Category: Tort Law


Lebron v. Rumsfeld: the Fourth Circuit Drops an Anvil on Bivens

I’m going to interrupt my look at the ECHR’s decision in Othman, in order to offer a few observations on the Fourth Circuit decision this week in Lebron v. Rumsfeld.  (There has been a little discussion on Lawfare.)  This case is one of two Bivens cases that had been pending involving Jose Padilla.  (The other is still before the Ninth Circuit and the parties have just been ordered to brief the effect of the Fourth Circuit decision, especially with respect to the issue of non-mutual collateral estoppel).   In Lebron, the Fourth Circuit found that “special factors” preclude a Bivens remedy in cases involving “enemy combatants” in military detention, even in cases of U.S. citizens held in the United States.  It’s a blunt instrument of a holding.  While a number of issues were before the Court, this post looks at the Bivens part of the decision and identifies a few errors in the Court’s reasoning.   The Fourth Circuit overreads Supreme Court precedents on Bivens dealing with the military and ignores Congress’s clear intention to preserve Bivens for citizens in its post-9/11 activity in the field of national security.

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Hammontree v. Jenner: The Rest of the Story

Schoolhouse Ruins, Metropolis, NV

I recently picked up 120 Torts and Criminal Procedure examinations, which I must grade before the holidays.  In a related story, this will be my last guest-blogger post on the site.  Thanks to Gerard, Frank, and my other hosts for their hospitality, and to the readers of this blog for their patience.  It’s been fun, at least for me.

I’ll wrap up with another Paul Harvey “here’s the rest of the story” narrative, which may be useful to those of you who teach Torts. (The rest of you will probably want to skip this one.)  This entry will discuss Hammontree v. Jenner, a 1971 California Court of Appeal decision.

The Hammontree court rejected the plaintiffs’ contention that strict liability, instead of negligence, should govern a tort suit stemming from a driver’s unanticipated seizure behind the wheel.  Unlike Summers v. Tice, which I discussed in a previous post, Hammontree has not cast a substantial precedential shadow. The appellate opinion is short, and gives little sign that the court considered the issue presented to be especially difficult.

The significance of the Hammontree decision derives from its leadoff spot in Franklin, Rabin & Green’s casebook Tort Law and Alternatives, which I use in my Torts class (I’ve spoken to both the defense attorney at trial in Hammontree and the defense attorney on appeal; both were quite surprised that the case found its way into a textbook.)  The authors leverage the case in a variety of ways, using it to introduce the distinction between strict liability and negligence, along with themes such as legal ethics, the mechanics of a tort case, and the nature of precedent.

Last year, I went down to Los Angeles court archives and dug up copies of the original court filings in Hammontree for the use of my students, and others.   If anyone is interested in these documents (I find it quite helpful to show novice one-L students what a complaint, answer, motion for summary judgment, etc., look like, which goes a long way toward demystifying these documents), I’ve given them to Christopher Robinette over at the TortsProf blog, who kindly has posted them here.

The documents didn’t contain any big surprises, but they did harbor a few facts that may be interesting and useful to those of you who teach the case.  Now that I’ve scared off (or bored to death) 99 percent of this blog’s readers, I’ll explain to the hardy few who remain, after the jump.

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On Elevators, Frightened Horses, and Disappearing Types of Tort Claims

The other day, a woman was killed in a horrific elevator accident in New York City.  

Happily, this is a rare occurrence, though one that’s well-represented in Torts casebooks.  Over at Point of Law, Ted Frank has blogged before about the dwindling number of accidents that involve elevators.  In his post, Ted cites to a 1926 New York Times newspaper article, which I subsequently dug up, that relates 87 deaths connected to elevators and elevator shafts in 1925—just in the city of New York!  Somewhat comfortingly, however, only 36 of these people were crushed by elevators.  Forty-seven fell into elevator shafts (which is still somewhat traumatic to me, especially after I watched this scene as an impressionable youth), three were killed when elevators fell, and one “fell through a dumbwaiter” (eep).

