Saturday, December 3, 2016

CT Supreme Court to consider appeal in previously dismissed lawsuit against gun maker related to shooting at Sandy Hook Elementary

Almost two years ago, I reported that the families of nine of the 26 people killed two years ago at the Sandy Hook Elementary School in Connecticut filed a lawsuit against the manufacturer, distributor and seller of the Bushmaster AR-15 rifle used in the shooting. See here and here.

Back in October, however, several sources the case was dismissed.  NPR has more details on the story here.  Also, Politico has the story here.

Now comes news that the Connecticut Supreme Court has accepted an appeal. NPR has the story, although there are very few details.

Saturday, November 19, 2016

Friday, November 11, 2016

Utah Supreme Court holds a person can sue herself under wrongful death and survival stautes

I recently read in the Legal Profession blog a summary of a recent decision out of the Utah Supreme Court with the oddest fact pattern I have seen all year, which provides an interesting discussion of issues related to the two courses I teach: Torts and Professional Responsbility.  The case is Bagley v. Bagley and you can read the full opinion here.

Here are the facts of the case: One day back in 2011, Ms. Barbara Bagley, the common law wife of Bradley Vom Baur, lost control of the car in which they were traveling. Mr. Vom Baur was thrown from the vehicle and sustained severe injuries due to which he died ten days later.  Eventually, in her dual capacities as sole heir and personal representative of the estate of Bradley Vom Baur, Ms Bagley sued herself in an attempt to compel her insurance company to indemnify her.  Ms. Bagley was, therefore, the plaintiff and the named defendant in the lawsuit at the same time. 

Plaintiff Bagley brought her first cause of action pursuant to Utah’s wrongful death statute, alleging that Defendant Bagley (herself) negligently caused Mr. Vom Baur’s death, thereby depriving his sole heir (ie, Plaintiff Bagley herself) of Mr. Vom Baur’s love, companionship, society, comfort, care, protections, financial support, pleasure, and affection.

Plaintiff Bagley brought her second cause of action as the personal representative of Bradley Vom Baur‘s estate pursuant to Utah’s survival action statute, alleging that Defendant Bagley negligently caused Mr. Vom Baur to experience pain and suffering prior to his death, which entitles Mr. Vom Baur’s estate to damages such as funeral expenses and medical bills.

The trial court granted a motion to dismiss, but the court of appeals reversed. 

On these facts and based on the Court’s interpretation of the plain language of the two statutes, the Supreme Court affirmed the court of appeals and held that the “wrongful death and survival action statutes permit a person acting in the legal capacity of an heir or personal representative to sue him or herself in an individual capacity for negligently causing a decedent’s death or injury.”

In the case before the Supreme Court Ms. Bagley as plaintiff and Ms. Bagley as defendant were represented by a different law firms, but the Utah Defense Lawyers Association filed an amicus curiae brief arguing that the case would have negative consequences on the practice of law and that it presented impermissible conflict of interest.  Among other things, the Association argued that the case “distorts the attorney-client relationship by creating a concurrent conflict of interest because “defense counsel’s representation of the client as the defendant is directly adverse to defense counsel’s representation of that same person who is also the plaintiff.”  It also argued that the conflict would affect an attorney’s ability to communicate with his or her client, because, among other things, the client knows that anything she reveals will be used against her.  Finally, the Association also raised concerns about jury confusion and the ability of an attorney to cross-examine his own client.

The Court admitted that the arguments “are not without merit” but dismissed them holding that the situation did not create a concurrent conflict because plaintiffs and defendant were acting “in different legal roles.”  (See footnote 37 of the opinion)

You can read the full opinion here.

Friday, November 4, 2016

Hospital System allegedly tries to force possible patients to give up right to sue or they will be charged more for services; and residents may be forced to work longer hours

NPR is reporting today that San Francisco area companies are complaining that Sutter Health is strong-arming them into a contract that would help the hospital system secure its power over prices and potentially raise the cost of medical care for their employees in the future. The report says taht dozens of companies have received a letter asking them to waive their rights to sue Sutter. If they don't, the companies' employees who get care through Sutter's network of hospitals, doctors and medical services will no longer have access to discounted in-network prices.

Meanwhile, in a separate story, the group that sets the rules for medical residents has proposed changing the rule that says that interns, doctors in their first year of on-the-job training after finishing medical school, can work no more than 16 hours without a break.  This rule was adopted many years ago to minimize the chances the rookie doctors would make mistakes while fatigued.  The new proposed rule would let these new doctors work for as many as 28 hours at a stretch.

What do you think would be the cumulative effect of these two events? 

Sunday, October 23, 2016

Judge assigned to wrongful death case against Hilary Clinton steps aside and asks for case to be reassigned after allegations of forum shopping

Back in August I reported that the parents of two Americans killed in Benghazi, Libya, filed a lawsuit Hillary Clinton for wrongful death, alleging the 2012 attack "was directly and proximately caused" by the then-secretary of state's mishandling of government secrets.  I my post (here) I suggested the allegations in the complaint would be very difficult to prove and that there was a chance the case would be considered a frivolous lawsuit, in which case it should be dismissed and the lawyer should be sanctioned.

Now, a new report published in Politico (here) provides an interesting update on the story.  The judge who had been assigned the case decided to set aside and send the case back for reassignment.  It turns out the attorney who filed the case wanted that specific judge (a long time Clinton critic) and apparently tried to manipulate the system in order to get him.  According to the story, Clinton's lawyers filed a motion arguing, among other things that the plaintiffs' lawyer has a history of "judge shopping" and the judge gave up the case.

This new development adds to my concern over the plaintiffs' lawyer.  Did he first file a frivolous lawsuit and then try to manipulate the system in order to shop for the judge he wanted?   Will there be a hearing to discuss these questions?  Will the new judge impose sanctions?  Stay tuned...

Sunday, October 16, 2016

What are "non-economic damages" and why do tort reformers want to limit victims' ability to recover for them?

A few days ago I reported that the Supreme Court of Arkansas eliminated a ballot initiative that would have drastically capped compensation for “non-economic damages” to victims of medical malpractice and nursing home abuse.  (In fact, it has been reported that the initiative was the brainchild of the nursing home industry.)

In response to this news, the PopTort has posted a good short comment on the nature of non-economic damages and the effects of placing "caps" on them.  You should read it here.

Thursday, October 13, 2016

Movement afoot to prevent a vote on Arkansas referendum that would cap attorney fees and damages in medical cases -- UPDATED

September 3, 2016:   The ABA Journal online is reporting that two lawsuits have been filed this week to block an Arkansas ballot referendum that would cap non-economic damages and attorney fees in medical injury cases.  The state’s Bar Association also opposes the proposed measure which would require legislators to create a cap for non-economic damages in medical lawsuits against health-care providers of at least $250,000, and would limit contingency fees to one-third of any recovery after all costs of the litigation are deducted.

UPDATE (Oct. 13, 2016):  The TortsProf blog is reporting today that the Arkansas Supreme Court has just killed the ballot initiative.  TortsProf has a link to more information. 

