Green v. Pro Football Inc. d/b/a Washington Redskins et al.

As some of you may have heard, former National Football League linebacker Barrett Green recently filed a lawsuit against the Washington Redskins, their former defensive coach Gregg Williams, and former Redskins tight end Robert Royal.

In this lawsuit, Green brings a battery claim against Royal, a resulting vicarious liability claim against the Redskins, and negligence claims against all three defendants. These claims derive from a career-ending knee injury that Green, then a member of the New York Giants, suffered as a result of a hit by Royal in a 2004 game.

According to the complaint, Williams “instructed and/or encouraged” Royal to injure Green as part of an “bounty” program, whereby “Defendant Redskin players were encouraged to intentionally injure opponents so that they would be forced to leave the game.”

I haven’t seen a copy of the complaint elsewhere, so I thought I’d post it here. It’s an interesting case. Though I am certainly no expert in Maryland law, I tend to agree with Professor Gabe Feldman’s analysis that Green will have a tough row to hoe with this lawsuit, due to statute of limitations and causation issues with his claims.

Trove (Australia), and Wagon Mound

All zero of my Australian readers certainly know all about this already, but the National Library of Australia’s Trove service offers a very nice, free, searchable collection of old newspapers, photographs, maps, books, etc. Within these resources, one can find, say, old news reports regarding the fire that would lead to the famous Wagon Mound case.

Here is the best story I could find about the fire (a [blurry] photograph also accompanies the article). Meanwhile, two pages later, the same newspaper carried a seemingly unrelated story (to the editors) about how the master of the Wagon Mound was fined 25 pounds for allowing oil to leak from the ship.

The first of these articles contains a few particularly interesting quotes, given how Wagon Mound is relied upon for its discussion of foreseeability. An iron worker is quoted as saying, “We have been expecting a fire here,” and, “It had to come sooner or later with so much oil about.”  Another interview subject relayed a co-worker’s comment that “that oil slick is on fire at last.”

The articles also underscore how the fire was, like Ron Burgundy, a pretty big deal, posing a substantial threat to safety. According to the story, eighty men had to flee the flames, with four jumping in the water (was this a smart idea, under the circumstances?) to get away from the conflagration.

McDonald’s Obesity Lawsuits, Circa 1880

I don’t think that there are very many truly novel ideas in the law.  Take, for example, the spate of lawsuits a few years ago in which the plaintiffs alleged that McDonald’s had made them fat, justifying an award of damages and/or injunctive relief. (I know the suits were a bit more complicated than this, but you know what I’m talking about.)  Were these suits interesting? Yes. Were they unprecedented? No, not really.

Consider this brief but well-written 1880 article, “Tales of the Civil Damage Law,” which relates the story of an Iowa wife who, frustrated by her husband’s lack of sobriety, invoked a statutory cause of action against several local saloons.  I haven’t looked up the language of the Iowa statute that was involved here, but if it’s anything like other, similar laws from that era that I have seen (like Nebraska’s liquor law), it provided that a wife may sue “for all damages sustained by herself and children on account of” a defendant’s traffic in liquor. Seizing on the language that I just conjured up, the wife claimed that the saloons had transformed her husband into a common drunkard, incapable of supporting her and their family.

According to the piece, some of the saloon owners settled; one took the case to trial and was slapped with a $12,000 judgment.  Summing up the basic theory behind this and other, similar suits, the author wrote, “A wife has, as every one understands, the legal right to be supported by her husband’s earnings; therefore, if drunkenness renders him unfit to work and earn their living, she loses her means of support, and the civil damage law enables her to charge the seller for her loss.”

Like the McDonald’s lawsuits, these support actions attacked the cumulative, deleterious effect of food or drink upon an impaired (or inadequately informed) person. This sort of lawsuit was pretty common a century or more ago, at least in some states (Illinois and Nebraska, most notably). One Chicago church group held training sessions for women to show them how to pursue these claims. These suits seem strange, today; one wonders whether we’ll be talking about the McDonald’s lawsuits in similar terms a century from now.


Building One’s Brand: Xenophon Huddy, The Law of Automobiles (1906)

I’ve had other junior law professors tell me that they were conscious of maintaining and building their “brands.” I remain a little confused about the differences between a “brand” and “reputation.” Aside from the more three-dimensional nature of a brand, perhaps another key distinction is this: one’s reputation matters when others think about you; one’s brand also determines how often they think of you.

I don’t remember the specific contexts in which these conversations occurred, but they might have concerned whether the professors were going to write in fields that are somewhat different from the ones that they typically address. I can see how making this leap might affect one’s brand. Just as a baseball player is more likely to make the Hall of Fame if he spends his entire career with a single team, or if he has one dominant attribute such as hitting for power or average (as opposed to a broad skill base, but without a signature talent–and yes, I realize that I’m pretty much drawing straight from Bill James here), I suspect it may help a law professor’s brand to cast her lot with a single area of the law.

