Law Commons^™

Death Be Not Strange. The Montreal Convention’S Mislabeling Of Human Remains As Cargo And Its Near Unbreakable Liability Limits, Christopher Ogolla

Dickinson Law Review (2017-Present)

This article discusses Article 22 of the Convention for the Unification of Certain Rules for International Carriage by Air (“The Montreal Convention”) and its impact on the transportation of human remains. The Convention limits carrier liability to a sum of 19 Special Drawing Rights (SDRs) per kilogram in the case of destruction, loss, damage or delay of part of the cargo or of any object contained therein. Transportation of human remains falls under Article 22 which forecloses any recovery for pain and suffering unaccompanied by physical injury. This Article finds fault with this liability limit. The Article notes that if …

Non-Physician Vs. Physician: Cross-Disciplinary Expert Testimony In Medical Negligence Litigation, Marc D. Ginsberg

Marc D. Ginsberg

The source of the applicable standard of care in a specific medical negligence claim is multifaceted. The testifying expert witness, when explaining the applicable standard of care, “would draw upon his own education and practical frame of reference as well as upon relevant medical thinking, as manifested by literature, educational resources and information available to practitioners, and experiences of similarly situated members of the profession.” Accordingly, in typical medical negligence litigation, the plaintiff’s expert witness testifying regarding the existence of and the defendant-physician’s deviation from the standard of care would be a physician. Why, then, have courts permitted non-physicians to …

Non-Physician Vs. Physician: Cross-Disciplinary Expert Testimony In Medical Negligence Litigation, Marc D. Ginsberg

Georgia State University Law Review

The source of the applicable standard of care in a specific medical negligence claim is multifaceted. The testifying expert witness, when explaining the applicable standard of care, “would draw upon his own education and practical frame of reference as well as upon relevant medical thinking, as manifested by literature, educational resources and information available to practitioners, and experiences of similarly situated members of the profession.” Accordingly, in typical medical negligence litigation, the plaintiff’s expert witness testifying regarding the existence of and the defendant-physician’s deviation from the standard of care would be a physician. Why, then, have courts permitted non-physicians to …

Hospital Peer Review Standards And Due Process: Moving From Tort Doctrine Toward Contract Principles Based On Clinical Practice Guidelines, Katharine A. Van Tassel

Katharine Van Tassel

This Article proposes a solution to the problems associated with the current use of vague standards in peer review. This Article will examine the proposal that medical staffs switch from ad hoc judicial decision-making to rule-making. This switch will allow medical staffs to abandon the troublesome practice of applying vague 'standard of care' measures ex post facto. In its stead, express contractual terminology could be adopted, such as 'expectations of performance,' which incorporates specifically chosen and uniquely tailored clinical practice guidelines ('CPGs') directly into the medical staff by-laws. Describing the expectations of physician performance in express contractual terms enables physicians …

Assumption Of Risk As A Defense To Negligence, Gregory S. Sergienko

Greg Sergienko

This article will revisit the history of assumption of risk in California and elsewhere and suggest that the traditional doctrine should be modified and revived, despite the contrary approach of the Restatement (Third) of Torts. In the first part of the article, I will describe the ambiguities in the statements of assumption of risk that existed before the adoption of comparative negligence. I will show that Knight v. Jewett, which rejected assumption of risk, misinterpreted Li v. Yellow Cab Co., in which the California Supreme Court adopted a comparative negligence rule. Moreover, even if the Knight case was defensible on …

Negligent Entrustment In Gun Industry Litigation: A Primer, Kate E. Britt

Law Librarian Scholarship

Deep pocket jurisprudence, where plaintiffs name corporations as codefendants of less wealthy individual tortfeasors, is not uncommon in tort litigation. When the plaintiffs are victims of gun violence and the corporate defendants are firearms manufacturers, however, these suits are particularly controversial. Instead of aiming to make the victims whole, these suits are opposed (or supported) as attempts to regulate the firearms industry on a widespread basis. This article explores some of the resources available to understand the recent history of suits against firearms manufacturers.

Design Litigation And The State Of The Art: Terminology, Practice And Reform, Edward T. O'Donnell

Akron Law Review

We suggest that rather than ignore these problems, or bemoan them ineffectually, the judiciary should accept the fact that the decision to venture into the area of scientific and technological controversy' carries with it a duty to reconcile the law with the essentials of the scientific method. Some courts already have begun to do so. For instance, suggestions that the manufacturer's obligation to design a safe product necessarily must be limited by the state of the art are common in negligence, warranty and strict liability decisions alike. Unfortunately these statements usually are dicta rather than holdings. Worse, the authors of …

Product Liability Law In Japan: An Introduction To A Developing Area Of Law, Younghee Jin Ottley, Bruce L. Ottley

Georgia Journal of International & Comparative Law

No abstract provided.