Saturday, October 1, 2016

Update on the debate regarding possible liability for injuries caused by autonomous cars

I have been following the debate regarding the development of so called "self driving cars" or "autonomous cars and the debate on the legal issues that will arise regarding liability for injuries caused by them.  My previous posts (with lots of links to more information) are here, here, here and here.

One of the more interesting questions that is being debated is whether a car should be programmed to kill its occupants if it means saving the lives of other people or whether government regulations should focus on a utilitarian model where the vehicle is programmed to prioritize the good of the overall public above the individual.

This philosophical question - usually referred to as the trolley car problem - has been the subject of discussion in philosophy classes and books for a long time.  (You can watch such a class at Harvard here).

Interestingly, however, Techdirt is reporting that according to some engineers, the trolley problem should not be an issue when it comes to autonomous cars.  Or, at least, not yet.  For now, engineers are concerned with more basic problems.  As the article concludes:
[The trolley questions is] still a question that needs asking, but with no obvious solution on the horizon, engineers appear to be focused on notably more mundane problems. For example one study suggests that while self-driving cars do get into twice the number of accidents of manually controlled vehicles, those accidents usually occur because the automated car was too careful -- and didn't bend the rules a little like a normal driver would (rear ended for being too cautious at a right on red, for example). As such, the current problem du jour isn't some fantastical scenario involving an on-board AI killing you to save a busload of crying toddlers, but how to get self-driving cars to drive more like the inconsistent, sometimes downright goofy, and error-prone human beings they hope to someday replace. 
You can read the article (and the comments posted below it) here

Friday, September 16, 2016

Ohio Supreme Court clarifies the meaning of the state's Good Samaritan statute

About two weeks ago, the Ohio Supreme Court issued an important opinion interpreting the state’s “Good Samaritan statute,” a phrase that, as I am sure you know, refers to statutes to provide immunity to people who cause injuries while trying to help others under circumstances where there is no affirmative duty to do so.  The case is called Carter v. Reese and you can read the opinion here.

Although most, if not all, states have enacted Good Samaritan statutes, their terms vary considerably from state to state. In some, they apply only to certain members of the medical and other related professions. This is so because while the goal of the statute is to encourage people who don’t have a duty to help to try to help, the public policy is to encourage only those who know what they are doing when it comes to providing emergency medical help. In other states, on the other hand, the statutes are more general and apply to everyone. In those states it has been decided that it is better to encourage people to help even if they are not trained to do so. Two other issues about which states differ are the definition of an “emergency” and the definition of the type of “care” involve.

Asked to interpret the statute in Ohio, which states that “No person shall be liable in civil damages for administering emergency care or treatment at the scene of an emergency. . . , for acts performed at the scene of such emergency, unless such acts constitute willful or wanton misconduct,” the Court explained,
This case presents our court with two separate questions involving the legislative intent behind Ohio’s Good Samaritan statute. First, what did the General Assembly intend by using the phrase “no person shall be liable in civil damages”—did it intend to include only health care professionals who administer emergency care or treatment at the scene of an emergency, or, more broadly, to include any person who administers emergency care or treatment at the scene of an emergency? 

Second, what did the General Assembly intend by using the phrase “administering emergency care”—did it intend to limit emergency care to only the administration of medical care, or, did it intend to include all forms of care administered at the scene of an emergency?
The Court’s conclusion:
Ohio’s  Good  Samaritan  statute  applies  to  any  person  who administers emergency care or treatment at the scene of an emergency including but not limited to health care professionals. Moreover, the phrase “administering emergency care” in the statute is not limited to medical acts and includes rendering medical and any other form of assistance to the safety and well-being of another when the result of an unforeseen combination of circumstances calls for immediate action.  
Two Justices (O’Connor and Lanzinger) agreed with the majority’s holding that the statute applies to any person, but dissented as to the definition of “emergency” as “an unforeseen combination of circumstances.” They argued that the definition of an “emergency” should be “sudden events or circumstances that require urgent or immediate attention or action,” regardless of whether the events were foreseeable.

Sunday, August 28, 2016

If you like this blog, consider voting for it...

If you like this blog, please consider voting for it in the 2016 Best Legal Blog Contest by going here.

Friday, August 12, 2016

Podcast: Legal issues related to Pokemon Go

Pokemon Go, the latest craze that has millions of people walking around using their phones to find and "capture" pocket monsters, has generated much attention this summer.  And, as it happens frequently, the use of the app has raised a number of legal issues.  Some of the issues are:  possible tort liability for injuries caused by, or to, people who are playing the game, issues related to trespass into private property, and issues related to nuisance.

So, to help you sort out some of these issues, Lawyer2Lawyer has posted a podcast on the legal issues related to Pokemon Go.  You can listen to it by clicking on the play button below, or if you can't see the button, by going here.

Tuesday, August 9, 2016

Parents of two Americans killed in Benghazi sue Hillary Clinton for wrongful death

NPR is reporting that the parents of two Americans killed in Benghazi, Libya, are suing Hillary Clinton for wrongful death, alleging the 2012 attack "was directly and proximately caused" by the then-secretary of state's mishandling of government secrets.  Even though none of the many Congressional investigations nor the FBI investigation found any proof that the attack was due to access to information in Clinton's emails, the lawsuit argues that Islamic terrorists were able to track the movements of Ambassador Chris Stevens and plot the deadly siege because of Clinton's use of a personal email server to conduct government business.

Here is a copy of the complaint. The main argument is this:
It is highly probable, given Defendant Clinton’s history of reckless handling of classified information, that Defendant Clinton, as Secretary of State, sent and received information about Ambassador Christopher Stevens and thus the U.S. Department of State activities and covert operations that the deceased were a part of in Benghazi, Libya. This information was compromised from the second that it left Defendant Clinton’s private e-mail server and easily found its way to foreign powers including, but not limited to Russia, Iran, China, and North Korea. As a direct result of Defendant Clinton’s reckless handling of this classified, sensitive information, Islamic terrorists were able to obtain the whereabouts of Ambassador Christopher Stevens and thus the U.S. State Department and covert and other government operations in Benghazi, Libya and subsequently orchestrate, plan, and execute the now infamous September 11, 2012 attack.
In the section on "facts" (presumably the factual basis for the complaint), the plaintiffs affirm that "Islamic terrorists obtained the information sent and received by Defendant Clinton about the location of Ambassador Christopher Stevens and thus the U.S. Department of State and the covert CIA and other government operation s in Benghazi and used it to plan, orchestrate, and carry out the horrific and devastating attack on the American diplomatic compound in Benghazi, Libya on September 11, 2012 (“Benghazi Attack”), resulting in the death of four Americans,..."  

Now, this is a very different type of statement.  This is an affirmative statement of fact, which, presumably, the plaintiffs will be able to prove.  Is there any evidence that what is alleged here is true?   Not according to any of the investigations I have heard of, but I guess it is possible there is information out there I am not aware of.  Are you?  Let me know.

If there is no basis in law or fact for the complaint, this is a frivolous lawsuit, and I think it will be dismissed in due time.  The only question in my mind is whether the lawyer who brought it will be sanctioned for violating the ethical duty, and procedural rules, against bringing frivolous claims.  According to Above the Law, the lawyer "has been banned from multiple judges’ courtrooms" and has orchestrated other politically motivated legal stunts, including a deportation petition against President Obama, which claimed the president was born in Kenya; alleging the Clintons murdered White House associates in the 90s; and filing lawsuits accusing the Clintons of racketeering.

