first-year law review

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Nov. 7 Torts: Public Policy

So in torts we move on to public policy as a reason for finding proximate cause. In our first case, Kelly v. Gwinnell, Zak and Gwinnell were at Zak’s home drinking. Gwinnell became visibly intoxicated and Zak watched as he drove away. On his way home, Gwinnell hit Kelly’s car, causing severe injuries to Kelly. Kelly sued both Zak and Gwinnell, but the trial court granted summary judgment for Zak. The appellate court affirmed, but the Supreme Court of New Jersey reversed that ruling. The court held that when negligent conduct creates an unreasonable risk, setting off foreseeable consequences that lead to P’s injury, the conduct is deemed the proximate cause of the injury. As partial justification for this holding, the Court said that the damages caused by drunk driving are horrible and intolerable. The state has strengthened criminal sanctions against drunk driving. The duty (for a host to be responsible for individuals that imbibe) can be imposed because the policy considerations served by its imposition far outweigh those asserted in opposition. So it turns out that those “Friends don’t let friends drink and drive” are actually law. Using the idea from Glannon on Torts, it’s easy to see that the Reasonable Person would tell Zak, “Don’t let Gwinnell drive because he’s really drunk and could hurt someone.”


Let’s look at an example of the court limiting an action because of public policy issues. In Enright v. Eli Lily Co., A mother and her daughter were suing the defendant because the grandmother had taken DES during her pregnancy. The plaintiffs alleged that the DES affected the mother’s reproductive system which resulted in her daughter’s cerebral palsy and other disabilities. DES litigation has gone on for some time and the courts and legislatures have removed barriers to DES claims (such as the statute of limitations) because of the public policy issues. Instead of letting the claims go forward, the court held that an injury to a mother which results in injuries to a later-conceived child doesn’t establish a cause of action in favor of the child against the original tort-feasor. They held this because public policy favors the availability of prescription drugs even though most carry some risks. The dangers of overdetterence are discouraged research or the withholding of beneficial drugs. These are magnified if there’s a legal duty toward generations not yet conceived. So here they established an arbitrary line; otherwise the makers of DES would be liable for heaven knows how many generations, and that multigenerational liability could make it less likely that drug makers would put out drugs. So public policy arguments can swing both ways—that’s why it’s important for lawyers to consider the public policy behind their actions.


November 8, 2006 - Posted by | Torts

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