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Full-Text Articles in Torts

Hurricanes, Fraud, And Insurance: The Supreme Court Weighs In On, But Does Not Wade Into, The Concurrent Causation Conundrum In State Farm Fire And Casualty Company V. Rigsby, Chris French May 2017

Hurricanes, Fraud, And Insurance: The Supreme Court Weighs In On, But Does Not Wade Into, The Concurrent Causation Conundrum In State Farm Fire And Casualty Company V. Rigsby, Chris French

Christopher C. French

In the December 6, 2016 Supreme Court decision, State Farm v. Rigsby, a homeowner’s house was damaged by Hurricane Katrina. The homeowner had homeowners insurance with State Farm and a flood insurance policy that was administered by State Farm on behalf of the federal government. The claims adjusters assigned by State Farm to handle the homeowner’s claim allegedly were instructed by State Farm to misclassify wind damage as flood damage in order to shift State Farm’s own liability for the loss to the federal government. The claims handlers filed a lawsuit against State Farm under the False ...


A Good-Faith Challenge To The Taxonomy Of Tort Law Defences, Iain Field May 2017

A Good-Faith Challenge To The Taxonomy Of Tort Law Defences, Iain Field

Law Faculty Publications

Extract: Perhaps unsurprisingly, there is no universally accepted taxonomy of tort law defences. Indeed, at least one influential scholar in the field actively discouraged any attempt to compile a ‘systematic index of “exceptions” or “defences”’. Nevertheless, in his ambitious and pioneering book, Tort Law Defences, James Goudkamp endeavours to do precisely this. Goudkamp’s work will be lauded by some as an important progression in the great ‘taxonomical project’ – that is to say, the movement given impetus ‘by the late Professor Peter Birks and (the mainly academic) supporters and advocates of his and similar views to impose a coherent and ...


Riparian Rights In A Polluted World: Property Right Or Tort?, Daniel P. Fernandez May 2017

Riparian Rights In A Polluted World: Property Right Or Tort?, Daniel P. Fernandez

Barry Law Review

No abstract provided.


Toward The Search For The Proper Liability Rule For Harms Resulting From Sources Of Risk: A Different Approach To The Choice Between Strict Liability And Fault-Based Regime, Wen-Hsuan Yang May 2017

Toward The Search For The Proper Liability Rule For Harms Resulting From Sources Of Risk: A Different Approach To The Choice Between Strict Liability And Fault-Based Regime, Wen-Hsuan Yang

Theses and Dissertations

An important issue in Taiwan today concerns the rising tension between strict liability and negligence. Article 191-3 of the Civil Code of Taiwan imposes a fault-based standard of liability on persons conducting dangerous activities. On the other hand, the majority of scholars believe that to afford greater protection, this rule should be changed into a strict liability rule.

Traditionally, three arguments make it preferable to impose strict liability under certain circumstances. First, strict liability induces more safety incentives on the part of the defendant. Second, fairness requires that one who benefits from conducting dangerous activities should bear the risk of ...


In Defense Of The Restatement Of Liability Insurance Law, Tom Baker, Kyle D. Logue Apr 2017

In Defense Of The Restatement Of Liability Insurance Law, Tom Baker, Kyle D. Logue

Faculty Scholarship

For most non-contractual legal claims for damages that are brought against individuals or firms, there is some form of liability insurance coverage. The Restatement of the Law Liability Insurance is the American Law Institute’s first effort to “restate” the common law governing such liability insurance policies, and we are the reporters. In a recent essay funded by the insurance industry, Yale Law Professor George Priest launched a strident critique of the Restatement project, arguing that the rules adopted in the Restatement:

(a) are radically contrary to existing case law,

(b) have a naïve “pro-policyholder” bias that ignores basic economic ...


Obesity Prevention Policies At The Local Level: Tobacco's Lessons, Paul A. Diller Apr 2017

Obesity Prevention Policies At The Local Level: Tobacco's Lessons, Paul A. Diller

Maine Law Review

For at least a decade, commentators have speculated that obesity is the next tobacco, a public health scourge that might nonetheless offer a gold mine to ambitious plaintiffs’ lawyers. Successful lawsuits, as in the tobacco context, might spur the food industry to reform its practices so as to help reduce the alarmingly high national obesity rate. The obesity narrative, however, has not played out accordingly to the same script as tobacco. Relatively quick action by most state legislatures immunized the food industry to tort lawsuits seeking obesity-related damages, and the scant judicial opinions on the issue have skeptically assessed plaintiffs ...


