Category: Tort Law


Can the TB Patient Be Sued?

airplane3b.jpgI’ve been pondering whether the TB patient with the rare hard-to-treat form of the disease who flew on so many flights can be sued by those other passengers whom he may have exposed to the illness. From the New York Times:

The man with a dangerous and hard-to-treat form of tuberculosis, who potentially exposed several hundred airline passengers to the disease, was moved early today from a hospital in Atlanta to one in Denver that specializes in treating respiratory illnesses.

The man, described as a 31-year-old lawyer in Atlanta, was escorted by federal marshals as he walked under his own power from an ambulance to National Jewish Medical and Research Center in Denver. . . .

The man was the first to be placed in forced isolation in over 40 years by federal public health authorities after he traveled to Europe for a wedding and honeymoon after being advised that he had the disease. Health authorities said he posed a risk to airplane passengers, particularly on long, trans-Atlantic flights.

The man isn’t being charged with any crime, since there was no official order for him not to fly. However, he was strongly advised not to fly, but chose to fly to Europe to get married. He then flew on several flights around Europe. And finally, after being informed by the CDC that his TB was even more dangerous than he had thought, he flew back to the US so he could get better treatment:

The man, whose name has not been disclosed, has said he was advised not to travel, but not specifically forbidden. The wedding and honeymoon had apparently been planned for a long time. . . .

Meanwhile public health officials were trying to locate the passengers that sat closest to the man on the trans-Atlantic flights, who are said to be at the most risk for infection. They will be asked to undergo testing for presence of the disease. . . .

Officials of the federal Centers for Disease Control said they contacted the man while he was on vacation in Italy after they learned that he carried the dangerous strain of the disease and advised him to turn himself into Italian health authorities.

Instead, he made his way to Prague and flew from there to Montreal to avoid a United States no-fly list. He drove from there into this country until persuaded to go to a hospital in New York City.

I would think that the people who were near him on those flights would have a decent cause of action against him. If they test positive for the form of TB the man has, I assume he could be sued for negligently spreading a contagious disease. But I wonder how far such a theory might go. Could a person be sued for going to work with the flu and spreading it to others? And even if the passengers don’t test positive, the man’s actions have caused the passengers to suffer considerable fear and anxiety, as well as the time and expense of getting tested. I wonder whether this could give rise to a cause of action as well. Any tort law experts care to opine?


Self-Handicapping and Managers’ Duty of Care

I have recently posted my symposium essay Self-Handicapping and Managers’ Duty of Care on SSRN and Selected Works. You can read the abstract when you click through, so to convince you to download the essay, I’ll give you a taste of the introduction:

Authors commonly introduce their works in symposium issues with a few disclaiming words. They identify their scholarship as a “symposium essay,” not an “Article”; a “sketch” of an answer, not a fully-fleshed out argument. Casual readers might conclude that law professors are unusually humble and resist trumpeting the novelty and sophistication of their scholarship.

Social psychologists might instead believe that symposium authors seek to avoid reputational sanctions for publicizing arguments they have not fully dressed. Scholars try to signal an excuse for underdeveloped pieces: “I haven’t worked as hard on this paper as I would have if it were a ‘real’ article.” The goal of this excuse-making is simple: disappointed readers will attribute blame away from the author’s perceived acuity and professional reputation.

This is a symposium essay about the psychology of creating such pre-excuses for failure. Rather than focus on academics, I will examine the failings of overconfident corporate managers . . .

The piece grew out of a post I wrote here over a year ago, and will appear in the Wake Forest Law Review’s Business Law Symposium Issue.

The Value of Pets

basset.jpgPoison in pet food has led to new calls for rethinking law’s valuation of companion animals hurt or killed by torts:

Lawyers, animal-rights activists and pet owners are arguing that most state laws dealing with pets are outmoded and fail to consider that pets play the role of companions in today’s society. They say pet owners whose animal is injured or killed should receive compensation not only for vet bills and a replacement animal — but for emotional distress as well. While legal experts say big payouts for emotional damages are unlikely in the pet-food cases, the lawsuits and large number of pets affected could accelerate a growing trend to give pets more recognition under the law.