For more go to NPR or Slate

Sunday, July 24, 2016

Court of Appeals for the 2nd Circuit holds GM can be liable for injuries caused before it filed for bankruptcy

Last year I wrote about the possibility that a large number of lawsuits filed against General Motors could be dismissed as a result of the fact that GM filed for bankruptcy in 2009.  To make a long story short, the issue was whether the “New GM” (after bankruptcy) would be responsible for the conduct of the “Old GM” (pre bankruptcy).  Go here for links to my older posts on this question. 

The issue is now back in the news because about 10 days ago, the Court of Appeals for the Second Circuit has decided that General Motors can't use its 2009 bankruptcy to fend off lawsuits over faulty and dangerous ignition switches exposes the automaker to billions in additional liabilities.  The Associated Press has the story here.   The Pop Tort has a comment on it here.

Thursday, July 21, 2016

Washington State Supreme Court holds plaintiff has to show actual innocence in malpractice claim against former criminal defense lawyer

Back in February I reported (here) that the two most recent decisions on whether a convicted criminal defendant had to prove actual innocence in order to recover for malpractice against his or her former lawyer had broken away from the majority view on the issue.  The majority view is that the plaintiff does have to obtain post conviction relief and prove that he or she was actually innocent of the crime for which they were convicted. Yet cases in Kansas and Iowa recently held otherwise.

Now comes news that the Washington State Supreme Court has reversed the trend and has held that a criminal defendant must establish actual innocence to sue the defense attorney for malpractice.  The case is called Piris v Kitching and you can read the opinion here.  The Legal Profession blog has more details here.

One Justice dissented in Piris, making what I think is a persuasive argument.  Interestingly, the argument is not that plaintiffs should not have to show actual innocence in all cases, but that it was improper to use that "rule" in this particular case because the plaintiff had already obtained post conviction relief.
Christopher Piris successfully obtained postconviction relief from a miscalculated sentence. But due to alleged attorney negligence, he was not timely resentenced and he spent more time imprisoned than his corrected sentence authorized. The majority holds that Piris cannot pursue malpractice claims against his defense attorneys unless he proves he is actually innocent of the underlying charges. I disagree. When a client wins postconviction relief for resentencing and attorney negligence results in the client's excessive imprisonment because the client did not timely receive the benefit of resentencing, it is no excuse to say that the client was subject to some imprisonment. Extending the "actual innocence rule" to the unique circumstances of this case serves only to perpetuate an injustice. I respectfully dissent...
In other words, the plaintiff in the malpractice case (defendant in the original criminal case) endured a longer stay in jail (more than a year) because of the attorney's conduct.  Yet the court says he was not entitled to a remedy because he was "due" some time in jail anyway.  The fact that the attorney's conduct caused him to suffer more than he was legally "due" is irrelevant to the majority.  I agree with the dissent in this case.  This view is not justified.  It allows for an injustice to go unpunished and gives a pass to an attorney whose conduct clearly caused injury to the client.  I don't see why it makes sense to give the attorney such a free pass.

Monday, July 11, 2016

New Jersey expands reach of possible liability in case where the plaintiff was exposed to toxic substance brought home by exposed worker

Back in May I wrote about a few recent cases that have recognized a cause of action on behalf of a spouse for injuries suffered due to exposure to toxic substances brought home by their spouse.  Typically, the cases involve mesothelioma caused by exposure to asbestos.  Go here for that post, which has links to others on the same subject.

As I explained back then, plaintiffs in these cases argue that the defendant should be liable because the injury is a foreseeable consequence of the risk created by the negligence conduct or product (depending on whether the claim is for negligence or strict liability). 

Since this is, obviously, just an argument in support of the element of proximate cause, defendants reply that liability could extend too far thus defeating the reason for proximate cause in the first place.  Since the notion of proximate cause is used to limit the reach of possible liability, they argue liability should be limited to the injury to the person who was exposed directly.  Otherwise, any bystander who came in contact with this person could sue.  What if the worker, instead of going straight home after work, went to a bar every day for a beer or two with friends and other co-workers.  Any "regulars" at the bar could have a cause of action. 

It is not a frivolous argument, but courts have avoided it since the plaintiffs so far have been spouses, thus allowing courts to use the proximate cause analysis based on foreseeability while limiting the reach of the possible liability to the immediate family members.  

But, as you would expect, once you open the door...  The New Jersey Supreme Court has just expanded the reach a bit more by recognizing a cause of action for a plaintiff who was not married to the person exposed directly.  According to TortsProf blog the case involved a woman was not married to the worker whose clothes carried the asbestos at the time the exposure began, but who did later become his spouse. 

The important thing is that in reaching its conclusion, the court stated the spousal relationship was not the key, but rather that the most important factor, among several, to consider is foreseeability.   In the NJ case, although the plaintiff was not a spouse, she had a close personal relationship with the exposed worker and was exposed because she spent time with him at his residence during the time before their marriage. 

That makes complete logical sense; but the moment we base the analysis squarely on foreseeability, the more difficult it becomes to distinguish the case from the claim of the regular at the bar.

As Andrews famously said in Palsgraf (I am paraphrasing here), we may not like where we draw the line, but a line we must draw...

Go here for more information.

First fatality related to a self-driving car opens the door to litigation & policy discussion

I just updated my post on thoughts on issues related to possible liability for accidents involving automated or self-driving cars (see below).  The topic has been in the news lately because tragically a man driving a Tesla Model S in Florida recently became the first self-driving car fatality.  Apparently the car failed to distinguish the white side of a turning tractor trailer from the bright May sky and did not apply the brakes.

As you would expect, the story has generated a lot of attention.  Here are some links:

ABA Journal

The Guardian

TortsProf blog, citing CNN

NPR (4 minute podcast)

Torts Today

More thoughts on tort liability and autonomous vehicles -- UPDATED

A few days ago I posted a comment on issues related to the possibility of liability for accidents involving autonomous (aka "self driving") cars.  See here.  In it, I commented on the fact that because the possible liability would be shifted from the driver to the programmer, we would have to consider the decision making process that programmers would use to determine what a car should do when facing the possibility of an accident, particularly if it involved making a decision between choices that would cause different types of injuries to others.

I am revisiting the question today because of a new article in Slate precisely on that issue.  It talks about how programmers are studying "the ethics of so-called crash-optimization algorithms" which seek to enable a self-driving car to “choose” the course of action that would cause the least amount of harm or damage. However, as the article goes on to discuss, what happens when all the choices would result in damage? What happens when one result would cause little damage to the occupant of the car but would likely cause catastrophic damage to another? How should the car be programmed to react?  What is the reasonably prudent thing to do?  Is it to always protect the occupant, who after all, expects the car to offer safety?  Or should the car avoid the worst type of possible injury, even if it means causing injury to the occupant?  The possibilities are almost endless.

You can read the full article here.

Meanwhile, another article, also published in Slate (and available here), argues that "Congress may need to provide a certain amount of legal immunity for creators of driverless car technologies, or at least create an alternative legal compensation system for when things go wrong."

