Law Commons^™

Tax Free Damages: Trespassory Torts And Emotional Harms, Joi T. Christoff

Akron Law Review

This Article proposes a conception of the “personal physical injury” exclusion that does not require observable bodily harm. The §104 exclusion has historically been interpreted by reference to tort principles. And tort law has long recognized the legitimacy of emotional distress arising from invasions of physical interests that do not cause bodily harm, even when it would not recognize emotional distress in other contexts. The “personal physical injury” exclusion of § 104(a)(2) should be interpreted consistently with tort principles such that emotional distress damages attributable to intentional invasions into a person’s physical autonomy, security, and liberty should be excluded from …

Adding Insult To Death: Why Punitive Damages Should Not Be Imposed Against A Deceased Tortfeasor's Estate In Ohio, Alec A. Beech

Akron Law Review

A majority of jurisdictions in the United States have determined, either statutorily or judicially, that punitive damages cannot be imposed against deceased tortfeasors. However, a recent Ohio appellate court held to the contrary. In Whetstone v. Binner, the Ohio Fifth District Court of Appeals adopted the minority view when it held that punitive damages could be imposed against a decedent’s estate. This Comment takes the position that Whetstone was incorrectly decided. Specifically, this Comment argues that the longstanding purposes of punitive damages are not furthered when such damages are imposed against estates and that Ohio law supports this conclusion.

Strict Product Liability - Blood As An Unavoidably Unsafe Product; Cunningham V. Macneal Memorial Hospital, Peter D. Oldham

Akron Law Review

In conclusion, this writer respectfully disagrees with the application of Section 402A to blood cases (assuming our present facts) and believes that blood should properly be considered an unavoidably unsafe product. Professor James agrees with this position when the defect or possibility of injury from an "unavoidably unsafe product," could not be detected prior to use of the product and occurrence of the injury. This point is strengthened, he continues, when the product is "socially desirable to put it out in spite of the inevitable risk." In other words, the decision in Cunningham could be sound only if the court …

The Product Liability Of Manufacturers: An Understanding And Exploration, Donald M. Jenkins

Akron Law Review

The beginning point will be an examination of the existing theories of manufacturer's liability namely, negligence, contract warranty and strict liability. For example purposes, Ohio law will be used to illustrate the interpretative development of the law and its application. Ohio is a legitimate jurisdiction for this purpose. It has been a pace-setting jurisdiction in the development of the law and has arrived at the point of accepting the concept of strict liability for defective products. Furthermore, the evolution of product liability law in Ohio typifies the pattern that has occurred or is occurring in a majority of the other …

Strict Product Liability - Blood As An Unavoidably Unsafe Product; Cunningham V. Macneal Memorial Hospital, Peter D. Oldham

Akron Law Review

In conclusion, this writer respectfully disagrees with the application of Section 402A to blood cases (assuming our present facts) and believes that blood should properly be considered an unavoidably unsafe product. Professor James agrees with this position when the defect or possibility of injury from an "unavoidably unsafe product," could not be detected prior to use of the product and occurrence of the injury. This point is strengthened, he continues, when the product is "socially desirable to put it out in spite of the inevitable risk." In other words, the decision in Cunningham could be sound only if the court …

The Product Liability Of Manufacturers: An Understanding And Exploration, Donald M. Jenkins

Akron Law Review

The evolution and application of product liability law in the past fifteen years represents one of the most dynamic developments in law.

The result of these rapid and violent developments has been to substantially increase the susceptibility of producers to suits by members of the public in direct actions. It was assumed the crest of the wave of expanded product liability was reached with the formulation of the legal principles set forth in Section 402A of the Restatement (Second) of the Law of Torts. However, subsequent court actions proved this assumption to be invalid.

Products Liability - Strict Liability In Tort - Measure Of Proof: Defectiveness Of Product - Unreasonably Dangerous Test Abandoned: Cronin V. J.B.E. Olson Corp., Stanley M. Schultz

Akron Law Review

Thus the issue facing the court was whether California's concept of strict liability necessarily requires a showing that the defective, injury causing product was also unreasonably dangerous." They held that it does not. In arriving at this decision the court relied heavily on the language used in its landmark decision in Greenman v. Yuba Power Products, Inc.

