Free torts textbook ready for academic year 2024-25

TORTZ: A Study of American Tort Law is complete and revised for the coming academic year 2024-25.

The two-volume textbook is posted for free download from SSRN (vol. 1, vol. 2), and available in hardcopy from Lulu.com at cost, about $30 per volume plus shipping.

• SSRN volume 1
• SSRN volume 2
• Lulu.com hardcopies

This final iteration of the book now, for the first time, includes its final three chapters: (16) interference and business torts, (17) government liability and civil rights, and (18) tort alternatives.

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TORTZ TABLE OF CONTENTS

Volume 1

Chapter 1: Introduction

A. Welcome
B. The Fundamental Problem
C. Parameters
D. Etymology and Vocabulary
E. “The Pound Progression”
F. Alternatives
G. Review

Chapter 2: Intentional Torts

A. Introduction
B. Assault

1. History
2. The Restatement of Torts
3. Subjective and Objective Testing
4. Modern Rule
5. Transferred Intent
6. Statutory Torts and Harassment

C. Battery

1. Modern Rule
2. The Eggshell Plaintiff
3. Knowledge of a Substantially Certain Result
4. Common Law Evolution and Battered Woman Syndrome

D. False Imprisonment

1. Modern Rule
2. Problems

E. Intentional Infliction of Emotional Distress (IIED)

1. Dynamic Intent
2. Modern Rule
3. The “Heart Balm” Torts

F. Fraud

1. Fraud in Context
2. Modern Rule
3. Pleading Fraud
4. Exercise

G. The “Process” Torts

1. Innate Imprecision
2. Modern Rule
3. Majority Rejection of Malicious Civil Prosecution

H. “Prima Facie Tort”

1. Origin of Intentional Tort
2. Modern Rule

Chapter 3: Defenses to Intentional Torts 

A. Introduction
B. Defenses of Self, Other, and Property
C. The Spring Gun Case
D. Arrest Privilege and Merchant’s Privilege
E. Consent

1. Modern Rule
2. Scope of Consent
3. Medical Malpractice
4. Limits of Consent

F. Consent in Sport, or Recklessness

1. The Problem of Sport
2. Recklessness

Chapter 4: Negligence

A. Introduction
B. Modern Rule
C. Paradigmatic Cases
D. Historical and Theoretical Approaches to Negligence

1. Origin
2. Foreseeability
3. Custom
4. Augmented Standards
5. Economics

a. Introduction
b. “The Hand Formula”
c. Coase Theorem, Normativity, and Transaction Costs

6. Aristotelian Justice
7. Insurance and Loss-Spreading

E. Landowner Negligence, or Premises Liability

1. Theory of Duty and Standards of Breach
2. Common Law Tripartite Approach
3. Variations from the Unitary Approach in the Third Restatement
4. Applying the Framework, and Who Decides

F. Responsibility for Third-Party Conduct

1. Attenuated Causation, or “the Frances T.  Problem”: Negligence Liability in Creating Opportunity for a Criminal or Tortious Actor
2. Vicarious Liability and Attenuated Causation in the Employment Context: Respondeat Superior and “Direct” Negligence Theories

G. Statutory Torts and Negligence Per Se

1. Statutory Torts
2. Negligence Per Se

a. Introduction
b. Threshold Test
c. Three Mile Island

H. Medical Negligence
I. Spoliation of Evidence

1. Introduction
2. Minority Rule
3. Recognition or Non-Recognition of the Tort Approach
4. Majority Approach

J. Beyond Negligence

Chapter 5: Defenses to Negligence

A. Express Assumption of Risk (EAOR)
B. EAOR in Medical Negligence, and the Informed Consent Tort

1. Development of the Doctrine
2. The “Reasonable Patient” Standard
3. Modern Rule of Informed Consent
4. Causation in Informed Consent
5. Experimental Medicine

C. “Implied Assumption of Risk” (IAOR)

1. Everyday Life
2. Twentieth-Century Rule
3. Play and Sport
4. Work

D. Contributory Negligence

1. Twentieth-Century Rule
2. Complete Defense
3. Vitiation by “Last Clear Chance”

E. Comparative Fault
F. IAOR in the Age of Comparative Fault

1. The Demise of “IAOR”
2. Whither “Secondary Reasonable IAOR”?
3. Revisiting Mrs. Palsgraf at Gulfway General Hospital

G. Statutes of Limitations
H. Imputation of Negligence

Chapter 6: Subjective Standards

A. Introduction
B. Gender

1. The Reasonable Family
2. When Gender Matters

C. Youth

1. When Youth Matters
2. Attractive Nuisance
3. When Youth Doesn’t Matter

D. Mental Limitations

1. General Approach
2. Disputed Policy

Chapter 7: Strict Liability

A. Categorical Approach
B. Non-Natural Use of Land
C. Abnormally Dangerous Activities

1. Defining the Class
2. Modern Industry

D. Product Liability

1. Adoption of Strict Liability
2. Modern Norms
3. “Big Tobacco”
4. Frontiers of Product Liability

Chapter 8: Necessity

A. The Malleable Concept of Necessity
B. Necessity in Tort Law
C. Making Sense of Vincent
D. Necessity, the Liability Theory

Chapter 9: Damages

A. Introduction
B. Vocabulary of Damages
C. Theory of Damages
D. Calculation of Damages
E. Valuation of Intangibles
F. Remittitur
G. Wrongful Death and Survival Claims

1. Historical Common Law
2. Modern Statutory Framework

a. Lord Campbell’s Act and Wrongful Death
b. Survival of Action After Death of a Party

3. Problems of Application

H. “Wrongful Birth” and “Wrongful Life”
I. Punitive Damages

1. Introduction
2. Modern Rule
3. Pinpointing the Standard

J. Rethinking Death Compensation

Volume 2

Chapter 10: Res Ipsa Loquitur

A. Basic Rules of Proof
B. Res Ipsa Loquitur (RIL)

1. Modern Rule
2. Paradigmatic Fact Patterns

Chapter 11: Multiple Liabilities

A. Introduction
B. Alternative Liability
C. Joint and Ancillary Liability
D. Market-Share Liability Theory
E. Indemnification, Contribution, and Apportionment

