Category Archives: Torts

What If a Moral Theory of Tort Requires Deterrence?

Sep 1, 2023 Leslie KendrickTorts

Leslie Kendrick

Gregory Keating’s absorbing and insightful new article, “Irreparable Injury and the Limits of the Law of Torts,” surveys familiar territory from a distinctive vantage. As he does in his recent book, Reasonableness and Risk, Keating invites us to reconsider the fundamentals of what tort law is for and what reasonable care looks like. In this paper, he presents these questions through a central motivating problem: reparation is one of the central goals of tort (some would say its only goal), but in many cases, “tort reparation is not fully up to its assigned task.” (P. 1.) In particular, serious physical injury and death are two harms that tortious wrongdoing may inflict but the tort system cannot repair.

Keating argues that this problem finds its clearest expression in cases of premature death. (P. 3.) He observes that common-law tort failed to address the death of plaintiffs at all, and to the extent that tort suits address it today, they do so through statutory survival and wrongful death actions. (Pp. 4-5.) Even then, generally speaking, neither action compensates for the specific harm that occupies Keating: the harm of no longer being alive. Survival and wrongful death actions may account for financial resources lost on account of tortious premature death, and loved ones may receive recompense for their own emotional harms, but hedonic damages—damages for pain and suffering or loss of enjoyment of life—are generally available only for the period in which an injured plaintiff was alive. They are not typically awarded to the dead. (P. 5.) Continue reading "What If a Moral Theory of Tort Requires Deterrence?"

The Citadel as Sandcastle

Jul 18, 2023 Christopher J. RobinetteTorts

Christopher J. Robinette

The story of the rise and fall of privity of contract in products liability is familiar to all torts scholars. William Prosser even labeled privity a “citadel” and wrote two significant law review articles discussing in martial terms the assault upon and fall of the citadel of privity.¹ The story is simple. In an 1842 English case, Winterbottom v. Wright, Lord Abinger held that an injured passenger could not sue the manufacturer of the allegedly defective stagecoach that injured him because the coach was provided under contract to the passenger’s employer, not to him.² Abinger invoked floodgates by reasoning, “There is no privity of contract between these parties…Unless we confine the operation of such contracts as this to the parties who entered into them, the most absurd and outrageous consequences, to which I can see no limit, would ensue…” Id. The rule migrated to the United States, where courts held that, even though Winterbottom sued in contract, privity prevented plaintiffs from recovering for products injuries in negligence cases. In 1916, however, Judge Cardozo in MacPherson v. Buick Motor Co. ended the reign of privity by holding that a plaintiff injured by an allegedly defective automobile that he purchased from a retailer could sue the manufacturer directly.³

But the story is false. Such is the argument of Professor Alexandra Lahav in her compelling new article. Instead, Lahav insists that the doctrinal rule for producers of injurious products in the United States in the nineteenth century was negligence liability. Continue reading "The Citadel as Sandcastle"

Tort Trials and Tribulations

Jun 21, 2023 Nora Freeman EngstromTorts

Nora Freeman Engstrom

In The Civil Jury: Reviving an American Institution, authors Richard L. Jolly, Valerie P. Hans, and Robert S. Peck sound a dire—and important—warning: the jury trial has almost completely vanished from civil litigation, and its disappearance comes at great cost. While many have noted civil trials’ decline over the past century, the Report goes a step further, not only compiling data to track the jury trial’s demise, but also cataloguing reasons for it, explaining why it matters, and offering concrete ways to reverse this ominous trend.¹

In this Jot, I’ll focus on why those of us interested in tort law, and the role of juries in tort law, should read—and heed—the authors’ warnings.

