Torts Commons^™

Amendment Of The Abortion Law: Relevant Data And Judicial Opinion, John T. Noonan, Jr.

The Catholic Lawyer

No abstract provided.

Parental Relation Not A Bar To Recovery In Negligence Actions

The Catholic Lawyer

No abstract provided.

See No Fiduciary, Hear No Fiduciary: A Lawyer’S Knowledge Within Aiding And Abetting Fiduciary Breach Claims, Brinkley Rowe

Fordham Law Review

Fiduciary liability for attorney conduct generally extends only to direct clients of legal services. Over the last few decades, however, the lawyer’s role has expanded. Following this trend, fiduciary liability also has expanded to allow third-party claims in certain limited circumstances. One example is the attorney aiding and abetting a client’s fiduciary breach claim. One of the key requirements for liability under this claim is the attorney’s knowledge of his client’s fiduciary relationship with the third party alleging the breach. Within those jurisdictions that have accepted the claim, there are two approaches to the knowledge element. The first is the …

Defining “Accidents” In The Air: Why Tort Law Principles Are Essential To Interpret The Montreal Convention’S “Accident” Requirement, Alexa West

Fordham Law Review

This Note examines the history of, and the reasons for, the Montreal Convention, which in part forces airlines to indemnify passengers for injuries resulting from “accidents”—a term undefined in the treaty. The Montreal Convention and the subsequent case law interpreting it demonstrate how, to qualify as an “accident,” the injury-producing incident must be causally connected to the plane’s operation. Importantly, the causal connection’s adequacy should be evaluated according to American tort jurisprudence even though the accident requirement itself is an exception to general tort law. This Note focuses on a particular type of injury-producing event, a copassenger tort, because of …

Like A Bad Neighbor, Hackers Are There: The Need For Data Security Legislation And Cyber Insurance In Light Of Increasing Ftc Enforcement Actions, Jennifer Gordon

Brooklyn Journal of Corporate, Financial & Commercial Law

Privacy has come to the forefront of the technology world as third party hackers are constantly attacking companies for their customers’ data. With increasing instances of compromised customer information, the Federal Trade Commission (FTC) has been bringing suit against companies for inadequate data security procedures. The FTC’s newfound authority to bring suit regarding cybersecurity breaches, based on the Third Circuit’s decision in FTC v. Wyndham Worldwide Corp., is a result of inaction—Congress has been unable to pass sufficient cybersecurity legislation, causing the FTC to step in and fill the void in regulation. In the absence of congressional action, this self-proclaimed …

Torts, Phillip Comer Griffeth, Christopher R. Breault, Christopher Barwick Newbern

Mercer Law Review

This Article surveys recent developments in Georgia tort law between June 1, 2015 and May 31, 2016.

Essay: Extending Comparative Fault To Apparent And Implied Consent Cases, Aaron D. Twerski, Nina Farber

Brooklyn Law Review

This article challenges the traditional view of consent as a binary issue. Because “lack of consent” is an element of an intentional tort, courts do not apply comparative responsibility principles and therefore must find that plaintiff has either consented to the invasion of her person or not. In cases where consent is predicated on apparent consent or implied consent, however, the all–or-nothing approach to consent fails to take into account that both plaintiff and defendant may have been responsible for a miscommunication as to consent. This essay focuses on well-known cases and situations where both parties likely contributed to a …

Extracting Medical Injury Information From The Legal System To Improve Patient Safety In The Health System: A Social Utility Approach, Mary Chaffee

University of Massachusetts Law Review

As many as 400,000 people die each year, and a million are injured, by preventable medical injuries sustained in the U.S. health system. Collection of data to enhance understanding of how unintended medical injuries happen is an essential part of harm-reduction strategies. While health system data collection and reporting processes have improved in recent years, the scope and intractability of the medical injuries problem demands new efforts. The legal system could contribute valuable medical injury data to patient safety efforts but current practices largely prevent it. In medical malpractice claims where parties settle, case information is routinely protected from disclosure …

Negative Portrayal Of Vaccines By Commercial Websites: Tortious Misrepresentation, Donald C. Arthur

University of Massachusetts Law Review

Commercial website publishers use false and misleading information to create distrust of vaccines by claiming vaccines are ineffective and contain contaminants that cause autism and other disorders. The misinformation has resulted in decreased childhood vaccination rates and imperiled the public by allowing resurgence of vaccine-preventable illnesses. This Article argues that tort liability attaches to publishers of commercial websites for foreseeable harm that results when websites dissuade parents from vaccinating their children in favor of purchasing alternative products offered for sale on the websites.

