Why it might be difficult to determine when a person is an employee or an independent contractor

Although know the basics related to the concept of vicarious liability, we don't have time to discuss the details or to read cases that explore the different types of issues that can arise when trying to apply the doctrine.  For that reason, I thought I would provide a link to a recent article discussing three reasons why it is difficult to determine whether a worker is an employee or an independent contractor.

Yet another lawsuit fled against 3M related to faulty earplugs

If you have been following the blog recently, you know I have following the 3M Combat Arms Earplug lawsuits pending throughout the federal court system. My most recent posts are here and here and here.

Now, here is the latest.  According to allegations raised in a recently filed product liability lawsuit, 3M Company ignored warning signs that its Combat Arms earplugs could damage the hearing of military personnel as part of an effort to win and maintain lucrative government contracts.

AboutLawsuits has more details.

Remember Byrne v. Boadle (the barrel of flour)?

Modern Byrne v. Boadle; watch the video below:

Podcast on e-cigarettes, vaping claims, and regulation

Yesterday I posted a note about a new case filed against the manufacturer of a popular e-cigarette product.

Here is a link to a podcast on Ringler Radio in which hosts Larry Cohen and Ford Swift talk with attorney Joseph VanZandt about claims of false and deceptive sales, marketing, and labeling against JUUL, and the failure to warn of the products’ highly addictive levels of nicotine, all targeting young people.

New lawsuit filed arguing injuries caused by "vaping"

An 18-year-old from Illinois has filed a product liability lawsuit against the makers of JUUL (a "vaping" device) arguing that the side effects of vaping caused a respiratory injury, which has left the teen with the lungs of a 70 year old man.  This appears to be one of the first lawsuits filed claiming injuries caused by vaping.  AboutLawusuits has a little more information here.

Connecticut Supreme Court adopts "alternative liability doctrine"

Assume that three men enter an abandoned building without permission.  While there, they drink alcohol and smoke cigarettes.  One of them fails to extinguish a cigarette, which starts a fire that spreads quickly and destroys the building.  As a result, the owners of the building sue the men but then realize they can’t prove which of the three defendants actually caused the fire.  Assuming it is true that only one of the three men caused the fire, none of them should not be liable since the plaintiff has the burden to show that a defendant's conduct caused their injury, right?

Does that sound familiar?  Does it sound like a law school hypo?  Of course it does, because it is essentially the question every law school student talks about when discussing the famous case Summers v. Tice, which you probably don’t remember by name but you do remember the facts:  two hunters shoot in the direction of the plaintiff.  Only one of them hits him, but the plaintiff could not identify which one.  In that case, the court decided to impose liability on both (unless either one could prove they were not the cause of the injury) as if they had both committed the act. 

I am writing today about this because just a few days ago, the Connecticut Supreme Court decided to adopt this same approach and apply it to the case with the fire in the building scenario. 

In doing so, the Court explained how the new rule (sometimes referred to as “alternative liability”) would be applied: 

“...the rule applies only when the plaintiff can demonstrate, first, that all of the defendants acted negligently and harm resulted, second, that all possible tortfeasors have been named as defendants, and, third, that the tortfeasors’ negligent conduct was substantially simultaneous in time and of the same character so as to create the same risk of harm.”

When these three threshold requirements are met, the alternative liability doctrine has been recognized as a limited exception to the general rule that the plaintiff must prove that each of the defendants caused the plaintiff’s harm.

As in Summers, the Court admits that adopting this approach can result in the imposition of liability on a defendant who was actually not at fault.  Yet, it is better to be unfair to a negligent defendant than to leave an innocent plaintiff without a remedy.  As the Court states, “[f]aced with the choice of leaving an injured plaintiff without a remedy, on the one hand, or requiring two wrongdoers, both of whom had acted negligently toward the plaintiff and had created the situation [in which the] plaintiff was injured, [to] bear the burden of absolving themselves on the other, it seems clear that the latter approach represents the fairer, more sensible alternative.”

I should note that the term "alternative liability" is very unfortunate because it suggests that the result of the application of the doctrine is liability, when in fact it isn't.  The result is to allow the plaintiff to support the element of causation without the type of proof that is typically required for it.  If we are going to be technically correct, we could say the doctrine is an "alternative proof of causation" doctrine.

The case is called Connecticut Interlocal Risk Management Agency and Town of Somers v. Jackson and you can read it here.

3M Earplug Hearing Loss Claims and Class Action Lawsuits to Proceed in Single Track

I have been following the 3M Combat Arms Earplug lawsuits pending throughout the federal court system. My most recent posts are here and here.

Now, here is an update:  The U.S. District Judge presiding over all federal 3M earplug lawsuits filed nationwide has declined to create separate litigation track for class action lawsuits, indicating that the it is premature to consider such a move and they will continue on the same path as individual hearing loss claims at this time.

For more details go here.

Football players claim against College for injuries suffered in practice survives motion to dismiss

Two football players at Lackawanna Junior College were injured during the same tackling drill in 2010. They sued the college in 2012, claiming the football staff was negligent and the school should have had certified athletic trainers available to aid and advise players who were injured. Instead, the college employed two women who had failed to gain certification as athletic trainers.

The claims were dismissed by the trial court on the ground the players had signed a waiver.  The Superior Court reinstated the suits and now the Pennsylvania Supreme Court has affirmed that ruling.  The court noted waivers against gross negligence and recklessness were ineffective and held there were sufficient facts for the players to present the case to a jury.

You can read more (although there isn't much) about the case here.

Podcast on the settlement over defective ear plugs used by the military

I have been following the litigation Multidistrict Litigation consolidating all 3M Combat Arms Earplug lawsuits pending throughout the federal court system, each raising similar allegations that veterans were left with permanent hearing damage as a result of design defects with the reversible earplugs that were standard issue by the U.S. military between 2003 and 2015.  I posted many links to information on the cases here, here and here. 

Today, here is a link to a recent podcast discussing a 9.1 million dollar settlement reached in litigation surrounding a defective earplug (3M Earplugs).  In it, the hosts and guests discuss the 2016 whistleblower lawsuit that started it all, how these earplugs have impaired its users, and future litigation.

You can listen to the podcast here or here.  You can download it here.

Court rules white nationalist must pay $14 million in damages for anti semitic campaign

A federal judge has ruled in an SPLC lawsuit that neo-Nazi leader Andrew Anglin must pay more than $14 million in damages for using his website to launch an antisemitic campaign of terror against a Jewish woman and her family.  You can read more about the story here and here.