I don’t know how many of these elevator-related accidents led to tort suits.  A quick online search, however, suggests that these cases were once pretty common.  These suits appear to have percolated in the 1870s and 1880s, and developed into a well-recognized type of case by the 1890s or the early 1900s, at the latest.

This development paralleled the construction of the first wave of high-rise structures in American cities (the first modern “skyscraper,” the Home Insurance Building in Chicago, was built in 1884).   I don’t know if  there’s a causal connection between the proliferation of high-rises and the development of the elevator-suit case type (after all, any multistory building could claim an elevator, and lots of early cases involved apartment buildings and department stores that clearly were not skyscrapers), but it bears mentioning that Illinois, home of many early skyscrapers, produced a large number of appellate decisions involving elevators during this time period; perhaps appellate courts with discretionary jurisdiction in that state decided that these cases were worth hearing, if only because the construction of more high-rise buildings would mean more elevators, and a greater need for appellate precedent to guide the cases that would result from accidents involving these devices.

I’ll go into a little more detail about the disappearance of tort subspecies like the falling-elevator cases, after the jump.

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The Yale Law Journal Online: Beware of Prods and Pleas: A Defense of the Conventional Views on Tort and Administrative Law in the Context of Global Warming

The Yale Law Journal Online has published a response to Benjamin Ewing and Douglas Kysar’s article Prods and Pleas: Limited Government in an Era of Unlimited Harm, which appeared in the November 2011 issue of YLJ. In Beware of Prods and Pleas: A Defense of the Conventional Views on Tort and Administrative Law in the Context of Global Warming, Richard Epstein argues Ewing and Kysar’s “prods and pleas” will not solve the issue of global warming. Because global warming is a worldwide phenomenon, “the traditional allocation of responsibility between private rights of action (for large concentrated harms) and direct government administrative action (for diffuse harms) remains the proper approach.” Epstein suggests that the Supreme Court made the correct decision in American Electric Power Co. v. Connecticut and adds that the powers given to the Environmental Protection Agency displace private rights of action under both federal and state law.

Preferred citation: Richard A. Epstein, Beware of Prods and Pleas: A Defense of the Conventional Views on Tort and Administrative Law in the Context of Global Warming, 121 YALE L.J. ONLINE 317 (2011),


Ye Olde Professor’s Guide to Building an Exam Curve

Shortly after I joined the faculty at Santa Clara Law, I wandered into the area of our library dedicated to a collection of Arcana and Occult texts. (Disclaimer: This section of the library does not, in fact, exist.) My goal: to find advice for drafting my first set of law-school examinations. I was concerned about making my exams too easy, and wanted some tips on how to construct tough, but fair, tests.

There was no one else about; the hour was late, the staff and students had left. As I wandered about the stacks, one tome caught my eye. The gold lettering on its spine twinkled in the candlelight. I reached out for it – or did it reach out for me? – and, I swear to this day, it leapt off the shelf and sprung open in my hand.

The page that revealed itself bore the image of a man dressed in ancient professor’s garb; of what precise vintage I could not tell, and there was no caption to disclose his identity. Instead, next to the portrait on the yellowed, crumbling page lay this text, written in what I hoped beyond hope was simply reddish-brown ink: “Ye Olde Professor’s Guide to Building an Exam Curve.”

Eureka! This was precisely what I had been looking for, so I read on. I will spare the reader a full recitation of the text that followed, save to say that H.P. Lovecraft himself might have claimed its contents. To ensure that my eyes, and my eyes alone, are the only ones scarred by what these pages revealed, I will simply summarize the advice it conferred, for professors and students to do with what they will. Much of this counsel concerned the concoction of Torts examinations, but may cast its dark shadow elsewhere.

