Torts Commons^™

Out Of The Black Hole: Toward A Fresh Approach To Tort Causation, Allan C. Hutchinson

Dalhousie Law Journal

The present state of Canadian doctrine on causation in tort law is in serious disarray Judges and jurists persist in thinking that it is a factual inquiry separate from policy concerns. This is made obvious in the recent Supreme Court decision in Clements and in the academic commentary around it. In contrast, I insist that the requirement of causation must be understood as being entirely part of the broader debate on the goals and policies of tort law generally Causation is a topic drenched with normative values and should be treated as such.

Finding Common Law Duty Of Care From Statutory Duties: All Within The Anns Framework, Gary Kok Yew Chan

Research Collection Yong Pung How School Of Law

This paper examines the relationship between statutory duties and the common law duty of care in the tort of negligence. There are apparently divergent judicial statements on the general approach towards duty of care to be owed by persons under a statutory duty. One central question arises: should the courts treat the common law duty of care as subsisting generally unless it is excluded by the statute or must the plaintiff show that the Parliament intended to confer a private right of action or impose a common law duty? This paper argues that the two approaches may be properly accommodated …

Limiting The Legal Liability Of Religious Institutions For Their Clergy: Cavanaugh V Grenville Christian College, M H. Ogilvie

Dalhousie Law Journal

The purpose of this article is to explore the case law relating to the potential legal liability of ecclesiastical institutions for the conduct of their clergy and lay employees in the tort of negligence, vicarious liability and breach of fiduciary duty While a number of cases have resulted in findings of liability especially in those relating to the Indian residential schools, a recent decision from the Ontario Court of Appeal, Cavanaugh v. Grenville Christian College, suggests ways of thinking about the limits and scope of liability for institutions whose charitable purposes are occasionally betrayed by rogue persons over whom theymay …

An Intentional Tort Theory Of Patents, Saurabh Vishnubhakat

Faculty Scholarship

This Article challenges the dogma of U.S. patent law that direct infringement is a strict liability tort. Impermissibly practicing a patented invention does create liability even if the infringer did not intend to infringe or know about the patent. The consensus is that this is a form of strict liability. The flaw in the consensus is that it proves too little, for the same is true of intentional torts: intent to commit the tort is unnecessary, and ignorance of the legal right is no excuse. What is relevant is intent to perform the action that the law deems tortious. So …

Online Defamation, Legal Concepts, And The Good Samaritan, Benjamin C. Zipursky

Valparaiso University Law Review

No abstract provided.

The Diffusion Of Doctrinal Innovations In Tort Law, Kyle Graham

Marquette Law Review

This Article examines the spread of “successful” common-law doctrinal innovations in the law of torts. Its analysis reveals recurring influences upon and tendencies within the diffusion of novel tort doctrines across the states. The studied diffusion patterns also document a trend toward common-law doctrinal “stabilization” over the past quarter-century. As detailed herein, this stabilization owes in part to altered adoption dynamics associated with the ongoing shrinkage and fragmentation of the common-law tort dockets entertained by state supreme courts. Prevailing conditions will make it difficult, this Article concludes, for even well-received common-law doctrinal innovations of the future to match the rapid …

Enduring Doctrine: The Collateral Source Rule In Wisconsin Injury Law, Joseph P. Poehlmann

Marquette Law Review

When the common law collateral source rule first arose in the area of tort law over one hundred years ago, only a minority of individuals maintained health insurance coverage to protect against loss in the event that a negligent actor injured them. Today, however, the vast majority of Americans are covered. Because of this change in the landscape of insurance coverage, many jurisdictions have abrogated or greatly eroded the collateral source rule under the belief that the rule no longer holds a justified role in personal injury litigation. Wisconsin, however, continues to follow the common law form of the rule …

"A Distinction Without A Difference"?: Bartlett Going Forward, Steven A. Schwartz

Fordham Law Review

    This Note addresses the question of whether federal law preempts state design defect claims against generic drug manufacturers regardless of which test state law uses to determine whether a drug is defective. This issue, arising out of the U.S. Supreme Court's interpretation of preemption jurisprudence and fundamental tort law as stated in Mutual Pharmaceutical Co. v. Bartlett, is significant because it plays a large role in determining to what extent generic drug manufacturers are immune to civil liability arising out of injuries caused by their generic drugs. In an age of rising medical costs and jury awards, both plaintiff …

Order In The Courts Revisited: Progress And Prospects Of Controlling Delay In The Tort Jury Litigation Process, 1966-1973, James G. France

Akron Law Review

Early in 1969, under a grant from the Knight Foundation, measurement of delay in litigation in six northeastern Ohio counties was undertaken by a study group from University of Akron School of Law. A year later the group reported its findings as to delay in the civil jury, criminal and appellate fields in a 200-page report: Order In The Courts.

