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Articles 31 - 60 of 71
Full-Text Articles in Torts
Doctors, Nurses And Superseding Cause: The Demise Of The Last In Time Defense, Charles Lattanzi
Doctors, Nurses And Superseding Cause: The Demise Of The Last In Time Defense, Charles Lattanzi
Journal of Law and Health
The question which naturally arises is whether the determination of superseding cause in this context is a question for the jury. Ohio case law has long held, as a matter of law, that the aggravation of an injury by the subsequent malpractice of a physician never breaks the chain of causation. Assuming that the original tortfeaser was negligent and that his actions caused the original injury, the only question left for the jury is whether the plaintiff herself exercised reasonable care in seeking treatment by a qualified physician. This rule was affirmed and given its common appellation, "the subsequent tortfeasor …
Legal Malpractice In Ohio, John C. Nemeth
Legal Malpractice In Ohio, John C. Nemeth
Cleveland State Law Review
This article will discuss the fundamentals of a legal malpractice case, specifically addressing two areas. The first involves the elements of a legal malpractice case. This discussion will expose two problems that continually appear in legal malpractice litigation: (1) expanding the liability of an attorney to third parties, and (2) determining whether the alleged malpractice was the proximate cause of the plaintiff's injuries. The second area of discussion will focus on the time limitations imposed for bringing a legal malpractice action. Additionally, in order to better understand the current state of the law, a brief discussion illustrating the historical development …
Educational Malpractice: A Tort En Ventre, Frank D. Aquila
Educational Malpractice: A Tort En Ventre, Frank D. Aquila
Cleveland State Law Review
This article explores the policy reasons which courts have adopted to deny a private cause of action holding educators legally liable for deficiencies in a student's education. The introductory section provides the background on the basic issue of malpractice in education. Section two examines educational malpractice case law focusing first on cases involving negligence in basic academic skill instruction, then looking at negligence in special education. Section three explores the various duty of care arguments while section four discusses three alternate theories for recovery. Section five analyzes the policy reasons for denial of the tort of educational malpractice. New directions …
Educational Malpractice: A Tort Is Born, Johnny C. Parker
Educational Malpractice: A Tort Is Born, Johnny C. Parker
Cleveland State Law Review
This article examines the judicial justification for the nonrecognition of educational malpractice as a theory of tort liability. Section I focuses on the various factual contexts in which educational malpractice claims have arisen and analyzes the concept of duty and proximate cause in the different factual contexts. Section II discusses the common law principles which demonstrate that the analytical problems associated with educational malpractice are not new to the law. Section III examines public policy as a distinct component of the duty-proximate cause inquiry. Section IV also focuses on public policy as expressed by various state legislatures regarding the teaching …
Educational Malpractice: A Tort Is Born, Johnny C. Parker
Educational Malpractice: A Tort Is Born, Johnny C. Parker
Cleveland State Law Review
This article examines the judicial justification for the nonrecognition of educational malpractice as a theory of tort liability. Section I focuses on the various factual contexts in which educational malpractice claims have arisen and analyzes the concept of duty and proximate cause in the different factual contexts. Section II discusses the common law principles which demonstrate that the analytical problems associated with educational malpractice are not new to the law. Section III examines public policy as a distinct component of the duty-proximate cause inquiry. Section IV also focuses on public policy as expressed by various state legislatures regarding the teaching …
Educational Malpractice: A Tort En Ventre, Frank D. Aquila
Educational Malpractice: A Tort En Ventre, Frank D. Aquila
Cleveland State Law Review
This article explores the policy reasons which courts have adopted to deny a private cause of action holding educators legally liable for deficiencies in a student's education. The introductory section provides the background on the basic issue of malpractice in education. Section two examines educational malpractice case law focusing first on cases involving negligence in basic academic skill instruction, then looking at negligence in special education. Section three explores the various duty of care arguments while section four discusses three alternate theories for recovery. Section five analyzes the policy reasons for denial of the tort of educational malpractice. New directions …
Who Decides - Community Safety Conventions At The Heart Of Tort Liability, Patrick J. Kelley
Who Decides - Community Safety Conventions At The Heart Of Tort Liability, Patrick J. Kelley
