The Land of Hobbits, Elves, and No-Fault Injury Compensation Schemes

February 23, 2018 by Samantha Bates in Theories of Torts

I have a friend from New Zealand, let’s call him Tommy. Tommy is a very rough-and-tumble person, a person who works with his hands by day and coaches rugby by night. If Tommy were to lose an eye in a rugby match or a finger on the job, nobody who knows him would be surprised if he said “ah, it don't matter” and just kept on doing whatever he was doing. I used to think that this was particular to Tommy’s individual spirit. But lately I’ve been thinking that perhaps there’s something particular not to Tommy, but to New Zealand and its people, that impacts how they handle injuries. It turns out that New Zealand has a peculiar and fascinating approach to personal injury compensation, a system that wholeheartedly rejects Civil Recourse and focuses entirely on Remediation. It’s not quite a torts system because it eschews concepts like liability and fault. But New Zealand’s personal injury compensation system will be the subject of the last installment of our series on Theories of Torts nonetheless, because it draws a very big circle around the fact that our torts system reflects a number of societal choices--and that other modern societies could opt for something completely different.

When one thinks of New Zealand, the first thing that comes to mind might be that it’s Australia’s little brother or that it’s the setting for all of the Lord of the Rings movies. But while (or because) the rest of the world may not be paying attention to the country, they’ve quietly become a laboratory for testing out ideas that would only appear in fanciful law review articles in the United States. Once upon a time, New Zealand’s court system looked a lot like ours. That’s not surprising given that both are the offspring of the British common law system. If a person suffered an injury they could turn to the courts to seek redress from the person who caused the harm. In certain circumstances the injured person might have had access to private insurance, but for the most part it was a liability/fault-based system. Around the time that the United States started to explore slight alterations to this simple formula such as workers’ compensation, so too did New Zealand.

In the USA, when industrial accidents happen there's workers comp

It varies from state to state, but in the United States, workers’ compensation is generally a state-mandated private insurance scheme that compensates people injured as part of their employment for lost income. The key is that workers’ comp is a “no-fault” system. If you want to make a claim for your injury you must go through the workers’ compensation process and generally cannot sue your employer in court. In some ways, this system benefits both the worker and the employer. It benefits the worker in that it can provide access to compensatory funds more rapidly than if tort law was the only option and it benefits employers by providing predictability and stability. In essence, workers' compensation is a legally-mandated insurance scheme that insures both employees and employers.

This brings us back to New Zealand. In the early 1900s, the country created a national no-fault workers’ compensation scheme for industrial accidents. Then in a fit of reform in the 1960s, the government appointed a commission, led by the Supreme Court Judge Owen Woodhouse, to investigate whether the country should expand the workers’ comp system to cover all personal injuries, not just those related to work. Even though there was no great public clamor on the issue, the commission still proposed a sweeping no-fault system based on five principles: community responsibility, comprehensive entitlement, complete rehabilitation, real compensation, and administrative efficiency. Critically, the commission argued that a no-fault compensation scheme would offer better coverage with much lower transaction costs, and without establishing a “false morality” that is characteristic of tort law. Without involving the court system, a greater portion of every NZ Dollar spent in compensating injuries would go to the victims and they would get it much faster.

In 1972 the New Zealand Parliament adopted the commission’s finding and passed the Accident Compensation Act. The act prohibited most personal injury tort claims from appearing in court. Instead, the injured would have to turn to the Accident Compensation Corporation (ACC), a government entity created to handle all personal injury claims, to be compensated for injuries that fall into one of five categories:

“injuries from motor vehicle accidents on public roads
work-related injuries to employees and self-employed people
workers injured outside the workplace
medical treatment injuries
injuries to those who are not in the active labor force” such as children (source)

Unlike many/most workers’ compensation systems in the United States, the ACC is essentially a public pot of money, funded by general taxation and an employer levy, that makes payments to claimants. The ACC pays for things like “hospital and medical costs; wage replacement, starting only one week after injury, at a rate of 80% of average weekly earnings; rehabilitation and transportation costs; lump sum payments for permanent loss or impairment; and entitlements for surviving spouses and children.” In most circumstances, if you’re injured in New Zealand (even as a visitor!) you can likely receive some kind of compensation in a rote, mechanical fashion without the need for court or blame.

There are obvious pluses and minuses to this system. First among the positives is that it is extremely efficient when compared to a common law tort system. Claims are processed relatively quickly and are typically resolved within 9 months. The transaction costs are vastly lower because you don’t have to hire a lawyer or go to court. And critically, there is no moral interplay between fault and injury. Both of these last two factors make it vastly more likely that an injured person WILL seek compensation for their injuries. Without any data to back this up, I would imagine that the vast, vast majority of injuries suffered in the United States never lead to any sort of compensation. So in many ways, it is far better to be injured in New Zealand than it is to be injured in the United States.

But given some thought, the negatives of New Zealand’s system also become quickly apparent. First, the system’s reliance on a set of reward guidelines makes it less flexible than a tort system, covering fewer problems with less nuance. For example, the ACC limits compensation for emotional harm to mental injuries caused by “a covered physical injury,” work related trauma (which has only recently been covered by the ACC) or specific sex crimes. As a result, many people suffering emotional harm have brought their claims through the court system, but the majority have been rejected, in part due to the mere existence of the ACC. More critically, the lack of flexibility and a relative lack of funds means that the average claim payout is significantly less than a person might expect to be awarded in a jury-based tort law system. Though it’s difficult to find strict data on average claim payouts, we know that in 2006, the ACC received 1.6 million claims and paid “NZ$569 million on new claims and NZ$964 million on pre-existing claims.” However one breaks that down, the payouts likely look more like the awards we see in small claims court in the United States than in a standard tort case.

When we think about the New Zealand system with respect to TWiT’s Theories of Torts series, we can see that the government and people of New Zealand made a major decision based on Social Utility Theory to do away with a fault-based system and focus just on Remediation Theory. As we’ve seen above, one could argue about whether they’re doing a good job with this--on the one hand, people are compensated far less in New Zealand than if they had successfully brought a claim in the United States. But on the other hand, far, far more people have access to Remediation under the New Zealand system.

“[I]n focusing on Social Utility and Remediation, New Zealand is essentially removing the concept of Norm Setting...from their compensatory system”

But in focusing on Social Utility and Remediation, New Zealand is essentially removing the concept of Norm Setting Theory from their compensatory system. A no-fault system yields actors who are not motivated to change their behavior, to do better. Further, the New Zealand system almost completely removes the concept of Civil Recourse and Corrective Justice. In New Zealand, if you want your day in court, well, too bad.

As you might see, the New Zealand ACC system is a tremendous tool for understanding our own torts system and assessing its own strengths and weaknesses. As we’ve been preparing the articles in our Theories of Torts series, we can’t help but remark on the human power of Civil Recourse Theory. Sometimes, having your day in court IS just compensation, and no amount of money paid through a compulsory insurance scheme will make up for it. At the same time, there is exceptional clarity in the way that New Zealand compensates most injuries. One need not hire a lawyer, march down to court, and go to war in order to make up for your losses.

In our first article on Theories of Torts I wrote about the series of medical mistakes that led to me being confined to a wheelchair for a long period of time, and how I decided that I did not want to seek compensation because of all that entailed. I wanted compensation, but I specifically did not want my day in court. And so I received nothing for my loss. In New Zealand, I would have been paid something. Perhaps not enough to make up for everything I went through, but something. It’s enough to make us think about whether New Zealand’s approach might be a better system. We’re not at all convinced. But at a very minimum, it helps us see that when it comes to tort law, we shouldn't make any assumptions as to what is just.

-Ellis and Acton

... And Justice for All?

January 24, 2018 by Samantha Bates in Theories of Torts

Today we’re going to take another stop on our abridged tour of theories of tort law with a look at Social Utility Theory. To this point we’ve talked a lot about why people sue or don’t sue, but you can’t really understand tort law without understanding why people win or don’t win. In theory, people should win based on the merit of their claim, fairness, justice, equity, righting wrongs, etc. But we’ve all seen or heard about cases that seemingly defied equity and did not go in the way of justice. When that happens, often it is because the court is focused on more than just the parties before them. It is debatable whether they should be in the business of looking outside the courtroom, but judges do sometimes focus on what is best for society at large. And when they do, it is an expression of what we’re calling Social Utility Theory.

On July 13, 1977, the lights went out in New York. The city that never sleeps was rendered a convoluted mess. People got stuck in elevators, people got stuck in trains. Traffic snarled as all the signals went blank. Looters emerged and violence erupted. The health care system plunged into chaos, as patients lay on the operating table with only emergency backup lights to guide their surgeons’ hands. There were around 7 million people living in New York City in 1977, and you can imagine far more than 7 million instances of damage and loss due to that blackout.

But when injured parties tried to sue Consolidated Edison, the city’s electric company, they were largely shut out from recovery. In Straus v. Belle Realty Company and Consolidated Edison Company, a man fell down the stairs in his apartment building’s darkened stairwell as he attempted to recover his emergency water supply in the basement. The man sued both his landlord and also ConEd on the theory that both of their negligence led to his injury.

The court determined that while ConEd may have owed a duty to the plaintiff, it should not be held liable due to policy concerns about overextending liability:

“... while the absence of privity does not foreclose recognition of a duty, it is still the responsibility of courts, in fixing the orbit of duty, ‘to limit the legal consequences of wrongs to a controllable degree’... and to protect against crushing exposure to liability. ‘In fixing the bounds of that duty, not only logic and science, but policy play an important role’... The courts' definition of an orbit of duty based on public policy may at times result in the exclusion of some who might otherwise have recovered for losses or injuries if traditional tort principles had been applied.”

The court in Strauss basically said that while the plaintiff has a reasonable case in theory, in practice it would establish a precedent that might create boundless liability that would ultimately be injurious to society at large. For the torts system to work, the scope of liability must be limited to certain bounds. This line of reasoning has a long history, exercised by some of the most distinguished judges ever to don the robe. The classic example is the opinion by Benjamin Cardozo, a Lion of the Law™ if there ever was one, in Moch vs. Rensselaer. In this case, the defendant, the Rensselaer Water Company, had a contract to supply water to the city of Rensselaer. While the contract was in force, a building set on fire and the fire spread to the plaintiff’s warehouse and destroyed it. The plaintiff sued the water company for failing to supply them with enough water to put out the fire and prevent the destruction of their property. However, the court disagreed, explaining that allowing the plaintiff to recover in this case would overextend liability:

“We are satisfied that liability would be unduly and indeed indefinitely extended by this enlargement of the zone of duty. The dealer in coal who is to supply fuel for a shop must then answer to the customers if fuel is lacking. The manufacturer of goods, who enters upon the performance of his contract, must answer, in that view, not only to the buyer, but to those who to his knowledge are looking to the buyer for their own sources of supply. Every one making a promise having the quality of a contract will be under a duty to the promisee by virtue of the promise, but under another duty, apart from contract, to an indefinite number of potential beneficiaries when performance has begun. The assumption of one relation will mean the involuntary assumption of a series of new relations, inescapably hooked together. Again we may say in the words of the Supreme Court of the United States, ‘The law does not spread its protection so far.’”

Both Moch and Strauss involve liability stemming from the failure of public utilities (water and electricity), but we might argue that the entire field of law and economics adopts similar legal reasoning. Law and economics is a gigantic field full of people who think very deeply about these things, and we cannot possibly do justice to describing the bounds of the field. But put most simply, law and economic theory states “that law is best viewed as a social tool that promotes economic efficiency, that economic analysis and efficiency as an ideal can guide legal practice.”

It would be reasonable to say that the law and econ movement saw its genesis when Lion of the Law™ Learned Hand created the “B<PL” formula in United States et. al. v. Carroll Towing Company. When assessing duty, hand stated that:

“[T]he owner's duty, as in other similar situations, to provide against resulting injuries is a function of three variables: (1) The probability that [a harm will happen]; (2) the gravity of the resulting injury...; (3) the burden of adequate precautions.”

That is, multiply the gravity of an injury and the burden of adequate precautions the defendant could have taken, and compare that to the probability of an injury. By including the burden of taking precautions into account, Hand seems to have formally introduced social utility into the courtroom.

We might see a modern example in McCarty v. Pheasant Run. In Pheasant Run, a woman was assaulted in her room at the Pheasant Run Resort, by an intruder who entered the room through a sliding glass door behind a drawn curtain. Judge Richard Posner, yet another Lion of the Law™, explicitly pursued a BPL analysis even though it was not the law in Illinois, which he was supposed to apply. Posner looked at the cost of better locks and the burden of the hotel installing the locks relative to the harm suffered by the plaintiff. Even though hotels owe a heightened duty of care to their customers in Illinois, the judge still found that the hotel had not violated its duty by neglecting to lock or check the lock on the door. Basically, the plaintiff was out of luck because Poser determined it would have cost the hotel too much to install adequate locks. It is an outcome that many might dispute, but is at least theoretically based on some kind of analysis that promotes the best outcome for society.

Cases like Strauss, Moch, and Pheasant Run show that in our torts system social utility and justice can sometimes seem opposed to one another. It is always important to remember that our torts system is a creation of humans and of our society. People in another place could choose a completely different system that might create a better, or at least different, balance between justice and social utility. In our upcoming fifth and final installment of Theories of Torts, we leave these shores altogether and travel to middle Earth (aka New Zealand) which has a novel approach to torts.

