The Volokh Conspiracy

The National Football League has been the most successful professional sports league in the US over the last several decades. But economists Tyler Cowen and Kevin Grier argue that tort suits over concussion injuries might lead to its downfall:

Before you say that football is far too big to ever disappear, consider the history: If you look at the stocks in the Fortune 500 from 1983, for example, 40 percent of those companies no longer exist…. Sports are not immune to these pressures. In the first half of the 20th century, the three big sports were baseball, boxing, and horse racing, and today only one of those is still a marquee attraction.

The most plausible route to the death of football starts with liability suits. Precollegiate football is already sustaining 90,000 or more concussions each year. If ex-players start winning judgments, insurance companies might cease to insure colleges and high schools against football-related lawsuits. Coaches, team physicians, and referees would become increasingly nervous about their financial exposure in our litigious society. If you are coaching a high school football team, or refereeing a game as a volunteer, it is sobering to think that you could be hit with a $2 million lawsuit at any point in time. A lot of people will see it as easier to just stay away…. The end result is that the NFL’s feeder system would dry up and advertisers and networks would shy away from associating with the league, owing to adverse publicity and some chance of being named as co-defendants in future lawsuits.

This is a plausible scenario for the demise of professional football. But Cowen and Grier ignore an important countervailing factor: If tort lawsuits start to pose a serious threat to college and professional football, the NFL and other powerful interests that benefit from the sport won’t take it lying down. They will use their considerable lobbying clout to push for changes in tort law. Majority public opinion could well be on their side. Football is an extremely popular support, and many people might reason that the threat of concussion is just one of the risks that players voluntarily take on when they choose to participate in the sport.

Over the last twenty years, many states have enacted strong tort reform laws in order to curb dubious lawsuits that threaten the business climate in their jurisdictions. The reformed states include even the once-notorious “tort hellhole” of Alabama. If tort lawsuits start threatening the NFL, big-time college football, or even high school football in states like Texas, we might well see a new round of reform laws.

It’s possible, of course, that concussion injuries could lead to such a wave of public outrage that the NFL and Division I college football programs will be unable to resist the tide. But I am skeptical. Most fans already know that football is a dangerous sport, and that doesn’t seem to bother most of them much.

But I’m happy to say that today’s Ryan v. Hughes-Ortiz (Mass. App. Ct. Jan. 6, 2012) throws out the lawsuit:

In November, 2001, [Charles] Milot was released on probation from the Billerica house of correction after an incarceration of about eighteen months. [Thomas] Hughes testified in his deposition that he helped Milot to get reestablished by loaning him a small amount of money and giving him odd jobs to do around his house. [During the pendency of this action, Hughes died, and his daughter, Hughes-Ortiz, was substituted as a party defendant.] Hughes knew Milot through Milot’s sister, Deborah McConologue, and her husband, whom Hughes had known for twenty years. Hughes was aware of Milot’s history of substance abuse, prior depression, and the loss of Milot’s driver’s license.

In his deposition, Hughes testified that he owned several firearms that he stored in a chest in a second-floor bedroom. The bedroom was kept locked and had been outfitted with barred windows. Hughes testified that he kept the keys to this bedroom in a vase on top of the fireplace.

One of the firearms that Hughes owned was a Glock pistol. Hughes purchased the Glock pistol and its storage container in 2000 from the widow of a former Boston police officer. Hughes testified in his deposition that he stored the unloaded pistol as well as its magazine in its storage container in a chest drawer in the same bedroom where his other guns were stored….

In her deposition testimony, McConologue reported that, at a family event held on February 23, 2002, Milot showed her two handguns and two loose cartridges … [and] told her that he got them from Hughes’s house. She further testified that Milot told her that he found the key in Hughes’s house for the locked bedroom door, unlocked the door, and found the guns, ultimately taking them from Hughes’s home. McConologue testified that she advised her brother to call Hughes and return the pistols to him, that Milot did not want to tell Hughes that he had taken the guns, but that Milot agreed to put them back the way he had found them.

On February 25, 2002, Hughes picked up Milot around 7:00 A.M. and brought Milot to his house. Once they were at Hughes’s house, Hughes showed Milot the front doorbell that he wanted Milot to repair. Hughes then left his house to run some errands, returning to check on Milot’s progress about two hours later. When Hughes returned home, he found Milot’s body covered with blood in the front doorway of his home. The police and an ambulance were called and upon their arrival, Milot was pronounced dead. An autopsy was performed, and it was determined that Milot had suffered a gunshot wound to his left thigh which severed the femoral artery and caused Milot to bleed to death…. Police speculated that “[a]pparently the victim was attempting to put the gun back in the container when the round was fired, striking the victim in the upper left leg…. The victim apparently walked out of the bedroom, down the front stairs, into the living room, used the telephone and walked to the front door where he collapsed and died.” …

Continue reading ‘Felon Steals Gun, Accidentally Kills Himself, Estate Sues Owner and Gun Manufacturer’ »

So holds the Sixth Circuit in Geeslin v. Bryant (6th Cir. Dec. 22, 2011), reversing the trial court. An excerpt:

Geeslin and a friend attended a professional basketball game at the FedEx Forum in Memphis, Tennessee on November 14, 2005…. While Geeslin and his friend were seated in their courtside seats, a Lakers player recovered a ball at the Grizzlies’ end of the floor. That player attempted a pass to Bryant. In attempting to get control of the ball, Bryant came into contact with a Grizzlies player and careened out of bounds, into or onto the plaintiff. Geeslin spilled his beer, and was pushed backwards in the folding chair.

