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

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

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

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

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

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

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

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

Passengers sue Alaska Airlines for emotional distress caused by off duty pilot's attempt to shut down an airplane's engines

Three passengers who claimed to have suffered emotional distress as a result of a recent incident in an Alaska Airlines flight have filed a complaint against the airline, and have asked for the case to be recognized as a class action.  The claim is based on the incident in which an Alaska Airlines flight that was nearly downed due to an alleged attempt by an off-duty pilot to shut down the engines last month have filed a class-action suit against the airline.  The lawsuit alleges that the airline did not properly follow its policy by allowing the off duty pilot to fly in the cockpit’s jump seat, despite him admitting that he was not right of mind.  

For the story on the original incident, go here.  For more on the recently filed complaint, go here.

I do not understand why this claim would be considered to be a class action, but we'll have to wait and see what happens to that request.

Federal Court denies motion to dismiss, allowing claim for emotional distress based on pre-impact terror to move forward

As reported in Day on Torts:

A federal judge in Chicago has agreed to allow a jury to consider whether airplane crash victims experience preimpact terror before their deaths.  Faced with no Illinois law directly on point, the federal court determined that the reasoning in  Haley v. Pan American World Airways, Inc., 746 F.2d 311, 314-15 (5th Cir. 1984), was persuasive.  The Haley court found the courts of Louisiana would permit recovery for emotional distress “during a negligently produced ordeal”

From the opinion:

A jury could reasonably infer from the evidence that will be presented at trial that the passengers on ET 302 perceived that they were going to crash, horrifically, to their certain death. Boeing has not demonstrated that Illinois authority bars plaintiffs from recovering for the preimpact emotional distress they suffered as a result, and the Court concludes that the Illinois Supreme Court likely would permit recovery of such damages.

The Court also concluded that there was sufficient evidence of emotional distress to create a jury question given the anticipated testimony about the movements of the plane before the crash.

You can read the opinion here.

Strangely worded opinion in Indiana recognizes cause of action for emotional distress resulting from sexual abuse of a child, ... maybe?

A few days ago, the TortProf Blog reported that "[t]he Indiana Supreme Court has extended negligent infliction of emotional distress."  In K.G. v. Smith, 2021 WL 6063878, at **1, 8, 2021 Ind. LEXIS 775, at *2, 23-24 (Ind. 2021), the court apparently recognizes a cause of action for the parents of a child who claim emotional distress from learning that a caretaker for their child sexually abused the child.  However, the opinion is very awkwardly worded.  It states that 

"[W]hen a caretaker assumes responsibility for a child, and when that caretaker owes a duty of care to the child's parent or guardian, a claim against the caretaker for the negligent infliction of emotional distress may proceed when the parent or guardian later discovers, with irrefutable certainty, that the caretaker sexually abused that child and when that abuse severely impacted the parent or guardian's emotional health.”; “To satisfy this rule, the parent or guardian must show (A) that the tortfeasor had a duty of care to the parent or guardian; (B) that there is irrefutable certainty of the act's commission; (C) that the tortious act is one rarely, if ever, witnessed by the parent or guardian; and (D) that the abuse severely impacted the parent or guardian's emotional health."

Here is my problem with this.  Notice how the court does not say that the caretaker owes a duty to the parents.  It says that IF the caretaker owes a duty to the parent.  This means that to support a prima facie case, the parents will have to convince the court that the caretaker owes them a duty.  And, the parents will have to do this in addition to meeting all the other elements of the cause of action.  

In other words, the key here is that the parents have to show that the caretaker owed them a duty, but the court does not say how a parent can satisfy the element of duty in such a case.   Unless I am missing something, this adds nothing to what we already knew.  To have a cause of action, the plaintiff always has to show the element of duty.

My guess is that the parents will have to find a way to convince the courts to adopt the view of the Restatement 3d §47(b) which recognizes a possible claim for negligent infliction of emotional distress based on the relationship between the parties.  

Trial related to destroyed frozen embryos raises interesting questions -- UPDATED again

This story is updated below, at the end of the original post

I just read a story on Courthouse News on a trial in which the plaintiffs are suing the manufacturer of cryogenic tanks that somehow failed causing the destruction of thousands of frozen eggs and embryos, which according to the plaintiffs dashed some families’ only hope of having biological children.

