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Torts Commons™

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2009

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Articles 61 - 90 of 149

Full-Text Articles in Torts

The Status Of Tort Reform (S.B. 3) 4 Years Later, Thomas A. Eaton Jan 2009

The Status Of Tort Reform (S.B. 3) 4 Years Later, Thomas A. Eaton

Presentations and Speeches

Overview of tort reform changes under Georgia S.B. 3 (2005)

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Annoyancetech Vigilante Torts And Policy, Robert F. Blomquist Jan 2009

Annoyancetech Vigilante Torts And Policy, Robert F. Blomquist

Law Faculty Publications

The twenty-first century has ushered in demand by some Americans for annoyancetech devices—novel electronic gadgets that secretly fend off, punish, or comment upon perceived antisocial and annoying behaviors of others. Manufacturers, marketers, and users of certain annoyancetech devices, however, face potential tort liability for personal and property damages suffered by the targets of this “revenge by gadget.” Federal, state, and local policymakers should start the process of coming to pragmatic terms with the troubling rise in the popularity of annoyancetech devices. This is an area of social policy that cries out for thoughtful and creative legislative solutions.

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The Trouble With Negligence Per Se, Robert F. Blomquist Jan 2009

The Trouble With Negligence Per Se, Robert F. Blomquist

Law Faculty Publications

No abstract provided.

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Proving Facts: Belief Versus Probability, Richard W. Wright Jan 2009

Proving Facts: Belief Versus Probability, Richard W. Wright

All Faculty Scholarship

No abstract provided.

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Unintended Consequences: The Primacy Of Public Trust In Vaccination, Jason L. Schwartz Jan 2009

Unintended Consequences: The Primacy Of Public Trust In Vaccination, Jason L. Schwartz

Michigan Law Review First Impressions

The increasing availability of personal belief exemptions from state vaccination requirements is a growing concern among proponents of vaccination. Holding parents of non-vaccinated children liable to those they infect is among the responses proposed to maintain high vaccination rates. Even if motivated by a sincere desire to maximize the benefits of vaccination throughout society, such a step would be inadvisable, further entrenching opponents of vaccination and adding to the atmosphere of confusion and unnecessary alarm that has become increasingly common among parents of children for whom vaccination is recommended.

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Challenging Personal Belief Immunization Exemptions: Considering Legal Responses, Alexandra Stewart Jan 2009

Challenging Personal Belief Immunization Exemptions: Considering Legal Responses, Alexandra Stewart

Michigan Law Review First Impressions

Public health agencies and citizens should employ legal approaches to hold parents accountable for refusing to vaccinate their children. The judiciary would craft an effective response to defeat the threat posed by these parents. Public-nuisance law may offer a legal mechanism to hold vaccine objectors liable for their actions.

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Commentary [On Negligent Infliction Of Emotional Distress], Oscar S. Gray Jan 2009

Commentary [On Negligent Infliction Of Emotional Distress], Oscar S. Gray

Faculty Scholarship

These comments question the terminology used in the Third Restatement of Torts for psychological effects, partially on the ground of obsolescence in light of developments in the neurosciences. Instead of the distinction emphasized in the Third Restatement between “physical harm” and “emotional disturbance” (or “distress”), they suggest a distinction between “harm” that constitutes an impairment of functionality, which would be treated as a free-standing basis for liability, like conventional diseases or injuries, and “mere feelings”, which would continue to be compensable in negligence only parasitically. Similarly, the interest protected should be regarded not as an interest in freedom from “disturbance” …

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Proximate Cause In Civil Damages, Michael E. Steenson Jan 2009

Proximate Cause In Civil Damages, Michael E. Steenson

Journal of Law and Practice

No abstract provided.

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Consumer Harm Acts? An Economic Analysis Of Private Actions Under State Consumer Protection Acts, Henry N. Butler, Jason S. Johnston Jan 2009

Consumer Harm Acts? An Economic Analysis Of Private Actions Under State Consumer Protection Acts, Henry N. Butler, Jason S. Johnston

Faculty Working Papers

State Consumer Protection Acts (CPAs) were adopted in the 1960s and 1970s to protect consumers from unfair and deceptive practices that would not be redressed but for the existence of the acts. In this sense, CPAs were designed to fill existing gaps in market, legal and regulatory protections of consumers. CPAs were designed to solve two simple economic problems: 1) individual consumers often do not have the incentive or means to pursue individual claims against mass marketers who engage in unfair and deceptive practices; and, 2) because of the difficulty of establishing elements of either common law fraud or breach …

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When Less Liability May Mean More Precaution: The Case Of Nanotechnology, David A. Dana Jan 2009

When Less Liability May Mean More Precaution: The Case Of Nanotechnology, David A. Dana

