Torts Commons^™

Corporate Behavior And The Social Efficiency Of Tort Law, John A. Siliciano

Michigan Law Review

This article examines this dissonance between accepted theory and observed reality, between what the model envisions and what the tort system seems to deliver. After sketching the model in greater detail, the first section of the article reviews restraints within tort law on the achievement of efficient outcomes. The analysis then turns to the broader legal environment, and describes how legally sanctioned means of liability evasion - such as the corporate law doctrine of limited liability and the bankruptcy rules permitting discharge of obligations - may further undermine the practical utility of the social efficiency model of tort. The final …

Road Signs And The Goals Of Justice, Joseph Sanders

Michigan Law Review

Review of Ideals, Beliefs, Attitudes, and the Law: Private Law Perspectives on a Public Law Problem by Guido Calabresi

Asbestos And The Dalkon Shield: Corporate America On Trial, Joseph A. Page

Michigan Law Review

A Review of At Any Cost: Corporate Greed, Women, and the Dalkon Shield by Morton Mintz and Outrageous Misconduct: The Asbestos Industry on Trial by Paul Brodeur

Government Responsibility For Constitutional Torts, Christina B. Whitman

Articles

This essay is about the language used to decide when governments should be held responsible for constitutional torts.' Debate about what is required of government officials, and what is required of government itself, is scarcely new. What is new, at least to American jurisprudence, is litigation against government units (rather than government officials) for constitutional injuries. 2 The extension of liability to institutional defendants introduces special problems for the language of responsibility. In a suit against an individual official it is easy to describe the wrong as the consequence of individual behavior that is inconsistent with community norms; the language …

Developing A Victims' Suit For Injuries Caused By A Compulsorily Released Prisoner, Leonard M. Niehoff

University of Michigan Journal of Law Reform

This Note advocates the development of a tort remedy for victims injured by a compulsorily released prisoner. This remedy would be based on existing tort theory permitting suits against third parties whose negligence causes or facilitates a criminal act. The victim would bring suit against both the state and third parties who aided in the criminal release determination . To support his claim, the victim would allege: (1) that state officials negligently selected the offending inmate for early release; and (2) that the state negligently maintained the unconstitutional prison conditions which precipitated the release.

Part I of this Note discusses …

Intramilitary Immunity And Constitutional Torts, Michigan Law Review

Michigan Law Review

This Note examines the reasoning underlying these conflicting approaches and concludes that a general rule of qualified immunity, which more fully protects the constitutional rights of members of the armed forces, is also consistent with the legitimate needs of the military establishment. Part I demonstrates that courts considering the scope of immunity in constitutional tort cases cannot rely blindly upon the rules and policies applicable in nonconstitutional cases, but must also accommodate the constitutional interests. Part II applies this principle to cases involving military officers. It argues in Section A that Feres v. United States does not support an absolute …

A "Humanitarian" Approach To Individual Injury, Christina B. Whitman

Reviews

Individual injury law was once an important arena for the definition of shared values. It has increasingly become the domain of various species of systems analysts who measure legal results against external norms defined by such disciplines as economics. Although legal scholars continue to use the expectations and beliefs of ordinary men and women in fashioning rules for the redress of constitutional injuries, common-law scholars have become less willing to ground legal principles in moral consensus. There are notable exceptions. Among these is Professor Marshall Shapo, who, in two recent works, attempts to develop a legal analysis of injury that …

Constitutional Torts, Christina B. Whitman

Articles

In this Article, I analyze the significance of the overlap between state tort law remedies and remedies under section 1983. I conclude that the dissatisfaction with section 1983 cannot fairly be attributed to the fact that it has been read to provide a remedy that "supplements" state law. I argue that most of the anxiety over constitutional damage actions under section 1983 can be understood - and resolved - only by focusing on two other questions. The first of these concerns the appropriate reach of the Constitution. Ambivalence about section 1983 reflects, in part, a fear that the federal Constitution …

