Torts Commons^™

Anderson V. Mandalay Corp., Nev. Adv. Op. 82 (Oct. 10, 2015), Emily Haws

Nevada Supreme Court Summaries

The Court determined (1) NRS § 41.745(1)(c) sets forth a factual inquiry; (2) a reasonable jury could find it “reasonably foreseeable under the facts and circumstances of the case considering the nature and scope of his . . . employment” that a hotel employee would rape a hotel guest; and (3) direct negligence claims against an employer are not futile when a reasonable jury could conclude under the facts that the employer could reasonably foresee the employee’s unlawful act.

Judging Multidistrict Litigation, Elizabeth Chamblee Burch

Presentations and Speeches

Professor Elizabeth Chamblee Burch presented "Judging Multidistrict Litigation" at Duke University School of Law's Mass-Tort MDL Program for Judicial Conference Committees on October 8, 2015.

A New Test To Reconcile The Right Of Publicity With Core First Amendment Values, Nat Stern, Mark Joseph Stern

Scholarly Publications

No abstract provided.

The Economic Loss Doctrine: Intrinsic Or Extrinsic Fraud, Ralph Anzivino

Marquette Law Review

The economic loss doctrine provides that when a product is sold and results in economic loss for the buyer (no property or personal injury), the buyer’s sole remedy is to sue for breach of contract, not in tort. The two exceptions to the economic loss doctrine are contracts that are predominately for services and contracts where a party is fraudulently induced to enter into the contract.

Fraudulent inducement occurs when one party either fails to disclose a material fact or knowingly misrepresents a significant fact, and thereby induces the other party to enter into a contract. The fraudulent inducement, however, …

The Diffusion Of Doctrinal Innovations In Tort Law, Kyle Graham

Marquette Law Review

This Article examines the spread of “successful” common-law doctrinal innovations in the law of torts. Its analysis reveals recurring influences upon and tendencies within the diffusion of novel tort doctrines across the states. The studied diffusion patterns also document a trend toward common-law doctrinal “stabilization” over the past quarter-century. As detailed herein, this stabilization owes in part to altered adoption dynamics associated with the ongoing shrinkage and fragmentation of the common-law tort dockets entertained by state supreme courts. Prevailing conditions will make it difficult, this Article concludes, for even well-received common-law doctrinal innovations of the future to match the rapid …

Enduring Doctrine: The Collateral Source Rule In Wisconsin Injury Law, Joseph P. Poehlmann

Marquette Law Review

When the common law collateral source rule first arose in the area of tort law over one hundred years ago, only a minority of individuals maintained health insurance coverage to protect against loss in the event that a negligent actor injured them. Today, however, the vast majority of Americans are covered. Because of this change in the landscape of insurance coverage, many jurisdictions have abrogated or greatly eroded the collateral source rule under the belief that the rule no longer holds a justified role in personal injury litigation. Wisconsin, however, continues to follow the common law form of the rule …

Section 230 Of The Communications Decency Act: The True Culprit Of Internet Defamation, Heather Saint

Loyola of Los Angeles Entertainment Law Review

This Note highlights the growing concern of Internet defamation and the lack of viable legal remedies available to its victims. Internet defamation is internet speech with the purpose to disparage another’s reputation. At common law, a victim of alleged defamation has the right to file suit against not only the original speaker of the defamatory statements, but the person or entity to give that statement further publication as well. In certain cases even the distributor, such as a newspaper stand, can be held liable for a defamation claim. However, liability due to defamatory speech on the Internet is quite different. …

Drug Design Liability: Farewell To Comment K, Aaron Twerski, James A. Henderson Jr.

Faculty Scholarship

No abstract provided.

The Corporate Conspiracy Vacuum, J. S. Nelson

Cardozo Law Review

In the absence of charges available for traditional conspiracy, public and judicial frustration with agents' lack of accountability has led to the distortion of alternative doctrines in efforts to impose liability on what should have been traditional conspiracy prosecutions. This paper examines those efforts and their impact on these alternative doctrines.

