Category: Tort Law

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Recommended Reading: Gregory Keating’s Fairness Theory, New Papers on Rylands and Nuisance

Professor Gregory Keating has two new pieces up on SSRN, both illuminating and important.  A quick overly-brief primer: Keating’s fairness theory provides the “moral logic” for treating strict enterprise liability as the modern default rule for tort law.  It requires an enterprise to compensate individuals injured by its risky, yet profitable activities if the victim does not benefit from those activities to the same extent that the enterprise does.  In that sense, strict liability exacts a just price for an enterprise’s freedom to engage in profitable activities where the victim did not similarly enjoy such a liberty but nonetheless suffered injury.  In the abstract included below for Recovering Rylands: An Essay for Bob Rabin (forthcoming DePaul Law Review), Keating celebrates and builds upon Robert Rabin’s article “The Historical Development of the Fault Principle,” providing a moral and historical account of Rylands v. Fletcher’s strict liability alternative to fault liability while recognizing its practical limitations.  After the jump, I will include the abstract for Keating’s Nuisance as a Strict Liability WrongHere is the abstract for Recovering Rylands:

This paper, written for a Clifford Symposium Festschrift for Robert Rabin, comments on his lovely, widely admired, and yet still underappreciated paper The Historical Development of the Fault Principle: A Reinterpretation. Rabin’s paper teaches us something essential about the character and structure of modern tort law at the moment of its genesis, and it reminds us of the even more general truth that what the law does not cover is at least as important as what it does cover. The Historical Development of the Fault Principle is constructed around a simple, but powerful, distinction between fault as a breach of duty and fault as a cause of action. Negligence as a cause of action is an institution, a system of related rules, concepts, principles and policies. This simple but penetrating observation transforms the question of just what is at stake in the conventional thesis that the late nineteenth century was the heyday of “universal fault liability.”

Whether or not fault liability was “universal” at the end of the nineteenth century turns, Rabin teaches, not on whether tort liability for accidental injury is constructed around fault or strict liability. The “universality” of fault liability is, rather, a question about the percentage of the legal landscape for unintentional harm that the institution of negligence liability governs. Building on this point, The Historical Development of the Fault Principle shows that the age of “universal fault liability” is better described as an age where “no duty” predominated. Tort liability – fault liability retreated whenever contract was capable of taking hold of a domain of accidental injury. It retreated both in the presence of contractual relations (in the workplace context) and in the absence of contractual relations (in the product context). Property, contract, and “no duty” all trumped tort. This insight not only changes our understanding of the rise of fault liability; it also provides a powerful rebuttal of the still influential, if waning, view that the common law of torts circa 1870-1905 was economically efficient.

Rabin’s critique leaves intact the thesis that negligence liability itself emerged as a freestanding form of tort liability at the end of the nineteenth century. Prior to that time, negligence was merely the mental element of a number of discrete, nominate torts. Late in the nineteenth century, negligence transforms into a norm of conduct and thereby emerges as a distinctive form of tort liability. This development sets the stage for the expansion of fault liability into the domains of product accidents, landowner liability, and some forms of pure economic and emotional harm. The late nineteenth century thus sets the stage for the “universal fault liability” that it so conspicuously fails to achieve.

Recovering Rylands argues that Rylands v. Fletcher represents a parallel development with respect to strict liability. Rylands generalizes ancient forms of liability in nuisance and trespass into a coherent, general alternative to fault liability. The opinions in the case both articulate strict liability as a general principle of responsibility for harm done and clarify the fundamental perception on which strict liability rests, namely, that harm justifiability inflicted – harm which is unavoidable in the sense that it should be inflicted – can trigger responsibilities of repair. The idea that the justified infliction of harm gives rise to responsibilities of repair stands in sharp contrast to the root premise of fault liability, and accounts for the enduring significance of strict liability as form of legal responsibility for harm done.

