Archive | Torts

Ford “Know[s] Everyone Who Breaks the Law” Using Cars They Made — Why Aren’t They Doing Something About It?

Business Insider reports that Ford executive Jim Farley stated, in a panel discussion:

We know everyone who breaks the law, we know when you’re doing it. We have GPS in your car, so we know what you’re doing. By the way, we don’t supply that data to anyone.

He later retracted that, saying Ford doesn’t routinely collect GPS data about its drivers, but that he was just “imagin[ing] a day when the data might be used anonymously and in aggregate to help other marketers with traffic related problems.” I’m happy to accept that clarification.

Yet the point remains that Ford could technically gather this information, and could use it to prevent injuries. For instance, if GPS data shows that someone is speeding — or the car’s internal data shows that the driver is speeding, or driving in a way suggestive of drunk driving or extreme sleepiness, and the data can then be communicated to some central location — then Ford could notify the police, so the dangerous driver can be stopped. And the possibility of such reports could deter the dangerous driving in the first place.

Ford, then, is putting extremely dangerous devices on the road. It’s clearly foreseeable that those devices will be misused (since they often are misused). Car accidents cause tens of thousands of deaths and many more injuries each year. And Ford has a means of making those dangerous devices that it distributes less dangerous; yet it’s not using them.

Sounds like a lawsuit, no? Manufacturer liability for designs that unreasonably facilitate foreseeable misuse is well-established. And the fact that the misuse may stem from negligence (or even intentional wrongdoing) on the user’s part doesn’t necessarily block liability, so long as the user misconduct is foreseeable. [UPDATE: I should note that I’m not wild about these [...]

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Virginia Tech Not Liable for Failing to Warn Students About the Shooter

From today’s Commonwealth v. Peterson (Va. Sup. Ct. Oct. 31, 2013) (paragraph break added) (unanimous):

[E]ven if there was a special relationship between the Commonwealth and students of Virginia Tech, under the facts of this case, there was no duty for the Commonwealth to warn students about the potential for criminal acts by third parties….

[E]ven if this Court were to apply the less stringent standard of “know or have reasonably foreseen,” there simply are not sufficient facts from which this Court could conclude that the duty to protect students against third party criminal acts arose as a matter of law. In this case, the Commonwealth knew that there had been a shooting in a dormitory in which one student was critically wounded and one was murdered. The Commonwealth also knew that the shooter had not been apprehended. At that time, the Commonwealth did not know who the shooter was, as law enforcement was in the early stages of its investigation of the crime.

However, based on representations from three different police departments, Virginia Tech officials believed that the shooting was a domestic incident and that the shooter may have been the boyfriend of one of the victims. Most importantly, based on the information available at that time, the defendants believed that the shooter had fled the area and posed no danger to others…. Based on the limited information available to the Commonwealth prior to the shootings in Norris Hall, it cannot be said that it was known or reasonably foreseeable that students in Norris Hall would fall victim to criminal harm. Thus, as a matter of law, the Commonwealth did not have a duty to protect students against third party criminal acts.

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Planning for the Obsolescence of Technologies Not Yet Invented

The automated motor vehicles that I have discussed this week are just one example of the remarkable technologies coming to our roads, skies, homes, and even bodies. A decade from now, we’ll marvel at how advanced these new products are. But a decade after that, we’ll marvel at how anachronistic they have become.

Rapid technological change means that obsolescence is inevitable, and planning for it is as much a safety strategy as a business strategy. Responsible developers and regulators will need to consider the full lifecycle of products long before those products ever reach the market.

Cars of the early 20th Century (JSTOR) were essentially beta products. In 1901, Horseless Age magazine noted that “[i]f a manufacturer finds that the axles of his machine are” breaking, then “the next lot of vehicles are provided with axles of a slightly larger diameter and so on until they begin to stand up pretty well.” In 1910, a GM engineer testifying in MacPherson v. Buick Motor Co. explained that “the only means” for a designer to get information about a vehicle’s performance “is to use the customers, that is to go over the complaint correspondence.”

As I noted yesterday, it is at least conceivable that a similar approach to modern design could counterintuitively end up saving lives by accelerating safety-critical innovation. But even a more cautious approach to product design and deployment is necessarily iterative.

The general bent of incremental innovation is toward greater safety. The electronic stability control now required in new cars, for example, could save thousands of lives a year if deployed fleetwide. But given the slow turnover in cars–the average age of today’s fleet exceeds ten years–reaching saturation could take years.