Is General Negligence The New Exception To The Florida Impact Rule?, Stephan Krejci

Florida A & M University Law Review

The impact rule is an ancient torts doctrine that precludes recovery for emotional distress unless the victim has been physically impacted by the tortfeasor and the emotional distress grew out of that physical impact. American courts widely adopted the impact rule and it persists in a handful of states to this day. Courts give several reasons for denying these negligent infliction of emotional distress (NIED) claims and these reasons fall into three broad categories: judicial efficiency, evidence concerns, and foreseeability. This paper proposes that Florida abrogate the impact rule and switch to using a general negligence approach for NIED claims. …

Holmes And The Common Law: A Jury's Duty, Matthew P. Cline

Matthew P Cline

The notion of a small group of peers whose responsibility it is to play a part in determining the outcome of a trial is central to the common conception of the American legal system. Memorialized in the Constitution of the United States as a fundamental right, and in the national consciousness as the proud, if begrudged, duty of all citizens, juries are often discussed, but perhaps not always understood. Whatever misunderstandings have come to be, certainly many of them sprang from the juxtaposition of jury and judge. Why do we have both? How are their responsibilities divided? Who truly decides …

Rethinking Principals Of Comparative Fault In Light Of California's Proposition 51, James A. Gash

Pepperdine Law Review

No abstract provided.

Negligent Infliction Of Emotional Distress: A Proposal For A Consistent Theory Of Tort Recovery For Bystanders And Direct Victims, Julie A. Greenberg

Pepperdine Law Review

No abstract provided.

The September 11th Victim Compensation Fund: The Answer To Victim Relief?, Joe Ward

Pepperdine Dispute Resolution Law Journal

The events of September 11, 2001 shook America to its core. The world was forever changed as the horrific tragedy unfolded on live television. Families were destroyed as loved ones were severely injured or killed, leaving spouses and children in need of aid. In response, the United States government established the September 11th Victims' Compensation Fund in an effort to provide the necessary reparations to victims of the terrorist attacks. This article will analyze the September 11th Victims' Compensation Fund (hereafter "Fund") as a way of compensating victims while preserving the financial stability of the United States economy. This Fund …

Most Claims Settle: Implications For Alternative Dispute Resolution From A Profile Of Medical-Malpractice Claims In Florida, Neil Vidmar, Mirya Holman, Paul Lee

Faculty Scholarship

No abstract provided.

Green Building Claims: What Theories Will A Plaintiff Pursue, Who Has Exposure, And A Proposal For Risk Mitigation, Darren Prum, Stephen Del Percio

Darren A. Prum

No abstract provided.

The Growing Influence Of Tort And Property Law On Natural Resources Law: Case Studies Of Coal Bed Methane Development And Geologic Carbon Sequestration, Alexandra B. Klass

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

19 pages.

"Alexandra B. Klass, Associate Professor of Law, University of Minnesota Law School"

A Proposal To Amend Rule 407 Of The Federal Rules Of Evidence To Conform With The Underlying Relevancy Rationale For The Rule In Negligence And Strict Liability Actions, Ralph Ruebner, Eugene Goryunov

ExpressO

The current version of FRE 407 prevents the use of evidence of remedial measures taken after an event that caused an injury or harm in order to prove negligence, culpable conduct, or strict product liability. Our proposal is that the language of Rule 407 be amended to preclude the admissibility of remedial measures which are taken both before and after an injury. This change will implement the relevancy rationale for the rule.

Negligence In The Air: The Duty Of Care In Climate Change Litigation, David Hunter, James Salzman

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Ramifications Of Denny V. Ford Motor Co., Peter J. Ausili

Touro Law Review

No abstract provided.

Getting To No: A Study Of Settlement Negotiations And The Selection Of Cases For Trial, Samuel R. Gross, Kent D. Syverud

Articles

A trial is a failure. Although we celebrate it as the centerpiece of our system of justice, we know that trial is not only an uncommon method of resolving disputes, but a disfavored one. With some notable exceptions, lawyers, judges, and commentators agree that pretrial settlement is almost always cheaper, faster, and better than trial. Much of our civil procedure is justified by the desire to promote settlement and avoid trial. More important, the nature of our civil process drives parties to settle so as to avoid the costs, delays, and uncertainties of trial, and, in many cases, to agree …

Doctrinal Collapse In Products Liability: The Empty Shell Of Failure To Warn, James A. Henderson Jr., Aaron Twerski

