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

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.

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).

Judge excoriates city in public records row

Worcester, Mass., City Hall
(Mass. Office of Travel & Tourism CC BY-ND 2.0 via Flickr)

In a remarkable opinion in January 2022, the Massachusetts Superior Court excoriated the city of Worcester, Massachusetts, for failure to comply with a newspaper's public records request investigating police misconduct.

In 2018, GateHouse Media, owner of the Worcester Telegram & Gazette and a subsidiary of Gannett, filed a Massachusetts freedom of information act (FOIA) request for files related to investigations of Worcester police in civil rights matters. The Telegram's interest was spurred by Worcester attorney Hector E. Pineiro, who was upset by police interaction with his son.

The city resisted production of the records because, it argued, they were part of ongoing litigation involving police officers. The Massachusetts FOIA has no litigation exemption per se, but officials shield some records under the deliberative process exemption, relating to policy positions still in development. The city grossly over-relied on that strategy, the court concluded in June 2021 after a rare FOIA trial.

GateHouse Media persisted with its case even after shaking lose the records, demanding that the city be permanently enjoined from similar baseless argument in the future and be charged with punitive damages. In January, the Superior Court, per Justice Janet Kenton-Walker, substantially sided with GateHouse, finding that the city had acted in bad faith and needlessly protracted the litigation and costs for years.

Not only did the city rely erroneously on the text of statute, Justice Kenton-Walker opined, it "cherry-picked certain language from ... cases, taking it out of context." And the city had an ugly history with the same issue. The court explained:

[T]he court cannot ignore that [the city] originally took [its] position in spite of the fact that the city was one of the parties to, and thus aware of, Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester (Mass. App. Ct. 2003). In that case, the Appeals Court held that materials in a "Worcester police department internal affairs file ... compiled during an investigation of a citizen complaint," were public records. That court stated explicitly that "[i]t would be odd, indeed, to shield from the light of public scrutiny as 'personnel [file] or information' the workings and determinations of a process whose quintessential purpose is to inspire public confidence" (emphasis added).

The court declined to award an injunction, reasoning that the threat of litigation should provide sufficient deterrence. "Simply put, the court expects the city to follow the law now and in the future," the judge wrote.

But the court did order the city to pay $5,000 in "punitive damages." That's at the top of a range allowed by state law when public officials act in bad faith. The money goes to the state Public Records Assistance Fund, rather than to the plaintiff.

According to the Telegram in February, Pineiro said that "he believes the city fought 'tooth and nail' to avoid producing the records because it did not want the public to see a police internal disciplinary process he labeled a 'sham.'"

The city wrote in a statement, the Telegram reported, that it would "move on" and not appeal.

The case is GateHouse Media, LLC v. City of Worcester, No. 1885CV1526A (Mass. Super. Ct. Jan. 26, 2022).

Mass. high court affirms 'component parts doctrine' in HVAC spat, unless maker was culpable in defect

Historical interior of the William Bliss House, 25 Exeter, Back Bay in Boston,
constructed 1882-1884: today the private home of the Nemirovsky family.
Source: Historic New England. 

In a December decision, the Massachusetts Supreme Judicial Court (SJC) reaffirmed the defense-friendly "component parts doctrine" in product liability.

The case arose from a faulty HVAC system installed in plaintiff's 22,000-square-foot Boston home. Evaporator coils in the system repeatedly failed and required replacement, costing the plaintiff hundreds of thousands of dollars, and then substantially more to replace the system in its entirety.  The coils themselves were not defective, but a defect in the system's Styrofoam drain pan caused the coils to fail prematurely.  The statute of limitations precluded plaintiffs' claims based on sale of the HVAC system, but not claims based on the later sale of replacement coils.

Sensibly, the widely accepted "component parts doctrine" ordinarily relieves from liability the manufacturer of non-defective component parts.  However, the SJC explained, citing the Third Restatement, "a component manufacturer may be liable, even if the component itself is not defective, if the component manufacturer is 'substantially involved' in the integration of the component into the design of the integrated product, the integration of the component causes the integrated product to be defective, and the defect in the integrated product causes the harm."

The Superior Court erred, the SJC concluded, in not applying the general rule of the component parts doctrine.  The Superior Court had reasoned that the coil manufacturer could be liable because the coils were made specifically for integration into the defective HVAC system and had no standalone functionality.  In other words, the product failure was foreseeable to the coil manufacturer.  But there are no such exceptions to the component parts doctrine, the SJC held.  Intended integration is not the same as the "substantial involvement" contemplated by the Restatement rule.  And standalone functionality is not the test to shield a component maker from liability.

