Law Commons^™

Flawed Justice: Limitation Of Parental Remedies For The Loss Of Consortium Of Adult Children, William S. Bailey

Articles

This article presents the inherent contradiction between a parent-child relationship that has steadily evolved from the early 20th Century to the present and the multitude of court decisions on damages that remain studiously ignorant of this shift.

Part I of the article will set forth the common law origins of restrictions on recovery for wrongful death within the context of a shifting view of children from economic units to objects of adoration. Part II will examine the devastating impact that the loss of an adult child has on parents both from their perspectives and from now existing research.

In the …

So The Army Hired An Ax-Murderer: The Assault And Battery Exception To The Federal Tort Claims Act Does Not Bar Suits For Negligent Hiring, Retention And Supervision, Rebecca L. Andrews

Washington Law Review

The Federal Tort Claims Act (FTCA) waives the federal government's sovereign immunity as to claims for injuries caused by an act or omission of a government employee within his or her scope of duty. However, this waiver is not absolute and the government has retained immunity for many claims, including those arising out of an assault or battery. The federal circuit courts are split regarding whether this exception applies to claims for the negligent hiring, retention and supervision of federal employees who commit an assault or battery. While the U.S. Supreme Court has left the question unanswered, the Ninth Circuit …

Introduction, The Osceola After 100 Years: Its Meaning And Effect On Maritime Personal Injury Law In The United States, Craig Allen

Articles

A century ago the United States Supreme Court issued its decision in The Osceola [189 U.S. 158 (1903)], announcing four legal propositions that controlled personal injury claims by seamen at the time. On the 100th anniversary of the Court's decision, the four admiralty law professors contributing to this symposium take the opportunity to critically examine the Court's renowned decision, Congress' responses to the decision, and the effect of both The Osceola's four propositions and the responsive legislation on the remedies available to injured maritime workers in the 21st century.

In the first of the three articles that follow, Professor …

Rising Seas And Disappearing Islands: Can Island Inhabitants Seek Redress Under The Alient Tort Claims Act?, Rosemary Reed

Washington International Law Journal

Sea levels are rising as a result of increasing greenhouse gas concentrations and global warming. The rising seas threaten to submerge many Pacific Island nations within the next century. The island inhabitants have sought help from the global community, but thus far have been denied assistance. However, the island inhabitants could seek redress in U.S. District Courts against major greenhouse gas emitters under the Alien Tort Claims Act. To satisfy the ATCA's requirement that tort claims must be in violation of international law, the islanders could claim that they are victims of environmental human rights violations and possibly genocide. While …

Holding Tortfeasors Accountable: Apportionment Of Enhanced Injuries Under Washington's Comparative Fault Scheme, Ryan P. Harkins

Washington Law Review

The enhanced-injury doctrine imposes a negligence-based duty to reasonably minimize the foreseeable risk of injury enhancement in the event of primary accidents, regardless of their cause. When apportioning responsibility for enhanced injuries under principles of comparative fault, a majority of courts outside of Washington use a plaintiffs fault in causing the primary accident to reduce recovery for enhanced injuries. A minority of courts, however, rule that because the enhanced-injury doctrine presupposes the occurrence of primary accidents, primary fault is legally irrelevant to apportionment of enhanced injuries. Washington courts have not addressed this issue. This Comment argues that Washington courts should …

Fundamental Protection Of A Fundamental Right: Full Recovery Of Child-Rearing Damages For Wrongful Pregnancy, Patricia Baugher

Washington Law Review

The U. S. Constitution and Washington statutes protect the right to choose not to have a child as a fundamental right. When a healthy child is born after contraceptive methods fail due to physician negligence, parents can sue on a "wrongful pregnancy" cause of action. In all jurisdictions recognizing wrongful pregnancy, parents may recover damages for medical expenses associated with pregnancy and childbirth. A controversy exists, however, concerning whether parents may recover the ordinary expenses of child rearing. While some states allow full recovery of these expenses, and other states allow recovery of the economic expense offset by the emotional …