The study could show only how long it took each of the six different common pleas courts, with widely varying population loads, with differing internal organization, age and experience of judges and amount of staff support, to dispose of groups …

Presumptions And Modal Logic: A Hohfeldian Approach, John P. Finan

Akron Law Review

The difficulty of distinguishing between an inference and a presumption, a difficulty that bedevils tort and evidence teachers, (see Appendix I) among others, may be dispelled by a study of the deontic nature of permissible inferences and presumptions. Using scholastic terminology, an inference is a function of the intellect, not the will. Therefore, deontic notions of permission and duty seem foreign to inference. However, deontic notions are legitimate, because the law, in assigning a fact finding function to judge and jury, uses deontic notions in assigning fact finding competence. Thus, the statement that an inference is not permissible means that …

Welsh V. United States, The Sixth Circuit Gives A Physics Lesson - For Every Action There Is An Equal And Opposite Reaction, Daniel L. Bell

Akron Law Review

This casenote will review the facts of Welsh v. United States and present the current judicial approaches to spoliation of evidence in civil litigation. Second, the note will analyze the Welsh court's proposed solution to the spoliation problem. Finally, the note will discuss the use of the Welsh approach in litigation and management implications for health care facilities.

Can't Settle, Can't Sue: How Congress Stole Tort Remedies From Medicare Beneficiaries, Rick Swedloff

Akron Law Review

In this article, I show that, as amended, the MSP will likely have unforeseen consequences to the tort system. I start by reviewing the history of Medicare and the forces that led Congress to enact and amend the MSP. With illustration from the classic economic model of litigation, I then show that, not surprisingly, the MSP – as written – makes it more difficult for Medicare beneficiaries to bring and settle individual tort claims. What may be less obvious is that this amendment may have a profound impact in the area of mass tort litigation. If individual parties to a …

No Harm, No Foul? "Attempted" Invasion Of Privacy And The Tort Of Intrusion Upon Seclusion, Eli A. Meltz

Fordham Law Review

    The tort of intrusion upon seclusion protects individuals from unwanted invasions into their personal space and personal affairs. While courts differ as to the precise definition and scope of this tort, at the most basic level, a claim for intrusion upon seclusion alleges that the defendant has unreasonably interfered with the plaintiff’s legitimate interest in maintaining some degree of privacy in his or her personal affairs. This Note analyzes an interesting issue that has emerged concerning the application of this tort: Should a defendant be held liable when he or she has attempted to observe the plaintiff in a private …

Summary Of Karen Brown V. Eddie World, Inc.; And Stagecoach Hotel And Casino, Inc., 131 Nev. Adv. Op. 19 (April 16, 2015), Daven Cameron

Nevada Supreme Court Summaries

While acknowledging the enforcement gaming laws as a fundamental public policy in Nevada, the Court declined to recognize a common law cause of action for third-party retaliatory discharge.

Tort, Speech, And The Dubious Alchemy Of State Action, Cristina Carmody Tilley

Faculty Publications

Plaintiffs have historically used private law torts like defamation, privacy, and intentional infliction of emotional distress to vindicate their dignitary interests. But fifty years ago in New York Times v. Sullivan, the Supreme Court took an unprecedented approach to state action doctrine in order to recast these causes of action as public-private law hybrids that explicitly privileged speech over dignity. In constitutional challenges to private law disputes, the Court had for decades defined the state action under review to include just the contested verdict at issue. In Sullivan, it broke with that practice and defined the relevant state action to …

The Future Of Emotional Harm, Betsy J. Grey

Fordham Law Review

    Why should tort law treat claims for emotional harm as a second-class citizen? Judicial skepticism about these claims is long entrenched, justified by an amalgam of perceived problems ranging from proof difficulties for causation and the need to constrain fraudulent claims, to the ubiquity of the injury, and a concern about open-ended liability. To address this jumble of justifications, the law has developed a series of duty limitations to curb the claims and preclude them from reaching the jury for individualized analysis. The limited duty approach to emotional harm is maintained by the latest iteration of the Restatement (Third) of …

Retaliation And The Reasonable Person, Sandra F. Sperino

Faculty Articles and Other Publications

When a worker complains about discrimination, federal law is supposed to protect that worker from later retaliation. Recent scholarly attention focuses on how courts limit retaliation claims by narrowly framing the causation inquiry. A larger threat to retaliation law is developing in the lower courts. Courts are declaring a wide swath of conduct as insufficiently serious to constitute retaliation.