Cleveland State Law Review
What we need is a uniformly accepted theory that explains the tort liability system in terms of its ultimate social function. The reason we don't have one, I will argue, is that our understanding of the tort liability system has been skewed by an earlier, flawed attempt at descriptive theory. Before embarking on a new search for a descriptive theory, we first ought to formulate a search plan, sometimes called, forbiddingly, a "theoretical methodology." Using John Finnis's social science methodology, we can identify the two halves of the focal case of tort liability: intentional battery and negligent infliction of personal …
Expert Testimony On Proximate Cause, Daniel J. Steinbock, William M. Richman, Douglas E. Ray
Expert Testimony On Proximate Cause, Daniel J. Steinbock, William M. Richman, Douglas E. Ray
Vanderbilt Law Review
Expert testimony is common in tort litigation, especially on issues of standard of care and cause-in-fact. Rule 704 of the Federal Rules of Evidence and its state counterparts abolished the prohibition of testimony on ultimate issues, leading to the possibility of expert testimony on the often crucial issue of proximate cause. The situation is easy to imagine. After counsel has qualified an expert witness and elicited an opinion that the particular act or omission "caused" the injury in question, counsel might very well be tempted to inquire whether the witness has an opinion as to whether the act or omission …
Products Liability-Proximate Cause, Intervening Cause, And Duty, David A. Fischer
Products Liability-Proximate Cause, Intervening Cause, And Duty, David A. Fischer
Faculty Publications
The primary emphasis of this article will be on the application of proximate cause in strict liability cases involving physical harm to person or property. This includes breach of implied warranty cases causing physical harm as well as strict tort liability cases. For purposes of the matters discussed in this article, the two theories are essentially the same. The major difference between the theories is that warranty law may recognize some contract defenses that do not apply in strict tort cases. The article will also discuss negligence cases for purposes of comparison and contrast with the strict liability cases. This …
Protection Of Shipowners’ Liability Under United States Law And Marine Insurance Practice, Izak Stephanus Fourie
Protection Of Shipowners’ Liability Under United States Law And Marine Insurance Practice, Izak Stephanus Fourie
LLM Theses and Essays
Shipowners are exposed to a variety of risks that are, to a large extent, unique to maritime business. Because of factors like the recent increase in the size and value of ships, increase in marine traffic, enactment of legislation imposing new liabilities, and the tendency of courts to make huge awards to personal injury and death claims, shipowners are exposed to potential losses or claims worth millions of dollars in the event of disaster. These heavy risks led to the establishment of the marine insurance industry, as well as the enactment of legislation that limits shipowners’ liability. This legislation was …
Medico-Legal Issues In Wound Management, Susan Webber
Medico-Legal Issues In Wound Management, Susan Webber
University of Arkansas at Little Rock Law Review
No abstract provided.
Wrongful Dishonor, James J. White
Wrongful Dishonor, James J. White
Other Publications
Uniform Commercial Code section 4-402. I. Basic Liability II. Damages III. Miscellaneous Asides
Kentucky Law Survey: Torts, Richard C. Ausness
Kentucky Law Survey: Torts, Richard C. Ausness
Law Faculty Scholarly Articles
This article provides a survey of Kentucky legal developments in the area of tort law. During the past term the Kentucky Court of Appeals was quite active in the area of torts. The Court considered cases involving battery, nuisance, products liability and negligence. The negligence decisions dealt with a defendant's standard of care, contributory negligence, and last clear chance. Four of these cases have been selected for examination in this article.
Civil Liability For Causing Suicide: A Synthesis Of Law And Psychiatry, Victor E. Schwartz
Civil Liability For Causing Suicide: A Synthesis Of Law And Psychiatry, Victor E. Schwartz
Vanderbilt Law Review
If suicide is a deliberate, intentional act by an individual, how can one person be "civilly liable for causing the suicide of another"? The paradox suggested by this question has caused many courts to shy away from imposing civil liability for causing suicide.' In certain situations,however, a growing number of courts are permitting recovery. Since suicide is on the increase both in numerical terms and in rank as a cause of death in the United States it can be expected that even more tort claims will be brought by parties attempting to fix civil responsibility on someone other than their …
Ill Treatment As The Cause Of Suicide, William Weaver
Ill Treatment As The Cause Of Suicide, William Weaver
Cleveland State Law Review
This paper attempts to summarize the law with respect to the liability of one whose ill treatment of another ultimately results in the suicidal death of such other.
