Hornbook on Torts
Authors:
Dobbs, Dan B. / Hayden, Paul T. / Bublick, Ellen M.
Edition:
2nd
Copyright Date:
2016
53 chapters
have results for products liability
Chapter 33. Products Liability 289 results (showing 5 best matches)
- Whether a product is in some way defective remains the most central issue in products liability litigation. Section 402A of the Restatement Second imposes strict liability only for harm caused by products that were defective and unreasonably dangerous. The Restatement of Products Liability agrees that liability, whether or not it is strict, requires a defect in the product.
- . The Restatement of Products Liability provides a convenient language for discussion of all products liability claims. No manufacturer or distributor is liable for harm caused by a product unless the product is . The language of defectiveness encompasses negligence, warranty, and strict tort liability. The Restatement’s “defect” analysis makes it possible to discuss the rules of liability without necessarily identifying the negligence or warranty basis for them, although the various liability theories retain their currency for many purposes today.
- In 1998, the American Law Institute published the Restatement Third, Torts: Products Liability. The Products Restatement drops all references to strict products liability. Its view is that courts have mostly come to apply negligence standards in determining design and warning defects, even when they maintained the language of strict liability. The effect, although not the language, of the Products Restatement is that strict liability is retained when it comes to manufacturing defects, but negligence or something very much like it is the test of liability for design and warning defects.
- See Louis R. Frumer & Melvin I. Friedman, Products Liability (Cary Stewart Sklaven ed. 2008) (11 vols.); David G. Owen & Mary J. Davis, Owen & Davis on Products Liability (4th ed. 2014, updated on Westlaw) (3 vols.); Marshall S. Shapo, The Law of Products Liability (4th ed. 2002, updated on Westlaw) (2 vols.); American Law of Products Liability (Timothy E. Travers ed., 3d ed., updated on Westlaw) (23 vols.).
- As the cases worked out the details of strict liability, many observers began to think that strict liability for design defects, as distinct from occasional product flaws, was wrong in principle. Indeed, many came to believe that the courts were often using the language of strict liability but effectively determining liability on negligence standards. Opponents of strict-liability language and strict-liability results, along with perennial defendants, gradually developed a critical mass. In 1973, James A. Henderson, Jr., published a strong attack on any kind of judicially imposed liability for design defects. Others, reinforced by Henderson’s stream of articles on products liability, added their criticisms. By 1979 the Commerce Department published a “Model Uniform Product Liability Act” as a potential guide to the states and aimed mainly at clarifying and limiting liability. Principally in the 1980’s, many states passed products liability statutes limiting liability in one regard...
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Chapter 41. Economic Torts and Economic Loss Rules 99 results (showing 5 best matches)
- If the defendant manufactures a product that is flawed and worthless but causes no physical harm to persons or to other property, the purchaser suffers only pure economic harm in the form of deficient economic value of the product. Under the economic loss rule, the purchaser therefore has no tort claim. Courts usually hold the same if the product flaw results in physical harm only to the product itself. If the defendant’s product causes physical harm to “other property,” associated with the contract, however, he is subject to liability as with any other property damage. For example, if, because of a manufacturing flaw, the product explodes and damages the purchaser’s nearby home, the plaintiff has an ordinary property damage claim for the physical harm to the home. Such a case is not one of pure economic harm; instead, it is a case of economic harm arising from physical harm to property. Some courts have expanded the rule against liability for pure economic losses to exclude
- . Defective products may cause economic loss if they do not work well; but so long as they do not cause physical harm to person or property other than the product itself, most courts invoke the economic loss rule to reject tort liability. In products cases, for example, courts limit the manufacturer’s liability to contract or warranty claims The Restatement Third of Torts recognizes liability in this situation in limited situations.
- Restatement (Third) of Torts: Products Liability § 21 (1998) (“harm to persons or property includes economic loss if caused by harm to: (a) the plaintiff’s person; or (b) the person of another when harm to the other interferes with an interest of the plaintiff protected by tort law; or (c) the plaintiff’s property other than the defective product itself”).