1. Active-Passive Indemnity
2. Contribution and Apportionment
3. Apportionment and the Effect of Settlement

F. Rules and Evolving Models in Liability and Enforcement
G. Review and Application of Models

Chapter 12: Attenuated Duty and Causation

A. Introduction
B. Negligence Per Se Redux

1. The Problem in Duty
2. The Problem in Causation
3. The Problem in Public Policy

C. Duty Relationships and Causation Timelines

1. Introduction
2. Frances T. Redux, or Intervening Criminal Acts
3. Mental Illness and Tarasoff Liability
4. Dram Shop and Social Host Liability
5. Rescue Doctrine and “the Fire Fighter Rule”

a. Inverse Rules of Duty
b. Application and Limits

6. Palsgraf: The Orbit and the Stream

a. The Classic Case
b. A Deeper Dig

D. Principles of Duty and Causation

1. Duty
2. Causation

a. The Story of Causation
b. Proximate Cause in the Second Restatement
c. Scope of Liability in the Third Restatement
d. Proximate Cause in the Third Restatement, and Holdover Rules
e. A Study of Transition: Doull v. Foster

E. The Outer Bounds of Tort Law

1. Balancing the Fundamental Elements
2. Negligent Infliction of Emotional Distress (NIED)

a. Rule of No Liability
b. Bystanders and Borderline NIED

3. Economic Loss Rule

a. The Injury Requirement
b. Outer Limits of Tort Law
c. Loss in Product Liability and the Single Integrated Product Rule

Chapter 13: Affirmative Duty

A. Social Policy
B. The American Rule
C. Comparative Perspectives
D. Bystander Effect, or “Kitty Genovese Syndrome”

Chapter 14: Nuisance and Property Torts

A. Trespass and Conversion
B. Private Nuisance
C. Public Nuisance and the Distinction Between Private and Public
D. “Super Tort”

Chapter 15: Communication and Media Torts

A. Origin of “Media Torts”
B. Defamation

1. Framework and Rules
2. Defamation of Private Figures

a. Defamation Proof
b. Defamation Defense

3. Anti-SLAPP Defense
4. Section 230 Defense
5. Constitutional Defamation

a. Sea Change: New York Times Co. v. Sullivan
b. Extending Sullivan
c. Reconsidering Sullivan

C. Invasion of Privacy

1. Framework and Rules

a. Disclosure
b. Intrusion
c. False Light
d. Right of Publicity
e. Data Protection

2. Constitutional Privacy and False Light
3. Demonstrative Cases

a. Disclosure and Intrusion
b. Right of Publicity
c. Bollea v. Gawker Media

4. Data Protection, Common Law, and Evolving Recognition of Dignitary Harms

Chapter 16: Interference and Business Torts

A. Business Torts in General

1. Tort Taxonomy
2. The Broad Landscape
3. Civil RICO

B. Wrongful Termination
C. Tortious Interference

Chapter 17: Government Liability and Civil Rights

A. Sovereign Immunity

1. Federal Tort Claims Act (FTCA) and Foreign Sovereign Immunities Act (FSIA)
2. Text and History of the FTCA
3. Discretionary Function Immunity

B. Civil Rights

1. “Constitutional Tort”
2. Core Framework
3. Official Immunities
4. Climate Change

C. Qui Tam
D. Human Rights

1. Alien Tort Statute
2. Anti-Terrorism Laws

Chapter 18: Tort Alternatives

A. Worker Compensation

1. Introduction and History
2. Elements and Causation
3. Efficacy and Reform

B. Ad Hoc Compensation Funds

Florida A&M moves to fire Latina law prof who spoke on public concern; Hispanic law students resist

You may review and sign on to a letter of the FAMU Hispanic American Law Student Association opposing Reyes's termination here. 

Prof. Maritza Reyes

My colleague Professor Maritza Reyes, who is tenured at the Florida A&M (FAMU) College of Law, is fighting alongside students and other allies to save her job and to preserve academic freedom.

Reyes has been notified of the school's intent to dismiss her for doing her job in faculty governance. Reyes commented, professionally and appropriately, in a community email discussion of the abrupt, contentious, and institutionally embarrassing resignation of the law dean at FAMU in February.

FAMU apparently did not like what Reyes had to say. In a plain violation of academic freedom, the school proferred the email discussion as the reason to terminate a tenured professor.

I have written many times, since 2011, about the failure of universities to recognize academic freedom in spaces "penumbral" to published research and classroom teaching, namely faculty governance. In the same vein, Professor Keith Whittington wrote recently about the importance of protecting "extramural" academic speech.

Reyes is an accomplished and highly respected law teacher—thus, just the sort who attract condemnation in the academic culture—who is treasured by generations of students and has especially made a difference for persons of color in law schools and legal practice. She is FAMU's first and only tenured Latina law professor. In 2022, she founded the Graciela Olivárez Latinas in the Legal Academy ("GO LILA") Workshop, which she discussed in 2023 for AALS Women in Legal Education.

Students and alumni are leading the resistance to Reyes's termination. Please review and consider signing on to the following letter.  You can share the letter further with this link: https://forms.gle/VUnYPKiMwyWtMDJx8, or via The Savory Tort.

(This post revised and updated on Mar. 19, at 5:40 p.m.)

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Dear President Larry Robinson and Provost Allyson Watson:

We, the undersigned members of the Florida Agriculture and Mechanical University (FAMU) Hispanic American Law Student Association (HALSA), joined by fellow students, alumni, allies, and friends, respectfully request that you rescind your intent to dismiss College of Law Professor Maritza Reyes (Professor Reyes) from her tenured position. For the past fifteen (15) years, Professor Reyes has been a caring professor and has made excellent contributions to the school, especially its students. Professor Reyes has also served as HALSA's faculty advisor for many years.

Professor Reyes is an accomplished teacher, scholar, and member of the legal academy and community. She began her employment in the FAMU College of Law as a tenure-track assistant professor of law in 2009, earned tenure in 2015, and is now a tenured, full professor of law (the highest faculty rank). FAMU has evaluated Professor Reyes's record during many formal evaluative processes, including applications for promotion to associate professor, for tenure, and promotion to full professor; annual reviews; and, most recently, post-tenure review. Professor Reyes has demonstrated consistent excellence and productivity in scholarship, teaching, and service. She has too many accomplishments to list here, including being recognized in the U.S. Congressional Record for her service to our community. You are well-aware of her many accomplishments including through all of the above listed evaluations.

