Law Commons^™

Splitting The Baby: Standardizing Issue Class Certification, Jenna G. Farleigh

Vanderbilt Law Review

The Bible depicts King Solomon resolving a dispute between two women who claimed to be the mother of the same child. In the pursuit of justice, King Solomon threatened to do the unthinkable- slice the child in two. Although severing children is not a recommended vehicle for justice, severing lawsuits is. In fact, in the class-action context, the "issue class" established by Federal Rule of Civil Procedure 23(c)(4) does just what King Solomon threatened-it severs litigation into pieces, allowing aggregate treatment of only certain issues in a given lawsuit. Residual issues are left to be determined in plaintiff-specific, follow-on suits. …

The Passing Of Palsgraf?, Ernest J. Weinrib

Vanderbilt Law Review

According to a well-known story, Cardozo's Palsgraf opinion' was born in his attendance at the discussion of the Restatement (First) of Torts. If the formulations now proposed for the Restatement (Third) of Torts (proposed "Restatement") stand, the Palsgraf case--indeed the whole notion of duty as a viable element of negli- gence analysis-- will effectively be dead. The proposed Restatement suggests that "duty is a non-issue" confined to unusual cases where "special problems of principle or policy... justify the withholding of liability." Duty has then merely a negative significance. It refers not to an element necessary to establish the defendant's liability, …

The Theory Of Tort Doctrine And The Restatement (Third) Of Torts, Keith N. Hylton

Vanderbilt Law Review

Though at times a source of controversy, the American Law Institute performs an enormous public service through its Restatement projects. One of the initial hurdles any such project confronts is whether it should aim to clarify and illuminate the law, or to push the law in a certain direction. I think the Restatement project is most productive when it aims to clarify and illuminate rather than guide or control the development of legal doctrine. Efforts to guide and control risk producing questionable interpretations of the aw, undermining the value of the Restatement in the long run. Fortunately, the Restatement of …

Legal Cause: Cause-In-Fact And The Scope Of Liability For Consequences, Jane Stapleton

Vanderbilt Law Review

The project to restate the law of torts offers a number of opportunities.' One is law reform, as the last two Restatements concerning products liability illustrate. Another is to reflect on doctrinal history, both in the case law and in the academy. Yet an- other, and the one I focus on, is the opportunity to clarify legal concepts, if necessary by reformulation and restructuring, in order to assist courts to manage new challenges that have emerged since the last Restatement. Few areas in the law of tort are in more need of this re-evaluation than the area covered by the …

Introduction: The Third Restatement Of Torts: General Principles And The John W. Wade Conference, John C.P. Goldberg

Vanderbilt Law Review

The American Law Institute ("ALT") is in the midst of constructing the Restatement (Third) of Torts. Two parts of the project have already been completed and published as, respectively, the Restatement (Third): Products Liability and the Restatement (Third): Apportionment of Liability. The next component, a Restatement of the "General Principles" of tort, is underway. The goal for this facet of the overall project is to provide a coherent and usable account of fundamental tort concepts including intent, negligence, duty, actual and proximate cause, abnormally dangerous activity, and the like.

A Fault-Based Administrative Alternative For Resolving Medical Malpractice Claims, Kirk B. Johnson, Carter G. Phillips, David Orentlicher Orentlicher M.D., Martin S. Hatlie

Vanderbilt Law Review

The recurring crises in medical malpractice litigation have been widely discussed and documented over the past two decades.' In response to these crises, a growing consensus has emerged among legislatures, government agencies, and scholars in favor of tort reform. Indeed, virtually every state has passed some tort reform legislation.'Despite the reforms, several serious problems persist in medical malpractice. The current tort system does not compensate injured patients adequately or equitably, nor does it deter negligent practices sufficiently. These failings occur despite the increasingly high costs to society of the tort system. Particularly troublesome is the impact of these crises on …

United States V. Johnson: Expansion Of The Feres Doctrine To Include Servicemembers' Ftca Suits Against Civilian Government Employees, Anne R. Riley

Vanderbilt Law Review

The United States Government traditionally has enjoyed sovereign immunity from tort liability. In 1946, however, Congress waived this immunity by enacting the Federal Tort Claims Act (FTCA). The FTCA gives federal district courts original jurisdiction over any claims for personal injury or death caused by the negligence of any governmental employee." This broad waiver of immunity, however, is subject to certain exceptions. Although Congress made no explicit exception for noncombat claims of service members, the Supreme Court of the United States in Feres v. United States' construed the FTCA as creating an exception that bars all claims for injuries to …

