Illinois Supreme Court abolishes "public duty rule"

As you probably know the so-called “public duty rule" is a label given to the principle upon which courts base decisions holding  that local government entities do not have a duty to individuals rather than to the public as a whole -- unless it is affected by statute or if the conduct of the government gives rise to reasonable reliance on the part of the plaintiff.

The "rule" has been criticized by some courts and commentators as a way for jurisdictions to revive governmental immunity even after immunity was abolished (or regulated) by statute.  On the other hand, one can make the argument that it is a principle that is rooted in the concept of separation of powers in that it allows government branches to make choices without fear of being second guessed by other branches.

Last month the Illinois Supreme Court joined the ranks of those jurisdictions that have abolished the public duty rule in Coleman v. East Joliet Fire Protection District.

The Court, however, could not agree on the basis for the decision and, thus, issued a "plurality opinion."  Four justices agreed that the public duty rule should be abolished, but they disagreed on the reasons to support the conclusion.  Three justices dissented.

The first opinion, by Justice Kilbride, admits that "the primary rationale employed by the courts that abolished the public duty rule was that the doctrine was nothing more than a continuation of sovereign immunity and should not exist when sovereign immunity had been abolished."  However, Justice Kilbride disagreed with this since he concludes that the public duty rule "is not rooted in sovereign immunity nor did the public duty rule develop from any concepts of government immunity from suit."

Even so, the opinion holds that the rule should be abolished for three reasons: (1) the jurisprudence applying the rule and its special duty exception has become “muddled and inconsistent”; (2) application of the rule is inconsistent with the legislature’s acknowledgement of limited liability for willful and wanton misconduct; and (3) the legislature’s enactment of statutory immunities has rendered the rule obsolete.

In a concurring opinion, Justices Freeman and Theis argue that the public duty rule was based on sovereign immunity and, therefore, should have been abandoned when sovereign immunity was abolished in Illinois.

Even though the majority of the justices could not agree on the reasons for the decision, they agreed on the result and the public duty rule has now been officially abolished in the state.  For this reason, as the main opinion concludes,  "in cases where the legislature has not provided immunity for certain governmental activities, traditional tort principles apply." 

....until the legislature decides to take up the matter, that is, since, as the opinion also states, "[o]bviously, if the legislature determines that the public policy requires, it may codify the public duty rule, but we defer to the legislature in determining public policy."

The Appellate Strategist has a good review of the opinions here.

Iowa Supreme Court rejects notion that malpractice plaintiff has to show actual innocence in order to support claim against former criminal defense lawyer

In a many jurisdictions, a convicted criminal defendant who wants to recover for malpractice against his or her former lawyer has to obtain post conviction relief and prove that he or she was actually innocent of the crime for which they were convicted.  This view has been criticized but still appears to be the majority view.  Yet, I have read recent cases where a few courts have abandoned this view in favor of the minority approach which does not require the convicted defendant (plaintiff in the malpractice claim) to show actual innocence.  The most recent court to so hold was the Kansas Supreme Court, something I reported about a month ago here.

Now comes news (via the Legal Profession blog) that the Iowa Supreme Court has taken the same step.  Actual innocence is no longer required as an element of the cause of action.  The case is called Barker v Capotosto, and it is available here.

Maryland legislature to consider bill that would eliminate trial by jury in malpractice cases that result in injury to newborns

According to the PopTort, Maryland, hospitals are pushing a bill that targets catastrophically-injured newborns. The legislation – which is the subject of Maryland legislative hearings later this week – would abolish access to the jury system regardless of the extent of the hospital’s misconduct or the severity of the child’s injury. To be compensated, parents would be forced to go to a state fund.  Go here for more details.

Proposed bill would eliminate the gun manufacturer immunity

Legislation recently proposed by several U.S. lawmakers seeks to remove the controversial immunity that has protected gun manufacturers and dealers from liability in lawsuits. For more information go here.

New lawsuits filed alleging injuries caused by "energy drinks"

Back in 2012 and 2013 there was a lot of discussion on whether so-called "energy drinks" could be dangerous, particularly to minors.  (For my posts on the subject go here, here, here, here, here, here, here, here, here and here.