Gaming the [Torts] System

January 11, 2018 by Samantha Bates

You can learn a lot about the seedier side of life through movies. What would Hollywood be without murder, drugs, prostitution, robbery, and all sorts of torious activities? It would be like a film festival showing only adaptations of Waiting for Godot. But fortunately [for entertainment purposes, anyway!], we DO have those things in movies, even if they are disproportionate relative to the real world. And when Hollywood does choose to show us the seedier side of life, it often sets the scene at a casino. Ocean’s Eleven, Casino Royale, the Hangover, Fear & Loathing in Las Vegas, etc etc.

Why casinos? At the end of the day, it must have something to do with gambling. You gamble with your money and you gamble with your life to some degree. And the same drugs, prostitution, and organized crime that are synonymous with the cinema are also synonymous with casinos. But they are not beyond the purview of the law, and something that happens in a casino can be subject to criminal law, a tort, a contract etc. It was in a casino hotel room, after all, where OJ Simpson committed the acts that finally led him to jail.

But it turns out that some casinos may be beyond the purview of the law when it comes to their own wrongdoing. An example is the Foxwoods Resort Casino in Connecticut. You can sue Caesars Palace in Las Vegas, you can sue Casino Royale in Monaco, but for some matters, you can’t sue Foxwoods in Connecticut or anywhere else.

It all comes down to something called sovereign immunity. Under the principle of sovereign immunity, a state generally cannot be sued without its consent. There are a huge number of exceptions, but the theory is strong and enforced. It applies to countries and states, but rarely municipalities. And it also applies to the governments of Native American tribes. We don’t need to get into a lengthy discussion of what happened when Europeans came to America, but in theory they recognized that tribes were independent nations. That recognition extends to the modern era, as the US Federal Government still considers Native American tribes to be “domestic dependent nations.”

A Land of Many Domestic Dependent Nations

Because of tribal sovereignty, things that happen within an Indian Reservation are not necessarily subject to the jurisdiction of the surrounding state. Activities that may be illegal in Arizona are not necessarily illegal on the Navajo Reservation, and vice-versa. And so, in the 1980s, some Native American tribes (and related financial backers) saw an opportunity. Gambling is highly lucrative, addictive, and illegal in most states (well most gambling). But the laws that ban gambling in New York City may not apply in the Akwesasne Mohawk Reservation in upstate New York. Over time, Tribes saw and began to exploit this discrepancy. It started organically, but it soon became big business. In 1988 Congress passed the Indian Gaming Regulatory Act, which established the National Indian Gaming Commission in an attempt to “provide some legislative basis” and some regulation of gaming on Native American reservations.

There is a lot of debate about whether this regulation is effective, but by 2011, there were roughly 460 gambling institutions operated by 240 Native American tribes across the U.S. Most of them are small like Mono Wind Casino in Auberry, CA. But a few are massive and among the largest casinos in the world. And among those, none is bigger than Foxwoods. Bigger than any casino in Las Vegas, it is the largest casino in the U.S. and the second largest in the world.

Foxwoods is located in the Mashantucket Pequot Indian Reservation, which itself is situated within the borders of the town of Ledyard, Connecticut. Before Foxwoods came to town, the tribe boasted membership numbers potentially as low as the single digits, but today that number is edging closer to 1000. There is some serious controversy about the growing membership of the Pequot Tribe, and whether its growth is due more to money than to cultural or historical affiliation. Because the money involved here is huge, relatively speaking. To put it in perspective, the Foxwoods Casino Resort has over 5500 slot machines compared to 1000 members. If the United States as a whole had that person-to-slot-machine ratio, there would be 1,625,000,000 slot machines within our borders. In 1995, it is claimed that the tribe brought in around $750,000 in revenue per member. The financial picture today is not nearly as rosy due to massive, massive debt. Where members could once expect $100,000 per year each in payments from the casino, as of 2012, they receive no money from the casino.

Now back to torts. Maybe you can see where this is all going, but it turns out that because the Mashantucket Pequot Tribe owns and operates the Foxwoods Casino Resort, it is really, really hard to sue Foxwoods. Again, this is all due to sovereign immunity. In tribal, state, and federal courts the Pequot Tribe will argue that Foxwoods is a de facto part of the the tribe itself, given that it is run by the Mashantucket Pequot Tribal Nation Gaming Commission. So in theory, if you slip and fall at the Palm Casino in Las Vegas you can sue the Palm. But if you slip and fall in Foxwoods, you’re out of luck.

We say in theory, because the Tribe has chosen to waive components of its sovereign immunity. Title 12, Chapter 1 of Mashantucket Pequot law states:

“The Mashantucket Pequot Tribal Council recognizes that it is in the best interest of the Tribe to provide a forum to address civil causes of action, including civil actions by or against the Tribe, tribal enterprises, tribal members and any other person or entity who, through their residence, presence, business dealings, other actions or failures to act, or other significant minimum contacts with the Tribe or on tribal lands, are entitled to civil redress or incur civil obligations. For purposes of this law, ‘tribal lands’ means Indian country, as that term is defined in 18 U.S.C. § 1151. The intent of this law is that the jurisdictional powers of the Mashantucket Pequot Tribal Court shall be exercised to the fullest extent possible and construed to serve the ends of justice.”

In order to comply with this sovereign immunity waiver, potential litigants need to follow specific procedures, including being represented by a tribal court lawyer, but the law provides a recourse for most wrongs. Yet there is a great, big, gaping exception to this waiver of sovereign immunity, in that the law states that individuals cannot sue the tribe for any gaming losses:

“There shall be no cause of action in the tribal court for alleged gaming losses, the jurisdiction of which has been specifically reserved for consideration by the Mashantucket Pequot Gaming Commission. For purposes of this section, ‘gaming loss’ means any claim brought to recover damages for pecuniary loss resulting from the engagement by any person in activities classified as ‘class I gaming,’ ‘class II gaming,’ or ‘class III gaming,’ as those terms are defined in the Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701–2721.”

As a result, a case against Foxwoods was recently dismissed by the U.S. Supreme Court on the basis of tribal sovereignty. Cheung “Kelly” Yin Sun won over $1 million playing baccarat at Foxwoods, but was accused of cheating and denied her winnings. Sun has perfected a technique called “edge sorting,” which means she can identify upside-down cards by recognizing tiny differences on the edges of the cards. In her suit, she claimed she had not cheated and that Foxwoods should be required to give her the money she had rightfully won. Whether edge sorting should be considered cheating is up for serious debate. But up and down the federal court chain, Sun’s claims were never substantively heard, as Foxwoods lawyers successfully argued that the courts did not have jurisdiction over the matter due to sovereign immunity. In most non-Native American casinos (even in Europe!), this issue could have been fully litigated.

Sovereign immunity issues relative to torts and Native American Casinos can pop up in settings that have nothing to do with lost winnings. In Lewis v. Clarke, a lawsuit against Mohegan Sun, (another successful casino also located on a Native American reservation in Connecticut) the plaintiffs were rear-ended by a car driven by a Mohegan Sun employee and suffered significant injuries. At the time of the accident, the employee was driving guests of the casino to their hotel and thus was acting within the scope of his employment. The defendant argued that as an employee of the casino, the tribe’s sovereign immunity also protected him from the liability in Connecticut state court. The U.S. Supreme Court disagreed and refused to extend sovereign immunity protections to individual tribal employees.

The fact that both 2017 cases -- Sun and Lewis -- focused on tribal immunity shows that the issue is alive and well. Given both history and current affairs, the institution of sovereign immunity as it relates to Native American tribes makes sense. It is a powerful statement about those tribes and their important role in the larger community. But when it comes to casino liability, it does sometimes feel like a loophole. If we’ve learned anything from all of our Hollywood casino movies, it’s that you’ve got to be careful when you step on that gaming floor. But you might just need to be a little more careful at places like Foxwoods, because it’s possible the court system won’t have your back.

-Ellis & Acton

"On Me Fait Tort!"

January 05, 2018 by Samantha Bates in Theories of Torts

When you think of the English Channel, you might conjure up an image of a person trying to swim across it, or perhaps the “Chunnel” comes to mind. Less well-known, but perhaps more interesting, are the Channel Islands. Although physically much closer to France, the Channel Islands combine English culture with their own brand of independence, as the islands are a Crown Dependency of the United Kingdom but retain a tremendous amount of sovereignty (for example, they neither are nor ever were a part of the EU). The names of the islands are even less familiar to most people than their existence: Jersey, Guernsey, Alderney, and Sark being the largest. Jersey and Guernsey may be best known for what’s been named after them: the former is the namesake of the Garden State and the latter has lent its name to a type of cow. But almost nobody has ever heard of Alderney or Sark. And that’s a shame, because Sark is fascinating.

The one thing you really need to know about Sark to appreciate its special place in the world is that it operated as a legitimate, medieval-style feudal state until 2008. It was lorded over not by a lord but by “the Seigneur,” who, until 2008, lived with fun privileges like being the only person on the island allowed to own pigeons or an unspayed dog. The Seigneur presided over a population of 600, but among them only 40 were allowed to own land. These 40 landholders, called Tenants, comprised most of the government’s formerly unelected parliament. Until 1999, women were not allowed to inherit if they had a brother. And before 2002, divorce was only allowed if one of the parties left the island for a year. Sark! You can’t make it up.

Among the totally unusual customs and traditions in Sark (as well as in the other Channel Islands) is something called the Clameur de Haro, which can be invoked when a person believes his (and we do mean “his”!) property rights have been violated by another citizen by reciting the Lord’s Prayer in French and crying out: "Haro! Haro! Haro! A l'aide mon Prince! On me fait tort!" which roughly translates to, "Hear-ye! Hear-ye! Hear-ye! Come to my aid, my Prince, I am being wronged by a tortious act.” According to tradition, the wronged party must recite the clameur while kneeling on the “threatened property,... bareheaded, hands clasped, in the presence of two witnesses and [within] the hearing of the alleged wrongdoer.”

“Haro! Haro! Haro! A l’aide mon Prince! On me fait tort!”

Once the wronged party invokes the Clameur de Haro, all actions against the person and their property must cease until the matter is heard by the courts. This practice originates from Norman law as the Channel Islands were once part of the Duchy de Normandy, and the last time the Clameur was invoked in Sark was in 1970 when one Sarkese was building a wall on another Sarkese’s property (presumably these were two of the 40 designated tenants).

There is something special about the Clameur de Haro. It is a way of not just seeking compensation for wrongs, but actually proclaiming them in front of the world, which has its own intrinsic value. In a way, a lawsuit is nothing more than a lengthy and complicated version of the Clameur de Haro because is also is a statement that says, “I’ve been wronged.” And many people sue one another not for money, but for the opportunity to “have their day in court” and face the person who has injured them.

As we continue our tour of Theories of Torts, it is crucial to understand that a lawsuit is, in and of itself, an end for many people. To this point we’ve discussed how tort law can make the injured whole and we’ve talked about how it can change behavior. This article is about something even less tangible. It is about dignity. Broadly speaking this is sometimes called Civil Recourse Theory, because it emphasizes that when a person is wronged, they can and should have a recourse to address the wrongdoer.

From our cases, we might see Werth v. Taylor as an example of a plaintiff pursuing a lawsuit in order to state that they were wronged. The plaintiff in Werth v. Taylor was a Jehovah’s Witness who underwent a dilation and curettage (D&C) procedure, a typically safe and uncomplicated operation, after the birth of her twins. Due to the plaintiff’s religious beliefs, she did not want a blood transfusion should it be necessary because Jehovah’s Witnesses believe that receiving blood transfusions is a sin. Unfortunately, the D&C did not go as planned and the mother started seriously bleeding. Normally, doctors could control this with a blood transfusion. And although the mother informed her doctors that she did not want a blood transfusion, they did it anyway to save her life.

This is a spiritual wound of the highest order. If we are to credit a Jehovah’s Witness’ faith, one might interpret the doctors’ decision to perform the blood transfusion against the plaintiff’s wishes as a nearly mortal injury to her soul. Clearly, no amount of money will ever make up for that type of injury. This case is unusual in that there is no cause of action for wounding one’s soul (perhaps NIED?). Instead, the plaintiff sued for battery, but we might as well think of this as a type of “wrongful life” case. And while we don’t know for sure, we have every reason to believe that Werth v. Taylor falls into the category of civil recourse cases. The plaintiff was wronged in a way that could never be recompensed in her eyes. However, she still wanted her day in court even though no amount of damages could ever “make her whole.”

A close cousin of Civil Recourse Theory is C orrective Justice Theory, which states that just as the plaintiff needs their day in court to state their grievances, so too does the defendant in order to accept responsibility for the harm inflicted.

Again, looking to our cases we might find an example of Corrective Justice in Alcorn v. Mitchell. In this case from 1872, the defendant was fined a $1,000 for spitting in the face of the plaintiff on the courthouse steps. That’s a lot of money for one expectoration! According to one of the internet’s mildly-misleading inflation calculators, that’s $18,341 (the cost of a Subaru Impreza!) in today’s world. The defendant claimed that $1,000 was an excessive fine, but the judge strongly disagreed, using a number of florid phrases to talk about the “malignant” act that the defendant committed:

“The act in question was one of the greatest indignity, highly provocative of retaliation by force, and the law, as far as it may, should afford substantial protection against such outrages, in the way of liberal damages, that the public tranquillity may be preserved.”

“[T]hat single dollar amount is of immeasurable value in the scheme of things...It says no means no for all women.”

— Taylor Swift's Attorney

He went on to describe the courtroom as a “temple of justice” that was disrespected by the defendant’s act. In this instance, the judgment seems to be not for the plaintiff as much as against the defendant. It’s a good example of Corrective Justice Theory, as Alcorn was not so much about compensating a loss as it was about punishing the defendant to a degree that was commensurate with the indecency of his act.