The Home-Field Disadvantage: Tort Liability And Immunity For Paid Physicians During Disasters Within The Pacific Northwest Emergency Management Arrangement Member States, Stephen Seely Apr 2017

The Home-Field Disadvantage: Tort Liability And Immunity For Paid Physicians During Disasters Within The Pacific Northwest Emergency Management Arrangement Member States, Stephen Seely

Seattle University Law Review

This Note identifies how the Pacific Northwest Emergency Management Arrangement member states of Alaska, Idaho, Oregon, and Washington apply tort liability and immunity to medical professionals during times of disaster. This Note also identifies an example statutory scheme that, if enacted, will provide equal protection to all physicians who provide care to disaster victims, regardless of their local or out-of-state status.


Private Rights And Private Wrongs, Andrew S. Gold Apr 2017

Private Rights And Private Wrongs, Andrew S. Gold

Michigan Law Review

Review of Private Wrongs by Arthur Ripstein.


Developing Exposure-Based Preconception Tort Liability: A Scientific Challenge To Traditional Tort Concepts, Nicholas P. Putz Mar 2017

Developing Exposure-Based Preconception Tort Liability: A Scientific Challenge To Traditional Tort Concepts, Nicholas P. Putz

Catholic University Law Review

With all of the recent advances in science and technology, humans are being exposed to many new and complex substances for the first time. Such exposure has led to an array of medical complications, ranging from cancer to physical deformity. However, simultaneous advances in other areas of science and technology are, for the first time, beginning to provide humans with the tools to pinpoint the causes of disease. Unfortunately, a sufficient causal diagnosis in the medical field does not directly translate to an actionable harm in the U.S. legal system. In particular, injuries that may have resulted from prior ...


Rape On The Washington Southern: The Tragic Case Of Hines V. Garrett, Michael I. Krauss Mar 2017

Rape On The Washington Southern: The Tragic Case Of Hines V. Garrett, Michael I. Krauss

Catholic University Law Review

In 1919, Ms. Julia May Garret, a young Virginian woman, was brutally raped by two different men as she was walking home after the Washington Southern Railway failed to stop at her designated station. What followed was a legal battle that created precedent still discussed in American casebooks today. Although most case law recognizes that the criminal acts of third parties severs liability because such conduct is considered unforeseeable, Hines v. Garrett held that the harm Ms. Garrett suffered was within the risk created by the railroad’s negligence, and as a common carrier, the railroad owed her a duty ...


Simmons V. Briones, 133 Nev. Adv. Op. 9, Annie Avery Mar 2017

Simmons V. Briones, 133 Nev. Adv. Op. 9, Annie Avery

Nevada Supreme Court Summaries

A judgment for penalty attorney fees and costs against a driver in an action that arises out of a motor vehicle accident is not a “judgment . . . upon a cause of action” arising out of the use of a motor vehicle such that its nonpayment may result in the suspension of driving privileges under NRS § 485.302.


Trial And Error: Legislating Adr For Medical Malpractice Reform, Lydia Nussbaum Mar 2017

Trial And Error: Legislating Adr For Medical Malpractice Reform, Lydia Nussbaum

Maryland Law Review

The U.S. healthcare system has a problem: hundreds of thousands of people die each year, and over a million are injured, by medical mistakes that could have been avoided. Furthermore, over ninety percent of these patients and their families never learn of the errors or receive redress. This problem persists, despite myriad reforms to the medical malpractice system, because of lawmakers’ dominant focus on reducing providers’ liability insurance costs. Reform objectives are beginning to change, however, and the vehicle for implementing these changes is alternative dispute resolution (“ADR”). Historically, legislatures deployed ADR to curb malpractice litigation and restrict patients ...


