Tort Law & Social Equality Project lecture series

 I just recently learned of an online lecture series on advanced torts topics.  The series is hosted by a Canadian organization called the Tort Law & Social Equality Project, whose goal is to foster an awareness of the many inadvertent ways in which legal rules within tort law reinforce and perpetuate systemic social inequalities.  Their website is available here.  From there you can click on the “speaker series” tab if you want to watch the lectures live, or you can watch the videos later on their YouTube channel, here. 

 

With all this talk about "AI", where does Tort law fit in?

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 here.

Here is the gist:

[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. . . . 

. . .  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. . . . 

. . . Courts developed a flexible set of laws that require everyone who creates risks to take reasonable precautions to protect against foreseeable harms. . . . 

. . . . 

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.

. . . .  

Read the full article here. 

Book Review: "Tort Law and the Construction of Change: Studies in the Inevitability of History"

Over at Jotwell, Chris Robinette (Southwestern Law School) has published a book review of Tort Law and the Construction of Change: Studies in the Inevitability of History by Kenneth S. Abraham & G. Edward White.  You can read it here.  

Here is the conclusion:  The tension between stability and progress is an inherent feature of the common law. Stability in the law provides guidance to people in living their lives and reassurance that there is more to law than the personal preferences of those administering it. If, however, the law never changes with society, it will become ill suited to meet people’s needs. We know law changes over time, but how does it do so without being destabilizing?  Professors Kenneth Abraham and G. Edward White attempt to answer that question with regard to tort law in their latest book. They present an illuminating study of legal change grounded in compelling tort history. 

ALI adopts Restatement Third on Intentional torts to persons

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

Today in Supreme Court History: Benjamin Cardozo is sworn in as Associate Justice of the Supreme Court

You probably remember Benjamin Cardozo as the New York Court of Appeals judge who wrote Palsgraf v. Long Island Railroad, which developed what has become the standard analysis for proximate cause in Tort law.  But in 1932, President Herbert Hoover appointed Cardozo to the Supreme Court of the United States to succeed Justice Oliver Wendell Holmes.  Interestingly, Hoover, a Republican, appointed Cardozo even though he was a Democrat. I would be curious to know how many times that has happened since.

According to an article in The New York Times about Cardozo's appointment, "seldom, if ever, in the history of the Court has an appointment been so universally commended."

Cardozo was confirmed by a unanimous voice vote in the Senate on February 24 and was sworn in on March 14, 1932.

To celebrate, why not do some reading?  Here is a link to my article Ahead of his time: Cardozo and the Current Debates on Professional Responsibility, 34 Touro Law Review 101 (2018).

New study on lawsuits that have resulted in benefits to society as a whole

The Center for Justice & Democracy has a new study, called Lifesavers 2021: CJ&D’s Guide to Lawsuits that Protect Us All. The study describes over 125 lawsuits that have led to major health and safety improvements benefiting large numbers of people, spanning over 50 years. These cases have not only saved lives but also show us how to mitigate some of today’s most dire crises. 

Here is a press release that explains the study.   The PopTort has a comment here. You can download the full study here.

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 . . .  

 

Torts and time travel

Ever wonder how the notion of time travel, and the concepts of proximate cause and the (no) duty to help relate to each other?  Here is the answer.

Recent law review article compares cost-benefit analysis and consumer expectation as the tests for determining design defects

In his article An Essay on the Quieting of Products Liability Law, 105 Cornell Law Review 101 (2020), Aaron D Twerski, one of the reporters of the Restatement (Third) of Torts: Products Liability, compares the difference between the risk-utility test applied in most states (which relies on having the plaintiff prove a "reasonable alternative design (RAD)") and the consumer expectations test followed in 17 jurisdictions to determine if a product has a design defect.   He concludes that, regardless of the approach used, the vast majority of cases include proof of a RAD.

Twerski theorizes that using proof of a RAD: 1) tells “a far more compelling story” than consumer expectations; 2) relates to fault which, in turn, leads to higher damage awards; 3) may be needed as a substitute if a judge denies a “consumer expectations” instruction, and 4) supports the claim that a product disappoints consumer expectations.  

For a summary of the article go here.

Interview about whether immunity for Covid-19 related injuries is a good idea

About a week ago I posted a comment about articles by Professor Tim Lytton on whether granting immunity for injuries related to Covid-19 is a good idea.  See here.

Here is an interview with Professor Lytton expanding on the subject:

Immunity backlash

A couple of days ago I posted a comment on why granting blanket immunity to businesses for injuries caused related to the Covid-19 virus is a bad idea. See here. Today the Pop Tort published a comment on the same topic with lots of links to articles and editorials arguing against immunity.  Go here to read the article.

Here are some of the editorials arguing that granting immunity is a bad idea:

The Boston Globe.

The New York Times.

Orlando Sun Sentinel.

San Francisco Chronicle.