The article acknowledges that one possible approach to the issues raised by liability for injuries caused by autonomous vehicles is to allow courts to apply tort law rules, or to develop new ones, just as we have always done.  That way the law would develop to provide the necessary balance in the societal cost and benefit analysis.

Yet, the article rejects this approach and proposes federal government intervention and regulation instead using the regulation over vaccines as an analogy.  I think this reasoning is flawed.

First of all, what's wrong with allowing the law to develop as it always has through the common law process by applying, or modifying, principles of tort law?  Courts have forever considered the consequences of imposing liability and have either expanded or limited the reach of the possible liability based on many factors.  As the article states, "So, if the autonomous car maker of the future ends up putting a fleet of defective robot cars on the road that they knew had serious programming issues, courts would force them to pay for any resulting damages. As a result, those driverless car makers will need to invest in better insurance policies to protect against that risk."

Someone explain to me why that would be a bad thing.

The article then takes on the issue of whether there should be liability on companies who provide the cars as a "service."  The product liability approach would not apply in such cases because those possible defendants would not be in the market of selling products.  The article argues:
"the car of the future is more likely to be . . . a fleet of robot cars that are just sitting out there waiting for us to hail them for a ride. As cars become more of a service than a final good, liability will rapidly shift to the owner of the fleet of cars and away from end users. But if all the liability falls on the manufacturer or fleet owners of driverless cars, there’s one big pitfall with this approach. America’s legal system lacks a “loser-pays” rule—i.e., the party who loses the case covers the other party’s legal fees—which means a perverse incentive exists to file potentially frivolous lawsuits at the first sign of any trouble. If enough lawsuits start flying, it could seriously undermine this potentially unprecedented public health success story. That’s why it may be necessary to limit liability in some fashion to avoid the chilling effect that excessive litigation can have on life-enriching innovation"
There are many things wrong with this simplistic analysis.  Let's start with the claim that liability will "shift" to the owner of the fleet of cars and away from the end users.  First, this implies that liability can be imposed on the owner of the fleet just because it is the owner of the fleet.  This is wrong.  Since the owner of the fleet is providing a service, its liability would not be strict.  It could be vicarious liability based on the negligence of one of its employees, or it could be direct liability based on its own negligence.  But in either case, the liability would be based on negligence which would require the plaintiff to prove the conduct and that it should be considered to be negligent to begin with.  Providing a car, by itself is not negligent.  The plaintiff would have to argue that there is something in the process of providing the car or in the type of car that makes it negligent to provide it to the public.  And if that is the case, again, someone explain to me why it would be a bad thing to allow the court system to operate as a way to help make the products and the process safer.  This is how the history of tort law has worked to make cars and transportation in general safer over the years. 

Second, the article's assertion implies that liability is assigned either to the defendant or to the plaintiff.  In fact, in all but 4 or 5 jurisdictions in the United States liability can be, and often is, shared by the parties.  In most of those jurisdictions, the plaintiff can actually lose the right to recover if their portion of the blame is high enough.  This, of course, is what we know as comparative negligence (and in those 4 or 5 retrograde jurisdictions as contributory negligence).  Changing the analysis as to who can be liable has no effect on who would be liable, much less on the consequences of how the possible liability is allocated.

Having said, that, though, since the consumer of transportation in the article's car of future scenario does nothing other than get in the car, it might be difficult to argue their conduct was somehow negligent and that it contributed to the injury.  For this reason, the "shift" in possible liability is not caused by the legal analysis but by the technology itself which takes human error out of the equation.  If the person formerly known as the driver of the car has no control over the car, it can hardly be said they acted in a way that creates an unreasonable risk of injury to others, unless you argue that getting into an autonomous vehicle is, by itself, negligent. And who wants to argue that?

Third, the article's assertion seems to be based on the notion that all of a sudden there will be a massive increase in lawsuits, and frivolous lawsuits at that which will lead to dogs and cats living together and the end of the world as we know it.  Give me a break.  Anyone who knows anything about tort law knows that tort law claims are a small percentage of civil litigation.  New technology does not necessarily lead to more litigation.  And, even if it does, if more litigation leads to better safety, then more litigation is a good thing.

The article goes on to suggest that one potential model to solve the problem can be found in the National Childhood Vaccine Injury Act of 1986.   This is certainly a possible approach but it must not be forgotten that vaccines fall within a very distinct category of products: those that are unavoidably dangerous.  These are products that can not be made safer but whose social benefits outweigh the risks they create.  Should we be eager to pronounce that autonomous cars should be considered in this same category of products?  I am not.  Not yet, at least.  We haven't seen an autonomous car in the market yet, so why would we be so eager to say there is no way they can be made safer?  And if there is no way to avoid the dangers they create, I suggest what we should be doing is asking whether we are willing to tolerate the risks rather than say they should be rejected precisely because they are unavoidably unsafe.

The article concludes:  "Initially, the tort system should be allowed to run its course because it may be the case that the gains are so enormous that frivolous lawsuits are not even a cost factor. But if excessive litigation ensues over just a handful of incidents and begins discouraging more widespread adoption, Congress might need to consider an indemnification regime that ensures the technology is not discouraged but which also compensates the victims. Creating this system will have challenges of its own, but the life-saving benefits of driverless cars are well worth overcoming a few roadblocks"

I agree with the first part.  There are many issues to deal with as the industry continues to move forward with the notion of autonomous cars and we should let the tort system continue to develop.

UPDATE (7-11-16):  TechDirt has a short post on the ethical dilemmas that smart car programming presents.   It starts by framing the question this way:   "Should your car be programmed to kill you if it means saving the lives of dozens of other people? For example, should your automated vehicle be programmed to take your life in instances where on board computers realize the alternative is the death of dozens of bus-riding school children?"  Interestingly, it points out that "people often support the utilitarian "greater good" model -- unless it's their life that's at stake. A new joint study by the Toulouse School of Economics, the University of Oregon and MIT has found that while people generally praise the utilitarian model when asked, they'd be less likely to buy such an automated vehicle or support regulations mandating that automated vehicles (AVs) be programmed in such a fashion . . . To further clarify, the surveys found that if both types of vehicles were on the market, most people surveyed would prefer you drive the utilitarian vehicle, while they continue driving self-protective models. . ."

Illinois to decide whether discovery rule applies in wrongful death cases

Does the discovery rule apply to wrongful death claims? The Illinois Supreme Court debated that issue last month, hearing oral argument in Moon v. Rhode. The Appelate Strategist has more information here and here.

Friday, July 1, 2016

National pharmacists' association calls for end of direct to consumer advertising

Back in December I reported that the American Medical Association called for a ban on direct to consumer advertising.  Now comes news that the American Society of Health-System Pharmacists has also joined the call, arguing that much of of the information provided in consumer advertising is misleading and contributes to the overuse of pharmaceutical drugs.  Go here for more information.

I have long held the same position, but I think it is naive to expect the FDA to go back to the day when direct to consumer advertising was banned.  The United States is one of only three countries in the world that allow direct to consumer ads for prescription drugs.  (New Zeland and Brazil are the other two.) 

