California expands the notion of "present at the scene" and "a contemporaneous sensory observance" of an accident for purposes of a claim for emotional distress of a bystander

 You probably remember from law school the development of the law related to claims by bystanders for emotional distress at witnessing someone else suffer an injury.  It originated in California with the famous case of Dillon v. Legg in which a mother saw a car hit one of her daughters.  In that case, the mother was not within the so-called zone of danger and would not have recovered under the applicable doctrine at the time, but the court adopted a new approach to the question.  Under the new approach, a bystander outside the zone of danger could support a claim if she could show that she had a close personal relationship with the victim, that she had a contemporaneous sensory observance of the accident and that she was present at the scene of the accident.  

Since that case was decided, the new approach was slowly adopted by a small majority of jurisdictions and law professors like me have explored the different possible consequences of its application by creating hypos involving all sorts of complicated scenarios.  In one of my hypos, for example, I ask the students, what if the mother is watching the Olympics on TV and witnesses an accident to the daughter on TV

Some jurisdictions have also explored different variations of the scenario.  For example, some have decided cases explaining how this type of claim should be decided if the plaintiff is away from the scene of the accident and only hears about it from someone else who witnesses it, or if the plaintiff does not see the accident, but sees its aftermath, or if the plaintiff does not see the accident but hears it, and so on.

I am writing about this today because I just saw an article in the ABA Journal reporting that a new case in California has finally decided one of the typical law school hypos:  what if the plaintiff is not at the scene but has a contemporaneous sensory observance of it by "technology."  

In this new case, the court held that a mother who heard her daughter’s car crash while giving her directions by cellphone has a right to recover.  The case is called Downey v City of Riverside, and you can read it here.

In my opinion, the decision is not surprising.  Granted the plaintiff was not "present at the scene" as originally required by Dillon v Legg, but I always thought that the element of having a contemporaneous sensory observance would become more important if the technology involved could at least provide some support for a feeling of "presence" at the scene.  In the end, however, it seems that the trajectory of the doctrine is heading toward minimizing the need for presence at the scene as long as the element of a contemporaneous sensory observance is strong.

As always, it is interesting to see how the common law expands and contracts as time goes on and it will be interesting to see where the courts go from here.

Lawsuit filed against OceanGate, the company involved in the submersible implosion on the way to the Titanic

You may recall that last year a controversial company named OceanGate was involved in an accident that resulted in the death of a number of people in a submersible on the way to visiting the remains of Titanic.  If not, google it, it was all over the news.  I say "controversial" because following the news of the disappearance of the submersible, and the long rescue attempt, news surfaced about the very questionable - to say the least - practices of the company, including reports that documented its reckless handling of safety issues.  (There was a 60 Minutes segment, among many others.  Some of those programs are available on YouTube.  See here and here for example.)

Given this uncovered safety - or lack thereof - history, it is not surprising that the family of a French citizen who died in the implosion has filed wrongful death lawsuit against OceanGate, which, also not surprisingly, has ceased operations.

You can read about the newly filed claim in The Guardian, Courthouse News Service, and NPR and The Hill.

Alabama case in which state Supreme Court held frozen embryos are "children" for purposes of wrongful death settles and is dismissed

 The lawsuit that led to a highly-publicized Alabama Supreme Court ruling that frozen embryos in a lab count as “minor children,” was dismissed Wednesday after plaintiffs settled their wrongful death claims against the in vitro fertilization (IVF) clinic and Mobile hospital.  Go here for the full story. 

This result is important for the parties, of course, but the more important part of the story was the ruling of the Alabama Supreme Court back in February.  You can read my posts on that decision here, here and here.

If you are considering a new casebook for your course...

 Carolina Academic Press recently published the second edition of Torts: A Modern Approach by Alex B. Long and Teri Dobbins Baxter. Its description states as follows:

This casebook takes a modern approach to the learning that takes place in the first year of law school. It utilizes a mix of classic torts cases and more recent cases, and the notes are limited in number and length to keep students engaged.  Each chapter begins with an outline of key concepts and also a hypothetical set of facts that students can use to orient themselves throughout the chapter. There are also short problems throughout each chapter, which build on the chapter-opening hypothetical, requiring students to apply the law. At the end of each chapter or section there is a short issue-spotting essay question related to chapter content.

