Open Access. Powered by Scholars. Published by Universities.®
- Institution
-
- Cleveland State University (10)
- University of Michigan Law School (4)
- Vanderbilt University Law School (3)
- Washington and Lee University School of Law (3)
- The University of Akron (2)
-
- University of Maryland Francis King Carey School of Law (2)
- University of Oklahoma College of Law (2)
- Florida A&M University College of Law (1)
- Florida State University College of Law (1)
- Northwestern Pritzker School of Law (1)
- Pepperdine University (1)
- Touro University Jacob D. Fuchsberg Law Center (1)
- University of Arkansas at Little Rock William H. Bowen School of Law (1)
- University of Georgia School of Law (1)
- University of Montana (1)
- University of Washington School of Law (1)
- West Virginia University (1)
- Publication Year
- Publication
-
- Cleveland State Law Review (10)
- Michigan Law Review (4)
- Washington and Lee Law Review (3)
- Akron Law Review (2)
- Maryland Law Review (2)
-
- Oklahoma Law Review (2)
- Vanderbilt Law Review (2)
- Florida A & M University Law Review (1)
- Florida State University Law Review (1)
- Georgia Journal of International & Comparative Law (1)
- Northwestern University Law Review (1)
- Pepperdine Law Review (1)
- Public Land & Resources Law Review (1)
- Touro Law Review (1)
- University of Arkansas at Little Rock Law Review (1)
- Vanderbilt Journal of Transnational Law (1)
- Washington Law Review (1)
- West Virginia Law Review (1)
Articles 1 - 30 of 36
Full-Text Articles in Law
A Few Thoughts On “If A Tree Falls In A Roadway . . . .”, David Eggert
A Few Thoughts On “If A Tree Falls In A Roadway . . . .”, David Eggert
Washington and Lee Law Review
This Response to Ian McElhaney’s note examines (1) the background legal context that got us to where we are on falling-tree liability; (2) how this peculiar issue fits into Virginia’s general approach to the law; and (3) presents some thoughts on Mr. McElhaney’s reasoning and ultimate conclusions in urging liability for road maintainers.
In Search Of A Unified Theory Of The Duties Flowing From Property Ownership In Virginia: A Response To Mcelhaney’S If A Tree Falls, E. Kyle Mcnew
In Search Of A Unified Theory Of The Duties Flowing From Property Ownership In Virginia: A Response To Mcelhaney’S If A Tree Falls, E. Kyle Mcnew
Washington and Lee Law Review
In his Note, Ian McElhaney concludes that the Court got it right in Cline v. Dunlora South, LLC—that the landowner owes no duty to protect travelers on adjoining roadways from natural conditions on the landowner’s property—because the Court also got it right in Cline v. Commonwealth when it held that the Commonwealth of Virginia may have that duty instead. In the narrowest view, that is certainly a defensible position. If the case is just about natural conditions and roads, then there is intuitive appeal in saying that they are the Commonwealth’s roads; so, it is the Commonwealth’s job to make …
If A Tree Falls In A Roadway, Is Anyone Liable?: Proposing The Duty Of Reasonable Care For Virginia’S Road-Maintaining Entities, Ian J. Mcelhaney
If A Tree Falls In A Roadway, Is Anyone Liable?: Proposing The Duty Of Reasonable Care For Virginia’S Road-Maintaining Entities, Ian J. Mcelhaney
Washington and Lee Law Review
This Note considers whether a duty for road-maintaining entities is tenable under Virginia law. It also explores the rationale for imposing differing liabilities between landowners and road-maintaining entities. Part III reviews the various duties other states use with respect to dangerous roadside trees and concludes that the duty of reasonable care is most appropriate for Virginia. Sovereign immunity is a companion issue and is addressed in Part IV. The Part provides a brief overview of the policy arguments for sovereign immunity, before reviewing immunity’s impact at the state, county, and municipal levels. The Part also addresses a government employee’s entitlement …
Not Fully Discretionary: Incorporating A Factor-Based Standard Into The Ftca's Discretionary Function Exception, Daniel Cohen
Not Fully Discretionary: Incorporating A Factor-Based Standard Into The Ftca's Discretionary Function Exception, Daniel Cohen
Northwestern University Law Review
The Federal Tort Claims Act (FTCA) pulls back the curtain of sovereign immunity and allows private citizens to directly sue the federal government for damages resulting from negligence. Passed in 1946 and never amended, the statute carries no limit on potential damages, only prohibiting punitive damages and jury trials. Other than those procedural limitations, the potential liability of the government is unlimited—except for one single exception: the discretionary function exception. The discretionary function exception shields the government from liability for “the failure to exercise or perform a discretionary function or duty.” Congress failed to elaborate on the definition and scope …
Lewis V. Clarke, Summer L. Carmack
Lewis V. Clarke, Summer L. Carmack
Public Land & Resources Law Review
One manner in which Indian tribes exercise their inherent sovereignty is by asserting sovereign immunity. In Lewis v. Clarke, the Court decided that the sovereign immunity extended to instrumentalities of tribes did not further extend to tribal employees acting within the scope of their employment. The Court acknowledged the concerns of the lower court, namely, the possibility of setting a precedent allowing future plaintiffs to sidestep a tribe’s sovereign immunity by suing a tribal employee in his individual capacity. However, the Supreme Court ultimately felt that the immunity of tribal employees should not exceed the immunity extended to state …
"Should" Or "Must"?: Distinguishing Mandates From Guidlines In Tort Claims Contexts, A. G. Harmon
"Should" Or "Must"?: Distinguishing Mandates From Guidlines In Tort Claims Contexts, A. G. Harmon
West Virginia Law Review
No abstract provided.
