The oil rig explosion that killed eleven workers and causes the daily flow of an estimated 200,000 gallons of oil into the Gulf of Mexico presents a gut check moment on tort policy. A lot of harm has been and will be caused by this catastrophe, and somebody will bear the cost of that harm. Should it be the responsible parties? the victims? the taxpayers?
American tort law, under the principles of proximate cause and nuisance, tells some victims that they must bear the cost of their own harm because it is either too remote (not a “proximate” cause) or too common (to be compensable, damages from a public nuisance must be “different in kind” from those suffered by others) to require the responsible party to pay. The responsibility of those whose conduct caused the harm must have a “sensible and just” stopping point, according to established doctrine. As a general matter, under common law principles, it is “sensible and just” to cause victims to bear their own costs if the harm they suffer is essentially economic or emotional in nature, as opposed to bodily injury or property damage.
These uncompensated losses often hit the taxpayers as well as the victim. Continue reading “Gulf Oil Disaster — Lessons in Torts and Bailouts”
Ralph Anzivino continues his exploration of the economic loss doctrine in a new paper on SSRN. The economic loss doctrine indicates that economic losses resulting from a defective product are recoverable, if at all, under contract law, instead of tort law. In applying this doctrine, however, courts have run into difficulty with damage to other property besides the defective product. For instance, in one case, a ship caught fire and sunk as a result of defective hydraulic equipment, and the court had to decide whether the ship owner could recover the value of other equipment on the ship under a tort theory of strict products liability. Courts have adopted a variety of conflicting and uncertain tests to determine whether such damages to other property are governed by tort or contract law.
In his paper, Ralph proposes a new test that emphasizes contract principles first. Parties should be permitted to allocate the risk of losses between themselves. Thus, if a contract validly addresses losses to other property, Ralph would enforce the contract; otherwise, tort principles would apply. He defends this approach as clearer and more consistent with the underlying purposes of the economic loss doctrine than approaches currently in use.
Entitled “The False Dilemma of the Economic Loss Doctrine,” Ralph’s paper is forthcoming in the Marquette Law Review. His other recent articles on the economic loss doctrine are here, here, and here.
Ralph Anzivino has a new paper on SSRN entitled “The Disappointed Expectations Test and the Economic Loss Doctrine.” This makes a trilogy of recent articles by Ralph on different aspects of the economic loss doctrine. (The first two are here and here.) The abstract for this most recent entry is as follows:
The economic loss doctrine is a judicially created rule that determines whether contract or tort law applies when a defective product causes damage. The doctrine’s starting premise is that contract law governs if the defective product causes economic loss and tort law governs when the defective product causes property damage. A common refrain is that the doctrine was created to prevent contract law from drowning in a sea of tort. However, as the rule has developed, courts have continued to expand contract coverage at the expense of tort coverage. First, when the defective product damages only itself, the courts concluded that such property damage should be resolved under contract law, not tort law. Next, when the defective product damages the system of which it was a component part, the courts concluded that such property damage should also be resolved under contract law, not tort law. Recently, another rule has begun to receive judicial acceptance that further expands the coverage of contract law at the expense of tort law. The rule is called the “disappointed expectations” test or the “reasonably foreseeable” rule. It provides that property damage that was reasonably foreseeable at the time of contracting is recoverable only under contract law, not tort law. The purpose of this Article is to examine the disappointed expectations rule and determine whether it is a positive addition to the legal landscape of the economic loss doctrine.
After surveying the development of the disappointed expectations test, which has been adopted by the Wisconsin Supreme Court, Ralph identifies several reasons why the test should be rejected. He pointedly concludes, “The rule is the most recent progression of tort law drowning in a sea of contract law.”
Professor Jessica E. Slavin recently posted concerning Professor Michael M. O’Hear’s well-deserved receipt of the Eastern District of Wisconsin Bar Association’s Judge Robert W. Warren Public Service Award. Through the resources available to me as dean, I have been able to secure a copy of Michael’s brief and well-stated acceptance remarks. Professor O’Hear describes his basic belief that law schools can act as “bridge builders” — first, “between, on the one hand, the world of legal practice, judging, and lawmaking, and, on the other hand, the world of rich and diverse learning contained in the modern university” and, second, between “the local and the national” (the latter being, Professor O’Hear notes, “a two-way street”).
