Torts Commons^™

Joy V. Eastern Maine Medical Center: Extension Of A Physician's Duty To Third Parties, Timothy H. Norton

Maine Law Review

In Joy v. Eastern Maine Medical Center, the Maine Supreme Judicial Court, sitting as the Law Court, held that a claimant may sue a physician to recover damages for injuries that were caused by a negligently treated patient. The Law Court focused its analysis on the concept of duty and reasoned that a physician's duty to his patient extends to third parties whose injuries are a foreseeable result of negligent treatment. The Joy case sets forth a broad rule that provides a new and untested means of recovery against physicians and hospitals. This Note examines the new rule against the …

Maine Recognizes The Independent Tort Of Negligent Infliction Of Emotional Distress: Gammon V. Osteopathic Hospital, Jaye E. Rooney

Maine Law Review

Gerald Gammon opened his deceased father's hospital bag, expecting to find his personal effects. Instead, he discovered a bloodied leg, severed below the knee and bluish in color. Recoiling in horror, he yelled, "Oh my God, they have taken my father's leg off.” His aunt later recalled at trial that "he was as white as a ghost" and she thought he was going to have a heart attack. Gerald received a call on November 7, 1982, from the Osteopathic Hospital of Maine informing him that his father, Linwood Gammon, had succumbed to cancer that morning. A funeral home employee picked …

Maine Refuses To Recognize A Cause Of Action For Loss Of Parental Consortium: Durepo V. Fishman, Nancy Wanderer Mackenzie

Maine Law Review

In Durepo v. Fishman, two minor children filed suit to recover for the loss of parental consortium resulting from injuries allegedly suffered by their mother when she was negligently treated by a physician. The defendant moved to dismiss the claim for failure to state a claim upon which relief can be granted. The trial court granted the motion, and the plaintiffs appealed to the Supreme Judicial Court of Maine, sitting as the Law Court. The case invited the Law Court to declare for the first time in Maine whether a minor child should possess an independent right of action for …

Milton V. Cary Medical Center: A Viable Fetus Is Not A Person Under Maine's Wrongful Death Statute, Stan Piecuch

Maine Law Review

In Milton v. Cary Medical Center, a sharply divided Maine Supreme Judicial Court, sitting as the Law Court, refused to recognize a right of action for the wrongful death of a viable fetus. The court held that a viable fetus is not a person for purposes of applying Maine's wrongful death statute and that, consequently, the mother of a stillborn child could not maintain an action for the child's death. The court determined that the legislative history of the statute indicated that the Legislature did not intend the remedy to apply in the case of a child not born alive. …

Construing "Consideration" In Maine's Recreational Use Statute: Robbins V. Great Northern Paper Co., Russell B. Pierce Jr.

Maine Law Review

Since 1961, when the Legislature enacted the original version of Maine's "recreational use statute," the Maine Supreme Judicial Court has had little opportunity to construe the statute's several components. The recent case of Robbins v. Great Northern Paper Co., however, allowed the court to interpret the "consideration" exception of the statute for the first time. In a 4-3 decision, the Maine Supreme Judicial Court, sitting as the Law Court, ruled that a $95.00 annual rental fee for noncommercial, recreational use of a lot on the defendant's property did not constitute "consideration" so as to fall within the exception to landowner …

Constitutional Challenges To Caps On Tort Damages: Is Tort Reform The Dragon Slayer Or Is It The Dragon?, Kathryn L. Vezina

Maine Law Review

Liability insurance consumers are convinced the dragon is only sleeping. Because insurance has become a near necessity for businesses, professionals, and municipalities, it is no surprise that fears of the return of insurance unavailability and prohibitive cost cause the boldest policyholders to break out in a cold sweat. In many states, this fear has prompted legislative changes in the civil justice system—tort reform, as a sure-fire way to kill the insurance-crisis dragon. One such tort reform is a statutory limitation on tort damages. In Maine, a legislative proposal capping noneconomic tort damages in medical negligence cases at $250,000 has received …

Crypto & The Climate: Will Local & National Environmental Regulation Save Or Stifle The Cryptocurrency Boom?

