The need for tort reform doesn’t necessarily arise from headline-grabbing blockbuster verdicts but rather a “death by a thousand cuts” of many small suits of questionable merit. Example: A woman sues the party host after drinking and then attempting to get on his horse as part of the party festivities. She falls, suffers injuries and files suit against the host making general allegations of negligence, including, “providing … the opportunity to participate in the ‘inherently dangerous activity of horseback’ ”.
Does the host’s behavior rise to the level of negligence? And, if so how is the woman’s negligence less than his? He may have offered the alcohol; she drank it. He may have offered the horseback ride; she accepted. Have we reached the point in America that we need to have party goers sign waivers for private festivities? But since exculpatory agreements are generally frowned upon by the courts I think I’ll just stay home alone. A lot of fun that will be. (“Suit shows you shouldn’t drink and ride horses”, The West Virginia Record, Aug. 8).
Horse example number 2: Certified Massage Therapist Mercedes Clemens is suing two state agencies because her avocation is massaging horses but the state won’t let her (at least not for a fee) because she is only licensed to massage humans. And, for once it’s really not about the money because she’s not asking for it in her lawsuit, just the right to massage animals. It’s not as if Clemens is practicing pediatric anesthesiology for kicks. So who cares, really?
I suspect it’s the veterinary board or the National Board of Certification for Animal Acupressure (at the behest of its members) who fear Clemens and people like her will poach their clients. And, if the state would simply step out of the way in this instance it could avoid this lawsuit. (“Woman sues for right to massage horses”, MSNBC, Aug. 11 and “Rockville therapist sues state for right to massage animals”, Gazette.Net, Jul 2).
Asbestos litigation has been around a long time. Early on, nothing like modern product liability law existed (see Richard Epstein’s discussion here); lawsuits resided in workplace injury law when filed in the 1920s and 30s, and were soon subsumed in workers compensation reforms.
Modern asbestos litigation began after the Selikoff study was published in 1964. In December 1965, Texas attorney Ward Stephenson filed a case on behalf of Claude Tomplait, who had worked as an asbestos insulator. Four years later, Stephenson extracted a settlement for $75,000 from seven defendants.
Notwithstanding this meager beginning, Stephenson persisted in asbestos litigation and won a major victory in Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076 (1973), in which the Fifth Circuit Court of Appeals found asbestos manufacturers strictly liable for their workers’ injuries. The Borel court rejected statute of limitations, contributory negligence, and assumption of risk defenses; and modern asbestos product liability litigation was born.
The litigation got another shot in the arm when New Jersey attorney Karl Asch uncovered the “Sumner-Simpson papers,” which “described in great detail the efforts of Raybestos, Johns-Manville, and other manufacturers to find out about the hazards of asbestos, develop strategies to deal with them, and–most important–to keep that knowledge from the public and workers.” These documents were put to great effect by South Carolina lawyer Ron Motley, who actually used the papers to convince a South Carolina circuit judge to grant a new trial after a jury had ruled in favor of asbestos defendants. Motley of course went on to become an asbestos super-lawyer and an architect of the multibillion-dollar multistate tobacco settlement; his antics are well-known to long-time readers of this site.
Two more foundational cases are worthy of mention. In 1981, the D.C. Circuit ruled that insurers who had written asbestos policies were liable for the maximum insured between exposure and diagnosis, rather than only in the year of diagnosis. SeeKeene Corp. v Insurance Co. of North America, 667 F.2d 1034 (D.C. Cir. 1981). Given the long latency between asbestos exposure and ultimate illness, the level of insurance exposure was suddenly massive. Circuit Judge Patricia Wald warned that the court’s decision “requires a leap of logic from existing precedent, for it concerns diseases about which there is no medical certainty as to precisely how or when they occur.”
In 1982, the New Jersey Supreme Court threw out the “state of the art” defense for asbestos manufacturers, in essence holding that it mattered not whether business practice was the best available to the industry at the time the injury occurred. See Beshada v. Johns-Manville Products Corp., 442 A.2d 539 (N.J. 1982). The court opined, “The burden of illness from dangerous products such as asbestos should be placed upon those who profit from its production and, more generally, upon society at large which reaps the benefits of the various products our economy manufactures. ”
Thus, in less than a decade, the law was radically shifted, and asbestos litigation was born: “The decade after Borel saw 25,000 asbestos cases filed. By 1981, more than 200 companies and insurers had been sued; by 1982, defendants’ costs had topped $1 billion.” But these early years were just the beginning…
NYU student Avram Wisnia was “horsing around a kiddie pool filled with gelatin” at a dorm party in 2004 when he was pushed and broke his hip. A judge has now ruled he cannot sue the university for allowing the event and having the school food service furnish the gelatin, the risks of such a recreation being obvious enough to put him on notice. (”No Go In Jell-o Wrestling Lawsuit Against NYU”, AP/WNBC, Jan. 29).