Toxic Substance Contamination: The Risk-Benefit Approach To Causation Analysis, Bradford W. Kuster

University of Michigan Journal of Law Reform

This article argues that the dilemma described above requires change and proposes a new standard for causation in this type of toxic contamination case. Part I examines the difficulties posed by conventional common law relief mechanisms, and the inadequacies of existing statutory relief mechanisms. Part II scrutinizes a more lenient burden of proof standard, the risk-benefit approach, which some courts have applied when faced with situations involving scientific uncertainties. The risk-benefit approach will be applied to causation analysis in the context of damage recoveries, using the. Hemlock, Michigan, situation as a case study. Part III discusses present congressional proposals, and …

Products Liability: Developments In The Rule Of Successor Liability For Product-Related Injuries, Mary Annette Horan

University of Michigan Journal of Law Reform

This article will briefly review the traditional principles of corporate law governing the assumption of liabilities in the acquisition of an ongoing business, and the doctrinal premises of strict products liability. Attention will then be critically directed to recent developments in case law in which the traditional rules have been modified to reflect the policy considerations of strict products liability. Finally, this article will discuss the possibility of legislative intervention in the development of new principles governing successor responsibility for products liability claims and propose that this problem is an appropriate subject for legislative rather than judicial action.

A Perspective On The Michigan Law Of Damages, John W. Reed

Book Chapters

So also the subject of damages. There are some general principles, but damages is not a coherent body of law. It is small wonder that no one is writing books about it and that law schools do not provide courses in it. The standard, most widely cited text is McCormick on Damages, yet that book was published in 1935. There is no more recent book of consequence bearing that title. Professor Dan Dobbs's 1973 volume entitled Remedies contains, as one part of the book, an excellent analysis of recent damages developments; but McCormick continues to be the benchmark. As a …

Punitive Damages Under Section 102 Of The Labor-Management Reporting And Disclosure Act, S. Thomas Wienner

University of Michigan Journal of Law Reform

It is firmly established that in a suit brought under section 102, a union member may ordinarily recover compensatory damages for any injury proximately caused by a violation of Title I or section 609. The courts are divided, however, on the question of whether a plaintiff may be awarded punitive damages under section 102. This article will address that question by discussing the language and the legislative history of section 102, the conflicting decisions of the federal courts, and the relevant policy considerations.

The Interlocking Death And Rebirth Of Contract And Tort, Jeffrey O'Connell

Michigan Law Review

The first portion of this article will examine the growing inclination of courts to apply tort principles to cases based on contracts; at the same time, the defects of tort will be discussed insofar as they militate against the wisdom of so extending tort principles. In the last half of the article, an alternative contractual method for allocating losses in one particular area will briefly be presented; this method does not contain the defects in loss allocation that have impelled courts to reject traditional contractual principles, but it also avoids many inefficiencies of traditional tort remedies.

Emerging Standards For Implied Actions Under Federal Statutes, Gary W. Klotz

University of Michigan Journal of Law Reform

This article will examine the theoretical basis for finding implied causes of action in legislation and the development of the implication doctrine in the federal courts. In particular, the Cort v. Ash case will be discussed, both in terms of the standards articulated by the Supreme Court in dicta and the potential impact of Cort on the law of implied remedies.

Compensation For Pain: A Reappraisal In Light Of New Medical Evidence, Cornelius J. Peck

Michigan Law Review

The theory that a primary causal link exists between the victim's pain and the tortfeasor's acts provides considerable appeal for the proposition that the wrongdoer should compensate for the victim's pain. However, recent investigations of the phenomenon of pain by disciplines of the health sciences have challenged the medical theory upon which recoveries for pain and suffering are based. The results of that work are of obvious interest to the legal profession, for the new view of pain suggests that the tortfeasor's acts bear only a tangential relationship to the pain that some victims experience. The results thus raise questions …

Torts--Strict Liability--A Hospital Is Strictly Liable For Transfusions Of Hepatitis-Infected Blood--Cunningham V. Macneal Memorial Hospital, Michigan Law Review

Michigan Law Review

This Recent Development will briefly trace the development of hospital liability for transfusions of hepatitis-infected blood and will analyze both the impact of Cunningham on that area of the law and the correctness of the Cunningham decision.

