Digital Commons Network^™

The Internet Of Torts: Expanding Civil Liability Standards To Address Corporate Remote Interference, Rebecca Crootof

Law Faculty Publications

Thanks to the proliferation of internet-connected devices that constitute the “Internet of Things” (“IoT”), companies can now remotely and automatically alter or deactivate household items. In addition to empowering industry at the expense of individuals, this remote interference can cause property damage and bodily injury when an otherwise operational car, alarm system, or implanted medical device abruptly ceases to function.

Even as the potential for harm escalates, contract and tort law work in tandem to shield IoT companies from liability. Exculpatory clauses limit civil remedies, IoT devices’ bundled object/service nature thwarts implied warranty claims, and contractual notice of remote interference …

An Analysis Of Intentional Infliction Of Emotional Distress Claims In The Virginia Workplace, Stephen Allred

Law Faculty Publications

"Linda Bodewig enjoyed her job as a cashier at her local K-Mart in Oregon, and she had worked there without incident until the evening of March 29, 1979. That evening, she was ringing up the sale of some curtains for a customer named Alice Golden, but when she called out the price, Golden told her that the curtains were on sale and that Bodewig was overcharging her. Bodewig asked a coworker to go check the price of the curtains, and as Golden accompanied the coworker to go to the aisle where the curtains were displayed, Bodewig set aside Golden’s purchases …

Qualified Immunity And Fault, John F. Preis

Law Faculty Publications

As a general rule, liability correlates with fault. That is, when the law declares a person liable, it is usually because the person is, in some sense, at fault. Similarly, when the law does not declare a person liable, it is usually because the person is not deemed to be at fault. There are exceptions, of course. A storekeeper who unwittingly sells a product that harms another may be held liable under the doctrine of strict liability, despite her blameless conduct. Similarly, a website owner who knowingly permits others to post defamatory statements on her website is not liable, despite …

International Cybertorts: Expanding State Accountability In Cyberspace, Rebecca Crootof

Law Faculty Publications

States are not being held accountable for the vast majority of their harmful cyberoperations, largely because classifications created in physical space do not map well onto the cyber domain. Most injurious and invasive cyberoperations are not cybercrimes and do not constitute cyberwarfare, nor are states extending existing definitions of wrongful acts permitting countermeasures to cyberoperations (possibly to avoid creating precedent restricting their own activities). Absent an appropriate label, victim states have few effective and nonescalatory responsive options, and the harms associated with these incidents lie where they fall.

This Article draws on tort law and international law principles to construct …

"Why Won't My Homeowners Insurance Cover My Loss?": Reassessing Property Insurance Concurrent Causation Coverage Disputes, Peter N. Swisher

Law Faculty Publications

Property insurance coverage disputes can be extremely complex cases when there are multiple concurrent causes in a causal chain of events and when some of these concurrent causes are covered under the policy language but other concurrent causes are excluded from coverage. To complicate matters enormously, there are no fewer than three different judicial approaches attempting to resolve this concurrent causation interpretive conundrum. Over the past two decades, a number of property insurance companies have attempted to address this interpretive problem contractually by inserting so-called anti-concurrent causation clauses into their property insurance policy language. But these anti-concurrent causation clauses have …

Virginia Should Abolish The Archaic Tort Defense Of Contributory Negligence And Adopt A Comparative Negligence Defense In Its Place, Peter N. Swisher

Law Faculty Publications

The purpose of this essay is to argue that the time has now come for Virginia, by judicial or legislative action, to abolish its archaic common law tort defense of contributory negligence and replace it with a comparative negligence defense. Adopting a comparative negligence defense would more equitably and more fairly recognize and apportion damages according to the bedrock underlying tort legal principles of accountability, deterrence, and distribution of loss.

