What Happened to Chad

For most of our cases, we try to figure out whether there is sufficient evidence for summary judgment, whether the case is a nonsuit, etc. Only a small portion of the opinions reveal a final resolution and an actual damages award if the plaintiff prevailed. We'll talk about damages quite a bit next week, but those are edge cases-- cases specifically selected to teach the boundaries of a difficult damages question. I think it's instructive to learn about the damages awards in "regular" damages cases, and so several years ago, while teaching a torts reading group, I took it upon myself to try to figure out how much winning plaintiffs were actually awarded. It's a tough assignment, but sometimes the results were incredibly revealing...and none more so than Emery v. Federated Foods.

In Emery, a three year old boy choked on a marshmallow and was left with brain damage. We teach the case in the context of whether a manufacturer has a duty to warn about dangerous products. In this instance, the court found that the defendant should have printed warnings about the dangers of marshmallows for children on their product bags. That might seem a bit of an overreach, but marshmallows are in fact quite dangerous due to the way they expand when exposed to moisture. The plaintiff won and was awarded $1 million from the manufacturer and $178,000 from two treating physicians, although the total number dwindled to somewhere in the $400-500k range after medical expenses and legal fees were paid. The court appointed a prominent local businessman, Richard Dasen, conservator to maintain Chad's funds and distribute them according to his ongoing needs.

It's important to note that Chad's lingering disability was and is profound, as he is often referred to as "vegetative." His mother, the plaintiff Laura Emery, attempted to care for the boy during the first few years after the case but proved unfit for the task, with the state removing him from her care after his case workers had "found [Chad] with open sores and suffering from malnutrition, dehydration and lack of care." [I'll cite below] All the while she received some payments from conservator Dasen. Five years after the award, however, Dasen filed a one-line letter with the court saying that all the money was gone (specifically, "To Whom It May Concern: As of July 2000, cash and savings for the trust account for Laura Emery (Chad Emery's mother) were depleted to a zero balance.''). At this point it's time for the big reveal, and that is that conservator Richard Dasen was an extraordinary scoundrel/criminal. While considered a pillar of the community, he actually was the focal point of a huge methamphetamine and prostitution scandal--the crux of it being that Dasen would find and identify attractive young methamphetamine addicts and coax them into prostitution in exchange for bankrolling their drug habit---to the tune of millions of dollars of payouts. An article in the Economist even implies that Dasen was personally responsible for a spike in drug problems in his city. Another article reports that a jury awarded $2 million to one of his [very young] female victims. Neither article mentions poor Chad Emery, the nearly-brain-dead boy whose funds were supposed to be expertly guided by this pillar of the community, but instead mysteriously vanished at the same time that he was paying millions for drugs and sex.

Other articles do make the connection. Nobody has yet proven that Chad's money was used in the meth/prostitution scheme, but the facts of that case, combined with the suspiciously quick evaporation of Chad's trust fund, raise serious questions. There are some accounts that say the money was tracked to Laura Emery, who was undoubtedly unprepared to care for a vegetative boy, and other accounts that say those claims were fabricated. It's hard to divine the truth. All we know is that there was a torts case that made it to our casebook to show that manufacturers might have a duty to warn, that the court awarded a sum and that said sum was gone in five years. As far as I know Chad Emery remains alive in an institution in Washington state, with his care paid for not by the marshmallow company or the conservator but by the federal government.

We read tort cases a bit like we watch a police procedural: there's an agreed-upon set of rules and tropes, and we turn the pages to find out who "won" and why. But for many plaintiffs, the conclusion of their cases are just the beginning of a lifelong ordeal. As past, current, and future attorneys, it's important to keep that in mind.

-Ellis

Where the Wild Things Are (Hint: It's Your Backyard)

If you live in the city, the array of wild animals you'll see is fairly limited. Of course, there are squirrels and chipmunks, and you'll very occasionally run into a deer, raccoon or rabbit (unless you live in Boston). But that's pretty much it for city-dwellers. If you live in the woods, however, you might know the unique thrill of seeing something truly exotic. Foxes, coyotes, bears, and if you’re really unlucky, fisher cats. It's all about your environment, it seems.

But increasingly, it's less about your environment and more about your neighbors. If you have the wrong neighbor, you or your loved ones might come face to face with a tiger, cobra, or leopard. Perhaps it is a reflection of our increasingly artificial surroundings, but more and more people are making the decision to own/adopt/buy exotic pets. These animals can look cute and cuddly one minute and turn into vicious predators the next.

ABC News Coverage of Exotic Pet Insurance (worth the watch).

