Torts Commons^™

Construction Defects: Are They “Occurrences”?, Chris French

Faculty Scholarship

An issue in the area of insurance law that has been litigated frequently in recent years is whether construction defects are “occurrences” under Commercial General Liability (“CGL”) insurance policies. The courts have been divided in deciding the issue and in their approaches to analyzing the issue. This article addresses how the issue should be analyzed and concludes that construction defects are “occurrences”. The relevant rules of insurance policy interpretation dictate that construction defects are “occurrences”. Policy language should be interpreted in such a way as to fulfill the reasonable expectations of the policyholder when the policy is construed as a …

Women Behind The Wheel: Gender And Transportation Law, 1860-1930, Margo Schlanger

Book Chapters

Gender difference is only infrequently mentioned in recent negligence cases. To contemporary (mostly non-essentialist) eyes, gender difference seems to appear only mildly relevant to tort law's area of concern: care and harm to others and self. But in the early days of modern tort law, when gender differences loomed larger in the consciousness of American jurists, and unabashedly so, judicial opinions more frequently grappled with how negligence doctrine ought to take account of female difference. This chapter explores opinions published between approximately 1860 and 1930 that illuminate this issue in cases involving women drivers and passengers of cars and wagons. …

Independent Newspapers, Inc. V. Brodie: Maryland's Precarious Balance Between Internet Defamation And The Right To Eanonymity, Bryce Donohue

Journal of Business & Technology Law

No abstract provided.

Blowout: The Legal Legacy Of The Deepwater Horizon Catastrophe. Background Document On Natural Resource Damages, Nicholas Paine

Sea Grant Law Fellow Publications

No abstract provided.

Qualified Immunity Dissonance In The Sixth Circuit: Why We Must Return To Reasonableness, Matt Chiricosta

Cleveland State Law Review

The Sixth Circuit's inconsistent jurisprudence threatens the delicate balance that the defense aims to strike between protecting citizens from having their constitutional rights violated on the one hand and protecting government officials from undue interference with their official duties on the other. This Note critiques the medical emergency-law enforcement response capacity the Sixth Circuit has set forth to help adjudicate qualified immunity claims and suggests improvements the court can make to its qualified immunity jurisprudence.In Part II, I briefly trace the Supreme Court's development of the doctrine and outline the doctrine's policy goals. In Part III, I develop my thesis …

Tort Reform And American Political Economy, Ian J. Drake

Department of Political Science and Law Faculty Scholarship and Creative Works

The expansion of tort liability throughout the last century was a unique period of American legal history. In the field of products liability the expansion was dramatic; so much that it can be considered revolutionary. Also, the reaction to this expansion was so forceful that it thwarted the larger goals of the expansionary movement. This paper will review the purposes of the expansion of tort law in the twentieth century and the purposes and effects of the reaction it spurred at the state level. In short, it is my conclusion that the expansion of products liability after World War II--the …

Please Watch Your Language!: The Chronic Problem Of Assumption Of Risk, Dale L. Moore

Catholic University Law Review

No abstract provided.

Respondent Superior As An Affirmative Defense: How Employers Immunize Themselves From Direct Negligence Claims, J. J. Burns

Michigan Law Review

Most courts hold that where a defendant employer admits that it is vicariously liable for its employee's negligence, a plaintiff's additional claims of negligent entrustment, hiring, retention, supervision, and training must be dismissed. Generally, courts apply this rule based on the logic that allowing a plaintiff's additional claims adds no potential liability beyond that which has already been admitted. Furthermore, since the additional claims merely allege a redundant theory of recovery once a respondeat superior admission has been made, the prejudicial evidence of an employee's prior bad acts which often accompanies direct negligence claims against employers can be excluded without …

Determining The Outcome Of Legal Grievances: An Application Of Game Theory To Tort Negotiations, Tyler Bodi

Honors Theses

I will begin my work with a description of the legal negotiation process in tort law. Next, I will explain the key facets and usefulness of game theory. Third, I will suggest how game theory might be applied to the legal negotiation of torts and solved in any particular tort case. Finally I will confirm that the elements of my model are, first, the definitive parts in the legal negotiation process, and second, part of a cohesive and complete game.

The Limits Of Tort Privacy, Neil M. Richards

Scholarship@WashULaw

The conception of tort privacy developed by Warren, Brandeis and Prosser sits at the heart of American understandings of privacy law. Rooted in protection of private information against unwanted collection, use, and disclosure, tort privacy protects against emotional injury, and was directed by design against disclosures of true, embarrassing facts by the media. In this essay, I argue that as conceived by Warren and Brandeis and interpreted by Prosser, tort privacy is a poor vehicle for grappling with problems of privacy and reputation in the digital age. Tort privacy, especially the disclosure tort, has from its inception been in conflict …

The “Non-Cumulation Clause”: An “Other Insurance” Clause By Another Name, Chris French

Faculty Scholarship

How long-tail liability claims such as asbestos bodily injury claims and environmental property damage claims are allocated among multiple triggered policy years can result in the shifting of tens or hundreds of millions of dollars from one party to another. In recent years, insurers have argued that clauses commonly titled, “Prior Insurance and Non-Cumulation of Liability” (referred to herein as “Non-Cumulation Clauses”), which are found in commercial liability policies, should be applied to reduce or eliminate their coverage responsibilities for long-tail liability claims by shifting their coverage responsibilities to insurers that issued policies in earlier policy years. The insurers’ argument …

