Legal Remedies Commons^™

Third Party Liability For Drunken Driving: When One For The Road Becomes One For The Courts, Julius F. Lang Jr., John J. Mcgrath

Villanova Law Review

No abstract provided.

Developing A Victims' Suit For Injuries Caused By A Compulsorily Released Prisoner, Leonard M. Niehoff

University of Michigan Journal of Law Reform

This Note advocates the development of a tort remedy for victims injured by a compulsorily released prisoner. This remedy would be based on existing tort theory permitting suits against third parties whose negligence causes or facilitates a criminal act. The victim would bring suit against both the state and third parties who aided in the criminal release determination . To support his claim, the victim would allege: (1) that state officials negligently selected the offending inmate for early release; and (2) that the state negligently maintained the unconstitutional prison conditions which precipitated the release.

Part I of this Note discusses …

Claim Requirements Of The Federal Tort Claims Act: Minimal Notice Or Substantial Documentation?, Michigan Law Review

Michigan Law Review

This Note finds both the Adams and Swift positions unsatisfactory. Part I contends that Adams misconstrued the legislative history of the FTCA amendments by applying a minimal notice standard and then argues that Swift contravenes the amendments' fairness policy by permitting ambiguous, overreaching documentation requests. Part II contends that courts should interpret section 2675's "presented the claim" language as an accommodation between two competing Congressional objectives: presuit claims settlement and fair treatment of claimants. The Note proposes that until the Department of Justice modifies its current claims regulations, courts should toll the statute of limitations whenever an individual's claim includes …

On Product "Design Defects" And Their Actionability, John W. Wade

Vanderbilt Law Review

This Article has tried to explain and discuss these developments, to evaluate them, to show their relationship to the general state of the law, and to make suggestions on how far they should affect its future development. At present, the question of "design defects" and the determination of when a product is actionable because of the nature of its design appears to be the most agitated and controversial question before the courts in the field of products liability. I hope that this Article can be of some help to the courts in seeking to develop the most suitable answer to …

Products Liability - Restatement (Second) Of Torts - Virgin Islands Comparative Negligence Statute Applied In Strict Products Liability Action, Clifford H. Lange

Villanova Law Review

No abstract provided.

Negligence - Recovery For Negligently Inflicted Mental Distress Permitted To Mother Who Witnessed The Violent Death Of Her Child Even Though The Mother Was Outside Zone Of Danger, Bruce A. Issadore

Villanova Law Review

No abstract provided.

Workmen's Compensation: Toward A Stricter Liability For Enterprise, John A. Payne Jr.

University of Michigan Journal of Law Reform

This article considers the situation in which an employee injured by a defective product in the course of his employment can proceed both against his employer insured by a workmen's compensation program and against a manufacturer of the employer's equipment who is strictly liable under a claim of products liability. The focus is not on the manufacturer as employer but on the manufacturer as supplier of defective equipment which causes injury. This is the best situation for analyzing the problems arising from the present system for distributing losses because, where the negligence of the employer has been an independent cause …

Limitations On Liability For Economic Loss Caused By Negligence: A Pragmatic Appraisal, Fleming James, Jr.

Vanderbilt Law Review

Even if liability for indirect economic consequences of negligence may in some cases be too broad and open-ended to be endured, care should be taken to see whether that is true in all types of situations; if it is not true, one must examine whether a rule may be fashioned to separate the wheat from the chaff. In this discussion it has been assumed that if the pragmatic consideration has any validity, it is in the field of indirect economic loss rather than that of physical damage. As one commentator put it, "only a limited amount of physical damage can …

Damages-Compensation For Curtailment Of Life Expectancy As A Separate Element Of Damages-Downie V. United States Lines Co., Michigan Law Review

Michigan Law Review

While plaintiff was aboard ship as an employee of the defendant, he suffered a heart attack which was aggravated by the negligence of one of defendant's employees. In suing under the Jones Act for damages caused by this aggravation of his condition, plaintiff sought recovery for the eight year curtailment of his life expectancy as a separate and distinct item of damages, independent of the economic loss sustained as a result of such curtailment. The jury made a general award of $86,900 of which $25,000 was a special award for the curtailment of plaintiff's life. On defendant's motion, the trial …

