Torts Commons^™

Human Problems: It’S Not Always The Technology’S Fault, Kevin Frazier, Brian L. Frye, Michael Goodyear, Jess Miers

Other Publications

No abstract provided.

One Step Forward, Two Steps Back: How The New York Appellate Division Slowed The Progress Of Judge Cardozo’S Effort In Macpherson V. Buick Motor Co. To End Privity’S Stranglehold Over Negligence Claims In Product Injury Cases, Jeffrey A. Van Detta

Touro Law Review

This article aims to tell the story of how the various Departments of the New York State Appellate Division sometimes helped—and just as often hindered—the development of the product injury law in the wake of MacPherson v. Buick Motor Co. (1916). Hailed for loosening the privity requirement that barred persons injured by products from suing manufacturers and suppliers for negligence, MacPherson has become the stuff of legal legend. No one put it more picturesquely than Dean William L. Prosser, who in a justly famous law review article described privity as a “citadel” and presented MacPherson’s author, Judge Benjamin Nathan Cardozo, …

Systemic Racism As Negligence, Taifha Natalee Alexander

Faculty Publications

(Excerpt)

If negligence doctrine can hold polluters liable for foreseeable toxic harm, should it not also hold schools liable for the racial toxins their policies foreseeably cause? Negligence serves as a critical doctrinal vehicle for redressing harm resulting from failures to exercise care. Embedded in common law traditions, negligence doctrine has evolved significantly through application to new contexts where systemic, rather than individualized, failures produce harm. Some courts have applied negligence doctrine to an expanding range of institutional responsibilities, from medical malpractice to corporate liability. Yet, despite the doctrine’s flexibility, courts have not applied the framework to address one of …

Tort Law Heterodoxy In China, Benjamin L. Liebman, Rachel E. Stern, Eva Wenwa Gao, Xiaohan Wu

Faculty Scholarship

Chinese courts routinely ask defendants to pay damages without evidence of negligence while relying on concepts such as fairness, substantive justice, or discretion. This chapter examines how Chinese courts arrive at decisions that feel fair or just in cases where they refer to those ideas. Analysis of a dataset of 10,000 judicial decisions in personal injury cases suggests that Chinese courts refer to these concepts when they impose liability on two types of parties: (1) participants in a shared activity and (2) those who control a physical space. By assigning legal responsibility in these cases, Chinese courts acknowledge traumatic harm, …

Tiktok On The Clock: It Is Time To Hold Social Media Platforms Responsible For The Dangerous Content They Push To Children, Angelina Rego

The Journal of Business, Entrepreneurship & the Law

This article examines the unresolved issue of social media companies endangering children through their targeted algorithms in a world where Section 230 protects them from any consequences. Part II will provide background on harmful content, like viral challenges, plaguing social media and endangering children. In addition, Part II will present an overview of Section 230’s immunity and its very limited exceptions. Next, Part III will analyze the legislative intent behind Section 230 and its relation to the First Amendment, highlighting that protecting children aligns with the act’s original purpose. Then, Part IV will discuss the few alternative workarounds available to …

The Coast Guard: Always Ready, Sometimes Careful, Edward D. Leonard Iii

Maine Law Review

The government presently is liable for the negligent conduct of the Coast Guard. Why and how such liability arises is the subject of this comment. In considering this subject three central questions are presented: First, whether the various acts abrogating the sovereign immunity of the federal government have been correctly applied to the Coast Guard; second, assuming that sovereign immunity has been waived, the extent of the duty owed by the Coast Guard to persons in distress; and third, after a finding of liability, the effect of the statutory extension of the admiralty doctrine of limitation of liability upon damage …

Wallace V. Coca-Cola Bottling Plants, Inc.: Defective Products, Expanded Liability, And The Demise Of The Impact Rule, Robert A. Whidden

