SAFETYLEX

TORT LAW & LEGAL NEWS: MINE COMPANY'S FALSE REPORTING & POTENTIAL EMOTIONAL DISTRESS CLAIMS

Prof. Ethan J. Leib provides an analysis of whether the company's false reports regarding the survival of miners during the Sago mine disaster can serve as the basis for an action in tort.  Independent of potential wrongful death claims, Prof. Leib analyzes whether family members might recover for emotional distress based on the false reporting.  He concludes:

Ultimately, matters look promising in West Virginia for the miners' families ... Still, it's important to note that the state's high court has, thus far, only revealed a propensity and openness to developing its law of emotional distress in a generous direction. The courts' own acknowledgement that the law is underdeveloped, however, may lead some lower state courts to try and import limitations from other states that have taken less modern approaches - approaches that do not welcome claims of pure emotional harm. Strategically, the miners' families may do well to analogize their situation to Ricottilli - and the mishandling of corpse cases more generally. But even if they are limited by Heldreth's test, they may be able to convince courts to broadly interpret what it means to have "witnessed" the death of a loved one. Recall that Stump held that presence at the injury-causing event is enough to make one count as a witness. Watching on television, and waiting for news from the company, while gathered together near the mine, is, realistically, as present as a loved one can be, when a miner is trapped underground. In this instance, serious emotional distress was undoubtedly authentic, and reasonably foreseeable. For these reasons, it should be compensable. Let's hope the West Virginia courts agree.

SAFETY NEWS: FIRSTENERGY FINED FOR SAFETY VIOLATIONS AT NUCLEAR FACILITY

The Associated Press reports that FirstEnergy Corp. agreed to pay a $28 million fine for serious safety violations at the Davis-Besse nuclear facility, located along Lake Erie near Toledo, Ohio.   The AP reports:

Inspectors found an acid leak in 2002 that nearly ate through a 6-inch steel cap on the reactor vessel at the Davis-Besse plant owned by FirstEnergy Corp. Officials said it was the most extensive corrosion ever seen at a U.S. nuclear reactor.  Company and Nuclear Regulatory Commission investigations concluded that the rust hole had been growing for at least four years and that Davis-Besse's managers had ignored the evidence because they were focused on profits rather than safety at the plant.

TORT LAW & LEGAL NEWS: FORD SUED OVER TOXIC DUMPING

The New York Times reports that the Ramapough Mountain Indian Tribe and residents of Ringwood, New Jersey have sued Ford Motor Company for illegally dumping hazardous waste near the company's former assembly plant.  The Times states:

Kevin J. Madonna, one of the lawyers representing the 717 current and former residents in the suit, said Ford's failure to adequately remove all the toxic material had caused serious illnesses and diseases among residents of the area. They include certain cancers and skin diseases, and leukemia rates that are twice the statewide average, he said.

TORT LAW & LEGAL NEWS: SENATE JUDICIARY COMMITTEE HEARINGS NOTES

In listening to the Senate Judiciary Committee hearings on the nomination of Judge Samuel Alito to the Supreme Court, one particular exchange caught our ear with respect to Judge Ailto’s disposition towards victims who have been harmed by corporate negligence.  The transcript reads from Thursday, January 12, reads in part as follows:

SCHUMER: … Let me just make -- I'm going to let you answer it. I just want to make the point here so everybody can understand. … this time it was the government had failed to raise the issue in the district court brief. This time you were prepared to excuse that failure. This time you felt it was appropriate to consider the issue on your own … I want to read what the majority in Smith v. Horn had to say about your indulgence of the government for failing to bring up an issue, …They said: "Where the state has never raised the issue at all, in any court, raising the issue ourselves puts us in the untenable position of ferreting out possible defenses upon which the state has never sought to rely. When we do so, we come dangerously close to acting as advocates for the state rather than as impartial magistrates." … 

ALITO: Yes, Senator. As I was attempting to explain a couple of minutes ago, there is an important principle called the principle of comity that is involved in habeas cases. And it goes to a critical part of our concept of federalism, and it's something that Congress itself has very strongly recognized in the habeas corpus statute.  What I'm talking about there is the doctrine of procedural default, which is very closely related to the doctrine of exhaustion. They go hand in hand.  And what Congress has said in the Anti-Terrorism and Effective Death Penalty Act of 1996 is that on the issue of exhaustion, the court has to consider that even if the parties don't raise it.

