Law Commons^™

Individual And Institutional Responsibility: A Vision For Comparative Fault In Products Liability, Mary J. Davis

Law Faculty Scholarly Articles

Since the adoption of strict products liability over the last thirty years, two problems of scope have received the most attention: how to define product defectiveness to which the liability attaches, and how to limit the potentially limitless liability through defenses. Much like the industries of the nineteenth century, product liability defendants of the twentieth century turned to the plaintiff's conduct as a main line of defense. Blaming the victim has historically been a powerful tool for tort defendants to evade responsibility for their conduct. This Article proposes that the defenses based on victim fault that have evolved in our …

The Constitutional Duty Of Teachers To Protect Students: Employing The "Sufficient Custody" Test, John W. Waters

Kentucky Law Journal

No abstract provided.

A Punitive Damages Overview: Functions, Problems And Reform, David G. Owen

Faculty Publications

No abstract provided.

The Draft Ali Product Liability Proposals: Progress Or Anachronism?, Oscar S. Gray

Faculty Scholarship

No abstract provided.

A Paradigm For Sexual Harassment: Toward The Optimal Level Of Loss, Marie T. Reilly

Journal Articles

This article proposes a paradigm that draws from the common-law rule of negligence. It defines actionable sexual conduct in the workplace in terms of the cost of precautionary conduct and the increased safety such precaution would have yielded. Like the rule of negligence, the proposed paradigm creates incentives for men and women to take steps to prevent sexual conduct loss to the point at which the cost of an additional increment of precaution is equal to the value of the reduction in risk of loss. This point is the optimal level of precaution. After this point, additional precaution might further …

Helling V. Mckinney And Smoking In The Cell Block: Cruel And Unusual Punishment?, Lisa Gizzi

American University Law Review

No abstract provided.

Universal Health Care And The Continued Reliance On Custom In Determining Medical Malpractice, James A. Henderson Jr., John A. Siliciano

Cornell Law Faculty Publications

No abstract provided.

Fundamental Rights In The "Gray" Area: The Right Of Privacy Under The Minnesota Constitution, Michael K. Steenson

Faculty Scholarship

This Article explores the constitutional aspects of Minnesota privacy law. Part II briefly explains federal privacy law to provide a baseline for consideration of privacy law in Minnesota. Part III examines the right of privacy as it has evolved in the Minnesota common law. Part IV evaluates the Minnesota Supreme Court's application of federal privacy standards and then examines the court's decisions that outline the right of privacy under the Minnesota Constitution. Part V concludes by raising questions concerning the potential application of the court's concept of privacy under the Minnesota Constitution as applied to two areas: same-sex marriages and …

Torts-- Federal Preemption Of State Common Law-- Federal Cigarette Labeling & Advertising Act, Elizabeth Price Foley, Elizabeth C. Price

Faculty Publications

This case note examining Supreme Court's landmark preemption decision in Cipollone v. Liggett Group.

Sharing Accountability For Breast Implants: Strict Products Liability And Medical Professionals Engaged In Hybrid Sales/Service Cosmetic Products Transactions, Richard L. Cupp, Jr.

Florida State University Law Review

No abstract provided.

Liability For 'Knowing' Transmission Of Hiv: The Evolution Of A Duty To Disclose, Jody B. Gabel

Florida State University Law Review

No abstract provided.

The Evolution And Status Of The Contributory Negligence Defense To Medical Malpractice Actions In North Carolina - Mcgill V. French, Lucinda L. Fraley

Campbell Law Review

This Note will examine the defense of contributory negligence, the prerequisites for asserting the defense, and the underlying policy reasons which may explain the rampant growth of the defense and its alleged recent decline. Next, this Note will evaluate the circumstances which have given rise to contributory negligence as well as those circumstances that do not rise to the level of contributory negligence. Finally, this Note will analyze the North Carolina Supreme Court's decision to permit the defense when the patient fails to follow the physician's advice and instructions.

Individual And Institutional Responsibility: A Vision For Comparative Fault In Products Liability, Mary J. Davis

Villanova Law Review

No abstract provided.

Defamation By Will: Theories And Liabilities, 27 J. Marshall L. Rev. 749 (1994), Paul T. Whitcombe

UIC Law Review

No abstract provided.

Review Of: M. Stuart Madden, Toxic Torts Deskbook, Laura Marron

RISK: Health, Safety & Environment (1990-2002)

M. Stuart Madden, Toxic Torts Deskbook (Lewis Publishers 1992). Acknowledgements, case index, general index, notes, preface. LC 91-48238; ISBN 0- 87371-508-X. [230 pp. Cloth $69.95 domestic, $84.00 elsewhere. 2000 Corporate Boulevard, NW, Boca Raton FL 33431.]Review of:

Trains, Trucks, Trees And Shrubs: Vision-Blocking Natural Vegetation And A Landowner's Duty To Those Off The Premises, James T. R. Jones

Villanova Law Review

No abstract provided.

