Torts Commons^™

The Constitutional Claim To Individuation In Tort — A Tale Of Two Centuries, Part 2, Douglas A. Kysar

Brooklyn Journal of Corporate, Financial & Commercial Law

This Article—drafted to honor Professor Aaron Twerski on the occasion of his festschrift at Brooklyn Law School—draws inspiration from his classic 1989 article on market share liability. In that article, Professor Twerski observed that doctrinal confusions in market share liability arose from judges who “had their feet firmly planted in two different centuries—one foot in the nineteenth century and the other in the twenty-first century.” This Article takes inspiration from Twerski’s “two centuries” metaphor to examine the rise of constitutional objections by defendants to certain doctrinal innovations that attempt to adapt tort law to modern ways of causing, identifying, and …

Getting The Law Right: An Essay In Honor Of Aaron Twerski, John C. P. Goldberg, Benjamin C. Zipursky

Brooklyn Journal of Corporate, Financial & Commercial Law

Written in honor of the great torts scholar Aaron Twerski, this article critically analyzes disturbing developments in New York negligence law as it applies to police who injure innocent bystanders. With the New York Court of Appeals’ 2022 decision in Ferreira v. City of Binghamton as a focal point, it argues that Ferreira and other contemporary decisions have largely betrayed the promise of the 1929 Court of Claims Act, which waived state and municipal immunity for police torts. While courts may be warranted in recognizing certain limits on police negligence liability that do not apply to private actors, the current …

Professor Aaron Twerski: Special Master In The 9/11 Responders' Litigation, Stephan Landsman

Brooklyn Journal of Corporate, Financial & Commercial Law

No abstract provided.

Not All Product-Caused Harm Is "Products Liability", Michael D. Green

Brooklyn Journal of Corporate, Financial & Commercial Law

"Since two important federal preemption decisions by the United States Supreme Court, those injured by warnings defects in the drugs they take may sue the manufacturer only if the patient took a brand-name drug. Those who took the generic version of the drug, which comprise approximately 90 percent of all prescriptions, cannot sue the drug manufacturer regardless of how inadequate its labeling is in explaining the risks of consuming the drug. Clever plaintiffs’ lawyers began bringing suits on behalf of their generic-drug-consuming clients against brand-name manufacturers that, under the Food, Drug, and Cosmetic Act, control the labeling both on their …

Federal Common Law, Climate Torts, And Preclusion, Tom Boss

Washington and Lee Law Review Online

Municipalities have been trying for decades to hold energy companies accountable for their role in the climate change crisis. In an effort to prevent suits, these companies are pushing the novel legal theory that federal common law provides a basis for jurisdiction in federal court over these claims. Once in federal court, the defendants argue that the very federal common law that served as the basis for removal has been displaced by the Clean Air and Clean Water Acts. This would then justify dismissal of the entire case for failure to state a claim. Luckily for the plaintiffs, nearly all …

Winning The Imitation Game: Setting Safety Expectations For Automated Vehicles, William H. Widen, Philip Koopman

Minnesota Journal of Law, Science & Technology

No abstract provided.

Must Courts Recalibrate Tort Law Governing Firearms In Light Of The Second Amendment?, Lars Noah

University of Cincinnati Law Review

The rules governing the scope of liability in cases where firearms cause injuries—some well-established, others fairly novel—help to define the responsibilities of users, owners, and sellers of these popular but dangerous products. As the U.S. Supreme Court has recently expanded an individual’s right to keep and bear arms, some have wondered whether the Second Amendment might operate to limit the reach of these various tort doctrines. Sixty years ago, the Court started to constitutionalize various aspects of state common law, most famously using the First Amendment to limit defamation claims but in other respects as well. A comparable approach to …

Shields Up For Software, Derek E. Bambauer, Melanie J. Teplinsky

UF Law Faculty Publications

This Article contends that the National Cybersecurity Strategy's software liability regime should incorporate two safe harbors. The first would shield software creators and vendors from liability for decisions related to design, implementation, and maintenance, as long as those choices follow enumerated best practices. The second—the “inverse safe harbor”—would have the opposite effect: coders and distributors who engaged in defined worst practices would automatically become liable. This Article explains the design, components, and justifications for these twin safe harbors. The software safe harbors are key parts of the overall design of the new liability regime and work in tandem with the …

“Vr”: Virtual Reality, Or Very Risky? Injuries And Liability From Virtual Reality Headsets, Andrew Stein

Seattle Journal of Technology, Environmental, & Innovation Law

No abstract provided.