Geeslin alleges that Bryant, in getting himself up and back into the game, pushed his forearm into Geeslin’s chest in an unnecessary and forceful manner, causing him injury. Geeslin also alleges that Bryant “glared” at him as he moved away and did not apologize. In asserting that Bryant used more force than necessary, Geeslin suggests that Bryant may have been frustrated by the Lakers’ losing score and the referee’s refusal to call a foul on the player allegedly responsible for Bryant’s fall.

After the contact between Geeslin and Bryant, Geeslin and his friend returned to the skybox for a period of time and then went home. Two days later, Geeslin sought medical attention for pain in his chest. He was diagnosed with a bruised lung cavity, and received ibuprofen, another medicine, and a breathing machine. Geeslin’s physical symptoms dissipated after two weeks, but he alleges he also suffered from continued anxiety stemming from the incident, for which he received prescriptions for Xanax and Ambien from his primary care physician….

[UPDATE: Paragraph added.] The Amended Complaint, filed after Geeslin’s death, alleges claims of assault, battery, and intentional infliction of emotional distress, asserting that the incident between Geeslin and Bryant “contributed as a proximate cause to [Geeslin’s] death on June 17, 2008. [Footnote: Bill Geeslin died in June 2008. His mother and personal representative Betty Geeslin filed a notice of suggestion of death and was substituted for plaintiff in November 2009.] …

There is no dispute about the fact that Bryant’s initial contact with Geeslin was involuntary. Geeslin’s claim is that as Bryant got up, he, “without provocation, violently struck Mr. Geeslin with [his] elbow, causing the injuries and damages.” Geeslin’s support for this claim is his deposition testimony that (a) it was “obvious” that Bryant intended to harm him, and (b) as Bryant left the scene of contact, he “kind of pushed his arm towards me and glared at me and walked away.” Geeslin has presented no evidence distinguishing injury caused by his initial contact with Bryant from any injury caused by what Geeslin has described as Bryant’s “intentional forearm” following the initial collision. However, as outlined above, Geeslin presented his description of the events, including offensive contact by Bryant which he claims caused him injury. Bryant, on the other hand, offered neither deposition testimony nor an affidavit in opposition to the motion.

Although the district court found that Geeslin had “assumed the risk or consented to the entire contact between he and the Defendant,” by virtue of taking the courtside seat, we find that analysis applies only to the initial contact between Geeslin and Bryant and not the secondary, offensive contact described by Geeslin. In viewing the evidence in the light most favorable to Geeslin, as we must, we find that a material question of fact remains on his assault and battery claims. For this reason, the district court’s entry of summary judgment for Bryant on these claims was improper.

Based on the factual allegations as the court describes them, the result seems correct. Thanks to Robert Markle for the pointer.

From Duncan v. Klein (Ga. App. Nov. 29, 2011) (some paragraph breaks added), though note that the court’s main rationale is lack of proximate cause, rather than the statement I quoted in the post title:

These appeals arise from a legal malpractice case in which Jeffrey W. Duncan claims that lawyer Daniel M. Klein gave him erroneous advice about whether he could sue his employer for violations of federal employment discrimination laws. Klein allegedly told Duncan that such a lawsuit would not succeed, and believing as a result that he had no recourse against his employer, Duncan later resigned his employment. Duncan then enrolled in law school, where he learned that Klein might have given him bad advice, and he filed a lawsuit against his former employer, which he later settled. Notwithstanding that he eventually sued his former employer, and notwithstanding that he evidently got something out of that lawsuit, Duncan recovered less from his former employer, he says, than he would have recovered if Klein had advised him correctly and he had sued his employer more quickly.

Moreover, Duncan contends that his decision to resign his employment was based on the advice he received from Klein, and as a result of his resignation, he had to enroll in law school, which caused him to incur substantial costs and to suffer an extended separation from his family….

Negligence is the proximate cause of an injury only when the injury is “the natural and probable consequence of the negligence, such a consequence as under the surrounding circumstances of the case might and ought to have been foreseen by the wrongdoer as likely to flow from his act.” “The injury must be the direct result of the misconduct charged; but it will not be considered too remote if, according to the usual experience of mankind, the result ought to have been apprehended.” The limitations of proximate cause reflect “a policy decision that, for various reasons including the intervening act of a third person, the defendant’s conduct is too remote from the injury to attach liability….” …

[A]fter Duncan allegedly received bad advice from Klein, he made a decision to resign from NGK and go to law school. After he was admitted to the New England School of Law, Duncan refinanced his house, borrowing $100,000 on his house to pay bills and take care of his family while he attended law school, and he borrowed an additional $160,000 to pay the costs of law school. Regarding his alleged emotional damages, Duncan explains that he had to leave his family in Georgia to attend law school in Massachusetts, and he notes the difficulties that the separation caused his marriage and the pain of separation from his daughter.

It could be argued that, but for the alleged malpractice, Duncan would not have resigned his job with NGK, decided to enroll in law school, incurred debts to support his family and pay for law school, or suffered a separation from his family while he pursued his studies in New England. Nevertheless, it is highly questionable whether attending law school is a legally cognizable injury, notwithstanding that the rigors of law school are well known and undoubtedly unpleasant to some extent.

