Law Commons^™

Perpetuating Injustice: Analyzing The Maryland Court Of Appeals’S Refusal To Change The Common Law Doctrine Of Contributory Negligence, Andrew White

Maryland Law Review

No abstract provided.

Nevor V. Moneypenny Holdings, Llc: Availability Of Prejudgment Interest For Mixed Maritime Law And Jones Act Claims, Adam S. Bohanan

Ocean and Coastal Law Journal

In maritime personal injury cases, courts have traditionally seen prejudgment interest as part of the compensation due to a prevailing plaintiff. The goal of ensuring the fullest compensation possible has long been recognized as a basic principle of admiralty law. However, federal appellate courts are split over whether to award prejudgment interest on a mixed claim under general maritime law and the Jones Act. This Note explores this issue in Nevor v. Moneypenny Holdings, LLC, which was the first time the question had been raised in the First Circuit. The Fifth and Sixth Circuits have held that because prejudgment interest …

Judicial Application Of Ohio's Comparative Negligence Statute, Michael J. Olah, Paul F. Meyerhoefer

Akron Law Review

In the case of Wilfong v. Batdorf the Ohio Supreme Court reexamined the issue of the retroactive application of Ohio's comparative negligence statute. Ohio's statute abolishing the defense of contributory negligence in a tort action was passed with an effective date of June 20, 1980, and the court faced the task of deciding whether comparative fault measurements could be used in an action arising prior to the effective date of the statute, but not coming to trial until after the effective date of the act. Previously the court had the opportunity to examine this issue in the case of Viers …

فعــــل المضــــرور الموجــــب للمساءلــــة فــي ضــوء دعــــاوى المسئوليــة التقصيريــة: الطبيعــة القانونيــة و الخصائــص العامــة (دراســــة تحليليــــة مقارنــــة), Mousa Ruzaiq, Mashael Alhajeri

Mashael Alhajeri

No abstract provided.

Apportioning Liability In Maryland Tort Cases: Time To End Contributory Negligence And Joint And Several Liability, Donald G. Gifford, Christopher J. Robinette

Faculty Scholarship

The Article presents a comprehensive proposal for assigning liability in tort cases according to the parties’ respective degrees of fault. The authors criticize the Court of Appeals of Maryland’s recent decision in Coleman v. Soccer Association of Columbia declining to abrogate contributory negligence, particularly the court’s notion that it should not act because of the legislature’s repeated failure to do so. The Article provides a comprehensive analysis of the advantages and disadvantages of comparative fault, including its effect on administrative costs, claims frequency, claims severity, insurance premiums, and economic performance. The authors propose the legislative enactment of comparative fault and …

Controversial Defenses To Legal Malpractice Claims: Are Attorney-Experts Being Asked To Be Advocates?, David S. Caudill

St. Mary's Journal on Legal Malpractice & Ethics

Attorney-experts in legal malpractice litigation are like many other experts. Although easily distinguishable from experts offering science based testimony, attorney expertise is similar to that of witnesses offering experience-based testimony, and very much like the expertise of a physician in a medical malpractice case. An attorney-expert is, however, somewhat unique among experts in terms of the type of expertise offered, the inherent risk that the expert's testimony will invade the province of the judge or jury, and, I believe, the risk of over-testifying. First, there is a problem of defining the attorney-expert's "expertise" to ensure that the expert is not …

Apportioning Liability In Maryland Tort Cases: Time To End Contributory Negligence And Joint And Several Liability, Christopher Robinette

Christopher J Robinette

Apportioning Liability In Maryland Tort Cases: Time To End Contributory Negligence And Joint And Several Liability, Donald G. Gifford, Christopher J. Robinette

Donald G Gifford

The Article presents a comprehensive proposal for assigning liability in tort cases according to the parties’ respective degrees of fault. The authors criticize the Court of Appeals of Maryland’s recent decision in Coleman v. Soccer Association of Columbia declining to abrogate contributory negligence, particularly the court’s notion that it should not act because of the legislature’s repeated failure to do so. The Article provides a comprehensive analysis of the advantages and disadvantages of comparative fault, including its effect on administrative costs, claims frequency, claims severity, insurance premiums, and economic performance. The authors propose the legislative enactment of comparative fault and …

The Death Of The Common Law: Judicial Abdication And Contributory Negligence In Maryland, Donald G. Gifford

Donald G Gifford

The issue of how to handle a victim’s own contributory negligence that combines with the negligence of a tortfeasor in causing harm is one of the most important, if not the most important, issue in all of tort law. Forty-six states now apply some version of comparative fault that holds the defendant liable for its negligence even when the plaintiff is also careless, but reduces the award in proportion to the plaintiff’s degree of fault when compared with that of the defendant. In contrast, the Maryland Court of Appeals in Coleman v. Soccer Association of Columbia recently refused again to …

Comparative Fault And Strict Products Liability: Are They Compatible?, C. R. Hickey

Pepperdine Law Review

No abstract provided.

