The ABA Journal is reporting (with links to more information) that the Iowa Supreme Court has decided that a child whose father died before she was born can sue for loss of companionship in a wrongful death case. Similar opinions have been published in
This is an interesting question that I know a little bit about. One of the very first cases I ever handled as a young lawyer in private practice involved the same issue. In my case, a couple were expecting a child when the father was killed by a negligent driver in an accident. The child was later born without incident and the mother hired our firm to represent her in a claim against the driver. We included a claim for the child based on wrongful death. Like in the case in Iowa, the defendant argued that the child could not claim to have suffered an injury since the child never met the father (along the lines of you can't miss what you never had to begin with). I prepared a brief in reply to the motion to dismiss and won, and the case settled soon after that.
I had not looked into the issue since then, so now I am interested in catching up to see what has been written about it. Apparently, in addition to the case in Iowa, there are other reported decisions in Massachusetts and Wisconsin. I will add them to my summer reading list.
Tuesday, May 10, 2016
Should a social media app company be liable for the damages caused by a driver distracted by the app while driving? -- UPDATED
Earlier today I posted a note about a recent case on whether a person who sends a text to someone who is driving should be liable for injuries caused by the driver if the driver is distracted by the text. Now, here is a story with a similar theme.
Abnormal Use is reporting on an interesting case from Georgia in which social media giant Snapchat has been sued for allegedly causing a motor vehicle accident in which the at-fault motorist was distracted while using the application. You should go to AU and read the full report to get the whole story, which I will just summarize here.
The plaintiff in the case is claiming that the defendant driver struck her car while going at more than 100 miles an hour while using Snapchat. According to the report Snapchat has a feature that will show the speed you are going when taking a photo or posting a video. Apparently, according to the plaintiff's allegations, the driver wanted to show the world she was going more than 100 mph (with passengers in her car, one of whom was pregnant, by the way). She failed in her attempt to show this because she rammed into the car in front of her just before posting causing the plaintiff brain damage. But she was definitely able to show how stupid and reckless she is, and more since after the accident, she had the bright idea to snap and post a photo of herself on a stretcher.
But now back to whether the plaintiff should have a cause of action against Snapchat. One could argue that Snapchat should not be liable for the irresponsible conduct of the driver in this case. After all, the driver was the one that acted and caused the accident, right? Why should the social media company be responsible for how the user uses the app?
The problem is that the issue is not that simple. The fact that one actor is more culpable than the other, does not mean the other is not culpable at all. The relevant question is whether Snapchat should be considered culpable at all, and to answer that question first we have to ask whether the plaintiff can make an argument in support of a claim against Snapchat.
I think she can. As, Abnormal Use points out, "While a speed filter may be an interesting piece of technology, we assume in order for it to be useful there would need to be “speed” involved. The filter probably lacks the appeal of users taking a leisurely stroll through Central Park. We can appreciate the plaintiffs’ argument that the filter incentivizes users to go fast and, unfortunately, the most available means of doing so is by car."
In other words, Snapchat created a feature that it knew or should have known would induce users to speed thus creating risks of harm. Thus, it seems to me that you can argue that Snapchat created an unreasonable risk of a foreseeable type of harm, which gives the plaintiff support for a prima facie case.
Whether Snapchat should be as liable as the driver,... that's is different another question.
But whether you can make an argument that Snapchat should be liable at all... Yes, I think you can...
UPDATE 5/10/16, 8:40 pm: Abnormal Use has a published a longer post on the Snapchat lawsuit after downloading and testing the app.
Abnormal Use is reporting on an interesting case from Georgia in which social media giant Snapchat has been sued for allegedly causing a motor vehicle accident in which the at-fault motorist was distracted while using the application. You should go to AU and read the full report to get the whole story, which I will just summarize here.
The plaintiff in the case is claiming that the defendant driver struck her car while going at more than 100 miles an hour while using Snapchat. According to the report Snapchat has a feature that will show the speed you are going when taking a photo or posting a video. Apparently, according to the plaintiff's allegations, the driver wanted to show the world she was going more than 100 mph (with passengers in her car, one of whom was pregnant, by the way). She failed in her attempt to show this because she rammed into the car in front of her just before posting causing the plaintiff brain damage. But she was definitely able to show how stupid and reckless she is, and more since after the accident, she had the bright idea to snap and post a photo of herself on a stretcher.