But in any event, we can discern nothing in the record to suggest that Klein and the firm should have foreseen that, as a result of giving bad advice to Duncan about the merits of his claims against NGK, Duncan would elect to enroll in a law school in a faraway place, leave his family behind, and refinance his home to cover the costs of law school and the expenses of his family in the meantime. The alleged malpractice might well be a cause of Duncan leaving his job with NGK, but it is not the proximate cause of his free choice to remake his life and enter into the practice of law. The “intervening decisions by [Duncan] render [the alleged] negligence [of Klein and the firm] too remote to satisfy the proximate cause requirement for a legal malpractice claim.”

Edwards v. Gruver (Ky. Ct. App. Oct. 14, 2011) (2-1 vote) involves an especially vile group — a KKK organization. But the principle potentially extends considerably more broadly, to justify imposing massive liability on a wide range of political groups whose ideologies in some situations encourage violence, and whose members indeed act violently while advocating on behalf of the group: potentially, extremist animal rights groups, extremist anti-abortion groups, extremist anti-capitalist or anarchist groups, perhaps unions that engage in harsh rhetoric against employers or supposed “scabs” (though maybe such claims against unions would be preempted by federal labor law), and so on.

Here are the facts in a nutshell: Ronald Edwards founded the Imperial Klans of America, and urged members to go out to recruit prospective new members. Four such members — Jarred Hensley, Andrew Watkins, Joshua Cowles, and Matthew Roberts — went to a fair to recruit, and there met and badly beat up Jordan Gruver, because he was part Hispanic. Gruver sued the attackers for assault, but also sued Edwards for “negligent selection” and “negligent supervision” of the four recruiters. The jury “returned a verdict in favor of Gruver in excess of $2.5 million. Of that amount, over $1.5 million was in compensatory damages against Hensley and Edwards, with Edwards’ being found responsible for twenty percent of the amount, and $1 million in punitive damages for which Edwards was found solely responsible.” UPDATE: Edwards was apparently not found to have intentionally orchestrated the attack, or conspired in the attack — the jury just concluded that his negligence in selecting and supervisors his recruiters contributed to the attack.

Negligent selection, which is the non-employment equivalent of negligent hiring, and negligent supervision are both special cases of negligence law; the theory is that when A works or volunteers for organization or individual D and injures P, and D had reason to think A might act this way but failed to take reasonable steps to prevent this (by not using A or by properly monitoring him), D was acting negligently and P could sue D for that negligence. This often arises, for instance, when an employer hires someone with a criminal record (e.g., for burglary or sexual assault) to go into customers’ homes (e.g., to clean them, to do door-to-door sales, and so on), and the employee then commits a crime against the customer; the claim is that the employer acted unreasonably in hiring the person, given that person’s criminal history.

This is not the “respondeat superior” theory under which an employer is strictly liable for the tortious actions of its employees acting within their scope of employment. Rather, it’s based on negligence (not strict liability) but extends even to actions outside the scope of employment, for instance because the actions are motivated by the employee’s own greed, lust, or anger and not by a desire to serve the employer.

The (to my knowledge) novel factor in this case is that the defendant is a political group leader held liable for the actions of his activists, and the group’s politics served as an important aspect of the plaintiff’s claim. (The facts also contained evidence that defendant had specifically solicited identified acts of violence in other contexts, and didn’t just preach the propriety of violence in the abstract; but as a legal matter, such facts wouldn’t generally be required for negligent hiring/selection/supervision cases, as the block quote below suggests.) So it seems to me likely, but not certain, that the theory could likewise apply to other groups whose activists, especially ones who have criminal records, commit crimes — whether violent crimes or property crimes — and whose ideologies can be seen as egging people on to violence. Perhaps this is legally sound and perhaps it isn’t, but in this post I just wanted to flag the issue so that others can follow it. Here is an extended excerpt of the case:

Continue reading ‘Pro-Violence Political Groups’ “Negligent Selection” Liability for Criminal Actions by Members Engaged in Group Activities’ »

Here’s a practice problem I distributed to my Torts students; we’ll discuss it at a review session tomorrow.

Intentional Torts Problem

Alexander Pushkin learns that George D’Anthès, who is Pushkin’s next-door neighbor — and husband of Pushkin’s wife’s sister, Catherine Goncharova — is having an affair with Pushkin’s wife, Natalia Goncharova. Pushkin considers fighting a duel with D’Anthès, but suspects that would end badly.

He therefore takes a more modern approach: He puts up a huge billboard at the boundary between their properties, containing the text “George D’Anthes seduced my wife,” and piles manure on the metal walkway at the bottom of the billboard, which of course creates an unpleasant smell. Anticipating the risk of litigation, he also adds a line on the bottom of the billboard saying, “To contribute to the Defense Against Don Juans Fund, go to http://www.ScienceOfTenderPassion.com.” That Web site says nothing about the incident, but lets visitors contribute money.

D’Anthes’s neighbors and business associates see the billboard, which is visible from the street as well as from D’Anthes’s property. As a result, many stop doing business with D’Anthes; in their small social circle, extramarital affairs are viewed as grave wrongs, and they feel it important not to interact with people who engage in such affairs, especially when those people are in a position to influence the upbringing of children. In particular, one neighbor, Eugene Onegin — appalled at D’Anthes’s misbehavior — fires D’Anthes from his job as fencing instructor to Onegin’s children, something Pushkin had hoped would happen.

