Category: Tort Law

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Bumper Cars and Primary Assumption of the Risk: Nalwa v. Cedar Fair, LP (Part II of II)

This is the second of two posts discussing a case that will be argued before the California Supreme Court next month, Nalwa v. Cedar Fair, LP. The Nalwa case presents the issue of whether the doctrine of primary implied assumption of the risk (PIAoR) applies to shield the operator of a bumper-car ride from liability for accidents associated with head-on “bumps.” In this post, I’ll describe the legal backdrop for the PIAoR issue before the Nalwa court, and then discuss how the court might perceive the case.

1. Assumption of the Risk Hits a Fork in the Road

All current and former Torts students know about the hoary doctrine of assumption of the risk; members of the lay public also intuit its basic contours. In the past, the basic notion behind assumption of the risk was that, notwithstanding the existence of a duty of care owed by a defendant to the plaintiff, if the plaintiff voluntarily confronted a known risk created by the defendant, that plaintiff could not complain later on, when that risk manifested itself in a rather unpleasant way. Volenti non fit injuria, as Cardozo wrote in the most famous of all assumption of the risk cases, Murphy v. Steeplechase Amusement Co.

The doctrine was moribund in California when, in 1992, when the California Supreme Court breathed new life into it—albeit in a somewhat different form than it previously had taken.

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Bumper Cars and Primary Assumption of the Risk: Nalwa v. Cedar Fair, LP (Part I of II)

Must an amusement-park operator take reasonable, or even utmost, precautions to protect patrons from injuries associated with bumper-car “bumps”? This past week, I met with the attorney for the plaintiff in an interesting assumption of the risk case that raises this issue, and will be argued before the California Supreme Court next month.

(Full disclosure: I offered the attorney my thoughts regarding the case, and accepted in return exactly what these thoughts are probably worth: nothing. OK, he did kindly agree to give an impromptu guest-lecture to my Torts class. Second full disclosure: you know my prior, short guest posts? This is the opposite of those. To spare readers—a little—I will divide this post into two segments.)

One of the issues presented in Nalwa v. Cedar Fair, LP concerns whether the doctrine of “primary implied assumption of the risk” (hereinafter PIAoR) applies to shield the operator of a California amusement park from liability for an injury that results from a bumper-car collision at the venue.  As I’ll discuss in my next post, the California Supreme Court may perceive this case as a one-off, and issue a ruling narrowly tailored toward bumper-car rides. On the other hand, particularly since the court has added two new members (Chief Justice Cantil-Sakauye and Associate Justice Liu) since its last big PIAoR case of this sort, it also might see the case as a good vehicle (rim shot) to clarify the blurry boundaries of PIAoR in California.

I’ll summarize the case and its procedural history after the jump.

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Does Topic Sequence in Teaching Matter?

What are we really teaching our students?  Those of us who complain that our students are too focused on learning rules and doctrines should read a provocative empirical study recently published on SSRN by my colleague Don Gifford, Villanova sociologist Brian Jones, and two of Don’s former students with expertise in statistical analysis, Joseph Kroart and Cheryl Cortemeglia. Donald G. Gifford, Joseph Kroart, Brian Jones & Cheryl Cortemeglia, What’s on First?: Organizing the Casebook and Molding the Mind, 44 Ariz. St. L.J. ___ (2013) (forthcoming).  The article describes an empirical study suggesting that whether the Torts professor begins with intentional, negligent, or strict liability torts affects the students’ understanding of the role of the common-law judge in a statistically significant way. The authors argue that the judge’s role in deciding intentional tort cases is at least to some extent more rule-based than her role in negligence and strict liability cases. Applying the work of sociologist Eving Goffman, they posit that beginning with intentional torts frames the judicial role in this manner. Further, they hypothesize that once frequently anxious first-semester students latch onto one particular conception of the judicial role during the initial weeks of the semester, it becomes anchored and resistant to change even after the students have studied other categories of tort liability.

Gifford et al. surveyed more than 450 first-year law students at eight law schools that vary widely in terms of their
reputational ranking. The students were surveyed at the beginning, middle, and end of the first semester. The survey results supported the authors’ hypothesis that students who begin their study of Torts with strict liability experience a greater shift toward understanding the judge’s role as being influenced by social, economic, and ideological factors and a sense of fairness and less as a process of rule application than do students who begin their study with either intentional torts or negligence.  Even when the authors controlled for the ranking of the law school, topic sequence still generated a significant effect on students’ perceptions of the role of the common law judge.  Nor did the effect of topic sequence vary by gender. The authors were surprised to find that students who began with intentional torts experience a greater attitudinal shift toward perceiving the judicial role as being policy influenced than do students who began with negligent torts.