Foreseeability In American And English Law, Harry G. Fuerst
Foreseeability In American And English Law, Harry G. Fuerst
Cleveland State Law Review
Foreseeability is "the ability to see or know in advance, hence, the reasonable anticipation that harm or injury is the likely result of acts or omissions." In order to determine culpable negligence and establish the right to recover for a wrong, there must be a sequence of events like concatenation, or a series of united events like the links of a chain, called proximate cause. The definition of proximate cause is, "that cause which in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred."
Contibutory Negligence In Medical Malpractice, W. David Alderson
Contibutory Negligence In Medical Malpractice, W. David Alderson
Cleveland State Law Review
Three categories of cases have been noted out of the mass of factually individualistic ones concerning medical malpractice and contributory negligence. The first, where a breach of duty owed the patient by the physician is lacking, involves an injury produced by the patient's own negligence. In the second, the patient's negligence directly contributes to the severity of an injury already present because of the physician's negligence. The plaintiff-patient's damages are not mitigated but rather entirely precluded in light of his acts. Thus a plea of contributory negligence is a complete defense. The third category includes those cases where a time …
Torts--A New Test For Proximate Cause?, Robert William Burk Jr.
Torts--A New Test For Proximate Cause?, Robert William Burk Jr.
West Virginia Law Review
No abstract provided.
Concurrent Causation In Insurance Contracts, William Conant Brewer Jr.
Concurrent Causation In Insurance Contracts, William Conant Brewer Jr.
Michigan Law Review
A great deal of work and thought has been devoted to concurrent causation problems in the field of torts. Less attention has been paid to the insurance cases, and no serious effort has been made to formulate the separate rules applicable to them. It is the thesis of this article that concurrent causation problems which arise under an insurance contract must be handled somewhat differently from those which arise in connection with tort litigation, and that the tendency to borrow rules of law from the larger tort field and apply them to the smaller volume of insurance cases can only …
Torts -- 1960 Tennessee Survey, John W. Wade
Torts -- 1960 Tennessee Survey, John W. Wade
Vanderbilt Law Review
As usual, there were about forty reported Torts cases this year. There were no striking new developments. Many of the cases were merely routine, some of them indeed carrying quite long opinions without deciding anything which will give them real value as precedents for the future. The great majority of the cases involved actions for negligence, considerably more than half the cases being concerned with traffic accidents.
Negligence - Proximate Cause - Liability Of Tavern-Keeper To Third Person Injured By One To Whom Tavern-Keeper Had Made And Unlawful Sale Of Liquor, Alan C. Miller
Michigan Law Review
In a jurisdiction having a statute prohibiting sales of liquor to minors and persons actually or apparently intoxicated, defendants, four tavern-keepers, served alcoholic beverages to an eighteen-year-old minor. Fifteen or twenty minutes after leaving the last of the taverns, the intoxicated minor negligently drove a motor vehicle and collided with plaintiff's car, killing plaintiff's husband. Plaintiff brought this action as representative of her husband's estate and as owner of the damaged car. Her complaint charged not only that defendants unlawfully and negligently sold and served alcoholic beverages to a minor under circumstances constituting notice that he was a minor, but …
Torts - Mental Distress - Recovery Against Original Wrongdoer For Fear Of Cancer Caused By Subsequent Medical Advice, Paul Gerding
Torts - Mental Distress - Recovery Against Original Wrongdoer For Fear Of Cancer Caused By Subsequent Medical Advice, Paul Gerding
Michigan Law Review
Plaintiff, suffering from bursitis in the right shoulder, received X-ray treatments from defendant physicians. Subsequent thereto, plaintiff's shoulder began to itch, scab, and blister for several years, a condition diagnosed as chronic radiodermatitis caused by the X-ray therapy. Approximately two years after the treatments, plaintiff was examined by a dermatologist who advised her to have her shoulder checked every six months because the area might become cancerous. Plaintiff then developed a severe "cancerphobia," an apprehension that she would ultimately develop cancer from the radiation burn. Plaintiff brought a malpractice suit against defendant physicians, seeking recovery for the physical injury and …
Torts--Intervening Cause--Liability Of Original Tortfeasor For Subsequent Damages To Property By A Repairman, A. G. H.