Many courts hold that it is legal for an employer to threaten to fire a worker, to place the worker on administrative leave, or to negatively evaluate the worker because she complained about discriminatory conduct. Even if the worker has evidence …

Remodeling Federal Medical Malpractice Act: A Possible Improvement To The Affordable Care Act, Nancy Kubasek, Tiffany Durham

Loyola of Los Angeles Law Review

During the debates about healthcare reform, the Congressional Budget Office found that federal medical liability reform could drastically reduce federal budget deficits, yet political and legal scholars could not reach agreement about the best way for the Patient Protection and Affordable Care Act (PPACA) to provide such reform. Instead, provisions were made to fund state level demonstration projects. The law that is considered one of the most successful models to date of conventional tort reform is the Medical Injury Compensation Reform Act of California. This Article exams that legislation and discusses how we might use what can be learned from …

Thin-Skull Plaintiffs, Socio-Cultural "Abnormalities" And The Dangers Of An Objective Test For Hypersensitivity, Eugene C. Lim

Dalhousie Law Journal

The extent to which "hypersensitivity" can serve as a legal basis for demanding additional compensation has always been a controversial issue in tort law. A key challenge facing courts lies in determining how the "thin-skull rule," traditionally related to physical conditions that predispose an individual to additional injury, can be applied to claims from "hypersensitive" plaintiffs citing personality-linked vulnerabilities of a religious, socio-cultural, or psychiatric nature. This article critically evaluates the viability of the "ordinary-fortitude test" adopted by the Supreme Court of Canada in Mustapha v. Culligan, and discusses the relative merits of a "multi-factorial test" in determining the admissibility …

How Reforming The Tort Of Negligent Hiring Can Enhance The Economic Activity Of A State, Be Good For Business And Protect The Victims Of Certain Crimes, Shawn D. Vance

Legislation and Policy Brief

This article will focus on reforming the tort of negligent hiring to limit the liability of employers while also ensuring the compensation of certain victims when the employer fails to meet the requirements of the reformed tort. While the tort is currently recognized by most states, the states that have recognized the tort have different standards for liability and little clarity is provided to employers on how to avoid liability. By creating certainty in the marketplace through a reformed negligent hiring tort, states can encourage business activity from civic-minded businesses while holding businesses, which fail to exhibit good civic behavior, …

Changing Tides: The Introduction Of Punitive Damages Into The French Legal System, Matthew K.J. Parker

Georgia Journal of International & Comparative Law

No abstract provided.

The Role Of Litigation In The Fight Against Prescription Drug Abuse, Richard C. Ausness

Law Faculty Scholarly Articles

Prescription drug abuse problems have prompted a number of responses by both drug users (and abusers) and by various federal and state government agencies.

Part I of this Article examines the impressive array of liability theories that individual litigants have relied upon in their lawsuits against Purdue. These theories include: negligence; strict products liability, including design defect and inadequate warning claims; breach of the implied warranty of merchantability; violation of state consumer protection statutes; negligent marketing; fraudulent misrepresentation; civil conspiracy; and "malicious conduct." Purdue, the company that developed OxyContin, has pursued an aggressive "no settlement" policy and has chosen to …

Food For Thought: Genetically Modified Seeds As De Facto Standard Essential Patents, Benjamin M. Cole, Brent J. Horton, Ryan G. Vacca

Law Faculty Scholarship

For several years, courts have been improperly calculating damages in cases involving the unlicensed use of genetically-modified (GM) seed technology. In particular, when courts determine patent damages based on the hypothetical negotiation method, they err in exaggerating these damages to a point where no rational negotiator would agree. In response, we propose a limited affirmative defense of an implied license due to the patent’s status as a de facto standard essential patent. To be classified as a de facto standard essential patent, the farmer must prove three elements that reflect the peculiarities of GM seeds used in farming: (1) dominance, …

Torts And Civil Rights Law: Migration And Conflict: Symposium Introduction, Sandra F. Sperino

