Torts Commons^™

In Praise Of Ex Ante Regulation, Brian Galle

Vanderbilt Law Review

The plaintiffs' daughter was four years old when they brought her in to the local medical clinic. Clinic staff gave the girl a sedative to keep her calm while they examined her, but they miscalculated the dose, and she later died.' Tort liability, or the specter of it, is supposed to discourage these kinds of preventable tragedies. The clinic's owner, fearing a potential crippling award to bereaved families, should have trained his staff more carefully. As it happens, the owner instead had carefully scooped all the assets out of the firm. When the girl's parents won a $34.6 million award …

Constitutional Remedies: Reconciling Official Immunity With The Vindication Of Rights, Michael L. Wells

St. John's Law Review

(Excerpt)

Part I makes the crucial point that compensation is a tool and not a distinct goal of tort liability. With civil recourse theory as a guidepost, Part II argues that one of the aims of constitutional tort law is vindication of the plaintiffs rights. Civil recourse principles teach that vindication may be at least partly achieved even when immunity blocks compensation. Part III shows how the Court's failure to distinguish vindication from compensation has unnecessarily impeded the vindication of rights. Two important official immunity cases-Camreta v. Greene and Pearson v. Callahan -illustrate the missed opportunities and show how …

Reasonable Precaution For The Individual, Dov Waisman

St. John's Law Review

(Excerpt)

This Article has four parts. In Part I, I introduce the question to be explored and describe Barbara Fried's challenge to any attempt to answer that question without summing costs and benefits across persons. Part II responds directly to Fried's challenge, presenting the individualized feasibility principle as a viable, nonaggregative interpretation of reasonable precaution. In Part III, I explore the theoretical underpinnings of the IFP, drawing on a theory of normative ethics known as ex ante contractualism. Part IV concludes.

The Shortcomings Of New York's Long-Arm Statute: Defamation In The Age Of Technology, Robert D. Nussbaum

St. John's Law Review

(Excerpt)

This Note suggests that the New York legislature amend New York's long-arm statute so that it no longer excludes the tort of defamation as a basis for long-arm jurisdiction. Part I provides a brief background and history of jurisdiction and longarm statutes in general. It also focuses on New York's statute more specifically. Part II focuses on the arguments for excluding acts of defamation from long-arm jurisdiction and compares New York's statute to those of other states. Finally, Part III examines the different policy reasons for changing the statute and argues that such a change will not offend Due …

When They Don't Want Your Corn: The Most Effective Tort Claims For Plaintiffs Harmed By Seed Companies Whose Genetically Engineered Seeds Produced More Problems Than Profits, Sarah Holm

Hamline Law Review

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Uncapping Compensation In The Gore Punitive Damage Analysis, Shaakirrah R. Sanders

William & Mary Bill of Rights Journal

BMW of North America, Inc. v. Gore rests, in part, on the “understandable relationship” between a civil jury’s award of compensatory and punitive damages. Gore designates Due Process a protectant against excessive civil jury awards, in effect outmaneuvering the civil jury trial right. Gore identifies three guideposts to determine whether punitive damages are excessive: (1) the degree of reprehensibility of a defendant’s conduct; (2) the disparity between compensatory and punitive damages; and (3) the difference between punitive damages and civil penalties authorized or imposed in comparable cases.

This Article focuses on the second of Gore’s three guideposts, which examines the …

The Electronic Document Retention System Ate My Homework: Gross Negligence And The Rebuttable Presumption Of Prejudice Within The Doctrine Of Spoliation In Federal Courts, Tristan Evans-Wilent

St. John's Law Review

(Excerpt)

This Note argues against imposing such a rebuttable presumption where the spoliating party acted with gross negligence. Part I provides a general background of the doctrine of spoliation and its application to electronic information. Part II examines the three different approaches taken by the federal circuits to whether gross negligence should trigger a rebuttable presumption that the spoliated evidence was prejudicial to the spoliating party. Finally, Part III argues that courts should not allow gross negligence to trigger a rebuttable presumption that the spoliated evidence was prejudicial to the spoliating party.

