Name that Tort: "Who Put the Benzedrene in Mrs. Murphy's Ovaltine?"

Is it Battery? Intentional Infliction of Emotional Distress? Invasion of Privacy? Negligence?

Parents to be Jailed for Child's Bullying?

Um . . . I'm thinking this is a due process violation.  Let me know what you think.

Is This the Way Insurance Works?

Civil Assault, But No Battery

"Causation" as Sung at Rutgers Law

Palin Defamation Suit Falls Short of Legal Standard

Former GOP Vice presidential candidate Sarah Palin's defamation lawsuit against the NY Times was dismissed from US District Court in Manhattan as defective on its face. If. as alleged, the NY Times printed minor falsehoods in an editorial that were quickly corrected, the Palin cannot prove the necessary actual malice. As a public figure, Palin cannot make-out her defamation claim unless she can prove that the NY Times knew the statements were false or acted with reckless disregard for their truth. Referring toe the alleged actions of the Times, the times, the federal judge stated, "negligence this may be; but defamation of a public figure, it plainly is not."

Read the story here. 

The Times referred to Palin's PAC distribution of images showing people in rifle site crosshairs as inciting violence against public officials. The statement was corrected to state that the crosshairs were placed over Congressional Districts on a map, and not on images of people.  See the image below for an example:

Halloween is Tort Night

Last week featured a post on civil assault.  Click here to read the article: Police: 2 'Idiots' Dressed as 'Creepy Clowns,' Arrested AfterTerrorizing Teens. Halloween is indeed a night of torts.

Although the two clowns in the video below apparently were arrested for "Standing while looking creepy."

Assault (Civil)

The following is quoted in full from the FindLaw website:

Assault Basics

Assault means something very specific when it comes to torts and personal injury law. In tort law, an assault refers to an attempt or threat of violence – not actual violence itself. This may surprise people. But it’s one of the first things most American lawyers learned in law school.

Assault vs. Battery

Most people think of “assault” as referring to a violent attack. For example, as in “the gang assaulted a rival gang member on the corner of the street” or “the marines began their assault on the enemy position atop the hill.” Violence, or at least some sort of physical contact, is generally implied in the term.

However, while state laws sometimes differ, assault generally doesn't require that physical contact actually occurred. Instead, legal scholars define assault as an intentional attempt or threat to inflict injury upon a person, coupled with an apparent, present ability to cause the harm, which creates a reasonable apprehension of bodily harm or offensive contact in another.

Notice the words “attempt” and “threat” above. In tort law, assault does not require actual touching or violence to the victim. We use another term for the touching or contact: “battery.” You may have heard the term “assault and battery.” This refers to situation where both an assault (attempting to injure or threatening to injure) and a battery (actually touching someone) occur in the same incident. Often the assault occurs immediately after the battery: Right before Fred shot Jon, Jon saw Fred aiming the loaded rifle at him.

Below is a movie clip of a tortious assault without a battery:

The Hot Coffee Case Comic Book

The Liebeck v. McDonald's lawsuit is now drawn up as a comic book. We can lecture about it. We can show the movie. We can show any of a number of videos. Now, see the comic book.  Next,
maybe the song?

Anything to get the point across.

Extreme and Outrageous Conduct?

Since the Supreme Court reversed  the lower court ruling in Snyder v. Westboro Baptist Church, I have been looking for a new example of a fact pattern meeting the "extreme and outrageous conduct" requirement for an Intentional Infliction of Emotional Distress claim.  I think there is a new candidate. A Florida man who underwent a lower leg amputation at the hospital was surprised a month later when homicide detectives knocked on his door to ask if there had been any foul play.  It seems that his leg turned up in a landfill.  The police were able to trace it to the victim because it still had the hospital identification tags attached.   Apparently the hospital did not incinerate the leg as was called for by sound medical practice. The victim has filed a suit for IIED claiming, consistent with the language of the Restatement of Torts, conduct that was,"outrageous and beyond the bounds of human decency as to be regarded as odious and utterly intolerable in a civilized community."

According to the Miami Herald, "Doctors Hospital told him 'they would provide no explanation for what had occurred,'according to the lawsuit." The hospital is apparently lacking in the damage control department as well.

Too Clever For Their Own Good

In 2012 a deadly meningitis outbreak was traced back to a drug compounding firm in Framingham Massachusetts called the "New England Compounding Center."  When indictments were handed down in 2014, in addition to the second degree murder charges were charges for fraud against government.  Apparently the company claimed to have filled prescriptions for fictitious patients and charged the federal government. The investigation unearthed an e-mail from the company's owner cautioning his employees that, "All names must resemble 'real' names...no obviously false names! (Mickey Mouse.)"

The clever employees conjured such fake customers as, "Chris Rock, Alex Baldwin, Michael Jackson, Fat Albert,Wonder Woman, Martha Stewart, Samuel Adams, Hugh Jass, Freddie Mae, Fannie Mac,Ned Flanders, Jimmy Carter, Bill Clinton, Harry Potter and Coco Puff, among others."

