The First Circuit recently issued two decisions that discuss at some length two fundamental legal concepts. One relates to criminal law – the Ex Post Facto clause (Evans v. Gerry, http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=10-2133P.01A) and the other, tort law – causation (Fairest-Knight v. Marine World Distributors, Inc., http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=10-1409P.01A). Both decisions offer useful primers on their topics.
This is a habeas case, involving some horrific facts relating to the murder of a toddler. The defendant received a sentence with a portion suspended. After the crime and before the sentencing, New Hampshire changed its law to allow the state as well as a defendant to apply for review of sentences by the Sentence Review Division of the Superior Court. The State petitioned, and the sentence was effectively increased from 28 to 43 years. Is that an ex post facto problem?
Judge Boudin, writing for the panel (with Judges Lipez and Howard), goes through the basics of the both the ex post facto test per Supreme Court jurisprudence and the nature of the limited review under the habeas statute. In the end, the panel decided that, given these factors, the risk of an increase of a sentence through the new procedural ability of the state to appeal is not the type of "substantial risk" of a higher sentence that triggers the clause, at least in the context of habeas review where the State court has identified the relevant Supreme Court precedent.
Did the bad facts color the Court's decision? No, as you follow Judge Boudin's typically reasoned analysis, weighing the arguments on both sides. But it certainly didn't help the defendant. ("Evans was intially given only suspended sentences for all of his brutal acts toward a helpless infant of which at least a number were committed on earlier occasions prior to the murder, and the Sentence Review Division simply unsuspended some of these suspended sentences.")
Apparently there is no lemon law for boats. As Judge Torruella begins this decision: "This case, involving the saga of an extremely frustrated boat owner, provides further support for the occasionally expressed view that the two happiest days of a boat owner's life are the day he buys his boat and the day he sells it."
The plaintiff, with "no previous boating experience" and buying his first boat "as is" (cue ominous Jaws music) from the defendant, thereafter experienced endless problems. Each time the boat broke down, the defendant repaired it and sent it on its way. The plaintiff sued under admiralty law and Article 1802 of the Puerto Rico Civil Code. The district court found in his favor. The First Circuit reversed, holding there was insuffiicent evidence of causation.
There's an interesting discussion whether First Circuit precedent requires negligence under admiralty law (apparently some decisions seem difficult to align with others). But whatever that standard, the Court (with Judges Howard and Siler from the Sixth Circuit) said that a plaintiff must still prove that the defendant's conduct caused the damage claimed.
Basically, the Court described the evidence as not showing that the chronic problems with the boat were the result of the defendant's actions in repairing the boat. That a gazillion repairs were needed, "without more, cannot be taken to establish that it was Marine World's unworkmanlike conduct that brought about the need for repairs."
It's here we get the Court's pinpointing of the basics of tort law – "if the hypothesis is that Marine World's unworkmanlike performance caused the need for the repreated repairs, then the fact that the repairs were required cannot itself be adduced as evidence supporting that hypothesis — it is what needs explaining, and so cannot, on pain of circularity, be what does the explaining." (With a typical Judge Torruella flourish, he drops a footnote citing Moliere for this proposition.)
To me perhaps the most stunning thing about this case is that the plaintiff couldn't find or didn't look for the opinion of some expert to identify the problem and opine that it was the defendant's fault. Maybe in the boat world, there are many mysteries of the deep that cannot be explained even by consultants. In any event, this decision confirms that sometimes burdens of proof are critical and res ipsa loquitor is a very narrow concept. In the absence of some proof linking the defendant's actions to the plaintiff's harm, general indications that something is very wrong isn't enough.
In short, sometimes the rule remains buyer beware. If you buy a turkey "as is," and there's no statute to protect you, propelling you into arguing that the fault lies not in the original lemon-ness of the purchase, but in failing to fix it, then you have to prove it with more than a litany of endless break downs. Causation matters.