Admiralty- Shipowner's Right To Indemnification For Loss Caused By Latently Defective Gear Supplied By Nonnegligent Stevedoring-Compnay, John W. Erickson

Michigan Law Review

Defendant stevedoring company contracted to perform stevedoring services for plaintiff shipowner. Pursuant to its agreement to supply gear for the job, the stevedoring company supplied a latently defective rope, the breaking of which caused injury to a longshoreman, an employee of the stevedoring company. The longshoreman obtained a judgment against the shipowner under the doctrine of unseaworthiness, and in a separate action the shipowner sought indemnification from the stevedoring company. The district court, finding the stevedoring company not negligent, denied recovery. The Court of Appeals for the Ninth Circuit affirmed, one judge dissenting. On certiorari to the United States Supreme …

Advocating The Rights Of The Injured, Benjamin Marcus

Michigan Law Review

When workmen's compensation was first introduced a half century ago, it was felt necessary to cushion the shock in a number of ways. One of these was the idea of a bargain, an exchange, in which the worker, to obtain the new remedy based on liability without fault, gave up his existing remedy, the right to a tort action against his employer for a negligent injury. It is time that the terms of that bargain be re-examined.

Longshoreman-Shipowner-Stevedore: The Circle Of Liability, Harney B. Stover, Jr.

Michigan Law Review

It is universally recognized that in the past two decades the United States Supreme Court has substantially revised the law under which seamen, longshoremen and harbor workers (or their survivors) may recover damages for personal injury and death. One of the more recent and most authoritative texts in the field of admiralty and maritime law devotes an entire chapter, 147 pages in length, to the subject of the rights of seamen and maritime workers (or their survivors) of recovery for injury and death. The introduction to that chapter likens the Court's rewriting of the law in this field to a …

The Casual Relation Issue In Negligence Law, Leon Green

Michigan Law Review

Two significant legal studies of "Causation"-one English, one American-have been recently published. The English book brings to the subject more scholarly learning and a more comprehensive examination of its literature than any other book that has been written. The authors are devoted disciples of causation principles and make a stout defense of the causation concept as the structural core of negligence law. They examine the philosophical, common sense and semantic backgrounds of causal concepts as the basis of legal liability, find that they have merit, and launch extended, and sometimes devastating, attack upon theories that question their adequacy, though in …

Workermen's Compensation-Third-Party Actions-Employer's Recovery On An Implied Warranty, Philip Sotiroff

Michigan Law Review

Plaintiff seeks to recover the amount of a workmen's compensation award paid to his employee as a result of injuries received when an exhaust valve malfunctioned causing a press which the employee was operating to double-trip. Defendant, an independent parts supplier who had sold plaintiff the valve, moved to dismiss the complaint because of insufficiency of evidence to sustain the verdict and plaintiff's legal incapacity to sue. On appeal from an order denying the motion to dismiss, held, affirmed, one judge dissenting. Plaintiff has two independent causes of action, one against the manufacturer on an assigned negligence theory, and …

Sales - Implied Warranty - Privity Of Contract As A Prerequisite To Recovery From Manufacturer, John L. Peschel S. Ed.

Michigan Law Review

Plaintiff sustained injuries in the course of his employment when a defective abrasive wheel, while being used in its intended manner, exploded in his face. The abrasive wheel was purchased by plaintiff's employer directly from the manufacturer. Plaintiff sought recovery from the manufacturer on two grounds: negligence in the manufacture of the abrasive wheel and breach of implied warranty for fitness of purpose. The negligence issue was submitted to the jury, which returned a verdict adverse to the plaintiff. The manufacturer's demurrer to the cause of action based upon implied warranty was sustained by the trial court. On appeal from …

Admiralty - Unseaworthiness - Recovery For Injuries Resulting From Condition Arising After Commencement Of The Voyage, John L. Peschel