From a torts perspective, owners of exotic pets almost certainly have assumed a risk--but their neighbors haven't. You can be certain that in most jurisdictions if you own a serval and it mauls the kid across the street, you are going to be on the wrong side of a torts judgment.  But this is America! So of course you can buy insurance to protect your pocketbook in case that serval attacks your neighbor. And the exotic pet insurance business is booming. 

As you'll see throughout This Year in Torts, insurance plays an enormous role in our torts system. If torts is primarily about making victims whole and setting norms, insurance does both. The mauled neighbor will be compensated for their injuries, but the insurance market will also strongly encourage exotic pet owners to maintain proper facilities to prevent attacks in the first place. As a parallel, consider the way automobile insurance policies provide discounts for advanced safety features and safe driving. That is, insurance pricing and availability can encourage owners of inherently dangerous things to maintain those things in a more safe manner. Add in the fact that some state and local governments require owners of inherently dangerous things to have insurance (for example, here’s Georgia’s exotic pet law), and it seems like a useful and important way to not only compensate victims but also to make society safer.

But does the existence of insurance actually encourage the ownership of inherently dangerous things? Could it be that the existence of exotic pet insurance leads people to think it's ok to own a pack of wolves just across the street from a preschool? When is a thing too dangerous, and too unnecessary, for us to allow insurance markets to exist? Obviously cars are ok--they are somewhat dangerous and very necessary in our society. But what about a small-scale nuclear weapon? Would we allow insurance for that? Couldn't it be argued that a tiger is just too dangerous and not useful enough for a private person to own and thus insure?

A hybrid approach--pun intended--has caused the emergence of hybrid wild animals. So instead of a serval, one might own a serval-domestic cat hybrid. Get the look of the serval and the lap-kittiness of a domestic, some think. Of course genetics don't really work that way. You very well might end up with the look of a tabby but the viciousness of a leopard. In fact, there are nearly limitless stories of hybrid cat owners being taken by surprise by just how wild little Patches actually is. Communities across the United States are struggling now with how to classify these animals, with most settling on definitions regarding the number of generations removed from the "wild" an animal must be in order to be considered domesticated. A serval hybrid with only one exotic great-great grandparent may be considered domesticated and not subject to exotic pet insurance.  

So the next time you are playing frisbee in your backyard and you run into an animal that looks like a leopard, it's probably worth paying a visit to your neighbors. Be sure to ask about that cat's family tree and whether they have insurance. The answers might just make a difference if you have a less than pleasant encounter with the cat and seek redress.

-Ellis

The Case of the Ornery Coach

It's the last week of October, and all the traditional rites of fall seem to be in full swing. Pumpkins are making their way onto porches and leaves are [finally] starting to give up for the winter. And in the sports world, Major League Baseball is passing the baton of America's Seasonal Pastime (Non-CTE Division) to basketball. For millions of fans the true essence of basketball is not found in the NBA, where some teams intentionally lose. Instead, the heart of the game can be found in the 352 college campuses that make up the NCAA's top division. But as the season tips off, one of the most celebrated and decorated coaches in the college game's history will not be found on the sidelines. Instead, Rick Pitino, erstwhile head coach of the University of Louisville (and way before that, my beloved BU Terriers), has found himself the most prominent casualty of a bribery scandal sweeping college basketball. 

The Federal complaint hides many identities, but among all the implicated colleges and coaches, none have caught the public's attention more than Louisville and Coach Pitino. The details of Pitino's alleged transgressions are still being uncovered, but at the very least the FBI has claimed that Louisville sponsor Adidas paid $100,000 to induce star recruit Brian Bowen to choose the Cardinals over fellow blueblood programs at Texas, Michigan State, UCLA, and others. There are disputes about the degree to which Pitino was directly involved in the bribery, but it doesn't look good. At the time Bowen surprised the basketball world by choosing his program, Pitino told the press "In my 40-some odd years of coaching, this is the luckiest I've ever been." A bold statement for somebody thought to be "Coach 2" in the FBI's complaint, a person alleged to have directed Adidas to pay Bowen. It's probably also worth noting that Adidas somewhat shadily pays Pitino millions of dollars a year. 

This all seems like a great topic for This Week in Racketeering, but what does it have to do with torts? Well, following his dismissal, Coach Pitino filed a rather extraordinary federal civil complaint against Adidas in the Western District of Kentucky. The complaint alleges that Adidas did, in fact, funnel $100,000 to Bowen in order to secure his commitment to Louisville--but without Pitino's knowledge. In doing so, Pitino claims that "Adidas' outrageous and unlawful actions, and the public disclosure of those actions, have resulted in grave damage to Coach Pitino's public and private standing and reputation, causing him extreme embarrassment, humiliation, and emotional distress." 

