Torts Commons^™

Once Is Enough: A Proposed Bar Of The Injured Employee's Cause Of Action Against A Third Party, Philip D. Oliver

Law Faculty Scholarship

No abstract provided.

Accountable Accountants: Is Third-Party Liability Necessary?, Victor P. Goldberg

Faculty Scholarship

Should accountants be liable to third parties if they conduct an audit in negligent manner? A half century ago, in Ultramares Corporation v. Touche, Niven & Co., Cardozo argued that they should not, unless their performance could be characterized as fraud. In recent years, courts in a minority of jurisdictions have concluded that Cardozo's argument is no longer compelling and they have found that "foreseeable" third parties could bring a tort action for ordinary negligence against the accountants. In addition to being subject to tort actions, accountants may also be liable under federal and state securities laws.

Suits against …

Cigarette Company Liability: Preemption, Public Policy And Alternative Compensation Systems, Richard C. Ausness

Law Faculty Scholarly Articles

This Article speculates that some courts may have used the preemption doctrine to mask their misgivings about the ability of tort litigation to provide fair compensation to injured consumers without bankrupting the tobacco industry. Consequently, the author suggests that it may be necessary to streamline the litigation process for mass torts or perhaps even to replace it with an alternative compensation system for the purpose of adjudicating smoking-related claims.

With this in mind, Part I briefly examines the health risks of smoking and the nature of the common law duty to warn. It also reviews a number of recent cigarette …

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 …

U.C.C. Survey: General Provisions, Bulk Transfers, And Documents Of Title, David Frisch

Law Faculty Publications

The 1986 Annual Survey described the "check it back to local law" approach to the Code's choice of law rules. Recent cases emphasize this. For example, in Madaus v. November Hill Farm, lnc., the U.S. District Court for the Western District of Virginia applied the Virginia pre-Code conflict of laws rules to a dispute between a West German seller of a horse and a Virginia buyer. The court applied the Virginia rule that the law applicable to the validity of a contract is the law of the jurisdiction where the final act necessary to make the contract binding was done. …

Strict Liability For Chattel Leasing, Richard C. Ausness

Law Faculty Scholarly Articles

Leasing has become an increasingly popular substitute for outright purchases as a means of acquiring products for use. Few courts and commentators, however, have addressed the question of whether the principles of strict products liability which apply to sellers also apply to lessors. In this Article, Professor Ausness reviews the historical basis for imposing strict liability in tort on sellers and applies these rationales to five basic kinds of lease transactions. He concludes that strict liability should not apply when a product defect arises after the leased product is placed in the hands of the lessee (as contrasted with the …

Draft Of The Constitutionalization Of Intentional Torts - 1986, Wendy J. Gordon

Scholarship Chronologically

The Supreme Court has often faced the question of whether an individual who alleges that he has been injured by a state or local official or by a local governmental entity, can bring a constitutional tort action under section 1983 when state doctrines of sovereign or official immunity would make it impossible for the individual to prosecute an ordinary tort suit in the relevant state court. The Court has consistently held that when an official violates a substantive provision of the Constitution, only an immunity that is consistent with the purpose of section 1983 and the Consitution can be tolerated.

No Pain—No Gain—Should Personal Injury Damages Keep Their Tax Exempt Status, Douglas K. Chapman

University of Arkansas at Little Rock Law Review

No abstract provided.

Apportionment In Kentucky After Comparative Negligence, John M. Rogers

Law Faculty Scholarly Articles

Adoption of comparative negligence gives juries the task of allocating fault between a plaintiff and a defendant when both were negligent and both caused the plaintiff's injury. A logical corollary must be that juries are theoretically and practically able to make such an allocation. If so, it follows that juries are able to make such an allocation among multiple defendants, each of whom was found to be both negligent and a cause of the plaintiff's injury. The judicial adoption of comparative negligence in Kentucky therefore requires a reexamination of the rules applicable to multiple tortfeasors. Cases decided since the adoption …

Substantive Policies And Choice Of Law, Willis L. M. Reese

Touro Law Review

No abstract provided.

Landlord And Tenant—Landlord Has Duty To Employ Reasonable Security Measures To Avoid Foreseeable Criminal Attacks On Tenants, Mildred Havard Hansen

University of Arkansas at Little Rock Law Review

No abstract provided.

