Torts Commons^™

Jewish Law And The Concept Of Negligence, Steven F. Friedell

Touro Law Review

No abstract provided.

The Fault Principle As The Chameleon Of Contract Law: A Market Function Approach, Stefan Grundmann

Michigan Law Review

This Article begins with a comparative law survey showing that all legal systems do not opt exclusively for fault liability or strict liability in contract law, but often adopt a more nuanced approach. This approach includes intermediate solutions such as reversing the burden of proof, using a market ("objective") standard of care, distinguishing between different types of contracts, and providing a "second chance" to breaching parties. Taking this starting point seriously and arguing that it is highly unlikely that all legal systems err, this Article argues that the core question is how and when each liability regime should prevail or …

The Many Faces Of Fault In Contract Law: Or How To Do Economics Right, Without Really Trying, Richard A. Epstein

Michigan Law Review

Modern law often rests on the assumption that a uniform cost-benefit formula is the proper way to determine fault in ordinary contract disputes. This Article disputes that vision by defending the view that different standards of fault are appropriate in different contexts. The central distinction is one that holds parties in gratuitous transactions only to the standard of care that they bring to their own affairs, while insisting on the higher objective standard of ordinary care in commercial transactions. That bifurcation leads to efficient searches. Persons who hold themselves out in particular lines of business in effect warrant their ability …

Torts: Praying For The Parish Or Preying On The Parish? Clergy Sexual Misconduct And The Tort Of Clergy Malpractice, Emily C. Short

Oklahoma Law Review

No abstract provided.

Hellingv. Carey Revisited: Physician Liability In The Age Of Managed Care, Leonard J. Nelson Iii

Seattle University Law Review

In this article, the author proposes that the traditional custom-based standard applicable in medical malpractice cases be replaced with a reasonable, prudent physician standard that will more adequately take into account the role of the physician in rationing care. Part I of this article focuses on the heightened tension between tort and contract in managed health care. Part II of this article examines managed care cost containment techniques and their possible impact on physician decision making. Part III focuses on the widely acknowledged shortcomings of the customary standard. Part IV provides an outline of the doctrinal regime for my proposed …

Reconciling The Exercise Of Judgment And The Objective Standards Of Care In Medical Malpractice, Joseph H. King Jr.

Oklahoma Law Review

No abstract provided.

Torts—Change In The Arkansas Law Of Informed Consent: What's Up, Doc? Aronson V. Harriman, 321 Ark. 359, 901 S.W.2d 832 (1995)., Elizabeth Sudbury Langston

University of Arkansas at Little Rock Law Review

No abstract provided.

Malpractice And Other Legal Issues Preventing The Development Of Telemedicine , Christopher Caryl

Journal of Law and Health

Even though most Americans have not heard of telemedicine, the federal government is already actively involved in "developing a national telemedicine strategy." This note attempts to accomplish the following: demonstrate the urgent need of rural communities to gain access to adequate health care; clarify how telemedicine can provide enhanced health care to rural communities; and analyze the legal obstacles that have prevented, thus far, the most beneficial utilization of telemedicine. In particular, this note will examine how malpractice claims arising from telemedicine consultations might be resolved. An important issue to recognize at the outset, and one that consistently reappears throughout …

A New Predicament For Physicians: The Concept Of Medical Futility, The Physician's Obligation To Render Inappropriate Treatment, And The Interplay Of The Medical Standard Of Care, Eric M. Levine

Journal of Law and Health

Part II of this article discusses the concept of futility and reviews various proposed approaches to defining "futility". This article then shows how personal value judgments play an integral part in determining futility under virtually all of these approaches. Part II concludes that a decision that treatment is futile should not be based on the individual values of only the patient or physician under the shared decisionmaking model of the physician-patient relationship. Part III tackles the issue whether a physician must offer or continue treatment deemed "medically and ethically inappropriate." Part III first reviews common law doctrines governing the physician-patient …

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

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 …

Medical Malpractice Standard Of Care: The Same Or Similar Localities Rule Revisited, Victra L. Fewell

University of Arkansas at Little Rock Law Review

No abstract provided.

Medico-Legal Issues In Wound Management, Susan Webber

University of Arkansas at Little Rock Law Review

No abstract provided.

Plaintiff's Standard Of Care After Hochfelder: Toward A Theory Of Causation, Robert P. Bryant

Vanderbilt Law Review

The extended debate by the Institute illustrates the logical and even emotional difficulty of dealing with the victim of an admittedly intentional deception who has acted foolishly in his own behalf and does not seem to deserve recovery. The crux of the controversy in the common law deceit cases mirrors that in the 10b-5 cases:should the victim have to investigate, and what might trigger an obligation to investigate? As this discussion demonstrates, tort principles provide some guidance. In deceit cases, the obligations placed on the plaintiff arise from the requirement that his reliance be justified. To the extent that his …

Wood V. Camp, 284 So.2d 691 (Fla. 1973), Florida State University Law Review

Florida State University Law Review

Torts- STANDARD OF CARE- PROPERTY OWNER OWES INVITED LICENSEE DUTY TO DISCOVER AND WARN OF HAZARDOUS CONDITIONS ON PREMISES.