These remarks bring to mind — but are not identical to — somewhat more pointed comments delivered by a renowned Marquette lawyer, Aaron D. Twerski (pictured above), who is the Irwin and Jill Cohen Professor at Brooklyn Law School (and former dean at Hofstra). Twerski is an extremely well-regarded law professor (as is O’Hear, although they are at different points in their careers) and received the prestigious Robert C. McKay Law Professor Award from the Tort Trial & Insurance Practice Section of the American Bar Association. Professor Twerski used the occasion of his award to lament the seeming lack of interest of many law professors in saying things of interest to judges and practicing lawyers.
Among his milder comments: Continue reading “O’Hear, Twerski, and the Work of the Professoriate”
Much media has been given to the so-called “stimulus package” recently passed and signed into law without members of Congress or the President knowing fully what was contained in the over 1500 pages. Evidently, no one read the whole bill before taking the decisive action.
A similar approach seems to be occurring here in Wisconsin. Buried in the governor’s budget bill (A 75 2009-2010 Legislature), at pages 1588 and 1605, are significant modifications of state tort law that have as much to do with the state budget as chewing gum has to do with nuclear fusion.
Section 3223 of the bill contains a provision requiring the court to explain to a jury “the effect on awards and liabilities of the percentage of negligence found by the jury to be attributable to each party.” Translation: “If you find the plaintiff more negligent than that rich old defendant, the plaintiff and his or her lawyer won’t recover a dime!” Aren’t juries supposed to be finders of fact and not charity institutions?
Section 3271 of the bill changes the Wisconsin comparative negligence rule in two significant respects. Continue reading “Stealthy or Shifty Tort Change”
Today the Wisconsin Supreme Court accepted three new cases for review, two criminal cases and one civil case.
One of the criminal cases, State v. Smith, 2008AP1011, asks the court to determine whether the sex offender registration statute, Wisconsin Statute section 301.45, is unconstitutional in its application to a defendant whose crime, false imprisonment of a minor, concededly had no sexual component whatsoever. The Defendant Smith was convicted of falsely imprisoning a minor in connection with a drug crime. That conviction triggered application of the sex offender registration requirements in section 301.45. Smith did not register, and was charged with failing to register as required. He argues that the sex offender registration requirement violates his due process and equal protection rights because his crime had no sexual component. Continue reading “Wisconsin Supreme Court Accepts Three New Cases, Including a Case That Will Determine Whether a Crime with No Sexual Component May Trigger Sex Offender Registration Requirements”
I am no doubt dating myself, and that has been happening a lot lately, but Bill Prosser’s 1960 article in the Yale Law Journal probably has had the greatest influence on the way that I write and teach about the law [William L. Prosser, The Assault Upon the Citadel (Strict Liability to the Consumer), 69 Yale L. J. 1099 (1960)]. In that regard, it probably has had even more of an effect on me than any of my own articles.
In the Yale article Prosser traced the various exceptions that developed since Lord Abinger’s 1842 proclamation of the rule that tort liability would not aid one with no privity to a contract who was injured as a result of its breach. His second article on the subject, some six years later is his final chapter in that story [William L. Prosser, The Fall of the Citadel (Strict Liability to the Consumer), 50 Minn. L. Rev. 791 (1966).
What initially attracted me to the Yale article was Prosser’s status as an icon. I used his casebook and hornbook as a law student. He was “Mr. Torts.” But as I matured I found it offered so much more. It clearly demonstrates that while some courts treat ancient rules as if they were holy writs, stare decisis is not a commitment to intellectual stagnation. I believe that nowhere in the law is this truer than in Torts. It also made clear that legal scholarship does not have to be a stranger to humor. The two can coexist.
Thus, in my own writing I always attempt to be a critic, albeit one who at times can point to humorous situations in the law. In my teaching I attempt to call the students’ attention to how old law is not necessarily good law and always to be alert to areas where improvement is needed and to develop the ability to clearly articulate why that is so.
Where does one start?! I attempt to bring Wisconsin law into my classes for several reasons. The “Diploma Privilege” permits our students to practice in this state without taking the Bar Exam. Wisconsin courts have been pacesetters as to matters considered in the subject areas in which I teach. I believe students should learn, as early as their first year with us, that is not improper for one to find fault with judicial and legislative reasoning, at times even in a humorous fashion, as long as due respect is shown.
