Torts Commons^™

Perpetuating Injustice: Analyzing The Maryland Court Of Appeals’S Refusal To Change The Common Law Doctrine Of Contributory Negligence, Andrew White

Maryland Law Review

No abstract provided.

Nevor V. Moneypenny Holdings, Llc: Availability Of Prejudgment Interest For Mixed Maritime Law And Jones Act Claims, Adam S. Bohanan

Ocean and Coastal Law Journal

In maritime personal injury cases, courts have traditionally seen prejudgment interest as part of the compensation due to a prevailing plaintiff. The goal of ensuring the fullest compensation possible has long been recognized as a basic principle of admiralty law. However, federal appellate courts are split over whether to award prejudgment interest on a mixed claim under general maritime law and the Jones Act. This Note explores this issue in Nevor v. Moneypenny Holdings, LLC, which was the first time the question had been raised in the First Circuit. The Fifth and Sixth Circuits have held that because prejudgment interest …

Judicial Application Of Ohio's Comparative Negligence Statute, Michael J. Olah, Paul F. Meyerhoefer

Akron Law Review

In the case of Wilfong v. Batdorf the Ohio Supreme Court reexamined the issue of the retroactive application of Ohio's comparative negligence statute. Ohio's statute abolishing the defense of contributory negligence in a tort action was passed with an effective date of June 20, 1980, and the court faced the task of deciding whether comparative fault measurements could be used in an action arising prior to the effective date of the statute, but not coming to trial until after the effective date of the act. Previously the court had the opportunity to examine this issue in the case of Viers …

فعــــل المضــــرور الموجــــب للمساءلــــة فــي ضــوء دعــــاوى المسئوليــة التقصيريــة: الطبيعــة القانونيــة و الخصائــص العامــة (دراســــة تحليليــــة مقارنــــة), Mousa Ruzaiq, Mashael Alhajeri

Mashael Alhajeri

No abstract provided.

Apportioning Liability In Maryland Tort Cases: Time To End Contributory Negligence And Joint And Several Liability, Donald G. Gifford, Christopher J. Robinette

Faculty Scholarship

The Article presents a comprehensive proposal for assigning liability in tort cases according to the parties’ respective degrees of fault. The authors criticize the Court of Appeals of Maryland’s recent decision in Coleman v. Soccer Association of Columbia declining to abrogate contributory negligence, particularly the court’s notion that it should not act because of the legislature’s repeated failure to do so. The Article provides a comprehensive analysis of the advantages and disadvantages of comparative fault, including its effect on administrative costs, claims frequency, claims severity, insurance premiums, and economic performance. The authors propose the legislative enactment of comparative fault and …

Apportioning Liability In Maryland Tort Cases: Time To End Contributory Negligence And Joint And Several Liability, Donald G. Gifford, Christopher J. Robinette

Donald G Gifford

The Article presents a comprehensive proposal for assigning liability in tort cases according to the parties’ respective degrees of fault. The authors criticize the Court of Appeals of Maryland’s recent decision in Coleman v. Soccer Association of Columbia declining to abrogate contributory negligence, particularly the court’s notion that it should not act because of the legislature’s repeated failure to do so. The Article provides a comprehensive analysis of the advantages and disadvantages of comparative fault, including its effect on administrative costs, claims frequency, claims severity, insurance premiums, and economic performance. The authors propose the legislative enactment of comparative fault and …

The Death Of The Common Law: Judicial Abdication And Contributory Negligence In Maryland, Donald G. Gifford

Donald G Gifford

The issue of how to handle a victim’s own contributory negligence that combines with the negligence of a tortfeasor in causing harm is one of the most important, if not the most important, issue in all of tort law. Forty-six states now apply some version of comparative fault that holds the defendant liable for its negligence even when the plaintiff is also careless, but reduces the award in proportion to the plaintiff’s degree of fault when compared with that of the defendant. In contrast, the Maryland Court of Appeals in Coleman v. Soccer Association of Columbia recently refused again to …

Comparative Fault And Strict Products Liability: Are They Compatible?, C. R. Hickey

Pepperdine Law Review

No abstract provided.

Another Citadel Has Fallen - This Time The Plaintiff's. California Applies Comparative Negligence To Strict Products Liability, Thomas G. Gehring

Pepperdine Law Review

No abstract provided.

