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Articles 1 - 30 of 77
Full-Text Articles in Torts
The Coast Guard: Always Ready, Sometimes Careful, Edward D. Leonard Iii
The Coast Guard: Always Ready, Sometimes Careful, Edward D. Leonard Iii
Maine Law Review
The government presently is liable for the negligent conduct of the Coast Guard. Why and how such liability arises is the subject of this comment. In considering this subject three central questions are presented: First, whether the various acts abrogating the sovereign immunity of the federal government have been correctly applied to the Coast Guard; second, assuming that sovereign immunity has been waived, the extent of the duty owed by the Coast Guard to persons in distress; and third, after a finding of liability, the effect of the statutory extension of the admiralty doctrine of limitation of liability upon damage …
Proof Of Defect In A Strict Products Liability Case, Robert F. Hanson
Proof Of Defect In A Strict Products Liability Case, Robert F. Hanson
Maine Law Review
The realization that negligence doctrines do not provide an adequate remedy for consumers injured by defective products has led many courts to adopt theories of strict liability. Justification for the strict liability doctrine rests on the judicial belief that the law should provide maximum protection for the health and safety of all consumers, and that the manufacturer is "conditionally at fault" if he does not compensate consumers injured by his defective products. Manufacturers are not held liable for all product-related harm to consumers. To recover the plaintiff must plead and prove that the product which caused the harm was defective …
Beaulieu V. Beaulieu: An Obituary For Lex Loci And An Approach To Interest Analysis, David C. Shonka
Beaulieu V. Beaulieu: An Obituary For Lex Loci And An Approach To Interest Analysis, David C. Shonka
Maine Law Review
Clifford Beaulieu, a guest in his father's automobile, was injured when the vehicle struck a telephone pole in Massachusetts. Both parties were residents of Maine. The trip had originated in Maine and was to terminate there. The son filed an action against his father in the Maine Superior Court, alleging negligent operation of the vehicle. On an agreed statement of facts, the case was reported to the Maine Supreme Judicial Court where the defendant argued for dismissal of the action on the grounds that the doctrine of lex loci delictus, the law of the place of the tort, was applicable …
Wallace V. Coca-Cola Bottling Plants, Inc.: Defective Products, Expanded Liability, And The Demise Of The Impact Rule, Robert A. Whidden
Wallace V. Coca-Cola Bottling Plants, Inc.: Defective Products, Expanded Liability, And The Demise Of The Impact Rule, Robert A. Whidden
Maine Law Review
During the last decade there has been a rapid change in the theories of recovery in cases involving defective products. A majority of jurisdictions has adopted strict products liability as a tort. Others still employ implied warranty, a device, apparently tort, borrowed from contract law. A minority still holds that a plaintiff must prove his claim in negligence. In a recent decision, Wallace v. Coca-Cola Bottling Plants, Inc., the Maine Supreme Judicial Court addressed the question of the extent of a manufacturer's liability for a defective product and the nature of the proof necessary to show a compensable injury. This …
Wallace V. Coca-Cola Bottling Plants, Inc.: Defective Products, Expanded Liability, And The Demise Of The Impact Rule, Robert A. Whidden
Wallace V. Coca-Cola Bottling Plants, Inc.: Defective Products, Expanded Liability, And The Demise Of The Impact Rule, Robert A. Whidden
Maine Law Review
During the last decade there has been a rapid change in the theories of recovery in cases involving defective products. A majority of jurisdictions has adopted strict products liability as a tort. Others still employ implied warranty, a device, apparently tort, borrowed from contract law. A minority still holds that a plaintiff must prove his claim in negligence. In a recent decision, Wallace v. Coca-Cola Bottling Plants, Inc., the Maine Supreme Judicial Court addressed the question of the extent of a manufacturer's liability for a defective product and the nature of the proof necessary to show a compensable injury. This …
Beaulieu V. Beaulieu: An Obituary For Lex Loci And An Approach To Interest Analysis, David C. Shonka
Beaulieu V. Beaulieu: An Obituary For Lex Loci And An Approach To Interest Analysis, David C. Shonka
Maine Law Review
Clifford Beaulieu, a guest in his father's automobile, was injured when the vehicle struck a telephone pole in Massachusetts. Both parties were residents of Maine. The trip had originated in Maine and was to terminate there. The son filed an action against his father in the Maine Superior Court, alleging negligent operation of the vehicle. On an agreed statement of facts, the case was reported to the Maine Supreme Judicial Court where the defendant argued for dismissal of the action on the grounds that the doctrine of lex loci delictus, the law of the place of the tort, was applicable …