It Is Time For Washington State To Take A Stand Against Holmes's Bad Man: The Value Of Punitive Damages In Deterring Big Business And International Tortfeasors, Jackson Pahlke

University of Michigan Journal of Law Reform

In Washington State, tortfeasors get a break when they commit intentional torts. Instead of receiving more punishment for their planned bad act, intentional tortfeasors are punished as if they committed a mere accident. The trend does not stop in Washington State—nationwide, punitive damage legislation inadequately deters intentional wrongdoers through caps and outright bans on punitive damages. Despite Washington State’s one hundred and twenty-five year ban on punitive damages, it is in a unique and powerful position to change the way courts across the country deal with intentional tortfeasors. Since Washington has never had a comprehensive punitive damages framework, and has …

Resolving The Divided Patent Infringement Dilemma, Nathanial Grow

University of Michigan Journal of Law Reform

This Article considers cases of divided patent infringement: those in which two or more parties collectively perform all the steps of a patented claim, but where no single party acting alone has completed the entire patented invention. Despite the increasing frequency with which such cases appear to be arising, courts have struggled to equitably resolve these lawsuits under the constraints of the existing statutory framework because of the competing policy concerns they present. On the one hand, any standard that holds two or more parties strictly liable whenever their combined actions infringe a patent risks imposing liability on countless seemingly …

The Strict Liability In Fault And The Fault In Strict Liability, John C.P. Goldberg, Benjamin C. Zipursky

Fordham Law Review

Tort scholars have long been obsessed with the dichotomy between strict liability and liability based on fault or wrongdoing. We argue that this is a false dichotomy. Torts such as battery, libel, negligence, and nuisance are wrongs, yet all are “strictly” defined in the sense of setting objective and thus quite demanding standards of conduct. We explain this basic insight under the heading of “the strict liability in fault.” We then turn to the special case of liability for abnormally dangerous activities, which at times really does involve liability without wrongdoing. Through an examination of this odd corner of tort …

The Compatibility Of Forward-Looking And Backward-Looking Accounts Of Tort Law, Michael Pressman

The University of New Hampshire Law Review

This Article is the first to argue that forward-looking and backward-looking accounts of tort law are intrinsically compatible with one another. This theoretical point is of great importance and will bring about a paradigm shift in tort theory—and, more generally, in legal theory. This is because the long-standing debate between corrective justice theorists and economic theorists about the purpose of tort law (with active participants including Posner, Calabresi, Coleman, Weinrib, Rawls, and countless others) is based on the universal assumption that forward-looking and backward-looking accounts of tort law are incompatible. This assumption, however, is false, and this Article explains why …

Realigning The Governmental/Proprietary Distinction In Municipal Law, Hugh D. Spitzer

Seattle University Law Review

Lawyers and judges who deal with municipal law are perpetually puzzled by the distinction between “governmental” and “proprietary” powers of local governments. The distinction is murky, inconsistent between jurisdictions, inconsistent within jurisdictions, and of limited use in predicting how courts will rule. Critics have launched convincing attacks on the division of municipal powers into these two categories. Most articles have focused on problems with the distinction in specific areas of municipal law. In contrast, this article provides a comprehensive analysis of the governmental/proprietary distinction in seven specific doctrinal areas: legislative grants of municipal authority, government contracts, torts, eminent domain, adverse …

Valdez V. City Of New York: The "Death Knell" Of Municipal Tort Liability?, Alisa M. Benintendi

St. John's Law Review

(Excerpt)

This Note contends that the Court of Appeals erred in narrowing the scope of municipal tort liability in Valdez. Focus is on the Court of Appeals’ affirmation of its regressive analysis in McLean v. City of New York and mistaken reliance upon its earlier decision in Cuffy v. City of New York. To illustrate the Court of Appeals’ unwavering adherence to Valdez, this Note examines the court’s decisions in Metz v. State and Coleson v. City of New York. Part I discusses the history and purpose of sovereign immunity from tort liability, New York’s waiver …

Out Of The Black Hole: Toward A Fresh Approach To Tort Causation, Allan C. Hutchinson

Dalhousie Law Journal

The present state of Canadian doctrine on causation in tort law is in serious disarray Judges and jurists persist in thinking that it is a factual inquiry separate from policy concerns. This is made obvious in the recent Supreme Court decision in Clements and in the academic commentary around it. In contrast, I insist that the requirement of causation must be understood as being entirely part of the broader debate on the goals and policies of tort law generally Causation is a topic drenched with normative values and should be treated as such.

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

Washington and Lee Law Review Online

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 …

Ebola, Experimental Medicine, Economics, And Ethics: An Evaluation Of International Disease Outbreak Law, Sara L. Dominey

Georgia Journal of International & Comparative Law

No abstract provided.