The component parts doctrine is widely accepted in the states.  There was some hand-wringing over the vitality of the doctrine in 2016 when the California Supreme Court held the doctrine inapplicable when "injury was allegedly caused directly by the [defendant's] materials themselves when used in a manner intended by the suppliers."  In that case, a metal foundry worker had developed lung disease, he alleged, as a result of fumes and dust generated by the foundry's use of the defendant's materials in manufacturing.  But it was the defendant's materials that caused the disease, even if they had been physically transformed by the foundry.  And the specific intentionality attached to the use of the materials closely resembled substantial involvement, tightening the lasso of foreseeability.  The decision hardly unsettled the component parts doctrine.

Law students should take care not to confuse the component parts doctrine with "the single integrated product rule."  That rule determines when damage to an integrated product can be said to satisfy the injury requirement of product liability.  Standalone functionality is relevant to the analysis, but not necessarily dispositive.  If a component part is intended for integration into a larger product, and a defect in the component causes damage to the larger product, but no damage beyond the larger product, then the buyer of the defective component cannot meet the injury requirement to sue in product liability.  The theory of the rule is that the buyer, anticipating the integration, should protect itself in contract and warranty, rather than depending on tort law.  The component parts doctrine rather precludes component manufacturer liability for a non-defective integrated component upon the theory that the component buyer, responsible for the integration, is in the better position to ensure the safety of the integrated product.

In the Massachusetts case, the SJC's decision vacated a $10.6m award.  The jury had awarded just under $3.4m in its verdict.  Massachusetts does not allow punitive damages at common law, but an expansive statute protecting consumers against misrepresentation, "chapter 93A," subsumes much of what would be separate product liability claims in other jurisdictions and can hit defendants with punishing awards of damage multipliers and attorney fees.  Under 93A, the trial court had awarded double damages and attorney fees against defendant Daikin North American for its "willful and knowing" misrepresentation.  Daikin NA might not be off the hook entirely, as the SJC ordered a reexamination of its culpability on remand, to disentangle product liability based on defect from product liability based on culpable misrepresentation.

The case is Nemirovsky v. Daikin North America, LLC, No. SJC-13108 (Dec. 16, 2021).  Justice Dalila Wendlandt wrote the unanimous opinion.

 Ahh, rich people problems....

Court affirms widow's $21m verdict vs. Big Tobacco, upholds punitive damages despite '98 settlement

Marlboro Red Open Box by Sarah Johnson (CC BY 2.0)

The Massachusetts Supreme Judicial Court today affirmed a $21m verdict against Philip Morris USA in favor of the widow of a smoker who died of lung cancer in 2016.

Fred R. Laramie started smoking in 1970, at age 13, when a store clerk gave him a free sample pack of Marlboros, the Supreme Judicial Court (SJC) recounted.  He became a pack-a-day smoker and remained loyal to the brand, unable to quit despite trying, until his diagnosis and death in 2016.

Laramie's wife, Pamela, sued under the Massachusetts wrongful death statute.  She alleged that Marlboros were dangerously defective for their engineered addictive properties, an excess of the risk of smoking known to consumers and indicated on cigarette labels since 1969.  The jury in the Superior Court awarded Pamela Laramie $11m in compensatory damages and $10m in punitive damages.

The bulk of the high court's 37-page, unanimous opinion analyzes the inventive defense argument that the large punitive award is precluded by the 1998 Master Settlement Agreement (MSA) of state claims against Big Tobacco.  As the court recalled in a footnote:

The [Big Tobacco] defendants agreed to pay approximately $240 billion to the settling States over twenty-five years, and to pay approximately $9 billion per year thereafter in perpetuity, subject to various adjustments. The agreement allocated approximately four percent of those payments to the Commonwealth. The defendants also agreed to restrict cigarette advertising and lobbying efforts, to permit public access to certain internal documents, and to fund youth education programs.

Punitive damages are not awarded in Massachusetts common law; they must be authorized by statute.  The wrongful death statute authorizes punitive damages when the defendant caused injury "by ... malicious, willful, wanton or reckless conduct ... or by ... gross negligence."