Fordham Environmental Law Review

As cryptocurrencies continue to gain traction among mainstream investors and consumers, regulators and lobbyists are increasingly taking note of the potential environmental impacts of the industry. At its core, the process of mining new currency for virtual wallets is energy intensive, which can place strains on electrical grids and accelerate the impacts of climate change. However, these effects are felt very differently depending on what source of electricity the mining operation utilizes and the methodology behind the specific currency. These variable factors are on the minds of legislators and regulators as public pressure to better understand and regulate the industry …

A Shifting Focus: How Algal Turf Scrubbers (Ats) In Natural Waterways Can Prevent Toxic Blooms And Could Save The Algae Energy Industry

Fordham Environmental Law Review

Biofuels have generated global interest among oil companies and governments. In particular, algal biofuels are slated to be more promising than traditional biofuel feedstocks, like corn and sugarcane, which are simultaneously cultivated as food products. However, the drawbacks of harvesting algae on a large industrial scale has led to intense criticism. Most critics focus on issues of sustainability, scalability of production, and the legal and ethical concerns of genetically modified crops. New research in cyanobacteria, however, illustrates algae’s potential to produce clean electricity in addition to oil, ethanol, and gasoline. Moreover, using Algal Turf Scrubbers (“ATS”) in natural waterways offers …

Why We Need A Constitutional Right To Healthy Environment In Canada

Fordham Environmental Law Review

The increasing demand for constitutional recognition of the right to a healthy environment (‘RTHE’) has been a matter of public concern and debate in many countries, including Canada.2 This paper asks, will a constitutional RTHE within the Canadian Constitution add any value when statutes already exist to protect the environment (and thereby health)? The present environmental statutes work towards protecting the environment, and by protecting the environment, public health can be protected.3 Together, both of them form a ‘healthy environment’, ie., an environment that fosters a healthy life.4 This paper will argue that there is additional value in recognizing a …

In Pursuit Of The Appropriate Standard Of Liability For Defective Product Designs, Christina M. Moylan

Maine Law Review

Since the advent of strict products liability with the holding in Greenman v. Yuba Products Co. in 1963 and the promulgation of section 402A of the Restatement [Second] of Torts ("Restatement") in 1965, courts have struggled to strike an appropriate balance between competing social policies with respect to liability for defective products. On the one hand, those injured by defective products should not be burdened by the contractual intricacies of the law of sales or the onerous (virtually insurmountable in products cases) evidentiary obstacles of negligence. On the other hand, most courts agree that manufacturers and distributors should not be …

The Obvious Violation Exception To Qualified Immunity: An Empirical Study, Bailey D. Barnes

Faculty Publications

Qualified immunity shields government officials from civil suits for discretionary actions, as long as the violated right is not clearly established. A right is deemed established when every reasonable official would understand it based on precedent, placing it beyond debate, such that only the plainly incompetent may be held liable. Consequently, even when an act infringes on one's civil rights, a court may deny relief owing to a lack of factually comparable precedent. However, in 2020, the Supreme Court indicated its distrust for overreliance on precedent in certain contexts. In Taylor v. Riojas, the Court held that prison officials violated …

Juries And Tax: The Effect Of Income Taxation On Tort Damages, Jeffrey H. Kahn, John E. Lopatka

South Carolina Law Review

No abstract provided.

Transportation Racism And State-Created Danger: A Civil Rights Litigation Strategy For Pedestrians Harmed By Traffic Violence, Riley Freedman

Washington Law Review

Pedestrian fatality rates in the United States are markedly high compared to peer nations and are on the rise. The distribution of these deaths shows an alarming racial gap: Black pedestrians are twice as likely to be killed compared to white pedestrians. One significant factor that explains the disparity is the greater presence of wide, high-speed roads—built to move traffic quickly at the expense of pedestrian safety—in Black neighborhoods. In some cases, there is evidence that governments intentionally placed roads through and around Black neighborhoods for racially discriminatory reasons.

This Comment argues that a pedestrian harmed or killed by a …

The Importance Of Policing, Stephen Rushin

South Carolina Law Review

No abstract provided.

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 …

Bridging The False Certification Gap: Why “Resulting From” In The 2010 Aks Amendment Requires But-For Causation, Alexandra Wildman

Fordham Law Review

Before 2010, violators of the Anti-Kickback Statute (AKS) could avoid False Claims Act (FCA) liability if claims for items or services borne of their kickback scheme were submitted to federal healthcare programs by a third party. In 2010, as part of the Affordable Care Act (ACA), Congress attempted to close this loophole in the FCA by amending the AKS. Under the amendment’s terms, claims submitted to federal healthcare programs for items or services “resulting from” an AKS scheme are false for the purposes of establishing FCA liability, regardless of who submitted the claims.