First, a primer on the civil trial landscape writ large. As Jolly, Hans, and Peck explain, between 1962 and 2020, the percent of federal civil cases disposed of via jury trial fell from a respectable 5.5% to an almost non-existent 0.48%. And though state court statistics are spottier, the limited data that are available suggest that, in the states, civil jury trial rates have fallen from 1.8% of civil case dispositions in 1976 to just 0.6% of such dispositions in 2002 to a miniscule .09% in 2019. Further, the few trials that do occur are, on average, shorter and more constricted—with fewer jurors, stricter time limits, more bifurcation, and compressed voir dire.² Continue reading "Tort Trials and Tribulations"

The Common Law Inside Social Media

May 22, 2023 Anita BernsteinTorts

Anita Bernstein

Leslie Y. Garfield Tenzer and I have crossed paths only once, in an encounter that I found memorable. The venue was a 2014 symposium called Social Media and Social Justice. As one might expect at a law school event with social justice in its title, denunciation and concern abounded. The gloomy context caused a remark by Professor Tenzer to stand out: “I love social media!” When the time came to publish my presentation, I felt moved to quote this splash of good cheer.

Nine years later, Tenzer’s love of this environment seems alive, though with a plangent note running through her insightful Social Media and the Common Law (“Social Media”). Tenzer says she “finds fault with the judiciary’s failure” to impose accountability on the sector (P. 229) and worries about “the prevalence of unaddressed and unpunished social media harms” (id.) that include defamation, invasion of privacy, harassment, emotional distress (which can be severe enough to precipitate suicide, see P. 242) and the cluster of consequences that result from what now gets called cyberbullying. But Social Media seeks to mend rather than end what it observes. Its case for more tort liability is intended to make providers and communications healthier, not just more accountable for the injuries they inflict. Continue reading "The Common Law Inside Social Media"

Injured Tenants, Uninsured Landlords, and a Proposal for Mandatory Landlord Insurance

Apr 20, 2023 Jennifer WrigginsTorts

Jennifer Wriggins

Allyson Gold’s excellent article, Insuring Justice, shows that when low-income tenants suffer personal injuries caused by substandard housing conditions, the torts system fails them and protects negligent landlords. While the negligence cause of action applies to landlords’ actions and omissions in theory, low-income tenants face multiple barriers to successful negligence claims against landlords for their injuries. A chief barrier is the lack of liability insurance for landlords. This long-overdue article is the first to examine liability insurance for landlords, particularly for those who rent to low-income tenants.

Prof. Gold brings extensive knowledge of issues and problems facing low-income tenants as well as of insurance, and tort law, to bear in discussing liability for injuries caused by substandard housing. Why, Prof. Gold asks, do lawmakers require Airbnb landlords to have liability insurance for short-terms rentals to tourists, yet they do not require that landlords renting to long-term tenants carry liability insurance? She shows that this disparity is neither inevitable nor justifiable. Continue reading "Injured Tenants, Uninsured Landlords, and a Proposal for Mandatory Landlord Insurance"

Comparing Vicarious Liability

Mar 20, 2023 Donal NolanTorts

Donal Nolan

Future legal historians are unlikely to disagree on the area of Commonwealth tort law which underwent the most radical transformation in the early years of the twenty-first century. After having lain largely dormant throughout the previous century, in the last two decades the doctrine of vicarious liability has been subject to far-reaching changes across much of the common law world, which surpass in their extent other recent developments in the law of tort. And those historians will find no better guide to these changes than this timely and illuminating collection of essays, expertly curated by Paula Giliker.

The core of this collection consists of essays on recent developments in vicarious liability in Australia, Canada, England and Wales, Ireland, New Zealand, Hong Kong, Scotland (as a mixed legal system, an exception to the common law focus), and Singapore. These essays are bookended by two substantial chapters by the editor, in which she first introduces the issues and methodology and later draws some comparative conclusions and considers the insights to be gained from cross-jurisdictional analysis. As so often is the case, it is the editor’s own contribution that makes this collection of essays more than just the sum of its parts, and Giliker deserves credit not just for conceiving of such an innovative project, but for bringing it to fruition with such aplomb. Continue reading "Comparing Vicarious Liability"

Just Kidding? The Problem of Unenforceable Waivers of Liability

Feb 8, 2023 Anthony SebokTorts

Anthony Sebok

In their forthcoming article, Unenforceable Waivers, Edward Cheng, Ehud Guttel, and Yuval Procaccia (“CGP”) ask an embarrassing question: Why do businesses require customers to sign waivers that have been struck down by courts in published opinions that are available not only to their lawyers but also to their customers? In this Jot, I praise CGP for their sharp eye–this is torts scholarship at its best–and then evaluate their suggestions for reform.