Doctrinal Feedback And (Un)Reasonable Care, James Gibson

Law Faculty Publications

The law frequently derives its content from the practices of the community it regulates. Examples are legion: Tort's reasonable care standard demands that we all exercise the prudence of an "ordinary" person. Ambiguous contracts find meaning in custom and usage of trade. The Fourth Amendment examines our collective expectations of privacy. And so on. This recourse to real-world circumstance has in-tuitive appeal, in that it helps courts resolve fact-dependent disputes and lends legitimacy to their judgments. Yet real-world practice can depart from that which the law expects. For example, suppose a physician provides more than reasonable care - extra tests, …

Beyond The Liability Wall: Strengthening Tort Remedies In International Environmental Law, Noah M. Sachs

Law Faculty Publications

Despite decades of effort, the international community has stumbled in attempts to craft tort remedies for victims of transboundary environmental damage. More than a dozen civil liability treaties have been negotiated that create causes of action and prescribe liability rules, but few have entered into force, and most remain unadapted orphans in international environmental law. In this Article, I explain the problematic record of tort liability regimes by developing a theoretical model of liability negotiations grounded in regime theory from political science. Based on this model, I conclude that negotiated liability regimes have foundered because of three main roadblocks: ( …

Fda Regulatory Compliance Reconsidered, Carl W. Tobias

Law Faculty Publications

Many observers consider the Food and Drug Administration (FDA) vital for the protection of consumer health and safety. One hundred years ago, Congress established the entity that would become the FDA and authorized it to regulate foods and drugs, critical responsibilities that the agency has long discharged carefully. Throughout the past century, the FDA's regulatory power has expanded systematically, albeit gradually, while legislatures and courts in the fifty American jurisdictions broadened liability exposure for manufacturers that sold defective products that injured consumers. Observers have recently criticized the agency for overseeing pharmaceuticals too leniently, even as states increasingly narrowed manufacturers' liability …

Alternative State Remedies In Constitutional Torts, John F. Preis

Law Faculty Publications

In recent years, a subtle shift in constitutional tort doctrine has quietly begun to take root. In Bivens actions, the Supreme Court has recently implied that constitutional tort plaintiffs must seek relief under state law when it is available, rather than invoke their federal constitutional rights. This marks a dramatic change from past practices. For much of the twentieth century, a central premise in the constitutional tort field has been that the federal remedy is "supplementary" to the state remedy; constitutional tort plaintiffs have therefore been permitted to seek a remedy under federal law without regard to the availability of …

Proposed Legislation: A (Second) Modest Proposal To Protect Virginia Consumers Against Defective Products, Peter N. Swisher

Law Faculty Publications

The purpose of this article is to suggest a viable, necessary, and eminently reasonable legislative alternative that the Virginia General Assembly should enact for legitimate and pressing public policy reasons in order to properly protect Virginia consumers from defective and unreasonably dangerous consumer products. Adopting this alternative would bring the Commonwealth of Virginia into the mainstream of twenty-first century American, and transnational, products liability law.

Causation Requirements In Tort And Insurance Law Practice: Demystifying Some Legal Causation Riddles, Peter N. Swisher

Law Faculty Publications

Legal causation requirements, in both tort and insurance law, rank among the most pervasive yet most elusive and most misunderstood of all legal concepts in Anglo-American law for legal practitioners, the courts,' and academic scholars alike. Indeed, no less an authority than William Lloyd Prosser has stated that there "is perhaps nothing in the entire field of law which has called forth more disagreement, or upon which the opinions are in such a welter of confusion" than proximate cause issues, "despite the manifold attempts which have been made to clarify the subject."

Although some commentators have looked upon legal causation's …

Reassessing Charitable Immunity In Virginia, Carl W. Tobias

Law Faculty Publications

Although most states have legislatively or judicially abolished the once-prevalent doctrine of charitable immunity, the Supreme Court of Virginia and the Virginia General Assembly have essentially retained the doctrine intact. Moreover, the Supreme Court of Virginia has declared on numerous occasions that it is the prerogative of the General Assembly, not the court, to abolish charitable immunity. Because Virginia doctrinal developments which involve charitable immunity do not comport with trends across the country and have significant implications for plaintiffs, and for defendants which assert charitable immunity, these doctrinal developments warrant analysis. This essay undertakes that effort.

Health Courts: Panacea Or Palliative?, Carl W. Tobias

Law Faculty Publications

Professor Tobias weighs the pros and cons of legislation proposed in several states that would create "health courts" for the handling of medical malpractice cases.