The Reach Of The Law: Sin, Crime And Poor Taste, Alexander B. Smith, Harriet Pollack

Akron Law Review

The past decade has been a period of intensive reevaluation of the law. The criminal law, in particular, has been subjected to an especially intensive criticism. These attacks fall largely into two categories: criticisms of the legitimacy of our penal codes, and criticisms of their efficiency.
Starting with the Civil Rights Movement of the Kennedy era with its heavy emphasis on civil disobedience as a tool of protest, the legitimacy of many of our laws was called into question. When Rosa Parks sat in the front of the bus in Montgomery, Alabama, she was not simply breaking the law; she …

Order In The Courts Revisited: Progress And Prospects Of Controlling Delay In The Tort Jury Litigation Process, 1966-1973, James G. France

Akron Law Review

Early in 1969, under a grant from the Knight Foundation, measurement of delay in litigation in six northeastern Ohio counties was undertaken by a study group from University of Akron School of Law. A year later the group reported its findings as to delay in the civil jury, criminal and appellate fields in a 200-page report: Order In The Courts.

The study could show only how long it took each of the six different common pleas courts, with widely varying population loads, with differing internal organization, age and experience of judges and amount of staff support, to dispose of groups …

Medical Malpractice - Statute Of Limitations - Foreign Objects - The Adoption Of The Discovery Rule - Legislative Or Judicial Prerogative? Melnyk V. Cleveland Clinic, Alan J. Sobol

Akron Law Review

The rationale of the Court was that Melnyk could be distinguished with the recent case of Wyler v. Tripi, which held that a cause of action for medical malpractice accrues at the latest when the physician-patient relationship terminates, and which also recognized the legislature's authority to act in this area, on the basis that Wyler was not a foreign object case. Therefore, the Court felt it need not disturb the Wyler holding and could nevertheless hold the failure to remove the foreign objects in Melnyk was negligence as a matter of law and that equity and public policy require …

A Response To Lee Kreindler, Robert P. Boyle

Akron Law Review

"...the claimant does not necessarily suffer all the disadvantages Lee Kreindler notes and that there are real compensatory advantages to the international passenger under the Guatemala Protocol system."

The Federal Tort Claims Act - Absolute Liability, The Discretionary Function Exception, Sonic Booms; Laird V. Nelms, Daniel Wallen

Akron Law Review

[A]lthough the legislative history of the FTCA lends great support for the argument that the doctrine of absolute liability is an acceptable theory to employ to seek recovery under the FTCA, the Supreme Court has chosen to rely on the Dalehite decision and completely overlook later Supreme Court interpretations. The legislative history of the FTCA also indicates that the discretionary function exception must always be confronted, regardless of the theory one proceeds under to seek recovery.

Considerations Of Potential Tort Liability With Respect To Natural Draft Cooling Towers Associated With Steam-Electric Power Plants, Thomas D. Corkran

Akron Law Review

To prevent thermal pollution and to conserve our water supply, it appears that we must learn to live with natural draft cooling towers, at least for the next several decades. Proponents of natural draft cooling towers maintain that the possibility of localized fogging and icing is negligible, but the potential hazards of artificial salt fallout are very real. Also, there appears to be a trend developing in the law which could lead to an action against the operator of a natural draft cooling tower for aesthetic annoyances. There are several theories of action which might lie in such cases, but …

The Constitutionality Of The Ohio Guest Statute, Alex Shumate

Akron Law Review

This is the manner in which one writer described the court opinion written by Mr. Justice Tobriner in Brown v. Merlo, the California Supreme Court decision which declared the California automobile guest statute unconstitutional. In Brown an automobile guest, alleging both willful misconduct and negligence, brought an action against his host driver for injuries received in an automobile accident which occurred on a California highway. The trial court granted the defendant's motion for summary judgment holding that the state automobile guest statute barred recovery since the plaintiff failed to prove that the accident was caused by the driver's willful misconduct …

Manufacturer And Professional User's Liability For Defective Medical Equipment, Rosemary Rubin