- . Some older cases accepted the rule that physical harm to a product from its own defect is still an economic loss governed by contract, but if the self-damage occurred in a sudden and dangerous event, the plaintiff could sue in tort. Later, however, the Supreme Court of the United States, in an admiralty products liability case, rejected the relevance of sudden and dangerous events, holding that the product’s damage to itself was simply economic loss—no different from the product’s failure to function. courts that once permitted tort suits for calamitous self-damaging product defects have receded from that position. The Restatement of Products Liability ignores the sudden and dangerous test entirely in its statement of the blackletter rule. In some states, however, the older rule that allows a tort action when a product’s defect results in a sudden self-damaging event such as an explosion that damages the product, but nothing else, is still on the books. ...court may treat a product...
- personal injury or property damage, resulting from a sudden or dangerous occurrence”). The quoted language suggests that a manufacturer of a product that is defective because it emits unsafe levels of radiation causing cancer over a period of time would be immune from liability because there was no sudden and dangerous event. That would not only be out of line with products liability law generally but would be out of line with any conceivable policy behind the economic loss rule. Presumably the quoted language should be regarded as an incomplete statement that states a sufficient but not necessary basis for physical harm recovery based on negligence or strict liability. On the rule in products cases generally, see § 33.3.
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Chapter 12. Breach of Duty 35 results (showing 5 best matches)
- Ake v. General Motors Corp., 942 F.Supp. 869 (W.D.N.Y. 1996); Miner v. Long Island Lighting Co., 40 N.Y.2d 372, 353 N.E.2d 805, 386 N.Y.S.2d 842 (1976); Zacher v. Budd Co., 396 N.W.2d 122 (S.D. 1986). The Restatement of Products Liability takes the position in § 4 that compliance with statute should be similarly treated in a products liability case alleging defective design. In Malcolm v. Evenflo Co., Inc., 217 P.3d 514 (Mont. 2009), the court expressed its disagreement with the ALI on this point, and held that in a strict products liability action, evidence of statutory compliance was both irrelevant and more prejudicial than probative.
- Levi v. Southwest La. Elec. Membership Coop., 542 So.2d 1081 (La. 1989); see David G. Owen, Defectiveness Restated: Exploding the “Strict” Products Liability Myth, 1996 U. Ill. L. Rev. 743 (1996) (“This type of ‘cost-benefit’ or ‘risk-utility’ analysis may be problematic if relied upon excessively as a mechanical device for producing automatic ‘right’ answers, but it nicely describes the decisional calculus that lies at the heart of products liability law in particular and accident law in general.”).
- See David G. Owen, The Moral Foundations of Products Liability Law: Toward First Principles, 68 Notre Dame L. Rev. 427 (1993).
- Strict liability under the Restatement Second’s § 402A, which determined defectiveness of products in part by reference to consumer expectations, was probably an example. Similarly, informed consent cases are rooted in the patient’s expectations. Even more clearly, then, expectations of the parties would trump risk-utility balancing when those expectations are based on custom.
- See Teresa Moran Schwartz, The Role of Federal Safety Regulations in Products Liability Actions, 41 Vand. L. Rev. 1121 (1988).
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Summary of Contents 16 results (showing 5 best matches)
Table of Contents 58 results (showing 5 best matches)
Chapter 9. The Negligence Action: an Introduction 44 results (showing 5 best matches)
- Much of products liability law is in this category, see Chapter 33, as is premises liability law, see Chapter 20.
- Leaving a place for strict liability
- . A person who negligently causes personal injury or property damage is subject to liability in tort. Negligence liability is liability for one particular kind of fault—typically, failure to use reasonable care under the circumstances. It is contrasted with liability for intentional torts and with strict liability.
- (1) Eliminating or limiting the role of strict liability
- . In the 19th century, it looks as if courts began to develop general or “universal” principles. They began to feel, in particular, that in cases of physical harms to persons or property, fault was the general basis for liability and a limit of liability as well. Instead of judging cases by imposing particular duties upon particular callings, courts could simply treat negligence as the basis of liability in all or a large universe of cases. Many observers thought that is what did. Intentional invasion, not direct invasion, became the basis for liability in the trespassory tort. Negligence became the basis of liability otherwise. Negligence was no longer focused upon parties who stood in some special or contractual relationship;
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Chapter 1. Defining Tort Law 22 results (showing 5 best matches)
- See Chapters 25 (defendant’s undertaking as a basis for tort liability) & 33 (products liability in tort and warranty).