Quotes from devastated pet owners suggest their extraordinary attachment. For example, one claimed, of a cat, “She’s not a pet, she’s family. . . . She’s everything to me.” Another discussed the “significant emotional investment my wife and I have in our animals.”

I’ve worried a bit elsewhere about the growing importance of pets in today’s society. I think we may be trending toward an undue anthropomorphism, a tendency to “attribut[e] human characteristics, behavior or emotions to our non-human friends”–and value them accordingly.

I recognize that the capacity to be a good steward for animals and the environment generally is a great virtue. Still, I think this may be a good place to apply recent literature on resilient humans’ capacity for “bouncing back” after “utility shocks.” A person who suffers from the loss of a pet in the same way that others suffer from the loss of a child is certainly due great sympathy. But calibrating legal treatment of such losses to the subjective response of individuals confers society’s imprimatur upon a deep confusion about the relative value of human and nonhuman animals. . . . and may well lead us down a slippery slope toward a recognition of machine rights.

Photo Credit: AGrimley/Flickr.


Saving “Peyton Manning”

File this one under “Thank goodness for the courts!”. Yahoo reports that a Judge in Chicago stopped a Bears fan from changing his legal name to “Peyton Manning.” The fan in question, Scott Wiese, lost a bet on the Super Bowl. If the Bears lost to the Colts, Wiese promised he’d change his name to “Peyton Manning.” The judge stopped him on grounds it might be confusing or invade Manning’s privacy.


Pet Food Scare

Pet owners have understandably begun suing Menu Foods over the deaths of pets from tainted pet food. Rat poison has apparently been discovered in the food, but it’s a mystery how the poison got there. Aminopterin, the poison in question, cannot be used for killing rats in the U.S. The FDA had apparently been investigating whether wheat gluten in the food had been contaminated, but spraying rat poison on wheat doesn’t make a lot of sense.

So, taking license to speculate, let’s assume that a good explantion is never found. What happens to these lawsuits? Will this become the res ipsa case that replaces Byrne v. Boadle (the man hit on the head by a barrel of flour that apparently fell out of a building)? Or, will this case test whether (or come to exemplify that) strict products liability is (or is not) truly strict? If we conclude the defendant wasn’t negligent, the only possible action will be strict liability. Recent case law seems to have pushed strict products liability into a form of negligence, but will courts really deny pet owners recovery?

Competing Ourselves to Death

In the run up to the Superbowl, the NYT has a disturbing story on the fate of Ted Johnson of the New England Patriots. Johnson suffered several concussions while playing and now suspects that they have permanently diminished his mental capacity. Johnson’s case is not isolated, and is leading to worries about “the N.F.L.’s record of allowing half of players who sustain concussions to return to the same game.” What’s next, the return of the flying wedge?

From a brute lawyerly perspective, the controversy raises some interesting issues. Are coaches and trainers negligently encouraging the injured to play? Could the players sign away any right to sue their teams (or the league) in cases like these? Might some political pressure need to be brought to bear here, like that which finally got baseball to face up to its steroid mess?

From a broader social perspective, other concerns arise. I’m presenting tomorrow at the Int’l Association of Science and Technology Studies on biotechnological enhancement that raises cognate issues. I’ll address a potential inversion of the traditional relationship between technology and values. Usually we think of values as guideposts that allow us to judge the worth of certain technological advances. But what happens when technology itself alters our cognitive capacities? Can it undermine our values? Certain drugs, trainings, or even game strategies might blunt or otherwise obscure our understanding of the world and ourselves. If we share Martha Nussbaums’s account of emotions as judgments of value, might these so-called performance-enhancements diminish the possibility of our rightly discerning our ends?

Any sporting pursuit that requires its participants to systematically risk their health in competition is troubling. But concussions like Johnson’s are doubly so, since they appear not merely to diminish or distort cognition, but to compromise one’s ability to even recognize the diminution taking place. The difficult question for regulators of various performance-enhancing neuropharmacological interventions is whether they have the potential to blunt users’ perceptions of the deep changes they wreak in users themselves. Substance addiction has been modeled as a case of “increasing marginal utility,” where the more one uses, the more one wants. New neural performance enhancement addiction might work in a far subtler way–by blunting the appeal of alternate sources of value and satisfaction.