Akron Law Review

One particular area of product liability, however, has been slow to accept strict liability. In the field of medical devices and equipment the courts seem reluctant to find liability without a clear showing of negligence, whether the defendant is the doctor, the hospital, or the manufacturer of the product. In this paper the focus will be on the emerging law in this area regarding medical equipment made only for use by experts, including nurses, doctors, dentists, anesthesiologists, emergency personnel and hospitals. The discussion will exclude blood and drug cases for these lead to conclusions of their own. The concentration will …

The Vicarious Liability Of Public Officials Under The Civil Rights Act, James R. Schirott, Sherry K. Drew

Akron Law Review

Lawsuit Involving Labor Disputes filed in the United States district courts in 1961 totaled 2,484. In the same year, the number of civil rights cases filed was only 296. Within the next decade, however, the number of civil rights cases filed in the district courts had risen to 6,133 in 1972, a dramatic percentage increase of 1,972. The only area of civil litigation in the federal courts registering a higher tally in 1972 was the closely related area of prisoner petitions. From the briefest perusal of these startling statistics, it becomes readily apparent that civil rights litigation is not only …

The Subject Was Standards: The Federal Government And Safety In The 1940'S - And 1970'S, Judy Jackson

Akron Law Review

THE MAY, 1976 issue of Trial magazine has emblazoned across its cover "The Hazardous Products Jungle". The cover shows a bicycle, chain saw, stove, vacuum cleaner, TV set, football helmet and other consumer products engulfed in Henri Rousseau-like jungle foliage. Such a cover, with its implication that many consumer products presenting unreasonable risks remain on the market over three years after passage of the Consumer Product Safety Act of 1972 (CPSA), epitomizes the general disappointment with the performance of the U.S. Consumer Product Safety Commission (CPSC), the independent regulatory agency created by the 1972 Act to protect the public against …

The Subject Was Standards: The Federal Government And Safety In The 1940'S - And 1970'S, Judy Jackson

Akron Law Review

THE MAY, 1976 issue of Trial magazine has emblazoned across its cover "The Hazardous Products Jungle". The cover shows a bicycle, chain saw, stove, vacuum cleaner, TV set, football helmet and other consumer products engulfed in Henri Rousseau-like jungle foliage.

Such a cover, with its implication that many consumer products presenting unreasonable risks remain on the market over three years after passage of the Consumer Product Safety Act of 1972 (CPSA), epitomizes the general disappointment with the performance of the U.S. Consumer Product Safety Commission (CPSC), the independent regulatory agency created by the 1972 Act to protect the public against …

Strict Liability And Informed Consent: "Don't Say I Didn't Tell You So!", Jose E. Maldonado

Akron Law Review

The purpose of this article is the cogent presentation of the arguments favoring application of contemporary strict tort liability concepts to the doctrine of informed consent. While not a panacea, adoption of this proposal would afford the consumer of medical services the requisite protection to make an effective, informed medical choice, while lending consistency and certainty to the physician, long harrassed, both morally and legally, by doubts as to what constitutes an informed consent.

This author will assume, arguendo, for the purpose of this article that all physicians are good-faith, competent practitioners. However, the reader should be forewarned: The existing …

Separate Legal Entity; Suit By Member; Personal Injuries; Liability; Statutory Provision; Tanner V. Loyal Order Of Moose, Robert M. Burlington

Akron Law Review

GEORGE and Marguerite Tanner, members of the Columbus Lodge No. 11 of the Loyal Order of Moose, an unincorporated association, were attending a dance sponsored by that Lodge when Mrs. Tanner slipped on a recently waxed area of the dance floor' and sustained serious injury. The Tanners filed suit against the Lodge in the court of common pleas, alleging that the dance floor had been negligently waxed, making it slippery and thus causing her fall.

Automobile Guest Statute; Unconstitutional; Equal Protection; Due Process; Right To Seek Legal Redress; Primes V. Tyler, Margaret Fuller Corneille

Akron Law Review

IN JULY 1975, the Supreme Court of Ohio in the case of Primes v. Tyler' joined a small but growing number of states' which have declared automobile guest statutes' unconstitutional. The circumstances of the Primes case are similar to those encountered in countless other suits brought by injured guest passengers since the Ohio guest statute was enacted in 1933.' George Primes, III and Donald G. Tyler were members of an informal golf group which shared a car pool arrangement. Tyler, driving for the car pool, was involved in an automobile accident in which Primes, a passenger, was injured. Primes brought …

Minors Under The Age Of Seven; Incapable Of Primary Negligence Or Intentional Torts; Conclusive Presumption; Deluca V. Bowden, Robert Austin Cross

Akron Law Review

The only question considered by the supreme court was "whether a child under the age of seven is liable for primary negligence or for an intentional tort." The court noted the general incapacity of a child of this age to act with reason and foresight, and further expressed its own reluctance to attach blame to a child "in any sense comparable to the blame attachable to an adult." For these reasons it held that such a child shall be conclusively presumed incapable of both primary negligence and intentional tort.