Meanwhile, West Academic has published a new fourth edition of Torts, A Contemporary Approach, by Meredith J. Duncan, Ronald Turner and Rory D. Bahadur, which is described as follows: 

This casebook is organized to facilitate the study of law in the first year of law school with a focus on the study of tort law in particular. This casebook is unique, as its authors are both award-winning law teachers whose methods and strategies have been studied and featured in the Harvard University Press book, What the Best Law Teachers Do. As people of color, first-generation lawyers, and experienced law teachers, both authors have invested significant time throughout their careers exploring and developing effective teaching tactics and techniques to maximize the learning of all students in their classrooms. As a result, they have designed this casebook with both students and instructors in mind. This 4th edition has at least two major structural changes from previous editions. The first is that the 4th edition employs the directed reading approach, designed to make learning more efficient and mitigate the effect of privilege in law school learning. See Kris Franklin and Rory Bahadur, Directed Questions: A Non-Socratic Dialogue about Non-Socratic Teaching, 99 U. DET. MERCY L. REV. 1 (2021). In utilizing this method, the authors have included questions before every principal case designed for students to answer on their own when reading the cases before coming to class. Second, this 4th edition has fewer reinforcing or repetitive cases when one case is sufficient to teach the principle of law. Accordingly, several of the cases appearing in previous editions have been removed. The text begins with an overview of tort law, pointing out distinctions between tort law and other types of law. It then covers intentional torts, negligence actions, and strict liability, covering all topics in detail. The materials presented build on foundational principles by exploring more advanced tort subjects such as nuisance, products liability, and defamation and privacy law. This versatile textbook includes classic cases as well as contemporary cases relevant to today's students. In addition to having discussion questions and hypotheticals throughout, the text also includes graphics illustrating many of the principles covered in the text. The text is available in both hardbound and electronic format and features Internet links for the student's use. For faculty adopting the book, there is a comprehensive teacher's manual, complete with PowerPoint slides ready for classroom use. In addition to the thought-provoking discussion questions throughout the text, the teacher's manual contains additional discussion suggestions that will be useful for all levels of teaching, ranging from the newest professor to those who have taught torts for years. New problems and hypotheticals are included to test student comprehension.  This edition utilizes the CasebookPlus™ platform. Anchored by faculty-authored self-assessments, CasebookPlus allows students to test their understanding of core concepts as they are learning them in class with quizzes keyed to each chapter, subject area review quizzes, and helpful explanations. Learn more at Faculty-CasebookPlus.com.

Study on the dangers of "energy drinks"

 A few minutes after I posted the news that Panera would stop selling its "charged lemonade," I saw this story on the dangers of other so-called "energy drinks":  Energy drinks show ‘damaging’ effects on young adults, studies show.

This is not a new issue. Manufacturers of highly caffeinated drinks have known about this problem for a long time. If you click here, you will be taken to a page with at least 20 stories I have published on the subject, dating back to 2009.  

Panera Halts Sales of “Charged” Lemonade Drinks Following Lawsuits Claiming Caffeine Overdose Deaths

Last December  I reported on several lawsuits filed against Panera Bread Co. alleging it should be liable for the deaths of customers who suffered cardiac arrest after drinking Panera's "charged lemonade" which allegedly contained more than 300 ml of caffeine at the time.  See here and here.

Today, I am writing to report that Panera has decided to stop selling the product in question.  As reported in AboutLawsuits.com, 

Reports suggest that Panera Bread will no longer sell its “charged” lemonade products, after at least two consumer deaths were linked to excessive levels of caffeine in some of the drinks, leading to wrongful death lawsuits by the families.

Panera Charged Lemonade was introduced in 2022, featuring high levels of caffeine marketed as an alternative to coffee or energy drinks. However, at least two wrongful death lawsuits were filed against Panera last year, claiming that high levels of caffeine in the beverage led to fatal heart attacks or other heart complications.