Faculty Working Papers

The heart of the Article is an exploration of the possible role of common law tort liability in both encouraging and deterring voluntary, precautionary study of new products generally and nanotechnology products in particular. A key variable in considering liability's role as an incentive or deterrent to testing is the manufacturer's subjective assessment of the probability that any injuries from its product would be detected by the injured parties and successfully attributed to the product absent research by the manufacturer itself on the adverse effects of the product. Another key variable is the legal standard for tort liability, and specifically …

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The Contextual Rationality Of The Precautionary Principle, David A. Dana Jan 2009

The Contextual Rationality Of The Precautionary Principle, David A. Dana

Faculty Working Papers

This article defines the precautionary principle (PP) primarily based on what it is not: it is not quantitative cost-benefit analysis (CBA) or cost-cost analysis of the sort we associate with the Office of Management and Budget in the United States and U.S. policymaking and policy discourse generally. In this definition, the PP is a form of analysis in which the costs of a possible environmental or health risk are not quantified, or if they are, any quantification is likely to be inadequate to capture the full extent of the costs of not taking regulatory measures to mitigate or avoid the …

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Tort Liability For Software Developers: A Law & Economics Perspective, 27 J. Marshall J. Computer & Info. L. 199 (2009), T. Randolph Beard, George S. Ford, Thomas M. Koutsky, Lawrence J. Spiwak Jan 2009

Tort Liability For Software Developers: A Law & Economics Perspective, 27 J. Marshall J. Computer & Info. L. 199 (2009), T. Randolph Beard, George S. Ford, Thomas M. Koutsky, Lawrence J. Spiwak

UIC John Marshall Journal of Information Technology & Privacy Law

This article explores the economic rationale for applying product liability law to computer software. As demonstrated in the article, a well-designed liability regime must place liability upon all parties who economically control the risks of accidents. Accordingly, this article finds that strict liability may be appropriate for certain types of “intrinsic” software, but not for other types of software requiring that the customer be actively involved in the selection, operation and maintenance thereof. The authors show that for this type of “extrinsic” software, a strict liability rule is unlikely to be economically optimal and, therefore, choosing a generic liability regime …

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Generic Preemption: Applying Conflict Preemption After Wyeth V. Levine, Hannah B. Murray Jan 2009

Generic Preemption: Applying Conflict Preemption After Wyeth V. Levine, Hannah B. Murray

Michigan Telecommunications & Technology Law Review

If a generic manufacturer does not have control over its safety warnings, can it comply with the obligations posed by state tort liability? State failure-to-warn actions evaluate whether a product manufacturer has met its obligation to warn consumers about known dangers associated with its product. In essence, if a manufacturer knows about a potentially dangerous outcome, it has a duty to warn its consumers. If the generic manufacturer can comply with a state duty to warn only by changing a label that the FDA will not allow it to change, it becomes impossible for the corporation to meet both requirements. …

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The Nature Of Universal Moralities, Bailey Kuklin Jan 2009

The Nature Of Universal Moralities, Bailey Kuklin

Faculty Scholarship

No abstract provided.

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What'cha Gonna Do Brother When Hulkmania Runs Wild On You: A Practitioner's Guide To Section 322.09 Of The Florida Statutes, Kansas R. Gooden Jan 2009

What'cha Gonna Do Brother When Hulkmania Runs Wild On You: A Practitioner's Guide To Section 322.09 Of The Florida Statutes, Kansas R. Gooden

St. Thomas Law Review

In the 1980s and 1990s, our generation grew up watching Hulk Hogan in the ring. We would watch in awe as he would rip his yellow and red shirt and scream catchy slogans. He told us to "[t]rain, say your prayers, and eat your vitamins., We watched him star in movies, such as Rocky III and Mr. Nanny. Later, our generation was hooked on Hogan Knows Best, a reality show featuring Hulk Hogan and his family, which aired on VH1. However, on August 26, 2007, the Hogans were forced into the spotlight for another reason. Nick, Hulk Hogan's youngest child, …

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One Strike And You're Out: Alcohol In The Major League Baseball Clubhouse, Steven B. Berneman Jan 2009

One Strike And You're Out: Alcohol In The Major League Baseball Clubhouse, Steven B. Berneman

Vanderbilt Journal of Entertainment & Technology Law

In the past decade, much has been written about Major League Baseball's (MLB) mistaken policies regarding performance-enhancing substance abuse by players. MLB executives are shortsighted, however, if they believe that steroids are the only substances being abused by players. Along with performance-enhancing drugs, professional baseball has a long-standing history of alcohol abuse. Steroids may provide better headlines--Congress has never held an investigation into alcohol abuse by professional athletes--but professional baseball faces a real danger from the unchecked liability of allowing players to overindulge at the ballpark and drive home shortly thereafter. By serving beer in the clubhouse after games, clubs …

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The Law And The Host Of The Canterbury Tales, 43 J. Marshall L. Rev. 51 (2009), Frederick B. Jonassen Jan 2009

The Law And The Host Of The Canterbury Tales, 43 J. Marshall L. Rev. 51 (2009), Frederick B. Jonassen

UIC Law Review

No abstract provided.

