In the New York legislature, bowling alleys are hoping to win a law protecting them from slip-fall liability arising after their customers wear store-rented shoes outside the building and either slip there or track snow or other slippery matter back inside. Weather hazards have been tripping up more customers of the ordinarily indoor sport, it seems, since the state enforced a complete indoor smoking ban. The trial lawyer association is dead set against the bill; its president claims that the bill “undercuts the constitutional right to a trial by a jury” — presumably on the theory that it somehow undercuts trial by jury for a legislature to roll back any instance of liability for anyone anywhere. That’s sheer nonsense, of course — otherwise, it’d have been unconstitutional for legislatures around most of the country to have abolished the old heartbalm torts of breach of promise to marry and alienation of affection. [Albany Times-Union via Future of Capitalism] More: Lowering the Bar.
Kyle Graham asks why that variety of “heartbalm” action remains a vital and frequently used tort in the Tarheel State, but not elsewhere, though it remains on the books in ten or so other states. “The popularity of the tort in North Carolina suggests, at least to me, the importance of inertia and claim consciousness in tort law.”
Distantly related: demise of Breach of Promise to Marry laws linked to rise of engagement rings [Margaret Brinig via Matthew O'Brien via Sullivan]
This time they’ve ensnared a judge accused of seducing another man’s wife. Maybe that will be enough to get the causes of action abolished at last. On John Edwards’s possible worries about legal liability, see this post from last year. [OnPoint]
The defendant wasn’t at trial and didn’t have a lawyer, and plans to appeal; the judgment might as well be for $73 gazillion, as the ex-husband is already in contempt of court for failure to pay spousal support. (Greensboro News-Record March 18 and March 17 via Volokh). We’ve been covering the issue for years, as a click on the tags will reveal.
Per ABC News, Andrew Young says that Elizabeth Edwards has threatened him with a lawsuit under North Carolina’s law permitting lawsuits against third parties — not limited to paramours — who helped break up a marriage. We’ve been covering the workings of this law for years at Overlawyered, and Ted may have been the first to spot its possible application to the Sen. Edwards squalor-ama. Much more at Death by 1000 Papercuts. (Rewritten somewhat for clarity 1 p.m. Eastern; & welcome Mickey Kaus readers)
North Carolina’s alienation of affection law strikes again. [WRAL via Lawyers USA; earlier]
More from commenter “spudbeach”: “I am _sooo_ glad that I live in Wisconsin. Not only are alienation of affection lawsuits not allowed, it is actually illegal to even threaten one! Wisc. Stats. 768.03 makes it illegal to threaten, and 768.07 sets the penalty to $10,000 fine and/or 9 months in jail.” And XRLQ observes that these laws (still on the books in Hawaii, Illinois, Mississippi, New Hampshire, New Mexico, South Dakota, and Utah, as well as North Carolina) could impose liability not just on paramours, but on plain old friends or acquaintances who’d encouraged an unhappy spouse to leave a marriage. Yet more: Robinette, 2007 (via); The Briefcase.
Social conservative Maggie Gallagher, with whose views we have been known to differ, suggests a tort of “facilitating” adultery that would apply to businesses that “that intentionally and explicitly attempt to profit from acts of adultery”. [NRO "Corner", first, second posts]
P.S. Eugene Volokh now has a more lengthy and serious treatment: “you can love marriage and hate adultery without thinking that more tort liability will make things better.”
I have no idea if the allegations that former presidential candidate John Edwards has a love-child with Rielle Hunter are true–though his actions seem pretty damning.
But let me be the first to point out that, if the allegations are true, Elizabeth Edwards can take advantage of North Carolina’s unusual tort law to sue Hunter for alienation of affection. When we last looked at the state of affairs in North Carolina in 2006, there were 200 such suits a year, with some verdicts in the six and seven digits. Of course, Mrs. Edwards would need a trial lawyer willing to take on her husband first.
Efforts to abolish the tort in the state have not been successful, though it is worth noting the fact that several dozen states have abolished heartbalm statutes without anyone suggesting that this tort reform is constitutionally problematic.
Update: Edwards persuades me that the story might be true when he gives a lawyerly non-denial denial filled with negative pregnants: “That’s tabloid trash. They’re full of lies. I’m here to talk about helping people.” Someone needs to ask a more targeted question of a purported candidate for vice president or attorney general.
