Law Commons^™

Indirect Infringement From A Tort Law Perspective, Charles W. Adams

University of Richmond Law Review

No abstract provided.

Fda Regulatory Compliance Reconsidered, Carl W. Tobias

Law Faculty Publications

Many observers consider the Food and Drug Administration (FDA) vital for the protection of consumer health and safety. One hundred years ago, Congress established the entity that would become the FDA and authorized it to regulate foods and drugs, critical responsibilities that the agency has long discharged carefully. Throughout the past century, the FDA's regulatory power has expanded systematically, albeit gradually, while legislatures and courts in the fifty American jurisdictions broadened liability exposure for manufacturers that sold defective products that injured consumers. Observers have recently criticized the agency for overseeing pharmaceuticals too leniently, even as states increasingly narrowed manufacturers' liability …

Alternative State Remedies In Constitutional Torts, John F. Preis

Law Faculty Publications

In recent years, a subtle shift in constitutional tort doctrine has quietly begun to take root. In Bivens actions, the Supreme Court has recently implied that constitutional tort plaintiffs must seek relief under state law when it is available, rather than invoke their federal constitutional rights. This marks a dramatic change from past practices. For much of the twentieth century, a central premise in the constitutional tort field has been that the federal remedy is "supplementary" to the state remedy; constitutional tort plaintiffs have therefore been permitted to seek a remedy under federal law without regard to the availability of …

Proposed Legislation: A (Second) Modest Proposal To Protect Virginia Consumers Against Defective Products, Peter N. Swisher

Law Faculty Publications

The purpose of this article is to suggest a viable, necessary, and eminently reasonable legislative alternative that the Virginia General Assembly should enact for legitimate and pressing public policy reasons in order to properly protect Virginia consumers from defective and unreasonably dangerous consumer products. Adopting this alternative would bring the Commonwealth of Virginia into the mainstream of twenty-first century American, and transnational, products liability law.

Causation Requirements In Tort And Insurance Law Practice: Demystifying Some Legal Causation Riddles, Peter N. Swisher

Law Faculty Publications

Legal causation requirements, in both tort and insurance law, rank among the most pervasive yet most elusive and most misunderstood of all legal concepts in Anglo-American law for legal practitioners, the courts,' and academic scholars alike. Indeed, no less an authority than William Lloyd Prosser has stated that there "is perhaps nothing in the entire field of law which has called forth more disagreement, or upon which the opinions are in such a welter of confusion" than proximate cause issues, "despite the manifold attempts which have been made to clarify the subject."

Although some commentators have looked upon legal causation's …

Accrual Of Causes Of Action In Virginia, James W. Ellerman

University of Richmond Law Review

This article will examine major issues in Virginia law affecting the accrual of causes of action, specifically in the contexts of contract, tort, and property. In addition to surveying the basic accrual requirements for each area of law, this article will look more deeply into several specific issues that guide an accrual analysis particularly the distinction between causes and rights of action, as well as the continuous treatment, discovery, and economic loss rules.

Reassessing Charitable Immunity In Virginia, Carl Tobias

University of Richmond Law Review

No abstract provided.

The Modern Age Of Informed Consent, Barbara L. Atwell

University of Richmond Law Review

This essay explores the informed consent ramifications of the confluence of these two phenomena: developments in medical technology and emerging adulthood. In particular, it explores consent to medical treatments by emerging adults that are both elective and irreversible. In such cases, policy considerations dictate that additional safeguards be implemented to ensure that the consent given is truly informed. Part II of this essay provides an overview of the informed consent doctrine and outlines a variety of advancements in elective medical technology. Part III explores the concept of emerging adulthood. Part IV suggests that when emerging adults seek medical treatments that …

Reassessing Charitable Immunity In Virginia, Carl W. Tobias

Law Faculty Publications

Although most states have legislatively or judicially abolished the once-prevalent doctrine of charitable immunity, the Supreme Court of Virginia and the Virginia General Assembly have essentially retained the doctrine intact. Moreover, the Supreme Court of Virginia has declared on numerous occasions that it is the prerogative of the General Assembly, not the court, to abolish charitable immunity. Because Virginia doctrinal developments which involve charitable immunity do not comport with trends across the country and have significant implications for plaintiffs, and for defendants which assert charitable immunity, these doctrinal developments warrant analysis. This essay undertakes that effort.