Comparative Negligence And Comparative Contribution In Maine: The Need For Guidelines, Maine Law Review
Comparative Negligence And Comparative Contribution In Maine: The Need For Guidelines, Maine Law Review
Maine Law Review
In the recent case of Packard v. Whitten, Maine became the second state to adopt the doctrine of comparative contribution among joint tortfeasors. The decision stressed the point that comparative contribution was merely a logical outgrowth of Maine's Comparative Negligence Statute and that, in particular, the 1969 amendment to that law "would appear to have little purpose except to lay the basis for a comparative contribution." The court concluded that the implementation of this new doctrine would pose no major problems: "More than five years' experience in apportioning causal fault under our Comparative Negligence Law convinces us that this change …
The Role Of The Maine Law Court In Abrogating The Common Law Doctrines Of Governmental And Charitable Immunity From Tort Liability, Maine Law Review
The Role Of The Maine Law Court In Abrogating The Common Law Doctrines Of Governmental And Charitable Immunity From Tort Liability, Maine Law Review
Maine Law Review
During the last decade the Maine Law Court refused to overrule two common law doctrines which effectively insulated certain tortfeasors from liability for their negligent conduct. The purpose of this comment is to determine if the public policy issues embodied in the immunity rules and the reliance interests attributed to those rules by the Law Court justified the radical departure from the court's traditional role of deciding cases properly before it.
The Role Of The Maine Law Court In Abrogating The Common Law Doctrines Of Governmental And Charitable Immunity From Tort Liability, Maine Law Review
The Role Of The Maine Law Court In Abrogating The Common Law Doctrines Of Governmental And Charitable Immunity From Tort Liability, Maine Law Review
Maine Law Review
During the last decade the Maine Law Court refused to overrule two common law doctrines which effectively insulated certain tortfeasors from liability for their negligent conduct. The purpose of this comment is to determine if the public policy issues embodied in the immunity rules and the reliance interests attributed to those rules by the Law Court justified the radical departure from the court's traditional role of deciding cases properly before it.
Cyr V. B. Offen & Co.: Liability Of Business Transferees For Product Injuries, Maine Law Review
Cyr V. B. Offen & Co.: Liability Of Business Transferees For Product Injuries, Maine Law Review
Maine Law Review
The development of the law of products liability since MacPherson v. Buick Motor Co. has extended liability without fault to wholesalers, retailers, lessors, bailors, and trademark licensors. But the liability of a transferee of business assets for claims arising from the transferor's products after the change in business ownership has never been clearly established. Although commercial creditors generally have been unable to reach the transferee's assets, recent cases have pointed to additional factors that may distinguish products liability plaintiffs from commercial creditors. The liability question is especially important where the transferor, a seller of consumer goods, has dissolved prior to …
The Repair Rule: Maine Rule Of Evidence 407(A) And The Admissibility Of Subsequent Remedial Measures In Proving Negligence, Maine Law Review
The Repair Rule: Maine Rule Of Evidence 407(A) And The Admissibility Of Subsequent Remedial Measures In Proving Negligence, Maine Law Review
Maine Law Review
Evidence of subsequent repairs is generally excluded when submitted for admission as circumstantial evidence of negligence. Although this Comment will examine various theories under which such evidence has been held inadmissible, these theories are all based on one of two assumptions. Evidence of subsequent repairs has been excluded either because it is regarded as irrelevant to the issue of negligence, or although relevant, as incompetent because its admission is believed to counteract the strong public policy to encourage repairs. Most modern rules of evidence now base the exclusion on the public policy rationale. Thus, the effect of the subsequent repair …
New Policies Bearing On The Negligent Employer's Immunity From Loss-Sharing, Maine Law Review
New Policies Bearing On The Negligent Employer's Immunity From Loss-Sharing, Maine Law Review
Maine Law Review
The statutory and judicial controls on loss-sharing between third-party tortfeasor and negligent employer must yield in the face of major modern developments in tort law. The third party's tort liability burden has sharply increased both in amount and frequency. New attitudes towards loss-apportionment highlight the imbalance that results from the employer's immunity and subrogation right. Although the situation is ripe for legislative action, courts, in the absence of full-scale systemic reassessment, must attempt some balancing of the competing policy objectives. While this Comment concludes by urging the adoption of a specific remedy allowing the third party to assert the employer's …