At the same time, new products can present new dangers. Most of these dangers are [...]

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Bryant Walker Smith Guest-Blogging This Week About Self-Driving Cars, Automation Technologies, and Their Regulation

Automation and robotic technologies have popped up in Volokh Conspiracy posts several times during the last few years – drone aircraft, autonomous or highly automated weapons, nursing and eldercare assistance machines and, of course, self-driving cars.  So I’m pleased to announce that Bryant Walker Smith, a leading expert on automation and the law, will be guest-blogging this week here at Volokh Conspiracy – on self-driving cars, and automation technologies and their regulation more broadly.

Bryant is a fellow at both Stanford Law School’s Center on Internet and Society (CIS) and Stanford’s Center for Automative Research (CARS). I first met him at a Stanford conference where he presented a CIS report giving the only genuinely comprehensive analysis of the whether a self-driving car would be legal under the law of each of the 50 states, the federal government, and the Geneva Convention you have never heard of – on driving automobiles.  He trained and worked as a civil engineer before studying law, and his academic writing focuses on torts, technology, legislation and regulation, as well as international economic and environmental law.

Apart from the CIS report, Bryant has also written a number of straightforwardly academic law review articles (he is on the law teaching job market this year, and is a lecturer at SLS, where he teaches a class on self-driving vehicles and the law).  Particularly interesting to me (in part because it is counterintuitive to some understandings of automation technologies and traffic management) is “Managing Autonomous Transportation Demand” – it suggests that genuinely successful automation might increase demand for driving and hence put greater, not lesser, pressure on road systems and traffic management; it applies a set of engineering concepts to make recommendations about how such demand, if it were to materialize in this way, might be managed efficiently. [...]

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Proposed Settlement of NFL Concussion Lawsuit

Just before the Labor Day weekend — and just in time for the start of the season — the National Football League announced a settlement agreement with former players who sued the league over concussion injuries sustained while playing professional football.  The plaintiffs alleged the NFL had not adequately addressed concussion risks to players and, worse, had downplayed or even sought to suppress medical evidence linking serious injuries to on-field hits.  According to the WSJ, the settlement represents a “big victory” for the league.

The agreement, reached at 2 a.m. Thursday Eastern time after nine weeks of intense mediation, came far earlier than most expected. It calls for the NFL to pay $765 million, mostly for medical benefits and injury compensation for the retired players, in addition to funding medical research and covering legal expenses.

The settlement includes all retired NFL players who present medical evidence of severe cognitive impairment, not just those who joined the suit. . . .

The settlement will cost each of the NFL’s 32 franchises $24 million over 20 years, or roughly $1.2 million a year. Projected league revenues this season are $10 billion, and the NFL finalized a series of media-rights deals last year that guarantee more than $40 billion through 2022. . . .

The settlement calls for $75 million of the NFL payment to go to baseline medical exams for ex-players, $675 million to go toward compensation and $10 million to go to research and education.

A judge must still approve the settlement for it to take effect, and former players who believe the settlement is inadequate may opt out to pursue claims individually. Current players, however, will have to pursue any future claims through an arbitration process provided for in the league’s collective bargaining agreement. Some former players have attacked [...]

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Liability for Texting Driver

Kubert v. Best (N.J. Super. Ct. App. Div. Aug. 27, 2013) holds:

We hold that the sender of a text message can potentially be liable if an accident is caused by texting, but only if the sender knew or had special reason to know that the recipient would view the text while driving and thus be distracted.

I’ve been critical of various extensions of tort liability in the past, but this decision strikes me as quite sensible. Say Sally sends a message to Don, who is driving; Don reads the message, is distracted by it, and hits and injures Paul.

Don has a responsibility to act reasonably when his conduct — driving and reading text messages — foreseeably creates a risk of harm to others, so he’s liable for reading the message when he should have been paying attention. But Sally also has a responsibility to act reasonably when her conduct (sending text messages) foreseeably creates a risk of harm to others, and that’s so even though the risk is produced only as a result of the combination of her conduct and Don’s.

