Law Commons^™

Torts -- 1963 Tennessee Survey, John W. Wade

Vanderbilt Law Review

The elements of a valid cause of action in negligence are specifically enumerated by Justice Holmes of the Tennessee Supreme Court in the case of Ruth v. Ruth:

1. A duty of care owed by the defendant to the plaintiff.

2. A failure on the part of the defendant to perform that duty.

3. An injury to the plaintiff resulting proximately from the defendant's breach of that duty of care.

This outline will be used for the treatment of general questions of negligence, and particular fact situations will then be subsequently treated.

Torts -- 1962 Tennessee Survey, Dix W. Noel

Vanderbilt Law Review

Most of the tort cases during the survey period do not involve any significant changes in the law. Mindful of the necessity of stability and predictability, and of a tradition of even-handed continuity, our courts have been naturally hesitant to upset established rules. However, in a few areas (injuries to unborn children, application of the immunity doctrine to a minor whose disability is removed, scope of liability for negligent misrepresentation) the courts have been faced with new problems and changed conditions. In these areas the decisions frankly accept responsibility for some development of legal doctrine to keep it responsive to …

Torts -- 1961 Tennessee Survey (Ii), John W. Wade

Vanderbilt Law Review

The twenty tort cases decided during the shorter survey period this year all involved negligence actions.' Most of the cases involved the application of established rules or standards to new fact situations, some of them being fairly routine. Only two cases were of striking significance.

Torts -- 1961 Tennessee Survey, Dix W. Noel

Vanderbilt Law Review

The tort cases reported during the past year were of unusual interest. A number of them dealt with points of first impression in this state. Others represent developments of the law designed to bring it into harmony with changing conditions, as in the application of the res ipsa loquitur doctrine to the unexplained fall of an air-liner, or in the clarification of the duties of an automobile driver to a mere licensee in the vehicle. While the basic pattern for justice in the field of torts has been worked out by our courts with much care and wisdom, occasional modifications …

Torts -- 1960 Tennessee Survey, John W. Wade

Vanderbilt Law Review

As usual, there were about forty reported Torts cases this year. There were no striking new developments. Many of the cases were merely routine, some of them indeed carrying quite long opinions without deciding anything which will give them real value as precedents for the future. The great majority of the cases involved actions for negligence, considerably more than half the cases being concerned with traffic accidents.

Negligence Liability Of Artisans And Tradesmen, Jerry L. Moore

Vanderbilt Law Review

The purpose of this Note is to examine certain aspects of the tort liability of nonprofessional persons who engage in a trade or craft which requires skill and abilities not ordinarily possessed by the average man. Since, with such a wide range of subjects, an adequate treatment of all the problems peculiar to each trade would require volumes, it is necessary at the outset to place rather narrow limitations on the scope of this analysis. Perhaps it is best to define the outside limits in the form of two "issues" as follows. When a person engages in a certain trade …

Book Reviews, John C. Wahlke, Walter P. Armstrong, Jr.

Vanderbilt Law Review

The State Legislative Institution By Jefferson B. Fordham Philadelphia: University of Pennsylvania Press. 1959. Pp. 109.

reviewer: John C. Wahlke

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Handling Accident Cases By Albert Averbach Rochester: The Lawyers Co-operative Publishing Co. 1958. Pp. xii, 1505.

reviewer: Walter P. Armstrong, Jr.

Torts--1959 Tennessee Survey, Dix W. Noel

Vanderbilt Law Review

As usual, a considerable number of cases involving tort law were decided during the survey period. One of the decisions involves a point of first impression in this state, the matter of whether an unborn child comes within the scope of the wrongful death statute. A number of the decisions serve to clarify existing rules, or to carry these rules a step further in applying them to new situations. There were also some significant statutory developments, including the changes in the Railroad Precautions Act.

Professional Negligence -- Some General Comments, William J. Curran

Vanderbilt Law Review

An examination of the tort liability of professional people necessarily involves two areas: (a) an examination of fact situations peculiar to the activities of the various professions, and (b) an analysis of the theoretical basis for professional liability as distinguished, if at all, from any other form of tort liability. In the articles to follow in this symposium, there is a concentration on a particular professional group in addressing each of these questions. In this introductory comment, therefore, an effort will be made to examine some of the general principles of professional liability which may be applicable in many areas.