Procedural Provisions In Nevada Medical Malpractice Reform, Carl W. Tobias

Law Faculty Publications

In late July 2002, a special session of the Nevada Legislature passed medical malpractice reform legislation. The expressly-stated purpose of this statute is remedying, or at least ameliorating, the "serious threat to the health, welfare and safety of [Nevada] residents" which is posed by the state's "extreme difficulties attracting and maintaining a sufficient network of physicians to meet [residents'] needs." Moreover, the measure emphasizes substantive reforms that are primarily intended to limit the potential liability of certain health care providers for negligent actions. However, the legislation encompasses numerous "procedural" provisions, which may be equally important as the substantive reforms that …

Insurance Causation Issues: The Legacy Of Bird V. St. Paul Fire & Marine Ins. Co., Peter N. Swisher

Law Faculty Publications

In all of Anglo-American law, there is no concept that has been as been so pervasive - and yet so elusive - as the causation requirement; and even today this causation requirement in American law has resisted all efforts to reduce it to a useful, understandable, and comprehensive formula regarding its underlying nature, content, scope, and significance. Indeed, no less an authority than William Lloyd Prosser has stated that there "is perhaps nothing in the entire field of the law which has called forth more disagreement, or upon which the opinions are in such a welter of confusion" than legal …

Modern Tort Law Demystified, Carl W. Tobias

Law Faculty Publications

Review of Peter Bell & Jeffery O'Connell, Accidental Justice: The Dilemmas of Tory Law (1997).

Intentional Infliction Of Mental Distress In Nevada, Carl W. Tobias

Law Faculty Publications

The independent cause of action for the intentional infliction of mental distress (IIMD) is the only modern intentional tort for physical injury to persons. State court judges in the United States initially recognized the freestanding cause of action during the mid-twentieth century. Nevertheless, considerable confusion has attended the judicial recognition, articulation, and application of this tort in a substantial number of American jurisdictions. The jurisprudence of IIMD that members of the Nevada Supreme Court as well as attorneys and litigants in Nevada have developed has remained rather clear, although the justices have decided comparatively few cases in which they have …

The Imminent Demise Of Interspousal Tort Immunity, Carl W. Tobias

Law Faculty Publications

During the decade of the 1980s, I extensively explored the doctrine of interspousal tort immunity in the United States. I examined the origins and development of the concept; how the notion survived intact in every jurisdiction throughout the nation until 1914; the first successful efforts to abolish immunity during the teens; the slow pace of abrogation in the five decades between 1920 and 1970; and the steady decline of the doctrine thereafter. Indeed, only a small number of states in the country still retain any form of interspousal tort immunity, even though some jurisdictions evince concern about certain issues involving …

Intentional Infliction Of Mental Distress In Montana, Carl W. Tobias

Law Faculty Publications

In several recent opinions, the Montana Supreme Court indicated its willingness to recognize intentional infliction of mental distress as an independent tort, even as the court stated that no plaintiff had presented a factual situation which would satisfy the elements of the cause of action. In the 1995 case of Sacco v. High Country Independent Press, Inc., the Montana Supreme Court held that an "independent cause of action for intentional infliction of emotional distress will arise under circumstances where serious or severe emotional distress to the plaintiff was the reasonably foreseeable consequence of the defendant's intentional act or omission. " …

State Of The Art In Montana Products Liability Law, Carl W. Tobias

Law Faculty Publications

The United States District Court for the District of Montana recently certified an important question of products liability law to the Montana Supreme Court. United States Senior District Judge Paul J. Hatfield certified the following question:

In a strict products liability case for injuries caused by an inherently unsafe product, is the manufacturer conclusively presumed to know the dangers inherent in his product, or is stateof- the-art evidence admissible to establish whether the manufacturer knew or through the exercise of reasonable human foresight should have known of the danger?

Because the issue of the admissibility of state-of-the-art evidence in a …

The Clinton Administration And Civil Justice Reform, Carl W. Tobias

Law Faculty Publications

Governor Bill Clinton was inaugurated as the President of the United States last month. The federal courts are one area of critical significance to the nation in which the Chief Executive can play a major role in important substantive and procedural policymaking. Moreover, President Clinton, as a former law professor and Arkansas Attorney General, may be particularly interested in issues involving the federal courts.

