Thursday, April 30, 2009
Court recognizes claim against Boeing subsidiary for damages caused by violation of the law of nations
The 9th U.S. Circuit Court of Appeals has reinstated a lawsuit that claims a Boeing subsidiary helped the CIA transport prisoners to overseas prisons for torture. The trial court had had dismissed the suit claiming it could jeopardize national security and foreign relations, but on appeal, Judge Michael Hawkins wrote that "According to the government's theory, the judiciary should effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law." Allowing the government to shield its conduct from court review simply because classified information is involved "would ... perversely encourage the president to classify politically embarrassing information simply to place it beyond the reach of judicial process," Hawkins said. The opinion is available here.
For more on this story go to the New York Times here and the San Franciso Chronicle here.
Wednesday, April 29, 2009
Sad story
When discussing the issues related to whether there is (or should be) a duty to help, I often use a hypo that involves a person walking along a lake watching someone struggling in the water because he or she can't swim.
The sad reality of the dangers of this type of situation are brought to life in a report today in Prof. Jonathan Turley's blog. He reports that Washington personal injury lawyer Charles Schulze, age 73, died in his rescue of two drowning boys. Schulze was walking on the beach off Pompano Beach, Florida when he saw two boys (ages 9 and 12) in distress in the surf. He swam out and rescued the nine-year-old child first, went back and rescued the 12 year old. While onlookers made sure the boys were ok, Schulze collapsed. He gave his life to save the children. For the full story, click here and here.
Tuesday, April 28, 2009
Tort reform at the movies
The PopTort Blog is reporting today that the U.S. Chamber of Commerce is planning to show commercials before movies in Regal theaters (and maybe others) in Washington D.C.: "The U.S. Chamber, our country’s leading corporate lobbyist (at least they spend the most), tells why the biggest problem facing the country today isn’t the financial meltdown, record unemployment, two wars, swine flu, toxic peanut butter …. (need we go on?). It’s lawsuits – that’s right, legal proceedings by average working families, especially the ones against corporate executives who defraud and poison people. Laughing yet? . . . These folks at the U.S. Chamber are more than just ambassadors of happiness. They’re serving this nation’s fundamental goals of corporate immunity, wiping out everyone’s legal rights and making taxpayers pay more!"
Duty while playing golf?
Law.com has a story today about a case from New York that involved a number of interesting questions in the context of one of my hobbies.
The story starts when three friends went to play golf. After each had hit his first two shots toward the first hole they separated and went to look for their balls. According to the decision, the defendant then hit an errant shot that hit one of his friends in the left eye causing severe injuries. The defendant claimed he shouted out a warning when he realized where the ball was headed, but neither of his companions heard a warning. The Trial Court dismissed the case on grounds that the defendant was not negligent and that the plaintiff had, in any case, assumed the risk of injury through his voluntary participation in the sport. The New York state Appellate Division, Second Department, affirmed holding that a golfer did not have a legal duty to yell "fore" after taking a shot that eventually caused the plaintiff's injury.
Millions of people play golf in the US every year and accidents like this one are, actually, not unusual. To avoid them, golfers know, or should know, the universally accepted practice of yelling the word "fore" as a warning to others to protect themselves from errant shots.
One interesting question presented by this case is whether a golfer can be held negligent for his conduct on the golf course if his conduct creates an unreasonable risk of harm to others. I don't see why not, and there is case law that supports my position. The other interesting question is whether the voluntary decision to participate in the game means that golfers assume the risk of injury regardless of how the injury occurs. I don't think so; and, thus, I disagree with the ruling of the court here.
The 3-1 Second Department majority affirmed a lower court's dismissal of the claim, holding that, given the circumstances of the accident, the defendant could not have reasonably anticipated that the plaintiff was in any danger from his shot.
Although not very eloquently expressed, what the court is trying to say is simply that the defendant was not negligent. There was no evidence that showed he did not exercise reasonable care before, while or after taking his shot. If that was all, this case would be totally routine.
But, unfortunately, that is not all.
The Court then went on to say, that even if the defendant had been negligent, the case had to be rejected because the risk of being struck by a misdirected shot is an "inherent" part of golf and that the plaintiff "assumed the risk" because voluntary participants in sporting and recreational activities are deemed to have consented to "commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation."
This is an example of confusion about the concept of assumption of the risk ... and about the game of golf.
First of all, sports activities do present risks to participants but that does not mean that other participants do not have a duty to act like reasonable people. In skiing there is an inherent risk of falling, but courts recognize claims against other skiiers if their negligence causes other skiiers to fall. The same should be true of golf.