The plaintiff successfully relied on internal documents of Big Tobacco that demonstrate the artificial manipulation of the nicotine content in cigarettes.  In the 1990s, the revelation of such records marked the plaintiff breakthrough that precipitated the collapse of Big Tobacco's long-successful wall of defenses in product liability litigation.  The revelation represented, more or less, the information at issue in the case of whistleblower-scientist Jeffrey Wigand, reported in 1996 by Vanity Fair and 60 Minutes and subject of the 1999 feature film, The Insider.

The SJC rejected the defense argument of claim preclusion.  The court recognized a qualitative difference between the claims of the Attorney General that resulted in the MSA and the claim of Laramie that persuaded a jury.

The "wrong" the plaintiff sought to remedy was the loss she and her daughter sustained due to Laramie's death, caused by Philip Morris's malicious, willful, wanton, reckless, or grossly negligent conduct, see [wrongful death statute,] G. L. c. 229, § 2. The "wrong" the Attorney General sought to remedy, by contrast, was the Commonwealth's increased medical expenditures caused by Philip Morris's commission of unfair or deceptive acts or practices in violation of [consumer protection law,] G. L. c. 93A, § 2.

Product liability, like punitive damages, is not a function of common law in Massachusetts, at least formally.  The commonwealth imposes strict product liability through a wide-ranging consumer protection statute, "chapter 93A."  Product liability is effectuated formally as a warranty obligation by eliminating the requirement of contractual privity between plaintiff and defendant.  But from that point, functionally, the courts breathe life into the system with multistate common law norms.

Probably Philip Morris's best argument for claim preclusion arose in the theory that chapter 93A affords treble damages, which were incorporated, in theory, into the MSA, and therefore overlaps with chapter 229 in wrongful death.  But the court distinguished the two statutes.  While both afford punitive recovery, the tests and purposes differ.  Damages under 93A were predicated on commercial practices that caused injury to state interests, while 229 damages, which are not capped, arise from culpability in inflicting personal injury on a decedent in a wrongful death action, here, Fred Laramie.

The court rejected a range of other asserted errors, whether because not error or harmless error, in relation to evidentiary admissions, jury instructions, and closing arguments.  Philip Morris had prevailed in the trial court on plaintiff claims of negligence and civil conspiracy.

With regard to jury instructions, the SJC distinguished product liability in warning defect, which was not plaintiff's theory of liability, from the design defect the plaintiff did claim.  The jury was properly instructed, the court held, that 

congressionally mandated warnings were adequate as a matter of law to warn Mr. Laramie and other members of the public of the hazards associated with smoking. The law, however, does not permit a cigarette manufacturer through its statements or actions to mislead consumers or make misrepresentations about the risks or hazards associated with smoking.

Philip Morris complained that the jury was thereby misled to test for liability in misrepresentation or warning defect.  The excerpted bit strikes me, too, as problematic.  Nevertheless, the SJC wrote that the jury was correctly instructed on the elements, so the instructions were "clear" when "viewed as a whole."

Interesting for torts pedagogy in product liability is the court's recitation of defense theories that were rejected at trial.

In its defense, Philip Morris introduced evidence that there was no adequate, safer alternative design for Marlboro cigarettes. An expert for Philip Morris testified that all cigarettes are dangerous, and that any proposed alternative design was not safer, not acceptable to consumers, or not technologically feasible. Philip Morris maintained that Marlboro cigarettes were not unreasonably dangerous to Laramie because Laramie understood the risks of smoking.

Reports linking smoking to cancer had been published in the 1950s and 1960s, and people had recognized that tobacco was addictive "going back almost [one hundred] years."  Moreover, there was testimony that every pack of Marlboro cigarettes sold between 1970 and 1984 contained a warning label from the Surgeon General that "cigarette smoking is dangerous to your health," and that every pack sold thereafter contained one of four warning labels that are still in use. Cigarette advertisements also were banned from television and radio beginning in January 1971, when Laramie was thirteen or fourteen years old. In addition, since January 1972, every print advertisement for cigarettes has been required to include a warning label similar to those on cigarette packs.

In sum, based on this evidence, Philip Morris argued that Laramie caused his own death because, despite being adequately informed of the health risks of smoking, Laramie chose to smoke, and then chose not to quit smoking.

(Paragraph breaks added.)  The plaintiff overcame the no-alternative-design defense by hypothesizing that Fred Laramie might not have become addicted to a low-nicotine cigarette.  Defense theories in assumption of risk, personal choice, and sufficiency of warning all fell short against the showing of nicotine manipulation.

