Monday, March 29, 2010
Thoughts on the concept of foreseeablity
Go here for a short comment by David Owen, (Professor of Law at University of South Carolina School of Law) on the concept of foreseeability.
Expert witnesses in the tobacco litigation
Here is a link to a very interesting article in The Nation magazine about the use of experts in the "big tobacco litigation" cases.
Simmons v Homatas and the possible liability of one who encourages another to drink and drive
I finally had a chance to read the Illinois Supreme Court’s decision in Simmons v Homatas, a case I have been following since I read the appeals court decision over a year ago. (go here, here and here).
In this case, two individuals (John H. and John C.) went to an establishment that does not have a liquor license but that encourages its patrons not only to bring their own liquor, but to consume it in large quantities. To make a long story a bit shorter, the two individuals drove to the place and proceeded to drink heavily. When one of them got sick in the bathroom, employees of the establishment escorted them out, got their car (which they had parked for them in the first place), put them in the car and told them to leave. John H. was driving. A few miles down the road, he left his lane and collided head-on with another car killing that car's driver (an 8 1/2 month pregnant woman) and his passenger, John C.
The defendant argued that the plaintiffs did not have the right to a cause of action because Illinois does not recognize social host liability and, since it was not authorized to sell alcohol, it could not be held liable under the Illinois Dramshop Act either. Based on this argument, the issue for the court was essentially whether a business with no dramshop liability could be found liable for the injuries caused by a patron that the business encouraged to consume alcohol.
Given that the answer to that question would probably have to be NO unless the Court created a new view of the doctrine regarding the possible liability of someone who provides alcohol under circumstances where the Dramshop Act does not apply, the Supreme Court approached the case from a different perspective. In the process, however, it may have opened the door to stronger attacks on the doctrine that protects social hosts from liability.
The Court first reaffirmed its position that Illinois does not recognize a cause of action against a person who provides or sells alcohol to another who later harms a third party while intoxicated unless the claim is recognized under the Dramshop Act. For this reason, the defendant was correct in arguing it should not be liable for its conduct of providing alcohol to the driver. The defendant was not subject to dramshop liability because it was not a licensed seller of alcohol and it was not subject to social host liability because Illinois does not recognize that basis of liability.
If the Court was going to recognize a cause of action in this case, thus, it had to find a different way to justify it. And it did so by approaching the facts of the case from a different perspective. It held that the relevant conduct upon which the claim was based was not providing alcohol but encouraging or assisting another in tortious conduct. In fact, for this approach, the conduct of providing alcohol is irrelevant. It is the conduct of getting the car for the driver, placing the driver in the car and encouraging him to drive away that matters.
The defendant, however, had a good argument against this view too. It cited a number of cases that hold that helping someone get into his or her car and “allowing” him or her to drive away intoxicated is not enough to impose liability. In response, the Court distinguished those cases suggesting a distinction between cases where the defendant “allows” an intoxicated person to drive – in which case there is no liability - and cases where the defendant “assists” an intoxicated person – in which case there could be liability.
To support this distinction, the Court cites section 876 of the Restatement (Second) of Torts which requires that the defendant give “substantial assistance or encouragement” in committing the tort. But the Court holds that merely failing to prevent another’s tortious conduct is not enough to show “substantial assistance or encouragement.”
The Court then concludes that the allegations that the defendant directed the driver to leave the club, brought his car to him, opened the door for him and directed him to leave were enough to support a claim. I think there are serious problems with the Court’s decision in this case.
First of all, the conclusion that the case is distinguishable from the other cases discussed in the opinion is simply not persuasive. The conduct involved in this case is not any different than that of the defendants in the other cases in which the Court had failed to impose liability. (Interestingly, the Court does not mention the fact that part of the defendant's business operation depended on encouraging heavy drinking. I think this would have helped the Court's position, but it chose not to take it into account.)
Second, given the similarities in the facts of these cases, the distinction between “allowing someone to drive drunk” and “assisting someone to drive drunk” is tenuous at best. Is there really that much of a difference between helping an intoxicated person drive by taking him to his car and letting him get behind the wheel and bringing the car to him and telling him to get in it?
