Torts Commons^™

Unconstitutional Asymmetry Or A Rational Basis For Inconsistency? The Admissibility Of Medical Malpractice Prelitigation Screening Panel Findings Before And After Smith V. Hawthorne I And Ii, Matthew Asnault Morris

Maine Law Review

Pre-litigation screening panels have been instrumental in streamlining medical malpractice litigation in the State of Maine by culling claims from superior court dockets, encouraging settlements, and providing findings of fact that could prove useful for a jury if the case proceeds to trial. In enacting one particular provision governing the confidentiality and the admissibility of the screening panel process, however, the legislature may have sacrificed the constitutional rights of medical malpractice claimants in favor of a lighter docket. Two recent cases before the Law Court, Smith I and II, have challenged the constitutionality of Maine’s unique statutory approach to the …

Rewriting Hockey's Unwritten Rules: Moore V. Bertuzzi, Patrick K. Thornton

Maine Law Review

The word “enforcer” or “hockey goon” does not appear in the 2007–2008 National Hockey League (NHL) rulebook. However, every player and coach knows the meaning of those words. Hockey has always had its share of enforcers or “goons” that have protected star players. Steve Moore, former Harvard captain, and his parents have sued NHL tough-man Todd Bertuzzi, the Vancouver Canucks, and the partnership that owned the Canucks for an on-ice incident that occurred between Moore and Bertuzzi on March 8, 2004. Dedicated hockey fans have followed the lawsuit, but with the “incident” now over four years old many have forgotten …

The Unappreciated Importance, For Small Business Defendants, Of The Duty To Settle, Robert Heidt

Maine Law Review

This paper suggests how the duty to settle, which requires liability insurers to pay damages awarded against their insured in excess of the policy limits when the insurers reject a reasonable settlement offer within the limits, may have indirectly led certain of their insureds--small business recreational vendors like horse riding stables or some motels offering swimming pools with diving boards--to sanitize the recreational activities they offer. More generally, the duty to settle's effect on the lawsuits injured customers brought against small business recreational vendors may have led a wide variety of such vendors to sanitize activities the vendors previously offered …

A Strange Distinction: Charitable Immunity And Clergy Sexual Abuse In Picher V. Roman Catholic Bishop Of Portland, Matthew Cobb

Maine Law Review

In 2009, the Maine Supreme Judicial Court, sitting as the Law Court, decided Picher v. Roman Catholic Bishop of Portland, a case that presented an issue of first impression in Maine: whether the doctrine of charitable immunity protected charitable organizations from liability for intentional torts. The court ultimately held that charitable immunity was not a defense to intentional torts, but that it did bar negligence claims based on the sexual abuse of a minor. In Picher, a majority of the Law Court partly vacated the trial court’s grant of summary judgment for the Roman Catholic Bishop of Portland (Bishop) and …

Has Addy V. Jenkins, Inc. Heightened The Standard For Establishing A Reasonable Inference Of Proximate Cause In Maine?, Denitsa N. Pocheva-Smith

Maine Law Review

Suppose the following: A subcontractor is hired by a construction company to dry-wall the outside of a building. The general contractor provides and erects a three-story staging to assist the subcontractor during that process. The staging is installed before the subcontractor is scheduled to start work, but does not contain safety equipment, such as rails, platforms, or ladders, and is not tied to the building. The subcontractor begins work on the building on Monday. On that same day, he falls while ascending the staging. He reports the fall to the general contractor and asks that safety equipment be installed on …

"The Wrong Approach At The Wrong Time?": Maine Adopts Strict Liability For Abnormally Dangerous Activities In Dyer V. Maine Drilling And Blasting, Inc., Matthew M. Cobb

Maine Law Review

In 2009, the Maine Supreme Judicial Court, sitting as the Law Court, held in Dyer v. Maine Drilling and Blasting, Inc. that strict liability should be applied to abnormally dangerous activities in accordance with the Restatement (Second) of Torts §§ 519-20. In doing so, the court expressly overruled its decision in Reynolds v. W.H. Hinman Co., which had rejected a strict liability approach to blasting cases in favor of a negligence-based standard. In Dyer, a majority of the Law Court vacated the trial court’s grant of summary judgment for Maine Drilling and Blasting, Inc. (Maine Drilling) and held that strict …

Constitution Day Lecture: Constitutional Law And Tort Law: Injury, Race, Gender, And Equal Protection, Jennifer B. Wriggins

Maine Law Review

The focus of today’s annual Constitution Day lecture at the University of Maine School of Law is on the Fourteenth Amendment and specifically how the Equal Protection Clause relates to tort law. First, I will talk about the Equal Protection Clause in general—what it says, and some of what it has been held to mean—particularly where government makes distinctions based on race and gender. Second, I will discuss two historical tort cases that violate equal protection on the basis of race. In doing so, I uncover the racial history of tort law that has been hidden in plain sight. I …

Access To Prescription Drugs: A Normative Economic Approach To Pharmacist Conscience Clause Legislation, Joanna K. Sax

Maine Law Review

Over the past several years, many states introduced legislation that protects a pharmacist’s decision to refuse to fill a prescription. Termed “conscience clauses,” these pieces of legislation allow a pharmacist to refuse to fill a prescription because of moral or religious objections without fear of legal repercussions. In 2006, for example, twenty-one states considered legislation that permits pharmacists to refuse to fill prescriptions; some bills focus on contraception alone, while others are not specific to any one type of medication. Arkansas, Mississippi, Georgia, Florida, and South Dakota have state laws that provide legal protection to pharmacists who refuse to fill …

The Long-Arm's Inappropriate Embrace, Lynda Wray Black

St. John's Law Review

(Excerpt)