Mail-Order Gun Kits And Fingerprint-Resistant Pistols: Why Washington Courts Should Impose A Duty On Gun Manufacturers To Market Firearms Responsibly, Amy Edwards

Washington Law Review

Plaintiffs have historically been unsuccessful in suing gun manufacturers for injuries inflicted by the criminal acts of third parties. Until recently, with one exception, courts uniformly found no basis for liability under either strict liability or general negligence claims. In three recent cases, however, courts have imposed a duty under negligent-marketing theories. These theories have yet to be tested in Washington. This Comment examines the potential viability of a lawsuit by victims of gun violence against gun manufacturers for negligent marketing in Washington. It ultimately concludes that Washington courts can and should impose a duty on gun manufacturers to refrain …

How Many People Does It Take To Save A Drowning Baby?: A Good Samaritan Statute In Washington State, Sungeeta Jain

Washington Law Review

For the past three years, the Washington legislature has considered a Good Samaritan bill, nicknamed the "Joey Levick Bill," that would impose a duty to summon assistance for those known to be substantially injured. This Comment argues that the bill is minimally intrusive and should be acceptable to autonomous individuals, because it requires a bystander merely to notify the appropriate authorities is if the bystander sees someone who is substantially injured. The bill also addresses the concerns about sinister abuse of the law by criminals feigning injury, by not requiring an individual to attempt a physical rescue. In addition, the …

Collision At Sea: The Irreconcilability Of The Superseding Cause And Pure Comparative Fault Doctrines In Admiralty, Kelsey L. Joyce Hooke

Washington Law Review

Courts have long sought to develop rational methods both for limiting a tortfeasor's liability and allocating damages among multiple tortfeasors. Courts developed the doctrine of proximate cause to address the first concern, employing superseding cause analysis when multiple forces produce an injury. In admiralty, the U.S. Supreme Court resolved the second concern by adopting pure comparative fault in . In Exxon Co. v. Sofec, Inc., the Court endorsed the continued use of superseding cause in admiralty cases, holding that it does not conflict with pure comparative fault. This Comment argues that the Sofec Court's method of superseding cause analysis …

Mad Cows, Offended Emus, And Old Eggs: Perishable Product Disparagement Laws And Free Speech, Lisa Dobson Gould

Washington Law Review

In the wake of the 1989 controversy over Alar use on apples, several states enacted laws providing a civil cause of action to producers damaged by false statements disparaging the safety of their perishable food products. Commentators have suggested that these laws are unconstitutional and contrary to the First Amendment's free speech protections. This Comment argues that the majority of state laws either meet or exceed the constitutional protections established by the U.S. Supreme Court's defamation cases. However, these laws are unlikely to be used widely in the future because of their stringent proof requirements and because such suits often …

Circuit Over Troubled Waters: Ninth Circuit Comparative Fault Principles In Seaman's Personal Injury Actions, Orland S. Seballos

Washington Law Review

Maritime personal injury actions employ the comparative fault doctrine, under which damages are allocated between mutually negligent parties according to their proportionate fault. This Comment focuses on recurring issues Ninth Circuit courts have faced in this area: apportioning liability in cases of violations by seamen's employers of Occupational Safety and Health Act (OSHA) regulations, and determining whether to include both causation and fault in making the apportionment. This Comment argues that the Ninth Circuit should adopt rules consistent with the pronounced congressional and U.S. Supreme Court policies of achieving uniformity in domestic and international admiralty and providing liberal recovery for …

The Drudge Case: A Look At Issues In Cyberspace Defamation, Robert M. O'Neil

Washington Law Review

In the days following Newsweek's January 1998 decision to defer publication of an exposé of President Clinton's alleged affair with White House intern Monica Lewinsky, attention focused on the medium where the story first appeared: Matt Drudge's online gossip column, The Drudge Report. Though his postings on this issue seem to have been substantially accurate, Mr. Drudge has recently been sued for defamation because an earlier Report carried a story of a quite different sort, in which even he conceded there were some flaws. That lawsuit provides a vehicle through which to explore a fascinating array of legal …

