If Covid were the subject of a suit, how would the decision describe my grandfather?
My grandfather recently passed away. It wasn’t Covid; not directly at least. A lifetime of kidney problems and other assorted ailments weren’t helped by the pandemic-induced lock-down. Rather than go out to eat or graze at the local grocery store buffet, as he normally would, he dined on pre-cooked meals and unsurprisingly his health suffered for it. So no, Covid didn’t kill him, but it certainly helped. In legal-speak it was more of a proximate cause.
In any law school tort class, students learn about proximate cause as it relates to negligence. One case, which is widely cited, is Palsgraf v. Long Island Railroad. In this slice of history, a remarkable and tragic chain of events took place. The plaintiff, Mrs. Palsgraf, waited for her train, at the railroad’s train station. As she waited, an employee of the train company unknowingly helped two men load explosives onto a different train. The explosives detonated, and had one of the two men been injured by that explosion this case would almost assuredly be lost to the sands of time, a simple case of negligence with a simple resolution. Instead, in the hubbub that ensued, a large scale Mrs. Palsgraf was standing near struck and injured her. The exact manner in which the scale injured her isn’t mentioned in the opinion itself.
Every law student learns about this case and its meaning. The legal rules and principles of law that the majority and dissenting opinions announced are followed to this day. But the decision doesn’t spill any ink about Mrs. Palsgraf. A terse statement of facts accompanies the majority opinion, in which Mrs. Palsgraf isn’t even mentioned by name. She is simply “Plaintiff.” Thus, she is reduced to something less than human. I thought of this case as my grandfather lay in hospice, near the end of his life. Continue reading “Palsgraf and Humanity in the Age of Covid”
Arizona Appellate Court Revives Plaintiff’s Claim that Vehicle that Struck Her was Defective By Virtue of Not Including Autonomous Safety Feature
In recent years, highly autonomous vehicles have acquired a reputation as a technology that is perpetually just a few years away. Meanwhile, their enormous promise continues to tantalize. AVs have the potential to transform American life in a variety of ways, reducing costs both large and small. From virtually eliminating the roughly 40,000 deaths and hundreds of thousands of injuries we suffer in car accidents every year to making it possible to commute to work while sleeping, AVs are seen as enormously promising.
Against this backdrop, many torts scholars have expressed concern that imposing liability on AV manufacturers threatens to slow or even deter AV development. When AVs take the wheel, will the companies that make them also take on liability for whatever crashes they can’t avoid? AV development also raises the possibility—much less commonly noticed—of new liability for manufacturers of conventional vehicles. If AVs are significantly safer, will courts and juries come to see conventional vehicles as defective? According to a recent Arizona appellate court opinion, the answer is… maybe so.
This Friday, January 24, 2020, hundreds of thousands of people will gather in Washington D.C. for the 47th annual March for Life. This year’s theme for the March for Life is “Pro-Life is Pro-Woman.” Last year’s March for Life invited additional news coverage thanks to a video that depicted Nick Sandmann, a high school student, smiling at a Native American elder as the elder beat a drum in front of the student. This initial video made it seem as if the student was mocking the elder. In the wake of this viral video and the news coverage that ensued, there was an immense backlash against the student and his high school. I recall seeing posts on social media listing the email addresses of the school’s administrators encouraging people to flood their inboxes with less than courteous emails expressing disapproval of their student’s behavior.
However, later video evidence revealed that a group of Black Hebrew Israelites had been yelling racial slurs at Sandmann and his peers, and that the Native American elder approached Sandmann as a way of diffusing the situation between the Black Hebrew Israelites and the students. Moreover, it became clear that neither Sandmann nor his peers were at fault in the confrontation.
Sandmann filed a defamation suit against CNN seeking $250 million dollars for its inaccurate coverage of the confrontation and the emotional distress that he endured as a result. Earlier this month it was released that Sandmann had agreed to a settlement with CNN for an undisclosed amount. Continue reading “Tort Law and Fake News”
NTSB’s Final Report on Pedestrian Fatality Involving an Uber AV Highlights Obvious Programming Missteps
On a dark street in Tempe, Arizona just before 10 p.m. on March 18, 2018, an Uber vehicle being tested in autonomous mode hit and killed a pedestrian. This was the first pedestrian fatality involving an autonomous vehicle, and it triggered a media firestorm that caused Uber to suspend its autonomous vehicle program for nine months as it worked with the NTSB to understand the causes of the crash. With the adoption by the NSTB of its final report on the crash on November 19, that work is now complete.