Product Liability Law, Gary J. Spahn, Brent M. Timberlake

University of Richmond Law Review

While Virginia is not typically seen as "progressive" in the field of product liability law, the Commonwealth is nonetheless a forum in which these product liability battles take place. This article summarizes selected decisions of the United States Court of Appeals for the Fourth Circuit, federal district courts in Virginia, and courts of the Commonwealth issued between July 1, 2004 and May 15, 2005. This article also includes a discussion of the most relevant legislative changes made by the Virginia General Assembly over the same time period. While a complete analysis of every decision and statute affecting product liability is …

Health Courts: Panacea Or Palliative?, Carl W. Tobias

Law Faculty Publications

Professor Tobias weighs the pros and cons of legislation proposed in several states that would create "health courts" for the handling of medical malpractice cases.

Automobile Accidents Associated With Cell Phone Use: Can Cell Phone Service Providers And Manufacturers Be Held Liable Under A Theory Of Negligence?, Jordan B. Michael

Richmond Journal of Law & Technology

Cell phone related car accidents have received a lot of attention in the press and academic journals over the past few years.1 Articles have discussed the impact of driving while using a hand-held or hands-free cell phone, and in some instances have identified liability on the part of employers. A number of cases have gone to the jury on employer liability based on respondeat superior, where the employer is held responsible for the actions of an employee acting within the scope of employment.

The Avid Sportsman And The Scope For Self-Protection: When Exculpatory Clauses Should Be Enforced, Robert Heidt

University of Richmond Law Review

No abstract provided.

State Farm Mutual Automobile Insurance Co. V. Campbell: Refining Bmw Of North America, Inc. V. Gore And Further Restricting Punitive Damages, Bridget E. Leonard

University of Richmond Law Review

No abstract provided.

Panel Remarks On Liability: Liability For Farming?, Rachel G. Lattimore

Richmond Journal of Law & Technology

Good afternoon. To begin, I’d like to thank Ed Wallis and the Richmond Journal of Law & Tech- nology for inviting me to speak on such a distinguished panel. And I’d like to tell you one thing about myself that is not in my fancy lawyer biography. I grew up on a small family farm down in North Caro- lina, so I learned from an early age about the different types of genetic manipulations that go on a farm, from breeding cattle to grafting apple trees, which if you’re fourteen years old, consists of spending your entire Spring Break taking …

Panel Remarks On Liability: Liability Issues: Lessons From Starlink, Donald Uchtmann

Richmond Journal of Law & Technology

Good afternoon ladies and gentlemen. I have an enormous opportunity and challenge. Here I am, the final speaker, on this final panel, on this beautiful Friday afternoon, on this beautiful campus. Stay “tuned” for just a few more minutes to hear my remarks regarding liability issues and then we will adjourn to the great outdoors.

Procedural Provisions In Nevada Medical Malpractice Reform, Carl W. Tobias

Law Faculty Publications

In late July 2002, a special session of the Nevada Legislature passed medical malpractice reform legislation. The expressly-stated purpose of this statute is remedying, or at least ameliorating, the "serious threat to the health, welfare and safety of [Nevada] residents" which is posed by the state's "extreme difficulties attracting and maintaining a sufficient network of physicians to meet [residents'] needs." Moreover, the measure emphasizes substantive reforms that are primarily intended to limit the potential liability of certain health care providers for negligent actions. However, the legislation encompasses numerous "procedural" provisions, which may be equally important as the substantive reforms that …

Panel Remarks On Liability: Liability For Refusing To Use Agricultural Biotechnology, Drew Kershen

Richmond Journal of Law & Technology

Good afternoon. I’m very pleased to be here. I appreciate the offer and the invitation from the Richmond Journal of Law & Technology to speak at this conference. This final panel is really about liability issues related to genetically modified foods or transgenic crops. Now I just want to quickly introduce these three people, and I’m going to start on my far side with Rachel Lattimore. Rachel Lattimore is a lawyer with the firm of Arent Fox in Washington D.C., and she is going to focus her talk – and we’ve sort of agreed among ourselves so we don’t step …

Proximate Cause And The American Law Institute: The False Choice Between The "Direct-Consequences" Test And The "Risk Standard", Michael L. Wells

University of Richmond Law Review

No abstract provided.

Correctional Services Corporation V. Malesko: Unmasking The Implied Damage Remedy, Matthew G. Mazefsky

University of Richmond Law Review

No abstract provided.

Labor And Employment Law, Thomas M. Winn Iii

University of Richmond Law Review

No abstract provided.