Despite their disclaimers, the authors implicitly criticize the overwhelming majority of Torts professors who begin with intentional torts. Most Torts casebooks begin with intentional torts, at least after a brief introductory chapter.  Their editors claim that these cases are “accessible,” “memorable,” and provide “a nice warm up” for studying other torts. Some of these same editors admit that intentional torts comprise a “backwater” in modern tort practice. Gifford et al. suggest that the real reason for beginning with intentional torts may be because that is the way it always has been done. They note that the first Torts casebook, edited by James Ames Barr, Dean Langdell’s colleague, began with intentional torts. They provocatively suggest that Ames may have begun with intentional torts in part precisely because these torts were most rule-like in nature and furthered Langdell’s mission to make the law appear “scientific” in order to justify its inclusion within the university curriculum. If this is true, note the authors, then most modern-day Torts professors are “unwitting conscripts” in the Langdellian mission. Read More

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Hantavirus in Yosemite

Among the bloggers on this site, it probably falls to me to discuss the spate of hantavirus cases tied to Camp Curry in Yosemite National Park. I’m a former park ranger, I used to live on Yosemite’s eastern shoulder, and I have some personal experience with hantavirus and related diseases. (When my wife and I moved to Mono County, we found affixed to the door of our new home a flier that advised us that one of our neighbors had just died from the plague. Welcome to the neighborhood.)

For those of you who haven’t been following this story, several cases of hantavirus—a nasty, potentially lethal disease with no known cure—have been traced back to a bevy of newish tent cabins in Camp Curry, a popular campground within Yosemite National Park. Hantavirus is associated with rodents, and it is believed that the mice that represent the disease vectors here nested in the insulation found inside the cabins’ walls.  As of writing, two people have died from the disease, a few others have become sick, and the Centers for Disease Control have announced that up to 10,000 park visitors may be at risk.

It’s difficult to assess the likely liability here, since we (or, at least, I) don’t know at least four important facts: (1) who, as between the park and its employees on the one hand and an independent contractor / concessionaire on the other, designed, built, and maintained the cabins; (2) what, if any, regulations and policy directives applied to the construction and maintenance of the cabins; (3) precisely what notice the park and /or contractor had regarding the threat of hantavirus in Camp Curry; and (4) what steps were taken to prevent infestation, post-construction. These facts bear upon the applicability of the Federal Tort Claims Act and its exception for discretionary functions, as well as the existence vel non of negligence.

It’s worth noting, however, that courts often interpret the discretionary-function exception quite broadly when they consider claims that allege that national-park employees mismanaged park resources, especially wildlife. Just last week, for example, a federal district court in Seattle dismissed a lawsuit arising out of a fatal mountain goat attack in Olympic National Park, on the ground that it generally lay within the sound discretion of park officials to decide how to manage the local mountain goat population. Earlier this year, the United States Court of Appeals for the Third Circuit affirmed a similar holding by a district court in a suit involving a barracuda attack in the Virgin Islands. Back in 2011, a Utah court reached a contrary decision in a case involving a fatal bear attack, but there, the bear already had attacked another park visitor, such that the plaintiffs could persuasively argue that it had to be destroyed, or other precautions taken.

I suspect that most judges feel out out of their element in second-guessing park officials’ decisions regarding human-wildlife interactions, unless stark facts exist that establish that park officials made a patently misguided decision. Garden-variety traffic accidents in the parks lie at the opposite extreme, for the most part, with judges being sufficiently familiar with these fact patterns that they accept a more searching, skeptical role. Somewhere in the middle lie signage cases, which certainly have their analogues in conventional civil practice, but which suffer from the sense that parks should remain relatively pristine, leaving more room for official discretion than would exist outside of a parks setting. This split raises some interesting questions regarding the appearance versus the reality of “expertise,” but those questions are probably best left for another time.

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Product Liability Law — RIP

I was talking to one of my colleagues recently about our school’s Product Liability course, and we both asked the same question–Is there any point in teaching that as a separate class anymore?  Product liability law barely has a pulse these days.  Why do I say that?