While Panera claimed their charged lemonade as plant-based and clean, a 30oz lemonade could contain up to 390 milligrams of caffeine, which is the equivalent of four cups of coffee or three-and-a-half 12-oz cans of Red Bull. In addition, since Panera’s employees mix the lemonade, caffeine levels can vary drastically in different drinks, potentially providing potentially dangerous amounts for some consumers, especially those with certain pre-existing conditions.

Various news reports now indicate that employees are now being told that Panera Charged Lemonade will be phased out, and the chain is no longer ordering some key ingredients used to mix the products in stores.

Go here for the full story. 

More commentary on the Alabama decision on wrongful death of frozen embryos

 A few days ago I posted my comments on the Alabama case deciding a plaintiff could support a claim under the state's wrongful death act based on the destruction of frozen embryos.  See here.

If you have been following the news, you know the case has attracted a lot of attention and I have not been able to keep up with all of it, but I will post a few stories, and let you google (now a verb) the rest.

Frozen Embryos Now Considered Children: Unpacking the Alabama Supreme Court Decision and the Future of Fertility Care  (Lex Blog)

The massive legal fallout from Alabama’s IVF ruling is just the beginning (MSNBC)

Uncertainty looms after Alabama's IVF court ruling (NPR Audio)

Two more clinics in Alabama pausing IVF treatments after court ruling (Politico)

IVF Threatened by Unprecedented Alabama Decision (Bloomberg Law podcast)

My eldest daughter was born through IVF. Here’s what ‘pro-life’ conservatives don’t understand (MSNBC)

Alabama’s IVF Ruling Is Christian Theology Masquerading as Law (The Nation)

The science of IVF: What to know about Alabama's 'extrauterine children' ruling (NPR Audio)

What the Alabama IVF ruling means for parents going through IVF (NPR Audio)

The Alabama Ruling That Could Stop Families From Having Kid (NY Times Audio)

More on the consequences of the Alabama case holding that embryos are "children" for purposes of a wrongful death case

 Yesterday I posted a comment about a recent case in Alabama holding that plaintiffs had a valid cause of action for wrongful death based on the accidental destruction of frozen embryos.  I updated that post soon after I posted it, so if you read it immediately after it was picked up in your news aggregator you may want to go back to read it again because I added a quote from an article by someone else that had some good analysis.

The other part of the equation is the discussion of the possible consequences of the decision for issues outside of the litigation and outside of tort law in general.  That discussion picked up quite a bit today in the news.  Some of those consequences are already coming true:  The University of Alabama has terminated providing IVF care!  The University Hospital is a huge public facility so this decision will affect a lot of patients.  The hospital said they would continue to extract eggs, but they would not fertilize them.

 Here are a few links to articles on the subject.  

The Guardian: "Alabama’s supreme court ruled embryos are ‘extrauterine children’. IVF patients are worried"

MSNBC: Alabama’s embryos ruling is a terrifying preview of another Trump presidency [this link lead to a page that has a video on top; the video is not related to the story; read the article below the video]

NPR (3 minute audio): Alabama's largest hospital says it is halting IVF treatments in wake of court ruling

The Guardian: Alabama university pauses IVF care after frozen embryos deemed ‘children’

Politico: Major Alabama hospital stops IVF treatment after court rules embryos are children

NPR (3 minute audio): University of Alabama in Birmingham pauses IVF procedures due to embryo ruling

The Hill: Alabama hospitals halt IVF after ruling

The Hill:  How Alabama’s frozen embryo decision is shaking the nation: What you need to know

Politico: ‘Another hot potato’: Alabama’s IVF ruling risks political, legal backlash

Alex Wagner Tonight (video segment)

Alabama Supreme Court rules frozen embryos are ‘children’ for purposes of the state's wrongful death statutes -- UPDATED

As you probably have heard by now, the Alabama Supreme Court recently ruled that a group of in vitro fertilization (IVF) patients could sue for wrongful death because their frozen embryos were destroyed while in the defendant's facility.  

