Law Commons^™

Remediating Racism For Rent: A Landlord’S Obligation Under The Fha, Mollie Krent

Michigan Law Review

The Fair Housing Act (FHA) is an expansive and powerful piece of legislation that furthers equal housing in the United States by ferreting out discrimination in the housing market. While the power of the Act is well recognized by courts, the full contours of the FHA are still to be refined. In particular, it remains unsettled whether and when a landlord can be liable for tenant-on-tenant harassment. This Note argues, first, that the FHA does recognize liability in such a circumstance and, second, that a landlord should be subject to liability for her negligence in such a circumstance. Part I …

The Search For A Grand Unified Theory Of Tort Law., Scott Hershovitz

Reviews

Theorists like to do a lot with a little. And not just because simple theories seem more elegant: we deepen our understanding when we learn that disparate phenomena are linked together. In physics, for example, the theory of thermodynamics showed us the relationship between mechanics and heat. In economics, the theory of the firm showed us that, across industries that look nothing alike, a simple principle helps explain the organization of economic activity. Of course, there is no guarantee that the disparate phenomena we suspect are linked actually are. Particle physicists continue to search for a Grand Unified Theory, which …

What Does Tort Law Do? What Can It Do?, Scott Hershovitz

Articles

It’s not hard to describe what tort law does. As a first approximation, we might say that tort empowers those who suffer certain sorts of injuries or invasions to seek remedies from those who brought about those injuries or invasions. The challenge is to explain why tort does that, or to explain what tort is trying to do when it does that. After all, it is not obvious that we should have an institution specially concerned with the injuries and invasions that count as torts.

After The Spill Is Gone: The Gulf Of Mexico, Environmental Crime, And Criminal Law, David M. Uhlmann

Articles

The Gulf oil spill was the worst environmental disaster in U.S. history, and will be the most significant criminal case ever prosecuted under U.S. environmental laws. The Justice Department is likely to prosecute BP, Transocean, and Halliburton for criminal violations of the Clean Water Act and the Migratory Bird Treaty Act, which will result in the largest fines ever imposed in the United States for any form of corporate crime. The Justice Department also may decide to pursue charges for manslaughter, false statements, and obstruction of justice. The prosecution will shape public perceptions about environmental crime, for reasons that are …

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 …

The Truth About Torts: Rethinking Regulatory Preemption And Its Impact On Public Health, William Buzbee, William Funk, Thomas Mcgarity, Nina A. Mendelson, Sidney Shapiro, David Vladeck, Matthew Shudtz

Other Publications

As consumers, we assume that the automobiles, pharmaceuticals, medical devices, and other products we purchase are generally safe for their intended uses. We rely on manufacturers to design and produce safe products, and we assume that federal regulators are conscientious watchdogs of the marketplace. In most instances, our assumptions are valid and we safely go about our lives. But the regulatory system is now frayed to the point that dangerous products sometimes slip through the cracks. Vioxx, Firestone/ATX tires, and toxics-laden children’s toys have endangered and harmed millions. In these cases, society depends on the state courts as a venue …

Identifying And Valuing The Injury In Lost Chance Cases, Todd S. Aagaard

Michigan Law Review

Any plaintiff seeking to recover in tort must prove that the defendant has breached the duty of care. Even after the plaintiff has established the defendant's breach of duty, however, issues of causation and damages remain. These two issues are frequently vexing, both conceptually and in terms of evidentiary demonstration. For example, if a plaintiff proves that a defendant acted negligently, it still may be unclear whether the plaintiff would have been injured even ip the absence of the defendant's negligence. Similarly, in assessing damages, factfinders often :find it difficult to attach a monetary value to a plaintiff's nonpecuniary losses …

Restating The Law: The Dilemmas Of Products Liability, Robert L. Rabin

University of Michigan Journal of Law Reform

Tracing products liability law from its origins to present day developments, Professor Rabin discusses the long-standing presence of interwoven strands of contract and tort ideology, as well as the perennial tensions between strict liability and negligence. These themes are evident both in the distinctly influential California case law and in the two Restatement efforts to systematize the doctrine that has emerged nationally. Rabin identifies the manner in which foundational ideological precepts of consumer expectations and enterprise liability have contributed to a continuously dynamic, if often unsettled, debate over the appropriate regime for resolving product injury claims.