But now back to whether the plaintiff should have a cause of action against Snapchat. One could argue that Snapchat should not be liable for the irresponsible conduct of the driver in this case. After all, the driver was the one that acted and caused the accident, right? Why should the social media company be responsible for how the user uses the app?
The problem is that the issue is not that simple. The fact that one actor is more culpable than the other, does not mean the other is not culpable at all. The relevant question is whether Snapchat should be considered culpable at all, and to answer that question first we have to ask whether the plaintiff can make an argument in support of a claim against Snapchat.
I think she can. As, Abnormal Use points out, "While a speed filter may be an interesting piece of technology, we assume in order for it to be useful there would need to be “speed” involved. The filter probably lacks the appeal of users taking a leisurely stroll through Central Park. We can appreciate the plaintiffs’ argument that the filter incentivizes users to go fast and, unfortunately, the most available means of doing so is by car."
In other words, Snapchat created a feature that it knew or should have known would induce users to speed thus creating risks of harm. Thus, it seems to me that you can argue that Snapchat created an unreasonable risk of a foreseeable type of harm, which gives the plaintiff support for a prima facie case.
Whether Snapchat should be as liable as the driver,... that's is different another question.
But whether you can make an argument that Snapchat should be liable at all... Yes, I think you can...
UPDATE 5/10/16, 8:40 pm: Abnormal Use has a published a longer post on the Snapchat lawsuit after downloading and testing the app.
New case on whether a person who sends a text to someone who is driving can be liable if the driver gets distracted by the text
Back in 2013 I reported that the New Jersey State Appeals Court had ruled that texting someone
while that person is driving may cause the sender to be liable if an
accident occurs. See here, here and here. To my knowledge, that was the only case that had been decided that way. Until now.
Eric Turkewitz of the NY Personal Injury Law Blog is reporting that a lower court in Pennsylvania has reached a similar result in a case called Gallatin-v-Gargiulo. You can read Eric's comment here.
Eric Turkewitz of the NY Personal Injury Law Blog is reporting that a lower court in Pennsylvania has reached a similar result in a case called Gallatin-v-Gargiulo. You can read Eric's comment here.
Monday, May 9, 2016
Case against Uber based on alleged sexual assault by driver can go forward; Court rejects motion to dismiss based on allegation that the driver was independent contractor
The ABA Journal is reporting today that a San Francisco federal judge has denied Uber’s motion to dismiss cases based on sexual assaults committed by Uber drivers. Uber's argument was based on the allegation that the drivers in question were independent contractors.
Obviously, if it is true that the drivers are independent contractors, the claims based on vicarious liability will be dismissed eventually. But the judge thought it is too early to tell. The question of the relationship between Uber and its drivers is being litigated elsewhere. There are at least two pending class actions against Uber, regarding whether drivers should be classified as employees or independent contractors.
So the claims based on vicarious liability are still in play. In addition, the plaintiffs have alleged claims based on direct liability based on negligence in hiring. Those claims would not be affected if it is ultimately decided that the drivers are independent contractors.
Obviously, if it is true that the drivers are independent contractors, the claims based on vicarious liability will be dismissed eventually. But the judge thought it is too early to tell. The question of the relationship between Uber and its drivers is being litigated elsewhere. There are at least two pending class actions against Uber, regarding whether drivers should be classified as employees or independent contractors.
So the claims based on vicarious liability are still in play. In addition, the plaintiffs have alleged claims based on direct liability based on negligence in hiring. Those claims would not be affected if it is ultimately decided that the drivers are independent contractors.
Saturday, May 7, 2016
Medical errors are now the third leading cause of death in the US; Yet, Oregon upholds cap to prevent victims of medical errors to recover full amount of damages
Here are two stories published within days of each other this week.
A new study concludes that medical malpractice has now become the third leading cause of death in the United States, which supports the arguments of those who for years have been advocating for reforms to minimize medical errors and to strengthen protections for those who suffer damages because of those errors. Go here for an article and a podcast on the new study.
Yet, at the same time, the response of tort reformers in many states is to continue to pursue measures intended to make it more difficult for victims of malpractice to pursue claims or to lower the amount of compensation they can recover is they do pursue the claims. For example, I recently commented on measures taken, or about to be taken, in Missouri, and Arkansas.
Now comes news of a recent decision by the Oregon Supreme Court which upheld a $3 million cap on damages against the state and its employees. Now, I understand that $3 million sounds like a lot of money (and it is!), but the fact is that measures like these have the effect of affecting much more those who suffer the worst types of injuries.