Litigation ensues. Discuss all the tort claims that may be brought based on these facts, which is to say explain the arguments that can be made for and against liability. Assume the events happen in the state of Blackriver, and that the courts of Blackriver are open to borrowing legal rules from other states. If some important facts are not given, explain what facts you’d need to investigate, and what arguments could be made depending on those facts.

Words of wisdom from Pushkin, by way of translator James E. Falen:

We’ve all received an education
In something somehow, have we not?
So thank the Lord that in this nation
A little learning means a lot.

No, really. From Miner v. Garrity (the excerpt is long, because I wanted to include all the allegations quoted by the court); thanks to Dan Gifford for the pointer:

Adult children brought suit against mother, raising claims of intentional infliction of emotional distress and negligent infliction of emotional distress as a result of “bad mothering.” Dismissal of suit for failure to state a cause of action was affirmed, since plaintiffs failed to allege conduct that was so extreme and outrageous “as to go beyond all possible bounds of decency” under the standard articulated in Public Finance Corporation v. Davis, 66 Ill. 2d 85, 90 (1976), and the Restatement (Second) of Torts §46 (1965). This was the trial court’s characterization of the allegations in their complaint, and plaintiffs adopt that characterization in their appellate brief. The father’s name is Steven A. Miner. To avoid confusion, we shall refer to him simply as “the plaintiffs’ father” or “the father.” We note parenthetically that the father is one of the attorneys for the plaintiffs.

Twenty-one-year-old Steven A. Miner II and 18-year-old Kathryn Miner, the children of Kimberly A. Garrity, brought suit against Garrity for “bad mothering.” Both sought damages in excess of $50,000 for intentional infliction of emotional distress and negligent infliction of emotional distress, as well as punitive damages. The trial court dismissed their complaint … for failure to state a cause of action. Plaintiffs now appeal. For the reasons that follow, we affirm….

Plaintiffs’ complaint alleges that on November 17, 1995, when Steven was seven and Kathryn was four, Garrity and their biological father were divorced. The father was granted sole custody of Steven. The parents had joint legal custody over Kathryn, who resided at her father’s house and had visitation with her mother.

According to the complaint, ever since the divorce, Garrity has “engaged in a course of conduct which has caused both the intentional and negligent infliction of emotional distress to STEVEN and KATHRYN.” The complaint alleges that this conduct is fueled, in part, by Garrity’s desire to retaliate against her ex-husband, toward whom she harbors great animosity.

The complaint provides a lengthy list of the many ways in which Garrity allegedly inflicted emotional distress upon the plaintiffs, as follows:

* After the divorce, Garrity tried to obtain custody of Kathryn, arguing that the plaintiffs ought to be separated since Steven had been abused by a female adult and therefore might abuse Kathryn. (According to the complaint, this was ironic, since Garrity was the one who abused Steven in the first place. The complaint does not specify what kind of abuse Garrity allegedly committed.) Eventually, the parents agreed to the custody compromise described above.

* Garrity allegedly treated the siblings unequally in an attempt to “pit the siblings against each other.” From 1997 to 2007, Kathryn regularly visited Garrity, but Steven did not; Garrity would give clothes and toys to Kathryn during her visits, but she did not give anything to Steven. At other times, according to the complaint, Garrity would favor Steven over Kathryn. Although Kathryn asked Garrity to bring her to an auto show in 2006 and a car race in 1998, Garrity refused and instead brought Steven. When both siblings attended events with Garrity, Garrity would allegedly dote on Steven and ignore Kathryn’s requests. Garrity also allegedly favored Steven in financial matters. When Steven asked for college financial assistance, Garrity willingly contributed, but when Kathryn asked for the same, Garrity allegedly refused. Likewise, Garrity willingly contributed to Steven’s purchase of an all-terrain vehicle, but when Kathryn asked for money for homecoming, for disco dances in 2006 and 2007, and for her graduation dress in 2009, Garrity allegedly “engaged in bartering and haggling.”

* Under the terms of the divorce, Garrity is responsible for paying half of the plaintiffs’ medical expenses that are not covered by insurance. However, according to the complaint, Garrity does not trust the plaintiffs to accurately report their medical expenses but requires that they provide her with receipts.

* Garrity allegedly told Steven that she did not want to be “financially drained” by the plaintiffs.

* Garrity allegedly failed to send Christmas and birthday presents to Steven from 1996 to 2005 and failed to send presents to Kathryn in 2007. Moreover, according to the complaint, when she sends cards to them, she often “forgets that STEVEN and KATHRYN are children, failing to include any type of gift in the card.”

Continue reading ‘Adult Children Sue Mother, for Allegedly Having Been Really Mean’ »

The decision is Rosenberg v. Harwood (Utah Dist. Ct. May 27, 2001); it’s two months old, but I just saw it because it was just posted on Westlaw. Here’s an excerpt:

Plaintiff Lauren Rosenberg alleges that Defendant Google negligently provided her with walking directions that directed her to cross State Route 224 (SR 224), a rural highway with heavy traffic and no sidewalks, where she was seriously injured after being struck by an automobile that was negligently driven by Defendant Patrick Harwood. Google now brings this motion to dismiss Rosenberg’s claims against it, on the ground that the Complaint fails to state a cause of action against Google. For the reasons discussed below, I GRANT the motion to dismiss Rosenberg’s claims against Google….

