Chair collapse provides textbook 'res ipsa' facts

plastic chair by Chris CC BY-NC-SA 2.0 via Flickr

A textbook res ipsa loquitur case is headed back to the trial court since the Massachusetts Appeals Court in March reversed dismissal.

Res ipsa loquitur is a beautiful doctrine for all kinds of reasons. I like that it's a mouthful of high-dollar words, because that keeps lawyers' hourly rates high and justifies the high cost of law school, translating into more money for professors like me. It's also fun to teach, because of its odd position at the intersection of fundamental tort elements—is it a rule of causation? duty? breach?; its location in negligence law while bearing a striking resemblance to strict liability; and its double-life in doctrines of tort and evidence law render it theoretically instructive.

At the same time, res ipsa is a straightforward and commonsense rule, and this case before the Appeals Court demonstrates its utility. "The plaintiff ... was having lunch on the outdoor deck of Sundancers restaurant in Dennis when his plastic chair collapsed beneath him," the court recounted the facts. The trial court dismissed for want of evidence of negligence by the defendant restaurant owners.

Res ipsa says simply, plastic chairs fairly may be depended on not to collapse. So when they do, it might be someone's fault. And of everyone who might be at fault, it's not the plaintiff's fault. So even if the plaintiff can't show by evidence the precise mechanism of the accident, the plaintiff still deserves a chance to persuade a jury to infer the defendant's responsibility. 

You can find my more formal discussion of the rule in the no-longer-updated Straightforward Torts, to be incorporated into Tortz: A Study of American Tort Law in the coming year.

My 2006 torts casebook with Professor Marshall Shapo uses a case with a similar fact pattern to teach res ipsa loquitur. In O'Connor v. Chandris Lines, Inc. (D. Mass. 1983), the plaintiff was injured when the bunk-beds in which she slept on a cruise ship collapsed. Like Step Brothers (2008) if someone else had put the beds together, and not as funny.

The plaintiff from Sundancers sued years later, if within the statutory limitations period, so both he and the restaurant struggled to locate relevant evidence. There might yet be insufficient implication of negligence on the part of the restaurant to persuade the jury to make the res ipsa inference. But plaintiff deserves better than summary dismissal, the court decided.

Because the record presents a number of material, disputed factual issues—including whether Sundancers provided the plaintiff with a defective and unsafe chair, whether the defect could have been detected with reasonable inspection, whether reasonable inspection was made, and whether factors other than the defendants' negligence more likely caused the accident—summary judgment should not have entered. Were this case to go to trial on the record before us, the jury would be permitted, but not required, to infer that Sundancers was negligent under the principles of res ipsa loquitur.

The case is Kennedy v. Abramson, No. 21-P-224 (Mass. App. Ct. Mar. 17, 2022). Justice Gregory I. Massing wrote the opinion of the unanimous panel.

'Civil death,' denial of tort claims, violates prisoners' right of access to courts, R.I. high court holds

N.C. State Archives public domain photo via Wikimedia Commons

The Rhode Island Supreme Court in March struck down the state "civil death" statute, which disallowed civil claims by inmates imprisoned for life.

The statute at issue states:

Every person imprisoned in the adult correctional institutions for life shall, with respect to all rights of property, to the bond of matrimony and to all civil rights and relations of any nature whatsoever, be deemed to be dead in all respects, as if his or her natural death had taken place at the time of conviction. However, the bond of matrimony shall not be dissolved, nor shall the rights to property or other rights of the husband or wife of the imprisoned person be terminated or impaired, except on the entry of a lawfully obtained decree for divorce.

Alleging negligent maintenance, one plaintiff-inmate complained "that his arm was severely burned and permanently disfigured when he made contact with an exposed hot water pipe at the [prison]." Another alleged negligence when he slipped and fell after being compelled "to walk across an icy walkway at the [prison]." The trial court rejected both claims as barred by the "civil death" statute.