Even if there is an inherent risk of getting hit by a ball on the golf course -- something I am not sure I agree with -- I don't think that means a golfer assumes the risk of getting injuried because of another golfer's negligence. ....UNLESS what the court is trying to say is that golfers simply have no duty to exercise due care when playing the game, which, in my opinion, would be contrary to public policy.
Yet, that is precisely what the court seems to be saying when it says that "to conclude that the defendant can be held 'liable' in tort for a poorly-executed golf shot because he may have negligently failed to shout 'fore' is inimical to the rationale underlying the doctrine of primary assumption of the risk, and at odds with the public policy goal for its adoption" -- to encourage "free and vigorous participation" in sports and recreational activities."
I disagree with that as a torts professor and as a golfer!
It is certainly not frivolous to argue that a golfer is negligent if he or she does not take proper care to make sure he or she knows where the other golfers in his or her group are before taking a shot and, if they are in the way, if he or she fails to warn them that he or she is about to take the shot. As a golfer, this is one of the first things you learn to do, precisely because you know how dangerous it would be to hit someone else.
Yet the court did not give this argument much importance. The Court found that the "carelessness" of failing to follow these procedures "does not rise to the level of creating a dangerous condition over and above the usual dangers inherent in participating in the sport of golf." Again, I disagree. Justice Cheryl E. Chambers argued in a signed dissent that there was a question of fact as to whether the defendant's violation of golfing procedures unreasonably increased the risks to other competitors.
The case is Anand v. Kapoor, available here.
UPDATE (Nov 18, 2010): The court of appeals heard oral arguments. Take a look here for my reply to a reader's comments on the case.
UPDATE (January 31, 2011): The Appeals Court has affirmed the lower court. Go here for my comments.
The story starts when three friends went to play golf. After each had hit his first two shots toward the first hole they separated and went to look for their balls. According to the decision, the defendant then hit an errant shot that hit one of his friends in the left eye causing severe injuries. The defendant claimed he shouted out a warning when he realized where the ball was headed, but neither of his companions heard a warning. The Trial Court dismissed the case on grounds that the defendant was not negligent and that the plaintiff had, in any case, assumed the risk of injury through his voluntary participation in the sport. The New York state Appellate Division, Second Department, affirmed holding that a golfer did not have a legal duty to yell "fore" after taking a shot that eventually caused the plaintiff's injury.
Millions of people play golf in the US every year and accidents like this one are, actually, not unusual. To avoid them, golfers know, or should know, the universally accepted practice of yelling the word "fore" as a warning to others to protect themselves from errant shots.
One interesting question presented by this case is whether a golfer can be held negligent for his conduct on the golf course if his conduct creates an unreasonable risk of harm to others. I don't see why not, and there is case law that supports my position. The other interesting question is whether the voluntary decision to participate in the game means that golfers assume the risk of injury regardless of how the injury occurs. I don't think so; and, thus, I disagree with the ruling of the court here.
The 3-1 Second Department majority affirmed a lower court's dismissal of the claim, holding that, given the circumstances of the accident, the defendant could not have reasonably anticipated that the plaintiff was in any danger from his shot.
Although not very eloquently expressed, what the court is trying to say is simply that the defendant was not negligent. There was no evidence that showed he did not exercise reasonable care before, while or after taking his shot. If that was all, this case would be totally routine.
But, unfortunately, that is not all.
The Court then went on to say, that even if the defendant had been negligent, the case had to be rejected because the risk of being struck by a misdirected shot is an "inherent" part of golf and that the plaintiff "assumed the risk" because voluntary participants in sporting and recreational activities are deemed to have consented to "commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation."
This is an example of confusion about the concept of assumption of the risk ... and about the game of golf.
First of all, sports activities do present risks to participants but that does not mean that other participants do not have a duty to act like reasonable people. In skiing there is an inherent risk of falling, but courts recognize claims against other skiiers if their negligence causes other skiiers to fall. The same should be true of golf.
Even if there is an inherent risk of getting hit by a ball on the golf course -- something I am not sure I agree with -- I don't think that means a golfer assumes the risk of getting injuried because of another golfer's negligence. ....UNLESS what the court is trying to say is that golfers simply have no duty to exercise due care when playing the game, which, in my opinion, would be contrary to public policy.
Yet, that is precisely what the court seems to be saying when it says that "to conclude that the defendant can be held 'liable' in tort for a poorly-executed golf shot because he may have negligently failed to shout 'fore' is inimical to the rationale underlying the doctrine of primary assumption of the risk, and at odds with the public policy goal for its adoption" -- to encourage "free and vigorous participation" in sports and recreational activities."
