Torts Commons^™

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 …

Comments On Maki V. Frelk, Harry Kalven Jr.

Vanderbilt Law Review

My first reaction to the performance of the Illinois Appellate Court in Maki v. Frelk was to recall the old joke about the man who, when asked if he believed in baptism, replied: "Believe in it, hell, I've seen it done!" In any event the decision provides a twin stimulus to the commentator: first, to say something about the limits of common law change, and second, to say something about comparative negligence itself. Despite the spectacular novelty of the court's action, these re-main well-worn topics on which it will not be easy to say anything fresh. I am, however, moved …

Comment, Robert E. Keeton

Vanderbilt Law Review

Part of the price we pay for a system wisely dedicated to even-handed justice under law is that courts often fail to identify those exceptional cases in which the highest aims of the system are served rather than threatened by a judicial break with precedent. Thus it happens that in the long, slow story of law reform, a recent case in the Illinois courts raised hopes for a rare and distinctive breakthrough. In Maki v. Frelk, responding to an invitation from the state's supreme court to reexamine the well entrenched rule that contributory negligence of an injured person is a …

Comment, James Fleming Jr.

Vanderbilt Law Review

Within the past few years, courts have put nearly the whole field of products liability on a strict liability basis, free from the restrictions of privity; they have reversed the rule of non-liability for pre-natal injuries; they have virtually destroyed charitable immunity, while making serious inroads on governmental immunity. Some, of course, have deplored the role of courts in making these changes, and they will probably applaud the Illinois Supreme Court's decision in the Maki case. But for those of us who accept or welcome the present regeneration of judicial law making in the field of torts, further questions are …

Comments On Maki V. Frelk--Comparative V.Contributory Negligence: Should The Court Or Legislature Decide?, Fleming James Jr., Harry Kalven Jr., Robert E. Keeton, Robert A. Leflar, Wex S. Malone, John W. Wade

Vanderbilt Law Review

Believing that the holdings and opinions in the case of Maki v. Frelkare significant legal developments, the Vanderbilt Law Review has solicited comments on these decisions, which it is now pleased to publish. These comments by six distinguished torts teachers and writers bear on the relative merits of comparative and contributory negligence, but more importantly, they discuss whether the judicial or legislative method is most appropriate for adoption of a rule of comparative negligence. It is hoped that these comments will be used as a sound basis for action, whether the problem arises before the courts or legislatures.

Comment, Wex S. Malone

Vanderbilt Law Review

There is no discernible reluctance by courts to direct verdicts on the issue of the plaintiff's carelessness in suits by invitees against proprietors of business premises. The writer has had occasion to examine a representative group of about two hundred cases in this area where contributory negligence was seriously in issue. In more than a third of these disputes the appellate courts had either approved the trial judge's action in directing a defendant verdict, or had reversed a judgment for plaintiff because the trial court had allowed the controversy to reach the jury on the contributory negligence issue. I have …

Torts -- 1956 Tennessee Survey, John W. Wade

Vanderbilt Law Review

This year, as in the past several years, there were approximately forty Torts cases. A much smaller number of the cases, however, involved automobile accidents. This is hardly competent evidence that there were fewer accidents, but may perhaps indicate that negligence law is becoming somewhat clearer so that fewer appeals to the higher courts are considered warranted.

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 …