Pokemon Go Players: Beware of Binding Arbitration!

Unless you've been living under a rock or avoiding the outdoors for the past several weeks, you have probably heard of Pokemon Go, a smartphone app developed by Niantic. Pokemon Go compels 20-somethings to wander through my neighborhood at night, collide with trees, and enslave small creatures for the purpose of battling other players' small creatures. Players meander along sidewalks, streets, and beaches until they come across a Pokemon, which is superimposed on the surrounding environment through a phone's camera. For example, here is an Onix in my apartment perched on a (signed) copy of Justice Antonin Scalia and Bryan Garner's Reading Law:

What a time to be alive!

Players cavort through neighborhoods collecting items at "Poke Stops" and battling other Pokemon at Gyms. Sometimes they are mugged. The New York Times has this discussion of the history of Pokemon and the future of augmented reality games and the Wall Street Journal notes that the game is turning people into injury-prone zombies.

Legal commentary as varied as the creatures themselves is emerging as the game gains momentum. Commentators note interesting questions of property the game raises, the potential for players to injure themselves, and the risk of criminals stealing phones.

In this post, I'll focus on another line of commentary noting that those who sign up to play Pokemon Go forfeit their right to trial, agreeing instead to submit any claims to binding arbitration. Commentators note, and criticize, this portion of Niantic's Terms of Service here, here, here, and here.

Settlement in Examsoft "Barmaggedon" Lawsuit

So reports the National Law Journal:

Aspiring lawyers who sat for the July 2014 bar examination are eligible for $90 each from software company ExamSoft Worldwide Inc. under a class action settlement. 

ExamSoft has agreed to pay $2.1 million to bar takers who ran into technical problems while trying to upload their exam responses last year. Ten bar takers in numerous states filed five separate lawsuits following the exam, which became known on the Internet as “Barmaggedon.” 

The cases were consolidated into one class action in the U.S. District Court for the Southern District of Florida, and Judge Ursula Ungaro granted preliminary approval of the settlement on Tuesday. The parties reached the agreement through mediation. The settlement includes up to $600,000 in attorney fees for the plaintiffs lawyers. 

According to the agreement, ExamSoft’s technical problems affected bar takers in 43 states. They had paid between $100 and $150 to use the software, which blocks test takers from the Internet or class notes during the essay portion of the bar exam. 

But many takers faced long delays when trying to upload their answers, causing examiners in some jurisdictions to extend deadlines at the last minute. The situation was stressful, particularly because it occurred on the first day of the two-day exam, according to the agreement.

The website describing the settlement and giving information on filing a claim is here.

I described Examsoft's technical problems as I experienced them in this post I wrote after the first day of the bar exam, and this post which I wrote after the second day. I noted on the third day that the technical problems had subsided since few states other than California had three days of testing. Additionally, it is worth noting that the event's "Barghazi" label has apparently been upgraded to "Barmaggedon."

New Florida Law Restricting Private Drone Use

Florida's governor recently signed S.B. 766, a bill that expands and clarifies restrictions on drone use listed in section 934.50, Florida Statutes. The full text of the bill is available here. Reports on the passage of the bill are available here, here, and here. 

Prior to the passage of this bill, section 934.50 contained a wide restriction on government drone use. 934.50 prohibited the use of drones by law enforcement agencies to collect evidence except in cases where a warrant was first obtained, there was a high risk of a terrorist attack, or there was a risk of imminent harm to somebody. Those exceptions still exist after the passage of S.B. 766.

S.B. 766 is notable because of the restrictions it places on private drone use. The bill adds subsection 934.50(3)(b), which states:

(b) A person, a state agency, or a political subdivision as defined in s. 11.45 may not use a drone equipped with an imaging device to record an image of privately owned real property or of the owner, tenant, occupant, invitee, or licensee of such property with the intent to conduct surveillance on the individual or property captured in the image in violation of such person’s reasonable expectation of privacy without his or her written consent. For purposes of this section, a person is presumed to have a reasonable expectation of privacy on his or her privately owned real property if he or she is not observable by persons located at ground level in a place where they have a legal right to be, regardless of whether he or she is observable from the air with the use of a drone.

The scope of this restriction is clarified by the new subsection 934.40(2)(e), which defines "surveillance" as:

1. With respect to an owner, tenant, occupant, invitee, or licensee of privately owned real property, the observation of such persons with sufficient visual clarity to be able to obtain information about their identity, habits, conduct, movements, or whereabouts; or

2. With respect to privately owned real property, the observation of such property’s physical improvements with sufficient visual clarity to be able to determine unique identifying features or its occupancy by one or more persons.

