Law Commons^™

Eastern Airlines V. Floyd: Airline Passengers Denied Recovery For Emotional Distress Under The Warsaw Convention, Lisa M. Fromm

Akron Law Review

This Note reviews prior district court and appellate court decisions regarding the translation and scope of "bodily injury." Next, the Note discusses the Court's analysis in Floyd, including the arguments for and against allowing recovery for emotional distress under the Warsaw Convention. Finally, the Note examines the ramifications of the Floyd Court's interpretation and the uncertainties which remain in this area of the law.

Cipollone V. Liggett Group, Inc.: A Preemptive Lucky Strike?, Christopher J. Gagin

Akron Law Review

The gravamen of this casenote will focus on the Court's preemption analysis. Included in this examination will be the legislative and economic forces underlying the Court's conclusion that the 1965 Federal Cigarette Labeling and Advertising Act does not preempt all state common law tort actions against cigarette manufacturers.

Tortious Necessity; The Privileged Defense, John P. Finan, John Ritson

Akron Law Review

The similarities between the laws of torts in the United States of America and England enable one to make an interesting comparison between the two sets of rules applicable to the general defense of necessity. Although both tort systems are derivatives to a greater or lesser extent of the English common law, they have inevitably developed their own individual jurisprudence over the years. Concepts have been refined and extended to produce significant and curious differences which provide an interesting exercise in legal forensic. The similarities of the two tort systems make a comparative study possible, and the differences provide the …

Jenkins V. James B. Day & Co.: A New Defense Of State Tort Law Against Federal Preemption - Is It Legitimate?, Richard J. Scislowski

Akron Law Review

This Note will recount the general law of federal preemption and its recent developments. Next, it will describe the Jenkins case, the facts leading to the litigation, the prior procedure in the lower courts, and the Ohio Supreme Court's reasoning in the opinion. Lastly, this Note will critically evaluate the court's new argument supporting the preservation of state tort claims in light of familiar principles of statutory construction.

Are We Protected From Hmo Negligence?: An Examination Of Ohio Law, Erisa Preemption, And Legislative Initiatives, Amy K. Fehn

Akron Law Review

This comment discusses the various theories of HMO liability that are emerging in other jurisdictions as well as the extent to which current Ohio law bars several of these theories. In addition, this comment also discusses ERISA's preemption of state laws related to HMO liability. Finally, this comment analyzes legislative initiatives and other forms of regulation aimed at protecting consumers from HMO abuses .

Sanders V. Sears-Page, 131 Nev. Adv. Op. 50, Scott Lundy

Nevada Supreme Court Summaries

The Court held that the district court erred in deciding not to strike an empaneled juror whose background implied bias, but who promised he could remain impartial. Moreover, the Court held the district court erred in allowing challenges for cause while the juror was present, and by allowing newly discovered evidence to be entered into evidence on the final day of trial.

Estates Of Morgan V. Fairfield Family Counseling Center; Application Of Traditional Tort Law Post-Tarasoff, Todd Walker M.D.

Akron Law Review

This Note examines the Ohio Supreme Court’s reasoning in Morgan and the legal obligations of the psychotherapist. Section II delineates the background in this area of the law. Section III presents the statement of the case. Finally, Section IV analyzes the Court’s decision. Essentially, the questions to be discussed are (1) whether a duty is owed; (2) if so, to whom that duty is owed; (3) how to discharge that duty; (4) what is the applicable standard of care; and (5) why is it fair (or not) to hold the psychotherapist responsible for consequences that only indirectly affect the patient? …

Chenault V. Huie: Denying The Existence Of A Legal Duty Between A Mother And Her Unborn Child, Edward Sylvester

Akron Law Review

When an unborn child is injured by its mother, and subsequently born alive, who should be protected? The Court of Appeals of Texas, in Chenault v. Huie, feared the slippery slope, and gave deference to the mother when it denied the existence of a legal duty between mother and fetus. Few cases have directly addressed a child’s tort action against her mother for prenatal substance abuse that resulted in injuries sustained while en ventre sa mere.

