Showing posts with label assumption of risk. Show all posts
Showing posts with label assumption of risk. Show all posts

Tuesday, June 29, 2021

'1,000 Places to Fall to Your Death,' Utah edition, means American tort law hasn't undermined pioneer spirit

I can't help but check out the tortscape when I travel.  As mentioned last week, I have been traveling recently in Utah.  The sights are breathtaking.  And as an indicator of the health of the American tort system, I am pleased to report, Utah has many places where one can fall to one's death.

If your foreign friends are like mine, then you too are tired of being teased about fencing at the Grand Canyon, supposedly erected by the National Park Service to protect itself from lawsuits.

It's nonsense, of course.  There are a very few railings and barriers installed at the most popular viewing areas at the Grand Canyon.  Given the often present throng, the limited installations are only sensible, to protect the canyon as well as the people.  Plenty of visitors still manage to fall and die.  And if anything about such deaths speaks powerfully to "the American way," it's the sovereign immunity that usually dispatches any subsequent lawsuits.

(In all seriousness, for a tragic and compelling problem in this vein, and an excellent case for torts profs to introduce the Federal Tort Claims Act, see the recent and pending claim against the National Park Service by the family of Esther Nakajjigo, a human rights activist and tourist who was decapitated by a swinging traffic control gate at Arches National Park in Utah in 2020.  Read more from Moab Sun News, NBC News, Fox13 Salt Lake City, and Yahoo News Australia.  The case is Michaud v. United States, No. 1:21-cv-01547-KLM (filed D. Colo. June 8, 2021) (Court Listener).)

Railings such as these represent a reasonable exercise of discretion by any global measure:
surrounding a viewing platform at Sipapu Bridge at Natural Bridges National Monument.



My friends' teasing persists because it capitalizes on two stereotypes of Americans: first, as camera-happy tourists who don't know how to handle themselves when voyaging giddily away from home on their precious ten days of unguaranteed vacation; and second, as lawsuit-addicted complainants eager to forsake personal responsibility for a pay day.  Corporate America's tort-deform messaging has saturated the globe.

I should know better.  But, I admit, my insecurities are allayed whenever I discover a new place one can fall to death amid the sublime splendor of an American natural wonder.  And I found many such places in Utah.  I'm thinking about writing a book in the vein of Patricia Schultz's 1,000 Places to See Before You Die.  Mine will be "1,000 Places to Fall to Your Death in America."  It's simultaneous travel literature and tort-reform opposition.

This is my favorite new candidate for the book: Kodachrome Basin State Park in Utah.  It's oddly appropriate because the park is in fact named after a corporation.  National Geographic featured the land in color photography in 1949 and, with permission of the Eastman Kodak company, named the area after the company's pioneering color film, which had been introduced in 1935 (and was discontinued in 2009).  The park is a worthwhile stop, or destination unto itself, on Utah's famed Scenic Byway 12, near Cannonville.

Kodachrome Basin boasts some 67 "sedimentary pipes," columns of rock rising from the basin floor.  According to park literature, the pipes are the result of erosion, but geologists are not sure whether historical earthquakes or ancient springs explain the erosion-resistant columns.  There are more than 14 miles of trails in the park from which one can see the pipes and take in the park's chromatic appeal.

I did one of the shorter hikes. The 1.5-mile Angel's Palace Trail rises 150 feet from the basin floor to afford views from Kodachrome to nearby Bryce Canyon.  Angel's Palace offers many short side tracks to scenic viewpoints, like this one:

Here's a 360-degree panoramic:
The trail drops off on both sides:
If you meander down this pathway, it narrows to a small rocky point, maybe 10 square inches of a rounded top of crumbly rock, where, I suppose, someone with a death wish could make a killer TikTok hopping on one foot.  I got only far enough along to take this photo:

In further furtherance of the pioneer spirit, there's one other unmitigated way to die in Utah, and that's in an agricultural encounter.  At the American West Heritage Center in Wellsville, Utah, I was surprised to see this sign:

In 1L Torts, I always include some coverage of sector-specific statutory liability limitations, usually adopted to protect domestic businesses especially from suit by out-of-state tourists.  In my first year as a legal writing instructor in the 1990s, colleagues and I used a problem involving the Colorado skier responsibility law.  Utah has one, too.  This was the first time, though, that I've learned of a sector-specific liability limitation in "agritourism."  Actually, this was the first time I ever heard of agritourism (also "agrotourism").