MySpace Sued for Facilitating Offline Sexual Assaults

AP reports that four families have sued MySpace because their daughters were sexually assaulted (offline) by other MySpace members. This isn’t the first time MySpace has been sued on this front; last year, MySpace was sued in Texas state court for the same issue in Doe v. MySpace.

These lawsuits are obvious losers for two independent reasons. First, there’s a major causation problem. Can MySpace be deemed, as a legal matter, a contributing factor to an intentional tort committed outside its “four walls”? This strikes me as a major stretch of causation doctrines.

Even if you don’t buy that, then I’m 100% confident these attempts to hold MySpace liable for other people’s behavior will fail due to 47 USC 230. 47 USC 230 has routinely insulated websites for liability for torts committed outside their network. This was the central issue in the Fourth Circuit’s seminal Zeran v. AOL case, 129 F.3d 327 (4th Cir. Nov. 12, 1997), where the court insulated AOL for the offline harassment sparked by online postings. For other examples of websites avoiding liability for offline conduct, see, e.g., Doe v. America Online, 783 So. 2d 1010 (Fla. 2001) (AOL not liable to harmed child for child porn generated off AOL and distributed through it); Doe v. Bates, 2006 WL 3813758 (E.D. Tex. Dec. 27, 2006) (same basic case as Doe v. AOL); Prickett v. infoUSA, Inc., 2006 WL 887431 (E.D. Tex. Mar. 30, 2006) (information republisher not liable for offline harassing behavior made using published data); Barnes v. Yahoo, Inc., 2005 WL 3005602 (D. Or. Nov. 7, 2005) (Yahoo not liable for offline harassments made in response to bogus profile submitted by angry ex-boyfriend).

Given the obviously futile nature of this lawsuit, this lawsuit may be more about publicity than about seeking justice. Despite this, these lawsuits may nevertheless exacerbate two trends, both of which are not necessarily positive.

First, legislators cannot resist the meme of protecting kids online, and this lawsuit will give legislators another incentive to think that they should regulate social networking sites to protect kids. See, for example, Sen. McCain’s proposed “Stop the Online Exploitation of Our Children Act.” (How could anyone ever oppose a law with a title like that???) However, such regulations run into difficult definitional issues (what is a “social networking site”?) and, if poorly drafted (as Congress tends to do with Internet regulation), could jeopardize lots of legitimate activities and conversations.

Second, this lawsuit will also encourage Congress to target sexual offenders for further restrictions of their online behavior, like McCain’s Stop the Online Exploitation of Our Children Act and like the proposed federal sex offender email registry as a way to blacklist them online (see a similar effort in Virginia). Sexual offenders have become the new pariah in our society–they are a tiny percent of the population and, based on the nature of their offenses, shunned by majority interests (indeed, it is politically incorrect to do anything but shun them). As a result, there is no meaningful counterbalance to any majority-led political efforts to strip them of rights. To the extent that depriving them of rights online could improve the safety of children, I’m all for it. However, I have yet to see any social science explaining what online restrictions of sexual offender behavior actually supports this goal. Without any scientific support, regulatory efforts are typically more about grandstanding by attacking unpopular minorities than about improving our safety.

I want to be clear–I worry a lot about how I can protect my children online, and I haven’t figured out how to best do that. This kind of stuff keeps me up at nights because of my heavy responsibilities as a parent. At the same time, I remain concerned that legal intervention to supplement my efforts will not help me execute my duties as a parent, but they will nevertheless come at a significant cost by curtailing otherwise robust and socially enriching communication environments.


Barrett v. Rosenthal: Blogger Immunity for Defamatory Comments

Recently, in Barrett v. Rosenthal, the California Supreme Court held, similar to most courts addressing the issue, that bloggers are immune from being sued for “distributor” liability under defamation law. Under defamation law, the original speaker of a defamatory statement (a false statement that harms a person’s reputation) is liable. A “distributor,” one who further disseminates a falsehood spoken by another and who “knows or should have known” about the defamatory nature of a statement, is also liable. A federal law, 47 U.S.C. § 230, however, provides: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Most courts have interpreted § 230 to immunize the operators of websites or blogs against distributor liability for comments posted by others.

