Torts Commons^™

The Renaissance Of Private Law, Yotam Kaplan, Adi Libson, Gideon Parchomovsky

Northwestern University Law Review

Crisis is the new normal. Between global warming, the opioid pandemic, bursts of gun violence, and political instability fueled by fake news, it is hard to remember a time when we were not facing a major catastrophe. Still more troubling, there is a growing sense that our political and regulatory institutions are faltering in their ability to offer effective responses to the incoming crises. The rapid pace at which new problems emerge—together with growing political polarization—stymies regulatory and legislative action, resulting in an inability to address contemporary challenges.

Against this gloomy background, we posit an unlikely hero: private law. Recent …

Climate Exceptionalism In Court, Zachary D. Clopton, David A. Dana

Northwestern University Law Review

Across a range of cases, fossil fuel companies, government actors, and some judges have conceded that climate change is an exceptional phenomenon, only to argue that its exceptional nature is a reason to keep climate change out of court. These parties and judges thus seek to avoid the adjudication of climate cases on the merits, even when the neutral application of existing law would provide for jurisdiction in these cases. We term this phenomenon “climate jurisdiction exceptionalism.”

This Article provides a comprehensive account of climate jurisdiction exceptionalism, focusing on two main threads: Article III standing and state court jurisdiction. First, …

Blazing A Trail To Dispute Resolution: The Advantages Of Mediating Insurance And Mass Tort Claims Following Wildfires In California, Kate Hanes

Pepperdine Dispute Resolution Law Journal

Year after year, wildfires in California decimate property, the environment, and local communities, precipitating costly and protracted litigation. This Comment explores the advantages of mediating, rather than litigating, insurance and mass tort claims in the aftermath of these devastating natural disasters. In particular, this Comment contends that mediation benefits all parties—wildfire victims, their insurers, and alleged tortfeasors—by quickly and inexpensively resolving claims, preserving the common pool of funds to prevent insurer insolvency, and maintaining flexibility, predictability, and confidentiality. Drawing on examples of other successful disaster mediations, such as the Agent Orange case and those following Hurricanes Andrew and Katrina, this …

Cyr V. B. Offen & Co.: Liability Of Business Transferees For Product Injuries, Maine Law Review

Maine Law Review

The development of the law of products liability since MacPherson v. Buick Motor Co. has extended liability without fault to wholesalers, retailers, lessors, bailors, and trademark licensors. But the liability of a transferee of business assets for claims arising from the transferor's products after the change in business ownership has never been clearly established. Although commercial creditors generally have been unable to reach the transferee's assets, recent cases have pointed to additional factors that may distinguish products liability plaintiffs from commercial creditors. The liability question is especially important where the transferor, a seller of consumer goods, has dissolved prior to …

The Repair Rule: Maine Rule Of Evidence 407(A) And The Admissibility Of Subsequent Remedial Measures In Proving Negligence, Maine Law Review

Maine Law Review

Evidence of subsequent repairs is generally excluded when submitted for admission as circumstantial evidence of negligence. Although this Comment will examine various theories under which such evidence has been held inadmissible, these theories are all based on one of two assumptions. Evidence of subsequent repairs has been excluded either because it is regarded as irrelevant to the issue of negligence, or although relevant, as incompetent because its admission is believed to counteract the strong public policy to encourage repairs. Most modern rules of evidence now base the exclusion on the public policy rationale. Thus, the effect of the subsequent repair …

New Policies Bearing On The Negligent Employer's Immunity From Loss-Sharing, Maine Law Review

Maine Law Review

The statutory and judicial controls on loss-sharing between third-party tortfeasor and negligent employer must yield in the face of major modern developments in tort law. The third party's tort liability burden has sharply increased both in amount and frequency. New attitudes towards loss-apportionment highlight the imbalance that results from the employer's immunity and subrogation right. Although the situation is ripe for legislative action, courts, in the absence of full-scale systemic reassessment, must attempt some balancing of the competing policy objectives. While this Comment concludes by urging the adoption of a specific remedy allowing the third party to assert the employer's …

Tortious Withholding Of Insurance Benefits: Gibson V. National Ben Franklin Ins. Co., Maine Law Review