A person using a drone violates this law if he or she uses a drone to collect images that are clear enough to identify unique identifying features about a piece of property or people on that property. The incidental collection of such images by a drone that is used for different purposes would not appear to violate the restrictions on private drone use. Additionally, this law does not apply to property that is not fenced-in or vast, since features of this property would likely be observable by somebody on the ground, meaning that the property owner would not have a reasonable expectation of privacy.

The law does not criminalize the use of drones for this sort of surveillance, but it does contain a provision permitting civil lawsuits for those who are subject to drone surveillance that violates the provisions of section 934.50. The prevailing party in such a lawsuit would have the right to obtain attorney's fees, and a person subject to surveillance in violation of this law would have the right to seek punitive damages and/or injunctive relief.

The new provisions in S.B. 766 seem fairly reasonable to me. By requiring an intent to conduct a surveillance and a violation of a reasonable expectation of privacy, Florida's new law permits quite a bit of drone use -- even use that may incidentally capture images of private property. Additionally, the bill does not criminalize private drone use that violates the law's provisions, and instead only provides a civil remedy.

The Implications of the "Blurred Lines" Verdict for Weird Al Yankovic

The major intellectual property story of the spring has been a lawsuit by Marvin Gaye's estate against Pharrell Williams and Robin Thicke. A jury recently held that Thicke and Williams' song, "Blurred Lines," infringed on the copyright for Gaye's song, "Got to Give It Up." I have not been following the litigation very closely, and I do not have much analysis of my own to add regarding the litigation itself, but you can find additional analysis and criticism of the case and verdict here, here, here, here, and here.

While I am not a big fan of Pharell Williams or Robin Thicke, I am far more interested in the work of Weird Al Yankovic. Weird Al wrote an excellent parody of Williams' and Thicke's song, entitled "Word Crimes." Here it is:





While Weird Al made sure to get permission from Thicke and Williams to use their song as a basis for his parody, would Thicke and Williams' recent loss spell trouble for Weird Al?

Sherwin Siy thinks that Weird Al could potentially be affected by the "Blurred Lines" litigation. While the Gaye estate did not sue Weird Al in time to recover damages for copyright infringement, the estate may still be able to sue Weird Al to recover a share of his profits from the song. As Siy notes:

While awards of damages for copyright infringement are joint and several, awards of the infringers’ profits are only several. This means basically that each infringer is responsible for their own profits, and not anyone else. You can see how this works: though the Gaye estate was damaged a certain amount by everyone (here, let’s say, Pharrell, Thicke, and Yankovic) acting in concert, each of those three different people made a different amount of profit, separate attributable in part to their use of the song. 

So while it’s too late for the Gaye estate to recover damages from Weird Al (or, to be more accurate, they already have, in a way), they could still try to go after him for his profits on “Word Crimes,” to the extent that those profits can be attributed to his taking from “Got to Give It Up.” And giving Al Yankovic a reason to worry is just one more reason to be upset with this verdict.

So even though Weird Al was not involved in the original infringement suit, he may still face difficulties if the Gaye estate seeks to capitalize on its recent victory. But if that victory ends up getting appealed, perhaps Weird Al will be free to continue marketing his parody without disruption.

July 2014: Bar Exam Apocalypse - Day 2

The fallout over yesterday's ExamSoft disaster continues, with the legal blogosphere chiming in on the matter. Jonathan Adler predicts that students who do not pass may end up suing ExamSoft, which is something I will keep in mind if the exam doesn't turn out the way I want it to. Coverage from the Wall Street Journal law blog is available here.

Yesterday, I suggested that the end is near (in an apocalyptic sense), in light of this software meltdown and massive flooding at UCLA. Today, for the most part, things seemed better, although I learned this evening that we had a bit of a close call:

A 3.0 magnitude earthquake occurred 5.59mi W of Manhattan Beach, California. Details: http://t.co/U1lX7Q2XJt Map: http://t.co/gpXNtshuLC
— LA QuakeBot (@earthquakesLA) July 30, 2014

This seems to have happened right at the beginning of the lunch break -- and the epicenter was far enough away that the impact was minimal at my testing location. But it is still a worrisome sign, especially since those of us in California (unlike most of the country) still have one more day of testing to go.