The Clinton Administration will have to address numerous issues that implicate the federal courts throughout its tenure, but especially during the first year in office. Some of these questions, such as the abolition of diversity jurisdiction, …

Products Liability Tort Reform: Why Virginia Should Adopt The Henderson Twerski Proposed Revision Of Section 402a, Restatement (Second) Of Torts, Peter N. Swisher

Law Faculty Publications

The purpose of this Article is fourfold: first, to illustrate that there is currently a newer, more balanced consensus view in American products liability law today; second, to demonstrate that this current, realistically balanced, consensus in American products liability law is persuasively codified in a proposed revision to section 402A, Restatement (Second) of Torts, by Professors James Henderson and Aaron Twerski; third, to compare and contrast current Virginia products liability law with the Henderson- Twerski proposed revision of section 402A; fourth, to propose new legislation in Virginia that would incorporate the Henderson-Twerski proposal, and would realistically reform existing Virginia products …

The Case For A Feminist Torts Casebook, Carl W. Tobias

Law Faculty Publications

Professor Leslie Bender's recent essay, An Overview of Feminist Torts Scholarship, contributes substantially to the construction of feminist perspectives on tort law. She carefully and comprehensively surveys burgeoning feminist scholarship in the field of torts. Professor Bender closely examines feminist histories of substantive tort law, the application of feminist theory to tort doctrine, to tort law concepts, and to the teaching of torts, tort issues that are important to women's lives, social science research involving feminism and torts, book reviews that are relevant to feminist tort law, and overviews of material that implicate feminist viewpoints of torts. After Professor Bender …

U.C.C. Survey: General Provisions, Bulk Transfers, And Documents Of Title, David Frisch

Law Faculty Publications

The 1986 Annual Survey described the "check it back to local law" approach to the Code's choice of law rules. Recent cases emphasize this. For example, in Madaus v. November Hill Farm, lnc., the U.S. District Court for the Western District of Virginia applied the Virginia pre-Code conflict of laws rules to a dispute between a West German seller of a horse and a Virginia buyer. The court applied the Virginia rule that the law applicable to the validity of a contract is the law of the jurisdiction where the final act necessary to make the contract binding was done. …

Interspousal Tort Immunity In Montana, Carl W. Tobias

Law Faculty Publications

Interspousal tort immunity has a lengthy, rich, and interesting history. But since 1970, courts and legislatures have been increasingly willing to abolish immunity, transforming it into a minority rule which appears destined for widespread elimination by the year 2000. Montana's recent experience is typical. In 1979, the Legislature abolished the rule for intentional torts. However, the Montana Supreme Court has retained the doctrine in the negligence context. The court has recently agreed to reconsider negligence immunity and, should it refuse to change the rule, the Legislature may well address the issue. Thus, it is now appropriate to analyze whether Montana …

Framework For Analysis Of Products Liability In Montana,, Carl W. Tobias, William A. Rossbach

Law Faculty Publications

This article seeks to serve the needs of the Montana bench and bar by addressing the issues likely to be raised in products liability litigation. It will describe the history of products liability nationally and in Montana and will analyze major issues by examining current directions in case law. Finally, it will offer a framework for legal analysis of products liability to assist courts and counsel in avoiding some of the pitfalls encountered in development of products liability in other jurisdictions.

Products Liability: Defenses Based On Plaintiff's Conduct, David G. Epstein

Law Faculty Publications

The past decade has seen dramatic developments in the law of products liability. There has been liberalization of the exclusive control requirement of res ipsa Ioquitur, Iegislative and judicial relaxation of the privity requirement, and creation of a new theory of recovery - strict liability in tort. Consequently, many jurisdictions now offer three theories of recovery to persons injured through use of a defective product: negligence, breach of warranty, and strict liability in tort. Although the recent products liability developments have been extensively treated both by courts and by commentators, numerous problems remain. One of the most pressing problems is …

Strict Liability In Tort: A Modest Proposal, David G. Epstein

Law Faculty Publications

Centuries ago, the noted Irish satirist, Jonathan Swift, made a "modest proposal' that the inhabitants of the Emerald Isle remedy a severe food shortage they were experiencing by eating their young. To some, a proposal of the adoption of strict liability in tort-regardless of how limited-is no more a modest proposal than Mr. Swift's. It is submitted that this opposition to strict liability in tort is at least in part due to a misunderstanding of the present state of the law as to a manufacturer's liability to injured consumers. In most jurisdictions, the adoption of strict liability in tort for …