Another Citadel Has Fallen - This Time The Plaintiff's. California Applies Comparative Negligence To Strict Products Liability, Thomas G. Gehring

Pepperdine Law Review

No abstract provided.

Allocation Of Responsibility After American Motorcycle Association V. Superior Court, Erwin E. Adler

Pepperdine Law Review

In its landmark case of Li v. Yellow Cab Co., the California Supreme Court judicially adopted the doctrine of comparative negligence in an action involving a plaintiff and a single defendant. The court in Li specifically avoided making any decision concerning the numerous issues which would be involved in a multi-party action: the relationship of multiple defendants with one another, the right of one defendant to join others for the purpose of sharing payment of the judgment, the respective responsibilities of such parties for the judgment (including those insolvent, partially solvent or possessing an immunity), and the procedure for the …

The Death Of The Common Law: Judicial Abdication And Contributory Negligence In Maryland, Donald G. Gifford

Maryland Law Review Online

The issue of how to handle a victim’s own contributory negligence that combines with the negligence of a tortfeasor in causing harm is one of the most important, if not the most important, issue in all of tort law. Forty-six states now apply some version of comparative fault that holds the defendant liable for its negligence even when the plaintiff is also careless, but reduces the award in proportion to the plaintiff’s degree of fault when compared with that of the defendant. In contrast, the Maryland Court of Appeals in Coleman v. Soccer Association of Columbia recently refused again to …

Through The Backdoor: Manipulating Assumption Of Risk And Contributory Negligence To Apply In Texas Nonsubscriber Causes Of Action., Lara Brock, Javier Espinoza

The Scholar: St. Mary's Law Review on Race and Social Justice

Texas’s nonsubscriber law precedence and interpretation directly conflict with the plain language and legislative intent of Texas Labor Code § 406.033. The purpose of § 406.033 is to protect injured workers and to encourage employers to subscribe to the state’s workers’ compensation system. Texas, however, allows employers to opt-out. Employers who elect to opt out of the workers’ compensation system are called “nonsubscribers.” By making this decision, nonsubscribers save on the cost of paying premiums for worker’s compensation, but potentially expose themselves to total liability against injured employees who can prove his or her employer breached one of their defined …

The Rise Of Directed Verdict: Jury Power In Civil Cases Before The Federal Rules Of 1938, Renée Lettow Lerner

GW Law Faculty Publications & Other Works

Jury practice in the state and federal courts evolved dramatically in the nineteenth and early twentieth century. Around the time of the ratification of the Bill of Rights in 1791, important legal thinkers praised the civil jury as a bulwark against judicial tyranny. By the advent of the Federal Rules of Civil Procedure in 1938, many commentators regarded the civil jury as an antiquated nuisance. Diminishment of the jury and open exercise of judicial power, encouraged in the Federal Rules by procedures such as summary judgment, would not have been possible without earlier changes in jury practice. Two major changes …

Comparative Negligence And Mitigation Of Damages: Two Sister-Doctrines In Search Of Reunion, Yehuda Adar Dr.

Yehuda Adar Dr.

This article addresses a neglected problem in Anglo-American tort law, namely, the apparent inconsistency between comparative negligence and mitigation of damages. Notwithstanding the now unquestionable victory of comparative negligence over the old all-or-nothing doctrine of contributory negligence, the doctrine of mitigation (or avoidable consequences) seems to retain its doctrinal integrity. Under comparative negligence, any loss that the victim could have avoided is apportioned between the victim and the tortfeasor. In contrast, under the doctrine of mitigation, a tort victim can never recover for any element of loss that could have been avoided. The apparent tension between these two loss allocation …

Victim Fault And Victim Strict Responsibility In Anglo-American Tort Law, Kenneth W. Simons

Faculty Scholarship

Anglo-American tort doctrine pays considerable attention to the conduct of the victim as well as the conduct of the injurer. A symmetrical standard of care for victims and injurers is also common: just as injurers are liable for failure to use reasonable care, victims frequently have their compensation reduced insofar as they, too, failed to use reasonable care. The advent of comparative fault, replacing the all-or-nothing rule of contributory negligence, has made the symmetrical approach seem inexorable and unremarkable.

But symmetry is usually the wrong perspective for the legal system to take towards victim and injurer conduct. That perspective also …

Virginia Should Abolish The Archaic Tort Defense Of Contributory Negligence And Adopt A Comparative Negligence Defense In Its Place, Peter N. Swisher

Law Faculty Publications

The purpose of this essay is to argue that the time has now come for Virginia, by judicial or legislative action, to abolish its archaic common law tort defense of contributory negligence and replace it with a comparative negligence defense. Adopting a comparative negligence defense would more equitably and more fairly recognize and apportion damages according to the bedrock underlying tort legal principles of accountability, deterrence, and distribution of loss.

