Torts Commons^™

Summary Of Munda V. Summerlin Life & Health Ins. Co., 127 Nev. Adv. Op. No. 83, Joseph Bowen

Nevada Supreme Court Summaries

An appeal from a district court order granting a motion to dismiss in a tort action.

Tnuva Central Cooperative V. Raabi Estate, Esther Hayut, Isaac Amit, Uzi Vogelman

Translated Opinions

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

An appeal and cross appeal challenging the decision of the Tel Aviv District Court (Partial Judgment and Supplementary Judgment,) where the court partially granted a consumer class action suit, which was granted leave to be submitted in CC 10085/080 (hereinafter: Tnuva). The class action suit revolved around the misleading of the consumer public and the production of a milk product in violation of binding …

Medical Malpractice: The Italian Experience, Claudia Dimarzo

Chicago-Kent Law Review

Beginning with an investigation into the problematic nature of medical liability, the Article overviews the most significant approaches taken by courts and scholars in order to establish whether the physician's position before the patient is comparable with that of either a tortfeasor or a contractor.

Having explained that the most recent approaches in this regard tend toward the recognition of the contractual nature of medical liability, the Author discusses the implications of such a solution, making specific reference to the following issues: 1) the assignment of the burden of proof (along with the distinction between obligations of means and obligations …

The Law Of Medical Misadventure In Japan, Robert B. Leflar

Chicago-Kent Law Review

This paper offers a comprehensive overview of Japanese law and practice relating to iatrogenic (medically-caused) injury, with comparisons to other nations' medical law systems. The paper addresses criminal sanctions for Japanese physicians' negligent and illegal acts; civil law principles of substantive law and related issues of procedure, practice, and liability insurance; and administrative measures including health ministry programs aimed at expanding and improving the quality of peer review within Japanese medicine, and a recently implemented no-fault compensation system for birth-related injuries.

Among the paper's findings are these. Criminal and civil actions increased rapidly after highly publicized medical error events at …

Medical Malpractice And Compensation In The Uk, Richard Goldberg

Chicago-Kent Law Review

In the first part of this paper, Dr. Goldberg examines the context in which medical malpractice liability is operating in the UK. The fact that the state-run National Health Service (NHS) is the major healthcare provider in the UK has several implications, since funding for medical malpractice compensation in the NHS comes from the taxpayer. The most recent empirical evidence on the incidence and funding of claims in England and Scotland is assessed, to show a trend of expenditure on clinical negligence increasing, particularly in England. This is followed by an examination of the statutory framework for the empowerment of …

Medical Malpractice And Compensation In Global Perspective: How Does The U.S. Do It?, David A. Hyman, Charles Silver

Chicago-Kent Law Review

This article describes the problem of health care error in the United States of America and the various regulatory, liability, and compensation systems that deal with medical mistakes. In terms of frequency, direct costs, and aggregate social costs, the problem of medical errors is staggering. Millions of patients are killed or injured every year. A large percentage of adverse events could be avoided by the use of reasonable care. Regulators have not dealt with these problems effectively. Regulators specifically appointed to police the medical profession are often lax, whether because of capture, or from a sense of "there but for …

Worthy Of Their Name? Addressing Aquatic Nuisance Species With Common Law Public Nuisance Claims, Christopher Grubb

Chicago-Kent Law Review

Aquatic invasive species like the Asian carp and zebra mussel have caused grave ecological and economic harm across the United States, and frequently harm rights common to the public such as boating, fishing, and bathing. Yet, Congress' efforts to address the problem through legislation have been piecemeal and unsuccessful. Historically, the common law of public nuisance served as an important tool to remedy transboundary pollution. More recently, courts have established that such public nuisance claims will be displaced where Congress has comprehensively regulated in a field. This Note explores whether public nuisance claims involving aquatic invasive species should be displaced …

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

Mercer Law Review

This Article surveys developments in Georgia product liability law between June 1, 2010 and May 31, 2011. It covers noteworthy cases decided during this period by the Georgia appellate courts, the United States Supreme Court, the United States Court of Appeals for the Eleventh Circuit, and the United States district courts located in Georgia.

Torts, Phillip Comer Griffeth, Cash V. Morris

Mercer Law Review

This Article surveys recent developments in Georgia tort law between June 1, 2010 and May 31, 2011.

A Bridge Over Troubled Waters: The Development Of Medical Malpractice Litigation In Brazil, Eduardo Dantas

Chicago-Kent Law Review

This paper aims to demonstrate how medical malpractice litigation is developing in Brazil, and how the Brazilian legal system is dealing with the increase of demands against health care professionals. A brief overlook on the legal structure is provided, highlighting the most important issues being discussed today in Brazilian courts, regarding autonomy, consent, choice, the definition of moral damages, and the influence of the Consumer's Defense Code in litigation regarding health law.

