Torts Commons^™

Her Own Good Name: Two Centuries Of Talk About Chastity, Lisa R. Pruitt

Maryland Law Review

No abstract provided.

The Avid Sportsman And The Scope For Self-Protection: When Exculpatory Clauses Should Be Enforced, Robert Heidt

University of Richmond Law Review

No abstract provided.

Preemption Of Common Law Claims And The Prospects For Fifra: Justice Stevens Puts The Genie Back In The Bottle, Jennifer S. Hendricks

Publications

In the upcoming Term, the Supreme Court will consider a case raising the question whether the Federal Insecticide, Fungicide, and Rodenticide Act preempts state tort law, or only state positive law. FIFRA, under which the Environmental Protection Agency regulates pesticide labels, has an express preemption clause and clearly preempts state positive law on labeling. The question presented is whether and to what extent it also preempts state tort law, particularly claims for failure to warn. The Court's precedent on preemption of state tort law is erratic, but for some reason, the pro-preemption view has been much more popular with lower …

Investigating New York’S Son Of Sam Law: Problems With The Recent Extension Of Tort Liability For People Convicted Of Crimes, Jessica Yager

NYLS Law Review

No abstract provided.

Writing Checks Or Righting Wrongs: Election Funding And The Tort Decisions Of The Ohio Supreme Court, James T. O'Reilly

Cleveland State Law Review

This paper will try to address the court's present and future course in tort law, with particular focus on products liability, malpractice, and employer tort liability. These are the most intriguing segments of modern tort law in Ohio. The paper concludes that stare decisis and the precedential accretion of the common law no longer seem to matter to the Ohio Supreme Court. Instead, the cacophony of a fractured court has imperiled predictability and imperiled the court's national reputation. Instead, the topic of a prospective justice's view of the tort system is unfortunately an early and frequent conversation in recruitment, selection, …

Prenatal Tort Law And The Personhood Of The Unborn Child: A Separate Legal Existence, Gregory J. Roden

St. Thomas Law Review

This article will examine the state of prenatal tort and wrongful death law at the time the Supreme Court decided Roe v. Wade and compare such examination to Justice Blackmun's assessment of it in his Roe opinion. Justice Blackmun's opinion in Roe v. Wade briefly takes up the area of prenatal tort law wherein he discusses some of the (allegedly) inchoate rights of the unborn: In areas other than criminal abortion, the law has been reluctant to endorse any theory that life, as we recognize it, begins before life birth or to accord legal rights to the unborn except in …

Homicide On Holiday: Prosecutorial Discretion, Popular Culture, And The Boundaries Of The Criminal Law, Carolyn B. Ramsey

Publications

This article discusses prosecutors' discretion to press criminal charges against individuals who cause death during recreational activities. Based on newspaper sources, published opinions, and unpublished materials from cases that resulted in plea bargains, Homicide on Holiday continues the author's exploration of the relationship between the American public, criminal prosecutors, and the nature of the prosecutors' public role. It shows that, despite popular culture's glorification of risk and a nationwide trend in tort law toward sheltering sports co-participants from civil negligence liability, an exhilarating trip down a ski slope is increasingly likely to land a skier in jail if he collides …

Anderson V. Weatherwax, 02-Nov-13 (Blkft. Tr. Ct. App., November 13, 2002), Blackfeet Appellate Court

Court Decisions

In this case, a vehicle driven by the daughter of Defendant, crashed into a building owned by the Plaintiff. Damages were sought in the amount of $10,000 through a civil complaint. Upon filing, the tribal court clerk informed the Plaintiff that he would have to personally serve the Defendant with the complaint, to which Plaintiff did.  Defendant did not answer the complaint within the required 20 days. Plaintiff then filed a petition in the court requesting default judgment to which Defendant also failed to respond to. Plaintiff was then granted a default judgment in the amount of $8,800. Plaintiff moved …

Tort Liability For The Sale Of Non-Defective Products: An Analysis And Critique Of The Concept Of Negligent Marketing, Richard C. Ausness

Law Faculty Scholarly Articles

This Article will evaluate the concept of negligent marketing to see whether it ought to become a part of our legal jurisprudence or whether it should be discarded as doctrinally unsound, possibly harmful to important social and economic interests.

Part II of this Article provides an overview of the negligent marketing theory. Negligent marketing can be divided into three categories: (1) product designs that make the product more attractive to criminals; (2) advertising and promotional activities that target inappropriate users; and (3) product distribution practices that facilitate retail sales of dangerous products to vulnerable or unsuitable users. The first category …

Insurance Causation Issues: The Legacy Of Bird V. St. Paul Fire & Marine Ins. Co., Peter Nash Swisher

Nevada Law Journal

No abstract provided.