The case is Laramie v. Philip Morris USA, Inc., No. SJC-13070 (Mass. Sept. 15, 2021) (oral argument at Suffolk Law).  Justice Dalila Argaez Wendlandt authored the opinion for the unanimous panel of six justices.  Disclosure: As an attorney in private practice, I worked on the Philip Morris defense team on tobacco litigation in the 1990s.

Automatic-door failures fuel injuries, tort claims, but road to recovery in litigation can be bumpy

Pixabay by djedj

An Australian woman struck by a malfunctioning airport security door was denied recovery in April after failing to prove that the malfunction caused her injury.  The outcome strikes me as questionable, and the case is instructive of tort principles anyway.

If you travel much, as I do, you probably have passed through those one-way transparent security doors that whip open and closed to allow only a person at a time to pass.  They frighten me a bit, and I never linger on the threshold.  The plaintiff in the instant case likewise denied having paused upon egress from Wagga Wagga City Airport arrivals in New South Wales, yet was struck by one of the doors.  She complained of shoulder and back injury, requiring surgery, and the court confirmed that the impact of the door at least worsened a preexisting condition.

Arrivals at Wagga Wagga Airport
(2012 photo by Bidgee CC BY-SA 3.0 AU)

The doors were in fact malfunctioning.  There are two batteries, at different heights, of photoelectric cells that sense a person in the way and prevent the doors from closing.  The lower set were out of commission.  However, tests and maintenance on the doors showed that the non-functioning cells were not essential for safety; the higher set still kept the doors open when so much as a person's leg was in the way.  The plaintiff therefore failed to show a causal connection between her injury and the malfunction, nor any alleged misfeasance by the airport defendant, such as a failure to warn.

The outcome strikes me as questionable, because there seems to be no dispute that the 44-year-old plaintiff was struck by the door, and that that's never supposed to happen.  Even if the photoelectric cell failure cannot be blamed, the case seems well suited to res ipsa loquitur, which, to the best of my knowledge, is recognized in New South Wales common law, and is not mentioned by the court.  Maybe the plaintiff failed to plead the theory.  Or maybe this is a Palsgraf-esque scenario in which the court concealed skepticism of the plaintiff's injury.  Of 100,000 arriving passengers annually, there were no other reported incidents, the court troubled to say.

Anyway, the case reminds me of one that I use sometimes in torts class to teach punitive damages with a dash of professional responsibility.  In 2015, 61-year-old James Hausman won a $21.5m verdict against the Holland America Line (HAL) after being hit by an automatic sliding door on a cruise ship, in an incident captured on camera.

There's plenty to inform a class discussion just there.  Hausman's injury did not look too bad in the video, but traumatic brain injury is tricky.  And the court awarded $16.5m in punitive damages after hearing about 16 other sliding-door injuries on HAL ships.  The plaintiff's lawyer accused HAL of trying to save on air conditioning, which HAL denied, the ABA Journal reported.

Then the case took a turn.  In 2016, the district court threw out the verdict after revelations of spoliation.  The ugly dissolution of an employment relationship between Hausman and a personal assistant led to an undiscovered personal email account and deleted messages that cast doubt on Hausman's veracity (ABA Journal, Seattle Times).  The court ordered a new trial and clarified that there was no evidence the plaintiff's attorney was complicit in wrongdoing.  The docket suggests that the case ended in settlement later that year.

The Australian case is Gray v. Wagga Wagga City Council, [2021] NSWDC 108, 07 April 2021 (Wolters Kluwer).  Simon Liddy at HWLEbsworth published commentary.  The American case is Hausman v. Holland America Line-USA, No. 2:13-cv-00937 (W.D. Wash. 2016) (Court Listener).

Tort liability brakes U.S. policy shift on Sudan, marks crossroads of past, future where Africa meets Arabia

Street corner in the Arabian Market district of Khartoum
(RJ Peltz-Steele CC BY-NC-SA 4.0)

With economic sanctions exacting an intensified toll amid the pandemic and humanitarian crises fraying the peace at political borders, 40 million people in the East African Republic of Sudan may hope that long awaited normalization of relations with the United States will bolster stability and produce prosperity.  Meanwhile, in Washington, American tort claims have thrown a wrench into the diplomatic works.