The cited section of the Utah Code indeed defines agritourism as "the travel or visit by the general public to a working farm, ranch, or other commercial agricultural, aquacultural, horticultural, or forestry operation for the enjoyment of, education about, or participation in the activities of the farm, ranch, or other commercial agricultural, aquacultural, horticultural, or forestry operation."

The statute doesn't depart radically from the negligence standard, but, like the sign says, affords service providers an assumption-of-risk defense when signs are posted.  The statute specifies risks inherent in agritourism:

a danger, hazard, or condition which is an integral part of an agricultural tourism activity and that cannot be eliminated by the exercise of reasonable care, including:
     (i) natural surface and subsurface conditions of land, vegetation, and water on the property;
     (ii) unpredictable behavior of domesticated or farm animals on the property; or
     (iii) reasonable dangers of structures or equipment ordinarily used where agricultural or horticultural crops are grown or farm animals or farmed fish are raised.

I didn't run into any of those problems.  I must be a pioneer at heart.

Me holding up a natural bridge on the Hickman Bridge Trail, Capitol Reef National Park
(All photos by RJ Peltz-Steele, CC BY-NC-SA 4.0.)

Monday, January 11, 2021

Uber suffers high court loss, but binding arbitration, blanket disclaimers still devastate consumer rights

Image by Mike Lang CC BY-NC-SA 3.0
Signs of life were spotted on the dead planet of consumer rights in click-wrap agreements. But don't get too excited; the life is microbial and already has been exterminated by the corporatocracy.

A blind man who was refused Uber service because he had a guide dog was successful in the Massachusetts Supreme Judicial Court last week in voiding loss of his disability discrimination claim because Uber failed to give him sufficient notice of its terms and conditions compelling defense-friendly arbitration.

Uber can easily correct its notice problem—and likely has already; this plaintiff signed up in 2014—so the rest of us are out of luck if we have an Uber problem.  But the plaintiff's rare win exposes the abject failure of federal and state law to protect consumer rights against gross overreach by online service providers.  And the case arises amid a deluge of reported ride-share sexual assaults, from which service providers have been widely successful in washing their hands of legal responsibility.

In the instant case, the Massachusetts high court followed 2018 precedent in the First Circuit, also applying Massachusetts law to the same Uber interface, to conclude that Uber's means of obtaining the plaintiff's consent to the app's terms and conditions (T&C) in 2014 fell short of the notice required to bind a consumer to a contract.

Uber required ride-share passengers to assent to the T&C by clicking "DONE" after entering payment information.  The court explained that the focus of the app's virtual page was on payment, and the language about the T&C, including the link to the terms themselves, was marginalized in page location and diminished in type size.  (The law gives the plaintiff no special treatment because of his blindness, and the case suggests no contrary argument.)  Uber knew how to do better, the Court reasoned, because drivers signing up with the app plainly must click "I AGREE" to their T&C: an easy fix for app makers.

The Court adopted for the Commonwealth what has become widely accepted as the two-part test for online T&C contract enforcement, "[1] reasonable notice of the terms[,] and [2] a reasonable manifestation of assent to those terms."  It is not necessary that a consumer actually read, or even see, the terms.  The Court acknowledged research (Ayres & Schwartz (2014); Conroy & Shope (2019)) showing that a vanishing number of consumers ever read, much less understand, T&C.  But the law requires only that the consumer be given the opportunity.

This approach to "click-wrap" agreements, kin to "browse-wrap" agreements, dates back to "shrink-wrap" agreements, by which a consumer could be bound to hard-copy license terms upon opening a product box, and earlier to the simple doctrine in analog contract law that a person's mark can bind the person to a contract that she or he has not read.

The rule works well to smooth commerce.  But the problem for consumer rights is that T&C have become unspeakably onerous.  British retailer GameStation made headlines in 2010 when it was reported that 7,500 online shoppers unwittingly(?) sold their "immortal soul[s]" as a term of purchase; that demonstration is not unique.  Legendary cartoonist Robert Sakoryak turned the infamously voluminous iTunes "terms and conditions" into a graphic novel (2017) years after South Park mocked Apple mercilessly (2011).  On a more serious note, the problem has generated ample scholarship, including at least two books (Kim (2013); Radin (2014)), and has been a flashpoint of controversy in European privacy law, which, unlike American law, requires a bit more than a token click-box to signify a person's consent to process personal data, especially when the person is a child.

