Torts Commons^™

Summary Of Sanchez V. Wal-Mart, 125 Nev. Adv. Op. No. 60, Shana S. Brouwers

Nevada Supreme Court Summaries

Plaintiffs/Appellants appeal from a district court dismissal of their complaint against several pharmacies for wrongful death and personal injury in a common-law negligence and negligence per se action.

Negligence And Insufficient Activity: The Missing Paradigm In Torts, David Gilo, Ehud Guttel

Michigan Law Review

Conventional wisdom in tort law maintains that the prevention of undesirable risks mandates restriction of harmful conduct. Against this widely held conviction, this Article shows that undesirable risks often stem from insufficient, rather than excessive, activity. Because negligence requires investments in only cost-justified care, parties might deliberately limit their activity so that the size of the ensuing risk would be lower than the cost of welfare-enhancing precautions. Parties' incentives to strategically restrict their activity levels have striking implications for the inducement of efficient harm prevention. The overlooked paradigm of insufficient activity calls for the imposition of a new form of …

Comfortably Numb: Medicalizing (And Mitigating) Pain-And-Suffering Damages, Lars Noah

University of Michigan Journal of Law Reform

Among the compensatory damages that a plaintiff may recover in tort litigation, awards for pain and suffering have attracted the most attention. Attorneys, judges, legislators, and scholars from various disciplines long have struggled to measure and make sense of this aspect of compensation for tortiously caused injuries. With the steady expansion of what falls within the rubric of nonpecuniary damages and in the types of claims eligible for such awards, to say nothing of the growth in the absolute and relative size of this portion of compensatory awards, pain-and-suffering damages have become increasingly controversial.

Although it canvasses the competing arguments …

Torts, Deron R. Hicks, Travis C. Hargrove

Mercer Law Review

This Article surveys recent developments in Georgia tort law between June 1, 2008 and May 31, 2009.

Product Liability, Franklin P. Brannen Jr., Jacob E. Daly

Mercer Law Review

This Article surveys developments in Georgia product liability law during the period of June 1, 2008 through May 31, 2009. It covers noteworthy cases decided during the survey period by the Georgia appellate courts, the United States Supreme Court, the United States Court of Appeals for the Eleventh Circuit, and United States district courts located in Georgia. In addition, this Article discusses bills considered by the Georgia General Assembly during its 2009 session that are particularly relevant to product liability cases.

A Healthy Diet Of Preemption: The Power Of The Fda And The Battle Over Restricting High Fructose Corn Syrup From Food And Beverages Labeled 'Natural', Adam C. Schlosser

Journal of Food Law & Policy

America is unhealthy. America faces an obesity epidemic. The food consumed by Americans is making them fat. Americans, bombarded every single day by negative headlines like these, are becoming more and more health conscious. This newfound commitment to health is reflected in the food and beverages Americans purchase.

A Sea Of Confusion: The Shipowner's Limitation Of Liability Act As An Independent Basis For Admiralty Jurisdiction, Amie L. Medley

Michigan Law Review

The Shipowner's Limitation of Liability Act of 1851 allowed the owner of a vessel to limit his liability in the case of an accident to the value of the vessel and its cargo if he could show he had no knowledge of or participation in the negligent act that resulted in the loss. In 1911, the Supreme Court decided Richardson v. Harmon, a case which was interpreted for several decades to hold that the Limitation Act formed an independent basis for admiralty jurisdiction. In a 1990 case, the Supreme Court stated in a footnote that it would not reach …

Election Of Remedies In The Twenty-First Century: Centra Health, Inc. V. Mullins, L. Steven Emmert

University of Richmond Law Review

No abstract provided.

Civil Practice And Procedure, Hon. Jane Marum Roush

University of Richmond Law Review

No abstract provided.

Private Production Of Public Goods: Liability For Unrequested Benefits, Ariel Porat

Michigan Law Review

This Article explores why the law treats negative externalities (harms) and positive externalities (benefits) differently. Ideally, from an economic perspective, both negative and positive externalities should be internalized by those who produce them, for with full internalization, injurers and benefactors alike would behave efficiently. In actuality, however, whereas the law requires that injurers bear the harms they create (or wrongfully create), benefactors are seldom entitled to recover for benefits they voluntarily confer on recipients without the latter's consent ( "unrequested benefits"). One aim of this Article is to explore the puzzle of the law's differing treatment of negative and positive …

Summary Of Webb V. Clark County School District, 125 Nev. Adv. Op. No. 47, Joseph Mott

Nevada Supreme Court Summaries

Appeal from Eighth Judicial District Court ruling that (1) the Paul D. Coverdell Teacher Protection Act of 2001 (Coverdell Act) is an affirmative defense and (2) expenses for psychological services rendered by an unlicensed person are recoverable.v

Pecuniary Reparations Following National Crisis: A Convergence Of Tort Theory, Microfinance, And Gender Equality, Anita Bernstein

Faculty Scholarship

No abstract provided.