Finally, and most importantly, these deficiencies open the door to claims against a social host. Although the Court was clear that “social host liability” is not recognized, it was also clear that this refers only to the conduct related to providing alcohol. Assume a social host (a private person hosting a party in his home) notices a friend is drunk and disruptive and asks him to leave. Instead of arranging for transportation, the host helps the friend out to his car and encourages him to go home. Wouldn’t that satisfy the requirements set out by the court in Simmons?
I think Justice Freeman would agree with me. In a separate opinion, he essentially argued that the Court needed to clarify the distinction between “allowing” and “substantially assisting or encouraging” tortious conduct. He argued that the Court should have found that there can be liability for "assisting" but that the allegations in this case were insufficient to support it. I think the Court here felt it would be unjust to find that the plaintiff had no remedy and simply tried to find a way to justify recognizing some kind of liability. Unfortunately, in doing it, it actually may have weakened the doctrine that protects social hosts from liability.
In this case, two individuals (John H. and John C.) went to an establishment that does not have a liquor license but that encourages its patrons not only to bring their own liquor, but to consume it in large quantities. To make a long story a bit shorter, the two individuals drove to the place and proceeded to drink heavily. When one of them got sick in the bathroom, employees of the establishment escorted them out, got their car (which they had parked for them in the first place), put them in the car and told them to leave. John H. was driving. A few miles down the road, he left his lane and collided head-on with another car killing that car's driver (an 8 1/2 month pregnant woman) and his passenger, John C.
The defendant argued that the plaintiffs did not have the right to a cause of action because Illinois does not recognize social host liability and, since it was not authorized to sell alcohol, it could not be held liable under the Illinois Dramshop Act either. Based on this argument, the issue for the court was essentially whether a business with no dramshop liability could be found liable for the injuries caused by a patron that the business encouraged to consume alcohol.
Given that the answer to that question would probably have to be NO unless the Court created a new view of the doctrine regarding the possible liability of someone who provides alcohol under circumstances where the Dramshop Act does not apply, the Supreme Court approached the case from a different perspective. In the process, however, it may have opened the door to stronger attacks on the doctrine that protects social hosts from liability.
The Court first reaffirmed its position that Illinois does not recognize a cause of action against a person who provides or sells alcohol to another who later harms a third party while intoxicated unless the claim is recognized under the Dramshop Act. For this reason, the defendant was correct in arguing it should not be liable for its conduct of providing alcohol to the driver. The defendant was not subject to dramshop liability because it was not a licensed seller of alcohol and it was not subject to social host liability because Illinois does not recognize that basis of liability.
If the Court was going to recognize a cause of action in this case, thus, it had to find a different way to justify it. And it did so by approaching the facts of the case from a different perspective. It held that the relevant conduct upon which the claim was based was not providing alcohol but encouraging or assisting another in tortious conduct. In fact, for this approach, the conduct of providing alcohol is irrelevant. It is the conduct of getting the car for the driver, placing the driver in the car and encouraging him to drive away that matters.
The defendant, however, had a good argument against this view too. It cited a number of cases that hold that helping someone get into his or her car and “allowing” him or her to drive away intoxicated is not enough to impose liability. In response, the Court distinguished those cases suggesting a distinction between cases where the defendant “allows” an intoxicated person to drive – in which case there is no liability - and cases where the defendant “assists” an intoxicated person – in which case there could be liability.
To support this distinction, the Court cites section 876 of the Restatement (Second) of Torts which requires that the defendant give “substantial assistance or encouragement” in committing the tort. But the Court holds that merely failing to prevent another’s tortious conduct is not enough to show “substantial assistance or encouragement.”
The Court then concludes that the allegations that the defendant directed the driver to leave the club, brought his car to him, opened the door for him and directed him to leave were enough to support a claim. I think there are serious problems with the Court’s decision in this case.
