Torts Commons^™

Design Defect Liability: In Search Of A Standard Of Responsibility, Mary J. Davis

Law Faculty Scholarly Articles

Responsibility for the consequences of our own actions and occasionally for the actions of others seems to have been largely forgotten as a foundation for governing conduct. This Article advocates re-emphasizing responsibility in one important area, that of manufacturer liability for product design. To that end, the author proposes the highest standard of conduct by which to judge product manufacturers' design decisions. The standard proposed in this Article is higher than merely reasonable, prudent conduct and is not the allegedly "strict" liability frequently imposed. The standard this Article proposes reflects an emphasis on responsible conduct in light of the special …

The Moral Foundations Of Products Liability Law: Toward First Principles, David G. Owen

Faculty Publications

No abstract provided.

The Recognition Of Social Host Liability In North Carolina - Hart V. Ivey, Donna L. Shumate

Campbell Law Review

This Note will first trace the development of social host liability in North Carolina and in other jurisdictions. Second, the Note will list the positions on social host liability adopted by other jurisdictions. Finally, this Note will analyze the Hart decision by explaining the disagreement between the North Carolina Court of Appeals and the North Carolina Supreme Court on the rationale to be employed, and by noting how the stage is now set for further expansion of social host liability.

Using Comparative Fault To Replace The All-Or-Nothing Lottery Imposed In Intentional Torts Suits In Which Both Plaintiff And Defendant Are At Fault , Gail D. Hollister

Faculty Scholarship

All or nothing. For years this idea of absolutes has been a hallmark of tort law despite the inequities it has caused. Plaintiffs must either win a total victory or suffer total defeat. In recent years courts and legislatures have begun to recognize the injustice of the all-or-nothing approach and to replace it with rules that permit partial recoveries that are more equitably tailored to the particular facts of each case. The most dramatic example of this more equitable approach is the nearly universal rejection of contributory negligence in favor of comparative fault in negligence cases. Almost all jurisdictions, however, …

Innocents And Experience: The Disturbing Record Of Legal Reform In Montana, Greg Munro

Faculty Journal Articles & Other Writings

This article provides a summary of the legacy of "tort reform" in Montana in the areas of medical negligence, workers' compensation, immunities, damages, and a miscellaneous grouping that includes product liability, joint and several liability, wrongful discharge, insurance consumers, arbitration, and collateral-source rule.

Hudson V. Mcmillian And Prisoners' Rights: The Court Giveth And The Court Taketh Away, Doretha M. Van Slyke

American University Law Review

No abstract provided.

Galileo's Retort: Peter Huber's Junk Scholarship, Kenneth J. Cheesbro

American University Law Review

No abstract provided.

Will A New Restatement Help Settle Troubled Waters: Reflections, James A. Henderson, Jr., Aaron D. Twerski

American University Law Review

No abstract provided.

The Case For A Feminist Torts Casebook, Carl W. Tobias

Law Faculty Publications

Professor Leslie Bender's recent essay, An Overview of Feminist Torts Scholarship, contributes substantially to the construction of feminist perspectives on tort law. She carefully and comprehensively surveys burgeoning feminist scholarship in the field of torts. Professor Bender closely examines feminist histories of substantive tort law, the application of feminist theory to tort doctrine, to tort law concepts, and to the teaching of torts, tort issues that are important to women's lives, social science research involving feminism and torts, book reviews that are relevant to feminist tort law, and overviews of material that implicate feminist viewpoints of torts. After Professor Bender …

Products Liability Tort Reform: Why Virginia Should Adopt The Henderson Twerski Proposed Revision Of Section 402a, Restatement (Second) Of Torts, Peter N. Swisher

Law Faculty Publications

The purpose of this Article is fourfold: first, to illustrate that there is currently a newer, more balanced consensus view in American products liability law today; second, to demonstrate that this current, realistically balanced, consensus in American products liability law is persuasively codified in a proposed revision to section 402A, Restatement (Second) of Torts, by Professors James Henderson and Aaron Twerski; third, to compare and contrast current Virginia products liability law with the Henderson- Twerski proposed revision of section 402A; fourth, to propose new legislation in Virginia that would incorporate the Henderson-Twerski proposal, and would realistically reform existing Virginia products …

Medical Device Technology: Does Federal Regulation Of This New Frontier Preempt The Consumer's State Common Law Claims Arising From Injuries Related To Defective Medical Devices?, Susan M. Mesner

Journal of Law and Health

The purpose of this paper is to explore the relationship between federal medical device regulation and state common law tort actions. Specifically, the issue to be addressed is whether the Medical Devices Act and regulations promulgated thereunder preempt state law damage actions brought by injured consumers against device manufacturers. An analysis of the preemptive provision of the Medical Devices Act and case law construing this provision is set forth below. The United States Supreme Court's recent preemption analysis in Cipollone v. Liggett Group, Inc. will be used as a guide in establishing a useful method for determining whether state tort …

Potential Toxic Tort Litigation: Will Used Oil Be The Asbestos Of The 21st Century , Ronald P. Tomallo Jr.

