Monday, August 31, 2009
Former Toyota attorney claims Toyota destroyed evidence in rollover cases
A former high-ranking attorney for Toyota has alleged that the auto maker conspired to illegally conceal and withhold evidence in Toyota rollover lawsuits filed by consumers who claimed that vehicle design defects caused severe injuries. If true, this would be huge! Stay tuned. For the full story go here, here and here.
Saturday, August 29, 2009
Defense verdict in product liability case re Yamaha ATV
AboutLawsuits.com is reporting today that a Texas jury has found that Yamaha Motor Corp. is not liable for the death of a 13-year-old boy in a Yamaha Rhino wrongful death lawsuit filed over fatal injuries suffered in a rollover accident, which the plaintiffs had contended were caused by design defects in the side-by-side ATV.
Since it was first introduced in 2003, problems with the Yamaha Rhino have been linked to hundreds of ATV rollover accidents throughout the United States, often resulting in serious or fatal injuries. Following pressure from the U.S. Consumer Product Safety Commission (CPSC), which has indicated that the vehicles can rollover even at low speeds on level terrain, earlier this year Yamaha temporarily halted Rhino sales and agreed to make free safety modifications to about 145,000 Rhino ATVs already on the market.
Go here for the full story.
Department of Veterans Affairs faces lawsuits
AboutLawsuits.com is reporting that the U.S. Department of Veterans Affairs has mistakenly notified hundreds of veterans that they have Lou Gehrig’s disease, in the most recent of a string of VA medical errors that have plagued the agency. The notification error comes as the VA faces potential lawsuits from other veterans who may have been infected with HIV or hepatitis from unsanitary VA medical equipment, and veterans who were victims of medical malpractice at a VA cancer treatment center in Philadelphia. Go here for the full story.
Article on the Alien Tort Act
The Wall Street Journal published a short article on the Alien Tort Act today (available here).
Friday, August 28, 2009
New developments in Chrysler bankruptcy news
New verdict against tobacco company.
A California jury has awarded nearly $14 million in punitive damages to the daughter of a woman who died after a lifetime of smoking in a lawsuit against Philip Morris USA. Go here for the full story.
More on the Prosser Notebook
Yesterday I wrote about the "Prosser notebook"* (here) that is now available online. I mentioned that Prof. Chris Robinette studied the notebook and wrote an article about it. The article, The Prosser Notebook: Classroom as Biography and Intellectual History, is available through the Social Science Research Network (SSRN). You can access it here.
*Technically it is the notebook of one of Prosser's students....
Most interesting stories this week
It's Friday, which means it is time for the TortsProf Blog's list of the most interesting stories for this week (availalble here.)
Thursday, August 27, 2009
Have you ever wondered what it would have been like to have had Prosser as your Torts professor?
Well, now you can get a little bit of a sense of what it would have been like...
Professor Chris Robinette from Widener Univ. School of Law had a student recently whose grandfather had Prosser for Torts at the University of Minnesota Law School in 1938-39. The student had his grandfather's notebook for the class, which Prosser taught while working on his hornbook now known as "Prosser on Torts." Interestingly, the student's grandfather, Leroy S. Merrifield, went on to became a Torts law professor himself at George Washington University Law School.
Prof. Robinette studied the notebook and wrote a law review article about it. As he points out, "the notebook provides the thoughts of an eminent torts scholar, in the process of creating arguably the most influential hornbook on torts, as channeled by a student who would go on to become a Torts professor."
And now, the good news: we all have the unique opportunity to see the actual notebook! Thanks to the magic of digital photography and the work of Berkeley law archivist William Benemann, the notebook is now available online here.
Go there, check it out and spend some time reading a piece of Tort law education history.
Thanks to Chris Robinette for the link!
Interesting recent case regarding the so-called "rescue doctrine"
About a month ago, the Illinois Court of Appeals (third district) decided a case called Strickland v. Kotecki (available here) in which the court decided that a person could recover for the injuries he suffered while attempting to prevent the defendant from comitting suicide.
