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Full-Text Articles in Law
Elimination Of The Distinctions Between Trespassers, Licensees, And Invitees - Landowner Has A Duty Of Reasonable Care To Foreseeable Entrants., Lawrence Likar
Elimination Of The Distinctions Between Trespassers, Licensees, And Invitees - Landowner Has A Duty Of Reasonable Care To Foreseeable Entrants., Lawrence Likar
St. Mary's Law Journal
A pure negligence approach to bystander recovery imposes an undue burden upon a merely negligent defendant. Third parties, who suffer emotional distress after witnessing someone suffer an injury, lack standing to sue if they themselves suffered no physical injury. Under a pure negligence approach, however, bystanders now have a claim for negligent infliction of emotional distress. Nonetheless, this method of recovery exceeds the scope of the general principles of negligence law. For instance, a secondary reaction to a specific traumatic stimulus is not foreseeable and is heavily dependent upon an individual's prior mental conditioning. The law requires more than mere …
Divided Damages - The Albatross Of The Modern Mariner., Howard E. Davis Jr.
Divided Damages - The Albatross Of The Modern Mariner., Howard E. Davis Jr.
St. Mary's Law Journal
Since 1854, the United States has followed the English rule regarding ship collision cases: where both vessels involved in a collision are at fault, each party is responsible for one-half of the total damages regardless of its respective degree of blame. At the time, the rule was considered necessary to provide just and equitable results in admiralty litigation. However, the harshness of the rule justifies its disregard in favor of more equitable remedies. The problem with divided damages can be illustrated by the following scenario: a small pleasure craft and an oil tanker collide. The pleasure craft is only slightly …
The Assigned Risk In Texas: The Questions Of Agency And Absolute Liability., Timothy Tynan Griesenbeck Jr.
The Assigned Risk In Texas: The Questions Of Agency And Absolute Liability., Timothy Tynan Griesenbeck Jr.
St. Mary's Law Journal
Texas’ Assigned Risk Plan provides motor vehicle liability coverage to high-risk drivers who can’t obtain private insurance. However, there are two unresolved questions concerning assigned risk in Texas. The first is whether an independent insurance broker who drafts a policy for a high-risk driver is the agent of the insured or of the insurer. Several jurisdictions have determined that the assigned risk broker is the agent of the insured, and Texas should follow suit. Generally, the driver contacts a broker to file an application under the Plan with the state. The insurer assigned to the case must issue a policy …
Economic Coercion As Plaintiff's Defense To Volenti Non Fit Injuria In Strict Liability Actions., Charles T. Locke
Economic Coercion As Plaintiff's Defense To Volenti Non Fit Injuria In Strict Liability Actions., Charles T. Locke
St. Mary's Law Journal
Although Texas courts have commented on the harshness of “assumed risk” principles for quite some time, they have been reluctant to alter the situation. However, the Fifth Circuit decision in Messick v. General Motors Corporation may effectively serve to soften this well-established doctrine. Volenti non fit injuria, or “assumed risk,” will preclude recovery where the plaintiff voluntarily assumes a risk of injury arising from another’s negligence. One exception to the rule is the “hard choice” doctrine, which considers whether the defendant’s negligence left the plaintiff with a reasonable choice to avoid the danger. Interestingly, Texas courts refuse to extend the …
Res Ipsa Loquitur In Texas: The Element Of Superior Knowledge., Harvey R. Levine
Res Ipsa Loquitur In Texas: The Element Of Superior Knowledge., Harvey R. Levine
St. Mary's Law Journal
The doctrine of res ipsa loquitor infers negligence from the physical cause of an accident and eliminates the necessity of determining with certainty the responsible human cause. Specifically, in Texas, res ipsa loquitor means that the facts of an occurrence warrant an inference of negligence, that they furnish circumstantial evidence in the absence of direct negligence, and that the facts call for an explanation or rebuttal. Each state applies the doctrine differently and the outcome of each case is dependent on the procedural effect. Generally, invoking the doctrine of res ipsa loquitor may result in either of two procedural effects: …
The Doctrine Of Charitable Immunity Does Not Bar The Suit Of A Paying Patient Seeking To Recover Damages Sustained As A Result Of Negligence On The Part Of An Agent, Servant Or Employee Of A Charitable Hospital., Sidney Gibson
St. Mary's Law Journal
Southern Methodist University v. Clayton limited and clarified the scope of the charitable immunity doctrine in Texas, making it the leading opinion on the doctrine’s scope as of 1943. Clayton held charitable organization are liable to an employee for injuries proximately caused by the negligence of its agents but not liable to others in absence of proof of negligence on part of charity in employing or keeping the agent. Clayton’s progenies subsequently added two refinements: a charity is liable to an injured party, if, through negligence, improper equipment for treatment or service is used and causes an injury; and the …
Expert Medical Testimony In Texas., Zollie Steakley
Expert Medical Testimony In Texas., Zollie Steakley
St. Mary's Law Journal
An ordinary function of the jury in our legal system is to determine questions of fact. Although issues are less difficult when common knowledge and lay judgment are adequate, the field of medicine is an area in which the jury may be assisted by expert testimony. Courts allow the admission of expert medical testimony to assist jurors to show important aspects of a case, including physical condition, the cause of injury, the effect and probable future consequences of an injury or disease, and the cause of death. However, such testimonies are not binding upon the trier of fact unless they …