We were heartbroken and outraged to learn that Provost Allyson Watson (Provost Watson), by letter dated February 16, 2024 (the "Notice"), informed Professor Reyes of the University's intent to dismiss her from her tenured position. According to FAMU Regulation 10.120(2)(c), the "Contents of Notice" must include the following information: "A list of documents or written explanation on which the charges are based; and a statement that documents shall be available to the employee upon request." The documents Professor Reyes received consisted of emails that were sent to the entire College of Law Community during the period of February 1, 2024 to February 5, 2024. The entire College of Law Community (faculty, staff, and students) received the emails after then College of Law Dean Deidré Keller (Dean Keller) opened this email forum on February 1, 2024 to provide notice of her resignation effective immediately. Several professors, including Professor Reyes, and three students participated in these communications and sent emails to the entire College of Law Community. The use of email forums/listservs to the entire College of Law Community was not prohibited. Professor Reyes's emails were informative, professional, and timely. They helped bring transparency and accountability regarding Dean Keller's resignation, a matter of institutional and public importance. The Tallahassee Democrat initially reported about Dean Keller's resignation on February 2, 2024. Subsequently, Dean Keller provided her letter of resignation to this newspaper, which published it in a second article on February 6, 2024. These materials were readily available online via the newspaper's website.

In response to Professor Reyes's contributions via emails about Dean Keller's resignation, Provost Watson issued a Notice of intent to dismiss Professor Reyes from her tenured position. It seems to us that Provost Watson targeted Professor Reyes for the content of her speech and sought to silence her voice and future contributions in the FAMU College of Law. In a matter of days, Provost Watson charged Professor Reyes for dismissal without allowing her an opportunity to respond to a formal complaint, go through an investigation, receive meaningful due process, and get a report. To us as law students, the way Provost Watson has handled this situation screams of injustice and lack of due process.

Many students and alumni describe Professor Reyes as an exceptional educator who made a lasting and meaningful impact on their law school experiences and legal careers. She always set high standards and would provide the guidance and skills necessary to reach them. She also inspired students to achieve their individual levels of excellence. Some of us made it through difficult situations during law school thanks to her unwavering support. Professor Reyes has also been an advocate for student organizations. Therefore, if your intent to dismiss Professor Reyes comes to pass, you will harm past, current, and future FAMU College of Law students by taking away an excellent professor who has been our teacher, mentor, advocate, ally, supporter, and friend. You will also harm the law school, including with negative publicity. You have already disrupted the high-caliber teaching law students expected to receive when they registered for Professor Reyes's courses. You abruptly replaced her with less-credentialed and less-experienced instructors who had never taught in a law school before. Many of us will be further traumatized by Professor Reyes's dismissal. We cannot remain silent in the face of such injustice.

There are currently twenty (20) tenured professors (associate and full) in the College of Law. Professor Reyes was the first and thus far only Hispanic professor hired in the tenure track and subsequently tenured in the FAMU College of Law. She has served as HALSA's dedicated, supportive, and highly competent faculty advisor. According to the FAMU College of Law American Bar Association 2023 Standard 509 Required Disclosures, Hispanic students make up 25% of the total law student body. It is important that Hispanic students be appropriately represented in the law school. While this letter is spearheaded by HALSA's Board, we are being supported in our efforts by students and alumni of diverse backgrounds who appreciate and respect Professor Reyes's teaching, mentoring, and support.

There is a strong sense among the student body that an injustice is happening in view of all of us. On February 27, 2024, students met with FAMU College of Law Interim Dean Cecil Howard and protested the intended dismissal of Professor Reyes. Interim Dean Howard responded that the decision was made by Tallahassee Administrators to whom students should voice their protests. This is what we are doing via this open letter. We have distributed this letter widely for signatures by students, alumni, allies, friends, and supporters of justice everywhere. Please hear us when we tell you that the intended dismissal of Professor Reyes is a grave injustice. You have the power to stop this intended wrong. Please do so!

We respectfully demand that you keep Professor Maritza Reyes in the tenured faculty position she earned. She has done nothing warranting dismissal. We also demand that you grant Professor Reyes's request for a public meeting regarding her intended dismissal.

[Sign.]

UK anti-SLAPP bill takes fire

The United Kingdom has an anti-SLAPP bill on the table, and lawyer Gideon Benaim has cataloged objections.

In broad strokes, the bill follows the usual pattern of anti-SLAPP, looking for free speech and public interests on the part of the defendant, which then burdens the plaintiff with proving probable success on the merits out of the gate.

Benaim published his objections on the INFORRM blog, part 1 and part 2. Some of his objections track those that I articulated in 2021 as to American anti-SLAPP statutes. I lamented the unfairness of expecting a plaintiff to meet an extraordinary proof standard such as actual malice as to falsity without the benefit of discovery. The equivalent UK approach expects a plaintiff to overcome a bare public interest defense without the opportunity to probe the publisher's process or motives.

Benaim also points out, as I have, that anti-SLAPP is as likely to be invoked by the powerful against the weak as vice versa; Goliath media giant against aggrieved individual; or, as happened, President Trump against sexual assault complainant Stormy Daniels.

Benaim is a rarity, a plaintiff's lawyer in media torts. Not that everyday aggrieved individuals will be able to score a place on his client list, which includes JK Rowling, Naomi Campbell, Roman Polanski, and Gordon Ramsay.

At least in the United States, at least, the already daunting odds of prevailing in a media tort case against a publisher with expert defense counsel on retainer causes most would-be plaintiffs not to sue at all, no matter how just their causes. They can't find counsel and certainly can't navigate complex media torts pro se. And that's before anti-SLAPP comes into play, threatening a losing plaintiff with having to pay the attorney fees of the media giant's high-dollar representation.

As I've written before, anti-SLAPP works well when it works well. Statutes just aren't drafted to ensure that that's always the case. It looks like the UK is struggling with the same problem.

South American visitor wonders at lawyer billboards; artist imagines canine advocates instead

A young man I know from Paraguay recently visited the Philadelphia area for a week, his first time in the United States.

I texted to check on him when he returned home to Asunción. He had a great visit, was home safe and exhausted, he texted back, and had seen so much, it would take a while to process it all.

But one question, he wrote.

 

Hmm.

I guess Americans get in a lot of accidents, I said. 

