Sunday, July 15, 2018

Third Circuit: US is immune from liability for intentional conduct by TSA officers because they are not "law enforcement officers" under the FTCA

As you probably know, the Federal Torts Claims Act retains immunity in a number of very specific circumstances.  Thus, according to the Act, the United States generally enjoys sovereign immunity for intentional torts committed by federal employees.  However, this rule is subject to an exception which waives immunity for a number of intentional torts if they are committed by employees who qualify as “investigative or law enforcement officers.” 28 U.S.C. § 2680(h).  This means that a plaintiff does not have a right to recover from the US Government if a mail carrier commits battery; but may have a right to recover if an FBI agent does.

In a recent case decided by the Third Circuit Court of Appeals, the court decided that TSA agents do not qualify as "law enforcement officers" and, therefore, the Government is protected by immunity.

The case is Pellegrino v. The TSA (available here), and the facts are what you would expect given the topic:  a passenger alleged intentional torts related to the conduct of TSA officers during a "screening" at an airport.  The details of the event are described here.

Be careful when reading comments on the case because some of the discussion is a bit inaccurate.  For example, some of the stories state that the officers are immune.  This is not entirely accurate because the FTCA deals with the immunity of the Federal Government, not of the individuals. 

Simple Justice has a comment here.

Tech Dirt has a comment here.

Tuesday, July 10, 2018

Parents who allowed child to die for religious reasons plead guilty

A number of years ago, I posted a number of comments on the possibility of imposing civil liability on parents whose refusal to provide medical treatment to a child for religious reasons causes the child to suffer an injury (or death).  See here, here and here, for example.

I had not seen the issue in the news for a long time, but today I saw an item in the news that caught my eye:  As reported in the Daily Beast, "[t]wo members of an Oregon church that believes in faith healing pleaded guilty to negligent homicide this week in the death of their newborn daughter, who spent hours struggling to breath without ever receiving medical treatment."  You can read the full story here.

This is, of course, a criminal law matter; but it does raise the question I have asked before.  If the parents can be criminally liable for this conduct, should we recognize a civil cause of action against them for wrongful death also? 

Sunday, July 1, 2018

Wisconsin Supreme Court upholds validity of cap on non-economic damages

As the TortsProf blog recently reported, the Wisconsin Supreme Court recently held that the state's cap of $750,000 on non-economic damages in medical malpractice cases is constitutional. 

The plaintiff in the case lost her arms and legs as a result of a medical error and the jury determined that her pain, suffering, and disfigurement had a value of $16.5 million.  However, Wisconsin’s highest court deferred to legislation limiting such awards to a maximum of $750,000 in all cases, regardless of the severity of the injuries.

In a dissenting opinion, two justices argued that the cap had a perverse effect on plaintiffs because only those with the most catastrophic injuries will be denied a full and fair damages award and it "makes no sense that those who are injured most get the least.”

You can read the entire opinion here.