I was shocked to read of this case in my home state's Providence Journal; I never had heard of a "civil death" statute. The R.I. ACLU provided some background:

Rhode Island was apparently the only state in the country still enforcing a law like this, whose origins date back to ancient English common law. As far back as 1976, a court struck down Missouri's civil death statute, noting that "the concept of civil death has been condemned by virtually every court and commentator to study it over the last thirty years." The court observed that such laws had been characterized even before then as "archaic," "outmoded," "an outdated and inscrutable common law precept," and "a medieval fiction in a modern world." In 1937, when 18 states still had civil death laws, a law review article called the concept "outworn."

Applying the 1843 state constitution (article 1, section 5), a four-justice majority of the Rhode Island Supreme Court had little trouble reaching the conclusion that I thought was obvious, that the law violates the fundamental due process right of access to the courts.

Justice Lynch Prata
(via Ballotpedia)

Employing strict scrutiny, the court acknowledged that "civil death"

functions as an additional sanction imposed upon some of the state's worst criminals and furthers the goals of punishment and deterrence. This Court has recognized that "[t]he loss of civil status as a form of punishment is a principle that dates back to ancient societies." .... However, it is our opinion that this particular additional punishment is not a compelling reason to override the right of access to the courts that is textually guaranteed by the Rhode Island Constitution.

Justice Goldberg
(via Ballotpedia)

Even were the statute supported by a compelling state interest, it is not narrowly drawn, the court further opined, as it fails to distinguish between prisoners based on their eligibility for parole.

Justice Maureen McKenna Goldberg dissented. "Prison inmates, especially life prisoners, are not entitled to the same degree of constitutional rights as are members of society at large," she wrote, "and that includes the right to bring tort claims against the warden for a slip and fall or a burned hand." She would have narrowed the question to the plaintiffs' negligence claims and upheld the statute.

"In my more than two decades of service on this Court, I cannot recall ever having declared a statute to be unconstitutional," Justice Goldberg opined. "[T]his should not be the first case with such a drastic result in light of our longstanding jurisprudence."

The case is Zab v. R.I. Department of Corrections, No. 2019-459-Appeal (R.I. Mar. 2, 2022). Justice Erin Lynch Prata wrote the majority opinion.

A former state senator Judge Prata was nominated to the court by Governor Gina Raimondo in December 2020, just three months before she left office to become the U.S. Secretary of Commerce. Justice Lynch Prata is 2000 graduate of Catholic Law, for which I periodically teach as a visitor. Judge Goldberg is the senior-most justice on the court, having served since her appointment in 1997.

Statute of repose bars medical negligence claim over misdiagnosis of plaintiff's muliple sclerosis

Evidence of MS in an MRI
(James Heilman, MD, CC BY-SA 4.0 via Wikimedia Commons)

A Massachusetts medical malpractice case in March reminds law students and lawyers that a statute of repose can be as threatening to a cause of action as a statute of limitations, and furthermore that the statute of repose burdens patients with diligently investigating persistent suffering.

The Massachusetts statute of repose for medmal actions states (emphasis added):

Actions of contract or tort for malpractice, error or mistake against physicians, surgeons, dentists, optometrists, hospitals and sanitoria shall be commenced only within three years after the cause of action accrues, but in no event shall any such action be commenced more than seven years after occurrence of the act or omission which is the alleged cause of the injury upon which such action is based except where the action is based upon the leaving of a foreign object in the body.

The plaintiff suffered from multiple sclerosis, which was misdiagnosed in 2011. The results of an MRI indicating MS were never communicated to the plaintiff, almost certainly negligence. But it was more than seven years before the diagnosis was corrected.

The plaintiff tried to predicate her claim on subsequent instances of treatment by the defendant doctors. The court was not receptive. "Even if we generously read the complaint to have alleged separate acts of negligence, that reading would nonetheless be eclipsed by the fact that the 'definitely established event' of the MRI occurred nearly eight years before the complaint was filed," the court opined. A "continuing treatment exception" "would vitiate the statute of repose."

The case is Moran v. Benson, No. 21-P-352 (Mass. App. Ct. Mar. 1, 2022). Justice William J. Meade wrote the opinion of the unanimous panel.

Horn-blowing law survives First Amendment challenge

Image by allispossible.org.uk CC BY-NC-SA 2.0 via Flickr

A citation for unreasonable horn-blowing is not defective under the First Amendment, the Massachusetts Appeals Court held in February.