Thursday, June 30, 2016

Good news for victims in Missouri: Governor vetoes two tort reform bills

Back in April I commented on a pending bill in Missouri to abolish the collateral source rule.  In that post, I explained what this means and why, if adopted, the new law would be "bad news" for torts victims. 

Today I am happy to report that Missouri's Governor has vetoed the bill.   Go here for more information.  Reportedly, the Governor concluded that the bill would be unfair to those who purchase insurance, which is exactly right.  Tort reformers always argue that the collateral source rule is unfair because it allows plaintiffs to recover more that what they should in compensation. But this argument is based on a simplistic approach that does not take into account the fact that plaintiffs have paid for insurance.  Thus the Governor is right that the new bill would essentially penalize those who have been paying for insurance all along and unduly benefit the wrongdoers. 

Tuesday, June 28, 2016

California Supreme Court to consider whether brand name drug manufacturer can be liable for injuries caused by inadequate warning in equivalent generic drug

A few years ago I reported on a decision by the Alabama Supreme Court holding that a brand name manufacturer could be held liable for injuries related to inadequate warnings when the plaintiff used a generic version of the drug.  The logic behind this reasoning, which has since come to be known as "innovator liability," is that federal law bans generic drug manufacturers from altering the warnings provided by the brand-name manufacturer (aka the "innovator") even if the generic manufacturers are aware that the brand name drug warnings are inadequate.  Thus, if the warning on the generic is inadequate, it is the innovator's "fault." 

Another reason for the development of this liability theory is that, as a result of the inability to independently alter the warning labels, generic drug makers are essentially immune from liability as long as they used the same warning as the innovator. As a result, those injured by generic drugs have been left with no recourse. Here is a discussion of the issue.

The Alabama decision was overridden by the state legislature last year, but the issue is back in the news because earlier this month the California Supreme Court granted review in a case on "whether brand name drug manufacturers should be held liable for failure to warn about risks associated with their medications when injuries are caused by generic equivalents."

Stay tuned.

Monday, June 27, 2016

Bill to adopt discovery rule as part of statute of limitations fails in New York

The New York Daily News is reporting that a bill to adopt the discovery rule for med mal cases in New York failed to be approved by the legislature.  The bill would have tolled the current 2 1/2 year statute of limitations until the plaintiff discovered the alleged malpractice.  New York is one of only six states that does not follow the discovery rule in this context. 

Thanks to the TortsProf blog for the update.

Monday, May 30, 2016

Movie mini review: Attacking the Devil: Harold Evans and the Last Nazi War Crime

The 2014 documentary "Attacking the Devil: Harold Evans and the Last Nazi War Crime" is now available for streaming on Netflix.  If you have access to it, I recommend it.

Before there was a "spotlight" team at the Boston Globe, there was the "insight team" at London's The Sunday Times.  This documentary tells the story of how Harold Evans, the editor of the Sunday Times pursued the story behind the injuries caused by the drug Thalidomide which was used to control morning sickness but which caused tens of thousands of children to be born with serious defects.

Under Evans' leadership, the Times pursued the story and fought restrictive laws that limited the publication of the facts behind the story.  The story is not only about products liability and the pursuit of justice for the injured victims but also about restrictions on freedom of the press. 

The Sunday Times' fight to win compensation for the victims took more than a decade, as Evans tenaciously pursued the drug companies through the English courts and beyond.

Saturday, May 28, 2016

Judge awards $7 million in case involving a wife getting exposed to asbestos in her husband's work clothes

As you probably know, mesothelioma is a rare form of cancer caused by exposure to, and breathing of, asbestos fibers. Most asbestos cases involve plaintiffs who were exposed to asbestos directly (usually at work), but there are a few cases that have recognized liability for "second hand exposure."  These usually involve plaintiffs who were exposed to asbestos when the person who had been exposed directly brought the fibers home embedded in their clothes.

For example, back in 2013, I reported (here) that a jury in California awarded $27.3 million in damages to a woman who developed mesothelioma as a result of her contact with her husband's clothes.  Just about a year ago, I reported (here) that a Washington state jury awarded $3.5 million to the estate of a woman who died of mesothelioma for the same reason.

Now comes news (also here) that a trial judge in Louisiana has awarded $7 million to the surviving family members of a woman who died of cancer after years of washing her husband's asbestos-tainted clothes.

Plaintiffs in these cases argue that the defendant should be liable because the injury is a foreseeable consequence of the risk created by the negligence conduct or product (depending on whether the claim is for negligence or strict liability).  This, obviously, is just an argument in support of the element of proximate cause and defendants, therefore, reply that viewed this way, liability could extend too far thus defeating the reason for proximate cause in the first place.  Since the notion of proximate cause is used to limit the reach of possible liability, they argue liability should be limited to the injury to the person who was exposed directly.  Otherwise, any bystander who came in contact with this person could sue.  What if the worker, instead of going straight home after work, went to a bar every day for a beer or two with friends and other co-workers.  Any "regulars" at the bar could have a cause of action. 

It is not a frivolous argument, and I am guessing some courts have (or will) accept it.  But, as we have seen, a few have either rejected it or at least replied to it that even if the possible liability should be limited to exclude those bystanders, it should not exclude the immediate family members.  

Friday, May 27, 2016

More thoughts on possible liability for the consequences of the conduct of app users: Is Uber dangerous?

Over at the New York Personal Injury Lawyer Blog, Eric Turkewitz has posted a very interesting short comment called Uber Cars are Uber Dangerous.  You should read the full comment but the bottom line is that it is possible to argue that the way Uber works, it encourages its drivers to check and reply to text messages while driving.  If this is the case, it can then be argued that Uber is acting in a way that creates unreasonable risks of harm to others, and therefore, that it should be liable for injuries that result.  This would be particularly important in jurisdictions that have adopted the view that someone who sends a text may be liable if he or she knows that the recipient is driving at the time and is likely to be distracted by the text.  There are reported cases on this in at least two states.

It should also be noted that this theory of liability is not dependent on finding that Uber drivers are employees as it would be if the argument is based on vicarious liability (an issue that is currently being litigated in several cases in different jurisdictions).

Wednesday, May 11, 2016

Thoughts on tort liability and autonomous vehicles

There is a growing amount of literature on possible issues related to tort liability and autonomous vehicles, aka self-driving cars.  If you search using those phrases in SSRN, for example you will find 10 to 20 articles. 

I have to confess I have not been keeping up with the literature but today I was reading an article in Smithsonian magazine (my favorite magazine, by the way) and found this quote by Chris Gerdes, who is described as “one of the leading engineers identifying novel problems facing autonomous driving and writing the code to solve them”:   “Autonomous vehicles don’t eliminate human error.  They shift it from the driver to the programmer.”

Obviously, this notion might prove to be extremely important in the future when someone has to decide whether to impose liability for injuries caused by an autonomous vehicle.

I also found interesting the description of how the programmer is working to identify and help solve the future problems: “Part of what Gerdes does is huddle with a team that includes not just engineers and programmers but also moral philosophers, and what has emerged is an ethical framework, or set of decision trees.”

The mention of moral philosophers, of course, made me think of the “trolley problem” (or here) which makes sense because this is the type of decision a programmer may have to find a solution to in order for the autonomous car to “act.”  