A modern day example of a Civil Recourse and Corrective Justice case might be Taylor Swift’s sexual harassment suit against former radio DJ David Mueller. Swift claimed that Mueller sexually harassed her during a photo shoot and saw her day in court as an opportunity to stand up for women’s rights in the workplace. Rather than demand significant damages, she asked for only a dollar because she saw the lawsuit as a symbolic gesture of support for other women. During closing arguments, Taylor Swift’s lawyer explained, "that single dollar amount is of immeasurable value in the scheme of things...It says no means no for all women."

From the Clameur de Haro to the Taylor Swift action, some cases seem to be more about honor and dignity than about collecting money damages. Because while money is fleeting, respect and self-respect have an eternal quality. It would be naive to think that this doesn’t play a massive role in most tort actions, and it’s yet another example of how tort law is about so much more than making the injured whole.

-Ellis & Acton

The Interior Designer Did It!

December 20, 2017 by Samantha Bates in Everyday Torts

Imagine, if you will, a tea party. Not a Boston Tea Party, or a political Tea Party, but a good old-fashioned, civilized tea party. It is a meeting of friends and unstated enemies over tea, crumpets, and jam. The scene is a stately manor in the hills of Northumberland. In attendance are all the ladies of high society, dressed in their Sunday best despite it being Wednesday. Yes, this is a party of the landed gentry, a place to gossip, a place judge, and a place to stab one another in the back. The room is immaculate and the walls are covered with lustrous green wallpaper and gilded gold trim. Servants wait in attendance to answer the ladies’ every need, overseen by their leader, the butler. He stands along the green wall like a statue, observing but not listening to the scandals of the day.

Unfortunately, the butler does not have many days left to observe, because he is being poisoned. And he will die a very unpleasant death soon enough. The local doctor will rule the cause of death as an unusually bad case of gastroenteritis. As I said, an unpleasant death. And so the question we must all ask is, who killed the butler? Did he hear something he wasn’t supposed to hear? Were there upstairs/downstairs issues at play? Or was there perhaps something amiss with his staff? Later analysis will reveal that the butler did not have a contagious gastroenteritis but instead was the victim of a long-term poisoning by arsenic. Neither the ladies of the room nor the house staff will be implicated, except perhaps for the interior designer, because it turns out that the butler was poisoned by the green wallpaper that rubbed against his clothes hour after hour, day after day. How on earth could the wallpaper be the culprit, you ask? Because the dye used to color that wallpaper green was infused with arsenic.

This may sound more fantastical than the notion that one of the guests poisoned the butler, but this was a real scenario. Green wallpaper in the 19th century was, in fact, largely made with arsenic. The off-gassing of that arsenic literally and actually killed people. And it was not just green wallpaper that arsenically poisoned people in the 19th century, as the heavy metal was used in a wide variety of everyday products. Products such as fabric, makeup, cardboard boxes, candles, oil paint, venetian blinds, soap, etc etc etc (a list from the Poisoner’s Handbook, by Deborah Bloom!) all contained arsenic.

It wasn't that the Victorians thought that arsenic was harmless, as evidenced by this cartoon from the humor publication Punch. But producers of arsenical green dyes insisted, convincingly to many, that the product was safe if not ingested. William Morris, the namesake of arsenical wallpaper company Morris & Co, proclaimed that any allegation that arsenical products were dangerous was just rampant scaremongering. As he wrote to a friend in 1885, the “doctors were bitten as people were bitten by the witch fever.”

The history of business is littered with quotes just like this, from executives and others with a financial stake in something secretly dangerous. And statements like this surely have contributed to countless deaths and other maladies. We have always been surrounded by things that will do us ill, things that we would surely do without if we only knew of the dangers that lurk within. Torts, and products liability law in particular, can play a pivotal role in exposing the true nature of that which we think of as safe.

Perhaps the best-known example of this is asbestos. Asbestos is an unusual product, a fibrous mineral that was widely used as a flame retardant, insulator, and other building material for a very long time. If you’ve watched television in the middle of a weekday, you’ve probably heard ads from questionable law firms pointing out that asbestos exposure causes mesothelioma, a very unpleasant and deadly cancer. And just like with arsenical wallpaper, asbestos producers proclaimed that any evidence that their product was dangerous was flawed.

I actually once had the good fortune of visiting the town Asbestos, Quebec, home of one of the world’s largest asbestos mines. It was a bizarre place where it felt almost like the inhabitants had never heard about the asbestos/cancer link. The town was so out of sync, in fact, that Comedy Central’s the Daily Show once did a segment interviewing/mocking the mayor as he tried to defend the town’s namesake product. It turns out that despite being largely banned in Canada, the town’s mine was exporting asbestos to other countries, like India, that still allow the use of asbestos in building projects. Thankfully a shift in power between political parties in 2012 caused the Quebec government to cancel a $58 million loan to revive the asbestos industry and instead pledged to help the mining community diversify its economy. It is amazing that, despite our now-longstanding knowledge that asbestos is deadly, the mine in Quebec only closed in the last few years.

Both the asbestos and arsenical wallpaper examples make me seriously question what products that are common in our 2017 lives will someday be revealed to be horribly dangerous. It is inevitable, isn’t it? Every once in awhile we hear unverifiable concerns about the dangers of cell phones, but I suspect the toxin of our lives will be something we never saw coming. Maybe it’s in the water we drink, or the bottles we drink it from. Maybe it’s in our mass-produced clothing, or in an additive in all of our toothpaste. The likelihood is that there are almost certainly MANY things that we see as safe that are in fact dangerous. And just like arsenical wallpaper and asbestos, the manufacturers and distributors of those goods will likely have advanced warning about the threats they are peddling. But the threats to their bottom line will likely keep it under wraps until some bold plaintiff will bring a tort suit and unravel the whole thing.

-Ellis and Acton

The Bags Won't Label Themselves...

December 20, 2017 by Samantha Bates in Theories of Torts

Matriculating in law school is not all sunshine and roses. The first year has a well-deserved reputation for being brutal, a cross between boot camp and the Hunger Games. Anecdote and evidence both suggest that the process somehow turns well-adjusted high achievers into a crowded field of anxious paper-pushers. Debts pile up. And yet so many people choose to partake in law school for so many reasons. Students sign up for pride, for achievement, and for the thrill of the [Paper] Chase. More than a few sign up in order to have a positive impact on the world. And many look forward to an ancillary benefit that will come regardless of whether they want it: the respect of their family and friends. Like it or not, our world is complicated, and lawyers know how it works better than most. And so there are exceptionally few lawyers (and even law students) who don’t regularly have friends and family ask “legal” questions.

There’s a whole breed of these “family lawyer” questions that starts with “is it legal to…?” Google autocomplete suggests people want to know “is it legal to record a conversation?” (editor’s note: depends on the state, but usually no). “Is it legal to smoke weed in Boston?” (yes, unless you’re driving), and my favorite “is it legal to own a fox?” (nope!). All three of these questions concern topics for which there are statutes, but often family “is it legal” questions involve topics a little too unusual for there to be a specific statute. And in those circumstances we have to look to torts and the common law. It’s a bit unwieldy, because tort law deals with civil rights of action between citizens rather than criminal actions by the state, but a civil precedent is still a binding judicial decree that a certain activity is considered outside the bounds of acceptable behavior.

The beauty of our common-law torts system is that it is flexible. Judges and juries can take precedents and apply them to novel fact patterns that have never before been considered. In a way, a tort lawsuit can be an end-around the legislative process. It is a way that even a single ordinary citizen can change what is or isn’t “legal.”

This is a very long-winded way of bringing us to our next theory of torts, Norm Setting. In our last theory of torts article we said that while many tort cases are about making the injured whole, there are still many other cases in which we observe other motivations at play. And very high on that list of motivations is the desire to change the behavior of a particular party or class of actors. Ralph Nader’s amazing American Tort Law Museum in Connecticut has a number of exhibits dedicated to just these kinds of cases.

The classic example is Grimshaw v. Ford Motor Company, in which the plaintiff sued Ford regarding the disastrously-designed Ford Pinto. Ford had rushed the Pinto to market despite knowing that it had a tendency to explode if its gas tank was punctured in a collision. The 1978 jury awarded $2.5 million in damages and an additional $125 million in punitive damages. According to the Tort Law Museum,

“The Grimshaw case sent a message to automakers that if they chose to ignore safety considerations, it would be at their own financial peril. This case helped push the automobile industry away from 'safety doesn’t sell' and toward emphasizing new safety features in their marketing.”

From our own files, we have the case Emery vs. Federated Foods. As we discussed in a different article, in Emery, a three year old boy choked on a marshmallow and was left with severe, irreparable brain damage. When teaching this case we discuss whether a manufacturer has a duty to warn about dangerous products. In this instance, the court found that the defendant should have printed warnings about the dangers of marshmallows for children on their product bags. Although we haven’t been able to find direct proof of a link between the Emery decision and the current practice of marshmallow manufacturers putting warning labels on their products, there’s a very good chance that there is a causal connection. If so, it’s an excellent example of tort law changing behavior, in this case the behavior of manufacturers adding warnings to marshmallow bags.

But warnings don’t matter if no one heeds them. While we want tort law to influence the behavior of manufacturers, we also want it to ultimately change the behavior of end users. We want manufacturers to make their products safer and to alert us to inherent dangers, but we also want end users to change how they handle the goods. A helpful example here might be plastic bags and children. Parents far and wide now know that plastic bags are little death traps for a small child because the thin plastic easily sticks to their mouth and nose, causing them to suffocate. But plastic bags aren’t that old (in the grand scheme of things), and the nearly-ubiquitous warnings on the bags themselves have undoubtedly played a role in educating parents.

According to the Consumer Products Safety Commission, around 25 children still die every year from bag asphyxiations. But that number would certainly be higher without the warnings. Currently only five states require warnings: California, Massachusetts, Rhode Island, New York, and Virginia. But a quick survey of bags from friends and relatives indicates that even outside of these states, bags have warnings without there being a statute in place. For example, a bag from New Hampshire we looked at had the following warning:

"WARNING: To avoid danger of suffocation, keep this plastic bag away from babies and children. Do not use this bag in cribs, beds, carriages or play pens. This bag is not a toy."

If there is no statute, tort law has played a role in the presence of that warning. It has established a norm among bag manufacturers and/or retail stores that says we need to have warnings on plastic bags. These companies know that if they don’t have the warning and something bad happens, they likely will be found to be negligent in the eyes of a court, even if there is no statutory requirement. And we might then say to our friends and relatives that handing out plastic bags without such a warning is “illegal.”

Torts is a direct way that citizens can change the law. It is a way we can make something that would otherwise be legal illegal. In the last article that we wrote about theories of torts, we talked about why you might not sue even when you have suffered harm. This article demonstrates that you might sue for an entirely different reason: because you want to change the law. And in those cases, being “made whole” may have nothing to do with it at all.

-Ellis

Why We [Don't] Sue

December 18, 2017 by Samantha Bates in Theories of Torts

Several years ago I was watching a basketball game when I noticed a headache coming on. The headache got worse and worse and I decided to throw some painkillers at it, but after about 12 hours I could barely stand. So I made my annual trip to the emergency room and after some tests was told, “congratulations, you’ve got meningitis.” Well, maybe not “congratulations.” The next several months would be a typhoon of maladies, all stemming from my meningitis (itself a product of my Multiple Sclerosis treatments). I will leave out all the gory details and skip ahead to my visit to the infectious disease department several months later to address yet another health complication indirectly caused by my meningitis.

The doctor prescribed me ciprofloxacin, aka cipro. I went to the pharmacy, picked up the medicine, and took my first pill. That night I took another, and then another the following morning (as directed). And then, as I was walking to the kitchen, my left achilles tendon tore. And before I knew it my OTHER achilles tore as well. I later discovered through my own research that there is an FDA "black box warning" against mixing floroquinolone antibiotics like cipro and the steroids I had also been prescribed, because it can cause acute tendonopathy. Basically the cipro attacked my tendons and the steroids prevented my body from fixing it. I spent the next several months in a wheelchair, which was an incredibly good experience because it helped me empathize with my fellow man. But it was not so great otherwise.

More than a few people suggested that I sue the doctor or hospital for prescribing me this antibiotic given the black box warning-level interaction with another drug they had prescribed me. It’s pretty clear to me that there was some kind of negligence and I suffered a lot, in a way that has greatly impacted my life. But actually sending a demand letter never crossed my mind.

If you ask a law student, professor, or lawyer “what is the purpose of torts?,” there’s a really good chance they will say “to make a person injured by another whole.” But it’s got to be more than that. I was very injured, and I know exactly why. My doctor had a duty, he seems to have breached it, and that breach caused severe harm. Open and shut, right? So if this were just about making me whole, I should have just sent that letter and made it happen.

But it turns out that torts does so much more than make the injured whole. This article is the first in a series that will discuss the purpose and reality of tort law on a theoretical level. Today we will talk about torts’ most famous purpose, its role in remediating wrongs and making the injured whole. Subsequent articles in our Theories of Torts series will focus on the social utility, norm setting, and civil recourse functions of tort law. Our series will end with a look at New Zealand, whose exceptionally different compensation system will help us understand both the strengths and weaknesses of the American torts system.