Yangge Dance: The Rhythm Of Liability For Medical Malpractice In The People's Republic Of China, Zhu Wang, Ken Oliphant

Chicago-Kent Law Review

This paper summarises the development of liability for medical malpractice in the People's Republic of China, beginning with the establishment of a formal system of administrative liability in 1987, its refinement in 2002, and the broadly contemporaneous judicial recognition of a concurrent tortious liability under general civil law. All these developments may be said to have furthered the interests of patients. The incorporation of liability for medical malpractice into the Tort Liability Law of 2009, however, arguably marks a step backwards, subordinating the interests of patients in favor of the interests of the medical community, and further reforms in the …

Malpractice In Scandinavia, Vibe Ulfbeck, Mette Hartlev, Mårten Schultz

Chicago-Kent Law Review

The article describes the special Scandinavian patient insurance system which secures compensation for patients in malpractice cases. For all practical purposes, the insurance based systems have replaced ordinary tort law rules in malpractice cases in Scandinavia. Thus, the basic feature of these systems is that proof of fault is not a requirement for obtaining compensation. Other criteria which are more favourable to the patient are applicable. The article concludes that in general the compensations systems have been successful in making it easier for the patients to obtain compensation. However, the systems also face challenges, some of which stem from the …

Blindsight: How We See Disabilities In Tort Litigation, Anne Bloom, Paul Steven Miller

Washington Law Review

Tort litigation operates with a distorted perspective of disability. It suffers from blindsight; it does not see people with disabilities the way they see themselves. Disability advocates emphasize that most people with disabilities lead happy lives. Deeply rooted biases, however, make it difficult for this perspective to be recognized. Tort litigation’s heavy emphasis on medical testimony and its repeated portrayal of plaintiffs as “less than whole” over-emphasize the physical aspects of disability and unfairly depict people with disabilities as tragic. When legal actors embrace these views, they reinforce harmful stereotypes outside the courthouse doors. Newly disabled plaintiffs are also likely …

To Dollars From Sense: Qualitative To Quantitative Translation In Jury Damage Awards, Valerie P. Hans, Valerie F. Reyna

Cornell Law Faculty Publications

This article offers a new multistage account of jury damage award decision making. Drawing on psychological and economic research on judgment, decision making, and numeracy, the model posits that jurors first make a categorical gist judgment that money damages are warranted, and then make an ordinal gist judgment ranking the damages deserved as low, medium, or high. They then construct numbers that fit the gist of the appropriate magnitude. The article employs data from jury decision-making research to explore the plausibility of the model.

Summary Of Klasch V. Walgreen Co., 127 Nev. Adv. Op. 74, Cameron Daw

Nevada Supreme Court Summaries

An appeal from a district’s grant of court summary judgment in a wrongful death action involving a pharmacist’s duty of care.

Summary Of Estate Of Smith V. Mahoney’S Silver Nugget, 127 Nev. Adv. Op. No. 76, Colin Seale

Nevada Supreme Court Summaries

The Court considered a plaintiff’s appeal of a district court’s granting of summary judgment for in a wrongful death action.

Virginia Should Abolish The Archaic Tort Defense Of Contributory Negligence And Adopt A Comparative Negligence Defense In Its Place, Peter Nash Swisher

University of Richmond Law Review

No abstract provided.

Notes On Borrowing And Convergence, Robert L. Tsai, Nelson Tebbe

Cornell Law Faculty Publications

This is a response to Jennifer E. Laurin, "Trawling for Herring: Lessons in Doctrinal Borrowing and Convergence," 111 Colum. L. Rev. 670 (2011), which analyzes the Supreme Court's resort to tort-based concepts to limit the reach of the Fourth Amendment's exclusionary rule. We press three points. First, there are differences between a general and specific critique of constitutional borrowing. Second, the idea of convergence as a distinct phenomenon from borrowing has explanatory potential and should be further explored. Third, to the extent convergence occurs, it matters whether concerns of judicial administration or political reconstruction are driving doctrinal changes.

Summary Of Cervantes V. Health Plan Of Nev., Inc. Et Al., 127 Nev. Adv. Op. 70, Kelli M. Devaney

Nevada Supreme Court Summaries

An appeal of the Eighth Judicial District Court’s grant of summary judgment in a tort action.