The appellant sought relief from a civil motor vehicle infraction carrying a $55 fine. The court set out the facts:

On October 16, 2017, police officers were working as part of a detail as a construction site was being set up at an intersection at the Middlesex Turnpike, "a busy public way in Burlington." This was "causing major traffic delays." [Appellant] pulled into the intersection, "grew impatient," honked his vehicle's horn, and yelled at the officers. "This startled construction workers." [Appellant] drove closer to one of the police officers, honked his vehicle's horn, and insulted the officer. The officer stopped [appellant] and issued him a citation for fifty-five dollars for unnecessarily honking his horn.

The pertinent Massachusetts statute declares: "No person operating a motor vehicle shall sound a bell, horn or other device, nor in any manner operate such motor vehicle so as to make a harsh, objectionable or unreasonable noise." The appellant challenged the statute as unconstitutionally vague and unconstitutionally overbroad facially and as applied.

In First Amendment vagueness analysis, the court explained, a statutory text may be informed by "reasonable construction." And this statute is informed, the court reasoned, by the administrative guidance of the Massachusetts Driver's Manual, a document publication of the Registry of Motor Vehicles. The manual specifies:

Use your horn to:

• Warn pedestrians or other drivers of possible trouble
• Avoid crashes

Do not use your horn to:

• Show anger or complain about other drivers’ mistakes
• Try to get a slower driver to move faster
• Try to get other vehicles moving in a traffic jam

That guidance "comports with the common understanding of what uses of motor vehicle horns are objectionable," the court wrote, so "is not unconstitutionally vague."

The statute also was not substantially overbroad, facially or as applied, the court concluded.

The appellant looked to court decisions in Washington and Oregon striking laws against horn blowing as facially overbroad. But those laws were broader and swept into their prohibitions the use of horns for purposes unrelated to traffic, namely, expressive use in protests. The Massachusetts law pertains only in traffic scenarios.

The court rejected what it characterized as the appellant's after-the-fact effort to characterize his horn-blowing as a protest against police to articulate an as-applied overbreadth challenge. "Horn honking may be expressive when used as a form of protected protest," the court acknowledged. But that's not the same as appellant "honk[ing] his vehicle's horn out of impatience to show his anger at the police officer for creating a traffic jam."

Fine line, but I know it because I see it.

The case is Burlington Police Department v. Hagopian, No. 20-P-1371 (Mass. App. Ct. Feb. 22, 2022). Justice Joseph M. Ditkoff wrote the unanimous opinion of the panel.

Inter-American Court heralds community radio as human right for indigenous Guatemalan broadcasters

Community radio in Colombia
(USAID CC BY-NC 2.0 via Flickr)

The Inter-American Court of Human Rights (IACtHR) ruled in October 2021 that the state of Guatemala violated the right of indigenous radio broadcasters by shutting them down for want of licenses.

In multiple raids, Guatemala confiscated broadcasting equipment from four "pirate," that is, unlicensed, community radio stations and, in some cases, criminally prosecuted the broadcasters.

The stations provided information, entertainment, and cultural programming in the Mayan communities they served. At least one station programmed in the Mayan language.

The stations were unable to afford state licensing fees, which awarded frequencies to high bidders. Of Guatemala's 424 licensed FM and 90 licensed AM radio stations, the IACtHR press release about the case said, only one served an indigenous community.

Historical, structural discrimination, besides plain economics, was keeping indigenous broadcasters off the air, the court opined. Though only four stations were at issue in the case, lawyers for the four said as many as 70 indigenous broadcasters in Guatemala stand to benefit.

The case is likely to have farther geographical impact, too, I suggest. In my experience in Central and South America, community radio is a vital force for cultural cohesion and preservation of indigenous culture and language, not only among Guatemalan Mayans. Indeed, the court's opinion is a valuable precedent elsewhere in the world, as community radio is an important cultural force in indigenous and minority communities on every populated continent.

The court ruled that the Guatemalan policy on access to the airwaves violated the freedom of expression, equal protection, and the right to participate in cultural life. The court ordered the government to refine the regulatory process to account specially for indigenous community access, to reserve part of the radio spectrum for indigenous community radio, to make licenses simple to obtain, and strike the relevant criminal convictions.