In the negligence context, “[a] duty … may be defined as an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.” … To determine whether a duty exists, courts analyze several factors, including “the legal relationship between the parties, the foreseeability of injury, the likelihood of injury, public policy as to which party can best bear the loss occasioned by the injury, and other general policy considerations.” Normandeau v. Hanson Equipment, Inc., 2009 UT 44, ¶ 19, 215 P.3d 152. The determination that a “duty does or does not exist is an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is [or is not] entitled to protection.” …

[1.] With respect to the first Normandeau factor, I conclude that it does not require the imposition of a duty. As a preliminary matter, I note that nothing in the Complaint indicates that there was any contractual or fiduciary relationship between Google and Rosenberg that would give rise to any contractual or fiduciary duties on Google’s part. Likewise, the Complaint does not allege that Google “deprived [Rosenberg] of [her] normal opportunities for protection” or that the parties otherwise had a special relationship that would impose on Google a duty to protect Rosenberg from the negligence of a third party like Harwood….

In support of her claim that a duty exists, Rosenberg correctly states that service providers may be liable if they negligently provide services to their customers. However, “[a] relationship that is highly attenuated is less likely to be accompanied by a duty.” For example, where a publisher or other information provider publishes information to the general public, courts have regularly held that they owed no duty to the public at large….

Continue reading ‘Utah Trial Court Rejects “Negligent Directions” Claim Against Google’ »

Over on Cato@Liberty, Walter Olson joins the discussion on federalism and medical malpractice reform started by our own Randy Barnett and continued by Ilya Somin.

Olson makes the important point that federalism is not about keeping as much authority as possible in state hands, nor does a commitment to federalism require leaving state courts alone across-the-board. The federalism embodied in our Constitution’s structure expressly provides for federal primacy in certain spheres and authorizes federal supervision of state courts in certain circumstances. The question is rather whether a particular exercise of federal supervision — here, federal limits on state court medical malpractice judgments — is consistent with the federalist scheme. Olson writes:

Again and again, the Constitution contemplates federal supervision of state courts when they reach out to assert power over transactions and litigants outside their own boundaries. It has far less to say about intruding upon the authority of those courts over disputes that arose between their own residents and are unmistakably under their own law. That general game plan—oversee the interstate but mostly not the intrastate doings of state courts—comports well with the insight of public choice scholars who point out that states face an ongoing temptation to stack liability proceedings so as to enrich their own citizens at the expense of out-of-state litigants obliged to appear in their courts.

Where does this leave federal-level liability reform? It suggests a very real difference between areas like product liability and nationwide class actions—in which suits ordinarily cross state lines, and the majority of runaway verdicts are against out-of-state defendants—and more conventional kinds of tort litigation arising from car crashes, slip-and-falls, and medical misadventure, where cases are mostly filed against locally present defendants. As a rough rule of thumb, it’s worth presuming that most of the local suits do not externalize heavy costs across state lines and should accordingly be left alone by Congress unless it is itself vindicating some constitutional right or coordinating the functioning of some constitutionally authorized federal government activity.

Olson is anything but an opponent of tort reform generally. Indeed, he’s been one of the litigation explosion’s most prominent critics. But he recognizes that support of a particular policy goal does not require abandoning a principled commitment to the broader federalist scheme.

The Hill has an interesting article about co-blogger Randy Barnett’s constitutional critique of GOP efforts to impose federally mandated tort reform on the states [HT: Instapundit]:

Opponents of a House medical malpractice bill are trumpeting an attack on the legislation from a prominent conservative lawyer.

Georgetown University law professor Randy Barnett accused the GOP of practicing “fair-weather federalism” on the malpractice bill, which would preempt state laws that conflict with its cap on some jury awards.

Barnett represents the National Federation of Independent Business in its lawsuit challenging the healthcare law’s requirement that most people buy insurance. Opponents of the malpractice bill say those conservative bona fides lend credibility to his criticism.

“I think that’s huge,” said Susan Parnas Frederick of the National Conference of State Legislatures.

NCSL says restrictions on malpractice suits should be left to the states. The House bill would set a limit of $250,000 on noneconomic damages and preempt state laws that have established higher caps. Some state constitutions also block the type of changes the bill would make. They would also be overridden.

“State court is an area for state law, not federal law,” Frederick said.

Although the article mistakenly labels Randy as a “conservative” (he is in fact an even more consistent libertarian than I am), I’m happy to see that his critique is having an impact. Hopefully, at least some Republican conservatives will begin to see that you can’t advocate strict limits on federal power with one hand while trying to impose sweeping federal control over state tort law with the other.

In this post, I explained why federally mandated tort reform is, in most cases, both constitutionally dubious and unnecessary. The better way to restrict abusive tort suits is through interstate competition combined with constraints on states’ ability to regulate conduct outside their borders.

UPDATE: Tort reform advocate Ted Frank responds to this post here. He seems to agree that “the real problem” is that states have sometimes used tort law to regulate conduct outside their borders, but claims that this problem is politically impossible to fix, therefore requiring the federal government to restrict the substance of state tort law. But if it is politically feasible for Congress to restructure state tort law as a whole, surely it can find the political will to take the much less intrusive step of restricting states’ abilities to impose abusive tort law standards on conduct that occurred outside their borders. Similarly, if the problem is bias against out of state defendants, Congress could craft a remedy narrowly targeted at that issue. Indeed, the ability of defendants to “remove” such suits to federal court already constrains in-state bias by state courts.