- Strict liability
- The boundaries of tort law staked loosely in the preceding sections may suggest that torts cannot be a coherent field. It is not only large in itself, including all kinds of wrongs of which there are many if not infinite varieties; it also has family ties to criminal, contract, property, and regulatory law, not to mention alternative compensation schemes. The size and diversity of tort law is emphasized by the fact that lawyers do not specialize in tort law but only in some patch of it. Probably no lawyer could be said to “specialize” in a field so diverse that it includes medical malpractice, products liability, interference with contract, libel, privacy, sexual harassment, civil rights, malicious prosecution, and other torts. If size and diversity of tort law threatens to render it incoherent, so does the fact that tort law is always changing.
- Expanding and limiting liability for fault
- A tort is conduct that constitutes a legal wrong and causes harm for which courts will impose civil liability. The essence of tort is the defendant’s potential for civil liability to the victim for harmful wrongdoing and the victim’s corresponding potential for compensation or other relief.
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Chapter 2. Aims, Policies, History and Methods of Tort Law 31 results (showing 5 best matches)
- Some tort rules or principles may be precise enough and well-known enough to guide conduct, at least in a general way. This may be especially so in the case of defendants who act repeatedly and plan their conduct to avoid legal liability. Manufacturers know that dangerous products can lead to tort liability, even if they do not know detailed rules.
- Based on these and other considerations, some commentators have argued that tort liability should be strict (or more expansive) in order to secure compensation for more injured persons. Some defendants (if not all) may be seen as good “risk distributors” who should be liable for any harms they cause regardless of fault because they can “distribute” the costs of paying compensation; for example, manufacturers could pay compensation for injuries they cause and then recoup some or all of those costs by raising the price of their products. In this view, each individual purchaser of these products will pay a tiny fraction of the costs of injuries inflicted by those products, and the injured person will not be compelled to bear the entire cost alone.
- Both plaintiffs and defendants present policy arguments. Plaintiffs often argue that the defendant as a business enterprise can better “distribute the risk” or “distribute the loss” that results from accidental injury. Even if the defendant is not at fault, they argue, the defendant can better absorb the costs of injuries associated with its enterprise, or even pass those losses on to others, by raising its prices. In certain areas, this kind of argument, associated with the phrase “enterprise liability” or “collective liability,” has sometimes, but not always, been effective. Arguments for liabilities divorced from rights might also have a special place in mass tort litigation where hundreds of thousands of people have been injured by products like asbestos or the Dalkon Shield.
- . A different view about the justice basis for strict liability is that strict liability can justly be imposed when the defendant imposes nonreciprocal risks on the plaintiff. For example, an airplane pilot imposes only small and quite reasonable risks to people on the ground, since crashes are extremely rare. Nevertheless, the pilot imposes some risks to people below while they impose no similar risks upon him. If reciprocity is a moral test of liability, then strict liability should be imposed upon the pilot, and such liability would be commensurate with justice reasoning.
- plans is that the employer is held liable without fault because he can pass on the costs of employee injury to the public who buys his product or services. In this view, the employer is not himself ultimately responsible for worker injuries; rather he is a conduit for a semi-public liability.
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Chapter 15. Scope of Liability (Proximate Cause) 133 results (showing 5 best matches)
- A prominent example of the fact that courts treat these interests as identical is found in the products liability rule that applies strict liability to physical harms of either person or property but does not apply it to stand-alone economic harm. See § 33.3.
- Similarly, when someone is injured by a product whose manufacturer negligently omitted safety devices, the manufacturer cannot automatically escape liability on the ground that the purchaser’s negligence in using the product without the safety device was a superseding cause.
- . Why is a defendant, whose negligent act has caused harm, allowed to avoid liability under the scope of liability rules? Courts and writers often Without such a limit, liability, they say, would go on forever, one harm leading endlessly to others. The negligently made vacuum requires a trip to the repair shop, which leads the user to an auto accident, which leads to medical attention, which leads to another injury, which leads to loss of a job, and so on, more or less without end. The argument is that the line against liability must be drawn somewhere and that the scope of liability or proximate cause rules reflect the effort courts make to draw that line.
- . The reasons for so-called proximate cause limitations on liability are principled as well as practical. Judgments about proximate cause are not precise, but, at least roughly speaking, they reflect the ideas of justice as well as practicality. In particular, the rules of proximate cause or scope of liability attempt to limit liability to the reasons for imposing liability in the first place. For instance, if the defendant is considered to be negligent only because it makes a vacuum cleaner that does not clean well, it should not be held liable when the purchaser is in an automobile accident while taking the cleaner to be repaired. The defendant in such a case negligently created a risk that the cleaner was not worth its price or that carpets would remain dirty. If the defendant is liable at all, those are the kinds of harms to which liability extends. But equally, the defendant’s liability should be limited to such harms, for those are the ones that led us to say the defendant was...