The issue is now back in the news because, as reported in AboutLawsuits.com, "a group of five new lawsuits have been filed over side effects of Monster energy drinks, alleging that the products caused plaintiffs to suffer heart attacks, strokes, kidney failure and other injuries. The complaints were filed earlier this week in Florida, involving individuals between the ages of 14 and 42, who suffered Monster energy drink injuries."  For more details go here.

Which states require "certificate of merit" in order to bring a malpractice claim? -- UPDATED

Many states require an “affidavit of merit” in order for a plaintiff to bring a malpractice claim (medical or legal).  The blog Professional Liability Matters has prepared this 50 state survey-table with the relevant information.

One interesting question to ask is whether a claim against a professional for a different cause of action, such as a breach of fiduciary duty or an intentional tort, would require the use of a certificate of merit.  Some courts have held that it would not.

UPDATE (1/27/16):   In relation to the last point above, here is the most recent development.  Just a few days ago, in Perez v. Zagami, LLC, 2016 BL 7198, N.J. Super. Ct. App. Div., No. A-3268-14T2, 1/12/16, the court held that the New Jersey statute that requires malpractice plaintiffs to file an affidavit of merit attesting to the viability of the complaint doesn't apply to a lawsuit accusing an attorney of malicious use of process.  For more on the case go here.

Comment on most recent version of a no-fault "patient compensation system" to eliminate medical malpractice lawsuits

Attempts to find ways to eliminate the rights of victims of medical malpractice are nothing new.  Over the years, many organizations have tried, sometimes successfully, to either eliminate the right to sue, or to make it more difficult to sue or to limit the amount available for compensation.  Most of the most radical proposals, however, have failed.  For many stories on this subject click on the "medical malpractice" label on the right side and scroll down.

But if you want the latest on the topic, go here, where you will find a comment of a new (in terms of timing, not in terms of ideas) attempt to eliminate the right to sue for medical malpractice.

This new proposal is based on something called a “Patient Compensation System” which would completely do away with judges and juries in medical malpractice cases and replace them with a new, centralized government agency made up of political appointees and government bureaucrats representing the medical and business establishments who would award compensation to injured patients based on predetermined schedules.

For more information you can read a new study prepared by the Center for Justice & Democracy which concludes that the proposal would “tilt the legal playing field dramatically in favor of the health care industry" and "ignore patients’ rights to adequate compensation."

For a comment and more information go here.

Tennessee Court of Appeals rejects argument that some dogs are dangerous by nature, which would eliminate need to show knowledge of dangerous propensity

Long time readers of this blog might remember my discussion and article on the debate on whether courts should recognized a cause of action against the owner (or possessor) of a pit bull even if there is no evidence that the defendant knew or should have known that the dog had dangerous propensities.  Although it is not the rule in many jurisdictions any more, this requirement is very common.

Back in 2012, this was a very hotly debated topic because a court in Maryland decided that a plaintiff could support a claim against the owner of a pit bull based on the argument that the defendant knew the dog was a pit bull.  (See here.)  In other words, the court held that the nature of the breed was such that simply knowing the dog was of that breed meant the defendant knew or should have known the dog was dangerous. Eventually, the Maryland legislature adopted a statute that changed the state of the law.  (See here, here and here.)  You can find a copy of the article I wrote on the subject here (which I will be updating soon with a copy of the final, published version).

The issue was again in the news recently, this time in Tennessee. As reported in the TortsProf blog, the Tennessee Court of Appeals affirmed dismissal of a civil claim which asked the court to create a “big dog exception” to the notice requirement. 

In the Maryland case, the plaintiff based the argument on the arguably aggressive nature of the breed of the dog.  In this case, the plaintiff based the argument on the size of the breed, arguing that “it is common knowledge that Great Danes are an extraordinarily large breed” and “that its size alone placed the Defendant on notice of any dangerous propensity.”   The plaintiff also argued that “Great Danes are a suspect class of dog” because they are “a large and naturally dangerous animal, based on size, weight, and strength.”

The court rejected the argument, holding that "we, like the trial court, decline to craft an exception to the long and well established rules in dog bite cases, based solely on a dog’s size or breed" and affirmed the summary judgment based on the lower court's finding that there was no evidence that plaintiff knew or should have known that the dog had any dangerous propensities.

