Should the officers, pledge board members of a fraternity or the fraternity itself be liable for the death of a student who becomes intoxicated, loses consciousness, and ultimately dies while participating in a social event at a college fraternity?
The Illinois Supreme Court has agreed to decide the question as presented in a case called Bogenberger v. Pi Kappa Alpha Corporation.
Like most states, Illinois does not recognize "social host liability" in most cases, but it does recognize possible liability under a statute called the Anti-Hazing Act which recognizes possible liability when the victim is required to drink to intoxication to become a member of a club or organization.
For more details on the case and the issues presented, go to The Appellate Strategist.
Saturday, January 28, 2017
Monday, January 23, 2017
New study concludes what we knew already: "stronger" med mal laws do not result in better care
A new study from Northwestern's Feinberg School of Medicine has
concluded that stronger medical malpractice laws do not translate to better care. The TortsProf blog has a link here. This, of course, is not news to anyone who has followed the issues related to med mal law and the attempts to "reform" it. There are multiple articles and books that discuss the evidence that debunks the myth of a med mal crisis and the need to eliminate the rights of injured victims to recover for their injuries. For more on the subject you can go the section on medical malpractice on this blog and scroll down. You will find many stories, links and information on the subject.
Tuesday, January 17, 2017
Alabama Supreme Court reaffirms ruling that recognized a cause of action for the wrongful death of a fetus before viability, adopting view that fetus is a "person" from moment of conception
The Alabama Supreme Court recently unanimously reaffirmed its 2011 ruling that recognized a cause of action for the
wrongful death of an embryo even before it was a viable fetus. In this case, the mother lost her pregnancy during the first
trimester, which means the embryo would not classify as "viable," the most common classification used by jurisdiction to determine whether a cause of action for pre natal wrongful death should be recognized. The case is called Stinnett v Kennedy and you can find a copy here.
The issue of whether to recognize a wrongful death cause of action is not new and many jurisdiction have addressed it. Yet there are three different approaches to it. Some recognize a cause of action for wrongful death regardless of the level of development of the fetus at the time of the accident. Typically, it is said these jurisdictions recognize the cause of action from the moment of conception. Illinois, for example, follows this approach in its wrongful death statute. Other jurisdictions do not recognize a wrongful death claim for pre natal death at all, finding that for there to be death there has to be life and life begins when the fetus actually survives (however briefly) independently of the mother. But, the most common approach is to hold that a cause of action should be recognized from the moment when it can be argued the fetus is "viable," meaning from the moment the fetus could survive independently of the mother.
Back in 2011, the Alabama Supreme Court recognized the cause of action in in part by making reference to a state criminal statute law that recognizes homicide of a person to apply to a fetus, regardless of viability. (This reminds of a scene in an old episode of the popular TV show Law & Order, which addressed whether the law could be interpreted to say that very thing in a state that did not have such a statute.) The reference seems relevant since wrongful death statutes usually refer to the death of a "person" so courts have to define at what point someone "becomes" a person. In Alabama, the statute states it applies to the death of a "minor child" but does not define "minor child."
But back to the new case... So, since 2011, Alabama recognizes wrongful death claims for the death of a fetus since conception. The issue in the new case, however, challenged the Court's reliance on the criminal statute which is a different question.
The criminal statute recognizes an exception for unintentional "mistakes" by doctors. This means that doctors can not be prosecuted criminally for unintentional conduct that results in the death of a fetus. In other words, the legislature decided not to recognize the criminal prosecution of negligent conduct.
Based on this exception to the criminal statute, the defendant in the case argued that since the statute upon which the civil case seems to be based does not recognize criminal liability for negligence, it would be inconsistent to recognize a civil cause of action for the same conduct.
The Court, however, rejected the argument. The argument would make sense if the Court had recognized the cause of action based on the criminal statute using a "negligence per se" type analysis. In such a case, it would be inconsistent to impose what could be "ruinous liability" for conduct that legislature did not consider bad enough to impose criminal liability for it. But that is not the type of analysis upon which the court based its conclusion. The Court looked to the statute, not as an expression of a duty in tort law, but merely for guidance to define the word "person."
The issue of whether to recognize a wrongful death cause of action is not new and many jurisdiction have addressed it. Yet there are three different approaches to it. Some recognize a cause of action for wrongful death regardless of the level of development of the fetus at the time of the accident. Typically, it is said these jurisdictions recognize the cause of action from the moment of conception. Illinois, for example, follows this approach in its wrongful death statute. Other jurisdictions do not recognize a wrongful death claim for pre natal death at all, finding that for there to be death there has to be life and life begins when the fetus actually survives (however briefly) independently of the mother. But, the most common approach is to hold that a cause of action should be recognized from the moment when it can be argued the fetus is "viable," meaning from the moment the fetus could survive independently of the mother.
