Torts Commons^™

What Is Deeply Rooted In The Constitution?, Thomas P. Crocker

BYU Law Review

In a series of cases stretching over a century, the Court made a right’s roots a constitutive feature of its identity. Highlighting the analytic centrality of deep roots to the recognition of rights, Dobbs v. Jackson Women’s Health withdrew prior judicial recognition of a woman’s right to reproductive choice, arguing that such a right was not properly rooted in the American legal tradition. But what does it mean for a right to have deep roots? A surprising feature of American constitutionalism is that there is no single answer to the basic analytic question of what it means for a right …

New York Times V. Sullivan: A Civil Rights Story, Samantha Barbas

Texas A&M Law Review

The 1964 Supreme Court decision in New York Times v. Sullivan established the “actual malice” rule in libel law, requiring that in order to win a libel suit, a public official must show that a defamatory statement was false and that the speaker made the statement knowing that it was false or “with reckless disregard of whether it was false or not.”

Sullivan involved a libel suit brought by segregationist Alabama officials against the New York Times (“Times”) and leaders of the civil rights movement. Sullivan arose from sectional battles over civil rights and integration in the 1960s. An all-white …

Assembling Pieces Of Accountability For The Srebrenica Genocide, Annick Pijnenburg, Nataša Nedeski

Genocide Studies and Prevention: An International Journal

The Srebrenica genocide has been the subject of multiple legal proceedings against various actors before different courts, at both the national and international level. Amongst others, the International Criminal Tribunal for the Former Yugoslavia has sentenced various individual perpetrators, the International Court of Justice has ruled on the responsibility of the Serbian state, and Dutch courts have been asked to rule on the liability of the Dutch state and the United Nations. This raises the following question: to what extent have multiple adjudicatory mechanisms across legal regimes managed to deliver accountability for the Srebrenica genocide and what are the remaining …

The Private Cause Of Action Under Maine's Unfair Trade Practices Act, Steven A. Shaw

Maine Law Review

In 1970 the Maine Legislature passed the Unfair Trade Practices Act (UTPA) which declared unlawful any "unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce . . . ." UTPA-type statutes, now common to all states, offer several advantages. The statutes provide for a statutory award of attorneys' fees, create a private cause of action which is simple in comparison to analogous common law claims, and offer a flexible concept of unlawful conduct which many courts have shown a willingness to interpret broadly and sympathetically. Although Maine's UTPA was originally …

Hospital Accountability In Health Care Delivery, C. Elisabeth Belmont

Maine Law Review

In recent years, the role of community hospitals in health care delivery has undergone a dramatic change. Until the latter half of the twentieth century, a hospital was merely a "doctor's workshop," providing physicians with the physical facilities, equipment, and personnel necessary to treat their private patients. Due to progressive medical technology, today's hospital has moved from a passive role in patient care to more active participation in the delivery of total health care. The hospital has become a health care provider in its own right, furnishing a broad range of diagnostic and outpatient services, home care assistance, and specialized …

The Decline Of The Privity Rule In The Maine Law Of Tort Products Liability: A Conceptual History, Dennis M. Patterson

Maine Law Review

No single issue has more preoccupied modern jurisprudential writers than the limitations of precedent on the lawmaking power of judges. Yet despite this singular concentration, no scholarly consensus has emerged regarding what those limitations are or what form they should take. This continuing theoretical dispute recently manifested itself in a series of decisions rendered by the Law Court. Last spring in the case of Adams v. Buffalo Forge Co., the Law Court reconsidered a significant aspect of two decisions of the previous term: Burke v. Hamilton Beach Division and Hurd v. Hurd. In Burke and Hurd the court decided that …

The Vitality Of The Doctrine Of Punitive Damages In Maine, Kevin F. Gordon

Maine Law Review

On four separate occasions between December 1981 and February 1982, the Maine Supreme Judicial Court called into question the continued vitality of the common law doctrine of punitive damages. The substantive propriety of punitive damages was not challenged by any of the defendants in those four cases. As a result, the Law Court assumed for the purposes of each opinion that punitive damages could be awarded by a court "in some instances without explicit statutory authorization." Nevertheless, in a footnote to Braley v. Berkshire Mutual Insurance Co., the court challenged this assumption. Noting that the doctrine of punitive damages initially …

Who Should Recover For Loss Of Consortium?, Martin S. Amick

Maine Law Review

For more than three centuries courts have recognized a husband's right, where a tortious injury to his wife detrimentally affects the spousal relationship, to recover damages for loss of consortium. For many years the prevailing view was that a wife had no corresponding right to bring a similar action in response to a tortious injury to her husband. Most jurisdictions, however, now allow both the husband and the wife to recover for loss of "spousal" consortium. The right to recover for loss of consortium was extended to the wife largely because modern courts recognized that it was inconsistent and unjustifiably …