Teaching Real Torts: Using Barry Werth's Damages In The Law School Classroom, Tom Baker

Nevada Law Journal

No abstract provided.

Intential Infliction Of Mental Distress In Nevada, Carl Tobias

Nevada Law Journal

No abstract provided.

Will More Aggressive Marketing Practices Lead To Greater Tort Liability For Prescription Drug Manufacturers?, Richard C. Ausness

Law Faculty Scholarly Articles

Manufacturers of prescription drugs have begun to market their products more aggressively than they did in the past. These marketing efforts are not confined to health care professionals alone; pharmaceutical companies now engage in extensive direct-to-consumer advertising on radio and television, in the print media, and even on the Internet. While these promotional efforts no doubt increase sales, they may also lead to greater tort liability for drug-related injuries. The most likely theories of liability are failure to warn and negligent marketing. Liability for inadequate warnings will almost certainly increase if courts abandon the learned intermediary rule and require drug …

Licensees In Landoccupiers' Liability Law - Should They Be Exterminated Or Resurrected, Osborne M. Reynolds Jr.

Oklahoma Law Review

No abstract provided.

Tort Recovery For Loss Of A Chance, David A. Fischer

Faculty Publications

Tort lawyers in the United States often think of “loss of a chance” as a theory of “probabilistic causation” that only applies to medical malpractice misdiagnosis cases. The theory is that if a physician negligently fails to diagnose a curable disease, and the patient is harmed by the disease, the physician should be liable for causing the “loss of a chance” of a cure. We shall see that if the chance of a cure is less than 50 percent, the plaintiff cannot prove by a preponderance of evidence that the negligence caused the harm, and would recover no damages under …

Intent And Recklessness In Torts: The Practical Craft Of Restating Law, James A. Henderson, Jr., Aaron D. Twerski

Vanderbilt Law Review

However one frames the concepts of intent and recklessness in a Restatement, they must be kept generic, stable, and endogenous. By "generic" we mean that the concepts should not be tied to any single tort, or family of torts. For example, one frequently encounters philosophical treatments of tort that automatically link intent with the causing of tangible harms, such as personal injury and property damage. Apparently, intent and harm are coupled in this manner in order to contrast intentional infliction of harm with negligently harmful conduct. But to inextricably link intent with tangible harm in a Restatement of Torts would …

Accidental Torts, Thomas C. Grey

Vanderbilt Law Review

One way to understand tort law is as a functional response to the social problem of accidental personal injury. That puts the negligence action at the center, and emphasizes the doctrinal choice between negligence and strict liability, while downplaying the intentional torts and the torts that do not involve physical injury. It also foregrounds the policy choice between tort and other means of dealing with accidents. This functional treatment is not uncontroversial today, but it is certainly orthodox.

Here I propose to bring back into view some neglected aspects of the intellectual origins of the accident-centered approach to tort law. …

Introduction To Torture As Tort: From Sudan To Canada To Somalia, Craig M. Scott

Articles & Book Chapters

The present work is chapter 1 of the edited volume, Torture as Tort: Comparative Perspectives on the Development of Transnational Human Rights Litigation (Hart Publishing, Oxford, 2001). At the time the book was generated, the controversial nature of seeking globalised justice through national courts had become starkly apparent in the wake of the Pinochet case in which the Spanish legal system sought extradition of the former President of Chile from the United Kingdom in order to bring him to account under Spanish criminal law for a variety of alleged violations in Chile of human rights, most notably involving torture. Yet, …

The Application Of Product Liability Principles To Publishers Of Violent Or Sexually Explicit Material, Richard C. Ausness

Law Faculty Scholarly Articles

There have been a number of tragic incidents during the past few years in which mentally unstable teenagers have carried guns into school and shot teachers and fellow students. These schoolyard killings have generated an intense debate about the problem of violence in our society. Some social commentators have attributed teenage violence to the widespread availability of firearms, while others blame parental neglect, lack of discipline in the schools, or the declining influence of religion and morality in contemporary culture. However, another source of concern is the popular media, which stands accused of purveying sex and violence on a massive …

“Waive” Goodbye To Tort Liability: A Proposal To Remove Paternalism From Product Sales Transactions, Richard C. Ausness

Law Faculty Scholarly Articles

This Article argues that waivers of tort liability should be permitted in connection with product sales. Currently, sellers cannot limit their liability under tort law for personal injuries caused by defective products even though such waivers are allowed, albeit reluctantly, under principles of negligence and warranty law. Existing principles of products liability law should be modified, either by legislation or by court action, to allow at least limited use of these waivers.

