Torts Commons^™

Idaho's Law Of Seduction, Michael L. Smith

Faculty Articles

Seduction is a historical cause of action that permitted women's fathers to bring suit on their daughters' behalf in sexual assault and rape cases. This tort emerged long ago when the law's refusal to recognize women's agency left this as the only means of recovering damages in these cases. As time went on, the tort evolved, and women were eventually permitted to bring lawsuits for seduction on their own behalf. Today, most states have abolished seduction, along with other torts permitting recovery for damages arising from intimate conduct. One could be easily forgiven for thinking that such an archaic tort …

An Analysis Of Products Liability Defenses In The Aftermath Of Hopkins., John F. Scarzafava

St. Mary's Law Journal

Abstract Forthcoming.

Misreading Menetti: The Case Does Not Help You Avoid Liability For Your Own Fraud, Val D. Ricks

St. Mary's Law Journal

Several decades ago, an incorrect legal idea surfaced in Texas jurisprudence: that business entity actors are immune from liability for fraud that they themselves commit, as if the entity is solely responsible. Though the Supreme Court of Texas has rejected that result several times, it keeps coming back. The most recent manifestation is as a construction of Texas’s unique veil-piercing statute. Many lawyers have suggested that this view of the veil-piercing statute originated in Menetti v. Chavers, a San Antonio Court of Appeals case decided in 1998. Menetti has in fact played a prominent role in the movement to …

The Ratio Method: Addressing Complex Tort Liability In The Fourth Industrial Revolution, Harrison C. Margolin, Grant H. Frazier

St. Mary's Law Journal

Emerging technologies of the Fourth Industrial Revolution show fundamental promise for improving productivity and quality of life, though their misuse may also cause significant social disruption. For example, while artificial intelligence will be used to accelerate society’s processes, it may also displace millions of workers and arm cybercriminals with increasingly powerful hacking capabilities. Similarly, human gene editing shows promise for curing numerous diseases, but also raises significant concerns about adverse health consequences related to the corruption of human and pathogenic genomes.

In most instances, only specialists understand the growing intricacies of these novel technologies. As the complexity and speed of …

Lech's Mess With The Tenth Circuit: Why Governmental Entities Are Not Exempt From Paying Just Compensation When They Destroy Property Pursuant To Their Police Powers, Emilio R. Longoria

Faculty Articles

On June 29, 2020, the Supreme Court denied certiorari in Lech v. Jackson, a Tenth Circuit inverse condemnation case, which held that governmental entities are categorically exempt from paying just compensation when they destroy private property pursuant to their police powers. This denial of certiorari cements a highly controversial circuit court holding into our takings jurisprudence the effects of which will be serious and far reaching. This article dissects the Tenth Circuit's opinion in Lech and explains how and why this holding should be revisited. If it is not, we risk losing the protection that the Fifth Amendment's Just Compensation …

Borrowing American Ideas To Improve Chinese Tort Law, Yongxia Wang

St. Mary's Law Journal

As China develops its modern jurisprudence it faces a choice between emulating the legal frameworks of civil law countries or common law countries. Thus far, the civil law path has allowed for a rapid expansion of Chinese tort law, but jurists have found difficulty in applying such generalized statutory schemes with the absence of supporting judicial interpretation. Cognizant of the differences between the public policy of common law countries and China, Vincent Johnson’s Mastering Torts (Měiguó Qīnquán Fǎ) provides this guidance through the lens of American tort law. The hornbook takes care to simplify the role of judicial …

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 …

Breaking The Silence: Holding Texas Lawyers Accountable For Sexual Harassment, Savannah Files

St. Mary's Journal on Legal Malpractice & Ethics

Following the 2017 exposure of Harvey Weinstein, the #MeToo movement spread rapidly across social media platforms calling for increased awareness of the prevalence of sexual harassment and assault and demanding change. The widespread use of the hashtag brought attention to the issue and successfully facilitated a much-needed discussion in today’s society. However, this is not the first incident prompting a demand for change.

Efforts to bring awareness and exact change in regards to sexual harassment in the legal profession date back to the 1990s. This demonstrates that the legal profession is not immune from these issues. In fact, at least …

Keep Suing All The Lawyers: Recent Developments In Claims Against Lawyers For Aiding & Abetting A Client’S Breach Of Fiduciary Duty, Katerina P. Lewinbuk

St. Mary's Journal on Legal Malpractice & Ethics

Lawyers have increasingly become subject to liability under various legal theories, ranging from traditional legal malpractice or negligence liability claims to various third-party actions. Most recently, state and federal courts across the country have recognized attorney liability for aiding and abetting a client’s breach of fiduciary duty. This Article will address the current status of the cause of action for a lawyer’s aiding and abetting her client’s breach of fiduciary duty, explain the commonalities and distinguish nuances as outlined by particular states, examine recent decisions by federal courts that have recognized the cause of action, and culminate in its conclusion …

Socialized Liability In Chinese Tort Law, Chenglin Liu

Faculty Articles

This article explores two unique aspects of the Chinese Tort Liability Law (TLL): (1) Article 24 holds that a party not at fault shall share the loss with the victim in non-strict liability cases under undefined circumstances, and (2) the government often shields a party at fault from liability in mass tort cases by disregarding the TLL entirely. These two aspects may seem contradictory; however, they are both based on the same principle of socialized liability, which is first articulated in this article.