SCHUMER: Now, that applies to the government as well as to the defendant?

ALITO: Absolutely.  The issue of exhaustion must be considered by the federal habeas court, even if the state prosecutor does not raise the issue of exhaustion. And why did Congress say that?  Congress said that because there's something more involved here than a dispute between the state prosecutor and the habeas petitioner; there is respect for the federal system of government involved. There is respect for the state court system involved.

SCHUMER: But the majority didn't agree with you in that situation, did they? ... I'm not sure I agree with it. But let me go on to another one. This is Dillinger.  In this case, it was with a corporation. The case is Dillinger v. Caterpillar. And it's also a case where a party didn't raise an issue at trial -- won't have the same explanation as the habeas case, obviously.  They didn't raise the issue at trial or on appeal -- this time the large company didn't: Caterpillar. And the majority held that it waived, and it sided with the plaintiff who was seriously injured in the accident, right?

ALITO: I don't have a recollection of all the facts...

SCHUMER: OK, well, let me tell you -- maybe this'll refresh your recollection.  The majority wrote that it was not appropriate to exercise its discretion -- again it was the majority -- to excuse the defendant companies waiver when the consequence of the decision would be to deprive a seriously injured plaintiff of a trial in conformity with applicable law. That's the majority.  You dissented, with the result, had you prevailed, that the accident victim's case would have been over.  The majority describe your approach as follows. Quote: "There is an insurmountable procedural difficulty with Judge Alito's position. Caterpillar never advanced this argument at trial, an oversight that Judge Alito excuses on a ground that a district court decision may be affirmed on an alternative ground, though not advanced at trial."  So in the Dillinger case, you also thought it was appropriate to use your discretion to excuse Caterpillar, isn't that right?

ALITO: Well, I'd have to refresh my recollection about exactly what was involved in the case...

SCHUMER: I would posit to you that, again, it was an example of your seeming to have more sympathy for a certain type of plaintiff than another.

SIDENOTE:  It is a sign of the times we live in that sitting judges, academics, and other seemingly decent people continue to cling to the position that the execution of innocent persons is permissible under the U.S. Constitution.  It is a position that sees the law in general and the Constitution in particular as a collection of static words disconnected from larger notions of ethics and justice.  In an exchange with Senator Leahy, the nominee evaded directly stating an opinion and appears to adhere to this position.  The transcript reads in relevant part:

LEAHY: ….In his confirmation hearing last September … I asked him if the Constitution permits the execution of an innocent person. He said, "If they've been falsely convicted and they're innocent, they shouldn't be in prison, let alone executed." I think we all agree with that. But I pushed further, because my question was whether the Constitution permits the execution of an innocent person -- you know that they're innocent. He said, "I would think not."  Judge, do you agree with Chief Justice Roberts?

ALITO: … it is one of the most fundamental rights protected by our Constitution that no one may be convicted of an offense unless they're proven to be guilty beyond a reasonable doubt.  And further than that, the Supreme Court's decisions since 1976 dealing with the Eighth Amendment have attempted to create a whole set of procedural safeguards to make sure that the death penalty is not imposed arbitrarily or capriciously…

LEAHY: But, Judge, we have, as we know -- we saw the cases in Illinois, people a few days away from execution. They'd been sentenced to death. They'd been convicted. They had their trial, gone to trial. Jury came back. Apparently procedures followed on sentencing. They are now sentenced to death.  A few days before death, somebody comes forward at the very last minute because of DNA evidence, and says "Whoops, we got the wrong person," … We're finding in Virginia now, in other cases, it appears that there's a possibility a number of innocent people were executed.  What if you had a case -- they've gone through the whole thing. They've been convicted. The judge has followed all of the appropriate sentencing, the jury came back for sentencing, did everything following the law. And now they're up for execution. Evidence comes up, say, DNA evidence, or DNA evidence, a confession of somebody else. Would it be unconstitutional then to execute that person?

ALITO: Well, Senator, it is unconstitutional to execute someone who has not been proven guilty beyond a reasonable doubt. Now, depending...