This Note discusses the general background of a child’s right to sue for fetal injury and the liability of the individuals that cause the …

Mcmullen V. Ohio State University Hospitals: This Isn't Vegas, But Don't Tell The Courts - Playing With Percentages And The Loss-Of-Chance Doctrine, Christopher Paul Reuscher

Akron Law Review

Part II of this note presents a background on the history of, and alternative theories to, the loss-of-chance doctrine. Part III presents the facts, procedural history, holding, and reasoning of the case. Part IV scrutinizes and assesses the court’s holding, the various public policy implications, and the future effect on medical malpractice claims. Finally, Part V concludes the paper. Essentially, the question is whether the loss-of-chance doctrine will apply when a plaintiff proves a direct causal connection between the injury and the defendant’s negligent act.

Culpability Evaluations In The State Supreme Courts From 1977 To 1999: A "Model" Assessment, Dannye Holley

Akron Law Review

A key premise of this article is that a fair assessment of the performance of state supreme court judges with regard to culpability evaluations must begin by differentiating among the states based upon the relative quality of statutory guidance available to each court on this crucial substantive criminal law issue. In light of the above discussion defining culpability evaluation and legislative action with regard thereto, this article categorizes states based on relative improvement in their statutory culpability evaluation scheme: first are those states with a set of hierarchical culpability concepts, which are specifically defined in relation to types of objective …

Common Ignorance: Medical Malpractice Law And The Misconceived Application Of The “Common Knowledge” And “Res Ipsa Loquitur” Doctrines, Amanda E. Spinner

Touro Law Review

No abstract provided.

Distinguishing The Concept Of Strict Liability For Ultra-Hazardous Activities From Strict Products Liability Under Section 402a Of The Restatement (Second) Of Torts: Two Parallel Lines Of Reasoning That Should Never Meet, Charles E. Cantu

Akron Law Review

The cornerstone of tort law in our Anglo-American system of jurisprudence is based upon three generally accepted principles. The first is that by awarding any individual monetary damages after their injury, we can make them whole, and the second is the concept of the reasonable prudent person. The third, and the focal point of this article, is that liability is imposed, and the corresponding right to recovery is created, not because of the fact that the plaintiff is injured, but because the injury is the result of the defendant’s fault.

Fault, as each first year law student is quick to …

Person V. Potential: Judicial Struggles To Decide Claims Arising From The Death Of An Embryo Or Fetus And Michigan's Struggle To Settle The Question, Dena M. Marks

Akron Law Review

“Death is well understood; it’s life that isn’t.” We recognize death, but state by state, courts struggle to understand life when called on to determine whether their states’ wrongful death acts apply after the death of an embryo or fetus. These struggles arise because, for the most part, state legislatures have failed to clarify whether a cause of action may be maintained under their wrongful death acts for the death of an embryo or fetus. This failure has lead to inconsistent and unfair results, often allowing the tortfeasor to benefit from causing the greater harm of death, when the tortfeasor …

"Procedural Swift": Complex Litigation Reform, State Tort Law, And Democratic Values, Joellen Lind

Akron Law Review

My discussion is made in the spirit of an essay and proceeds in four major parts. Part II, Diversity Jurisdiction and Democracy, describes the problematic connection between democratic values and diversity jurisdiction. It explains that when Congress deploys minimal diversity to make access to federal courts available in class action and mass tort cases there are potential risks to the role of states in promoting the democratic values of political participation, transparency, and accountability. Part III, Complex Litigation—The Rationale for Intrusion relates these issues to the specific reforms in complex litigation recently initiated by Congress. Part IV, Tilting the Playing …

The Fiduciary Duty Of Care: A Perversion Of Words, William A. Gregory

Akron Law Review

This article begins by defining the problem of conflation of the duty of care and the duty of loyalty. In Part I the Mothew case is discussed. The confusion between the duty of loyalty and the duty of care is clearly explained by the court. Duty of care is a negligence concept, whereas duty of loyalty is a breach of the duty of loyalty. Part II is a discussion of the Delaware corporate law cases which ignore established legal concepts and jumble together negligence and intent. Part III is a discussion of the confusing cases called “fiduciary breach.”