Carpooling Liability?: Applying Tort Law Principles To The Joint Emergence Of Self-Driving Automobiles And Transportation Network Companies, Jacob D. Walpert Mar 2017

Carpooling Liability?: Applying Tort Law Principles To The Joint Emergence Of Self-Driving Automobiles And Transportation Network Companies, Jacob D. Walpert

Fordham Law Review

Self-driving automobiles have emerged as the future of vehicular travel, but this innovation is not developing in isolation. Simultaneously, the popularity of transportation network companies functioning as ride-hailing and ride-sharing services have altered traditional conceptions of personal transportation. Technology companies, conventional automakers, and start-up businesses each play significant roles in fundamentally transforming transportation methods. These transformations raise numerous liability questions. Specifically, the emergence of self-driving vehicles and transportation network companies create uncertainty for the application of tort law’s negligence standard. This Note addresses technological innovations in vehicular transportation and their accompanying legislative and regulatory developments. Then, this Note discusses ...


Compensatory Damages Granted In Personal Injuries: Supplementing Islamic Jurisprudence With Elements Of Common Law, Majed Alshaibani Mar 2017

Compensatory Damages Granted In Personal Injuries: Supplementing Islamic Jurisprudence With Elements Of Common Law, Majed Alshaibani

Theses and Dissertations

This dissertation discusses the types of compensatory damages, monetary and non-monetary losses, granted in Saudi Arabian personal injury cases. The main issue of this paper is to determine the missing types of monetary and nonmonetary losses when estimating compensation, thereby unjustly leaving injured parties without fair compensation. The problem of this study is that some victims do not get compensation personal injuries claims, such as loss of wages, lost earning capacity, and emotional distress. This is due to many reasons. One of the most obvious reasons is the absence of clearly written personal injuries statutes that cover all types of ...


Retaliatory Rico And The Puzzle Of Fraudulent Claiming, Nora Freeman Engstrom Mar 2017

Retaliatory Rico And The Puzzle Of Fraudulent Claiming, Nora Freeman Engstrom

Michigan Law Review

Over the past century, the allegation that the tort liability system incentivizes legal extortion and is chock-full of fraudulent claims has dominated public discussion and prompted lawmakers to ever-more-creatively curtail individuals’ incentives and opportunities to seek redress. Unsatisfied with these conventional efforts, in recent years, at least a dozen corporate defendants have “discovered” a new fraud-fighting tool. They’ve started filing retaliatory RICO suits against plaintiffs and their lawyers and experts, alleging that the initiation of certain non meritorious litigation constitutes racketeering activity— while tort reform advocates have applauded these efforts and exhorted more “courageous” companies to follow suit. Curiously ...


Tort Vision For The New Millennium: Strengthening News Industry Standards As A Defense Tool In Law Suits Over Newsgathering Techniques Essay, Micahel W. Richards Feb 2017

Tort Vision For The New Millennium: Strengthening News Industry Standards As A Defense Tool In Law Suits Over Newsgathering Techniques Essay, Micahel W. Richards

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.


Self-Driving Cars: Autonomous Technology That Needs A Designated Duty Passenger, Michelle L.D. Hanlon Feb 2017

Self-Driving Cars: Autonomous Technology That Needs A Designated Duty Passenger, Michelle L.D. Hanlon

Barry Law Review

No abstract provided.


Mutually Assured Protection Among Large U.S. Law Firms, Tom Baker, Rick Swedloff Feb 2017

Mutually Assured Protection Among Large U.S. Law Firms, Tom Baker, Rick Swedloff

Faculty Scholarship

Top law firms are notoriously competitive, fighting for prime clients and matters. But some of the most elite firms are also deeply cooperative, willingly sharing key details about their finances and strategy with their rivals. More surprisingly, they pay handsomely to do so. Nearly half of the AmLaw 100 and 200 belong to mutual insurance organizations that require member firms to provide capital; partner time; and important information about their governance, balance sheets, risk management, strategic plans, and malpractice liability. To answer why these firms do so when there are commercial insurers willing to provide coverage with fewer burdens, we ...