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 …

Avoiding Takings "Accidents": A Tort Perspective On Takings Law, Eric Kades

University of Richmond Law Review

Viewing the Takings Clause of the Fifth Amendment as a form of insurance appeals to our intuition. The government, like fire, does not often "take" property, but when faced with extraordinary risk property owners naturally desire compensation. Recent scholarship, however, has dissolved the attractiveness of this perspective. This literature, through economic analysis, claims that the Takings Clause should be repealed and replaced with private takings insurance. This is the "no-compensation" result.

A New Predicament For Physicians: The Concept Of Medical Futility, The Physician's Obligation To Render Inappropriate Treatment, And The Interplay Of The Medical Standard Of Care, Eric M. Levine

Journal of Law and Health

Part II of this article discusses the concept of futility and reviews various proposed approaches to defining "futility". This article then shows how personal value judgments play an integral part in determining futility under virtually all of these approaches. Part II concludes that a decision that treatment is futile should not be based on the individual values of only the patient or physician under the shared decisionmaking model of the physician-patient relationship. Part III tackles the issue whether a physician must offer or continue treatment deemed "medically and ethically inappropriate." Part III first reviews common law doctrines governing the physician-patient …

Comments To The Reporters And Selected Members Of The Consultative Group, Restatement Of Torts (Third): Products Liability, Howard C. Klemme

Publications

No abstract provided.

Proposed Revisions Concerning Products Liability Caveat Vendor, James J. White

Other Publications

Both industrial sellers and consumer sellers should look at proposals for revision of the sections relating to warranty liability in Article 2. Particularly important are the sections on warranty, express and implied, on third-party liability, disclaimers and limitation of remedy, notice, and statute of limitations. Using current law as a baseline, revised Article 2 increases sellers' liability in at least half a dozen ways and decreases it in no significant way.

Annual Survey Of Virginia Law: Charitable Immunity: What Price Hath Charity?, Barbara Ann Williams

University of Richmond Law Review

It is well settled in Virginia that charitable organizations are immune from liability arising from tort claims asserted by persons who accept the organizations' charitable benefits. The determination of whether a plaintiff is the beneficiary of charitable bounty is a legal issue for the court to decide. Although most older Virginia cases discuss charitable immunity as it applies to hospitals, the doctrine has been applied to many other types of charitable organizations.

The Recycling, Dismantling, And Destruction Of Goods As A Foreseeable Use Under Section 402a Of The Restatement (Second) Of Torts, Charles E. Cantú

Faculty Articles

The past thirty years have witnessed the significant expansion and transformation of products liability law. While much of the initial confusion regarding the application and interpretation of Section 402A of the Restatement (Second) of Torts has been settled, some problems remain.

One of these problem areas involves the allocation of liability for injuries resulting from the destruction, dismantling, and recycling of products whose useful lives have come to an end. In this situation, the law has evolved to provide a rule that imposes no liability upon the manufacturer. The courts have reasoned that individuals engaged in reclamation procedures are not …

Prior Written Notice Statutes In New York State: The Resurrection Of Sovereign Immunity, Lewis J. Lubell

Touro Law Review

No abstract provided.

Purposeful Approach To Products Liability Warnings And Non-English-Speaking Consumers Notes, Thomas H. Lee

Faculty Scholarship

This Note examines the problems associated with the duty-towarn doctrine and the non-English-speaking consumer or product user. Part II explains the current duty-to-warn doctrine, emphasizing when a warning is required, to whom the warning must be directed, and how the warning must be given. Next, Part III examines state and federal language-specific statutes, constitutional provisions, and case holdings, emphasizing the most recent cases addressing product warning requirements for non-English-speaking plaintiffs. Part IV then outlines the risks to both product sellers and consumers of continuing the current haphazard approach and suggests a statutory solution to the doctrinal confusion, drawing from the …

The Emerging Article 2: Remedies For Breach Of The Contract For Sale, Richard E. Speidel, James J. White

Other Publications

Article 2, Sales is being revised by a Drafting Committee of the National Conference of Commissioners on Uniform State Laws. To date, the Drafting Committee has held eight meetings and two more are scheduled for early 1995 . The first reading of revised Article 2 occurred at the annual meeting of NCCUSL in August, 1994. A target completion date for the Article 2 project is August, 1996 .

Annotated Torts Bibliography, Nancy Levit

Faculty Works

No abstract provided.

Joinder Of Tort Claims In Divorce Actions, Barbara Glesner Fines

Faculty Works

No abstract provided.

Solving The Judgment-Proof Problem, Kyle D. Logue

Articles

A tortfeasor who cannot fully pay for the harms that it causes is said to be "judgment proof." Commentators have long recognized that the existence of judgment-proof tortfeasors seriously undermines the deterrence and insurance goals of tort law. The deterrence goal is undermined because, irrespective of the liability rule, judgment-proof tortfeasors will not fully internalize the costs of the accidents they cause. The insurance goal will be undermined to the extent that the judgment-proof tortfeasor will not be able to compensate fully its victims and that first-party insurance markets do not provide an adequate response. Liability insurance can ameliorate these …