After excavating the basis and nature of strict liability in Rylands, the paper traces the ebb and flow of the strand of strict liability that it inspired over the past century and a half. On the one hand, that history shows that fault liability is never universal, though generally dominant. On the other hand, that history suggests that the difficulty of attributing harms to activities without deploying a fault criterion may be a permanent, insurmountable barrier to universal, common law strict liability. Last, but surely not least, Rylands’ articulation of strict liability as a general idea is an essential part of the formative moment of modern tort law that Bob Rabin did so much to help us understand. Adding an account of Rylands is a way of building on his seminal contribution. Read More

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Assumption of Risk and Product Liability

Today I taught assumption of risk in Torts and was struck for the first time by a parallel between that doctrine and product liability law. Perhaps others have already noticed the point that I’m about to make, but if so I was unaware of the connection.

In most assumption-of-risk cases, we are asking if a defendant should be found negligent in a circumstance where an activity undertaken by the plaintiff contains an element of danger that is exhilarating.  For example, somebody who falls on an ice rink cannot successfully claim that the rink was negligently maintained because it was slippery.  Why?  Because ice skating would not be enjoyable if it was too safe. A similar rationale applies to many other recreational activities that involve risks that are thrilling.

What are the exceptions to this idea?  One would be if the defendant operated the activity in a way that increased the normal risk of harm in a substantial and unanticipated way.  A rink with thin ice that people fall through, for instance, is not a risk that a skater would reasonably anticipate. Another is that a leisure activity could simply be too hazardous. Society may conclude that certain sports (e.g. boxing) should be banned no matter how well they are run or how many people want to play. Finally, there might be situations in which the defendant did not adequately warn a plaintiff of the conventional risks of the activity.

These three limits to the assumption of risk are nearly identical to the three types of product liability defect.  A manufacturing defect involves a product that does not perform as expected and causes harm. A design defect involves a product that works perfectly well but is judged to be too dangerous. And a warning defect involves an insufficient description of a product’s risk.

I’m not sure what to make of this analogy, but perhaps one body of law can shed light on the other.

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YLJ Online Symposium: Climate Justice and the Elusive Climate Tort

The Yale Law Journal Online‘s new series, Summary Judgment, which features timely responses by academics and practitioners to recent court decisions, continues with the third installment of its symposium on the Supreme Court’s June decision in American Electric Power Co., Inc. v. Connecticut, 564 U.S. __ , 131 S. Ct. 2527 (2011) (AEP).

In Climate Justice and the Elusive Climate Tort, Professor Maxine Burkett considers AEP from the perspective of climate justice, a field that focuses on the “intersection of race and/or indigeneity, poverty, and climate change.” She argues that by rejecting common law nuisance claims in AEP, the Court precludes a valuable mechanism for ensuring climate justice. Her commentary centers on the Ninth Circuit case Native Village of Kivalina v. ExxonMobil Corp., in which an Inupiat community in Alaska is seeking compensation from world’s largest oil companies for global warming-induced damage to the group’s ancestral homeland. Professor Burkett proposes an interpretation of AEP that potentially would allow the claims in Kivalina to survive. Ultimately, she concludes that in the post-AEP world, lower courts can distinguish “between the injunctive relief sought in AEP and the compensatory relief sought in Kivalina”; while AEP may preclude injunctive relief, the lingering possibility of compensatory damages in climate-change cases suggests that “the disparately impacted may enjoy appropriate recourse.” According to Professor Burkett, courts play a role that regulations cannot usurp: “climate tort claims would be the courts’ distinct contribution to what will hopefully be a diverse and multi-layered commitment to rectifying, at least in part, the losses of the climate vulnerable.”

The Summary Judgment series is available on YLJ Online. Please also visit the site to read our latest Online Essays and to view recent issues of our print edition in an electronic format.

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Qualified Immunity and Nominal Damages

James Pfander recently posted an interesting essay on qualified immunity that will be coming out in Columbia Law Review. His idea is that the Supreme Court should hold that if someone sues a government official for a constitutional tort and seeks nominal damages (in other words, $1), qualified immunity should not apply. His argument is that this will lead to more clarity with respect to constitutional rights while protecting officials from liability for their actions when the law is unclear. I am sympathetic to this approach, as I’ve posted many times about my dissatisfaction with the state of qualified immunity doctrine.

