasonable prudent person would have sent the text under those circumstances."

Now comes news that the Appellate Division of New Jersey Superior Court has decided the case holding that the person who sent the text can be liable but only if the texter knew that the recipient was driving and reading texts while driving.  Given the facts of the particular case, though, the court held that no liability could be imposed against the text sender in the case because there was no evidence that the sender was aware the driver would read her text as he was driving or that he would respond immediately.

The court summarized its conclusion this way:

"To summarize our conclusions, we do not hold that someone who texts to a person driving is liable for that person's negligent actions ... We hold that, when a texter knows or has special reason to know that the intended recipient is driving and is likely to read the text message while driving, the texter has a duty to users of the public roads to refrain from sending the driver a text at that time."

Given what I wrote back in May, you can guess I think that is the correct decision.  The case is called Kubert v. Best and it is available here.

Having said all that, one important question that needs to be asked is whether the reasoning of the case can, will or should be extended to cover phone calls (as opposed to "texts.") 

It should be noted that the court is not imposing vicarious liability on the texter for the negligence of the driver (as has been reported elsewhere).  The court is clear that the liability imposed on the defendant is based on the defendant's own negligence (and that is why it is limited to those cases where the defendant knew the driver was driving and would likely be distracted).  This is similar to the accepted notion that a passenger could be liable for negligently distracting a driver.