If Sally were sitting in the passenger seat and doing things that she knew would likely seriously distract Don, and Don got into an accident as a result, both she and Don would be liable. That Sally is distracting Don remotely doesn’t, I think, change the analysis, if she knows or has special reason to know that Don would view the text while driving. To quote the court,

One form of [tortious] interference with a driver might be obstructing his view or otherwise diverting his attention from the tasks of driving. It would be reasonable to hold a passenger liable for causing an accident if the passenger obstructed the driver’s view of the road, for example, by

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So Where Should Released Convicts Live?

I recently read an interesting tort case, Stephens v. Greensboro Properties, Ltd. (Ga. Ct. App. 2001). Starting in July 1996, Stanley Scott lived in Greensboro Properties’ low-income housing development apartment complex. He also worked there as a maintenance man, “paid based on the number of hours he spent doing maintenance work,” and seemed to be called on by other tenants to resolve minor disputes (such as about noise). “He testified that he was not paid for [this dispute resolution], but did so out of a sense of appreciation for being provided with a job and place to live.”

Scott had a criminal record, with many arrests and three convictions, the last in 1989. “Scott’s criminal record consists of an arrest for pointing a gun at another in 1980; an arrest for assault and simple battery with charges dismissed in 1981; an arrest for criminal trespass also in 1981; a conviction of aggravated assault in 1982; an arrest for rape with the grand jury’s return of a no bill of indictment again in 1982; arrests for simple battery, and for making terroristic acts and threats, with the prosecution being nolle prossed in 1983; two arrests for simple battery with dismissal of the charges in 1984; a conviction of aggravated assault in 1984; and a conviction of simple battery in 1989.” Defendant’s managers knew of this record, but after “Scott an opportunity to explain the circumstances surrounding his criminal record, [defendant] approved his residency application.”

Scott carried a gun for protection, something defendants didn’t know. Six months after he came to live at the complex, some other residents talked to defendants’ manager “about Scott’s past criminal record and past reputation for violence in the community and told her that she needed to keep an eye on him.”

In July 1997, Scott, [...]

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So Where Should Released Convicts Live?

From Landlording: A Handymanual for Scrupulous Landlords and Landladies Who Do It Themselves (11th ed. 2010), p. 337:

Selecting “Harmless” Employees and Tenants

Whenever you’re selecting employees and tenants, be especially cautious in determining whether they might pose a physical threat to others….

If they should ever harm a tenant physically during an argument or run down a tenant’s child while driving drunk …, and if ther happened to have been something in their past which you should have discovered, something which would have indicated that they might indeed hurt somebody, and you didn’t even attempt to discover it, you will be held responsible for having hired them or rented to them in the first place, and you will be called upon to compensate their victims.

When you check out their applications, look for missteps in their past. If you find anything suspicious, reject them. Don’t take pity on people who have checkered pasts, thinking that you’re the one who ought to give them a second or a tenth chance. You’re not in the business of rehabilitating people who’ve gone wrong. You’re in the business of providing secure, safe housing to good people.

if you find no missteps while checking into your applicants’ background, but they go sour anyway while they’re working for you or renting from you, at least you can’t be faulted for having failed to investigate them to begin with. You tried.

What do you folks think about this? Overreaction — no landlord would be held liable if he rents to someone with a history of sex offenses, or even just a history of assault or drunk driving, and the person then injures a cotenant or a neighbor? (The theory would be negligence, on the grounds that bringing someone who has shown signs of being dangerous into [...]

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Don’t Try This at Home

Here’s an interesting tort case I ran across recently, Mangold v. Ind. Dept. of Natural Resources (Ind. 2001):

On March 12, 1997, a Department of Natural Resources (“DNR”) conservation officer conducted a hunter education class for students at Switzerland County Junior High School. The program was part of the school’s science curriculum and addressed firearm safety. While instructing the class, the officer dismantled a shotgun shell, showed the students the component parts, and explained what the parts do when the gun is fired. Among other things, the officer told the students that when the firing pin strikes the primer, the primer “sparks” setting fire to the powder. The officer also warned the students that they should never handle ammunition unless accompanied by an adult.

Twelve-year-old Matthew Mangold attended the class. After school, Matthew and his brother partially disassembled one of their father’s shotgun shells. With his brother holding the shell with pliers, Matthew struck the firing pin with a hammer and chisel. Rather than causing a “spark” as Matthew expected, the shell exploded with a fragment striking Matthew in the face and leaving him blind in the left eye.

Acting as next friend, Matthew’s father filed a complaint for negligence against DNR as well as Switzerland County School Corporation …. The complaint alleged that DNR was negligent in its instruction on firearm safety and School was negligent in its supervision of the officer.