Tortious Withholding Of Insurance Benefits: Gibson V. National Ben Franklin Ins. Co., Maine Law Review
Tortious Withholding Of Insurance Benefits: Gibson V. National Ben Franklin Ins. Co., Maine Law Review
Maine Law Review
The Maine Workers' Compensation Act provides that an employer's compensation carrier shares the employer's immunity from common law suit. If the carrier delays or withholds benefits owed an injured employee under an approved compensation agreement, the Act imposes a fine on the carrier and permits the employee to recover the overdue compensation payments by invoking the equity powers of the Superior Court. The Act makes no provision for redress when the carrier refuses to pay, a potential limitation recently confronted by the Maine Supreme Judicial Court in Gibson v. National Ben Franklin Insurance Company. In reversing the trial court's dismissal …
Tort Law Developments, Maine Law Review
Tort Law Developments, Maine Law Review
Maine Law Review
Any discussion of recent tort law developments in Maine should begin with the abrogation of sovereign immunity, for in the timing of that far-reaching act the Law Court revealed the essence of its approach to this entire area, at once expanding liability while ensuring its careful limitation. Other progressive changes, such as the judicial creation of a new tort remedy in the cause of action for invasion of privacy, have also been hedged with restrictions. Similarly, in charting the development of legislatively created or enlarged grounds of liability in such realms as products liability or owners' and occupiers' duties to …
The Tort Triangle: Contribution From Defendants Whom Plaintiffs Cannot Sue, Michael T. Hertz
The Tort Triangle: Contribution From Defendants Whom Plaintiffs Cannot Sue, Michael T. Hertz
Maine Law Review
The rights of contribution and indemnity between tortfeasors often conflict with other rules foreclosing or limiting one tortfeasor's liability to the plaintiff. Take a simple case involving interspousal immunity. The plaintiff, spouse of one tortfeasor (the "protected tortfeasor"), is injured in a collision between an automobile driven by the spouse and another driven by the second tortfeasor (the "claiming tortfeasor"). The plaintiff brings an action against the claiming tortfeasor, who then claims over against the protected spouse. Many courts hold that because the claiming and protected tortfeasors owe no "common liability" to the plaintiff, contribution will not lie. In some …
Tortious Interference With The Expectancy Of A Legacy: Harmon V. Harmon, Paul F. Driscoll
Tortious Interference With The Expectancy Of A Legacy: Harmon V. Harmon, Paul F. Driscoll
Maine Law Review
The decision of the Maine Supreme Judicial Court in Harmon v. Harmon established that a plaintiff has a remedy in damages for tortious interference with the expectancy of a legacy which may be sought prior to the testator's death. The purpose of this Note is to examine the Harmon court's reasoning, the utility of the remedy announced in Harmon in light of pre-existing plaintiffs' remedies, and the potential consequences of that decision. The development of these themes will require an examination of the decisional law background of the Harmon decision and an analysis of the legal status of testamentary expectancies.
Developments In The News Media Privilege: The Qualified Constitutional Approach Becoming Common Law, Lawerence J. Mullen
Developments In The News Media Privilege: The Qualified Constitutional Approach Becoming Common Law, Lawerence J. Mullen
Maine Law Review
In late 1977 and early 1978, the Boston Globe published a series of articles about a Delaware corporation engaged in building fiberglass boats in New Hampshire. The articles reported a number of allegedly serious defects in the boats, some of which may have contributed to sinkings. Critical comments of boat owners, surveyors, Coast Guard officers, company employees and a repairman were included. The builder was given an opportunity to respond in part of one article. Provoked by this quotidien instance of investigative journalism, the boat builder brought a libel action against the Globe in federal district court. The boat builder's …
The Constitutional Law Of Defamation—Recent Developments And Suggested State Court Responses, Susan Gail Shorey
The Constitutional Law Of Defamation—Recent Developments And Suggested State Court Responses, Susan Gail Shorey
Maine Law Review
Prior to the 1964 decision in New York Times Co. v. Sullivan, defamation law in the United States was controlled by common law principles developed in the state courts. In New York Times the United States Supreme Court staked out an area of first amendment privilege, which limited the states' power to permit recovery in defamation actions brought by public officials. Later extensions of this constitutional privilege made it appear for a time that constitutional requirements would produce a unified nation-wide body of defamation law to replace the various common law rules followed in the fifty states. In view of …