Nevertheless, I’m not sure how effective this reform would be.  First, how many plaintiffs will be willing to forego the possibility of a monetary settlement?  The answer is not zero, but it may not be enough have an impact.  Second, a suit for nominal damages still subjects state officials to burdensome discovery, and the desire to shield them from that is one of the rationales for qualified immunity. Thus, I am not sure that the Court would go in the direction that Pfander suggests.  Finally, the lower federal courts have generally rejected the position taken by the Essay, which does create an uphill struggle to get the Supreme Court to adopt the opposite view.

No More Secret Dossiers: We Need Full FTC or CFPB Investigation of “Fourth Bureau” Reputation Intermediaries

There is a superb article by Ylan Q. Mui on the growth of new firms that create consumer reputations. They operate outside the traditional regulation of the three major credit bureaus. Mui calls this shadowy world of reputational intermediaries the “fourth bureau.” The Federal Trade Commission should conduct an immediate investigation of the “black box” practices described by an industry leader in the article. This should be part of a larger political and social movement to stop the collection of “secret dossiers” about individuals by corporate entities. The Murdoch scandal now unraveling in Britain is only the most extreme example of a wholesale assault on privacy led by unscrupulous data collectors.

Once a critical mass of data about a person has been collected for a commercial purpose, she deserves to know what the data is and who is gathering it. Once an educator, employer, landlord, banker, or insurer makes a decision based on that data, the affected individual should be able to challenge and correct it. I have made a preliminary case for such reforms in my chapter Reputation Regulation, in this book. I now think this agenda is more urgent than ever, given the creeping spread of unaccountable data mining in the internet sector to a wild west of reputational intermediaries.

From a Fair Credit Reporting Act to a Fair Reputation Reporting Act

To understand why, it’s helpful to take a step back and look at how poorly regulated even the established credit bureaus are. As Shawn Fremstad and Amy Traub have noted in the Demos report Discrediting America, ample empirical evidence has confirmed that a vast number of traditional credit bureau files are erroneous:
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Drip, Drip, Drip: The Statistical “Certainty” of Data Leaks

Ponemon Institute’s latest survey showed that 90% of businesses of every size reported at least one data breach in the past 12 months.  More than half of the respondents said that they suffered more than two breaches in that same time period.  That same number of respondents also noted that they had little confidence that they could prevent another cyber attack in the coming months. 77% found the attacks more difficult to contain while 43% saw an increase in cyber attacks.  Only 40% could identify where the breaches originated.  The source of the data breaches?  According to the report, malicious insiders caused 52% of the incidents while the rest of the breaches were the result of malicious software, either as downloads, embedded on a rogue site, or distributed by social network sites.  The Ponemon Institute explains that: “The threat from cyber attacks today is nearing statistical certainty and businesses of every type and size are vulnerable to attacks.”

The problem is widespread and expensive.  Since 2005, there’s been more than 534 million breaches, including personal medical records, Social Security numbers, and credit card numbers.  According to a 2009 Javelin Research & Strategy study, individuals are four times more likely to be victims of identity theft after receiving a data breach notification letter.  Identity theft victims spend more than $1000 in out-of-pocket expenses and hundreds of hours of personal time to clean up their credit reports.  It’s a mess.

Many companies say there’s little they can do about it, including firms that can afford sophisticated security systems like Lockheed Martin  Tech departments often blame data breaches on the complexity of networks and financial resources.  Of course, the risk could be better managed by giving employees better training to preven them from downloading malware to their laptops and mobile devices.

But the Ponemon study and others like it provide support for the notion that our current tort approach to these problems–a negligence regime–is inadequate.  Negligence won’t address the signficant number of leaks that will occur despite companies’ exercise of due care over personal data.  Security breaches are an inevitable byproduct of collecting sensitive personal information in networked systems.  No amount of due care will prevent a substantial amount of sensitive data from escaping into the hands of cyber criminals.  Such data leaks constitute the predictable residual risks of what I’ve called “information reservoirs of danger.”  As I’ve argued (and here too), negligence won’t efficiently manage the residual risks of hazardous databases.  It would neither induce companies to change their activity level nor discourage marginal actors from collecting sensitive information because such operators need not pay for the accident costs of their residual risk.  The high levels of residual risk suggest treating cyber reservoirs as ultrahazardous activities–those with significant social utility and significant risk–that warrant strict liability.  Recent Senate and House proposed privacy bills don’t go that far (or even in the ball park) as far I can tell.  I will be blogging about the impending Franken geolocation privacy bill that’s soon to drop, though for other reasons, it will have interesting cyber stalking provisions.  More soon.