First of all, the conclusion that the case is distinguishable from the other cases discussed in the opinion is simply not persuasive. The conduct involved in this case is not any different than that of the defendants in the other cases in which the Court had failed to impose liability. (Interestingly, the Court does not mention the fact that part of the defendant's business operation depended on encouraging heavy drinking. I think this would have helped the Court's position, but it chose not to take it into account.)
Second, given the similarities in the facts of these cases, the distinction between “allowing someone to drive drunk” and “assisting someone to drive drunk” is tenuous at best. Is there really that much of a difference between helping an intoxicated person drive by taking him to his car and letting him get behind the wheel and bringing the car to him and telling him to get in it?
Finally, and most importantly, these deficiencies open the door to claims against a social host. Although the Court was clear that “social host liability” is not recognized, it was also clear that this refers only to the conduct related to providing alcohol. Assume a social host (a private person hosting a party in his home) notices a friend is drunk and disruptive and asks him to leave. Instead of arranging for transportation, the host helps the friend out to his car and encourages him to go home. Wouldn’t that satisfy the requirements set out by the court in Simmons?
I think Justice Freeman would agree with me. In a separate opinion, he essentially argued that the Court needed to clarify the distinction between “allowing” and “substantially assisting or encouraging” tortious conduct. He argued that the Court should have found that there can be liability for "assisting" but that the allegations in this case were insufficient to support it. I think the Court here felt it would be unjust to find that the plaintiff had no remedy and simply tried to find a way to justify recognizing some kind of liability. Unfortunately, in doing it, it actually may have weakened the doctrine that protects social hosts from liability.
Sunday, March 28, 2010
Damages for inconvenience? Why not?
About two weeks ago, the Illinois Court of Appeals decided a case that makes me question the concept of damages. The case, Mayer v Chicago Mechanical Services (available here), involved a lawsuit filed by a plaintiffs who were forced to leave their home because it was rendered uninhabitable due to the alleged negligence of the defendant which caused the home to be contaminated with mold. The plaintiffs were forced to live elsewhere for an extended period of time.
The plaintiffs argued that they were entitled to compensation for the discomfort and inconvenience of being forced to leave their homes to escape the dangerous condition caused by the defendant’s negligence. The defendant argued that damages for inconvenience and discomfort are not recoverable as a matter of law. The lower court agreed with the defendant and dismissed the complaint.
On appeal, the Court of Appeals held that, at least in cases where there is evidence of some interference with or deprivation of a possessory interest in the property in question as a condition precedent to obtaining damages for any resulting inconvenience, a claim for discomfort or annoyance is a "distinct grounds of compensation for which in ordinary cases the person in possession is allowed to recover in addition to the harm to his proprietary interests." (citing the Restatement (second) of Torts).
Thus, the court concluded that, as a general proposition, it could not conclude that the type of injuries claimed by the plaintiffs were not recoverable as a matter of law. In short, the inconvenience of being forced to live out of one’s home is an injury, the value of which can be recoverable.
Having said that, however, the court then surprisingly affirmed the lower court, finding that “plaintiffs have largely ignored the practical effects of being displaced from their homes, instead focusing principally on the abstract sense of satisfaction associated with one's home” and concluding that the plaintiffs’ claims were “vague and subjective” because they (the plaintiffs) “felt a sense of homelessness, and they did not like living out of a suitcase and having their normal living patterns disrupted.”
As explained by the court: “[b]y virtue of this reasoning, one could seek recompense for displacement without regard to his or her actual living conditions. We cannot subscribe to such a sweeping view. The type of harm for which plaintiffs seek recovery is simply too nebulous to serve as a basis for an award of damages.”
What the court is saying here is that the plaintiffs, who have been displaced from their homes because of the defendant’s negligence, can only recover for the inconvenience of having lost their home for a period of time if they can show that the alternative living conditions were bad. So if the plaintiffs decided to wait out the problem while staying in a luxurious resort, they can’t recover.