Although the court bases its decision on what it calls "the rescue doctrine" which is a label that has been used for a long time in Illinois, the case is incomplete in its analysis. First of all, I have to say that I hate the use of "labels" like "the rescue doctrine". Such a label does not explain or add anything and in fact makes it sound like it refers to a distinct rule that can be applied without analysis. In reality, the so called rescue doctrine is nothing other than the application of the proximate cause analysis developed by Justice Cardozo in Palsgraf v. Long Island Railroad and in Wagner v. International Railway.
But enough about that, let's talk about the case. Here, fearing that her husband could have gone out to try to kill himself, a woman called her brother in law for help. They found the husband's car parked in a fenced-in business property behind a locked gate. The vehicle had a hose running from its exhaust pipe to the passenger window.
The brother in law jumped over the fence to try to rescue the guy in the car, he injured his right foot and later sued his sister in law and her husband. The trial court granted a motion to dismiss and the plaintiffs appealed. Citing another Appeals Court decision from 1996, the court starts by stating that the rescue doctrine "provides that it is always foreseeable that someone may attempt to rescue a person who has been placed in a dangerous position. . ."
This statement, unfortunately, is wrong. The rescue doctrine [if I must use the label] does not provide that a rescue is always foreseeable. Not noticing its mistake, the court in Strickland contradicts the quoted statement by then affirming that "whether the rescue doctrine applies is generally a question for the jury", which, of course, means that a rescue attempt is, by definition, not always foreseeable. If it were, there would be no reason to send the question to the jury.
The misconception contained in the statement from the 1996 case comes from Cardozo's famous words "danger invites rescue" in Wagner, but even he explained in that case that there are exceptions. Yes, danger invites rescue, but not all rescue attempts are foreseeable. As Cardozo explained, it is not foreseeable that someone would engage in what he called "foolhardy" conduct in an attempt to rescue. Likewise, it is not foreseeable that someone would place him or herself in a high degree of danger in an attempt to rescue someone (ie, it is not foreseeable that someone who does not know how to swim would jump in the lake to help someone drowning).
Because we can't determine beforehand (and for all cases) at what point the rescuer's conduct becomes "foolhardy" is why we have to leave it up to the jury to decide.
So, okay, now that we get this straight, let's move on to the real problem with the case. The facts of this case present an interesting question that had not been addressed by courts in this state before, namely whether a rescuer can bring a cause of action against a defendant who places himself in danger. Obviously, a cause of action of this sort is brought against the person whose negligence created the need for the rescue in the first place, but most cases involve the rescue of an innocent third party (often also a plaintiff) against the person who causes an accident. Here, the person who arguably created the need for the rescue and the person who needed rescuing was one and the same.
The court could not find any cases in Illinois that addressed this question but stated that all other cases in other jurisdictions have held that the rescue doctrine allows a rescuer to recover from defendants who place themselves in danger. It seems logical to me that it would be so.
The problem is that this is all based on a very important point the court seems to forget. This is a negligence claim. For the rescuer to have a cause of action against the person who created the need for the rescue in the first place, not only must the rescue attempt be foreseeable, the plaintiff needs to establish that the defendant was negligent in the first place. And this, the court does not do. Instead, the court then turns its attention to determining whether people attempting suicide "owe a duty to those attempting to rescue them."
This statement shows a fundamental misunderstanding of the issue here. Whether there is a duty depends on whether the injury is a foreseeable consequence of the risk created by the negligent conduct. In other words, it depends on whether the rescue attempt was foreseeable, which the court already said is a question for the jury. After some discussion of the duty argument, the court then concludes that there is a duty and states, that "[t]his analysis follows the simple logic of the rescue doctrine."
Well, of course, it follows, because this whole argument is just a repetition of the first one. It is all a big circular argument that leads to the same place.... Why? Because the question of proximate cause and the question of duty are really two sides of the same coin as any student of Palsgraf v Long Island Railroad knows.
