Category Archives: Torts

Coming in Time for Spring Classes: My Glannon Guide to Torts (3d ed. 2016)

[Bumping to top as this book is now available.]

I’m happy to announce the upcoming publication of the third edition of my Glannon Guide to Torts. This is a student mini-treatise with practice multiple choice questions and answers aimed at helping first year law students with their Torts course.

Here’s what’s new for the Third Edition:

·      New coverage of “lost chance causation”
·      Update on market share and “risk contribution” theories of liability, and related constitutional claims.
·      Analysis of new Third Restatement of Torts sections on assault and battery, and new rules on transferred intent
·      Analysis of new tort proposed in Third Restatement: purposeful infliction of bodily harm
·      Updated with new Supreme Court cases on preemption, and the now questionable presumption against preemption
·      New section on products liability post-sale duties to warn and recall
If you are an instructor and want to order this book as a required or optional book for your course, the ISBN is 978-1454846888.  It is not yet on the Wolters Kluwer page, but here is the Amazon pre-order page.
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California Court Upholds Conviction of Person for Twitter Incitement [Corrected] Against Ex-Wife #NCIS Actresss

People v. Shivers (Appellate Division of LA Superior Court):


The circumstantial evidence was sufficient to permit a reasonable trier of fact to conclude defendant acted with intent to incite or produce unlawful action by a third party who read his messages. Defendant electronically distributed messages about Perrette using Twitter, which, as shown by the evidence at trial, is a public social networking website on the Internet where users can write and respond to short messages. Twitter constituted an “electronic communication device” within the meaning of the prohibited communications statute. (See Pen. Code, § 653.2, subd. (b) [including Internet web pages and websites within the definition of “electronic communication device”].) The evidence showed a person‟s tweets posted on Twitter can be read by the public and spread to the websites of other Twitter users by being retweeted, so that a single tweet may be repeated and disseminated throughout numerous web pages accessible to the public.

Defendant posted messages on Twitter such that persons searching for Perrette‟s name could find his tweets. Also, by using a hashtag for the show (“#NCIS”) and the location (“#Cahuenga”), third parties searching on Twitter would also come across defendant‟s tweets. Several of the tweets were made in response to persons who had read defendant‟s tweets, and other tweets had been retweeted by third parties, indicating to defendant that third parties were accessing the information he posted and his tweets were being disseminated. The tweets leading up to the ones posted on July 4 and July 8, 2012, falsely indicated that defendant had a restraining order against Perrette and that she was stalking him and making death threats against him. The July 4 and July 8, 2012 tweets referenced the area of Cahuenga where Perrette lived. These tweets also referred to Perrette as defendant‟s “stalker,” and requested that readers “call LAPD!!!” and “report her to LAPD immediately!” if they saw her following him in the area. It can be inferred defendant knew that persons who encountered Perrette after reading his tweets could have been motivated to report her to the police for what they believed was her stalking him, or to otherwise harass her. (See Pen. Code, § 653.2, subd. (c)(1) [defining “harassment” as “conduct directed at a specific person that a reasonable person would consider as seriously alarming, seriously annoying, seriously tormenting, or seriously terrorizing the person”].) Given the nature of Twitter and the provocative contents of defendant‟s tweets, a reasonable trier of fact could conclude defendant posted his tweets with the specific intent to incite or produce unwanted physical contact, injury, or harassment at the hands of a third party.

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“The Voting Wars Heat Up: Will the Supreme Court allow states to restrict voting for partisan advantage?”

I have written this new piece for Slate.  It begins:

The fights in our states over how hard or easy it is to vote have been filling the courts and are headed toward the Supreme Court. The cases range from voter ID laws to early voting rules and beyond. Already there is a case from Ohio, with ones from WisconsinNorth Carolina, and Texas potentially on the way in a matter of days or weeks. The stakes are high, not only for the lazy 2014 midterm elections but also for the 2016 presidential election and for the protection of voting rights in the next decade.

The fact that the cases are making it to the Supreme Court at about the same time is no surprise. Over the past decade, in the period I have called “the voting wars,” we have seen both an increase in restrictive voting rights legislation passed by Republican legislatures, such as voter ID laws, and litigation from both Democrats and Republicans to manipulate the election system to their advantage. In 2008, the Supreme Court rejected a constitutional challenge to Indiana’s voter identification law, and in 2013, the Supreme Court in the Shelby County case struck down a key portion of the Voting Rights Act providing that states with a history of racial discrimination in voting get approval before making changes to their voting rules and procedures.