I do not like this result. I think that no matter where you are forced to live there is a “loss” in having to deal with the inconvenience of being forced out of a home. Maybe you could say that the value of the loss is lower if the alternative living conditions are luxirious, but I don’t agree that we should say there is no injury at all.
To me, this case raises a question as to the nature of the concepts of "injury," "damages" and "remedy." Often, we define a tort as "a wrong for which the law recognizes a remedy." And we say that the "remedy" is expressed in terms of "compensation for the damages suffered" or, in short, as "damages." Yet, we all know that the law does not recognize recovery for all damages, so one important aspect of tort law theory is to develop a way to figure out for which types of damages should a remedy be available.
Sometimes the answer to this question depends on the type of damages we are talking about. The history of the development of causes of action for negligent infliction of emotional distress provides a good example of this. Sometimes the answer depends on the public policy concerns related to the conduct involved. The issue of whether we should recognize a cause of action for injuries that result of a social host's provision of alcohol to someone who will drive is an example of this.
I am not sure, though, that the court in this case did an adequate job of placing the case in either category. It seems to me we should decide whether the inconvenience of being forced out of one's home is an "injury"; whether it represents a loss that has value. If so, we should allow the jury to determine what that value is.
In this case the court decided that inconvenience is a compensable injury, but then it said the plaintiffs did not have a right to recover for it. Why not? If it is an injury and they can prove they suffered it, why not let the jury decide what the value of the injury is?
Friday, March 26, 2010
Judge rejects proposed settlement in 9/11 lawsuit
A week ago the federal judge overseeing the lawsuits filed by more than 10,000 Ground Zero workers seeking compensation for health problems triggered by their exposure to ash and dust spewed into the air after the 9/11 terror attacks rejected a proposed settlement to end the case. Here is the story from Law.com. The judge complained the settlement paid too little to victims and that its terms were confusing, making it difficult for some 10,000 individual plaintiffs to make a decision on whether to accept or reject payments. Here is an update.
Reaction to story about Avandia studies
A few days ago, I provided some links to a story that revealed that many of the academic reports on Avandia had been prepared by people with ties to its manufacturer. As you would expect, that story has generated some reaction from many different sources.
AboutLawsuits.com states that "[i]n a blistering editorial, writers for the Journal of the American Medical Association (JAMA), lambasted GlaxoSmithKline’s activities in research over potential side effects of Avandia, which some say are responsible for tens of thousands of heart attacks and deaths. The authors are calling for new, stringent, medical and scientific journal reforms that would ensure integrity and minimize the ability of corporations to obfuscate scientific data." For that full story go here.
The JAMA editorial is available here.
In a similar story, Pharmalot is reporting that "[i]n a stern editorial, the editors of the Journal of the American Medical Association write that industry-sponsored research should be analyzed by researchers without ties to the drugmaker that is developing the medicine being studied." To read that story go here.
Finally, a similar story- with more links - can be found in the Drug Recall Lawyer Blog.
Damages caused by water pollution in California?
As published in Pharmalot....
"To what extent did a Merck subsidiary pollute groundwater and soil in Beachwood, Ca.? Why was potentially damaging language about a clean-up plan written by a Merck consultant not included in a final draft sent to local authorities? And were residents actually harmed? These questions lie at the heart of a federal lawsuit that alleges Merck’s Baltimore Aircoil unit polluted a neighborhood for years with Chromium 6, a carcinogen linked to cancer and birth defects, causing sickness and death (this is the same pollutant that Erin Brockovich made famous)." To continue reading this story go here.
This Week's Top Stories
Common knowledge?
In class we discuss how a plaintiff can use the notion of "common knowledge" in support of an argument of duty and breach of duty. Is it common knowledge that it is dangerous to use aerosol sprays over fire? Watch this video and note how the dad's hair catches fire for a split second at the end. Do NOT try this at home; it is not funny. It's dangerous.
Thursday, March 25, 2010
Posner on Tort Reform
While doing some research I saw this old (2005) short op-ed by Judge Posner on tort reform in which he concludes that "there is no compelling case for federal limitations on malpractice liability."
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