Recent Illinois Appellate Court opinion shows Illinois law is out of touch with generally accepted principles of tort law

I just read a recent opinion of the Illinois Appellate Court which, based on an analysis developed by the Illinois Supreme Court, makes me think Illinois is due for a nice makeover when it comes to the notion of causation.  The case is called O'Neill v. General Motors and here is my quick comment.

The facts of the case are relatively simple:  The plaintiffs’ car suddenly and unexpectedly stopped on the road because an electronic control module in the car malfunctioned. Later, while trying to find a solution to their problem, the plaintiffs were injured when an intoxicated driver ran into the rear of their vehicle. The defendants (the manufacturer of the component and the seller of the car) filed motions for summary judgment arguing that their conduct was not the proximate cause of plaintiffs' injuries because the conduct of the intoxicated driver was a superseding cause.  The circuit court agreed and dismissed the claims.  The plaintiffs appealed.

On appeal, using convoluted and confusing language inherited from precedent cases, the court affirmed applying an analysis that, at least in part, does not follow generally accepted principles of tort law.

Because the defendants conceded that the defective product was a cause in fact of the injuries, the only issue before the lower court was whether to take away from the jury the question of proximate cause.  To decide that, the court should have asked whether reasonable people would disagree that the plaintiffs' injuries were a foreseeable consequence of the risk created by the conduct of the defendants.  And the answer, in my opinion, clearly should have been yes.

The conduct of the defendant created the risk that the driver and occupants of the car would get stranded in the middle of the road.  For that reason, it is reasonably foreseeable that they would be exposed to the typical risks related to being stranded on the road which include being injured by another driver.  This is why courts typically hold that when a defendant's negligence exposes another to a an automobile accident, the conduct of the person who causes the accident is not a superseding cause.

In O'Neill, however, the court held the opposite.  Its analysis seems to be based, in part, on the now abandoned Second Restatement's approach and on a unique approach to the character of intervening causes.

The defendants main argument in support of the proposition that the conduct of the intoxicated driver should be considered to be, as a matter of law, a superseding cause was that the conduct was criminal in nature.  In other words, the defendants were arguing that the conduct was unforeseeable because it was criminal. 

To agree with this argument requires a finding that all criminal conduct is, by definition, unforeseeable, and the problem is that clearly this is not the case.  And because it is clear that not all criminal conduct is unforeseeable, the generally accepted principle is that foreseeability is not determined by the character of the conduct.  

But Illinois apparently does not follow generally accepted principles of tort law.  As the court explains, in Illinois “[a] criminal act is a superseding cause of a plaintiff's injury and relieves the originally negligent defendant of liability, except where the defendant’s acts or omissions create a condition conducive to a reasonably foreseeable intervening criminal act.”

I don't understand what this "exception" really means.  Is it just saying that a criminal act is not superseding if it is foreseeable?  If that is all this means, then I have no problem with it.  That is the generally accepted principle.  But I don't think that is what the statement says.  It seems to say that the criminal act is not superseding only if the original defendant created the risk that someone else would commit a criminal act, which does not make sense.  If the original defendant created that risk, there would be no issue of superseding cause to talk about.

In addition, the court’s analysis confuses what it is that the plaintiff should be arguing is foreseeable.  While the type of harm suffered must be reasonably foreseeable, the precise manner in which it occurs and the extent of the harm need not be foreseeable.  Given that it can be argued that the conduct of the defendant created the risk of harm associated with being stranded in the middle of a road, whether the injury was caused by a drunk driver or a negligent driver or a driver who falls asleep at the wheel should make no difference.

In the end, I think the court simply wanted to decide in favor of the defendants – maybe because the judge thought it would have been unfair not to –  and used the notion of proximate cause to justify the result.  For this reason, although I think the case was wrongly decided, the decision does illustrate that as a noted commentator has already stated “[w]hile the intervening intentional wrongdoing of a third party may, under the circumstances, be foreseeable and not superseding, the relative culpability of an intervening force will inevitably influence, particularly in a close case, the decision to characterize an intervening force as superseding.”  (Diamond, Understanding Torts, 4th ed. p. 193).


UPDATE: (3/14/14):  One of the blog's readers just wrote to me with an important clarification about this case.  The Illinois Appellate Court’s decision is an unpublished order under Illinois Supreme Court Rule 23 and, as such, the case may not be cited as precedent.  That's a good thing because it would have been really bad precedent!

