Law Commons^™

Minding Accidents, Teneille R. Brown

Utah Law Faculty Scholarship

Tort doctrine states that breach is all about conduct. Unlike in the criminal law, where jurors must engage in an amateur form of mindreading to evaluate mens rea, jurors are told that they can assess civil negligence by looking only at how the defendant behaved. But this is false. Foreseeability is at the heart of negligence—appearing as the primary tests for duty, breach, and proximate cause. And yet, we cannot ask whether a defendant should have foreseen a risk without interrogating what he subjectively knew, remembered, perceived, or realized at the time. In fact, the focus on actions in negligence …

The Euclid Proviso, Ezra Rosser

Articles in Law Reviews & Other Academic Journals

This Article argues that the Euclid Proviso, which allows regional concerns to trump local zoning when required by the general welfare, should play a larger role in zoning's second century. Traditional zoning operates to severely limit the construction of additional housing. This locks in the advantages of homeowners but at tremendous cost, primarily in the form of unaffordable housing, to those who would like to join the community. State preemption of local zoning defies traditional categorization; it is at once both radically destabilizing and market-responsive. But, given the ways in which zoning is a foundational part of the racial and …

Non-Physician Vs. Physician: Cross-Disciplinary Expert Testimony In Medical Negligence Litigation, Marc D. Ginsberg

Marc D. Ginsberg

The source of the applicable standard of care in a specific medical negligence claim is multifaceted. The testifying expert witness, when explaining the applicable standard of care, “would draw upon his own education and practical frame of reference as well as upon relevant medical thinking, as manifested by literature, educational resources and information available to practitioners, and experiences of similarly situated members of the profession.” Accordingly, in typical medical negligence litigation, the plaintiff’s expert witness testifying regarding the existence of and the defendant-physician’s deviation from the standard of care would be a physician. Why, then, have courts permitted non-physicians to …

Non-Physician Vs. Physician: Cross-Disciplinary Expert Testimony In Medical Negligence Litigation, Marc D. Ginsberg

Georgia State University Law Review

The source of the applicable standard of care in a specific medical negligence claim is multifaceted. The testifying expert witness, when explaining the applicable standard of care, “would draw upon his own education and practical frame of reference as well as upon relevant medical thinking, as manifested by literature, educational resources and information available to practitioners, and experiences of similarly situated members of the profession.” Accordingly, in typical medical negligence litigation, the plaintiff’s expert witness testifying regarding the existence of and the defendant-physician’s deviation from the standard of care would be a physician. Why, then, have courts permitted non-physicians to …

Expert Witness Malpractice, Michael Flynn

Faculty Scholarship

No abstract provided.

Common Ignorance: Medical Malpractice Law And The Misconceived Application Of The “Common Knowledge” And “Res Ipsa Loquitur” Doctrines, Amanda E. Spinner

Touro Law Review

No abstract provided.

Six Summary Judgment Safeguards, Edward Brunet

Akron Law Review

This article sets forth a more optimistic assessment of the current status of summary judgment. Numerous potential safeguards deter improper grants of summary judgment motions and serve to temper trial judges who are prone to rule favorably on summary judgment requests. While some of the safeguards act more as ineffectual clichés or slogans, others provide a set of significant deterrents to overly adventuresome treatment of Rule 56 motions. The goal of this article is to critique six possible summary judgment safeguards and, in so doing, to determine whether the state of contemporary summary judgment is as bleak as leading critics …

Going After The 'Hired Guns': Is Improper Expert Witness Testimony Unprofessional Conduct Or The Negligent Practice Of Medicine?, Jennifer A. Turner

Pepperdine Law Review

No abstract provided.

Torts And Innovation, Gideon Parchomovsky, Alex Stein

Michigan Law Review

This Essay exposes and analyzes a hitherto overlooked cost of tort law: its adverse effect on innovation. Tort liability for negligence, defective products, and medical malpractice is determined by reference to custom. We demonstrate that courts' reliance on custom and conventional technologies as the benchmark of liability chills innovation and distorts its path. Specifically, recourse to custom taxes innovators and subsidizes replicators of conventional technologies. We explore the causes and consequences of this phenomenon and propose two possible ways to modify tort law in order to make it more welcoming to innovation.