Michigan Law Review

Plaintiff, a member of the crew of a fishing vessel, sustained injuries while disembarking when he slipped on a slimy substance on the ship railing. In an action brought against the shipowner, the seaman sought recovery on three alternative grounds: first, under the Jones Act based upon negligence; second, under general maritime law based upon the obligation of the shipowner to furnish a seaworthy vessel; third, under general maritime law for maintenance and cure. Judgment was entered pursuant to a verdict limiting the seaman to recovery for maintenance and cure. On the seaman's appeal from the adverse verdict on the …

Negligence - Damages - Mental Anguish From Witnessing Peril Of Third Party, Mark Shaevsky

Michigan Law Review

Plaintiffs (husband, wife, and three children) incurred physical injuries and a fourth child was burned to death in an automobile collision with the defendant's vehicle. Plaintiffs claimed compensation for mental anguish sustained from witnessing the death of the child. Defendant's motion to strike the allegations of mental suffering, held, granted. Defendant owes no legal duty to protect plaintiffs from mental suffering caused by viewing another in peril. Lessard v. Tarca, (Conn. Super. 1957) 133 A. (2d) 625.

Limitations Of Action - Applicable Statute - Third-Party Injury Provision Agreed To By Contractor Subject To Contract Limitation Only, Walter L. Adams

Michigan Law Review

More than two years following an accident in which they sustained personal injuries when their car fell into defendant's excavation, plaintiffs filed a diversity action in a federal court stating inter alia a cause of action based upon a third-party beneficiary contract entered into by defendant street contractor and the City of Philadelphia for which he was working. The contract provided in essence that defendant alone would be liable for damage sustained by any third party "irrespective of whether or not such injuries ... be due to negligence or the inherent nature of the work." The district court dismissed the …

Negligence - Breach Of Duty - Liability Of Telephone Company For Failure To Relay Fire Alarm, Cyril Moscow S.Ed.

Michigan Law Review

Upon discovering a fire within his business building, plaintiff immediately went to the telephone and dialed the operator. After telling her his address and requesting that she call the fire department, he left the telephone to fight the fire. The message was not transmitted. When the fire department finally arrived in response to an alarm by a neighbor, the fire was out of control and the entire building was destroyed. Plaintiff sought damages, alleging that the telephone company held itself out to the public as willing to convey messages in case of emergency, and that failure to transmit his message …

Agency To Make Representations, Merton Ferson

Vanderbilt Law Review

Representations, commands, threats and other utterances are a species of acts and may have legal consequences. An utterance may, for example, constitute fraud, negligence, slander or intimidation. The person who speaks is responsible and it may be that another person, in whose behalf the utterance was made, also is responsible. This discussion has to do with the question of what must be shown to establish the ability' of one person to speak in behalf of another, and thus to make the other liable for the legal consequences.

Pledge - Liability Of Pledgee For Depreciation Of Corporate Stock

Michigan Law Review

The plaintiff brought suit to recover the value of a promissory note for which the defendant had pledged corporate stock as collateral security. Defendant filed a counterclaim for the depreciation in value of the stock between the time he had requested the plaintiff to sell and the time of bringing the suit. Held, that plaintiff was not liable for the depreciation of the stock since the pledgor had made no offer to pay pledgee such sum as would together with the price for which the stock could have been sold satisfy the note. People's Nat. Bank & Trust Co. …

Fraud-By Third Party-Mistake As To Nature Of Transaction-Rescission As Remedy

Michigan Law Review

The plaintiff was injured as a result of the alleged negligence of the defendant company. His attorney induced him to sign a general release, representing that it was only a receipt for seven hundred and fifty dollars paid on account by the defendant company. The plaintiff was illiterate and relied upon the fraudulent representations of his attorney. In an action to set aside the release, held, on a motion for judgment on the pleadings, that the complaint stated a cause of action, and that the plaintiff was not negligent in relying upon the representations of his attorney. Affirmed. Pimpinello …

The Early Liability Of A Bailee, Norman F. Arterburn

Michigan Law Review

All discussion of the origin of the absolute liability of a common carrier of goods naturally harks back to the earliest conception of a bailment and its related remedies. We have had two diametrically opposed views urged as to the first liability of the ordinary bailee. Justice Holmes and numerous other authorities take the view that the liability in the' first instance was absolute in the case of all bailees. Professor Beale is the exponent of the opposing view, that such liability was qualified to such an extent that it amounted in fact, only to negligence liability. An interpretation of …

