A tutorial on tort liability from Judge Calabresi

Judge Guido Calabresi is a pioneer legal theorist on American tort law. He also sits on the Second Circuit Court of Appeals. In this case, he puts his theoretical background to work in providing a tutorial on some basis torts concepts arising from a skiing accident that left a man badly injured in Vermont.

The case is Gemmink v. Jay Peak, Inc., decided on November 30. Plaintiff suffered injuries while skiing, and this lawsuit alleges that "Jay Peak negligently permitted dangerous jumps on its ski trails" and that as a consequence, he "suffered a collision with another skier." The problem is that plaintiff could not recall the incident at all, so he could not actually testify that another skier had hit him. His injuries were consistent with that theory of liability, though.

The Second Circuit (Calabresi, Straub and Pooler) notes that "a showing of cause-in-fact almost always involves circumstantial evidence." If the defendant does something risky or irresponsible, we can assume that the plaintiff's injuries resulted from that bad behavior. To avoid liability, the defendant has to show that something extraordinary happened to break the chain of causation.

For example, if a defendant proprietor has failed to install lights on its stairways after dark, and a person coming down the stairs in the dark of night falls and injures himself, one can fairly assume that the failure to illuminate the stairs caused the injury. And it will be up to the defendant to show that something extraordinary happened, say, that an animal scampered up the stairs and tripped the injured person instead. In essence, the greater the risk that the defendant’s conduct will result in the harm the plaintiff suffered, the more likely that a jury will be allowed to find that such conduct was the cause of that harm.

Other factors also affect liability. "Where one party has knowledge or access to information that renders that party better able than his adversary to explain what actually transpired, courts have tended to put the onus on that party to do so." Put another way, if the defendant is in a better position to explain what went wrong, then the plaintiff has a reduced burden in proving liability. Yet another factor in these cases is that "If an erroneous finding of causation is, in the law of the jurisdiction, more harmful than an erroneous finding of no causation, the requirements of circumstantial evidence and knowledge grow stronger. Conversely, where the law of the jurisdiction makes clear that an erroneous finding of no causation is more harmful, the requirements are diminished." In other words, we apply a balancing test: is it worth it to place a higher burden on the defendant in any particular case?

  This case boils down to that third factor. The Court writes:

Is this an area where, in Vermont, liability of ski operators to skiers is close to strict, so that whether negligence was the cause of the alleged injury is a matter that, in uncertainty, should be decided in favor of the skier? Or is this an area where the risk of injury, even in the presence of negligence on the part of the ski operator, is assumed primarily by the skier, so that the requirement of causation is fairly placed on the skier (unless either (a) the evidentiary link between the evidence of negligence and causation of the kind of harm that occurred is particularly strong, or (b) the defendant is in a distinctly better position to tell us what happened)? Or, finally, is Vermont relatively indifferent to error in one direction or the other, offering no reason to favor either the plaintiff or defendant?

The answer is bad for plaintiff in this case. "Vermont prefers to err on the side of finding no causation with respect to sport injuries like the one that here occurred. At the same time, however, the decision of whether the risk borne by the plaintiff in the sporting event was sufficiently 'obvious and necessary' as to be assumed generally forms a jury question under Vermont law." So it's a wash on this question. Which means "we are left to infer causation ... from only the placement of the ski jumps and the nature of Gemmink's injuries." Looking at things that way, plaintiff loses:

We cannot infer a causal link between Jay Peak’s assumed negligence in its maintenance of ski jumps and the injury incurred on the facts presented, and the plaintiff does not provide sufficient evidence to support a link  between his injuries and alleged theory of causation. Under these circumstances, the district court was clearly correct in its holding that the evidence adduced by Gemmink was not sufficient to raise a question for the jury.

Circuit declines en banc review in Turkmen detention case

A few months ago, the Court of Appeals said that a man could sue the United States Attorney General for constitutional violations resulting from his restrictive detention on account of his ethnic background. That 2-1 ruling is now the subject of a debate at the Court of Appeals, which has decided not to hear the case en banc.

The case is Turkmen v. Hasty. The order denying en banc review was issued on December 11. Turkmen is a case growing out of the government's response to the 9/11 attacks. As Judges Pooler and Wesley write in declining to the hear case again, "The Attorney General is alleged to have endorsed the restrictive detention of a number of men who were Arabs or Muslims or both—or those who appeared to fit those categories—that resulted from the fear and frenzy in greater New York following the 9/11 attacks in which suspicion was founded merely upon one’s faith, one’s appearance, or one’s native tongue."