Reason And Reasonableness: The Necessary Diversity Of The Common Law, Frederic G. Sourgens Feb 2017

Reason And Reasonableness: The Necessary Diversity Of The Common Law, Frederic G. Sourgens

Maine Law Review

This Article addresses the central concept of “reasonableness” in the common law and constitutional jurisprudence. On the basis of three examples, the common law of torts, the common law of contracts, and Fourth Amendment jurisprudence, the Article notes that different areas of the law follow fundamentally inconsistent utilitarian, pragmatic, and formalist reasonableness paradigms. The significance of this diversity of reasonableness paradigms remains largely under-theorized. This Article submits that the diversity of reasonableness paradigms is a necessary feature of the common law. It theorizes that the utilitarian, pragmatic and formalistic paradigms are structural elements driving the common law norm-generation process. This ...


Aviation Law-Personal Injury-The Warsaw Convention, As Modified By The Montreal Agreement, Does Comprehend, And Thus Supplies The Exclusive Relief For, Mental And Psychosomatic Injuries., Lee C. Mundell Jan 2017

Aviation Law-Personal Injury-The Warsaw Convention, As Modified By The Montreal Agreement, Does Comprehend, And Thus Supplies The Exclusive Relief For, Mental And Psychosomatic Injuries., Lee C. Mundell

Georgia Journal of International & Comparative Law

No abstract provided.


Wrongs Without Rights. Review Of Wrongs, Rights, And Third Parties, By N. Cornell., Scott Hershovitz Jan 2017

Wrongs Without Rights. Review Of Wrongs, Rights, And Third Parties, By N. Cornell., Scott Hershovitz

Reviews

The word “wrong” is the source of much confusion, in part because it does double duty. “You set the table wrong,” I might say, noting that you’ve misplaced the forks and knives. When I say that, I imply that there’s a standard against which place settings are properly judged, and that you’ve mucked things up by failing to match it. This use of the word “wrong” pops up all over the place: “You took a wrong turn.” “That’s the wrong answer.” “Why do I get everything wrong?” But there’s another way to use the word ...


Monopolies In Multidistrict Litigation, Elizabeth Chamblee Burch Jan 2017

Monopolies In Multidistrict Litigation, Elizabeth Chamblee Burch

Scholarly Works

When transferee judges receive a multidistrict proceeding, they select a few lead plaintiffs’ lawyers to efficiently manage litigation and settlement negotiations. That decision gives those attorneys total control over all consolidated plaintiffs’ claims and rewards them richly in common-benefit fees. It’s no surprise then that these are coveted positions, yet empirical evidence confirms that the same attorneys occupy them time and again.

Anytime repeat players exist and exercise both oligopolistic leadership control across multidistrict proceedings and monopolistic power within a single proceeding, there is concern that they will use their dominance to enshrine practices and norms that benefit themselves ...


3d Printing: What Could Happen To Products Liability When Users (And Everyone Else In Between) Become Manufacturers, James M. Beck, Matthew D. Jacobson Jan 2017

3d Printing: What Could Happen To Products Liability When Users (And Everyone Else In Between) Become Manufacturers, James M. Beck, Matthew D. Jacobson

Minnesota Journal of Law, Science & Technology

No abstract provided.


Hurricanes, Fraud, And Insurance: The Supreme Court Weighs In On, But Does Not Wade Into, The Concurrent Causation Conundrum In State Farm Fire And Casualty Company V. Rigsby, Chris French Jan 2017

Hurricanes, Fraud, And Insurance: The Supreme Court Weighs In On, But Does Not Wade Into, The Concurrent Causation Conundrum In State Farm Fire And Casualty Company V. Rigsby, Chris French

Journal Articles

In the December 6, 2016 Supreme Court decision, State Farm v. Rigsby, a homeowner’s house was damaged by Hurricane Katrina. The homeowner had homeowners insurance with State Farm and a flood insurance policy that was administered by State Farm on behalf of the federal government. The claims adjusters assigned by State Farm to handle the homeowner’s claim allegedly were instructed by State Farm to misclassify wind damage as flood damage in order to shift State Farm’s own liability for the loss to the federal government. The claims handlers filed a lawsuit against State Farm under the False ...