Implied Covenants Of Good Faith And Fair Dealing: Loose Cannons Of Liability For Financial Institutions?, Patricia A. Milon

Vanderbilt Law Review

The recent willingness of many courts and juries to impose liability on financial institutions has prompted an increasing number of customers to bring suits against their banks and creditors. These suits often involve claims for millions of dollars in both compensatory and punitive damages for alleged bank or creditor misconduct. For example, the Sixth Circuit recently affirmed a jury award of seven and one half million dollars to a borrower whose lender suddenly refused to advance funds under a line of credit agreement. In similar cases involving a bank's refusal to lend money under credit agreements, a California jury awarded …

An Analysis Of The Legal, Social, And Political Issues Raised By Asbestos Litigation, John P. Burns, G. Edward Cassady, Iii, Kenneth B. Cole, Jr., Timothy R. Dodson, Philip E. Holladay, Jr., Paul C. Ney, Jr., Drew T. Parobek, Kimberly Payne, D. Blaine Sanders, L. D. Simmons, Ii, Charles D. Maguire, Jr. Special Project Editor, Laurin Blumenthal Associate Special Project Editor

Vanderbilt Law Review

This Special Project examines the most important issues of the asbestos problem and advocates a congressional solution (1) to relieve the courts of the thousands of present and potential asbestos cases, (2) to protect future claimants' rights to adequate compensation, and (3) to provide for equitable participation by all responsible parties, which, in addition to asbestos manufacturers,include the federal government, insurance companies, and the tobacco industry. The first six parts of the Special Project examine the various issues of asbestos litigation: theories of liability in products liability suits against asbestos manufacturers, causation,defenses, statutory limitations on actions, collateral estoppel, and punitive …

Defective Products: Abnormal Use, Contributory Negligence, And Assumption Of Risk, Dix W. Noel

Vanderbilt Law Review

This article will attempt to analyze these three general kinds of conduct on the part of the plaintiff, giving attention to basic tort principles and to traditional distinctions. Special emphasis will be placed on the functions of court and jury in resolving questions posed by situations in which injury is caused both by a defective product and by the plaintiff's handling of that product. It will be shown that a court's choice of policy factors as a basis for strict liability may affect considerably its final decision.

Judicial Creation Of Direct Actions Against Automobile Liability Insurers: Shingleton V. Bussey, Jason G. Reynolds

Vanderbilt Law Review

Elizabeth R. Bussey commenced a negligence action in a Florida state trial court against Frances R.B. Shingleton for damages sustained in an automobile mishap. The accident itself was a rather ordinary rear-end collision. Out of the ordinary, however, was the fact that the plaintiff joined as a party defendant Shingleton's liability insurer, Nationwide Mutual Insurance Company. The trial judge, following the insurance policy's non-joinder provisions' and the weight of authority in Florida and elsewhere, granted Nationwide's motion that it be dismissed as a party defendant. Plaintiff appealed this order to the Florida District Court of Appeal on the theory that, …

Landowner's Negligence Liability To Persons Entering As A Matter Of Right Or Under A Privilege Of Private Necessity, Donald W. Fish

Vanderbilt Law Review

In modem tort law, the liability of occupiers of land for their negligence depends in the first instance upon the status of the plaintiff upon the premises. This status generally determines the level of duty which the occupier owes him, and a vast body of case law has developed dealing with the many aspects of the question.Of the myriad classes of persons to whom some duty of care maybe owed by an occupier, perhaps those who enter the premises by virtue of a legal right, and irrespective of the consent of the occupier, present the most elusive problems in analysis. …

Contracts -- 1963 Tennessee Survey, Paul J. Hartman

Vanderbilt Law Review

Both the one year provision and the sale of goods provision of the Statute of Frauds were construed in Anderson-Gregory Co. v. Lea.'Regarding the duration of the contract, the facts in the opinion are somewhat sparse... The court held that the contract did not come within this provision of the statute. If a contract could have been performed, under its terms, within a year from the time of its making, it is not within the Statute of Frauds, even though it is improbable that the contract would be performed within a year.