Common Law Sovereign Immunity And The Maine Tort Claims Act: A Rose By Another Name, R. Michael Martin

Maine Law Review

On October 12, 1976, the Maine Supreme Judicial Court allowed a Bath homeowner to sue the city for damage to her property resulting from the city's negligence. The case was Davies v. City of Bath and its significance was twofold. First, for decades before the Davies decision the Maine Supreme Judicial Court had routinely refused to consider such suits because of the doctrine of sovereign immunity. Fifteen years before Davies the court had expressed dissatisfaction with the doctrine, but until 1976 had repeatedly refused to abrogate it. Second, the Davies decision was significant because the Maine Legislature, under the guiding …

Proof Of Causation In A Private Action For Acid Rain Damage, Patrick J. Scully

Maine Law Review

The acid rain problem has become one of the major environmental issues of our day. Each new report on the subject is more disturbing than the last, documenting serious and often irreversible effects of acid rain on lakes and streams, fish and other aquatic life, forests, soils, buildings, and even human health. Present federal legislation is inadequate to deal with acid rain effectively. Proposed legislation could help ameliorate the problem, but even if adopted the effects of such proposals will not be felt until early in the next century. Furthermore, the current administration, particularly the Environmental Protection Agency (EPA), has …

Stacked Recovery Under Maine's Uninsured Motorists Statute: Connolly V. Royal Globe Insurance Company, Edward R. Benjamin Jr.

Maine Law Review

Foremost among the problems of automobile travel facing state legislatures may be that of ensuring adequate compensation for injuries and deaths suffered in traffic accidents. Frequently an injured party wins an award of damages against a negligent motorist, only to find the negligent party unable to meet the financial burden which the judgment imposes. The injured party, though innocent of any wrongdoing, may receive little or no compensation for injuries suffered. State legislatures have attempted to prevent such situations by enacting mandatory liability insurance laws, creating victim compensation funds, or requiring uninsured motorist coverage. Inherent weaknesses exist, however, in both …

Aviation Law: Owner-Lessor Liability—The Need For Uniformity, Ann T. Hollyday

Maine Law Review

General aviation—aviation involving both private and business aircraft—is a substantial and growing industry which comprises a fleet of 211,000 planes. The number of general aviation aircraft is expected to increase to 300,000 by 1991. Moreover, there are over 760,000 private pilots in the United States. Because of the varying sources of aviation liability law among the states, there is a lack of uniformity regarding whether the owner-lessor will be held vicariously liable for the negligent acts of the pilot. The lack of uniformity concerning owner-lessor liability in the aviation context is problematic because the owner is unable to predict what …

Hanover Insurance Co. V. Hayward: Imposition Of Punitive Damages In Addition To Criminal Sanctions, David P. Silk

Maine Law Review

In Hanover Insurance Co. v. Hayward, the Maine Supreme Judicial Court, sitting as the Law Court, addressed the issue whether punitive damages may be awarded against a defendant who has been criminally convicted for the conduct giving rise to the punitive damages claim. Although it affirmed the superior court's decision not to allow the award of punitive damages, the Law Court concluded that the imposition of criminal sanctions did not by itself bar punitive damages. Instead, the court indicated that criminal punishment is merely one factor to consider in determining whether an award of punitive damages would serve a meaningful …

Comparative Negligence: The Multiple Defendant Dilemma, Karen P. O'Sullivan

Maine Law Review

Maine's comparative negligence statute provides that a plaintiff who is partly at fault for his or her own injury may recover so long as he or she is not "equally at fault." The statute is simple to apply when there is only one defendant. In cases that involve two or more defendants, however, neither the Maine Supreme Judicial Court nor the Legislature has indicated whether the plaintiff's fault is compared with the fault of each defendant individually or all defendants combined.

The Government Contract Defense: Should Manufacturer Discretion Preclude Its Availability?, John D. Pelletier

Maine Law Review

The government contract defense developed in cases involving suits against private contractors for damages arising out of the performance of government public works projects. These cases held private contractors immune from liability for damages necessarily incident to the performance of such projects. In several recent cases, manufacturers have been allowed to raise the government contract defense as a bar to liability for injuries caused by design defects in military products supplied to the United States government. In two of these cases, the defense barred liability on behalf of military suppliers who merely executed the government's mandatory design specifications. In subsequent …

Burns V. Smith: Assessing The Sufficiency Of Affidavits Supporting Prejudgment Attachments In Medical Malpractice Actions, Margaret Christie Kenney

