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Full-Text Articles in Torts
Apportioning Liability In Maryland Tort Cases: Time To End Contributory Negligence And Joint And Several Liability, Donald G. Gifford, Christopher J. Robinette
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 …
The Death Of The Common Law: Judicial Abdication And Contributory Negligence In Maryland, Donald G. Gifford
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 …
Virginia Should Abolish The Archaic Tort Defense Of Contributory Negligence And Adopt A Comparative Negligence Defense In Its Place, Peter N. Swisher
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.
What Are We Comparing In Comparative Negligence?, Paul H. Edelman
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, …
Pink Elephants In The Rape Trial: The Problem Of Tort-Type Defenses In The Criminal Law Of Rape, Aya Gruber
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
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 …
The First-Party Insurance Externality: An Economic Justification For Enterprise Liability, Jon D. Hanson, Kyle D. Logue
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
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.
Accident, Mistake, And Rules Of Liability In The Fourteenth-Century Law Of Torts, Morris S. Arnold
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
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 …
Products Liability: Defenses Based On Plaintiff's Conduct, David G. Epstein
Products Liability: Defenses Based On Plaintiff's Conduct, David G. Epstein
Law Faculty Publications
The past decade has seen dramatic developments in the law of products liability. There has been liberalization of the exclusive control requirement of res ipsa Ioquitur, Iegislative and judicial relaxation of the privity requirement, and creation of a new theory of recovery - strict liability in tort. Consequently, many jurisdictions now offer three theories of recovery to persons injured through use of a defective product: negligence, breach of warranty, and strict liability in tort. Although the recent products liability developments have been extensively treated both by courts and by commentators, numerous problems remain. One of the most pressing problems is …
Garibaldi V. Borchers Bros. [Dissent], Jesse W. Carter
Garibaldi V. Borchers Bros. [Dissent], Jesse W. Carter
Jesse Carter Opinions
A trial court did not err in giving an instruction on continuing negligence in conjunction with an instruction on last clear chance, and an instruction on a truck driver's right to assume that a minor would exercise the care of a child his age.
M & M Livestock Transport Co. V. California Auto Transport Co., Jesse W. Carter
M & M Livestock Transport Co. V. California Auto Transport Co., Jesse W. Carter
Jesse Carter Opinions
A truck passing another truck was not contributorily negligent in a collision with a truck coming from the opposite direction where the evidence showed that the other truck was going too fast and was out of control.
Book Review. Legislative Loss Distribution In Negligence Actions By C. O. Gregory, Fowler V. Harper
Book Review. Legislative Loss Distribution In Negligence Actions By C. O. Gregory, Fowler V. Harper
Articles by Maurer Faculty
No abstract provided.