Back in 2011, the Alabama Supreme Court recognized the cause of action in in part by making reference to a state criminal statute law that recognizes homicide of a person to apply to a fetus, regardless of viability. (This reminds of a scene in an old episode of the popular TV show Law & Order, which addressed whether the law could be interpreted to say that very thing in a state that did not have such a statute.) The reference seems relevant since wrongful death statutes usually refer to the death of a "person" so courts have to define at what point someone "becomes" a person. In Alabama, the statute states it applies to the death of a "minor child" but does not define "minor child."
But back to the new case... So, since 2011, Alabama recognizes wrongful death claims for the death of a fetus since conception. The issue in the new case, however, challenged the Court's reliance on the criminal statute which is a different question.
The criminal statute recognizes an exception for unintentional "mistakes" by doctors. This means that doctors can not be prosecuted criminally for unintentional conduct that results in the death of a fetus. In other words, the legislature decided not to recognize the criminal prosecution of negligent conduct.
Based on this exception to the criminal statute, the defendant in the case argued that since the statute upon which the civil case seems to be based does not recognize criminal liability for negligence, it would be inconsistent to recognize a civil cause of action for the same conduct.
The Court, however, rejected the argument. The argument would make sense if the Court had recognized the cause of action based on the criminal statute using a "negligence per se" type analysis. In such a case, it would be inconsistent to impose what could be "ruinous liability" for conduct that legislature did not consider bad enough to impose criminal liability for it. But that is not the type of analysis upon which the court based its conclusion. The Court looked to the statute, not as an expression of a duty in tort law, but merely for guidance to define the word "person."
Monday, January 16, 2017
Connecticut rejects Restatement 3d- Products Liability
In what some are calling the most important Connecticut tort-law decision in decades, last month the Connecticut Supreme Court declined to adopt the Restatement (Third)'s approach to product
liability design-defect claims and “reaffirm[ed] its allegiance” to a
“true strict liability” standard under §402A of the Restatement
(Second). The case is called Bifolck v. Philip Morris, Inc. (Deb 29, 2016). The TortsProf Blog has more on the story here. Connecticut is thus the most recent of a number of states to have rejected the Restatement 3d's approach.
Article on the proposed repeal of the ACA and the rights of injured patients to recover for injuries
Joanne Doroshow. Executive Director or the Center for Justice & Democracy at New York Law School, has published a short article on the connection between the proposed repeal of the Affordable Care Act and tort reform efforts to deprived injured patients of their rights to recover for their injuries.
Saturday, December 3, 2016
CT Supreme Court to consider appeal in previously dismissed lawsuit against gun maker related to shooting at Sandy Hook Elementary
Almost two years ago, I reported that the families of nine of the 26 people killed two years ago at the Sandy Hook Elementary School in Connecticut filed a lawsuit against the manufacturer, distributor and seller of the Bushmaster AR-15 rifle used in the shooting. See here and here.
Back in October, however, several sources the case was dismissed. NPR has more details on the story here. Also, Politico has the story here.
Now comes news that the Connecticut Supreme Court has accepted an appeal. NPR has the story, although there are very few details.
Back in October, however, several sources the case was dismissed. NPR has more details on the story here. Also, Politico has the story here.
Now comes news that the Connecticut Supreme Court has accepted an appeal. NPR has the story, although there are very few details.
Saturday, November 19, 2016
Podcast: Challenges of self driving cars
The program Case in Point (Univ. of Pennsylvania Law School) has posted a new 20 minute podcast on "Challenges of Self-Driving Vehicles."
Friday, November 11, 2016
Utah Supreme Court holds a person can sue herself under wrongful death and survival stautes
I recently read in the Legal Profession blog a summary of a recent decision out of the Utah Supreme Court with the oddest fact pattern I have seen all year, which provides an interesting discussion of issues related to the two courses I teach: Torts and Professional Responsbility. The case is Bagley v. Bagley and you can read the full opinion here.
Here are the facts of the case: One day back in 2011, Ms. Barbara Bagley, the common law wife of Bradley Vom Baur, lost control of the car in which they were traveling. Mr. Vom Baur was thrown from the vehicle and sustained severe injuries due to which he died ten days later. Eventually, in her dual capacities as sole heir and personal representative of the estate of Bradley Vom Baur, Ms Bagley sued herself in an attempt to compel her insurance company to indemnify her. Ms. Bagley was, therefore, the plaintiff and the named defendant in the lawsuit at the same time.
Plaintiff Bagley brought her first cause of action pursuant to Utah’s wrongful death statute, alleging that Defendant Bagley (herself) negligently caused Mr. Vom Baur’s death, thereby depriving his sole heir (ie, Plaintiff Bagley herself) of Mr. Vom Baur’s love, companionship, society, comfort, care, protections, financial support, pleasure, and affection.
Plaintiff Bagley brought her second cause of action as the personal representative of Bradley Vom Baur‘s estate pursuant to Utah’s survival action statute, alleging that Defendant Bagley negligently caused Mr. Vom Baur to experience pain and suffering prior to his death, which entitles Mr. Vom Baur’s estate to damages such as funeral expenses and medical bills.
The trial court granted a motion to dismiss, but the court of appeals reversed.