The plaintiffs' claim is for product liability based on the alleged defective design of the tanks.  The defendant, however, is apparently going to argue that the tank's failure was due to the misuse of the product by the Fertility Center which used it.  This is the first interesting point in the case because that argument is essentially claiming that the conduct of the Fertility Clinic was an unforeseeable intervening (and therefore superseding) cause.  

Yet, the most interesting question raised by this case relates to the injuries claimed by the plaintiffs.  The story states that the claims "for the loss of eggs and embryos" were sent to private arbitration.

So, my first question is what is a claim for the "loss of" the eggs and embryos?   I am assuming "embryos" refers to fertilized eggs, while eggs are not fertilized.  If that is the case, there can be no claim for wrongful death for the loss of the eggs in any jurisdiction I know of.  And for the loss of the embryos, there can be a wrongful death claim only in jurisdictions that recognize that life begins at conception for purposes of the wrongful death act.  So I wonder if the claim is not for wrongful death but for something else?  Is it just a contracts dispute then?  I just don' know.

On the other hand, maybe the claim is for emotional distress, but that claim would depend on the jurisdiction's approach to those claims?  If the jurisdiction requires impact, I don't think there is support for the claim, for example.  Also, the facts don't seem to fit a claim for emotional distress of a bystander.  

Since the case is already at trial, I guess these questions were resolved already through motions to dismiss, etc.  But I wonder what the answers are.  

UPDATE May 30, 2021:  Courthouse News is following the trial closely.  This week they published the following stories:

On May 26:  Lab Workers Were ‘Devastated’ by Tank Failure That Destroyed Human Embryos

On May 27:  Tank Manufacturer Accuses Fertility Clinic of Falsifying Data in Frozen Eggs Trial 

June 6: Fertility Patients Describe Sadness and Anger After Freezer Tank Failure

June 9: Jurors Asked to Award $30 Million for Lost Eggs and Embryos

June 10: Jury Finds Tank Maker Responsible for Lost Eggs and Embryos, Awards $15 Million

June 12: Loss of Embryos and Eggs at Fertility Clinic Leads to Groundbreaking Multi-Million Dollar Verdict in California

June 20: $15 Million Verdict Against IVF Cryopreservation Tank Maker Is Big News

New York expands category of people who can recover for emotional distress from witnessing someone else's accident

As you probably know, in most jurisdictions a plaintiff has a cause of action for emotional distress based on having witnessed someone else suffer an injury even if the plaintiff is outside the zone of danger (within which the plaintiff would be in danger of physical injury) if certain conditions are met. 

New York, however, is not one of those jurisdictions.  Instead, New York still follows the minority approach.  Thus, in NY, plaintiffs seeking to recover for emotional distress from witnessing someone else’s accident must show that they (the plaintiffs) were within the zone of danger and in danger of physical injury at the time of the accident and that the person who suffered the injury must have been an “immediate family member.”

I am writing about this today because about two weeks ago, the New York Court of Appeals (the highest court in the state) expanded the category of people who can recover by recognizing that grandparents are “immediate family members.”  

It should be clear that the opinion did NOT extend the reach of possible liability to people outside the zone of danger, but it did expand the category of people who can recover if they are within the zone of danger.

The case is called Greene v. Esplanade Venture Partnership.  You can read the opinion here.  Courthouse News and the ABA Journal have more information about the case here and here respectively.

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

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

Alaska reiterates its approach to bystander emotional distress claims, which is very different than the one used in most other jurisdictions

As you probably know, back in 1968 the California Supreme Court created what has now become the majority approach to claims by people who suffer emotional distress at witnessing injuries suffered by others.  According to that approach, the claim is limited to plaintiffs who are closely related to the victim, are present at the scene of the accident and who have a contemporaneous sensory observance of the accident.  Someone who is told about an accident after it happens or who arrives at the scene only to observe the aftermath, would not have a claim.

Alaska, however, never adopted the requirement of the contemporaneous sensory observance.  According to this approach, the plaintiff can support a claim as long as he or she is a close relative of the victim and that, under the circumstances, it is reasonably foreseeable that the plaintiff would suffer emotional distress.  This means the notion of duty in Alaska in these types of cases is broader and defendants are exposed to liability in many more cases.

I am writing about this today because I just read that the Alaska Supreme Court has again reiterated its approach to this issue in a new case called Doan v. Banner Health, Inc., (available in Westlaw at 2019 WL 2312537).