I read plaintiff’s brief for rehearing, and the essence of Mangold’s complaint was that “Officer Groover explained how ammunition works. He explained that a primer struck by a blunt firing pin ‘ignites.’ Groover testified in his deposition that he never used the word ‘explodes.'” The court unanimously held that a jury could find Groover’s conduct negligent.

Three of the five Justices said that these particular defendants [...]

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No Tort Law Duty Not to Provoke One’s Abuser

From Hurn v. Greenaway (Alaska Feb. 8, 2013):

Simone Greenway and her friend Carrie Randall–Evans were dancing together in a suggestive manner and teasing Jeffrey Evans, Carrie’s husband, when Jeffrey left the room, returned with a pistol, and shot everyone inside, killing Carrie. He then shot and killed himself. David Hurn, the father of Carrie’s two minor children, sued, claiming that Greenway’s participation in the dance was negligent either because it breached her duty as homeowner to control her guests or because it created a foreseeable and unreasonable risk of violence.

The court held for the defendant, “[b]ecause property owners generally have no duty to control the conduct of third parties in their homes, and because murder was not the foreseeable result of suggestive dancing,” despite the alleged signs of Jeffrey’s dangerousness:

Greenway knew that Jeffrey had threatened Carrie with physical harm in the past; Carrie was afraid that Jeffrey would kill her; Jeffrey was a jealous man; on the night of the murder Jeffrey sometimes wore a “stone cold expression” that betrayed no emotion; and prior to Greenway’s dance, he had issued a veiled threat: “What would you girls do if someone came in that door right now, after you?”

But towards the end of the opinion, the court also makes a broader point that goes beyond just whether foreseeability is present on the facts of the case (paragraph breaks added):

Hurn asks us to reduce domestic violence in this state by imposing a duty to “refrain from teasing or bullying someone known to be potentially violent.” But we refuse to give victims the duty to prevent their own abuse and then hold them liable when they fail.

The record suggests that Jeffrey was an abusive husband. And if Greenway is liable for taunting an abusive husband, it

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Lawsuits Over Fraudulent Electronic Relationships

With the Manti Te’o story in the news, I thought I’d note an interesting case from last year, Bonhomme v. St. James (Ill. 2012). I stress up front that I haven’t followed the details of the Te’o story, and can’t opine on any legal implications (civil or criminal) of Ronaiah Tuiasosopo’s behavior in that case. Still, it might be interesting to see how an Illinois court dealt with a generally similar incident under Illinois law (some paragraph breaks added):

The following facts were alleged in plaintiff’s third amended complaint and are set forth in the appellate court’s opinion. In April 2005, plaintiff, a resident of Los Angeles, California, began online conversations with defendant on the “Deadwood Boards,” an Internet chatroom dedicated to the HBO television series “Deadwood.” Defendant, a resident of Batavia, Illinois, had registered as a user of the site under the name “Ms. Magnolia.” In June, defendant registered again, posing as a man named Jesse James (Jesse) and under the user name of “Auboy.” Jesse began chatting with and emailing plaintiff in July 2005. Defendant, in her own name, also began emailing plaintiff in July. Defendant represented to plaintiff that she knew Jesse and many of the people in Jesse’s life.

Plaintiff and Jesse began an online romantic relationship that lasted until July 2006. In addition to exchanging emails, Jesse and plaintiff exchanged personal photos, handwritten letters, and gifts. They also spoke regularly on the telephone, with defendant using a voice-altering device to disguise her female voice.

During this same period, defendant continued to maintain a relationship under her own name with plaintiff. In addition, defendant created a universe of approximately 20 fictional online characters either related to or involved with Jesse, including an ex-wife, a son, various family members, a therapist, and friends living both in

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Doctors on Airplanes

Yesterday over dinner, a doctor related a story of a friend who was on an airplane when another passenger fell ill. The friend helped the ill passenger, but when the airline offered a free first class upgrade as thanks, she declined: The friend thought that this might deprive her of the protection of a “Good Samaritan” law, so that if the other passenger believed that she had been negligent in taking care of him, she could be sued for malpractice.