Sosa V. Alvarez-Machain And The Alien Tort Statute: How Wide Has The Door To Human Rights Litigation Been Left Open?, Carolyn A. D'Amore

Akron Law Review

This Note will explore the Alien Tort Statute from its origin in 1789 to the present interpretation of the Sosa Court. Part II will focus on the Framers’ language and intent, discuss the long lull in the use of the ATS and the impact of Erie R. Co. v. Tompkins, and examine a line of cases that reawakened the ATS in the 1980s. Part III explores the elements of the Court’s decision in Sosa v. Alvarez-Machain: the facts that gave rise to an ATS claim, the plurality’s denial of jurisdiction, its dicta regarding potential application of the ATS, and Justice …

A Return To Reasonability: Modifying The Collateral Source Rule In Light Of Artificially Inflated Damage Awards, J. Zachary Balasko

Washington and Lee Law Review Online

No abstract provided.

Summary Of C. Nicholas Pereos, Ltd. V. Bank Of America, N.A., 131 Nev. Adv. Op. 61553 (July 2, 2015), Stacy Newman

Nevada Supreme Court Summaries

The Court considers an appeal from a district court summary judgment in a tort case concerning losses sustained due to unauthorized activity in a customer’s bank account. The Court reversed the grant of summary judgment because genuine issues of material fact exist regarding whether respondent Bank of America acted reasonably in delivering bank statements, and also because the appellant’s suit was not time barred under a one year period of repose.

Newsroom: Logan On Bp Settlement, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Celebrity Newsgathering And Privacy: The Transformation Of Breach Of Confidence In English Law, John D. Mccamus

Akron Law Review

In recent years, a series of leading cases have returned to consider these questions. The implications of these decisions for the current shape of English law relating to civil redress for privacy invasion are the subject of this article. Surprisingly, perhaps, English courts have remained steadfast in their refusal to recognize invasion of privacy as a tort and in doing so have quite explicitly declined to rely on American experience in this area. Rather, English courts have preferred to resist innovation of this kind and leave the difficult question of privacy law reform to Parliament. On a number of recent …

Remedies, Neutral Rules And Free Speech, David F. Partlett, Russell L. Weaver

Akron Law Review

In general, plaintiffs’ ability to obtain substantial damages against media defendants is directly proportional to their ability to obtain so called “publication damages.”...In future cases, the courts may be forced to deal more straightforwardly with the First Amendment issues. In Sanders, the court avoided those issues because they were not raised. As a result, the court left open the possibility that, even in an intrusion case a media defendant might be allowed to show that the invasion of privacy was “justified by the legitimate motive of gathering the news.”...Moreover, the very existence of the litigation undoubtedly has a negative impact …

What Makes The Collateral Source Rule Different?, Michael B. Kelly

Akron Law Review

Tort liability forces parties engaged in risk-producing activities to internalize the costs that the activities impose on those adversely affected by the risks they create. Rational parties should take precautions to reduce those risks rather than pay the costs the risks cause – at least up to the point that further reductions would cost more than the harms they would prevent. How could reforms that reduce liability, and thus force parties to internalize a lower portion of the costs suffered as a result of the risks they create, produce a decrease in fatal accidents? Part I below briefly considers this …

A Cap On The Defendant's Appeal Bond?: Punitive Damages Tort Reform, Doug Rendleman

Akron Law Review

This article begins in Part II with background about appeal bonds and the way their amounts were set before tort reform. Since the defendant’s cost of an appeal bond is an expense and, perhaps, an impediment to its appeal, the defendant will seek ways to surmount, reduce, or avoid the impediment. Part II then uses Pennzoil v. Texaco to illustrate two of defendants’ strategies for staying collection on a judgment pending review in lieu of posting a huge appeal bond—obtain a federal injunction and file for bankruptcy. This article shows why neither strategy is sufficient: the federal court’s abstention doctrines …

Let The Damages Fit The Wrong: An Immodest Proposal For Reforming Personal Injury Damages, Elaine W. Shoben

Akron Law Review

Rather than comment on the wisdom of piecemeal reform, this article questions the premise of compensatory damages and takes the position that make-whole recovery is an unnecessary consequence of liability and does not necessarily achieve just results...I propose that civil damages should fit the wrong.6 Compensatory damages should abandon the make-whole premise and be measured by three factors: the degree of the wrongfulness of the tort, the severity of the harm, and the extent to which the risky conduct was directed at the plaintiff—which I call connectedness.