Contributory Negligence Of Very Young Children, James B. Wilkens

Cleveland State Law Review

If in backing your car out of a driveway you look to only one side as you approach the sidewalk, and strike and injure a pedestrian approaching from the other side, who had been so engrossed in conversation with a companion as not to have cast even a glance up the driveway, your liability for his injuries might well depend upon his age. The standard of care required (in most circumstances) of normal adults (and corporations) for the protection of themselves and of others is that they take such care as ordinary prudent persons would take in the circumstances. Little, …

Standard Of Care For Medical Practitioners--Abandonment Of The Locality Rule, Katherine Randall Bowden

Kentucky Law Journal

No abstract provided.

Hospital Nurses And Tort Liability, Gabrielle G. Kinkela, Robert V. Kinkela

Cleveland State Law Review

What factors have influenced the courts in the development of their current attitude toward hospitals? Are the emerging concepts reasonable, or are they indicia of a pendulum swinging too far in the direction of the patient? What are the consequences for the nurse? These are the questions to which the ensuing treatment of one aspect of tort liability is addressed.

Non-Resident Expert Testimony On Local Hospital Standards, Kent E. Baldauf

Cleveland State Law Review

This issue deals with the question of whether a medical expert witness need be a resident of the particular community in order to testify as to local hospital standards in that community. Generally, in cases involving medical malpractice, the courts have held that the expert witness must have practiced in the "same" or "similar" locality as the defendant doctor in order that his testimony be held admissible to establish the standard of medical care against which the defendant is to be held.

Torts -- 1964 Tennessee Survey, Dix W. Noel

Vanderbilt Law Review

As usual, the Tennessee appellate courts decided a considerable number of tort cases last year, covering a wide variety of problems.There were no striking new developments. In fact, the two decisions which were awaited by the profession with the greatest interest, Kyker v. General Motors Corporation' and Texas Tunneling Co. v. City of Chattanooga, tend to slow down some modem developments. In the Kyker case, it was indicated that manufacturers are not yet strictly liable in Tennessee, at least on warranty grounds, without privity of contract. In the Texas Tunneling case, a federal court undertaking to apply Tennessee law placed …

Torts -- 1964 Tennessee Survey, Dix W. Noel

Vanderbilt Law Review

As usual, the Tennessee appellate courts decided a considerable number of tort cases last year, covering a wide variety of problems.There were no striking new developments. In fact, the two decisions which were awaited by the profession with the greatest interest, Kyker v. General Motors Corporation' and Texas Tunneling Co. v. City of Chattanooga, tend to slow down some modem developments. In the Kyker case, it was indicated that manufacturers are not yet strictly liable in Tennessee, at least on warranty grounds, without privity of contract. In the Texas Tunneling case, a federal court undertaking to apply Tennessee law placed …

Torts -- 1961 Tennessee Survey (Ii), John W. Wade

Vanderbilt Law Review

The twenty tort cases decided during the shorter survey period this year all involved negligence actions.' Most of the cases involved the application of established rules or standards to new fact situations, some of them being fairly routine. Only two cases were of striking significance.

Negligence - Breach Of Duty - Standard Of Care Required Of Infant Defendants, Dale Van Winkle

Michigan Law Review

One of the defendants, a child four years and eight months of age, while playing with infant plaintiff, threw a stone which struck a bottle near where plaintiff was standing. A chip of glass Hew from the bottle into the eye of plaintiff, resulting in injury. The action was brought by infant plaintiff's father individually and as guardian ad litem against infant defendant's father individually and as guardian ad litem. The trial court denied infant defendant's motion for summary judgment. On appeal, held, reversed and remanded with directions to dismiss the complaint as to infant defendant. The authorities do …

Torts -- 1954 Tennessee Survey, John W. Wade

Vanderbilt Law Review

There were over forty appellate decisions during the past year in the field of Torts. All but about half a dozen of these involved Negligence, and half of the Negligence cases involved traffic accidents. A reading of this latter group is well calculated to induce an automobile driver to use more care in the future.

In the great majority of Negligence cases the defendant owes the plaintiff a duty to use care. As Judge Howard expressed it in Monday v. Millsaps: "Whenever one person is by circumstances placed in such a position with regard to another that it is obvious …

The Standard Of Care Owed By A Hospital To Its Patients, William J. Harbison

Vanderbilt Law Review

Despite the: great number of tort cases which have arisen between hospitals and their patients, comparatively little has been written upon the subject of the standard of care required of a hospital in its relationship with those who enter it for treatment. In this Note some of the types of problems arising out of this relationship will be examined.' Questions of substantive and procedural law will be treated together in order to present these problems more clearly.

Generally, public hospitals are excused from tort liability to their patients upon the ground of governmental immunity ; in most states charitable institutions …

Negligent Involuntary Manslaughter In Kentucky: Standard Of Care Required, Helen C. Stephenson

Kentucky Law Journal

No abstract provided.

The Standard Of Care In Emergencies, Alvin E. Evans

Kentucky Law Journal

No abstract provided.

Negligence: Physical Defects As Affecting The Standard Of Care In Civil And Criminal Cases, Roy Vance Jr.

Kentucky Law Journal

No abstract provided.

Objective Factors As Part Of The Circumstances In Cases Involving Civil Negligence, Helen C. Stephenson

Kentucky Law Journal

No abstract provided.

Individual Physical Characteristics As Affecting The Standard Of Care In Criminal Negligence Cases, Robert M. Spragens

Kentucky Law Journal

No abstract provided.