En banc means the whole court. Three judges hear each case. Overall, 13 judges sit on the Court of Appeals (not including judges on senior status). If an issue is important enough, all 13 will re-hear a case. But that is a rare occurrence, usually happening maybe once per year. When en banc review is denied, the judges in dissent from that order usually complain that the Second Circuit does not grant en banc review enough.

Writing for the judges who want to take up this case again, Judge Jacobs says, "The panel decision raises questions of exceptional importance meriting further review. These concern our court’s faithful adherence to controlling Supreme Court precedent respecting (1) the narrow scope of Bivens actions, (2) the broad shield of qualified immunity, and (3) the pleading standard for plausible claims." The dissenters want the courts to defer more to the Executive Branch on matters of national security in a post-9/11 world, and question whether the Second Circuit in this case properly extended (the usually narrow) Bivens liability to this case. (Bivens says the federal government can be sued for constitutional violations in certain circumstances). The judges also want to reconsider whether the defendants are entitled to qualified immunity, which gets defendants off the hook if they are accused of violating rights that were not entirely clear at the time.

According to the dissenting judges, other Circuits have reach a contrary conclusion on whether Bivens can apply in a case like this. "The panel decision puts this court at odds not only with these sister circuits, but also with controlling Supreme Court precedent in the following three areas of law." This means the judge are inviting the government to seek Supreme Court review. And I sure they will do so.

The State and City law prohibits discrimination on the basis of perceived sexual orientation

The Court of Appeals rules that a plaintiff may have a claim under the New York State and New York City Human Rights Laws that his former employer discriminated against him because of his perceived sexual orientation. Co-workers thought plaintiff was gay, and they ridiculed him over this and subjected him to obscene and lewd remarks.

The case is Dingle v. Bimbo Bakeries, a summary order decided on December 16. Dingle handles this appeal pro se. The Court of Appeals (Pooler, Calabresi and Lynch) notes that while Title VII offers no such protections, the State and City laws "expressly protect against discrimination based on both perceived as well as actual sexual orientation." This means that "Dingle's actual sexual orientation is not at issue; he is protected by these provisions if he suffered abuse because others believed, even incorrectly, that he is gay." The Court of Appeals cites a Southern District of New York ruling for this proposition, which means the Second Circuit has yet to squarely address this issue. While it does so here, it's in an summary order with limited precedential value. Still, as the statutes protect plaintiff from this kind of discrimination, we don't need a Court of Appeals ruling to say this; the statutory language is good enough.

For some reason, the Second Circuit does not actually rule in Dingle's favor. After reviewing the allegations in plaintiff's complaint and summarizing the state of the law in this area, the Court sends the case back to the district court "to consider in the first instance whether Dingle alleged a plausible perceived sexual orientation hostile work environment claim and retaliation claim under the NYSHRL and NYCHRL. As part of its consideration of this issue, we urge the district court to appoint counsel for Dingle."

Dingle did a good enough job to win his appeal against a huge management-side law firm, and he will probably receive a lawyer to take on the case from this point forward. And, yes, that is not a typo. The name of the defendant is Bimbo Bakeries USA. They sell Entenmann's food products.

Free speech, kind of ...

This public employee First Amendment case is interesting because the plaintiff actually engaged in protected speech (most do not under the Supreme Court's Garcetti ruling) but the City of Buffalo was allowed to discipline him anyway because his free speech was too disruptive.

The case is Delano v. City of Buffalo, a summary order decided on December 17. If a public employee speaks as a citizen and not as a public employee, then the First Amendment protects him from retaliation. That's the rule in Garcetti v. Ceballos, which the Supreme Court decided nearly 10 years ago. That rule has killed off many a First Amendment retaliation claim, as it's hard to show that a public employee spoke as a citizen and not pursuant to his official job duties. Apart from Garcetti, the Supreme Court also recognizes that management can discipline free speech people if the speech had the potential to disrupt the workplace. That's the rule in Pickering v. Board of Education, a Supreme Court ruling from 1968.

Plaintiff is a highly-decorated police officer who spoke publicly about the police department's investigation into the killing of a child. This is a matter of great public interest. But plaintiff also violated workplace directives in speaking out. The Court of Appeals (Jacobs, Leval and Calabresi) notes that "the value in Delano’s speech is admittedly strong. He spoke out about what he believes is an injustice in the investigation of what may have been the murder of a young girl. But the defendant’s interest is stronger. [Police Commissioner] Gipson had his own duty to ensure that he maintained a 'significant degree of control over [his] employees’ words and actions; without it, there would be little chance for the efficient provision of public services.'”