As I said, today we’ll start with a look at how the torts system is supposed to make the injured whole. The concept is pretty straightforward: if an incident causes a loss to an innocent victim, that victim should not be forced to bear the cost of the loss. Instead, the loss should be recouped from the perpetrator. If a drunk driver swerves off the street and careens into your living room, the drunk driver should have to pay to replace your ruined sofa. Despite the power of the alternative theories of torts that we will talk about later in this series, this remediative theory of torts is the most powerful and is the basis of a huge portion of tort claims.

There are many, many flaws with this theory of torts, but we will only focus on two here. The first is that so many losses in life are not easily compensable. What would have been a fair payout to make up for my time in the wheelchair? Sure, the wheelchair itself was quite expensive. But my loss was far greater than the cost of the wheelchair, and it’s really hard for me to give you a number. My case would have been relatively easy, but there are many cases that ask something much more difficult, such as “how much is a life worth?” And once you start down that path, the law can start to look very ugly. In America, courts regularly have to determine the worth of a life or even the worth of a child’s life. They will consider things like life expectancy and earning potential in order to assign a monetary value to a life, and then subtract things like living expenses from that value. It is an icy-cold, chilling calculus, and exactly the kind of thing that makes laymen uncomfortable with the legal profession.

But it’s the best we can do. In McDougald v. Garber Judge Sol Wachtler said:

“An economic loss can be compensated in kind by an economic gain; but recovery for noneconomic losses such as pain and suffering and loss of enjoyme[nt] of life rests on ‘the legal fiction that money damages can compensate for a victim's injury’...We accept this fiction, knowing that although money will neither ease the pain nor restore the victim's abilities, this device is as close as the law can come in its effort to right the wrong. We have no hope of evaluating what has been lost, but a monetary award may provide a measure of solace.”

The fact that so many tort claims involve noneconomic incidents does serious damage to the argument that tort is about making the injured whole. Another problem was the basis of why I chose not to file a suit against my doctor and hospital when I was injured: lawsuits are difficult, creating perhaps artificially hostile conditions between otherwise agreeable people. As a former litigator, I know very well the social cost of participating in a lawsuit, both as a plaintiff and as defense counsel. In my case, I was coming off of a horrible year that was filled with many bleak days. Initiating a lawsuit was the last thing I wanted to do. And while to me it seemed clear that my injury could and should have been prevented by my doctor, I didn’t personally blame him. He was trying the best he could and made a mistake. Even if I had the emotional wherewithal, I did not feel comfortable going to war with my doctor.

So while the notion that tort law is about making the injured whole is probably the most accurate single view of this huge corner of our civil justice system, it can’t explain away everything that does or does not happen following an injury. Money damages are often completely inadequate to repair a wrong, and the process has transaction costs that often dissuade victims from attempting to remediate their loss.

-Ellis

*Citizen Patrolling Local Mall Exterior*

So You Say You Want to be a Vigilante...

December 10, 2017 by Samantha Bates in Obscure Torts

We’ve all heard the phrase “legal fiction,” but today I’d like to talk about something else: a legal fantasy. A legal fantasy is something like Bigfoot or the Loch Ness Monster--everyone has heard of it, but [almost] nobody thinks it’s actually real. And the legal fantasy I’m thinking about right now is citizen’s arrest. Though it exists elsewhere, citizen’s arrest feels so quintessentially American. There’s an evildoer in the street doing his evil, and in walks a brave citizen, a John Wayne-type. “Stop,” he says. “I’m making a citizen’s arrest.” And then our quintessentially American hero hands over the evildoer to the local constabulary and peace is restored to the town.

We all know that story, and we all think of it as just that, a story. Yet as we learned with the discovery of the ancient city of Troy in 1870, the thing about fantasies is that sometimes they turn out to be real. And citizen’s arrests are, in fact, real. They happen all the time, in every state and nearly every city in America. Just not in the way people think.

Let’s take a moment to understand what a citizen’s arrest really is. The concept likely dates back to medieval times, when governments were far smaller than today, employing far fewer agents like sheriffs and police officers. And in that setting, community order required that ordinary citizens would, from time to time, be called upon to apprehend a criminal. That detention is key to a citizen’s arrest, the word “arrest” being related to the French word “arrête,” which means “stop!” So it is an arrest, or a detention of a person, committed by a citizen. In this case we mean a private citizen as opposed to a public official, not citizen in the sense of legal immigration status. There’s no doubt that a person with a green card can conduct a citizen’s arrest.

To dig a bit further, let’s look at California’s Citizen’s Arrest statute, CA Penal Code 837:

"a private person may arrest another: (1) For a public offense committed or attempted in his presence. (2) When the person arrested has committed a felony, although not in his presence. (3) When a felony has been in fact committed, and he has reasonable cause for believing the person arrested to have committed it."

So a private person can arrest somebody that has committed a felony, likely in her presence. But private citizens are not trained as law enforcement officers, so what if they get something wrong? What if the person did not commit the felony? What if there was a crime but it was just a misdemeanor? In these circumstances the person conducting the false imprisonment might be in huge trouble, and this is where we get into torts. Because a false citizen’s arrest looks and sounds an awful lot like a false imprisonment. A wrongly-accused person would likely have a cause-of-action against a mistaken would-be hero that conducts such an arrest. And if physical force is necessary to detain the person, assault and battery charges may also apply. Beyond tort liability, the citizen’s arrestor might also face criminal charges such as kidnapping. Perhaps this is why we relegate the concept to legal fantasy status.

But we wanted to know if that legal fantasy status is warranted. So we called the Cambridge Police Department to ask them about the particulars of citizen’s arrests. They did not know much, but they did point us to the one place where citizen’s arrests happen every single day: the shopping mall. Because nearly every day at the mall, somebody is detained for shoplifting. These detentions are usually made by mall security, people dressed an awful lot like police officers but operating with the legal authority of the private citizens described above. Shopping mall citizen’s arrests are distinct from the California statutory definition of citizen’s arrest in that the underlying crimes are often misdemeanors rather than felonies. In this instance, the mall security relies on an exception called the shopkeeper’s privilege.

The Massachusetts Shopkeeper’s Privilege statute says:

“In an action for false arrest or false imprisonment brought by any person by reason of having been detained for questioning on or in the immediate vicinity of the premises of a merchant or an innkeeper, if such person was detained in a reasonable manner and for not more than a reasonable length of time by a person authorized to make arrests or by the merchant or innkeeper or his agent or servant authorized for such purpose and if there were reasonable grounds to believe that the person...was committing or attempting to commit larceny of goods for sale...it shall be a defense to such action”

That is, a person making a citizen’s arrest of a shoplifter has an affirmative defense to a tort claim of false imprisonment. So citizen’s arrests are far more common than most people realize, even if they are almost all conducted by still-trained professionals (security guards) and a fairly-narrow class of untrained citizens (shopkeepers). There are likely other groups of people that conduct citizen’s arrests, such as bounty hunters. But the bulk of citizen’s arrests likely come in the context of shoplifting.

It is fascinating to think that this legal fantasy turns out to be a legal reality, although perhaps the increasing prevalence of online shopping and rapid demise of malls will spell the end of citizen’s arrest as we [don’t] know it. And it’s amazing to know that we are all truly empowered by our government to dutifully execute an arrest if presented with the right situation. But even though we have the right, it’s probably best to leave crime fighting to the professionals. If you don’t and you’re wrong, you just might find yourself on the wrong side of a judgement for false imprisonment.

-Ellis & Acton

Anatomy of a Case: Harper v. Herman (Part II)

December 07, 2017 by Samantha Bates in Case Background

NB: In this article we will link to PDFs of all of the relevant legal documents we discuss. Though these documents are part of the public record, law students rarely encounter documents like them before they become practicing attorneys.

In Part I, we asked you, the readers, to serve as the jury for Harper v. Herman. To this point, you have voted largely in favor of boat captain Herman. Those who have commented have expressed sincerity towards Harper, but felt that to some degree what he did was patently risky and that Herman shouldn’t have to pay for those mistakes. It’s a particularly interesting exercise for us because in the real Harper v. Herman case, there was no jury. In fact, in nearly seven years of litigation, nobody--no jury, no judge--assessed the credibility of Theodore Herman. Nobody ever took the measure of Jeffrey Harper.

For those of you who aren’t practicing lawyers, that may come as a surprise, but it’s not at all uncommon. Throughout this Part II of the Harper v. Herman story we’ll give you a blow-by-blow account of the legal battle following Jeff Harper’s fated plunge into Lake Minnetonka. Hopefully it will not only shed light on this particular case but also our civil legal system.

The accident from Harper v. Herman occurred on August 9, 1986 but it wasn’t until July 24, 1990 that the case was actually filed. We don’t know why the delay was so long, but the suit was filed well within Minnesota’s six year statute of limitations for such accidents. Harper and Herman’s lawyers spent the next 14 months battling through various pre-trial stages, such as a state-mandated arbitration hearing. But on September 18, 1991, defendant Herman’s lawyers took the fairly major step of filing a motion for summary judgment.

When a court makes a summary judgment, it determines the fate of a case without a trial. It is only appropriate where there are no issues of material fact in the case--that is, where, even if all the facts proposed by one party were true, the other party would still win. In essence, Herman was saying to the court, “even if Harper’s version of the story is 100% correct, the law still precludes him from recovery.”

At its heart, Harper vs. Herman is a case about negligence. Negligence is perhaps the biggest concept in torts, and to explain it would require something like a semester, so I will try to summarize it in the most succinct possible way. A defendant has acted with negligence if they owed a duty to the plaintiff, they breached that duty, the plaintiff was harmed, and the breach caused that harm. Duty, breach, cause, harm. Four words that will be familiar to any law student.

Herman's Memorandum in Support for his Motion for Summary Judgment

In his summary judgment papers, Herman focused primarily on the issue of duty, specifically that he owed no duty to protect Harper against injuries related to diving off of his boat. He argued that he owed only a ship captain’s duty, which is generally limited to the “safe operation of a vessel.” And even if Herman owed a duty to his passengers to take them to a safe place to swim (given his statements), he did not owe a duty to his passengers regarding diving. Herman also made a defense that Harper had assumed his own risk by engaging in an inherently dangerous activity. This argument in particular seems to have resonated with our readers in our survey last week.

Harper countered that focusing only on the safe operation of a boat is too narrow. Herman was not only a boat captain but also a social host (although he did not use that term). Further, Herman owed a heightened duty because, according to his own deposition, he volunteered to take his passengers to a good place to swim and was aware of certain dangers at his chosen location that would be unapparent to a casual observer--specifically that the murky water was extremely shallow. As for assumption of risk, Harper argued that he could not assume a risk because the risk was not apparent due to that same unusually shallow and murky water.

When a party files for summary judgment, the court can either issue a judgment or declare that the case must go to trial. In this case, in addition to the papers we’ve linked to above, there was also a hearing during which the attorneys for each side made their best arguments to the court for why summary judgment should or should not be granted. Ultimately the trial judge, Delila F. Pierce, agreed with Herman and issued a summary judgment in his favor. In particular she agreed with his argument that a duty to protect swimmers is not the same as a duty to protect divers:

“Here, Herman, a social host, informed his guests that he knew of a good swimming area. Such a statement may have created a duty to warn his guests of unobservable swimming hazards. Herman, however, did not inform his guests that he knew of a good place for diving. Hence, he had no duty to warn Plaintiff of any dangerous diving conditions.” Order for Summary Judgment and Memorandum, File No. PI 90-13055, MN 4th Judicial District, Oct. 23, 1991.

This is a fascinating argument, and one that is completely absent from the Supreme Court opinion students read today. At its core appears to be a disagreement as to whether the term “swimming” encompasses the activity “diving.” To Harper they are one and the same. To Herman, one is a normal activity and the other is inherently dangerous.

Knowing when to appeal and when to pack up and go home is an extremely important part of an attorney’s job. Appeals cost money and take time. And in a personal injury case like this, that time and money is almost always going to come from the plaintiff’s lawyer because they tend to operate on a contingency fee basis. That is, the plaintiff pays nothing for the lawyer’s time or materials, and in exchange the lawyer claims 1/3rd of any award or settlement. The firm representing Harper only works on a contingency fee basis, so they took a business risk by filing an appeal to State of Minnesota Court of Appeals.

The specifics of an a judicial structure vary from jurisdiction to jurisdiction, but the model in Minnesota is fairly representative. There is a trial court level at which witnesses are examined and cross examined, facts are found, etc. This is what you are probably used to seeing on television and in movies. Law and Order, a Civil Action, and of course my favorite, My Cousin Vinny. Trial courts often have juries and opening arguments and closing arguments, although here we skipped all that when the trial judge granted Herman’s motion for summary judgment.

Next up is the Court of Appeals, where the parties may go to dispute whether the trial court made a mistake of law, misapplied the law, or made a process error (e.g. improperly allowed something into evidence). There are various other reasons to appeal, including if the finder of fact made an egregious error as to the facts of a case, but they are less common and not applicable here. In Minnesota, as in most jurisdictions, any trial court case can be appealed to the Court of Appeals and the case will be reviewed by a panel of three judges.

Here, Harper argued that Judge Pierce erred in finding that a boat captain and social host in Herman’s situation owed no duty to a diver in Harper’s situation. Unsurprisingly, Herman countered that Pierce made the right call. In an opinion written by Roland C. Amundson, the Appeals Panel agreed this time with Harper. Specifically, it said that:

“Respondent [Herman] owed a duty of care to warn appellant [Harper] not to dive from the boat because he knew the water was dangerously shallow. Respondent voluntarily assumed a duty to exercise reasonable care when he allowed appellant to embark on his boat.” Harper v. Herman, C0-92-196, Minn. Ct. App.(1992).