It practically goes without saying that this scandal has damaged Pitino's public standing and reputation. But it's still saying quite a lot, given that his program has recently been shown to provide recruits with prostitutes in order to secure their commitment. The more interesting component is the allegation of intentional infliction of emotional distress. The torts-nerds among you will know that, historically, there was a bar on recovery for emotional harm. Among other things, the theory was that emotional harm is difficult to prove and easy to feign. Still, the common law has adapted over the last 100 years to recognize that there are times when emotional harm is significant and should be compensable. 

In our class, we focus on the negligent infliction of emotional distress (NEID), but here Pitino is claiming intentional infliction of emotional distress (IIED), or more specifically the slightly archaic variant, outrage. As he states in his complaint, "Kentucky recognizes the tort of outrage, which authorizes the recovery of damages from one who, by extreme and outrageous conduct, intentionally or recklessly causes emotional distress to another." Pitino states no other causes of action in his suit. 

If that sounds like a potentially weak complaint to you, Pitino's lawyers anticipated that, going to great length to explain why outrage is his only option to right perceived wrongs:

"The tort of outrage is, of course, a gap-filler, meant to apply when no other traditional tort does. And no other traditional tort appears to apply here. Adidas could not have committed an employment-related tort, because it was not Coach Pitino's employer. It could not have committed a negligent tort, because its conduct, and that of its employees, was quite deliberate. It could not have engaged in tortious interference with a contract, because it had no desire to adversely affect Coach Pitino's contracts with his employer or others; on the contrary, Adidas' financial interests were best served by keeping its actions secret, and thus having no effect on Coach Pitino's contracts. It could not have defrauded Coach Pitino, because its fraudulent actions were directed at the University of Louisville, which provided a college scholarship to an ineligible recruit. And it could not be accused of unjust enrichment, because any enrichment it gained was not at Coach Pitino's expense." (Pitino Complaint)

That's basically an entire torts course in a paragraph, listing all the reasons Adidas could not be liable for a laundry list of torts. And so all that's left is outrage, "a gap-filler" whose vagueness is apparently a feature as well as a bug. Once upon a time, Lion of the Law™ William Prosser suggested (perhaps in jest) that Intentional Infliction of Emotional Distress/Outrage be instead called "orneriness." Given the facts of the Pitino case, including his past public dalliances with scandal and alleged role and financial interest in the underlying bribery, orneriness might indeed have been a better label for his suit. This Week in Torts wishes Coach Pitino the best of luck in his future endeavors. 

-Ellis

This Year in Torts

The English language is full of fun, descriptive, and beautiful words. Moxie. Arsenical. Mendelian. But you will be hard pressed to find a more ungainly word than "torts." Often confused with a quasi-cake, the few people who know what you mean when you say "torts" generally think of it as not just ugly in sound but also in meaning. We hear politicians demanding tort reform, telling us that greedy trial lawyers are unraveling the fabric of American society. It's a myopic view. Throughout the coming year, this blog will show that instead of unraveling America's fabric, tort law is in fact an essential part of the patchwork quilt that makes us who we are.

If a country had only one citizen, there would be no need for tort law. But as soon as any population reaches two, tort law arises. Because at its core, tort law defines the duties we owe each other--whether we are parents, government officials, business owners, or mere bystanders--and what we should do when those duties are not met. Tort law attempts to make the injured whole and set societal norms. Unlike criminal law, it rarely involves the threat of state action: it is merely an organized system of allowing one person to peaceably bring a grievance against another. Although there are tort systems throughout the world, this private system of personal responsibility and enforcement is quintessentially American.

Take a moment and look around you. The impact of tort law is everywhere. If you get in your car and put on your seat belt, drive soberly to the supermarket, use a shopping cart, and buy bag of marshmallows you are both defining and following American tort jurisprudence. Every carbon monoxide detector, bucket of paint, water pipe and baseball ticket has a story to tell with respect to tort law and our society.

In law school, budding attorneys are generally taught torts through reading reported case opinions. That is, opinions written by judges and their clerks at the conclusion of court cases. In theory, these opinions deliver the facts of the case, the law to be applied, and a decision in light of both. But in most cases, the mechanism of a reported decision is insufficient to really understand what happened and why. In this blog we will try to unpack some of the stories behind these cases, expanding our view to include parallel incidents and concepts that help us understand our relationships with one another. And in the process we will see that instead of being an ugly, misunderstood word, "torts" represents the study of history, society, and America itself.

-Ellis