Legislative Usurpation of Jury Deliberations

Posted on Categories Tort Law2 Comments on Legislative Usurpation of Jury Deliberations

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”

Economic Loss: Learning From Insurance Law

Posted on Categories Legal Scholarship, Tort Law, Wisconsin Civil LitigationLeave a comment» on Economic Loss: Learning From Insurance Law

My colleague Ralph Anzivino has a helpful new article that explores the fine line between contract law and tort law: The Economic Loss Doctrine: Distinguishing Economic Loss from Non-Economic Loss, 91 Marq. L. Rev. 1081 (2008). As developed by Wisconsin and many other states, the economic loss doctrine indicates that purely economic losses are recoverable in contract, while non-economic losses are recoverable in tort. The difficulty lies in distinguishing economic from non-economic, particularly with respect to property damage resulting from product failure. (Imagine, for instance, a defective garage door opener that causes a garage door to close on the owner’s car.) Continue reading “Economic Loss: Learning From Insurance Law”

How Does One Punish a Fiction?

Posted on Categories Tort Law3 Comments on How Does One Punish a Fiction?

Having spent a good deal of time over the past several years studying all the various nuances of punitive damages law [John J. Kircher & Christine M. Wiseman, Punitive Damages: Law & Practice (2000 & Supp 2008)], questions still remain unanswered: How can a legal fiction like a corporation engage in egregious conduct so as to justify imposition of punitive damages against it? How does one punish and deter a corporate entity.

Most jurisdictions do allow punitive damages to be awarded against business entities for the wrongful conduct of their employees or agents. Some are very liberal, allowing punitives to be awarded against the business simply if the agent’s conduct was sufficient to make the business liable for the compensatory damages occasioned by the act. In others additional proof is required. The principal must direct the agent to perform the egregious act; the principal must subsequently approve that act; or, the agent who performed the act must have been in a “managerial capacity” at the time that act was performed. Obviously, with a corporation, the one doing any of those three things must be a human being.

Imposing punitive damages upon a corporation does not punish or deter the human being who engaged in the egregious conduct, it merely renders such a person anonymous. It is akin to requiring a liability insurer to pay the punitive damages resulting from the wrongful conduct of its insured. But some jurisdictions allow that as well. The life of the law is certainly not logic!

Retributive Damages in a World Without Trials

Posted on Categories Criminal Law & Process, Legal Scholarship, Speakers at Marquette, Tort LawLeave a comment» on Retributive Damages in a World Without Trials

Kicking off a terrific speaker series at Marquette this semester, Dan Markel of Florida State and PrawfsBlawg fame is with us today to present his paper How Should Punitive Damages Work?. This is the second part of a multi-article series in which Dan is developing a comprehensive reform proposal for punitive damages law. Dan’s basic premise is that punitive damages should be reconceptualized around principles of retributive justice. To the extent that we want punitive damages to do other things (e.g., compensate victims for dignitary harms), Dan urges that we give those forms of damages different labels and treat them in a procedurally distinct manner from retributive damages. Notably, he would give retributive damages awards to the state, not private plaintiffs; plaintiffs would get merely a small finder’s fee ($10,000) and attorneys’ fees. Continue reading “Retributive Damages in a World Without Trials”