Soviet Tort Law: The New Principles Annotated, Whitmore Gray

Articles

In 1961, the federal legislature, the USSR Supreme Soviet, finally adopted a skeleton code of fundamental principles of civil law.10 This recodification, which incorporates 40 years of case law and doctrinal development as well as some major innovations, will be the basis for individual civil codes to be adopted in each of the 15 union republics. While there may be some slight modifications, and certainly some variety in the degree of additional detail included in the individual codes by each republic,11 these Principles present already a fairly comprehensive picture of the shape of the future law. They are about as …

Atoms And The Law, E. Blythe Stason, Samuel D. Estep, William J. Pierce

Books

Early in 1951 a group of interested members of the faculty of The University of Michigan Law School conceived the idea of a research project, the purpose of which would be to investigate the principal unique legal problems being created and likely to be created in the future by peaceful uses of atomic energy. The group planned the preparation and publication of a series of manuscripts which might ultimately emerge as one or more printed volumes dealing with the legal problems affecting this new form of energy. Many phases of the subject were scrutinized, including the rule-making and licensing powers …

Landlord And Tenant-Liability Of Landlord To Persons On The Premises-Breach Of Covenant To Repair, Thomas P. Segerson

Michigan Law Review

Plaintiff, a carpenter, hired by tenant, suffered personal injuries in a fall caused by a defective railing on the rear porch of premises leased by defendant to tenant. By the terms of the lease, tenant was given exclusive possession of the premises, while defendant agreed to keep the rear porch in repair. Defendant had failed to repair the railing on being notified of its defective condition. From a judgment holding defendant liable to plaintiff for the injuries sustained; defendant appealed. Held, reversed. In the absence of control of the premises, a lessor is not liable in tort for personal …

Negligence-Imputed Negligence-Action Between Joint Enterprisers, Nancy J. Ringland

Michigan Law Review

Plaintiff and his wife were driving from Michigan to Iowa to visit a certain church to which plaintiff, a minister, was considering a call. Defendant desired to visit a college in Illinois, with the intention of enrolling as a student. It was agreed that defendant should ride in plaintiff's automobile to Illinois, where plaintiff was to help defendant gain admission to the college; later defendant was to return with the plaintiff to Michigan. The parties alternated in driving the automobile on the trip. At a certain stage in the journey, defendant negligently operated the automobile and caused it to become …

Negligence-Proximate Cause-Plaintiff's Burden Of Proof Where Either Of Two Wrongful Acts Could Have Caused Injury, M. J. Spencer

Michigan Law Review

While walking on a highway, A was knocked down by a car driven by B, and was almost immediately run over by C's car. A was pronounced dead from several injuries, any one of which would have sufficed to cause his death. Plaintiff, A's administratrix, recovered judgment against both B and C for A's death. Held, reversing on other grounds, joinder of B and C was proper. Micelli v. Hirsch, (Ohio App. 1948) 83 N.E. (2d) 240.

Torts--Consent As A Defense In Civil Actions Arising Out Of Mutual Affrays, The Kentucky Rule, Gladney Harville

Kentucky Law Journal

No abstract provided.

Executors And Administrators-Tort Action Against Personal Representative After Estate Is Closed, Leroy H. Redfern S.Ed.

Michigan Law Review

Plaintiff sustained personal injuries due to the negligent act of an employee in a business operated by defendant executor with court authorization. Eight months after the accident occurred the assets of the estate were distributed and the executor discharged. Four months later the plaintiff instituted a suit for damages against defendant in his individual capacity. Held, discharge of the executor did not relieve him of personal liability for the tortious acts of his agent. Johnston v. Long, ( Cal. 1947) 180 P. (2d) 21, as modified on denial of rehearing 181 P. (2d) 645.

