Most interesting stories this week

It's Friday, which means it's time for the lists of the most interesting stories for this week. For the TortProf Blog's list go here.

Tort reform in Oklahoma is now official

A couple of weeks ago I posted an update (and some criticism) on efforts to pass a tort reform bill in Oklahoma (see here). Today, TortsProf Blog is reporting that the bill was approved and the Governor signed it into law. For more on the story go here. Thanks to TortsProf for the info and link.

Another comment on Pres. Obama's memo on preemption

Consumer rights group Public Citizen has published a comment on Pres. Obama's recent memo on preemption here.

More on Pres. Obama's memo on preemption

Two days ago, I posted a note on a new memo issued by President Obama in which he makes clear his desire to step away from the Bush administration's views on preemption. Yesterday, I posted some links to comments on the memo. Here are some new links to comments in the FDA Law Blog, The Wall Street Journal.com, The New York Times and Lawjobs.com.

Most interesting stories this week

It's Friday, which means it's time for the lists of the most interesting stories for this week. For the TortProf Blog's list go here. For the PopTort Blog's list go here.

Bill to Partially Overrule Feres Doctrine Approved by House Judiciary Subcommittee

I have posted numerous notes on issues related to claims by armed forces service members (see here). Of particular interest are the links to stories on the recent efforts to change the law that prevents members of the military to recover for most injuries suffered while in service regardless of the negligence of the government. Today, the TortsProf Blog is reporting that the House Judiciary Subcommittee on Commercial and Administrative Law approved a bill to allow armed services members and their families to sue for negligent medical care. The full House Judiciary Committee is expected to consider the bill by the end of July. For the full story and a couple of links go here.

Pres. Obama's memo on preemption

Yesterday I posted a note on a new memo issued by President Obama in which he makes clear his desire to step away from the Bush administration's views on preemption. Here is a link to the memo itself. Also, here are links to comments on the memo (all with more links) by the Drug & Device Law Blog, the Products Liability Profs Blog, Tort Deform Blog and The Wall Street Journal.

New York court gets assumption of the risk wrong, again.

Some time ago, I argued that an appellate court in New York got it all wrong when applying the concept of "assumption of the risk" in a case involving an injury on a golf course. (See here.) Now comes news of a new case, this time involving a skiing accident, in which a different division of the court makes the same mistake. Of course, it is not necessarily the court's fault in that it is simply applying the precedent in the jurisdiction, but at some point, someone should realize the precedent makes no sense.

Once again, the court was applying the so-called "primary assumption of the risk" doctrine. In this case, a 17 year old skier was injured while attempting to execute a maneuver over a rail on the "park" section of a ski area. He sued arguing that the rail posed a concealed danger to skiers because it was not "skirted," meaning its vertical support bars were not covered or cushioned. However, a unanimous 3rd Department panel held that under the doctrine of primary assumption of risk, the defendant's obligation was to make the conditions of performing an inherently risky maneuver like rail sliding as safe as they appear to be, not as safe as it could be.

That is the problem. The court is essentially holding that the plaintiff is unable to satisfy the prima facie element of duty. This has nothing to do with assumption of the risk, which is a an affirmative defense based on an evaluation of the plaintiff's conduct. Using the phrase "primary assumption of the risk" to refer to cases in which the issue is whether there is a duty is confusing (at least).

Here is another example: "If the risks of the activity are fully comprehended or perfectly obvious, [the] plaintiff has consented to them and [the] defendant has performed its duty." Again, if the conclusion is that the defendant has performed its duty, then the court is simply saying that the plaintiff can't establish the element of breach of duty, which, again, has nothing to do with assumption of the risk.

Yet another example: "Claimants presented no evidence that the industry or any regulating body had adopted any standards regarding the use of skirting on rails or that ski parks normally adhered to the practice of placing skirting on all rails, including low difficulty rails such as that at issue." Here the court is going back to the question of duty. By looking at the lack of uniformity in the industry custom, the court is saying the plaintiff has no evidence to support the duty he wants the court to impose on the defendant... and, do I need to say it again?... this has nothing to do with assumption of the risk....

The case is called Martin v. State of New York.

Obama attempts to depart from Bush's administration views on pre-emption

UPI.com is reporting today that President Obama has distributed a memorandum to the heads of executive departments and agencies in which he states that "(The) general policy of my administration (is) that pre-emption of state law by executive departments and agencies should be undertaken only with full consideration of the legitimate prerogatives of the states and with a sufficient legal basis for preemption." This is, of course, a break from the approach of the previous administration which pursued and supported preemption on a massive and unprecented scale. Full story here.

Contributory negligence; and then there were three?

I believe there are only four states that still apply the old common law rule of contributory negligence according to which a negligent plaintiff can't recover from a negligent defendant regardless of how insignificant the plaintiff's negligence may have been. Soon that number may be reduced by one. The Torts Prof Blog is reporting today that a Bill that would change North Carolina to a comparative fault jurisdiction was approved by the North Carolina House of Representatives last week. According to the bill, however, a plaintiff would be allowed to recover only if the plaintiff was less negligent than the defendant. Obviously, this is an example of a so-called "modified" comparative negligence system which I have always argued is no comparative negligence system at all. If anything, it is a modified contributory negligence system since all it does is modify the threshold for the application of the old contributory negligence rule to apply. In other words, jurisdictions that apply a "modified" system in reality are still applying a contributory negligence system, the only difference with the old common law system being the point at which the consequences of the plaintiff's conduct take effect. The only real comparative negligence system is the so called "pure" system, which still appears to be the minority rule among jurisdictions.