The IACtHR decision reversed the final disposition in the Guatemalan high court, WBUR reported.

Lawyers in the Human Rights and Indigenous Peoples Clinic at Suffolk Law School in Boston, Mass., participated in the case on behalf of the broadcasters.

The case is Pueblos Indígenas Maya Kaqchikel de Sumpango v. Guatemala (IACtHR Oct. 6, 2021) (summary).

Underwear for firefighters means to prevent cancer

The Defender Brief by 9 Alarm Apparel

A Massachusetts textile maker has teamed with firefighters to make cancer-preventive underwear.

In October 2021, I shared John Oliver's Last Week treatment of PFAS, the highly carcinogenic chemical that is used to make non-stick cookware, as depicted in the movie-based-on-a-true-story Dark Waters, and which can now be detected in the blood of most Americans.

At that time, Oliver lamented that PFAS is not even on the list of toxins that water quality tests look for. Indeed, as I stated in an update to that post the same month, I sought my water quality report at home in Providence, Rhode Island, and there was no mention of PFAS.

There has been progress since. Both the U.S. EPA and the European Union are moving forward with plans announced in 2021 to regulate PFAS. (But see Tom Perkins, US Water Likely Contains More "Forever Chemicals" Than EPA Tests Show, Guardian, July 6, 2022.)

In my house, we replaced our Teflon-coated cookware with a Rachel Ray set we hope is PFAS-free. I took the Teflon stuff to metal recycling, but probably, I acknowledge, it will contribute to the problem in the short term, as landfill waste is leeching PFAS into the earth.

There's a long way to go. In late June, NPR reported, "the EPA put out a new advisory warning that even tiny amounts of some of PFAS chemicals found in drinking water may pose risks." And "[s]cientists are finding PFAS everywhere." A so-called "forever chemical," PFAS persists in the environment, practically never breaking down.

Firefighters are especially vulnerable to PFAS exposure, and testicular cancer is an especial risk. Reminiscent of once seemingly miraculous asbestos, PFAS is used in fire-suppressive gear as well as the firefighting foam in which firefighters can find themselves literally swamped. Firefighters filed a wave of lawsuits in February, CBS News reported, claiming cancer resulting from PFAS exposure.

In a welcome sliver-of-hope development, Massachusetts textile makers announced in tandem with the February lawsuits the sale of PFAS-protective underwear for firefighters.

Precision Sportwear is making "Defender Briefs," a product created by Northampton, Mass., firefighter Levi Bousquet and his company, 9 Alarm Apparel. They told WBZ that Defender Briefs "block 99% of cancer-causing agents from reaching the skin." Precision is located in Fall River, Mass., and 9 Alarm Apparel in Belchertown, Mass.

9 Alarm is marketing the underwear with the slogan, "Protect the Boys."

Should mass media audiences have right to know whether content is fact or opinion?

Political protestor in 2012
(photo by Gabriel Saldaña CC BY-SA 2.0 via Flickr)

To protect the civil rights of the audience, radio and television providers in Mexico may be compelled to distinguish between fact and opinion, a minister of the First Chamber of the Supreme Court of Justice ruled in November 2021.

The decision by Minister Juan Luis González Alcántara Carrancá struck down a federal telecommunication reform that repealed the fact-opinion distinction, holding that the repeal violated the right of the audience to know the nature of the content it is receiving. (More at Observacom en español.)

It remains to be seen whether the minister's opinion will hold up, or how enforcement might work going forward. But the opinion points to some intriguing considerations as all liberal democracies debate their responses to the problems of misinformation and scarce objectivity in news media.

Approaching misinformation as a problem of audience rights rather than speaker rights is a compelling spin.

The approach is not unknown in U.S. telecommunication regulation, which is justified in part with reference to public ownership of the airwaves. As television transitioned from broadcast to cable, the public right to receive gained ground alongside the property rationale. Though these days, the whole enterprise of balkanized media regulation is constitutionally questionable.

