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Full-Text Articles in Law
Quest For Fairness In Compensating Victims Of September 11, The, Robert L. Rabin
Quest For Fairness In Compensating Victims Of September 11, The, Robert L. Rabin
Cleveland State Law Review
Aside from natural disasters, when tragedy strikes - taking its toll in fatalities and serious injuries - we ordinarily look to the tort system for redress. Tort is not the exclusive form of redress, of course, in this era of private insurance and government disability programs. But still, it remains our most highly visible mechanism for assigning responsibility and providing compensation. In this Article, I will begin by describing the approach to compensation taken in the Victim Compensation Fund. I will then discuss the implementing regulations promulgated by the Special Master appointed under the Fund. Next, I will offer a …
Ohio Tort Reform In 1998: The War Continues , Stephen J. Werber
Ohio Tort Reform In 1998: The War Continues , Stephen J. Werber
Cleveland State Law Review
For more than a decade a war has been waged between forces seeking legislative reform of tort law, with emphasis on product liability, and the Ohio Supreme Court. The battleground has been the legislative enactments of the Ohio General Assembly. This legislation has faced consistent challenge before the court as a proper exercise of its power of judicial review. This article discusses the two primary cases in which the court has won its war with the legislature by replacing the legislative words and intent with judicial interpretations. Part II begins the discussion with a look at the Carrel v. Allied …
Anderson V. St. Francis-St. George Hospital: Wrongful Living From An American And Jewish Legal Perspective , Daniel Pollack, Chaim Steinmetz, Vicki Lens
Anderson V. St. Francis-St. George Hospital: Wrongful Living From An American And Jewish Legal Perspective , Daniel Pollack, Chaim Steinmetz, Vicki Lens
Cleveland State Law Review
As advances in medical technology have kept people alive longer, the right to refuse life-sustaining treatment has taken on an even more crucial and urgent significance to dying patients and their families. While modern medicine may have learned to save lives, the lives it has saved are often severely diminished and filled with pain and suffering. Although the right to refuse life saving medical treatment is firmly embedded in our nation's laws, what to do when this right is ignored has not been firmly settled. The Anderson court answered this question by "splitting the difference." It affirmed Winter's right to …
Educational Malpractice: A Tort En Ventre, Frank D. Aquila
Educational Malpractice: A Tort En Ventre, Frank D. Aquila
Cleveland State Law Review
This article explores the policy reasons which courts have adopted to deny a private cause of action holding educators legally liable for deficiencies in a student's education. The introductory section provides the background on the basic issue of malpractice in education. Section two examines educational malpractice case law focusing first on cases involving negligence in basic academic skill instruction, then looking at negligence in special education. Section three explores the various duty of care arguments while section four discusses three alternate theories for recovery. Section five analyzes the policy reasons for denial of the tort of educational malpractice. New directions …
Educational Malpractice: A Tort En Ventre, Frank D. Aquila
Educational Malpractice: A Tort En Ventre, Frank D. Aquila
Cleveland State Law Review
This article explores the policy reasons which courts have adopted to deny a private cause of action holding educators legally liable for deficiencies in a student's education. The introductory section provides the background on the basic issue of malpractice in education. Section two examines educational malpractice case law focusing first on cases involving negligence in basic academic skill instruction, then looking at negligence in special education. Section three explores the various duty of care arguments while section four discusses three alternate theories for recovery. Section five analyzes the policy reasons for denial of the tort of educational malpractice. New directions …
Liability For Post-Transfusion Aids: An Analysis And Proposal, Lawrence K. English
Liability For Post-Transfusion Aids: An Analysis And Proposal, Lawrence K. English
Journal of Law and Health
The nature of the acquired immune deficiency syndrome (AIDS) epidemic and the methods used to protect the blood supply from contamination by the AIDS virus indicate that an increasing number of actions seeking recovery for post-transfusion infection may reach the courts in the next decade. The theories under which plaintiffs usually seek relief for transfusion-related infection - e.g., negligence or strict liability - lead to complex factual, procedural, and public policy problems which do not readily lend themselves to consistent, just adjudication.