Smaller Sudan after 2011 (LouisianaFan CC BY-SA 3.0)

Unending War

Before its 2011 division into north and south, Sudan was the largest country in Africa.  Its location is strategically important.  Sudan borders Libya and Egypt to the north, the lifeline of the Nile flowing into the latter.  The country's Red Sea coast positions Port Sudan opposite Jeddah and Mecca.  Chad and the Central African Republic (CAR) sit to the west, and Eritrea and Ethiopia to the east—where more than 40,000 Ethiopian refugees have fled conflict and now strain Sudan's thin resources.  Tumultuous northern regions of the Democratic Republic of the Congo (DRC) and Uganda, the latter yielding the Nile, lie in reach of South Sudan's capital, Juba, along with a disputed stretch of border with Kenya.

At last abandoning imperial ambition in 1953, the British left Sudan to the tempest of regime rise-and-fall that tragically characterized post-colonial power vacuum in Africa.  The country declared itself independent in 1956, but for a quarter century, no one form of government would stick.  An Islamic state brought about some political consistency in 1983, but plenty of ills, too: reigniting civil war between north and south, and paving the path of three decades' dictatorship and an abysmal human rights record under President Omar al-Bashir, from 1989 to 2019.

Part of embassy bombing memorial in Dar es Salaam

(RJ Peltz-Steele CC BY-NC-SA 4.0)

Relations with the United States went from bad to worse after Sudan backed Iraq in the 1990-91 Gulf War.  Osama bin Laden took up residence in Khartoum for five years at that time.  He built a favorable reputation for philanthropy by building legitimate businesses and financing infrastructure projects, such as the main highway, named for him, linking Khartoum to Port Sudan.  In 1993, the United States listed Sudan as a state sponsor of terrorism.  Under U.S. pressure, Sudan expelled bin Laden in 1996.  But Sudan was not spared blame when al-Qaeda bombed the U.S. embassies in Tanzania and Kenya in 1998, killing 224 people, including 12 U.S. citizens, and injuring thousands.  U.S. retaliation included a cruise-missile strike against a Khartoum chemical plant—unfortunately and very likely a target accused erroneously of complicity in chemical weapons manufacture.

Ironically, the bin Laden-orchestrated terror attacks of September 11, 2001, set Sudan and the United States on a winding road of fits and starts toward reconciliation.  U.S. President George W. Bush recognized the need for American allies on the East African doorstep to the Middle East.  U.S. policy leveraged austere sanctions to incentivize Sudanese cooperation in counter-terrorism, and the Bashir regime was supportive.

Sudan needed help, too.  The civil war between the Islamic government in Khartoum and the Sudan People's Liberation Army (SPLA), started in 1983, had never ended.  The exhausting conflict, which ultimately cost more than 2 million civilian lives, was dragging into one of the longest civil wars in modern history—besides that it was really a sequel to the never-quite-resolved first Sudanese civil war of 1955 to 1972, another tragically typical consequence, in part, of arbitrary colonial political borders.  Multi-national diplomatic interventions helped at last to draw the war to a close in 2005.  The peace agreement led to the secession of South Sudan in 2011, a development that seemed promising at the time, but since has seen the two states teetering ceaselessly on the brink of combustion.

A spellbinding sampling of the human toll of the civil war can be found in Dave Eggers's What Is the What: The Autobiography of Valentino Achak Deng (2006).  Spanning events from 1983 to 2005, the book is an artfully novelized memoir of a real child refugee among Sudan's "lost boys."

In 2017, the Obama Administration further loosened sanctions on Sudan.  A coup in 2019 sent Bashir from office the same way he came in, and in 2020, Sudan reconstituted itself as a secular state.  Al-Bashir, 76, is now in prison for corruption.  Marking a significant policy reversal, the government has signaled that it might be willing to turn Bashir over to the International Criminal Court for prosecution in connection with the genocide in Darfur during the second civil war.  In October, the Trump administration moved to clear the way for U.S. businesses to reenter Sudan, bargaining the country's de-listing as a state sponsor of terrorism in exchange for Sudanese recognition of Israel.  The administration was accused of too-little-too-late effort to bolster its foreign policy portfolio in the run-up to the 2020 election, but, at this point, the end means more than the motive.

Persistent Perseverance

In short order, Sudan has transformed from war-torn religious state, ruled by a dictator accused of crimes against humanity, to secular constitutional democracy, pivotal in Middle East peace and primed for western commercial investment.  In other words, Sudan might be in the midst of a remarkably rapid transition from paradigmatic problematic state to African success story.