See that language about efficient public services? That's what Pickering is all about. The speech has value, but there is also a value in the efficient management of a public office. This is why plaintiff loses the case. Again, the Court of Appeals:

Here we have little trouble deciding that it was reasonable for defendants to predict that Delano’s conduct would be disruptive. Delano violated direct orders from superiors and other rules and regulations. He was ordered not to speak to the media or to investigate the Girard case. Yet he continued to conduct an independent investigation outside his regularly assigned duties, and he spoke to the media, supplying departmental photographs and videos to the press in violation of regulations. As a result, defendants were reasonable in concluding that the disruption had or could have had “a detrimental impact on close working relationships,” “imped[ed] the performance” of Delano’s
duties, or “interfere[d] with the regular operation of the” police department.

Plaintiffs do not always win under the City Human Rights Law

The New York City Human Rights Law is regarded as a "pro-plaintiff" civil rights law, mostly because it reaches further than federal and state law. In the employment discrimination context, the First Department has been issuing rulings that make it clear that the City law should be liberally construed. But not everyone wins under the City law.

The case is Cadet-Legros v. New York University Hospital, issued on December 8. Plaintiff is a black woman who worked at the Hospital. Over time, she received a series of warnings, then final warnings, before management terminated her employment. Plaintiff then sued for racial discrimination, claiming the employer's articulated reasons for her termination were pretextual and that decisionmakers had made racially-coded statements. The First Department disagrees, and the case is dismissed. But along the way, the Court offers more guidance on how this law works, and how it differs from federal and state law.

In cases like this, "the court should focus on whether the defendant has sufficiently met its burden, as the moving party, of showing that, based on the evidence before the court and drawing all reasonable inferences in plaintiff's favor, no jury could find defendant liable under any of the evidentiary routes [applicable to discrimination cases]." One way for a plaintiff to defeat summary judgment is by offering some evidence that at least one of the reasons proffered by defendant is false, misleading, or incomplete." If the plaintiff can accomplish this, "such evidence of pretext should in almost every case indicate to the court that a motion for summary judgment must be denied."

The Court goes on: "This is because once a plaintiff introduces 'pretext' evidence, 'a host of determinations properly made only by a jury come into play, such as whether a false[, misleading, or incomplete] explanation constitutes evidence of consciousness of guilt, an attempt to cover up the alleged discriminatory conduct, or an improper discriminatory motive coexisting with other legitimate reasons.' This formulation, founded on the uniquely broad and remedial purposes of the City HRL, provides the framework for evaluating the sufficiency of evidence, and differs significantly from federal civil rights law (by assigning, for example, more weight to the possibility that a pretextual justification reflects consciousness of guilt)."

A few points. First, unlike the Second Circuit's interpretation of Title VII, the City law allows the plaintiff to reach a jury on pretext alone. In other words, if plaintiff belongs to a protected class and can show the employer offered a bogus reason for her discharge, that's enough to permit a finding of discriminatory intent. Also, even if the employer offers a variety of reasons, plaintiff's evidence that only one of those reasons is false is enough to win the case. This goes much further than most federal courts in Title VII cases.

In a footnote, the First Department also says that "animus" is not needed for plaintiff to win the case. Animus would take the form of hatred or general dislike of people in plaintiff's protected class, such as age. "An 'animus' requirement is not supported by [the City law's] statutory language or by legislative history. Whether a defendant is motivated by animus, or misguided benevolence, or some other consideration, the conduct in question is illegal so long as it was (at least in part) because of protected class status and operated to the disadvantage of the plaintiff. Thus, for example, a company vice president may think fondly of older employees even as that vice president is explaining that it is 'time for new blood'; that fondness does not take away from the fact that the phrase suggests that it is time for older workers to move on and that any decision to fire older workers may have been based on their age."

These broad principles don't help plaintiff in this case. It accepts that plaintiff's performance was deficient and that plaintiff could not poke holes in that factual argument:

Defendant submitted evidence -- essentially undisputed by plaintiff -- of a legitimate, nondiscriminatory reason for firing plaintiff. As the motion court explained, defendant had been warning plaintiff for years that her conduct was unacceptable. This conduct included "insubordination, disrespect of her supervisors, and failure to communicate." The record contains written documentation of multiple warnings to plaintiff about her conduct, and documentation, including emails from plaintiff, that illustrate an ongoing struggle, apparently unrelated to race, as to whether and from whom plaintiff was going to accept direction. Indeed, one of the most striking things about the record is that it conveys an unusual willingness on defendant's part to continue working with an employee who was repeatedly insubordinate and disruptive of the workplace. 