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Ride At Your Own Risk: Bicyling And Government Tort Immunity In Illinois, 43 J. Marshall L. Rev. 293 (2009), John Ochoa Jan 2009

Ride At Your Own Risk: Bicyling And Government Tort Immunity In Illinois, 43 J. Marshall L. Rev. 293 (2009), John Ochoa

UIC Law Review

No abstract provided.

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Shifting And Seizing: A Call To Reform Ohio's Outdated Restrictions On Drivers With Epilepsy, Kathryn Kramer Jan 2009

Shifting And Seizing: A Call To Reform Ohio's Outdated Restrictions On Drivers With Epilepsy, Kathryn Kramer

Journal of Law and Health

Presented herein is an analysis of the equity of epilepsy-related driving restrictions and the role that the state of Ohio may assume in the restructuring of such laws. Part two of this paper discusses the medical aspects of seizures and epilepsy, including basic etiology, treatments, and prognoses. Part three of this paper examines the different types of disabilities and the stigma that impacts individuals with epilepsy. Part four reviews the history of licensing and the Ohio Revised Code provisions that govern driving, licensing, and restrictions imposed upon individuals who have experienced seizures. Part five examines the Ohio case law that …

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My Lawyer Told Me To Say I'M Sorry: Lawyers, Doctors, And Medical Apologies, Peter B. Knapp Jan 2009

My Lawyer Told Me To Say I'M Sorry: Lawyers, Doctors, And Medical Apologies, Peter B. Knapp

Faculty Scholarship

The role of apologies in litigation has received a great deal of attention in the last ten years. This is particularly true of “medical apologies,” those expressions of regret and, in some cases, admissions of responsibility made by health care professionals. Two recent trends have prompted examination of medical apologies. First, widely reported empirical studies suggest that patients and their families may be less likely to bring malpractice lawsuits following adverse outcomes if treating physicians have apologized. Second, over about the past ten years, two-thirds of the states have adopted statutes that exclude these apologies from evidence if there is …

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The Problem Of Vaccination Noncompliance: Public Health Goals And The Limitations Of Tort Law, Daniel B. Rubin, Sophie Kasimow Jan 2009

The Problem Of Vaccination Noncompliance: Public Health Goals And The Limitations Of Tort Law, Daniel B. Rubin, Sophie Kasimow

Michigan Law Review First Impressions

Imposing tort liability on parents who fail to vaccinate their children would not serve the public health and public policy interests that drive childhood immunization efforts. The public policy goals of vaccination are to slow the spread of disease and to reduce mortality and morbidity. Our country’s public health laws already play a substantial role in furthering these goals. Although application of tort law may be an appropriate response to some of the problems that result from vaccination noncompliance, there also is a need to cultivate public understanding of the connection between individual actions and collective wellbeing. It is doubtful …

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Gambling With The Health Of Others, Stephen P. Teret, Jon S. Vernick Jan 2009

Gambling With The Health Of Others, Stephen P. Teret, Jon S. Vernick

Michigan Law Review First Impressions

The health and wellbeing of the public is, in part, a function of the behavior of individuals. When one individual’s behavior places another at a foreseeable and easily preventable risk of illness or injury, tort liability can play a valuable role in discouraging that conduct. This is true in the context of childhood immunization.

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Parents Should Not Be Legally Liable For Refusing To Vaccinate Their Children, Jay Gordon Jan 2009

Parents Should Not Be Legally Liable For Refusing To Vaccinate Their Children, Jay Gordon

Michigan Law Review First Impressions

Should a parent who takes advantage of a personal belief exemption to avoid vaccinating a child be held liable if that child infects other people? No, because there are valid medical reasons for choosing this exemption and tracing direct transmission of these illnesses from an unvaccinated child to another person is virtually impossible.

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Choices Should Have Consequences: Failure To Vaccinate, Harm To Others, And Civil Liability, Douglas S. Diekema Jan 2009

Choices Should Have Consequences: Failure To Vaccinate, Harm To Others, And Civil Liability, Douglas S. Diekema

Michigan Law Review First Impressions

A parent’s decision not to vaccinate a child may place others at risk if the child becomes infected and exposes others to the disease. Should an individual harmed by an infection transmitted from a child whose parents chose to forgo vaccination have a negligence claim against those parents? While I do not hold a legal degree and therefore cannot speak directly to issues of law, as a physician and ethicist it seems to me that the basic elements that comprise negligence claims—harm, duty, breach of duty, and causation—are met in some cases where parents forgo vaccination.