View of Khartoum and the Nile from Corinthia observation level
(RJ Peltz-Steele CC BY-NC-SA 4.0)

Long acquainted with the hardships of war and sanctions, the Sudanese have persevered, developing a resilient infrastructure and an enviable standard of living, especially relative to neighbors such as the CAR, the DRC, and Eritrea.  Sudanese teens wield smartphones in the dustiest of wayside villages.  Sudan has oil and refining capacity, though the division of natural resources between north and south remains a key cause of simmering contention.  The Khartoum skyline is dotted with structures infamously financed by deliberate defiance of sanctions.  Representative is the Corinthia Hotel: opened in 2008, the oval-shaped building is called "Gaddafi's egg," because Libya paid for its €80m construction.

Wayside fuel and rest area, Shendi-Atbara Road, Al Buqayr
(RJ Peltz-Steele CC BY-NC-SA 4.0)

At present, Sudan has one arm tied behind its back.  Trucks sit idle in fuel queues.  Western credit cards don't work; cash is king.  For better and worse, local products, mostly MENA-manufactured, substitute for the usual globalized glut of soda and snack options in the convenience stores, excepting the universe's inexplicably irreducible constant, Coca-Cola.

If sanctions go away, an energizing flow of auto parts, industrial equipment, transnational banking services, and development of telecommunication and physical infrastructure will irrigate Sudan's thirsty landscape.  The new constitutional government will be boosted to a threshold on prosperity unprecedented in the nation's history.  Already in June, the UK announced a £150m commitment to ease democratic transition and coronavirus impact by combating inflation and poverty.  Sudan unbound stands poised to achieve African development in a region that's long been starved of a win.

But There's a Hitch

Tort liability in U.S. courts is presently a sticking point in negotiations over normalization of U.S.-Sudanese relations and the entry of American enterprise in Sudan.  In 1996, Congress amended the Foreign Sovereign Immunities Act (FSIA) to allow civil lawsuits against foreign state actors for support of terrorism.  Survivors and families of victims of the 1998 embassy bombings sued Sudan in 2001.  The lawsuits floundered in the 20-aughts amid confusion over what plaintiffs, defendants, and causes of action Congress intended to authorize.  In 2008, Congress clarified the law on those questions and revived the earlier suits.

Subsequently, plaintiffs, numbering more than 700, won an award in federal court of $10.2bn, including $4.3bn in punitive damages.  The D.C. Circuit struck the punitive damages, doubting that Congress intended to authorize punitive recovery retroactively.  In May 2020, in Opati v. Republic of Sudan, the U.S. Supreme Court disagreed, vacating the striking of punitive damages and remanding for the lower courts to reconsider.  Litigation questions remain on remand.  The defense might yet challenge the constitutionality of the retroactive authorization of punitive damages, and it's not clear whether Congress intended foreign plaintiffs to be eligible for punitive awards.  Still, the massive compensatory award stands ripe for harvest.

Sen. Schumer in October (Senate Democrats CC BY 2.0)

All that litigation might, however, amount to naught if Congress acts again.  As a condition of the current agreement over sanctions and Israel, Sudan wants free of the Opati judgment.  In October, the State Department indicated willingness to negotiate immunity for Sudan against liability for past acts.  But that immunity would require another change of law, and Congress is not yet on board.

According to a report in Tuesday's New York Times, Sudan has offered a settlement of $335m, undoubtedly a more realistic number than multiple billions.  But Sudan has threatened to exit the agreement in whole if Congress doesn't authorize immunity by year's end.  Deadlocked legislators are trying to broker a compromise through a military spending bill in these first weeks of December.  To the displeasure of some in Congress, the working proposal would compensate U.S. citizens naturalized subsequently to the 1998 attacks less than those who were citizens at the time—working a de facto racial disparity.

Even if the 1998 claims can be resolved, a bigger hurdle looms in the prospect of blanket immunity-to-date for Sudan.  While Sudan did defend the embassy-bombing lawsuits on grounds of FSIA interpretation, it has not responded to the legal claims of, The Hill estimates, about 3,000 family members of September 11 victims who blame Sudan for bin Laden's five-year safe harbor there.  According to the New York Times story, those plaintiffs have the support of Senate leader Chuck Schumer (D-NY) to see that their claims are not extinguished.  It seems unlikely that a closely divided Congress would have any appetite to favor foreign tranquility over September 11 victims, no matter how much U.S. businesses are chomping at the bit to trade in Sudan.

