Law Commons^™

Tort Liability And Unawareness, Surajeet Chakravarty, David Kelsey, Joshua C. Teitelbaum

Georgetown Law Faculty Publications and Other Works

We explore the implications of unawareness for tort law. We study cases where injurers and victims initially are unaware that some acts can yield harmful consequences, or that some acts or harmful consequences are even possible, but later become aware. Following Karni and Vierø (2013), we model unawareness by Reverse Bayesianism. We compare the two basic liability rules of Anglo-American tort law, negligence and strict liability, and argue that negligence has an important advantage over strict liability in a world with unawareness—negligence, through the stipulation of due care standards, spreads awareness about the updated probability of harm.

America’S “Kia Boys”: The Problem, Responses, And Recommendations, Drew Thornley

Seattle University Law Review SUpra

The landscape of automobile theft in the United States has undergone a dramatic transformation, marked by a notable surge in the theft of Kia and Hyundai vehicles. Once regarded as a routine occurrence, car thefts have taken on a novel dimension, propelled by a phenomenon driven by digital culture and social media virality. The thefts of these specific car brands have evolved into what is now widely recognized as the "Kia Challenge," a term echoing across popular platforms like TikTok. In this challenge, young teenage individuals, often referred to as the "Kia Boys" or variations thereof, orchestrate daring car heists, …

Shields Up For Software, Derek E. Bambauer, Melanie J. Teplinsky

UF Law Faculty Publications

This Article contends that the National Cybersecurity Strategy's software liability regime should incorporate two safe harbors. The first would shield software creators and vendors from liability for decisions related to design, implementation, and maintenance, as long as those choices follow enumerated best practices. The second—the “inverse safe harbor”—would have the opposite effect: coders and distributors who engaged in defined worst practices would automatically become liable. This Article explains the design, components, and justifications for these twin safe harbors. The software safe harbors are key parts of the overall design of the new liability regime and work in tandem with the …

Examining The New Standard Of Care For Medical Advice And Patients With Mental Health Conditions, Gary Kok Yew Chan

Research Collection Yong Pung How School Of Law

In 2017, the Singapore Court of Appeal in Hii Chii Kok v Oii Peng Jin London Lucien (Hii Chii Kok) favoured a patient-centric approach towards issues of providing medical advice. Section 37 of the Singapore Civil Law Act, which took effect on 1 July 2022, stipulates that the standard of care in giving medical advice to patients is based on peer professional opinion. This article will analyse, with reference to other common law jurisdictions, how the new statutory provision applies to patients with mental disorders under the Singapore Mental Capacity Act 2008. It will provide an interpretation of s 37 …

Differentiating Strict Products Liability’S Cost-Benefit Analysis From Negligence, Paul F. Rothstein, Ronald J. Coleman

Georgetown Law Faculty Publications and Other Works

Dangerous products may give rise to colossal liability for commercial actors. Indeed, in 2021, the U.S. Supreme Court denied certiorari in Johnson & Johnson v. Ingham, permitting a more than two billion dollar products liability damages award to stand. In his dissenting opinion in another recent products liability case, Air and Liquid Systems Corp. v. DeVries, Justice Gorsuch declared that “[t]ort law is supposed to be about aligning liability with responsibility.” However, in the products liability context, there have been ongoing debates concerning how best to set legal rules and standards on tort liability. Are general principles of …

Tort Theory And The Restatement, In Retrospect, Keith N. Hylton

Faculty Scholarship

This is my third paper on the Restatement (Third) of Torts. In my first paper, The Theory of Tort Doctrine and the Restatement (Third) of Torts, I offered a positive economic theory of the tort doctrine that had been presented in the Restatement (Third) of Torts: General Principles, and also an optimistic vision of how positive theoretical analysis could be integrated with the Restatement project. In my second paper, The Economics of the Restatement and of the Common Law, I set out the utilitarian-economic theory of how the common law litigation process could generate optimal (efficient, wealth-maximizing) rules and compared …

Negligence And Culpability: Reflections On Alexander And Ferzan, Mitchell N. Berman

All Faculty Scholarship

Philosophers of criminal punishment disagree about whether infliction of punishment for negligence can be morally justified. One contending view holds that it cannot be because punishment requires culpability and culpability requires, at a minimum, advertence to the facts that make one’s conduct wrongful. Larry Alexander and Kim Ferzan are prominent champions of this position. This essay challenges that view and their arguments for it. Invoking a conceptual distinction between an agent’s being blameworthy for an act and their deserving punishment (or suffering) for that act, it explains that an agent can be blameworthy for negligent conduct, and thus liable to …