Applying Domestic Statutes To Foreign Conduct: How Much Does Kiobel Touch And Concern The Presumption Against Extraterritorial Application, Jessica Neer Mcdonald

University of Miami Inter-American Law Review

This paper examines a tumultuous history of applying United States law to foreign conduct in United States federal courts and the impact of recent Supreme Court decisions in this area. Despite its inconsistent application, the presumption against extraterritorial application may bridle Article III courts’ authority of applying domestic law to foreign conduct. Notably, a complicated test of displacing the presumption has emerged from the recent Supreme Court case of Kiobel v. Royal Dutch Petroleum Co., which concerned foreign conduct under the Alien Tort Statute (“ATS”). The test states the presumption is overcome if the foreign conduct “touches and concerns” …

The Staab Saga: The Nonparty, Joint And Several Liability, And Loss Reallocation In The Minnesota Comparative Fault Act, Mike Steenson

Mitchell Hamline Law Review

No abstract provided.

Terra Firma As Open Seas: Interpreting Kiobel In The Failed State Context, Drew F. Waldbeser

Indiana Law Journal

This Note will ultimately argue that, despite the expansive language in Kiobel, the Court’s reasoning does not necessarily foreclose all “foreign-cubed” claims. Suits alleging human rights violations originating from conduct that took place in failed states avoid the concerns the Court emphasized in Kiobel. The Court should allow jurisdiction for human rights offenses in failed states, despite their “foreign-cubed” nature, because the already existing rationale for allowing jurisdiction for international piracy offenses is highly analogous.

Part I of this Note explores the ATS jurisprudence leading up to and including Kiobel. Besides exploring the tensions and policy interests courts are grappling …

The Prosser Myth Of Transferred Intent, Peter B. Kutner

Indiana Law Journal

The main theme of this Article is that Prosser advanced a mythical doctrine of transferred intent. What Prosser asserted to be the law was not the law when he wrote his article on transferred intent and amended his treatise. The cases he relied on to support his conclusions on transferred intent did not support them. Moreover, despite Prosser’s great influence on American tort law, Prosser’s position on transferred intent is not the law now and should not be. Its consequences are undesirable. Recognition of transferred intent as a basis of liability is due primarily to its inclusion in the First …

Student-On-Teacher Violence: A Proposed Solution, Perris E. Nelson

Brigham Young University Education and Law Journal

No abstract provided.

Aviation Law - Personal Injury - The Warsaw Convention, As Modified By The Montreal Agreement, Acts To Establish The Air Carrier’S Strict Liability For A Passenger’S Personal Injury Incurred During An Aircraft Hijacking, Robert T. Bockman

Georgia Journal of International & Comparative Law

No abstract provided.

Adding Insult To Death: Why Punitive Damages Should Not Be Imposed Against A Deceased Tortfeasor's Estate In Ohio, Alec A. Beech

Akron Law Review

A majority of jurisdictions in the United States have determined, either statutorily or judicially, that punitive damages cannot be imposed against deceased tortfeasors. However, a recent Ohio appellate court held to the contrary. In Whetstone v. Binner, the Ohio Fifth District Court of Appeals adopted the minority view when it held that punitive damages could be imposed against a decedent’s estate. This Comment takes the position that Whetstone was incorrectly decided. Specifically, this Comment argues that the longstanding purposes of punitive damages are not furthered when such damages are imposed against estates and that Ohio law supports this conclusion.

Pleading Actual Malice In Defamation Actions After Twiqbal: A Circuit Survey, Judy M. Cornett

Nevada Law Journal

No abstract provided.

Home Is Where The Confusion Is: Pennsylvania Formally Adopts The "Gist Of The Action" Doctrine And Builds A House For Ambiguity In Bruno V. Erie Insurance Co., Lauren Anthony

Villanova Law Review

No abstract provided.

Lights, Camera, … Injury! The Nba Needs To Ban Courtside Cameramen, Joshua D. Winneker, Philip Schultze, Sam C. Ehrlich

Jeffrey S. Moorad Sports Law Journal

No abstract provided.

Causation And Standard Of Proof From An Economic Perspective, Bruno Deffains, Claude Fluet, Maiva Ropaul

Chicago-Kent Law Review

Causation is a problematic notion, as explained by Ronald Coase regarding the “bilateral nature” of externalities. However, causation has played only a minor role in standard economic models of civil liability. An exception is the sub-literature on Uncertainty Over Causation and the Determination of Civil Liability, the benchmark paper written by Steven Shavell in 1985: “. . . the familiar notion that for parties to be led to reduce accident risks appropriately, they should generally face probability-discounted or ‘expected’ liability equal to the increase in expected losses that they create. This, of course, is naturally the case in the absence …

Causation: Linguistic, Philosophical, Legal And Economic, Richard W. Wright, Ingeborg Puppe

Chicago-Kent Law Review

Causation plays an essential role in attributions of legal responsibility. How-ever, considerable confusion has been generated in philosophy, law and economics by the use of causal language to refer not merely to causation in its basic (actual/factual/natural) sense, which refers to the operation of the laws of nature, but also to the quite different normative issue of appropriate legal responsibility. To reduce such confusion, we argue that causal language in these disciplines should be used to refer solely to causation in its basic sense. While it is often said that the law need not and should not concern itself with …