This case is a perfect example. The Court's ruling reduces a $12 million jury verdict in a case that involved a botched surgery that nearly killed a then 8-year-old boy. Here is what is important: the plaintiffs proved they would need $6 million to cover future medical need for the child. Yet, the Court cut down the award to half of that. The $3 million that is left out must now be absorbed by the family. The defendant caused the injury but the family has to pay at least half of the costs. OregonLive has the story.
A new study concludes that medical malpractice has now become the third leading cause of death in the United States, which supports the arguments of those who for years have been advocating for reforms to minimize medical errors and to strengthen protections for those who suffer damages because of those errors. Go here for an article and a podcast on the new study.
Yet, at the same time, the response of tort reformers in many states is to continue to pursue measures intended to make it more difficult for victims of malpractice to pursue claims or to lower the amount of compensation they can recover is they do pursue the claims. For example, I recently commented on measures taken, or about to be taken, in Missouri, and Arkansas.
Now comes news of a recent decision by the Oregon Supreme Court which upheld a $3 million cap on damages against the state and its employees. Now, I understand that $3 million sounds like a lot of money (and it is!), but the fact is that measures like these have the effect of affecting much more those who suffer the worst types of injuries.
This case is a perfect example. The Court's ruling reduces a $12 million jury verdict in a case that involved a botched surgery that nearly killed a then 8-year-old boy. Here is what is important: the plaintiffs proved they would need $6 million to cover future medical need for the child. Yet, the Court cut down the award to half of that. The $3 million that is left out must now be absorbed by the family. The defendant caused the injury but the family has to pay at least half of the costs. OregonLive has the story.
Friday, April 29, 2016
Missouri getting ready to abolish collateral source rule
Bad news for victims in Missouri. TortsProf blog is reporting that the Missouri House passed a bill abolishing the collateral source rule.
A version of the bill has already passed the Missouri Senate. The Missouri Times has details.
The collateral source rule is an old doctrine, which at one point applied pretty much everywhere, that prevented courts from taking into account any amount of money the plaintiff receives from a source other than a defendant when determining the amount of compensation in a lawsuit. Over time, with the backing of tort reformers, some jurisdictions have abolished the doctrine based on the phony argument that it allows the plaintiff to get unjustly enriched. The argument is that because of the doctrine the plaintiff can get paid by the plaintiff's insurance and then on top of that gets paid again by the defendant.
The argument is phony because the payment by the insurance company comes after the plaintiff has been paying the insurance premiums for however long the plaintiff had the insurance. So eliminating the doctrine actually penalizes the plaintiff for having gotten insurance to begin with.
The collateral source rule is an old doctrine, which at one point applied pretty much everywhere, that prevented courts from taking into account any amount of money the plaintiff receives from a source other than a defendant when determining the amount of compensation in a lawsuit. Over time, with the backing of tort reformers, some jurisdictions have abolished the doctrine based on the phony argument that it allows the plaintiff to get unjustly enriched. The argument is that because of the doctrine the plaintiff can get paid by the plaintiff's insurance and then on top of that gets paid again by the defendant.
The argument is phony because the payment by the insurance company comes after the plaintiff has been paying the insurance premiums for however long the plaintiff had the insurance. So eliminating the doctrine actually penalizes the plaintiff for having gotten insurance to begin with.
Arkansans to vote on possible med mal reform: limits to punitive damages and limits on fees
TortsProf blog is reporting that the Arkansas' attorney general recently approved the wording of a
proposed ballot item to amend the constitution that would instruct the
state's legislature to set a cap on punitive damages in med mal cases at no less
than $250,000, to be adjusted for inflation every 2
years.
Long time readers of this blog know I am opposed to caps in general, and caps on punitives in particular make little sense to me. Punitive damages are meant to be used as a strong deterrent for particularly bad conduct. The imposition of punitive damages is actually very rare, but when used by juries they are used to send a clear message. They are also meant to be punitive. They are supposed to hurt. These goals are best met if punitives are unpredictable. Once the defendants know what they punitives are likely to be, they can start calculating the risk and using a formula to count them as a cost of doing business. I am not sure what the wording at issue here is going to be or the final effect, but if it results in making the possible amounts imposed as punitives predictable then I'd say it is a bad idea.