The Guide related five tips:

1. Divide and Conquer

First, the accursed manual advised me to space the facts pertinent to a given issue far apart in a fact pattern. Are you a Torts professor, testing negligence per se? If so, relate the statute or ordinance in question at the very start or very end of the fact pattern, several paragraphs away from your discussion of the conduct that might implicate the measure. Or are you a Criminal Procedure professor, testing the good-faith exception to the exclusionary rule? Reference the date of the incident―say, November 2008―in passing in your introductory sentence, along with several other foundational facts; hold back on mentioning any search of the passenger compartment of a vehicle incident to arrest until a few paragraphs later; and, a few paragraphs after that, finally mention, in as offhand a manner as possible, that the resulting case is being tried in December 2011.  Voila—only the most careful exam connoisseurs will detect that you have laced their drink with a Belton/Gant/Davis good-faith issue.

2. Overlapping Theories, and Peripheral Plaintiffs and Defendants

Here, the guide recommended that I incorporate multiple theories of liability against a potential defendant; students may lock in on only one, and neglect the others. Likewise, defendants such as retailers in a strict products liability hypothetical, employers in a respondeat superior fact pattern, and landowners when intentional tortfeasors are afoot often prove difficult for students to spot, if only because their culpability seems so much less than that of other potential parties.  In the same vein, in a passage I cannot help but quote directly (for I could not have written it myself), the Guide advised, “You will find that passing references to husbands and wives, who might have easily-overlooked wrongful-death or consortium claims, will oil the slope of your curve with student tears.”

3. Dogs that Don’t Bark

The Guide instructed that the best issues, from the standpoint of creating a curve, are those that do not require extensive factual build-up, or peculiar words or phrases that will blow their “disguise” (cf. any reference to “dynamiting” in a Torts examination), but which have a huge impact on the correct answer nevertheless. With Criminal Procedure, standing (in a situation involving multiple defendants) is just this sort of issue; with Torts, but-for causation can have a similar effect―so long as one avoids the word “caused.”

4. Sleight of Hand

Here, the Guide told me, begin by writing your fact pattern such that a particular issue looks like a slam-dunk, with a particular party getting his or her just desserts. Have a drunk driver blow through a stop sign and mow down a nun; he’s guilty of negligence, at least, of course. Or, notwithstanding Rule Three, supra, use variants of the word “conspiracy” to describe a cabal, e.g., “A and B conspired to rob a bank”; they’re clearly guilty, right? Feel free to employ adverbs liberally toward this purpose, e.g., “C cruelly drove drunk and cruelly blew through a stop sign and cruelly mowed down a nun.”

Then, Step Two: Subtly structure the facts such that A, B, and C in fact cannot be found liable. Maybe the nun was pushed in front of the drunk driver, such that even a sober driver who obeyed all traffic laws would have struck her. You get the idea. This way, a student’s moral intuition may cause them to overlook the more subtle reason why, in fact, the defendant can’t be found liable, or successfully prosecuted for a crime.

5. The Ghost

Perhaps most diabolically, the Guide advised me that the best cause of action is sometimes no cause of action at all. Students, it instructed, want to find causes of action, crimes, or other violations of the law within an issue-spotter; an exam that implicates innumerable theories, all of which fail for some reason or another, will prove especially vexing to all but the most confident students.


The reader will have to accept my account of this text’s existence, for as soon as I read the last words above the book shuddered and shook in my hands, then crumbled into dust.  Whether the text yielded wisdom, or only heartbreak, I cannot say; I recount this story solely for posterity, and desire not to be seen as an advocate of its mayhap baleful words.


Corpses, Families, and Property Rights

The Washington Post has reported how the incinerated partial remains of many American soldiers were dumped in a Virginia landfill. I’m not an expert on Virginia law, the Federal Tort Claims Act, or the Feres doctrine, and so I have no idea if the close relatives of these soldiers have viable claims for the negligent infliction of emotional distress (though if any commenters want to weigh in with their informed opinions, I’m all ears), and if so, against whom. What I do know, however, is how these claims likely would have been handled a century ago, had the government not been the defendant.

Back then, close family members of a decedent were regarded as having a property right in the corpse of their loved one. If the corpse had been improperly handled, they could sue and recover for infringements of this right. Unauthorized dissections, autopsies, and burials at sea provided the grounds for most of these lawsuits.

