Torts Commons^™

Sufficiency Of The Evidence Does Not Meet Daubert Standards: A Critique Of The Green-Sanders Proposal, Aaron Twerski, Lior Sapir

Faculty Scholarship

No abstract provided.

Product Liability, Franklin P. Brannen Jr.

Mercer Law Review

This Article surveys developments in Georgia product liability law between June 1, 2012 and May 31, 2013. The Article covers noteworthy cases decided during this period by the Georgia Court of Appeals, the United States Court of Appeals for the Eleventh Circuit, and the United States district courts located in Georgia.

The Seat-Belt Defense In Georgia, Jacob E. Daly

Mercer Law Review

For a doctrine of common-law origin, the seat-belt defense is a relatively youthful fifty years old. Credit for the first use of this defense has been attributed to the defendant in Stockinger v. Dunisch, a 1964 case in Sheboygan County, Wisconsin, in which the plaintiff's damages were reduced by 10% based on the jury's finding that she was negligent for failing to use a seat belt. Despite this initial success, most states have rejected the defense, some legislatively and others judicially, and therefore exclude evidence of a plaintiffs failure to use an available seat belt. The Georgia Court of …

Filling In The Holes In Whistleblower Protection Systems: Lessons From The Hanford Council Experience, Jonathan Brock

Seattle Journal for Social Justice

No abstract provided.

Torts, Phillip Comer Griffeth, Cash V. Morris

Mercer Law Review

This Article surveys recent developments in Georgia tort law between June 1, 2012 and May 31, 2013. Throughout this survey period, our appellate courts provided clear recitations of existing tort law, clarified the application and meaning of statutes and existing lines of cases, and recognized liability and defenses in cases of first impression.

From Privacy To Publicity: The Tort Of Appropriation In The Age Of Mass Consumption, Samantha Barbas

Journal Articles

No abstract provided.

Summary Of Lvmpd V. Yeghiazarian, 129 Nev. Adv. Op. 81, Kelsey Bernstein

Nevada Supreme Court Summaries

The Court decided four issues: (1) Whether a deceased’s blood alcohol content (BAC) may be submitted to show his comparative negligence in a wrongful death action; (2) whether a district court abuses its discretion by allowing an expert to testify based on an allegedly unreliable report; (3) whether a jury’s damages award should be reduced based on comparative negligence before or after imposing a statutory damage cap; and (4) whether awards for attorney fees may include charges for nonattorney staff.

Summary Of Otak Nev., Llc V. Eighth Jud. Dist. Ct., 127 Nev. Adv. Op. No. 53, Jason Wallace

Nevada Supreme Court Summaries

The Court was presented with two questions: “(1) If a defendant settles in good faith does NRS 17.245(1)(b) bar "de facto" claims for contribution and/or equitable indemnity?; and (2) Are the contractor's third-party claims in this matter considered "de facto" contribution and/or equitable indemnity claims that may be barred under NRS 17.245(1)(b)?”

Mutual Pharmaceutical Co. V. Bartlett And Its Implications, Brian Wolfman, Anne King

Georgetown Law Faculty Publications and Other Works

The authors state that the U.S. Supreme Court’s preemption ruling in Mutual Pharmaceutical Co. v. Bartlett, which generally shields generic drug manufacturers from state-law damages liability for design-defect claims, may also have broader implications for preemption jurisprudence. In this article they describe the Supreme Court’s decision in Mutual and evaluate how it may affect future products-liability litigation.

Part I provides an overview of the case’s factual background and of federal generic drug regulation, while Part II discusses the Court’s majority opinion and the dissents. Part III analyzes the implications of the decision, offering ideas on how plaintiffs injured by …

Duty In The Litigation-Investment Agreement: The Choice Between Tort And Contract Norms When The Deal Breaks Down, Anthony J. Sebok, W. Bradley Wendel

Cornell Law Faculty Publications

Litigation investment, which is also known as “litigation finance” or “third party litigation finance,” has grown in importance in many common law and civilian legal systems and has come to the United States as well. While many questions remain about both legality and social desirability of litigation finance, this paper starts with the assumption that the practice will become widespread in the US and explores the obligations of the parties to the litigation finance contract.