Maine Law Review

The Maine Workers' Compensation Act provides that an employer's compensation carrier shares the employer's immunity from common law suit. If the carrier delays or withholds benefits owed an injured employee under an approved compensation agreement, the Act imposes a fine on the carrier and permits the employee to recover the overdue compensation payments by invoking the equity powers of the Superior Court. The Act makes no provision for redress when the carrier refuses to pay, a potential limitation recently confronted by the Maine Supreme Judicial Court in Gibson v. National Ben Franklin Insurance Company. In reversing the trial court's dismissal …

Tort Law Developments, Maine Law Review

Maine Law Review

Any discussion of recent tort law developments in Maine should begin with the abrogation of sovereign immunity, for in the timing of that far-reaching act the Law Court revealed the essence of its approach to this entire area, at once expanding liability while ensuring its careful limitation. Other progressive changes, such as the judicial creation of a new tort remedy in the cause of action for invasion of privacy, have also been hedged with restrictions. Similarly, in charting the development of legislatively created or enlarged grounds of liability in such realms as products liability or owners' and occupiers' duties to …

The Tort Triangle: Contribution From Defendants Whom Plaintiffs Cannot Sue, Michael T. Hertz

Maine Law Review

The rights of contribution and indemnity between tortfeasors often conflict with other rules foreclosing or limiting one tortfeasor's liability to the plaintiff. Take a simple case involving interspousal immunity. The plaintiff, spouse of one tortfeasor (the "protected tortfeasor"), is injured in a collision between an automobile driven by the spouse and another driven by the second tortfeasor (the "claiming tortfeasor"). The plaintiff brings an action against the claiming tortfeasor, who then claims over against the protected spouse. Many courts hold that because the claiming and protected tortfeasors owe no "common liability" to the plaintiff, contribution will not lie. In some …

Tortious Interference With The Expectancy Of A Legacy: Harmon V. Harmon, Paul F. Driscoll

Maine Law Review

The decision of the Maine Supreme Judicial Court in Harmon v. Harmon established that a plaintiff has a remedy in damages for tortious interference with the expectancy of a legacy which may be sought prior to the testator's death. The purpose of this Note is to examine the Harmon court's reasoning, the utility of the remedy announced in Harmon in light of pre-existing plaintiffs' remedies, and the potential consequences of that decision. The development of these themes will require an examination of the decisional law background of the Harmon decision and an analysis of the legal status of testamentary expectancies.

Flaws In The Preemption Defense To Liability Claims Against Generic Drug Manufacturers, Lars Noah

University of Miami Law Review

More than a dozen years have passed since the U.S. Supreme Court decided that federal preemption protects manufacturers of generic (but not brand-name) drugs from most types of products liability claims. This seemingly arbitrary distinction sprang from a peculiarity in the regulations of the U.S. Food and Drug Administration (FDA). That agency soon thereafter proposed to modify its rules in order to eliminate this asymmetry in how the implied preemption defense worked to bar inadequate warning claims, but its effort ultimately failed, while lower courts have confronted some creative efforts to circumvent the special protection enjoyed by generic drug manufacturers. …

Developments In The News Media Privilege: The Qualified Constitutional Approach Becoming Common Law, Lawerence J. Mullen

Maine Law Review

In late 1977 and early 1978, the Boston Globe published a series of articles about a Delaware corporation engaged in building fiberglass boats in New Hampshire. The articles reported a number of allegedly serious defects in the boats, some of which may have contributed to sinkings. Critical comments of boat owners, surveyors, Coast Guard officers, company employees and a repairman were included. The builder was given an opportunity to respond in part of one article. Provoked by this quotidien instance of investigative journalism, the boat builder brought a libel action against the Globe in federal district court. The boat builder's …

The Constitutional Law Of Defamation—Recent Developments And Suggested State Court Responses, Susan Gail Shorey

Maine Law Review

Prior to the 1964 decision in New York Times Co. v. Sullivan, defamation law in the United States was controlled by common law principles developed in the state courts. In New York Times the United States Supreme Court staked out an area of first amendment privilege, which limited the states' power to permit recovery in defamation actions brought by public officials. Later extensions of this constitutional privilege made it appear for a time that constitutional requirements would produce a unified nation-wide body of defamation law to replace the various common law rules followed in the fifty states. In view of …