The Design Defect Test In Washington: The Requisite Balance, Joshua J. Preece

Seattle University Law Review

This Comment examines Washington's application of the design defect consumer expectations test. Washington courts have been inconsistent during the recent transition in products liability law. A case in point is Conner v. Skagit Corp.," in which the plaintiff was allowed to proceed with a design defect cause of action while offering proof of only one factor from the consumer expectations test. Accordingly, this Comment suggests that design defect plaintiffs must offer proof of multiple factors that relate to the issue of defectiveness and reasonableness. This proposal will be discussed in light of regional and national products liability theory and …

Public Policy Over Metaphysics: Wrongful Birth And Wrongful Life In Harbeson V. Parke-Davis, Inc., Eric B. Schmidt

Seattle University Law Review

The recognition of the wrongful birth and wrongful life causes of action by the Washington State Supreme Court is supported by both policy rationales and legal theories. Wrongful birth and wrongful life causes of action receive support from traditional tort principles and, more important, further public policy by deterring negligent genetic counseling and negligent preconception medical treatment. This Note describes the legal history of these claims and analyzes several issues not addressed by the Washington court. In addition, this Note criticizes a more recent decision by the court, which limits wrongful conception causes of action, because that decision conflicts with …

Herskovits V. Group Health Cooperative: Negligent Creation Of A Substantial Risk Of Injury Is A Compensable Harm, Warner Miller

Seattle University Law Review

This Note commends the Herskovits court for recognizing the loss of-a-chance claim as a legitimate cause of action. Chance interests are worthy of the protection of tort law. We can be statistically certain that the destruction of chance interests in survival results in actual losses. The burden of such losses should not fall exclusively on the victim, particularly when the interfering conduct of the wrongdoer has deprived the individual victim of the ability to know and prove with certainty the value of the lost chance. The burden of the loss can be shifted in an equitable manner to the negligent …

Retribution And Deterrence: The Role Of Punitive Damages In Products Liability Litigation, Richard C. Ausness

Law Faculty Scholarly Articles

Punitive damages constitute an award to an injured party above what is necessary to compensate for actual loss. This Article considers whether punitive damages are an effective means of promoting the goals of products liability law. Section I traces the use of punitive damages in products liability litigation from the early 1960's to the present time. Section II examines the traditional rationales for punitive damages and considers whether they are appropriate in the products liability context. Finally, Section III evaluates some of the measures that commentators have proposed to adapt more fully the concept of punitive damages to products liability …

Torts—Tort Of Bad Faith In First Party Actions Recognized, Chet Roberts

University of Arkansas at Little Rock Law Review

No abstract provided.

Wrongful Death Of The Fetus: Viability Is Not A Viable Distinction, Sheryl Anne Symonds

Seattle University Law Review

This Comment reviews the history of tort law treatment of the fetus who is wrongfully injured or killed. The Comment discusses case history and wrongful death statutes, with a focus on Washington law. Finally, the Comment concludes that courts should ignore viability when deciding cases of fetal wrongful death.

A Comparative Negligence Checklist To Avoid Future Unnecessary Litigation, John M. Rogers, Randy Donald Shaw

Law Faculty Scholarly Articles

Systems of comparative negligence, whereby the negligence of a plaintiff serves to reduce rather than to preclude tort recovery in negligence, have been adopted in thirty-nine states. The common law rule that contributory negligence is an absolute bar to recovery is still the law in Kentucky, although modified by the doctrine of "last clear chance." Kentucky may soon join the trend toward comparative negligence, however. In the last legislative session, bills to adopt comparative negligence were introduced in both the House of Representatives and the Senate. A hearing on this subject was held by the Interim Judiciary and Civil Procedure …

Kentucky Tort Law: Defamation And The Right Of Privacy, Richard C. Ausness

Law Faculty Scholarly Articles

This book review examines Kentucky Tort Law: Defamation and the Right of Privacy by David A. Elder, which was published in 1983.

The Manville Bankruptcy: Treating Mass Tort Claims In Chapter 11 Proceedings, Robert L. Jones Jr.