- Using no-duty or limited-duty rules to limit liability
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Chapter 32. Strict Liability for Animals and Abnormally Dangerous Activities 123 results (showing 5 best matches)
- It is difficult to reconcile all of the decisions, however. Materials such as gasoline, propane, and natural gas have explosive and flammable potential. In line with what has already been said, some authority supports strict liability when such items are stored or accumulated in unusual volume. Many decisions, however, have rejected such liability or applied a negligence standard in the case of explosions resulting from the storage of such materials. Likewise, strict liability has been rejected when such substances as propane or gas are used as fuel for vehicles, factories, or homes. And while the law of products liability may impose strict liability upon manufacturers of dangerous defective products, courts have almost always said that neither manufacturers of handguns nor manufacturers of especially destructive ammunition are strictly liable on an abnormal-danger theory.
- See King, supra n. 128, at 351 (less than half of premium dollars for liability insurance reach victims); Geistfeld, supra n. 127; David G. Owen, the Moral Foundations of Products Liability Law: Toward First Principles, 68 Notre Dame L. Rev. 427, 504 (1993).
- See Barron C. Ricketts, Annotation, Liability in Connection with Fire or Explosion Incident to Bulk Storage, Transportation, Delivery, Loading, or Unloading of Petroleum Products, 32 A.L.R.3d 1169 (1971).
- said to be entirely those fostered by the defendant’s activities. Even one who speaks for expanded strict liability might support the use of the contributory negligence defense, at least in the present world of comparative fault, and in the case of strict products liability, many courts have rejected the rule protecting plaintiffs from their own fault.
- See Woods-Leber v. Hyatt Hotels of Puerto Rico, Inc., 124 F.3d 47 (1st Cir. 1997) (rejecting statutory strict liability where hotel was invaded by a rabid mongoose which bit a sunbathing guest; there was no evidence of negligence); Overstreet v. Gibson Product Co. of Del Rio, 558 S.W.2d 58 (Tex. Civ. App. 1977) (no strict liability where rattlesnake is on premises but not harbored by defendant).
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Chapter 35. Apportionment of Liability among Parties 142 results (showing 5 best matches)
- For example, unless the plaintiff is chargeable with at least equal fault, Wisconsin retains joint and several liability in claims of strict product liability. See Fuchsgruber v. Custom Accessories, Inc., 244 Wis. 2d 758, 628 N.W.2d 833 (2001).
- E.g., Restatement (Third) of Torts: Apportionment of Liability § 14 (2000); Restatement (Third) of Torts: Products Liability § 16(b) (1998).
- Id. § 26; Restatement (Third) of Torts: Products Liability § 16 (1998).
- For a discussion of several forms of causal apportionment, see Chapter 14. For a discussion of causal apportionment in products liability, see Dobbs, Hayden & Bublick, The Law of Torts § 471 (2d ed. 2011 & Supp.).
- . The issue most often arises in the case law in terms of employers. Employers who provide workers’ compensation benefits to employees are generally immune to tort liability, so they are not liable in tort even if they negligently injure an employee. The injured employee is still free to sue others, such as product manufacturers who contribute to her harm. The question is whether the fault of such a defendant should be judged in comparison to the fault of the immune employer or whether the fault of the employer should be ignored. The fault of the product manufacturer or other defendant may be relatively small in comparison to that of the employer, but relatively large (or total) if the employer’s negligence cannot be considered. Where liability is several only, this issue can be critical. The Uniform Act treats the employer who pays workers’ compensation and who is immune under workers’ compensation laws as a released person, counting the employer’s responsibility in the total and...
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Index 242 results (showing 5 best matches)
- See also particular elements of the case such as DUTY; FACTUAL CAUSE and SCOPE OF LIABILITY (PROXIMATE CAUSE); and see also particular settings such as HOSPITALS, LANDOWNERS, LEGAL MALPRACTICE, MEDICAL MALPRACTICE, and PRODUCTS LIABILITY
- See also PRODUCTS LIABILITY; VICARIOUS LIABILITY
- products liability,
- products liability, 413, 835
- products liability, 816, 822, 824
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Chapter 37. Defamation 44 results (showing 5 best matches)
- A circumscribed form of strict liability, analogous to the strict liability of product manufacturers, might have been more justified as applied to defendants whose product is culture- and value-shaping communication, especially in light of the enormous power mass publishers wield. That was not the common law system, however, and the argument for such a system now is undercut to some degree by the capacity of individuals to reach wide audiences on the internet.