 

 

 

 

Review of Reconsidering Law and Policy Debates: A Public Health Perspective

Reconsidering Law and Policy Debates: A Public Health Perspective, edited by John Culhane, is a superb collection of thought-provoking essays which features some of the most well-regarded health law scholars in the US. It also includes contributors from schools of public health, public affairs, and public administration. The chapters are uniformly well-written and instructive. Though I cannot in this brief review give consideration to all of the essays, I will try to highlight contributions related to some of my own areas of interest in the intersection between public health and medico-legal research.

Several authors focus on the difficult questions raised by extreme inequality. For example, Vernellia R. Randall’s Dying While Black in America reflects on the disturbing disparity between white and black death rates in the US. A black American male can expect to live seven years less than a white American male, and black women face a four-year gap. Randall explores a number of potential explanations, including discriminatory policies and practices, lack of language and culturally competent care, inadequate inclusion in healthcare research, and hidden discrimination in rationing mechanisms. Randall argues that these disparities will never be addressed effectively until the legal system develops doctrines that can deter not only intentional discrimination, but also “negligent discrimination in healthcare:”
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Making fair funds fairer

The PENNumbra website (online companion to the Pennsylvania Law Review) is spotlighting a recent article by Adam Zimmerman and David Jaros which proposes building class-action-like protection into the high-profile criminal restitution actions that have dominated the news in recent years. In The Criminal Class Action, Zimmerman and Jaros examine cases such as Bernie Madoff, noting that,

The past decade has witnessed the rise of new, massive settlements forged not out of civil litigation but on the periphery of the criminal justice system. Since 2003, prosecutors have demanded that defendants in a variety of high-profile corporate scandals set up multimillion-dollar restitution funds for victims to settle criminal charges. Yet few rules exist for the prosecutors who create and distribute these complex settlements.

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Tort Anniversaries

Today, March 24, is the centennial of the date on which the New York Court of Appeals issued its opinion in Ives v. South Buffalo Railway Co., 201 N.Y. 271 (1911).  Many criticize Ives for its historical inaccuracy and poor reasoning.  So why is such an ignominious opinion deserving of recognition?  Because it, and other opinions of similar ilk, helped spawn the legal realist movement and, as many have said, “We are all legal realists now.” And because many students at his law school and the nation’s other best law schools began their study of Torts with Ives.

Tomorrow, March 25, is the centennial of the Triangle Shirtwaist Fire.  Shulman, James, Gray and Gifford’s Cases and Materials on the Law of Torts tells the story:

On March 25, 1911, 146 workers, most of them Jewish and Italian immigrant women and girls between the ages of thirteen and twenty-three, died in less than fifteen minutes in a fire at the Triangle Shirtwaist factory near Washington Square in New York City. The fire began shortly before 4:30 p.m. on the eighth floor and it spread quickly, fed by thousands of pounds of rags and other fabric. Most of the deaths occurred on the ninth floor, where the doors to the fire escape were locked shut. The majority of the victims were suffocated or burned to death inside the building, but many others died when they leaped to the pavement below:

“The girls rushed to the windows and looked down at Greene Street, 100 feet below them. Then one poor little creature jumped. There was a plate glass protection over part of the sidewalk, but she crashed through it, wrecking it and breaking her body into a thousand pieces.” New York Times, March 26, 1911, p.1.

The two owners of the company were charged with manslaughter, but acquitted. Twenty-three individual civil suits were brought by the families of the victims, and on March 11, 1913, they culminated in awards that averaged $75 per death.