Summary Of Rodriguez V. Primadonna Co. Llc, 125 Nev. Adv. Op. No. 45, Keith Pickard

Nevada Supreme Court Summaries

Appeal and cross-appeal from an Eighth Judicial District Court’s grant of summary judgment in a tort action.x-ms

The Definition Of "Accident" In Canadian Coverage Cases And The Unspoken "Useful Purpose" Test, Eric J. Adams

Dalhousie Law Journal

Thispaper argues that courts tacitly weigh risks againstrewards when constructing the meaning of the term "accident." It suggests the phrase "courting the risk" takes on two distinct meanings. Firstly, at some point, the risks associated with an activity are said to be so substantial as to suggest an insured expected and, thus, courted any resulting losses.. Secondly, a party is deemed to court the risk of. loss if acting solely for the experience of risk, in and of itself,and not for any other redeeming benefit. The author outlines the evolution of the term "accident" in the case law and contrasts …

Normativity, Fairness, And The Problem Of Factual Uncertainty, Andrew Botterell, Christopher Essert

Osgoode Hall Law Journal

This article concerns the problem of factual uncertainty in negligence law. We argue that negligence law's insistence that fair terms of interaction be maintained between individuals--a requirement that typically manifests itself in the need for the plaintiff to prove factual or "but-for" causation--sometimes allows for the imposition of liability in the absence of such proof. In particular, we argue that the but-for requirement can be abandoned in certain situations where multiple defendants have imposed the same unreasonable risk on a plaintiff, where the plaintiff suffers the very sort of harm that rendered the risk unreasonable, and where the plaintiff cannot …

Equal Accountability Through Tort Law, Jason M. Solomon

Faculty Publications

No abstract provided.

Not Your Mother's Remedy: A Civil Action Response To The Westboro Baptist Church's Military Funeral Demonstrations, Chelsea Brown

West Virginia Law Review

No abstract provided.

Coordinating Sanctions In Torts, Kyle D. Logue

Law & Economics Working Papers Archive: 2003-2009

This Article begins with the canonical law-and-economics account of tort law as a regulatory tool, that is, as a means of giving regulated parties the optimal ex ante incentives to minimize the costs of accidents. Building on this regulatory picture of tort law, the Article asks the question how tort law should coordinate with already existing non-tort systems of regulation. Thus, for example, if a particular activity is already subject to extensive agency-based regulation, regulation that already addresses the negative externalities or other market failures associated with the activity, what regulatory role remains for tort law? Should tort law in …

Litigation Realities Redux, Kevin M. Clermont

Cornell Law Faculty Publications

Both summarizing recent empirical work and presenting new observations on each of the six phases of a civil lawsuit (forum, pretrial, settlement, trial, judgment, and appeal), the author stresses the needs for and benefits from understanding and using empirical methods in the study of the adjudicatory system's operation.

The Unintended Consequence Of Tort Reform In Michigan: An Argument For Reinstating Retailer Product Liability, Ashley L. Thompson

University of Michigan Journal of Law Reform

Tort reform became an important issue during the 1994 Congressional Campaign as part of the Republican Party's "Contract with America. "Since then, many federal and state laws have attempted to reduce both liability and recovery in tort actions. In 1996, Michigan passed the Tort Reform Act, encompassing many drastic changes to state tort law. One provision of the Act, § 294 7, scaled back liability against non-manufacturing retailers in product liability actions. The Michigan Supreme Court interpreted the exceptions of the law narrowly and the prohibition broadly, essentially barring recovery from retailers. Since 1996, this provision has prevented victims injured …

Health Law-Informed Consent-Trust Me, I Do This All The Time: Comparative Provider Statistics And Informed Consent In Arkansas, Barrett S. Moore

University of Arkansas at Little Rock Law Review

No abstract provided.

The God Paradox, Joshua A.T. Fairfield

Scholarly Articles

Not available.