"Academic Concerns"-Caring About Conversation In Canadian Common Law, Karen Crawley, Shauna Van Praagh

Dalhousie Law Journal

The Supreme Court of Canada, in its 2001 decision in Cooper v Hobart, refined the test in Canadian common law for establishing a duty of care in the tort of negligence. Although aware of the complexities and ongoing challenges of the "duty of care" concept, the Supreme Court openly labelled these concerns as "academic." This article confirms these concerns as "academic," but insists that this label underlines their centrality not only to an understanding of the tort of negligence but to the nature and form of common law reasoning. By pointing to errors in the Supreme Court of Canada's judgment-errors …

Tort, Not Contract: An Argument For Reevaluating The Economic Loss Rule And Classifying Building Damage As "Other Property" When It Is Caused By Defective Construction Materials, J. Brandon Sieg

William & Mary Law Review

No abstract provided.

Interpreting Tort Law, Emily Sherwin

Cornell Law Faculty Publications

No abstract provided.

Splitting The Baby: Standardizing Issue Class Certification, Jenna G. Farleigh

Vanderbilt Law Review

The Bible depicts King Solomon resolving a dispute between two women who claimed to be the mother of the same child. In the pursuit of justice, King Solomon threatened to do the unthinkable- slice the child in two. Although severing children is not a recommended vehicle for justice, severing lawsuits is. In fact, in the class-action context, the "issue class" established by Federal Rule of Civil Procedure 23(c)(4) does just what King Solomon threatened-it severs litigation into pieces, allowing aggregate treatment of only certain issues in a given lawsuit. Residual issues are left to be determined in plaintiff-specific, follow-on suits. …

Does Qualified Immunity Matter?, Alexander A. Reinert

Articles

In litigation brought pursuant to Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971), most commentators agree that qualified immunity plays a substantial role in limiting plaintiffs' ability to recover compensation. Many find this tradeoff acceptable, in part because of concerns of fairness to government official defendants and in part because courts may still play a central role in announcing the law without worrying over the retroactive effect their decision will have on the personal funds of the defendant official.

This paper considers the different role that qualified immunity may play in …

Stolen Art, Looted Antiquities, And The Insurable Interest Requirement, Robert L. Tucker

Akron Law Faculty Publications

Trafficking in stolen art and looted antiquities is a multi-billion dollar enterprise. Stolen art and looted antiquities are ultimately sold to museums or private collectors. Sometimes the purchasers acquire them in good faith. But other times, the purchasers know, suspect, or willfully blind themselves to the possibility that the piece was stolen or illegally excavated and exported up the chain of title.

This problem is compounded by customs and course of dealing in the art and antiquities trade. Dealers generally decline to provide meaningful information to prospective purchasers about the provenance of a piece, and sophisticated purchasers customarily acquiesce in …

The Business Of Torture: The Domestic Liability Of Private Airlines In The U.S. Extraordinary Rendition Program, Kate Kovarovic

University of Miami Business Law Review

No abstract provided.

"A Simple, Human Measure Of Privacy": Public Disclosure Of Private Facts In The World Of Tiger Woods, Patricia S. Abril

Articles

No abstract provided.

Risky Business: Liability Of Product Sellers Who Offer Safety Devices As Optional Equipment, Richard C. Ausness

Law Faculty Scholarly Articles

This Article examines the question of whether (or when) product sellers should be allowed to offer optional safety equipment without fear of being held strictly liable for selling a defectively designed product. Part II of this Article examines several approaches to risk-bearing. At one end of the spectrum, the principle of personal autonomy dictates that consumers should decide how much risk they wish to accept. On the other hand, products liability law assumes that if consumers are allowed to subject themselves to greater risk, producers will be quick to take advantage of their inability to make rational decisions about what …

Caps Off To Juries: Noneconomic Damage Caps In Medical Malpractice Cases Ruled Unconstitutional, Jennifer W. Terry

Mercer Law Review

In 2005 the Georgia General Assembly (General Assembly) passed a controversial tort reform bill in an effort to reduce the cost of medical liability insurance for health care providers. In this bill, the legislature put a cap of $350,000 on noneconomic damages (pain and suffering) for medical malpractice cases. On March 22, 2010, the Georgia Supreme Court in Atlanta Oculoplastic Surgery, RC. v. Nestlehutt held these caps unconstitutional on grounds that they violate the state constitutional right to jury trial. By ruling on these grounds, the court was able to avoid weighing in on the competing interests of the medical …

Outsourcing Incompetence: An Essay In Honor Of Paul Verkuil, Arthur J. Jacobson

Cardozo Law Review

No abstract provided.