Developments In The English Law Of Medical Liability, John G. Fleming

Vanderbilt Law Review

Throughout the common law world, as indeed elsewhere, our generation has been witness to an unmistakable, if not always consistent, trend of increasingly disassociating the administration of accident law from the philosophy of individual fault in favor of the collectivist principle of loss distribution, as evidenced in the movement towards stricter liability in litigation areas with a background of liability insurance. However debatable the measure of this reorientation in the United States,' it has taken very large strides in the several jurisdictions of the British Commonwealth where a pattern of loss allocation is now visibly emerging which, in many respects, …

Tort Liability Of Teachers, Paul O. Proehl

Vanderbilt Law Review

The tort liability of teacher qua teacher encompasses a rather narrow ambit and is largely restricted to cases in which it is alleged that the right of the teacher to enforce discipline has been abused and that the teacher is therefore liable in damages for the commission of an intentional tort. The question in such a case is whether the teacher has exceeded, or acted outside the scope of, his privilege.A particular common law concept was developed very early here defining the privilege as one deriving from the fact that the teacher stood in loco parentis,' and the privilege still …

The Attorney's Liability For Negligence, John W. Wade

Vanderbilt Law Review

The concept of negligence was late in developing in the common law. Perhaps the first group of cases in which the idea began to take shape involved the liability of persons who professed competence in certain callings.' One of these "callings" was that of the attorney,and cases as early as the middle of the eighteenth century hold an attorney liable on this basis.

Liability Of Funeral Directors For Negligence, Edgar E. Smith

Vanderbilt Law Review

Funeral directing cannot be classed absolutely as a "profession."'On the contrary, the funeral director's principal concern probably is the sale of caskets and burial supplies, thus making him a "merchant"or "trader." However, for purposes of rendering services in connection with the care and burial of the dead as well as in accommodating the family and friends of the deceased, the funeral director is considered a "professional man." It is the latter capacity which is under consideration here. It is inconsequential for legal purposes whether a mortician is referred to as a "funeral director," an "embalmer," or an "undertaker." An embalmer …

Professional Negligence Liability Of Public Accountants, Carl S. Hawkins

Vanderbilt Law Review

At least since 1905, in this country, accountants have been recognized as "a skilled professional class ... subject generally to the same rules of liability for negligence in the practice of their profession as are members of other skilled professions."' The question, then, is not whether the usual concepts of professional negligence apply to accountants, but how. What situations have produced malpractice litigation? What are the specific practices or omissions which have resulted in liability? And what are the limits of liability? Like other professionals, the accountant usually gets into the position where he must exercise his professional skill as …

Professional Negligence Of Architects And Engineers, George M. Bell

Vanderbilt Law Review

Our courts have erected a protective legal structure around architects and engineers which has been sufficient, at least in the past, to shelter members of those two professions from any extensive liability for their misconduct. However, it would seem that this legal structure was erected on an unfirm foundation and cracks are appearing in the walls so that occasionally architects and engineers have been held legally responsible for their errors. Such responsibility has in general been confined to a liability to the person hiring the professional service. As yet there has been no case which has ruled the architect or …

Torts -- 1958 Tennessee Survey, John W. Wade

Vanderbilt Law Review

The number of torts cases was somewhat less this year than in past years, being below the forty figure rather than above it. There were no particularly significant legal developments in the field. Perhaps the cases indicate, however, a developing fashion in automobile negligence actions. At least four of the cases seem to have been brought for whiplash injuries.'

Agency--1958 Tennessee Survey, Edward R. Hayes

Vanderbilt Law Review

Establishing that Tortfeasor is a Servant of Defendant: Negligent operation of motor vehicles probably is the most prolific source of tort liability today. Within this area an important cause of litigation has been negligent operation by someone other than the owner of the vehicle. The initial common law approach to such cases was to hold the owner responsible if he himself were negligent, as by entrusting his car to a known incompetent driver, or if the negligent driver were the owner's servant acting within the course and scope of his employment.'

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In Smith v. Phillips a pick-up truck, registered …

Torts -- 1957 Tennessee Survey, John W. Wade

Vanderbilt Law Review

One who performs an act is ordinarily under a duty to act carefully.When the defendant has acted there is seldom a problem regarding the duty to use care. But when the defendant has failed to act the question of duty raises a substantial problem.' The rule is stated that there is no duty to act, but the exceptions are many. One arises when there is a particular relationship between the parties; another, when the defendant had commenced to act. Both exceptions are involved in Union Carbide & Carbon Corp. v. Stapleton.