Those making fun of the latest lawsuit against McDonald's may be missing the point

A number of outlets and blogs around the internet have been quick to criticize and make fun of a report of a new lawsuit against McDonald's. According to the news stories (all of which are very thin on details, and none of which has a link to the actual complaint), after a customer complained to a McDonald's employee that he needed more napkins, the employee responded with a racist remark and a confrontation ensued. I have not seen any more details than that.
 
Focusing mostly on the napkin aspect of the story, however, some outlets have found an easy way to suggest that this is another example of frivolous lawsuits or people trying to get a quick buck, etc. The New York Daily News, for example, wrote "Unhappy eater Webster Lucas reportedly wants $1.5 million from the fast-food company after he claimed the staff only gave him one napkin." (And, why does the newspaper say "reportedly", I wonder? The story seems to be based solely on what another secondary source reported (see below).)
 
None of the stories I found has a link to the actual complaint, so my guess is that all of us, myself included, are speculating as to the actual content of the claim. But given that I don't believe a lawyer would be willing to face almost certain sanctions for filing a complaint asking for $1.5 million in compensation based on the fact that a client was given only one napkin, I am actually going to think about what this case is really about.
 
Let's be real. This case is not about napkins. This case is about how the plaintiff was treated afterward, particularly about his reaction to the allegedly racist comment. This case is, in fact, just like a very important case in the history of American Tort law we all read in law school called Fisher v. Carrousel Motor Hotel in which an African American man sued for battery after being told he had to leave a hotel dining room because of his race.
 
If the allegation of a racist comment is true, the claim actually raises important policy and tort law related issues. Should we recognize a cause of action for the effect of racist language absent a battery or assault? That is a question we have struggled with for a long time. A case like this one can create the opportunity for a court to address that discussion again (or for the first time).
 
Now, like I said, I have not seen the complaint, so maybe I am all wrong. After all, the story apparently was first reported by the always reliable legal news source TMZ and maybe they are right. Maybe the case is all about that missing napkin. Maybe there was no racist comment at all. Maybe the claim is frivolous.
 
But I am not going to pass judgment until I see the allegations. I think there can be more to this case that what those who want to limit access to civil justice would want you to see.

Having said that, I should comment on the other aspect that others are emphasizing: the amount of money asked for as compensation. First of all, as lawyers, we all know the amount means nothing. It is just numbers on a piece of paper. It has nothing to do with the actual value of the claim. The value of the claim will be eventually determined by the parties through the negotiation of a settlement (in most cases) or by a jury (in the rare instance in which the case actually goes to trial.) and then, in many jurisdictions, it may be reduced by a statutory cap.
 
The number at the end of the complaint is there to do what it did: attract attention, and, for that reason, it is really just a distraction. The media (and tort reformers) love it because the story now becomes one about how much money the plaintiff's lawyer wants instead of one about the real issues in the case. This is counter productive for the plaintiff. Just like the attention given to the napkin, the emphasis on the amount of the claim detracts from the seriousness of the issue.
 
For this reason, I like the rule used in some jurisdictions which actually does not allow a specific amount request. New York has such a rule. It makes a lot of sense and I wish more jurisdictions would adopt it.
 
 

 

After all these years, a new claim against the manufacturers of DES

You may remember from your law student days having read two important cases involving claims against manufacturers of a drug usually referred to as "DES."  This was a drug often prescribed to pregnant women up until the 1970s . An estimated 4 million people were exposed in utero to the effects of DES, but because the effects continued to be transmitted to the children of those exposed in utero, the effects could continue to cause problems for many more people over generations.

How long would a manufacturer of the drug be on the hook for those possible injuries?

Well, in terms of "cause in fact", as long as the plaintiff was able to prove the connection between the injury and the exposure to the drug.  This would be a question of fact and, ultimately, depend on the availability and credibility of that evidence.  And, to help plaintiffs support the claim if they did not have all the evidence available, one of those two famous cases, Sindell v. Abbott Laboratories, created the concept of "market share liability", which made it easier for plaintiffs to support the element of cause in fact against drug manufacturers.  Interestingly, however, the concept of market share liability has not had the effect some thought (or feared) it would have for future cases, having been limited to DES cases and rejected in almost every other case it has been argued, most notably in lead paint cases.