Allocation Of Responsibility After American Motorcycle Association V. Superior Court, Erwin E. Adler

Pepperdine Law Review

In its landmark case of Li v. Yellow Cab Co., the California Supreme Court judicially adopted the doctrine of comparative negligence in an action involving a plaintiff and a single defendant. The court in Li specifically avoided making any decision concerning the numerous issues which would be involved in a multi-party action: the relationship of multiple defendants with one another, the right of one defendant to join others for the purpose of sharing payment of the judgment, the respective responsibilities of such parties for the judgment (including those insolvent, partially solvent or possessing an immunity), and the procedure for the …

The Death Of The Common Law: Judicial Abdication And Contributory Negligence In Maryland, Donald G. Gifford

Maryland Law Review Online

The issue of how to handle a victim’s own contributory negligence that combines with the negligence of a tortfeasor in causing harm is one of the most important, if not the most important, issue in all of tort law. Forty-six states now apply some version of comparative fault that holds the defendant liable for its negligence even when the plaintiff is also careless, but reduces the award in proportion to the plaintiff’s degree of fault when compared with that of the defendant. In contrast, the Maryland Court of Appeals in Coleman v. Soccer Association of Columbia recently refused again to …

Through The Backdoor: Manipulating Assumption Of Risk And Contributory Negligence To Apply In Texas Nonsubscriber Causes Of Action., Lara Brock, Javier Espinoza

The Scholar: St. Mary's Law Review on Race and Social Justice

Texas’s nonsubscriber law precedence and interpretation directly conflict with the plain language and legislative intent of Texas Labor Code § 406.033. The purpose of § 406.033 is to protect injured workers and to encourage employers to subscribe to the state’s workers’ compensation system. Texas, however, allows employers to opt-out. Employers who elect to opt out of the workers’ compensation system are called “nonsubscribers.” By making this decision, nonsubscribers save on the cost of paying premiums for worker’s compensation, but potentially expose themselves to total liability against injured employees who can prove his or her employer breached one of their defined …

Virginia Should Abolish The Archaic Tort Defense Of Contributory Negligence And Adopt A Comparative Negligence Defense In Its Place, Peter N. Swisher

Law Faculty Publications

The purpose of this essay is to argue that the time has now come for Virginia, by judicial or legislative action, to abolish its archaic common law tort defense of contributory negligence and replace it with a comparative negligence defense. Adopting a comparative negligence defense would more equitably and more fairly recognize and apportion damages according to the bedrock underlying tort legal principles of accountability, deterrence, and distribution of loss.

Respondent Superior As An Affirmative Defense: How Employers Immunize Themselves From Direct Negligence Claims, J. J. Burns

Michigan Law Review

Most courts hold that where a defendant employer admits that it is vicariously liable for its employee's negligence, a plaintiff's additional claims of negligent entrustment, hiring, retention, supervision, and training must be dismissed. Generally, courts apply this rule based on the logic that allowing a plaintiff's additional claims adds no potential liability beyond that which has already been admitted. Furthermore, since the additional claims merely allege a redundant theory of recovery once a respondeat superior admission has been made, the prejudicial evidence of an employee's prior bad acts which often accompanies direct negligence claims against employers can be excluded without …

What Are We Comparing In Comparative Negligence?, Paul H. Edelman

Vanderbilt Law School Faculty Publications

In tort cases, comparative negligence now is the dominant method for determining damages. Under that method, the jury apportions fault among the parties and assesses damages in proportion to the relative fault assessment. Comparative negligence contrasts with contributory negligence, where any fault attributed to the plaintiff bars recovery. Although comparative negligence routinely governs in tort cases, its most basic feature remains uncertain: how to apportion fault. In this Article, I demonstrate that at least two different methods exist, and that these methods lead to radically different outcomes. I create a framework, building on a traditional model from law and economics, …

Rider Beware: Relying On The Courts And A Nationalized Rating System To Address The Duty Of Care Owed To Amusement Park Attraction Guests, Tobias Butler

Vanderbilt Journal of Entertainment & Technology Law

This note explores the history of amusement park attraction regulation, including both the legislative and judicial treatment, and highlights the deficiencies in court approaches in light of "common carrier" law. First, is a brief history of thrill attractions in America as well as regulation of these attractions by both the legislature and judiciary. Specifically it will discuss the major approaches courts have taken in applying or refusing to apply the "common carrier" definition to these attractions. Second, it will analyze why any standard less than "utmost care" does not provide sufficient power for the courts to create a consistent standard …

Contributory Or Comparative: Which Is The Optimal Negligence Rule?, Christopher J. Robinette, Paul G. Sherland

Christopher J Robinette

Pink Elephants In The Rape Trial: The Problem Of Tort-Type Defenses In The Criminal Law Of Rape, Aya Gruber

Publications

No abstract provided.