In a 3-2 decision, the Utah Supreme Court has held a liability waiver unenforceable, and permitted a skier to sue a resort for his injuries in a skiing accident, notwithstanding his agreement to the contrary by disingenuously expanding a state assumption-of-the-risk statute for ski resorts to forbid any contractual modification of liability. When even Utah refuses to honor contracts, you know we’re in trouble.
Edited to add: For some reason, multiple commenters who haven’t read the opinion are claiming that the only thing the opinion does is require a signature. Not so: Rothstein explicitly signed a release, and the release only covered negligence (permitting Rothstein to sue for intentional torts). Rothstein realized the benefit of the bargain, by getting season tickets for a considerably cheaper price than he would have been able to if the resort knew he wasn’t going to honor his end of the bargain. The Utah Supreme Court (not an intermediate appellate court) rewrote the agreement retroactively. Consumers are hurt.
In the Manhattan Institute’s City Journal, Philip K. Howard, president of Common Good and a longtime friend of this site, contributes an essay on fixing our litigation system. Among his topics: the need for a robust principle of assumption of risk; lessons from the U.K., where a “compensation culture” has spread despite a set of legal procedures that is the dream of reformers on this side of the Atlantic; the role of summary judgment and Daubert review; and the role of predictable law in maintaining the principle of the rule of law (Spring).
John Caher in the New York Law Journal discusses the views of Benjamin Cardozo on assumption of risk:
Assumption of risk in cases arising from athletic or recreational activities is a principle that has been part of New York law at least since 1929, when in Murphy v. Steeplechase Amusement Co., 250 NY 479, Chief Judge Benjamin N. Cardozo said that one who “takes part in … sport accepts the dangers that inhere in it so far as they are obvious and necessary.” That case involved a plaintiff who fell from an amusement park ride called “The Flopper” and suffered a leg injury.
“Nothing happened to the plaintiff except what common experience tells us may happen at any time as the consequence of a sudden fall,” Cardozo wrote in reversing the Appellate Division, 1st Department. “Many a skater or a horseman can rehearse a tale of equal woe… . One might as well say that a skating rink should be abandoned because skaters sometimes fall.” He added: “The timorous may stay at home.”
(”Panel Rules Hurt Olympic Skater Assumed ‘Inherent Risk’ of Sport”, May 1). Declarations and Exclusions (Apr. 7) and Rick Karcher (May 22) have more on some recent assumption-of-risk cases in California, including a 6-1 decision by the state’s high court ruling that a college baseball player could not sue over a “bean ball”. See Mike McKee, “Calif. Supreme Court: Ballplayer Can’t Sue for Bean Ball”, The Recorder, Apr. 10.
Diners who order shellfish, such as mussels, assume the risk of encountering broken pieces of shell, ruled a New York judge who threw out a Long Island woman’s lawsuit against the Blue Moon restaurant in Rockville Centre attempting to recover for injuries arising from her encounter with the allegedly defective plate of mussels marinara. (”Judge Shucks Shellfish Suit”, WCBS, undated, about Jun. 7). More: Lattman, Jun. 12.
Assumption of risk wins one in Hawaii: “A golfer may not be held liable for mistakenly hitting another golfer with an errant golf ball, the Hawaii Supreme Court ruled.” Ryan Yoneda sued after being hit in the left eye by Andrew Tom’s wayward ball at Mililani Golf Course, but “Chief Justice Ronald Moon wrote Yoneda assumed the risk of the injury when he played golf.” However, the court did allow a lawsuit to proceed against the course owner on grounds of negligent design. (AP/San Francisco Chronicle, May 16; Ken Kobayashi, “Golf at your own risk, court rules”, Honolulu Advertiser, May 15).
Alton, Ill.: U.S. District Judge William Stiehl has thrown out Rhonda Nichols’ lawsuit (Apr. 14, 2005) claiming that she was attacked by a bird at a Lowe’s home improvement center, and that Lowe’s should have warned her about the hazard. Judge Stiehl ruled “that a ‘reasonable plaintiff’ either would have noticed the birds or understood that contact with them was possible in any outdoor area with plants.” (Jim Suhr, “Woman’s suit against Lowe’s for bird attack won’t fly”, AP/Chicago Sun-Times, Jan. 5). Courthouse News has the opinion (PDF).
National Review’s 50th Anniversary Issue is on the newsstands (table of contents) and one of its features is a mini-symposium by ten writers on the topic “How To Increase Liberty In America” (more: “Corner”, Jacob Sullum at Reason “Hit and Run”, criticizing Robert Bork’s entry). I’m one of the contributors; my piece calls for reviving the vital old principle of assumption of risk in our courts. The piece is online to subscribers only at the moment.