Scholars often claim that Article 24 embodies the principle of equitable liability. This article challenges such claims …

Enhancing Cybersecurity In The Private Sector By Means Of Civil Liability Lawsuits - The Connie Francis Effect, Jeffrey F. Addicott

Faculty Articles

The purpose of this article is to explore the threats posed by cybersecurity breaches, outline the steps taken by the government to address those threats in the private sector economy, and call attention to the ultimate solution, which will most certainly spur private businesses to create a more secure cyber environment for the American people-a Connie Francis-styled cyber civil action lawsuit.

The History Of The Rise Of The Alien Tort Statute And The Future Implications Of Kiobel V. Royal Dutch Shell., Sung Je Lee

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

The United States Supreme Court did not clearly define what facts invoke the Alien Tort Statute (ATS). The Court also failed to provide guidance as to what claims touch and concern the territory of the United States. Enacted by the Continental Congress in the late 18th century, ATS states that federal district courts shall have original jurisdiction of any civil action by an alien for a tort committed in violation of the law of nations or a treaty of the United States. Because ATS has remained dormant for nearly 200 years, various federal courts have experienced immense difficulty interpreting its …

Do Black Lives Matter? Race As A Measure Of Injury In Tort Law., Alberto Bernabe

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

Courts should not recognize an injury for wrongful birth or wrongful life based on the race of the child. In Cramblett v. Midwest Sperm Bank, the petitioner contracted with a sperm bank to be artificially inseminated from an anonymous sperm donor. The petitioner selected a donor with blond hair and blue eyes. The sperm bank accidentally inseminated the petitioner with sperm from a different donor. Petitioner gave birth to a mixed-race baby girl. Two years after the birth, petitioner filed a lawsuit against the sperm bank alleging wrongful birth. The court dismissed her case, nonetheless the issue remains whether race …

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 …

Oh Lord Won't You Buy Me A Mercedes Benz: A Comparison Of State Wrongful Conviction Compensation Statutes., Donna Mckneelen

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

All states should pass compensation statutes that provide financial assistance to exonerees. Following wrongful incarceration, exonerees may suffer from post-traumatic stress and may need assistance readjusting to everyday life. Many exonerees may be be ineligible for social benefits and may lack a support system. The exoneree may be alienated because family and friends may still believe that the exoneree actually committed the crime. Furthermore, exonerees may struggle to obtain employment because they lack the current educational and job training skills required for most jobs. Additionally, exonerees may have pre-existing health problems that were exacerbated while incarcerated. An exoneree’s health problems …

Malpractice Liability Related To Foreign Outsourcing Of Legal Services, Vincent R. Johnson, Stephen C. Loomis

Faculty Articles

The outsourcing of client-related tasks to service providers in other countries is likely to generate malpractice claims against American law firms. This Article discusses the wide range of theories under which an outsourcing American law firm may be liable for its own negligence or for the actions of outsourcing providers. These theories include negligence by the outsourcing law firm, vicarious liability for the conduct of firm principals and employees, vicarious liability for the conduct of independent contractors, and vicarious liability for the conduct of business partners.

The Rule Of Law And Enforcement Of Chinese Tort Law, Vincent R. Johnson

Faculty Articles

The majority of the work necessary to advance the Rule of Law in China is yet to be done. This is particularly the case as it relates to deterring accidents and compensating injuries. The Rule of Law is concerned with much more than the substantive terms of legal provisions. As such, China must develop the institutional practices that will bring to fruition the promise of the new Tort Law. In part, this will entail the proper selection, retention, and protection of judges. It will also depend on whether persons have access to the justice system, either through competent counsel or …

The Boundary-Line Fuction Of The Economic Loss Rule, Vincent R. Johnson

Faculty Articles

No abstract provided.

The Effect Of Tort Reform On Tort Case Filings, Patricia W. Moore

Faculty Articles

Does so-called "tort reform" decrease tort case filings? In Texas and other states that have enacted numerous rounds of tort reform, the answer appears to be a resounding "yes," at least as of the year 2000. More recent evidence from Oklahoma supports that conclusion and provides an interesting case study within the tort reform juggernaut.

During at least the past twenty years, tort reformers have achieved substantial legislative successes and, some would argue, public relations victories. Yet their desire for more "reform" seems insatiable, and their legislative agenda rarely sleeps.