The NTSB’s final report paints a vivid picture of programming and human missteps that belies the argument commonly advanced in legal scholarship about AV liability — that crashes involving AVs will be impossible for the judges, juries, and doctrines that make up our current system of tort law to “understand.” Indeed, the errors that led to the crash were all too simple. Continue reading “Autonomous Vehicle Malfunctions May Not Be So Complicated After All”
Several years ago, the Wisconsin veterinary state convention focused on the legal standard of informed consent in the profession. Lawyers explained that this meant that veterinarians needed to provide all options to owners and that owners make the decision as to what options to pursue. Although this seemed simple enough, and certainly some veterinarians already practiced some degree of informed consent, some veterinarians were understandably concerned about discussing a “no treatment” option and some veterinarians practice in situations where discussions with owners may be difficult (e.g., production medicine) or the time involved would defeat the purpose of their services (e.g., high-volume spay/neuter clinics). But the take-home message was that veterinarians are not the responsible parties for making the decisions for clients and that veterinarians need to provide all of the options, and all of the information that clients need to make decisions. Informed consent protects both parties to the transaction.
Informed consent provides transparency. In the veterinary profession, owners are held directly responsible for the decisions and charges incurred. When an owner is informed about diagnostic or treatment options, this includes the cost involved with the options. Informed consent means discussing what the diagnostics or treatments entail, the prognosis or outcome expected, and the costs involved. In fact, most veterinarians provide written estimates for procedures or hospitalization and may require a deposit. Although this may seem insensitive in some way—to require a deposit to provide care—the estimate can be the reality check an owner may need and, again, the owner client is the responsible party.
Informed consent is also the standard in the human medical profession, but the human medical profession does not provide estimates and doesn’t seem to even know, or admit to knowing, what price tag attaches to options. Much is said about the failures of human medicine. Some of this can be attributed to allowing the profession to not be transparent—to not providing information. Continue reading “Informed Consent”
This semester in Professor Lisa Mazzie’s Advanced Legal Writing: Writing for Law Practice seminar, students are required to write one blog post on a law- or law school-related topic of their choice. Writing blog posts as a lawyer is a great way to practice writing skills, and to do so in a way that allows the writer a little more freedom to showcase his or her own voice, and—eventually for these students—a great way to maintain visibility as a legal professional. Here is one of those blog posts, this one written by 2L Mitch Raasch.
In Products Liability class with Professor Kircher this semester, we often discuss manufacturing and design defects and companies’ requirements in making safe products. Since starting this course, I have often found myself analyzing news stories for potential products liability cases. So, when I read about last week’s tragic incident in which a woman died after an engine in a Southwest Airlines plane exploded, I naturally thought about the potential liability that multiple parties might face.
The Southwest Incident
The Southwest airliner was a twin-engine Boeing 737 travelling from New York to Dallas. One of the windows was struck by debris from a blown engine, causing passenger Jennifer Riordan to get pulled partially out of the opening. She later died from her injuries, and seven others were injured.
The last passenger death on a U.S. commercial flight was in 2009, so the amount of media coverage the incident has garnered comes as no surprise. Nearly all of us have flown commercial, and we expect that each aircraft has gone through in-depth inspections prior to takeoff. But are engine makers and commercial airliners fulfilling their duties under the law?
The National Transportation Safety Board (NTSB) said that a preliminary examination of the engine showed evidence of metal fatigue, but that a full investigation will last up to fifteen months. Debris from the engine, which is manufactured by CFM International, should have been prevented from flying out by the engine’s metal cowling.
Yesterday, Fox News ousted Bill O’Reilly, who for two decades was the top-rated host with his show, The O’Reilly Factor. O’Reilly’s blustery on-air persona—which inspired Stephen Colbert to create ultraconservative pundit Stephen Colbert on the Colbert Show—minced no words, ever.
As a result, he often said outrageous, offensive, if not downright inaccurate things on the air. For example, he said that the slaves who built the White House were “well-fed and had decent lodging provided by the government.” He called child hunger “a total lie,” and said that feminists should not be allowed to report on Trump “because Trump is the antithesis of” feminism. He’s also been known to make inappropriate comments to women on the air.
Okay, I admit it. I’m playing Pokémon Go. It’s frustratingly addictive.
For those who don’t know, Pokémon Go is an app for smartphones; the app is free, but players can make in-app purchases. The idea is for each player to “catch” creatures known as Pokémon, which the player does by “throwing” what is called a Pokéball at them. Once you catch the creatures, each of which has its own special powers and abilities, you can “evolve” them into stronger, more powerful creatures and you can go to gyms to “battle” other players.
Pokémon Go uses GPS to figure out where a player is located and presents the player with that “map.” Pokéstops (where players can go to get free goodies they need to play the game) and gyms are represented on the map as actual places, usually public places like parks, sculptures, or churches. To get to a Pokéstop or to battle at a gym, a player needs to physically move herself to that location. For example, the Marquette University campus is full of Pokéstops—e.g., a few sculptures on the southeast side of campus, one of the signs for the Alumni Memorial Union. Dedicated players certainly get some exercise.
Pokémon Go is also interesting because of how it mixes your real-life location with the mythical creatures. When a creature appears, you can take its picture, as if the Pokémon is right there in your real world. (See the pictures in this post.)