On the surface, Barrett doesn’t appear to be all that exceptional a case. Yet it is noteworthy because the California Supreme Court is reversing a rather notable opinion by the California Court of Appeals, which had taken a different interpretation of § 230 that didn’t provide such a broad immunity.

Most courts are interpreting § 230 very broadly. The plain meaning of § 230 is far from clear, but courts are reading it as a broad federal abrogation of a significant dimension of state defamation law. The court in Barrett stated that if its interpretation was at odds with what Congress wanted, Congress could always clarify the law. But this argument can be made for any interpretation. Perhaps courts should err on the side of narrowly interpreting federal laws that could preempt state law.

Moreover, I find § 230 immunity to be somewhat of a problem because it creates a rather inconsistent body of law. For example, consider the following scenarios:

1. You tell me a libel about X and I then write about it on my blog.

In this situation, § 230 would not apply. I’m the publisher, and I would be liable for defamation assuming other limitations on defamation liability don’t apply.

2. You email me a libel about X and I then post your email on my blog.

This situation is unresolved. Some courts say I’m not the publisher and am immune. For example, in Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003), the court stated that a person who forwarded an email by another to a newsgroup was immune under § 230. Barrett involved a somewhat similar situation, and the court explicitly dodged the question of whether the defendant could be considered the “publisher” and be liable (the court only held that § 230 eliminated distributor liability). I find the Batzel holding to be quite dubious. Is there any difference between this scenario and #1 besides the fact that #1 was said orally and #2 was by email?

3. You post a comment to my post with a libel about X. I’ve set up my blog so that it requires my approval before any comments are posted. I get an email notification of your comment; I approve it; and your comment gets posted.

What would courts do here? I bet most will say that I’m immune, even though I deliberately allowed your comment to be posted. But is this much different than #2?

4. You post a comment to my blog with a libel about X. I’ve set up my blog so it allows comments to be automatically posted without my prior approval. X emails me that it is defamatory and asks me to take it down. I refuse.

In this scenario, most courts would hold that I’m immune. Is this really that much different than #3? Once I’m emailed about it, aren’t I in virtually the same position as I am in #3?

For some other interesting discussions of the Barrett decision, see the following posts by Eugene Volokh, Eric Goldman, and Michelle Malkin.


Was Johnny Cash a Law Professor?

johnny-cash-01.jpgI have posted before about the music of the law. Of late I have been prepping and researching to the music of Johnny Cash, and I wonder if perhaps his songs were meant as law-exam issue spotters. Here are two examples. First, in the “The Boy Named Sue,” Cash tells the story of a man who tried to kill his father for naming him “Sue,” a sobriquet that apparently resulted in a life time of torment. Suppose, however, that the boy named Sue, rather than trying to kill his father in a honky-tonk brawl had instituted a law suit. Is there a cause of action for tortious naming?

Second, in “One Piece at a Time,” Cash tells the story of a factory worker who over the course of two decades steals a Cadillac piece by piece by piece from the factory. He and his friends then assemble the car, which proves difficult due to the constant evolution of car models. (There is no doubt some point about planned obsolesce in here as well.) He then sings:

About that time my wife walked out

And I could see in her eyes that she had her doubts

But she opened the door and said “Honey, take me for a spin.”

So we drove up town just to get the tags

And I headed her right on down main drag

I could hear everybody laughin’ for blocks around

But up there at the court house they didn’t laugh

‘Cause to type it up it took the whole staff

And when they got through the title weighed sixty pounds.

How exactly did he get title to the car? More importantly, what crime — if any — is he guilty of. The parts for the car were taken over a period from 1949 to 1973. How many larcenies have there been here? To the extent that the crime depends on the value of the item taken, should defense counsel argue that there is a single crime or hundreds of crime committed seriatim. (Can he avoid any under the statute of limitations?) What of special crimes dealing specifically with cars. Is it grand theft auto if you take it one piece at a time?