A 23.6 Billion Dollar Punitive Damages Verdict Against RJ Reynolds Tobacco Co.

The BBC reports:

A US court has ordered the country's second largest cigarette company to pay $23.6 billion (£13.8bn) to the wife of a smoker who died of lung cancer. 

RJ Reynolds Tobacco Company was hit with the punitive fine in addition to $16.8m (£9.8m) in compensatory damages.

. . .

The punitive damages awarded to . . . [the plaintiff, Cynthia] Robinson were said to be the largest of any individual case stemming from a class action lawsuit filed in Florida.

The Chicago Tribune also has an article on the verdict. Both outlets report that RJ Reynolds plans to appeal, and the Tribune notes that "[s]uch industry appeals are often successful."

RJ Reynolds will almost certainly succeed if it appeals the punitive damages award.

When juries return a verdict on damages, they may award compensatory damages, which serve to compensate the victim for harm suffered and make the plaintiff whole. Juries may also award punitive damages if they find that the defendant acted in a particularly egregious manner. Punitive damages serve to deter defendants from acting this way.

I have blogged previously on cases here and here, where juries have awarded punitive damages thousands of times higher than the compensatory damages. As I mentioned in those posts, the Supreme Court has strongly suggested that punitive damage awards that are more than ten times the amount of the compensatory damage award are unconstitutional violations of due process.

What about this case?

Here, the jury concluded that the plaintiffs were owed $16.8 million in compensatory damages as a result of the wrongful death. The $23.6 billion punitive damages verdict is roughly 1,400 times the compensatory damages that were awarded.

Given the vast disparity between the compensatory and punitive damages, it is highly likely that RJ Reynolds will succeed if it appeals the punitive damages award. While this award is indeed noteworthy, it is not going to be around for long.

UPDATE

Reuters quotes a number of legal experts in this article who also think that the punitive damages award is not likely to stand.

Batman v. Superman: My Thoughts on Potential Cases

Linda Holmes of NPR has an fun article about the upcoming sequel to Man of Steel. The title of the sequel will be Batman v Superman: Dawn of Justice. Holmes notes that the "v" in the title is typically used in the titles of court cases, pointing out that the title is not going to be "vs." or "versus." Accordingly, Holmes reaches the hopeful conclusion that Batman v Superman will be a legal drama, rather than a typical superhero movie.

Holmes provides a few examples of what the plot of the movie may be. The first is:

Batman sues Superman over an incident in which Superman accidentally picks up Batman's cape at the dry cleaner's, which leads to the revelation that Superman only sees black and white, which renders his colorful costume very ironic. Batman v Superman!

As somebody who has just graduated from law school, and who has seen Man of Steel, I join in Holmes's hope that Batman v Superman will be a legal drama rather than a repeat of its loud, humorless, two-dimensional, and destruction-filled predecessor. I thought that I would throw out some of my own bar-review-inspired ideas for the plot of the sequel.

A Nine Billion Dollar Punitive Damages Verdict and Why it Won't Last

Some of my favorite shows are on late at night. As a result, I have seen a lot of commercials from law firms that solicit potential plaintiffs in drug-related injury cases. One commercial I saw the other night claimed that a plaintiff had received a 6 billion dollar verdict in a lawsuit against a drug company. I thought that this was misleading -- damages in that amount needed to have been given to a class of plaintiffs, right?

Turns out my instinctual reaction was wrong. The ad was referring to this 6 billion dollar verdict against Takeda Pharmaceuticals. The 6 billion dollar amount was a punitive damages award and was based on the company's apparent practices of covering up the risk of harms posed by one of its drugs. This verdict was accompanied by an additional 3 billion dollar punitive damages award against its marketing partner, Eli Lilly. In addition to punitive damages, the plaintiff was awarded 1.25 million in compensatory damages.

The Wall Street Journal Law Blog summarizes why these damages will probably be reduced:

But how likely is it that the companies will actually fork over that amount? Not very, say legal experts. 

“There’s no way that these [damages] will be $9 billion at the end of the day,” said Mark Lanier, the lawyer for the husband and wife who sued the companies. U.S. District Judge Rebecca Doherty, who is presiding over the case in Lafayette, La., “will do what she thinks is right,” he said. 

. . . 

Compensatory damages are meant to compensate a party for loss or injury. Punitive damages are meant to punish and deter. But the two must bear some relationship to one another, the U.S. Supreme Court has ruled. 

