Kentucky recognizes cause of action for second hand exposure to asbestos

A number of years ago, there was a flurry of claims arguing that the family members of workers exposed to asbestos should be allowed to recover for injuries suffered from being exposed to the workers’ clothing when the worker got home from work.  

Based on this theory of the case, widows, mostly, tried to recover for their own personal injuries in addition to the harm caused to the workers.  Some of these cases were dismissed but some recognized the cause of action based on the argument that the injuries suffered by the widows were a foreseeable consequence of the risk created by the original exposure.  Some of those cases resulted in multimillion dollar verdicts.  (You care read my comments on some of those cases by going, here, here, here, and here.)  

That type of litigation died down after a while and I had not heard of any such case in about 10 years,...  until a couple of weeks ago.  

In a case called Schneider Elec. USA, Inc. v. Williams, 733 S.W.3d 180, 192-194 (Ky. 2026), the court held that “Because foreseeability of take-home exposure turns in part on the nature and regularity of workplace contact with asbestos-containing materials, this factual dispute is material and must be resolved by a jury. . . .  In deciding whether harm was foreseeable, . . . courts look to the general foreseeability of harm, not to whether the particular, precise form of injury could be foreseen. It is enough that injury of some kind to some person within the natural range of effect of the alleged negligent act could have been foreseen.  . . . The duty which could be found here is confined to individuals alleged to have experienced regular and repeated domestic contact with asbestos-contaminated work clothing over an extended period of time.” (Citations omitted.)  

Note how the language of the court matches Judge Cardozo's analysis in Palsgraf v. Long Island Railroad, but that the court ultimately holds the question is for the jury to decide, showing once again that Cardozo set the analysis; but Andrews won the debate as to the procedure.

Torts deterrence effect: After multiple lawsuits alleging brain injuries, Six Flags retires popular roller coaster

The X2 roller coaster at Six Flags Magic Mountain, once described on the amusement park’s website as a “rite of passage for the ultimate daredevil,” has been shut down amid lawsuits alleging that the ride caused serious brain injuries.  The ABA Journal has the story here.

Washington Supreme Court finds state university can be held liable for hazing death at fraternity

 A split Washington Supreme Court on Thursday found that Washington State University owed a duty to protect a freshman who died from alcohol poisoning during a fraternity hazing ritual in 2019.  You can read the opinion here and more on the story here (on the Court of Appeals decision) and here (on the Supreme Court decision).

The court recognized the university owed a duty to plaintiff’s decedent who died from alcohol-poisoning as a result of consuming excessive quantities of alcohol during fraternity hazing at off-campus facilities because the university had a special relationship with the fraternity.  In doing so, the court applied the Restatement (Second) of Torts §315(a) (Am. L. Inst. 1965) that provides that “a defendant owes a duty to a third party’s foreseeable victims when (1) a definite, established, and continuing relationship exists between the defendant and the third party, giving rise to foreseeability, and (2) the defendant has an ability to control the third party to prevent harm to foreseeable victims”.

ALI approves the "Restatement of the Law Third, Torts: Remedies"

 After seven years of work, the “Restatement of the Law Third, Torts: Remedies" has been approved.  As described by one of its reporters, 

Launched in 2019, the Torts: Remedies Restatement addresses the principles governing the relief available after liability is established in a tort action. Organized around categories of remedies and types of harm, the project provides guidance on the recovery and measurement of damages, restitution of a wrongdoer’s profits, injunctions against threatened or continuing torts, and other forms of specific relief. Damages topics covered include general rules for measuring compensatory, nominal, and punitive damages, and compensation for specific harms such as lost wages or lost profits, medical expenses, pain and suffering, emotional distress, and damage to property. 

Among other developments, the Restatement would eliminate reliance on race- and sex-based assumptions in calculating personal injury damages such as future lost earnings and medical expenses. It also proposes a rule to explain and rationalize the longstanding judicial practice of compensating dignitary harm whether or not there is any more direct evidence of damages.

....  The Restatement also addresses areas of disagreement among courts, including issues such as the measurement of damages in complex contexts and the standards governing punitive damages, while aiming to clarify doctrine and provide a more consistent analytical framework.

You can read the full announcement here. 