The Logic Of Legal Remedies And The Relative Weight Of Norms: Assessing The Public Interest In The Tort Reform Debate, Irma S. Russell

Akron Law Review

Part II of this essay examines the need to identify, measure, and compare the interests at stake in any legal contest with rigorous consistency. It also notes the corollary principle of proportionality as a limiting principle that guards against foolish or destructive consistency. Part III explores the natural hierarchy among legal norms and the weight accorded various types of interests that deserve legal protection. Part IV considers the system of measurement presented by the current tort reform movement, exploring the failure of many proponents of tort reform to account for or accommodate the tradition of a more generous and protective …

Statutory Caps And Judicial Review Of Damages, Colleen P. Murphy

Akron Law Review

In this article, I examine two procedural questions arising from the use of statutory caps. First, how should a statutory cap affect judicial review of awards for possible excessiveness? Second, when a legislature has imposed a total cap on a combination of different types of damages (such as on the total of punitive and compensatory damages or on the total of economic and noneconomic damages), how should courts allocate multiple awards to conform to the cap?...With respect to multiple awards that exceed a total cap on different types of damages, I suggest that the appropriate way to conform multiple awards …

Restriction Of Tort Remedies And The Constraints Of Due Process: The Right To An Adequate Remedy, Tracy A. Thomas

Akron Law Review

This article identifies another counterbalancing power that checks the legislative ability to restrict tort remedies through tort reform: the due process clauses of both state and federal constitutions. Pursuing this uncharted line of inquiry, this article argues that due process guarantees provide a restraint on the tort remedy stripping provisions that deny plaintiffs their fundamental right to a meaningful remedy...Pulling together the disparate strands of legal rules in existing case law, the article develops a cohesive theory of due process protection for the right to an adequate remedy. State court decisions invalidating tort reform remedy restrictions appear analytically scattered and …

The Struggle Over Tort Reform And The Overlooked Legacy Of The Progressives, Rachel M. Janutis

Akron Law Review

In attempting to distinguish the 1950s and 1960s tort expansion from the current tort retraction, the scholarly account depicts the tort expansion as primarily a judicial movement led by legal academics devoid of any self-interest. In contrast, this account holds out the current tort retraction as a mainly political movement driven by the economic self-interest of its proponents...First, contemporary tort reform, rather than solely being a reaction to tort expansion in the 1950s and 1960s, is part of a continuing debate between corporate, professional and insurance interests on one side and consumer interests and the trial bar on the other …

A Survey And Some Commentary On Federal "Tort Reform", Michael P. Allen

Akron Law Review

In Part I, I survey the potential types of federal tort reform. While many of these types of reform measures could be adopted at the state level as well as nationally, some important ones could not. It is on those uniquely federal measures that I focus much of my attention. This section also considers the interrelationships of the branches of government as well as the political and legal advantages and disadvantages of various types of reform. In Part II, I discuss some of the legislation adopted in the wake of the September 11th terrorist attacks. That legislation provides a useful …

Introduction: Fourth Remedies Discussion Forum, David F. Partlett, Russell L. Weaver

Akron Law Review

Introduction to the articles in this section...Three of the articles provide an overview on the subject...The next two articles suggest the desirability of a historical approach to tort reform...A couple of articles focus on the problem of statutory damage and appeal bond caps...A couple of articles question the efficacy and legitimacy of prior tort reforms, both legislative and judicial...The last article in this section, Professor Michael Kelly’s What Makes the Collateral Source Rule Different?, analyzes Paul H. Rubin and Joanna M. Sheperd’s working paper on a “correlation between tort reforms and the rate of fatal accidents in the states which …