What is missing from the decision of the court is a discussion of a really difficult question in this case. Was the defendant negligent? Is attempting suicide, in and of itself, an example of negligent conduct, or are there circumstances where it can be said that a person used all reasonable care in attempting to end his or her life. This depends on the facts, and I don't think we have enough of them to decide the question in this case.
It is interesting to note that in support of its conclusion regarding the duty argument, the court cites a Torts treatise that states: "[A] person who carelessly exposes himself to danger or who attempts to take his life in a place where others may be expected to be, does commit a wrongful act towards them in that it exposes them to a recognizable risk of injury." Note how this cite supports my concerns. The author makes it clear that everything depends on whether the defendant acts carelessly and on whether the suicide attempt takes place "in a place where others might be expected to be."
Assume a person decides to end his life and to do so takes his car and parks it in an isolated area in the woods, connects a hose to the exhaust, etc and just sits there. It just so happens that on that day a jogger decided to cut through the woods and sees what's happening, tries to help and gets injured in the process. Can't the defendant say that even under the logic of the famous treatise cited by the court, he did not act negligently? He has a right to end his life, he decided to do it in an isolated area, quietly, not bothering anyone, not placing anyone in danger in the process... At the very least, wouldn't it be a question for the jury?
In the Strickland case the question may not be as difficult, though. Although we don't have all the facts, I got the sense that the rescuer found the defendant relatively easily, and the court hints at this at the end of the opinion by stating that the defendant attempted suicide "in a location where his wife, sister-in-law and brother-in-law might find him." Yet, the court never actually states that the defendant acted negligently. It certainly can be argued that he did* -- and maybe the court is just assuming it. But I think it has to be determined.
________________
*You could argue, for example, that his conduct can be distinguished from the one in my hypothetical because he created an unreasonable risk of harm to foreseeable rescuers by attempting suicide in a location where he would have been found easily and from which it would have been difficult to retrieve him without the rescuer risking injury.
Although the court bases its decision on what it calls "the rescue doctrine" which is a label that has been used for a long time in Illinois, the case is incomplete in its analysis. First of all, I have to say that I hate the use of "labels" like "the rescue doctrine". Such a label does not explain or add anything and in fact makes it sound like it refers to a distinct rule that can be applied without analysis. In reality, the so called rescue doctrine is nothing other than the application of the proximate cause analysis developed by Justice Cardozo in Palsgraf v. Long Island Railroad and in Wagner v. International Railway.
But enough about that, let's talk about the case. Here, fearing that her husband could have gone out to try to kill himself, a woman called her brother in law for help. They found the husband's car parked in a fenced-in business property behind a locked gate. The vehicle had a hose running from its exhaust pipe to the passenger window.
The brother in law jumped over the fence to try to rescue the guy in the car, he injured his right foot and later sued his sister in law and her husband. The trial court granted a motion to dismiss and the plaintiffs appealed. Citing another Appeals Court decision from 1996, the court starts by stating that the rescue doctrine "provides that it is always foreseeable that someone may attempt to rescue a person who has been placed in a dangerous position. . ."
This statement, unfortunately, is wrong. The rescue doctrine [if I must use the label] does not provide that a rescue is always foreseeable. Not noticing its mistake, the court in Strickland contradicts the quoted statement by then affirming that "whether the rescue doctrine applies is generally a question for the jury", which, of course, means that a rescue attempt is, by definition, not always foreseeable. If it were, there would be no reason to send the question to the jury.
The misconception contained in the statement from the 1996 case comes from Cardozo's famous words "danger invites rescue" in Wagner, but even he explained in that case that there are exceptions. Yes, danger invites rescue, but not all rescue attempts are foreseeable. As Cardozo explained, it is not foreseeable that someone would engage in what he called "foolhardy" conduct in an attempt to rescue. Likewise, it is not foreseeable that someone would place him or herself in a high degree of danger in an attempt to rescue someone (ie, it is not foreseeable that someone who does not know how to swim would jump in the lake to help someone drowning).