It sounds strange, today, to say that someone has a property right in someone else’s corpse. It sounded strange then, too, but the property right was a legal fiction that functioned as a work-around to avoid the then-prevailing general bar against recovery for “pure” negligent infliction of emotional distress.

Since the barriers against these recoveries have fallen (to a degree), the need for a separate corpse-mishandling tort has more or less disappeared. Just as it is slowly ushering of the tort of insult out the door, the Second Restatement of Torts half-heartedly relates a distinct rule for corpse-mishandling claims (at section 868, which provides, “One who intentionally, recklessly or negligently removes, withholds, mutilates or operates upon the body of a dead person or prevents its proper interment or cremation is subject to liability to a member of the family of the deceased who is entitled to the disposition of the body”), but the drafters also observe that the cause of action is really one for emotional distress.  Underscoring the tort’s tenuous status, a tentative draft of the Second Restatement noted that it was “probably” desirable to maintain the separate treatment of corpse mishandling claims, “at least for this Restatement.”

(I promise to avoid connecting the news of the day with ancient tort theories from this point forward in my guest-blogging stint.  Unless, that is, Jennifer Aniston finally gets around to filing an alienation of affections lawsuit against Angelina Jolie, some celebrity gets sued for champerty, or Donald Trump finds himself on the receiving end of an ancient lights claim.)


Erin Andrews and Insult

Some of you may have seen that ESPN reporter Erin Andrews recently re-filed her civil lawsuit against a Nashville, Tennessee hotel for negligence and invasion of privacy. This lawsuit follows upon the surreptitious videotaping of Andrews by one Michael Barrett, named as a co-defendant in the case. Barrett has since been convicted of stalking, and has been sentenced to more than two years in prison.

In her complaint, Andrews alleges that the hotel acted negligently in at least three respects: it informed Barrett which room she was occupying, it allowed him to rent an adjoining room, and then it failed to discover that Barrett had altered the peephole of her door so as to allow his videotaping.

Do these facts, if shown, state a case for the jury?  Probably.  The closest case on point I could find (and I’ll admit, I didn’t look all that hard) is Carter v. Innisfree Hotel, Inc., a 1995 decision by the Alabama Supreme Court.  Addressing a lawsuit brought against a motel by two former guests, the Carter court found that triable issues of fact existed under both invasion of privacy and negligence theories after the plaintiff couple (1) reported that they heard suspicious noises emanating from a wall, (2) had sex, and then (3) later discovered, behind a mirror on the wall, a hole that could have been used to spy on them while they were fooling around.

Perhaps more interesting (at least to me; hey, I’m a law professor), in addressing the plaintiffs’ negligence cause of action, the Carter court relied heavily on old decisions that involved claims sounding in the archaic, now-moribund tort of insult. Insult cases were somewhat common a century ago. They are almost unheard-of today, at least as a cause of action distinct from negligence or intentional infliction of emotional distress (more on that below).

Back around 1900 or so, a claim for insult might lie when a railroad conductor in the Deep South directed a Caucasian passenger to a passenger car reserved for African-Americans; when a streetcar employee allowed a female customer to be harangued by her fellow passengers; or when a hotel detective spied on guests. The common facts being (1) a common carrier or innkeeper defendant, and (2) conduct that, while offensive given the place and time, did not have to rise to the level of outrageousness that we associate today with a viable claim for intentional infliction of emotional distress.

As I discussed a while back, insult disappeared as a distinct cause of action in part because much of its conceptual space came to be absorbed by negligence and the “new” tort of intentional infliction of emotional distress; it was basically caught in a no-man’s-land between these two expanding theories of liability. (Plus, maybe we’re simply more used to rude treatment by common carriers these days.)  The insult tort earned separate mention in the Restatement (Second) of Torts (at section 48, titled “Special Liability of Public Utility For Insults By Servants”), but just barely; today, it’s pretty much extinct as a distinct cause of action.  Instead, facts that once might have given rise to a cause of action for insult are now analyzed under generic negligence  or intentional infliction of emotional distress principles.