Plaintiff did argue that a supervisor made a racial comment in saying about her, 'A leopard does not change its spots." This phrase actually has a racist history, but it dates to 1902, and the First Department does not think it has that same meaning today. Today's meaning, the Court says, simply is that someone's pattern of behavior will not change. Plaintiff also argued that another word, "tirade," has a racial meaning. The Court rejects that argument, too, finding instead that it referred to plaintiff's outbursts.

Defamation claims must satisfy Iqbal pleading standards

The Iqbal pleading requirements that the Supreme Court set forth in 2009 affect every civil case. This case applies Iqbal to defamation actions. The Second Circuit says the plaintiff has not plead that defendants acted with actual malice in defaming him. This means the case is over before it starts.

The case is Biro v. Conde Nast, decided on December 8. The article in question is at this link. Here is how the Court of Appeals sets up the case:

This defamation suit involves a July 2010 article (the “Article”) written by journalist David Grann and published by The New Yorker. The Article focused on Biro, a controversial figure known in the art world for using fingerprint analysis to authenticate art in an effort to insert a measure of objectivity into a previously subjective process. The Article raised questions about the trustworthiness of Biro’s methods and his authentication of paintings. Among other things, the Article contained interviews of various individuals critical of Biro, and it suggested that Biro stood to profit from some of his more dubious authentications. To say the  least, we agree with the District Court’s observation that “[t]here is little question that a reader may walk away from the Article with a negative impression of Biro.”

Limited purpose public figure plaintiffs like this guy have to show the defamation was made with actual malice, or knowledge that the statements were false or with reckless disregard as to their falsity. The Supreme Court told us that in 1964. Malice must be alleged plausibly under Rule 8 of the Federal Rules of Civil Procedure. This is the first time the Second Circuit (Lohier, Jacobs and Crawford [D.J.]) has reached this holding. No longer can the plaintiff tell the court he can prove malice with discovery; now, he has to allege facts that plausibly point to actual malice. This makes it much harder for the case to break out of the gate.

Under these new rules, plaintiff has not met his burden. The Complaint does not "allege facts that would have prompted the New Yorker defendants to question the reliability of any of the named or unnamed sources at the time the Article was published." In addition, "The failure of the New Yorker defendants to correct a statement unrelated to the allegedly defamatory statements in light of events that occurred after publication is similarly insufficient to render the allegation of actual malice plausible." 

No qualified immunity in jail assault case

If you read this blog on a regular basis, you know that I write about qualified immunity all the time. Any case against a public official, including police officers, for money has a potential qualified immunity defense, which says the officer acted in good faith or did not violate clearly established law. If that motion in the district court is denied, the defendant take up an appeal to the Court of Appeals right away, an exception to the rule against piecemeal appeals. This is one of those cases, but the appeal fails.

The case is Hyman v. Abrams, a summary order decided on November 16. Plaintiff was in the County jail for God-knows-what. He claims that sheriff's deputies and officers assaulted him. Abrams filed a motion to dismiss on qualified immunity grounds. That motion was denied, and Abrams takes up an appeal. Here's the basic rule when defendants seek qualified immunity under Rule 12:

Although, “usually, the defense of qualified immunity cannot support the grant of a Rule 12(b)(6) motion for failure to state a claim upon which relief can be granted,” a district court may grant a Rule 12(b)(6) motion on the ground of qualified immunity if “the facts supporting the defense appear on the face of the complaint.”

 Not here. The complaint alleges that Abrams assaulted plaintiff without provocation. Plaintiff alleges, "[W]ithout warning, Defendant Abrams grabbed the Plaintiff’s shoulder and shoved him. As the Plaintiff pulled away, he told the Defendant that he did not need to shove him. This apparently infuriated Defendant Abrams, who then attacked the handcuffed Plaintiff by punching him in his right eye.” There is no way that Abrams can get the case dismissed at this early stage, not with an allegation like this. If there is actually merit to the case and discovery shows that plaintiff was not assaulted without provocation, then Abrams can file a motion for summary judgment at the close of discovery. But that is months and months from now. For now, Abrams has to defend the case on the merits.