Arguably, the heart balm torts have outlived their relevance in a society where marriage is no longer a necessary imprimatur for intimate relations, and where broken hearts and failed marriages are the statistical norm. A state’s resolute rejection of the heart balm torts in principle as well as applied to modern domestic relations mores need be checked neither by Constitutional protections of marriage nor by the need for uniformity among sister states. Therefore, one state need not and must not transport its domestic relations public policy across state lines. Mississippi’s expansive jurisdictional embrace of nonresidents, John Daly and Anna …

Estate Of Fortier V. City Of Lewiston: Is Maine's Tort Claims Act Unintelligible?, William I. Olver

Maine Law Review

In Estate of Fortier v. City of Lewiston, the Maine Supreme Judicial Court, sitting as the Law Court, was asked to decide if the City of Lewiston was “using” an aircraft under the Maine Tort Claims Act (MTCA) when it chartered a plane from Twin Cities Air Services (Twin Cities) as part of an Air Force Junior Reserve Officer Training Corp (AFJROTC) exercise. Tragically, the pilot and three AFJROTC cadets from Lewiston High School lost their lives when the plane crashed into Barker Mountain shortly after take-off. The families of the students brought suit against Lewiston, in part, alleging negligence …

Humphries V. New York-New York Hotel & Casino, 133 Nev. Adv. Op. 77 (Oct. 5, 2017), Emily Meibert

Nevada Supreme Court Summaries

An innkeeper is liable under NRS 651.015 if an injured patron can show that they suffered foreseeable harm; foreseeability is established when the innkeeper fails to exercise due care for the safety of its patrons or if the innkeeper had notice or knowledge of prior incidents of similar acts on the premises. Notice or knowledge of prior incidents of similar acts is a case-by-case analysis, and requires the district court consider similar wrongful acts in terms of the location of the attack, level of violence, and implicated security concerns.

Tipping The Scales?: Maine Adopts The Continuing Negligent Treatment Doctrine In Baker V. Farrand, Michael P. Beers

Maine Law Review

In Baker v. Farrand, the Maine Supreme Judicial Court, sitting as the Law Court, held that for a series of related negligent acts or omissions committed by a health care provider or practitioner, a single cause of action “accrues” under the Maine Health Security Act (hereinafter MHSA) on the date of the last act or omission that contributed to the plaintiff’s injury. Hence, in situations where a physician provides continuing negligent treatment to a patient in which each and every one of the physician’s actions are negligent, the MHSA’s three-year statute of limitations does not begin to run until the …

A Torahic Case Against Sjr8, Josh Burk

University of Arkansas at Little Rock Law Review

No abstract provided.

Human Torts, Lisa J. Laplante

Cardozo Law Review

Human Torts is the first article to describe how ordinary municipal tort lawsuits in the United States provide essential remedies for human rights abuses. Despite the rising level of hate crimes, bullying, corporate malfeasance, and other private acts that result in great harm and can lead to civil litigation, American scholars have never explored how everyday tort claims grounded in purely domestic common law doctrine between private, non-state actors are in fact human rights claims even if never pleaded as such in U.S. courts. Framing tort litigation as a form of human rights protection may appear to be a novel …

The Reasonable Investor Of Federal Securities Law, Amanda Rose

Vanderbilt Law School Faculty Publications

Federal securities law defines the materiality of corporate disclosures by reference to the views of a hypothetical reasonable investor. For decades the reasonable investor standard has been a flashpoint for debate with critics complaining of the uncertainty it generates and defenders warning of the under-inclusiveness of bright-line alternatives. This Article attempts to shed fresh light on the issue by considering how the reasonable investor differs from its common law antecedent, the reasonable person of tort law. The differences identified suggest that the reasonable investor standard is more costly than tort laws reasonable person standard - the uncertainty it generates is …

The Information-Forcing Dilemma In Damages Law, Tun-Jen Chiang

William & Mary Law Review

Courts assessing compensatory damages awards often lack adequate information to determine the value of a victim’s loss. A central reason for this problem, which the literature has thus far overlooked, is that courts face a dilemma when applying their standard information-forcing tools to the context of damages. Specifically, the standard method by which courts obtain information is through a burden of proof. In the context of damages, this means a rule requiring plaintiffs to prove the value of a loss. But courts will often face a situation where a plaintiff can clearly prove the existence of a loss, yet cannot …

How A Class Action Plaintiff's Request For Attorney's Fees Can Prevent Mootness Despite A Defendant's Tender Of Damages, Lyuba Shamailova

Cardozo Law Review

No abstract provided.

Your Bodies, Ourselves: Legal Protection Of Potential Human Life, Jeffery A. Parness

The Catholic Lawyer

No abstract provided.

Ford Motor Co. V. Trejo, 133 Nev. Adv. Op. 68 (Sept. 27, 2017), Jeff Chronister

Nevada Supreme Court Summaries

The Court declined to adopt the risk-utility analysis. The consumer-expectation test is the appropriate standard for strict products liability claims in Nevada, and the risk-utility analysis is inappropriate because it inserts aspects of negligence into the test and unfairly burdens plaintiffs.

Lewis V. Clarke, Summer L. Carmack

Public Land & Resources Law Review

One manner in which Indian tribes exercise their inherent sovereignty is by asserting sovereign immunity. In Lewis v. Clarke, the Court decided that the sovereign immunity extended to instrumentalities of tribes did not further extend to tribal employees acting within the scope of their employment. The Court acknowledged the concerns of the lower court, namely, the possibility of setting a precedent allowing future plaintiffs to sidestep a tribe’s sovereign immunity by suing a tribal employee in his individual capacity. However, the Supreme Court ultimately felt that the immunity of tribal employees should not exceed the immunity extended to state …