Category: Tort Law


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.


Summers v. Tice: The Rest of the Story

Most law students encounter Summers v. Tice in their introductory Torts courses. If you are (or were) among these students, you probably recall the basic facts: two negligent hunters, two simultaneous (or nearly so) shotgun discharges, one injured companion (shot in the right eye [necessitating its removal] and upper lip), only one culprit, but no way for the plaintiff to tell who shot him. Given these circumstances, the Summers court flipped the burden to each of the two defendants to exonerate himself, rather than allowing the plaintiff to founder on the shoals of but-for causation and the preponderance standard of proof.

The California Supreme Court’s opinion in Summers is pretty short, and I’ve long been curious about the defenses that the defendants (Harold Tice and Ernest Simonson) raised in this case. So I went to the California State Archives a while back and read through the case file.

An interesting story emerged. Whereas Simonson did not put on a very aggressive defense at trial, Tice did. Simonson conceded that both he and Tice had fired shots that could have caused Summers’ injury. Tice, by contrast, testified that Simonson, and Simonson alone, had shot the plaintiff, and that in fact Tice had not fired his gun for minutes prior to the fateful blast. To the same effect, Tice produced two deputy sheriffs as witnesses. These men testified that when they interviewed Simonson shortly after the accident, Simonson had told them that he was “the one” who had fired the shot (though on cross-examination, one of the deputies hedged a bit on this point).

Moreover, Tice argued that but for the plaintiff’s own negligence, he could have identified his assailant.  Specifically, Tice testified that he had been using No. 6 shot, whereas Simonson had been using No. 7½ shot. The two pellets are of slightly different size, and capable of distinction.  Summers himself testified that, although the shot had been given to him after its removal, he could not find it when he looked for the pellets at his home.  These facts, if accepted, place a very different spin on the case. One could no longer say that the defendants were in a better position than the plaintiff was to identify who fired the injurious shot, which of course was a key ingredient to the Summers decision.

Unfortunately for Tice, he apparently did not strike the trial judge (it was a bench trial) as a particularly persuasive witness. The judge made findings of fact that “the defendants, and each of them, were guilty of gross negligence in firing a gun in the general direction of the plaintiff”; that Tice’s testimony that he had not fired his gun for minutes prior to the accident was untrue; and that both defendants were using No. 7½ shot.

These findings of fact paved the way for the California Supreme Court’s decision above, following a short-lived reversal by the Court of Appeal.

The lesson, if there is one: Credibility matters.

Summers v. Tice, kind of


“Mad Men” Meets Prosser?

I recently visited the American Law Institute archives, maintained by the University of Pennsylvania. There, I dove into the ALI records that relate to the development the Restatement (Second) of Torts. The documents I saw reveal a great deal about the creation of this treatise, and the atmosphere in which it was prepared.

For example, have you ever wondered what the scholars responsible for the Restatement drank, when they met back in the 1950s? Me neither, but I was nevertheless impressed by this beverage menu for a 1956 meeting of the Second Restatement’s advisory committee. If nothing else, it establishes that the committee had the good sense to repair to an establishment that offered both manhattans and martinis by the gallon.

But, one might think, the fact that these drinks were available at the meeting doesn’t mean that they were consumed there. Well, before taking a position on this question, it might be wise to review this schedule for the session, which indicates that drinks were to be served before lunch, at lunch, and at the close of each day’s discussions.

(Images courtesy the University of Pennsylvania University Archives and Records Center, American Law Institute Archives [Restatement (Second) Category; Restatement (Second) Torts Record Group, Box 25, File Folder 25-2])


Recommended Reading: Gregory Keating’s Fairness Theory, New Papers on Rylands and Nuisance

Professor Gregory Keating has two new pieces up on SSRN, both illuminating and important.  A quick overly-brief primer: Keating’s fairness theory provides the “moral logic” for treating strict enterprise liability as the modern default rule for tort law.  It requires an enterprise to compensate individuals injured by its risky, yet profitable activities if the victim does not benefit from those activities to the same extent that the enterprise does.  In that sense, strict liability exacts a just price for an enterprise’s freedom to engage in profitable activities where the victim did not similarly enjoy such a liberty but nonetheless suffered injury.  In the abstract included below for Recovering Rylands: An Essay for Bob Rabin (forthcoming DePaul Law Review), Keating celebrates and builds upon Robert Rabin’s article “The Historical Development of the Fault Principle,” providing a moral and historical account of Rylands v. Fletcher’s strict liability alternative to fault liability while recognizing its practical limitations.  After the jump, I will include the abstract for Keating’s Nuisance as a Strict Liability WrongHere is the abstract for Recovering Rylands:

