Law Commons^™

Subjectively Speaking, The Applicable Standard For Deficient Medical Treatment Of Pretrial Detainees Should Be One Of Objective Reasonableness, Benjamin R. Black

Touro Law Review

There is no uniformity amongst the circuits when it comes to pretrial detainees claims for inadequate medical care. The circuits are currently grappling with this problem, applying two separate tests to pretrial detainees’ 42 U.S.C. § 1983 claims depending on the jurisdiction in which the incident arose. The test that should be applied across all circuits is one of objective reasonableness. However, some circuits do not see it that way, applying the deliberate indifference standard, also known as the subjective standard test. The circuits applying the subjective standard are relying on case law that does not properly analyze the rights …

Big Oil Liability In Canada: Lessons From The Us And The Netherlands, David W-L Wu

Dalhousie Law Journal

The number of nuisance and negligence tort claims in the US against “Big Oil” companies have grown significantly in the last five years. The Netherlands case of Milieudefensie et al v Royal Dutch Shell represents the first major success of such a claim internationally. While the US cases and Milieudefensie demonstrate starkly different approaches as to how to seek accountability from Big Oil for climate change harms, the increasing judicial engagement on these issues may mean the time is right for similar lawsuits in Canada. Three Canadian common law causes of action are examined: nuisance, negligence, and unjust enrichment. Defences …

Taking A Mulligan On Golfer Liability For Damages To Adjacent People And Property: Why Existing Standards Are Too Defendant-Friendly, Michael Conklin, Andrew Tiger

Hofstra Law Review

This Article is the first of its kind to argue for a more expansive interpretation of golfer liability for damages caused to people and property adjacent to a golf course. To arrive at this conclusion, the latest in golf course computer modeling is applied to a recent $5 million jury verdict to demonstrate the considerable frequency of errant golf shots.

Biased But Reasonable: Bias Under The Cover Of Standard Of Care, Maytal Gilboa

Georgia Law Review

Inequities in the distribution of healthcare are widely acknowledged to plague the United States healthcare system. Controversies as to whether anti-discrimination law allows individuals to bring lawsuits with respect to implicit rather than intentional bias render negligence law an important avenue for redressing harms caused by implicit bias in medical care. Yet, as this Article argues, the focus of negligence law on medical standards of care to define the boundaries of healthcare providers’ legal duty of care prevents the law from adequately deterring implicit bias and leaves patients harmed by biased treatment decisions without redress for their losses, so long …

Civil Liability For Sexual Misconduct, Mike K. Steenson

Mitchell Hamline Law Review

No abstract provided.

The Tiktok Algorithm Is Good, But Is It Too Good? Exploring The Responsibility Of Artificial Intelligence Systems Reinforcing Harmful Ideas On Users, Julianne Gabor

Catholic University Journal of Law and Technology

No abstract provided.

The Tort Whisperer: Nine Decades Later–My Perspective, Larry M. Roth

Touro Law Review

This Article provides a comparative analysis of Judge Benjamin Cardozo’s tort decisions in Palsgraf v. Long Island Railroad Co., one of his most famous tort decisions, contrasted with a lesser-known tort opinion in Hynes v. New York Central Railroad Co. The Author attempts to address Cardozo’s humanistic and intellectual dichotomies which are exemplified by these two real-life tort precedents—one of which, Palsgraf, most practitioners may only have a distant recall. A historical overview of Cardozo’s life is also discussed. These two decisions portray Cardozo as an emotive human being exercising hit-or-miss judging. This theme provides a differ viewpoint from Cardozo’s …

The "Accident Network": A Network Theory Analysis Of Proximate Causation, Anat Lior

Marquette Law Review

In torts, proximate causation, or legal cause, examines whether harmful negligent conduct is “closely enough related” to the damages that ensue. Torts professors often use the metaphor of a stone being thrown into a pond to explain this rather amorphous legal doctrine. The ripples the stone creates surrounding it are the direct result of the act of it being thrown. The stone tossed into the pond, i.e., a negligent act, created an effect which perpetuated via ripples to a long distance, forever changing the entire pond, i.e., causing close and far damages. Can all of those affected by the negligent …

Georges V. State, 249 A.3d 1261 (R.I. 2021), Logan Faucher

Roger Williams University Law Review

No abstract provided.