Insurance Causation Issues: The Legacy Of Bird V. St. Paul Fire & Marine Ins. Co., Peter N. Swisher

Law Faculty Publications

In all of Anglo-American law, there is no concept that has been as been so pervasive - and yet so elusive - as the causation requirement; and even today this causation requirement in American law has resisted all efforts to reduce it to a useful, understandable, and comprehensive formula regarding its underlying nature, content, scope, and significance. Indeed, no less an authority than William Lloyd Prosser has stated that there "is perhaps nothing in the entire field of the law which has called forth more disagreement, or upon which the opinions are in such a welter of confusion" than legal …

Modern Tort Law Demystified, Carl W. Tobias

Law Faculty Publications

Review of Peter Bell & Jeffery O'Connell, Accidental Justice: The Dilemmas of Tory Law (1997).

Intentional Infliction Of Mental Distress In Nevada, Carl W. Tobias

Law Faculty Publications

The independent cause of action for the intentional infliction of mental distress (IIMD) is the only modern intentional tort for physical injury to persons. State court judges in the United States initially recognized the freestanding cause of action during the mid-twentieth century. Nevertheless, considerable confusion has attended the judicial recognition, articulation, and application of this tort in a substantial number of American jurisdictions. The jurisprudence of IIMD that members of the Nevada Supreme Court as well as attorneys and litigants in Nevada have developed has remained rather clear, although the justices have decided comparatively few cases in which they have …

Factual Causation In Toxic Tort Litigation: A Philosophical View Of Proof And Certainty In Uncertain Disciplines, Danielle Conway-Jones

University of Richmond Law Review

The headline reads: "Town clenched in suffocating grip of as- bestos: W.R. Grace & Co. closed its vermiculite mine in Libby, Mont[ana], 10 years ago, but hazardous material was embedded in the ore. Experts attribute many cases of lung disease to what they call secondary exposure." Lately, exposure to toxic substances and harm to human health and the environment have become the norm, not the exception. Within the United States and its territories alone, environmental groups, as well as individuals, have documented the proliferation of harmful exposure to toxic substances from as far away as Kaho'olawe, Hawai'i, to as close …

The Imminent Demise Of Interspousal Tort Immunity, Carl W. Tobias

Law Faculty Publications

During the decade of the 1980s, I extensively explored the doctrine of interspousal tort immunity in the United States. I examined the origins and development of the concept; how the notion survived intact in every jurisdiction throughout the nation until 1914; the first successful efforts to abolish immunity during the teens; the slow pace of abrogation in the five decades between 1920 and 1970; and the steady decline of the doctrine thereafter. Indeed, only a small number of states in the country still retain any form of interspousal tort immunity, even though some jurisdictions evince concern about certain issues involving …

Intentional Infliction Of Mental Distress In Montana, Carl W. Tobias

Law Faculty Publications

In several recent opinions, the Montana Supreme Court indicated its willingness to recognize intentional infliction of mental distress as an independent tort, even as the court stated that no plaintiff had presented a factual situation which would satisfy the elements of the cause of action. In the 1995 case of Sacco v. High Country Independent Press, Inc., the Montana Supreme Court held that an "independent cause of action for intentional infliction of emotional distress will arise under circumstances where serious or severe emotional distress to the plaintiff was the reasonably foreseeable consequence of the defendant's intentional act or omission. " …

The Parental Tort Immunity Doctrine: Is It A Defensible Defense?, Sandra L. Haley

University of Richmond Law Review

If the overriding purpose of tort law is to compensate those injured by the wrongdoing of another, then intrafamily tort immunities have historically defeated that purpose. Their effect is to leave an uncompensated injured party with no remedy simply by virtue of the tortfeasor's familial relationship to the injured person. This survey focuses on the doctrine of parental tort immunity and concludes that, although numerous exceptions exist, the rationales advanced for the doctrine's continued existence are of questionable relevance today.

State Of The Art In Montana Products Liability Law, Carl W. Tobias

Law Faculty Publications

The United States District Court for the District of Montana recently certified an important question of products liability law to the Montana Supreme Court. United States Senior District Judge Paul J. Hatfield certified the following question:

In a strict products liability case for injuries caused by an inherently unsafe product, is the manufacturer conclusively presumed to know the dangers inherent in his product, or is stateof- the-art evidence admissible to establish whether the manufacturer knew or through the exercise of reasonable human foresight should have known of the danger?

Because the issue of the admissibility of state-of-the-art evidence in a …

Avoiding Takings "Accidents": A Tort Perspective On Takings Law, Eric Kades

University of Richmond Law Review

Viewing the Takings Clause of the Fifth Amendment as a form of insurance appeals to our intuition. The government, like fire, does not often "take" property, but when faced with extraordinary risk property owners naturally desire compensation. Recent scholarship, however, has dissolved the attractiveness of this perspective. This literature, through economic analysis, claims that the Takings Clause should be repealed and replaced with private takings insurance. This is the "no-compensation" result.