The other case, Enright v. Eli Lilly, is used in a number of Torts textbooks to illustrate the difference between cause in fact and proximate cause because it holds that, in terms of policy (whether you call it duty or proximate cause) the court would not recognize a cause of action for plaintiffs who were not exposed to the drug in utero, even if they could make the factual connection between their injuries and the effects of the drug.

Given that the use of the drug was discontinued in the 1970s and that courts have shown to be uncomfortable with the idea of extending possible liability over generations, I thought the days of claims for injuries caused by DES were over (and with them, the notion of market share liability).

I guess I didn't realize that there could still be some people out there who could claim they had been exposed to DES in utero.  For this reason, I was surprised to read a story a few days ago about a new claim against all of the former manufacturers of DES filed by a woman in North Carolina arguing that her breast cancer was caused by the effects of the DES her mother took while she was pregnant in 1965.   You can read the full story here.

California Supreme Court to decide case on possible social host liability

A few years ago I posted a series of stories on an important case in Illinois that presented the opportunity to address questions left open by past cases on the possible liability of social hosts for serving alcohol to their guests.  That case involved the question of whether the conduct of a commercial establishment that allowed people to bring their own booze should be analyzed under principles that apply to commercial establishments that sell alcohol or the principles that apply to social (non commercial) hosts who provide free alcohol.  The court avoided the question altogether by approaching the issue in a different way (one that I argued was absurd, but that is a different story you can read about here.)

The new case in California presents a mirror image of the Illinois case.  The case involves a social host who asked the guests to pay a fee to defer the costs of the alcohol.  While Illinois was dealing with a commercial host that did not sell alcohol, California is dealing with a social host who charges money to help pay for the alcohol.  Granted, the social host was not "selling" the alcohol to any individual guest, but was using the money to pay for the alcohol that was available to all the guests.

California does not recognize social host liability unless the host, licensed or not, sells alcohol. The question in  this new case is whether a "cover charge" (which in this case was $3 to $5 and which is common at college student parties) to cover the cost of the liquor, constituted a "sale of alcohol." If so, the defendant could be held liable for the wrongful death of the plaintiff's son who was killed by the drunk guest.

The Los Angeles Times has more on the story here.

UPDATE (3/23/14):  The Appellate Strategist has a more on the story here.

Generic drug makers argue against new FDA safety label rule

Back in November I posted that the FDA proposed a new regulations that would allow (and presumably encourage) generic drug manufacturers to add or update the safety warnings on their products.  Go here for my original post and the background on the controversy.

You would think that manufacturers interested in making sure their products are safe would welcome the new rule.  However, because the current system works to immunize generics manufacturers, a change that would work to make the products safer would also open the door to possible liability.  Thus, as you would expect from those who are more interested in profit than safety, the manufacturers hired a consulting firm  to conduct a cost-beneift analysis of the consequences of the new rule.  And, not surprisingly, the analysis concludes that the change is not good for consumers.  You can read the report here.  Then, go here for a report by Center for Justice & Democracy (called "America’s Unaccountable Generic Drug Industry; How Legal Immunity Could Be Making You Sick") which explains how deficient the current system is. You can read a short comment on it here.  and form your own opinion.

For more on this issue go here.

Another story of false arrests in Austin, Texas

A few days ago I posted a comment on a story about the arrest of a woman in Austin, Texas.  Much of the discussion was about the police's conduct, but as I pointed out, there is a torts angle to the story because the Police Chief essentially admitted to a false arrest.

Now comes another story which is just as bad, if not worse!

A couple of days ago Res Ipsa Loquitur posted a comment criticizing Autin's police department's so-called "take no chances policy" which they apparently use to arrest citizens even though they have not committed any crimes just because the police wants to make sure they don't go on to commit crimes in the near future (I guess).  Sounds like the movie Minority Report to me ...  "you are under arrest for the future murder of so and so....",  But I digress...

In any case, the story is that Austin police pulled over a man for running a red light. No problem there.  But then the police asked the man to take a voluntary breath test.  He consented and blew a 0.0. He also agreed to a blood sample and was later cleared of drugs. Having shown he was not intoxicated or under the influence of drugs, he was arrested anyway and spent the night in jail.