The Tort Liability Of The Classroom Teacher, Stephen R. Ripps
The Tort Liability Of The Classroom Teacher, Stephen R. Ripps
Akron Law Review
THIS ARTICLE WILL DISCUSS the tort liabilities to which classroom teachers are exposed and predict future parameters of concern. The rules of law applicable to the tortious conduct of the classroom teachers equally affect elementary, secondary, and higher education instructors
Sovereign Immunity For Political Subdivisions, Kathy Sue Magoline
Sovereign Immunity For Political Subdivisions, Kathy Sue Magoline
Akron Law Review
The Ohio Supreme Court continued in 1983 to expand and define its abrogation of the doctrine of sovereign immunity for municipal corporations and political subdivisions. The court's decisions in this area have resulted in a significant increase in tort liability for local governments and school districts, who may now be found liable for tortious acts in the same manner as private individuals.
A Blanket Of Immunity Will Not Keep Florida Dry: Proposed Adjustments To Florida's Drainage Regulations And Sovereign Immunity Laws To Account For Climate Change Impacts, Theresa K. Bowley
A Blanket Of Immunity Will Not Keep Florida Dry: Proposed Adjustments To Florida's Drainage Regulations And Sovereign Immunity Laws To Account For Climate Change Impacts, Theresa K. Bowley
Florida A & M University Law Review
Addressing stormwater drainage in Florida has been an ongoing challenge since the middle of the twentieth century when the State began to experience rapid growth. Drainage problems already occur in Florida during seasonal high tides, heavy rains, and in storm surge events, and the impacts projected by climate change will exacerbate flooding. Identification of deficiencies in Florida’s existing drainage systems should include the responsibility and liability of drainage systems to be retrofitted to adapt to climate change. Part I of this paper explains the connection between global climate change and its effects on stormwater drainage in Florida. The existing governmental …
Denying Reparation For Slave And Forced Laborers In World War Ii And The Ensuing Humanitarian Rights Implications: A Case Study Of The Icj’S Recent Decision In Jurisdictional Immunities Of The State (Ger. V. It.: Greece Intervening), Morgan L. Klinzing
Georgia Journal of International & Comparative Law
No abstract provided.
The Perfect Storm, An Imperfect Response, And A Sovereign Shield: Can Hurricane Katrina Victims Bring Negligence Claims Against The Government?, Tarak Anada
Pepperdine Law Review
No abstract provided.
A Missed Opportunity: The Federal Tort Claims Act And Civil Rights Actions, Diana Hassel
A Missed Opportunity: The Federal Tort Claims Act And Civil Rights Actions, Diana Hassel
Oklahoma Law Review
No abstract provided.
Torts: Anderson V. Eichner--Although Faculty Physicians, Resident Physicians, And Interns Face Private Tort Liability For Medical Malpractice, The State Is Immune, Christa L. Britton
Torts: Anderson V. Eichner--Although Faculty Physicians, Resident Physicians, And Interns Face Private Tort Liability For Medical Malpractice, The State Is Immune, Christa L. Britton
Oklahoma Law Review
No abstract provided.