Regulatory Standards And Products Liability: Striking The Right Balance Between The Two, Teresa Moran Schwartz

University of Michigan Journal of Law Reform

Common law courts have a long tradition of borrowing legislative and regulatory standards to define standards of care under the tort system. Treating such standards as setting minimum levels of care and safety under tort law, the courts uniformly have ruled that violations of standards constitute negligence per se, while compliance is merely evidence of negligence. Although critics of the tort system have urged legislatures and courts to adopt rules giving greater weight to regulatory compliance in products liability cases, the drafters of the Restatement (Third) of Torts: Products Liability have declined to do so. They have adopted instead an …

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 …

Developing A Victims' Suit For Injuries Caused By A Compulsorily Released Prisoner, Leonard M. Niehoff

University of Michigan Journal of Law Reform

This Note advocates the development of a tort remedy for victims injured by a compulsorily released prisoner. This remedy would be based on existing tort theory permitting suits against third parties whose negligence causes or facilitates a criminal act. The victim would bring suit against both the state and third parties who aided in the criminal release determination . To support his claim, the victim would allege: (1) that state officials negligently selected the offending inmate for early release; and (2) that the state negligently maintained the unconstitutional prison conditions which precipitated the release.

Part I of this Note discusses …

Claim Requirements Of The Federal Tort Claims Act: Minimal Notice Or Substantial Documentation?, Michigan Law Review

Michigan Law Review

This Note finds both the Adams and Swift positions unsatisfactory. Part I contends that Adams misconstrued the legislative history of the FTCA amendments by applying a minimal notice standard and then argues that Swift contravenes the amendments' fairness policy by permitting ambiguous, overreaching documentation requests. Part II contends that courts should interpret section 2675's "presented the claim" language as an accommodation between two competing Congressional objectives: presuit claims settlement and fair treatment of claimants. The Note proposes that until the Department of Justice modifies its current claims regulations, courts should toll the statute of limitations whenever an individual's claim includes …

Workmen's Compensation: Toward A Stricter Liability For Enterprise, John A. Payne Jr.

University of Michigan Journal of Law Reform

This article considers the situation in which an employee injured by a defective product in the course of his employment can proceed both against his employer insured by a workmen's compensation program and against a manufacturer of the employer's equipment who is strictly liable under a claim of products liability. The focus is not on the manufacturer as employer but on the manufacturer as supplier of defective equipment which causes injury. This is the best situation for analyzing the problems arising from the present system for distributing losses because, where the negligence of the employer has been an independent cause …

Damages-Compensation For Curtailment Of Life Expectancy As A Separate Element Of Damages-Downie V. United States Lines Co., Michigan Law Review

Michigan Law Review

While plaintiff was aboard ship as an employee of the defendant, he suffered a heart attack which was aggravated by the negligence of one of defendant's employees. In suing under the Jones Act for damages caused by this aggravation of his condition, plaintiff sought recovery for the eight year curtailment of his life expectancy as a separate and distinct item of damages, independent of the economic loss sustained as a result of such curtailment. The jury made a general award of $86,900 of which $25,000 was a special award for the curtailment of plaintiff's life. On defendant's motion, the trial …

Admiralty- Shipowner's Right To Indemnification For Loss Caused By Latently Defective Gear Supplied By Nonnegligent Stevedoring-Compnay, John W. Erickson

Michigan Law Review

Defendant stevedoring company contracted to perform stevedoring services for plaintiff shipowner. Pursuant to its agreement to supply gear for the job, the stevedoring company supplied a latently defective rope, the breaking of which caused injury to a longshoreman, an employee of the stevedoring company. The longshoreman obtained a judgment against the shipowner under the doctrine of unseaworthiness, and in a separate action the shipowner sought indemnification from the stevedoring company. The district court, finding the stevedoring company not negligent, denied recovery. The Court of Appeals for the Ninth Circuit affirmed, one judge dissenting. On certiorari to the United States Supreme …

Advocating The Rights Of The Injured, Benjamin Marcus

Michigan Law Review

When workmen's compensation was first introduced a half century ago, it was felt necessary to cushion the shock in a number of ways. One of these was the idea of a bargain, an exchange, in which the worker, to obtain the new remedy based on liability without fault, gave up his existing remedy, the right to a tort action against his employer for a negligent injury. It is time that the terms of that bargain be re-examined.

