Torts Commons^™

Burke V. Rivo: Toward A More Rational Approach To Wrongful Pregnancy, Jill E. Garfinkle

Villanova Law Review

No abstract provided.

Wright V. Hanley: No Seatbelt Defense Under West Virginia Tort Law, D. Kevin Coleman

West Virginia Law Review

No abstract provided.

King V. Kayak Manufacturing Corporation: Comparative Assumption Of Risk In West Virginina, Daniel W. Greear

West Virginia Law Review

No abstract provided.

Getting To No: A Study Of Settlement Negotiations And The Selection Of Cases For Trial, Samuel R. Gross, Kent D. Syverud

Articles

A trial is a failure. Although we celebrate it as the centerpiece of our system of justice, we know that trial is not only an uncommon method of resolving disputes, but a disfavored one. With some notable exceptions, lawyers, judges, and commentators agree that pretrial settlement is almost always cheaper, faster, and better than trial. Much of our civil procedure is justified by the desire to promote settlement and avoid trial. More important, the nature of our civil process drives parties to settle so as to avoid the costs, delays, and uncertainties of trial, and, in many cases, to agree …

Educational Malpractice: A Tort Is Born, Johnny C. Parker

Cleveland State Law Review

This article examines the judicial justification for the nonrecognition of educational malpractice as a theory of tort liability. Section I focuses on the various factual contexts in which educational malpractice claims have arisen and analyzes the concept of duty and proximate cause in the different factual contexts. Section II discusses the common law principles which demonstrate that the analytical problems associated with educational malpractice are not new to the law. Section III examines public policy as a distinct component of the duty-proximate cause inquiry. Section IV also focuses on public policy as expressed by various state legislatures regarding the teaching …

The Aftermath Of Injury: Cultural Factors In Compensation Seeking In Canada And The United States, Neil Vidmar, Herbert M. Kritzer, W. A. Bogart

Faculty Scholarship

Injury is common in all societies. Americans are perceived as quick to respond to injury by turning to the legal system. This article compares compensation seeking by Americans and Canadians, examining the degree to which cultural factors shape the response of injured parties in the two countries and the extent to which resources and experiences influence individual action. Drawing on two large-scale telephone surveys, one conducted in five federal judicial districts around the United States and one conducted in the Canadian province of Ontario, the article looks at the factors that influence claiming and seeking legal assistance. The overall patterns …

Educational Malpractice: A Tort Is Born, Johnny Parker

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

The Power Of Private Facts, Anita L. Allen

All Faculty Scholarship

No abstract provided.

The Suicidal Decedent: Culpable Wrongdoer, Or Wrongfully Deceased, 24 J. Marshall L. Rev. 463 (1991), Allen C. Schlinsog Jr.

UIC Law Review

No abstract provided.

Limited Liability In Environmental Law, George W. Dent

Faculty Publications

The social importance and immense costs of pollution make environmental law an ideal arena for reconsidering theories of limited liability for tort. This article examines the question in the context of the Comprehensive Environmental Response, Compensation, and Liability Act (CER-CLA).1 Part I reviews the text and legislative history of the Act. Part II analyzes the CERCLA case law on the liability of controlling persons, especially those involving parent corporations. Part III discusses the general theory of limited liability and its exceptions. Part IV applies this general theory to CERCLA and finds that its special features call for distinctive approaches. Part …

The Indeterminate Defendant In Products Liability Litigation And A Suggested Approach For Ohio, Rebecca J. Greenberg

Cleveland State Law Review

The problems created by mass marketing, unequal bargaining power, and hidden product hazards have necessitated major changes in products liability law during the past thirty years. Correspondingly, considerations of cost reduction, injury avoidance, and fair risk distribution are generally advanced as the policies behind the widespread acceptance gained by strict liability in the 1960's. A decade later, these considerations were applied to the problem of proof of causation faced by plaintiffs who could not identify the specific defendant who caused their injuries. A limited version of this problem had been considered earlier in the seminal case of Summers v. Tice, …

Educational Malpractice: A Tort Is Born, Johnny C. Parker

Cleveland State Law Review

This article examines the judicial justification for the nonrecognition of educational malpractice as a theory of tort liability. Section I focuses on the various factual contexts in which educational malpractice claims have arisen and analyzes the concept of duty and proximate cause in the different factual contexts. Section II discusses the common law principles which demonstrate that the analytical problems associated with educational malpractice are not new to the law. Section III examines public policy as a distinct component of the duty-proximate cause inquiry. Section IV also focuses on public policy as expressed by various state legislatures regarding the teaching …