Title Ix Sex Discrimination & Negligence Lawsuit Against Fargo Public School District & The Board Of Education Partially Dismissed, Emily J. Houghton

Human Performance Department Publications

Brian and Jennifer Berg filed a lawsuit as individuals and on behalf of their daughter Regan against the Fargo Public School District (FPSD) and the Board of Education in the City of Fargo in 2021. They argued that Regan faced sex discrimination, deliberate indifference under Title IX, the FPSD Handbook and negligence from FPSD following an alleged sexual assault by a male student off-campus.

Is A Locomotive In Use And Therefore Subject To Locomotive Inspection Act Liability When It Makes A Temporary Stop?, Anne Marie Lofaso

Law Faculty Scholarship

Case at a Glance: LeDure v. Union Pacific Railroad Company. Bradley LeDure, a long-time locomotive engineer for Union Pacific, slipped on the slick surface of a locomotive while it was idle but powered on, seriously injuring himself. If Union Pacific violated safety regulations under the Locomotive Inspection Act, then it would be negligent per se. But that theory of liability is only available if the locomotive was in use at the time of the accident. The case presents a question of statutory interpretation of the term use.

Tort Law: Cases And Commentaries, Samuel Beswick

All Faculty Publications

The law of obligations concerns the legal rights and duties owed between people. Three primary categories make up the common law of obligations: tort, contract, and unjust enrichment. This coursebook provides an introduction to tort law: the law that recognises and responds to civil wrongdoing. The material is arranged in two parts. Part I comprises §§1-11 and addresses intentional and dignitary torts and the overarching theories and goals of tort law. Part II comprises §§12-25 and addresses no-fault compensation schemes, negligence, nuisance, strict liability, and tort law’s place within our broader legal systems.

Themes explored within this coursebook include:

• …

Reconstruction Of The Reasonable Person Standard Under Chinese Patent Law, Weihong Yao, Robert H. Hu

Faculty Articles

The standard of a Reasonable Person is the common basis for determining the duty of care of a patent infringer. Under the Chinese patent law, the standards for Reasonable Manufacturer and Reasonable Importer are among the highest standards in the world; such high Chinese standards impose an excessive duty of care for Chinese manufacturing enterprises, importers, and distributors, which hinder the development of those enterprises. We should reconstruct the Chinese patent law's Reasonable Person standard based on the characteristics of the patent system and the status quo of China's economic production. A Reasonable Manufacturer should be defined as an ordinary …

Individualizing Criminal Law’S Justice Judgments: Shortcomings In The Doctrines Of Culpability, Mitigation, And Excuse, Paul H. Robinson, Lindsay Holcomb

All Faculty Scholarship

In judging an offender’s culpability, mitigation, or excuse, there seems to be general agreement that it is appropriate for the criminal law to take into account such things as the offender’s youthfulness or her significantly low IQ. There is even support for taking account of their distorted perceptions and reasoning induced by traumatic experiences, as in battered spouse syndrome. On the other hand, there seems to be equally strong opposition to taking account of things such as racism or homophobia that played a role in bringing about the offense. In between these two clear points, however, exists a large collection …

Minding Accidents, Teneille R. Brown

Utah Law Faculty Scholarship

Tort doctrine states that breach is all about conduct. Unlike in the criminal law, where jurors must engage in an amateur form of mindreading to evaluate mens rea, jurors are told that they can assess civil negligence by looking only at how the defendant behaved. But this is false. Foreseeability is at the heart of negligence—appearing as the primary tests for duty, breach, and proximate cause. And yet, we cannot ask whether a defendant should have foreseen a risk without interrogating what he subjectively knew, remembered, perceived, or realized at the time. In fact, the focus on actions in negligence …

Computational Complexity And Tort Deterrence, Joshua C. Teitelbaum

Georgetown Law Faculty Publications and Other Works

Standard formulations of the economic model of tort deterrence constitute the injurer as the unboundedly rational bad man. Unbounded rationality implies that the injurer can always compute the solution to his care-taking problem. This in turn implies that optimal liability rules can provide robust deterrence, for they can always induce the injurer to take socially optimal care. In this paper I examine the computational complexity of the injurer's care-taking problem. I show that the injurer's problem is computationally tractable when the precaution set is unidimensional or convex, but that it is computationally intractable when the precaution set is multidimensional and …

When Justice Should Precede Generosity: The Case Against Charitable Immunity In Arkansas, Courtney Jane Baltz

Arkansas Law Notes

This Comment discusses various aspects of the modern hospital and examines charitable immunity’s incompatibility with modern law.