Finally, it should be reiterated that it is not true that state tort law abuses will run amok indefinitely unless Congress intervenes. As I explained in this post, over the last two decades, numerous states have enacted tort reform laws curbing abusive lawsuits in large part because of the pressure of interstate competition. The reformed states include even such previously notorious tort “hellholes” as Alabama.

City of New York v. Mickalis Pawn Shop was recently decided by a unanimous 3-judge panel of 2d Circuit Judges Sack and Wesley, plus Judge Eaton (Court of International Trade) sitting by designation. The case began several years ago when New York City Michael Bloomberg brought a public nuisance lawsuit against several firearms stores located in the southeastern United States. Bloomberg alleged that the stores had violated federal gun laws by selling firearms to straw purchasers (lawful buyers who are acting as a front for a person who is prohibited from possessing firearms), and that as a result, some of the defendants’ guns had been used in crimes in New York City. The defendants argued that  Judge Weinstein, of the federal Eastern District of New York, had no jurisdiction. At various stages of the litigation, defendants dropped out, and a default judgment was entered against them. They appealed to the Second Circuit. The key issues decided by the panel were as follows:

Continue reading ‘Second Circuit reverses Judge Weinstein’s order against firearms stores. Concurrence harshly rebukes him.’ »

From Penny Pinchers v. Outlaw (Miss. Ct. App. 2011):

Cindy Scott was the manager of Penny Pinchers, a discount grocery store located in West Point, Mississippi. She was also the owner of a four-month-old daschund puppy named Sophie, which weighed four pounds and one ounce. Scott took Sophie to work with her every day. She set up a piece of peg board to keep Sophie contained in the area behind the checkout counter. Scott testified that this was to protect Sophie from the customers because Sophie was such a tiny dog.

On August 16, 2006, Outlaw entered Penny Pinchers. She said hello to Scott, who was having a conversation with Anita Reeves, an employee, and Ivy Mann, a customer. Outlaw testified that she started walking down an aisle when she heard a dog bark. Because she is terrified of dogs, she started running down the aisle toward the back of the store. She said that she could hear the claws of the dog hit the floor as the dog chased her down the aisle. When she turned to see how close the dog was, she ran into a freezer at the back of the store. She then tried to jump on top of the freezer to get away from the dog.

Outlaw testified that Scott picked up the dog and told Outlaw that the dog would not hurt her. When Outlaw saw how small the dog was, she began to laugh and tell Scott about her extreme fear of dogs. Outlaw then went on with her shopping….

Outlaw had extensive health problems before this incident. She had Perthes Disease as a child, a condition that caused severe hip problems. She also suffers from rheumatoid arthritis. She had a total replacement of the left hip in 1995. Because the prosthetic device used in the hip replacement only lasts between ten to fifteen years, Outlaw underwent a revision surgery in 2005. Again, that prosthetic device was estimated to last from ten to fifteen years; however, Outlaw had to have a second revision surgery in 2006 following her collision with the freezer at Penny Pinchers.

Outlaw filed suit against Penny Pinchers …. Outlaw alleged that Penny Pinchers negligently failed to (1) maintain the premises in a safe condition, (2) provide proper restraint of the dog, and (3) warn customers of the dog’s presence…. The jury found Penny Pinchers 70% liable and Outlaw 30% liable for Outlaw’s injuries. Outlaw was awarded $130,000….

Continue reading ‘The Four-Pound Dachshund, the Fearful Plaintiff, and the $130,000 Verdict (Reversed on Appeal)’ »

Cornell lawprof William Jacobson detects a potential contradiction in Republican politicians’ view on constitutional federalism [HT: Steve Bainbridge]. Many of them claim that the Obamacare individual mandate falls outside of Congress’ power, but simultaneously support federally mandated tort reform that would override state tort law:

If we are against the federal government forcing us to purchase health insurance, shouldn’t we also be against the federal government telling us which state common law remedies we can pursue and on what terms? Isn’t this a matter for the states? …

I think there are distinctions which could be drawn between the mandate and tort reform, since tort reform does not require that one purchase a product. Most people who are against the mandate would acknowledge that the federal government can regulate the health care system, but that the mandate is a step too far….

Tort reform needs a careful airing of the constitutional issues before any vote; but at this point I’d be inclined to leave it to the states. If you don’t like your state’s tort system, do the same thing you would do if you didn’t like its tax or other systems: Move.

Federally mandated tort reform is surely permissible under current Supreme Court precedent, which allows Congress to regulate virtually any “economic activity.” Certainly, tort litigation falls within that category as currently defined by the Court, which encompasses any activity involving the “production, distribution, and consumption of commodities.” By contrast, the individual mandate goes beyond this by regulating inactivity and forcing individual citizens to purchase products they don’t want. So if your only objection to the individual mandate is that it goes beyond what current Supreme Court precedent allows, you can still consistently believe that it is unconstitutional, while federal tort reform is not.

In my view, however, current precedent is badly misguided in allowing Congress to regulate virtually any “activity.” Therefore, I think most federally mandated tort reform is in fact unconstitutional, even if the Supreme Court would permit it to go forward.

Federal reform is also largely unnecessary to solve the problem of excessive tort awards. Interstate competition can be just as effective as federal mandates, often more so. If a state allows excessive tort suits, many businesses will refuse to operate there or charge higher prices. This in turn reduces state tax revenue, forcing state legislatures to curb their courts. Over the last 20 years, numerous states have enacted tort reforms that do just that. Even Alabama, notorious for being the nation’s worst tort “hellhole” in the 1980s and 90s, has to a large extent cleaned up its act. Alabama ultimately replaced its pro-plaintiff state supreme court justices with ones that took a dimmer view of tort litigation. State leaders worried that Alabama would lose business if they did not. In most cases, “voting with your feet” is an excellent solution to the problem of runaway state tort law.