LEAHY: They may have been found guilty beyond a reasonable doubt, is what I'm saying. And then as a lot of these people were on death row and had to be commuted at the last moment when they -- a few days before the execution they found, whoops, they have the wrong guy.

ALITO: That's the ultimate tragedy that could possibly occur in our criminal justice system. We should do everything we can to prevent that from ever occurring. … If the evidence develops at the last minute, then I think -- and if this is -- it would depend to some degree on -- the procedures would be different, depending on whether the person had been convicted in state court or in federal court. …

LEAHY: But you agree with -- I understand all the steps. Like you, I was a prosecutor. Even though we don't have death sentence in Vermont, we have real life imprisonment. And I remember those.  But you agree, though, with Chief Justice Roberts that the Constitution does not countenance the execution of an innocent person?

ALITO: The Constitution is designed to prevent that.

TORT LAW & LEGAL NEWS: ALLIANCE FOR JUSTICE REPORT ON JUDGE ALITO'S NOMINATION

The Alliance for Justice has published its Report on the Nomination of Samuel A. Alito to the United States Supreme Court.  The report details Judge Alito's previous rulings in areas including health and safety protections for workers (p. 111), punitive damages (p. 179), state tort cases (p. 180), and federal tort cases (p. 182).  The Alliance for Justice found that Judge Alito voted 66% of the time in favor of the defendant in split decisions involving standard tort cases.   

TORT LAW & LEGAL NEWS: CAR FRANCHISOR IS NOT IMMUNE FROM SUIT

In an opinion from the U.S. District Court, Northern District of Florida, the court held that a car franchisor may be vicariously liable for the negligence of its franchisee.  In Potts, et. al. v. Budget Rent A Car System Inc. et. al., the court denied summary judgment to the defendant who argued that an agreement between the franchisor and franchisee (and unknown to consumers) identified the franchisee as an "independent contractor" and thereby immunized the franchisor from any liability.  Rejecting the defendant's argument, the court reasoned:

However, such declaration does not immunize the franchisor from liability to a third party. A franchisor may be held vicariously liable for the acts of his franchisees when the relationship between them is one of principal and agent or master and servant, rather than an independent contractor.  Evidence such as operating manuals and other materials may be offered to show the franchisor's right to control the franchisee ...  An agency is either actual or ostensible. An agency is actual when the agent is really employed by the principal. An agency is ostensible when the principal intentionally or by want of ordinary care causes a third person to believe another to be the principal's agent when that person is not really employed by the principal.  It is crucial to note at this juncture that although the parties treat the terms "independent contractor" and "agent" as mutually exclusive, an independent contractor can also be considered an agent.  Potts et al. v. Budget Rent A Car System Inc. et al., Slip Copy, No. 04 CV 074, 2005 WL 3057175 (N.D. Fla., Tallahassee Nov. 14, 2005) (citations omitted).

TORT LAW & LEGAL NEWS: CAL SUPREME COURT AFFIRMS RIGHT OF CONTRACTOR TO BRING SUIT AGAINST COMMERCIAL LANDOWNER

The California Supreme Court recently upheld the right of an independent contractor to bring suit against a commercial landowner for injuries resulting from latent or hidden defects at the worksite.  In Kinsman v. Unocal Corporation, the court defined the issues as follows:

This case requires us to consider .... when, if ever, is a landowner that hires an independent contractor liable to an employee of that contractor who is injured as the result of hazardous conditions on the landowner's premises? Specifically, in this case, we must decide whether a carpenter employed by an independent contractor that installed scaffolding for workers who replaced asbestos insulation in an oil refinery facility may sue the refinery owners for injuries caused by exposure to asbestos, when it is claimed that only the refinery owner knew the carpenter was being exposed to a hazardous substance.

In answer to these questions, the court held:

We conclude that a landowner that hires an independent contractor may be liable to the contactor's employee if the following conditions are present: the landowner knew, or should have known, of a latent or concealed preexisting hazardous condition on its property, the contractor did not know and could not have reasonably discovered this hazardous condition, and the landowner failed to warn the contractor about this condition.

The court's opinion is available here.  An online audio of the parties' oral arguments can be accessed here.  A case summary and the parties' briefs are available here.