Maine Law Review

The process of attachment allows a plaintiff to request that the court bring a defendant's property into the court's custody for the purpose of satisfying any subsequent judgment that the plaintiff may obtain. In Maine, a plaintiff may proceed either with notice to the defendant or ex parte. In order to proceed ex parte, by which only the plaintiff appears before the court without notice to the defendant, the plaintiff must satisfy the requirements of Rule 4A of the Maine Rules of Civil Procedure. Rule 4A embodies two distinct safeguards for defendants whose property a plaintiff seeks to attach ex …

Tuttle V. Raymond: Drawing The Line On Punitive Damages, Elting H. Smith

Maine Law Review

In Tuttle v. Raymond, the Maine Supreme Judicial Court, sitting as the Law Court, reconsidered the appropriateness of Maine's common law doctrine of punitive damages. Under the doctrine, punitive or exemplary awards are permitted in tort actions, at the factfinder's discretion, for the purpose of deterring wrongful conduct. Prior to Tuttle, a plaintiff raised a claim for such an award if he proved by a preponderance of the evidence that the defendant was guilty of intentional, wanton, malicious, reckless, or grossly negligent behavior. Because of the doctrine's uncertain justification and vague standards, however, punitive damages had become the subject of …

Beyond The Equity Power Of Bankruptcy Courts: Toxic Tort Liabilities In Chapter 11 Cases, Kaighn Smith

Maine Law Review

In 1982, three asbestos product manufacturers filed voluntary petitions for business reorganization under Chapter 11 of the United States Bankruptcy Code. The common reason for each of these filings was that tort liabilities threatened the financial survival of the corporation. Never, in the history of United States bankruptcy law, had any business sought bankruptcy relief for such a reason. By 1985, two more firms, another asbestos product manufacturer and a pharmaceutical company, filed Chapter 11 petitions for the same reason. The torts of these "debtors" in bankruptcy are similar; they extend from the manufacture and wide-spread marketing of products that …

Improved Regulation Of Maine Physicians: One Solution To The Medical Malpractice Crisis, Joanne Buttolph Steneck

Maine Law Review

Maine began regulating allopathic and osteopathic physicians around the turn of the century with the passage of two statutes, in 1895 and 1919, commonly referred to as the Medical Practice Acts. As originally enacted, these statutes provided for the establishment of boards, composed of physicians, and empowered the boards to examine and license all persons seeking to practice as physicians and surgeons within the state. The boards were also responsible for investigating complaints of noncompliance with, or violations of, the Acts' provisions, and for revoking licenses for such violations. The boards were left to undertake these licensing and review functions …

Ending The Never-Ending Medical Malpractice Crisis, Allen Redlich

Maine Law Review

Another nationwide outbreak of what is commonly called the medical malpractice "crisis" is spreading. Once again, as during prior episodes, the public hears of dramatic increases in the cost of malpractice insurance, of growing numbers of multimillion dollar awards, and of increases in the number of suits filed. Already several states have passed statutes in attempts to resolve the crisis. This crisis atmosphere resembles the crisis of the mid-seventies when every state enacted so-called "remedial" statutes, which failed to solve the crisis. A physician would define a "crisis" as a turning point in the course of a disease; nonmedical definitions …

Affirmative Judicial Case Management: A Viable Solution To The Toxic Product Litigation Crisis, Patrick Francis Harrigan

Maine Law Review

With increasing frequency, federal courts throughout the nation have confronted a multiplicity of "toxic tort" claims, claims for relief arising from chronic and latent illnesses or diseases allegedly caused by toxic substances. Toxic substances are substances whose manufacture, processing, distribution, use, or disposal presents or will present an unreasonable risk of injury to a person's health or to the environment. Because many of these unreasonable health risks are caused by consumer and industrial products, many toxic tort claims are actually "toxic product" claims. Examples of toxic product claims include those arising from the use, exposure to, or consumption of chemicals …

From "Maine Law" To Model Act: Liquor Liability In Maine, William P. Shumaker

Maine Law Review

With the passage of the Maine Liquor Liability Act by the 112th Legislature, the State of Maine has completed a thorough reexamination of its public policy in the area of liability for injuries resulting from the use of alcoholic beverages. For 130 years the state's policy in this area was expressed by the statute commonly known as the dram shop act, the essential provisions of which had remained unchanged for over a century. This statute held sellers and other providers of alcoholic beverages strictly liable to any third party injured as a result of the intoxication of the recipient of …

Why The Ostensible Agency Tort Doctrine Is Incoherent, Daniel Harris

University of Miami Business Law Review

One of the most perplexing areas of current tort law is the ostensible agency tort doctrine, which courts use to determine whether companies should be held liable for the negligence of their independent contractors. In most cases, liability under this doctrine requires proof the plaintiff detrimentally relied on a representation that the contractor was an employee of the defendant. However, in cases involving the negligence of independent contractor emergency room doctors, courts often hold hospitals liable under the ostensible agency tort doctrine without requiring such proof. Why does the doctrine take two inconsistent forms?