No, actually, I just texted, "🤑." I think that covered it.

Lawyer advertising is the theme of some delightful imaginings in a canine vein by Kensington Campbell: Instagram embed below. See more there or on TikTok. Hat tip @ Molly Sullivan and Frances Fendler.

View this post on Instagram

A post shared by Golden Retriever | Kensington (@kensingtoncampbell)

TORTZ volume 2 unpacks duty, causation, damages, introduces nuisance, defamation, privacy

Tortz volume 2 is now available for affordable purchase from Lulu.com and for free PDF download from SSRN.

Tortz volume 2 follows up volume 1 (Lulu, SSRN, The Savory Tort), published in 2023 and pending update this year. I am using Tortz volumes 1 and 2 with students in my American tort law classes in the United States and in Poland this academic year.

The two-volume Tortz textbook represents a survey study of American tort law suitable to American 1L students and foreign law students. In volume 1, the first eight chapters cover the fundamentals of the culpability spectrum from intentional torts to negligence to strict liability.

Volume 2 comprises chapters 9 to 15: (9) damages, (10) res ipsa loquitur, (11) multiple liabilities, (12) attenuated duty and causation, (13) affirmative duty, (14) nuisance and property torts, and (15) communication and media torts. 

Contemporary content in Tortz volume 2 includes exercises in pure several liability; treatment of opioid litigation in public nuisance law; recent criticism of New York Times v. Sullivan in defamation law; and exposure to common law developments in privacy law, such as the extension of fiduciary obligations to protect personal information.

Three final chapters will be added to Tortz volume 2 for a revised edition later in 2024: (16) interference and business torts, (17) government claims and liabilities, “constitutional tort,” and statutory tort, and (18) worker compensation and tort alternatives. Any teacher who would like to have copies of draft materials for these chapters in the spring is welcome to contact me.

Tortz is inspired by the teachings of Professor Marshall Shapo, a mentor to whom I am deeply indebted. Marshall passed away in November 2023.

My thanks to Professor Christopher Robinette, Southwestern Law School, who kindly noted the publication of Tortz volume 2 on TortsProf Blog even before I got to it here.

Big Ag plays Goliath in film about GMO-seed litigation

A worthwhile movie you might have missed during the pandemic is Percy vs. Goliath (2020), starring Christopher Walken and Zach Braff, involving Canadian lawsuits over GMO seed contamination.

I caught up with the film last weekend. As the title suggests, it's a David vs. Goliath story about a workaday Canadian farmer, Percy Schmeiser (Walken) sued by agriculture giant Monsanto when Roundup-resistant canola strains turned up in the farmer's fields in Saskatchewan. Schmeiser countersued for libel and trespass.

The real-life case is Monsanto Canada Inc. v. Schmeiser (Can. 2004). The real-life Percy died in 2020 soon after the film was completed. There have been several documentaries about the case, besides this fictionalization.

Spoilers ahead.

Something I liked and had not expected in the film is the depiction of Percy's visit to India. The filmmakers do a good job conveying the fact that GMO seed drift and patent exclusivity is a worldwide problem. The film doesn't directly tackle the unknown risks of GMOs, both to human health and in global monoculture, but they're implicit in Percy's reasons for resisting GMO tech.

The film also doesn't tackle the separate problem of Roundup toxicity, which fueled mass tort litigation in the United States only later, in the 2010s. But the repeated mention of the product can't help but bring the issue to mind with the benefit of hindsight. (Certainly it brings the issue to my mind, remembering my summer work as a landscape laborer, Roundup streaming down my arms. Though that's nothing compared with soaked workers I saw on Central American fruit plantations in the 1990s.) Bayer acquired Monsanto in 2018 and agreed to settlements over Roundup in 2020. 

Percy mostly won in the end, in that Monsanto could not prove deliberate appropriation. But the court did find patent infringement and required Percy to surrender his seeds to Monsanto.

In the United States, the Supreme Court in 2013 ruled in favor of Monsanto in a seed case with different facts, Bowman v. Monsanto Co. An Indiana farmer had replanted seeds that Monsanto clients had sold to a grain elevator in violation of Monsanto's license, which prohibited downstream reuse. The later buyer infringed the patent, the court concluded.

In a U.S. case closer to Schmeiser but with a different procedural history, a broad farming coalition sought to nullify Monsanto patents to head off infringement claims they saw as an inevitable result of genetic drift. The court rejected the suit in Organic Seed Growers and Trade Association v. Monsanto Co. (Fed. Cir. 2013) for lack of controversy. Monsanto thereafter announced that it would not pursue infringement claims against non-client farmers for Roundup-resistant strains as long as they didn't use Roundup.

Informative for comparative law class, the film, Percy, includes a short courtroom scene toward the end in which Percy's solo lawyer Jackson Weaver (Braff) argues against the Big Ag sharks in the Canadian high court. Christina Ricci turned in an enjoyable supporting performance as environmental activist lawyer Rebecca Salcau. I recall that Ricci delightfully played scrappy attorney Liza Bump in the final season of Ally McBeal.

Weaver's and Salcau's resource limitations in facing off against Big Ag brought to mind A Civil Action (1998), and Percy overall is reminiscent of Dark Waters (2019) (on this blog). Percy's quiet tribulation is not the stuff of blockbusters, but it's surely worth the watch for anyone interested in the broad range of issues it raises in environmentalism, agriculture, food supply, civil litigation, product liability, intellectual property, and corporatocracy.

Though it was not a policy point in the film, I found compelling attorney Weaver's warning to Percy that losing the case would mean not only compensation on the merits to Monsanto, but liability to Monsanto for hundreds of thousands of dollars in fees for the very Big Ag attorneys who rendered the litigation playing field so unlevel as might, circularly, precipitate the loss.

Such is the rule for attorney fees in Canada and most of the world, and, alarmingly to me, more and more, by statute, in the United States. Civil rights advocates and the plaintiff bar herald attorney-fee shifting as vital to facilitate access to the courts for injured persons. But when the burn works both ways and a corporate Goliath prevails, the result should give us pause before wholeheartedly chucking out the pay-your-own-way rule of American common law. Writ small, this precisely is one of my objections to anti-SLAPP laws that place genuinely victimized individual plaintiffs at risk of having to pay outrageous fee awards to compensate corporate mass media defense attorneys.