SAFETY NEWS: W.V. MINE DISASTER REVEALS REGULATORY NEGLECT

Democracy Now provides online audio of today's program discussing the Sago Mine disaster in West Virgina.  Former mine safety officials and investigative reporters discuss the ongoing regulatory neglect of safety and health issues in the mining industry. 

SAFETY & HEALTH NEWS: DISPARITY IN CANCER CARE, ALL TERRAIN VEHICLES, ETC.

The New York Times reports that a new study finds that black cancer patients receive lower standards of patient care than white patients.  The Times writes:

Black patients with treatable lung cancer are less likely to be thoroughly examined and less likely to undergo surgery than white patients with the same severity of illness, even when they have similar access to specialized medical care...

Doctors Christopher S. Lathan, Bridget A. Neville, and Craig C. Earle author the study titled The Effect of Race on Invasive Staging and Surgery in Non-Small-Cell Lung Cancer.  The study's findings will be published in the January 20, 2006 issue of the Journal of Clinical Oncology.  An abstract and the full text (fee required) of the study are available online through the Journal's website.

A recent article titled All-Terrain Vehicle Injuries: Are They Dangerous? A 6-Year Experience at a Level I Trauma Center After Legislative Regulations Expired examines the incidence and severity of ATV injuries before and after the expiration of ATV safety regulations. The article was published in The American Surgeon journal and is available for purchase here. The authors write:

All-terrain vehicles (ATVs) have increased in popularity and sales since 1971. This rise in popularity led to an increase in injuries resulting in voluntary industry rider safety regulations in 1988, which expired without renewal in 1998 ... Our data show that there has been a dramatic and progressive increase in the number of ATV crashes since expiration of industry regulations. ATVs are as dangerous as MCs [motorcycles] based on patient ISS and mortality. There are significantly more children and women injured on ATVs.

The Washington Post recently reported on calls for regulatory oversight of developing nanotechnology.  (See here for a related story from USA Today).   Post journalist Rick Weiss writes:

Amid growing evidence that some of the tiniest materials ever engineered pose potentially big environmental, health and safety risks, momentum is building in Congress, environmental circles and in the industry itself to beef up federal oversight of the new materials, which are already showing up in dozens of consumer products ... Preliminary studies suggest that most of these products do not pose significant risks in their bulk form or embedded in the kinds of products that so far use them.  But the same cannot be said of the particles themselves, which can pose health risks to workers where they are made and may cause health or environmental problems as discarded products break down in landfills.

The Los Angeles Times reports on efforts in California to require fast food restaruants and manufacturers to warn of consumers of the presence of the chemical acrylamide in french fries and potato chips.  The paper reports that:

[A]crylamide has long been recognized as a rodent carcinogen and human neurotoxin, no one ever suspected to find it in food. It was believed to be the exclusive product of industrial waste ... Then came the discovery in 2002 that acrylamide is almost everywhere in our diet ... Acrylamide turns up in a wide variety of foods; the chemical is present in 40% of our daily calories. But French fries and potato chips contain the highest concentrations, and because Americans consume so much of them, acrylamide fears have focused around these products ... The Environmental Protection Agency considers acrylamide potentially so dangerous that it has fixed the safe level for human consumption at almost zero, with a maximum permissible level in drinking water of 0.5 parts per billion ... a 2.4-ounce serving of French fries, a small portion at McDonald's, contains about 401 parts per billion, a small, vending-machine-sized bag of potato chips 466 parts per billion.

The Chicago Tribune reports that the number of injuries related to cheerleading is markedly increasing.  The paper writes:

A study published Tuesday in the journal Pediatrics estimates 208,800 young people ages 5 to 18 were treated at U.S. hospitals for cheerleading-related injures during the 13-year period. Most of the injuries were suffered by 12- to 17-year-olds; nearly 40 percent were leg, ankle and foot injuries. Almost all the patients in the study were treated at emergency rooms and released. But because researchers used only ER numbers gathered by the Consumer Product Safety Commission, the true number of those injured is even greater, since many kids are treated at doctors' offices or by team trainers, researchers said. The rise in injuries is probably because the stunts are increasingly difficult, the researchers said. Cheerleading has "evolved from a school-spirit activity into an activity demanding high levels of gymnastics skill and athleticism," the study said.