One attorney from yesteryear who not only got and read this memo, but also put a TPS report on top of it, was Xenophon Huddy.  Though not a law professor, Huddy saw an opportunity and ran with it.  The opportunity: automobiles.  Huddy graduated from Yale Law School in 1901.  He must have noticed the accumulating mass of decisions concerning automobiles (the time when all of the well-known cases involving motor carriages could be discussed in just a few magazine pages [to wit: the November 17, 1902 issue of The Horseless Age; see page 512+ here] already had passed), perceived a need for an organizing text, and pulled together what would ultimately be the first of many editions of The Law of Automobiles in 1906.

The first edition of The Law of Automobiles is online, at; it’s pretty light on substance, with much of its text being dedicated to a recitation of state laws regarding automobile use and suppositions about how courts will be likely to rule in a number of as-yet-unfiled cases. The second edition, published in 1909, is available through Google Books; by then, Huddy had more caselaw to work with, and also was writing articles on automobile law for the Yale Law Journal as well as for trade publications like The Horseless Age. Basically, although there were other, rival automobile-law treatises during the first decades of the Twentieth Century, when you thought about the law of automobiles during this span, you probably thought about Xenophon Huddy.

A couple of years ago, an automotive journalist pulled together a short biography of Huddy and posted it on Wikipedia.  I’m glad he did; I doubt that anyone uses The Law of Automobiles–later editions were titled Huddy on Automobiles–very much anymore, but I think Huddy would appreciate being recognized on the Internet, a modern innovation that has boosted scholars’ careers in much the same way that the automobile built Huddy’s.


Ghosts and the Color Line: The Drafting of the Restatement (Second) of Torts

When I visited the American Law Institute archives a little while back to investigate the circumstances that surrounded the drafting of the Restatement (Second) Of Torts, I was interested not only in the intellectual debates over the Restatement, but also in the practical dynamics of these dialogues: where the drafters met, how they communicated, how much they drank while they met, etc. I addressed the last of these points when I guest-blogged on Concurring Opinions last December. For now, suffice it to say that one of the hotels that hosted a drafting session offered manhattans by the gallon.

One document I didn’t share at that time, but will now, also underscores how the 1950s were a different time than today.  In 1956, Herbert Goodrich of the American Law Institute wrote to the Inn at Buck Hill Falls, a Pennsylvania hotel (up in the Poconos resort area), to inquire if it would be up for hosting a drafting meeting.  After outlining the basic request, Goodrich also advises:

I should add that one of the group is one of my judicial colleagues here, Judge Hastie by name, and he is a negro. I assume that this fact will make no difference to you but I want to mention it in advance because I would not for the world have any embarrassment come to him.

Judge Hastie, here, was William H. Hastie, who had been appointed to the Third Circuit Court of Appeals by President Truman.

I’d love to know more about the extent of the color line in the Poconos back in the 1950s, and how rigid it was; I suspect one can find the answer in Lawrence Squeri’s Better in the Poconos, but our library doesn’t have a copy. If it provides any indication, the meeting ultimately was held up at the Inn.

Race relations aren’t all that’s changed since 1956.  The hotel in question was once a beautiful resort. (And one with a rich history; perhaps Goodrich also should have been concerned about ghosts at the establishment.)  The hotel is no longer in operation, having closed in 1991, and is apparently up for sale.  Here is some recent shaky-cam footage of the hotel, accompanied by a rather suspect narrative.

(Image courtesy the University of Pennsylvania University Archives and Records Center, American Law Institute Archives [Restatement (Second) Category; Restatement (Second) Torts Record Group, Box 25, File Folder 25-2])

The Gashlycrumb Tinies, Indexed to Franklin, Rabin & Green’s Tort Law and Alternatives

A is for Adams who a wire imperiled

B is for Byrne crushed flat by a barrel

C is for Carter who slipped on some ice

D is for Dillon who might have died twice

E is for Escola nicked by some pop

F is for Fletcher whose mine needed a mop

G is for Goodman who caught a train the wrong way

H is for Hood who said his saw didn’t say

I is for Intel whose computers were smeared

J is for Johnson whose baby flat disappeared

K is for Katko shot while he stole

L is for Levandoski who fell into a hole

M is for Murphy maimed on “The Flopper”