New report finds FDA is failing to track side effects of drugs it approves

The Government Accountability Office (GAO) recently issued a report on drug safety which concludes that the FDA is approving too many drugs via the fast-track approval processes and then it is failing to monitor those drugs’ effects on patients to ensure they are actually safe.   AboutLawsuits has more details and links here. 

Reports like this one are important because they provide support against the argument that the pharmaceutical industry and its supporters use all the time:  that issues related to regulation of drugs should be left to the agency with expertise (ie, the FDA) and should be taken away from the courts. Given that the FDA is underfunded, understaffed and has a history of doing a poor job of overseeing the industry it is supposed to be regulating, the argument is pretty weak.

Florida Supreme Court rejects the Third Restatement's approach to design defects in product liability cases

I have to confess that I missed this important development when it happened back at the end of October but I am now finally getting to it, so better late than never, I guess.

In a case called Aubin v. Union Carbide Corp., 177 So.3d 489 (Fl 2015), the Florida Supreme Court rejected the Third Restatement’s formulation of design defects and, specifically, the notion that a product can’t be considered defective unless the plaintiff can show a reasonable alternative design.  The Court preferred to retain the approach of Restatement (Second).

In this case, even though the Court had adopted and applied the consumer expectation test in prior cases, the lower court adopted the Third Restatement’s formulation of the risk utility test as the legal standard for a design defect claim.  According to this standard, as the Court explained, “the plaintiff must demonstrate that the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe.” Alternatively, the plaintiff could try to argue that the product design is “manifestly unreasonable,” which in turn would require the plaintiff to show that “the extremely high degree of danger posed by its use ... so substantially outweighs its negligible social utility that no rational, reasonable person, fully aware of the relevant facts, would choose to use ... the product.”

Citing a number of cases from other jurisdictions that also rejected the Restatement (Third), the Court then went on to reject the Restatement (Third), among other reasons because

(1) By introducing foreseeability of the risk to the manufacturer as part of the calculus for design defect and requiring proof of a “reasonable alternative design,” the Third Restatement reintroduces principles of negligence into strict liability.  For this reason, according to the Court, the Third Restatement is inconsistent with the rationale behind the adoption of strict products liability.

(2) Besides shifting the emphasis away from strict liability principles, the Third Restatement's risk utility test imposes a higher burden on consumers to prove a design defect than exists in negligence cases – the antithesis of adopting strict products liability in the first place – because the Third Restatement places upon the plaintiff an additional burdensome element of proof, requiring the injured consumer to step into the shoes of a manufacturer and prove that a reasonable alternative design was available to the manufacturer. 

(3) The Third Restatement, in some instances, could insulate a manufacturer from all liability for unreasonably dangerous products solely because a reasonable alternative design for that type of product may be unavailable even though “in some instances, a product may be in a defective condition unreasonably dangerous to the user even though no feasible alternative design is available.”

(4) Many states have expressed concerns about, or disapproved of, the Third Restatement, as it pertains to strict products liability.

(5) The requirement of a reasonable alternative design in the Third Restatement has been harshly criticized and has not become the rule in the majority of jurisdictions.  A majority of jurisdictions do not require a reasonable alternative design in product liability actions. 

(6) The Restatement is not a codification of law or necessarily the consensus on the best policy for courts regarding the proper legal standard for strict liability in products liability cases. In fact, while the Third Restatement was intended to restate the law as decided by state courts and state legislatures, various courts have criticized its discussion of strict products liability, emphasizing that it “goes beyond the law” because “[r]ather than simply taking a photograph of the law of the field,” the Third Restatement attempts to create a framework for strict products liability by urging the adoption of the reasonable alternative design standard and an exclusive risk/utility analysis, notwithstanding that the majority of jurisdictions in this country do not require a reasonable alternative design in strict products liability actions.

(7) The Third Restatement is contrary to Florida’s prior precedent. As explained by the Court, “[t]he important aspect of strict products liability that led to our adoption [of the Restatement (Second) in a precedent case] remains true today: the burden of compensating victims of unreasonably dangerous products [should be] placed on the manufacturers, who are most able to protect against the risk of harm, and not on the consumer injured by the product. Increasing the burden for injured consumers to prove their strict liability claims for unreasonably dangerous products that were placed into the stream of commerce is contrary to the policy reasons behind the adoption of strict liability. . .”