Granting blanket immunity related to COVID-19 injuries is a bad idea

As  I am sure you know by now, some business have been cleared to open for business in many states and this has generated some debate as to whether those businesses should be granted immunity from possible liability if their employees or customers contract COVID-19 as a result.  The issue as to whether an employer is liable to an employee relates to the state's workers compensation system, so I will not comment on that.  I am more interested in the possibility of tort liability to customers.

On this issue, I agree with Professor Timothy D. Lytton, of Law (Georgia State University) who has authored two very good and short articles on the matter.  See here and here.

The rhetoric often used by organizations like the Chamber of Commerce to claim protection from "frivolous lawsuits" is not new and it has been used for a long time in attempts to limit, or even eliminate, the rights of injured parties to seek recovery for their injuries.  Like all so-called "tort reform" efforts, it is all part of an effort to make it more difficult, if not impossible, for injured parties to get recovery, or, if they can get recovery to limit the amount of recovery they can get.

Unfortunately, calls for such limits have already been heeded in New York, where the legislature enacted broad immunity for health care workers from medical malpractice claims during the COVID-19 crisis; and Senate Majority Leader Mitch McConnell has threatened that he will not allow another coronavirus bailout bill to pass the Senate unless it includes sweeping immunity from liability for businesses.  (For a comment on the issues before the Senate go here.)

Granting such immunity from civil liability is bad public policy and legislators should reject the idea.

I just recently read a report that some businesses in Wisconsin are refusing service to people who wear masks. Yes, you read that right.  Some business have signs that say masks are not allowed; others have threatened to call the police claiming the masked individuals are there to commit a robbery.

This attitude, fueled by ignorance and the insane idea that not wearing a mask is somehow an expression of resistance to government intrusion, is, in fact, purposely and with knowledge creating the possibility that customers will be exposed to a deadly virus.  Why should a business owner who purposely endangers the health of its customers be granted immunity?

The most basic principle upon which all of tort law is based is the notion of deterrence.  As we all know, the prospect of possible liability for our conduct is an incentive for us to act in ways that do not create unreasonable risks to others.

Why would it make sense to abandon this universally accepted principle now, at a time when it is clear that the conduct of businesses open to the public can create such high level of risks?  Add to that the fact that some of the more simple precautions that can be taken are simple and inexpensive and Learned Hand would be calling from his grave to remind us why it is that tort law works for the betterment of society.

As Prof. Lytton explains,

The prospect of lawsuits against businesses that fail to take proper precautions to prevent the spread of COVID-19 is likely to focus business owners’ attention on exercising reasonable care to avoid liability for negligence. The various considerations that define the legal standard of reasonable care—cost-benefit analysis, emerging industry customs, public safety regulations, and common sense—applied in specific contexts by the people who know them best may make the reopening process more reflective and rational than if businesses rely solely on the changing or conflicting policy statements released by public officials.

In addition, as has been proven time and time again before the days of the pandemic in the debate related to tort reform, the fear that liability exposure will lead to a flood of litigation is unwarranted. The civil liability system places considerable obstacles on the prospect of frivolous litigation.

In addition, defendants will always have available defenses that can result in a reduction in the level of possible liability, or in the complete dismissal of the claims, including comparative negligence, assumption of the risk and, in a small handful of states, contributory negligence.

In the end, business owners should be encouraged to take reasonable precautions to protect their customers and their workers.   Liability insurers can play a part by making sure their customers (the business owners) know the need to take those precautions.

In contrast, granting blanket immunity to businesses will encourage them to be less mindful of taking reasonable precautions to prevent COVID-19 transmission as they face growing financial pressure to reopen.  Customers, workers, everyone who comes in contact with them, the economic system, and society in general will suffer as a result.

In response to arguments like the ones I have expressed here, some say that immunity should be granted only in cases of negligence, not in cases of "gross negligence."  Ok, that sounds reasonable...  until you consider the relevant law.

You see, "gross negligence" is not a theory of liability in tort law.  It is just a way to describe a high degree of negligence.  And, whether the conduct of a defendant will be considered "gross" is usually a matter of fact for the jury to decide.

In addition, at one point U.S. Chamber of Commerce Executive Vice President and Chief Policy Officer Neil Bradley told National Public Radio that the Chamber is not asking for blanket immunity, but "a safe harbor ... against frivolous lawsuits."  This is nonsense.  If that is all they want, they don't need to do anything.  Filing frivolous lawsuits will subject the plaintiff's lawyer to sanctions both under the rules of civil procedure and the rules of professional responsibility.

For more on the debate on whether to grant immunity to businesses for injuries related to Covid-19 go here. here and here.

Article on possible negligence claims and liability for mishandling of matters related to the coronavirus

On March 9, 2020, a couple quarantined on the Grand Princess cruise ship, sued Princess Cruise Lines Ltd. after docking in Oakland, CA. This case marks the first negligence lawsuit filed in direct response to the rising coronavirus epidemic gripping the world. 

There are sure more claims to follow.  Here is a short comment that previews some of the issues.

