17 November 2017 – Torts in the News

17 November 2017

Here is some news about torts that you may have missed:

1.Time Magazine reports on a heartbreaking case: 

“An 87-Year-Old Nun Said She Was Raped in Her Nursing Home. Here’s Why She Couldn’t Sue.”

An “87-year-old Catholic nun told a staffer at Chateau Vestavia, an assisted-living facility near Birmingham, Ala., that she’d been raped in her bed the night before.

Police and medical records paint a disturbing scene. Police investigators found two semen stains in [Sister Irene] Morissette’s bed and blood on the “inside rear area” of her green-and-pink-flowered pajama bottoms, which had been shoved underneath the mattress. A sexual-assault examiner at a local hospital reported that Morissette had sustained multiple abrasions inside and outside her vaginal canal, wounds that could be consistent with rape. “The genital exam was very painful for the client,” the examiner’s report said.”

But guess what?  Sister Morissette couldn’t take her case to court:

Under normal circumstances, justice would be rendered for Morissette, and society, in a court trial. There would be a public hearing in which a judge or jury would weigh evidence, determine guilt or innocence and levy appropriate penalties through the due process of law. But Morissette’s case … never made it to court. After a criminal investigation by local police failed to produce enough evidence to identify a suspect in the alleged attack, Morissette’s family tried to file a civil suit against Chateau Vestavia, alleging everything from negligence to outrageous conduct. They felt there was plenty of evidence to back up those charges. The semen on the nun’s bedsheets was enough to suggest sexual contact, and Morissette, because of her dementia, could not legally consent to any sexual act. But none of it would see the light of day in a courtroom.

Back in 2011, when Morissette first came to Chateau Vestavia, she had signed the facility’s standard admissions contract. Buried in pages of terms and conditions was what is known as a pre-dispute binding arbitration agreement. By signing it, the elderly nun gave up her Seventh Amendment right to trial by jury and any right to bring a civil suit against Chateau Vestavia or its then parent company, Trinity Lifestyles Management, for any reason and at any time in the future.

More than a million other elderly Americans may have waived away their rights in the same way Morissette did.

Here’s why that is a problem:

While no organization tracks the precise number of facilities that ask residents to sign pre-dispute arbitration agreements, several experts on arbitration told TIME that roughly half the 2.5 million Americans in nursing homes or senior living centers are likely bound by them. Legal advocates who work on behalf of seniors estimate that as many as 90% of large nursing-home chains in the U.S. now include arbitration agreements in their admissions contracts.

The number is likely to increase in the coming years. In June, the Trump Administration proposed a new rule that would allow nursing homes to require residents to sign arbitration agreements as a condition of admission to a facility: either sign it or find somewhere else to live. With the number of elderly Americans projected to double over the next 30 years, mandatory arbitration clauses in nursing homes will likely affect millions of people. Which means some may find themselves in the same private system of dispute resolution that Morissette and her family fell into.

With arbitration, there is no courthouse, no judge and no jury. There are no requirements to follow state or federal rules on procedure, and effectively no appeals process.

Arbitration was originally designed under U.S. law as a tool for businesses to resolve disputes quickly, without involving the courts. But over the past 30 years, it has expanded. Beginning in the Reagan era, judges decided that the 1925 Federal Arbitration Act didn’t apply just to corporate contracts but rather to contracts of any kind–including those between businesses and their customers, doctors and their patients, and employers and their employees. Since at least as far back as 1997, nursing homes in the U.S. have included pre-dispute arbitration clauses in their admissions contract, according to a 2009 study by the American Health Care Association (AHCA), an industry lobbying organization. Now asking the elderly to sign arbitration agreements has become standard industry practice.

To supporters, including powerful business groups like the U.S. Chamber of Commerce, this is a boon. Arbitration, after all, offers a system of dispute resolution that yields fewer cases and can result in smaller payouts. Long-term-care claims subject to arbitration settle for 7% lower total cost to the business and three months sooner than claims resolved without arbitration, according to a 2015 analysis by Aon Risk Solutions. Critics paint a grimmer picture. They say arbitration agreements impede fair trials, limit workers’ bargaining power and cripple class actions, making it nearly impossible for customers to hold companies accountable.