Minding Accidents, Teneille R. Brown

University of Colorado Law Review

Tort doctrine states that breach is all about conduct. Unlike in the criminal law context, where jurors must engage in amateur mindreading to evaluate mens rea, jurors are told that they can assess civil negligence by looking only at the defendant’s external behavior. But this is false. Here I explain why, by incorporating the psychology of foresight. Foreseeability is at the heart of negligence—appearing as the primary test for duty, breach, and proximate cause. And yet, it has been called a “vexing morass” and a “malleable standard” because it is so poorly understood. This Article refines and advances the construct …

Top Ten Issues In De-Spac Securities Litigation, Wendy Gerwick Couture

University of Arkansas at Little Rock Law Review

I am delighted to contribute to this symposium on special purpose acquisition companies (SPACs). The securities litigation associated with the de-SPAC transaction is at an early stage, but courts are already wrestling with a number of unsettled issues that cast a mirror on SPACs and the securities laws more broadly. As these issues are resolved, they will affect the future of de-SPAC transactions as well as the regulatory environment in which they operate. In this essay, I identify ten such issues, drawing from the pleadings, briefings, and hearings in pending de-SPAC securities cases, with the goal of highlighting the key …

Three Kinds Of Fault: Understanding The Purpose And Function Of Causation In Tort Law, Marin R. Scordato

University of Miami Law Review

Causation is a concept of enormous importance in the law. In just the last two years, the United States Supreme Court has explicitly considered its importance and meaning on at least three occasions, in areas of the law as diverse as specific personal jurisdiction, Title IX, and Section 1981. It has also been the subject of sustained scholarly examination and debate.

In no area of the law is causation as foundational and omni- present as in tort law, and in no sphere within tort law is it more prevalent than in its dominant cause of action, negligence. Unsurprisingly then, the …

Tort Law Implications Of Compelled Physician Speech, Nadia N. Sawicki

Indiana Law Journal

Abortion-specific informed consent laws in many states compel physicians to communicate state-mandated information that is arguably inaccurate, immaterial, and inconsistent with their professional obligations. These laws face ongoing First Amendment challenges as violations of the constitutional right against compelled speech. This Article argues that laws compelling physician speech also pose significant problems that should concern scholars of tort law.

State laws that impose tort liability on physicians who refuse to communicate a state-mandated message often do so by deviating from foundational principles of tort law. Not only do they change the substantive disclosure duties of physicians under informed consent law, …

Pros And Kahns: The Proper Coach Liability Standard For Athlete Injuries In Collegiate Athletics, Mark R. Hamilton Jr.

Marquette Sports Law Review

No abstract provided.

Understanding The Negligence Question, Garo V. Moughalian

Lincoln Memorial University Law Review Archive

There is currently an unsolved problem in the legal literature regarding the role cost-benefit analysis should play in determinations of breach in negligence cases. Additionally, despite extensive writings, the relationship between duty and breach in negligence cases remains unclear. At the core of the problem lies the inadequacy of our understanding of breach, which, currently established through a number of independent constructs, lacks a fundamental conceptual base. Further complicating matters is the limited study afforded the nature of the negligence cause of action itself, which leaves the element of duty on unsound footing. This article fills those gaps. With an …

Contract Remedies Need Not Undercompensate Aspiring Parents When Cryopreserved Reproductive Material Is Lost Or Destroyed: Recovery Of Consequential Damages For Emotional Disturbance When Breach Of Contract Results In The Lost Opportunity To Become Pregnant With One's Own Biological Child, Joseph M. Hnylka

Journal of Law and Health

The Center for Disease Control and Prevention (CDC) has reported that the use of assisted reproductive technology (ART) has doubled over the past decade. In vitro fertilization (IVF) is the most prevalent form of ART. During IVF, a woman’s eggs are extracted, fertilized in a laboratory setting, and then implanted in the uterus. Many IVF procedures use eggs or sperm that were stored using a process called cryopreservation. A recent survey reported that cryopreservation consultations increased exponentially during the coronavirus pandemic, rising as much as 60 percent. It is estimated that more than one million embryos are stored in cryopreservation …

Contracting Out Liability For Negligent Pre-Contractual Misrepresentation, Daniele Bertolini

Dalhousie Law Journal

This article examines the extent to which entire agreement clauses (EACs) and non-reliance clauses (NRCs) are enforceable to preclude actions for negligent pre-contractual misrepresentations. It is argued that courts could improve legal certainty and contractual fairness by adopting two distinct legal rules to be applied, respectively, to contracts between sophisticated parties and in adhesion contracts. First, it is suggested that in contracts between sophisticated parties only specific contractual barriers to actions should provide a complete defence against negligent misrepresentation claims. Under this rule, the exclusionary effect of EACs and NRCs would be achieved only if an express term of the …

The Liability Of Health Care Providers To Third Parties Injured By A Patient, Samuel D. Hodge Jr.