Faculty Articles and Other Publications

Curiously, the connection between civil rights and civil wrongs has not been a topic that has captivated the attention of large numbers of legal scholars over the years. The distance that has developed between the two fields likely reflects their placement on opposite sides of the public-private divide, with Title VII and other anti-discrimination statutes forming part of public law, while torts is a classic, private law subject. To compound the division, both subjects are to some extent still under-theorized. Employment discrimination scholarship is often caught up in the process of analyzing the doctrinal implications of the latest Supreme Court …

Let's Pretend Discrimination Is A Tort, Sandra F. Sperino

Faculty Articles and Other Publications

In the past decade, the Supreme Court has repeatedly invoked tort common law to interpret federal discrimination statutes. During this same time period, the Supreme Court increasingly invoked textualism as the appropriate methodology for interpreting these statutes. One immediate effect of these two trends - tortification and textualism - is to restrict discrimination law by tightening causal standards.

This Article explores how interpreting discrimination statutes through the lenses of tort law and textualism can expand, rather than restrict, discrimination law. It assumes that courts will continue to characterize discrimination statutes as torts and as deriving from the common law, despite …

The Tort Label, Sandra F. Sperino

Faculty Articles and Other Publications

Courts and commentators often label federal discrimination statutes as torts. Since the late 1980s, the courts increasingly applied tort concepts to these statutes. This Article discusses how courts placed employment discrimination law within the organizational umbrella of tort law without examining whether the two areas share enough theoretical and doctrinal affinities.

While discrimination statutes are torts in some general sense that they do not arise out of criminal law and are not solely contractual, it is far from clear that these statutes are enough like traditional torts to justify the reflexive and automatic use of tort law. Employment discrimination statutes …

Preemption Without Borders: The Modern Conflation Of Tort And Contract Liabilities, Max N. Helveston

Georgia Law Review

Medical device jurisprudence has taken a turn for the worse recently, turning a deaf ear to patients who have been injured or killed by devices and covertly expanding the boundaries of federal preemption in ways that threaten fundamental contractual principles. Ever since the Court's holding in Riegel v. Medtronic, district and appellate courts have effectively immunized the manufacturers of certain devices from contract, as well as tort, liabilities. The lower courts' rulings are not only

problematic as a matter of law, but raise novel concerns about federal regulatory preemption undermining individuals' contract rights. A comprehensive analysis of the Court's medical …

Third Party Funding Of Personal Injury Tort Claims: Keep The Baby And Change The Bathwater, Terrence Cain

Law Faculty Scholarship

In the early 1990s, a period of high-risk lending at high interest rates, a new entrant emerged in civil litigation: the Litigation Finance Company (“LFC”). LFCs advance money to plaintiffs involved in contingency fee litigation. The money is provided on a non-recourse basis, meaning the plaintiff repays the LFC only if she obtains money from the lawsuit through a settlement, judgment, or verdict. If the plaintiff does not recover anything, she will not owe the LFC anything. When she does repay the LFC, however, she could end up paying as much as 280% of the amount advanced by the LFC. …

"The Disorderly Conduct Of Words": Civil Liability For Injuries Caused By The Dissemination Of False Or Inaccurate Information, Richard C. Ausness

Law Faculty Scholarly Articles

This Article is concerned with the potential liability of those who disseminate false or inaccurate information that causes physical injury or property damage to those who rely upon it. However, this Article will not address the question of whether those who advocate or depict violence or other antisocial activities should also be subject to liability. For the most part, such publications are considered to be a form of constitutionally protected speech, even when they directly cause physical harm to others. Although the issue of liability for the publication of factually inaccurate information is narrower in scope than liability for the …

Duty In The Litigation-Investment Agreement: The Choice Between Tort And Contract Norms When The Deal Breaks Down, Anthony J. Sebok, W. Bradley Wendel

Vanderbilt Law Review

This Article begins by describing the market for investment in commercial litigationA Litigation-investment transactions share features of existing economic relationships, such as commercial lending, liability insurance, contingent fee-financed representation, and venture capital, but none of these existing practices furnishes a suitable analogy for regulating litigation investment. Like third-party insurance, litigation investment is a way to manage the risk associated with litigation while bringing to bear the particular subject matter expertise of a risk-neutral institutional actor. Insurance companies and litigation investors may be systematically in a better position to reduce the risk of litigation, either through risk pooling or information-cost advantages. …