Nine days after the fire, Local 25 of the International Ladies Garment Workers’ Union organized a rally in memory of the workers. The number of those who marched was variously estimated at between 120,000 and 400,000. Within a month, the governor of New York appointed the Factory Investigating Commission which conducted statewide hearings into the condition of working people. It was co-chaired by Robert F. Wagner, later a United States Senator and a principal author of the Fair Labor Standards Act of 1938 and the National Labor Relations Act (the “Wagner Act”), and Alfred E. Smith, later governor of New York and Democratic nominee for the presidency, and included Samuel Gompers, the president of the American Federation of Labor. The Commission’s work ultimately resulted in the passage of important factory safety legislation, the constitutionality of which the courts upheld. The Triangle Shirtwaist Fire is now regarded as a turning point in the struggle for social justice and workers’ rights. The public reaction to the fire, moreover, combined with the public reaction to the nearly simultaneous release of the Ives opinion, led to an amendment to the New York Constitution designed to permit workers’ compensation legislation.

H/T: DG

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Thoughts on Snyder v. Phelps and Future Cases

Thanks so much to Professor Neil Richards (who generously serves as our First Amendment guest expert) for his thoughts on Snyder v. Phelps.  This post aims to build on his insights and contemplates the opinion’s implications for cases of targeted online hate.  In Snyder, Justice Roberts, speaking for the majority, underscored that speech on public affairs “occupies the highest rung of the hierarchy of First Amendment values” and thus deserves “special protection.”  The majority contrasted speech on “matters of purely private significance,” explaining that it enjoys less rigorous First Amendment protection because restrictions on such speech  fail to threaten “meaningful dialogue of ideas” or to risk “‘self-censorship’ on matters of public import.”  Seemingly reflecting its intention to chart a wide territory for matters of public import to provide breathing speech for public discourse, the majority provided select, narrow examples of purely private speech, such as an individual’s credit report and videos of someone engaging in sexually explicit acts.  The majority found that the Church engaged in speech on public affairs because it critiqued broad policies such as the government’s stance on gays in the military (even though some of its signs did target Matthew Snyder and his family) and because the protest occurred in a “public place adjacent to a public street,” the archetype of a traditional public forum that enjoys special First Amendment protection.

The majority rejected the Snyder family’s argument that the protests constituted personal attack on private individuals because Westboro had long spoken on the subjects addressed in its picketing and because “no pre-existing relationship or conflict” existed between Westboro and the Snyders that might suggest that “Westboro’s speech on public matters was intended to mask an attack on Snyder over a private matter.”  In other words, the Court seems to be saying that Westboro’s speech did not concern a “purely private matter” because the group had long held hateful views (such as “God Hates Fags”) and because it had no personal relationship or conflict with the Snyders before the attack.  Herein lies a concern with the Court’s division of the speech universe between speech on public matters and those involving “purely private ones.  Some severely emotionally-damaging harassment of individuals stems from a perpetrator’s general hateful beliefs and involves victims who are strangers to the perpetrator.

Consider a neo-Nazi group’s online harassment of Bonnie Jouhari.  Posters on a white supremacist website targeted Ms. Jouhari, a civil rights advocate and mother of a biracial girl.  They revealed her home address and her child’s picture.  The site showed a picture of Ms. Jouhari’s workplace exploding in flames next to the threat that “race traitors” are “hung from the neck from the nearest tree or lamp post.”  Posters included bomb-making instructions and a picture of a hooded Klansman holding a noose.  Ms. Jouhari suffered headaches and anxiety, and her daughter was diagnosed as suffering from severe post-traumatic stress disorder.  With the majority’s reasoning in hand, perpetrators of similar attacks might insist that intentional infliction of emotional distress claims should fail because they had long held discriminatory views, which can be understood as political objections to anti-discrimination laws, and had no previous contact with the individuals that they targeted.  They might contend that such attacks constituted protest on a matter of public concern, not a purely private matter deserving less First Amendment protection.  Justice Breyer, in concurrence, alluded to just such a problem.  Breyer asked: “suppose that A were physically to assault B, knowing that the assault (being newsworthy) would provide A with an opportunity to transmit to the public his views on a matter of public concern.  The constitutionally protected nature of the end would not shield A’s use of unlawful, unprotected means.  And in some circumstances the use of certain words as means would be similarly unprotected.”

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