I watched Percy vs. Goliath on the Roku Channel with ads. The film is available for less than $4 on many streaming platforms.

Denying public access to crash data, did state agency prioritize fear of litigation over public safety?

Map of bicycle and pedestrian accidents
in Providence, R.I., 2009-17, from
Providence Great Streets Master Plan (2020)

Rhode Island authorities appear to have denied public access to road safety data for no reason better than protecting the state from litigation.

For The Providence Journal, Amy Russo reported in June (subscription) on a dispute between the nonprofit advocacy group Providence Streets Coalition (PSC) and the Rhode Island Department of Transportation (RIDOT). According to the story, RIDOT denied a PSC request under state public records law for access to crash data.

To justify the denial, RIDOT pointed to federal law and state court precedent allowing denial of a public record request when a litigant seeks to support a negligence claim against the government, Russo reported. But there is no litigation related to the PSC request.

The relevant rule seems to be of the kind known to some freedom of information acts (FOIAs) that seeks to keep the FOIA process apart from discovery in litigation. Such provisions are not necessarily hostile to public access, but ensure that FOIAs don't undermine civil procedure. Usually a litigant in discovery has better access to relevant government-defendant records than a public-record requester has because FOIA exemptions from access don't apply. Sensitive information that might be FOIA-exempt can be subject to a protective order under the rules of civil procedure, but still must be disclosed.

It rather turns the rule on its head, then, for RIDOT to resist disclosure when there is no alternative track in discovery for the requester to demand access. If that's indeed what happened, then RIDOT is almost certainly overreaching. The state has ample protection from lawsuits in sovereign immunity. Typically, states cannot be sued merely for failure to act affirmatively to ensure public safety, nor for exercising discretion to prioritize public safety relative to finite resources.

Rather, a litigant must show that officials were bound to follow a specific legal standard and negligently failed to do so. If that's what's going on, then lawsuits are precisely the appropriate mechanism for injured persons to see their interests vindicated and the state held accountable.

Whatever RIDOT's motive, withholding vital safety data from the public is plainly at cross-purposes with public interest. Russo's story observed that other states, "including Texas, Colorado, Florida, California, and Massachusetts," make crash data public. She interviewed Eric Jackson, head of the Connecticut Transportation Institute and Transportation Safety Research Center at the University of Connecticut, which partnered with the Connecticut Department of Transportation to build a public crash database in 2010.

Connecticut did worry that "attorneys and ambulance chasers are going to come after us and basically say you have the data that's showing you where crashes are occurring," Jackson said. But "[s]o far, ... that hasn't come to fruition."

And Jackson pointed out what should be obvious: If the problem is road safety, then secreting data is hardly the answer.

The PSC-RIDOT matter won't come to court, Russo wrote, because PSC obtained the data it wanted from the City of Providence.

The story is Amy Russo, A Providence Organization Wanted Crash Data To Make Streets Safer. RIDOT Said It's Private, Providence J. (June 26, 2023) (subscription).

TORTZ volume 1 now available to print on demand

I'm pleased to announce the publication of TORTZ: A Study of American Tort Law, volume 1 of 2.

Hard copies can be printed at Lulu.com for just $30 plus shipping. A free PDF can be downloaded from SSRN.

Eight chapters cover the fundamentals of the culpability spectrum from intentional torts to negligence to strict liability. After two pilot deployments of content, in 2021 and 2022, this book will be my 1L students' Torts I textbook in fall 2023.

I anticipate publication of volume 2 in 2024.

Public records make $363m toxic-tort verdict possible

Condensed ethylene oxide, a carcinogen.

102% Yield via Wikimedia Commons CC BY-SA 4.0

Public records made possible a $363m verdict in a toxic tort case in September.

For the ABA Journal, attorneys Jennifer M. Cascio, Lance D. Northcutt, and Patrick A. Salvi II wrote about how they won the verdict in an Illinois jury trial (limited free access). They explained:

In August 2018, a federal report revealed that a small community southwest of Chicago had an elevated cancer risk due to emissions of a carcinogen from two innocuous buildings situated between a Target and a Denny’s. Those buildings were operated by the medical device sterilization company Sterigenics, which had been releasing a colorless, odorless human carcinogen [ethylene oxide] since 1985 without any warning to the surrounding community that included homes, schools, businesses and parks—all within a mile.

Bringing such a case is easier said than done; I know because I saw it in Erin Brockovich and A Civil Action. Seriously, though, even at the pleading stage, showing evidence of proximate causation between a toxic substance and specific plaintiffs' illnesses is a towering hurdle, much less the proof that would be needed to win a trial. And a plaintiff that cannot get over the pleading hurdle cannot get discovery.

It's noteworthy, then, that, as described, this case started with a public federal report and proceeded thanks in part to the Freedom of Information Act (FOIA). Especially burdened by a dearth of relevant epidemiological evidence, the plaintiff lawyers wrote that they amassed the necessary evidence of causation by "gather[ing] documents via Freedom of Information Act requests and digging through state and federal databases."

We like to think that our not insubstantial regulatory state is using the resources that it itself produces to safeguard public health. For whatever reason, and there are many reasons, that's the exception to the rule. America rather relies heavily on the tort system as a first-line accountability mechanism. FOIA is vital to bridge the gap between public and private enforcement. 

The case moreover shows the importance of affirmative disclosures of scientific information through publicly available databases. Here, fortunately for affected persons, plaintiff lawyers were on the hunt for evidence. No doubt, though, some victims did not know they were victims of pollution, a colorless, odorless gas, no less, until they saw an attorney's ad. FOIA without affirmative disclosure is useless when people don't know there's a reason to be asking questions. Cancer sufferers might have other things on their minds.

The case, one of more than 700 of its kind against the same defendant, is Kamuda v. Sterigenics, U.S. LLC, No. 2018-L-010475 (Ill. Cir. Ct. verdict Sept. 19, 2022).

Judge teaches, supports professional development by encouraging appearance of junior attorneys

In multi-district civil antitrust litigation over turkey prices, a federal magistrate judge in Illinois in the fall issued an unusual order, calling on litigating firms to designate only junior attorneys to argue motions.