Individual And Institutional Responsibility: A Vision For Comparative Fault In Products Liability, Mary J. Davis

Law Faculty Scholarly Articles

Since the adoption of strict products liability over the last thirty years, two problems of scope have received the most attention: how to define product defectiveness to which the liability attaches, and how to limit the potentially limitless liability through defenses. Much like the industries of the nineteenth century, product liability defendants of the twentieth century turned to the plaintiff's conduct as a main line of defense. Blaming the victim has historically been a powerful tool for tort defendants to evade responsibility for their conduct. This Article proposes that the defenses based on victim fault that have evolved in our …

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

West Virginia Law Review

No abstract provided.

Who Decides - Community Safety Conventions At The Heart Of Tort Liability, Patrick J. Kelley

Cleveland State Law Review

What we need is a uniformly accepted theory that explains the tort liability system in terms of its ultimate social function. The reason we don't have one, I will argue, is that our understanding of the tort liability system has been skewed by an earlier, flawed attempt at descriptive theory. Before embarking on a new search for a descriptive theory, we first ought to formulate a search plan, sometimes called, forbiddingly, a "theoretical methodology." Using John Finnis's social science methodology, we can identify the two halves of the focal case of tort liability: intentional battery and negligent infliction of personal …

The First-Party Insurance Externality: An Economic Justification For Enterprise Liability, Jon D. Hanson, Kyle D. Logue

Articles

This Article explores the insurance and deterrence implications of important and long overlooked facts. Consumers are insured through first-party mechanisms against most of the risks of product accidents. However, first-party insurers rarely and imperfectly adjust premiums according to an individual consumer's decisions concerning exactly what products she will purchase, how many of those products she will purchase, and how carefully she will consume them. Such consumer decisions we refer to as "consumption choices. " This failure by first-party insurers to adjust premiums according to consumption choices gives rise to a first-party insurance externality. Based on this insight, this Article offers …

The Fault With Comparative Fault: The Problem Of Individual Comparisons In A Modified Comparative Fault Jurisdiction, Michael K. Steenson

Faculty Scholarship

Minnesota courts have interpreted the Minnesota Comparative Fault statute as requiring comparison of a plaintiff's negligence with the individual negligence of each defendant. Exceptions to this rule involve joint venture cases. This Article examines the individual comparison rule and explores an alternative rule which provides for a comparison of the plaintiff's negligence with the aggregate negligence of the defendants.

A Comparative Negligence Checklist To Avoid Future Unnecessary Litigation, John M. Rogers, Randy Donald Shaw

Kentucky Law Journal

No abstract provided.

Tort Indemnity In Florida, Gerald T. Wetherington

Florida State University Law Review

No abstract provided.

The State Of The Art Defense In Products Liability: Unreasonably Dangerous To The Injured Consumer, Mark Desimone

Duquesne Law Review

No abstract provided.

Accident, Mistake, And Rules Of Liability In The Fourteenth-Century Law Of Torts, Morris S. Arnold

Articles by Maurer Faculty

No abstract provided.

Torts 1978 Survey Of New York Law: Part Five: Miscellaneous, Michael M. Martin

Faculty Scholarship

The principal torts decisions this Survey year, especially in the products liability area, seemed to leave as many questions unanswered as they resolved. The Court of Appeals held that a noncontracting user's claim for injuries from a defective product sounded in tort for limitations purposes, but the Court did not decide what limitation period would be applicable if a statutory breach of warranty claim were also asserted. The contributory negligence defense to a strict products liability claim was upheld by a reference to the appellate division's opinion in a second-collision case. The analytically suspect "sales"-"service" distinction was reaffirmed in an …

Ohio Railroad Crossing Law: The Scope Of Liability, Donald P. Traci

Cleveland State Law Review

As a practicing attorney involved in personal injury suits initiated as the result of railroad crossing accidents, the author of this article shares a sense of guilt with other trial attorneys for the unsettled and confusing legal ruins left by recent efforts to moderate the statutory interpretations applicable to railroad crossing accidents. The history of the contradictions in the development of railroad crossing law and an alternative statutory interpretation to resolve the inconsistencies evidenced by the courts is the subject of this article.

Ohio Railroad Crossing Law: The Scope Of Liability, Donald P. Traci

Cleveland State Law Review

As a practicing attorney involved in personal injury suits initiated as the result of railroad crossing accidents, the author of this article shares a sense of guilt with other trial attorneys for the unsettled and confusing legal ruins left by recent efforts to moderate the statutory interpretations applicable to railroad crossing accidents. The history of the contradictions in the development of railroad crossing law and an alternative statutory interpretation to resolve the inconsistencies evidenced by the courts is the subject of this article.