Category Archives: torts

Boyle v. United Technologies Corp.

487 U. S. 500

June 27, 1988

A helicopter manufactured by a military contractor crashed, and the pilot died due to design flaws. The pilot’s family wanted to bring a tort action against the manufacturer under Virginia law. The manufacturer contended that the Virginia law was preempted, and that it had immunity from any tort suit because of its status as a government contractor. This government contractor defense had never been explicitly established by the Supreme Court before, and it was now their job to figure out if it existed or not.

The Court ruled 5-4 that the manufacturer was protected by government contractor immunity. Scalia began by explaining that in a few legal areas of “uniquely federal interests” the courts had the ability to fashion federal common law that could preempt state law. Scalia said that the efficient operation of federal contracts was of sufficient importance to render it subject to the courts common lawmaking power. State laws could be preempted if their was a significant conflict between them and the government’s ability to cheaply contract.

A precise formulation of the immunity and range of preemption was needed. The Federal Tort Claims Act exempted from liability all discretionary functions of government employees. Therefore, Scalia reasoned that government contractors were immune from state laws if they manufactured products that reflected the specifications given to them by the government. The pilots family said that the lower court had not used this precise formulation, but Scalia responded that a jury would probably not rule differently if the lower court had.

Brennan, joined by Marshall and Blackmun, was outraged. The majority violated Erie by fashioning common law that was not necessary at all. The burdens suffered by the government when its contractors got sued were minimal, and the losses to those victimized by defective product designs was great. Brennan said that precedents never intimated that contractors ought to have immunity, and instead suggested that they were perfectly liable to state law claims. He argued that the FTCA had no real relevance to the issue at hand. Simply put, the majority was creating immunity without any green light from Congress, and without any compelling policy reasons to do so. Stevens, in a short dissent of his own, also argued that any contractor immunity should be imposed by Congress and not the courts.

I know I must sound like a broken record by now, but I’ll say it yet again: I hate extensive tort liability, but I hate governmental immunity even more. This decision is very frustrating. All term long, there were less than ten occasions when the solid bloc of 5 conservatives beat the solid bloc of 4 liberals. Why did this stupid ruling have to be one of the rare wins, instead of Mills or Liljeberg?


Sheridan v. United States

487 U. S. 392

June 24, 1988

Some soldiers failed to keep control of another soldier who was drunk and had a gun. He drunkenly shot some people in a car. The injured people in the car sued. The Federal Tort Claim Act (FTCA) barred torts against government agents where the claim arose out of assault and battery. The government claimed that the drunken soldier’s assault and battery was the fount of the claim, so it had to fail, even if the other soldiers had acted negligently. The injured people claimed that the assailant was not acting within the scope of his employment, so the only true government action did in fact arise from negligence.

The Court ruled 6-3 that the FTCA did not bar the tort claim. Stevens argued that a negligence claim against the government would not “arise” from assault and battery if the assailant had not been connected with the government at all. Because the assailant was not acting within the scope of his employment, there seemed no reason to distinguish the two cases merely due to the accident that the assailant happened to be on the government payroll. Thus, if negligence was the only alleged government action, a FTCA claim could go forward even if it incidentally involved assault and battery that was not government action.

In a concurrence, White confessed that he had once joined an opinion which suggested the opposite of what the majority ruled. Nonetheless, White gamely admitted that he had changed his mind. Kennedy, concurring in judgment, worried that the majority was on the road to obliterating the assault and battery exception from the FTCA entirely, but felt that the facts of the current case warranted allowing the claim to proceed. He also faulted the dissent for its contention that all claims involving assault in their fact patterns would have to be barred.

O’Connor, joined by Rehnquist and Scalia, dissented. She contended that when assault and battery were the direct cause of the injuries complained of, the FTCA flatly banned any claims. She charged the majority with both ignoring and twisting precedents to support its conclusion, and also argued that legislative history supported her own point of view.

I’ve stated my views on these kinds of cases a few times already, but I will do so again. I really hate torts and broad tort liability. But, even so, I hate government immunity even more. Thus, I can only cheer on the majority, and even congratulate Justice White for owning up to a change of heart.

Berkovitz v. United States

486 U. S. 531

June 13, 1988

A baby contracted polio after being given a faulty vaccine dose. His parents tried to sue the government for licensing the manufacturer, and for approving the lot with the faulty dose. The question was whether these government actions were amenable to suit under the Federal Tort Claims Act. The government argued that its actions were discretionary, and thus immune under the FTCA.

Marshall, writing for a unanimous Court, interpreted the breadth of discretionary functions narrowly. Actions were only discretionary if there was a permissible exercise of policy judgment. The Berkovitz family charged that the government had not followed the plain text of several regulations when they licensed the vaccine manufacturer. Marshall agreed that the regulations imposed affirmative duties which were in no way discretionary. Turning to approval of the lot, Marshall found no regulations which imposed affirmative duties. Nonetheless, he said that liability could still be imposed if the government agency had standard internal policies which they did not follow, as the Berkovitz family charged. A remand was necessary to determine all this for sure.