1.  Federal statutes preempt state product liability law with increasing frequency (either because Congress drafts them that way or because the Supreme Court is inclined to read them that way).

2.  There isn’t much that is distinctive about product liability law.  In most cases, the inquiry into whether a product or a warning label is defective just reduces to the same old negligence inquiry (a cost/benefit assessment).  We say that product liability is strict, but that rests on a conclusion that the product is defective or unreasonable.

3.  Litigation to regulate particular goods through product liability (guns, fast food, etc.) have basically floundered.

I’m sure that many product liability lawyers and scholars disagree that their field is dead.  As the Olympic fencing judge says, “En Garde!”

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Possible Liability for the Aurora Shootings

In the aftermath of the murders in the Colorado movie theater, the inevitable lawsuits are getting underway.  The exceptional nature of the act may make it hard to hold the theater negligent for lack of security (though people versed in Colorado tort law may feel otherwise), but the more interesting question is the potential liability of the university where the alleged killer was a student.

There is a claim that the suspect was seeing a school psychiatrist, and that she took some steps to alert university officials that this patient posed a danger to others. There is authority in at least one well-known case from California (Tarasoff) for the proposition that a university psychiatrist (and, by extension, the university) can be held liable for failing to warn the intended victim of a crime when the doctor has ample reason to think that her patient might kill that person.

There are two lines of inquiry that seem relevant here.  One is whether the doctor’s duty lapsed when the alleged killer dropped out of school (if he actually did). The second crucial question is what exactly alarmed the doctor about the patient. If it was a general threat, then her failure to warn the police may not matter.  If it was more specific (say, involving, a fantasy about killing people at a movie theater), then that might pose a liability problem.  But again, I’m not familiar with the Colorado cases on this issue.

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Spitzer’s Loose Public Talk and Private Emails

The angry Eliot Spitzer, former New York attorney general and quick-term governor, continues to have the habit of loose talk, bordering on the defamatory.

A court last week ordered New York’s current A.G., Eric Schneiderman, to find and disclose email files Spitzer created using a private account while working as a state employee. Such files, if they exist, are covered by the state’s freedom of information law, the court held.

The files are sought by a defendant, Howard Smith of AIG, in a civil prosecution Spitzer launched 7 years ago while A.G.   The emails, which Spitzer says do not exist, are rumored to contain characteristic loose talk that could prove embarrassing to Spitzer and compromise cases he brought.  As I am researching and writing about AIG, my work would benefit greatly from seeing any such emails.

Spitzer is not likely to cooperate. He blasted Schneiderman this week over his handling of the matter.  He also took pot shots at Smith, as well as Hank Greenberg, former head of AIG, that appear libelous, in much the way Spitzer last year drew a defamation lawsuit for comments about other people he targeted as A.G.

Here are excerpts from a report published by the New York Law Journal (requires subscription).  Read More

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The NFL Lawsuit

About a year-and-a-half ago, I wrote a post about how assumption-of-risk principles might apply to the claim that ex-NFL players were suffering from dementia and other chronic brain problems due to repeated blows to the head.  I didn’t realize at the time that we would see a lawsuit against the league along these lines so soon.  While extensive discovery is still ahead, there is a decent chance that the NFL will be found liable for not doing more to protect players.

One issue in the case is “What did the NFL know and when did they know it?”  If this is like the tobacco litigation and NFL officials knew, say, 20 years ago, that there was a problem and did nothing, then liability is all-but-certain.  It is more likely, though, that this is not true.  What then?  Product liability suits with a long latency period (the time between exposure and symptoms) pose very tricky problems.  One way of viewing the issue is that it is unfair to hold a firm liable when the consensus was that the product was safe–how were they supposed to know better?  Another thought is that a firm that puts a product into the stream of commerce and injures people should always pay because they profited and to do otherwise would force an innocent victim to bear the loss. Complicating that is the extent to which the consumer is aware of a risk, though not THE risk, of the product.  Obviously football players knew that they could get seriously hurt.  But does it matter that they did not know that they could get hurt in the way that, say, Dave Duerson was?

This is actually not a bad topic for a symposium, but in the meantime what do you think?  (The prospective question of how you can make football safer is a separate issue.)

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Stanford Law Review, 64.3 (2012)

Stanford Law Review

Volume 64 • Issue 3 • March 2012