Cornell Law Faculty Publications

Liability for a manufacturer's failure to warn of product-related risks is a well-established feature of modern products liability law. Yet many serious doctrinal and conceptual problems underlie these claims. Professors Henderson and Twerski explore these problems and argue that failure-to-warn jurisprudence is confused, perhaps irreparably, and that this confusion often results in the imposition of excessive liability on manufacturers. The authors begin by exposing basic errors resulting from courts' confusion over whether to apply a strict liability or a negligence standard of care in failure-to-warn cases. Having determined that negligence is the appropriate standard, they then examine more substantial and …

Apportionment In Kentucky After Comparative Negligence, John M. Rogers

Law Faculty Scholarly Articles

Adoption of comparative negligence gives juries the task of allocating fault between a plaintiff and a defendant when both were negligent and both caused the plaintiff's injury. A logical corollary must be that juries are theoretically and practically able to make such an allocation. If so, it follows that juries are able to make such an allocation among multiple defendants, each of whom was found to be both negligent and a cause of the plaintiff's injury. The judicial adoption of comparative negligence in Kentucky therefore requires a reexamination of the rules applicable to multiple tortfeasors. Cases decided since the adoption …

Glosses On Dworkin: Rights, Principles, And Policies, Donald H. Regan

Articles

A great many people have attempted to explain what is wrong with the views of Ronald Dworkin. So many, indeed, that one who read only the critics might wonder why views so widely rejected have received so much attention. One reason is that, whatever may be wrong in Dworkin's theories, there is a good deal that is right in them. But what is right is not always clear. Important passages in Dworkin can be distressingly obscure, or tantalizingly incomplete. This essay is a set of loosely connected observations on themes from Dworkin. While I shall add some criticisms of my …

Legal Issues Relating To Electroconvulsive Therapy, H. Richard Beresford

Cornell Law Faculty Publications

A survey of 54 psychiatric units disclosed that 49 (91%) were using electroconvulsive (ECT), principally for major depressive illnesses. During the five-year period 1964 to 1968, fractures and other complications of ECT were uncommon. Sudden death was reported in seven cases. During this period, none of the respondents or their affiliated physicians had been involved in lawsuits relating to the use of ECT. In general, suits for injuries occasioned by the use of ECT seem to be declining. Possible remaining problem areas are the performance of ECT without the prior consent of the patient; the failure to have facilities and …

Weather Modification: Law And Administration, James N. Corbridge Jr., Raphael J. Moses

Publications

No abstract provided.

The Victim's Fault In Wrongful Death Actions In French Law, Wencelas J. Wagner

Articles by Maurer Faculty

No abstract provided.

Has The Rule Of Macpherson V. Buick Been Adopted In Indiana?

Indiana Law Journal

No abstract provided.

Concurrent Causation In Insurance Contracts, William Conant Brewer Jr.

Michigan Law Review

A great deal of work and thought has been devoted to concurrent causation problems in the field of torts. Less attention has been paid to the insurance cases, and no serious effort has been made to formulate the separate rules applicable to them. It is the thesis of this article that concurrent causation problems which arise under an insurance contract must be handled somewhat differently from those which arise in connection with tort litigation, and that the tendency to borrow rules of law from the larger tort field and apply them to the smaller volume of insurance cases can only …

Modern Techniques In The Preparation And Trial Of A Medical Malpractice Suit, Fitz-Gerald Ames Sr

Vanderbilt Law Review

Though it is true that in malpractice suits more than in any other type of litigation, the plaintiff must have a strong case on the merits, it is equally important and almost a necessity in most malpractice cases that patient's counsel carefully and thoroughly condition the jurors' minds from the very outset to a psychological acceptance of this type of litigation. Far too many veniremen, before they have been selected as trial jurors in a malpractice suit, have the attitude that (1) a "malpractice" suit connotes conduct either criminal, quasi-criminal or unethical on the part of the doctor or hospital; …

Federal Procedure-Limitation Of Actions-Suspension Of Statute Of Limitations As To Citizen Of Enemy-Occupied Territory In War Time, Stephen J. Martin S.Ed.

Michigan Law Review

Plaintiff, a Filipino, loaned money to a recognized guerilla unit in the Philippine Islands in 1943, during the period of the Japanese occupation of the Islands. He filed suit in the United States Court of Claims on December 31, 1952, to recover the amount of the loan. Defendant United States moved to dismiss on the ground that the claim was barred by the six-year statute of limitations applicable to the Court of Claims. Held, petition dismissed. Plaintiff's cause of action first accrued at the earliest moment when suit might have been legally instituted upon it. No circumstance in the …