In so holding, Ohio joins a distinct minority of states which …

Psychotherapist-Patient Privilege; Patient's Dangerous Condition; Confidentiality; Legal Duty To Warn Potential Victim; Tarasoff V. Regents Of University Of California, Robert E. Burns

Akron Law Review

In placing a legal duty to warn on the psychotherapist, the California supreme court followed the modern trend in tort law by recognizing the subordination of the patient's interest in the confidentiality of the psychotherapist-patient relationship to both the public interest, and to what the court determines to be the patient's own best interest. Under these confined circumstances the therapist acquires a limited right to disclose pertinent information to any person who may have a legitimate interest in his patient's health.' However, certain restrictive guidelines have been placed on the disclosure of such information. In Berry v. Moench, the Utah …

The Tort Liability Of The Classroom Teacher, Stephen R. Ripps

Akron Law Review

THIS ARTICLE WILL DISCUSS the tort liabilities to which classroom teachers are exposed and predict future parameters of concern. The rules of law applicable to the tortious conduct of the classroom teachers equally affect elementary, secondary, and higher education instructors

A Case Of Judicial Chutzpah (The Judicial Adoption Of Strict Tort Products Liability Theory), Morris G. Shanker

Akron Law Review

[O]ur courts in discovering strict tort have indeed acted in rather unusual ways: ways which, I believe, can be explained only by realizing that we are dealing with those who have just discovered the gospel, who have just heard a message from on High. Let me give you some specific examples.

Strict Liability Comes Of Age In Ohio: Almost, Stephen J. Werber

Akron Law Review

In June 1977 the Ohio Supreme Court decided Temple v. Wean United, Inc., and adopted the doctrine of strict liability for product liability litigation, thereby following a national trend. Earlier decisions had discussed a theory similar to strict liability and had engendered considerable confusion as to the substantive theory supporting possible recovery. Temple apparently ended the confusion.

Liability For Product Design In Ohio - A First Step Toward Solution, Edgar A. Strause, James H. Hedden

Akron Law Review

This article concerns an area of the law of strict liability in tort which is now emerging from an embryonic stage in Ohio - namely, a manufacturer's liability for conscious design choices in developing its product. It is the thesis of this article that in the recent case of Temple v. Wean United, Inc., the Ohio Supreme Court has taken a major step toward a solution to the inherent difficulties in passing judgment upon the reasonableness of a manufacturer's conscious design choices. In doing so, the court has simultaneously lessened the otherwise open-ended exposure of manufacturers to liability concerning …

Design Litigation And The State Of The Art: Terminology, Practice And Reform, Edward T. O'Donnell

Akron Law Review

We suggest that rather than ignore these problems, or bemoan them ineffectually, the judiciary should accept the fact that the decision to venture into the area of scientific and technological controversy' carries with it a duty to reconcile the law with the essentials of the scientific method. Some courts already have begun to do so. For instance, suggestions that the manufacturer's obligation to design a safe product necessarily must be limited by the state of the art are common in negligence, warranty and strict liability decisions alike. Unfortunately these statements usually are dicta rather than holdings. Worse, the authors of …

The Products Liability Crisis: Modest Proposals For Legislative Reform, William P. Bivins Jr.

Akron Law Review

This article will attempt to identify some of the sources of the problems which are adversely affecting the system of products liability litigation and will offer proposals for reform within the framework of the law of products liability.

Products Liability: Toward Balancing The Scales, Donald M. Jenkins

Akron Law Review

The evolution and application of products liability law continues to be one of the most dynamic developments in the law. This issue of the Akron Law Review is dedicated to presenting and exploring recent significant developments.