People who sign arbitration agreements often don’t even realize what they’ve done. A 2015 federal government study found that less than 7% of people who’d signed an arbitration agreement as part of a credit-card contract understood that it meant they forfeited their right to sue the company in the future. That same year, researchers at St. John’s University School of Law asked nearly 700 people to read a seven-page contract with an arbitration clause containing a class-action waiver, highlighted in bold, capital letters. Less than 9% of respondents correctly described what it did. The challenge of understanding the fine print is even more acute at nursing homes, where about half of residents have dementia, according to the National Center for Health Statistics. Checking into a nursing home is “one of the hardest, most emotional times in anyone’s life,” says Sarah Rooney, a director at the American Association for Justice, a plaintiff-litigation advocacy group. “And at that moment, you say, ‘Oh, and initial here to waive your constitutional protection.’ No problem.”

In September 2016, the Obama Administration issued a rule barring nursing homes from asking residents or their guardians to cede their right to a civil suit prior to a dispute. The AHCA and other long-term-care groups sued, claiming the new rule amounted to federal overreach. The industry won. In November 2016, a federal judge in Mississippi preliminarily blocked enforcement of the Obama-era rule. Seven months later, the Trump Administration proposed a new one that was even more to the industry’s liking. Not only can nursing homes include mandatory pre-dispute arbitration clauses, they can turn away prospective residents if they refuse to sign…. [C]ritics, including Kelly Bagby of AARP Foundation Litigation, see it as an “unmitigated disaster.” Finding another home is not so easy, AARP argues: for one thing, nursing-home residents often need to be within driving distance to family and can’t easily shop between facilities.

The arbitrator found that Sister Irene and her family had not proved the case.  She lost.  And was billed three thousand dollars for the cost of the arbitration.

Edwards, H. “An 87-Year-Old Nun Said She Was Raped in Her Nursing Home. Here’s Why She Couldn’t Sue,”  Time, November 16, 2017;


2.The Connecticut Supreme Court recently heard arguments on the Sandy Hook mass murder case.

Twenty-six people, including 20 children, were murdered in in Sandy Hook, Connecticut in 2012, which prompted a debate on gun safety.  The murders also prompted a lawsuit, in which several of the families sued claiming that “the companies that manufactured and sold the military-style assault rifle used by the gunman bear responsibility for the attack.”  That lawsuit was dismissed by the trial judge, because of Federal legislation which protects firearms manufacturers from liability for murders committed with guns;  but on Tuesday, November 14, 2017, the Connecticut Supreme Court heard arguments on why that lawsuit should be allowed to proceed.

The plaintiffs are proceeding on a largely untested theory called negligent entrustment.  In essence, this is a claim that the rifle is essentially a military weapon, and the the manufacturer was negligent in permitting it to be sold (or entrusted) to an untrained, inexperienced civilian.

The lawsuit, brought by the families of nine people who were killed and one teacher who was shot and survived, faces significant legal hurdles. It was elevated to the Connecticut Supreme Court after a lower court judge dismissed the lawsuit last year after she found that the claims it raised fell ‘squarely within the broad immunity’ provided by federal law.

In 2005, Congress passed the Protection of Lawful Commerce in Arms Act, which sharply restricted lawsuits against gun sellers and makers by granting industrywide immunity from blame when one of their products is used in a crime. Lawmakers behind the measure cited a need to foil what they described as predatory and politically driven litigation. But the law does allow exceptions for sale and marketing practices that violate state or federal laws and instances of so-called negligent entrustment, in which a gun is carelessly given or sold to a person posing a high risk of misusing it.

Legal experts said negligent entrustment has been cited with some success in lawsuits against gun dealers, but the Newtown families are for the first time broadening the scope to include a weapon’s manufacturer, in this case, Remington, which, along with a wholesaler and a local retailer, are all named in the suit. The companies’ lawyers declined to comment.

Storace, R., “Sandy Hook Families, Gunmakers Present Arguments to High Court, “  Connecticut Law Tribune, November 14, 2017; https://www.law.com/

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