I disagree with that as a torts professor and as a golfer!
It is certainly not frivolous to argue that a golfer is negligent if he or she does not take proper care to make sure he or she knows where the other golfers in his or her group are before taking a shot and, if they are in the way, if he or she fails to warn them that he or she is about to take the shot. As a golfer, this is one of the first things you learn to do, precisely because you know how dangerous it would be to hit someone else.
Yet the court did not give this argument much importance. The Court found that the "carelessness" of failing to follow these procedures "does not rise to the level of creating a dangerous condition over and above the usual dangers inherent in participating in the sport of golf." Again, I disagree. Justice Cheryl E. Chambers argued in a signed dissent that there was a question of fact as to whether the defendant's violation of golfing procedures unreasonably increased the risks to other competitors.
The case is Anand v. Kapoor, available here.
UPDATE (Nov 18, 2010): The court of appeals heard oral arguments. Take a look here for my reply to a reader's comments on the case.
UPDATE (January 31, 2011): The Appeals Court has affirmed the lower court. Go here for my comments.
Monday, April 27, 2009
Strict Liability for animal attacks
Last February I saw two stories related to animal attacks. Instead of posting them then, I saved them until now when we covered strict liability for damages caused by animals in our class.
The first story, originally published in the Miami Herald, about a snake attack in a Wal-mart store: "Wal-Mart is full of signs highlighting low prices, but there should be another warning customers that they might be attacked by snakes on the premises, a bitten shopper says." Note that this particular claim is not for strict liability. Do you see why?
The second story is more dramatic and involved a brutal attack by a 14 year old/200 pound chimpanzee in Samford, Connecticut. The chimpanzee was someone's pet and, reportedly, "a veteran of TV commercials who could dress himself, drink wine from a glass and use the toilet."
The victim lost her hands, nose, lips and eyelids in the 12-minute mauling. Many bones in her face were crushed, and the attack may also have left her blind and brain damaged.
Do you think that the fact that the animal was a household pet and trained means the analysis should be the one we use when other, more common, pets attack? Or, does the fact that the animal is an ape, in and of itself, means we should follow the analysis related to a "wild animal'?
Interestingly, in this particular case the question was irrelevant because there were reports that the chimp had exhibited violent behavior in the past and that the owner had been warned about it.
About a month after the attack, while the victim was still in critical condition, her family filed a lawsuit seeking $50 million in damages against the primate's owner, saying she was negligent and reckless for lacking the ability to control ''a wild animal with violent propensities.''
Regulation of pitbulls?
Here is a story from back in March that I saved for our class discussion of damages caused by animals...
Oregon is considering a bill to ban pit bulls from the entire state. Oregon may be the first state to declare owning pit bulls a crime, if the legislation passes. Pit bull owners insist that their dogs are not more vicious and that it is the fault of the owners. However, the Oregon legislation may become a model for other states. For the full story, click here.
Attempts to legislate pit bulls in Texas
A proposed Texas law that would make it a crime for children under 16 to handle or care for pit bull dogs has raised hackles amongst a number of individuals in the state. Such breed-specific legislation is routinely opposed by animal welfare groups, and the proposed law also covers animals with pit bull characteristics, a group of animals which presumably would be difficult to define, according to the Houston Chronicle. However the sponsor, State Rep. Harold Dutton (D-Houston), says a teen walking a pit bull down the block can be the equivalent of a teen displaying a holstered gun. “It may well never go off. It may never hurt anybody,” Dutton says, “but the potential there is so great that we need to look at it and prevent it.”
Friday, April 24, 2009
Most interesting stories this week
Thursday, April 23, 2009
Significant changes in products liability in Pennsylvania?
The 3rd U.S. Circuit Court of Appeals predicted Tuesday that the Pennsylvania Supreme Court will import negligence concepts into the strict liability doctrine by adopting Sections 1 and 2 of the American Law Institute's Restatement (Third) of Torts. For the full story go here. For a comment on this story by the Drug & Device Law Blog go here.
Wednesday, April 22, 2009
Arguments in Iraq v Beaty
A couple of days ago I posted a note about Iraq v Beaty, a case in which the Supreme Court will decide whether Federal Courts have jurisdiction over Iraq. The Court heard oral arguments Monday. Click here for a summary of the arguments.
UPDATE: The Supreme Court issued its opinion on June 8, 2009 holding that federal courts do not have jurisdiction over Iraq. The opinion is available here.
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