Saturday, May 29, 2010

Legal Doctrine-American Tort Law and the FEDS

Hey once was a lawyer, and inactive in VA Bar since retiring from FEMA in October 1999, but still paying bar dues until age 70 under VA BAR rules. So this is NOT a legal opinion.

American tort law controls not just the development of the law in the 50 respective states but also federal tort causes of actions for money damages because federal case law relies on the individual tort law of the 50 states. Federal law also relies on state law to determine property and interests in property. In other words there is NO federal tort or property law as far as legal doctrine. Civil and criminal liability including damages and fines are based on statutory enactments but even those often turn on STATE law. Prime example of course is that the Internal Revenue Code often impacts transfers of property but defining what that property is by IRS turns on STATE law. Complicated yes but that is the system.

The recent OIL SPILL has raised issues of compensation. Will the feds use any common law theories to recover or any of the plaintiffs? Well unknow what theories but recently the STATE of IOWA Supreme Court allowed a trial court to proceed in claims for money damages against a municaplity for road work that aggravated flooding. An active program of subrogation under the NFIP [National Flood Insurance Program] existed from 1978 to 1991 including often the waiving of NFIP subrogation rights in order to encourage flood plain management as part of the recovery against flood damage sources.
That stated what is the basic tort regime in the US assuming no strict liability. That doctrine existed from the creation of the concept at common law that some activities were so dangerous as to require strict liability. In most if not all states now comparative negligence has caused the concept of strict liability to fall by the wayside. In LA for example strict liability is incurred according to my information only by blasting and pile driving.
And in passing I should state that the statutory claimancy for the oil spills to the extent I have knowledge are completely inadquate for recovery of damages even by the FEDS under the CWA (So-called Clean Water Act, enacted in 1972 as the Water Pollution and Congrol Act) and the Oil Spill Liability concepts created under the Oil Pollution Act of 1990 previously discussed on this blog. There may be however, common law remedies that courts could still look to and looking like they will be explored by the courts over the next two decades.
So back to the tort regime in the US and note that efforts to change that underlying regime over three decades by the insurance business and corporations led by Victor Swartz largely failed but probably did have the indirect impact of levening the jury awards for torts often limited on appeal in any event.

So here is the system now in the US.

First there must be a "standard of care" that can be identified. This can be complicated but as an example at one time when a member of the medical profession was sued for malpractice the standard of care was the standard in that particular community. Now the standard of care for the medical profession is a national standard led by the development of MEDICAL Library of NIH and other things all readily accessed and mandatory continuing educational requirements. What the standard of care is in oil spills is unknown to me but there also is case law indicating the CWA creates by its statutory scheme a premptive concept under the Commerce Clause of the Constitution but not sure even how that plays out without detailed examination of US case law.
The second step in the tort regime in the US is to determine whether in fact there has been an injury. Sounds simple, not really.
Third, whether the breech of the Standard of Care caused the injury. And also determining "but for" the breech of the standard there would be no injury!
Fourth, whether the first three categories were met and in fact there was harm caused.
Fifth, how much harmed was caused (measure of damages) and therefore how much can be recovered.

If this process seems difficult to understand it is. Chain of causation under the so-call Palzgraff doctrine really is not the test of events and led to arcanary in the tort recovery process for over half of decade but ultimately proved a fool's errand to some extent. IN the NFIP for example, perhaps erroneously, claims for flood damages ignore causation such as did the flooding river knock down the tree which knockned down the house. Note the coverage for damages "by and from flood" in the NFIP policy coverage language.

Hoping this explains to some extent why hundreds of lawyers seem to be lining up to spend the rest of their legal lives (and maybe actual lives) on this oil spill event. Note that the FEDS and citizens are largely precluded from suing the states for money damages under the 11th Amendment. That limitation has yet to be fully explored by the courts of the US, IMO.