West Virginia Law Review
No abstract provided.
Negligence - Duty Of Care - Effect Of Time Lapse On Manufacturer's Duty, John Paul Williams
Negligence - Duty Of Care - Effect Of Time Lapse On Manufacturer's Duty, John Paul Williams
Michigan Law Review
Plaintiff suffered injuries when the fly wheel on a truck he was driving gave way, causing the truck to crash. He brought an action in damages against defendant, manufacturer of the truck, alleging defective design and manufacture of the fly wheel. The truck had been safely used for at least five years prior to the accident and had been driven 200,000 to 400,000 miles during that period. On defendant's motion for directed verdict, held, granted. There is no evidence whatever that the defendant failed to exercise reasonable care. Also, use of the truck for five years results in a …
Negligence--Proximate Cause--Foreseeability Of Specific Injury, J. S. T.
Negligence--Proximate Cause--Foreseeability Of Specific Injury, J. S. T.
West Virginia Law Review
No abstract provided.
Negligence--Distinction Between Proximate Cause And Condition, C. S. Mcg.
Negligence--Distinction Between Proximate Cause And Condition, C. S. Mcg.
West Virginia Law Review
No abstract provided.
Negligence - Res Ipsa Loquitur - Application To Multiple Defendants In The Alternative, Edward H. Hoenicke
Negligence - Res Ipsa Loquitur - Application To Multiple Defendants In The Alternative, Edward H. Hoenicke
Michigan Law Review
Appellant, a minor, was injured by the explosion of an "aerial bomb" which he found on a county fair ground. Two of the defendants admitted having brought aerial bombs to the fair but each entered evidence which if believed would show that he had not left the article which injured the appellant. These two defendants were completely independent of each other and it was admitted that both could not be responsible for the injury to the child. The lower court instructed the jury that if they could not determine which of the two defendants was actionably negligent, they were compelled …
Negligence - Proximate Cause - Liability Of Saloon Keeper For Liquor Sale Against Wife's Notice, Stephen C. Bransdorfer
Negligence - Proximate Cause - Liability Of Saloon Keeper For Liquor Sale Against Wife's Notice, Stephen C. Bransdorfer
Michigan Law Review
A wrongful death action was brought by the widow and children of a deceased patron of defendant's saloon, the patron having been fatally injured in a fall while engaged in fisticuffs after consuming liquor sold by defendant. Plaintiffs alleged that defendant knew that deceased became belligerent when intoxicated and that sales were made despite widow's prior request that liquor not be furnished to deceased husband in sufficient quantity to cause intoxication. The trial court sustained a demurrer without leave to amend and gave judgment for defendant. On appeal, held, reversed; the trial court abused its discretion. Cole v. Rush …
Negligence - Causation - Liability Under Statute For Injury Resulting From Fire Started By Railroad Locomotive, Howard. N. Thiele, Jr. S.Ed.
Negligence - Causation - Liability Under Statute For Injury Resulting From Fire Started By Railroad Locomotive, Howard. N. Thiele, Jr. S.Ed.
Michigan Law Review
Sparks from defendant's train started a fire on defendant's right of way which spread toward plaintiff's farm. Plaintiff, in an attempt to contain the fire, plowed a fire guard along the edge of his property. While driving his tractor to a safe place after completing the last furrow, he ran over a root or limb which flew up and struck him in the eye, causing blindness. In the trial court plaintiff recovered from the railroad under an Oklahoma statute which specified that "Any railroad company operating any line in this state shall be liable for all damages sustained by fire …
Palsgraf Revisited, William L. Prosser
Palsgraf Revisited, William L. Prosser
Michigan Law Review
Perhaps the most celebrated of all tort cases is Palsgraf v. Long Island Railroad Company. Certainly it is one of the most controversial. Thirteen judges in all passed upon the case, and seven of them were for the plaintiff, at least in the sense that they considered that the issue was one to be left to the jury. Four of the remaining six, sitting on the Court of Appeals of New York, had the :final word, and they set aside the verdict, dismissed the complaint, and ordered judgment for the defendant. The Advisers of the Restatement of Torts debated …