Torts Commons^™

Parental Relation Not A Bar To Recovery In Negligence Actions

The Catholic Lawyer

No abstract provided.

Essay: Extending Comparative Fault To Apparent And Implied Consent Cases, Aaron D. Twerski, Nina Farber

Brooklyn Law Review

This article challenges the traditional view of consent as a binary issue. Because “lack of consent” is an element of an intentional tort, courts do not apply comparative responsibility principles and therefore must find that plaintiff has either consented to the invasion of her person or not. In cases where consent is predicated on apparent consent or implied consent, however, the all–or-nothing approach to consent fails to take into account that both plaintiff and defendant may have been responsible for a miscommunication as to consent. This essay focuses on well-known cases and situations where both parties likely contributed to a …

Torts, Phillip Comer Griffeth, Christopher R. Breault, Christopher Barwick Newbern

Mercer Law Review

This Article surveys recent developments in Georgia tort law between June 1, 2015 and May 31, 2016.

Like A Bad Neighbor, Hackers Are There: The Need For Data Security Legislation And Cyber Insurance In Light Of Increasing Ftc Enforcement Actions, Jennifer Gordon

Brooklyn Journal of Corporate, Financial & Commercial Law

Privacy has come to the forefront of the technology world as third party hackers are constantly attacking companies for their customers’ data. With increasing instances of compromised customer information, the Federal Trade Commission (FTC) has been bringing suit against companies for inadequate data security procedures. The FTC’s newfound authority to bring suit regarding cybersecurity breaches, based on the Third Circuit’s decision in FTC v. Wyndham Worldwide Corp., is a result of inaction—Congress has been unable to pass sufficient cybersecurity legislation, causing the FTC to step in and fill the void in regulation. In the absence of congressional action, this self-proclaimed …

Climate Change Impacts On Municipal Negligence Liability In Rhode Island, Manta Dircks

Sea Grant Law Fellow Publications

No abstract provided.

See No Fiduciary, Hear No Fiduciary: A Lawyer’S Knowledge Within Aiding And Abetting Fiduciary Breach Claims, Brinkley Rowe

Fordham Law Review

Fiduciary liability for attorney conduct generally extends only to direct clients of legal services. Over the last few decades, however, the lawyer’s role has expanded. Following this trend, fiduciary liability also has expanded to allow third-party claims in certain limited circumstances. One example is the attorney aiding and abetting a client’s fiduciary breach claim. One of the key requirements for liability under this claim is the attorney’s knowledge of his client’s fiduciary relationship with the third party alleging the breach. Within those jurisdictions that have accepted the claim, there are two approaches to the knowledge element. The first is the …

Defining “Accidents” In The Air: Why Tort Law Principles Are Essential To Interpret The Montreal Convention’S “Accident” Requirement, Alexa West

Fordham Law Review

This Note examines the history of, and the reasons for, the Montreal Convention, which in part forces airlines to indemnify passengers for injuries resulting from “accidents”—a term undefined in the treaty. The Montreal Convention and the subsequent case law interpreting it demonstrate how, to qualify as an “accident,” the injury-producing incident must be causally connected to the plane’s operation. Importantly, the causal connection’s adequacy should be evaluated according to American tort jurisprudence even though the accident requirement itself is an exception to general tort law. This Note focuses on a particular type of injury-producing event, a copassenger tort, because of …

Trending @ Rwu Law: Deborah Johnson's Post: Now "Defamation" Matters More Than Ever 11-16-2016, Deborah Johnson

Law School Blogs

No abstract provided.

The Compatibility Of Forward-Looking And Backward-Looking Accounts Of Tort Law, Michael Pressman

The University of New Hampshire Law Review

This Article is the first to argue that forward-looking and backward-looking accounts of tort law are intrinsically compatible with one another. This theoretical point is of great importance and will bring about a paradigm shift in tort theory—and, more generally, in legal theory. This is because the long-standing debate between corrective justice theorists and economic theorists about the purpose of tort law (with active participants including Posner, Calabresi, Coleman, Weinrib, Rawls, and countless others) is based on the universal assumption that forward-looking and backward-looking accounts of tort law are incompatible. This assumption, however, is false, and this Article explains why …

Resolving The Divided Patent Infringement Dilemma, Nathanial Grow

University of Michigan Journal of Law Reform

This Article considers cases of divided patent infringement: those in which two or more parties collectively perform all the steps of a patented claim, but where no single party acting alone has completed the entire patented invention. Despite the increasing frequency with which such cases appear to be arising, courts have struggled to equitably resolve these lawsuits under the constraints of the existing statutory framework because of the competing policy concerns they present. On the one hand, any standard that holds two or more parties strictly liable whenever their combined actions infringe a patent risks imposing liability on countless seemingly …

It Is Time For Washington State To Take A Stand Against Holmes's Bad Man: The Value Of Punitive Damages In Deterring Big Business And International Tortfeasors, Jackson Pahlke

University of Michigan Journal of Law Reform

In Washington State, tortfeasors get a break when they commit intentional torts. Instead of receiving more punishment for their planned bad act, intentional tortfeasors are punished as if they committed a mere accident. The trend does not stop in Washington State—nationwide, punitive damage legislation inadequately deters intentional wrongdoers through caps and outright bans on punitive damages. Despite Washington State’s one hundred and twenty-five year ban on punitive damages, it is in a unique and powerful position to change the way courts across the country deal with intentional tortfeasors. Since Washington has never had a comprehensive punitive damages framework, and has …