Pending before the court at the time were three pretrial matters, a discussion of expert testimony, a motion to preclude a deposition, and a motion to amend a scheduling order. On October 20, 2022, Magistrate Judge Gabriel A. Fuentes wrote:

[T]he Court would like to offer junior counsel an opportunity to speak to the expert discovery issue and to argue the two motions. The Court strikes the [planned telephonic] hearing and resets it to [Nov. 1,] when there will be ample time to address all three issues. If the parties do not indicate that they will permit junior associates to argue the motions, the Court will hold the hearing telephonically on the expert discovery issue only and will decide the two motions on the paper submissions.

The Court kindly requests that the parties confer and notify the courtroom deputy ... whether counsel with less than four years of experience after law school will be permitted to speak and argue; ideally, different counsel would argue the two different motions for the arguing parties. Also, multiple junior counsel could divide a party's arguments on a single motion if it makes logical sense to do so. Senior counsel of course may and should attend in a supervisory role and will be permitted to add or clarify as they see fit.

No inferences should be drawn about the importance of any motion to the Court based on the Court's attempt to create professional development opportunities for junior counsel. Additionally, the status hearing on the expert discovery issue strikes the Court as one that could be addressed by junior counsel.

(Paragraph breaks added.)

Judge Fuentes has served on the bench for almost four years, since May 2019. Before his appointment to the bench, Fuentes was an accomplished lawyer, and before law school, an accomplished journalist.

Fuentes wrote news and sports for local papers as a secondary-school student, and he worked his way up to managing editor of the Daily Northwestern while at the Medill Journalism School. He worked for four years as a reporter for The Los Angeles Times before going back to the Northwestern Pritzker Law School. After six years as an attorney associate, Fuentes made partner at Jenner and Block; left to serve about five years as an assistant U.S. attorney; then returned to Jenner and Block for 13 more years.

While practicing as a litigator in white collar defense, antitrust, and media law, Fuentes maintained a heavy docket of pro bono practice. In 2015, the Chicago Bar Foundation recognized his work "on indigent criminal defense, prisoner rights, the protection of voting rights for minorities, and First Amendment issues." In particular, Fuentes never stayed true to his journalistic roots, for example, once negotiating with counsel for Western University Illinois University on behalf of a student investigative journalist.

Being also a product of journalism and law schools, and likewise having represented student journalists pro bono, I identify with Judge Fuentes's experience. More importantly, as a law professor, I appreciate Fuentes's initiative to help new attorneys in big-law practice to get real forensic experience. 

Much of what is wrong with legal education today can be traced to the bean-counter orientation of administrators, universities, and the American Bar Association as accreditor, all of which are more concerned with bar pass statistics, superficial diversity, and, above all else, revenues, than with whether students actually learn anything worthwhile or grow as moral actors. Yes, law schools do care about making students "practice ready," but that only because the bar, unlike the medical fraternity, has shirked its historic responsibility to teach. The responsibility has devolved wholly on law schools, where practical skills training has all but supplanted the policy, theory, and moral deliberation that are supposed to make law a profession rather than mere occupation.

Fuentes has counseled students at Medill and taught adjunct at Pritzker, so he's kept a hand in the classroom, too. I don't know Fuentes. But to me, his apparent ability to synthesize his career experiences into simultaneous roles of servant and mentor represents the very model of professional identity. His minute order entry of October 20 should be the norm, not a headline.

Judge Fuentes ruled on the motions on November 9, and entered into the record: "The Court extends its thanks to the parties and counsel for allowing junior associates to argue and address these matters, and the associates are commended for an excellent performance."

The underlying case is In re Turkey Antitrust Litigation, No. 1:19-cv-08318 (N.D. Ill. filed Dec. 19, 2019). HT @ Adrian Cruz, Law360.

Land dispute implicates 'second element of second path of second stage' of anti-SLAPP analysis, and we're all supposed to pretend the world's better for it

The Supreme Judicial Court studies its anti-SLAPP framework.
Argonne National Laboratory CC BY-NC-SA 2.0 via Flickr

Anti-SLAPP analysis in Massachusetts has become a Rube Goldberg machine disguising little more than an "I know it when I see it" test—

—so I contend, and I offer a Massachusetts Appeals Court case decided Tuesday as evidence.

I've written many times about anti-SLAPP, including my contention that the device can be used meritoriously, but is as often deployed to contrary ends, a sword for Goliath to strike down David; the legion dysfunctions of tort law that anti-SLAPP amplifies; and the possible better solution to be found in process torts and similar related mechanisms of accountability in law practice and procedure.

As Massachusetts courts have struggled to differentiate meritorious actions from SLAPPs under the Commonwealth's characteristically convoluted statute, I ultimately gave up trying to keep up with the ever more complicated thicket of rules and procedures leaching out from appellate decisions. So The Savory Tort should not be your first stop if you're trying to get a granular grip on the current landscape here.

Yet I can't help but write about this most recent appellate opinion. To my reading, the court poorly disguised its doubts about burgeoning and burdensome anti-SLAPP process, and whether time, money, and justice can all be saved at the same time.

The underlying dispute was a land matter. The plaintiff, seeking quiet title and adverse possession, was partially successful in a somewhat protracted litigation. Later, if before the expiry of a three-year limitations period, the respondent from the land action filed the present case, alleging abuse of process and intentional infliction of emotional distress by way of the earlier case. The land plaintiff from the earlier case, now the process and IIED defendant, raised the Massachusetts anti-SLAPP statute in defense.

First, I take the occurrence here of abuse of process as evidence in support of my position that anti-SLAPP is often really about process wrongs. Though here the anti-SLAPP movant is the one accused of abuse of process, it is typical in process tort cases for accusations of misconduct to fly simultaneously in both directions. Regardless of whether a jurisdiction recognizes abuse of process as a cause of action per se, courts have the power to manage process objections with a range of existing tools. I wrote about abuse of process appearing as a defensive mechanism, essentially a better tailored anti-SLAPP device, in South Africa. And my 1L torts class just yesterday read Lee Tat Development, a well reasoned 2018 opinion, included in my casebook, in which the Singapore Court of Appeals both rejected the abuse of process as a tort action and thoroughly discussed alternatives.

The Massachusetts Appeals court devoted a dense 10 pages to the blow by blow between the parties in the instant case. I won't retell it here. What's compelling is what the court had to say about its job in reviewing the Superior Court's anti-SLAPP ruling. Quoting the Supreme Judicial Court (SJC) in the Exxon case, which I reported recently, the Appeals Court's opening line oozes disrelish:

"This case involves yet another example of the 'ever-increasing complexity of the anti-SLAPP case law,' and the 'difficult and time consuming' resolution of special motions to dismiss pursuant to the 'anti-SLAPP' statute."