Journal of Law and Health

This paper explores why there has been so little litigation in this area considering both the harm posed by used oils and the high rate of exposure in many occupations. To aid in an analysis, three distinct topics will be addressed. First, basic information establishing the harm caused by prolonged exposure to used lubricating oils will be presented which will aid in understanding the potential liability. Second, existing case law shall be analyzed. Finally, the development of future litigation will be explored. Plaintiffs in these suits will typically be persons exposed to used oil by common machine lubrication applications - …

Products Liability Tort Reform: Why Virginia Should Adopt The Henderson-Twerski Proposed Revision Of Section 402a Restatement (Second) Of Torts, Peter Nash Swisher

University of Richmond Law Review

Over the past three decades, literally thousands of American products liability judicial opinions have explicitly referred to, and analyzed, section 402A of the Second Restatement of Torts. At least thirty-four states have judicially adopted section 402A, and

five other states have passed specific statutes adopting the section.3 Since the landmark products liability case of Greenman v. Yuba Power Products,Inc.4 in 1963, at least forty-five states have now adopted some form of strict liability in tort remedy in American products liability actions.5 Only Virginia and four other states do

not recognize a strict liability in tort remedy applied to state prod- …

Does The Reasonable Woman Exist And Does She Have Any Place In Hostile Environment Sexual Harrassment Claims Under Title Vii After Harris (Student Note), Liesa L. Richter

Faculty Articles

No abstract provided.

Revising Section 402a: The Limits Of Tort As Social Insurance, James A. Henderson Jr.

Touro Law Review

No abstract provided.

Strict Products Liability Under Restatement (Second) Of Torts § 402a: "Don't Throw The Baby Out With The Bathwater", M. Stuart Madden

Touro Law Review

No abstract provided.

Osha Evidence In Federal Court Products Liability Actions: Too Prejudicial To Be Admissible To Prove A Machine's Safety Or Defect, Or Simply Additional Evidence For The Fact Finder?, Michael Siris

Touro Law Review

No abstract provided.

The Neumeier-Schultz Rules: How Logical A "Next Stage In The Evolution Of The Law" After Babcock?, Gary J. Simson

Cornell Law Faculty Publications

No abstract provided.

Private Insurance, Social Insurance, And Tort Reform: Toward A New Vision Of Compensation For Illness And Injury, Kenneth S. Abraham, Lance Liebman

Faculty Scholarship

The United States does not have a system for compensating the victims of illness and injury; it has a set of different institutions that provide compensation. We rely on both tort law and giant programs of public and private insurance to compensate the victims of illness and injury. These institutions perform related functions, but the relationships among them are far from coherent. Indeed, the institutions sometimes work at cross-purposes, compensating some victims excessively and others not at all.

The absence of a coherent system of compensation is reflected even in suggested reforms of existing institutions. Proposals to reform tort law …

Perspectives On A Torts Course, Anita Bernstein

Faculty Scholarship

No abstract provided.

Outing: Justifiable Or Unwarranted Invasion Of Privacy? The Private Facts Tort As A Remedy For Disclosures Of Sexual Orientation, Barbara Moretti

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Cigarette Warnings: The Perils Of The Cipollone Decision, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

In Cipollone v Liggett Group, Inc., a splintered Court concluded that cigarette smokers who are injured through their consumption of tobacco may bring some state law tort claims against the manufacturers of the cigarettes. Other claims, however, are preempted by federal legislation requiring cigarette packages and advertising to bear warning labels, the specific wording of which is dictated by statute. After a detailed examina- tion of the economics of hazard warning systems, Professor Viscusi argues that the most important economic issues in the Cipollone case were cor- rectly resolved in Justice Stevens'plurality opinion, which contained little overt economic reasoning. The …

Product Liability, Research And Development, And Innovation, W. Kip Viscusi, Michael J. Moore

Vanderbilt Law School Faculty Publications

Product liability ideally should promote efficient levels of product safety, but misdirected liability efforts may depress beneficial innovations. This paper examines these competing effects of liability costs on product R & D intensity and new product introductions by manufacturing firms. At low to moderate levels of expected liability costs, there is a positive effect of liability costs on product innovation. At very high levels of liability costs, the effect is negative. At the sample mean, liability costs increase R & D intensity by 15 percent. The greater linkage of these effects to product R & D rather than process R …

Products Liability Cases On Appeal: An Empirical Study, Theodore Eisenberg, James A. Henderson Jr.

Cornell Law Faculty Publications

This article analyzes 1,100 opinions to find the determinants of products liability cases on appeal in state and federal courts. The strongest predictor of plaintiff success on appeal is whether the plaintiff prevailed in a jury trial. Other important factors are the defendant's status as manufacturer, wholesaler, or successor corporation; the plaintiffs degree of injury; and whether the case involved a failure-to-warn claim. The existence of a comparative negligence regime increases the tendency of appellate courts to affirm lower courts. These results allow rejection of a simple model in which pre- and posttrial settlement behavior filters out cases in which …

Will A New Restatement Help Settle Troubled Waters: Reflections, James A. Henderson Jr., Aaron Twerski

Cornell Law Faculty Publications

No abstract provided.

Understanding The Malpractice Wars, Thomas B. Metzloff

Faculty Scholarship

No abstract provided.

The Clinton Administration And Civil Justice Reform, Carl W. Tobias

Law Faculty Publications

Governor Bill Clinton was inaugurated as the President of the United States last month. The federal courts are one area of critical significance to the nation in which the Chief Executive can play a major role in important substantive and procedural policymaking. Moreover, President Clinton, as a former law professor and Arkansas Attorney General, may be particularly interested in issues involving the federal courts.

The Clinton Administration will have to address numerous issues that implicate the federal courts throughout its tenure, but especially during the first year in office. Some of these questions, such as the abolition of diversity jurisdiction, …