"A Distinction Without A Difference"?: Bartlett Going Forward, Steven A. Schwartz

Fordham Law Review

    This Note addresses the question of whether federal law preempts state design defect claims against generic drug manufacturers regardless of which test state law uses to determine whether a drug is defective. This issue, arising out of the U.S. Supreme Court's interpretation of preemption jurisprudence and fundamental tort law as stated in Mutual Pharmaceutical Co. v. Bartlett, is significant because it plays a large role in determining to what extent generic drug manufacturers are immune to civil liability arising out of injuries caused by their generic drugs. In an age of rising medical costs and jury awards, both plaintiff …

Illegal Agreements And The Lesser Evil Principle, Chunlin Leonhard

Catholic University Law Review

When parties enter into an illegal agreement and bring a dispute arising from the transaction before a court, the court finds itself in a difficult position. The court is faced with two competing interests: the importance of both upholding and protecting the dignity of the law and honoring inherent principles of U.S. contract law - freedom of contract and individual autonomy. There exists a common misconception that courts, when presented with illegal contracts, follow the rule of non-enforcement. However, an examination of case law indicates that courts are instead concerned with the consequences of their choices, and have consistently followed …

Frazier V. Drake, 131 Nev. Adv. Op. 64 (Sep. 3, 2015), Adrian Viesca

Nevada Supreme Court Summaries

The Court of Appeals determined that (1) when three of the good-faith Beattie factors weigh in favor of the party that rejected the offer of judgment, the reasonableness of the fees requested by the offeror becomes irrelevant, and cannot, by itself, support a decision to award attorney fees to the offeror and (2) expert witness fees in excess of $1,500 now have factors to take into consideration in awarding such fees.

Medical Malpractice Limitations For New York Infants—Time For A Change Of Time, Eugene T. Maccarrone, Victor D. Lopez

Buffalo Public Interest Law Journal

No abstract provided.

Study On Related Issues Of Compensation For Oil Pollution Damage By Offshore Drilling Platform, Hongyan Wu

Maritime Safety & Environment Management Dissertations (Dalian)

No abstract provided.

Strict Product Liability - Blood As An Unavoidably Unsafe Product; Cunningham V. Macneal Memorial Hospital, Peter D. Oldham

Akron Law Review

In conclusion, this writer respectfully disagrees with the application of Section 402A to blood cases (assuming our present facts) and believes that blood should properly be considered an unavoidably unsafe product. Professor James agrees with this position when the defect or possibility of injury from an "unavoidably unsafe product," could not be detected prior to use of the product and occurrence of the injury. This point is strengthened, he continues, when the product is "socially desirable to put it out in spite of the inevitable risk." In other words, the decision in Cunningham could be sound only if the court …

The Product Liability Of Manufacturers: An Understanding And Exploration, Donald M. Jenkins

Akron Law Review

The beginning point will be an examination of the existing theories of manufacturer's liability namely, negligence, contract warranty and strict liability. For example purposes, Ohio law will be used to illustrate the interpretative development of the law and its application. Ohio is a legitimate jurisdiction for this purpose. It has been a pace-setting jurisdiction in the development of the law and has arrived at the point of accepting the concept of strict liability for defective products. Furthermore, the evolution of product liability law in Ohio typifies the pattern that has occurred or is occurring in a majority of the other …

Strict Product Liability - Blood As An Unavoidably Unsafe Product; Cunningham V. Macneal Memorial Hospital, Peter D. Oldham

Akron Law Review

In conclusion, this writer respectfully disagrees with the application of Section 402A to blood cases (assuming our present facts) and believes that blood should properly be considered an unavoidably unsafe product. Professor James agrees with this position when the defect or possibility of injury from an "unavoidably unsafe product," could not be detected prior to use of the product and occurrence of the injury. This point is strengthened, he continues, when the product is "socially desirable to put it out in spite of the inevitable risk." In other words, the decision in Cunningham could be sound only if the court …

The Product Liability Of Manufacturers: An Understanding And Exploration, Donald M. Jenkins

Akron Law Review

The evolution and application of product liability law in the past fifteen years represents one of the most dynamic developments in law.