Effect Of Exculpatory Clauses Under The Federal Tort Claims Act, John B. Thurman Jr.

Vanderbilt Law Review

The effect of an exculpatory clause' in a federal contract was the subject of two recent cases brought against the government under the Federal Tort Claims Act. In United States v. Kelly the subject of the contract was the sale of "edible garbage," and the contract provided that the garbage was sold "as is" and "without recourse" against the government, and that in any case where the liability of the government was established, the recovery would be limited to the contract price. In Air Transport Associates v. United States the subject of the contract was the use by plaintiff's commercial …

Torts -- 1955 Tennessee Survey, John W. Wade

Vanderbilt Law Review

The decision of whether a defendant is negligent is normally for the jury to decide. This year, as in other years, the Tennessee courts have taken frequent opportunity to emphasize this,' though a directed verdict is proper when the jury could reasonably reach only a single result. The negligence issue is submitted to the jury in terms of the usual standard--whether the defendant acted as a reasonable prudent person would have acted under the same or similar circumstances. At times some of the circumstances may be more specifically adverted to in the instructions. Thus, under the "emergency", or "sudden peril …

Torts, John W. Wade

Vanderbilt Law Review

As might have been expected a large portion of the litigation before the Tennessee appellate courts during the Survey period involved tort actions. Most of these actions, of course, were based upon negligence. There were several cases involving the intentional harms of assault and battery and false imprisonment. No cases were decided involving deceit, defamation, strict liability or interference with advantageous relations.

Joint Tortfeasors And The Conflict Of Laws, John W. Wade

Vanderbilt Law Review

Much has been written regarding tort liability and the conflict of laws and there are numerous cases in the field.' But little attention has been paid to the conflicts aspects of the many legal problems which surround the concept of joint tortfeasors. This paper attempts to collect the relatively few decisions on the subject and to analyze the problems involved.

In the beginning it should be made clear that the term "joint tortfeasors" is used, unless otherwise indicated, in the broad, somewhat colloquial sense which most American courts use today. Thus used, it includes both joint tortfeasors in the narrow …

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

CRIMINAL PROCEDURE--FACIAL EXPRESSIONS AND GESTICULATIONS OF TRIAL JUDGE--PREJUDICIAL EFFECT ON JURY

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EMPLOYMENT SECURITY ACT--PERSONS COUNTED TO DETERMINE WHETHER AN EMPLOYING UNIT HAS REQUISITE NUMBER OF EMPLOYEES TO CONSTITUTE AN "EMPLOYER"--STUDENTS WORKING FOR SCHOOL TO PAY TUITION

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FEDERAL JURISDICTION--JURISDICTIONAL AMOUNT--INJUNCTION SUITS

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LEGAL ETHICS--SOLICITATION AND FEE SPLITTING--ATTORNEY CONTRACTING WITH LABOR UNION TO REPRESENT UNION MEMBERS FOR CONTIGENT FEE

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NEGLIGENCE--LANDOWNER'S DUTY OF CARE--DUTY OWED TO FIREMAN

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NEGLIGENCE--STANDARD OF CARE--ASSURED-CLEAR-DISTANCE-AHEAD RULE

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PERSONAL PROPERTY--TENANCY BY THE ENTIRETY--BANK ACCOUNTS

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PLEADING--GENERAL ISSUE--SCOPE IN TENNESSEE

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TORTS--CHARITABLE INSTITUTIONS--TORT LIABILITY OF CHARITABLE INSTITUTIONS UNDER THE DOCTRINE OF RESPONDEAT SUPERIOR

The Federal Tort Claims Act And Its Application To Military Personnel, Harold F. Mcniece, John V. Thornton

Vanderbilt Law Review

The background and history of the Federal Tort Claims Act" are well known. Stemming in part from the medieval political theory that the King could do no wrong, a doctrine evolved in English law that the Crown was, in the absence of its consent, immune to suit. This concept became a part of the American common law, and in the main was enforced as rigorously on this side of the Atlantic as in the mother country.

The oft-times inequitable consequences of sovereign immunity in the United States were at first sought to be ameliorated through the device of private legislative …