In Minnesota, the ruling issued by the Court of Appeals is almost always final, as only around 100 of the 2000+ cases it decides every year are granted state Supreme Court review. Like its more famous cousin, the United States Supreme Court, appeal to the Supreme Court of Minnesota is not automatic. Appellants who wish further review by the Supreme Court must file a Petition for Review of Decision of Court of Appeals, and only around one in eight petitions are granted.

Minnesota's Historic Supreme Court Chamber

If the Supreme Court had not granted review of Harper v. Herman, we almost certainly would not be talking about it now. Instead, the case would have been remanded to the trial court to go ahead with the trial that Jeff Harper wanted all along. He STILL may have lost based on the facts. For example, we know that in sworn depositions, Harper claimed that the boat was 200 feet from shore while Herman believed the distance was only 30-40 feet. A jury could very well have found in favor of Herman if it believed his rendition of the facts even though Harper had won at the appeals level.

But we will never know what a jury would have found, because here, the Supreme Court did choose this case for review. And in the end the seven-judge state Supreme Court sided with Herman, saying that:

“Superior knowledge of a dangerous condition by itself, in the absence of a duty to provide protection, is insufficient to establish liability in negligence. Thus, Herman’s knowledge that the water was ‘dangerously shallow’ without more does not create liability...In this case, Harper was not deprived of opportunities to protect himself, and Herman was not expected to provide protection.” Harper v. Herman, 499 N.W.2d 472 (1993).

So for those keeping score at home, Herman won. Almost seven years after the accident, and four years after the case was filed, the parties would no longer be in litigation. Harper would collect nothing from Herman despite his severe injuries. Herman, for his troubles, undoubtedly paid a significant amount of money to his attorneys to defend him over all the years of litigation. By the nature of the activity, defense attorneys do not operate on a contingency fee basis.

We don’t really know what happened to Jeff Harper and Theodore Herman. Today, Harper would be a 50-something quadriplegic person, while Herman would be in his 90s. It’s been over 30 years since both of their lives were turned upside-down by the activities on a 26 foot Thunderbird Motorboat. But as evident from our summary above, their story did not end when Jeff Harper hit the lakebed. Instead, Harper and Herman were tied together in the aftermath through years of litigation. And because their dispute was reviewed by the Minnesota Supreme Court, in a way they are tied together forever.

When we read cases in law school, we rarely think about all that came before the decision we read. Students don’t know about arguments that won and lost at the stages below. For example, the Minnesota State Supreme Court never mentioned the distinction between swimming and diving in its opinion, even though that was the basis for Herman’s initial win. Students aren’t given the opportunity to consider why a losing party appealed, or even how the litigation itself impacted the parties or their attorneys. In researching this article, we reached out to the attorney for Jeffrey Harper, who is still in practice (Herman’s attorney has since retired). She did not respond to our inquiry. Given the battle she fought on behalf of her client and lost, one can only wonder how much that loss hurts to this day. Behind each case there is a story. There are winners and losers, but nearly everybody is impacted in some crucial and important way.

-Ellis & Acton

Now You Seesaw, Now You Don't.

December 05, 2017 by Samantha Bates in Everyday Torts

Very few objects say “tort law” more than the municipal yellow warning sign. Hidden driveway. Deaf children. Icy bridge. These words are familiar to drivers, but perhaps not as much as the monochromatic illustrations that we associate with them. Our yellow warning signs are iconic and change little over time, but in one particular case, they show an activity that has been rendered obsolete due to tort law. I’m speaking of the sign that warns of a playground ahead, a sign that generally shows two children on a seesaw.

The seesaw used to be a playground staple, a board evenly balanced on a fulcrum that allows two children to alternate soaring and crashing to the ground. It’s remarkable that I feel the need to explain what a seesaw is, but the fact is that seesaws have utterly vanished from the American landscape. By some accounts, between 2000 and 2004, the number of seesaws in American playgrounds fell by 80%. That is an extraordinary decline for something so associated with playgrounds that the United States Department of Transportation still mandates that playground warning signs feature a seesaw.

The decline almost certainly has to do with questions about the safety of seesaws. Those of us old enough to have used them as children all know the uncertain feeling of trying to get off a seesaw. And perhaps when we used them, we were drawn to the slight hint of danger. And surely there were plenty of seesaw injuries. But there are plenty of very dangerous things on a playground, like monkey bars and swings, and while they have also started to disappear, it hasn’t been to the same extent as the seesaw.

The year 1981 seems to represent the beginning of the end of the seesaw and other traditional playground equipment. In that year, the U.S. Consumer Product Safety Commission published its first version of the Public Playground Safety Handbook in response to rising awareness of serious playground-related injuries. While not a series of mandates, the handbook created a de facto national standard for playground equipment safety, arming plaintiffs with strong evidence against municipalities that did not conform to these standards.

Plenty of folks will see this decline as a sign of America’s infatuation with litigation. We have seen a similar decline, for example, in municipal snow sledding because towns are afraid of being sued for injuries. For example, the city of Boone, Iowa paid $12 million in 2011 to the victim of a sledding accident. For every town that is successfully sued for millions of dollars for a sledding injury, dozens or hundreds likely decide that it isn’t worth the legal risk. But we probably lose something when we take these experiences away from children. For example, seesaws reportedly can significantly improve a child’s balance and strength. Perhaps more importantly, the seesaw is an extraordinarily collaborative toy. It literally will not work without the equal participation of two children.

And I think that collaboration is a vitally important lesson, so I recently decided to build a seesaw for my own kids. Of course, right off the bat one of them fell off. But he got right back up and they figured out how to make it work. Given that towns everywhere have removed seesaws, am I negligent in building one for my children? Probably not, given the fairly wide latitude tort law allows parents to raise their children as they see fit. But the story might be different if another child were to come to my house and use the seesaw, either as a guest or as a trespasser. In fact, the seesaw in my backyard might even constitute an attractive nuisance, drawing children towards this theoretically dangerous item.

It’s a risk I’m willing to take, because I really do think that the benefits of cooperation and balance are worth it. And I think it’s not a bad thing for a kid to learn to fall and get up.

-Ellis

Anatomy of a Case: Harper v. Herman (Part I)

November 29, 2017 by Samantha Bates in Case Background

I often tell students that the cases we read are, by definition, outliers. While they may reflect ordinary disputes, they are all extraordinary because they reached the stage where a judicial opinion was written. The vast, vast majority of cases settle or come to a dispositive resolution before reaching the highest judicial level in a given jurisdiction. And only a tiny fraction of the cases that do have an appellate opinion written are then put in circulation in legal academia. So yes, all of our cases are outliers.

Sometimes our cases make the cut because the underlying facts are a vivid illustration of a legal concept. Other times we read cases because they are “important,” they are landmarks. Still other times our cases have made it into textbooks because they are eloquently written. But perhaps the most interesting cases are those where the weight of justice is precariously balanced on the knife’s edge that separates the plaintiff and defendant. These are the cases where there is no obvious answer. We don’t teach them so that students learn black letter law. We teach them so that students can start thinking like a lawyer, seeing both sides of an issue.

And so for the next two articles here on This Week in Torts we’re going to unpack one such case, Minnesota’s Harper v. Herman. In today’s Part I we will set out the facts as best as we can discern them from the record. We will try to be as impartial as possible, noting any discrepancies between the two accounts, and close with a statement arguing on behalf of each side. Finally, we will ask you to be the jury. Tell us which side should win. Don’t worry about the law, just rely on your instincts.

In Part II we will look at what happened from the time the case was filed to its ultimate resolution in the Minnesota Supreme Court. As a final note, we’d like to thank the Harvard Law Library and the Minnesota Historical Society for helping us track down the documents we’ve relied upon to build this story.

The Story

On August 9th, 1986, Theodore Herman, a 64 year-old experienced boat captain, took four guests for a boat ride on Lake Minnetonka. Jeffrey Harper, a 20 year-old college student, was one of Herman’s guests although he did not know Herman personally. One of Herman’s other guests, Cindy Palmer, had invited Harper to join the party. The group met a little before noon and boarded Herman’s 26-foot 1976 Thunderbird motorboat to spend the day swimming and sightseeing.

At some point during the trip, Harper mentioned that his sister’s friends lived on the lake and had a dock where they could go swimming. Herman agreed to take the group to the dock but, both Harper and Herman reported that the water was “weedy,” which made swimming difficult. Herman then suggested that they move to a different swimming spot off the north shore of Big Island in Lake Minnetonka that he had visited “hundreds of times.” According to the court documents, boating enthusiasts in the Lake Minnetonka area frequently swam or “engaged in water sports” near Big Island and knew that the water was very shallow (2-3 feet deep) “for a considerable distance off shore.” Herman acknowledged that he intended to park the boat in shallower water, so that his guests could wade in the water or swim. It’s worth noting that Big Island is an extremely popular and well-known party spot for Minnesotans. Hundreds of people gather off shore on Fourth of July and tie their boats together, so they can drink and socialize until the fireworks.

According to Harper, Herman stopped the boat 100-200 yards off shore. Herman disagreed and claimed that he parked only 30-40 feet from the shore. They also disagreed about whether the water was murky or clear that day. Harper and the other guests on the boat all maintained that they were unable to see the bottom of the lake, while Herman claimed he could.

North Shore of Big Island, Lake Minnetonka

After parking the boat, Herman began to lower the ladder down into the water. At this point, Harper asked Herman if he planned to go in the water and Herman replied, “yes.” Without warning, Harper stood up on his seat, stepped to the edge of the boat, and dove into the water. Unaware that the water was only 2-3 feet deep and not an experienced diver, Harper hit the bottom of the lake and severed his spinal cord. He was rendered a C6 quadriplegic and paralyzed from the shoulders down for the rest of his life. Harper likely was not the first person to suffer this fate near Big Island’s shore, as a 42 year-old man made the same mistake as Harper in 2015 and also severely injured his spinal cord.

Harper admitted that no one on the boat would have expected him to dive into the water. He also said that his intention was to execute a shallower dive, but not having much diving experience and assuming that the water was deeper, his dive was too vertical. Harper also didn’t remember whether there were other boats parked in the vicinity and if there were people wading in the water, which might have alerted Harper that the water was shallower than he expected.

The Arguments

Harper’s best argument

When you think of Harper, imagine that he is your son. He is a 20 year-old college student, out on a small boat operated by a 64 year-old co-worker. The captain is seasoned, and he has taken his boat out on this lake too many times to count. Your son and the others go for a swim but found the location substandard. The captain tells the group that he knows a better place to swim and takes them to a location that he has been to hundreds of times, by his own account. The boat is several hundred feet from shore, and the water is too murky to see the lake bed. Everybody but the captain agrees on that. The captain, who knows that the water is extremely shallow but does not tell anybody that, lowers a ladder into the water as if it were more than knee-deep. Your son asks the captain if he’s going in and he says yes, he is going in. But the captain did not tell your son that the water was only 2 or 3 feet deep, too shallow even to swim in. Your son dives into the water, far from shore. He is now quadriplegic, permanently and profoundly disabled. The captain should have warned his guests.

Herman’s best argument

Imagine that Herman is your father. He’s a good person, and likes boating. He goes out on the lake regularly, often bringing guests on his small motorboat. And when he brings guests, he looks after them. On the weekend in question, your father brought four other people out on the water with him, including a college student he doesn’t know, a guest of a guest. The group tries to swim in a location but found it too full of weeds. Your father tells them he will take them to a better spot to swim. It’s a place he has been to hundreds of times and he thinks it will be ideal because the water is shallow enough for people to get out and wade. By your father’s recollection, he pulls the boat to a spot only 30-40 feet from shore and then he starts preparing the boat for people to get out. The college kid asks him if he’s going in and then, without any warning whatsoever, climbs to the ledge of the boat and jumps into the water head-first. By his own admission, the college student didn’t think anybody else on the boat--including your father--had any idea that he would dive in like that. Swimming and diving are different, and have different requirements. Your father took the student to a place he could swim, not a place he could dive. And while your father feels horrible about what happened, he shouldn’t be held responsible for the student’s reckless actions.

Based on the facts as we’ve presented them and the best argument for both Harper and Herman, tell us which side you think should win. We’ll follow up in Part II to let you know the outcome of the case.

Ellis & Acton

Where There's Smoke, There May Be Hay

November 21, 2017 by Samantha Bates in Everyday Torts

Anybody who wants to understand the law would be well served to read and/or watch Bleak House by Charles Dickens. Consuming Bleak House is a gargantuan task, perhaps intentionally reflecting the ceaseless complexity of the legal case it chronicles, Jarndice vs. Jarndice. The elevator pitch is that two branches of a family fight over an estate for such a long time that the estate is completely drained by legal fees. It’s a valuable lesson (even cited by courts!), and one that I bring up often when trying to talk friends off of the litigation ledge.

But Bleak House would not be Dickensian if it were just the story of a lawsuit. There are countless twists and turns that play out through betrayals and in hushed tones. And because nothing in Bleak House is straightforward, there is even a case of spontaneous human combustion. Deep in the recesses of Chapter 32, Mr Krook, a ragged old man who subsists on a diet of gin, catches fire and dies. This perhaps reflects the belief of the time that drinking excessive amounts of alcohol turned the human body into a flammable substance. Regardless, it brought spontaneous human combustion into the public imagination and it hasn’t really ever left.

The concept of spontaneous human combustion is controversial, in the sense that many people believe it is real but most serious scientific minds don’t think it exists. A classic rendition would have somebody stumbling upon a pile of ashes where once stood a person. The surrounding environment would give no indication of a larger conflagration. There are countless examples of this purportedly occurring, although over time instances have subsequently been explained--such as when an Oklahoma man was found to have had a heart attack and fallen atop a lit cigarette.