Right Of Publicity Tarnishment And The First Amendment, Edgar Sargent

Washington Law Review

This Comment proposes a new cause of action for tarnishment of the right of publicity. The claim would protect the rights holder from uses that create offensive or degrading associations and thus harm the value of the protected persona. To prevent undue constraint upon First Amendment protected speech about public figures, publicity rights protection must be carefully balanced against free speech interests. In most cases, a speaker's right to refer to a public figure will be superior to the publicity rights holder's interest in controlling the manner in which a persona is used. However, publicity rights holders should prevail when …

Landowners Or Lifeguards? Degel V. Majestic Mobile Manor, Inc. And Liability For Visitors' Injuries From Natural Bodies Of Water, Joseph Z. Lell

Washington Law Review

Under an exception to the attractive nuisance doctrine, landowners typically owe no duty to warn and protect trespassing children from the dangers inherent in ponds, streams, and other natural bodies of water located on the owners' property. In Degel v. Majestic Mobile Manor, Inc., however, the Washington Supreme Court declined to extend this premises liability exception to situations where the injured visitor is an invitee of the landowner. This Note examines the natural bodies of water exception and argues that Degel's refusal to apply it in the invitee context ultimately conflicts with the court's earlier policy statement favoring …

Preemption Of State Product Liability Claims Involving Medical Devices: Premarket Approval As A Shield Against Liability, Robin Helmick Turner

Washington Law Review

Under the Medical Device Amendments of 1976 (MDA), Congress established a complex scheme for regulating medical devices. Congress also included an express preemption provision in the Amendments that prohibits states from imposing different or additional requirements on devices. Much controversy has focused on whether the preemption provision operates to preempt plaintiffs' state product liability claims against medical device manufacturers. Although in Medtronic, Inc. v. Lohr the U.S. Supreme Court recently attempted to resolve the controversy, its ruling left open the question of whether manufacturers of devices subject to the most rigorous form of Food and Drug Administration scrutiny, known as …

What A Long Strange Trip It's Been: Court-Created Limitations On Rights Of Action For Negligently Furnishing Alcohol, Sheldon H. Jaffe

Washington Law Review

Under the traditional view of the common law, drinking alcohol rather than providing alcohol acted as the proximate cause of any resulting harm, and therefore furmishers of alcohol had no duty to the people served or those injured by the persons served. The Washington Supreme Court has held that negligently furnishing alcohol can be a proximate cause in tort but has severely limited rights of action: vendors who serve minors or obviously intoxicated adults may be sued by subsequently injured innocent third parties, and all people who serve alcohol to minors may face suit if the minor is subsequently injured …

Can Generic Products Be Disparaged? The "Of And Concerning" Requirement After Alar And The New Crop Of Agricultural Disparagement Statutes, Eric M. Stahl

Washington Law Review

Under the group libel principle, a statement broadly critical of a large group generally cannot give rise to a defamation claim; it is said that such a statement does not refer to, or is not of and concerning, any particular individual. This Comment addresses the extent to which the "of and concerning" requirement and group libel principle apply to claims of product disparagement, a tort similar to defamation but encompassing pecuniary injury, as opposed to damage to reputation, resulting from false statements. In particular, this Comment examines whether speech generally critical of a generic product can give rise to disparagement …

An Explanation Of Japan's Product Liability Law, Thomas Leo Madden

Washington International Law Journal

Japan has been contemplating the implementation of a product liability system since 1972. After much discussion, the Product Liability Law (Law No. 85 (1994)) was finally promulgated on July 1, 1994. It came into force one year later on July 1, 1995. In Japanese the law is called Seizōbutsu Sekinin Hō. The original article explains the law's historical significance and practical impact. It is commentary in style and is meant to serve as a basic guideline to help both consumers and businesses understand their respective rights and obligations under this new law.