Re-Mapping Privacy Law: How The Google Maps Scandal Requires Tort Law Reform, Lindsey A. Strachan

Richmond Journal of Law & Technology

In the Internet savvy and technology dependent world of today, it is difficult to imagine life without Google Maps. The pioneer web- mapping platform provides users with a number of free services, ranging from simple directions to high-resolution imagery of terrain. The service has revolutionized travel, providing guidance and resources to more than just the directionally challenged. Contributing to this notoriety was Google’s addition of “Street View” to the array of mapping functions in May of 2007. As its name implies, the Street View function allows users to view enhanced, 360-degree snapshots of homes, streets and other public property. According …

The Curious Life Of In Loco Parentis At American Universities, Philip Lee

Faculty Publications

In this article I trace the legal history, through court opinions, of in loco parentis (Latin for “in the place of the parent”) as applied to the relationship between American universities and their students. I demonstrate that until the 1960s, the in loco parentis doctrine allowed universities to exercise great discretion in developing the “character” of their students without respect to their students’ constitutional rights. The demise of this doctrine forced courts, and universities themselves, to redefine the relationship of universities with their students in important ways.

A Comment On Restatement Third Of Torts’ Proposed Treatment Of The Liability Of Possessors Of Land, George C. Christie

Faculty Scholarship

In §§ 51 and 52 of the forthcoming second volume of the Restatement (Third) of Torts: Liability for Physical and Emotional Harm, the reporters have sought to accommodate the trend to extend the liability of possessors of land to trespassers. The courts that have led the way in this legal transformation of the traditional common law have largely focused on the foreseeability of the trespasser and of the likelihood of injury from the disrepair of the premises. The Restatement (Third) takes a different approach by focusing on the flagrancy of the trespass, a concept with significant moral connotations. I argue …

Litigating Together: Social, Moral, And Legal Obligations, Elizabeth Chamblee Burch

Scholarly Works

In a post-Class Action Fairness Act world, the modern mass-tort class action is disappearing. Indeed, multi-district litigation and private aggregation through contracts with plaintiffs’ law firms are the new mass-tort frontier. But something’s amiss with this “nonclass aggregation.” These new procedures involve a fundamentally different dynamic than class actions: plaintiffs have names, faces, and something deeply personal at stake. Their claims are independently economically viable, which gives them autonomy expectations about being able to control the course of their litigation. Yet, they participate in a familiar, collective effort to establish the defendant’s liability. They litigate from both a personal and …

A Medical Malpractice Model For Developing Countries?, Nathan Cortez

Faculty Journal Articles and Book Chapters

This Article, written for the symposium "Reforming Medical Liability: Global Perspectives," evaluates the unique plight of developing countries in crafting medical liability regimes. Many developing countries struggle to maintain workable systems for adjudicating physician negligence. This is due to a variety of factors, such as widespread poverty, more pressing public health priorities that demand attention, a scarcity of physicians, immature health care systems, large informal health sectors, regulatory deficits, and weak civil societies, among others. Patients in these countries are also less able than their counterparts in well-developed countries to evaluate and challenge the care they receive and thus serve …

Probabilistic Knowledge Of Third-Party Trademark Infringement, Mark P. Mckenna

Journal Articles

This essay views secondary trademark liability in light of tort law’s treatment of parties whose actions expose a plaintiff to third party-wrongdoing. Broadly speaking, tort law imposes liability on a party for contributing to the tortious activity of another in two different ways. In vicarious and accomplice liability cases, courts impose the same liability on the defendant as they would have on the direct tortfeasors, had they been defendants: if the third-party wrongdoer is a batterer, the defendant is liable for battery. Another line of cases imposes liability for unreasonably putting a defendant at risk of third-party wrongdoing, and these …

The Alien Tort Statute And The Law Of Nations, Bradford R. Clark, Anthony J. Bellia Jr.

Journal Articles

Courts and scholars have struggled to identify the original meaning of the Alien Tort Statute (ATS). As enacted in 1789, the ATS provided "[t]hat the district courts...shall...have cognizance...of all causes where an alien sues for tort only in violation of the law of nations or a treaty of the United States." The statute was rarely invoked for almost two centuries. In the 1980s, lower federal courts began reading the statute expansively to allow foreign citizens to sue other foreign citizens for all violations of modern customary international law that occurred outside the United States. In 2004, the Supreme Court took …

Rethinking Oil Spill Compensation Schemes: The Causation Inquiry, Amy D. Paul

Student Award Winning Papers

No abstract provided.

Time And Change In Judge-Made Law: Convergence, Divisions Of Authority, And The Restatement, Michael Wells

Scholarly Works

In his contribution to Wake Forest Law School’s 2009 Symposium on the Restatement (Third) of Torts, Professor Kenneth Abraham starts with two propositions, one descriptive, the other normative. The descriptive claim is that “tort law . . . is mature and largely stable,” and that “[o]ver time, the law of different states will converge.” As he points out, “The formation of the American Law Institute (“ALI”) itself, and the project of restating the law that the ALI . . . undertook” depends on these premises.

The project of restating the law also depends on a normative premise, namely that …