The partial quotes read like the court is feigning innocent pleading to the Supremes, "These are your words. We're just repeating them."

In analyzing the instant case according to the painstaking legal framework that the SJC has eked out of case experience, the Appeals Court located the present dispute in "the second element of the second path of the second stage."

What is the second element of the second path of the second stage, you ask?

Well, it's that the "judge must 'assess the "totality of the circumstances pertinent to the nonmoving party's asserted primary purpose in bringing its claim," and ... determine whether the nonmoving party's claim constitutes a SLAPP suit.'"

Isn't that the whole game?

I humbly propose that the good ship Commonsense has already sailed when we start talking about a second element of a second path of a second stage.

The Appeals Court divulged a tone somewhere between surprise and pride when it concluded "that the [Superior Court] judge followed the augmented framework sequentially, assiduously, and judiciously." Adjectives "comprehensive" and "thoughtful" followed.

Then, around page 27, the court hints at deeper problems.

The [landowners'] arguments demonstrate some of the difficulties associated with the application of the augmented framework. On one hand, the present action presents as a typical SLAPP case in that a supposedly wealthy developer sued abutters of supposedly modest means for petitioning in court to challenge a development project.... On the other hand, the [landowners] averred that far from being wealthy and powerful developers, they were a real estate broker and part-time bookkeeper attempting to develop a single-family residential property, while the [anti-SLAPP movants] were not the "individual citizens of modest means" contemplated by the anti-SLAPP law. The parties contested each other's motivations and representations. There is an inherent difficulty and, in some cases, prematurity in requiring a judge to make credibility determinations and discern a party's primary motivation predicated on affidavits, pleadings, and proffers, and not on a more complete evidentiary record scrutinized through cross-examination.

Some pages later, the court returned more directly but cautiously to the question of anti-SLAPP efficacy:

In this regard, as we have noted, the [landowners] insist that the present action cries out for a jury trial as the only appropriate way to resolve critical credibility disputes and determine the parties' true motivations. This argument has some force in that there are obvious difficulties in ... requiring judges to be fairly assured that the challenged claim is not a SLAPP suit, absent full discovery and testimony tested through cross-examination. Yet, the special motion to dismiss remedy exists, in large part, to avoid costly litigation and trial.... In any event, it is for the Supreme Judicial Court or the Legislature to address and resolve these concerns should they so choose.

At the tail end of a 34-page appellate opinion on meta-litigation over a small land matter and a lot of bad blood, one might wonder how much "costly litigation" was avoided.

The problem is with anti-SLAPP itself. The court is being asked to adjudge the motives of a litigant in the absence of evidence for the very purpose of avoiding the cost of collecting evidence.

We don't have a SLAPP problem. We have a transaction costs problem. Slapping a bandage on it with anti-SLAPP only invites perverse results. And the harder one tries to get right a call about evidence without the evidence, the more costly and perverse the results will be.

The case is Nyberg v. Wheltle, No. 21-P-791 (Mass. App. Ct. Sept. 13, 2022) (temporary court posting). Judge Eric Neyman wrote the opinion for a unanimous panel.

UPDATE, Sept. 16: Notwithstanding the ill wisdom of anti-SLAPP, the fad flourishes. Europe and the UK continue their headlong advances toward legislation, and a new bill in the U.S. Congress seeks to bring anti-SLAPP to U.S. federal courts. Enjoy, judges! I don't expect that the extinction of the defamation cause of action will do much to remedy our problems with misinformation and vitriolic divisiveness, but that seems to be the experiment we're determined to carry out.

EEOC withholds records in arbitration matters; corporate frustration with secret justice is ironic

Janet Dhillon

According to employers' lawyers, the Equal Employment Opportunity Commission (EEOC) is denying public access to investigation files in matters committed to arbitration, even while conceding that files in litigation matters must be disclosed under the federal Freedom of Information Act (FOIA).

Yesterday the Labor and Employment Law Practice Group of the Federalist Society held a teleforum with the provocative title, "Is the EEOC misusing the Freedom of Information Act to penalize employers that adopt mandatory employment arbitration programs?" Here is the description:

The EEOC is denying employers' FOIA requests for the EEOC's charge investigation files when resulting employment claims are proceeding in arbitration rather than litigation. Our panel will discuss whether the EEOC's justifications for denying such FOIA requests are consistent with FOIA and other governing federal statutes. We will consider a number of related issues. What is the EEOC's basis for treating litigation and arbitration differently in responding to employers' FOIA requests?  How long has the EEOC been making this distinction between litigation and arbitration? In light of the increasing prevalence of employment arbitration, should employers challenge the EEOC's FOIA practices and, if so, how?

Speakers included EEOC Commissioner Janet Dhillon and Jones Day attorney Eric Dreiband.

I regret, I didn't make it. My guess is that the EEOC is denying access on basis of the various exemptions for law enforcement investigation records, besides deliberative process. Without having heard either side of the debate, my inclination, probably like Dreiband's, is to doubt seriously the viability of any asserted distinction between arbitration and litigation.

What I find compelling about the case, though, is less the effort at FOIA exemption and more the irony of corporations being stymied on transparency and accountability when mandatory arbitration is a choice of their own design.

I wrote just yesterday about the problem of arbitration superseding litigation as our principal means of dispute resolution. And the fact that arbitration happens in secrecy is a big part of that problem. In litigation, the tort system achieves the important objectives of norm-setting and deterrence, besides the anti-vigilantism I mentioned yesterday. Norm-setting and deterrence, in turn, avert tortious conduct by the same respondent and other actors in the future. Secret justice undermines these objectives. Even the same bad actor can persist in its misconduct without risk of punitive consequences.

I don't approve of selective opacity by EEOC. But there's a scrumptious hypocrisy in companies wanting transparency and accountability in public enforcement mechanisms while they jealously secret their own dirty laundry against the public functions of the courts.