First, Part II explains the historical justifications for immunity and presents the doctrine’s landscape in the United States. Part III examines the role precedent plays in continuing to adhere to the rule of immunity. Part IV takes an in-depth approach of the big business of hospitals by evaluating various financial aspects of charitable hospitals. Part V explores the reality of charitable immunity falling out of touch with concepts of modern law. Part VI takes a more specific look at the application of the …

The Euclid Proviso, Ezra Rosser

Articles in Law Reviews & Other Academic Journals

This Article argues that the Euclid Proviso, which allows regional concerns to trump local zoning when required by the general welfare, should play a larger role in zoning's second century. Traditional zoning operates to severely limit the construction of additional housing. This locks in the advantages of homeowners but at tremendous cost, primarily in the form of unaffordable housing, to those who would like to join the community. State preemption of local zoning defies traditional categorization; it is at once both radically destabilizing and market-responsive. But, given the ways in which zoning is a foundational part of the racial and …

The Nonfiduciary "Trust", Jeffrey A. Schoenblum

Vanderbilt Law School Faculty Publications

This article identifies and details the emergence in an increasing number of states of a new trust law that rejects the fundamental tenets of traditional trust law. This alternative concept of the trust liberates the trustee from any meaningful accountability to the beneficiary, the very core concept of traditional trust law. In short, these states are enabling the creation of what might be described as a "nonfiduciary trust."

The Informed Consent Doctrine In Legal Malpractice Law, Vincent R. Johnson

Faculty Articles

The doctrine of informed consent is now deeply embedded into the law of legal ethics. In legal malpractice litigation, the doctrine holds that a lawyer has a duty to disclose to a client material information about the risks and alternatives associated with a course of action. A lawyer who fails to make such required disclosures and fails to obtain informed consent is negligent, regardless of whether the lawyer otherwise exercises care in representing a client. If such negligent nondisclosures cause damages, the lawyer can be held accountable for the client's losses.

Shifting the focus of a legal malpractice action from …

Maintenance Of Water And Sewer Infrastructure In Response To Sea Level Rise In Massachusetts, Melissa Chalek

Marine Affairs Institute Staff Publications

No abstract provided.

Keeping Ai Under Observation: Anticipated Impacts On Physicians' Standard Of Care, Iria Giuffrida, Taylor Treece

Faculty Publications

As Artificial Intelligence (AI) tools become increasingly present across industries, concerns have started to emerge as to their impact on professional liability. Specifically, for the medical industry--in many ways an inherently "risky" business--hospitals and physicians have begun evaluating the impact of Al tools on their professional malpractice risk. This Essay seeks to address that question, zooming in on how AI may affect physicians' standard of care for medical malpractice claims.

Cummings V. Barber, 136 Nev. Adv. Op. 18 (April 2, 2020), Alexis Taitel

Nevada Supreme Court Summaries

No abstract provided.

Incentives To Take Care Under Contributory And Comparative Fault, Keith N. Hylton, Benjamin Ogden

Faculty Scholarship

Previous literature on contributory versus comparative negligence has shown that they reach equivalent equilibria. These results, however, depend upon a stylized application of the Hand Formula and an insufficiently coarse model of strategic incentives. Taking this into account, we identify a set of cases where care by one agent significantly increases the benefits of care by the other. When such cases obtain under bilateral harm, comparative negligence generates greater incentives for care, but this additional care occurs only when care is not socially optimal. By contrast, under unilateral harm or asymmetric costs of care, contributory negligence creates socially excessive care. …

Accountability, Eugenics, And Reproductive Justice, Susan Frelich Appleton

Scholarship@WashULaw

This analysis contributes to an online symposium on Dov Fox’s book BIRTH RIGHTS AND WRONGS: HOW MEDICINE AND TECHNOLOGY ARE CHANGING REPRODUCTION AND THE LAW. Using eugenics and reproductive justice as points of departure, this review highlights both strengths and weaknesses in Fox’s approach.