A Proposal To Amend Rule 407 Of The Federal Rules Of Evidence To Conform With The Underlying Relevancy Rationale For The Rule In Negligence And Strict Liability Actions, Ralph Ruebner, Eugene Goryunov

ExpressO

The current version of FRE 407 prevents the use of evidence of remedial measures taken after an event that caused an injury or harm in order to prove negligence, culpable conduct, or strict product liability. Our proposal is that the language of Rule 407 be amended to preclude the admissibility of remedial measures which are taken both before and after an injury. This change will implement the relevancy rationale for the rule.

Who Knew? Admissibility Of Subsequent Remedial Measures When Defendants Are Without Knowledge Of The Injuries, Mark G. Boyko, Ryan G. Vacca

Law Faculty Scholarship

Federal Rule of Evidence 407 prohibits the introduction of subsequent remedial measures for the purposes of demonstrating negligence, culpable conduct, or product defect. But the rule breaks down, in application and purpose, when a defendant undertakes the new safety measure after the plaintiff's injury, but before the defendant had knowledge of the loss. Such a situation is not uncommon. Would-be defendants frequently improve their products and product safety for a variety of reasons. Toxic exposure cases, where exposure often predates diagnosis of the injury by a decade or more, represent a prime example of cases where defendants are likely to …

Conjunction And Aggregation, Saul Levmore

Michigan Law Review

This Article begins with the puzzle of why the law avoids the issue of conjunctive probability. Mathematically inclined observers might, for example, employ the "product rule," multiplying the probabilities associated with several events or requirements in order to assess a combined likelihood, but judges and lawyers seem otherwise inclined. Courts and statutes might be explicit about the manner in which multiple requirements should be combined, but they are not. Thus, it is often unclear whether a factfinder should assess if condition A was more likely than not to be present - and then go on to see whether condition B …

Federal Rule Of Evidence 407: Should It Apply To Products Liability?, Patricia A. Brass

Touro Law Review

No abstract provided.

Osha Evidence In Federal Court Products Liability Actions: Too Prejudicial To Be Admissible To Prove A Machine's Safety Or Defect, Or Simply Additional Evidence For The Fact Finder?, Michael Siris

Touro Law Review

No abstract provided.

The Smith Rule And A Party's Burden Of Coming Forward When Relying On Circumstantial Evidence, Paul A. Kiefer

Villanova Law Review

No abstract provided.

Evidence -- 1964 Tennessee Survey, Lyman R. Patterson

Vanderbilt Law Review

The difficulty in dealing with presumptions arises in part from the fact that the term embraces a host of different meanings, varying with the purposes underlying the presumption in a given situation. Unfortunately, the courts seldom articulate the meaning which they are attributing to the term and consequently do little to clear up the confusion... In Arnett v. Fuston, a negligence action, plaintiff argued that a verdict of not guilty against one of the two co-defendants was not supported by any evidence, and that a presumption should apply against him "for his election to stand on his motion for directed …

Bills And Notes -- 1961 Tennessee Survey, John A. Spanogle Jr.

Vanderbilt Law Review

The Tennessee courts decided three cases involving commercial paper this year. The Tennessee Supreme Court decided one case which, unless it is clarified in the near future, may upset principles which were heretofore well-established. Of the two cases decided by the appellate courts, one adopted a rule well-known in other jurisdictions, and the other adopted a sound minority view on a question not settled by the Uniform Negotiable Instruments Law.

Negligence - Res Ipsa Loquitur - Doctine Applied Although Damage Causing Instrumentality Within The Exclusive Control Of Defendant At The Time Of The Damage, Kenneth Laing Jr.

Michigan Law Review

Seven months after defendant had installed a washbowl in a bathroom in plaintiff's house, the house was damaged by water when one of the pipes became disconnected from a faucet. During the two weeks immediately prior to the damage the house was unoccupied, but inspections were made every two or three days by plaintiff's employee. Plaintiff sued defendant to recover for the damage caused by defendant's alleged negligence in connecting the water pipe to the washbowl. In a trial to the court, the evidence tended to eliminate other possible causes of the disconnection, such as rough use or manufacturing fault. …

The Use Of Expert Evidence In Res Ipsa Loquitor Cases, Graham L. Fricke

Villanova Law Review

No abstract provided.

Workmen's Compensation - Federal Employers' Liability Act - Basis Of Liability Not Common Law Negligence, Robert L. Knauss S.Ed.

Michigan Law Review

Petitioner, a laborer in a railroad section gang, was assigned to burn weeds near a railroad track. He was injured when he fell into a culvert as he was trying to escape from smoke and flames which had been fanned by a passing train. A jury in the Circuit Court of St. Louis awarded damages under the Federal Employers' Liability Act (FELA). The Supreme Court of Missouri reversed upon the ground that the evidence was not sufficient to support a finding of the railroad's liability, and the case should not have been allowed to go to a jury. On certiorari …

Torts - Malpractice - Medicolegal Relations - Expert Testimony, Francis R. O'Hara

Villanova Law Review

No abstract provided.