- internet service providers who facilitate the communication of internet messages by others are immune from liability for the content of those messages. Those who actually create defamatory content, however, are theoretically subject to liability for the defamation.
- In Blumenthal v. Drudge, 992 F.Supp. 44 (D. D.C. 1998), AOL hired Drudge to write gossip and made it available through its online service. AOL was held immune from liability for its defamatory content because AOL had not developed the material “itself.” When the service provider has some input into content based on the computer user’s interactive input, it may still be protected. See Carafano v. Metrosplash.com., Inc., 339 F.3d 1119, 1124 (9th Cir. 2003). In Donato v. Moldow, 374 N.J.Super. 475, 865 A.2d 711 (2005), the interactive computer service selectively deleted messages and thus affected the overall content, but again the immunity remained. HY Cite Corp. v. Badbusinessbureau.Com, LLC, 418 F.Supp. 2d 1142 (D. Ariz. 2005), rejected a motion to dismiss a claim against a website operator, seemingly in part because the plaintiff alleged that the operator solicited negative reports about the plaintiff’s products and business and might thus be shown to be responsible for the...
- . Except for the immunities of internet providers, the absolute privileges discussed above are relatively circumscribed. The qualified or conditional privileges, however, cover much ground. The common law imposed something like a prima facie strict liability in libel cases. If the plaintiff established that the defendant published defamatory material about the plaintiff, liability would follow without proof of any fault. That liability could be avoided only if the defendant was able to meet the burden of establishing an affirmative defense—truth or one of the privileges.
- Many people have been confused by the word restitution and some of them appear to believe that the measure of restitution is the same as the measure of damages. This may be true in the criminal cases where the offender can be required to “make restitution” to his victim. More generally, however, restitution refers to the defendant’s liability to disgorge gains he has made from wrongdoing. In that case, his liability is measured by his gain, not, as with damages, by the plaintiff’s loss. That makes restitution an attractive measure of liability when the defendant’s tort provides him extraordinary gain in excess of the plaintiff’s loss. The publisher of a book, for example, might make great profits from it, and if the book’s premise and theme defames the plaintiff, the plaintiff might conceivably prefer to recover the book’s profits rather than ordinary damages. The limited authority on such publisher’s liability, however, excludes restitutionary recovery
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Chapter 14. Actual Harm & Factual Cause 62 results (showing 5 best matches)
- . When it comes to products other than DES, courts have mixed views. Given the split among courts about the propriety of market share liability, the Restatement of Products and the Restatement of Liability for Physical Injury form of market share liability, a number of collateral rules about joinder and definition of the appropriate market have become important.
- Restatement Third of Torts (Products Liability) § 15 cmt. c (1998).
- Compare Thomas v. Mallett, 701 N.W.2d 523 (Wis. 2005) (market share liability of manufacturers of lead paint), with City of St. Louis v. Benjamin Moore & Co., 226 S.W.3d 110 (Mo. 2007) (disallowing nuisance claim against lead paint manufacturers because city could not identify which lead paint manufacturers’ products were used on which homes that required abatement of lead paint), and Bly v. Tri-Continental Indus., Inc., 663 A.2d 1232 (D.C. 1995) (different levels of benzene in petroleum products one reason to reject market share theory on the facts).
- See Green v. Alpharma, 284 S.W.3d 29 (Ark. 2008) (genuine issue of material fact whether exposure to arsenic-laced chicken litter from poultry producer caused child to contract leukemia); Merck & Co., Inc. v. Garza, 347 S.W.3d 256, Prod. Liab. Rep. (CCH) P 18692 (Tex. 2011) (in products liability suit alleging harm from prescription drug Vioxx, “when parties attempt to prove general causation using epidemiological evidence, a threshold requirement of reliability is that the evidence demonstrate a statistically significant doubling of the risk”; the plaintiff must also show that he or she is similar to the subjects in the studies, and that other plausible causes are excluded with reasonable certainty).