Should Automakers Be Responsible For Accidents?, Kyle D. Logue

Articles

Motor vehicles are among the most dangerous products sold anywhere. Automobiles pose a larger risk of accidental death than any other product, except perhaps opioids. Annual autocrash deaths in the United States have not been below 30,000 since the 1940s, reaching a recent peak of roughly 40,000 in 2016. And the social cost of auto crashes goes beyond deaths. Auto-accident victims who survive often incur extraordinary medical expenses. Those crash victims whose injuries render them unable to work experience lost income. Auto accidents also cause nontrivial amounts of property damage—mostly to the automobiles themselves, but also to highways, bridges, or …

Reckless Juveniles, Kimberly Thomas

Articles

Modern doctrine and scholarship largely take it for granted that offenders should be criminally punished for reckless acts.1 Yet, developments in our understanding of human behavior can shed light on how we define and attribute criminal liability, or at least force us to grapple with the categories that have existed for so long. This Article examines recklessness and related doctrines in light of the shifts in understanding of adolescent behavior and its biological roots, to see what insights we might attain, or what challenges these understandings pose to this foundational mens rea doctrine. Over the past decade, the U.S. Supreme …

Healthism In Tort Law, Elizabeth Weeks

Scholarly Works

This article draws on the author's recently published book, Healthism: Health Status Discrimination and the Law (with Jessica L. Roberts) (Cambridge University Press 2018), examining tort law doctrine and policy for examples of differential treatment of health status or behaviors. Just as scholars previously have drawn attention to discrimination based on race, sex, age, and other protected categories in tort law, the article urges similar examination of tort law's potential to discriminate against the unhealthy. The article discusses the potential for healthism in the reasonably prudent person standard of care, contributory negligence, assumption of the risk, noneconomic damages caps, impaired …

The Role Of Fault In § 1983 Municipal Liability, Michael Wells

Scholarly Works

Under Monell v. Department of Social Services, local governments are not vicariously liable for constitutional violations committed by their employees. Those governments, however, are liable under 42 U.S.C. § 1983 for violations committed by "policymaking" officials. In the face of these two principles, courts have struggled with cases in which an underling commits a constitutional violation and the claim of municipal liability is based on a policymaker's failure to prevent it. The government can be liable in these "indirect-effect" cases for a policymaker's "deliberate indifference" to safeguarding constitutional rights, a standard that demands an even greater showing of culpability than …

A Corrective Justice Justification For Considering The Response Of The Hypothetical Person Of An “Ordinary Level Of Susceptibility” When Assessing Reasonable Foreseeability In Cases Involving Negligently Inflicted Psychiatric Injury, Martin Allcock

Research outputs 2014 to 2021

The law has long been concerned with limiting recovery for pure psychiatric injury in negligence in order to prevent liability to plaintiffs who are unusually susceptible to this type of injury. The justifications provided by courts for this concern have often centred on the idea that holding a defendant liable to such a plaintiff will be unreasonable. However, there is a gap in the reasoning of the courts and in the scholarly literature as to the potential theoretical justifications for measuring the reasonableness of the defendant’s conduct against the effect of that conduct on the hypothetical person of an “ordinary …

"Decisional" And "Operational" Negligence, Vincent Ooi

Research Collection Yong Pung How School Of Law

This article draws a distinction between “decisional” negligence, which concerns the negligence exhibited by a professional advising his client in a decision to pursue a course of action, and “operational” negligence which concerns the manner in which a professional acts upon his client’s instructions to pursue a course of action. With the advent of Montgomery, the distinction between the two kinds of negligence has been thrown into focus in the context of medical negligence. The distinction is an important one for two reasons: 1) the “standard of care” test to be applied; and 2) the measure of damages.

Texas Gulf Sulphur And The Genesis Of Corporate Liability Under Rule 10b-5, Adam C. Pritchard, Robert B. Thompson

Articles

This Essay explores the seminal role played by SEC v. Texas Gulf Sulphur Co. in establishing Rule 10b-5’s use to create a remedy against corporations for misstatements made by their officers. The question of the corporation’s liability for private damages loomed large for the Second Circuit judges in Texas Gulf Sulphur, even though that question was not directly at issue in an SEC action for injunctive relief. The judges considered both, construing narrowly “in connection with the purchase or sale of any security,” and the requisite state of mind required for violating Rule 10b-5. We explore the choices of the …