The "News of the Weird reports additional names of, "Baby Jesus, . . . L.L. Bean, . . . Mary Lamb, all of the Baldwin brother actors, and a grouping of Bud Weiser, Richard Coors, Raymond Rollingrock and,of course, Samuel Adams."

They would have called less attention to their crimes if they used the alias list from Psych. Criminals often suppose themselves to be more clever than they actually are.

Read the indictments here.

Click here or on the image below to see a CBS News report on how NECC customers supplied fake names to secure cheaper drugs from NECC rather than complying with the law.

Fearing Legal Liability, Budweiser Does the Right Thing.

A recent Bud Light advertising campaign was scuttled over concerns of exposure to legal liability, but not before the bottles with a thoughtless slogan had been distributed. The Bud Light labels prominently identified the product as "THE PERFECT BEER FOR REMOVING "NO" FROM YOUR VOCABULARY FOR THE NIGHT." Fearing legal liability for promoting rape culture, the company has pulled the bottles and the slogan and has apologized.

Corporate decision-making can be siloed and fractured, but how many drunken frat boys must there be at this company to approve such an exquisitely callous and inappropriate public presentation of a product?  When students complain to me that businesses worry about getting sued my response is, "They are supposed to worry about getting sued."  Fear of being sued is what causes them to be more careful about safety and thoughtful about how their practices can negatively impact the rest of society.

At least once the online comments started to flow, the company responded appropriately instead of trying to stubbornly defend the indefensible. But what kind of "College Humor"-fueled, insular and thoughtless culture must permeate the social media marketing office at Bud that they were unable to comprehend the implications of adopting this slogan? Even if they were unable to recognize their callous disregard for the victims of sexual assault, they should have been able to recognize the obvious liability exposure.  I would hope that any 5th or 6th semester Legal Environment student would have caught that one.

It is Dangerous to Ignore Legal Papers

The video below documents a story illustrating why it is important to pay attention to legal papers.  A family sued over a neighbor's alleged emotional distress caused by the family's barking dog thought it was a joke and ignored the summons.  Now, with a default judgment against them, they are facing losing their home.

Students should understand the power of the law and its process.

Guest Blogger, Henry Lowenstein: Valuable Lessons in "Woman in Gold"

Today's post is generously shared by Henry Lowenstein, Professor at Coastal Carolina University.

This week premieres a new movie in theaters nationwide, Woman In Gold.  You may have seen the ads on TV, the true story of Maria Altman, a Jewish Austrian survivor of WWII's Holocaust and her decades-long efforts to retrieve fine art paintings looted from her family by the Nazis. Post War the Austrian government improperly laid claim to them.  Altman pursued the matter to the U.S. Supreme Court which ruled in her favor in 2004.  Austria then agreed to arbitration and returned the paintings (today on display in New York).

For students interested in international business Ms. Altman's story and the U.S. Supreme Court ruling on when a U.S. citizen (or business) can get relief from property stolen overseas prior to 1976 by bad acts of governments is instructive.  In Republic of Austria v. Altman 541 U.S. 677 (2004), the Supreme Court ruled the U.S. Foreign Sovereign Immunity Act of 1976 (28 U.S.C. sec. 1330 et. al) can be applied retroactively to conduct or wrongdoing that occurred prior to enactment of the law; that being a clear intent of Congress.   This cleared the way for Altman to sue Austria in U.S. courts to retrieve paintings rightfully belonging to her and her family stolen by the Nazi's in 1938, then allegedly owned by Austria's national museum.

Implications For Business:    There are markets now opening to China, Cuba Vietnam, Venezuela (previously Russia and former Soviet states) and other nations in which private/personal business property and assets were illegally seized by governments or revolutionaries.  

There is now a strong precedent.  The Supreme Court in its opinion stated that governments enjoy sovereign immunity (i.e. protection from private lawsuits) for public acts.   That is acts of normal functions of the state (jure imperil).  However, they are not exempt from suits for private bad acts under color of state law (jure gestionis).  What could this precedent mean today to business?

Let's take for example, Cuba.   In 1958 Conrad Hilton and the Hilton Hotels built in Havana, Cuba, the premier hotel, Habana Hilton; 572 rooms, 4 restaurants at a cost of $24 million (approximately $197 million in 2015 dollars).  In October 1960, revolutionaries led by Fidel Castro overthrew the elected Batista government of Cuba and seized the hotel (actually making it for a time Castro's headquarters).   The hotel was then renamed Hotel Tryp Habana Libre and continues to be run by and for the benefit of the Cuban government.  Hilton Hotels was never indemnified by the "new" Cuban government for the illegal taking of its property and had to long ago write off the loss on its books.
 

The Habana Hilton:

(source: http://clickamericana.com/eras/1950s/now-open-cubas-habana-hilton-1958)

Now over half a century later, the Obama Administration is slowly opening relations with Cuba.  Fidel Castro is still alive but the Castros still run the country.  It is conceivable at some point that full tourism will resume to Havana (prior to 1959 a top tourism destination) and world hotels will try to come in.  What happens if the former Havana Hilton is sold?  Like Altman's Klimt paintings, Hilton might have a claim for the original value of the hotel stolen from it, or perhaps even a claim to have the hotel returned to them.   Many American corporations such as the sugar and mining industries might have like claims. 