- . The chief reason to mention the scope of liability or proximate cause issue in a chapter on factual cause is that in judging factual cause issues, it is important to understand that a finding of factual causation does not determine liability. The plaintiff must not only prove negligence, harm and factual causation but also must persuade the judge and jury that liability is morally and practically justified under scope of liability doctrines. Whenever this point is forgotten, the tendency is to build moral and practical judgments into the factual cause question. Those judgments are important, but the law has separate places for them, namely, in the scope of liability issue. The factual cause question is difficult enough without importing difficulties from the scope of liability/proximate cause analysis.
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Chapter 36. Alternative Systems for Compensating Injury 40 results (showing 5 best matches)
- . When the employer causes harm while acting in some capacity other than an employer. For example, if the employer is a manufacturer and the employee is injured by the employer’s defective product, courts can think of the employer as having two roles or capacities, one as manufacturer of a product and one as employer. In this view, the employee can sue the employer in tort in its capacity as a product manufacturer. But since an employer’s negligent treatment of an on-the-job injury is itself covered by workers’ compensation, tort liability in such cases is generally rejected. But even these courts may nevertheless permit liability in “dual transaction” cases where the employer’s tort is in no way related to employment injury, as where the employer leases an apartment to an employee, who is injured when the apartment ceiling collapses.
- Compare A. Mitchell Polinsky & Steven Shavell, The Uneasy Market for Products Liability, 123 Harv. L. Rev. 1437 (2000) (suggesting that market forces and regulation can reduce the need for product liability law to encourage safety), and Stephen D. Sugarman, Doing Away with Tort Law, 73 Cal. L. Rev. 556 (1985), with William M. Landes & Richard A. Posner, The Economic Structure of Tort Law (1987), Guido Calabresi, The Cost of Accidents: A Legal and Economic Analysis (1970), and Gary T. Schwartz, Reality in the Economic Analysis of Tort Law: Does the Tort Law Really Deter?, 42 UCLA L. Rev. 377 (1994).
- Excessive liability criticisms
- . The exclusive remedy provision does not bar the injured employee’s tort claim against third parties like manufacturers of defective products that contributed to the workplace harm. However, when a suit can be maintained against a third party, issues arise about the fair allocation of responsibility among third parties and the employer. In one situation, the tortfeasor, liable to the employee for an injury also covered by workers’ compensation, seeks contribution from the employer. A few courts require the employer to make contribution to the tortfeasor but never in excess of the employer’s workers’ compensation liability. The result is that the negligent employer pays the limited amount required as workers’ compensation while the third party in a joint and several liability system pays full tort liability. Where joint and several liability has been completely abolished, the tortfeasor will pay only his own comparative fault share. ...court reinstates joint and several liability for...
- See A. Mitchell Polinsky & Steven Shavell, The Uneasy Market for Products Liability, 123 Harv. L. Rev. 1437, 1469–70 (2010) (citing data suggesting injury victims receive 40 to 60 cents of every dollar paid for liability insurance); Joni Hersch & W. Kip Viscusi, Tort Liability Litigation Costs for Commercial Claims, 9 Am. L. & Econ. Rev. 330 (2007) (costs of defending claims were 18% of insurers’ total expenditures); Jeffery O’Connell, Why Economists and Philosophers Flunk Torts: With a Guide to Getting a Good Grade, 53 Emory L.J. 1349 (2004); Deborah H. Hensler et al., “Trends in Tort Litigation: The Story Behind the Statistics” in RAND Institute for Civil Justice, R-3583-ICJ (1987).
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Chapter 17. Assumption of the Risk 34 results (showing 5 best matches)
- . Products manufacturers and distributors cannot use disclaimers or exculpatory agreements to avoid liability for personal injury resulting from dangerous products. Public agencies like schools may not be allowed to condition a student’s participation rights on a general release of all liability for negligence. could not contractually avoid liability for their own negligence. Although many courts have refused to extend this kind of thinking to nonessential recreational activity, a few have done so, holding that a release-in-advance will not absolve a recreation-provider from liability for its own negligence. to use the contract of employment to extract a release of liability for their own negligence.
- . Defendants assert express assumption of risk most commonly in negligence cases. Indeed, many states disallow releases that purport to go further and attempt to waive liability for grossly negligent, reckless, or intentional behavior. Other states have enforced releases to bar claims based on reckless or grossly negligent behavior, where the release clearly expressed the parties’ intention and was not the product of overreaching or grossly unequal bargaining power.