Local heroes (with a smartphone) atop Jebel Barkal
(RJ Peltz-Steele CC BY-NC-SA 4.0)

Last Week in Sudan

Here in the United States, if we hear about Sudan, it's likely to be in the context of civil war atrocities, the human rights abuses of the Bashir regime, or Middle East tensions.  Yet last week in Sudan, I saw little evidence of those worldly matters.  On the roads of Khartoum, in the markets, and in the countryside, I found only a gracious and warm people, a rich Nubian cultural tradition, and a stunning archaeological record of our shared human heritage.

Your interpid blogger at the Nuri Pyramids
(Steven Mueller CC BY-NC-SA 4.0)

Both of those views, the ugly and the beautiful, the grim and the genial, are Sudan.  We disregard the former at our hazard.  But to disregard the latter, we risk much more.

Sudan is the beating heart of the African continent.  Sudan will not forever be deterred by colonial legacy and the politics of aging superpowers.  However we manage to balance redress for past wrongs with a way forward, America will have to decide how to be a part of Sudan's future.  The only alternative will be to join the crumbling desert relics of Sudan's past. 

UPDATE, Dec. 13, 2020: See Conor Finnegan, Trump admin offered $700M to 9/11 victims to save Sudan deal, ABC News, Dec. 11, 2020.  UPDATE, Dec. 20, 2020: Sudan's Listing as Sponsor of Terrorism Ended by US, BBC, Dec. 14, 2020.

'Game changer,' $2.5m punitive affirmance elucidates 'gross negligence' in medmal

The Massachusetts Appeals Court in late February affirmed an award of $2.5m in punitive damages in a case of death from botched laparoscopic surgery for a hiatal hernia.  In affirming, the Court reiterated terms and circumstances that allow a jury to differentiate "gross negligence" from mere negligence in the medical context.

According to the court opinion, Laura Parsons died after laparoscopic surgery to repair her hiatal hernia resulted in surgical tacks penetrating her pericardium, the membrane surrounding the heart.  The jury laid blame squarely on defendants surgeon, nurse, and employer for tacks having been inserted in the diaphragm too close to heart tissue.  Parsons died of cardiac arrest two days after surgery, and an autopsy observed "puncture marks on the posterior aspect of the heart."

In addition to $2.6m in compensatory damages, the jury charged the surgeon with $2.5m in punitive damages for "gross negligence," the threshold for punitive damages in medical malpractice in Massachusetts.  The Appeals Court affirmed.  Mass. Lawyers Weekly called the decision a "game changer" in favor of punitive damages for medmal plaintiffs (Mar. 5, 2020, pay wall).

An issue on appeal was the jury instruction on "gross negligence."  More than negligence and less than recklessness, "gross negligence" is a familiar yet elusive norm in Anglo-American common law.  The Appeals Court in part faulted the surgeon's counsel for failing to state objection to the usual jury instruction on the standard, though the court seemed content with the instruction on its merits.  The court observed, "While drawing the line between ordinary negligence and gross negligence can be difficult, 'the distinction [between them] is well established and must be observed, lest all negligence be gradually absorbed into the classification of gross negligence [citations omitted]."

The court concluded, "The evidence as a whole permitted the jury to find that [Dr.] Ameri's use of the tacker in Parsons's surgery manifested many of the common indicia of gross negligence. See Rosario v. Vasconcellos ... ([Mass.] 1953), quoting Lynch ... [Mass. 1936] ("some of the more common indicia of gross negligence are set forth as 'deliberate inattention,' 'voluntary incurring of obvious risk,' 'impatience of reasonable restraint,' or 'persistence in a palpably negligent course of conduct over an appreciable period of time'").

The case is Parsons v. Ameri, No. 18-P-1373 (Mass. App. Ct. Feb. 26, 2020) (Justia).  Justice Massing wrote for a unanimous panel with Sacks and Hand, JJ.

Battery, IIED in play if medical staff ignore patient's 'stop,' court rules

Medical professionals may be liable for battery and intentional infliction of emotional distress for failing to heed a patient's withdrawal of consent, a Massachusetts Appeals Court reversal warned in February.

Brigham and Women's Hospital is a teaching hospital
of Harvard Medical School in Boston.
Photo by trepulu CC BY-NC-ND 2.0 (2010).

According to the appellate court opinion, evidence in the case supported the plaintiffs' disputed claim that terminally ill cancer patient Donna Zaleskas begged staff at Brigham and Women's Hospital to stop X-rays of her leg because of her physical discomfort, but that X-ray technicians proceeded anyway.  On behalf of Zaleskas, who succumbed to cancer, survivors are suing the hospital for battery and intentional infliction of emotional distress, upon the theory that Zaleskas withdrew consent.  The Superior Court awarded summary judgment to the defense, and the Appeals Court reversed and remanded.