This is about the time in the article where I turn my attention towards torts. And while I am not qualified to pass a legal judgment on spontaneous human combustion, I can indeed discuss its very close and very real cousin: spontaneous combustion. Yes, there are inanimate objects in this world that will catch fire all on their own. They need no flame, and feature no electricity or batteries. This is a real thing and people die because of it more often than you’d think.

Example one of a spontaneously combustible thing is a rag or other implement used to apply an oil-based stain and finish to woodwork. As they dry, these substances go through a process of oxidation, a chemical process that can generate enough heat to actually ignite a rag. This is particularly likely when the rags are bunched up in a way that prevents cooling air flow. The phenomenon is fairly well-known among woodworkers, but it is far less known among very amateur homeowners. Picture your average Jane or Joe picking up a quart of an oil-based finish to touch up the deck, and you very well may be imagining the precursor to a fire. Examples of this are endless. Manufacturers do their best to warn of the danger, but we live in a world of unheeded warnings. They also have a fairly fail-safe procedure for dealing with such rags: after use, the rags should be put into a water-filled, sealed can (like a paint can) or laid out to dry on a pavement or concrete surface for at least two days. But that’s a lot to ask of some people, and as long as the curing process for these oil-based products doesn’t change, there will be fires.

So if Joe Homeowner starts a fire because he did not understand the warnings and that fire harms somebody else, might liability extend to the manufacturer of the products? Water-based wood finishes exist that don’t have this danger, and one could imagine a world in which all wood finishes must be water-based. The argument is that the end product is not as beautiful, but how beautiful must a product be for us to accept accidental fires?

If not extended to the manufacturer, liability would presumably rest squarely on the shoulders of our homeowner. Such was the case in Vaughn v. Menlove, a historic case involving a different class of auto-igniting materials: hay. It turns out that as wet hay decomposes, heat is generated to such a degree that the hay catches fire. In order to prevent such fires, farmers know never to stack hay unless it is entirely dry. The defendant in this case apparently didn’t get the message, and the resulting fire consumed much of the plaintiff’s property. In court, the defendant argued that while most farmers know that you shouldn’t stack wet hay, he did not, and therefore should not be held responsible. The court ruled in favor of the plaintiff, holding that the threshold question must ask what is reasonable to an ordinary person. Without such a standard, defendants could always escape liability by proclaiming ignorance.

The homeowner’s ignorance in our deck oil example seems different from that in Vaughn, in that a reasonable homeowner very well might not know about the dangers of improperly stored oil-soaked rags. Still, it is hard to argue that such ignorance should protect the homeowner when confronted by an aggrieved plaintiff in court. Hardly Jarndice vs. Jarndice, one would imagine that the plaintiff would make quick work of a defendant making such an argument.

Some Like It Hot, But...

November 17, 2017 by Samantha Bates in Everyday Torts

About a decade ago I was having a meal at a Cambridge diner with my roommate, who we will call Walter. Walter was born and bred in Europe and commented that the United States does not seem to have any original food. Everything, he argued, was derivative. I tried to argue, but the diner food on the menu was not helping my cause. Chicken Parm. Lamb kebobs. Gyro with Pita. You get the picture.

Several years later Walter and I took a trip across the eastern half of the United States, and one of my stated purposes would be to show him that we have plenty of great, original food. We bought cheesesteaks in Philadelphia, pulled pork in North Carolina, and shrimp and grits in Charleston. The tail end of our trip was in Nashville, and I was on the lookout for more quintessentially American faire. That’s when I stumbled upon Nashville hot chicken.

As the name implies, Nashville hot chicken is just spicy fried chicken. But it’s not just a bit piquant. No, if you go to the true stalwarts of the specialty, you’ll find that the food is mind-numbingly spicy. So spicy, in fact, that it can and does make people physically ill. When we tried the “hot” level chicken at Bolton’s Spicy Chicken & Fish, it was so strong that Walter commented that it was barely food, but instead something like a dare. But honestly, what could be more American than that?

When we were ordering, I noticed that on the wall there was a sign alerting customers that they would issue no refunds under any circumstances. It was an ominous message, and one that made me think of the tort theory of assumption of risk. Basically, assumption of risk means that if you knowingly enter into an inherently dangerous activity, you cannot hold the provider of that activity responsible.

So might a person be assuming a risk when eating spicy food? As a baseline matter, it’s important to note that spicy food can, in fact, be dangerous. At low levels, capsaicin, the agent that makes food spicy, is very safe and can even have health benefits. But as one climbs the chart of spiciness---that’s actually a thing, and it’s called the Scoville scale--capsaicin can severely inflame membranes in the body and even lead to heart attack.

At spicy food-eating competitions, contestants regularly become physically ill. As a result, participants are almost always asked to sign waivers releasing contest-holders from liability should anything bad happen. For example, the Seven Deadly Wings Challenge in the UK requires participants to agree to the following:

“I understand that I will be eating chicken wings that are treated with the hottest ingredients … with an extreme degree of heat...I acknowledge that there could be a risk of personal injury, illness & possible loss of life, and risk of damage to or loss of personal property which may result from participating in this challenge. I confirm that I do not have a medical condition that could jeopardise my health or wellbeing during or after the challenge. I agree that I am taking on the challenge at my own risk and hereby certify that Huckleberry’s Bar and Grill Ltd, its employees or affiliates will not be held responsible or liable for any injuries, damage or loss of earnings caused during or after the challenge.”

Agreements like this certainly indicate that people offering and consuming ultra-spicy food know or should know that there is a risk to what they are about to undertake.

But what if a person consumes extremely spicy food without knowing what they’re getting themselves into? That was the case when a boy in Tennessee was hospitalized when his server gave him “Blair’s Mega Death” hot sauce when he requested hot sauce for his food. Blair’s Mega Death has a Scoville rating of 550,000. For comparison, Tabasco hot sauce is rated at around 2,500 Scoville Units. If the boy was expecting something on the order of Tabasco but instead consumed a sauce 200+ times more powerful, one would think he did not assume a risk. At that rating, it’s hard to see a distinction between hot sauce and poison. The server and the restaurant (based on vicarious liability) were sued by the child’s parents, and one would hope that they were able to find satisfaction and make the boy whole.

To some extent, it’s remarkable that there is a market for products like Blair’s Mega Death sauce. But it turns out that there are far spicier sauces on the market, with hotsauce.com selling several dozen sauces with Scoville ratings over 1,000,000 (and therefore at least twice as hot as Blair’s Mega Death). Whether it is due to thrill-seeking or some variation of masochism, plenty of people seem to want to eat food so hot that it will literally make you sick (and could kill you). This sounds like the definition of an ultra-hazardous activity, and wherever there are ultra-hazardous activities there are torts concepts like assumption of risk, negligence, and maybe even strict liability.

So if you find yourself in Nashville looking for something basic and American to eat, perhaps look somewhere other than the local hot chicken joint. But if your real purpose is to experience severe inflammation, shortness of breath, and heart palpitations, I can definitely recommend Bolton’s Spicy Chicken & Fish. But consider yourself warned, and consider your risks assumed.

- Ellis & Acton

More Than 1000 Words

November 15, 2017 by Samantha Bates

I grew up in a household of photographs. My father was (and is) an avid photographer, and wherever we went, so too did his camera. This was the day of film, where every shutter actuation mattered and where you had to wait a week to see if the shot came out. My dad was a pretty amazing photographer, as evidenced by the photos he took as a Peace Corps volunteer in Guatemala with an entirely manual camera.

I had sniffles of the photo bug for years, but only came down with the full-blown illness when I started going on adventures as a way to combat my Multiple Sclerosis. Then came kids and I had a full-time, live in set of subjects. But in between the adventures and the babies' first moments, I've often found myself taking photos of everyday things. Photos of people living their lives, of happiness and sadness, chores and hard work. I don't know why I started to do this, but ultimately those photos became just as valued to me as any documentation of my own life.

Although I stumbled upon it unintentionally, it turns out that this sort of photography has a name: street photography. And not only does it have a name, it is having something of a renaissance. This is no doubt due to the stratospheric explosion of the number of cameras in this world. Sure, sales of elaborate system cameras are way, way down. But just about everybody you know is carrying a digital camera in their pocket capable of taking photos as good as a $1000 camera from 10 years ago. Add in Facebook and Instagram, and we've never lived in a more photographed world.

When I take a street photograph, I tend to put my camera into a silent mode and otherwise try to conceal what I'm doing. In a sort of Heisenberg Uncertainty Principal of photography, if a person knows they are being photographed they immediately change their expression and instead of capturing real life you are just capturing an image of somebody being photographed. But there's another reason I take my photos in an inconspicuous way: a lot of folks don't like being part of somebody else's little art project.

It turns out that this is quite an issue, as street photographers all around the world have been met by glares, glowers, verbal abuse, and even physical attack. And given what I do, one has to wonder if taking those photos is somehow illegal. Is it a tort? Am I violating a duty to my subjects by taking their photo without their permission?

As a baseline matter, it turns out that in the United States, street photography like what I sometimes do is entirely legal. It is based on the assumption that what you do in public is, in fact, public. Whatever you allow people to capture with their eyes and mind can also legally be captured by a lens and sensor. But let's imagine a world in which a street photographer is in fact a tortfeasor. What would the underlying tort look like? Presumably it would be a dignitary tort, like defamation or invasion of privacy.

In fact, the world in which street photography is illegal would look something like France. It turns out that France has a law that specifically prohibits the practice of taking somebody’s photo without their permission, part of “Article 9.” It is based on a theory that a person’s likeness is part of their personality, which sounds a lot like the French conception of copyright as well. As a result of this law, street photography in France is practically unheard of....which is a little sad given that one of the most important street photographers of all time was French. From the early 1930s to the late 1960s, Henri Cartier Bresson captured ordinary moments in the ordinary lives of ordinary Parisians. And in doing so he gave us a window into the soul of France. So while the French have gained a bit of perceived privacy, they may have lost something larger in the process. That’s certainly the take of Aurélie Filippetti, France’s minister of culture from 2012 through 2014, who says that “[b]ecause of [Article 9] we run the risk of losing our memory...Just to think that Cartier-Bresson or Josef Koudelka would have been prevented from doing their work is unbearable.”

Of course, taking a photo of a person and using the photo of that person are not the same. So while one can take a photo of a sad-looking person in the United States, that image can't be used without permission in an advertisement for, say, antidepressants. This falls generally under the category of the “right to publicity,” a somewhat vague concept that plays out differently from state to state. Essentially, the “right to publicity,” says that your “name, image, likeness, or other recognizable aspects of [your] persona” cannot be used for commercial gain without your permission. Perhaps unsurprisingly, right to publicity charges are frequently brought by celebrities. In 2000, several blues musicians successfully sued the record label, Collectibles, and music producer, Roy Ames, for using their names and photos in music catalogues and on the album covers without their permission.

Before I wrap up my legal analysis of street photography, I want to spend a moment discussing a left-field possibility. Is there any way that aggressively taking a photo of a person could represent an assault? Assault is defined as intentionally causing someone to fear imminent bodily harm or other form of offensive contact. Here, I would hope that there is no fear of bodily harm or offensive contact. But what if we adopted a France-like regime where capturing a likeness that is itself offensive? Might holding a gigantic camera or flashing a bright light in someone’s face be enough to trigger assault? As a photographer, I can attest that certain cameras do seem to have a threatening impact on subjects. There is even a niche market for high-end cameras designed specifically to be nonthreatening for the purpose of street photography.

So if street photography can be threatening, potentially violates a person’s dignity, and also may infringe on personality rights, is it moral for me to take the photos I take? What’s more, is it acceptable for me to post some of them in conjunction with this article? Given the nonprofit nature of what we’re doing, and the fact that I am using the photos here to illustrate an article about street photography, I’m leaning “comfortable” with their use today.

And in the end I am also comfortable with practicing street photography. It is a small way for me to see and understand the world better, and It has trained me to observe and to empathize with people more. I’ll never be Henri Cartier-Bresson, but I understand what he did and its value. And although I am a very private person (“Ellis!”), I would not mind if somebody took an unsuspecting photo of me. So if you see a street photo of a person ambling down a sidewalk with a shiny metal cane, that might be yours truly. And you have my blessing to tip your cap to the photographer who took it. - Ellis & Acton

Old McDonald Had a Right to Farm Statute

November 14, 2017 by Samantha Bates in Everyday Torts

If you were to take a look at a zoning map of the town where I grew up, you’d see that the vast proportion of plots are zoned residential, with a small cluster of commercial land in our shopping district. But smack dab in the middle of town you’d see one vast parcel that is zoned completely differently from the rest: it is my family’s ancestral land, and it is zoned for agricultural use. The town I grew up in is now a wealthy commuter suburb but once was dotted with farms. Somehow my family’s business was the only entity to survive the introduction of nearby commuter rail stations in the first half of the 20th century and the highways and advent of suburban living during the second half of the 20th century. In a town of bankers, we were farmers.

And I was proud of that distinction. While my friends had a house, we had shops and garages and barns and forests. Where they had a few trees, we had forests and fields and lakes and streams. And where they had lawn mowers and rakes, we had industrial-scale payloaders and tractors. For a kid, the tractors were amazing, with their size and power and diesel-soaked roar. But that’s exactly the sort of thing that might annoy a neighbor, especially if they heard it at 7am.