The Massachusetts Court recognized the scope of Uber's T&C as a factor to be weighed in the sufficiency of notice.  "Indeed," the Court wrote, "certain of the terms and conditions may literally require an individual user to sign his or her life away, as Uber may not be liable if something happened to the user during one of the rides."  Uber's terms "indemnify Uber from all injuries that riders experience in the vehicle, subject riders' data to use by Uber for purposes besides transportation pick-up, establish conduct standards for riders and other users, and require arbitration."

Though arguably subject to a rare override in the interest of public policy, such terms still can prove prohibitive of legal action when a passenger becomes a crime victim.  And that's been happening a lot.  Uber itself reported in 2019 that over the preceding two years, the company had received about 3,000 claims of sexual assault each year (NPR).  The problem is so prevalent that ride-share sex assault has become a plaintiff's-attorney tagline.  Yet recovery is easier promised than won.  Even if a consumer somehow prevails in arbitration, a process hostile to consumer rights, T&C such as Uber's also limit liability awards.

Litigants have struggled to circumvent ride-share app providers' disavowal of responsibility.  In November, the federal district court in Massachusetts rejected Uber liability as an employer, because drivers are set up as independent contractors, a convenience that has summoned some heat on app service providers in the few states where legislators worry about employment rights in the gig economy.  Lyft won a case similarly in Illinois.  Meanwhile a Jane Doe sex-assault claim filed in New York in 2020 takes aim at Uber upon a direct-negligence theory for failure to train or supervise drivers (N.Y. Post).

In 2018, Uber and Lyft relaxed enforcement of compelled arbitration clauses in sex-assault claims (NPR)—if they hadn't, they might eventually have suffered a humiliating blow to their T&C, as unconscionability doctrine is not completely extinct in contract law—so hard-to-prove direct-negligence cases such as N.Y. Doe's are hobbling along elsewhere too.  Oh, Uber also relaxed its gag on sex-assault victims who settle, allowing them to speak publicly about their experiences (NPR).  How generous.

All of this is tragic and avoidable, if routine.  But in the Massachusetts case, I saw a troubling legal maneuver that goes beyond the pale: Uber counter-sued its passenger.

In a footnote, the Massachusetts Court wrote, "In arbitration, Uber brought a counterclaim for breach of contract against the plaintiffs, alleging that they committed a breach of the terms and conditions by commencing a lawsuit and pursuing litigation in court against Uber. Through this counterclaim, Uber sought to recover the 'substantial unnecessary costs and fees' it incurred litigating the plaintiffs' lawsuit."

So it's not enough that our warped American enslavement to corporatocracy allows Uber and its ilk to impose crushing, if industry-norm, T&C on customers, depriving them of rights from Seventh Amendment juries to Fourteenth Amendment life.  Uber moreover reads its own indemnity clause with the breathtaking audacity to assert that it is entitled to recover attorney's fees from a consumer who dares to make a claim—a claim of disability discrimination, no less. This reactionary strategy to chill litigation by weaponizing transaction costs exemplifies my objection to fee-shifting in anti-SLAPP laws.  Uber here shamelessly pushed the strategy to the next level.

Nader (2008)
Photo by Brett Weinstein CC BY-SA 2.5
Compelled consumer arbitration has stuck in the craw of consumer and Seventh Amendment advocates, such as Ralph Nader, for decades.  Nader is widely quoted: "Arbitration is private. It doesn't have the tools to dig into the corporate files. It's usually controlled by arbitrators who want repeat business from corporations not from the
injured person."  As the c
orporatocracy is wont to do, it pushes for more and more, ultimately beyond reason.  Industry pushing got a boost when the Trump Administration set about dismantling the Consumer Finance Protection Bureau.  Make no mistake that compelled arbitration is somehow about a free market; a free market depends on a level playing field, a fair opportunity to exercise bargaining power, and transparency of transactional information.  The unilateral imposition of an absolute liability disclaimer upon penalty of fee-shifting in a secret tribunal is none of that.

I'm tempted to say something like "enough is enough," but I would have said that 20 years ago, to no avail.  So I can only shake my head in amazement as we double down on the abandonment of civil justice in favor of secret hearings to rubber-stamp rampant venality.

Full disclosure: I use Uber, and I like it.  Taxis got carried away with their market monopolization, and a correction was needed.  Now that's feeling like a Catch-22.

The case is Kauders v. Uber Technologies, Inc., No. SJC-12883 (Jan. 4, 2021) (Justia).  Justice Scott Kafker wrote the opinion for a unanimous Court.  In amicus briefs, the ever vigilant U.S. Chamber of Commerce and the "free market"-advocating New England Legal Foundation squared off against plaintiffs' lawyers and "high impact lawsuit"-driving Public Justice.