More cases against OpenAI over injuries arguably caused by ChatGPT use; and a comment on why recognizing such claims would be bad policy

 The number of claims against OpenAI related to injuries alleged to have been caused by the use of ChatGPT continues to rise.  For two stories on this I posted recently go here and here.  Here are the latest stories I have seen:

Family of FSU shooting victim sues OpenAI over suspect’s ChatGPT use (The Hill 5/11/26)

Parents accuse ChatGPT of assisting in son’s drug-induced death (ABA Journal 5/13/26)

For some commentary on these types of claims, you should take a look at this article:  "More Liability Will Make AI Chatbots Worse At Preventing Suicide" (TechDirt, 5/6/26)

Commentary on the Alien Tort Statute

 A few days ago I reported that the US Supreme Court heard oral arguments on a case about the Alien Tort Statute.  Dorf on Law has now published a comment and analysis of the issues here.

Supreme Court hears oral arguments on Alien Tort Statute

Today the US Supreme Court heard oral arguments on a case called Cisco Systems, Inc. v. Doe which raises the issue of whether the Alien Tort Statute (ATS) or the Torture Victim Protection Act (TVPA) allows lawsuits against parties for aiding and abetting violations of international law.  

LawFare has a long preview of the case here.  SCOTUSblog has a discussion of the oral argument here.

 

Washington Court allows claim against Amazon based on plaintiffs' decedent's suicide -- UPDATED

February 22, 2026

 Long time readers of this blog may remember that I have posted a number of times about cases dealing with whether Amazon can (or should) be considered a "seller" for purposes of product liability law.  (Go here and scroll down.)

The most recent of those cases involved that claims of the families of three teenagers and a young adult who died after ingesting sodium nitrite purchased on Amazon. The trial judge denied a motion to dismiss the complaint but the Washington Court of Appeals reversed, finding that the plaintiffs could not support the element of duty because the decedents had intentionally misused the product.

I am writing about this today because earlier this week, the Washington Supreme Court unanimously reversed holding that the plaintiffs could continue to pursue their claim against Amazon.  You can read more about the case in Courthouse News Service, and you can read the decision of the court here.

In deciding the case, the court rejected the so-called "suicide rule" which is still in place in many jurisdictions and according to which the act of suicide is, as a matter of law, a superseding cause that defeats the cause of action.  The court's rejection of this rule follows a recent ruling in Nevada and what appears to be a new trend on the issue. Go here for more on that story.

UPDATE (3-12-26):  Courthouse News Service has a story on the case here.

Supreme Court holds that U.S. Postal Service can’t be sued over intentionally misdelivered mail

On February 24, the Supreme Court decided that the exception to the Federal Torts Claims Act that protects the U.S. Postal Service from lawsuits over lost or miscarried mail also bars lawsuits in cases where a postal worker intentionally failed to deliver an individual’s mail.  The vote on the decision was 5 to 4, with a dissenting opinion by Justice Sonia Sotomayor, joined by Justices Elena Kagan, Neil Gorsuch, and Ketanji Brown Jackson, in which she argued that the majority opinion provided the U.S. Postal Service far more protection from lawsuits than Congress had intended to give it. The case is called U.S. Postal Service v. Konan, and you can read the opinion here.  

As you probably know, the Federal Torts Claims Act was enacted to remove the sovereign immunity of the United States from suits in tort.  However, the Act retained a long list of exceptions for cases in which the Federal Government retains immunity.  Among those is an exception which covers “[a]ny claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter.”  

In previous cases, the Court has decided that the exception does not apply to claims arising from car accidents caused by postal employees delivering mail or to claims for slip and falls caused by negligent placement a package on a porch step.  The issue in Konan was whether the exception should cover claims concerning intentional misconduct committed by postal employees, including the conduct of withholding a person’s mail for malicious reasons. 

The majority opinion rules that the statute bars these claims, even in cases where a postal worker intentionally fails to deliver an individual’s mail.  The dissenting opinion, in contrast, argues that  the majority opinion provides the U.S. Postal Service far more protection from lawsuits than Congress had intended to give it.

You can read more about the case in Courthouse News Service, SCOTUS Blog and The Hill.

US Supreme Court: state requirement of certificate of merit in malpractice case does not apply in federal court

In one of the first reported decisions of the term, the US Supreme Court has decided that a state law requirement (to file a certificate of merit) in a medical malpractice case should not apply if the claim is filed in Federal Court.

The case is called Berk v. Choy.

You can read a summary and comment on it in SCOTUS blog.