Freed by these rulings, Republican legislatures have imposed tougher voter ID laws, cutbacks in early voting, limitations on voter registration, and other rules that make it harder to cast a valid ballot, such as North Carolina’s rule saying that if a voter casts a ballot at the wrong precinct, it cannot be counted for any races, even those for which the voter is eligible to vote.

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Media Apparently Misstate Extent of Dodgers Liability in Brian Stow Case

Just now a jury awarded $18 million to Brian Stow for the 2011 beating Stow took at Dodger Stadium.  According to press reports, the jury found the Dodgers 25% responsible, and each of the two attackers 37.5 percent responsible.  AP says: “The jury found damages of about $18 million but said the Dodgers were responsible for only a quarter of the sum. The rest of the responsibility was split between the two men who beat fan Bryan Stow.” CBS says: “The verdict means the Dodgers business entity must pay about $4.5 million.” ABC says: “Jurors awarded Stow about $18 million in damages, which means the Dodgers must pay about $4.5 million.”

They are all wrong.

Under California law, to the extent that the $18 million represents compensation for “economic” damages (that is, past and expected future medical expenses, lost wages, etc.), principles of “joint and several liability” apply. That means, assuming the two other defendants have no assets, the Dodgers are on the hook for the entire amount of the damages.

California voters passed an initiative providing that for non-economic damages (that is, pain and suffering, and emotional distress), damages are “several” only, meaning the Dodgers only pay 25% of this subset of damages.

I do not yet know how much the jury allocated for economic vs. noneconomic damages. Surely Stow has much of both.  But how that is allocated determines just how much the Dodgers are on the hook for.

UPDATE; Apparently there is a bankruptcy order involving the Dodgers further complicating this.  Stay tuned.

UPDATEII: The AP story now says: “Plaintiff’s attorney Tom Girardi said the verdict means the Dodgers must pay about $14 million in economic losses and a quarter of the pain and suffering sum, adding about $1 million more.”

UPDATE III: Here is a bankruptcy consent order in which the Stow family agrees to go after money only from 17 Dodgers insurance policies.  The policies were filed under seal, so it is not clear if it can cover all of the damages. There also may be other filings in the bankruptcy case which affect the right to recover.  Thanks to ELB reader David Bury for passing this along.

FINAL UPDATE and DISCLOSURE:  I’ve just learned that the law firm of Horvitz and Levy had been representing the Dodgers in an aspect of this case. I sometimes consult with Horvitz and Levy but have nothing to do with this case and didn’t know of the firm’s involvement when I wrote this blog post.

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Shorter Supreme Court in Child Pornography Case: Congress, Please Override Us

Today the Supreme Court decided a statutory interpretation case, Paroline v. U.S. with no easy answer, an unusual cross-ideological divide among the Justices, an interpretation offered by the majority which Adam Liptak rightfully describes as “a new and vague legal standard,” and a Chief Justice in his dissenting opinion begging Congress to fix the problem (“The statute as written allows no recovery; we ought to say so, and give Congress a chance to fix it.”). Even though Congress rarely overrides Congress these days, I predict an override in this case, and probably relatively quickly.

As Adam explains the facts, “The 1994 law allows victims of child pornography to seek the ‘full amount’ of their losses from people convicted of producing, distributing or possessing it, and Amy asked the United States District Court in Tyler, Tex., to order Mr. Paroline to pay her the full $3.4 million [of her losses].” The majority in an opinion by Justice Kennedy said that was too much, and sent the case back for some kind of uncertain undertaking of the amount of damages; the Chief Justice (joined by Scalia and Thomas, but not Justice Alito) in dissent said the standard was unworkable and the proper amount was zero until Congress fixes the statute for others, and Justice Sotomayor, for herself only in dissent would have allowed for the full amount of damages awarded in the lower court.

The case is fascinating to me as someone who teaches both Torts and Remedies. (It’s not every day that you get the Justices on the Court opining on the difference between actual and proximate cause, citing the Restatement (Third) of Torts, and discussing the concept of independent concurrent causation.)