Duty, Foreseeability, And The Negligent Infliction Of Mental Distress, Mark A. Beede
Duty, Foreseeability, And The Negligent Infliction Of Mental Distress, Mark A. Beede
Maine Law Review
Under early common law if the act of a person gave rise to an action at law, he would be liable for resulting damages regardless of fault. A person acted at his peril. The limitation on liability, if any, lay not with a concept of duty but with a medieval sort of proximate cause. “There is little trace of any notion of. . . an obligation to any one individual, as essential to the tort. The defendant's obligation to behave properly apparently was owed to all the world.” With the merging of the common law actions of trespass and trespass …
Comparative Negligence In Jackson V. Frederick's Motor Inn: What Is Compared?, Nancy Lynn Diesel
Comparative Negligence In Jackson V. Frederick's Motor Inn: What Is Compared?, Nancy Lynn Diesel
Maine Law Review
Before 1965, the defense of contributory negligence was an absolute bar to a plaintiff's recovery in tort actions in Maine. Under the contributory negligence principle, any degree of fault attributable to the plaintiff defeated his or her claim; the fault of the plaintiff and of the defendant was not compared. In 1965, the Maine Legislature enacted the Comparative Negligence Act in order to eliminate the harshness and inequities of the contributory negligence doctrine. The Act also served to stop juries from using compromise verdicts to reach a fair result. Under the Act, a plaintiff's fault is compared with that of …
Damage Apportionment In Maine: A Proposal For Reform, Barry A. Bachrach
Damage Apportionment In Maine: A Proposal For Reform, Barry A. Bachrach
Maine Law Review
Most jurisdictions have some form of comparative negligence system. Such systems reflect an evolving policy of equating liability with a proportional percentage of fault. Yet a vast majority of jurisdictions that have adopted comparative negligence also retain the common law rules of either joint and several liabilities or entire liability. Although these rules derive from discrete common law roots, the rules currently stand for the proposition that a tort-feasor should be responsible for all the damages his or her negligence proximately caused. Thus, even though a jurisdiction adopts comparative negligence, simultaneous application of the incongruent common law rules may frequently …
Informed Consent In Maine: Woolley V. Henderson And The Informed Consent Statute, John C. Milazzo
Informed Consent In Maine: Woolley V. Henderson And The Informed Consent Statute, John C. Milazzo
Maine Law Review
In recent years, American courts have used two different standards in informed consent actions to define the scope of a physician's duty to disclose to his patient the risks inherent in a proposed medical procedure—the professional disclosure standard and the material-risk standard. In Woolley v. Henderson, the Maine Law Court expressly adopted the professional disclosure standard. Prior to the Law Court's decision, however, but after the cause of action in Woolley arose, the Maine Legislature enacted the Maine informed consent statute. Justice Glassman's opinion in Woolley expressly declined to construe the statute. The continued relevance of Woolley to similar cases …
Unconsented Educational Pelvic Exams On Anesthetized Patients: The Collapse Of Legal And Ethical Safeguards For Patient Consent, Rachel Beth Cohen
Unconsented Educational Pelvic Exams On Anesthetized Patients: The Collapse Of Legal And Ethical Safeguards For Patient Consent, Rachel Beth Cohen
Maine Law Review
It is a troubling reality that medical students in some U.S. teaching hospitals perform pelvic examinations on anesthetized surgical patients without their explicit knowledge or consent. These unconsented educational pelvic examinations raise serious ethical and legal concerns. Although professional medical societies agree that specific and voluntary consent is a fundamental ethical prerequisite for conducting such examinations, this standard has been frequently disregarded in practice. The law offers little practical deterrence to this violation of patient autonomy. Tort law provisions on battery and informed consent are ineffective in addressing the issue, while state legislatures have largely failed, or outright refused, to …
The Private Cause Of Action Under Maine's Unfair Trade Practices Act, Steven A. Shaw
The Private Cause Of Action Under Maine's Unfair Trade Practices Act, Steven A. Shaw
Maine Law Review
In 1970 the Maine Legislature passed the Unfair Trade Practices Act (UTPA) which declared unlawful any "unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce . . . ." UTPA-type statutes, now common to all states, offer several advantages. The statutes provide for a statutory award of attorneys' fees, create a private cause of action which is simple in comparison to analogous common law claims, and offer a flexible concept of unlawful conduct which many courts have shown a willingness to interpret broadly and sympathetically. Although Maine's UTPA was originally …
