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"Waive" Goodbye To Tort Liability: A Proposal To Remove Paternalism From Product Sales Transactions, Richard C. Ausness
"Waive" Goodbye To Tort Liability: A Proposal To Remove Paternalism From Product Sales Transactions, Richard C. Ausness
San Diego Law Review
This Article argues that waivers of tort liability should be permitted in connection with product sales. Currently, sellers cannot limit their liability under tort law for personal injuries caused by defective products even though such waivers are allowed, albeit reluctantly, under principles of negligence and warranty law.
Of Tort Reform And Millionaire Muggers: Should An Obscure Equitable Doctrine Be Revived To Dent The Litigation Crisis?, Robert A. Prentice
Of Tort Reform And Millionaire Muggers: Should An Obscure Equitable Doctrine Be Revived To Dent The Litigation Crisis?, Robert A. Prentice
San Diego Law Review
Few stories have more power to outrage than that of Bernard McCummings, the "millionaire mugger" who was awarded $4.3 million by a jury after he was shot by a police officer allegedly using excessive force. This Article focuses on an equitable doctrine which could bar recovery in cases like that of McCummings and, potentially, in a much broader range of cases. The equitable doctrine, "ex turpi causa non oritur actio," means essentially that a person who has committed an illegal or immoral act may not bring a lawsuit. This Article examines how the doctrine is applied in selected western common …
Comments On The Reporters' Study Of Enterprise Responsibility For Personal Injury, Jerry J. Phillips
Comments On The Reporters' Study Of Enterprise Responsibility For Personal Injury, Jerry J. Phillips
San Diego Law Review
This Article critiques the substantive law and damage proposals of the Reporters' Study on Enterprise Liability, which was published in 1991 by the American Law Institute. Contrary to the Reporters' recommendations, the author proposes retaining the consumer expectations test and strict liability for product suppliers. He argues that it is not practical to shift medical malpractice liability, as proposed by the Study, from doctors to hospitals. In the area of damages, the author proposes retaining the rules of recovery for pain and suffering, punitive damages, and the collateral source rules essentially as they are now, instead of adopting the changes …
Rejoinder: Advances In The Analysis, Marshall S. Shapo
Rejoinder: Advances In The Analysis, Marshall S. Shapo
San Diego Law Review
This brief Rejoinder addresses two levels of issues: broad questions involved in the effort to establish a critical overview of injury law and questions more precisely bound up with products liability law. The author lauds the Reporters' Study on Enterprise Responsibility for Personal Injury on its significant contribution to academic debate in this country, and for its openness to a competition of many divergent ideas in the context of organizational culture. Despite the problems that this author noted in his first Article in this symposium, he recognizes the achievement of the Study, and the genuine advance that it provides in …
The American Law Institute's Reporters' Study On Enterprise Responsibility For Personal Injury: Perspectives On The Tort System And The Liability Crisis
San Diego Law Review
In 1986 a number of prominent legal scholars embarked upon a project commissioned by the American Law Institute to re-examine contemporary tort and personal injury law. Five years later, the results of this project came to fruition in a two-volume study entitled Reporters' Study on Enterprise Responsibility for Personal Injury. After a year's debate within the American Law Institute about the broad range of issues canvassed by the Study, the Institute's Executive Council endorsed the value of the Study for deliberations about tort reform going on in both legislative and judicial forums. This is the introductory chapter of each volume …
The American Law Institute's Reporters' Study On Enterprise Responsibility For Personal Injury: A Timely Call For Punitive Damages Reform, Victor E. Schwarz, Mark A. Behrens
The American Law Institute's Reporters' Study On Enterprise Responsibility For Personal Injury: A Timely Call For Punitive Damages Reform, Victor E. Schwarz, Mark A. Behrens
San Diego Law Review
This Article focuses on the Reporters' Study on Enterprise Responsibility for Personal Injury, specifically the Reporters' recommendations for punitive damages reform. The Article discusses the Study's analysis of the need for punitive damages reform, with which the author agrees. The Article also discusses the Study's recommendations concerning reform of the standard by which punitive damages should be awarded, recommendations to set reasonable limits on the size of punitive damage awards, and the recommendation of a shield against punitive damages for products that comply with federal regulatory standards. The authors find that generally the recommendations are fair and reasonable. They believe …
The American Law Institute's Reporters' Study On Enterprise Responsibility For Personal Injury: Reforming The Tort System
San Diego Law Review
In 1986 a number of prominent legal scholars embarked upon a project commissioned by the American Law Institute to re-examine contemporary tort and personal injury law. Five years later, the results of this project came to fruition in a two-volume study entitled Reporters' Study on Enterprise Responsibility for Personal Injury. After a year's debate within the American Law Institute about the broad range of issues canvassed by the Study, the Institute's Executive Council endorsed the value of the Study for deliberations about tort reform going on in both legislative and judicial forums. This is the introductory chapter of each volume …