It turns out, though, that the friend could have taken the upgrade with little worry. The relevant law here — at least as to American air carriers (the matter is less certain as to the U.S. law applicable on foreign air careers) — is the federal Aviation Medical Assistance Act of 1998, sec. 5(b), which provides:

An individual shall not be liable for damages in any action brought in a Federal or State court arising out of the acts or omissions of the individual in providing or attempting to provide assistance in the case of an in-flight medical emergency unless the individual, while rendering such assistance, is guilty of gross negligence or willful misconduct.

So there’s no liability for negligent care by a doctor called to help in an airplane, even when some compensation is given, unless the doctor is grossly negligent, in which case there may be liability but again without regard to whether compensation is given. If you’re a doctor and decide to help a fellow passenger, might as well take the tokens of thanks that the airline gives you.

Stepping back, recall that the general American rule is:

(1) You generally have no legal duty to provide medical care or other help to others (unless there’s a special relationship between you and them, for instance if [...]

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$60,000 Verdict for Blogging the Truth About A Person Intending to Get Him Fired — Reversed

I’ve blogged before about Moore v. Hoff, a Minnesota case in which a jury ordered a blogger (John Hoff, who blogs as Johnny Northside) to pay $60,000 to a university official because the blogger blogged the truth about the official, intending to get him fired. Today, the Minnesota Court of Appeals reversed the verdict, in Moore v. Hoff (Minn. Ct. App. Aug. 20, 2012):

Because truth is an absolute defense to a claim for defamation, truth should also be a defense to a claim for tortious interference with a contract arising out of an allegedly defamatory statement. See also Restatement (Second) of Torts § 772 cmt. b (“There is of course no liability for interference with a contract … on the part of one who merely gives truthful information to another.”).

Moore argues that Hoff is not shielded from tort liability simply because Moore could not prove the falsity of Hoff’s statement. Rather, Moore urges us to rely instead on Hoff’s motivation for making the allegedly defamatory statements. Moore asserts that because Hoff had an ulterior motive of getting Moore fired, he can be liable for the tortious-interference claims. We disagree.

When a person conveys unflattering and possibly damaging information to another person’s employer, it is unlikely that the motivation for conveying that information is borne out of affection. It is much more likely that the intent is for the employer to take responsive action — up to and including termination — based on the content of that information. Regardless of the motivation of the messenger, if the information conveyed is true, it is not appropriate for liability to attach. See Restatement (Second) of Torts § 772 cmt. b. (noting that conveying truthful information is not “improper” interference “even though the facts are marshaled in such a way

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Breach of Promise to Marry

This tort — straight out of Gilbert & Sullivan — turns out to remains theoretically alive in a few states, though apparently very rarely litigated. And though some cases involve lawsuits over the cost of the canceled wedding, in principle the damages can be a good deal broader. Bradley v. Somers (1984) tells us that,

Damages for breach of promise to marry are confined to those relating to the position the rejected spouse (Christine) would have held had she married the appellant. She is entitled to recover for the loss of the pecuniary and social advantages of the promised marriage. Also, her mental anguish, humiliation, and injury to health and psyche are elements of damages. In addition, she may recover for losses sustained from expenditures made in preparation of marriage. The jury may consider the monetary value of a marriage which would have given Christine a home.

And a case from a few months ago, Campbell v. Robinson (S.C. App. 2012), reaffirms that Bradley v. Somers is still the law in South Carolina.

One thing that’s interesting about the tort is just how social change has upended the theory behind it. Even as to the other “heart balm” torts, such as alienation of affections, there is some plausible argument for retaining them. Alienation of affections, for instance, can be seen as a form of aiding and abetting of adultery, which is conduct that seriously harms another. (Note that disputes about untangling property arrangements that were made in contemplation of marriages, whether related to engagement rings, jointly bought real estate, or what have you, are handled under contract and property law rules that have not been much affected by the abolition of the heart balm torts.)

But breaking an engagement, it seems to me, has turned from something that [...]

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Paternity Fraud

Dier v. Peters (Iowa June 1, 2012) offers a good discussion of the debate about paternity fraud lawsuits, including citations to cases that reject such a cause of action and to cases that accept it.

This particular case concludes that, if a woman fraudulently tells a man that he was the father of her child, and the man voluntarily pays child support (not pursuant to a court order), he is entitled to a return of the payments. This seems right to me, on basic principles of the law of fraud; what to do about past court-ordered payments is a more complicated matter, having to do with the proper means of reversing existing judgments, though I think some such remedy should be available there as well. In any case, it’s an interesting opinion, with an interesting concurrence. [...]

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