This paper, written for a Clifford Symposium Festschrift for Robert Rabin, comments on his lovely, widely admired, and yet still underappreciated paper The Historical Development of the Fault Principle: A Reinterpretation. Rabin’s paper teaches us something essential about the character and structure of modern tort law at the moment of its genesis, and it reminds us of the even more general truth that what the law does not cover is at least as important as what it does cover. The Historical Development of the Fault Principle is constructed around a simple, but powerful, distinction between fault as a breach of duty and fault as a cause of action. Negligence as a cause of action is an institution, a system of related rules, concepts, principles and policies. This simple but penetrating observation transforms the question of just what is at stake in the conventional thesis that the late nineteenth century was the heyday of “universal fault liability.”

Whether or not fault liability was “universal” at the end of the nineteenth century turns, Rabin teaches, not on whether tort liability for accidental injury is constructed around fault or strict liability. The “universality” of fault liability is, rather, a question about the percentage of the legal landscape for unintentional harm that the institution of negligence liability governs. Building on this point, The Historical Development of the Fault Principle shows that the age of “universal fault liability” is better described as an age where “no duty” predominated. Tort liability – fault liability retreated whenever contract was capable of taking hold of a domain of accidental injury. It retreated both in the presence of contractual relations (in the workplace context) and in the absence of contractual relations (in the product context). Property, contract, and “no duty” all trumped tort. This insight not only changes our understanding of the rise of fault liability; it also provides a powerful rebuttal of the still influential, if waning, view that the common law of torts circa 1870-1905 was economically efficient.

Rabin’s critique leaves intact the thesis that negligence liability itself emerged as a freestanding form of tort liability at the end of the nineteenth century. Prior to that time, negligence was merely the mental element of a number of discrete, nominate torts. Late in the nineteenth century, negligence transforms into a norm of conduct and thereby emerges as a distinctive form of tort liability. This development sets the stage for the expansion of fault liability into the domains of product accidents, landowner liability, and some forms of pure economic and emotional harm. The late nineteenth century thus sets the stage for the “universal fault liability” that it so conspicuously fails to achieve.

Recovering Rylands argues that Rylands v. Fletcher represents a parallel development with respect to strict liability. Rylands generalizes ancient forms of liability in nuisance and trespass into a coherent, general alternative to fault liability. The opinions in the case both articulate strict liability as a general principle of responsibility for harm done and clarify the fundamental perception on which strict liability rests, namely, that harm justifiability inflicted – harm which is unavoidable in the sense that it should be inflicted – can trigger responsibilities of repair. The idea that the justified infliction of harm gives rise to responsibilities of repair stands in sharp contrast to the root premise of fault liability, and accounts for the enduring significance of strict liability as form of legal responsibility for harm done.

After excavating the basis and nature of strict liability in Rylands, the paper traces the ebb and flow of the strand of strict liability that it inspired over the past century and a half. On the one hand, that history shows that fault liability is never universal, though generally dominant. On the other hand, that history suggests that the difficulty of attributing harms to activities without deploying a fault criterion may be a permanent, insurmountable barrier to universal, common law strict liability. Last, but surely not least, Rylands’ articulation of strict liability as a general idea is an essential part of the formative moment of modern tort law that Bob Rabin did so much to help us understand. Adding an account of Rylands is a way of building on his seminal contribution. Read More


Assumption of Risk and Product Liability

Today I taught assumption of risk in Torts and was struck for the first time by a parallel between that doctrine and product liability law. Perhaps others have already noticed the point that I’m about to make, but if so I was unaware of the connection.

In most assumption-of-risk cases, we are asking if a defendant should be found negligent in a circumstance where an activity undertaken by the plaintiff contains an element of danger that is exhilarating.  For example, somebody who falls on an ice rink cannot successfully claim that the rink was negligently maintained because it was slippery.  Why?  Because ice skating would not be enjoyable if it was too safe. A similar rationale applies to many other recreational activities that involve risks that are thrilling.

What are the exceptions to this idea?  One would be if the defendant operated the activity in a way that increased the normal risk of harm in a substantial and unanticipated way.  A rink with thin ice that people fall through, for instance, is not a risk that a skater would reasonably anticipate. Another is that a leisure activity could simply be too hazardous. Society may conclude that certain sports (e.g. boxing) should be banned no matter how well they are run or how many people want to play. Finally, there might be situations in which the defendant did not adequately warn a plaintiff of the conventional risks of the activity.