The decision has gathered a lot of attention (see links below) and it does have significant consequences, but there are a couple of things that the coverage is not mentioning.  First, the decision is not unprecedented and, in Alabama's case, it is not that surprising since the state's supreme court had already decided (years ago) to recognize a wrongful death claim for the death of a fetus.

Typically, wrongful death statutes state the circumstances under which survivors of "a person" who dies because of someone's negligence can recover.  And, typically, that language ("a person") is subject to interpretation.  Some statutes provide a definition, while in other states courts have had to interpret the meaning of the words or to decipher the intent of the legislature. 

On the issue of who should be considered a person, jurisdictions fall into one of three categories:  (1) those that define a person as someone who is born alive (which requires evidence of a live birth before the death for which the wrongful death suit is brought; (2) those who consider life to begin at conception (Illinois uses this approach in its statute) and (3) those who "compromise" by holding that "personhood" starts at the point of "viability" (usually defined as the point in time when the fetus could survive independently of the mother).

Back in 2011 or 2012, Alabama decided a case adopting the view that life begins at conception.  In that case, the court held that it would be an "unfair and arbitrary endeavor to draw a line that allows recovery on behalf of a fetus injured before viability that dies after achieving viability but that prevents recovery on behalf of a fetus injured that, as a result of those injuries, does not survive to viability."  I wrote about that case here.  Alabama then reaffirmed its decision in 2017.  

And Alabama is not alone in considering this question.  I do not remember how these cases were ultimately decided but I know the question was litigated in  Nebraska.  Also, in 2013 trial court in Colorado dismissed a wrongful death claim for the death of a fetus, and the state's supreme court denied review.   (the links are to my posts at the time the cases were reported).

I wrote a short comment on the issue back in 2015 here and again in 2021 here.

One can say that once the court took the position that there is a right to a wrongful death claim for the death of an unviable fetus, the view of the court is that life begins at conception.  But then the question becomes what constitutes "conception"?  And that is where the question of the distinction between a fetus, a fertilized egg, a frozen embryo and an implanted embryo becomes important.  I have not seen commentary about that, other than in a short article here.  This is the only comment I have seen that makes the important distinction between cases that involve recognizing a cause of action for the wrongful death of a fetus and the recent case related to an frozen embryo:

Embryos don’t just automatically turn into kids. IVF families can go through multiple implants in an effort to get a child. And for this reason, clinics try to successfully fertilize a number of eggs in case of failure. That creates a bunch of embryos that won’t end up being implanted and that probably wouldn’t result in a child even if they were. Without the freedom to get rid of those cells after the fact, IVF is an untenable industry.

This case, by itself, doesn’t get that far. Families who consent to ending the process aren’t going to sue. But the court didn’t limit itself to giving the plaintiffs a cause of action, and instead went on a tear laying the groundwork to expand the state’s criminal laws to not only shut down IVF, but to greenlight the next prosecutor who wants to charge women with murder for having a miscarriage.

You can read the Alabama Court's opinion here.  To read more commentary about the decision, you can go to the links below. 

The Hill

Why the Alabama Supreme Court’s ruling on embryos matters

NPR (4 minute audio)

Politico

NPR

Courthouse News Service

Follow up on the possible criminal liability of a parent

 A few days ago I posted a comment on the ongoing prosecution of the mother of a child who engaged in a mass shooting at a school.  The case is a criminal prosecution but some of the issues are similar and relevant for tort law because they involve the possibility of imposing vicarious liability (which is not what is being charged) and the underlying issue of causation (which is very much at issue in the case).  

I am following up on this today because Joseph Margulies. a Professor of Government at Cornell University, recently published a comment on these issues over at Justicia. In it he points out, correctly, that one important issue in the case (as in a torts case) is the question of proximate cause and, although he does not mention it by name, the question of duty.  And, in the end, he questions whether it would be a good idea to impose a duty on parents that could result in criminal liability under the circumstances of the case.  The comment is short and you can read it here.