Longshoreman-Shipowner-Stevedore: The Circle Of Liability, Harney B. Stover, Jr.

Michigan Law Review

It is universally recognized that in the past two decades the United States Supreme Court has substantially revised the law under which seamen, longshoremen and harbor workers (or their survivors) may recover damages for personal injury and death. One of the more recent and most authoritative texts in the field of admiralty and maritime law devotes an entire chapter, 147 pages in length, to the subject of the rights of seamen and maritime workers (or their survivors) of recovery for injury and death. The introduction to that chapter likens the Court's rewriting of the law in this field to a …

The Casual Relation Issue In Negligence Law, Leon Green

Michigan Law Review

Two significant legal studies of "Causation"-one English, one American-have been recently published. The English book brings to the subject more scholarly learning and a more comprehensive examination of its literature than any other book that has been written. The authors are devoted disciples of causation principles and make a stout defense of the causation concept as the structural core of negligence law. They examine the philosophical, common sense and semantic backgrounds of causal concepts as the basis of legal liability, find that they have merit, and launch extended, and sometimes devastating, attack upon theories that question their adequacy, though in …

Workermen's Compensation-Third-Party Actions-Employer's Recovery On An Implied Warranty, Philip Sotiroff

Michigan Law Review

Plaintiff seeks to recover the amount of a workmen's compensation award paid to his employee as a result of injuries received when an exhaust valve malfunctioned causing a press which the employee was operating to double-trip. Defendant, an independent parts supplier who had sold plaintiff the valve, moved to dismiss the complaint because of insufficiency of evidence to sustain the verdict and plaintiff's legal incapacity to sue. On appeal from an order denying the motion to dismiss, held, affirmed, one judge dissenting. Plaintiff has two independent causes of action, one against the manufacturer on an assigned negligence theory, and …

Sales - Implied Warranty - Privity Of Contract As A Prerequisite To Recovery From Manufacturer, John L. Peschel S. Ed.

Michigan Law Review

Plaintiff sustained injuries in the course of his employment when a defective abrasive wheel, while being used in its intended manner, exploded in his face. The abrasive wheel was purchased by plaintiff's employer directly from the manufacturer. Plaintiff sought recovery from the manufacturer on two grounds: negligence in the manufacture of the abrasive wheel and breach of implied warranty for fitness of purpose. The negligence issue was submitted to the jury, which returned a verdict adverse to the plaintiff. The manufacturer's demurrer to the cause of action based upon implied warranty was sustained by the trial court. On appeal from …

Admiralty - Unseaworthiness - Recovery For Injuries Resulting From Condition Arising After Commencement Of The Voyage, John L. Peschel

Michigan Law Review

Plaintiff, a member of the crew of a fishing vessel, sustained injuries while disembarking when he slipped on a slimy substance on the ship railing. In an action brought against the shipowner, the seaman sought recovery on three alternative grounds: first, under the Jones Act based upon negligence; second, under general maritime law based upon the obligation of the shipowner to furnish a seaworthy vessel; third, under general maritime law for maintenance and cure. Judgment was entered pursuant to a verdict limiting the seaman to recovery for maintenance and cure. On the seaman's appeal from the adverse verdict on the …

Negligence - Damages - Mental Anguish From Witnessing Peril Of Third Party, Mark Shaevsky

Michigan Law Review

Plaintiffs (husband, wife, and three children) incurred physical injuries and a fourth child was burned to death in an automobile collision with the defendant's vehicle. Plaintiffs claimed compensation for mental anguish sustained from witnessing the death of the child. Defendant's motion to strike the allegations of mental suffering, held, granted. Defendant owes no legal duty to protect plaintiffs from mental suffering caused by viewing another in peril. Lessard v. Tarca, (Conn. Super. 1957) 133 A. (2d) 625.

Limitations Of Action - Applicable Statute - Third-Party Injury Provision Agreed To By Contractor Subject To Contract Limitation Only, Walter L. Adams

Michigan Law Review

More than two years following an accident in which they sustained personal injuries when their car fell into defendant's excavation, plaintiffs filed a diversity action in a federal court stating inter alia a cause of action based upon a third-party beneficiary contract entered into by defendant street contractor and the City of Philadelphia for which he was working. The contract provided in essence that defendant alone would be liable for damage sustained by any third party "irrespective of whether or not such injuries ... be due to negligence or the inherent nature of the work." The district court dismissed the …

Negligence - Breach Of Duty - Liability Of Telephone Company For Failure To Relay Fire Alarm, Cyril Moscow S.Ed.