What does this mean for Erin Andrews, and her lawsuit?  Not a whole lot, I suppose.  At most, the existence of the cause of action and its echo in modern precedent underscore the heightened responsibilities of hotels and innkeepers, even under negligence doctrine.  But given all of the other interesting aspects of her case, it would almost be too much for an archaic tort theory to also be in the mix.


The Increasing Use of Compensation Funds

I’ve taught Torts for many years, but I’ve never found a research subject in that area that grabbed my attention.  One possibility, though, is the growing trend to create a fund (usually run by Ken Feinberg) to compensate victims of a disaster in exchange for their decision to forego litigation.  This was done for 9/11, for the BP oil spill, for the stage collapse at the Indiana State Fair this summer, and for other situations.

There are several interesting features to what is, in essence, an ad-hoc move to a workers-compensation/no fault system for these alleged wrongs.  First, why do lawmakers sometimes choose to create a fund and sometimes not?  Second, do these funds work well?  Third, to what extent does the existence of a fund undermine (at least with a jury) litigation claims by people who refuse to submit their claims to the fund?  Fourth, should these funds be converted from a voluntary to a mandatory system?

Perhaps someone has written a good article on this development already.  If so, please let me know.


My Holiday Card to Concurring Opinions Readers


Final Examination
Professor Graham
Holiday 2011 Semester


1. You have three hours to complete the exam,
which consists of a single question.

2. This is a closed-book exam.

3. Assume that the facts as given are true, and take place in the fictitious State of Confusion.

4. Good luck!


On Christmas Eve 2011, Santa Claus landed his sleigh atop the roof of the Adams household. After squeezing down the chimney, he left gifts for the Adams family, ate the milk and cookies that had been left out for him, and then shimmied back up the chimney to the roof.

As Santa prepared to board his sleigh, he slipped and fell on an icy shingle. Santa tumbled down the roof and crashed into the bushes below, hurting his back. Mr. Adams had seen the ice on his roof earlier that day, but decided not to clear it off; the task seemed like a lot of work, it was cold outside, and there was a good football game on TV. As Santa lay injured in the bushes, a partially unwrapped gift—a Chia Pet—inexplicably fell from (or was disgustedly tossed out of) a window at the Adams residence, and clobbered Santa on the head.

The tumult caused Santa’s reindeer to panic and fly off without him. The out-of-control reindeer and sleigh crashed into and pulverized the chimney at the nearby Batista household. Meanwhile, the Chen and Davis children had been “nice” this year, but received no presents due to Santa’s injury and the runaway sleigh. Believing that Santa considered them “naughty,” the Chen and Davis kids suffered serious emotional distress.

Later that night, one of the gifts that Santa had left for the Adams family, a Sniggie® blanket (like a Snuggie, only cheaper), spontaneously burst into flames. The ensuing fire burnt the Adams house down to the ground.

Finally, the events related above caused some scales to topple onto a woman standing at a train station in Brooklyn.

Identify and evaluate the torts implicated by the foregoing facts, taking care to consider, inter alia:

1) Whether Santa is best classified as an invitee, licensee, or trespasser at the Adams household, assuming that the State of Confusion continues to adhere to these categories;

2) Whether the doctrine of res ipsa loquitur applies to the defenestrated Chia Pet;

3) Whether Santa would be liable for the chimney damage in a “fence out” jurisdiction;

4) Whether any duty existed to protect the Chen and Davis children from the harms that they suffered; and

5) Whether Santa can be held strictly liable as a “distributor” of the defective Sniggie® blanket.

Happy Holidays!


Messerschmidt v. Millender: What’s Next, After the Supreme Court Rules?

Not Quite Messerschmidt, But You Get The Idea

The United States Supreme Court will hear oral argument tomorrow in Messerschmidt v. Millender.  In this § 1983 case, the Court will consider the circumstances in which a law enforcement officer who prepares or executes an overbroad and/or insufficiently particularized search warrant is entitled to qualified immunity from damages.

Orin Kerr has posted an analysis of the case over on SCOTUSblog; I have little to add to his thoughtful commentary. As Professor Kerr appears to, I anticipate that the Supreme Court will find that on the facts before it, the police officers in question are entitled to qualified immunity, and reverse the United States Court of Appeals for the Ninth Circuit.