Thirty-seven-year-old decedent Zaleskas was a personal injury and product liability attorney in New York and alumna of Boston College Law School.

A finer line than one might expect separates theories of negligence and battery in many medical malpractice cases.  When a medical professional touches or otherwise physically treats a patient without, or beyond the scope of, the patient's consent, the action can simultaneously satisfy the test for intentional battery—defendant intentionally effecting physical contact that is unwanted by the complainant—and negligence—defendant's failure to comport with the standard of care of a reasonable professional under the circumstances.  Consent is an affirmative defense to intentional torts, like assumption of risk is a defense to negligence, but scope of consent often presents a thorny question of controverted fact.  Of course, patients with the benefit of hindsight are ill inclined to suppose that they consented to physical contact that caused harm, so intentional tort claims are often rationally articulable alongside accident claims in medmal lawsuits.

In the interest of doctrinal clarity, courts often, and in some jurisdictions, upon some facts, must, channel cases into a distinct rubric for "medical malpractice" that sits under or alongside the negligence umbrella, regardless of whether the case might be characterized as intent or accident.  That's a modern trend.  Massachusetts is more permissive in preserving conventional claims in intentional torts in medmal when the facts fit the bill.  The difference can be important in different dimensions.  A defendant's insurer might deny coverage, under policy terms, for intentional torts.  At the same time, intentional torts may give a plaintiff access to greater, even punitive, damage awards.

The Appeals Court ruled Zaleskas's claim fit for hearing in the intentional tort framework.  The court wrote plainly, "We now hold that if a patient unambiguously withdraws consent after medical treatment has begun, and if it is medically feasible to discontinue treatment, continued treatment following such a withdrawal may give rise to a medical battery claim."  In the instant case, "a reasonable jury could find that saying stop or words to that effect, in the particular factual context at issue, was sufficient to withdraw consent."

The court ruled furthermore, to the plaintiffs' advantage, "that consent to have one's body touched or positioned for an X-ray is not a matter beyond the common knowledge or experience of a layperson and does not require expert medical testimony."

The case is Zaleskas v. Brigham & Women's Hosp., No. 18-P-1076 (Mass. App. Ct. Feb. 11, 2020) (Justia). Justice Henry wrote for a unanimous panel with Rubin and Wendlandt, JJ.

Teachable torts, Patriots edition: Civil complaint against Antonio Brown

Antonio Brown in 2014 (by Brook Ward CC BY-NC 2.0)

New England news is afire today over the civil lawsuit filed against NFL Patriots football acquisition Antonio Brown.  It happens that many 1L law students are presently immersed in their first exposures to intentional torts and federal jurisdiction.  So here from Mnwilla at Scribd is the complaint and some comments for thought.

Antonio Brown Lawsuit by mnwillia on Scribd

Notes and Questions

1. The case is filed in federal court in Florida, but the claims are all in state tort law. What is the basis for federal jurisdiction?  Why do you think the complaint was filed on Brown's first scheduled day of practice with the Patriots?

2. The fact statement is lengthy, paragraphs 14 to 74. But federal practice requires only "notice pleading."  Plaintiff's counsel gives up a lot of information about the plaintiff's theory of the case by putting more content than necessary into pleadings.  So why so much ink on factual allegations?

3. There are five straightforward counts, or causes: two in battery, one in false imprisonment, one in IIED, and one in invasion of privacy.

• Notice how false imprisonment appears incidentally to other claims.  Unlike MBE hypotheticals, few cases in real life support false imprisonment by itself. 
• One of the battery counts is called "sexual battery (rape)."  That's not really a distinct kind of battery in multistate common law, and it doesn't here appear to be covered by any specific statute, apart from common law.  Nevertheless, a plaintiff may claim separate counts of tort upon discrete factual bases.  What are the advantages of doing so?
• What challenges does the plaintiff face in proving IIED?  Do the factual allegations get her there?  Is there vulnerability on this count or any other to a 12(b)(6) motion?

4. The plaintiff seeks punitive damages, and the bases for that claim are stated within the counts. Some jurisdictions require that sufficient allegations to support a claim for punitive damages be stated in a separate count, even though "punitive damages" is a damages claim, not a tort.  Can you discern the rule for punitive damages in the state jurisdiction, based on the allegations?