Surprises In The Skies: Resolving The Circuit Split On How Courts Should Determine Whether An "Accident" Is "Unexpected Or Unusual" Under The Montreal Convention, Ashley Tang

Washington Law Review

Article 17 of both the Montreal Convention and its predecessor, the Warsaw Convention, imposes liability onto air carriers for certain injuries and damages from “accidents” incurred by passengers during international air carriage. However, neither Convention defines the term “accident.” While the United States Supreme Court opined that, for the purposes of Article 17, an air carrier’s liability “arises only if a passenger’s injury is caused by an unexpected or unusual event or happening that is external to the passenger,” it did not explain what standards lower courts should employ to discern whether an event is “unexpected or unusual.” In 2004, …

Torts: Hear Me Roar, Pamela Wilkins

Mercer Law Review

The Supreme Court of Georgia decided only a handful of tort and tort-adjacent cases in 2022–2023. But don’t mistake the small number for small impact. Quite the opposite. The 2022–2023 term included at least two tort-adjacent blockbusters in General Motors, LLC v. Buchanan and Taylor v. Devereux Foundation, Inc. It also included a significant products liability case, Domingue v. Ford Motor Co.; two cases exploring the significance of non-disclosure in fraud cases; and several cases clarifying the scope of earlier precedents. Buchanan, Taylor, and Domingue all included amicus briefs—a lot of amicus briefs—a sure signal of …

A Run For Your Money: The Supreme Court Of Georgia In Taylor V. Devereux Foundation, Inc. Upholds The Constitutionality Of The Statutory Cap On Punitive Damages, Rachel N. Ratajczak

Mercer Law Review

The sky is the limit! This idiom rings true, except for plaintiffs in many states who dream of million-dollar punitive damage awards. Many states have statutorily capped punitive damage awards, despite their role as “quasi-criminal . . . private fines” to punish defendants for their wrong-doing, and to deter future similar conduct by others. Challenges to statutory caps have plagued both federal and state courts for decades.

In 2023, the Supreme Court of Georgia in Taylor v. Devereux Foundation, Inc. addressed whether O.C.G.A. § 51-12-5.1(g), Georgia’s statutory cap on punitive damages, violates the right to trial by jury, separation …

Outlawing Corporate Prosecution Deals When People Have Died, Peter Reilly

Faculty Scholarship

Two Boeing 737 MAX aircraft crashes, occurring less than five months apart in 2018 and 2019, resulted in 346 deaths—possibly the deadliest corporate crime in U.S. history. The United States Department of Justice (DOJ) used an alternative dispute resolution tool called a deferred prosecution agreement (DPA) to resolve criminal charges against Boeing and to immunize the company’s senior-level managers from prosecution. In the end, the company admitted to engaging in the criminal behavior, paid a monetary fine, and agreed to cooperate fully with the government—meaning there would be no courtroom trial, no formal adjudication of guilt, and no possibility of …

A Revisionist History Of Products Liability, Alexandra D. Lahav

Michigan Law Review

Increasingly courts, including the Supreme Court, rely on ossified versions of the common law to decide cases. This Article demonstrates the risks of this use of the common law. The main contribution of the Article is to demonstrate that the traditional narrative about early products law—that manufacturers were not liable for injuries caused by their products because the doctrine of privity granted producers immunity from suit by the ultimate consumers of their goods—is incorrect. Instead, the doctrinal rule was negligence liability for producers of injurious goods across the United States in the nineteenth century. Courts routinely ignored or rejected privity …

Institutional Liability For Sexual Violence In Prisons Based On Theaided-By-Agency Theory, Tori Klevan

Fordham Law Review

Sexual assault perpetrated by correctional officers in prisons and jails is a pervasive problem in women’s correctional facilities. However, victims who choose to pursue a civil action rarely recover damages for their injuries because our legal system fails to provide adequate options for relief. This failure leaves victims uncompensated and disincentivizes correctional institutions from implementing effective preventative measures. Part of the reason for this failure is that most U.S. courts refuse to hold employers liable for sexual violence committed by their employees. They find that employers cannot be held liable for the tortious conduct of their employees unless the conduct …