Another aspect of the ballot item is to limit how much plaintiffs attorneys can charge their clients. This, as usual, is an attempt to make it more difficult for victims to find legal representation, which will in turn benefit those who caused the injuries. Reportedly, the new measure will ban lawyers from charging more than one-third as a contingency fee. This does not sound like much but it can make a difference in some cases.
With the approval, the sponsor can begin gathering the 84,859 signatures needed to place the proposal on the November ballot.
Long time readers of this blog know I am opposed to caps in general, and caps on punitives in particular make little sense to me. Punitive damages are meant to be used as a strong deterrent for particularly bad conduct. The imposition of punitive damages is actually very rare, but when used by juries they are used to send a clear message. They are also meant to be punitive. They are supposed to hurt. These goals are best met if punitives are unpredictable. Once the defendants know what they punitives are likely to be, they can start calculating the risk and using a formula to count them as a cost of doing business. I am not sure what the wording at issue here is going to be or the final effect, but if it results in making the possible amounts imposed as punitives predictable then I'd say it is a bad idea.
Another aspect of the ballot item is to limit how much plaintiffs attorneys can charge their clients. This, as usual, is an attempt to make it more difficult for victims to find legal representation, which will in turn benefit those who caused the injuries. Reportedly, the new measure will ban lawyers from charging more than one-third as a contingency fee. This does not sound like much but it can make a difference in some cases.
With the approval, the sponsor can begin gathering the 84,859 signatures needed to place the proposal on the November ballot.
Colorado Supreme Court has held that attorneys do not owe any duties to non-clients
The Colorado Supreme Court held attorneys owe no duties to non-clients,
such as the beneficiaries of a will, absent allegations of fraud, a
malicious or tortious act, like negligent misrepresentation.
You can read more about the decision here and here.
The ruling goes against the view expressed in the Restatement of the Law Governing Lawyers (Sec 51), followed in several states, which recognizes duties to third parties (non-clients) in several circumstances.
You can read more about the decision here and here.
The ruling goes against the view expressed in the Restatement of the Law Governing Lawyers (Sec 51), followed in several states, which recognizes duties to third parties (non-clients) in several circumstances.
Wednesday, April 27, 2016
Utah Supreme Court Holds Children Under the Age of Five Cannot Be Liable for Negligence
The Utah Supreme Court recently adopted a bright-line cutoff for
liability for negligent children, setting the limit at 5
years old. The case involved a 4 year old who threw a rubber dolphin
at his babysitter. Unfortunately, the dolphin hit the babysitter in the
eye. She had just had a cornea transplant and the accident blinded
her. The Volokh Conspiracy has the story.
Setting an age limit is not that unusual, but the age itself varies among states. I have read somewhere that the more common age is 7, but I have not done the research to confirm it. The Restatement (Third) of Torts suggests the age of 5, which is one of the reasons the Utah Supreme Court chose it.
One interesting thing about age cut offs is that the most famous case regarding intent (as an element for intentional torts) involved a 5 year old. Remember Garratt v. Dailey? I am sure you read it in law school. It's the case case about the 5 year old who pulls a chair out from under a woman who was about to sit down on it.
Thanks to TortsProf for the information.
Setting an age limit is not that unusual, but the age itself varies among states. I have read somewhere that the more common age is 7, but I have not done the research to confirm it. The Restatement (Third) of Torts suggests the age of 5, which is one of the reasons the Utah Supreme Court chose it.
One interesting thing about age cut offs is that the most famous case regarding intent (as an element for intentional torts) involved a 5 year old. Remember Garratt v. Dailey? I am sure you read it in law school. It's the case case about the 5 year old who pulls a chair out from under a woman who was about to sit down on it.
Thanks to TortsProf for the information.
Sunday, April 3, 2016
Article on Prosser's letters
Back in 2009, I posted a link to an article by Professor Chris Robinette (Widener) on the "Prosser Notebook" - a notebook of one of Prosser's students at the University of Minnesota in 1938. See here and here.
Chris has now published another article on Prosser's letters which is now available here. It contains material from an unpublished dissertation on Prosser's father, who played a crucial role in the development of vocational education, and materials from the Harvard archives.
Thanks to Chris for the link.
Chris has now published another article on Prosser's letters which is now available here. It contains material from an unpublished dissertation on Prosser's father, who played a crucial role in the development of vocational education, and materials from the Harvard archives.
Thanks to Chris for the link.
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