Tuesday, November 3, 2020

No recklessness, no liability, court affirms in case of head injury during softball batting practice

mohamed Hassan from Pixabay
Applying recklessness doctrine in a non-competitive context, the Massachusetts Appeals Court yesterday affirmed non-liability for a collegiate softballer and Suffolk University in the case of a player hit in the head by a bat during practice.

Tort and Sport

Personal injury in sport offers fertile ground for exploring tort law, because athletic competition represents a suspension of the social contract.  Ordinarily, everyone in an orderly society knows not to push, tackle, or punch other people.  But in a sport, that can be exactly what you're supposed to do.  So a special, carefully designed standard of conduct, "the rules of the game," supersedes the usual web of unwritten norms, conveniently yielding a laboratory for socio-legal study.

If one fails to recognize the aberrant nature of the sport context, anomalous legal results pertain.  For example, every injury resulting from a collision of players on the football field is accidental, so a potential source of negligence liability.  Alternatively, many such injuries are batteries, because the defendant bore subjective intent to cause offensive contact.  At the same time, the defenses of assumption of risk and consent raise frame-of-reference problems in application.  An athlete generally assumes a risk of injury, a defendant argues, but not necessarily injury specifically in the way that it happened, the plaintiff counters.  The usual tort doctrines just don't work well to solve conflict over sporting injury.

To overcome this problem, courts in many states, including Massachusetts, have employed the tort standard of recklessness in sport cases.  Recklessness focuses on a defendant's indifference to a risk of high probability or magnitude (tests vary).  For its culpability analysis, recklessness hybridizes subjective and objective tests for culpability, thereby balancing the prohibitive prerequisite of defendant's intent with slim proof of carelessness.  The test is not a perfect tool for sporting-injury cases, but it works much better than intent and negligence rules to help courts patrol the outer boundaries of social-normative conduct in an exceptional situation.

j4p4n from openclipart.org
In Borella v. Renfro, in December 2019, the Massachusetts Appeals Court applied the recklessness standard to a case of ice-hockey injury, relying on precedent of the Supreme Judicial Court dating to 1989.  The court explained in Borella:

In a game where the players wear sharpened steel blades on their feet and are garbed in protective gear from head to toe, the playing field is a glossy ice rink, checking not only is allowed but a fundamental aspect of the way the game is played, and the object of the game is to put a puck into a goal (or to prevent the same), the plaintiff, seventeen year old Daniel J. Borella, was cut on the wrist by one of the blades worn by the defendant, Julion Scott Lever, in what Borella acknowledges was a "freak accident" occurring moments after Lever checked Borella hard from behind into the boards and took the puck away.

.... In this case, we apply [the recklessness] standard to the game of ice hockey[,] in which physical contact between players standing on two thin metal blades atop a sheet of ice is not simply an unavoidable by-product of vigorous play, but is a fundamental part of the way the game is played. We hold that where, as here, the record is devoid of evidence from which a jury rationally could conclude that the player's conduct is extreme misconduct outside the range of the ordinary activity inherent in the sport, there is no legal liability under the recklessness standard. For that reason, we affirm summary judgment in favor of Lever.

Dissenting, Justice Peter J. Rubin would have sent arguable questions of fact to the jury.  But he did not disagree, for jury instruction, that recklessness was the correct standard.

Batting Practice

Despite the efficacy of the recklessness standard in sport cases, things get tricky at the margins, especially when injury occurs off field, or outside the narrow context of competitive conflict between players in the course of the game.  The instant case presented such a challenge, as one player was hit in the head by a teammate accidentally, while the teammate was engaged in batting practice.

Should the recklessness analysis pertain to "friendly fire" in practice, too?  Yes, the Appeals Court answered, consistently with precedent in other states.  Recklessness is the appropriate standard for athletic practice.  

In the instant case, the unfortunate accident occurred between friends on the Suffolk University softball team.  The plaintiff-player walked too close to the swinging defendant-player at just the wrong time.  Their testimonies, and that of the supervising coach, might have supported findings for or against fault-based liability in negligence, but no matter.  The defendant's conduct did not rise to the recklessness standard, and the trial court correctly awarded summary judgment to the defense.

The court framed its choice of the recklessness standard as a problem in duty.  Duty in tort law is determined "by reference to existing social values and customs and appropriate social policy," the court quoted precedent.  This point is significant for reasons related to the deeper mechanics of tort law.  Without diving into the problem here, it will suffice to say that the interrelationship of duty and fault standards sometimes matters, especially when a change in the relevant law occurs, whether through common law evolution or legislative enactment.