Maine Law Review

During the last decade there has been a rapid change in the theories of recovery in cases involving defective products. A majority of jurisdictions has adopted strict products liability as a tort. Others still employ implied warranty, a device, apparently tort, borrowed from contract law. A minority still holds that a plaintiff must prove his claim in negligence. In a recent decision, Wallace v. Coca-Cola Bottling Plants, Inc., the Maine Supreme Judicial Court addressed the question of the extent of a manufacturer's liability for a defective product and the nature of the proof necessary to show a compensable injury. This …

Wallace V. Coca-Cola Bottling Plants, Inc.: Defective Products, Expanded Liability, And The Demise Of The Impact Rule, Robert A. Whidden

Maine Law Review

During the last decade there has been a rapid change in the theories of recovery in cases involving defective products. A majority of jurisdictions has adopted strict products liability as a tort. Others still employ implied warranty, a device, apparently tort, borrowed from contract law. A minority still holds that a plaintiff must prove his claim in negligence. In a recent decision, Wallace v. Coca-Cola Bottling Plants, Inc., the Maine Supreme Judicial Court addressed the question of the extent of a manufacturer's liability for a defective product and the nature of the proof necessary to show a compensable injury. This …

The Role Of The Maine Law Court In Abrogating The Common Law Doctrines Of Governmental And Charitable Immunity From Tort Liability, Maine Law Review

Maine Law Review

During the last decade the Maine Law Court refused to overrule two common law doctrines which effectively insulated certain tortfeasors from liability for their negligent conduct. The purpose of this comment is to determine if the public policy issues embodied in the immunity rules and the reliance interests attributed to those rules by the Law Court justified the radical departure from the court's traditional role of deciding cases properly before it.

The Role Of The Maine Law Court In Abrogating The Common Law Doctrines Of Governmental And Charitable Immunity From Tort Liability, Maine Law Review

Maine Law Review

During the last decade the Maine Law Court refused to overrule two common law doctrines which effectively insulated certain tortfeasors from liability for their negligent conduct. The purpose of this comment is to determine if the public policy issues embodied in the immunity rules and the reliance interests attributed to those rules by the Law Court justified the radical departure from the court's traditional role of deciding cases properly before it.

New Policies Bearing On The Negligent Employer's Immunity From Loss-Sharing, Maine Law Review

Maine Law Review

The statutory and judicial controls on loss-sharing between third-party tortfeasor and negligent employer must yield in the face of major modern developments in tort law. The third party's tort liability burden has sharply increased both in amount and frequency. New attitudes towards loss-apportionment highlight the imbalance that results from the employer's immunity and subrogation right. Although the situation is ripe for legislative action, courts, in the absence of full-scale systemic reassessment, must attempt some balancing of the competing policy objectives. While this Comment concludes by urging the adoption of a specific remedy allowing the third party to assert the employer's …

Comparative Negligence In Jackson V. Frederick's Motor Inn: What Is Compared?, Nancy Lynn Diesel

Maine Law Review

Before 1965, the defense of contributory negligence was an absolute bar to a plaintiff's recovery in tort actions in Maine. Under the contributory negligence principle, any degree of fault attributable to the plaintiff defeated his or her claim; the fault of the plaintiff and of the defendant was not compared. In 1965, the Maine Legislature enacted the Comparative Negligence Act in order to eliminate the harshness and inequities of the contributory negligence doctrine. The Act also served to stop juries from using compromise verdicts to reach a fair result. Under the Act, a plaintiff's fault is compared with that of …

Damage Apportionment In Maine: A Proposal For Reform, Barry A. Bachrach

Maine Law Review

Most jurisdictions have some form of comparative negligence system. Such systems reflect an evolving policy of equating liability with a proportional percentage of fault. Yet a vast majority of jurisdictions that have adopted comparative negligence also retain the common law rules of either joint and several liabilities or entire liability. Although these rules derive from discrete common law roots, the rules currently stand for the proposition that a tort-feasor should be responsible for all the damages his or her negligence proximately caused. Thus, even though a jurisdiction adopts comparative negligence, simultaneous application of the incongruent common law rules may frequently …

Tort Law—Right For All The Wrong Reasons: Allocating Fault To Immune Nonparties In The Wake Of Industrial Iron Works V. Hodge, Louis Rhodes Houser

University of Arkansas at Little Rock Law Review

No abstract provided.