The first part of the article uses an example to illustrate the risks imposed by one of the other party on the other which should …

"The Disorderly Conduct Of Words": Civil Liability For Injuries Caused By The Dissemination Of False Or Inaccurate Information, Richard C. Ausness

Law Faculty Scholarly Articles

This Article is concerned with the potential liability of those who disseminate false or inaccurate information that causes physical injury or property damage to those who rely upon it. However, this Article will not address the question of whether those who advocate or depict violence or other antisocial activities should also be subject to liability. For the most part, such publications are considered to be a form of constitutionally protected speech, even when they directly cause physical harm to others. Although the issue of liability for the publication of factually inaccurate information is narrower in scope than liability for the …

Pro-Whistleblower Reform In The Post-Garcetti Era, Julian W. Kleinbrodt

Michigan Law Review

Whistleblowers who expose government ineptitude, inefficiency, and corruption are valuable assets to a well-functioning democracy. Until recently, the Connick–Pickering test governed public employee speech law; it gave First Amendment protection to government employees who spoke on matters of public concern—-such as whistleblowers-—so long as the government’s administrative concerns did not outweigh the employees’ free speech interests. The Supreme Court significantly curtailed the protection of such speech in its recent case, Garcetti v. Ceballos. This case created a categorical threshold requirement that afforded no protection to speech made as an employee rather than as a citizen. Garcetti’s problematic rule has forced …

A Case For A Bill Recognizing Primary Assumption Of Risk As Limiting Liability For Persons And Providers Who Take Part In Sports & Recreational Activities, J. Russell Versteeg

University of Arkansas at Little Rock Law Review

No abstract provided.

Duty In The Litigation-Investment Agreement: The Choice Between Tort And Contract Norms When The Deal Breaks Down, Anthony J. Sebok, W. Bradley Wendel

Vanderbilt Law Review

This Article begins by describing the market for investment in commercial litigationA Litigation-investment transactions share features of existing economic relationships, such as commercial lending, liability insurance, contingent fee-financed representation, and venture capital, but none of these existing practices furnishes a suitable analogy for regulating litigation investment. Like third-party insurance, litigation investment is a way to manage the risk associated with litigation while bringing to bear the particular subject matter expertise of a risk-neutral institutional actor. Insurance companies and litigation investors may be systematically in a better position to reduce the risk of litigation, either through risk pooling or information-cost advantages. …

A Group’S A Group, No Matter How Small: An Economic Analysis Of Defamation, Alan D. Miller, Ronen Perry

Washington and Lee Law Review

Consider the following: A Jews-for-Jesus bulletin reports, falsely, that a Jewish woman became “a believer in the tenets, the actions, and the philosophy of Jews for Jesus.” Does this publication constitute defamation? Should defamatoriness be determined in accordance with the views of the general non- Jewish community, with those of the Jewish minority, or with a normative ethical commitment? Our Article aims to provide the answers. Part I demonstrates that the de finition of defamatoriness in common law jurisdictions is essentially empirical and distinguishes between the two leading tests—the English test and the American test. Part II.A describes the English, …

Re-Establishing Distributor Liability On The Internet: Recognizing The Applicability Of Traditional Defamation Law To Section 230 Of The Communications Decency Act Of 1996, William E. Buelow Iii

West Virginia Law Review

Plaintiffs whose reputations have suffered irreparable injury from the distribution of defamatory statements have generally been permitted by law to recover damages from the enterprises that distributed the publications known to contain the defamatory material. However, when the enterprise that knowingly distributed the injurious content is an Internet service provider ("ISP"), present law denies that same plaintiff recovery. This perception of ISP immunity flows from a decision by the United States Court of Appeals for the Fourth Circuit in Zeran v. America Online, Inc., where the Court extended certain immunities offered by the Communications Decency Act of 1996 (the "CDA"). …

When Courts Determine Fees In A System With A Loser Pays Norm: Fee Award Denials To Winning Plaintiffs And Defendants, Theodore Eisenberg, Talia Fisher, Issi Rosen-Zvi

Cornell Law Faculty Publications

Under the English rule, the loser pays litigation costs whereas under the American rule, each party pays its own costs. Israel instead vests in its judges full discretion to assess fees and costs as the circumstances may require. Both the English and the American rules have been the subjects of scholarly criticism. Because little empirical information exists about how either rule functions in practice, an empirical study of judicial litigation cost award practices should be of general interest. This Article presents such a study in the context of Israel’s legal system. We report evidence that Israeli judges apply their discretion …

An Analysis Of New York State’S Flawed Recovery Scheme In Prenatal Malpractice Actions: Why A Claim Of Nied Should Be Available To Plaintiffs, Amanda Campo

Pace Law Review

Prior to 2006 mothers could not bring a wrongful death action on behalf of their stillborn child, nor could they bring any personal cause of action, absent a physical injury independent from the unsuccessful birth itself. In 2006, the New York Court of Appeals attempted to fill this gap in the case of Broadnax v. Gonzalez. This Note will analyze whether Broadnax successfully filled this recovery gap. Parts II, III, and IV will discuss the history of a mother’s failed attempts to gain recovery for the death of her stillborn child. Part V will discuss Broadnax. I will argue that …

Closing The Door On The Public Policy Exception To At- Will Employment: How The Washington State Supreme Court Erroneously Foreclosed Wrongful Discharge Claims For Whistleblowers In Cudney V. Alsco, Inc., Laura A. Turczanski

Seattle University Law Review

In 2008, Matthew Cudney was terminated from his employment with ALSCO, Inc. a few weeks after reporting to his supervisor and human resources manager that he observed the branch general manager appearing intoxicated at work and driving away in a company vehicle. Cudney brought an action for wrongful discharge in violation of public policy, claiming that he was terminated in retaliation for reporting the manager’s drinking and driving. In a 5–4 decision, the Washington Supreme Court held that Cudney’s tort claim of wrongful discharge in violation of public policy could not proceed. This Note contends that the Cudney court erred …

Corporate Tort Liability Under The Alien Tort Statute Post-Kiobel, Scott E. Allbright Jr.