If you are not familiar with the “trolley problem” take a look at the first 13 minutes of this video.  Essentially, the question is whether you would act to switch a trolley from one track where it is headed to kill five people onto a track where it will kill one other person.  I would not want to be the computer programmer in charge of deciding this type of thing in order to tell a car what to do. 

And if you think the trolley problem is too far fetched, think of a more common problem.  How should the autonomous car react when a child darts in front of it?  Should it simply stop even though it senses there is a car behind which might hit it and hurt the passengers in it?  Should it veer to avoid the child but head to a collision into another car? And so on.  The possibilities are endless. 

Currently, we - humans - make those decisions based on reaction time and instinct and when injuries are caused, other humans pass value judgment on the conduct based on legal standards which depend on the circumstances. 

How would - or should - all of this change in cases of injuries caused by autonomous vehicles given that the responsibility for making decisions is transferred to a computer programmer?   Should the standard of care change to take into account the work of the programmer rather than the circumstances of the accident? 

Tuesday, May 10, 2016

Child has a claim for wrongful death even though father died before child was born

The ABA Journal is reporting (with links to more information) that the Iowa Supreme Court has decided that a child whose father died before she was born can sue for loss of companionship in a wrongful death case. Similar opinions have been published in

This is an interesting question that I know a little bit about.  One of the very first cases I ever handled as a young lawyer in private practice involved the same issue.  In my case, a couple were expecting a child when the father was killed by a negligent driver in an accident.  The child was later born without incident and the mother hired our firm to represent her in a claim against the driver.  We included a claim for the child based on wrongful death.  Like in the case in Iowa, the defendant argued that the child could not claim to have suffered an injury since the child never met the father (along the lines of you can't miss what you never had to begin with).  I prepared a brief in reply to the motion to dismiss and won, and the case settled soon after that.

I had not looked into the issue since then, so now I am interested in catching up to see what has been written about it.  Apparently, in addition to the case in Iowa, there are other reported decisions in Massachusetts and Wisconsin. I will add them to my summer reading list.

Should a social media app company be liable for the damages caused by a driver distracted by the app while driving? -- UPDATED

Earlier today I posted a note about a recent case on whether a person who sends a text to someone who is driving should be liable for injuries caused by the driver if the driver is distracted by the text.  Now, here is a story with a similar theme.

Abnormal Use is reporting on an interesting case from Georgia in which social media giant Snapchat has been sued for allegedly causing a motor vehicle accident in which the at-fault motorist was distracted while using the application.  You should go to AU and read the full report to get the whole story, which I will just summarize here.

The plaintiff in the case is claiming that the defendant driver struck her car while going at more than 100 miles an hour while using Snapchat.  According to the report Snapchat has a feature that will show the speed you are going when taking a photo or posting a video.  Apparently, according to the plaintiff's allegations, the driver wanted to show the world she was going more than 100 mph (with passengers in her car, one of whom was pregnant, by the way).  She failed in her attempt to show this because she rammed into the car in front of her just before posting causing the plaintiff brain damage.  But she was definitely able to show how stupid and reckless she is, and more since after the accident, she had the bright idea to snap and post a photo of herself on a stretcher.

But now back to whether the plaintiff should have a cause of action against Snapchat.  One could argue that Snapchat should not be liable for the irresponsible conduct of the driver in this case.  After all, the driver was the one that acted and caused the accident, right?  Why should the social media company be responsible for how the user uses the app?

The problem is that the issue is not that simple.  The fact that one actor is more culpable than the other, does not mean the other is not culpable at all.  The relevant question is whether Snapchat should be considered culpable at all, and to answer that question first we have to ask whether the plaintiff can make an argument in support of a claim against Snapchat.

I think she can. As, Abnormal Use points out, "While a speed filter may be an interesting piece of technology, we assume in order for it to be useful there would need to be “speed” involved. The filter probably lacks the appeal of users taking a leisurely stroll through Central Park. We can appreciate the plaintiffs’ argument that the filter incentivizes users to go fast and, unfortunately, the most available means of doing so is by car."

In other words, Snapchat created a feature that it knew or should have known would induce users to speed thus creating risks of harm.  Thus, it seems to me that you can argue that Snapchat created an unreasonable risk of a foreseeable type of harm, which gives the plaintiff support for a prima facie case.

Whether Snapchat should be as liable as the driver,... that's is different another question.

But whether you can make an argument that Snapchat should be liable at all...  Yes, I think you can...

UPDATE 5/10/16, 8:40 pm:  Abnormal Use has a published a longer post on the Snapchat lawsuit after downloading and testing the app.

New case on whether a person who sends a text to someone who is driving can be liable if the driver gets distracted by the text

Back in 2013 I reported that the New Jersey State Appeals Court had ruled that texting someone while that person is driving may cause the sender to be liable if an accident occurs. See here, here and here.  To my knowledge, that was the only case that had been decided that way.  Until now.

Eric Turkewitz of the NY Personal Injury Law Blog is reporting that a lower court in Pennsylvania has reached a similar result in a case called Gallatin-v-Gargiulo. You can read Eric's comment here.

Monday, May 9, 2016

Case against Uber based on alleged sexual assault by driver can go forward; Court rejects motion to dismiss based on allegation that the driver was independent contractor

The ABA Journal is reporting today that a San Francisco federal judge has denied Uber’s motion to dismiss cases based on sexual assaults committed by Uber drivers.  Uber's argument was based on the allegation that the drivers in question were independent contractors.

Obviously, if it is true that the drivers are independent contractors, the claims based on vicarious liability will be dismissed eventually.  But the judge thought it is too early to tell.  The question of the relationship between Uber and its drivers is being litigated elsewhere.  There are at least two pending class actions against Uber, regarding whether drivers should be classified as employees or independent contractors.

So the claims based on vicarious liability are still in play.  In addition, the plaintiffs have alleged claims based on direct liability based on negligence in hiring.  Those claims would not be affected if it is ultimately decided that the drivers are independent contractors.

Saturday, May 7, 2016

Medical errors are now the third leading cause of death in the US; Yet, Oregon upholds cap to prevent victims of medical errors to recover full amount of damages

Here are two stories published within days of each other this week.

A new study concludes that medical malpractice has now become the third leading cause of death in the United States, which supports the arguments of those who for years have been advocating for reforms to minimize medical errors and to strengthen protections for those who suffer damages because of those errors.  Go here for an article and a podcast on the new study.

Yet, at the same time, the response of tort reformers in many states is to continue to pursue measures intended to make it more difficult for victims of malpractice to pursue claims or to lower the amount of compensation they can recover is they do pursue the claims.  For example, I recently commented on measures taken, or about to be taken, in Missouri, and Arkansas.

Now comes news of a recent decision by the Oregon Supreme Court which upheld a $3 million  cap on damages against the state and its employees.  Now, I understand that $3 million sounds like a lot of money (and it is!), but the fact is that measures like these have the effect of affecting much more those who suffer the worst types of injuries.