Arthur Friedman announced to his wife, Natalie, after ten years of marriage, that he wanted the couple to engage in group sex and swinging, so he could gratify himself watching his wife have sex with other men. Natalie, however, fell for one of her partners, German Blinov. The two left their spouses and ran off with one another. Arthur sued Blinov under the Illinois alienation of affection laws, and, amazingly enough, won $4802 from a jury that thought the case was stupid. (Steve Patterson, “Putting a price on love”, Chicago Sun-Times, Jul. 1). The former Mrs. Friedman expresses dismay about the award, but it’s not clear whether it’s the fact of the award or the trivial amount that offends her. Chicagoist and Alex Tabarrok are appropriately appalled.
Most states have passed the tort reform of abolishing the alienation of affection cause of action. Earlier on Overlawyered: Nov. 2006 and May 2005 (North Carolina); Nov. 2004 (Illinois); May 2000 (Utah).
Update: Of course, one doesn’t necessarily need that 19th-century cause of action when entrepreneurial lawyers are in play. Recently fired WellPoint CFO David Colby allegedly rotated among several girlfriends he met on a dating website, several of whom he allegedly promised to marry, even as he was married to someone else (albeit separated). One of the ex-girlfriends is suing WellPoint for “facilitat[ing] Colby’s lifestyle”; it seems Colby pointed to his webpage on the WellPoint site to seduce some of his targets. (Lisa Girion, “WellPoint named a defendant in sexual-battery suit”, LA Times, Jun. 29; see also “Women claim lives with WellPoint exec”, LA Times, Jun. 13 (no longer on web)).
Newsweek looks at North Carolina’s cottage industry of tort actions by wronged spouses against the cads, hussies and assorted homebreakers who put an end to their domestic felicity (see May 22, 2005, Nov. 16, 2004, and May 18-21, 2000). “Although alienation of affection is rarely invoked in most states, a series of high-profile judgments in North Carolina, including one in 2001 for $2 million, have inspired more than 200 suits annually in recent years. Lawyers say people typically file these claims as leverage in divorce and custody disputes. ‘A wife says I’m going to sue your girlfriend if you don’t give me $50,000 more in property settlement. That’s an improper use of the [law], and it shouldn’t take place,’ says A. Doyle Early Jr., former chair of the North Carolina Bar Association’s family law section. … Conservative [i.e., Religious Right] groups like the North Carolina Family Policy Council say the law should stay on the books”. (Julie Scelfo, “Heartbreak’s revenge”, Dec. 4).
The North Carolina Bar Association is pressing to abolish the state’s unusual cause of action for alienation of affection, a carryover from common law days in a few states which allows a wronged spouse to sue the other spouse’s paramour for having broken up the marriage. The law is still sometimes used, and in fact damage awards have been escalating briskly in the Tarheel State, reaching $500,000 (later reduced) in a 1990 Forsyth County case and $1.2 million in a case eight years ago in the same county. “Most of the time, lawyers said it costs as much or more to try these kind of cases than the injured party stands to win,” and Raleigh family law practitioner Lee Rosen says he often discourages clients from filing such a suit because by poisoning the atmosphere it “destroys the possibility of future cooperation” on, e.g., custody matters. (Amanda Lamb, “Some Want To Get Rid Of ‘Alienation Of Affection’ Lawsuits”, WRAL, Feb. 2). See Nov. 16, 2004; May 18-21, 2000.
While just about everything else has become more actionable in today’s compensation culture, there has been a countertrend in family law. Most states have barred suits for the ancient tort of “alienation of affection” by jilted spouses. Utah (May 18, 2000) and North Carolina are exceptions, as is Illinois; there, Steven Cyl is suing a neighbor he says stole his wife. “Is this thing for real?” asks the defendant. Previous Illinois alienation-of-affection plaintiffs include the always-entertaining ex-Rep. Mel “Did I win the Lotto?” Reynolds, whose case was thrown out for unspecified reasons. (Steve Patterson, “‘This guy, he ruined my life’ — so man sues”, Chicago Sun-Times, Nov. 15 (via Bashman); “Former Congressman Mel Reynolds takes estranged wife’s lover to court”, Jet, Aug. 12, 2002; “Davidson Wrestling Coach Awarded $1.4 Million For ‘Theft of Wife?s Heart’”, North Carolina Lawyers Weekly, May 23, 2001). The ever-obnoxious Pat Buchanan approves. (“What is a Family Worth?”, Aug. 11, 1997; Hutelmyer v. Cox (N.C. App. 1999)).