Prior Written Notice Statutes In New York State: The Resurrection Of Sovereign Immunity, Lewis J. Lubell
Prior Written Notice Statutes In New York State: The Resurrection Of Sovereign Immunity, Lewis J. Lubell
Touro Law Review
No abstract provided.
Reconceptualizing Sovereign Immunity, Harold J. Krent
Reconceptualizing Sovereign Immunity, Harold J. Krent
Vanderbilt Law Review
The United States generally is immune from suit without its con- sent. Accordingly, neither Congress nor the executive branch need pay damages' for any contract breached, any tort committed, or any constitutional right violated by the federal government. Although the doctrine of sovereign immunity persists, it persists subject to near unanimous condemnation from commentators. Many have rejected the underlying theory that the "King can do no wrong" as oddly out of place in our republican governments and many have noted as well that sovereign immunity was never applied as comprehensively in the past as it is today. Presently, there seems …
A Unified Approach To State And Municipal Tort Liability In Washington, Mark Mclean Myers
A Unified Approach To State And Municipal Tort Liability In Washington, Mark Mclean Myers
Washington Law Review
This Comment examines and analyzes the two judicially created limitations on governmental tort liability in Washington. It concludes that the discretionary governmental acts immunity is a proper limitation on governmental tort liability, but that the public duty doctrine should be abandoned.
The Rise And Fall Of Sovereign Immunity In Ohio, Frank D. Celebrezze, Karen B. Hull
The Rise And Fall Of Sovereign Immunity In Ohio, Frank D. Celebrezze, Karen B. Hull
Cleveland State Law Review
The doctrine of sovereign immunity for municipal corporations has long reigned in Ohio. Although the judiciary and the General Assembly have imposed limitations, the doctrine has survived as a principle of Ohio law for over 140 years. However, the Supreme Court of Ohio reversed the trend and abrogated the doctrine in a series of cases in December 1982 and in the spring of the 1983 term. This comment examines the historical development of sovereign immunity for tort claims in Ohio, the limitations subsequently imposed on the immunity and its abrogation in those recent supreme court cases.
Tort—Federal Tort Claims Act—Feres Doctrine Bars Post-Discharge Failure To Warn Claim, Denise Parsons
Tort—Federal Tort Claims Act—Feres Doctrine Bars Post-Discharge Failure To Warn Claim, Denise Parsons
University of Arkansas at Little Rock Law Review
No abstract provided.
Defining The Government's Duty Under The Federal Tort Claims Act, Thomas A. Varlan
Defining The Government's Duty Under The Federal Tort Claims Act, Thomas A. Varlan
Vanderbilt Law Review
This Recent Development traces the Supreme Court's development of the analogous private liability test and examines the recent cases applying this test. The Recent Development then analyzes the divergent approaches taken in these cases and attempts to determine when an actionable duty arises under the Act.
Recent Decisions, James M. Redwine
Recent Decisions, James M. Redwine
Vanderbilt Journal of Transnational Law
The instant decision should serve to stimulate discussion on both the theoretical justifications for and the practical implications of jury trials in actions against governmental defendants, and therefore, may lead to revision of the FSIA. From a theoretical perspective, although the instant court correctly noted the changes effected by the Act, it failed to perceive the full extent of Congress' power in the domestic context. Congress, by its ability to classify entities as "agencies" or "instrumentalities" of the United States, thereby exempting specific entities from the non-jury trial provisions of FTCA, has the power, in effect, to restrict the scope …
Tort Claims Against The State: Comparative And Categorical Analyses Of The Ohio Court Of Claims Act And Interpretations Of The Act In Tort Litigation Against The State, Lawrence P. Wilkins
Tort Claims Against The State: Comparative And Categorical Analyses Of The Ohio Court Of Claims Act And Interpretations Of The Act In Tort Litigation Against The State, Lawrence P. Wilkins
Cleveland State Law Review
Upon passage of the Ohio Court of Claims Act of 1975, the State of Ohio waived its sovereign immunity and consented to be sued in a court established solely for that purpose. Within a relatively short period of time, the Ohio Court of Claims has made a significant imprint on the development of tort law in Ohio, distinguishing itself in its efforts to provide an effective forum for those injured by the state or one of its instrumentalities while defining the limits beyond which state liability for tortious conduct will not extend. As might be expected of a new court …
The Latest Event In The Confused History Of Municipal Tort Liability, J. Bart Budetti, Gerald L. Knight
The Latest Event In The Confused History Of Municipal Tort Liability, J. Bart Budetti, Gerald L. Knight
Florida State University Law Review
No abstract provided.