The first of my favorites is considered in my Torts class. It is Quesenberry v. Milwaukee County, 106 Wis.2d 685, 317 N.W.2d 468 (1982). It arises in the discussion of the duties of owners and occupiers of land to those who come upon the property. It is referenced to show how, at times, state legislatures see fit to modify common law rules. The case dealt with a provision of the Wisconsin Statutes in effect at the time of an accident (then § 29.68) that barred recovery for injuries received while engaging in “recreational” activities on lands of another. Continue reading “My Favorite Wisconsin Cases”
Last month, a trial court in Connecticut applied the ministerial exception to dismiss a defamation claim brought by a charitable organization against the Catholic bishop of Connecticut. In brief, the vicar of a Connecticut parish had organized a charity in his native Tanzania and, among other things, raised funds for it from his congregation. The Bishop apparently came to believe that the charity was beset by financial irregularities and, after first ordering the priest to stop raising money for it, removed him as vicar. The Bishop then sent a letter and spoke to parishioners telling them that the charity was ineffectively managed and engaged in questionable financial practices.
The priest’s action against the diocese (alleging, among other things, racial discrimination) was dismissed based upon the ministerial exception. No surprise there.
The charity then sued the Bishop for tortious interference and defamation. As noted above, these claims were also dismissed based upon the ministerial exception. The exception has been applied in contexts other than claims based upon employment. In my home state of Wisconsin, for example, it has been applied to claims for the negligent hiring, retention and supervision of priests who committed sexual abuse.
But should it be applied here? Continue reading “Ecclesiastical Immunity”
As just mentioned, the Wisconsin Supreme Court has decided to accept six new cases, three criminal cases and three civil ones. My prior blog post about those cases discussed the criminal cases; this post discusses the civil ones.
The most newsworthy civil matter seems to be Biskupic v. Cicero, 2007AP2314. Through this appeal Vince Biskupic seeks to have his libel and slander claims against various defendants reinstated. Biskupic, as you may know, is a former Outagamie County D.A. who ran for state attorney general in 2002. Biskupic v. Cicero, 2008 WI App 117, ¶ 1. The defendants include a Shawano newspaper, the Shawano Leader, which published a false report stating that Biskupic had been convicted of bribery and graft. Id. ¶1
The Defendants moved for summary judgment against Biskupic’s claims. The circuit court “concluded Biskupic was a limited purpose public figure, and the actual malice standard applied. The court held the summary judgment submissions showed ‘the defamation occurred as a result of confusion and negligence, not malice.'” The circuit court also rejected Biskupic’s argument that he should be granted judgment against the newspaper defendants, or a jury instruction, based on a reporter’s destruction of interview notes. Id. ¶10-11. The Court of Appeals affirmed, and the Supreme Court has accepted Biskupic’s petition for review. Continue reading “Newly Accepted Civil Cases at Wisconsin Supreme Court, Including Biskupic Slander Case”
I am very happy with the state of tort and insurance law. Thus, my message to the new president would be: Don’t change a thing.
I suspect that will be true if a Republican is elected president. If a Democrat is elected, I also suspect there will be little change in tort law brought about by Congressional action, especially when one considers the financial support the organized plaintiffs’ bar is providing to the dems, particularly to their presidential candidate.
However, if the November election results in the continuation of Democrat control of Congress and puts a Democrat in the White House, there could be a significant impact on insurance law. That impact could well be a switch from state to federal regulation of insurance. Continue reading “Priorities for the Next President: Don’t Change a Thing About Tort and Insurance Law”
It is now beyond question that the use of automotive safety belts goes a long way to reducing the number of injuries and deaths occasioned by auto accidents. When those belts are combined with the air bags in newer models of motor vehicles, the survivability of motor accidents increases greatly.
It is somewhat of an historical anomaly that while auto manufacturers were required by law to install safety belts in new vehicles starting about the middle of the last century, the same laws did not mandate the use of those belts by vehicle occupants. A strong case can and has been made that regardless of statutory mandate, a reasonable person of ordinary prudence would make use of available automotive belts. Since most states now require safety belt use, e.g., Wis. Stat. § 347.48(2m), that argument is no longer necessary. Thus the legislatures have established a standard of care.
However, an example of the lobbying power of the plaintiffs’ personal injury bar may be seen in the fact that many state belt use statutes contain provisions limiting reduction of an auto accident victim’s damages if he or she did not use an available safety belt. For example, Wis. Stat. § 347.48(2m)(g) provides that damages may not be reduced by more than fifteen percent. Continue reading “Legislative Usurpation of Jury Deliberations”