Tort reform bills bloom perennially in the Oklahoma legislature, and …

Americans Abroad: International Educational Programs And Tort Liability, Vincent R. Johnson

Faculty Articles

In recent decades, the number of foreign programs operated by American colleges and universities has greatly expanded. Until recently, there were few reported cases involving claims arising from foreign educational ventures. However, the increase in international study abroad programs has been paralleled by an increase in tort claims. Additionally, because of the tendency of tort cases to be settled, the number of unreported cases, based on harm to students participating in study abroad programs, may be considerably larger than what appears in legal research databases.

Given the high cost of potential litigation, a program provider has no choice but to …

Cybersecurity, Identity Theft, And The Limits Of Tort Liability, Vincent R. Johnson

Faculty Articles

Tort law is the best vehicle for allocating the risks and spreading the costs of database intrusion. It can incentivize database possessors (“possessors”) and data subjects to minimize the harm associated with breaches of database security while also balancing each party’s interests. Life is built upon computerized databases and the information of those databases is subject to hackers and other cyber-threats, which can cause catastrophic damage. It is hard to identify hackers; however, a better object for recovery is likely the possessors who fail to prevent or reveal a security breach.

The law governing database possessors’ liability is far from …

Deterrence And Origin Of Legal System: Evidence From 1950-1999, Michael L. Smith

Faculty Articles

This article offers evidence on legal systems' deterrence of acts that may cause harm, which extends law—and finance—literature comparing common law and civil code systems. Fatality rates from two causes are used to gauge deterrence: (1) motor vehicle accidents and (2) accidents other than motor vehicle. Both vary significantly across countries classified by origin of legal system. The data cover 50 years, offering evidence on evolution of differences over time. Findings for accidents other than motor vehicle are evidence on legal system flexibility, as the diffuse set of causes increases the difficulty of specifying harmful actions ex ante.

Bitter Medicine: A Critical Look At The Mental Health Care Provider’S Duty To Warn In Texas, Charles E. Cantú, Margaret H. Jones Hopson

Faculty Articles

A quarter of a century has passed since Tarasoff v. Regents of the University of California first imposed a duty of care upon mental health care professions for third parties. In Tarasoff, the California Supreme Court held that once a therapist determines, or reasonably should have determined, a patient poses a significant danger of violence to others, the therapist bears a duty to exercise reasonable care to protect the foreseeable victim from that danger.

Tarasoff has since been widely accepted by both legislatures and courts as the basis for imposing the duty of reasonable care upon mental health care professionals …

The Recycling, Dismantling, And Destruction Of Goods As A Foreseeable Use Under Section 402a Of The Restatement (Second) Of Torts, Charles E. Cantú

Faculty Articles

The past thirty years have witnessed the significant expansion and transformation of products liability law. While much of the initial confusion regarding the application and interpretation of Section 402A of the Restatement (Second) of Torts has been settled, some problems remain.

One of these problem areas involves the allocation of liability for injuries resulting from the destruction, dismantling, and recycling of products whose useful lives have come to an end. In this situation, the law has evolved to provide a rule that imposes no liability upon the manufacturer. The courts have reasoned that individuals engaged in reclamation procedures are not …

A New Look At An Old Conundrum: The Determinative Test For The Hybrid Sales/Service Transaction Under Section 402a Of The Restatement (Second) Of Torts, Charles E. Cantú

Faculty Articles

Historically, the concept of strict tort liability was confined to two areas: injuries resulting from dangerous activities, and harm inflicted by wild and/or dangerous animals. However, in 1963, the California Supreme Court held in Greenman v. Yuba Power Products that the theory of strict liability in tort also included products. Then, in 1965, The Restatement (Second) of Torts adopted Section 402A and endorsed the theory of Greenman that strict liability was available as a distinct cause of action in litigation involving injuries caused by defective products.

Though there was some initial confusion associated with the application of some of the …

Privacy, Charles E. Cantú

Faculty Articles

No abstract provided.

Recovery Of Exemplary Damages From The Estate Of A Tortfeasor Is Permitted Under The Texas Survival Statute., Scott A. Hennis

St. Mary's Law Journal

Abstract Forthcoming.

Wrongful Life: The Child's Cause Of Action For Negligent Genetic Counseling In Texas., James M. Parker Jr.

St. Mary's Law Journal

Abstract Forthcoming.

Unit Owner's Liability For Tort Claims Arising From Common Elements Due To Negligence Of Owner's Association Limited To Proportionate Ownership In Common Elements Symposium - Selected Topics On Land Use Law - Case Note., Jacquelyn L. Bain

St. Mary's Law Journal

No abstract provided.

Physician Owes Duty Of Care To Third Party When His Negligence In Failing To Warn Patient Not To Drive Contributes To Third Party's Injury., Kevin L. Kelley

St. Mary's Law Journal

Abstract Forthcoming.