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The Tennessee Supreme Court case of Oman …

Torts -- 1962 Tennessee Survey, Dix W. Noel

Vanderbilt Law Review

Most of the tort cases during the survey period do not involve any significant changes in the law. Mindful of the necessity of stability and predictability, and of a tradition of even-handed continuity, our courts have been naturally hesitant to upset established rules. However, in a few areas (injuries to unborn children, application of the immunity doctrine to a minor whose disability is removed, scope of liability for negligent misrepresentation) the courts have been faced with new problems and changed conditions. In these areas the decisions frankly accept responsibility for some development of legal doctrine to keep it responsive to …

Liability Of Unincorporated Association For Tortious Injury To A Member, Judson A. Crane

Vanderbilt Law Review

Whether a partnership should be treated as a legal entity has been discussed in connection with the drafting of the Uniform Partnership Act' and its interpretation. It seems that the act is in some respects consistent with the entity theory, particularly in the creation of "tenure in partnership" of the joint property. As to liability of the partnership for tortious injury of a member by the partners or partnership employees, it seems clearly to have adopted the non-entity or aggregate approach. Section 13 provides that the partnership is liable for loss or injury by wrongful act or omission caused --to …

Torts -- 1961 Tennessee Survey, Dix W. Noel

Vanderbilt Law Review

The tort cases reported during the past year were of unusual interest. A number of them dealt with points of first impression in this state. Others represent developments of the law designed to bring it into harmony with changing conditions, as in the application of the res ipsa loquitur doctrine to the unexplained fall of an air-liner, or in the clarification of the duties of an automobile driver to a mere licensee in the vehicle. While the basic pattern for justice in the field of torts has been worked out by our courts with much care and wisdom, occasional modifications …

Agency -- 1961 Tennessee Survey, Elvin E. Overton

Vanderbilt Law Review

The topic "agency" includes the areas of "master and servant" as well as those of "principal and agent." There were few cases in these areas decided by the Tennessee courts during the period under survey. Generally, basic principles were applied to routine cases.In certain instances the reliance upon a prior fact determination avoided the necessity of an elaborate treatment of the facts. In one or two cases the court reached a result that may not be deemed desirable though supported by much authority. Significant points received less attention than they deserved in certain cases. In one case the basic question …

Torts -- 1960 Tennessee Survey, John W. Wade

Vanderbilt Law Review

As usual, there were about forty reported Torts cases this year. There were no striking new developments. Many of the cases were merely routine, some of them indeed carrying quite long opinions without deciding anything which will give them real value as precedents for the future. The great majority of the cases involved actions for negligence, considerably more than half the cases being concerned with traffic accidents.

Ancillary Rights Of The Insured Against His Liability Insurer, Robert E. Keeton

Vanderbilt Law Review

The primary right of the insured against his liability insurer is the right to reimbursement of loss falling within the coverage defined in the policy. The scope of that right is ordinarily determined by construction of the clauses defining the Bodily Injury Liability and Property Damage Liability Coverages.' The present article is concerned with ancillary rights, arising in part from these and other policy provisions and in part from the relationship created by liability insurance. These rights of the insured are, from the opposite point of view, duties of the insurer--duties concerned principally with settlement of the tort claim or …

Restitution -- 1960 Tennessee Survey, William Wicker

Vanderbilt Law Review

Only two Tennessee restitution decisions were reported in the Southwestern Reporter during the year covered by this survey. One involves a question as to the liability of an intestate's estate for burial expenses which were not ordered by either the administrator or the sole heir and next of kin. The other involves a question concerning indemnity or contribution as between unintentional tort-feasors who were guilty of different degrees of negligence.

Remaining Tort Liability Of Employers And Third Parties Under Workmen's Compensation Statutes, Ben F. Loeb, Jr.

Vanderbilt Law Review

Workmen's compensation is a mechanism designed to provide cash benefits to employees to recompense for loss of wages due to injuries sustained in work-connected activities. Theoretically, the cost of the program is charged to the consumer by increasing the price of goods and services sold to the public. An employee, covered by a compensation act, is entitled to payments if he is injured by an accident arising out of and in the course of his employment; and the fact that such employee was at fault or guilty of negligence himself is normally of no consequence.