As I’ve expressed before, I usually hate rulings that expand tort liability, but I hate governmental immunity even more, so I’m quite pleased with this ruling.

Monessen Southwestern R. Co. v. Morgan

486 U. S. 330

June 6, 1988

A railroad worker was permanently injured, allegedly due to the railroad’s negligence. He brought a federal action in Pennsylvania state court to recover lost future earnings. The court did two questionable things, the first based on a state law, and the second based on a state judicial ruling – first, it awarded ‘prejudgment interest,’ which gave the worker interest on damages that accrued prior to the verdict. Second, it instructed the jury not to find the present value of his lost future earnings, but the nominal value of it. Both these things were challenged as inconsistent with the federal law that formed the basis of the suit.

The Court ruled 7-2 that prejudgment interest could not be awarded. White said that state laws allowing prejudgment interest were substantial rules that could not be countenanced unless the federal law clearly allowed them. At the time the federal law was enacted, White contended, prejudgment interest was seen as suspect by most courts. Therefore, it could be presumed that Congress did not intend the law to allow prejudgment interest damages when it was passed. White also noted that Congress had ample opportunity in subsequent years to clearly include prejudgment interest within the law’s scope, but declined to do so.

Turning to the jury instruction question, the Court ruled unanimously that the Pennsylvania court had erred in instructing the jurors to merely find the nominal value. Precedents held that present value was the correct value to find for future earnings, and that the jury needed some freedom in determining the best formula for that calculation. By assuring the jury that the nominal value was legally presumed to be the same as the present value, the judge took this freedom away from the jury. O’Connor, joined by Rehnquist, only concurred in judgment on this issue. She felt that a judge could appropriately suggest that jurors compute nominal value if the judge had carefully studied the economics before doing so.

Blackmun, joined by Marshall, dissented from the prejudgment interest holding. He said the federal law should be interpreted liberally, and with an eye on its purpose of compensating injured workers with damages. Blackmun argued that prejudgment interest was an integral component of making the plaintiff whole, and that the alleged judicial aversion to interest at the time of the law’s passage was overblown. Finally, he felt prejudgment interest was especially appropriate given the rule that the present value should be found for future earnings – interest on pre-verdict lost earnings was simply the other side of that coin.

Once again, as in K mart v. Cartier, my brain is too taxed just from trying to understand this stupid decision to have much of an opinion about its soundness.

Goodyear Atomic Corp. v. Miller

486 U. S. 174

May 23, 1988

At a federal government owned nuclear power plant, an employee got injured due to an unsafe scaffolding that violated Ohio regulations. Although established preemption law exempted federally owned power plants from all state regulations, the employee wanted a worker’s compensation bonus that Ohio provided when the injury was directly caused by violation of a state regulation. The question was whether this bonus payment was preempted too.

The Court ruled 6-2 that this bonus was not preempted (Kennedy did not participate). Marshall first brushed aside a stupid justiciability challenge which questioned whether the lower court ruling was final. Turning to the merits, Marshall admitted that all state regulation whatsoever was preempted unless Congress gave “clear and unambiguous” blessing to extra state regulation. In this case, Congress did, in the form of a law that allowed all worker’s compensation schemes to continue unabated. Marshall stressed that different states had all kinds of zany and strange worker’s compensation rules at the time this law was passed. Ohio’s bonus for a workplace violating a regulation certainly qualified, even if the underlying safety regulation itself could not be imposed against the power plant.

White, joined by O’Connor, dissented. He saw the Ohio bonus rule as essentially a backdoor to the state imposing all its power plant regulations. He did not want the states doing indirectly what they could not do directly. Although there was the federal statute which allowed worker’s compensation schemes to operate on federal property, White did not think it unambiguously extended to weird rules like the Ohio bonus one. Far more illustrative of Congressional intent, he thought, was that body’s continuing reluctance to subject federally owned plants to direct state safety regulation.

Cases like this are the reason why being a Supreme Court Justice is hard. There’s really no one good answer here. Both Marshall and White have perfectly reasonable and defensible arguments. I’m at a loss to say which is more right, and which is more wrong.

Westfall v. Erwin

484 U. S. 292

January 13, 1988

William Erwin was working at an Army Depot when he he came into contact with some improperly stored soda ash, and suffered horrific injuries. When Erwin attempted to sue the Depot supervisors, they claimed tort immunity as government officials. Erwin argued that such low level government officials only had immunity when they exercised discretionary functions.

Unanimously, the Supreme Court agreed. Marshall reiterated the importance of government officials being shielded from vexatious litigation, but acknowledged the sad tradeoff that meritorious claims were also barred. He held that only discretionary actions should be shielded, because they offered the most potential for frivolous suits. Marshall also rejected the claim that all actions not specifically mandated by statute were discretionary, and said that the term ‘discretionary’ should be interpreted in a more narrow fashion.