Torts - Liability Of Owners Of Baseball Park - Spectator Struck By Batted Ball

Michigan Law Review

The plaintiff, a spectator at a baseball game, brought an action to recover for injuries sustained when he was struck by a foul ball. He was sitting in a reserved seat, but in a section of the grandstand not protected by a wire netting. Despite novel allegations designed, apparently, to suggest plaintiff's right to rely on the implication that a "reserved seat" is one which is located back of a protecting screen, and, further, to deny any μappreciation of the risk, on plaintiff's part, by suggesting that, at sixty-four, he was subject to the failing eyesight which customarily accompanies that …

Torts-The Duty To Rescue-"Am I My Brother's Keeper?

Michigan Law Review

A recent case, decided by the Supreme Court of Indiana, and commented upon elsewhere in this issue, involved the interesting question as to the existence of a duty to go to the aid of a person who is in helpless peril through no initial fault on the part of the defendant.

Landlord And Tenant - Covenant By Landlord To Repair - Liability Ex Contractu For Personal Injuries Of The Tenant's Wife, Reid J. Hatfield

Michigan Law Review

One of the terms under which certain premises were leased to plaintiff's husband was a covenant by the defendant lessor to keep the premises in repair. Defendant neglected to repair two of the porch steps, although often requested by plaintiff to do so, and because of their defective condition plaintiff fell and was hurt. She brought suit on two counts; in tort for negligence, and on the contract for its breach. Held, an action in tort would not lie, and, although this was a proper case for an action ex contractu, recovery was denied because the consequences were avoidable …

Torts - Effect Of Attractive Nuisance Doctrine On Municipal Liability To Children On The Streets, Donald H. Treadwell

Michigan Law Review

Plaintiff, an eight year old girl, stopped on the way home with a playmate to play around a newspaper stand located on the edge of the sidewalk. The stand was maintained by a vendor who was licensed by the city. While the plaintiff was standing beside the stand, her playmate swung from the top, causing it to topple over on the plaintiff and gash her forehead. Despite medical care infection set in and a disfiguring scar resulted. There was evidence that the stand had fallen over previously for various reasons. Held, that the defendant city was negligent in not …

Carriers - Gratuitous Pass - Limitation Of Liability, John L. Rubsam

Michigan Law Review

Appellee was traveling between Louisville and New Orleans on a gratuitous pass issued to her by reason of being the mother of a conductor employed by the Missouri-Pacific lines. The pass contained the following condition: "The person accepting and using it thereby assumes all risk of accident to person or property." Appellee had signed: "I accept the above conditions." The train gave a slight jerk due to coupling onto other cars, causing appellee to fall and sustain the injuries for which she sues. Held, where a passenger using a free interstate railroad pass agreed to assume the risk of …

Conflict Of Laws-Public Policy Of The Forum A Bar To Wife's Action Against Husband For Negligent Injury, Oscar Freedenberg

Michigan Law Review

Husband and wife were residents of state A, in which a personal tort action between the spouses was not recognized. The wife sued in state A for injuries sustained by reason of her husband's negligent operation of an automobile in state B. Notwithstanding the wife had a right of action under the lex loci delicti, held, that the public policy of the forum is an effective bar to an action by the wife against her husband for personal injuries. (In the record of the case it appears that the defendant in interest was an insurance company.) Kircher …

A Footnote On Dangerous Animals, Mary Coate Mcneely

Michigan Law Review

Much has been said and written by courts and authors on different aspects of the question of liability for injuries by animals, but there remains the task of fitting all these pieces into a complete pattern. The general subject of liability of the possessor of harm-producing animals has been treated on two separate and independent theories: (1) trespass, for injuries by marauding cattle; (2) case, for harms caused by animals other than trespassing cattle. The explanation for the separation of these two bodies of law is in part historical, the possessor of straying cattle being historically so identified with them …