Let Us Never Blame A Contract Breaker, Richard A. Posner

Michigan Law Review

Holmes famously proposed a "no fault" theory of contract law: a contract is an option to perform or pay, and a "breach" is therefore not a wrongful act, but merely triggers the duty to pay liquidated or other damages. I elaborate the Holmesian theory, arguing that fault terminology in contract law, such as "good faith," should be given pragmatic economic interpretations, rather than be conceived of in moral terms. I further argue that contract doctrines should normally be alterable only on the basis of empirical investigations.

In (Partial) Defense Of Strict Liability In Contract, Robert E. Scott

Michigan Law Review

Many scholars believe that notions of fault should and do pervade contract doctrine. Notwithstanding the normative and positive arguments in favor of a fault-based analysis of particular contract doctrines, I argue that contract liability is strict liability at its core. This core regime is based on two key prongs: (1) the promisor is liable to the promisee for breach, and that liability is unaffected by the promisor's exercise of due care or failure to take efficient precautions; and (2) the promisor's liability is unaffected by the fact that the promisee, prior to the breach, has failed to take cost-effective precautions …

Fault In Contract Law, Eric A. Posner

Michigan Law Review

A promisor is strictly liable for breaching a contract, according to the standard account. However, a negligence-based system of contract law can be given an economic interpretation, and this Article shows that such a system is in some respects more attractive than the strict-liability system. This may explain why, as a brief discussion of cases shows, negligence ideas continue to play a role in contract decisions.

The Fault That Lies Within Our Contract Law, George M. Cohen

Michigan Law Review

Scholars and courts typically describe and defend American contract law as a system of strict liability, or liability without fault. Strict liability generally means that the reason for nonperformance does not matter in determining whether a contracting party breached. Strict liability also permeates the doctrines of contract damages, under which the reason for the breach does not matter in determining the measure of damages, and the doctrines of contract formation, under which the reason for failing to contract does not matter In my Article, I take issue with the strict liability paradigm, as I have in my prior work on …

An Information Theory Of Willful Breach, Oren Bar-Gill, Omri Ben-Shahar

Michigan Law Review

Should willful breach be sanctioned more severely than inadvertent breach? Strikingly, there is sharp disagreement on this matter within American legal doctrine, in legal theory, and in comparative law. Within law-and-economics, the standard answer is "no "-breach should be subject to strict liability. Fault should not raise the magnitude of liability in the same way that no fault does not immune the breaching party from liability. In this paper, we develop an alternative law-and-economics account, which justifies supercompensatory damages for willful breach. Willful breach, we argue, reveals information about the "true nature" of the breaching party-that he is more likely …

Could Breach Of Contract Be Immoral?, Seana Shiffrin

Michigan Law Review

Some scholars defend the contract law's ban on punitive damage awards on the grounds that breach of contract, in itself, is not morally wrong. In this Article, I offer two responses. First, I refute one prevalent argument of Steven Shavell's in support of this view. Shavell argues that contractual breach is not immoral in those cases in which the legal regime would offer expectation damages because the contracting parties would not have agreed to require performance had they explicitly deliberated about the circumstances occasioning the breach. I criticize his argument for failing to justify this hypothetical-contract approach and, in any …

Res Ipsa Loquitur In The Restatement (Third) Of Torts: Liability Based Upon Naked Statistics Rather Than Real Evidence, Daniel J. Pylman

Chicago-Kent Law Review

Using the doctrine of res ipsa loquitur, courts have accounted for the fact that there may be instances where a plaintiff is unable to present any evidence of a specific negligent act or omission and yet where the injury to the plaintiff and the surrounding circumstances suggest that the defendant did in fact negligently cause the injury. Despite the fact that the doctrine of res ipsa has been well-accepted by American courts, the courts have struggled to appropriately formulate the doctrine so as to achieve its important purpose of allowing recovery in appropriate situations while not formulating it so …

Restraining False Light: Constitutional And Common Law Limits On A "Troublesome Tort", James B. Lake

Federal Communications Law Journal

The defamation tort is the common law's established remedy for false speech that causes reputational and emotional injury. That tort is subject to intricate constitutional, legislative, and common law rules that have evolved over decades. The false light invasion of privacy tort also provides a potential cause of action in response to injurious falsehood. False light, however, has been subject to much less judicial and legislative scrutiny than defamation. As a result, courts often are uncertain about the proper limits on false light and, in some cases, have countenanced false light claims that would have failed if filed as defamation …