Compensation benefits, in contrast to …

Negligence Liability Of Artisans And Tradesmen, Jerry L. Moore

Vanderbilt Law Review

The purpose of this Note is to examine certain aspects of the tort liability of nonprofessional persons who engage in a trade or craft which requires skill and abilities not ordinarily possessed by the average man. Since, with such a wide range of subjects, an adequate treatment of all the problems peculiar to each trade would require volumes, it is necessary at the outset to place rather narrow limitations on the scope of this analysis. Perhaps it is best to define the outside limits in the form of two "issues" as follows. When a person engages in a certain trade …

Torts--1959 Tennessee Survey, Dix W. Noel

Vanderbilt Law Review

As usual, a considerable number of cases involving tort law were decided during the survey period. One of the decisions involves a point of first impression in this state, the matter of whether an unborn child comes within the scope of the wrongful death statute. A number of the decisions serve to clarify existing rules, or to carry these rules a step further in applying them to new situations. There were also some significant statutory developments, including the changes in the Railroad Precautions Act.

The Attorney's Liability For Negligence, John W. Wade

Vanderbilt Law Review

The concept of negligence was late in developing in the common law. Perhaps the first group of cases in which the idea began to take shape involved the liability of persons who professed competence in certain callings.' One of these "callings" was that of the attorney,and cases as early as the middle of the eighteenth century hold an attorney liable on this basis.

Liability Of Funeral Directors For Negligence, Edgar E. Smith

Vanderbilt Law Review

Funeral directing cannot be classed absolutely as a "profession."'On the contrary, the funeral director's principal concern probably is the sale of caskets and burial supplies, thus making him a "merchant"or "trader." However, for purposes of rendering services in connection with the care and burial of the dead as well as in accommodating the family and friends of the deceased, the funeral director is considered a "professional man." It is the latter capacity which is under consideration here. It is inconsequential for legal purposes whether a mortician is referred to as a "funeral director," an "embalmer," or an "undertaker." An embalmer …

Professional Negligence Liability Of Public Accountants, Carl S. Hawkins

Vanderbilt Law Review

At least since 1905, in this country, accountants have been recognized as "a skilled professional class ... subject generally to the same rules of liability for negligence in the practice of their profession as are members of other skilled professions."' The question, then, is not whether the usual concepts of professional negligence apply to accountants, but how. What situations have produced malpractice litigation? What are the specific practices or omissions which have resulted in liability? And what are the limits of liability? Like other professionals, the accountant usually gets into the position where he must exercise his professional skill as …

Personal Torts Within The Family, Val Sanford

Vanderbilt Law Review

If a person, while under the influence of intoxicants, drives his automobile at excessive speed, loses control of it, jumps the curb and strikes a pedestrian, injuring him severely, there would be little question, nothing else appearing, that he would be liable to the injured pedestrian in an action for damages. The premises underlying a conclusion of liability in such cases are obvious. It is in the interest of society that injured persons be compensated and rehabilitated; and our conceptions of justice are such that ordinarily it seems fair that the party who was at fault, whose action caused the …

Dalehite V. United States: A New Approach To The Federal Tort Claims Act?, Massillon M. Heuser

Vanderbilt Law Review

The decision for the United States in "Dalehite v. United States,"'though by a closely divided Supreme Court, possibly indicates a turning point in litigation involving the construction of the Federal Tort Claims Act. The trend theretofore had been to expand the concept of suability and liability expressed in the Act. In "United States v. Aetna Casualty and Surety Co." the Court had established the right of an insurer-subrogee to sue in its own name on a portion of a claim arising in favor of the insured-subrogor, despite the Anti-Assignment Statute and the obvious procedural and administrative difficulties not dealt with …

Joint Tortfeasors And The Conflict Of Laws, John W. Wade

Vanderbilt Law Review

Much has been written regarding tort liability and the conflict of laws and there are numerous cases in the field.' But little attention has been paid to the conflicts aspects of the many legal problems which surround the concept of joint tortfeasors. This paper attempts to collect the relatively few decisions on the subject and to analyze the problems involved.

In the beginning it should be made clear that the term "joint tortfeasors" is used, unless otherwise indicated, in the broad, somewhat colloquial sense which most American courts use today. Thus used, it includes both joint tortfeasors in the narrow …

Particularizing Standards Of Conduct In Negligence Trials, James Fleming Jr., David K. Sigerson

Vanderbilt Law Review

The general principles to be applied by court or jury in deciding whether conduct is reasonable have been examined elsewhere.' The problem to be dealt with here concerns the specific application of the law's standard of conduct to concrete cases. How, that is, may it be shown what a party or his opponent should have done, in the way of taking precautions or the like, in the situation presented by the evidence? What kinds of proof or argument are available to make this showing? When must such a showing be made by proof? Is the jury or court to determine …