Journal Articles

The reorganization petition filed by the Manville Corporation, the nation’s largest asbestos manufacturer in 1982 is an attempt by a healthy and solvent corporation to declare bankruptcy. It differs greatly from a traditional reorganization case, which involves a debtor that knows who its creditors are and how much it owes them. Manville does not know who the majority of its creditors are or the amount of its potential tort liability. It is instead using the 1978 Bankruptcy Reform Act's Chapter 11 reorganization provisions to seek shelter from a huge but speculative tort liability. In doing so Manville presents a major …

Admiralty Tort Jurisdiction—Traditional Maritime Activity Explained: Commercial Use Of Vessel Unnecessary To Invoke Jurisdiction, La Quita Kenner Saunders

University of Arkansas at Little Rock Law Review

No abstract provided.

Deelche V. Jacobsen: Recovering From Community Property For A Separate Tort Judgment, Joseph R. Mcfaul

Seattle University Law Review

This note critically analyzes deElche against the historical background of community property statutes and evaluates its effect on previous case law that subverted community property principles, resulting in injustice to either the victim or the tortfeasor’s spouse. While deElche does not explicitly overrule these cases, it casts doubt on their current vitality. This note also responds to the dissent’s criticisms, and discusses the scope of the deElche decision.

Tort Law: Expanding The Scope Of Recovery Without Loss Of Jury Control, David A. Fischer

Faculty Publications

This article will analyze the types of changes that are taking place by examining three expanding areas of tort law: liability for negligently inflicted mental distress, negligently inflicted pure pecuniary loss, and harm caused by defective products. This examination will demonstrate that the scope of liability can be increased in at least two ways. One is by formally expanding the scope of existing causes of action, e.g., relaxing arbitrary barriers to liability or expanding the type of damages which may be recovered. A second method is by relaxing judicial control over the jury. This relaxation of control can take place …

New York City's Pothole Law: In Need Of Repair, Terri J. Frank

Fordham Urban Law Journal

In 1979, New York City enacted a local law requiring prior written notice of a defect before the city may be found liable for injuries resulting from potholes. But a prior written notice statute interferes with the traditional negligence doctrine of constructive notice. This Note examines traditional common law negligence as it relates to municipal liability. The procedural requirements and legislative history of the Pothole Law are analyzed. In addition, the legal and policy considerations surrounding its enactment are discussed. This Note recommends an alternative solution to the statute which takes into account both the procedural inequities of the law …

The Discretionary Function Exception And The Suits In Admiralty Act: A Safe Harbor For Negligence?, Kathryn C. Nielsen

Seattle University Law Review

This comment will focus on the different circuits' responses to the issue of whether the SIA should be read in light of the discretionary function exception.

Misrepresentation - Part Ii, Fleming James Jr., Oscar S. Gray

Maryland Law Review

No abstract provided.

Misrepresentation - Part I, Fleming James Jr., Oscar S. Gray

Maryland Law Review

No abstract provided.

Kentucky Law Survey: Torts, Richard C. Ausness

Law Faculty Scholarly Articles

This issue of the Survey of Kentucky tort law includes recent decisions on false imprisonment, intentional infliction of emotional distress, and products liability. The first case, Consolidated Sales Co. v. Malone, held that Kentucky's shoplifter detention statute authorized a personal search of suspected shoplifters by store personnel. In the second case, Eigelbach v. Watts, the Kentucky Supreme Court adhered to its longstanding rule that physical impact was essential to an action for intentional infliction of emotional distress. Finally, in the third decision, McMichael v. American Red Cross, the Court, utilizing the Restatement's “unavoidably unsafe” rationale, refused to impose …

The State As A Party Defendant: Abrogation Of Sovereign Immunity In Tort In Maryland

Maryland Law Review

No abstract provided.

Property And Tort In Nuclear Law Today, Kazimierz Grzybowski, William Dobishinski

Vanderbilt Journal of Transnational Law

Legal regimes regulating the exploitation of atomic energy follow three patterns. The pattern adopted in a particular country depends upon its social and governmental structure. In socialist states, like the Soviet Union, the state owns and uses nuclear materials and installations and is a monopolistic insurer against atomic hazards. In such states nuclear energy law is simplicity itself. It consists of instructions and regulations on the handling, transport and storage of nuclear materials, and the management of nuclear installations by administrative agencies. An important part of the regulations deals with the safety and health of the workers.

Countries in which …