The story does not state what he was arrested for, but I doubt that you can be arrested and "sentenced" to a night in jail for running a red light.  The police officers apparently claimed they had a reasonable suspicion that the suspect was under the influence of a drug not covered by the test and did not want to take a chance. Such is the "take no chances policy", apparently.  The police think you did something wrong, so they have the right to arrest you for it, even if there is no evidence of it other than a mere suspicion.  The story also states this is not the first reported incident under this "policy."  The cases are routinely dismissed but not after citizens have to spend the night in jail.  

If these allegations are true and if there really is a customary practice based on this so-called policy, someone should start a practice specializing in false arrests in Austin!  (Just make sure you don't mention you specialize, but that is another story.)

Police Chief apparently admits to false arrest by officers in controversial case in Austin, Texas

One of my students sent me some links to a story out of Austin, Texas that illustrates a number of interesting points, including why a client should not address the media before talking to his lawyer.  The case is very similar to Enright v. Groves, a case that you probably read in law school on the basic principles of the tort of false arrest.  You may have heard the story, which apparently has been going around the internet for a few days, but here it is just in case.

According to the news stories I have read, it sounds to me the police set out to catch (and ticket) jaywalkers at a certain intersection.  A young lady came by jogging while listening to music through earphones and did not stop for the "do not walk signal."  After she crossed the street, an officer told her to stop but she didn't.  The officer then chased her down and detained her.  Exactly how that happened is subject to debate but the fact is she was pulled by the arm, detained, handcuffed and was taken to a police car.  Some of this was caught on video and photos. Later, in response to the reaction to the story, the Chief of Police declared that the woman was arrested for "failure to identify" not for "resisting arrest."  He also said that she went to jail because she failed to answer a question she was legally obligated to answer.

Here is the problem: the Chief is wrong.  According to the law, the police can't arrest someone for failing to produce an ID on demand.  They also can't arrest you for refusing to identify yourself at their request.  The statute in question states that "a person commits an offense if he intentionally refuses to give his name, residence address, or date of birth to a peace officer who has lawfully arrested the person and requested the information."  In other words, the offense is only committed if the person refuses to identify herself after they have been lawfully arrested.  Arresting someone for failing to identify herself, without more, is not a lawful arrest.  Bottom line, the woman had no duty to answer the question and the police had no legal authority to put her under arrest for it.

If the police had arrested the woman for something else (like jaywalking or resisting arrest) with probable cause, then she could be charged under the failure to identify statute.  But the Chief admitted publicly and in camera that that is not what happened.  In the televised press conference, he clearly stated (more than once) that the woman was arrested for failing to identify herself, and that "that" is why she spent time in jail.

Well, Chief, you just handed her a claim for false arrest (at least) on a silver platter!

Assumption of the Risk? (part 2)

I was asked to comment on my rhetorical question related to assumption of the risk as suggested by the photo I posted below. 



So here it is...

The question is whether a defendant could claim assumption of the risk based on the statement included in the sign.  My answer is that the sign itself does not support the argument, but the argument can be made regardless of the sign. 

What do I mean by that?  I mean that the sign may help the defendant, but only if the defendant can prove the plaintiff read it.  Otherwise, the sign is pretty much irrelevant.

The message in the sign does not constitute a form of "express" assumption of the risk, because the sign, by itself, does not create an agreement between the parties.

Moreover, to support an argument of "implied" assumption of the risk, the defendant would have to show that the plaintiff knew of the risk, appreciated its magnitude and voluntarily decided to take the risk anyway.  A defendant may very well be able to support that argument but the sign is not needed for that.  

So why put the sign up if it sounds like it is almost irrelevant?   Well, there are a couple of reasons.  First, the sign really is just what it says at the top:  a warning.  And if the defendant can show the plaintiff read the warning and understood the magnitude of the risk involved, the defendant can support the argument for implied assumption of the risk.  Second, the sign may discourage people from suing by suggesting that they don't have a right to do so.

Having said all that, it should be noted that many jurisdictions don't recognize assumption of the risk as a separate defense anymore.

Iowa Governor apparently believes in myths

Iowa Governor Terry Branstad's 2015 state budget proposes a cap on non-economic medical malpractice awards arguing it is needed to keep doctors from leaving Iowa.  This might be a good idea were it not for the fact that it has no basis in reality.  The myth that doctors move away because of the effects of medical malpractice litigation has been debunked time and time again. Unfortunately, reality never stops tort reformers from trying to push their agenda.   For more go to the Torts Profs blog.

Assumption of the Risk?

My kids love sledding.  Here is a sign at the hill near our house....