For a more extensive discussion of the reasons why federal tort reform is both unconstitutional and largely unnecessary, see this 2004 paper by my colleague Michael Krauss and Bob Levy. As Krauss and Levy point out, federal controls may be needed to curb state efforts to use tort law to regulate economic activity that takes place outside their borders. Voting with your feet is far less effective if the state can “come after you” even after you have left. That, however, is a limited intervention permissible even under a fairly narrow view of federal power. After all, the original meaning of the Commerce Clause was precisely to limit states’ ability to constrain interstate commerce and extend their regulatory authority beyond their borders.

UPDATE: I previously wrote about the same issue in this 2007 post.

From Bologna v. City & County of San Francisco (Cal. Ct. App. Jan. 31, 2011):

This case arises from the tragic and senseless killings of Anthony Bologna and his sons Michael and Matthew, who were stopped in traffic in San Francisco when Edwin Ramos, an illegal immigrant, allegedly shot and killed them…. The narrow question posed in this appeal is whether the surviving family members can proceed in tort against the City under a theory that San Francisco’s policy to provide sanctuary to illegal immigrants was a legal cause of decedents’ murders because it shielded Ramos from deportation in violation of state and federal statutes. We conclude, as did the trial court, that the alleged breaches of those statutes support neither a legally viable claim of negligence per se [i.e., negligence found because of a violation of a statute -EV] under Evidence Code section 669 nor breach of mandatory duties under Government Code section 815.6. We therefore affirm the judgment….

Central to claims asserting both negligence per se and violation of a mandatory duty is the requirement that the harm allegedly caused is of the precise nature a statute was designed to prevent….

Section 11369 of the Health and Safety Code (section 11369) provides: “When there is reason to believe that any person arrested for a violation of [any of 14 specified drug offenses] may not be a citizen of the United States, the arresting agency shall notify the appropriate agency of the United States having charge of deportation matters.” Plaintiffs contend the City violated this provision by “adopting, and enforcing [its] illegal sanctuary policies so as to cause Ramos to not be reported to ICE and to not be subjected to deportation proceedings. As a result, Ramos was free to commit crimes on the streets of San Francisco.” Assuming the truth of plaintiffs’ allegation for purposes of the demurrer, no tort liability can arise solely as a result of the statutory violation unless the injury was either “of the precise nature the provision … was specifically designed to prevent” or “resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent.” We agree with the trial court that plaintiffs cannot make either showing.

The conduct and harm sought to be prevented by section 11369 was discussed in Fonseca v. Fong (2008) 167 Cal.App.4th 922. There, Division Two of this court rejected a claim that section 11369 is preempted by federal law because it impermissibly regulates immigration. Based on its consideration of the pertinent legislative history, the Fonseca court concluded that section 11369 was enacted for the purpose of combating the sale and use of illicit narcotics….

Plaintiffs have provided neither authority nor additional legislative history to contradict Fonseca’s conclusion that the Legislature enacted section 11369 to combat the illegal drug trade, and we find it compelling. This legislative purpose is fatal to plaintiffs’ claims. The fact that reporting suspected illegal immigrants arrested for drug offenses to the federal immigration authorities may also prevent them from committing violent crimes is not enough to warrant our conclusion that section 11369 creates an actionable tort on behalf of the general public. “[S]ection 815.6 requires that the mandatory duty be ‘designed’ to protect against the particular kind of injury the plaintiff suffered. The plaintiff must show the injury is ‘one of the consequences which [the enacting body] sought to prevent through imposing the alleged mandatory duty.’ Our inquiry in this regard goes to the legislative purpose of imposing the duty. That the enactment “confers some benefit” on the class to which plaintiff belongs is not enough; if the benefit is ‘incidental’ to the enactment’s protective purpose, the enactment cannot serve as a predicate for liability under section 815.6.” While section 11369 may benefit the public by removing violent drug offenders from our midst, the legislative history and the statute’s limitation to specified drug offenses confirm that this benefit is incidental….

Here’s a much longer excerpt:

Continue reading ‘Per Se Negligence, the Police, and Illegal Immigration’ »

OK, not really (we’re not that good). But a player of the online role playing game Lineage II has brought such a suit against the game’s designers — and a federal court has denied a motion to dismiss, allowing the claim to go forward. For details, see the opinion, Smallwood v. NCSoft Corp. or the Wired article, but I quote below the court’s summary of the plaintiff’s factual allegations.

Note that the court rejected the fraud claims based on the supposed misconduct in wrongfully canceling the account and supposedly cheating the plaintiff out of $65 worth of play time. Rather, the court allowed the case to go forward focusing on the “failure to warn and defective product claims” (plus the defamation claims, but those are a separate matter).

I hope the court will ultimately throw the case out on summary judgment, after discovery has taken place. But that will be after defendants have to go to a great deal more litigation expense. It seems to me that such discovery should not be necessary, and that our tort law system should make clear that as a matter of law one can’t sue for producing allegedly addictive video games — just as one shouldn’t be able to sue a company for producing allegedly psychologically addictive book and movie series (think Star Trek), allegedly psychologically addictive board games (think how many people are obsessed with chess, Scrabble, or what have you), allegedly psychologically addictive sex toys, and the like.