Co-defendant Suffolk University also won summary judgment.  The players had signed waivers of university liability in negligence, and the evidence failed to support gross negligence or recklessness in the coach's and university's supervision of the softball practice.

Superior Court Decision

In affirming, the Appeals Court opinion described the Superior Court's application of recklessness doctrine as "thoughtful."  That appraisal prompted me to seek a copy of the trial court opinion.

Regrettably, Massachusetts is a jurisdiction that thrives on secrecy in trial court records.  The Superior Court for Suffolk County, which includes the metropolis of Boston, puts dockets online, and the interface looks like the same software used by my home bar jurisdiction of Washington, D.C.  But links to document images, which D.C. has offered for a few years, are not available from the Massachusetts system.  Given the state of technology in the courts and in the country, I can attribute this omission only to willful obscurity.

Graciously, attorney Robert B. Smith (LinkedIn, Twitter), Demoura|Smith LLP, who represented Suffolk University softball head coach Jaclyn Davis, shared with me a copy of the memorandum decision in the Superior Court.  The court wrote:

[Defendant-player] Ball argues that because Brandt's injury occurred while she and Brandt were participating in an athletic event, she may only be liable for conduct that was willful, wanton, or reckless. Ball contends that she is entitled to summary judgment because Brandt has no reasonable expectation of proving her conduct was willful, wanton, or reckless. The court agrees.

"Players, when they engage in sport, agree to undergo some physical contacts which could amount to assault and battery absent the players' consent." Gauvin v. Clark, 404 Mass. 450, 454 (1989). "The courts are wary of imposing wide tort liability on sports participants, lest the law chill the vigor of athletic competition." Id. Therefore, "a participant in an athletic event can be liable to another participant only when his or her actions amount to a willful, wanton, or reckless disregard for the safety of the other participant." Gray v. Giroux, 49 Mass. App. Ct. 436, 438 (2000) [affirming summary judgment for defendant in golf-club-to-head case].

Brandt argues that the present case is distinguishable from those requiring a showing of willful, wanton, or reckless conduct because her injury was not caused by an opponent during a competition. However, the court declines to construe the broad language of the controlling cases in a manner that excludes Brandt's claim from their purview. Members of the same athletic team participating in a team practice are no less "participant[s] in an athletic event" than members of opposing teams during a game. [Cf.] Dugan v. Thayer Academy, [32 Mass. L. Rep. 657] (Mass. Super. Ct. 2015) (willful, wanton, or reckless standard did not apply where alleged negligence occurred before and after, but not during, athletic event [field hockey]). Accordingly, the willful, wanton, or reckless standard of care applies to Brandt's claim against Ball.

The appellate case is Brandt v. Davis, No. 19-P-1189 (Mass. App. Ct. Nov. 2, 2020).  Justice Joseph M. Ditkoff wrote the opinion for a unanimous panel that also comprised Justices Wolohojian and Maldonado.  The case below was Brandt v. Davis, No. 2017-00641-B (Mass. Super. Ct. Suffolk County Apr. 16, 2019).  Presiding in the Superior Court was Justice Mark C. Gildea, an alumnus of Suffolk Law.

Friday, April 3, 2020

Waiver of negligence precludes later suit by family, high court holds in nursing home, diving death cases

Image by edar from Pixabay
In two cases at the end of February, the Massachusetts Supreme Judicial Court made clear that a person's express disposal of a negligence claim can preclude a later wrongful death suit by family.  In other words, Massachusetts wrongful death claims are derivative, not independent, of a decedent's rights.

"Wrongful death" and "survival" actions are creatures of 19th-century statute in Anglo-American law, the historic common law having extinguished all causes of action upon death—for curious historical reasons that I won't explicate here.  Formally, "wrongful death" is an action by surviving family for their losses, upon the occasion of the decedent's passing.  "Survival" is an action by the estate on behalf of the decedent, as if the decedent had lived.  However, this distinction is often blurred in law, as the actions are brought together as "wrongful death" under Massachusetts statute, and is often blurred in fact, as a single person may stand as a family member and estate representative at the same time.  However the actions are characterized in court, wrongful death and survival have become so universally entrenched in Anglo-American tort law, often upon sparsely worded and rarely amended statutes, that they function in the courts very much like common law causes of action, subject to interpretation in deep bodies of case law.