But what if it doesn’t?  The case will return to the district court, and that’s when the really interesting (and under-examined) legal issues will arise. A very large share of the appellate caselaw that involves claims brought under § 1983 concentrates upon whether a defendant or defendants are entitled to qualified immunity. There is a relative dearth of precedent concerning matters such as damages and, especially, causation.  On any remand in Messerschmidt, however, possible causation and damages problems with the plaintiffs’ case may loom large, as they did in the last warrant case decided by the Supreme Court, Groh v. Ramirez.

In Groh, as some of you may recall, a law enforcement officer (an ATF agent, to be precise) goofed by failing to list the items to be seized in the search warrant itself (in the space on the warrant reserved for identification of these items, he simply typed in the premises to be searched). These items were identified in the affidavit, however, which also stated probable cause for the search. On these facts, the Groh majority held that qualified immunity was not available to the officer.

Once the case was remanded back to the district court, the United States (Groh was a Bivens case) emphasized that the error in question really wasn’t the cause of significant damages.  To understand this argument, recall that in tort law, a plaintiff must show that the defendant’s negligence was a “but for” cause (also known as a “cause-in-fact”) of the plaintiff’s injury. The key word is “negligence,” to be distinguished from “conduct.” The Third Restatement of Torts illustrates this point using a hypothetical driver who hits a pedestrian while driving 57 miles per hour in a 50-mile-per-hour zone. According to the Restatement, if the pedestrian sues the driver for negligence, her claim will falter for lack of causation, unless the driver would not have hit the pedestrian (or would have caused less damage) if he had been driving at the 50-mile-per-hour speed limit. (Significantly, in the Restatement’s ‘non-negligent’ counterfactual, the driver is operating his vehicle at a speed that’s at the very cusp of negligence.)

Similarly, on remand in Groh, after pointing out that conventional tort rules regarding causation apply in  § 1983 cases, the United States argued that in a perfect world that resembled what actually happened—except that there was no drafting error with the warrant—a search warrant for the premises still could and would have been issued and executed, in precisely the same way that the flawed warrant was. Therefore, according to the United States, the plaintiff in Groh should receive only nominal damages, since the agent’s error, properly isolated, did not cause any actual damages.

Groh settled prior to trial, so we don’t know how that argument worked out for the United States. Nevertheless, it seems likely that if the Supreme Court affirms the Ninth Circuit in Messerschmidt, the defense will make a similar argument on remand. The principal damage item in Messerschmidt appears to be the alleged emotional distress associated with the officers’ entry. (Here, keep in mind that the warrant was executed at around 5:00 a.m.) As in Groh, the defense will stress that the same entry presumably would have occurred pursuant to a properly tailored warrant, meaning that the plaintiffs’ primary damage item wasn’t really caused by the problem with the warrant.

This argument has its strengths and weaknesses (or at least, limitations), which I will avoid for now. Perhaps the more important point is that while we all focus a great deal on qualified immunity, other elements of a § 1983 cause of action remain precedential terra incognita, or nearly so, as to many of the different types of claims catalyzed by the statute.  It takes time to “fill in” the law surrounding a legal theory, and there simply haven’t been enough published decisions regarding many § 1983 theories for this to have occurred.

Moreover, certain attributes of a cause of action tend to be “filled in” faster than others.  My suspicion is that but-for causation is typically either the last, or one of the last elements of a claim to develop a substantial body of useful caselaw-created rules.  The delay owes to the fact that but-for causation is doubly shielded from appellate review.   A jury normally determines the “cut-off” line between negligence (or otherwise improper conduct) and non-negligent behavior; and as the Restatement hypothetical illustrates, it is this cut-off that serves as the baseline for their subsequent causation determination.  In effect, an appellate court tasked to review a but-for causation determination by a jury must peer inside a black box that is itself hidden inside another black box.  Little wonder, then, that there exist few useful but-for causation guideposts in the caselaw.