Speaking of symposium entries that are online to subscribers only: the October issue of The American Lawyer ran a supplement on the cost of litigation, again with contributions from numerous authors. My piece focused on the cost of the discovery (information-demanding) phase of lawsuits.
At some future date I may get around to posting these pieces. In the mean time, readers should consider supporting both these fine publications, whether by subscribing or by buying single copies.
A classic application of the assumption-of-risk doctrine was the rule that ballpark owners were not liable when a foul ball hit into the stands injured a fan. But assumption of risk has been less than popular in the law schools for a long time, and is under constant pressure from the plaintiff’s bar, which would like to curtail or eliminate it. Now, per Law.com, the New Jersey Supreme Court has rolled back the foul-ball rule as regards parts of a stadium devoted to concessions, mezzanines and so forth, though apparently not (yet) seating areas. One likely result: more installation of netting and other screening, even if it impairs fans’ viewing experience. (cross-posted from Point of Law)
You may recall the Center for Justice & Democracy’s Zany Immunity Law Awards criticized the three states that provided immunity to baseball stadiums for spectator injuries. The immunity is based on the common-law doctrine of assumption of the risk, made explicit on the back of baseball tickets and announcements at baseball games. Nevertheless, dentist Neil Pakett is suing the Phillies for compensation for injuries he received when he unsuccessfully tried to catch a foul ball hit by shortstop Jimmy Rollins. The case has been thrown out by the trial court, but Pakett is arguing that the fact that the Phillies built a backstop creates a duty for them to have built a backstop that would’ve protected him. The Phillies will likely win, but they’ve sure spent a great deal of money defending themselves against the eventuality that they have a judge who wants to make new law, and a statutory immunity law would’ve provided a clearer rule that would have discouraged the suit in the first place. (Mark Levy, AP/LA Times, Feb. 4). Update: Phillies’ win affirmed.
According to Tim Sandefur (Aug. 6), musician John Fogerty, best known for his work with Creedence Clearwater Revival, in April of last year “prevailed in a lawsuit brought by an audience member who alleged that Fogerty?s music was so loud as to harm his hearing at the concert. …The opinion [by Judge Martin Schoenfeld], studded with quotations from Fogerty?s songs, held that
there is no standard of care by which a jury could determine on the evidence presented that defendants had breached a duty owed to plaintiff. Without knowing what is ?too loud,? and without knowing how loud the concert actually was, a jury would have to engage in double speculation to conclude that defendants? music was ?unreasonably loud.? Second, the doctrine of primary assumption of risk bars the instant action.
Finding no relevant cases in which concertgoers had been allowed to sue over excessive volume, the court also noted:
Surely this dramatic absence of litigation, in what is perceived to be such a litigious nation, speaks volumes to the fact that the principle applicable to the social compact governing the volume at Rock & Roll concerts is caveat emptor…. Litigation by an ?eggshell ear? plaintiff is not an appropriate means to impose an unlegislated noise code upon performers…and their legions of screaming fans….
The case cite (per Sandefur) is Powell v. Metropolitan Entertainment Co., Inc., 195 Misc.2d 847, 849 n. 1 (N.Y.Sup. 2003).
Over-35 Men’s Slow-Pitch softball player Michael Licitra is suing an opposing player, John Knowles, and the Village of Garden City for $2 million over a broken left leg suffered in a collision at home plate in September 2001. Knowles claims he legally slid head-first; Licitra claims it was a collision that violated league softball rules, though that doesn’t explain why it’s the city’s fault. (Jonathan Mummolo, “Injured softballer crying foul”, Newsday, Jul. 15) (via Romenesko). State Supreme Court Justice Bruce D. Alpert held that the doctrine of assumption of risk “did not relieve the defendant from the obligation of using reasonable care to guard against a risk which might reasonably be anticipated,” which begs the question what Garden City should’ve done differently other than ban softball.
Which, according to Alex Tabarrok, is what is happening to the British school tradition of playing conkers, which occasionally results in bruises from inadvertent (but apparently inevitable) contact. Liability concerns are causing schools to ban the game–along with rugby, soccer, and even recess. The New York Times has an article about the larger issue of the growing problem of American-style lawsuits in Britain. Medical negligence claim costs have risen more than a hundredfold after inflation in the last thirty years. (Sarah Lyall, “Britain’s Stiff Upper Lip Is Being Twisted Into a Snarl”, Jul. 13).