Hospital Accountability In Health Care Delivery, C. Elisabeth Belmont
Hospital Accountability In Health Care Delivery, C. Elisabeth Belmont
Maine Law Review
In recent years, the role of community hospitals in health care delivery has undergone a dramatic change. Until the latter half of the twentieth century, a hospital was merely a "doctor's workshop," providing physicians with the physical facilities, equipment, and personnel necessary to treat their private patients. Due to progressive medical technology, today's hospital has moved from a passive role in patient care to more active participation in the delivery of total health care. The hospital has become a health care provider in its own right, furnishing a broad range of diagnostic and outpatient services, home care assistance, and specialized …
The Decline Of The Privity Rule In The Maine Law Of Tort Products Liability: A Conceptual History, Dennis M. Patterson
The Decline Of The Privity Rule In The Maine Law Of Tort Products Liability: A Conceptual History, Dennis M. Patterson
Maine Law Review
No single issue has more preoccupied modern jurisprudential writers than the limitations of precedent on the lawmaking power of judges. Yet despite this singular concentration, no scholarly consensus has emerged regarding what those limitations are or what form they should take. This continuing theoretical dispute recently manifested itself in a series of decisions rendered by the Law Court. Last spring in the case of Adams v. Buffalo Forge Co., the Law Court reconsidered a significant aspect of two decisions of the previous term: Burke v. Hamilton Beach Division and Hurd v. Hurd. In Burke and Hurd the court decided that …
The Vitality Of The Doctrine Of Punitive Damages In Maine, Kevin F. Gordon
The Vitality Of The Doctrine Of Punitive Damages In Maine, Kevin F. Gordon
Maine Law Review
On four separate occasions between December 1981 and February 1982, the Maine Supreme Judicial Court called into question the continued vitality of the common law doctrine of punitive damages. The substantive propriety of punitive damages was not challenged by any of the defendants in those four cases. As a result, the Law Court assumed for the purposes of each opinion that punitive damages could be awarded by a court "in some instances without explicit statutory authorization." Nevertheless, in a footnote to Braley v. Berkshire Mutual Insurance Co., the court challenged this assumption. Noting that the doctrine of punitive damages initially …
Who Should Recover For Loss Of Consortium?, Martin S. Amick
Who Should Recover For Loss Of Consortium?, Martin S. Amick
Maine Law Review
For more than three centuries courts have recognized a husband's right, where a tortious injury to his wife detrimentally affects the spousal relationship, to recover damages for loss of consortium. For many years the prevailing view was that a wife had no corresponding right to bring a similar action in response to a tortious injury to her husband. Most jurisdictions, however, now allow both the husband and the wife to recover for loss of "spousal" consortium. The right to recover for loss of consortium was extended to the wife largely because modern courts recognized that it was inconsistent and unjustifiably …
Common Law Sovereign Immunity And The Maine Tort Claims Act: A Rose By Another Name, R. Michael Martin
Common Law Sovereign Immunity And The Maine Tort Claims Act: A Rose By Another Name, R. Michael Martin
Maine Law Review
On October 12, 1976, the Maine Supreme Judicial Court allowed a Bath homeowner to sue the city for damage to her property resulting from the city's negligence. The case was Davies v. City of Bath and its significance was twofold. First, for decades before the Davies decision the Maine Supreme Judicial Court had routinely refused to consider such suits because of the doctrine of sovereign immunity. Fifteen years before Davies the court had expressed dissatisfaction with the doctrine, but until 1976 had repeatedly refused to abrogate it. Second, the Davies decision was significant because the Maine Legislature, under the guiding …
Proof Of Causation In A Private Action For Acid Rain Damage, Patrick J. Scully
Proof Of Causation In A Private Action For Acid Rain Damage, Patrick J. Scully
Maine Law Review
The acid rain problem has become one of the major environmental issues of our day. Each new report on the subject is more disturbing than the last, documenting serious and often irreversible effects of acid rain on lakes and streams, fish and other aquatic life, forests, soils, buildings, and even human health. Present federal legislation is inadequate to deal with acid rain effectively. Proposed legislation could help ameliorate the problem, but even if adopted the effects of such proposals will not be felt until early in the next century. Furthermore, the current administration, particularly the Environmental Protection Agency (EPA), has …