These three limits to the assumption of risk are nearly identical to the three types of product liability defect.  A manufacturing defect involves a product that does not perform as expected and causes harm. A design defect involves a product that works perfectly well but is judged to be too dangerous. And a warning defect involves an insufficient description of a product’s risk.

I’m not sure what to make of this analogy, but perhaps one body of law can shed light on the other.


YLJ Online Symposium: Climate Justice and the Elusive Climate Tort

The Yale Law Journal Online‘s new series, Summary Judgment, which features timely responses by academics and practitioners to recent court decisions, continues with the third installment of its symposium on the Supreme Court’s June decision in American Electric Power Co., Inc. v. Connecticut, 564 U.S. __ , 131 S. Ct. 2527 (2011) (AEP).

In Climate Justice and the Elusive Climate Tort, Professor Maxine Burkett considers AEP from the perspective of climate justice, a field that focuses on the “intersection of race and/or indigeneity, poverty, and climate change.” She argues that by rejecting common law nuisance claims in AEP, the Court precludes a valuable mechanism for ensuring climate justice. Her commentary centers on the Ninth Circuit case Native Village of Kivalina v. ExxonMobil Corp., in which an Inupiat community in Alaska is seeking compensation from world’s largest oil companies for global warming-induced damage to the group’s ancestral homeland. Professor Burkett proposes an interpretation of AEP that potentially would allow the claims in Kivalina to survive. Ultimately, she concludes that in the post-AEP world, lower courts can distinguish “between the injunctive relief sought in AEP and the compensatory relief sought in Kivalina”; while AEP may preclude injunctive relief, the lingering possibility of compensatory damages in climate-change cases suggests that “the disparately impacted may enjoy appropriate recourse.” According to Professor Burkett, courts play a role that regulations cannot usurp: “climate tort claims would be the courts’ distinct contribution to what will hopefully be a diverse and multi-layered commitment to rectifying, at least in part, the losses of the climate vulnerable.”

The Summary Judgment series is available on YLJ Online. Please also visit the site to read our latest Online Essays and to view recent issues of our print edition in an electronic format.


Qualified Immunity and Nominal Damages

James Pfander recently posted an interesting essay on qualified immunity that will be coming out in Columbia Law Review. His idea is that the Supreme Court should hold that if someone sues a government official for a constitutional tort and seeks nominal damages (in other words, $1), qualified immunity should not apply. His argument is that this will lead to more clarity with respect to constitutional rights while protecting officials from liability for their actions when the law is unclear. I am sympathetic to this approach, as I’ve posted many times about my dissatisfaction with the state of qualified immunity doctrine.

Nevertheless, I’m not sure how effective this reform would be.  First, how many plaintiffs will be willing to forego the possibility of a monetary settlement?  The answer is not zero, but it may not be enough have an impact.  Second, a suit for nominal damages still subjects state officials to burdensome discovery, and the desire to shield them from that is one of the rationales for qualified immunity. Thus, I am not sure that the Court would go in the direction that Pfander suggests.  Finally, the lower federal courts have generally rejected the position taken by the Essay, which does create an uphill struggle to get the Supreme Court to adopt the opposite view.

No More Secret Dossiers: We Need Full FTC or CFPB Investigation of “Fourth Bureau” Reputation Intermediaries

There is a superb article by Ylan Q. Mui on the growth of new firms that create consumer reputations. They operate outside the traditional regulation of the three major credit bureaus. Mui calls this shadowy world of reputational intermediaries the “fourth bureau.” The Federal Trade Commission should conduct an immediate investigation of the “black box” practices described by an industry leader in the article. This should be part of a larger political and social movement to stop the collection of “secret dossiers” about individuals by corporate entities. The Murdoch scandal now unraveling in Britain is only the most extreme example of a wholesale assault on privacy led by unscrupulous data collectors.

Once a critical mass of data about a person has been collected for a commercial purpose, she deserves to know what the data is and who is gathering it. Once an educator, employer, landlord, banker, or insurer makes a decision based on that data, the affected individual should be able to challenge and correct it. I have made a preliminary case for such reforms in my chapter Reputation Regulation, in this book. I now think this agenda is more urgent than ever, given the creeping spread of unaccountable data mining in the internet sector to a wild west of reputational intermediaries.

From a Fair Credit Reporting Act to a Fair Reputation Reporting Act

To understand why, it’s helpful to take a step back and look at how poorly regulated even the established credit bureaus are. As Shawn Fremstad and Amy Traub have noted in the Demos report Discrediting America, ample empirical evidence has confirmed that a vast number of traditional credit bureau files are erroneous:
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