In our global world of business today, many "businesses" in which you will do commerce are "state owned."  In some cases they will be covered by treaties as is the case in the European Union.  However, in many others, particularly emerging nations, "Jurisdiction" of disputes will be a constant battle and business risk as commerce expands with these entities.

Something to keep in mind as you watch the movie and move on in your business career.

An historical aside about the case;  Altman found it impossible to sue in Austrian courts because the rules of civil procedure there assess a "filing fee" as a percentage of the value of the property in dispute.  In her case, it would have originally cost over $1.3 million filing fee to file the case (the painting in dispute was worth $135 million)!!  The Austrian government agreed to lower the fee to around $300,000 but was still far above an individual’s means to pay.  That's when she (then a U.S. citizen) turned to the U.S. Courts!   Such a system in the US certainly would have a chilling effect and substantially reduce lawsuit volume, but also deny far too many due process.    

Woman in Gold Trailer:

American Hustle Goes Libelous

In the movie American Hustle, Jennifer Lawrence's character claims that the source of her belief that microwave ovens take all the nutrition out of food is an article written by Paul Brodeur. The real Brodeur is a science journalist who wrote for The New Yorker. But he never wrote such a scientifically erroneous proposition as was ascribed to him in the movie.  He claims the false attribution damages his reputation and has filed suit for libel in California state court.

The "Science Oven" allegedly libelous scene:

Falwell v. Hustler Supreme Court Oral Argument

There is great movie clip from The People v. Larry Flynt portraying the oral argument before the US Supreme Court in Hustler v. Falwell.

Unfortunately, I can't find an easily accessed public video of the whole argument.  The following video has part of it:



The video below has the whole audio part set to images of dogs as Supreme Court justices:

Thought Provoking Law Quote: Thomas Jefferson

Students often trivialize negligence claims as the overly aggressive machinations of greedy, self-interested ambulance chasers. But the quote below places such claims in a new light.  At the infancy of our republic, while  "We the people" were sorting out exactly how government could help maintain a healthy, just and robust society, our third president makes clear his views in his inaugural speech:

Still one thing more, fellow citizens -- a wise and frugal Government, which shall restrain men from injuring one another, shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned. This is the sum of good government, and this is necessary to close the circle of our felicities.

                - Thomas Jefferson, First Inaugural Address, March 4, 1801

A governmental system that restrains men (and women, ostensibly) from injuring one another is necessary "to close the circles of our felicities."

Nice, huh?!

Click here for quote controversy.

As if we Needed More Evidence . . .

. . . that teenagers' brains are not yet fully developed.  yet, we still have twelve-year-olds hunting without supervision and teenaged drivers without any restrictions on front seat passengers.  Is it surprising when we get front seat passengers lighting a driver's arm pit hair on fire? Thankfully, the injuries resulting from the expected crash were not tragic.

The law cannot make teenagers control their own goofy impulses, but it can hopefully limit the opportunities for those impulses to be fatal.

Featured Website: YouTube Channel for Jason Mance Gordon

ALSB member Jason Mance Gordon from Georgia Gwinnett College maintains a YouTube site with a hundred or more short informative videos on BLAW topics. I find that sometimes it is important to stop prattling on in front of the class and show a video, even if it is just another professor talking.  It is at least something different that causes students to look up from their computers.  Also, links can be provided for students who need a quick explanation of a concept.  As always with YouTube videos, you should screen the video first to make sure it is consistent with your own teaching.

Example: What is a Tort?

Code Duello, Troglodyte Style

The videos available at this Huffington Post site nearly defy description by rational humans. The headline for the post is: "Girls' Fight Ends With Shovel to the Head." True to the headline, an 8 second video clip is shown where a girl gets a shovel to the head.  It looks like a classic case of civil battery.  But the 8 second clip is an outtake from an 8 minute video, also shown, where these two fine examples of American youth conspire to engage in a duel of fisticuffs while their earnest "seconds" stand outside the circle videotaping the exhibition for sharing on the internet.  The longer video has been taken down from youtube but is still available on the Huffington Post site. The longer video raises questions of consent that may provide a defense to a battery claim. How far does the consent go?  Does agreement to a duel with fisticuffs include use of a weapon? (one of the "seconds" even makes a similar query on tape).   It appears that the shovel wielder was earlier surprised when she was kicked by the shovel-to-the-head victim.  Did the kicking escalate the level of consent beyond the implied agreement upon fisticuffs?

What do these videos teach about the use of videos in court?  The 8 second video and the 8 minute video tell very different stories. Does the comparison of the two videos give support to the concerns expressed by law enforcement officers when they are videotaped - that the video shown or taken may not accurately portray the context of what is shown?

Warning! There is saucy language in the longer video!  As you might imagine, the verbal discourse between these aspiring Rhodes scholars and their friends may not be suitable for a classroom.  But, the language does impact upon the issues.

 UPDATE: The 8 second video has been removed from the Huff Post site, but click here to see a re-posting at vine.

Click here or on the image below to be taken to the Huffington Post report: