Day on Torts

July 7, 2005

No Duty (or Need) to Use Reasonable Care During Sex

This decision may give some of you peace of mind and cause others of you concern. An appellate court in Massachusetts has ruled that sexual partners do not owe a duty of care to avoid negligently injuring one another.

Apparently the evidence, taken in the light most favorable to the plaintiff, demonstrated that the female defendant’s sudden and unexpected change in position resulted in a fracture to her partner’s penis.

Noting that “[t]here are no comprehensive legal rules to regulate consensual sexual behavior, and there are no commonly accepted customs or values that determine parameters for the intensely private and widely diverse forms of such behavior” the Court held that no duty of care existed and affirmed the dismissal of the case. The Court did say, however, “it is appropriate that [sexual partners] be held to a standard that requires them not to engage in wanton or reckless conduct toward each other during such consensual sexual conduct.”

July 6, 2005

See Operations on the Internet!

by The Law Offices of John Day, P.C.

Go to our Medical Malpractice Blog to read about how you can see operations from your desk.

July 6, 2005

Cato Institute Article

by The Law Offices of John Day, P.C.

Here is a fascinating article from the Cato Institute on malpractice and malpractice reform. Pass it around to your friends – and your legislators.

July 6, 2005

Defendant Does Not Get Benefit of Plaintiff’s Settlement With Co-Defendant

by The Law Offices of John Day, P.C.

A defendant found 100% at fault claimed it should get the benefit of plaintiff’s settlement with a prior defendant. The Tennessee Supreme Court said “No” in an opinion authored by Justice Anderson.

This result is correct. While it is true that the plaintiff here recovered 150% of his damages (because the prior settlement gave plaintiff 50% of his damages) the plaintiff took the risk of getting less than 100% of his damages by settling with one defendant and leaving an “empty chair.” This is a calculated risk that worked out well for the plaintiff in this case, but could have just as easily resulted in the plaintiff receiving no additional recovery whatsoever.

The defendant had the right to prove the fault of the settling defendant and did not do so. It failed to carry its burden of proof, and the plaintiff got the benefit of that failure. If the defendant had carried its burden and proved that the settling defendant was 100% at fault the plaintiff would have had to “eat” the whatever amount of fault was assessed to the settling defendant over the 50% threshold.

July 5, 2005

Vacation – I’m Back

by The Law Offices of John Day, P.C.

Once again, I took some time off, this time with my children. We made our annual pilgrimage to Wisconsin. We drove back yesterday – 875 miles in 14 hours.

There have been a bunch of exciting developments in the law of torts in the past 10 days. Brandon Bass covered the blog for me while I was out of town and alerted you to many of them; I will comment on some of his posts over the next few days and add a few other things I came upon during my trip.

It feels good to be back in the saddle.

July 5, 2005

Nashville Code on the Web

by The Law Offices of John Day, P.C.

I posted an entry recently concerning access to municipal codes in Tennessee. I mentioned that I did not know how to find the code for Nashville on the Web.

Tony Duncan knew – here is the site.

Thanks Tony

July 5, 2005

Effort to Delay First Vioxx Trial Rejected

by The Law Offices of John Day, P.C.

Merck tried – and failed – to postpone the first Vioxx trial. The case will be tried starting next week in rural Texas courtroom.

Merck said they sought a continuance because of pre-trial publicity. The judge said he would not grant a continuance before looking responses to the jury questionaires.

Merck had earlier agreed in writing that it would not seek a continuance except for illness of one of its lead counsel. Oh well.

July 5, 2005

Black Boxes and Trucking Companies

by The Law Offices of John Day, P.C.

So-called black boxes capture lots and lots of data of importance to lawyers in motor vehicle litigation. The information contained in these devices can literally make or break a case. In trucking cases, log books are now kept on computer by some trucking concerns.

This article talks about the fight in the trucking industry over these on-board data recorders, an issue coming to a head because the federal government may order that trucking logs be keep via computer rather than paper.

As one would expect, major resistance is coming from owner-operators. Many large trucking companies who insist that their drivers follow the law are already using on-board recording devices.

July 4, 2005

Another Poorly Written Tort Reform Bill

by The Law Offices of John Day, P.C.

For Independence Day, why not read about another affront to the civil justice system, this one via a bill sponsored by Texas Republican Lamar Smith? There is a good article on the dangers of the bill over at law.com. It is amazing that the bill not only attacks a nonexistant problem, but does so with all the precision of a drunken sumo wrestler in high heels. It’s like trying to kill a housefly with a shotgun.

July 3, 2005

Products Liability – Defense Costs

by The Law Offices of John Day, P.C.

Thanks to Robert Ambrogi for telling us about an interesting study from the Rand Corporation.

Rand studied asbestos payments, and found that 42 cents of every dollar went to victims, 27 cents went to their lawyers, and 31 cents went to defense costs. See an executive summary of the study here.

While it is a shame that “administrative” costs eat up such a large share of the asbestos dollars, it is interesting to see it actually documented that defense costs exceed the monies paid to the lawyers for the victims. This study helps document why it is so unfair to cap attorneys’ fees on one side of the “v”.