Texting while riding

Check out this photo of a policeman allegedly texting while riding.  Is this "negligence per se"?  Thanks to Jonathan Turley for the photo, who also comments on it here.

Video on the Penn State sex scandal -- UPDATED (to add a podcast)

The Wall Street Journal law blog has a video discussing the legal issues related to the Penn State sex scandal here.

UPDATE:  The Legal Talk Network has a podcast discussing the case issues here.

For previous comments on the issue, go here.

Comments on the Penn State's sex scandal - UPDATED

Originally posted Nov 12, 2011; the update appears below:

Because I was so busy getting ready for my trip to Switzerland (see my previous post), I missed most of the build up regarding the Penn State sexual abuse scandal.  I did try to catch up a little bit before I left, but I am not sure I got all the details.  So I will let others do the blogging on this one and provide you with some links instead.

The New York Times claims Penn State and Joe Paterno could face civil liability.

Professor Jonathan Turley has a detailed explanation of the issues here.

The PopTort reports on an article in the Philadelphia Inquirer here about Penn State's potential liability.

Eric Turkewitz has a comment here.

The only thing I would like to add to the discussion is the possible relationship between mandatory reporting statutes and negligence per se.  The Prosser Torts Casebook which I use in my class has a very interesting case right on point called Perry v. SN.  In that case, the parents of abused children sued the employees of a day care center arguing that they had a duty to disclose suspected abuse to the authorities under a specific statute and that the violation of the statute constituted negligence per se.  In other words, the plaintiffs argued that the text of the statute was an expression of the duty in tort law and the violation was evidence of breach.  The court declined to apply the negligence per se analysis, however, because it did not want to create a duty to help when the Common Law has already rejected such a duty.


UPDATE (11/13/11):

In case you don't get the comments to this blog, let me highlight the comment (below) and article by Max Kennerly of the Litigation and Trial blog (available here) in which he points out that there are cases in Pennsylvania that take the position rejected by the court in Perry v SN.  Thank very much for the comment!  The article itself if well worth reading.  It covers this and several other issues very well.  I have not read the cases, but will add a comment on the issue in general at the end of this update.

The TortsProf blog reports that Donald Gilliland of the (Harrisburg) Patriot-News wrote a column about the school's potential legal troubles.

The question of whether a court should allow the plaintiff to use a statute as an expression of a duty and its violation as evidence of breach is interesting given that there are so many statutes out there can be argued to express a duty.  If a violation of such a statute causes an injury, should courts recognize a remedy in tort?  Courts have been inconsistent on this question.  I can see the logic in saying that given that the common law has closed the door to imposing liability to for failure to help, a plaintiff should not be allowed the right to go through a "back door" by using negligence per se.  On the other hand, I don't see any problem in saying that a legislature has, by adopting a statute, decided to express what the legislature would want to be considered a duty to act under certain circumstances.  Of course, judges who prefer the first view, would say that if the legislature had really wanted to create a new duty in tort, it would have recognized a cause of action for the violation of the statute in the statute itself. Also, the court in Perry expressed a concern in not exposing a defendant to civil liability which would be disproportionate to the level of liability expressed in the statute itself. I will take a look at the cases in Pennsylvania to see how they deal with the issue.

Having said all that, assuming the evidence is there to show the defendants had enough knowledge and that the circumstances where such that they could be liable under the reporting statute, I would vote to hold them liable.


UPDATE 11/14/11: 


WSJ law blog has more on the possibility of civil claims here.  It cites an ABC News available here.

Should parents be punished for smoking while their kids are in the car?

I find the issue of whether parents should be liable for injuries to their children very interesting. In class, I have discussed the issue in several different contexts. For example, there is the question of whether a mother should be liable to a child born with injuries that can be traced to her conduct while she was pregnant, and the issue of whether a child should have a cause of action for injuries caused when a parent refuses to allow medical treatment to a child for religious reasons. These are controversial/complicated topics. In other contexts, the issue typically depends on whether the court wants to allow parents leeway in making parental decisions on how to discipline their children or on how to educate them etc. I am writing about this today because according to a recent story in The Consumerist the New York State Assembly is considering a bill to prohibit smoking in a car when riding with a child under the age of 14. The bill would impose a $100 fine for every violation. The story is available here but the more interesting part is the readers' comments under it. Here is one initial question: should parents be liable for injuries caused to their children from second hand smoke? I am sure you can argue that, given what we now know about second hand smoke, a reasonable prudent person would not smoke in a closed space when children are present, couldn't you? Also, assuming the proposed law is adopted, should the statute be used as the basis for a "negligence per se" argument against the parents? It can clearly be argued that the statute is appropriate to be considered an expression of a duty of care and therefore that its violation would be evidence of negligence. Assuming there is no parental immunity in the jurisdiction, this would allow a child to sue his or her own parent for damages caused by the violation. On the other hand, it can be argued it is unlikely that a court would take this view because imposing tort liability would result in a very disproportionate level of liability when compared to the level of libility originally intended by the legislature under the statute. This, I think, would be a strong argument given a violation of the statute only results in a $100 fine. Also, as a practical matter, it is not likely that a single violation would give rise to an injury for which the child could recover damages. Thus the question might be more theoretical. The recognition of the theoretical possibility perhaps could, in turn, open the door to more claims based on parents' conduct. Thanks to the Consumer Law and Policy Blog for the information.