- See Martin County Coal Corp. v. Universal Underwriters Ins. Co., 727 F.3d 589 (6th Cir. 2013) (can’t contract away liability where liability rests on mine-safety statute); Hargis v. Baize, 168 S.W.3d 36 (Ky. 2005) (“A party cannot contract away liability for damages caused by that party’s failure to comply with a duty imposed by a safety statute.”); Finch v. Inspectech, LLC, 229 W.Va. 147, 727 S.E.2d 823 (2012) (home inspection statute). See also Marcinczyk v. State of N.J. Police Training Comm’n, 203 N.J. 586, 5 A.3d 785, 31 I.E.R. Cas. (BNA) 745 (2010) (training at county police academy).
- Some states accomplished this by statute. See, e.g., Patch v. Hillerich & Bradsby Co., 361 Mont. 241, 257 P.3d 383, Prod. Liab. Rep. (CCH) P 18669 (2011) (applying Mont. Code Ann. § 27–1–719(5)(a), which allows a product manufacturer to use assumption of risk as a complete defense if the “consumer of the product discovered the defect or the defect was open and obvious,” construing it to apply only when “the victim actually knew he or she would suffer serious injury or death,” a subjective standard of knowledge).
- . Statutory liability schemes may also influence the enforceability of releases. For example, a statute might set forth safety standards for a particular industry. If an exculpatory clause purports to release an industry member from liability for violating those standards, the clause will not be enforceable.
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Chapter 31. Vicarious Liability for Physical Harms 59 results (showing 5 best matches)
- Commentators have developed some other explanations. One is that deterrence is best achieved by imposing liability on the employer, who will then seek to avoid his own liability by exercising his considerable control over employees to discourage their torts. Economic thinkers have argued that enterprise liability—that is, the strict liability of business enterprises for harms perceived to be recurrently associated with their operation—is justified as economically efficient. By this they mean that such liability will tend to provide optimal deterrence of activities that are harmful. Others, argue that enterprise liability provides appropriate “insurance” against harms that are not worth preventing. The enterprise can raise prices or lower dividends and thus distribute ...one person bears the whole loss, the loss is not so disruptive. Perhaps more importantly, those subjected to risks of the enterprise are also those who share in the burdens and benefits of its liability. The consumer...
- Distinguishing vicarious liability from primary liability
- Tort law is assuredly imperfect, but it usually attempts to hold individuals accountable for their wrongs and only for their wrongs. Although pockets of strict liability exist, such liability is relatively rare. Consequently, vicarious liability under the doctrine of respondeat superior, which is strict in the sense that it holds an employer liable without the employer’s personal fault, seems to require some explanation.
- Vicarious liability is liability for the tort of another person. Such liability is an important exception to the usual rule that each person is accountable for his own legal fault, but in the absence of such fault is not responsible for the actions of others. The most common kind of vicarious liability is based upon the principle of respondeat superior.
- Role of fault in vicarious liability
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Chapter 34. Damages 24 results (showing 5 best matches)
- See, e.g., id. (concealment, cover-up by attempted burning of corporate records); Cynthia R. Mabry, Warning! The Manufacturer of this Product May Have Engaged in Cover-Ups, Lies, and Concealment: Making the Case for Limitless Punitive Awards in Product Liability Lawsuits, 73 Ind. L.J. 187, 216–34 (1997) (detailing Dalkon Shield, asbestos, tobacco and other cases).
- See Flint Hills Rural Elec. Coop. Ass’n v. Federated Rural Elec. Ins. Corp., 262 Kan. 512, 941 P.2d 374 (1997) (not permissible to insure against punitive liability for one’s own act, but permissible to insure against vicarious punitive liability).
- products that cause harm, for example) may suffice. The A.H. Robins Company marketed its Dalkon Shield IUD knowing it was dangerous to women and presumably hoping that profits would exceed liability. Punitive damages were of course appropriate.
- The theory is that the trier must know something about the defendant’s financial condition in order to inflict a liability that will have an appropriate sting. In the case of personal ill-will or evil disposition as where the defendant beats or rapes another person, the defendant’s financial condition is obviously of some relevance, since a small punitive award against a very wealthy person may have little effect while a large award against a person with little wealth might fail to deter if all the defendant’s assets are exhausted so that he has nothing left to lose. On the other hand, when a tort is committed by income-producing activity—by deliberately selling dangerous products, for example—profitability of the tortious activity is probably more significant for deterrence than wealth.