Why Japan's New Products Liability Law Isn't, Andrew Marcuse

Washington International Law Journal

The statutory language of Japan's 1994 Products Liability Act envisions a strict liability regime that would replace the previous negligence-based regime. This Comment reviews the development of the previous products liability regime, then analyzes the 1994 Products Liability Act in relation to Civil Code articles 415, 570, and 709 as well as EC Directive 85/374, and the 1975 Draft Model Law on Products Liability. The Comment concludes that because the 1994 Products Liability Act incorporates the Civil Code articles and their judicial interpretations, without addressing any of several structural and procedural barriers to suit, the 1994 Products Liability Act cannot …

Attorney Malpractice Liability To Non-Clients In Washington: Is The New Modified Multi-Factor Balancing Test An Improvement?, Sheryl L.R. Miller

Washington Law Review

Most jurisdictions recognize a cause of action for legal malpractice against a non-client only where the attorney-client relationship is formed to benefit a third-party nonclient. This rule generally operates to preclude an attorney's potential liability to a client's adversary. Washington departed from the majority in 1992 in Bohn v. Cody, where the Washington Supreme Court found that an attorney did owe a duty to his client's adversary. Two years later, in Trask v. Butler, the supreme court modified Bohn's test for determining attorney malpractice liability to third parties to conform Washington's law with the majority of jurisdictions. …

Defamation, Reputation, And The Myth Of Community, Lyissa Barnett Lidsky

Washington Law Review

The complex interaction between defamation, reputation, and community values defines the tort of defamation. A defamatory communication tends to harm a plaintiff's reputation in the eyes of the plaintiffs community. Thus, to determine whether a given statement is defamatory, courts must first identify the plaintiff's community and its norms—an inquiry that presents both theoretical and doctrinal difficulties in a heterogeneous and pluralistic society. Current approaches to identifying the plaintiff's community are particularly inadequate in two common types of cases: (1) cases in which the plaintiff belongs to a subcommunity espousing different values than those prevailing generally, and (2) cases in …

Heidi Lindsey, Et Al. V. Dow Corning Corp., Et Al.: The Exclusion Of Claimants From Australian, Ontario And Quebec, Stephanie Alexander

Washington International Law Journal

In September 1994, the United States District Court for the Northern District of Alabama approved a multi-billion dollar settlement in a global class action for breast implant recipients. The court concluded its opinion by excluding women from Australia, Ontario and Quebec from the settlement. After examining U.S. class action procedural requirements and analyzing the District Court's opinion, this Comment argues that the court improperly applied the procedural requirements for a class action to the detriment of the potentially injured women from Australia, Ontario and Quebec.

Taking A Byte Out Of Crime: E-Mail Harassment And The Inefficacy Of Existing Law, Gene Barton

Washington Law Review

Computer abuse is advancing as quickly as computer technology. The laws, however, have yet to address computer harassment to a significant degree. Existing law is insufficient, and current efforts fall short of what is needed. This Comment identifies the need for new law, examines the shortcomings of what has been tried to date, and proposes general concepts for a comprehensive computer harassment law. This Comment concludes with a proposal for specific legislation for the state of Washington.

His And Her Tort Reform: Gender Injustice In Disguise, Thomas Koenig, Michael Rustad

Washington Law Review

This Article is an inquiry into the gendered nature of tort remedies. Modem tort law provides increased protection for injuries suffered by women. Drawing upon a national study of punitive damages in products liability and medical malpractice, Professors Koenig and Rustad argue that tort remedies are bifurcated into "his" and "her" tort worlds based upon gender roles. Nearly half of the punitive damages verdicts awarded to women stemmed from injuries caused by household consumer products and dangerously defective drugs or medical devices. In contrast, the punitive damages awarded to males arose from accidents involving industrial and farm machinery, asbestos, chemicals, …