In the 2003 case State Farm Mutual Automobile Insurance Co. v. Campbell and the 1996 case BMW of North America Inc. v. Gore, the high court ruled that excessive punitive damages are unconstitutional. 

What is excessive? It depends on the size of the compensatory damages. Generally speaking, punitive damages that are more than nine times that of compensatory damages have a poor survival rate, the Supreme Court ruled. Put another way, the ratio of compensatory damages to punitive damages typically should be a single digit.

The punitive damages multiplier in this case is far larger than a single digit. With compensatory damages measuring in at 1.25 million, the punitive damages are 7,200 times that amount. That's even higher than the 5,000-to-one verdict that I blogged about here (which was also something I learned about due to late-night television shows).

While this case involves a notably high ratio that is almost certain to be overturned, I still think it is a little strange that the plaintiff's attorney said that there was "no way" that the verdict would stand. While the attorney is almost certainly correct, if I were a party involved in litigation, I would not want my attorney speaking out and saying that the verdict I'd just been awarded is certain to be reduced.

A Five-Thousand to One Punitive to Compensatory Damages Ratio

From Fox News' late-night show, Red Eye, I learned about the unpleasant story of James Caroll Butler, who attempted to spike his coworker's coffee with urine. The coworker, Michael Utz, fortunately did not drink the tainted coffee, and sued Butler for the emotional distress that Utz suffered as a result of Butler's actions.

In his lawsuit, Utz asked for quite a bit of money:

Utz, a plant mechanic for the town’s environmental services department since 2002, claimed that the urine-laced coffee pot caused him severe emotional distress, asking the court to award him $728,000 ($378,000 in compensatory damages and $350,000 punitive damages).

In the end, Utz did not get the hundreds of thousands of dollars he sought in his complaint. But the jury did end up awarding him $5,001. Why the extra dollar?

According to court records, the jury awarded Utz $1 in compensatory damages and $5,000 toward punitive damages.

As a bit of background for those unfamiliar with these remedies, compensatory damages are meant to make the plaintiff whole and repair harm done by the defendant. Punitive damages, on the other hand, are meant to deter the defendant from carrying out similar conduct in the future, and by awarding punitive damages, the jury expresses that the defendant's conduct was particularly reprehensible.

As loathsome as Butler's conduct was, if he were to appeal, I think that he would have a good chance at having those damages reduced. In State Farm Mut. Automobile Ins. Co. v. Campbell, the Supreme Court struck down an award of $25 million in punitive damages accompanying a reward of $1 million in compensatory damages. The Court stated:

[W]e have been reluctant to identify concrete constitutional limits on the ratio between harm, or potential harm, to the plaintiff and the punitive damages award. . . . We decline again to impose a bright-line ratio which a punitive damages award cannot exceed. Our jurisprudence and the principles it has now established demonstrate, however, that, in practice, few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process. (citations omitted)

While the Court refused to state a solid rule, it heavily insinuated that a punitive damages award more than nine times the amount of  the compensatory damages would be struck down as a violation of due process.

Here, the jury awarded only one dollar in compensatory damages, meaning that the punitive damage award was five thousand times the compensatory award. While the jury may have wanted Butler to be punished (and while Butler was also convicted of misdemeanor criminal assault for his actions), the composition of the award clearly indicates that the jury thought that Utz suffered very little, but Butler's action was very bad.

I think that the jury could have awarded Utz substantial damages for emotional distress. But they didn't, and with a ratio like this, I could see this award being overturned if Butler is inclined to appeal -- though keeping this incident in the news may not be Butler's favorite outcome.

French Plaintiffs Win Symbolic Damages for Distress Caused by Michael Jackson's Death

Via Kevin Underhill at Lowering the Bar, I learned about a lawsuit that French plaintiffs filed against Conrad Murray, Michael Jackson's doctor, who had been convicted of involuntary manslaughter following Jackson's death by anesthesia overdose. The BBC reports:

Five Michael Jackson fans have been awarded one euro each by a French court for the "emotional damage" they suffered after the pop star's death. 

The case saw 34 fans sue Jackson's doctor, who was jailed in 2011 for the involuntary manslaughter of the singer. 

The court in Orleans ruled five fans had proven emotional suffering. 

. . . 

"As far as I know this is the first time in the world that the notion of emotional damage in connection with a pop star has been recognised," Emmanuel Ludot told the AFP news agency. 