Beyond The Sidelines: Recognizing A Coach’S Role In Sports Under New York’S Primary Assumption Of Risk Doctrine, Christopher J. Colbert

St. John's Law Review

(Excerpt)

This Note explores the New York Court of Appeals’s development of its primary assumption of risk doctrine. Ultimately, this Note argues that the New York Court of Appeals should adopt the Supreme Court of California’s recognition that the role of a coach is different than the relationship between coparticipants. Part I provides an overview of the origins of tort law in the sports context by examining New York and California’s common law assumption of risk doctrines. Part II analyzes how the New York Court of Appeals developed its primary assumption of risk doctrine differently than the Supreme Court of …

Healthcare Ai's Unlearned Intermediaries, Charlotte A. Tschider

Faculty Publications & Other Works

The U.S. Food & Drug Administration (“FDA”), as the largest and one of the most influential federal agencies, plays a significant role informing downstream tort actions, such as product liability claims against medical product manufacturers.  The contours of the relationship between regulatory behavior and tort law are allocated according to congressional act and through judicial interpretation of agency action.  While artificially intelligent medical devices are technically regulated by the FDA, FDA regulatory approaches may not meaningfully reduce the probability of patient injury.  When, despite inadequate ex ante processes, injured plaintiffs cannot recover in tort due to court perceptions of regulatory …

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 …

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 …

Prescription Practices, Anti-Psychotics, And Covid-19: An Intersectional Examination Of The Long-Term Care Home Setting In Canada, Olivia Ramos

Dalhousie Journal of Legal Studies

Public discourse and concern over the state of long-term care homes in Canada has been ongoing over the last two decades. One of the main sources of these concerns is the off-label prescription of anti-psychotic medications to long-term care home residents. Off-label use of pharmaceuticals is common and can be beneficial in certain contexts, however, there is a risk of anti-psychotics being used as an inappropriate means of managing patients chemically in the long-term care home setting. This paper engages in three lines of inquiry: first, the regulatory landscape of on and off-label prescription in Canada; second, the off-label use …

A Rule Without A Reason: Determining The Capacity For Negligence Of A Person With Mental Illness, Alex Geisinger, David Dematteo, Kellie Wiltsie, Chelsea Jackson

William & Mary Law Review

Since the pandemic, the impacts of structural bias on racial minorities and other groups have become an even more compelling concern for legal commentators. One group that has received some attention in the effort to confront bias is the mentally ill. This attention has coincided with a rise in the willingness of individuals to talk about, and destigmatize, mental health issues in society. Yet, despite these efforts, along with a long and well-established body of scholarship that criticizes its treatment of mental illness, the civil law—particularly the law of tort—continues its entrenched refusal to consider mental illness when determining the …

Tort Theory And The Restatement, In Retrospect, Keith N. Hylton

Faculty Scholarship

This is my third paper on the Restatement (Third) of Torts. In my first paper, The Theory of Tort Doctrine and the Restatement (Third) of Torts, I offered a positive economic theory of the tort doctrine that had been presented in the Restatement (Third) of Torts: General Principles, and also an optimistic vision of how positive theoretical analysis could be integrated with the Restatement project. In my second paper, The Economics of the Restatement and of the Common Law, I set out the utilitarian-economic theory of how the common law litigation process could generate optimal (efficient, wealth-maximizing) rules and compared …