Urgensi Perlindungan Data Pribadi Pada Sistem Elektronik Untuk Anak Di Bawah Umur Di Indonesia Serta Perbandingan Regulasi Dengan Uni Eropa (General Data Protection Regulation), Dzikrina Laili Kusumadewi, Akhmad Budi Cahyono

Lex Patrimonium

Childrens are inseparable from using technology. Using this technology also has a negative impact, which is misuse of one's personal data. This threat is quite troublesome, especially for children, in the eyes of the law, that are considered as incompetent individuals. Unfortunately, Regulation Number 27/2022 concerning Personal Data Protection does not regulate and explain in detail the protections that children can get for the security of their personal data. Therefore, this research will discuss child regulations, sanctions, and compensation in protecting personal data; child rights provisions; and the comparison. The aim is to provide an explanation of what provisions have …

Pertanggungjawaban Hukum Pengumpulan Data Biometrik Melalui Artificial Intelligence Tanpa Persetujuan Pemilik Data (Studi Kasus Clearview Ai Inc. Di Yunani Dan Inggris), Miyuki Fattah Rizki, Abdul Salam

Lex Patrimonium

Usement of Artificial Intelligence (AI) along with biometric data can pose a threat to the personal data protection, especially when there’s a data gathering without the consent of Data Owner. Therefore, this thesis will analyze (1) the biometric data protection in Indonesia, (2) AI legal standing based on Indonesia, Greece, and the United Kingdom legal systems, also (3) the legal liability of gathering biometric data through AI without consent of the Data Owner in Indonesia. This thesis is conducted through a normative juridical method with multiple approaches. The conclusion of the research is (1) provisions of biometric data protection can …

Eksekusi Objek Jaminan Fidusia Sebagai Suatu Perbuatan Melawan Hukum: Tinjauan Terhadap Putusan Pengadilan Negeri Medan Nomor 167/Pdt.G/2021/Pn Mdn Dan Putusan Pengadilan Tinggi Tanjung Karang Nomor 93/Pdt/2022/Pt Tjk, Rahmandika -, Lauditta Humaira

Lex Patrimonium

The provisions for the execution of fiduciary security objects are regulated in Law Number 42 of 1999 on Fiduciary Security which allows fiduciary obligee to unilaterally execute fiduciary security objects based on the inherent executorial title which means execution can be directly exercised without going through a court and is final and binding on the parties. The Constitutional Court through Decision Number 18/PUU-XVII/2019 changed the meaning of the executorial title so that the execution of the fiduciary security certificate must be exercised and apply the same as the execution of a court decision that has permanent legal force, unless there …

Perbandingan Rechtsverwerking Sebagai Doktrin Hukum Di Indonesia Dan Doktrin Estoppel Di Amerika Serikat Pada Bidang Hukum Perjanjian, Joseph Noviandri, Togi Marolop Pangaribuan

Lex Patrimonium

This journal discusses the scope of rechtsverwerking as a doctrine known as the ‘waiver of rights’ doctrine. rechtsverwerking refers to a situation where someone possesses a certain right but does not exercise it within a specific period, which may result in the loss of that right. This concept of waiving rights is widely recognized, As exemplified by Article 32 paragraph (2) of Government Regulation No. 24 of 1997 concerning the release of land rights, the application of the rechtsverwerking doctrine should no longer be used as the basis for releasing land rights, as legislation takes precedence over doctrines in the …

Implementasi Doktrin Penyalahgunaan Keadaan (Misbruik Van Omstandigheden) Dalam Perkara Jual Beli Dengan Surat Di Bawah Tangan (Studi Kasus: Putusan Nomor 243/Pdt.G/2020/Pn Mdn Dan Putusan Nomor 101/Pdt/2021/Pt Mdn), Bagas Febrianto, Akhmad Budi Cahyono

Lex Patrimonium

Undue influence (misbruik van omstandigheden) is one of the reasons for the invalidity of an agreement due to a defective will known in Indonesian civil law based on doctrine and jurisprudence. This undue influence is a form of legal protection for weak parties because of the imbalanced position of the parties to the agreement both economically and psychologically. In the case of a sale and purchase agreement, often the parties disagree on the subject matter of the agreement, namely the goods and prices. Moreover, the sale and purchase agreement with privately made letters is certainly very prone to …