First, the question: Killington Ski Resort is the defendant in a well-known Vermont Supreme Court case that adopted a pro-plaintiff interpretation of the public policy limitation on express assumption of risk. Why does Killington still ask its customers to sign the waiver struck down in that case (Dalury v. S-K-I Limited)? I teach this case, as do many others, as a clear statement of Vermont law. In classroom discussion, I begin with the assumption that whatever one thinks of Dalury’s common law reasoning or policy implications, the Vermont Supreme Court was “wrong clearly even when [it] was clearly wrong” (pace H.L.A. Hart). Continue reading "Just Kidding? The Problem of Unenforceable Waivers of Liability"

When Bad News Didn’t Travel Fast Enough

Jan 5, 2023 John C.P. GoldbergTorts

John C.P. Goldberg

Evelyn Atkinson’s article, Telegraph Torts: The Lost Lineage of the Public Service Corporation, offers a fascinating look at judicial decisions and statutes from the late 1800s and early 1900s that–unusually for the time–imposed liability for negligence causing “pure” emotional distress. A typical fact pattern was as follows. A resident of a rural town would pay the local Western Union office to send an urgent telegram notifying the intended recipient that his close relative was dying. Because of Western Union’s negligence, the message was not transmitted. Bereft over having missed the last chance to commune with his dying relative, the intended recipient sued Western Union for damages. While claims of this sort often failed, courts and legislatures in Southern and Western states tended to validate them.

The paper is an effort to answer why, of all actors that caused foreseeable serious distress through their negligent acts, telegraph companies were almost uniquely vulnerable to liability, but only in certain states. Its answer has a paradoxical flavor. On the one hand, Atkinson suggests, liability was justified on the ground that Western Union–by far the dominant player in the industry–was for all intents and purposes a public utility, i.e., a powerful monopoly that provided an essential public service. As she explains, in parts of the West and South, when family members were geographically dispersed, the telegraph was effectively the only way for them to get in touch, particularly on short notice. Continue reading "When Bad News Didn’t Travel Fast Enough"

Punching up on the Tort of Negligence

Nov 25, 2022 Ronen AvrahamTorts

Ronen Avraham

I like papers that go against well-established conventions, theories, and practices–papers that punch up. Such is Yehuda Adar’s and Ronen Perry’s (hereinafter A&P) new paper titled: Negligence Without Harm, which argues that victims could sue and receive remedies for a tort of negligence even if they have not suffered any harm.

For at least a century, every first-year common law student has known that the tort of negligence is comprised of four elements: duty of care, breach of duty, causation, and harm; and that to win on a negligence claim, the plaintiff must prove all these elements (as well as to overcome defenses such as contributory negligence). Continue reading "Punching up on the Tort of Negligence"

#NegligenceToo

Oct 27, 2022 Cristina TilleyTorts

Cristina Tilley

At the height of the #MeToo era,¹ not a month seemed to pass without tell of bad behavior by a titan of American government, media, or entertainment. The resulting public thirst for contrition gave rise to a very specific oeuvre of male apology.

“I misread things in the moment,” stated one entertainer after learning that a sexual partner had sobbed in her Uber home after their night together.² I’ve had “encounters” where I was sort of “navigating and not knowing,” observed another man who learned that his exploration of a female colleague’s breast while she was hosting a television segment had been unwelcome.³ “I [have] learned…that when you have power over another person, asking them…isn’t a question. It’s a predicament,” said a third, who had undressed in front of fellow professionals in the workplace.⁴ Something is going awry in these encounters, where men attuned to their own desires simply do not register that their counterpart is having a different experience, but “learn” the female perspective after the fact. Modern law lacks useful tools to assess this disconnect, and in A Negligence Claim for Rape, W. Jonathan Cardi and Martha Chamallas give us one. (Pp. 3-4.) Continue reading "#NegligenceToo"