Torts Commons^™

Trolley Problems, Private Necessity, And The Duty To Rescue, Laura A. Heymann

Faculty Publications

Laidlaw v. Sage is generally, at best, an oddity in Torts casebooks today. A case that captured the imagination of New York newspaper readers at the time, Laidlaw involved an explosion that, William Laidlaw argued, the wealthy Russell Sage survived only because, at the last moment, he pulled Laidlaw in front of him to absorb the brunt of the blast. As taught in Torts classrooms, Laidlaw is either a case about the intent requirement for battery or a case about causation. But the case, assuming the plaintiff’s story was true, also provides an interesting window into what would seem to …

Litigating Partial Autonomy, Cassandra Burke Robertson

Faculty Publications

Who is responsible when a semi-autonomous vehicle crashes? Automobile manufacturers claim that because Advanced Driver Assistance Systems (ADAS) require constant human oversight even when autonomous features are active, the driver is always fully responsible when supervised autonomy fails. This Article argues that the automakers’ position is likely wrong both descriptively and normatively. On the descriptive side, current products liability law offers a pathway toward shared legal responsibility. Automakers, after all, have engaged in numerous marketing efforts to gain public trust in automation features. When drivers’ trust turns out to be misplaced, drivers are not always able to react in a …

Knowing How To Know: Secondary Liability For Speech In Copyright Law, Laura A. Heymann

Faculty Publications

Contributory copyright infringement has long been based on whether the defendant, "with knowledge of the infringing activity," induced, caused, or materially contributed to another's infringing conduct. But few court opinions or scholarly articles have given due consideration to what it means to "know" of someone else's infringing conduct, particularly when the unlawfulness at issue cannot truly exist until a legal judgment occurs. How can one "know," in other words, that a court or jury will deem a particular use infringement rather than de minimis or fair use? At best, contributory defendants engage in a predictive exercise--in some cases, a more …

Liability For Ai Decision-Making: Some Legal And Ethical Considerations, Iria Giuffrida

Faculty Publications

No abstract provided.

Crashworthiness: The Collision Of Sellers' Responsibility For Product Safety With Comparative Fault, F. Patrick Hubbard, Evan Sobocinski

Faculty Publications

Crashworthiness cases often involve the following issue: Should any wrongdoing by the plaintiff in causing the initial collision reduce or bar the plaintiff’s recovery for defective crashworthiness? Jurisdictions disagree on the answer to this issue. This disagreement results in large part from differing positions on two questions. First, should products liability law use duty rules to impose liability in a way that ensures efficient accident cost reduction or should it seek fairness through relatively unstructured jury allocations of liability based on fault? Second, in addressing the first issue, should for-profit corporations be viewed as: (1) “tools” to achieve human goals …

A Legal Perspective On The Trials And Tribulations Of Ai: How Artificial Intelligence, The Internet Of Things, Smart Contracts, And Other Technologies Will Affect The Law, Iria Giuffrida, Fredric Lederer, Nicolas Vermeys

Faculty Publications

No abstract provided.

Revisionist Municipal Liability, Avidan Y. Cover

Faculty Publications

The current constitutional torts system under 42 U.S.C. § 1983 affords little relief to victims of government wrongdoing. Victims of police brutality seeking accountability and compensation from local police departments find their remedies severely limited because the municipal liability doctrine demands plaintiffs meet near-impossible standards of proof relating to policies and causation.

The article provides a revisionist historical account of the Supreme Court’s municipal liability doctrine’s origins. Most private litigants’ claims for damages against cities or police departments do not implicate the doctrine’s early federalism concerns over protracted federal judicial interference with local governance. Meanwhile the federal government imposes extensive …

Response To Keeping Cases From Black Juries: An Empirical Analysis Of How Race, Income Inequality, And Regional History Affect Tort Law, Jennifer Wriggins

Faculty Publications

Issues of race and racism in the U.S. torts system continue to deserve much more attention from legal scholarship than they receive, and Keeping Cases from Black Juries is a valuable contribution. Studying racism as it infects the torts system is difficult because explicit de jure exclusions of black jurors are in the past; race is no longer on the surface of tort opinions; and court records do not reveal the race of tort plaintiffs, defendants, or jurors. Yet it is essential to try and understand the workings of race and racism in the torts system. The authors pose a …

Taxing Structured Settlements, Brant J. Hellwig, Gregg D. Polsky

Faculty Publications

Congress has granted a tax subsidy to physically injured tort plaintiffs who enter into structured settlements. The subsidy allows these plaintiffs to exempt the investment yield imbedded within the structured settlement from federal income taxation. The apparent purpose of the subsidy is to encourage physically injured plaintiffs to invest, rather than presently consume, their litigation recoveries. Although the statutory subsidy by its terms is available only to physically injured tort plaintiffs, a growing structured settlement industry now contends that the same tax benefit of yield exemption is available to plaintiffs' lawyers and nonphysically injured tort plaintiffs under general, common-law tax …

Equal Accountability Through Tort Law, Jason M. Solomon

Faculty Publications

No abstract provided.

Design Defect Ghosts, David Owen

Faculty Publications

No abstract provided.

Design Defects, David G. Owen

Faculty Publications

No abstract provided.

Why Torts Die, Kyle Graham

Faculty Publications

A few authors have performed autopsies on specific torts and identified the suspected reasons behind their deaths. These analyses, though interesting, are by their own admission of limited scope and do not provide especially useful analytic or predictive tools. This Article has a broader goal. Just as pathologists and epidemiologists study how fatal illnesses spread, conservation biologists examine why animal species go extinct, and geographers and anthropologists try to understand why societies succeed or fail, this Article surveys the roster of dead and dying torts and then asks (and tries to answer) a novel question: Why do torts die? This …

Special Defenses In Products Liability Law, David G. Owen

Faculty Publications

No abstract provided.