The Rise And Fall Of Sovereign Immunity In Ohio, Frank D. Celebrezze, Karen B. Hull
The Rise And Fall Of Sovereign Immunity In Ohio, Frank D. Celebrezze, Karen B. Hull
Cleveland State Law Review
The doctrine of sovereign immunity for municipal corporations has long reigned in Ohio. Although the judiciary and the General Assembly have imposed limitations, the doctrine has survived as a principle of Ohio law for over 140 years. However, the Supreme Court of Ohio reversed the trend and abrogated the doctrine in a series of cases in December 1982 and in the spring of the 1983 term. This comment examines the historical development of sovereign immunity for tort claims in Ohio, the limitations subsequently imposed on the immunity and its abrogation in those recent supreme court cases.
Strict Liability Come Of Age In Ohio: Almost, Stephen J. Werber
Strict Liability Come Of Age In Ohio: Almost, Stephen J. Werber
Law Faculty Articles and Essays
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 strictly liability and had engendered considerable confusion as to the substantive theory supporting possibly recovery. Temple apparently ended the confusion.
Product Liability: The Potential Liability Of The Advertising Agency, Stephen J. Werber, William L. Trombetta
Product Liability: The Potential Liability Of The Advertising Agency, Stephen J. Werber, William L. Trombetta
Law Faculty Articles and Essays
In the typical products liability action, there is generally a solvent manufacturer or seller from whom the injured party may recover. One could speculate that this is the major reason why no agency has ever been joined--but should not the agency be called to account where there is no other solvent defendant, or where other reasons prevent an effective action against the principles, or where justice demands a proper sharing of liability? The authors believe that this must be answered affirmatively, and that the potential for advertising agency liability does in fact exist.
Product Liability Law Has Come Of Age, Buell Doelle
Product Liability Law Has Come Of Age, Buell Doelle
Cleveland State Law Review
This article draws out the products liability debate and the push for settlements over litigation in court. The article discusses products liability law, and its origin in politics and unions. It also describes the attorney’s role in products liability cases, and suggests how that role should change in the future. The article concludes by looking at no-fault reparation and the adversarial system.
Malicious Prosecution Suits As Counterbalance To Medical Malpractice Suits, Allen P. Adler
Malicious Prosecution Suits As Counterbalance To Medical Malpractice Suits, Allen P. Adler
Cleveland State Law Review
A few years ago medical malpractice suits were something of a rarity in the United States. They now appear to be a major national problem. The magnitude of this ever increasing problem can be illustrated by the fact that a Senate subcommittee, chaired by Sen. Abraham Ribicoff, has investigated the increase in malpractice litigation and that President Nixon has ordered the establishment of a Commission on Medical Malpractice, under the Department of Health, Education and Welfare, to research the problem and report a possible solution by March 1, 1972.
Damages For Wrongful Birth, Joyce E. Barrett
Damages For Wrongful Birth, Joyce E. Barrett
Cleveland State Law Review
While recovery of damages for wrongful death was sanctioned in England as early as 1846 and is now available by statute in every state, the law has been loathe to afford a remedy for wrongful birth. Plaintiffs who have attempted to cope with the problem of people- pollution by various birth control methods, only to have their ecolog- ical efforts stymied by the negligence of a physician performing a sterilization operation or a pharmacist dispensing birth control pills, have been denied a remedy for what, in this writer's view, is the "wrongful birth" of the resulting child. This paper will …
Contributory Negligence In Medical Malpractice, Diane Shelby
Contributory Negligence In Medical Malpractice, Diane Shelby
Cleveland State Law Review
The best and most complete defense to a charge of malpractice is the allegation and proof of the absence of negligence. It is also the most often used defense. Of the less popular defenses, contributory negligence on the part of the patient is probably the least attractive and the most difficult to maintain, even though it has been held to be a complete bar to recovery in several cases difficult to categorize.