And if the neighbors had a serious problem, they could have a remedy in tort. Specifically the tort of Nuisance. Boiled down, the law of nuisance says that you can do anything you want with your private property so long as it doesn’t interfere with somebody else’s ability to do whatever they want with their private property. It is an extraordinarily old tort (even older than negligence!), with known cases dating back to the turn of the century--the 12th century. In one example from 1201, Simon of Merston petitioned King John for compensation when his neighbor, “Jordan the miller,” raised the water level of his pond in a way that could damage Simon’s property. King John ordered that the pond be destroyed and awarded Simon three shillings in damages.

Common modern examples of a nuisance include a dog that incessantly barks, a pig farm that incessantly smells, or an assembly line that incessantly clangs. There are both public and private nuisances--a public nuisance being one that affects an entire community rather than just an individual. Public nuisance law has evolved to encompass activities that are considered “indecent” or “offensive to the senses” (Richard Epstein, Torts (1999) 357). So if your neighbor is running a prostitution ring or a gambling joint, the city might have a case for nuisance because of the offensive nature of these types of activities and the cast of characters they might invite to the neighborhood. One of my favorite recent nuisance disputes involves the culty hot sauce Sriracha. It seems that for a brief period every year Huy Fong, the producer of the hot sauce, would have to process hot chile peppers in a way that caused some of the capsaicin to get into the air. Neighbors would complain about burning eyes, sore throats, and other maladies. It was an classic nuisance, and has been the subject of litigation for several years.

While these cases may seem clear-cut, nuisance cases are rarely so straightforward. In fact, according to William Prosser, a bona fide Lion of the Law™, “there is no more impenetrable jungle in the entire law than that which surrounds the word nuisance” (Prosser, The Law of Torts (3rd ed. 1964) 592). Perhaps this is because, by definition, the tort seems to clash with the classic American tradition of promoting property rights.

Another American tradition is the reverence of farmers. We have been putting the noble agrarian on a pedestal since the days of Thomas Jefferson. What is more American than staking out a plot of land, getting your hands dirty, and emerging with a crop? But farms are dirty and messy and smelly. They can pollute and tarnish our environment. Who among us would actively want to live next door to a pig farm? As a result, farmers are often the target of nuisance suits by abutters whose quality of life has been diminished by their neighbors’ activities.

This sort of thing is particularly acute in towns like the one where I grew up, towns where the agricultural land is surrounded not by other farms but by people who simply want to have a peaceful refuge from their daily grind when they come home. It would seem that the days of farming in these communities is numbered. But local governments have stepped in to save the day, at least from the perspective of the farmers, in the form of “right to farm” statutes.

A right to farm statute is a law that specifically states that noises, smells, and other nuisances incidental to traditional agriculture cannot be the basis of a nuisance lawsuit against a farmer. For the sake of illustration, here is the text of the Right to Farm statute in Chelmsford, Massachusetts (which is based on a MA state model):

“The right to farm is hereby recognized to exist within the Town of Chelmsford. The above-described agricultural activities may occur on holidays, weekdays, and weekends by night or day and shall include the attendant incidental noise, odors, dust, and fumes associated with normally accepted agricultural practices. It is hereby determined that whatever impact may be caused to others through the normal practice of agriculture is more than offset by the benefits of farming to the neighborhood, community, and society in general.” Chapter 127-3: Right to Farm Declaration

Right to Farm statutes represent government and legislation staking a claim on matters traditionally reserved for the common law. When I think about these laws I can’t help but think of that property map from my hometown, the one where my family’s property is an island of agriculture in a sea of residential homes. The right to farm, it seems, is meant to protect families just like mine. And in towns all across America, that is exactly why Right to Farm statutes exist.

But more and more, the phrase “Right to Farm” has become associated not with protecting the noble farmer but instead massive agribusiness. That’s because the newest wave of Right to Farm statutes don’t just prohibit nuisance lawsuits against a farmer with a flock of confident roosters. These new statutes can also prohibit local governments from enacting and enforcing new environmental regulations, such as those limiting the use of certain hazardous pesticides. I am always wary of a good idea being co-opted by the powerful to promote their interests, and it seems that may be happening here. As a person who owes his college tuition to agriculture, I generally support the concept of Right to Farm statutes. But I am very, very wary of where they may be headed.

I asked my father recently if he could recall a time when our family was the subject of a nuisance complaint as the result of maintaining our little island of agriculture. To my surprise, he said he wasn’t aware of that ever happening, despite all the trucks and tractors and fertilizers we employed over the years. It seems that our town did not need a Right to Farm statute. Instead, our neighbors naturally adopted the notion that our presence outweighed any negative side effects of our agricultural activities. Last year, after a century of planting and growing, selling and kids playing, my family finally sold our business so that my parents could retire. Generations of my relatives owe so much to that place. And I’d suggest we also owe at least a tip of the cap to our neighbors, who graciously accepted and embraced our little island of agriculture amidst their sea of suburban homes.

-Ellis & Acton

Take Me Out at the Ballgame

November 08, 2017 by Samantha Bates

Even though the baseball season is over, there’s always room in a torts blog to talk about the grand old game. Because as long as the phrase “foul ball” has been in our lexicon, there have been injured fans. In few sports do we expect the key component of the game--the thing that the sport is named after, in fact-- to be peppered among the paying audience and turned into a souvenir. And yet, at nearly every baseball game a significant percentage of attendees bring their trusty mitt, hoping to snag a piece of the game.

Unfortunately, some fans come home with an entirely different kind of souvenir: an injury. A recent study estimated that 1750 fans are injured a year at Major League Baseball games--a number that is likely dwarfed by the total when considering minor league and college games. For the unlucky many, welts and bruises are the norm, with the more unfortunate fans being rewarded for their attendance with a broken bone or worse.

When I was a kid, I went to a Mets game with my friend and his mother, who had absolutely zero exposure to baseball in her life. We sat in the cheap seats, far, far away from the zone of danger. The game went to extra innings and just about everybody left, except us. So being the enterprising youths that my friend and I were, we dragged his mom all the way down to the primo seats along the first base line. Some time during the extra frames, a guy named Derek Bell launched a line drive right at us--my friend's mom put her arm up at the last second and the ball fractured both of the main bones in her forearm. Compound fractured. It was...horrible. So an unknowing person was dragged by two children directly into the zone of danger. Was that an assumption of risk?

Amazingly, there is a special rule in torts for just this occasion: the creatively-named Baseball Rule. As adopted in Akins vs. Glens Falls City School District, the rule states

“...that where a proprietor of a ball park furnishes screening for the area of the field behind home plate where the danger of being struck by a ball is the greatest and that screening is of sufficient extent to provide adequate protection for as many spectators as may reasonably be expected to desire such seating in the course of an ordinary game, the proprietor fulfills the duty of care imposed by law and, therefore, cannot be liable in negligence.”

That is, if there are some safe seats and you’re not in one, any injury is on you. The Baseball Rule is evolving, and some courts refuse to enforce it. But for the most part it is still in effect. Teams reinforce the Baseball Rule by issuing game tickets that ostensibly warn attendees with disclaimers on the back. This text reads like a contract, saying that in exchange for the “license” to enter the stadium, you assume the risk of being injured. Here is the relevant portion of a Nashua Silver Knights ticket I picked up this past summer:

“DISCLAIMER: Management reserves the right to revoke the license granted by this ticket. Holder assumes all risks incidental to the game of baseball including, but not exclusively, injury resulting from thrown or batted balls, thrown batts, or damage to personal property in or adjacent to the ballpark whether occurring prior to, during, or subsequent to the game.”

How enforceable is that agreement? Is it vital to protecting the legal interest of baseball teams in all cases, or just “minor batteries” like a bruise? As it turns out, the ticket agreement is quite enforceable. Courts are loathe to even entertain a baseball fan injury case, although I wonder if there’s a bit of a chicken-and-egg conundrum with respect to the ticket’s enforceability and the aforementioned Baseball Rule. Is the ticket just a written description of the Baseball Rule, or would it be just as enforceable in an entirely different setting? The fact is that the ticket disclaimer is a contract of adhesion. Given that courts sometimes refuse to enforce contracts of adhesion but almost always enforce ticket disclaimers, I tend to think that the Baseball Rule is the real source of the ticket’s enforceability.

This past summer I unintentionally tested this hypothesis. A friend and I attended a game where a sponsor, a beer company, had provided free admission--sans ticket--to the general admission section of the stadium (a place rife with people selling their product!). In an admittedly-unlikely turn of events, a pitcher warming up in the bullpen let loose an errant throw that nicked off the catcher’s mitt and redirected right at me. I was struck by the ball. Given that I was in the stadium without a ticket, did that make me a slightly better potential plaintiff than my ticketed brethren in the expensive seats?

Foul ball injuries have been going on for as long as the game has been played. While only one fan has ever been killed at a Major League Baseball game, that number goes way up if you count minor league, college, and amateur competition. A book called “Death at the Ballpark” goes into great detail to describe 850 baseball-related deaths, the majority of which involve players but many spectators as well. And for every death there are hundreds or thousands of injuries, some of them severe. We seem to be reaching a zenith moment in terms of teams protecting the fans. Over the past several years there have been a number of high-profile cases where a fan was seriously injured. Most recently, a young girl was severely injured by a foul ball at Yankee Stadium. This happened even after Major League Baseball had made recommendations to teams that they extend netting to protect more fans from errant line drives. These recommendations are just that and not requirements. One would imagine that ignoring the recommendations would be a relevant factor to any determination of liability on the part of the team when an injury occurs and a fan files suit.

Perhaps teams like the Yankees that have thus-far chosen not to extend netting have performed a cost-benefit analysis, determining that the cost of “ruining” the experience for the majority of fans outweighs the inevitable tort settlements. But as the narrative of injuries becomes stronger, the public relations cost might actually be the thing that finally drives the holdout teams to protect fans in a way that has been absent for the past 150 years.

-Ellis

A Look at How the Common Law Evolves

November 07, 2017 by Samantha Bates in History of Torts

The study of torts can often feel like a history lesson. So many cases take place on the barges and trains of a bygone era that one can fall into a trap of thinking that it's a fairly static subject. But the dynamism of the common law really becomes apparent when we study something like emotional harm. Cases like Falzone v. Busch, Portee v. Jaffee, and Gammon v. Osteopathic Hospital of Maine, Inc. illustrate that the judicial system is willing to adjust the law to adapt to modern sensibilities.

Historically, plaintiffs could not be compensated for purely emotional harm. Some evidence of physical harm was necessary in order for plaintiffs to recover. From a policy perspective, courts worried that without any physical evidence of harm, plaintiffs could more easily feign injury and claim the right to compensation. However, this trend began to change as medical research revealed that mental injuries and distress could cause psychological damage. In some cases, mental injuries could even manifest themselves in physical symptoms, a disorder sometimes known as somatization. Today, the medical profession and society at large recognize the extraordinary impact emotional harm can have on a person.

Courts have slowly but steadily been following this societal trend. In Falzone v. Busch, we start to see the shift in how courts characterized emotional harm. The plaintiff in Falzone watched from her car as her husband, standing some distance away from her in a nearby field was hit and injured by a negligent driver. The plaintiff became sick and afraid for her own safety when the negligent driver veered towards her car and narrowly missed running into her. The plaintiff required medical attention, but did not have any lasting injuries. Although there was no physical contact, the court determined that the plaintiff suffered physically from fright caused by the negligent driver and should be compensated. However, the opinion in Falzone still required that any physical symptoms resulting from fright be “substantial” in order to impose liability on the defendant:

We hold, therefore, that where negligence causes fright from a reasonable fear of immediate personal injury, which fright is adequately demonstrated to have resulted in substantial bodily injury or sickness, the injured person may recover if such bodily injury or sickness would be regarded as proper elements of damage had they occurred as a consequence of direct physical injury rather than fright. Of course, where fright does not cause Substantial bodily injury or sickness, it is to be regarded as too lacking in seriousness and too speculative to warrant the imposition of liability.

We see the law continue to evolve in Portee v. Jaffee, a horrible case in which a mother helplessly watched as her seven year-old son died while trapped between the outer door of an elevator and the elevator shaft. In contrast to the fact pattern in Falzone, the plaintiff in Portee had no fear of injury to herself, rather, her distress resulted from watching her own son die. The court determined that in some situations plaintiffs should recover even when they do not fear for their own physical safety. However, the Portee court remained concerned about overextending the scope of liability, so it limited recovering to cases that met four requirements:

(1) the death or serious physical injury of another caused by defendant's negligence;

(2) a marital or intimate, familial relationship between plaintiff and the injured person;

(3) observation of the death or injury at the scene of the accident; and

(4) resulting severe emotional distress.

The leap between Falzone and Portee is quite extraordinary, because it severs the direct link between the defendant’s actions and the plaintiff’s injuries. Seeming to recognize this, the court went out of its way to limit the new standard--only those directly witnessing a serious injury to a close relative could claim emotional harm. For a while, this remained the standard. For example, in Pizarro v. 421 Port Associates, the plaintiff suffered from severe shock after a man standing next to her in an elevator was decapitated. Although the unfortunate plaintiff was likely emotionally scarred for life, she wasn’t able to recover because the deceased was not a close relative. Courts around the country were trying to recognize and compensate emotional harm, but in their trepidation had created a swirling set of rules involving physical manifestations and witnessed harm committed to close relations. That all changed with the onset of cases like Gammon v. Osteopathic Hospital of Maine, Inc..