Causation And Injury In Corporate Control Transactions: Cede & Co. V. Technicolor, Inc., Jacqueline M. Veneziani

Washington Law Review

In Cede & Co. v. Technicolor, Inc., the Delaware Supreme Court held that shareholders are not required to prove injury from corporate directors' failure to exercise due care in approving a merger transaction. Tort principles, the court stated, have no role in a business judgment rule analysis. Therefore, once shareholders prove a violation of the directors' duty of care, the burden is shifted to the directors to prove the entire fairness of the transaction despite the absence of a breach of the duty of loyalty. This Note argues that the entire fairness review of a disinterested board transaction is unworkable. …

Insulating Sexual Harassment Grievance Procedures From The Chilling Effect Of Defamation Litigation, Ruth A. Kennedy

Washington Law Review

The threat of defamation liability may undermine the push to encourage private employers to establish internal grievance procedures for handling sexual harassment complaints. Courts have recognized two defenses to defamation claims arising out of employers' sexual harassment investigations: the qualified privilege and the intracorporate immunity rule. Neither of these defenses adequately balances the need to insulate grievance procedures against the desire to protect the reputation of the employee accused of harassment. This Comment proposes the adoption of a new grievance procedure privilege which would ensure the integrity of grievance procedures while maximizing the protection afforded an accused employee.

Looking Out For Mary Carter: Collusive Settlement Agreements In Washington Tort Litigation, J. Michael Philips

Washington Law Review

Courts and commentators disagree as to the propriety of Mary Carter agreements, pseudo-settlement devices used in multiparty litigation that unite the interests of a plaintiff and a cooperating defendant, and maintain that defendant's presence at trial. Most courts tolerate these arrangements provided that they are disclosed, while a distinct minority render them void. Washington courts have not espoused a definite position, although recent decisions suggest a tolerant stance. This Comment argues that the use of Mary Carters is inconsistent with Washington tort law, and that Washington courts should therefore prohibit them entirely. This may be accomplished by treating all Mary …

A Minor Hazard: Social Hosts Liability In Washington After Hansen V. Friend, Laura Hoexter

Washington Law Review

In Hansen v. Friend, the Washington Supreme Court held that a host who furnishes alcohol to a minor in a social setting is liable for all resulting injuries to the minor. In reaching this result, the court limited the cause of action to minors, denying all third parties injured by intoxicated minors a claim against social hosts. Additionally, the court allowed intoxicated minors to bring an action for injuries resulting from any type of hazard they encountered while intoxicated. This Note examines the Hansen decision and proposes that, given the court's decision to impose civil liability upon hosts, the court …

Direct Actions For Emotional Harm: Is Compromise Possible?, Julie A. Davies

Washington Law Review

While most courts and commentators acknowledge that emotional injury resulting from negligence may merit compensation, they share the conviction that some limits must be placed on such claims. They identify two basic policy rationales as the justifications for limiting claims for emotional harm: (1) the desire to ensure that a defendant's liability for negligence is not disproportionate to his or her fault, and (2) the desire to prevent litigation of trivial or fraudulent claims. This Article argues that the two rules most frequently applied by courts to effectuate limitations on recovery—the "zone-of-danger" rule and the "foreseeability-plus-serious-injury" rule—suffer from serious deficiencies. …

Constructing A New Action For Negligent Infliction Of Economic Loss: Building On Cardozo And Coase, Michael D. Lieder

Washington Law Review

This Article proposes the creation of a new tort of negligent infliction of economic loss, a hybrid of negligence, negligent representation, and breach of contract. An action in this new tort would permit an injured party to recover for economic loss caused by a person with whom the party is not in contractual privity. This Article focuses on the infliction of economic loss by negligent construction, where courts have applied various doctrines and arrived at six distinct and inconsistent approaches to liability issues. This Article provides a solution applicable to litigation for negligent construction. Any action should protect an injured …