Michigan Law Review

Upon discovering a fire within his business building, plaintiff immediately went to the telephone and dialed the operator. After telling her his address and requesting that she call the fire department, he left the telephone to fight the fire. The message was not transmitted. When the fire department finally arrived in response to an alarm by a neighbor, the fire was out of control and the entire building was destroyed. Plaintiff sought damages, alleging that the telephone company held itself out to the public as willing to convey messages in case of emergency, and that failure to transmit his message …

Pledge - Liability Of Pledgee For Depreciation Of Corporate Stock

Michigan Law Review

The plaintiff brought suit to recover the value of a promissory note for which the defendant had pledged corporate stock as collateral security. Defendant filed a counterclaim for the depreciation in value of the stock between the time he had requested the plaintiff to sell and the time of bringing the suit. Held, that plaintiff was not liable for the depreciation of the stock since the pledgor had made no offer to pay pledgee such sum as would together with the price for which the stock could have been sold satisfy the note. People's Nat. Bank & Trust Co. …

Fraud-By Third Party-Mistake As To Nature Of Transaction-Rescission As Remedy

Michigan Law Review

The plaintiff was injured as a result of the alleged negligence of the defendant company. His attorney induced him to sign a general release, representing that it was only a receipt for seven hundred and fifty dollars paid on account by the defendant company. The plaintiff was illiterate and relied upon the fraudulent representations of his attorney. In an action to set aside the release, held, on a motion for judgment on the pleadings, that the complaint stated a cause of action, and that the plaintiff was not negligent in relying upon the representations of his attorney. Affirmed. Pimpinello …

The Early Liability Of A Bailee, Norman F. Arterburn

Michigan Law Review

All discussion of the origin of the absolute liability of a common carrier of goods naturally harks back to the earliest conception of a bailment and its related remedies. We have had two diametrically opposed views urged as to the first liability of the ordinary bailee. Justice Holmes and numerous other authorities take the view that the liability in the' first instance was absolute in the case of all bailees. Professor Beale is the exponent of the opposing view, that such liability was qualified to such an extent that it amounted in fact, only to negligence liability. An interpretation of …

Recent Important Decisions, Michigan Law Review

Michigan Law Review

Admiralty - Workmen's Compensation - Is a Hydroplane a Vessel? - Claimant was employed in the care and management of a hydroplane which was moored in navigable waters. The hydroplane began to drag anchor and drift toward the beach, where it was in danger of being wrecked. Claimant waded into the water and was struck by the propeller. Held, claimant is not entitled to compensation under the Workmen's Compensation Law, since a hydroplane while on navigable waters is a vessel, and therefore the jurisdiction of the admiralty excludes that of the State Industrial Commission. Reinhardt v. Newport Flying Service Corp. …

Liability Of Manufacturer To Remote Vender For Defective Automobile Wheel, Horace Lafayette Wilgus

Articles

Plaintiff. in February, 19O9. purchased from the Utica Motor Car Company, a Cadillac six-passenger touring car, manufactured by the Cadillac Motor Car Company, of Michigan. The Utica company was a dealer in motor cars, and purchased to resell; it was the original vendee, and the plaintiff was the sub-vendee. The car was used very little until July 31, 1909, when the plaintiff, an experienced driver, while driving the car on a main public road in good condition, at a speed of 12 to 15 miles per hour, was severely and permanently injured by the right front wheel suddenly breaking down …

Liability Of Public Officer For The Loss Of Private Funds Entrusted To His Keeping, W. Gordon Stoner

Articles

There is much contrariety of decision concerning the liability of public officers for the loss of funds with which they have been entrusted. A recent case illustrates some of the more important phases of the law of such a situation. People for use of Hoyt et al. v. McGrath et al. (Ill. 1917), I17 N. E. 74. In this case the public brought an action of debt on the official bond of the clerk of court for the use of Hoyt and others. Usees had tendered into court a sum of money which the clerk took under the court's order …