As I said in my year-end review of the previous term, it’s extremely hard to get me to root for expanding tort liability. But if this expansion comes at the expense of government immunity, I am 100% for it. As Marshall succinctly put it: “absolute immunity contravenes the basic tenet that individuals be held accountable for their wrongful conduct.” Those simple words of truth cannot be repeated often enough. I expect this case to be a strong contender for this year’s Deuteronomy 16:20 Prize.

Welch v. Texas Dept. of Highways and Public Transp.

483 U. S. 468

June 25, 1987

Jean Welch, while working for the State of Texas, was injured on a ferry dock. She tried to sue Texas in admiralty law under a federal tort claim statute called the Jones Act. Texas protested that being sued violated the state’s sovereign immunity under the Eleventh Amendment. The Supreme Court had decided a century ago inĀ Hans that sovereign immunity could protect a state from being sued by its own citizen, and more recent decisions had suggested that Congress could not create a statutory right to sue a state unless the law provided this expressly. The Jones Act had no such express provision.

The Court ruled against Welch 5-4, with Powell writing. After backing Texas for the reasons just stated, he turned to the dissent’s arguments that the Eleventh Amendment was misinterpreted, and that Hans was wrongly decided. Powell said that, at worst, the historical evidence of sovereign immunity’s original scope was ambiguous, and stare decisis foreclosed the possibility of overruling Hans on the basis of some inconclusive historical arguments. In response to the dissent’s claim that suing in admiralty was outside of the Amendment’s purview, Powell again showed that the history did not unequivocally support such a reading. The majority stressed that Welch could still sue state officials, and that sovereign immunity served crucial federalism concerns.

White’s concurrence emphasized that the Jones Act did indeed give Welch some alternate relief. Scalia concurred in judgment. He creatively argued that even if the dissent was right about Hans, Congress had passed the Jones Act on the assumption that Hans was correct, and thus, the law couldn’t possibly abrogate sovereign immunity. Brennan’s dissent, joined by Marshall, Blackmun, and Stevens, first said that admiralty was never part of state sovereign immunity. Lots of early case law backed him up, or so he claimed. Next, Brennan said that the Eleventh Amendment, by its literal text, only protected states against suits from non-citizens of that state. Again, history was his great sword of argumentation. Out of his grab bag, Brennan also pulled the claims that the Eleventh Amendment only applied to cases in diversity, and that the majority improperly discounted a recent Warren Court precedent.

This is one of those fun cases where everyone on the Court – left, right, and center – suddenly becomes a dyed-in-the-wool originalist. I don’t really know who’s history is better, and given the ambiguity I have to side with Powell due to the stare decisis concerns. I particularly liked Scalia’s elegant argument. All this in spite of the fact that I personally disagree with the concept of sovereign immunity. The Eleventh Amendment is one the USA could do without. No one, not even a state, should be above the law, and above accountability.

United States v. Johnson

481 U. S. 681

May 18, 1987

During a rescue mission in a helicopter, a member of the Coast Guard named Horton Winfield Johnson died due to negligence of FAA air traffic controllers. Although the Federal Tort Claims Act (FTCA) ostensibly gave Johnson’s family the right to sue the FAA for negligence, a Supreme Court case from 1950 called Feres disallowed claims on behalf of members of the military who were acting within the scope of their service. The question in this case was whether the Feres rule applied when the guilty government party was not another member in the military, but a civilian such as an air traffic controller.

The Court ruled 5-4 that the identity of the negligent actor did not matter, and that recovery was always barred when the injured party was a member of the military on duty. Writing for the majority, Powell looked at the rationales for the Feres decision. First, the federal nature of the military meant that tort remedies, which were based on state law, ought to be inappropriate. Second, federal law provided lots of other benefits and compensation to the families of military members who die on duty. Third, allowing military members to bring tort claims would undermine the effectiveness and functionality of the military. Because all of these rationales applied regardless of the negligent actor’s identity, the Court held that Feres barred an FTCA remedy for Johnson’s family.

Scalia, joined by Brennan, Marshall, and Stevens, dissented. He said that Feres was wrongly decided. The plain text of the FTCA unarguably allowed those in the military to bring tort claims while on duty. Not content to rest there, Scalia went through all the rationales offered in the Feres decision for its rule, and made a devastating case that every single one of them was weak, and not good public policy. He showed that the Feres rule was a horrible one, led to all sorts of inconsistencies in tort law, and fundamentally ignored the will of Congress. Scalia was dead on, and it’s shameful that five members of the Court chose to defer to precedent.

As a general rule, I dislike tort actions. They absolutely pulsate with greed and vindictiveness. Nonetheless, I am shocked and appalled by this decision. Nothing at all gives the Supreme Court the right to ignore the choices of Congress, precedent or no precedent. I’m reminded of the time in Matthew 15 when Jesus rebukes the Pharisees for nullifying the commandments of God in favor of their own traditions. Blind adherence to precedent is exactly like that. While this is not the worst decision of the 1986-1987 term morally, there’s a good case to be made that it’s the most lawless.