The result of these rapid and violent developments has been to substantially increase the susceptibility of producers to suits by members of the public in direct actions. It was assumed the crest of the wave of expanded product liability was reached with the formulation of the legal principles set forth in Section 402A of the Restatement (Second) of the Law of Torts. However, subsequent court actions proved this assumption to be invalid.

Products Liability - Strict Liability In Tort - Measure Of Proof: Defectiveness Of Product - Unreasonably Dangerous Test Abandoned: Cronin V. J.B.E. Olson Corp., Stanley M. Schultz

Akron Law Review

Thus the issue facing the court was whether California's concept of strict liability necessarily requires a showing that the defective, injury causing product was also unreasonably dangerous." They held that it does not. In arriving at this decision the court relied heavily on the language used in its landmark decision in Greenman v. Yuba Power Products, Inc.

The Reach Of The Law: Sin, Crime And Poor Taste, Alexander B. Smith, Harriet Pollack

Akron Law Review

The past decade has been a period of intensive reevaluation of the law. The criminal law, in particular, has been subjected to an especially intensive criticism. These attacks fall largely into two categories: criticisms of the legitimacy of our penal codes, and criticisms of their efficiency.
Starting with the Civil Rights Movement of the Kennedy era with its heavy emphasis on civil disobedience as a tool of protest, the legitimacy of many of our laws was called into question. When Rosa Parks sat in the front of the bus in Montgomery, Alabama, she was not simply breaking the law; she …

Order In The Courts Revisited: Progress And Prospects Of Controlling Delay In The Tort Jury Litigation Process, 1966-1973, James G. France

Akron Law Review

Early in 1969, under a grant from the Knight Foundation, measurement of delay in litigation in six northeastern Ohio counties was undertaken by a study group from University of Akron School of Law. A year later the group reported its findings as to delay in the civil jury, criminal and appellate fields in a 200-page report: Order In The Courts.

The study could show only how long it took each of the six different common pleas courts, with widely varying population loads, with differing internal organization, age and experience of judges and amount of staff support, to dispose of groups …

Medical Malpractice - Statute Of Limitations - Foreign Objects - The Adoption Of The Discovery Rule - Legislative Or Judicial Prerogative? Melnyk V. Cleveland Clinic, Alan J. Sobol

Akron Law Review

The rationale of the Court was that Melnyk could be distinguished with the recent case of Wyler v. Tripi, which held that a cause of action for medical malpractice accrues at the latest when the physician-patient relationship terminates, and which also recognized the legislature's authority to act in this area, on the basis that Wyler was not a foreign object case. Therefore, the Court felt it need not disturb the Wyler holding and could nevertheless hold the failure to remove the foreign objects in Melnyk was negligence as a matter of law and that equity and public policy require …

A Response To Lee Kreindler, Robert P. Boyle

Akron Law Review

"...the claimant does not necessarily suffer all the disadvantages Lee Kreindler notes and that there are real compensatory advantages to the international passenger under the Guatemala Protocol system."

The Federal Tort Claims Act - Absolute Liability, The Discretionary Function Exception, Sonic Booms; Laird V. Nelms, Daniel Wallen

Akron Law Review

[A]lthough the legislative history of the FTCA lends great support for the argument that the doctrine of absolute liability is an acceptable theory to employ to seek recovery under the FTCA, the Supreme Court has chosen to rely on the Dalehite decision and completely overlook later Supreme Court interpretations. The legislative history of the FTCA also indicates that the discretionary function exception must always be confronted, regardless of the theory one proceeds under to seek recovery.