Flawed instruction on 'reasonable alternative design' requires vacatur of tobacco defense judgment

Plaintiff's decedent started smoking in the early 1960s,
at age 13 or 14, with free samples of Kents.
(David Shay CC BY-SA 2.5 via Wikimedia Commons)

An error in jury instruction was small but crucial in a Massachusetts tobacco liability case, resulting in partial vacatur in the Appeals Court.

The plaintiff, decedent's representative, alleged design defect as cause of terminal lung cancer. The jury was instructed that the plaintiff had to prove the availability of a reasonable alternative design by the time the plaintiff was addicted.

That instruction described too tight a time frame, the court held. "[T]he jury should have been told to assess whether a reasonable alternative design existed at the time of distribution or sale."

The court explained:

If a manufacturer continues to make and sell a harmful and addictive product even though a safer alternative is available, the fact that the consumer is addicted to the product makes it more—not less—important for the manufacturer to adopt the available safer alternative. The purpose of anchoring liability to the point in time when the defective product is sold or distributed is to give manufacturers an incentive to create safer products [citing, inter alia, the Third Restatement of Torts].... Were we to adopt the defendants' view that liability should attach only up until the point in time a smoker becomes addicted to cigarettes, that incentive would be severely diminished, or even eliminated. Such a rule would in essence immunize cigarette manufacturers from liability to addicted persons even though they continue to sell or distribute defective products despite the availability of reasonable alternative designs. We see no reason to limit liability in this way, especially given the addictive nature of cigarettes, the speed with which smokers can become addicted to them, and the years—if not decades—thereafter during which a person continues to smoke and thus remains exposed to the dangers of cigarettes. In this regard, we note further that, as the expert testimony bore out, ... the degree or point of addiction to tobacco may be viewed as a continuum rather than a bright line. For this reason, it is all the more important that manufacturers be encouraged to produce safer, less addictive products at all points in time so as to increase the possibility that an addicted smoker be able to quit.

The court vacated the judgment in favor of defendants insofar as it arose from the erroneous instruction.

The case is Main v. R.J. Reynolds Tobacco Co., No. 20-P-459 (Mass. App. Ct. Apr. 8, 2022). Justice Gabrielle R. Wolohojian wrote the opinion for a unanimous panel.

Tort-contract distinction cannot block damage multiplier, Mass. high court holds in lease dispute

Photo by Yonkers Honda CC BY-SA 2.0 via Flickr

A landlord may not rely on a limitation-of-liability provision in a commercial lease to evade a damage multiplier under Massachusetts consumer protection law, the Supreme Judicial Court ruled in January, regardless of whether the case is characterized as tort or contract.

The dispute arose between plaintiff-tenant Majestic Honda and its LLC landlord, owned by Alfredo Dos Anjos. Majestic accused the defendant of bad-faith lease termination, and the trial court agreed.

Massachusetts General Laws chapter 93A, under which Majestic brought its case, is a famously potent statutory remedy. Ostensibly its section 11 is a consumer protection law like any of the unfair trade practices prohibitions found throughout the states. But the statute has been read broadly in Massachusetts to operate at or beyond the margins of what lawyers usually regard as "consumer protection."

Moreover, section 11 authorizes double and treble damage awards upon "willful or knowing" misconduct. Massachusetts does not recognize punitive damages at common law, only by statute. Chapter 93A also has a four-year statute of limitations, sometimes an advantage to plaintiffs over the usual Massachusetts limitations period of three years for most tort actions.

Thus, as a result of permissive construction and powerful incentives for plaintiffs, chapter 93A is invoked frequently in what would be merely common law tort cases in other states, even to the exclusion of the common law claim in Massachusetts. Chapter 93A also is used in public enforcement, as in the Attorney General's present litigation to hold Big Oil accountable for climate change.

Tort and contract claims can be subsumed into the same 93A framework, blurring the classical distinction. The distinction is especially weak in product liability cases, in which Massachusetts plaintiffs almost always rely on 93A, in part because the commonwealth has recognized strict product liability as an extension of quasi-contractual warranty rather than as an evolution of common law negligence.

I am not a Massachusetts lawyer, and I am careful to disclaim to my 1L torts students that I am not well versed in 93A practice. It is its own field and cannot be folded into tort fundamentals. But, I admonish, they should endeavor to learn more if they intend to practice tort litigation in Massachusetts. My supremely talented colleague Professor Jim Freely once regularly taught a 93A course, but I don't think it's been offered since he was drafted (no pun intended) into the legal skills program.

Insofar as section 93A's damage multiplier is punitive in nature, it should not be disclaimable by a tort defendant, else the legislature's intended deterrent effect would be rendered moot. Upon this logic, the Massachusetts Appeals Court looked in past cases to discern whether the plaintiff's claim analogized more closely to tort or contract, to determine whether a limitation-of-liability provision should be allowed to nullify extraordinary statutory damages.

In fairness to the Appeals Court, the Supreme Judicial Court did roughly the same thing in 2018 when it applied a statute of repose for tort claims arising from real property to a 93A action, even though 93A itself has no repose period; three justices dissented from that ruling.

Here, the analogical approach is wrong, the Supreme Judicial Court decided unanimously. The court wrote, per Justice Scott Kafker, "Because G. L. c. 93A establishes causes of action that blur the distinction between tort and contract claims, incorporating elements of both, we do not adopt this formulation." The court further explained,

Our cases have also pointed out that a c. 93A claim is difficult to pigeonhole into discrete tort or contract categories, as c. 93A violations tend to involve elements of both tort and breach of contract, blurring the lines between the two. As we explained in [prior cases], "[t]he relief available under c. 93A is 'sui generis,'" being "neither wholly tortious nor wholly contractual in nature." Hence, a "cause of action under c. 93A is 'not dependent on traditional tort or contract law concepts for its definition.'"

After all, the court reasoned, the legislative intention to deter willful or knowing misconduct is not a function of whether the wrong is a tort or a breach of contract.

At a theoretical level, the vast gray area of 93A in Massachusetts law might have broader implications for the classical distinction between tort and contract, namely, whether the distinction will or should persist at all in contemporary common law. Massachusetts 93A practice might prove instructive as courts in many common law jurisdictions, such as Canada, reconsider the vitality of the so-called "economic loss rule," a historic marker of the tort-contract distinction that forbade tort actions in the absence of physical injury or damage.

The case is H1 Lincoln, Inc. v. South Washington Street, LLC, No. SJC-13088 (Mass. Jan. 24, 2022).