Because we can't determine beforehand (and for all cases) at what point the rescuer's conduct becomes "foolhardy" is why we have to leave it up to the jury to decide.
So, okay, now that we get this straight, let's move on to the real problem with the case. The facts of this case present an interesting question that had not been addressed by courts in this state before, namely whether a rescuer can bring a cause of action against a defendant who places himself in danger. Obviously, a cause of action of this sort is brought against the person whose negligence created the need for the rescue in the first place, but most cases involve the rescue of an innocent third party (often also a plaintiff) against the person who causes an accident. Here, the person who arguably created the need for the rescue and the person who needed rescuing was one and the same.
The court could not find any cases in Illinois that addressed this question but stated that all other cases in other jurisdictions have held that the rescue doctrine allows a rescuer to recover from defendants who place themselves in danger. It seems logical to me that it would be so.
The problem is that this is all based on a very important point the court seems to forget. This is a negligence claim. For the rescuer to have a cause of action against the person who created the need for the rescue in the first place, not only must the rescue attempt be foreseeable, the plaintiff needs to establish that the defendant was negligent in the first place. And this, the court does not do. Instead, the court then turns its attention to determining whether people attempting suicide "owe a duty to those attempting to rescue them."
This statement shows a fundamental misunderstanding of the issue here. Whether there is a duty depends on whether the injury is a foreseeable consequence of the risk created by the negligent conduct. In other words, it depends on whether the rescue attempt was foreseeable, which the court already said is a question for the jury. After some discussion of the duty argument, the court then concludes that there is a duty and states, that "[t]his analysis follows the simple logic of the rescue doctrine."
Well, of course, it follows, because this whole argument is just a repetition of the first one. It is all a big circular argument that leads to the same place.... Why? Because the question of proximate cause and the question of duty are really two sides of the same coin as any student of Palsgraf v Long Island Railroad knows.
What is missing from the decision of the court is a discussion of a really difficult question in this case. Was the defendant negligent? Is attempting suicide, in and of itself, an example of negligent conduct, or are there circumstances where it can be said that a person used all reasonable care in attempting to end his or her life. This depends on the facts, and I don't think we have enough of them to decide the question in this case.
It is interesting to note that in support of its conclusion regarding the duty argument, the court cites a Torts treatise that states: "[A] person who carelessly exposes himself to danger or who attempts to take his life in a place where others may be expected to be, does commit a wrongful act towards them in that it exposes them to a recognizable risk of injury." Note how this cite supports my concerns. The author makes it clear that everything depends on whether the defendant acts carelessly and on whether the suicide attempt takes place "in a place where others might be expected to be."
Assume a person decides to end his life and to do so takes his car and parks it in an isolated area in the woods, connects a hose to the exhaust, etc and just sits there. It just so happens that on that day a jogger decided to cut through the woods and sees what's happening, tries to help and gets injured in the process. Can't the defendant say that even under the logic of the famous treatise cited by the court, he did not act negligently? He has a right to end his life, he decided to do it in an isolated area, quietly, not bothering anyone, not placing anyone in danger in the process... At the very least, wouldn't it be a question for the jury?
In the Strickland case the question may not be as difficult, though. Although we don't have all the facts, I got the sense that the rescuer found the defendant relatively easily, and the court hints at this at the end of the opinion by stating that the defendant attempted suicide "in a location where his wife, sister-in-law and brother-in-law might find him." Yet, the court never actually states that the defendant acted negligently. It certainly can be argued that he did* -- and maybe the court is just assuming it. But I think it has to be determined.
________________
*You could argue, for example, that his conduct can be distinguished from the one in my hypothetical because he created an unreasonable risk of harm to foreseeable rescuers by attempting suicide in a location where he would have been found easily and from which it would have been difficult to retrieve him without the rescuer risking injury.
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