In Gammon, the plaintiff received a bag of personal effects from the hospital where his father had recently died. Instead of finding the usual assortment of clothing and accessories, the son instead opened the bag only to find a severed, bloody leg. The plaintiff believed the leg was his father’s, although he later learned that it had belonged to another, likely more unlucky patient. The plaintiff did not suffer physically but had nightmares for several months and his relationship with his family deteriorated. The court in Gammon disregarded the rules set by prior emotional harm cases and declared that “these more or less arbitrary requirements should not bar Gammon’s claim for compensation for severe emotional distress.” Essentially, the circumstances in Gammon were so extreme that the court was willing to allow for more flexibility in emotional harm cases despite the legal system’s prior concerns about expanding the scope of liability.

Both the Falzone and Portee courts created new, but still limited, rules precisely because they wanted to change the common law. Perhaps in giving due deference to previous decisions, they opted for bright line rules that would edge the law just far enough to encompass the particulars of their cases. However, once the law was sufficiently nudged, the Gammon court was able to break through these bright lines entirely and set a new standard for emotional harm. This is legal evolution at its finest, and shows how entirely new law may be made without any legislation. It is evidence that the American torts system, while flawed, is remarkably adaptive to changes in society.

-Ellis & Acton

Can SawStop Stop Saw Safety?

November 01, 2017 by Samantha Bates in Everyday Torts

One of my favorite things to do when I want to relax is to head to my basement workshop and make something out of wood. It’s only a few feet below the real world, but heading down there is like being teleported to a peaceful and tranquil alternate reality. A reality where twitter and cellphones and complaints don’t exist. Just me and a bunch of lumber…and a collection of extraordinarily dangerous tools.

The modern workshop is a veritable smorgasbord of implements that want their pound of flesh. There are miter saws and bandsaws and routers and thickness planers, and all are quite dangerous. But the king of dangerous power tools is the table saw, and the way modern table saws are sold (and how they SHOULD be sold) tells quite a torts story.

A table saw is just what it sounds like, a small table with a large spinning blade emerging from its center. To use it, a woodworker pushes the material he or she wants to cut directly into the teeth of the spinning blade. Even upon immediate inspection a table saw’s danger is immediately apparent. It is a snarling tiger, not a cuddly Persian kitten. But the real dangers of a table saw are not as obvious.

Most people would think that the way to stay safe is to just steer clear of the spinning blade of death. But the true danger that causes an enormous amount of accidents every year is a phenomenon called kickback. Kickback occurs when the already-cut portion of the wood catches onto the back end of the spinning blade and hurtles at blinding speed towards the operator. And because kickback results in the uncut portion of wood being pulled toward the blade, it also tends to pull the operator’s hands towards the blade. It’s a little hard to describe, so it might be worth watching this video to see kickback in action (note! This person tries to induce kickback on purpose. Which is...an absolutely terrible idea!).

So it’s probably no surprise that over 30,000 people go to an emergency room in the United States every year due to table saw accidents. And according to a study in an emergency medicine journal, table saws are the second leading cause of amputation injuries every year behind accidents involving doors.

As a result of the melee happening in workshops around the country, a table saw purchased today comes adorned with a variety of safety devices intended to reduce the chances of kickback and other injuries. The most important of these is called a riving knife, which is a stationary blade that attempts to keep cut wood from binding with the back of the spinning saw. Next in importance are anti-kickback pawls, which are little spring-loaded claws that push the wood down towards the table. On top of that there is a blade guard, which is a metal and plastic housing that provides a barrier between a user’s fingers and the saw.

*Table Saw with Riving Knife, Anti-Kickback Pawls, and Blade Guard attached*

Both the table saw and its instruction manual are absolutely plastered with warnings that say the saw should never be used without these safety devices. Unfortunately, those warnings represent something of a legal fiction: the manufacturers very well know that saw users will remove these safety devices because they often make it impossible to perform the cuts required for certain projects (particularly the pawls and blade guard). Responsible operators like me always use the safety devices when we can, but it is not always possible, and the manufacturers seem to acknowledge this by making safety device removal incredibly easy.

If only there were a technology that would allow woodworkers to perform the cuts they want safely. If only. Ah, but there is! A company called SawStop uses an amazing flesh-sensing technology to halt the progress of a spinning blade the moment it touches a human finger. The demonstrations are amazing, and I strongly suggest you watch them for yourself. If all saws had SawStop technology, literally thousands of amputations a year would never happen. So why don’t all table saws have this technology now?

*SawStop Patent Describing Safety Technology*

Patents. SawStop is the only manufacturer in the United States that is legally allowed to sell such saws due to its intellectual property in the invention. In fact, when Bosch tried to introduce a competing technology called Reaxx, SawStop successfully sued Bosch for patent infringement and prevented Reaxx saws from reaching the market. Patents and other intellectual property are a form of government-established monopoly, but companies can choose the extent to which they enforce their monopolies. And SawStop has gone to great lengths to enforce its monopoly.

As a result, the least expensive way to buy a table saw that will not amputate your appendages is a $1300 SawStop portable model. Portable table saws without the technology can be had for literally 1/10th the price, with even high quality table saws costing closer to $500. So in the table saw world, safety comes at an extraordinary premium.

And that premium might be spread across the market if SawStop has its way and the United States Consumer Products Safety Commission makes rules requiring all new table saws to have flesh-sensing technology. From a consumer products safety perspective, this is a no-brainer. There is a technology that can save literally thousands of people a year from being permanently disfigured. Juries have found that the absence of such a technology by default makes a manufacturer negligent. In a recent Massachusetts case, the victim of a table saw accident successfully sued Ryobi for designing a saw that does not use SawStop technology (although the jury did determine that he was 35% responsible for the accident because he disabled all of the safety features). His lawyer argued that because Ryobi passed on an opportunity to buy the underlying SawStop intellectual property in 2000, it rendered all of its future designs defective. Given that a jury would deem tools without this safety feature defective per se underlines how impactful the technology is, and should make the decision by the Consumer Products Safety Commission easy. With absolutely no pun intended, the decision should be clear cut.

But because SawStop has a monopoly, it would be able to effectively control the market until the patent expires in 2021. The company claims that it will charge a reasonable royalty, but there is no way to enforce that claim. And government bodies are rightly wary of mandating that a technology be used when that technology is kept under strict lock and key by a company founded by a patent attorney. It doesn’t have to be this way. Auto manufacturer Volvo never enforced its patent for the seat belt because the company thought that safety mattered more than the competitive advantage it would have by being the exclusive provider of seat belts. But that does not appear to be SawStop’s modus operandi.

So until 2021, consumers like me will be faced with a choice: risk owning one of the 1 in 229 table saws that send somebody to the emergency room each year or pay an extraordinary amount of money for safety (and in doing so, enable a borderline patent troll). I often say that our torts system is far from perfect. This is an instance, though, where the torts system has been almost completely sidestepped by a competing field of law - intellectual property. It’s a reminder that our discussion of duty, breach, cause and harm hardly exists in a vacuum and that it is only a piece of the tangled landscape that is American law.

-Ellis

The Aftermath of Katko v. Briney

November 01, 2017 by Samantha Bates

In Katko vs. Briney, the defendant used a trap gun to shoot and maim an intruder looking to collect bottles and other trinkets from his abandoned property. One would think that the two would be bitter enemies, rivals for life. So it was not altogether surprising when we found out that Katko and Briney were involved in another lawsuit. What did surprise us was that the two were co-plaintiffs, suing others together. People Magazine saw fit to do a colorful write up of the entire affair in 1975, providing us with interesting tidbits about the original 1970 trial, the subsequent appeal, and the bizarre aftermath.

According to the People article, the original jury--which was comprised entirely of women--sympathized with the portrayal of Katko as a good kid who made a mistake and awarded him $30,000. After Briney lost the trial case, three of his neighbors bought his land for $10,001 and leased it back to him under the assumption that he would win the appeal and be able to buy back his property. However, Briney lost the appeal in 1971 and was forced to sell an additional 35 acres of land.

Now we get to the interesting part of the story. In 1974, the three neighbors who originally bought Briney’s land for $10,001 decided to sell it. First, they offered to sell it back to Briney, but he couldn’t afford the price. One of the neighbors, the amazingly-named Gysbert Groenenboom, bought the land from the other two neighbors for $16,001 and eventually sold it to his son for $16,500. It is unclear whether the neighbors first offered to sell Briney back his land for the original $10,001 or for the increased price of $16,001. Either way, given the amount of land he had sold to pay Katko’s damages, it is entirely possible that he wasn’t able to afford either price due to a lack of farming revenue. In a surprising twist of events, Katko and Briney jointly sued the three neighbors, claiming that they were owed the $6,500 profit that was made on Briney’s land. We don't know whether Katko and Briney ever became friends or even allies, but in this instance their interests aligned such that it benefited both of them to join forces in the lawsuit against Briney's neighbors.

We don’t know the outcome of the 1974 lawsuit, but it does highlight some interesting legal concepts. It seems that the basis of Katko and Briney’s claim is that the three neighbors unfairly profited from Briney’s land, which sounds an awful lot like the tort of unjust enrichment. Unjust enrichment occurs when one party unfairly profits from something at the expense of the other party. It isn’t hard to imagine the arguments for each side in this case. From the perspective of Katko and Briney, both suffered from the sale of the land to Groenenboom. Briney lost his property and Katko lost a portion of the damages still owed to him from the original verdict against Briney, which presumably had not been paid in full. From the three neighbors’ perspective, they had bought the land with the expectation that Briney would eventually be able to reclaim it. When Briney lost the appeal and the neighbors decided to sell the land, Briney was unable to afford the price and they were saddled with his land. To them, at some point it just made sense to sell the property and recoup their investment. As the saying goes, “all’s fair in love and war” (and yes, we’re counting legal battles as a form of war).

Although this is a torts blog, we might as well also mention that there was probably a question about implied contracts in this case. Briney sold his land to his neighbors in 1971 with the expectation that they would hold it for him until he could buy it back. We might assume that there was no written contract, but Briney probably argued that by selling the land to anyone other than Briney, the three neighbors breached a verbal contract. The neighbors may have understood that they owed Briney only the “right of first refusal,” meaning that they would only have to give Briney the first opportunity to buy the land. Briney, however, may have interpreted the agreement to mean that his neighbors would hold onto his property until he could afford to buy it back. Remember that Briney was also leasing the property from his neighbors, so from his perspective his neighbors had already greatly profited from the transaction. Unfortunately, without a written contract, it would be difficult for Briney to enforce his claims. Even if there was a verbal understanding or implied contract, these types of agreements carry far less weight in court.

Katko v. Briney is a great example of a case that had big implications for many lives beyond the confines of the courtroom. It just goes to show that there is always more to a case than is contained in a court opinion or a jury verdict. Only once you start pulling on loose ends do you discover the tiny details that bring a case to life.

-Acton & Ellis

Sometimes Looks Are Not, In Fact, Deceiving

October 31, 2017 by Samantha Bates in Everyday Torts

The entire point of many amusement parks is to make safe things seem dangerous. But what about where an amusement park's m.o. is to make the dangerous seem dangerous? Consider the case of New Jersey's Action Park ("Class Action Park"). I first encountered Action Park in a short documentary that made the internet rounds a few years ago. The park is perhaps most famous for a failed attraction called the cannonball loop, a waterslide so outlandish photos of it look photoshopped. But that extraordinarily dangerous attraction was closed in just a few days. Other rides at Action Park flaunted their dangerous nature for up to two decades.

The top line figure we might look at is the number of fatalities: six people died at Action Park during its twenty year run. But the number of deaths doesn't tell the whole story. By all accounts, an enormous number of people were seriously injured at Action Park due to the design of the rides and poor oversight (including allowing local 14-15 year olds to supervise). One particularly dangerous attraction was the Alpine Slide, a concrete luge run with no safety barriers or equipment except for often-defective brakes. So many people were injured on the run that management allegedly posted graphic photos of maimed children at the top of the slide to warn guests. In another indication that the park was fully aware of how dangerous its attractions were, it also allegedly helped the town of Vernon, NJ pay for more ambulances to accommodate its patrons.

The reputation of the place--as a singularly dangerous amusement park--would seem to square with Cardozo's reasoning in Murphy v. Steeplechase. Most people knew that Action Park was legitimately dangerous, and that the danger was part of the fun. When the park recently re-opened, United States Senator Corey Booker tweeted "WOW! Action Park is back! I still have scars from long ago visits but I so want to go again[.]" So should we just think of Action Park as the amusement equivalent of mountain biking, rock climbing, or other inherently dangerous activities? Or does the "dangerous by design" nature trigger Cardozo's [perhaps dicta] suggestion that a park/ride could be so dangerous as to be beyond the scope of an assumption of risk affirmative defense?

While learning all about Action Park, I stumbled upon the website Rideaccidents.com, a slightly dated but still informative collection of severe injuries and deaths from amusement parks around the world. It reminded me that perhaps the most dangerous amusement out there, at least on a per capita basis, is the dreaded bouncy house. For the uninitiated, bouncy houses are basically giant inflatable trampolines, most popular among very little kids. The problem is that they are exceptionally dangerous, leading to a huge number of injuries and some deaths. Time Magazine (do you remember magazines?) called bouncy injuries an "epidemic," and a study in the journal Pediatrics claimed that in 2010, 31 American emergency room visits per day were due to bouncy house injuries.

Unlike Action Park and the Flopper, the danger of bouncy houses is perhaps a bit unintuitive--they are essentially huge airbags, after all. And the number of injuries is no doubt compounded by the fact that they are generally not found in amusement parks but instead town carnivals, outside local sporting events, and even birthday parties--that is, the people in charge are not necessarily professionals. So how would Cardozo look at a bouncy house injury claim?

-Ellis