Law Commons^™

Tort Liability For Physical Harm To Police Arising From Protest: Common-Law Principles For A Politicized World, Ellen M. Bublick, Jane R. Bambauer

UF Law Faculty Publications

When police officers bring tort suits for physical harms suffered during protest, courts must navigate two critically important sets of values—on the one hand, protesters’ rights to free speech and assembly, and on the other, the value of officers’ lives, health, and rights of redress. This year courts, including the United States Supreme Court, must decide who, if anyone, can be held accountable for severe physical harms suffered by police called upon to respond to protest. Two highly visible cases well illustrate the trend. In one, United States Capitol Police officers were injured on January 6, 2021, during organized attempts …

Risky Speech Systems: Tort Liability For Ai-Generated Illegal Speech, Margot E. Kaminski

Publications

No abstract provided.

Locating Liability For Medical Ai, W. Nicholson Price Ii, I. Glenn Cohen

Articles

When medical AI systems fail, who should be responsible, and how? We argue that various features of medical AI complicate the application of existing tort doctrines and render them ineffective at creating incentives for the safe and effective use of medical AI. In addition to complexity and opacity, the problem of contextual bias, where medical AI systems vary substantially in performance from place to place, hampers traditional doctrines. We suggest instead the application of enterprise liability to hospitals—making them broadly liable for negligent injuries occurring within the hospital system—with an important caveat: hospitals must have access to the information needed …

Shields Up For Software, Derek E. Bambauer, Melanie J. Teplinsky

UF Law Faculty Publications

This Article contends that the National Cybersecurity Strategy's software liability regime should incorporate two safe harbors. The first would shield software creators and vendors from liability for decisions related to design, implementation, and maintenance, as long as those choices follow enumerated best practices. The second—the “inverse safe harbor”—would have the opposite effect: coders and distributors who engaged in defined worst practices would automatically become liable. This Article explains the design, components, and justifications for these twin safe harbors. The software safe harbors are key parts of the overall design of the new liability regime and work in tandem with the …

Where's The Insurance In Mass Tort Litigation?, Tom Baker

Articles

This article reports and explains four key findings about the difference between the role of insurance in mass tort litigation and the role of insurance in ordinary tort and corporate governance litigation as reported in earlier research: (1) outside of the insolvency context, mass tort plaintiff lawyers do not build their litigation and settlement strategy around defendants’ liability insurance; (2) mass tort defendants typically retain control over their defense, even when they recover under insurance policies that assign the insurer control over their defense; (3) mass tort defendants typically use their own funds to settle claims, obtaining indemnification from their …

Why Indiana Harbor Is The Worst Torts Decision In American History, Carl T. Bogus

Law Faculty Scholarship

No abstract provided.

Platform Accountability: Gonzalez And Reform, Eric Schnapper

Presentations

Section 230(c)(1) was adopted for the purpose of distinguishing between conduct of third parties and conduct of internet companies themselves. Its familiar language provides that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” The last four words are central to the limitation on the defense created by the statute; it is only regarding information created by “another” that the defense may be available. Section 230(e)(3) makes clear that even a partial role played by an internet company in the creation of harmful …

Liability For Use Of Artificial Intelligence In Medicine, W. Nicholson Price, Sara Gerke, I. Glenn Cohen

Law & Economics Working Papers

While artificial intelligence has substantial potential to improve medical practice, errors will certainly occur, sometimes resulting in injury. Who will be liable? Questions of liability for AI-related injury raise not only immediate concerns for potentially liable parties, but also broader systemic questions about how AI will be developed and adopted. The landscape of liability is complex, involving health-care providers and institutions and the developers of AI systems. In this chapter, we consider these three principal loci of liability: individual health-care providers, focused on physicians; institutions, focused on hospitals; and developers.

Maintenance Of Water And Sewer Infrastructure In Response To Sea Level Rise In Massachusetts, Melissa Chalek

Marine Affairs Institute Staff Publications

No abstract provided.

Law School News: Logan To Serve As Adviser On Restatement Third Of Torts 11-07-2019, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

First Transit V. Chernikoff, 135 Nev. Adv. Op. 32 (Aug. 1, 2019), Michael Holthus

Nevada Supreme Court Summaries

The Court clarified that (1) the heightened duty of care by common carriers only applies to transportation-related risks, and (2) when a common carrier is aware of a passenger’s disability, reasonable care includes providing safe transport that the circumstances reasonably require based on the disability.