Impaired, In Pairs, Cristina Carmody Tilley

Faculty Publications

Rape, like many other one-on-one aggressions, can be treated as both a crime and a tort. But neither body of law responds effectively to these aggressions. Criminal rape prosecution is notoriously difficult, and civil rape suits are notoriously rare. Today, as private law theorists have begun to study tort’s potential to drive social justice on issues of race, gender, and class, it is an ideal time to reassess the terms of civil liability for intimate injury. Culture has long limited “real rape” to premeditated, stranger-on-stranger, aggression. Consequently, tort has long categorized what this Essay terms “non-collaborative sex” as an intentional …

Tort Liability And Unawareness, Surajeet Chakravarty, David Kelsey, Joshua C. Teitelbaum

Georgetown Law Faculty Publications and Other Works

We explore the implications of unawareness for tort law. We study cases where injurers and victims initially are unaware that some acts can yield harmful consequences, or that some acts or harmful consequences are even possible, but later become aware. Following Karni and Vierø (2013), we model unawareness by Reverse Bayesianism. We compare the two basic liability rules of Anglo-American tort law, negligence and strict liability, and argue that negligence has an important advantage over strict liability in a world with unawareness—negligence, through the stipulation of due care standards, spreads awareness about the updated probability of harm.

America’S “Kia Boys”: The Problem, Responses, And Recommendations, Drew Thornley

Seattle University Law Review Online

The landscape of automobile theft in the United States has undergone a dramatic transformation, marked by a notable surge in the theft of Kia and Hyundai vehicles. Once regarded as a routine occurrence, car thefts have taken on a novel dimension, propelled by a phenomenon driven by digital culture and social media virality. The thefts of these specific car brands have evolved into what is now widely recognized as the "Kia Challenge," a term echoing across popular platforms like TikTok. In this challenge, young teenage individuals, often referred to as the "Kia Boys" or variations thereof, orchestrate daring car heists, …

Foreseeability And Duty In Washington Negligence Law: Leaving The Road Less Traveled By, Leo Linder

Seattle University Law Review

Washington negligence law is a confusing labyrinth of foreseeability that not even Ariadne’s string could guide plaintiffs out of. Foreseeability is implicated in four distinct analyses, several of which overlap considerably. Doctrines that were once questions of law are now questions of fact, and vice versa. Something needs to change.

Washington has taken the novel approach of bifurcating the duty element into two parts—duty’s mere existence, which is a question of law for the court to determine; and duty’s scope, which is a question of fact handed off to the jury to determine. Foreseeability impacts both of these assessments, but …

The Class Of Injuries Test: A Unifying Proposal To Determining Duty, Proximate Cause, And Superseding Cause In Negligence Claims, Judge Leonard J. Feldman, Julia Doherty

Seattle University Law Review

While there seems to be universal agreement that liability in tort cannot be unlimited, there is widespread disagreement regarding the various tests that courts utilize to limit such liability. We assume here that breach can be proven: the defendant failed to conduct themself in accordance with the salient standard of conduct (for example, failure to exercise reasonable care under all the circumstances). In the ensuing litigation, the court and jury are asked to decide several issues that each limit liability for negligence. Here, we focus on three oft-debated issues: duty, proximate cause, and superseding cause. The tests for each are …

Dockray V. Roger Williams Med. Ctr., 295 A.3d 68 (R.I. 2023)., Natalie E. Deangelis

Roger Williams University Law Review

No abstract provided.

Noonan V. Sambandam, 296 A.3d 670 (R.I. 2023)., Grant E. Mooney

Roger Williams University Law Review

No abstract provided.

Shields Up For Software, Derek E. Bambauer, Melanie J. Teplinsky

UF Law Faculty Publications

This Article contends that the National Cybersecurity Strategy's software liability regime should incorporate two safe harbors. The first would shield software creators and vendors from liability for decisions related to design, implementation, and maintenance, as long as those choices follow enumerated best practices. The second—the “inverse safe harbor”—would have the opposite effect: coders and distributors who engaged in defined worst practices would automatically become liable. This Article explains the design, components, and justifications for these twin safe harbors. The software safe harbors are key parts of the overall design of the new liability regime and work in tandem with the …