In this case, a mother, who was in a hospital waiting room when her daughter died, brought a NIED claim against medical providers for the distress she suffered upon seeing her daughter’s body. 

This claim would have been rejected in any state that follows the California approach and, obviously, in all states that reject it in favor of the "zone of danger" approach.  To my knowledge, this leaves only Alaska and Puerto Rico.

Thanks to the TortsProf blog for the update.

New case claims injury based on negligent conduct by fertility clinic

A few years ago I wrote an article criticizing a case in which the plaintiffs claimed to have suffered an injury because, due to the conduct of the defendant, they ended up giving birth to a child of a different race.  (See here.)  I argued that it would be wrong to use someone's race as a measure of injury in a torts claim.

I still believe that to be the case, but a new case has been filed in Connecticut which raises the issue in a slightly different way.  In the case I wrote about, the plaintiffs specifically used race as an element of their injury.  In the new case, the plaintiffs are not doing that.  They are also not using the phrase "wrongful birth" to refer to the basis for their claim.

Should this make a difference? 

The notion of wrongful birth is usually used to refer to a claim that had it not been for the negligent conduct of the defendant the parents would have chosen not to have the child, and that because they did have the child, the defendant should pay for the resulting expenses (and other injuries).  Typically, courts do not recognize recovery for the emotional injury, but might recognize a claim for out of pocket expenses of various types.

In the case I wrote about a few years ago, a white woman provided the eggs and the defendant used sperm from a donor.  The mother had specifically selected the donor to be white.  Instead, the defendant used sperm from a different donor who happened to be African American.  The child born from the procedure is biologically related to the mother but of mixed races.

In the recently filed case in Connecticut, the defendant was supposed to use sperm from the plaintiff/father to fertilize an egg from a donor, so that the child would be biologically related to the father. The defendant used the wrong sperm and thus the couple gave birth to a child who is not biologically related to either one of them and also of mixed races.

Based on those facts, the complaint in the new case simply states that the defendant provided the wrong sperm to the plaintiffs and that the result of the procedure is a child who is not related to the parents at all.  This is the basis for their claimed emotional distress.  The complaint is careful not to use the term "wrongful birth" or to suggest that the race of the child is itself a basis for emotional distress. 

Should the parents in this case be granted a cause of action for the emotional distress if we don't grant one for the parents of a child in the older case?

It seems that the difference comes down to whether the race of the child is the basis of the claim.  Is it?  What do you think?

You can read more about the case in Connecticut here and here.

Complaint filed against Southwest for emotional distress caused by failed engine

At least one passenger has already filed a lawsuit over the mental trauma suffered on a Southwest flight that made an emergency landing earlier this month, after an engine exploded and blew out a window, resulting in a sudden drop in cabin pressure that almost pulled one woman out of the airplane.  Southwest Airlines has sent passengers of the flight an apology and has offered them each a $5,000 check and a $1,000 travel voucher.  Go here for the full story.

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.

Charlie Sheen’s Ex-Fiancée Sues Over Sheen’s Failure to Disclose HIV Status; does she have a case?

Charlie Sheen’s ex-fiancée sues over Sheen’s failure to disclose HIV status.  Does she have a case?  Two articles discuss the issues here and here.

Nevada upholds compensation cap

Jurisdictions continue to rule differently when it comes to the constitutionality of legislative caps on compensation for non-economic injuries.  Some, including Illinois, have found them unconstitutional.  Others, most recently Nevada, have rejected that position.

As reported in the TortsProf blog, a few days ago, the Nevada Supreme Court unanimously upheld the state's $350,000 med mal cap on non-economic damages.  A lower court had ruled the cap violated the constitutional right to trial by jury.  The court also overturned the lower court's holding that the cap applies separately to each plaintiff and each defendant.  The Las Vegas Review-Journal has the story.

Court dismisses complaint for wrongful birth against sperm bank in case in which mother claimed damages because her child was not white

Just about a year ago, I wrote about a complaint for the "wrongful birth" of a mixed race child filed in Chicago by a white mother against a sperm bank because the defendant mistakenly provided her with sperm from an African-American donor.  I wrote my comments on the case here, here and here and more recently published an article on the subject (available here). I won't repeat all my arguments now - please read the previous comments if you are interested.  Suffice it to say I argued strongly that the case should be dismissed.