"They have been subjected to ridicule and I am delighted their suffering has been taken seriously by the law."

Underhill points out that this sort of lawsuit would fail in the United States:

Under U.S. law . . . damages for emotional distress are generally limited either to the injured party or, in some states, to family members who actually witnessed harm to a loved one. So you couldn't, for example, bring a class action on behalf of all similarly situated Elvis fans, which the guy who sent me this said was his plan. Even setting aside the statute-of-limitations issue, you still couldn't do it. In France, this is apparently okay.

I have not been able to locate many details on the court's reasoning, so I am not sure if this sort of broad approach to emotional distress is commonplace in France.

Criminal Records and Reentry, and the Importance of Civil Reform

Via the CrimProf Blog, I learned about a recent article by Michael Pinard entitled, Criminal Records, Race and Redemption. The citation is 16 N.Y.U. J. L. & Pub. Pol. 963 (2013).  Here is the abstract:

Poor individuals of color disproportionately carry the weight of a criminal record. They confront an array of legal and non-legal barriers, the most prominent of which are housing and employment. Federal, State and local governments are implementing measures aimed at easing the everlasting impact of a criminal record. However, these measures, while laudable, fail to address the disconnection between individuals who believe they have moved past their interactions with the criminal justice system and the ways in which decision makers continue to judge them in the years and decades following those interactions. These issues are particularly pronounced for poor individuals of color, who are uniquely stigmatized by their criminal records. To address these issues, this article proposes a redemption-focused approach to criminal records. This approach recognizes that individuals ultimately move past their interactions with the criminal justice system and, therefore, they should no longer be saddled by their criminal records. Thus, the article calls for greatly expanding laws that allow individuals to remove their criminal records from public access and, in the end, allow them to reach redemption.

I have not had very much time to read through the paper in depth, but from what I have read, Pinard seems to be presenting and addressing an extremely important issue facing the criminal justice system. Speaking from my own experience volunteering at a reentry clinic for a few years, I can say that (1) Pinard's arguments that criminal records make finding jobs and housing difficult are spot on, and (2) that I am relieved to be working at a clinic in California rather than Maryland, where expungement rules seem to be far more restricted.

Pinard also seems to offer some strong suggestions for reform. I would add to his conclusions by re-emphasizing the importance of civil remedies against employers who discriminate based on criminal background. I am aware that California has enacted legislation that provides for statutory damages in the event an individual can prove that they were not hired specifically because of their criminal background. And while Pinard correctly points out that this may be difficult to prove, I have nevertheless met numerous people who have heard either explicitly from employers that they were not hired because of their record -- or who had significant circumstantial evidence that this was the case. Legislation providing for substantial statutory damages would provide employees with record with a significant source for redress in the event they are not hired because of their criminal record.

Non-Disparagement Agreements

Andrew Crocker and Kurt Opshal of The Electronic Frontier Foundation write about a horror story arising from a customer's signing a "non-disparagement agreement."  The customer, Jen Palmer, tried to purchase an item from KlearGear, but the item was never shipped to her.  After receiving a refund, but running into trouble trying to contact the company's customer service representative, she gave a negative review of the product on Ripoffreview.com.

KlearGear wrote to Palmer three years (!) later and demanded $3,500 based on her violation of a non-disparagement clause she had signed when she had tried to purchase the item.  That clause stated:

In an effort to ensure fair and honest public feedback, and to prevent the publishing of libelous content in any form, your acceptance of this sales contract prohibits you from taking any action that negatively impacts KlearGear.com, its reputation, products, services, management or employees. 

Should you violate this clause, as determined by KlearGear.com in its sole discretion, you will be provided a seventy-two (72) hour opportunity to retract the content in question. If the content remains, in whole or in part, you will immediately be billed $3,500.00 USD for legal fees and court costs until such complete costs are determined in litigation. Should these charges remain unpaid for 30 calendar days from the billing date, your unpaid invoice will be forwarded to our third party collection firm and will be reported to consumer credit reporting agencies until paid.

Palmer was unable to pay the fee to remove the comment and was unable to pay the $3,500 demand, and ran into credit problems as a result.

The EFF reports on a number of inconsistencies with KlearGear's claim, including the question of whether this clause had even existed when Palmer had made her purchase.  The EFF also argues that the non-disparagement agreement is unconscionable, noting that consumers typically do not have any say in the provisions of purchase agreements and that the language in these agreements tends to confer substantial privileges to the seller over the consumer.