Pace Law Review

Duty of care is a critical component of any negligence claim necessary to establish liability. It is well recognized at common law that a physician owes a duty to advise a patient but is not mandated to take affirmative measures outside the physician-patient relationship to protect a third-party. Health care providers may also be responsible for oversight, or the failure to safeguard a patient, due to a special relationship they undertake, such as failing to properly diagnose or recommend an appropriate treatment plan. Recently, the courts have struggled over whether public policy and fairness require the expansion of the law …

The Identity Criterion: Resuscitating A Cardozian, Relational Approach To Duty Of Care In Negligence, Tim Kaye

Hofstra Law Review

Everyone agrees that the canonical case in American negligence law is Palsgraf v. Long Island Railroad Co. In his famous majority opinion in the New York Court of Appeals, Chief Judge Benjamin Cardozo held that the outcome of the case turned on whether the plaintiff, Mrs. Palsgraf, had been owed a duty of care by the Long Island Railroad. He declared that the answer to this question depended on whether the parties had a relevant relationship at the time of the conduct under consideration. “Negligence, like risk,” he said, is “a term of relation. Negligence in the abstract, apart from …

Remediating Racism For Rent: A Landlord’S Obligation Under The Fha, Mollie Krent

Michigan Law Review

The Fair Housing Act (FHA) is an expansive and powerful piece of legislation that furthers equal housing in the United States by ferreting out discrimination in the housing market. While the power of the Act is well recognized by courts, the full contours of the FHA are still to be refined. In particular, it remains unsettled whether and when a landlord can be liable for tenant-on-tenant harassment. This Note argues, first, that the FHA does recognize liability in such a circumstance and, second, that a landlord should be subject to liability for her negligence in such a circumstance. Part I …

I Am Woman, Hear Me Roar: Denial Of Sexual Reassignment Surgery For Transgender Inmates And The Eighth Amendment’S Ban On Cruel And Unusual Punishment, Chiara Haueter

Touro Law Review

No abstract provided.

(Un)Masking The Truth - The Cruel And Unusual Punishment Of Prisoners Amidst The Covid-19 Pandemic, Ariel Berkowitz

Touro Law Review

No abstract provided.

Where We’Re Going, We Don’T Need Drivers: Autonomous Vehicles And Ai-Chaperone Liability, Peter Y. Kim

Catholic University Law Review

The future of mainstream autonomous vehicles is approaching in the rearview mirror. Yet, the current legal regime for tort liability leaves an open question on how tortious Artificial Intelligence (AI) devices and systems that are capable of machine learning will be held accountable. To understand the potential answer, one may simply go back in time and see how this question would be answered under traditional torts. This Comment tests whether the incident involving an autonomous vehicle hitting a pedestrian is covered under the traditional torts, argues that they are incapable of solving this novel problem, and ultimately proposes a new …

Lhwca Section 905(B) And Scindia: The Confused Tale Of A Legal Pendulum, Thomas C. Galligan, Brian C. Colomb

Louisiana Law Review

The article presents the U.S. Supreme Court case Scindia Steam Navigation Co., Ltd. v. De Los Santos to discuss Section 905(b) of the Longshore and Harbor Workers' Compensation Act (LHWCA), which provided negligence as a course of action in advancing workers' compensation claims.

Strict Liability Upon Gunowners (Slug): A Proposed Balanced Approach, David Louis

St. Mary's Law Journal

Careless or apathetic gunowners, whose lost or stolen firearms are used in the commission of a violent crime, should be held strictly liable. Current tort law leaves victims of gun violence and their families without a mode of redress against an irresponsible gun owner whose actions played a pivotal role in the victim’s ultimate injury. Without effective liability principles to regulate gun ownership, gunowners are provided de facto immunity regardless of whether the harm suffered by the victim is intertwined with the gunowners careless behavior. This comment examines the efficacy of existing tort liability principles as provided in the Restatement …

Overcoming Legal And Institutional Barriers To The Implementation Of Innovative Environmental Technologies, David Strifling, Walter Mcdonald, Hannah Hathaway, Joe Naughton

Notre Dame Journal on Emerging Technologies

This paper examines the possible reasons that stormwater management system operators (typically municipalities) have generally been reluctant to adopt RTC technology.

Our interdisciplinary team of law faculty, engineering faculty, and graduate students from both disciplines studied dozens of examples involving RTC implementation in the United States and abroad. We also examined the literature detailing institutional barriers to RTC innovation. Finally, we reviewed numerous legal decisions related to municipal liability for stormwater management (or mismanagement).

From this foundation, we distilled several institutional and legal barriers that prevent municipalities from embracing this particular type of innovation. The paper suggests a variety of …

Guarding The Guardians: Should Guardians Ad Litem Be Immune From Liability For Negligence?, Alberto Bernabe

Loyola University Chicago Law Journal

Illinois has a very comprehensive regulatory system for guardianships, which are recognized and regulated by several different statutes including the Illinois Probate Act and the Illinois Marriage and Dissolution of Marriage Act. Unfortunately, notwithstanding this comprehensive regulation, courts have struggled with the question of whether guardians ad litem should be immune from possible liability for injuries caused to their wards. Under the Marriage Act, an attorney appointed as a guardian ad litem is expected to perform duties on behalf of the court while the language of the Probate Act suggests that a guardian ad litem is appointed to represent the …

The Friday Night “Who Is Driving?” Debate Will Soon Come To An End: How Autonomous Vehicles Are Changing Our Lives And Societal Norms, Nicholas Calabria

Touro Law Review

No abstract provided.

Grotheer V. Escape Adventures, Inc., Paisley Piasecki

NYLS Law Review

No abstract provided.

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 …