Duty, Foreseeability, And The Negligent Infliction Of Mental Distress, Mark A. Beede

Maine Law Review

Under early common law if the act of a person gave rise to an action at law, he would be liable for resulting damages regardless of fault. A person acted at his peril. The limitation on liability, if any, lay not with a concept of duty but with a medieval sort of proximate cause. “There is little trace of any notion of. . . an obligation to any one individual, as essential to the tort. The defendant's obligation to behave properly apparently was owed to all the world.” With the merging of the common law actions of trespass and trespass …

Government-Backed Insurance For Artificial Intelligence Technologies, Renee Henson

Faculty Publications

Artificial intelligence (AI) is an unpredictable technology that has the capacity to both help and harm people. Although insurance plays a key role in compensating for harms in other contexts, AI-produced damages evade traditional principles of risk pricing which limits viable commercial insurance coverage. AI requires modified insurance systems that can compensate diverse and unpredictable losses. Just like AI, at one time nuclear energy was viewed as a new and profitable, yet wholly unpredictable, technology that had the capacity to cause devastating harm. AI poses similar threats to society in certain domains, including, for example, health care (e.g., risk management …

The “Marketplace” Myth: Addressing Amazon’S Defense To Product Liability Claims, Andrew Ackley

Seattle University Law Review Online

Many courts continue to analyze law as if we have not evolved from the early days of the internet, when Facebook was a “social networking” site, AOL made messages “instant,” and eBay let everyone auction random items. The internet connected people. Because it did not touch them, it could not harm them. However, with storefronts closing, brick-and-mortar retail chains declaring bankruptcy, and “Uber lots” popping up at airports, the internet “cloud” has touched down all over the country, and online businesses are now harming people just as human actors and brickand-mortar stores always have.

While generating thousands of new ride …

Comparative Negligence In Jackson V. Frederick's Motor Inn: What Is Compared?, Nancy Lynn Diesel

Maine Law Review

Before 1965, the defense of contributory negligence was an absolute bar to a plaintiff's recovery in tort actions in Maine. Under the contributory negligence principle, any degree of fault attributable to the plaintiff defeated his or her claim; the fault of the plaintiff and of the defendant was not compared. In 1965, the Maine Legislature enacted the Comparative Negligence Act in order to eliminate the harshness and inequities of the contributory negligence doctrine. The Act also served to stop juries from using compromise verdicts to reach a fair result. Under the Act, a plaintiff's fault is compared with that of …

Damage Apportionment In Maine: A Proposal For Reform, Barry A. Bachrach

Maine Law Review

Most jurisdictions have some form of comparative negligence system. Such systems reflect an evolving policy of equating liability with a proportional percentage of fault. Yet a vast majority of jurisdictions that have adopted comparative negligence also retain the common law rules of either joint and several liabilities or entire liability. Although these rules derive from discrete common law roots, the rules currently stand for the proposition that a tort-feasor should be responsible for all the damages his or her negligence proximately caused. Thus, even though a jurisdiction adopts comparative negligence, simultaneous application of the incongruent common law rules may frequently …

Informed Consent In Maine: Woolley V. Henderson And The Informed Consent Statute, John C. Milazzo

Maine Law Review

In recent years, American courts have used two different standards in informed consent actions to define the scope of a physician's duty to disclose to his patient the risks inherent in a proposed medical procedure—the professional disclosure standard and the material-risk standard. In Woolley v. Henderson, the Maine Law Court expressly adopted the professional disclosure standard. Prior to the Law Court's decision, however, but after the cause of action in Woolley arose, the Maine Legislature enacted the Maine informed consent statute. Justice Glassman's opinion in Woolley expressly declined to construe the statute. The continued relevance of Woolley to similar cases …

Unveiling A Hidden Hazard: A Deep Dive Into Forever Chemicals And The Urgent Need For Solutions, Katie L. Uszakiewicz

Villanova Environmental Law Journal (1991 - )

No abstract provided.