Binding mandatory arbitration

Is binding mandatory arbitrarion fair? Tort Deform Blog concludes: "die-hard corporatists insist that pre-dispute binding mandatory arbitration is . . . a wonderful thing… but what they mean is, it’s a wonderful thing except when corporations can’t use it to bully people around. When they’re used in relatively more equal power relationships, they’re no good because corporations can’t game the system to their advantage. In those instances, corporations prefer the public courts." See the full post here.

Advice to avoid litigation

There is a good short comment on Drug and Device Law Blog today with advice to companies on how to avoid mass tort litigation. The article is available here.

Liability of establishment with no liquor license for injury caused by someone who gets drunk with own booze?

The Illinois Appellate Court announced today its decision in an interesting case on the issue of liability of a third party for damages caused by a drunk driver. In this case, two individuals (John H. and John C.) went to an establishment that does not have a liquor license but that encourages its patrons not only to bring their own hard liquor (no beer allowed), but to consume it in large quantities. To make a long story a bit shorter, the two individuals drove to the place and proceeded to get very drunk. When one of them got sick in the bathroom, management escorted them out, got their car (which they had parked for them in the first place), put them in the car and told them to leave. John H. was driving. A few miles down the road, he left his lane and collided head on with a car driven by an 81/2 month pregnant woman. She died. John C. also died. The more interesting question in the case is essentially whether a business with no dram shop liability (because it is not licensed to provide alcohol and in fact did not provide it) can be found liable for the injuries caused by a patron that the business encouraged to consume alcohol. The court says yes. First, the court concludes that "encouraging and facilitating [the driver's] drinking, ejecting him from the club, and placing him behind the wheel with the requirement that he drive his car away . . . and onto the public roadways" constitute substantial assistance under section 876 of the Restatement (liability when a person gives substantial assistance or encouragement to another knowing that the other's conduct constitutes a breach of duty). Then the court concludes that the conduct of the defendant was a proximate cause of the injuries. The proximate cause analysis is correct in my opinion. In the end, the question is whether the injury is a foreseeable consequence of the risk created by the negligent conduct. The negligent conduct is facilitating the consumption of alcohol and then encouraging someone who is known to be intoxicated to drive. Once argued this way, it is easy to argue that the injuries are a foreseeable consequence. All of this, however, is just a preamble to my point here. This case could be important for something it does not talk about. At some point, someone will make the exact same argument the court uses in a case involving a social host -- friends and neighbors who do provide alcohol at their private parties. The opinion is available here.

Toxic Toys

Here is a report from The PopTort on toxic toys and the recent ruling of the Conusmer Product Safety Commission to allow the sale of products containing lead past the date set by the Consumer Product Safety Improvement Act: "A wave of toxic-toy recalls last year gave rise to federal legislation which was signed into law this past summer (“The Consumer Product Safety Improvement Act of 2008”). Among other things, the law “permanently bans the sale, after February 10, 2009, of toys and child care products that contain certain phthalates and lead.” Nevertheless, according to the consumer advocacy group Public Citizen, “In a letter dated November 13, 2008, the law firm Arent Fox, on behalf of unidentified [“wholesale and resale”] clients, asked the CPSC to only apply the U.S. ban to the production - and not sale - of toys with phthalates. In a legal opinion published only two business days later, on November 17, 2008, the CPSC General Counsel agreed. As a result, manufacturers can stockpile toys and child care products with the banned phthalates right up to the date of the ban, and then sell them to consumers long after the ban was supposed to go into effect.” Thankfully, the Natural Resources Defense Council (NRDC) and Public Citizen are challenging the CPSC’s reckless decision in federal court, alleging the CPSC “is failing to carry out its role in implementing the phthalates ban” which will result in “harm to consumers exposed to the chemicals.” "Selling millions of toxic toys to kids is not the way to dispose of them, as the law clearly states," said David Arkush, director of Public Citizen’s Congress Watch division which, along with NRDC, was heavily involved in lobbying Congress for stronger product safety rules. "It’s not only immoral - it’s illegal. It is horrifying that the federal agency charged with protecting consumers is telling the industry it can dump chemical waste on toy-store shelves."

Sixth Circuit holds The Vatican can be sued for sexual abuse

In a landmark ruling yesterday, the Sixth Circuit concluded that the Vatican could be held liable for negligence in sexual-abuse cases filed in the U.S. It is the first time a circuit court reached that conclusion, and the opinion is considered a breakthrough by those allegedly abused by priests. The opinion is available here. Click here and here for reports from the Wall Street Journal. Originally posted by Sheila B. Scheuerman on TortsProf Blog.

Check out the most recent "roundup"

Check out the most recent "Personal Injury Roundup" at TortsProf Blog, which lists links to the most interesting stories from the past couple of weeks. The stories are organized in the following categories: Reform, Legislation, Policy; New Lawsuits; Trials, Settlements & Other Ends; Appeals; Damages; Miscellaneous

New case challenges damages caps in Texas

Texas tort reform statutes limit "pain, mental anguish, impairment and disfigurement damages" to $250,000 per defendant. The plaintiffs in a recently filed medical malpractice case arising out of the injuries to an infant claim that "this arbitrary cap is a denial of due process to the Plaintiff and a violation of the United States and Texas Constitutions … and the rights to due process." Story available here. Originally posted by Sheila B. Scheuerman on TortsProf Blog.

Court Orders Unsealing of Settlement in Stadium Liability Case

An Appellate Division Court in New Jersey has held that secrecy must be lifted on how much a Giants Stadium vending company agreed to pay last year to a girl whose paralyzing injuries in a crash with a drunken fan. The Court held that the lower court judge erred when he sealed all records of the June 2007 settlement and subsequent proceedings to protect the privacy of plaintiff. The three-judge appeals panel agreed with an open public record's advocacy group that moved for the unsealing, finding the public interest trumps such privacy concerns. The (not yet published) opinion is available here: Verni v. Lanzaro. UPDATE: Law.com reports now that the unsealed documets reveal that the beer refreshment vendor at Giants Stadium agreed to pay $25 million to settle the case. The full story is available here.

How important was Chevron's win?

Professor Anthony Sebok (Cardozo School of Law) writes a very good column for FindLaw.com on Torts issues. His most recent is about yesterday's victory for Chevron in Bowoto v. Chevron. He states: "Yesterday, a federal jury in San Francisco rejected every claim made by a group of Nigerians who had sued Chevron for its role in aiding and abetting a brutal 1998 attack by Nigerian government forces. The case, Bowoto v. Chevron, has been watched closely by both supporters and critics of the Alien Tort Statute ("ATS"), the law under which this suit was brought. In this column, I will argue that the verdict is much less significant than it seems, and that critics of the ATS should be wary of reading too much into Chevron's victory." The full comment is available here.

Victory for Chevron

A nine-member jury handed oil giant Chevron Corp. a complete victory Monday in a high-stakes battle by Nigerian villagers who accused the company of cooperating with the Nigerian government in human rights abuses of protesters at the company's off-shore Nigerian facilities. The National Law Journal has the full story here. Law.com also has a report here.