But Pokémon Go has been at the root of a number of accidents and incidents and it raises a number of interesting legal issues.
Almost every student who has attended law school in the past 40 years has encountered Ronald Coase and the Coase Theorem. Even professors who disagree with Coase feel compelled to expose their students to his famous theorem, even if only to rebut its argument. As a long-time teacher of both Torts and Property who is not an advocate of law and economics, I cannot imagine teaching either course without references to the Coase Theorem as a way of evaluating the correctness of legal rules.
In a nutshell, Coase, widely acknowledged as the founder of the law and economics movement, posited that in a world without transaction costs, individuals would bargain with each other to achieve the most efficient use of resources, and legal rules would be irrelevant. As a consequence, in a world with transaction costs, Coase seemed to suggest that legal rules should be constructed so that they favor the most efficient user, since that is the party who will eventually end up with the resource . The Coase Theorem was presented to the world in a 1960 article entitled, The Problem of Social Cost, which appeared in the Journal of Law and Economics and is still the most frequently cited law review article in history.
Sadly, Robert Coase died last week in Chicago at the age of 102. Born in London and educated at the London School of Economics, Coase first achieved widespread recognition in 1937 with the publication of his article, The Nature of the Firm, which introduced the concept of transaction costs and explained why large economic deals were handled by large integrated firms rather than by temporary market-based alliances of suppliers.
Coase came to the United States in 1951 as a professor at the University of Buffalo, and moved to the University of Virginia in 1958. He was a member of the University of Virginia’s Thomas Jefferson Center for Political Economy when he published his most famous article. In 1964, he left Virginia for the University of Chicago, where he remained until his death.
Coase was awarded the Nobel Prize in Economics in 1991. His final book, How China Became Capitalist, was published in 2012 when Coase was 101 years old.
I was inspired to write this post after a lovely conversation with my roommates (for those of you that might not know, by “roomies/roommates” I mean my parents #Living@Home) who were up north skiing over winter break. Essentially, my roomies called me with a very urgent question regarding the law. “Son, it appears they are having us sign a ‘Waiver and Release’ form that is really long, with lots of statements in capital letters that really don’t make any sense. Is there a statute on point that requires companies to use the word NEGLIGENCE in all capital letters over 30,000 times? What do we DO!?!?” asked my confused father. Fresh off my Professor Anzivino contracts exam, I knew exactly how to respond.
“Dad, you guys are in Wisconsin correct?”
“Yes, we are in Wisconsin.”
“Excellent. Dad, Mom, as an aspiring law student, and in order to adhere to the heightened Ethical Code that comes with being a lawyer, please understand I cannot provide any legal advice… but I think you should read the contract and ski away!” Continue reading “Any Chance of Protection?”
Regardless of the level of athletic competition, a coach is not an insurer of an athlete’s safety and is not necessarily liable for injuries that occur while coaching a sport. Although coaches generally are not liable for athlete injuries that are ‘‘part of the game,’’ there is potential legal liability if a coach’s action or inaction increases the inherent risks of injury in a sport. To recover damages for an injury, an athlete is required to prove tortious (i.e., wrongful) action or inaction by a coach caused his injury. This chapter provides an overview of the developing law regarding the nature and scope of a coach’s duty to protect the health and safety of athletes participating in youth and high school sports (who generally are minors entrusted to coaches’ custodial care) or college sports (who generally are adults that do not have a custodial relationship with their coaches) and illustrates a coach’s ethical obligation to do so. It also notes that state statutes and judicial decisions may immunize coaches at public educational institutions from liability for negligence that causes injury to athletes, and that pre-injury releases and waivers may protect both private and public school coaches from liability for their negligence.
The paper will be published as a chapter in Ethics and Coaching (Robert L. Simon ed., Westview 2012).
I first want to take a moment to thank the Marquette Law School Blog editorial faculty for inviting me to be the alumni blogger this month. I have enjoyed the content the MULS blog has offered since its inception, and I am honored to now be a part of it.
I primarily practice in management-side, labor and employment law in Wisconsin, but I have a special interest in how social media interacts with these practice areas. My posts will focus on various ways that social media collides with the law in this respect and others.
As a side note, I not only observe social media but I am a user, too. You can follow me on Twitter @jesse_dill. I typically Tweet about developments dealing with labor and employment law, Milwaukee, and the occasional grumblings about how my favorite teams are not meeting my perfectly reasonable (read: exceedingly high) expectations.
Social media services like Facebook, Twitter, LinkedIn, FourSquare, Instagram, and the like have quickly become the hot topic in my line of work because of their widespread use among employers and employees. Whether an employer wants to utilize a service for recruiting purposes or try to regulate its use by employees in the workplace, a host of fascinating issues arise while attempting to apply old legal theories to these new devices. Continue reading “Here’s My Invite, so Friend Me, Maybe? Changing Notions of Privacy in Social Media”