Common Good, the advocacy group chaired by author Philip K. Howard (The Death of Common Sense, The Collapse of the Common Good) and whose motto is “Reforming America’s Lawsuit Culture”, on Apr. 8 announced its first “Gatekeeper Awards” honoring judges who throw out lawsuits that would better never have been filed. Among the cases praised: a Pennsylvania Supreme Court opinion excluding scientific testimony to the effect that Doritos, the snack food, is intrinsically unsafe in texture; a Virginia high court ruling upholding assumption of risk in the case of a baseball spectator hit by a ball; a Third Circuit decision holding that a “public school third-grader cannot sue for being prevented from soliciting classmates’ signatures for a petition opposing a voluntary class trip to the circus”; an Eighth Circuit opinion excluding punitive damages in the case of a patently accidental air crash; and the Nevada Supreme Court’s ruling (see Nov. 7) that a passenger cannot sue a homeowner over injuries sustained when a car crashed into a flowerbed.
Via Legal Reader (May 3): a California court of appeals has reinstated 17-year-old Angelo Seaver’s suit against Santa Cruz county, which a trial judge had thrown out. While stoned on pot one moonless night Seaver had gone skateboarding in a public park after closing and crashed into a gate. The “panel found that because there were no signs, reflectors or lighting to help Seaver see the gate, the county created a ‘dangerous condition of public property.’” The county could not rely on the defense of assumption of risk, the court ruled, “because Seaver was riding his skateboard for transportation, not to perform stunts”. (Peter Blumberg, San Francisco Daily Journal, May 3, not online; Angelo M. Seaver v. County of Santa Cruz, unpublished opinion, Apr. 30 (PDF))(more personal-responsibility cases).
There’s been much attention (and deservedly so) to the recent ruling of the Appellate Committee of the House of Lords in Tomlinson v. Congleton Borough Council (see Aug. 11), which vigorously and eloquently defended the principle of assumption of risk as a bulwark of “the liberty of the citizen” which helps prevent the imposition of “a grey and dull safety regime on everyone.” See, for example, Scott Norvell, “‘The Protection of the Foolhardy or Reckless Few’?”, TechCentralStation.com, Oct. 2. Now, in a case that arose on the Isle of Wight, “A judge has stripped a schoolboy of a ?4,250 damages award after his school argued that it would be ‘madness’ to compensate him for breaking his arm after falling off a swing as he played Superman during a sports day at Chillerton country primary school near Newport. … [O]verturning the ruling that the school was negligent, Mr Justice Gross said at London’s high court that if ‘word got out’ the boy had won his case ‘the probability is sports days and other pleasurable sporting events will simply not take place … Such events could easily become uninsurable, or at prohibitive cost.’” (Clare Dyer, The Guardian, Sept. 25; Chris Boffey, “Judge’s ruling ’saves school sports days’”, Daily Telegraph, Sept. 25). See also articles by barrister Jon Holbrook in Spiked Online: “‘Duties of care’ to the careless and criminal” (Tony Martin case, etc.), Jul. 29; “The trouble with Making Amends” (medical malpractice law), Aug. 22; “Blind spot” (road accident caused by pedestrian), Sept. 23.
Odd doings continue in the $22.5 billion lawsuit, per Bloomberg: ``Every legal system has its flaws,'' [plaintiff's expert and Harvard lawprof Alan Dershowitz] said in an interview yesterday. ``Who are we to cast aspersions on a country's legal system?''... Leading...
The U.S. Chamber-backed West Virginia Record critically summarizes the tortuous course of the state's lawsuit against Oxycontin maker Purdue Pharma, often raised by critics as symbolic of their objections to Attorney General Darrell McGraw's handling of his office. More here,...
Another study helps put to rest a litigation-driven canard. And, also via Orac, Ira Flatow interviews Paul Offit, author of the important new book hitting the bookstores this month, "Autism's False Prophets: Bad Science, Risky Medicine, and the Search for...
Nebraska Attorney General Jon Bruning, president-elect of NAAG, says he's not sure he's ever hired outside counsel on contingency and says colleagues should be "very, very careful" of doing so [Legal NewsLine] More Bruning, discussing absence in Nebraska civil...
In 1996, when Sarah Palin was mayor of Wasilla, she asked her town librarian how she would respond to censoring books. According to the librarian at the time, three inquiries...
What explains the evolution of patent law in the United States? My current and former colleagues, Craig Nard and Andrew Morriss, think that an interest group-based analysis provides the answer, and...
Bill Ward, one of the attorneys representing the property owners, has a post summarizing new developments in Anzalone v. City of Long Branch, an important New Jersey "blight" condemnation case...
I am sorry to see that Columbia University is still trying to use eminent domain acquire property in the Manhattanville neighborhood in West Harlem. Last year, it seemed that...