Given my position, I am pleased to report today that the trial judge has, in fact, dismissed the complaint.  There is no question in my mind that this was the correct decision.  However, I have not had a chance to see the actual order, and every report I have seen repeats something very odd that caught my eye, something along the lines of  "the judge rejected both claims but said that the plaintiff (the mother) could refile the suit as a “negligence claim...”

This makes absolutely no sense to me.  The complaint included two claims, one for breach of warranty under the Illinois Blood and Organ Transaction Liability Act and one for wrongful birth.  The purpose of the Act is to prevent plaintiffs from filing strict liability actions against certain defendants.  Thus, the actions that can be filed under the act, if any, would be based on negligence.

The notion of a "warranty" in such a claim comes from the text of the statue in that it states that those involved in the rendition of any of the services described in the statute "warrants . . . that he has exercised due care and followed professional standards of care," or, in other words, that the defendant was not negligent.  This statement means nothing other than what the common law already requires. The plaintiff still has the burden of proof to argue and prove the standard of care and that the defendant breached it. Thus, the statute changes nothing and provides no additional, or different, avenue of relief to a plaintiff than a normal negligence claim. The claim "for breach of warranty" under the statute would only be valid, and survive a motion to dismiss, to the extent the plaintiff can support a claim for negligence.

For this reason, re-filing the claim as a negligence claim would be essentially the same thing as filing the original complaint, which the judge already dismissed!  And if it is re-filed, what damages would be claimed?  It would have to be the out of pocket economic damages (which have been reimbursed already, and therefore for which there is no claim) and the emotional distress due to the birth of the child, which is another way of arguing the same thing as the wrongful birth claim.

The wrongful birth claim, in turn, is, by definition, a negligence claim.  The label "wrongful birth" refers to the type of injury used as a basis for the claim, not as a reference to the theory of liability upon which the claim is based.  The theory of liability is negligence.  Clearly it is not intent nor strict liability, so what else could it be?

Thus, again, re-filing as a negligence claim would mean refiling the same case!

Why would the judge allow the plaintiff to re-file a claim that the judge has decided has no merit, when re-filing it would only mean the plaintiff will re-argue the same claim again?   It makes no sense. 

Like I said, I have not seen the actual court order, and maybe the newspapers are wrong in their reporting, but I have seen the same report in the Washington Post and the Chicago Tribune. 

Illinois Supreme Court holds proximate cause applies to intentional tort claims, which precludes claim for death caused by suicide but contradicts itself in the process

Back in April I wrote a comment on an oral argument before the Illinois Supreme Court in an interesting case that asked the court to recognize a cause of action for wrongful death when the defendant’s alleged intentional infliction of emotional distress caused the decedent to commit suicide.  As I explained there, Illinois has decided that, in the context of a negligence claim, a suicide is unforeseeable as a matter of law, which means that it always operates as a superseding cause that defeats the element of proximate cause.  What made the case before the Court different, however, is that it was brought as an intentional tort claim based on intentional infliction of emotional distress.  The case is called Turcios v. DeBruler Company. 

In my original post, I quoted a popular Torts hornbook which states that “[a]uthority is sparse as to when, if ever, proximate cause will preclude liability for intentional torts. In light of the greater culpability inherent in intentional wrongdoing, courts appear, at the very least, ready to stretch to find liability."

It is now clear that the Illinois Supreme Court is not willing, much less, ready, to make this “stretch.”  In reaching its decision, the Court first concluded that the concept of foreseeability, embodied in the doctrine of proximate causation, limits the liability of both negligent and intentional tortfeasors, holding that “[p]laintiffs’ view, under which legal cause plays no role in the liability of an intentional tortfeasor, essentially creates open ended and limitless liability for injury, no matter how abnormal, extraordinary, irregular, or remote the injury may be.” [Interestingly, the court noted that plaintiffs conceded during the oral argument that some line drawing must be made, and that an intentional tortfeasor is not necessarily liable for all  consequences flowing from the defendant’s conduct. You can listen to the oral argument here.]

Having decided that intentional tort liability should be limited by applying the concept of proximate cause, the Court then applied the proximate cause analysis to the context of the case and concluded, as it has done consistently in the past, that because the death of the decedent was the result of a suicide, it was unforseeable, and therefore the plaintiff failed to satisfy the element of proximate cause.

