Last week, we reviewed the data on how the Supreme Court has handled insurance law cases since 1990 – both what sorts of cases the Court decides, which side typically prevails, and the individual Justices’ voting records on insurance cases. This week (and next Thursday), we’ll be asking the same questions for the Court’s tort law cases, 1990-2018.
We begin with the foundational question: how many cases primarily involving tort law issues has the Court decided each year? During the nineties, the Court decided a total of ninety-three tort cases: four in 1990, seven in 1991, nine in 1992, ten in 1993, twelve in 1994, nine in 1995, only one in 1996, ten in 1997, eighteen in 1998 and thirteen in 1999.
In the next Table, we divide these cases according to which side prevailed below (cases taken on certified question from the Ninth Circuit are omitted from this calculation). What we see is that during the nineties, the Court tended to take significantly more cases won by plaintiffs below (57) than defendants (35). Only in 1992 and 1995 were there more defendants’ wins on the docket. We’ll see a clue as to why the Court took more plaintiffs’ wins in a few moments.
Next, we ask how often defendants who won at the Court of Appeal succeeded in winning again at the Supreme Court. The answer is not that well – this group of defendants won sixteen cases but lost nineteen.
But plaintiffs did far worse. In only three of ten years were the plaintiffs even breaking even in the win-loss column: 1991 (4-1); 1996 (1-0) and 1999 (4-4). For the entire decade, plaintiffs who won below had nineteen wins at the Supreme Court to thirty-nine losses, suggesting that the Court’s preference for deciding tort cases won by plaintiffs below during this period might have been at least partially motivated by a desire to cut back on aspects of California tort law.
Next, we’re looking at tort defendants’ overall won-loss record for the nineties, disregarding which side won below. Not surprisingly, the defendants did quite well, winning 55 cases while losing only 38 – a winning percentage of .5913. Particularly lopsided years included 1990 (4-0); 1993 (9-1) and 1998 (12-6).
Next, we divide up the docket by the nature of the question presented into three categories: “duty,” “liability,” and “procedural.” For the entire decade, procedural issues dominated the other categories: there were forty-two cases whose primary issue was procedural, thirty primarily involving questions of duty, and twenty-one involving liability issues.
During the nineties, the Justices casting the most votes for defendants in tort cases were Justice Baxter (52 votes), Chief Justice George (46), Justice Kennard (45) and Justice Arabian (31).
Below, we report each Justice’s yearly votes against tort defendants. The four highest totals for the decade were Justices Mosk (67 votes), Kennard (48), Baxter (37) and Chief Justice George (35).
For our second decade, 2000-2009, the case’s production of tort law decisions dropped from ninety-three for the years 1990-1999 to 76 from 2000-2009. The Court decided four cases in 2000, nine in 2001, fourteen in 2002, eight in 2003 and 2004, seven in 2005, two in 2006, twelve in 2007, five in 2008 and seven in 2009.
Join us back here tomorrow as we continue our review of the Court’s tort decisions.