Should Automakers Be Responsible For Accidents?, Kyle D. Logue

Articles

Motor vehicles are among the most dangerous products sold anywhere. Automobiles pose a larger risk of accidental death than any other product, except perhaps opioids. Annual autocrash deaths in the United States have not been below 30,000 since the 1940s, reaching a recent peak of roughly 40,000 in 2016. And the social cost of auto crashes goes beyond deaths. Auto-accident victims who survive often incur extraordinary medical expenses. Those crash victims whose injuries render them unable to work experience lost income. Auto accidents also cause nontrivial amounts of property damage—mostly to the automobiles themselves, but also to highways, bridges, or …

The Role Of Fault In § 1983 Municipal Liability, Michael Wells

Scholarly Works

Under Monell v. Department of Social Services, local governments are not vicariously liable for constitutional violations committed by their employees. Those governments, however, are liable under 42 U.S.C. § 1983 for violations committed by "policymaking" officials. In the face of these two principles, courts have struggled with cases in which an underling commits a constitutional violation and the claim of municipal liability is based on a policymaker's failure to prevent it. The government can be liable in these "indirect-effect" cases for a policymaker's "deliberate indifference" to safeguarding constitutional rights, a standard that demands an even greater showing of culpability than …

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 …

Liability For Unintentional Nuisances: How The Restatement Of Torts Almost Negligently Killed The Right To Exclude In Property Law, Jill M. Fraley

Scholarly Articles

This article argues that nuisance was historically unique in tort law because of its special role in protecting property rights.' In other words, nuisance historically had distinct features addressed to the special situation of land. Most importantly, nuisance protected the right to exclude in a way that no other cause of action did. The Second Restatement's change then diminished our rights to private property to the extent that it has been adopted. The majority of courts retain the more logical and defensible position--that property rights are special and nuisance encompasses something more than the idea of negligence.

Negligent Entrustment In Gun Industry Litigation: A Primer, Kate E. Britt

Law Librarian Scholarship

Deep pocket jurisprudence, where plaintiffs name corporations as codefendants of less wealthy individual tortfeasors, is not uncommon in tort litigation. When the plaintiffs are victims of gun violence and the corporate defendants are firearms manufacturers, however, these suits are particularly controversial. Instead of aiming to make the victims whole, these suits are opposed (or supported) as attempts to regulate the firearms industry on a widespread basis. This article explores some of the resources available to understand the recent history of suits against firearms manufacturers.

Treating Wrongs As Wrongs: An Expressive Argument For Tort Law, Scott Hershovitz

Articles

The idea that criminal punishment carries a message of condemnation is as commonplace as could be. Indeed, many think that condemnation is the mark of punishment, distinguishing it from other sorts of penalties or burdens. But for all that torts and crimes share in common, nearly no one thinks that tort has similar expressive aims. And that is unfortunate, as the truth is that tort is very much an expressive institution, with messages to send that are different, but no less important, than those conveyed by the criminal law. In this essay, I argue that tort liability expresses the judgment …

Arkansas, Meet Tarasoff: The Question Of Expanded Liability To Third Persons For Mental Health Professionals, J. Thomas Sullivan

Faculty Scholarship

No abstract provided.

An Intentional Tort Theory Of Patents, Saurabh Vishnubhakat

Faculty Scholarship

This Article challenges the dogma of U.S. patent law that direct infringement is a strict liability tort. Impermissibly practicing a patented invention does create liability even if the infringer did not intend to infringe or know about the patent. The consensus is that this is a form of strict liability. The flaw in the consensus is that it proves too little, for the same is true of intentional torts: intent to commit the tort is unnecessary, and ignorance of the legal right is no excuse. What is relevant is intent to perform the action that the law deems tortious. So …