Detaching the audience right from the medium to ground a general right to receive accurate information from mass media, apart from speaker rights, is, anyway, a bold further step. The debate in American free speech law over anonymity and compelled source disclosure in campaign finance, though, comes to mind.

The idea that fact and opinion can be distinguished, or should be distinguished, is an additionally intriguing idea.

It would be easy to conclude that the distinction is too hazardous to contemplate, chilling the practice of journalism for fear of perceived slant, invading the province of ethics, and threatening the vital tradition of the editorial page. The fuzzy identity of advocacy documentary puts the problem in focus, whether the subject to be tested is Hillary: The Movie (2008), the film at the heart of Citizens United, or the latest Michael Moore project.

At the same time, the "fact-opinion dichotomy" is an extant feature of our defamation law. We have developed tools to make the distinction, and we expose assertions of fact to greater potential liability than we do opinions.

Indeed, the Mexican fact-opinion distinction is not grounded in an effort to combat misinformation; rather, the notion grows out of advertising regulation, where the concept is familiar to American jurisprudence, too. Mexican regulators sought to protect consumers against surreptitious advertising strategies such as product placements and paid endorsements. The U.S. First Amendment similarly tolerates heightened government regulation of commercial speech in the interest of consumer protection.

In commentary on the Mexican case, Daniel Villanueva-Plasencia at Baker Mackenzie wonders at the implications if the fact-opinion regulatory distinction were to escape the confines of telecommunication and find its way to the internet, where social media influencers, among other content creators, would come within its purview.

I do not mean to suggest that compulsory fact-opinion labeling is constitutionally unproblematic, or even viable, in U.S. First Amendment law. I do suggest that an approach to the misinformation problem beginning with audience rights and compelled disclosure, that is, with more information rather than less, is a good starting point for discussion.

The case is Centro Litigio Estratégico para la Defensa de los Derechos Humanos v. Presidente de la República, No. 1031/2019 (Sup. Ct. J. Nación 2021) (excerpt of opinion).

Star Trek's latest voyage to 'strange new worlds' charts a 'final frontier' evocatively close to home

"In Defense of Episodic TV," read the headline on a story by Associated Press journalist Ted Anthony last week about Star Trek: Strange New Worlds, Paramount's serialized prequel to Star Trek's 1960s Original Series.

Author of Chasing the Rising Sun (2007), the intriguing biography of a classic American song, Anthony lauded Strange New Worlds for what might seem like its mundanity (e.g., Miami Herald):

Members of the Enterprise crew on “Strange New Worlds” are living their lives. They’re doing their jobs, even when their jobs really suck—like when they lose one of their own or are under attack. Like us, they find themselves in different moods from episode to episode, from scene to scene. They’re silly one moment, crisp and efficient the next, emotional the next and then, maybe, silly all over again. It all feels more like the cadence of actual life than one of these deep dives into a single, relentless story arc.

I second Anthony's paean. Strange New Worlds is a peculiar joy. In its return to the episodic formula of the 20th century Original Series and Next Generation, and, indeed, a classic television formula that has given way to the predominance of the season arc in the streaming era, showrunners Akiva Goldsman and Henry Alonso Myers have reinvigorated the incomparable capacity of science fiction to comment critically on the real world through a veil of analogical fantasticism. Such was the original vision of Star Trek creator Gene Roddenberry (on this blog).

Strange New Worlds episode 5, "Spock Amock" (released June 2, 2022), beautifully exemplifies the episodic approach. (Plot details, but no story-end spoilers, follow.)

Paramount invested lavishly in Strange New Worlds, and it shows in elaborate sets and stunning special effects with epic space battles. "Spock Amock" subtly exhibits this investment, but action and suspense are not at the heart of the episode. Rather, "Spock Amock" is a deceptively low-key human interest story unfolding as the Enterprise crew go on shore leave. Frankly, such stories usually turn me off because, in the streaming era, they are the product of lesser writers seeking to fill time in unnecessarily multi-episode productions. That's not what's happening here.