Taming Terrorists But Not "Natural Born Killers", S. Elizabeth Malloy

Faculty Articles and Other Publications

This Article will explore the possibility of shifting or sharing the liability
stemming from criminal activities to those who provide detailed directions on
how to commit those acts, when the publication in question has no other
redeeming value. This Article concludes that in some limited circumstances, the First Amendment should not preclude the imposition of civil liability for those who write and distribute speech that both advocates and facilitates harm to others.

Part I of this Article reviews the First Amendment and discusses the Brandenburg test and its potential application to situations involving speech
advocating socially harmful activity. Part II …

Lies Between Mommy And Daddy: The Case For Recognizing Spousal Emotional Distress Claims Based On Domestic Deceit That Interferes With Parent–Child Relationships, Linda L. Berger

Scholarly Works

This Article discusses whether courts should recognize spousal IIED causes of action based on intentional lies that interfere with the establishment or the continuation of parent-child relationships. The Article begins with an overview of the currents in family law and tort law that converge in domestic tort actions. Next, it reviews the current status of a particular domestic tort: spousal emotional distress. It then examines the evolution of emotional distress claims based on interference with parent-child relationships, moving from California's early and continuing rejection of these claims to the very recent recognition of these claims by other states. Finally, it …

Recent Case Developments, Jeffrey W. Stempel

Scholarly Works

Recent case developments in Insurance Law in the years 1999 and 2000.

Alternative Liability In Litigation Malpractice Actions: Eradicating The Last Resort Of Scoundrels, Lawrence W. Kessler

San Diego Law Review

The legal malpractice tort, however, has managed to withstand the winds of legal change. Particularly crucial has been the refusal to apply alternative causation doctrines. The refusal to apply causation doctrines that have been embraced in other areas has significant social effects. As a result, the consumers of legal services receive less protection from the courts than do the consumers of products or medical services.

When Warnings Alone Won’T Do: A Reply To Professor Phillips, Richard C. Ausness

Law Faculty Scholarly Articles

In his paper, Professor Phillips contends that questions about the adequacy of a product's design should be resolved by the use of a risk-utility test and that the existence of an adequate warning should merely be one factor for the jury to take into account. This is essentially the position espoused by the Restatement (Third) of Torts: Products Liability (hereinafter Third Restatement), section 2, comment l. On the other hand, Professor PhiIlips is very critical of subsections 6(c) and 6(d). These provisions establish liability for the sellers of prescription drugs and medical devices. Section 6(c), which is concerned …

Hindsight Bias And Tort Liability: Avoiding Premature Conclusions, Philip G. Peters Jr.

Faculty Publications

Cognitive psychologists know that judgments made in hindsight are distorted by two cognitive heuristics-hindsight bias and outcome bias. Hindsight bias makes bad outcomes seem more predictable in hindsight than they were ex ante. Outcome bias induces us to assume that people who cause accidents have been careless. Because of these biases, individuals who know that a bad outcome has occurred tend to evaluate prior conduct more harshly than they would if they were unaware of the actual outcome. In negligence actions, defendants are supposed to be judged by the reasonableness of their conduct, not by its outcome. Jurors are asked …

An Unconstitutional Deprivation Of Access To The Courts: An Analysis Of Section 19 Of Chapter 99-225, Florida Statutes, Edward S. Schwartz

St. Thomas Law Review

I will begin by summarizing the salient features of the current Florida common law of premises liability and the changes Section 19 effects in that law. Since the access to courts analysis depends, in part, on determining whether the Legislature has impaired rights of action existing in 1968, I will also analyze the pre-1968 premises liability law of Florida.

The Tort Liability Regime And The Duty To Defend , Ellen S. Pryor

Maryland Law Review

No abstract provided.

The First Constitutional Tort: The Remedial Revolution In Nineteenth-Century State Just Compensation Law, Robert Brauneis

Vanderbilt Law Review

This Article traces the change in the remedial framework of nineteenth-century owner-initiated state constitutional just compensation litigation, and explores the relationship between that change and substantive changes in just compensation doctrine. Through the Civil War, owners complaining of government-sanctioned seizure of their property brought common-law tort actions against whomever might be held liable under ordinary tort and agency law. Defendants in those suits claimed that some piece of legislation altered tort law to shield them from liability for their acts. Plaintiff owners responded that the legislation on which defendants relied was void, because it purported to authorize acts that amounted …

From A Whimper To A Bang: The Trend Toward Finding Occurrence Based Statutes Of Limitations Governing Negligent Misdiagnosis Of Diseases With Long Latency Periods Unconstitutional, Peter Zablotsky

Scholarly Works

No abstract provided.