The Supreme Court And The Tort Claims Act: End Of An Enlightened Era, Richard Krotseng
The Supreme Court And The Tort Claims Act: End Of An Enlightened Era, Richard Krotseng
Cleveland State Law Review
Recent decisions of the Court interpreting the Federal Tort Claims Act, including Laird v. Nelms and Stencel Aero Engineering Corp. v. United States, and to a lesser extent, Logue v. United States and United States v. Orleans, indicate a definite shift away from the Supreme Court's broad view of the Act, towards a much narrower concept of governmental tort liability. It is the purpose of this note to document and analyze this rather drastic shift in construction of the FTCA, in light of the past precedents, legislative history and public policy.
The State As A Party Defendant: Abrogation Of Sovereign Immunity In Tort In Maryland
The State As A Party Defendant: Abrogation Of Sovereign Immunity In Tort In Maryland
Maryland Law Review
No abstract provided.
Sovereign Immunity - An Argument Con, Steven A. Sindell
Sovereign Immunity - An Argument Con, Steven A. Sindell
Cleveland State Law Review
Under the concept of sovereign or governmental immunity, a state may not be sued in tort without its consent. This doctrine, though the subject of repeated judicial challenges, is adhered to in a significant number of jurisdictions. It is the contention of this article that the reason for the rule no longer exists and that it should, therefore, be abolished as a controlling legal principle. Moreover, it is submitted that sovereign immunity violates the due process and equal protection.
Sovereign Immunity Abrogated In Ohio: Krause V. State, James B. Wilkens
Sovereign Immunity Abrogated In Ohio: Krause V. State, James B. Wilkens
Cleveland State Law Review
The decision thus promulgates three principal rulings: (1) that sovereign immunity does not provide a bar to bringing an action against the State of Ohio, (2) that the state is liable by virtue of the doctrine of respondeat superior for the authorized activities of its officers, employees and other agents, and (3) that freedom of individual agents from civil liability arising out of authorized activities for the state is retained. The effects of these rulings are far from obvious, in large part because of the confused prior state of the law upon which they are engrafted. Furthermore, the grounds given …
Delay In Notice Of Tort Claim Against A Government Agency, William P. Farrall
Delay In Notice Of Tort Claim Against A Government Agency, William P. Farrall
Cleveland State Law Review
Despite an onslaught of criticism and a rationale predicated on the discredited doctrine of Divine Right of Kings, the rule of sovereign immunity still exists in many states. As a result of this anachronism, municipalities and other subdivisions of state government have continued to escape liability for the tortious conduct of their agents. This situation has persisted despite a tendency by the courts to restrict rather than extend the principle of immunity. Statutory enactments such as short term notice provisions applied against potential plaintiffs by states and their subdivisions, when strictly construed by the courts, have had the effect of …
Governmental Liability For Inadequate Traffic Sign, Robert C. Egger
Governmental Liability For Inadequate Traffic Sign, Robert C. Egger
Cleveland State Law Review
Because the gratuitous rider situation, and others, provide a need fora clear rule as to the standard of care required of a governmental agency with regard to highway signing and because the results of present cases seem to be at great variance, this paper is presented as an attempt to set forth and clarify the existing standards and to propose a practical rule for uniform adoption. Thus, the material below is confined to a study of only the standard by which the adequacy of highway signing is measured in determining the liability of a governmental agency upon an allegation naming …
Birth And Death And Governmental Immunity, Verne Lawyer
Birth And Death And Governmental Immunity, Verne Lawyer
Cleveland State Law Review
Much as been written concerning the doctrine of governmental immunity and the doubtful justice of its application. This article is aimed toward a discussion of the role of the courts in the rise and decline of the doctrine in the United States with primary emphasis upon the reasoning behind the court decisions. The multitude of cases in which this doctrine is invoked presents a zig-zag pattern of conflict in the thinking of the courts, some of which adhere to a rigid rule of stare decisis, others of which attempt to modify and adapt the doctrine to the rapidly expanding present …
Governmental Immunity Of County Hospitals, Alice K. Henry
Governmental Immunity Of County Hospitals, Alice K. Henry
Cleveland State Law Review
The weight of authority holds that ownership and maintenance of a county hospital is a governmental function, even though the hospital is maintained for profit, and the county charges for treatment.