I am inclined to agree that the non-disparagement provision is unconscionable.  While I don't think that any First Amendment claims can be made here, the vast asymmetry in the agreement and the likely inability of consumers to negotiate the agreement are problematic.  Moreover, the $3,500 payout is all but guaranteed, since the payout is required upfront, and will cover litigation fees that KlearGear ends up paying, even if any defamation suit it files ends up being groundless.

And as a final note on the issue, the non-disparagement clause avenue for punishing critics appears to be a way around insurance protection that many defendants may have in typical libel cases.  Eugene Volokh notes that many standard homeowner's insurance agreements have clauses that guarantee payouts for damages paid out in a libel suit, or costs incurred in defending against such a suit.  He provides an example of one such claim:

If a claim is made or a suit is brought against any insured for damages because of bodily injury … caused by an occurrence to which this coverage applies, we will: 

1. pay up to our limit of liability for the damages for which the insured is legally liable; and 

2. provide a defense at our expense by counsel of our choice even if the allegations are groundless, false, or fraudulent…. 

POLICY DEFINITIONS …. 

“Bodily injury” means; … personal injury … arising out of … libel, slander or defamation of character; or … invasion of privacy.

A non-disparagement claim along the lines of the KlearGear agreement looks like a contract claim, and not a claim for "damages because of bodily injury," which seems to be restricted to tort claims.  And even if KlearGear were to successfully sue Palmer, such an insurance policy would cover the damages she would need to pay in that lawsuit, but not the contractually-required money she would need to pay for KlearGear's costs.

Grades and Negligent Infliction of Emotional Distress

With clerkship application deadlines closing in and with finals fading ever farther into the distance, I have been checking with growing frequency to see if grades have been posted.  I fortunately delayed on checking on one of my classes this evening until after I received an extremely apologetic email from UCLA's records office warning me that a spreadsheet error had led to incorrect grades being posted, that we should disregard the posted grades, and that corrections will be posted soon.  Curious, I decided to peek at my grade.  All I will say is that I hope that the records office had not yet fixed the problem.

This got me thinking about negligent infliction of emotional distress (NIED).

Most law students at UCLA despise NIED because one of our earliest writing assignments, the dreaded "Hummel Memo" requires us to put together an objective memo concerning an NIED lawsuit.  Los Angeles offices and agencies that employ students during the summer following their 1L year are intimately familiar with the Hummel memo as a common writing sample that students send in their applications.  In this culture of irritation, whimsy, and war stories, students often forget that they are learning about a valuable area of law that may be of practical use...say in a situation where somebody with a duty of care towards another person neglects that duty of care, resulting in severe emotional harm towards that other person.

In California, some lawsuits focus on lawsuits filed by a bystander to an accident.  These lawsuits proceed under Thing v. La Chuza, 48 Cal.3d 644, 648 (1989) which requires that the plaintiff "(1) is closely related to the injury victim; (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim and, (3) as a result suffers emotional distress beyond that which would be anticipated in a disinterested witness." This is the rule that all UCLA students know (or knew when they were 1Ls).

This standard may be somewhat relevant for a situation where a records office negligently posts the results of a flawed grading spreadsheet. For example, say one of my family members is present when I open the page with the mistaken grade. This family member witnesses me let out a blood curdling scream and then keel over from a massive heart attack. The family member might have a viable NIED claim against the school.

While this approach is feasible given the typical law student reaction to poor grades, the savvy law student may be able to file suit without relying on a traumatized family member. Beyond Thing, California allows NIED suits in situations involving emotional damage resulting from sensitive relationships. For example, in Davila v. County of Los Angeles, 50 Cal.App.4th 137 (1996), the court of appeals held that a coroner has a duty to act with reasonable diligence to find a family member of a recently deceased person before cremating that person. An overhasty cremation may lead to an NIED suit since negligent conduct in this situation is likely to cause a serious emotional disturbance. Law students may argue that university employees in charge of posting grades are in a position where negligent actions are likely to cause severe emotional distress. Because of this special position, a negligent posting of a horrible Evidence grade may give rise to an NIED suit.

A final practice pointer: this strategy may work for classes where the posting of a terrible grade causes emotional shock and pain. This strategy is less feasible for classes where nothing but a terrible grade is possible, which removes the element of surprise from the negligently posted grade. For this reason, students in Federal Courts and Corporate Taxation should not rely on the strategies outlined in this blog post.