Hospital Liability: Implications Of Recent Physician's Assistant Statutes, Daniel W. Coyne
Hospital Liability: Implications Of Recent Physician's Assistant Statutes, Daniel W. Coyne
Cleveland State Law Review
New methods must be devised to increase the efficient use of the available supply of physicians. "Among the innovations being tried with physicians is the development of new disciplines involving assistants to physicians." Increasing utilization of returning medics from the armed forces is being undertaken to help relieve the civilian manpower shortage. The legal implications of these developments range from problems of licensure to considerations of vicarious liability for an assistant's negligence (malpractice) or for the negligence of the assistant's supervising physician. It is with a species of this latter problem that this paper will be concerned. But one ought …
Visitors' Refusal To Leave Premises, Joseph Gibson
Visitors' Refusal To Leave Premises, Joseph Gibson
Cleveland State Law Review
Many factors have been blamed for this new, brazen attitude of remaining on another's property. Some fault the Supreme Court's rulings in Brown v. Louisiana, where court conviction of sit-in demonstrators at a public library, was reversed by holding that the conviction was a violation of the fourteenth amendment rights, and Cox v. Louisiana' where the Court decided that a state statute which regulated picketing was improper because of the discretion which it gave to local officials. Others lay the blame on a more permissive society which is breeding contempt for the power structure. The most logical explanation is a …
Malpractice Actions Without Expert Medical Testimony, William P. Gibbons
Malpractice Actions Without Expert Medical Testimony, William P. Gibbons
Cleveland State Law Review
Fear of malpractice actions against them is causing physicians to "run scared." Some physicians now say that they feel that the threat of legal action has materially altered the practice of medicine. Defensively, some medical doctors say that they are ordering additional X-rays and lab tests, just to have them on record. Others say they are just plain afraid to try new techniques and diagnostic treatments because of the specter of a malpractice action. Innovative techniques carry additional risks, and some doctors admit that in some risky situations they merely do what will keep them out of trouble rather than …
Damages From Slip And Fall Injuries, Gibson B. Witherspoon
Damages From Slip And Fall Injuries, Gibson B. Witherspoon
Cleveland State Law Review
The doctrine of assumption of risk as applied to icy sidewalks and store entrances contain the following elements: (1) Knowledge and appreciation of the danger, (2) The existence of a reasonable alternative route; (3) A voluntary election to encounter danger.
Impact Trauma As Legal Cause Of Cancer, Donald J. Ladanyi
Impact Trauma As Legal Cause Of Cancer, Donald J. Ladanyi
Cleveland State Law Review
Consider the following hypothetical situation: A voluptuous blonde is window shopping along New York's fashionable Fifth Avenue. Her trek brings her to a corner street intersection which she begins to cross. A recklessly driven automobile careens around the corner and strikes the defenseless blonde pedestrian amidships, causing her to be hurled against a utility pole. Her breast strikes the pole and absorbs the full effect of the impact. A local hospital determines that her injuries consist of only a black and blue bruise spot on her breast. The swelling, due to the injury, subsides and the discoloration disappears within a …
Automotive "Crashworthiness:" An Untenable Doctrine, Stephen J. Werber
Automotive "Crashworthiness:" An Untenable Doctrine, Stephen J. Werber
Law Faculty Articles and Essays
It is the purpose of this article to review the decisional law of automobile crashworthiness and to place it in the context of important policy considerations which justify such judicial determinations. It will be shown that the great majority of these decisions are entirely consistent with the doctine of "strict tort liability" as enunciated in section 402A of the Restatement of Torts, Second; that the questions sought to be submitted to juries in these cases are properly the subject of highly technical and complex legislative and administrative action on both a state and federal level; and that the few decisions …
Set-Off Under Uninsured Motorist's Coverage, Leon M. Plevin
Set-Off Under Uninsured Motorist's Coverage, Leon M. Plevin
Cleveland State Law Review
The limits of liability under uninsured motorist coverage are fixed either by policy provisions or by statute. ... These various indemnity provisions were created so as to effectively limit any payments made by the insurance carrier under the uninsured motorist endorsement in combination with any other sources of indemnification to the maximum limit of the uninsured motorist coverage. The intent of the insurance underwriter is to limit its payment under the uninsured motorist coverage to the minimum amount where the insured is indemnified or partially indemnified from more than one source. The scope of this paper will specifically be concerned …