Note, incidentally, that the court held that the possible remedies for negligence are likely very limited, because of game players’ contractual waiver of the game designer’s liability. But the court concluded that, under Texas law, gross negligence liability can’t be waived, so the plaintiff’s case makes sense only if the game company is grossly negligent — and the court held that the plaintiff did state a claim for such liability.

In any case, here are the allegations:

Plaintiff’s Second Amended Complaint alleges the following. Defendants designed and distributed interactive role playing internet games to the public, including the game “Lineage II.” In 2004 or 2005, Plaintiff opened three accounts, thereby becoming licensed to play Lineage II. The accounts were paid for by charge card, three months in advance. Plaintiff played Lineage II from 2004-2009 for over 20,000 hours. Plaintiff experienced great feelings of euphoria and satisfaction from persistent play, as did other users of Lineage II.

Plaintiff became psychologically dependent and addicted to playing Lineage II. During the years that Plaintiff played Lineage II, the phenomena of psychological dependence and addiction to playing computer games was recognized by and known to Defendants. Defendants never gave Plaintiff any notice or warning of the danger of psychological dependence or addiction from continued play.

Continue reading ‘Blog Commenter Sues Volokh Conspiracy for Making Him “Psychologically Dependent and Addicted” to Commenting’ »

I’ve posted this article, published in the Brooklyn Law Review, on SSRN.  It’s  intended to be a more or less practical guide for judges and attorneys to causation issues in toxic tort cases, not a philosophic treatise (not that there’s anything wrong with that!).  Here’s the abstract:

Since the issue first arose in earnest in the 1970s, courts have struggled to create rules for causation in toxic tort cases that are both consistent with longstanding tort principles and fair to all parties. Faced with conflicting and often novel expert testimony, scientific uncertainty, the gap between legal and scientific culture, and unprecedented claims for massive damages, common-law courts needed time to adjust and accommodate themselves to the brave new world of toxic tort litigation. Eventually, however, courts around the country reached a broad consensus on what is required for a toxic tort plaintiff to meet his or her burden of proof.

While there is a voluminous scholarly literature on various aspects of toxic tort litigation, this Article’s unique contribution is to articulate the new consensus on causation standards, document and criticize the various ways plaintiffs attempt to evade these standards, and defend the courts’ adherence to traditional notions of causation against their critics.

Part I of this Article explains that to prove causation in a toxic tort case, a plaintiff must show that the substance in question is capable, in general, of causing the injury alleged, and also that exposure to the substance more likely than not caused his injury. When a plaintiff was exposed to a single toxin from multiple sources, to prove causation by a specific defendant the plaintiff must show that the actions of that defendant were a “substantial factor” in causing the alleged harm.

Part II discusses plaintiffs’ attempts to evade these standards by hiring experts to present various types of unreliable causation evidence. Examples of such evidence include testimony based on high-dose animal studies, anecdotal case reports, analogizing from the known effects of “similar” chemicals, preliminary epidemiological studies that have not been peer-reviewed, and differential etiologies used to “rule in” an otherwise unknown causal relationship. Additionally, when multiple defendants have contributed to the plaintiffs’ exposure to a potentially toxic substance, plaintiffs often present experts who claim, with no reliable scientific grounding, that the level of exposure (“dose”) is irrelevant to causation.

Part III of this Article argues that courts should be steadfast in requiring toxic tort plaintiffs to meet their burden of proof. Traditional tort principles require that plaintiffs bear the burden of proving actual causation by a preponderance of the evidence, not merely that they were exposed to a risk. To hold otherwise and essentially shift the burden to defendants to disprove causation would open the floodgates to all manner of speculative claims, with potentially devastating consequences for Americans’ well-being. Similarly, with regard to cases in which a plaintiff alleges injury after exposure to a toxin from multiple sources, a given defendant may only be held liable if the plaintiff proves by a preponderance of the evidence that exposure to that defendant’s products was a “substantial factor” in causing that injury. To hold otherwise would amount to an implicit adoption of a system of broad, collective liability that courts have rejected when the issue has been raised explicitly. This section concludes by discussing the negative consequences that arise from speculative toxic tort litigation unsupported by reliable scientific evidence.

The case is apparently going to trial in Helena, Montana:

Brandon Patch, 18, was pitching to a Helena Senators hitter, who was using an aluminum Louisville Slugger bat, when he was struck in the temple by the ball on July 25, 2003. Patch died at a hospital about four hours later.

Debbie Patch’s attorneys argue the case is not a freak accident. Baseballs hit with aluminum bats, such as the one used in that American Legion game, only give pitchers milliseconds to respond in a defensive stance….

The ball that struck Patch was traveling at 99.8 mph, [Louisville Slugger attorney Rob Sterup] said. Nearly every home run hit with a wooden bat exceeds 100 mph, Sterup added.

According to the plaintiff’s attorneys, Patch’s death was caused by the defective and unreasonably dangerous product because the bat was designed and manufactured to allow the ball to be hit with such significant force as to endanger the safety of those playing the game. No warnings were given to adequately provide sufficient notice to users such as Patch of the dangerous propensities of these products, the suit alleges….

I haven’t yet been able to get any documents in the case, so all I have to go on is the newspaper article. Thanks to Interested-Participant for the pointer.