Anderson V. Mandalay Corp., Nev. Adv. Op. 82 (Oct. 10, 2015), Emily Haws

Nevada Supreme Court Summaries

The Court determined (1) NRS § 41.745(1)(c) sets forth a factual inquiry; (2) a reasonable jury could find it “reasonably foreseeable under the facts and circumstances of the case considering the nature and scope of his . . . employment” that a hotel employee would rape a hotel guest; and (3) direct negligence claims against an employer are not futile when a reasonable jury could conclude under the facts that the employer could reasonably foresee the employee’s unlawful act.

Judging Multidistrict Litigation, Elizabeth Chamblee Burch

Presentations and Speeches

Professor Elizabeth Chamblee Burch presented "Judging Multidistrict Litigation" at Duke University School of Law's Mass-Tort MDL Program for Judicial Conference Committees on October 8, 2015.

A New Test To Reconcile The Right Of Publicity With Core First Amendment Values, Nat Stern, Mark Joseph Stern

Scholarly Publications

No abstract provided.

The Economic Loss Doctrine: Intrinsic Or Extrinsic Fraud, Ralph Anzivino

Marquette Law Review

The economic loss doctrine provides that when a product is sold and results in economic loss for the buyer (no property or personal injury), the buyer’s sole remedy is to sue for breach of contract, not in tort. The two exceptions to the economic loss doctrine are contracts that are predominately for services and contracts where a party is fraudulently induced to enter into the contract.

Fraudulent inducement occurs when one party either fails to disclose a material fact or knowingly misrepresents a significant fact, and thereby induces the other party to enter into a contract. The fraudulent inducement, however, …

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 …

Section 230 Of The Communications Decency Act: The True Culprit Of Internet Defamation, Heather Saint

Loyola of Los Angeles Entertainment Law Review

This Note highlights the growing concern of Internet defamation and the lack of viable legal remedies available to its victims. Internet defamation is internet speech with the purpose to disparage another’s reputation. At common law, a victim of alleged defamation has the right to file suit against not only the original speaker of the defamatory statements, but the person or entity to give that statement further publication as well. In certain cases even the distributor, such as a newspaper stand, can be held liable for a defamation claim. However, liability due to defamatory speech on the Internet is quite different. …

The Corporate Conspiracy Vacuum, J. S. Nelson

Cardozo Law Review

In the absence of charges available for traditional conspiracy, public and judicial frustration with agents' lack of accountability has led to the distortion of alternative doctrines in efforts to impose liability on what should have been traditional conspiracy prosecutions. This paper examines those efforts and their impact on these alternative doctrines.

Drug Design Liability: Farewell To Comment K, Aaron Twerski, James A. Henderson Jr.

Faculty Scholarship

No abstract provided.

"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 …

Illegal Agreements And The Lesser Evil Principle, Chunlin Leonhard

Catholic University Law Review

When parties enter into an illegal agreement and bring a dispute arising from the transaction before a court, the court finds itself in a difficult position. The court is faced with two competing interests: the importance of both upholding and protecting the dignity of the law and honoring inherent principles of U.S. contract law - freedom of contract and individual autonomy. There exists a common misconception that courts, when presented with illegal contracts, follow the rule of non-enforcement. However, an examination of case law indicates that courts are instead concerned with the consequences of their choices, and have consistently followed …

Frazier V. Drake, 131 Nev. Adv. Op. 64 (Sep. 3, 2015), Adrian Viesca

Nevada Supreme Court Summaries

The Court of Appeals determined that (1) when three of the good-faith Beattie factors weigh in favor of the party that rejected the offer of judgment, the reasonableness of the fees requested by the offeror becomes irrelevant, and cannot, by itself, support a decision to award attorney fees to the offeror and (2) expert witness fees in excess of $1,500 now have factors to take into consideration in awarding such fees.

Medical Malpractice Limitations For New York Infants—Time For A Change Of Time, Eugene T. Maccarrone, Victor D. Lopez

Buffalo Public Interest Law Journal

No abstract provided.