This case is a perfect example.  The Court's ruling reduces a $12 million jury verdict in a case that involved a botched surgery that nearly killed a then 8-year-old boy.  Here is what is important:  the plaintiffs proved they would need $6 million to cover future medical need for the child.  Yet, the Court cut down the award to half of that.  The $3 million that is left out must now be absorbed by the family.  The defendant caused the injury but the family has to pay at least half of the costs.  OregonLive has the story.

Friday, April 29, 2016

Missouri getting ready to abolish collateral source rule

Bad news for victims in Missouri.  TortsProf blog is reporting that the Missouri House passed a bill abolishing the collateral source rule.  A version of the bill has already passed the Missouri Senate.  The Missouri Times has details.

The collateral source rule is an old doctrine, which at one point applied pretty much everywhere, that prevented courts from taking into account any amount of money the plaintiff receives from a source other than a defendant when determining the amount of compensation in a lawsuit.  Over time, with the backing of tort reformers, some jurisdictions have abolished the doctrine based on the phony argument that it allows the plaintiff to get unjustly enriched.  The argument is that because of the doctrine the plaintiff can get paid by the plaintiff's insurance and then on top of that gets paid again by the defendant.

The argument is phony because the payment by the insurance company comes after the plaintiff has been paying the insurance premiums for however long the plaintiff had the insurance.  So eliminating the doctrine actually penalizes the plaintiff for having gotten insurance to begin with.  

Arkansans to vote on possible med mal reform: limits to punitive damages and limits on fees

TortsProf blog is reporting that the Arkansas' attorney general recently approved the wording of a proposed ballot item to amend the constitution that would instruct the state's legislature to set a cap on punitive damages in med mal cases at no less than $250,000, to be adjusted for inflation every 2 years. 

Long time readers of this blog know I am opposed to caps in general, and caps on punitives in particular make little sense to me.  Punitive damages are meant to be used as a strong deterrent for particularly bad conduct.  The imposition of punitive damages is actually very rare, but when used by juries they are used to send a clear message.  They are also meant to be punitive.  They are supposed to hurt.  These goals are best met if punitives are unpredictable.  Once the defendants know what they punitives are likely to be, they can start calculating the risk and using a formula to count them as a cost of doing business. I am not sure what the wording at issue here is going to be or the final effect, but if it results in making the possible amounts imposed as punitives predictable then I'd say it is a bad idea.

Another aspect of the ballot item is to limit how much plaintiffs attorneys can charge their clients.  This, as usual, is an attempt to make it more difficult for victims to find legal representation, which will in turn benefit those who caused the injuries.  Reportedly, the new measure will ban lawyers from charging more than one-third as a contingency fee.  This does not sound like much but it can make a difference in some cases.

With the approval, the sponsor can begin gathering the 84,859 signatures needed to place the proposal on the November ballot. 

Colorado Supreme Court has held that attorneys do not owe any duties to non-clients

The Colorado Supreme Court held attorneys owe no duties to non-clients, such as the beneficiaries of a will, absent allegations of fraud, a malicious or tortious act, like negligent misrepresentation.

You can read more about the decision here and here.

The ruling goes against the view expressed in the Restatement of the Law Governing Lawyers (Sec 51), followed in several states, which recognizes duties to third parties (non-clients) in several circumstances.

Wednesday, April 27, 2016

Utah Supreme Court Holds Children Under the Age of Five Cannot Be Liable for Negligence

The Utah Supreme Court recently adopted a bright-line cutoff for liability for negligent children, setting the limit at 5 years old.  The case involved a 4 year old who threw a rubber dolphin at his babysitter.  Unfortunately, the dolphin hit the babysitter in the eye.  She had just had a cornea transplant and the accident blinded her.  The Volokh Conspiracy has the story.

Setting an age limit is not that unusual, but the age itself varies among states.  I have read somewhere that the more common age is 7, but I have not done the research to confirm it.  The Restatement (Third) of Torts suggests the age of 5, which is one of the reasons the Utah Supreme Court chose it.

One interesting thing about age cut offs is that the most famous case regarding intent (as an element for intentional torts) involved a 5 year old.  Remember  Garratt v. Dailey?  I am sure you read it in law school.  It's the case case about the 5 year old who pulls a chair out from under a woman who was about to sit down on it. 

Thanks to TortsProf for the information.

Sunday, April 3, 2016

Article on Prosser's letters

Back in 2009, I posted a link to an article by Professor Chris Robinette (Widener) on the "Prosser Notebook" - a notebook of one of Prosser's students at the University of Minnesota in 1938.  See here and here.

Chris has now published another article on Prosser's letters which is now available here.  It contains material from an unpublished dissertation on Prosser's father, who played a crucial role in the development of vocational education, and materials from the Harvard archives.

Thanks to Chris for the link.

Monday, March 28, 2016

Federal Medical Malpratice "Reform" bill is, as of now, off the agenda

The federal med mal bill being considered by the House Judiciary Committee was (at least temporarily) derailed, surprisingly, because of the opposition of Republican committee members. As reported by The Hill, "The House Judiciary Committee on Tuesday abruptly postponed a markup on a medical tort reform bill after outbursts of criticism from several of the panel's conservatives. In a rare display of discord on a GOP-led medical malpractice bill, Texas GOP Reps. Ted Poe and Louie Gohmert opposed a bill from fellow Republicans because they said it would violate states' rights." Go here for the full story.

This is a good result.  The bill was awful.  It would have federalized what should be clearly state common law, and it would have had the effect of limiting, if not elimintating, access to legal representation to the most vulnerable types of victims, low wage earners, the elderly, children, and women.

A few days ago, the ABA sent a letter to the Chairman of the House Judiciary Committee expressing its opposition to the bill.  It has a good explanation of the issues and the reasons the bill should never become law.  You can read the letter here.

In the end, the bill is just another illustration of how any bill that claims to encourage "tort reform" is in reality an attempt to do one of three things (or all three):  (1) to prevent injured parties from recovering from their injuries, or (2) it they must be allowed to try to recover, to make it more difficult for them to be able recover, or (3) if they can recover, to make sure they can recover as little compensation as possible.

That's it.  That's tort reform.  That is what this federal bill is after.  And that is why it should never be allowed to become the law of the land.

Friday, March 18, 2016

Indiana Product Liability Act's Statute of Repose Found Unconstitutional For Asbestos Cases

Go here for the full story.

West Virginia Legislatively Recognizes the Learned Intermediary Doctrine as a Product-Liability Defense

On February 26, West Virginia became the 38th state to adopt the learned intermediary doctrine when Governor Earl Ray Tomblin signed SB 15 into law.  The law effectively overrules a 2007 West Virginia Supreme Court decision that had rejected the defense.  Go here for more details.

Thursday, March 10, 2016

Indiana House Judiciary Committee approves increase to med mal damages cap -- UPDATED: Legislature approves cap increase, with one important change

Good news for victims of medical malpractice in Indiana....  The House Judiciary Committee, 11-1, approved a $400,000 increase in the med mal cap, to a total of $1.65M.  It would gradually increase every 4 years until 2031, with a final cap of $2.25M.  The bill now goes to the full House, but may have trouble in the Senate. The TortsProf blog has a link to the story here.  Of course, the bill will have to be adopted by the state legislature and then signed into law.  It is not clear how easy that will be...  Stay tuned.