Negligence - Proving Inviter's Breach Of Duty By Circumstantial Evidence, Charles E. Oldfather S.Ed.

Michigan Law Review

Plaintiff brought a negligence action for personal injuries suffered when she slipped on a spot of grease in the driveway of defendant's railroad station. The evidence showed that the spot was at least one foot square and was covered with dust and dirt so that it resembled in color and texture the rest of the pavement. The evidence also indicated that vehicles often drove through and parked in the drive, and that there were no marks on the spot other than a deep skid mark left by plaintiff's heel. The trial court allowed the jury to determine from this evidence …

Particularizing Standards Of Conduct In Negligence Trials, James Fleming Jr., David K. Sigerson

Vanderbilt Law Review

The general principles to be applied by court or jury in deciding whether conduct is reasonable have been examined elsewhere.' The problem to be dealt with here concerns the specific application of the law's standard of conduct to concrete cases. How, that is, may it be shown what a party or his opponent should have done, in the way of taking precautions or the like, in the situation presented by the evidence? What kinds of proof or argument are available to make this showing? When must such a showing be made by proof? Is the jury or court to determine …

Recent Cases, Law Review Staff

Vanderbilt Law Review

RECENT CASES

CONTRACTS--CONSIDERATION--AGREEMENT TO SUPPORT ILLEGITIMATE CHILD

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CONTRIBUTION--JOINT TORTFEASORS--REMEDY GRANTED

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CONTRIBUTION--JOINT TORTFEASORS--REMEDY GRANTED WHEN TORT CONSISTS OF NEGLIGENCE

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CREDITORS' RIGHTS--RECEIVERSHIP OF OPERATING BUSINESS--CHATTEL, MORTGAGEE ENTITLED TO FORECLOSURE RATHER THAN SMALLER MONTHLY PAYMENTS ORDERED BY COURT

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EVIDENCE--DEAD MAN STATUTE--OBSERVATION OF PHYSICAL CONDITIONS NOT A "TRANSACTION" WITHIN MEANING OF STATUTE

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EVIDENCE--JUDICIAL NOTICE--TENETS OF COMMUNIST PARTY

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FEDERAL COURTS--HABEAS CORPUS IN EXTRADITION PROCEEDINGS--NECESSITY OF EXHAUSTING REMEDIES IN STATE COURTS

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IMPLIED WARRANTY--WARRANTY OF SEAWORTHINESS--WARRANTY WITHOUT A SALE

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NEGLIGENCE OF LANDOWNER--PERSON TAKING SHORTCUT THROUGH STORE--LICENSEE OR BUSINESS GUEST?

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RES JUDICATA--INDEMNITOR-INDEMNITEE RELATIONSHIP AS EXCEPTION TO REQUREMENT OF MUTUALITY--CREATION …

Negligence--Res Ipsa Loquitor--Exclusiveness Of Defendant's Control Over Residual Circumstances After All Elements Of Shared Control Eliminated, L. H. B.

West Virginia Law Review

No abstract provided.

Evidence--Admissibility Of Specific Acts Of Negligence, E. Durward Weldon

Kentucky Law Journal

No abstract provided.

Abstracts, Katherine Kempfer

Michigan Law Review

The abstracts consist merely of summaries of the facts and holdings of recent cases and are distinguished from the notes by the absence of discussion.

Witnesses - Privilege Of Communications Between Physician And Patient Applicable To Nonjudicial Proceedings, Alfred I. Rothman

Michigan Law Review

Pursuant to section 43 of the city charter, the City Council of New York appointed a special committee to investigate charges of negligence and maladministration in the treatment of patients at Lincoln Hospital. Subpoenas duces tecum were served upon the commissioner of hospitals and upon the medical superintendent of Lincoln Hospital requiring the production of hospital records, including case records relating to certain named patients. The commissioner refused to produce any of the case cards or records, justifying his position on the ground that the physician-patient privilege was applicable to legislative investigations. The New York Civil Practice Act, section 354, …

Effect Of The Doctrine Of Res Ipsa Loquitur, Fowler V. Harper, Fred E. Heckel

Articles by Maurer Faculty

No abstract provided.

Recent Important Decisions, Michigan Law Review

Michigan Law Review

No abstract provided.