Law Commons^™

Tort Liability And Unawareness, Surajeet Chakravarty, David Kelsey, Joshua C. Teitelbaum

Georgetown Law Faculty Publications and Other Works

We explore the implications of unawareness for tort law. We study cases where injurers and victims initially are unaware that some acts can yield harmful consequences, or that some acts or harmful consequences are even possible, but later become aware. Following Karni and Vierø (2013), we model unawareness by Reverse Bayesianism. We compare the two basic liability rules of Anglo-American tort law, negligence and strict liability, and argue that negligence has an important advantage over strict liability in a world with unawareness—negligence, through the stipulation of due care standards, spreads awareness about the updated probability of harm.

America’S “Kia Boys”: The Problem, Responses, And Recommendations, Drew Thornley

Seattle University Law Review SUpra

The landscape of automobile theft in the United States has undergone a dramatic transformation, marked by a notable surge in the theft of Kia and Hyundai vehicles. Once regarded as a routine occurrence, car thefts have taken on a novel dimension, propelled by a phenomenon driven by digital culture and social media virality. The thefts of these specific car brands have evolved into what is now widely recognized as the "Kia Challenge," a term echoing across popular platforms like TikTok. In this challenge, young teenage individuals, often referred to as the "Kia Boys" or variations thereof, orchestrate daring car heists, …

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 …

Big Oil Liability In Canada: Lessons From The Us And The Netherlands, David W-L Wu

Dalhousie Law Journal

The number of nuisance and negligence tort claims in the US against “Big Oil” companies have grown significantly in the last five years. The Netherlands case of Milieudefensie et al v Royal Dutch Shell represents the first major success of such a claim internationally. While the US cases and Milieudefensie demonstrate starkly different approaches as to how to seek accountability from Big Oil for climate change harms, the increasing judicial engagement on these issues may mean the time is right for similar lawsuits in Canada. Three Canadian common law causes of action are examined: nuisance, negligence, and unjust enrichment. Defences …

Examining The New Standard Of Care For Medical Advice And Patients With Mental Health Conditions, Gary Kok Yew Chan

Research Collection Yong Pung How School Of Law

In 2017, the Singapore Court of Appeal in Hii Chii Kok v Oii Peng Jin London Lucien (Hii Chii Kok) favoured a patient-centric approach towards issues of providing medical advice. Section 37 of the Singapore Civil Law Act, which took effect on 1 July 2022, stipulates that the standard of care in giving medical advice to patients is based on peer professional opinion. This article will analyse, with reference to other common law jurisdictions, how the new statutory provision applies to patients with mental disorders under the Singapore Mental Capacity Act 2008. It will provide an interpretation of s 37 …

A Corrective Justice Account Of Building Authority Liability In Canadian Negligence Law, Jonathan De Vries

Electronic Thesis and Dissertation Repository

In its decisions in Kamloops v Neilsen and Rothfield v Manolakos, the Supreme Court of Canada adopted a policy-driven justification for imposing liability on building authorities whenever the negligent exercise of their building regulation mandate led to any member of the public suffering any form of foreseeable loss. From its beginnings, this legal doctrine was incoherent and unjustified. It has also become an aberration within Canadian law as, beginning with the decision in Cooper v Hobart, the Supreme Court of Canada resiled from its earlier policy-based approach to imposing liability. What is required is a repudiation of the …

Differentiating Strict Products Liability’S Cost-Benefit Analysis From Negligence, Paul F. Rothstein, Ronald J. Coleman

Georgetown Law Faculty Publications and Other Works

Dangerous products may give rise to colossal liability for commercial actors. Indeed, in 2021, the U.S. Supreme Court denied certiorari in Johnson & Johnson v. Ingham, permitting a more than two billion dollar products liability damages award to stand. In his dissenting opinion in another recent products liability case, Air and Liquid Systems Corp. v. DeVries, Justice Gorsuch declared that “[t]ort law is supposed to be about aligning liability with responsibility.” However, in the products liability context, there have been ongoing debates concerning how best to set legal rules and standards on tort liability. Are general principles of …

Tort Theory And The Restatement, In Retrospect, Keith N. Hylton

Faculty Scholarship

This is my third paper on the Restatement (Third) of Torts. In my first paper, The Theory of Tort Doctrine and the Restatement (Third) of Torts, I offered a positive economic theory of the tort doctrine that had been presented in the Restatement (Third) of Torts: General Principles, and also an optimistic vision of how positive theoretical analysis could be integrated with the Restatement project. In my second paper, The Economics of the Restatement and of the Common Law, I set out the utilitarian-economic theory of how the common law litigation process could generate optimal (efficient, wealth-maximizing) rules and compared …

Civil Liability For Sexual Misconduct, Mike K. Steenson

Mitchell Hamline Law Review

No abstract provided.