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 …

Section 1983 And The Parratt Doctrine After Zinermon V. Burch: Ensuring Due Process Rights Or Turning The Fourteenth Amendment Into A Font Of Tort Law, Paul F. Wingenfeld

Cleveland State Law Review

Over the last thirty years, the Court has decided a number of cases which illustrate an on-going struggle to find the proper place for section 1983 in the federal court system and, consequently, what ultimately qualifies as adequate procedural due process within the context of the statute. This note will examine the history of Court decisions involving section 1983 in order to provide the proper background for examining the Court's most recent decision in Zinermon v. Burch, a case which itself has added to an already confusing field of legal study. Within this historical background, however, the Court has actually …

At What Cost Will The Court Impose A Duty To Preserve The Life A Child, David S. Lockemeyer

Cleveland State Law Review

The purpose of this Note is to explore the issues surrounding parental consent for a surgical invasion of one child to save the life of a sibling. This Note focuses on the courts role in permitting organ transplantation. In addition, it will discuss the new developments in medical science regarding living donors and the concept of transplantation of regenerative organs and the possible impact on the court. Next, this Note analyzes the elements of duty to rescue, best interest and substituted judgment and the court's use of the various tests to justify invasion of a child's body. This Note examines …

From Hannola To Albain: The Rise And Fall Of Ohio's Hospital Agency By Estoppel Doctrine, David J. Wigham

Cleveland State Law Review

The role of the hospital in the field of medicine has evolved significantly in recent decades. Now hospitals privately distance themselves as far as possible from the acts of the negligent physician. Courts have intervened in recent years and expanded the scope of vicarious hospital liability. This Note will begin with a brief history of vicarious hospital liability. Next, it will examine the elements of two doctrines which are being used to impute such liability to hospitals - agency by estoppel and ostensible agency - and determine how each has been applied by courts across the nation to the hospital …

Reducing The Recovery Of Avoidable Seat-Belt Damages: A Cure For The Defects Of Waterson V. General Motors Corporation, Paul A. Lebel

Faculty Publications

No abstract provided.

Does "Unlawful" Mean "Criminal"?: Reflections On The Disappearing Tort/Crime Distinction In American Law, John C. Coffee Jr.

Faculty Scholarship

What sense does it make to insist upon procedural safeguards in criminal prosecutions if anything whatever can be made a crime in the first place?
—Professor Henry M. Hart, Jr.

My thesis is simple and can be reduced to four assertions. First, the dominant development in substantive federal criminal law over the last decade has been the disappearance of any clearly definable line between civil and criminal law. Second, this blurring of the border between tort and crime predictably will result in injustice, and ultimately will weaken the efficacy of the criminal law as an instrument of social control. Third, …

Federal Statutory Review Under Section 1983 And The Apa, Henry Paul Monaghan

Faculty Scholarship

Following hard on the heels of two unanimous decisions sustaining the authority of state courts to enforce federal law, two more unanimous rulings at the end of the 1989 Supreme Court Term strongly emphasized their duty to do so. McKesson Corporation v. Division of Alcoholic Beverages & Tobacco, held that the states must provide meaningful postpayment remedies for parties forced to pay state taxes that had been extracted contrary to the commerce clause, and Howlett v. Rose affirmed the existence of a nearly inescapable duty in the state courts to entertain section 1983 actions. Additionally, three days after Howlett …

The Modern Prima Facie Tort Doctrine, Kenneth J. Vandevelde

Kentucky Law Journal

No abstract provided.

Recovery For Pure Economic Loss In Tort: Another Look At Robins Dry Dock V. Flint, Victor P. Goldberg

Faculty Scholarship

In Robins Dry Dock and Repair Co. v. Flint, the Supreme Court laid down the general proposition that claims for pure economic loss are not recoverable in tort. Although courts have sometimes ignored or distinguished Robins, its holding is still a central feature of tort law. In a recent en bane decision regarding claims by those injured by a chemical spill in the Mississippi River, the Fifth Circuit engaged in an extensive debate over the continued vitality of Robins and concluded (despite five dissenters) that it remained good law.

The Robins rule is overbroad, lumping together a number of …

Real And Imagined Effects Of Statutes Restricting The Liability Of Nonmanufacturing Sellers Of Defective Products, John G. Culhane

John G. Culhane

No abstract provided.