This Article argues that the law’s …

Wrongful Death Actions In Missouri, Brad Matteuzzi

Law Student Works

This pathfinder covers the law that governs wrongful death actions in the state of Missouri. It focuses on the sources of law, who can bring the action, available damages, and relevant examples.

This pathfinder is primarily intended to provide an overview of Missouri wrongful death actions for law students or practitioners that are unfamiliar with wrongful death actions generally or new to the practice in Missouri. Many civil litigation firms dealing in personal injury will necessarily handle wrongful death actions.

The purpose of this pathfinder is to provide a simple and repeatable guide to locating the necessary resources to quickly …

Under Observation: Wilson V. Inthachak Shows That Georgia’S Emergency Care Statute Still Lacks A Uniform Interpretation, Thomas S. Kiser

Mercer Law Review

This year, pro- and anti-tort reform forces met on the battleground of O.C.G.A. § 51-1-29.5(c), a statute that gives doctors increased protection from malpractice claims when they provide “emergency medical care in a hospital emergency department . . . .” When healthcare providers or hospitals are sued for negligence under these circumstances, the plaintiff must have clear and convincing evidence that the provider was grossly negligent, a greater hurdle than an ordinary medical malpractice plaintiff would need to overcome. While the statute is crystal clear in its purpose, Georgia courts have not reached a consensus regarding its application. Wilson v. …

Premises Liability And Third-Party Attacks: A Path Forward, Pamela A. Wilkins

Mercer Law Review

Recently, in Georgia CVS Pharmacy, LLC v. Carmichael, the Supreme Court of Georgia recognized a totality of circumstances approach for determining whether a landowner owes a duty to protect patrons from third-party attacks. So right now, in Georgia, the poor lighting, high-crime surroundings, and absence of functioning panic boxes are relevant considerations for the duty calculus.

Many members of the Georgia General Assembly find this outcome intolerable. Only months after the court’s ruling in Georgia CVS Pharmacy, several state senators, focusing on the supposed “unfriendliness to business” of the current totality of circumstances rule, introduced a bill that …

Torts, Scott Key

Mercer Law Review

2023—2024 brought significant changes to the law of torts in the Supreme Court of Georgia, the Court of Appeals of Georgia, and the Georgia General Assembly. The most significant changes involve precedent loosening the reasonable foreseeability standard in negligence cases and the end of direct actions against insurers in motor carrier cases. This was a busy year in tort law, with sweeping changes from the courts and the legislature.

A Call For Statutory Reform: Online Marketplaces That Profit From Product Sales Should Be Held Strictly Liable As Sellers, Mark Anderson

Brooklyn Journal of Corporate, Financial & Commercial Law

Today, Americans purchase roughly 16% of all consumer goods through online marketplaces such as Amazon. While traditional brick-and-mortar retailers that sell defective products are strictly liable for harm caused by those products, online marketplace retailers, which serve analogous roles in defective product sales, can often evade liability entirely. Amazon, for instance, is immune from liability for product defects in more than 60% of sales conducted on its website in almost every state. This Note explains why online marketplaces that profit from defective product sales should be strictly liable for harm those products cause, and why courts often refuse to hold …

Silent Suffering: Demanding Individual Accountability For Sexual Assault Against Disabled Children In School Environments, Stephanie Flores

Journal of Law and Policy

Disabled children are among the most vulnerable in society, particularly in school environments where they depend on the actions and care of others for their safety. These children face significantly higher risks of sexual abuse than their non-disabled peers, and school officials' negligence can exacerbate this danger. Despite the prevalence of such cases, the Fifth Circuit's refusal to recognize school officials’ liability under the state-created danger doctrine, as seen in Fisher v. Moore, deprives disabled children of adequate legal recourse under 42 U.S.C. § 1983. The decision holds that school officials cannot be held personally liable for the peer-inflicted sexual …

Tort Liability, Privacy, And Regulatory Considerations For Level 3 Autonomous Vehicles, Ryan H. Jones

Michigan Technology Law Review

Recent developments in emerging technology, such as artificial intelligence, robotics, and autonomous vehicles, have generated inquiries about the incorporation of these technologies into the law, as well as the philosophical and ethical questions that accompany their use. This paper considers existing legal doctrine and regulatory frameworks as applied to the niche area of Level 3 autonomous vehicles. Specifically, this paper considers tort liability in the form of negligence and products liability, privacy risks, and regulatory considerations in relation to Level 3 vehicles. Finally, societal risks and potential solutions are considered to provide insight into potential areas of additional work.