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Full-Text Articles in Law
Product Liability: A Commentary On The Liability Of Suppliers Of Component Parts And Raw Materials, David A. Fischer
Product Liability: A Commentary On The Liability Of Suppliers Of Component Parts And Raw Materials, David A. Fischer
Faculty Publications
The liability of suppliers of raw materials and component parts for harm caused by the product into which the materials have been incorporated poses difficult questions. When the raw material or component part is clearly defective, there is no question that the supplier is liable. Thus, where an ingredient in processed food is contaminated or where a truck tire has a flaw that causes a blowout, the supplier of the ingredient or the tire is liable. The difficult questions arise where the components are not inherently defective, but the finished product is defective because it lacks a safety feature or …
Teaching Torts Without Insurance: A Second-Best Solution, David A. Fischer, Robert H. Jerry Ii
Teaching Torts Without Insurance: A Second-Best Solution, David A. Fischer, Robert H. Jerry Ii
Faculty Publications
Teachers, scholars and practitioners have long appreciated the symbiotic relationship of torts and insurance. Indeed, the assertion that tort law and insurance law are intertwined is utterly unremarkable; many commentators have observed that tort law cannot be understood if the business of insurance and the law regulating it is ignored, and that insurance law cannot be understood if tort law is ignored. Several generations of law students have read casebooks, which in varying degrees pay homage to the connections between torts and insurance. Many law review articles and noteworthy books (or portions thereof) have plumbed the tort-insurance relationship. Although one …
The Quiet Demise Of Deference To Custom: Malpractice Law At The Millenium, Philip G. Peters Jr.
The Quiet Demise Of Deference To Custom: Malpractice Law At The Millenium, Philip G. Peters Jr.
Faculty Publications
According to conventional wisdom, tort law allows physicians to set their own standard of care. While defendants in ordinary tort actions are expected to exercise reasonable care under the circumstances, physicians traditionally have needed only to conform to the customs of their peers. However, judicial deference to physician customs is eroding. Gradually, quietly and relentlessly, state courts are withdrawing this legal privilege. Already, a dozen states have expressly rejected deference to medical customs and another nine, although not directly addressing the role of custom, have rephrased their standard of care in terms of the reasonable physician, rather than compliance with …
Successive Causes And The Enigma Of Duplicated Harm, David A. Fischer
Successive Causes And The Enigma Of Duplicated Harm, David A. Fischer
Faculty Publications
Some of the most intriguing brain teasers in tort law involve the valuation of damages for harm arising from wrongfully inflicted injury to person or property. Consider the following example: A wrongdoer shoots and instantly kills a person in the path of an avalanche that would have killed the person a few seconds later. The person's survivors bring a wrongful death action against the shooter, seeking compensation for the loss of support they would have received from the decedent if she had lived. Should the court require the shooter to pay for loss of support beyond the time that the …
Proportional Liability: Statistical Evidence And The Probability Paradox, David A. Fischer
Proportional Liability: Statistical Evidence And The Probability Paradox, David A. Fischer
Faculty Publications
Three major policies underlie tort liability: deterrence, compensation, and corrective justice. A primary justification for proportional liability is its alleged superiority in advancing the tort policy of deterrence. This Article demonstrates a significant flaw in this claim by showing that the use of tort liability in multiple cause cases involving statistical evidence in fact serves the policy of deterrence quite poorly.
Remedying Insurers' Bad Faith Contract Performance: A Reassessment, Robert H. Jerry Ii
Remedying Insurers' Bad Faith Contract Performance: A Reassessment, Robert H. Jerry Ii
Faculty Publications
This article examines the implications of the differing remedies provided by tort and contract law. Part I describes the traditional major duties owed by an insurer to an insured and outlines the remedies currently provided in most jurisdictions for the breach of these duties. Part II gives special attention to the insurer's implied duty of good faith and fair dealing; it reviews the historical origins of the duty and describes the alternative ways to categorize it. Part III argues that the duty of good faith and fair dealing should be treated as a contract duty, but that courts should administer …
Tort Claims Against Churches And Ecclesiastical Officers: The First Amendment Considerations, Carl H. Esbeck
Tort Claims Against Churches And Ecclesiastical Officers: The First Amendment Considerations, Carl H. Esbeck
Faculty Publications
Federal and state courts are increasingly confronted with the unenviable task of giving legal definition to matters affecting relations between religion and government.' Many of the lawsuits pitting church against state are surface manifestations of a more fundamental disintegration of an American public philosophy.
Recovery In Tort For Educational Malpractice: Problems Of Theory And Policy, Robert H. Jerry Ii
Recovery In Tort For Educational Malpractice: Problems Of Theory And Policy, Robert H. Jerry Ii
Faculty Publications
This Article considers whether denial of a cause of action for educational malpractice is consistent with recognized tort principles and the general policy considerations underlying those principles. After briefly summarizing three lawsuits in which the cause of action has been advocated and rejected, it explores the collision between theory and policy that permeates the decisions. The Article suggests that refusal to recognize the cause of action is incompatible with accepted tort principles, and that a cogent theory supporting nonrecognition cannot be articulated within the confines of the accepted principles and the general policies upon which those principles are based. If …
Role Of Misuse In Products Liability Litigation, David A. Fischer
Role Of Misuse In Products Liability Litigation, David A. Fischer
Faculty Publications
Misuse is puzzling. Sometimes it cuts off liability and sometimes it does not, but courts have failed to clarify exactly what sort of conduct qualifies as the type of misuse that bars recovery. Generally speaking misuse takes two forms, abnormal use and mishandling. Abnormal use comes about when a product is used for an improper purpose; mishandling comes about when a product is used for a proper purpose but in an improper manner. Under this definition defendants can claim that virtually any unusual handling or use of a product constitutes misuse. Yet courts will not always accept this characterization. They …
Products Liability--Functionally Imposed Strict Liability, David A. Fischer
Products Liability--Functionally Imposed Strict Liability, David A. Fischer
Faculty Publications
Many manufacturers and insurance companies claim that a products liability crisis exists. This is evidenced by soaring products liability insurance rates. They express the fear that as insurance becomes unavailable or prohibitively expensive, useful products will be withheld from the market and some manufacturers may even be forced out of business. Such critics of the tort system are calling for modifications of the common law in order to give greater protection to manufacturers. A more drastic approach, vigorously championed by Professor Jeffrey O'Connell, calls for total or partial abolition of the tort system and substitution with various forms of no-fault …
Products Liability--Applicability Of Comparative Negligence, David A. Fischer
Products Liability--Applicability Of Comparative Negligence, David A. Fischer
Faculty Publications
Products liability and comparative negligence are two very rapidly developing fields of tort law. In recent years, the vast majority of courts have adopted strict liability for harm caused by defective products. At the same time, the doctrine of comparative negligence has changed almost overnight from a doctrine that had been accepted by only a handful of jurisdictions into what is now the majority approach in this country.
Products Liability--Applicability Of Comparative Negligence To Misuse And Assumption Of The Risk, David A. Fischer
Products Liability--Applicability Of Comparative Negligence To Misuse And Assumption Of The Risk, David A. Fischer
Faculty Publications
A trend is emerging to apply comparative negligence in strict products liability actions. This creates two serious difficulties. First is the question of how to compare the negligence of one party with the strict liability of the other party.
Fraudulently Induced Consent To Intentional Torts, David A. Fischer
Fraudulently Induced Consent To Intentional Torts, David A. Fischer
Faculty Publications
This article will first proceed with a brief discussion of the nature of consent, the origin and application of the Restatement rule, and the exceptions to the rule which limit its application. A detailed analysis of the cases will follow.