N is for Negri who slipped as a shopper

O is for O’Brien halting pool sales

P is for Palsgraf squashed by some scales

Q is for Quill who received quite a scare

R is for Rowland owed reasonable care

S is for Summers who can’t ID his shooter

T is for Tedla struck by a commuter

U is for Ultramares from whom a company did steal

V is for Vosburg whose leg didn’t heal

W is for Wagon Mound done in by a spark

X is for the unreasonable man who takes stairs in the dark

Y is for Ybarra who sued the whole set

Z is for Zeran defamed over the Net

The Law of the Air (1910)

That’s the title of this compilation of three lectures given by Harold Hazeltine at the University of London back in 1910. Seven years after the Wright Brothers’ first flight, with a couple of fatalities due to crashes of early aeroplanes already on the books, jurists got to thinking about the novel legal issues implicated by aeronauts and aeronautics.  (OK, I’ll drop the “ae” spelling from this point out.  I was just gettin’ my retro on.)

True, at the time Hazeltine spoke there already were a few published cases regarding manned balloons — most notably, Guille v. Swan, decided all the way back in 1822. But  prescient thinkers could appreciate that airplanes would potentially become a more broadly diffused technology than balloons had been, or were.  Though their widespread use for conveying passengers seemed unlikely–early planes couldn’t go very fast, or far, such that early passenger routes were mostly just over bodies of water (e.g., between Tampa and St. Petersburg, the first scheduled passenger route in the United States), as to which planes had a significant competitive advantage over rail travel–planes obviously had a number of other possible uses.  Like, for instance, dropping bombs on one’s enemy, which was done for the first time the very next year (1911) in the Italo-Turkish War.

Consistent with contemporary notions of how planes were likely to be used in the future, if you search through Hazeltine’s lectures for a discussion of the rules governing liability to passengers in the event of a plane crash, you’ll come up dry.  As is so often the case, the worries that surrounded airplanes in their nascency were not those that predominate today. The big concerns, back then: how to reconcile airflight with the ad coelum doctrine, such that every flight didn’t produce 1,000 trespass suits (a struggle that Stuart Banner discusses in detail in his terrific book Who Owns the Sky?); and liability to persons on the ground if they happened to get flattened by a crashing plane. As for those foolish enough to be early pilots and passengers, well, they had it comin’.

One point that I’ve made in my writing on this general subject is that when a technology is first introduced to the public, the basic “ground rules” that will govern claims assigning blame to that innovation are often quite indistinct, and some of the early thinking on this score  may seem ludicrous in hindsight.  One passage in Hazeltine’s text captures the point nicely.  In discussing potential claims by pedestrians crushed from above by a doomed aeroplane (sorry; couldn’t resist), Hazeltine provides: “In considering the question of absolute liability we must not forget that the negligence of the persons who are injured will certainly be of moment in determining the airman’s liability. Undoubtedly the general use of air-vehicles will bring about the necessity for even greater caution on the part of all persons than at present exists. In going through the crowded streets of London, for instance, it might conceivably be necessary for the pedestrian and the driver of land vehicles not only to look in all directions to guard against accident arising from motor vehicles and all the other perils on the surface, but it will become necessary to beware lest they, by their failure to look up in the air, render themselves guilty of such negligence as will prevent their recovery in the event of accident.”

So, next time you’re talking a stroll, make sure you look up periodically.  We wouldn’t want your recovery to be reduced through comparative fault, you know.

Palsgraf, Circa 1933

A lot of us who teach United States v. Jones (which many of you may know of as “the GPS case”) have the sense that it’s an important decision.  How important, we don’t know.

Our present confusion has many parallels in the past, in which commentators found it difficult to predict how influential a particular decision would be. One example that I particularly like comes from another old study aid, James M. Henderson’s Questions and Answers with Problems and Illustrative Matter on the Law of Torts, Based on all the Standard Text and Case Books, which was published in 1933.  This book (again, really a lengthy pamphlet) was part of Callaghan’s Quizzer Series, which was probably the leading line of study aids for law students back in the early 1930s.  Anyway, Question 68 in the guide provides as follows:

“Q. Where plaintiff is standing on a railway station platform, waiting for a train, and another passenger jumping aboard a moving train is pushed aboard by a guard, dropping a package on the track which explodes, so that the force of the explosion dislodges some scales at the other end of the platform, injuring the plainitff, is the negligence of the guard the proximate cause of plaintiff’s injury?

A: No. Palsgraf v. Long Island R. Co., 248 N.Y. 339, 162 N.E. 99, 59 A.L.R. 1253.”

Keep in mind that the Callaghan’s guide poses this question quite early on, immediately after asking and answering the question, “In the legal sense, what is a ‘remote’ cause?”  Clearly, the author had a sense that Palsgraf was an important case.  But why would it prove important?  Here, the author had no clue, given the idiosyncratic facts of the case.  So the author contented himself with relating the perceived “rule” from Palsgraf, in almost comically narrow form.