On these facts and based on the Court’s interpretation of the plain language of the two statutes, the Supreme Court affirmed the court of appeals and held that the “wrongful death and survival action statutes permit a person acting in the legal capacity of an heir or personal representative to sue him or herself in an individual capacity for negligently causing a decedent’s death or injury.”
In the case before the Supreme Court Ms. Bagley as plaintiff and Ms. Bagley as defendant were represented by a different law firms, but the Utah Defense Lawyers Association filed an amicus curiae brief arguing that the case would have negative consequences on the practice of law and that it presented impermissible conflict of interest. Among other things, the Association argued that the case “distorts the attorney-client relationship by creating a concurrent conflict of interest because “defense counsel’s representation of the client as the defendant is directly adverse to defense counsel’s representation of that same person who is also the plaintiff.” It also argued that the conflict would affect an attorney’s ability to communicate with his or her client, because, among other things, the client knows that anything she reveals will be used against her. Finally, the Association also raised concerns about jury confusion and the ability of an attorney to cross-examine his own client.
The Court admitted that the arguments “are not without merit” but dismissed them holding that the situation did not create a concurrent conflict because plaintiffs and defendant were acting “in different legal roles.” (See footnote 37 of the opinion)
You can read the full opinion here.
Here are the facts of the case: One day back in 2011, Ms. Barbara Bagley, the common law wife of Bradley Vom Baur, lost control of the car in which they were traveling. Mr. Vom Baur was thrown from the vehicle and sustained severe injuries due to which he died ten days later. Eventually, in her dual capacities as sole heir and personal representative of the estate of Bradley Vom Baur, Ms Bagley sued herself in an attempt to compel her insurance company to indemnify her. Ms. Bagley was, therefore, the plaintiff and the named defendant in the lawsuit at the same time.
Plaintiff Bagley brought her first cause of action pursuant to Utah’s wrongful death statute, alleging that Defendant Bagley (herself) negligently caused Mr. Vom Baur’s death, thereby depriving his sole heir (ie, Plaintiff Bagley herself) of Mr. Vom Baur’s love, companionship, society, comfort, care, protections, financial support, pleasure, and affection.
Plaintiff Bagley brought her second cause of action as the personal representative of Bradley Vom Baur‘s estate pursuant to Utah’s survival action statute, alleging that Defendant Bagley negligently caused Mr. Vom Baur to experience pain and suffering prior to his death, which entitles Mr. Vom Baur’s estate to damages such as funeral expenses and medical bills.
The trial court granted a motion to dismiss, but the court of appeals reversed.
On these facts and based on the Court’s interpretation of the plain language of the two statutes, the Supreme Court affirmed the court of appeals and held that the “wrongful death and survival action statutes permit a person acting in the legal capacity of an heir or personal representative to sue him or herself in an individual capacity for negligently causing a decedent’s death or injury.”
In the case before the Supreme Court Ms. Bagley as plaintiff and Ms. Bagley as defendant were represented by a different law firms, but the Utah Defense Lawyers Association filed an amicus curiae brief arguing that the case would have negative consequences on the practice of law and that it presented impermissible conflict of interest. Among other things, the Association argued that the case “distorts the attorney-client relationship by creating a concurrent conflict of interest because “defense counsel’s representation of the client as the defendant is directly adverse to defense counsel’s representation of that same person who is also the plaintiff.” It also argued that the conflict would affect an attorney’s ability to communicate with his or her client, because, among other things, the client knows that anything she reveals will be used against her. Finally, the Association also raised concerns about jury confusion and the ability of an attorney to cross-examine his own client.
The Court admitted that the arguments “are not without merit” but dismissed them holding that the situation did not create a concurrent conflict because plaintiffs and defendant were acting “in different legal roles.” (See footnote 37 of the opinion)
You can read the full opinion here.
Friday, November 4, 2016
Hospital System allegedly tries to force possible patients to give up right to sue or they will be charged more for services; and residents may be forced to work longer hours
NPR is reporting today that San Francisco area companies are complaining that Sutter Health is strong-arming them into a contract that would help the hospital system secure its power over prices and potentially raise the cost of medical care for their employees in the future.
The report says taht dozens of companies have received a letter asking them to waive their rights to sue Sutter. If they don't, the companies' employees who get care through Sutter's network of hospitals, doctors and medical services will no longer have access to discounted in-network prices.
Meanwhile, in a separate story, the group that sets the rules for medical residents has proposed changing the rule that says that interns, doctors in their first year of on-the-job training after finishing medical school, can work no more than 16 hours without a break. This rule was adopted many years ago to minimize the chances the rookie doctors would make mistakes while fatigued. The new proposed rule would let these new doctors work for as many as 28 hours at a stretch.
What do you think would be the cumulative effect of these two events?
Meanwhile, in a separate story, the group that sets the rules for medical residents has proposed changing the rule that says that interns, doctors in their first year of on-the-job training after finishing medical school, can work no more than 16 hours without a break. This rule was adopted many years ago to minimize the chances the rookie doctors would make mistakes while fatigued. The new proposed rule would let these new doctors work for as many as 28 hours at a stretch.
What do you think would be the cumulative effect of these two events?
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