In reaching this conclusion, however, and perhaps without noticing it, the Court contradicts its long held position on suicide and opens the door for future arguments against it when it states:

"Because an intentional tortfeasor’s liability is limited by the concept of foreseeability embodied in the doctrine of proximate causation, a cause of action for wrongful death predicated on a suicide allegedly brought about by the intentional infliction of emotional distress is subject to the general rule that suicide is unforeseeable as a matter of law. Thus, the plaintiff bears a heavy burden of pleading and proving facts that would overcome application of the rule.

....

Accordingly, we hold that where, as here, a plaintiff seeks to recover damages for wrongful death based on the decedent’s suicide allegedly brought about through the intentional infliction of emotional distress, the plaintiff must . . . plead facts which, if proven, would overcome application of the general rule that suicide is deemed unforeseeable as a matter of law. In other words, a plaintiff must plead facts demonstrating that the suicide was foreseeable, i.e., that it was a likely result of the defendant’s conduct."

Here is what I find interesting about this.  If a plaintiff can argue that the suicide is foreseeable, then by definition, the suicide is no longer unforeseeable as a matter of law.  If it can be argued that in some cases it is foreseeable while it is not in others, then the court is implying that reasonable people could disagree as to whether it is foreseeable at all, making the question one for the jury.  Doesn't that, by definition take the question out of the realm of "a matter of law"?  And, if this is the case, then what the court is implying is that when applying the proximate cause analysis to cases where the injury is death by suicide, the analysis should be the same as in all other cases, ie, to determine if the injury is a foreseeable consequence of the risk created by the conduct.

Thus, the way I am reading this, while reiterating its long held position on whether suicide is foreseeable, the court is actually abandoning it.

The case is Turcios v. DeBruler Company and you can read the opinion here.

Illinois Supreme Court considers whether to recognize a cause of action for wrongful death as a result of intentional infliction of emotional distress when the decedent commits suicide

About two weeks ago, the Illinois Supreme Court heard oral arguments in an interesting case that asks the court to recognize a cause of action for wrongful death when the death was caused by the decedent's suicide.  The case is called Turcios v DeBruler Company.

Illinois has decided that, in the context of a negligence claim, a suicide is unforeseeable, which means that it operates as a superseding cause that defeats the element of proximate cause.  This makes it almost impossible for a plaintiff to recover for wrongful death in a case involving suicide if the claim is based on negligence.  Turcios, however, was brought as an intentional tort claim based on intentional infliction of emotional distress.

Much of the oral argument is devoted to the question of whether "proximate cause" should be considered to be an element in an intentional tort claim.  If so, the defendant argues, there is no cause of action because it has already been decided that a suicide is a superseding cause that defeats the element of proximate cause.  If not, the plaintiff argues, all that matters is whether the intentional conduct is a cause in fact of the injury in which case the plaintiff can establish the prima facie case.

The plaintiff's position is consistent with the typical analysis in other jurisdictions.  In intentional torts cases, proximate cause is typically not an issue.  As Diamond, et al, state in Understanding Torts (4th ed.), p. 188:

"Proximate cause rarely becomes a factor in intentional torts cases, because those cases do not ordinarily test the limits of what should constitute legal responsibility.  Authority is sparse as to when, if ever, proximate cause will preclude liability for intentional torts. In light of the greater culpability inherent in intentional wrongdoing, courts appear, at the very least, ready to stretch to find liability."

And this is precisely what the plaintiff in Turcios is arguing: that because of the significant difference in terms of culpability between conduct that is negligent and conduct that is intentional, the notion of cause in intentional torts cases should not be limited by the analysis of proximate cause.

However, the plaintiff's argument is not necessarily consistent with the language used by the Illinois Supreme Court in the past.  While in many states courts say that a plaintiff in an intentional tort case must show simply "causation," (and usually appear to interpret this to mean only cause in fact), the Illinois Supreme Court has stated the plaintiff must show "proximate cause" usually then adding that proximate cause means cause in fact and legal cause.

You can listen to the oral argument here.  (Note it is very unusual in that the justices do not ask a single question during the appellant's argument!)

UPDATE:  5/16/15 The Appellate Strategist has a a comment on the case here.

UPDATE: 5/21/15:  The Illinois Supreme Court issued its opinion on the case today.  Go here to read my comment on the opinion and for a link to the opinion itself.