Article on the use of public nuisance claims as product liability cases

Back in 2010 I posted a link to an article on the tort of "public nuisance" that stated:

The National Law Journal has published a short article on the tort of "public nuisance" interestingly called "The tort that refuses to die." Here is the first paragraph: "The tort of public nuisance has seen its fortunes rise and fall dramatically during the past several years. It was once hailed by the legal literati as the next big tort. More than one court described it as a monster threatening to devour tort law because of its propensity for reaching conduct that other tort theories could not. . . . Recent events confirm that analogy to a degree. Public nuisance resembles nothing so much as a zombie — a mindless creature perhaps not particularly dangerous at first glance but incredibly difficult to kill once and for all." The authors then discuss how the recent reversal of a case against former lead paint manufacturers alleging that lead paint was a public nuisance in Rhode Island, suggested public nuisance would not be an effective legal theory. But there have been many other cases that have challenged this conclusion. The article can be found here ..."

 I am bringing this up again today because I just read a new short article discussing the use of public nuisance claims related to opioid products, which starts as follows:  "Manufacturers are used to defending strict product liability actions when plaintiffs claim that their products are defective. But in the opioid litigation, plaintiffs have filed something else: more than 2,500 public nuisance cases so far."

The article is titled Trending in Tort Law: Transforming Product Liability Claims into Public Nuisance Actions and you can read it here.

Germany's highest court declares law banning assisted suicide is unconstitutional

Germany’s highest court on Wednesday ruled that a 2015 law banning professional assisted suicide was unconstitutional, as it robbed terminally ill patients of “the right to a self-determined death.”

Courthouse News Service has more details here.

Should animals have the right to sue?

If an animal is mistreated and suffers an injury, should the law recognize the animal the right to sue?

Over at Verdict, Professor Sherry F. Colb (Cornell) summarizes the argument in support of the position that animals should be allowed to sue. You can read her position here (it is a very short article).

Recent news about the debate on qualified immunity: the Institute for Justice joins the fight

As you know, the doctrine of qualified immunity recognizes a defense for certain government officials from liability for injuries caused by their conduct.  It applies, for example, to prosecutors when they engage in investigative or administrative tasks, which is often limited to conduct before an indictment.  And, of course, it applies to many other government officials when engaging in their official capacities.

The doctrine exists to provide protection to those officials so they can perform their duties without fear that their decisions will be later questioned or second-guessed by courts, a position that is justified by the principle of separation of powers.

The doctrine, however, is not particularly old and it is not universally accepted.  The Cato Institute has referred to it as "an atextual, ahistorical doctrine invented by the Supreme Court in the 1960s" and as "a court‐​confected doctrine that provides rights‐​violating police and other government officials with an unlawful shield against accountability for their misconduct."

To do something about this, the Cato institute launched a strategic campaign to challenge the doctrine on March 1, 2018, the centerpiece of which has been a series of targeted amicus briefs urging the Supreme Court to reverse its precedents and eliminate the doctrine outright. In addition, the Institute has organized a massive cross‐​ideological alliance of public interest groups opposed to qualified immunity.  This "alliance" includes the ACLU, the NAACP Legal Defense Fund, the Alliance Defending Freedom and the Second Amendment Foundation.

I am writing about this today because yet another group has officially announced it will join the campaign.  About two weeks ago (on Feb 15), The Wall Street Journal published an op‐​ed by Institute for Justice Senior Attorney Robert McNamara, in which he describes IJ’s decision to join the battle against qualified immunity.  You can read it here if you have a subscription.

For more on the CATO Institute's position on this issue go here.

California has adopted a statute banning use of race, gender, or ethnicity in the calculation of tort damages

California has adopted a statute that prohibits the use of race, gender, and ethnicity in the calculation of lost earnings or impaired earning capacity in tort damages.  The crucial language of S.B. 41 is: "estimations, measures, or calculations of past, present, or future damages for lost earnings or impaired earning capacity resulting from personal injury or wrongful death shall not be reduced based on race, ethnicity, or gender."

Thanks to TortProf blog for the update.

Interview with the author of recent book on generic drug regulation and the FDA

Here is a link to an interview with the author of “Bottle of Lies: The Inside Story of the Generic Drug Boom.” In the book, investigative journalist Katherine Eban works with two industry whistleblowers to expose how some manufacturers are cutting corners at the cost of quality and safety.

The second part of the report is here.

Coincidentally, the Supreme Court also just issued a decision on preemption in drug related cases, about which I will post separately.

Going to the doctor? The robot will see you now...

I have written before about issues (both ethical and legal) related to artificial intelligence, driverless cars and the like.  So I am writing today to point out an article about artificial intelligence in medicine since it is clearly not inconceivable that at some point it will be possible to create databases of information that can be used to diagnose and treat matters of health.  You can read the article "The (A.I.) Doctor Will See You Now: What if artificial intelligence could accurately diagnose you—and save you a trip to the doctor’s office?" here.

I don't know if there a lot of literature on this topic, but it certainly is an interesting one that raises lots of questions.  How should the practice be regulated?  If mistakes are made and injuries caused, should the claims be considered medical malpractice or products liability?  Should they be evaluated under a negligence standard of strict liability?

I think it is just a matter of time before we face the need to ask these questions.