Respondent Superior As An Affirmative Defense: How Employers Immunize Themselves From Direct Negligence Claims, J. J. Burns

Michigan Law Review

Most courts hold that where a defendant employer admits that it is vicariously liable for its employee's negligence, a plaintiff's additional claims of negligent entrustment, hiring, retention, supervision, and training must be dismissed. Generally, courts apply this rule based on the logic that allowing a plaintiff's additional claims adds no potential liability beyond that which has already been admitted. Furthermore, since the additional claims merely allege a redundant theory of recovery once a respondeat superior admission has been made, the prejudicial evidence of an employee's prior bad acts which often accompanies direct negligence claims against employers can be excluded without …

Justice Carter, Contributory Negligence And Wrongful Death: A Call To Get Rid Of A “Bad Law With Bad Results”, Michael A. Zamperini

Publications

No abstract provided.

The Extrapolation Of Defendants' Liabilities Under Cplr Article 16 Where The Plaintiff Is Contributorily Negligent: An Update Toward Resolving A Perceived Ambiguity Of Cplr 1601, Hon. Mark Dillon

Hon. Mark C. Dillon

This article follows the almost century-long development of pure comparative negligence in New York leading to the enactment of CPLR Article 16, which limits a defendant's liability in a multi-tortfeasor action to that defendant's equitable percentage of negligence if 50% or les, subject to exceptions. The article provides an answer to an ambiguity in Article 16 that has existed since its enactment in 1986, of whether a plaintiff's contributory negligence in any action should be deducted from the total percentages of negligence assessed by a trier of fact, and if so, the mechanism by which the percentages of remaining parties …

Contributory Negligence, Technology, And Trade Secrets, Elizabeth A. Rowe

Elizabeth A Rowe

In tort law, the doctrine of contributory negligence captures conduct by the plaintiff which falls below the standard to which he should conform for his own protection. Whether one has been contributorily negligent is determined by an objective standard of reasonableness under the circumstances. This Article, for the first time, applies these contributory negligence principles to trade secret law. It draws upon this doctrine to frame and analyze a problem posed by modern technology. The very technological tools in use today that increase the efficiency with which companies do business create challenges for trade secret protection. They make trade secrets …

What Are We Comparing In Comparative Negligence?, Paul H. Edelman

Vanderbilt Law School Faculty Publications

In tort cases, comparative negligence now is the dominant method for determining damages. Under that method, the jury apportions fault among the parties and assesses damages in proportion to the relative fault assessment. Comparative negligence contrasts with contributory negligence, where any fault attributed to the plaintiff bars recovery. Although comparative negligence routinely governs in tort cases, its most basic feature remains uncertain: how to apportion fault. In this Article, I demonstrate that at least two different methods exist, and that these methods lead to radically different outcomes. I create a framework, building on a traditional model from law and economics, …

The Digital Era Of Photography Requires Streamlined Licensing And Rights Management, Jeremiah A. Armstrong

Santa Clara Law Review

No abstract provided.

Rider Beware: Relying On The Courts And A Nationalized Rating System To Address The Duty Of Care Owed To Amusement Park Attraction Guests, Tobias Butler

Vanderbilt Journal of Entertainment & Technology Law

This note explores the history of amusement park attraction regulation, including both the legislative and judicial treatment, and highlights the deficiencies in court approaches in light of "common carrier" law. First, is a brief history of thrill attractions in America as well as regulation of these attractions by both the legislature and judiciary. Specifically it will discuss the major approaches courts have taken in applying or refusing to apply the "common carrier" definition to these attractions. Second, it will analyze why any standard less than "utmost care" does not provide sufficient power for the courts to create a consistent standard …

Transferred Intent In American Tort Law, Vincent R. Johnson

Faculty Articles

The transferred-intent doctrine is a fiction that is no longer needed by American tort law, because of the replacement of contributory negligence with comparative negligence and development in the law of negligence since the creation of the transferred-intent doctrine. In the midst of decades of tort reform, the transferred-intent fiction has survived. Though total abolition is unlikely, its use and applicability should be greatly restricted given the existence of non-fictitious avenues for equal recovery.

The transferred-intent doctrine developed when no avenue for recovery existed for plaintiffs who were contributory negligent. Since the advent of comparative negligence, however, the need for …

Beyond Workers' Compensation: Workplace Comparative Fault And Third-Party Claims, William Dreier

Georgia State University Law Review

No abstract provided.

Contributory Or Comparative: Which Is The Optimal Negligence Rule?, Christopher J. Robinette, Paul G. Sherland

Northern Illinois University Law Review

In this article, the authors examine whether contributory or some form of comparative negligence is the superior rule based on the goals of tort law. The authors conclude pure comparative negligence is the preferable rule. From a compensation perspective, pure comparative negligence compensates the most tort victims. From a corrective justice perspective, pure comparative negligence, unlike the other rules, requires tortfeasors to correct their wrongs in all cases. Finally, the authors use statistical analyses to determine if any of the rules has a stronger deterrent effect than the others. Based on claims data for automobile accidents in the various jurisdictions, …

Contributory Or Comparative: Which Is The Optimal Negligence Rule?, Christopher J. Robinette, Paul G. Sherland

Christopher J Robinette

Pink Elephants In The Rape Trial: The Problem Of Tort-Type Defenses In The Criminal Law Of Rape, Aya Gruber

Publications

No abstract provided.