Tennessee Appeals Court holds that the state's cap on non economic damages is unconstitutional

A couple of weeks ago, a Tennessee circuit court judge ruled that the state's cap on non-economic damages is unconstitutional, likely triggering review by the Tennessee Supreme Court. Go here for more on the story (including a video).  Interestingly, the cap in Tennessee is relatively high in comparison to that of many other states.

Podcast on Georgia case regarding parents liability for negligence in handling child's use of social media

A few days ago, I reported on a recent case in which the Georgia Appellate Court held that parents could be held liable for failing to supervise their children use of social media, or perhaps more importantly, for failing to act to remedy the consequences of the use of social media.  The case is interesting in its own right, but it was made more interesting because it was quickly misinterpreted, as I explained in my previous post.

The case also generated some attention because it was reported that it was the first case in which a court imposed a duty on parents to supervise a child's computer use.  Today, Bloomberg Law posted a podcast on the case that you can listen to here.  Among other things, one of the panelists explains how the case is not really creating new law as much as applying old principles to a new type of scenario.

60 minutes segment on genetic testing

Last night the TV show 60 minutes had a segment on issues related to genetic testing.  It did not discuss torts, but it did touch a little bit on some of the bio-ethics issues I mentioned in my comments on the sperm donor case.  If you can't see the video below, you can go to here to watch it, to watch other videos or to read a transcript of the show.

UPDATE:  I tried embedding the video several times and it is not working properly, but if you click on the little square icon on the lower right hand side, the video will switch to full screen and you can see it there, or, like I said, you can go to the 60 minutes website.  Sorry about that!  Also, the video includes at least one commercial.  If I could edit it out, I would but I can't.. so sorry about that too...

Wall Street Journal mistakenly reports that Georgia Court held parents can be liable for conduct of their children

Last week, the Wall Street Journal law blog published a story titled "Parents May Be Liable for What Their Kids Post on Facebook, Court Rules" in which it stated "Parents can be held liable for what their kids post on Facebook, a Georgia appellate court ruled in a decision that lawyers said marked a legal precedent on the issue of parental responsibility over their children’s online activity."  The story was then picked up and repeated by Smithsonian, and The Legal Satyricon (which criticizes the decision as incorrect because it failed to consider a certain federal statute).

The case is interesting but the problem is that the headline of the reported story is wrong.  The court did not hold that parents can be held liable for their children's conduct; the court held the parents can only be held liable for their own conduct.  That is a big difference.

As the court explains in its opinion, "liability for the tort of a minor child is not imputed to the child’s parents merely on the basis of the parent-child relationship." In other words, there is no vicarious liability for the tort of a minor. However, as the court continues, "[p]arents may be held directly liable . . . for their own negligence in failing to supervise or control their child with regard to conduct which poses an unreasonable risk of harming others," a duty which extends to those plaintiffs whose harm is foreseeable.

In the case, called Boston v. Athearn which is available here. a boy (Dustin, age 13) and a girl agreed to have some fun at the plaintiff's expense.  Using some information obtained by the girl, Dustin created a fake Facebook page in the plaintiff's name where they posted racist, sexually graphic, offensive and false information including posts that suggested the plaintiff was a homosexual and a racist, that she took illegal drugs and that she was on medication for mental health disorders.

About six days after the Facebook page was created, the principal of the school had determined who had done it and imposed discipline.  As a result, the culprit's parents were informed in detail of the children's conduct.  Dustin's parents claimed they disciplined him, but made no effort to access the Facebook page or to delete it.  The page remained available for almost a year.

In response to a motion for summary judgment filed by Dustin's parents, the plaintiffs argued that there were questions of material fact regarding whether the defendants were negligent in failing to compel Dustin to remove the Facebook page once they were notified of its existence and the court agreed.

Again, let's reiterate that the issue here is not whether a parent should be held liable for the conduct of a child.  The issue is whether the court should impose liability for the parent's own conduct.  More to the point, whether the court should impose a duty on the parents to do something more than what they did.

Because this is not a case where the court is trying to impose a particular parenting style nor passing value judgment on parental decisions on how to raise a child, the case is simple.  The parents have a duty to act like a reasonable prudent person under the circumstances and, given the facts, reasonable people can disagree as to whether they did.  I am not even sure we need more facts to decide the question.   Let it go to the jury and let them decide.