Although the amendment widened the FCA liability …

The Contemporary Case For Consumer Expectations: Reevaluating The Evolution Of The Original Defect Standard And Its Place In Modern Products Litigation, Alyssa Clune

Fordham Law Review

The consumer expectations standard for design defect has been the subject of fierce debate since its inception. Though many see it as the test that best reflects the plaintiff-friendly goals of products liability, others critique it as vague, outdated, and ripe for jury misuse. Once the primary test for design defect under the Restatement (Second) of Torts, the consumer expectations test has since been rejected by the Restatement (Third) of Torts, and its use has been eliminated or restricted in approximately half of all states in favor of the risk-utility test. Much of the reasoning behind this growing rejection revolves …

A Social Status Theory Of Defamation Law, Yonathan A. Arbel

Articles

Despite deep inequality in social status and social capital in American society, legal scholarship has done relatively little to understand the structures that produce status and maintain its distribution. The Article argues that defamation law plays such a role. The orthodox view is that defamation law's goal is to protect dignity. This view was expressed in a famous Supreme Court holding in 1966, which held that defamation law is necessary to protect "the essential dignity" of "every human being. " The later seminal work of Robert Post cemented it. Seemingly unrelated, scholars of defamation law have found its structure mystifying, …

Toxic Discretion: Environmental Inequality And The Discretionary Function Exception, Sarah E. Barritt

Notre Dame Law Review Reflection

Environmental racism is far reaching and insidious, and each of these devastating instances and the institutional factors that led to them could and should be the subject of entire books in their own right. The EPA and other agencies of the United States government are complicit in multiple ways, not least of all through their abject failures to properly regulate private industry pollution in BIPOC communities. However, this Note has cabined its analysis to the government’s failure to warn these communities of environmental contamination, and what happens when it hides behind the discretionary function exception in ensuing litigation. To provide …

Resolving Land Use Conflicts Without Zoning, Noah Austin

Notre Dame Law Review Reflection

This Note presumes the rise of mixed-use development, upzoning, and other deregulatory zoning schemes. It sets aside the question of whether the costs of exclusionary zoning outweigh its benefits to society. And it characterizes the return-of-nuisance problem as something to be mitigated while pursuing land use deregulation, not as a cause for slowing that deregulation.

To this end, this Note offers three possible solutions towards mitigating conflicts between competing land uses in deregulated regimes. This Note contends that where today’s deregulated developments do generate conflicts between conflicting use types, society would reap net benefit by weakening judicial protection of nuisance …

University Of The District Of Columbia Law Review, University Of The District Of Columbia Law Review

University of the District of Columbia Law Review

No abstract provided.

Keabsahan Dan Eksekusi Invoice Sebagai Jaminan Pembiayaan Pada Produk Digital Lending Pt Pegadaian, Josephine Felicia Putri Bramanto -, Abdul Salam

Lex Patrimonium

This thesis analyzes the validity and execution of invoices as collateral for financing digital lending products offered by PT Pegadaian in the event of default or fictitious invoices based on doctrinal research methods and supported by the results of interviews with PT Pegadaian. In 2020, PT Pegadaian launched a digital lending-based Productive Capital Loan product with invoice guarantees. Through this product, MSME players who want to get a business capital loan can apply for a loan secured by an online debt collection letter (invoice), which is then charged with a fiduciary guarantee. An invoice is basically a document that proves …

Akibat Hukum Perjanjian Lisensi Terhadap Pihak Ketiga Yang Berindikasi Pada Perbuatan Melawan Hukum Ditinjau Dari Segi Keperdataan (Analisis Putusan Nomor 4/Pdt.Sus-Hki/2019/Pn.Smg Jo. Putusan Nomor 882.K/Pdt.Sus-Hki/2019), Putti Zahra Dwi Athifah Wilyadi

Lex Patrimonium

This legal research aims to analyze the validity of a license agreement that has legal implications for third parties, which can lead to unlawful acts. An agreement that should provide benefits to the parties bound by the agreement can cause losses in its implementation. Meanwhile, the loss is caused by a third party for unlawful acts. With the enactment of Law Number 28 of 2014 concerning Copyright ("UUHC 2014"), the parties bound in the license agreement can be better protected, coupled with the enactment of the implementing regulations of the regulation in Government Regulation of the Republic of Indonesia Number …

Analisis Penyelesaian Sengketa Konstruksi Akibat Wanprestasi Dalam Perjanjian Jasa Konstruksi Ditinjau Dari Hukum Perdata, Mayangsari Nurul Imani, Prof. Dr. Rosa Agustina, S.H.,M.H