The Strict Liability In Fault And The Fault In Strict Liability, John C.P. Goldberg, Benjamin C. Zipursky

Fordham Law Review

Tort scholars have long been obsessed with the dichotomy between strict liability and liability based on fault or wrongdoing. We argue that this is a false dichotomy. Torts such as battery, libel, negligence, and nuisance are wrongs, yet all are “strictly” defined in the sense of setting objective and thus quite demanding standards of conduct. We explain this basic insight under the heading of “the strict liability in fault.” We then turn to the special case of liability for abnormally dangerous activities, which at times really does involve liability without wrongdoing. Through an examination of this odd corner of tort …

Realigning The Governmental/Proprietary Distinction In Municipal Law, Hugh D. Spitzer

Seattle University Law Review

Lawyers and judges who deal with municipal law are perpetually puzzled by the distinction between “governmental” and “proprietary” powers of local governments. The distinction is murky, inconsistent between jurisdictions, inconsistent within jurisdictions, and of limited use in predicting how courts will rule. Critics have launched convincing attacks on the division of municipal powers into these two categories. Most articles have focused on problems with the distinction in specific areas of municipal law. In contrast, this article provides a comprehensive analysis of the governmental/proprietary distinction in seven specific doctrinal areas: legislative grants of municipal authority, government contracts, torts, eminent domain, adverse …

Valdez V. City Of New York: The "Death Knell" Of Municipal Tort Liability?, Alisa M. Benintendi

St. John's Law Review

(Excerpt)

This Note contends that the Court of Appeals erred in narrowing the scope of municipal tort liability in Valdez. Focus is on the Court of Appeals’ affirmation of its regressive analysis in McLean v. City of New York and mistaken reliance upon its earlier decision in Cuffy v. City of New York. To illustrate the Court of Appeals’ unwavering adherence to Valdez, this Note examines the court’s decisions in Metz v. State and Coleson v. City of New York. Part I discusses the history and purpose of sovereign immunity from tort liability, New York’s waiver …

A Study Of The Costs Of Legal Services In Personal Injury Litigation In Ontario: Final Report, Allan C. Hutchinson

Commissioned Reports, Studies and Public Policy Documents

Contingency Fee Agreements (CFAs) are now a fixed feature of the Ontario litigation landscape. However, little research or study has been done on exactly how they operate in practice, whether they advance the objectives that they were intended to achieve, and whether litigants are best served by the current arrangements. In this study, I intend to make a preliminary start to that research, set out some tentative criticisms of the CFA system as it currently operates, and, where appropriate, suggest preliminary proposals for change.

It should be said at the outset that my efforts to obtain real and serious data …

Where Sovereign Immunity Ends And Liability Begins: A Functional Restructuring Of The United States Military Tort Compensation Scheme, Jordon Parker

Cardozo Journal of International and Comparative Law

The note critiques the current system of tort claims against the United States, particularly in cases involving the military, arguing that it is overly complex and fails to provide adequate compensation for injured individuals. It proposes replacing the existing tort system with a no-fault compensation scheme, similar to New Zealand’s Accident Compensation Act 2001, to better address the needs of victims.

Extending Comparative Fault To Apparent And Implied Consent Cases, Aaron Twerski, Nina Farber

Faculty Scholarship

No abstract provided.

Parens Patriae And The States' Historic Police Power, Margaret S. Thomas

Journal Articles

Class actions have long been contracting as procedural vehicles in mass tort litigation. At the same time, parens patriae actions brought by state attorneys general for injuries to their state’s citizenry have been expanding. This form of public dispute has emerged as a full-fledged alternative form of aggregate litigation in mass torts. The use of this public alternative is already widespread in consumer, antitrust, environmental, and health law cases.

Despite the widespread use of parens patriae litigation by states, the source of the power to sue in this way is vague and ill-defined. Courts have struggled to articulate and explain …

Protecting The Free-Range Kid: Recalibrating Parents' Rights And The Best Interest Of The Child, David Pimentel

Cardozo Law Review

The article argues that free-range parenting, a child-rearing philosophy emphasizing independence and autonomy for children, is increasingly under attack by legal and child protective systems despite its benefits. While the Supreme Court has recognized parents' fundamental liberty interests in raising their children, these rights are often unenforced in cases involving free-range parents. The article contends that state interventions in such cases frequently fail to meet the strict scrutiny required by the Constitution, undermining parental autonomy and family integrity.

Technological Opacity, Predictability, And Self-Driving Cars, Harry Surden, Mary-Anne Williams

Cardozo Law Review

Autonomous or "self-driving" cars are vehicles that drive themselves without human supervision or input. Because of safety benefits that they are expected to bring, autonomous vehicles are likely to become more common. Notably, for the first time, people will share a physical environment with computer-controlled machines that can both direct their own activities and that have considerable range of movement. This represents a distinct change from our current context. Today people share physical spaces either with machines that have free range of movement, but are controlled by people (e.g. automobiles) or with machines that are controlled by computers, but highly …