This story by Myers and Robin Wasserman comprises three discrete lines. In one, Spock (Ethan Peck) and his fiancée T'Pring (Gia Sandhu) wrestle with a sometimes mildly comical Freaky Friday flip of consciousness; Number One (Rebecca Romijn) and Lt. Noonien-Singh (yes, she's related) (Christina Chong) investigate a ship disciplinary matter; and Captain Pike (Anson Mount) and Spock/T'Pring negotiate a treaty with frustratingly obstinate alien leaders. Without giving too much away, the striking theme that unifies all three story lines, in the end, is, simply, empathy. By interacting with the unknowable ways of other beings, every character is compelled to look inside her or his own mind, own character, and thereby to grow in the capacity to see the world from a different perspective.

The Enterprise never leaves space dock in "Spock Amock." Yet perhaps better than any other, the episode exemplifies her mission, to explore the strange new worlds of the final frontier. For it always has been true of Star Trek since its opening sequence first aired in 1966:

The final frontier is us.

Burgundian Liège Belgian waffles melt in mouth

The Burgundian, Attleboro, Mass.
(All photos RJ Peltz-Steele CC BY-NC-SA 4.0.)

Following up my post last week about an IP/contract battle between Massachusetts makers of Belgian waffles, I felt I should—nay, I felt I must, as an objective researcher in the savory social sciences—travel to the Burgundian of Attleboro, Mass., and sample the waffle products myself. I did so yesterday.

Burgundian's classy, European-esque interior

Alas, my investigation did little to draw me toward one conclusion or another on the merits of the case. But I can confirm that Shane Matlock's Burgundian waffles are the most scrumptious morsels of doughy goodness that ever have crossed my lips.

Chicken and waffles, the southern classic that I didn't know about before I married a Louisianan.
Yet I've never had it better, now, than here in New England.
Not pictured: my wife's burger and fries and a couple of local beers on draft.

 

"Banana churros" dessert at the Burgundian.
Yeah, that happened. I'm not proud.

As long as I'm confessing my sin of gluttony today, a shout out to a post-pandemic-new and exceptional establishment in my home state of Rhode Island, Hunky Dory in Warren. My wife confirms that this "southern-influenced celebration of New England" from dachshund Sherbert's parents Sam—himself of "southern mama and Appalachian dad"—and Bay Stater Joanna delivers on its promise.

The "veggie and sweet potato hash" feat. "smoked poblano crema,"
and a "basic brunch" at Hunky Dory, Warren, R.I.
We devoured "Mom's zucchini bread" before I could snap a picture.

The outdoor patio at Hunky Dory with its thriving vegetable garden

We can't wait to go back for dinner. Bon appétit.

State AGs back Mexico in suit against gun makers

Houston gun show in 2007 (M&R Glasgow CC BY 2.0 via Flickr)

In a pattern that has become familiar, the mass shooting in Uvalde causes us to check in on the various irons in the fire on gun liabilities.

The from-right-field lawsuit that most piqued my interest in the last year was that filed by the government of Mexico against American gun manufacturers over deaths in Mexico, Estados Unidos Mexicanos v. Smith & Wesson Brands, Inc. (D. Mass. filed Aug. 4, 2021). In the culmination of a 139-page complaint, Mexico articulates causes including negligence, product liability, and nuisance.

The lawsuit is presently in briefing on defendants' motion to dismiss.

Especially interesting are Mexico's counts seven and eight, arising respectively under the Connecticut Unfair Trade Practices Act and the famously broad Massachusetts consumer protection law, chapter 93A. It was under the Connecticut law, as a claim over marketing, that courts allowed the Sandy Hook plaintiffs to work around the personal injury liability bar of the Protection of Lawful Commerce in Arms Act of 2005 (PLCAA).

Though to be clear, Mexico's starting position is that the PLCAA doesn't apply anyway extraterritorially. In February, 14 state attorneys general, led by Massachusetts AG Maura Healey, briefed the district court on their agreement with that position (CNN), seeking to expose the gun-maker defendants to liability.

Gun maker Smith & Wesson, the named defendant in the case, was based in Springfield, Massachusetts, since 1852. In September 2021, Smith & Wesson announced plans to leave Massachusetts, amid pending legislation to limit the manufacture of assault weapons, for the friendlier venue of Tennessee (WCVB).