The Tiktok Algorithm Is Good, But Is It Too Good? Exploring The Responsibility Of Artificial Intelligence Systems Reinforcing Harmful Ideas On Users, Julianne Gabor

Catholic University Journal of Law and Technology

No abstract provided.

The Tort Whisperer: Nine Decades Later–My Perspective, Larry M. Roth

Touro Law Review

This Article provides a comparative analysis of Judge Benjamin Cardozo’s tort decisions in Palsgraf v. Long Island Railroad Co., one of his most famous tort decisions, contrasted with a lesser-known tort opinion in Hynes v. New York Central Railroad Co. The Author attempts to address Cardozo’s humanistic and intellectual dichotomies which are exemplified by these two real-life tort precedents—one of which, Palsgraf, most practitioners may only have a distant recall. A historical overview of Cardozo’s life is also discussed. These two decisions portray Cardozo as an emotive human being exercising hit-or-miss judging. This theme provides a differ viewpoint from Cardozo’s …

The "Accident Network": A Network Theory Analysis Of Proximate Causation, Anat Lior

Marquette Law Review

In torts, proximate causation, or legal cause, examines whether harmful negligent conduct is “closely enough related” to the damages that ensue. Torts professors often use the metaphor of a stone being thrown into a pond to explain this rather amorphous legal doctrine. The ripples the stone creates surrounding it are the direct result of the act of it being thrown. The stone tossed into the pond, i.e., a negligent act, created an effect which perpetuated via ripples to a long distance, forever changing the entire pond, i.e., causing close and far damages. Can all of those affected by the negligent …

Minding Accidents, Teneille R. Brown

University of Colorado Law Review

Tort doctrine states that breach is all about conduct. Unlike in the criminal law context, where jurors must engage in amateur mindreading to evaluate mens rea, jurors are told that they can assess civil negligence by looking only at the defendant’s external behavior. But this is false. Here I explain why, by incorporating the psychology of foresight. Foreseeability is at the heart of negligence—appearing as the primary test for duty, breach, and proximate cause. And yet, it has been called a “vexing morass” and a “malleable standard” because it is so poorly understood. This Article refines and advances the construct …

Georges V. State, 249 A.3d 1261 (R.I. 2021), Logan Faucher

Roger Williams University Law Review

No abstract provided.

Tort Law Implications Of Compelled Physician Speech, Nadia N. Sawicki

Indiana Law Journal

Abortion-specific informed consent laws in many states compel physicians to communicate state-mandated information that is arguably inaccurate, immaterial, and inconsistent with their professional obligations. These laws face ongoing First Amendment challenges as violations of the constitutional right against compelled speech. This Article argues that laws compelling physician speech also pose significant problems that should concern scholars of tort law.

State laws that impose tort liability on physicians who refuse to communicate a state-mandated message often do so by deviating from foundational principles of tort law. Not only do they change the substantive disclosure duties of physicians under informed consent law, …

Tort Law: Cases And Commentaries, Samuel Beswick

All Faculty Publications

The law of obligations concerns the legal rights and duties owed between people. Three primary categories make up the common law of obligations: tort, contract, and unjust enrichment. This coursebook provides an introduction to tort law: the law that recognises and responds to civil wrongdoing. The material is arranged in two parts. Part I comprises §§1-11 and addresses intentional and dignitary torts and the overarching theories and goals of tort law. Part II comprises §§12-25 and addresses no-fault compensation schemes, negligence, nuisance, strict liability, and tort law’s place within our broader legal systems.

Themes explored within this coursebook include:

• …

Contract Remedies Need Not Undercompensate Aspiring Parents When Cryopreserved Reproductive Material Is Lost Or Destroyed: Recovery Of Consequential Damages For Emotional Disturbance When Breach Of Contract Results In The Lost Opportunity To Become Pregnant With One's Own Biological Child, Joseph M. Hnylka

Journal of Law and Health

The Center for Disease Control and Prevention (CDC) has reported that the use of assisted reproductive technology (ART) has doubled over the past decade. In vitro fertilization (IVF) is the most prevalent form of ART. During IVF, a woman’s eggs are extracted, fertilized in a laboratory setting, and then implanted in the uterus. Many IVF procedures use eggs or sperm that were stored using a process called cryopreservation. A recent survey reported that cryopreservation consultations increased exponentially during the coronavirus pandemic, rising as much as 60 percent. It is estimated that more than one million embryos are stored in cryopreservation …

Contracting Out Liability For Negligent Pre-Contractual Misrepresentation, Daniele Bertolini

Dalhousie Law Journal

This article examines the extent to which entire agreement clauses (EACs) and non-reliance clauses (NRCs) are enforceable to preclude actions for negligent pre-contractual misrepresentations. It is argued that courts could improve legal certainty and contractual fairness by adopting two distinct legal rules to be applied, respectively, to contracts between sophisticated parties and in adhesion contracts. First, it is suggested that in contracts between sophisticated parties only specific contractual barriers to actions should provide a complete defence against negligent misrepresentation claims. Under this rule, the exclusionary effect of EACs and NRCs would be achieved only if an express term of the …