UPDATE 3/10/16:  The Indiana House of Representatives approved the proposed increase in the med mal cap from $1.25M to $1.8M by 2019.  However, unlike the Judiciary Committee's proposal, there are no further increases.  The Senate later approved the bill 49 to 0.  Now the bill goes to the Governor.

Thanks to the TortsProf blog for the update.

Wednesday, March 9, 2016

Play Ball! Some thoughts on torts and baseball

A man's fast reaction helped keep a young fan from being struck in the face by a baseball bat at a spring training game this weekend.

Baseball fans are eagerly awaiting the beginning of a new season.  But, with a new season, we also get the renewed debate regarding safety at the ballpark.  Just a few days ago, at a spring training game, the quick reflexes of an adult saved a child from serious injury (or worse) when a bat flew into the stands.

That child was lucky. Really lucky.  According to one source about 1,750 people get hurt during major league baseball games primarily from foul balls and broken bats.  (Other common claims include injuries caused by team mascots.)  Many suffer severe injuries, yet few have been able to recover compensation.

One important reason for this is that many of the cases have been decided using a confused analysis based on the argument that people (both participants and spectators) assume the “inherent risks involved in the game,” often referred to by the unfortunate term “primary assumption of the risk.”  Yet, the analysis in most of those cases is not particularly coherent and I continue to be amazed at the fact that after so many years of common law so many courts are still unclear about the concept of assumption of the risk as it relates to sports and recreational activities.

Take the cases involving claims against bat manufacturers for injuries caused by aluminum bats, for example.

In the past few years there have been a number of cases imposing liability on aluminum bat manufacturers because the ball travels off them at a much higher rate of speed putting fielders are at a higher risk of injury.  In response, you often hear criticism from defendants and others that are quick to quote the notion that players assume the inherent risks of the game.  Using the same argument, some take the rhetoric even further and use it to attack the tort law system itself claiming that the lawsuits are just another example of plaintiffs’ lawyers bringing frivolous claims. 

I think those arguments miss the point.  Granted; risk, danger and injuries are a part of life, let alone of baseball.  However, tort law is one of the mechanisms we can use to regulate the level of risk we are willing to live with.  You can’t play baseball unless the hitters use a bat. But it does not have to be an aluminum bat. Why expose the players to more danger if there is a safer alternative? The alternative is not perfect and it won’t eliminate all the risk, but it is safer.  

The point is that litigation often helps society define the limits of the acceptable level of risk we are willing to take for any given activity.  We have accepted the risks of baseball when played with hardballs and solid wood bats.  But as we start our kids playing the game earlier and earlier we want them to be as safe as possible while still playing the game.  That is why we now require better helmets and protection.  That is why Little League Baseball has banned the use of dangerous aluminum bats and regulates those that are permitted for competition.

Now, some argue the resulting injuries would be the same even if the bats are made of wood. I have no expertise on that question, but I can concede that it may be true in some cases.  On the other hand, I am sure it is not true in all cases, and it is those cases that matter.

The risks inherent to baseball have changed over the years and it is perfectly reasonable to find that our tolerance for more risks has a limit.

The cases involving spectators are even more problematic. 

In these cases, many courts refer to what they often call “the baseball rule” according to which baseball park operators are excused from liability based on the notion that spectators assume the risk of being hit by foul balls or bats that fly into the stands.  According to the argument, these are risks "inherent to the game."  Many jurisdictions do follow this notion, usually again referring to it as the confusing concept of “primary assumption of the risk.”

The confusion starts because it is often said that spectators assume the risk of getting hit by foul balls at baseball games and that, thus, those in charge of the park do not have a duty to protect them.  Neither of the two parts of this statement is entirely correct.

First, it is well known that all baseball parks have installed some form of "netting" to protect the members of the public who sit behind home plate (and some distance between there and first and third bases).  Thus, the park operators do have a duty to those spectators.

Second, the statement confuses the concept of duty – which is an element of the cause of action’s prima facie case – and assumption of the risk – which is an affirmative defense that does not challenge an element of the cause of action’s prima facie case.

Assumption of the risk is a defense based on an evaluation of the plaintiff’s conduct in order to determine if he or she voluntarily decided to undertake a known risk.  However, the so–called “primary assumption of the risk” doctrine has nothing to do with an evaluation of the plaintiff’s conduct.  Primary assumption of the risk is a policy question that asks the court to decide whether to impose a duty on the defendant to act to protect others from certain risks.  In other words, the application of the concept of primary assumption of the risk is simply another way of asking whether the defendant owes a duty to the plaintiff. 

When applied to baseball, the policy question should be answered by saying that an operator of a baseball stadium has a duty to protect the spectators sitting in the most dangerous part of the stadium and to exercise ordinary care to prevent unreasonable, foreseeable risks of harm to others.  This means that a defendant can’t claim a plaintiff assumed a risk created by the defendant’s own negligence.  This approach will yield good results not only in spectator injury cases but also in other sports cases. 

What makes this issue more interesting this year is that given last season's many gruesome incidents in which fans were struck by balls and shattered bats, Major League Baseball issued a recommendation for all 30 clubs to extend the protective netting farther along the baselines to first and third.  (See NYT article.)

This sounds like a good decision, but, as explained in a New York Times article, the new MLB policy can't be more lame.
Under the new policy, teams are “encouraged” to extend the netting behind home plate a mere 70 feet or so down the foul lines, to the “near ends of both dugouts” — that is, the end of the dugout closest to home plate. Note that this is not a mandate but merely a recommendation. It also calls on teams to “explore ways to educate their fans” on the inherent dangers of sitting close to the action and the importance of paying attention. And it wants teams and ticket vendors to make clear to the fans which seats are protected when they are buying tickets.
Thus the new "policy" does not require the teams to do anything and most of it is to encourage them to do what they can so they can later claim "assumption of the risk" by arguing that the fans were warned about the risk.

Some teams have announced they will provide more protection to fans, but some will not, and accidents will continue to happen.  Then, as it happened in the NHL in 2002, someone - perhaps a child - will get killed and the league will change its policy.  In 2002, the N.H.L. mandated safety netting at its arenas after a girl was struck in the head by a puck and died from her injuries.  

It does not make any sense for MLB to wait until something like this happens.  And if you don't think it will, take another look at the photos of that recent game.  What do you think would have happened had the adult not extended the arm in front of the child's face?  (Read about them here.)

For more commentary on this issue and a discussion of ongoing litigation against the New York Yankees take a look at this article.

Tuesday, March 8, 2016

The most cited law review articles of the last 25 years

Professor Ted Sichelman (University of San Diego School of Law) has published an interesting list of the most cited tort related law review articles published within the last 25 years. You can see the list and an explanation of the methodology used to create the list here.

For a similar list you can check out Fred R. Shapiro and Michelle Pearse, The Most-Cited Law Review Articles of All Time, 110 Mich. L. Rev. 1483 (2012).

Thanks to Ted for the update!

Thursday, February 25, 2016

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.

Sunday, February 14, 2016

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.

Friday, February 12, 2016

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, "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.

Wednesday, January 27, 2016

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.

Sunday, January 24, 2016

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.