But thinking about this from the point of view of Legislation, this seems the ideal case for a Congressional override.  As I’ve noted in a recent law review article, Congress now rarely overrides the Court, and when it does, there tend to be partisan overrides (as when Republicans overrode the Supreme Court in cutting back habeas for detainees in Hamdan or when Democrats overrode the Supreme Court in allowing more employment remedies in Ledbetteri).  I attribute the decline of bipartisan overrides to increasing political polarization in Congress.  (Christiansen and Eskridge are skeptical of the partisanship point, and reach somewhat different conclusions using very different methodology.  I will blog more about that at some point.)

But even in an era of intense partisanship, as we are in right now, there is room sometimes for biparisanship, and this looks like the perfect opportunity for two reasons. First, everyone hates child pornographers and wants to look tough on crime. Unless Congress is satisfied with the vague standard of the majority, it could look good for all of Congress to get tougher than the Court was willing to be on child pornographers—particularly when the Court’s ruling means that many victims are undercompensated.  (Marci Hamilton offers a suggestion for what new congressional legislation could look like.)

Second, though related to the first point, taking a stand in favor of fixing the statute won’t be seen as going up against the Supreme Court.  If all the conservatives were on one side and all the liberals on the other in a 5-4 decision, then an override of a Supreme Court statutory case looks like an attack on one wing of the Court.  Here, you have a case with a cross-ideological majority throwing up its hands as to an administrable rule, and three of four dissenters asking Congress to step in.

In an era where Congress can do so little thanks to ideological polarization, a new Amy Act looks to be a no-brainer.

UPDATE: Much more on what Congress can do from Paul Casell, Amy’s lawyer.

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Would Torts Plaintiffs Lawyers Secretly Hope for SCOTUS to Strike Down Section 5 of Voting Rights Act?

A longtime ELB reader writes:

I don’t know if anyone has written about this, but the PI plaintiffs’ bar might be secretly rooting for the Supreme Court to strike down section 5.  In California and in other states, plaintiffs have been attacking the state damage limitations based on arguments of changed circumstances.

For example, in California, plaintiffs have been (so far unsuccessfully) attacking the MICRA $250,000 cap on noneconomic damages with arguments that are echoed in the attack on the VRA.  This is an excerpt from Stinnett v. Tam (2011) 198 Cal.App.4th 1412, 1430-1431:

Essentially, Stinnett is contending the damages cap of section 3333.2 is no longer needed to reduce medical malpractice insurance costs. Our Supreme Court, however, rejected a similar argument in American Bank, namely that MICRA was unconstitutional because, since its enactment, it failed to reduce the overall costs of medical and hospital care. ( American Bank, supra, 36 Cal.3d at p. 373, 204 Cal.Rptr. 671, 683 P.2d 670.) As the court explained, “the constitutionality of a measure under the equal protection clause does not depend on a court’s assessment of the empirical success or failure of the measure’s provisions[,]” and the equal protection clause is satisfied by the court’s conclusion that, from the information before it, “the Legislature could rationally have decided that the enactment might serve its insurance cost reduction objective.” ( American Bank, supra, 36 Cal.3d at p. 374, 204 Cal.Rptr. 671, 683 P.2d 670.)

Stinnett’s contention appears more like an invitation for us to determine whether section 3333.2 has been rendered obsolete by subsequent events. While a change of conditions may justify the constitutional invalidation of a once valid law and can render the application of that law arbitrary and irrational, “the circumstances for such invalidation are quite narrow.” ( Santa Monica Beach, Ltd. v. Superior Court (1999) 19 Cal.4th 952, 973, 81 Cal.Rptr.2d 93, 968 P.2d 993.) “Nothing in the United States Supreme Court’s recent jurisprudence indicates that it envisions … an activist role for the courts,” such as engaging “in the task of evaluating whether a piece of complex legislation has sufficiently measured up to its objectives to preserve its constitutional validity.” ( Id. at p. 973, 81 Cal.Rptr.2d 93, 968 P.2d 993.) In our view, this is the type of evaluation Stinnett is asking us to engage in, i.e. whether the damages cap has fulfilled its purpose and is no longer required. Citing to the preamble of MICRA, Stinnett contends that in enacting MICRA the Legislature suggested its restrictions would remain valid only if the crisis that triggered its enactment existed for the “foreseeable future.” FN3 Even if that is the case, it is not the judiciary’s function to determine when constitutionally valid legislation has served its purpose.

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