Recent Important Decisions, Michigan Law Review

Michigan Law Review

Admiralty - Workmen's Compensation - Is a Hydroplane a Vessel? - Claimant was employed in the care and management of a hydroplane which was moored in navigable waters. The hydroplane began to drag anchor and drift toward the beach, where it was in danger of being wrecked. Claimant waded into the water and was struck by the propeller. Held, claimant is not entitled to compensation under the Workmen's Compensation Law, since a hydroplane while on navigable waters is a vessel, and therefore the jurisdiction of the admiralty excludes that of the State Industrial Commission. Reinhardt v. Newport Flying Service Corp. …

Liability Of Manufacturer To Remote Vender For Defective Automobile Wheel, Horace Lafayette Wilgus

Articles

Plaintiff. in February, 19O9. purchased from the Utica Motor Car Company, a Cadillac six-passenger touring car, manufactured by the Cadillac Motor Car Company, of Michigan. The Utica company was a dealer in motor cars, and purchased to resell; it was the original vendee, and the plaintiff was the sub-vendee. The car was used very little until July 31, 1909, when the plaintiff, an experienced driver, while driving the car on a main public road in good condition, at a speed of 12 to 15 miles per hour, was severely and permanently injured by the right front wheel suddenly breaking down …

Liability Of Public Officer For The Loss Of Private Funds Entrusted To His Keeping, W. Gordon Stoner

Articles

There is much contrariety of decision concerning the liability of public officers for the loss of funds with which they have been entrusted. A recent case illustrates some of the more important phases of the law of such a situation. People for use of Hoyt et al. v. McGrath et al. (Ill. 1917), I17 N. E. 74. In this case the public brought an action of debt on the official bond of the clerk of court for the use of Hoyt and others. Usees had tendered into court a sum of money which the clerk took under the court's order …

Construction Of 'Survival Act' And 'Death Act' In Michigan, Thomas A. Bogle

Articles

It is known as the "Death Act." It was enacted in i848, amended in 1873, and follows closely Lord Campbell's Act. In the, construction of these acts, troublesome questions have arisen, difficulties have been encountered, different theories urged, different views entertained, different conclusions reached, and different opinions rendered, respecting the number of actions that can be maintained under them, the circumstances that invoke one rather than the other, the measure of damages applicable, respectively, and certain questions of practice as to the joinder of counts and the amendment of pleadings. The statement would hardly he justified that all these questions …

The Liability Of Charitable Corporations For The Torts Of Their Servants, Harry B. Hutchins

Articles

The Liability of Charitable Corporations for the Torts of their Servants.--This question was discussed quite fully in the last number of the REVIEW, pp. 552-559, under the title Liability of Hospitals for the Negligence of their Physicians and Nurses, particular attention being given to the reasons underlying the doctrine that charitable corporations are not liable for the negligence of their servants, provided proper care has been exercised in their selection, and to the limitations within which that doctrine should be confined. It was concluded that the true reason for the doctrine is not to be found, as many cases apparently …

Liability Of Hospitals For The Negligence Of Their Physicians And Nurses, Harry B. Hutchins

Articles

Liability of Hospitals for the Negligence of their Physicians and Nurses.-This question was recently examined by the Supreme Court of Utah in the case of Gitzhoffen v. Sisters of Holy Cross Hospital Association, 88 Pac. Rep. 691 (Jan. 26, 1907), and the opinion filed may well serve as a basis for comment. The hospital association was sued for damages for injuries that plaintiff claimed to have sustained through the negligence of defendant's nurses.

Liability Of Public Officers To Private Actions For Neglect Of Official Duty, Thomas M. Cooley

Articles

A public office is a public trust.The incumbent has a property right in it, but the office is conferred, not for his benefit, but for the benefit of the political society. The duties imposed upon the officer are supposed to be capable of classification under one of three heads: the legislative, executive, or judicial; and to pertain, accordingly, to one of the three departments of the government designated by these names. But the classification cannot be very exact, and there are numerous officers who cannot be classified at all under these heads. The reason will be apparent if we name …