Causing Copyright, Shyamkrishna Balganesh Jan 2017

Causing Copyright, Shyamkrishna Balganesh

Faculty Scholarship

Copyright protection attaches to an original work of expression the moment it is created and fixed in a tangible medium. Yet, modern copyright law contains no viable mechanism by which to examine whether someone is causally responsible for the creation and fixation of the work. Whenever the issue of causation arises, copyright law relies on its preexisting doctrinal devices to resolve the issue, in the process cloaking its intuitions about causation in altogether extraneous considerations. This Article argues that copyright law embodies an unstated, yet distinct theory of authorial causation, which connects the element of human agency to a work ...


Institutional Failure, Campus Sexual Assault And Danger In The Dorms: Regulatory Limits And The Promise Of Tort Law, Andrea A. Curcio Jan 2017

Institutional Failure, Campus Sexual Assault And Danger In The Dorms: Regulatory Limits And The Promise Of Tort Law, Andrea A. Curcio

Faculty Publications By Year

Data demonstrates the majority of on-campus sexual assaults occur in dorm rooms. At many colleges, this fact receives little, if any, attention. This article discusses how schools' failure to raise awareness about, and develop risk reduction programs for, dorm-based assaults is another example of long-standing institutional failures when it comes to addressing campus sexual assault. Ignoring where most on-campus assaults occur provides students with a false sense of security in their dorms, limits the efficacy of bystander intervention programs, and results in scant attention and research directed at the efficacy of dorm-based awareness and risk-reduction efforts. This article suggests that ...


Assigning Liability In An Autonomous World, Agni Sharma Jan 2017

Assigning Liability In An Autonomous World, Agni Sharma

CMC Senior Theses

Liability laws currently in use rely on a fault-based system that focuses on a causal connection between driver actions and the resulting road accident. The role of the driver is set to reduce with the emergence of autonomous vehicles, so how will liability adapt to meet the needs of an autonomous world? The paper discusses possible frameworks of liability that could be implemented in the future, and accentuates the importance of the causal aspects of the current framework in the new system.


The Search For A Grand Unified Theory Of Tort Law., Scott Hershovitz Jan 2017

The Search For A Grand Unified Theory Of Tort Law., Scott Hershovitz

Reviews

Theorists like to do a lot with a little. And not just because simple theories seem more elegant: we deepen our understanding when we learn that disparate phenomena are linked together. In physics, for example, the theory of thermodynamics showed us the relationship between mechanics and heat. In economics, the theory of the firm showed us that, across industries that look nothing alike, a simple principle helps explain the organization of economic activity. Of course, there is no guarantee that the disparate phenomena we suspect are linked actually are. Particle physicists continue to search for a Grand Unified Theory, which ...


Playing With Real Property Inside Augmented Reality: Pokemon Go, Trespass, And Law's Limitations, Donald J. Kochan Dec 2016

Playing With Real Property Inside Augmented Reality: Pokemon Go, Trespass, And Law's Limitations, Donald J. Kochan

Donald J. Kochan

This symposium essay uses the popular game Pokémon Go as a case study for evaluating conflicts that arise when augmented reality is layered over the real property of non-consenting owners. It focuses on the challenges augmented reality technologies pose to the meaning and enforcement of formal and informal trespass norms, first examining physical trespass issues (and enforcement difficulties) associated with game players who sometimes break physical property boundaries.

The essay then undertakes a thought experiment regarding possible recognition of a new, different type of trespass—one to augmented space. Pollock and Maitland called trespass the “fertile mother of all actions ...


The Jewel In The Crown: Can India’S Strict Liability Doctrine Deepen Our Understanding Of Tort Law Theory?, Deepa Badrinarayana Dec 2016

The Jewel In The Crown: Can India’S Strict Liability Doctrine Deepen Our Understanding Of Tort Law Theory?, Deepa Badrinarayana

Deepa Badrinarayana

The evolution of tort law in former British colonies is not only fascinating; it also holds clues into the age old question of whether law or any discrete area of law can be universal. The exploration into doctrinal divergences and convergences is part of a larger quest: to capture the theoretical underpinnings of tort law and, in that process, discover the universal core of tort law, if there is one. For example, is the central purpose of tort law efficient resource allocation, corrective justice, or simply a compensatory system for wrongs? To answer these questions, theorists have generally considered tort ...