University of Miami Business Law Review

No abstract provided.

An Experiment In Law Reform: Amchem Products V. Windsor, Patrick M. Hanlon

University of Michigan Journal of Law Reform

The Supreme Court's 1997 decision in Amchem Products, Inc. v. Windsor struck down the most ambitious settlement class action ever attempted. The settlement was, however, the logical outgrowth of the federal judiciary's efforts in the early 1990s to resolve a "disaster" of "critical proportions." Many factors, not least the Supreme Court's decision in Amchem, turned the tide against this trend. Ironically, however, the post-Amchem world has come to look a lot like Amchem. The settlement's central feature-deferral of unimpaired claims to assure the availability of resources to compensate the sick-was subsequently incorporated (either by statute or through judicial decision) into …

Wrongful Death And Survival Actions For Torts In Violation Of International Law, Alastair J. Agcaoili

San Diego Law Review

This Article aims to make sense of this neglected area of ATS law. I contend that the salient issue in these deceased-victim cases is not whether the nonvictim plaintiffs have standing to sue but rather whether they have a viable cause of action in the first place. Standing and cause of action concepts have an uneasy relationship in law. Although the distinction between constitutional standing and cause of action inquiries is well established, the division is less clear where, as here, standing doctrine is used to define a plaintiff’s eligibility to bring suit. Indeed, reliance on standing terminology in this …

Distorted And Diminished Tort Claims For Women, Jamie R. Abrams

Cardozo Law Review

Childbirth is distinctly characterized in tort law by the literal emergence of a potential putative plaintiff. This Article seeks to position the birthing woman - distinct from the pregnant woman or the parent - squarely within the negligence framework and, in doing so, to challenge prevailing assumptions dominating obstetric medical decision-making. The existence of two patients and two putative plaintiffs is unique to childbirth, yet largely unexamined in tort. This Article examines how the dominant focus on fetal harms in modern childbirth overshadows the birthing woman in tort and distorts the normative dualities of childbirth.

While theoretically childbirth falls within …

Distorted And Diminished Tort Claims For Women, Jamie Abrams

Scholarly Articles in Law Reviews & Journals

Childbirth is distinctly characterized in tort law by the literal emergence of a potential putative plaintiff. This Article seeks to position the birthing woman — distinct from the pregnant woman or the parent — squarely within the negligence framework and, in doing so, to challenge prevailing assumptions dominating obstetric medical decision-making. The existence of two patients and two putative plaintiffs is unique to childbirth, yet largely unexamined in tort. This Article examines how the dominant focus on fetal harms in modern childbirth overshadows the birthing woman in tort and distorts the normative dualities of childbirth.

While theoretically childbirth falls within …

Summary Of Cucinotta V. Deloitte & Touche, Llp, 129 Nev. Adv. Op. No. 35, Sean Africk

Nevada Supreme Court Summaries

In an appeal from a district court order granting summary judgment in a defamation case, the Court considered whether information divulged by a registered accounting firm in accordance with the Securities Exchange Act of 1934 is subject to an absolute privilege.

Letting The Apes Run The Zoo: Using Tort Law To Provide Animals With A Legal Voice, Tania Rice

Pepperdine Law Review

Science is increasingly showing us that animals have many cognitive similarities with humans. In addition to calls for changes in our animal protection statutes, members of the legal community have begun debating over whether animals, or a certain category of animals, should be granted legal rights. This approach has the potential for drastic societal ramifications. David S. Favre has proposed a tort action for animals as a compromise to the animal rights debate. This Comment explores the different approaches to seeking improved conditions for animals, and proposes an adjusted tort cause of action in response to criticisms of Favre's tort.

Steed V. Imperial Airlines, Clay Plotkin

Pepperdine Law Review

No abstract provided.

The Battered Child Syndrome, Jerry A. Ramsey, Byron J. Lawler

Pepperdine Law Review

No abstract provided.

The Constitutional Infirmity Of The California Government Claim Statute, James C. Downing, Nikolai Tehin Jr.

Pepperdine Law Review

No abstract provided.

Infant Pain And Suffering: The Valuation Dilemma, Peter N. Kalionzes

Pepperdine Law Review

No abstract provided.