Considerations Of Potential Tort Liability With Respect To Natural Draft Cooling Towers Associated With Steam-Electric Power Plants, Thomas D. Corkran

Akron Law Review

To prevent thermal pollution and to conserve our water supply, it appears that we must learn to live with natural draft cooling towers, at least for the next several decades. Proponents of natural draft cooling towers maintain that the possibility of localized fogging and icing is negligible, but the potential hazards of artificial salt fallout are very real. Also, there appears to be a trend developing in the law which could lead to an action against the operator of a natural draft cooling tower for aesthetic annoyances. There are several theories of action which might lie in such cases, but …

The Constitutionality Of The Ohio Guest Statute, Alex Shumate

Akron Law Review

This is the manner in which one writer described the court opinion written by Mr. Justice Tobriner in Brown v. Merlo, the California Supreme Court decision which declared the California automobile guest statute unconstitutional. In Brown an automobile guest, alleging both willful misconduct and negligence, brought an action against his host driver for injuries received in an automobile accident which occurred on a California highway. The trial court granted the defendant's motion for summary judgment holding that the state automobile guest statute barred recovery since the plaintiff failed to prove that the accident was caused by the driver's willful misconduct …

Manufacturer And Professional User's Liability For Defective Medical Equipment, Rosemary Rubin

Akron Law Review

One particular area of product liability, however, has been slow to accept strict liability. In the field of medical devices and equipment the courts seem reluctant to find liability without a clear showing of negligence, whether the defendant is the doctor, the hospital, or the manufacturer of the product. In this paper the focus will be on the emerging law in this area regarding medical equipment made only for use by experts, including nurses, doctors, dentists, anesthesiologists, emergency personnel and hospitals. The discussion will exclude blood and drug cases for these lead to conclusions of their own. The concentration will …

The Vicarious Liability Of Public Officials Under The Civil Rights Act, James R. Schirott, Sherry K. Drew

Akron Law Review

Lawsuit Involving Labor Disputes filed in the United States district courts in 1961 totaled 2,484. In the same year, the number of civil rights cases filed was only 296. Within the next decade, however, the number of civil rights cases filed in the district courts had risen to 6,133 in 1972, a dramatic percentage increase of 1,972. The only area of civil litigation in the federal courts registering a higher tally in 1972 was the closely related area of prisoner petitions. From the briefest perusal of these startling statistics, it becomes readily apparent that civil rights litigation is not only …

The Subject Was Standards: The Federal Government And Safety In The 1940'S - And 1970'S, Judy Jackson

Akron Law Review

THE MAY, 1976 issue of Trial magazine has emblazoned across its cover "The Hazardous Products Jungle". The cover shows a bicycle, chain saw, stove, vacuum cleaner, TV set, football helmet and other consumer products engulfed in Henri Rousseau-like jungle foliage. Such a cover, with its implication that many consumer products presenting unreasonable risks remain on the market over three years after passage of the Consumer Product Safety Act of 1972 (CPSA), epitomizes the general disappointment with the performance of the U.S. Consumer Product Safety Commission (CPSC), the independent regulatory agency created by the 1972 Act to protect the public against …

The Subject Was Standards: The Federal Government And Safety In The 1940'S - And 1970'S, Judy Jackson

Akron Law Review

THE MAY, 1976 issue of Trial magazine has emblazoned across its cover "The Hazardous Products Jungle". The cover shows a bicycle, chain saw, stove, vacuum cleaner, TV set, football helmet and other consumer products engulfed in Henri Rousseau-like jungle foliage.

Such a cover, with its implication that many consumer products presenting unreasonable risks remain on the market over three years after passage of the Consumer Product Safety Act of 1972 (CPSA), epitomizes the general disappointment with the performance of the U.S. Consumer Product Safety Commission (CPSC), the independent regulatory agency created by the 1972 Act to protect the public against …