Computational Complexity And Tort Deterrence, Joshua C. Teitelbaum

Georgetown Law Faculty Publications and Other Works

Standard formulations of the economic model of tort deterrence constitute the injurer as the unboundedly rational bad man. Unbounded rationality implies that the injurer can always compute the solution to his care-taking problem. This in turn implies that optimal liability rules can provide robust deterrence, for they can always induce the injurer to take socially optimal care. In this paper I examine the computational complexity of the injurer's care-taking problem. I show that the injurer's problem is computationally tractable when the precaution set is unidimensional or convex, but that it is computationally intractable when the precaution set is multidimensional and …

The Euclid Proviso, Ezra Rosser

Articles in Law Reviews & Other Academic Journals

This Article argues that the Euclid Proviso, which allows regional concerns to trump local zoning when required by the general welfare, should play a larger role in zoning's second century. Traditional zoning operates to severely limit the construction of additional housing. This locks in the advantages of homeowners but at tremendous cost, primarily in the form of unaffordable housing, to those who would like to join the community. State preemption of local zoning defies traditional categorization; it is at once both radically destabilizing and market-responsive. But, given the ways in which zoning is a foundational part of the racial and …

Where We’Re Going, We Don’T Need Drivers: Autonomous Vehicles And Ai-Chaperone Liability, Peter Y. Kim

Catholic University Law Review

The future of mainstream autonomous vehicles is approaching in the rearview mirror. Yet, the current legal regime for tort liability leaves an open question on how tortious Artificial Intelligence (AI) devices and systems that are capable of machine learning will be held accountable. To understand the potential answer, one may simply go back in time and see how this question would be answered under traditional torts. This Comment tests whether the incident involving an autonomous vehicle hitting a pedestrian is covered under the traditional torts, argues that they are incapable of solving this novel problem, and ultimately proposes a new …

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

Marine Affairs Institute Staff Publications

No abstract provided.

Keeping Ai Under Observation: Anticipated Impacts On Physicians' Standard Of Care, Iria Giuffrida, Taylor Treece

Faculty Publications

As Artificial Intelligence (AI) tools become increasingly present across industries, concerns have started to emerge as to their impact on professional liability. Specifically, for the medical industry--in many ways an inherently "risky" business--hospitals and physicians have begun evaluating the impact of Al tools on their professional malpractice risk. This Essay seeks to address that question, zooming in on how AI may affect physicians' standard of care for medical malpractice claims.

Strict Liability Upon Gunowners (Slug): A Proposed Balanced Approach, David Louis

St. Mary's Law Journal

Careless or apathetic gunowners, whose lost or stolen firearms are used in the commission of a violent crime, should be held strictly liable. Current tort law leaves victims of gun violence and their families without a mode of redress against an irresponsible gun owner whose actions played a pivotal role in the victim’s ultimate injury. Without effective liability principles to regulate gun ownership, gunowners are provided de facto immunity regardless of whether the harm suffered by the victim is intertwined with the gunowners careless behavior. This comment examines the efficacy of existing tort liability principles as provided in the Restatement …

Grotheer V. Escape Adventures, Inc., Paisley Piasecki

NYLS Law Review

No abstract provided.

Accountability, Eugenics, And Reproductive Justice, Susan Frelich Appleton

Scholarship@WashULaw

This analysis contributes to an online symposium on Dov Fox’s book BIRTH RIGHTS AND WRONGS: HOW MEDICINE AND TECHNOLOGY ARE CHANGING REPRODUCTION AND THE LAW. Using eugenics and reproductive justice as points of departure, this review highlights both strengths and weaknesses in Fox’s approach.

Death Be Not Strange. The Montreal Convention’S Mislabeling Of Human Remains As Cargo And Its Near Unbreakable Liability Limits, Christopher Ogolla

Dickinson Law Review (2017-Present)

This article discusses Article 22 of the Convention for the Unification of Certain Rules for International Carriage by Air (“The Montreal Convention”) and its impact on the transportation of human remains. The Convention limits carrier liability to a sum of 19 Special Drawing Rights (SDRs) per kilogram in the case of destruction, loss, damage or delay of part of the cargo or of any object contained therein. Transportation of human remains falls under Article 22 which forecloses any recovery for pain and suffering unaccompanied by physical injury. This Article finds fault with this liability limit. The Article notes that if …

The Externality Of Victim Care, Alan J. Meese

Alan J. Meese

No abstract provided.

Perverting Incentives When The Priceless Is Not Compensable: Victims’ Subjective Value In Negligence, Yehonatan Shiman

West Virginia Law Review

No abstract provided.

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

Jill M. Fraley

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.