Image by whitfieldink from Pixabay
In one of the February cases, Jackalyn Schrader, acting with power of attorney for her mother, Emma, signed a "voluntary and clearly labeled" commitment to arbitrate disputes upon admitting Emma to residence at the Golden Living Center-Heathwood, in Chestnut Hill, Mass., in February 2013.  After Emma died in December 2013, Schrader brought a wrongful death claim under Massachusetts statute, in federal court, alleging that nursing home negligence caused bedsores, leading to Emma's death.  Schrader sought to evade the effect of the arbitration agreement by pointing out that she had not signed it in her personal capacity, and state law vests a wrongful death claim in family.

Image by skeeze from Pixabay
In the second of the February cases, Margaret C. Doherty, as representative of the estate and the decedent's statutory beneficiaries, sued in wrongful death upon a 2014 diving accident that took the life of her son-in-law, 37-year-old Gregg C. O'Brien.  O'Brien "was a certified open-water scuba diver [and] drowned while participating in a promotional diving equipment event that was sponsored by [defendants] and held in Gloucester," Mass.  Before participating in the event, O'Brien had signed:
a release from liability which had several subsections that were set forth in all capital letters and underlined, including "effect of agreement," "assumption of risk," "full release," "covenant not to sue," "indemnity agreement," and "arbitration."  In capital letters under the subsection titled "effect of agreement," it said, "Diver gives up valuable rights, including the right to sue for injuries or death." It also told the decedent to read the agreement carefully and not to sign it "unless or until you understand." ... [T]he subsection titled "covenant not to sue" stated that the decedent agreed "not to sue ... for personal injury arising from scuba diving or its associated activities," and that the decedent's "heirs or executors may not sue."
Asserting defendants' negligence, Doherty sought to evade the effect of the release by pointing out that the statutory beneficiaries were not party to any agreement.

Associate Justice David A. Lowy
In Schrader's case, the First Circuit certified a question to the Supreme Judicial Court to determine whether a wrongful death action in Massachusetts is independent of a decedent's action, so Schrader would be free of the arbitration agreement, or bound by the decedent's action, so Schrader would be bound by the arbitration agreement, even though she signed it only on behalf of her mother.  Schrader might have understood that her theory under statute was weak, because she sought to play up the court's power to evolve wrongful death law beyond the text of statute.  The court agreed that it had considerable power to evolve wrongful death as a function of common law.  At the same time, though, the court insisted that its job begins with statutory interpretation.  Resorting to the text of Massachusetts's first-in-the-nation, 1840 wrongful death statute, and in accordance with the weight of authority in other states, the court found the derivative nature of a wrongful death claim inescapable.  Schrader must therefore seek relief under the arbitration agreement.

In Doherty's case, the Supreme Judicial Court cited its decision in Schrader and likewise concluded, affirming, that the claims on behalf of the decedent's statutory beneficiaries were derivative and not independent of the decedent's rights.  "Therefore ... the valid waivers signed by the decedent preclude the plaintiff, as [O'Brien's] 'executor or personal representative,' from bringing a lawsuit ... for the benefit of the statutory beneficiaries."

The cases are GGNSC Admin. Servs., LLC v. Schrader, No. SJC-12714 (Mass. Feb. 27, 2020) (Justia; Suffolk Law), and Doherty v. Diving Unlimited Int'l, Inc., No. SJC-12707 (Mass. Feb. 27, 2020) (Justia).  Justice David A. Lowy wrote both decisions for a unanimous court.

Thursday, October 31, 2019

Teachable torts: Halloween haunted houses strain hallowed American right to make poor choices

As the sun sets in the U.S. East, I was prepared to let Halloween slide by on the blog, even though so many great tort-related items perennially crop up, and an eagle-eyed 1L Jason Jones sent me an excellent story about the super creepy McKamey Manor (YouTube) haunted house in Summertown, Tennessee (Guardian video coverage four years ago).  Then Professor Christine Corcos (of Media Law Prof Blog, via TortsProf List) alerted me to WaPo coverage of McKamey, and Ronny Chieng incorporated McKamey into his Halloween edition of "Everything is Stupid" on The Daily Show (here for the blog, not the classroom).


The "petition" referenced in the news coverage (linked above, top) refers to a Change.org petition, not a legal action.  Yet.  The case would be useful to consider tort claims, such as the infliction of emotional distress, as well as defenses, such as consent and assumption of risk, vitiation on public policy grounds, and the American ethos of personal responsibility.

Thanks to my TA, here's an even better item, funny without the dark angle, bringing a lawyer into the picture: the first two segments of Nathan For You s1e05.

Happy Hallows' Eve.