Encouraging Insurers To Regulate: The Role (If Any) For Tort Law, Kyle D. Logue

Articles

Insurance companies are financially responsible for a substantial portion of the losses associated with risky activities in the economy. The more insurers can lower the risks posed by their insureds, the more competitively they can price their policies, and the more customers they can attract. Thus, competition forces insurers to be private regulators of risk. To that end, insurers deploy a range of techniques to encourage their insureds to reduce the risks of their insured activities, from charging experience-rated premiums to discounting premium rates for insureds who make specific behavioral changes designed to reduce risk. Somewhat paradoxically, however, tort law …

Newsroom: Logan On Drone Law, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Summary Of Karen Brown V. Eddie World, Inc.; And Stagecoach Hotel And Casino, Inc., 131 Nev. Adv. Op. 19 (April 16, 2015), Daven Cameron

Nevada Supreme Court Summaries

While acknowledging the enforcement gaming laws as a fundamental public policy in Nevada, the Court declined to recognize a common law cause of action for third-party retaliatory discharge.

Cocktails On Campus: Are Libations A Liability?, Susan S. Bendlin

Faculty Scholarship

No abstract provided.

Hitting A Home Run In Your Writing, David Spratt

Articles in Law Reviews & Other Academic Journals

No abstract provided.

The Role Of Litigation In The Fight Against Prescription Drug Abuse, Richard C. Ausness

Law Faculty Scholarly Articles

Prescription drug abuse problems have prompted a number of responses by both drug users (and abusers) and by various federal and state government agencies.

Part I of this Article examines the impressive array of liability theories that individual litigants have relied upon in their lawsuits against Purdue. These theories include: negligence; strict products liability, including design defect and inadequate warning claims; breach of the implied warranty of merchantability; violation of state consumer protection statutes; negligent marketing; fraudulent misrepresentation; civil conspiracy; and "malicious conduct." Purdue, the company that developed OxyContin, has pursued an aggressive "no settlement" policy and has chosen to …

Review Of Corrective Justice, By E. Weinrib, Scott Hershovitz

Reviews

I once heard it said of a famous philosopher of law that he never allowed his philosophy to be polluted by law. No one will ever say that about Ernie Weinrib. His latest book - Corrective Justice - is exceptional precisely because Weinrib is deeply informed about legal doctrine. Of course, he also has formidable philosophical skill, and in bringing that to bear on doctrine, he dismantles any thought that corrective justice is too abstract a concept to shed light on the practical problems that courts face. Along the way, he also demol­ ishes the instrumentalism that has recently dominated …

Who Owes How Much? Developments In Apportionment And Joint And Several Liability Under O.C.G.A. § 51-12-33, Thomas A. Eaton

Scholarly Works

Without question, O.C.G.A. 51-12-13 as construed in McReynolds and Couch ushers in a new era in Georgia tort law. It topples the old regime in which multiple tortfeasors were held jointly liable when their combined acts of negligence injured an innocent plaintiff. The new regime is one of apportionment and liability limited to one's personal share of fault. Fault may be apportioned when it previously could not. It may be apportioned to those who are immune, to those who are unknown, and even to those who intentionally injure an innocent plaintiff. The practical consequence of this regime change is to …

Malpractice Liability Related To Foreign Outsourcing Of Legal Services, Vincent R. Johnson, Stephen C. Loomis

Faculty Articles

The outsourcing of client-related tasks to service providers in other countries is likely to generate malpractice claims against American law firms. This Article discusses the wide range of theories under which an outsourcing American law firm may be liable for its own negligence or for the actions of outsourcing providers. These theories include negligence by the outsourcing law firm, vicarious liability for the conduct of firm principals and employees, vicarious liability for the conduct of independent contractors, and vicarious liability for the conduct of business partners.

Preparatory Negligence, Robert H. Heidt

Articles by Maurer Faculty

This Essay discusses the appropriate significance in tort law of a negligent attempt to perform an injurious activity when the evidence is insufficient to show the actual performance of the activity was negligent. The author calls such a negligent attempt uncoupled with sufficient evidence of negligent performance "preparatory negligence." An example would be driving a car when one is so inebriated that the decision to drive is negligent but those injured in a subsequent accident are unable to show the inebriated driver's actual driving was negligent. The author argues that preparatory negligence alone should never warrant tort liability. Rather, those …

Bending Nature, Bending Law, David Owen

Faculty Publications

No abstract provided.