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Insufficient Activity And Tort Liability: A Rejoinder, David Gilo, Ehud Guttel Jan 2009

Insufficient Activity And Tort Liability: A Rejoinder, David Gilo, Ehud Guttel

Michigan Law Review First Impressions

In our article, Negligence and Insufficient Activity, we proposed that tort scholarship has overlooked the risk that injurers will behave strategically in setting their activity levels. Whereas the standard literature has predicted that injurers who are subject to a negligence regime will often invest efficiently in care but choose excessive activity levels, we showed that they may do exactly the opposite: injurers may deliberately restrict their activity to avoid investments in socially desirable precaution. After reviewing the conditions that may give rise to the risk of insufficient activity, we examined the ways in which the legal system can minimize the …

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Activity Levels Under The Hand Formula: A Comment On Gilo And Guttel, Richard A. Epstein Jan 2009

Activity Levels Under The Hand Formula: A Comment On Gilo And Guttel, Richard A. Epstein

Michigan Law Review First Impressions

A response to David Gilo & Ehud Guttel, Negligence and Insufficient Activity: The Missing Paradigm in Torts, 108 Mich. L. Rev. 277 (2009). Within the law and economics field, there often surfaces a near hypnotic attraction to the Hand formula as the one and only tool that drives tort law toward economic efficiency. Hand's intuition was, of course, that the test for efficiency requires a balancing of three variables. The burden of taking particular precautions is compared to the expected loss from some activity, which in turn consists of the likelihood of some particular harm multiplied by its anticipated severity. …

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Another Theory Of Insufficient Activity Levels, Mark Grady Jan 2009

Another Theory Of Insufficient Activity Levels, Mark Grady

Michigan Law Review First Impressions

A response to David Gilo & Ehud Guttel, Negligence and Insufficient Activity: The Missing Paradigm in Torts, 108 Mich L. Rev. 277 (2009). Professors David Gilo and Ehud Guttel have written an important article on the tendency of the negligence rule to produce inefficiently low activity levels. In Negligence and Insufficient Activity: The Missing Paradigm in Torts, the authors claim insufficient activity to be the "missing paradigm" in tort theory. Although I agree with Gilo and Guttel that this missing paradigm is central to negligence doctrine, I disagree with them about how insufficient activity levels arise.

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Insufficient Analysis Of Insufficient Activity, Kenneth S. Abraham Jan 2009

Insufficient Analysis Of Insufficient Activity, Kenneth S. Abraham

Michigan Law Review First Impressions

A response to David Gilo & Ehud Guttel, Negligence and Insufficient Activity: The Missing Paradigm in Torts, 108 Mich L. Rev. 277 (2009). In Negligence and Insufficient Activity: The Missing Paradigm in Torts, David Gilo and Ehud Guttel argue that negligence law encourages inefficiently high and low levels of activity because negligence law ordinarily does not take activity levels into account. They suggest that the law should impose liability for failing to take safety precautions-even where precautions would not be cost-justified-whenever the threat of this liability negates the incentive for an actor to choose an insufficient level of activity. Until …

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Dilution Of Liability And Multiple Tortfeasors In The Context Of Liability For Unrequested Precautions, Assaf Jacob Jan 2009

Dilution Of Liability And Multiple Tortfeasors In The Context Of Liability For Unrequested Precautions, Assaf Jacob

Michigan Law Review First Impressions

A Response to Ariel Porat, Private Production of Public Goods: Liability for Unrequested Benefits, 108 Mich. L. Rev. (2009). One of the more intriguing questions in tort law is the case of joint and several tortfeasors and the dilution-of-liability puzzle. When harm materializes and there are multiple potential tortfeasors, the law tends to limit the number of joint tortfeasors, focusing the final burden on a small number of actors. This limitation is achieved by several legal mechanisms, such as a no duty rule, a narrow interpretation of negligence, a restrictive implementation of the causal link (be it the but for …

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Platitudes About Product Stewardship In Torts: Continuing Drug Research And Education, Lars Noah Jan 2009

Platitudes About Product Stewardship In Torts: Continuing Drug Research And Education, Lars Noah

Michigan Telecommunications & Technology Law Review

This Article focuses on one emerging aspect of tort litigation against pharmaceutical manufacturers that, if it gained traction, portends a dramatic (and potentially counterproductive) expansion in the prescription drug industry's exposure to liability. The traditional theories of products liability--mismanufacture, defective design, and inadequate warnings--no longer exhaust the potential obligations of sellers. In addition to increasingly popular claims of misrepresentation and negligent marketing, which seem more like extensions of the three defect categories than entirely novel theories, a growing chorus of commentators would impose on pharmaceutical manufacturers a broader duty to test and educate (aspects of what they call an obligation …

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