Lex Patrimonium

This research analyzes how dispute resolution efforts can be made in the event of a construction dispute due to default committed by a party in a construction service agreement. This research is prepared using a doctrinal research method. The author describes and analyses three problems in this research, namely the factors that cause construction disputes based on the provisions in the construction service agreement, efforts to resolve construction disputes due to default by the parties in the construction service agreement, and the court's opinion in resolving construction disputes in Case No. 692/Pdt.G/2019/PN.Jkt.Utr. The results show that construction disputes usually occur …

Analisis Perbedaan Prinsip Kesalahan Dan Implikasinya Terhadap Tanggung Jawab Dalam Perbuatan Melawan Hukum: Studi Komparatif Antara Hukum Indonesia Dan Hukum Inggris, Muhammad Ihsan Abdurrahman, Prof. Dr. Rosa Agustina, S.H.,M.H

Lex Patrimonium

Indonesian law, originating from the Dutch law, includes the lawsuit for Perbuatan Melawan Hukum or PMH, which originates from onrechtmatige daad in the Netherlands. Despite undergoing developments, PMH in Indonesia still focuses on compensation for parties experiencing losses, in contrast to the concept of the Law of Torts in England, which aims not only to provide compensation but also to prevent future trots and deter perpetrators. A notable difference lies in the consideration of the perpetrator's intention, where PMH in Indonesia does not take intention into account, while the Law of Torts in United Kingdom incorporates the perpetrator's intention as …

Johnson & Johnson’S Dance With Bad Faith: A Look At How Large Corporations Utilize The Bankruptcy Code To Avoid Liability From Mass Tort Claims, Amy West

Brooklyn Journal of Corporate, Financial & Commercial Law

Since Congress enacted the current Bankruptcy Code in 1978, large corporations have strategically used bankruptcy law to evade liability in mass tort claims. This Note examines three case studies illustrating such attempts. The first case involves Johnson & Johnson, which tried to use the so-called “Texas Two-Step” maneuver to circumvent liability for 38,000 pending talc-related lawsuits linked to injuries caused by its well-known Baby Powder. The second case is the Purdue Pharma bankruptcy. Purdue Pharma, the pharmaceutical manufacturer responsible for creating OxyContin, faces thousands of claims for strict liability, negligence, and failure to warn. The issue here is whether the …

Regulatory Takings In Climate Change: Geo- Engineering One’S Way Around The Fifth Amendment, Noah Chase

Fordham Environmental Law Review

Picture yourself as the owner of a small business located in the downtown area of a large city; your business consists of a shop and an adjoining parking lot. A new regulation has just been passed which requires any owner of property within the city limits to paint all roofs and parking areas with a new reflective coating, in order to reduce the heat which is absorbed by such structures. The idea of closing your business down for this time, along with other connected issues, scares you, and you begin to wonder if your local government truly has your best …

Arizona V. Navajo Nation And Systemic Failures In The Tribal Water Allocation Scheme, Jennifer Horkovich

Fordham Environmental Law Review

When the United States Supreme Court’s decision in Arizona v. Navajo Nation was published in June 2023, Indian Country was hardly surprised with the Court’s ruling. There, the Court found that the United States had no affirmative duty to affirmatively protect the Navajo Nation’s water rights under the 1868 Treaty.1 The Court was clear: the treaty is insufficient for the Navajo’s current water needs, but the judiciary is unable to step in to find relief.2 This decision is another in a long series of cases on water allocation and the federal reserved water right, where tribes have been unable to …

Environmental Protection, Sustainability And The Prevention Of Satellite Collisions In Outer Space, Yun Zhao

Fordham Environmental Law Review

With space commercialization and privatization continuing apace, more space objects are expected to be launched and put into operation in the future, adding to the already large number of defunct satellites and space debris present in outer space. Hence, serious study should be devoted to possible mechanisms for dealing with potential collisions in outer space for the purpose of realizing environmental protection and space sustainability. In view of the inadequacy of the existing legal regime, this article explores possible such mechanisms (including a preventive mechanism, avoidance mechanism and compensation mechanism) from the perspective of interdependence theory and puts forward a …

Liability For Use Of Artificial Intelligence In Medicine, Nicholson W. Price Ii, Sara Gerke, I. Glenn Cohen

Book Chapters

While artificial intelligence (AI) has substantial potential to improve medical practice, errors will certainly occur, sometimes resulting in injury. Who will be liable? Questions of liability for AI-related injury raise not only immediate concerns for potentially liable parties but also broader systemic questions about how AI will be developed and adopted. The landscape of liability is complex, involving healthcare providers and institutions and the developers of AI systems. In this chapter, we consider these three principal loci of liability. At the outset, we note a few issues that shape our analysis.