Proving Negligence In Products Liability Litigation, David G. Owen

Faculty Publications

No abstract provided.

Product Liability: A Commentary On The Liability Of Suppliers Of Component Parts And Raw Materials, David A. Fischer

Faculty Publications

The liability of suppliers of raw materials and component parts for harm caused by the product into which the materials have been incorporated poses difficult questions. When the raw material or component part is clearly defective, there is no question that the supplier is liable. Thus, where an ingredient in processed food is contaminated or where a truck tire has a flaw that causes a blowout, the supplier of the ingredient or the tire is liable. The difficult questions arise where the components are not inherently defective, but the finished product is defective because it lacks a safety feature or …

The Externality Of Victim Care, Alan J. Meese

Faculty Publications

No abstract provided.

Teaching Torts Without Insurance: A Second-Best Solution, David A. Fischer, Robert H. Jerry Ii

Faculty Publications

Teachers, scholars and practitioners have long appreciated the symbiotic relationship of torts and insurance. Indeed, the assertion that tort law and insurance law are intertwined is utterly unremarkable; many commentators have observed that tort law cannot be understood if the business of insurance and the law regulating it is ignored, and that insurance law cannot be understood if tort law is ignored. Several generations of law students have read casebooks, which in varying degrees pay homage to the connections between torts and insurance. Many law review articles and noteworthy books (or portions thereof) have plumbed the tort-insurance relationship. Although one …

Products Liability: User Misconduct Defenses, David G. Owen

Faculty Publications

No abstract provided.

The Quiet Demise Of Deference To Custom: Malpractice Law At The Millenium, Philip G. Peters Jr.

Faculty Publications

According to conventional wisdom, tort law allows physicians to set their own standard of care. While defendants in ordinary tort actions are expected to exercise reasonable care under the circumstances, physicians traditionally have needed only to conform to the customs of their peers. However, judicial deference to physician customs is eroding. Gradually, quietly and relentlessly, state courts are withdrawing this legal privilege. Already, a dozen states have expressly rejected deference to medical customs and another nine, although not directly addressing the role of custom, have rephrased their standard of care in terms of the reasonable physician, rather than compliance with …

Successive Causes And The Enigma Of Duplicated Harm, David A. Fischer

Faculty Publications

Some of the most intriguing brain teasers in tort law involve the valuation of damages for harm arising from wrongfully inflicted injury to person or property. Consider the following example: A wrongdoer shoots and instantly kills a person in the path of an avalanche that would have killed the person a few seconds later. The person's survivors bring a wrongful death action against the shooter, seeking compensation for the loss of support they would have received from the decedent if she had lived. Should the court require the shooter to pay for loss of support beyond the time that the …

Proportional Liability: Statistical Evidence And The Probability Paradox, David A. Fischer

Faculty Publications

Three major policies underlie tort liability: deterrence, compensation, and corrective justice. A primary justification for proportional liability is its alleged superiority in advancing the tort policy of deterrence. This Article demonstrates a significant flaw in this claim by showing that the use of tort liability in multiple cause cases involving statistical evidence in fact serves the policy of deterrence quite poorly.

Right-Talk And Torts-Talk: A Commentary On The Road Not Taken In The Intellectual History Of Tort Law, Paul A. Lebel

Faculty Publications

No abstract provided.

Deterrence And Desert In Tort: A Comment, David G. Owen

Faculty Publications

No abstract provided.

Foreward: The Use And Control Of Punitive Damages, David Owen

Faculty Publications

No abstract provided.

Problems In Assessing Punitive Damages Against Manufacturers Of Defective Products, David Owen

Faculty Publications

No abstract provided.

Role Of Misuse In Products Liability Litigation, David A. Fischer

Faculty Publications

Misuse is puzzling. Sometimes it cuts off liability and sometimes it does not, but courts have failed to clarify exactly what sort of conduct qualifies as the type of misuse that bars recovery. Generally speaking misuse takes two forms, abnormal use and mishandling. Abnormal use comes about when a product is used for an improper purpose; mishandling comes about when a product is used for a proper purpose but in an improper manner. Under this definition defendants can claim that virtually any unusual handling or use of a product constitutes misuse. Yet courts will not always accept this characterization. They …

Products Liability--Functionally Imposed Strict Liability, David A. Fischer

Faculty Publications

Many manufacturers and insurance companies claim that a products liability crisis exists. This is evidenced by soaring products liability insurance rates. They express the fear that as insurance becomes unavailable or prohibitively expensive, useful products will be withheld from the market and some manufacturers may even be forced out of business. Such critics of the tort system are calling for modifications of the common law in order to give greater protection to manufacturers. A more drastic approach, vigorously championed by Professor Jeffrey O'Connell, calls for total or partial abolition of the tort system and substitution with various forms of no-fault …

Products Liability--Applicability Of Comparative Negligence, David A. Fischer

Faculty Publications

Products liability and comparative negligence are two very rapidly developing fields of tort law. In recent years, the vast majority of courts have adopted strict liability for harm caused by defective products. At the same time, the doctrine of comparative negligence has changed almost overnight from a doctrine that had been accepted by only a handful of jurisdictions into what is now the majority approach in this country.

Products Liability--Applicability Of Comparative Negligence To Misuse And Assumption Of The Risk, David A. Fischer

Faculty Publications

A trend is emerging to apply comparative negligence in strict products liability actions. This creates two serious difficulties. First is the question of how to compare the negligence of one party with the strict liability of the other party.