- . Punitive damages raise unique problems. Sometimes they resemble criminal fines, sometimes civil damages. For instance, vicarious liability of an employer for punitive damages may be allowed, but only in the case of management complicity in or ratification of the actor’s misconduct, although a few courts apply ordinary vicarious liability rules to hold the employer punitively liable. Likewise, some authorities hold that liability insurers may cover punitive damages
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Chapter 18. Statutes of Limitation and Federal Preemption 19 results (showing 5 best matches)
- E.g., Conn. Gen. Stat. § 52–577a (10 years from date defendant parted with possession of the product); 735 Ill. Comp. Stat. 5/13–213(b) (12 years from first sale or 10 years from sale to first purchaser, whichever is shorter, in strict product liability actions), held unconstitutional as not severable in Best v. Taylor Mach. Works, 179 Ill.2d 367, 689 N.E.2d 1057 (1997).
- See Francis E. McGovern, The Variety, Policy and Constitutionality of Product Liability Statutes of Repose, 30 Am. U. L. Rev. 579, 600 ff. (1981).
- For a succinct description and analysis of federal preemption, see David G. Owen, Products Liability Law § 14.4 (2d ed. 2008).
- See Blazevska v. Raytheon Aircraft Co., 522 F.3d 948 (9th Cir. 2008) (18-year statute of repose of the General Aviation Revitalization Act of 1994 bars products liability claims by survivors of passengers killed in airplane crash); Land v. Yamaha Motor Corp., 272 F.3d 514 (7th Cir. 2001) (boat known to be dangerous by its manufacturer exploded more than ten years after delivery to consumer, ten year repose statute barred claim; the claim was not resuscitated by a post-sale failure to warn).
- . Federal statutes are sometimes construed to preempt or displace state law, including state tort law. For instance, federal statutes can specify the warnings to be placed upon poisons or dangerous substances like tobacco products. At the same time, the federal statute may preempt tort law so that if the defendant who sells poisons prints the warning prescribed by the federal statute, state courts, even though they believe the warning is dangerously inadequate, cannot impose tort liability.
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Chapter 21. Liability of Health Care Providers 68 results (showing 5 best matches)
- See 2 Dobbs, Hayden & Bublick, The Law of Torts § 463 (2d ed. 2011 & Supp.) (excluding expert testimony in products liability cases).
- See, e.g., Vaughn v. Mississippi Baptist Medical Center, 20 So.3d 645 (Miss. 2009) (recognizing a general rule against nurse testimony on causation). Cf. Williams v. Eight Judicial Dist. Court of State, ex rel. County of Clark, 262 P.3d 360 (Nev. 2011) (nurse not competent to give causation testimony in products liability case against drug manufacturer).
- Nursing homes’ vicarious liability for intentional abuse by staff
- See Institute of Medicine, To Err is Human: Building a Safer Healthy System (2000); American Law Institute, Reporter’s Study of Enterprise Liability (1991) (proposing to eliminate individual doctors’ liability in favor of hospital liability).
- The rule is also at odds with the rule in products liability cases. In those cases, courts hold that when a manufacturer fails to give a warning or other information, they will presume that the victim would have read and acted upon the information.
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Table of Cases 27 results (showing 5 best matches)
- FEMA Trailer Formaldehyde Products Liability Litigation (Mississippi Plaintiffs), In re.................................... 552
- Levaquin Products Liability Litigation, In re........................................................... 833
- Medtronic, Inc., Sprint Fidelis Leads Products Liability Litigation, In re..... 846
- Anglado v. Leaf River Forest Products, Inc......................................................... 743
- Barry v. Quality Steel Products, Inc..... 376, 377
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Chapter 16. Fault of the Plaintiff 64 results (showing 5 best matches)
- Prosser and Keeton on Torts § 65 at 453–54 (5th ed. 1984). Arguing contra, Richard A. Epstein, Plaintiff’s Conduct in Products Liability Actions: Comparative Negligence, Automatic Division and Multiple Parties, 45 J. Air L. & Com. 87 (1979).
- Ark. Code Ann. § 27–37–703(a)(1) (“The failure of an occupant to wear a properly adjusted and fastened seat belt shall not be admissible into evidence in a civil action,” but allowing the defense in some products liability cases).
- Compare Michael D. Green, The Unanticipated Ripples of Comparative Negligence: Superseding Cause in Products Liability and Beyond, 53 S.C. L. Rev. 1103 (2002); with Paul T. Hayden, Butterfield Rides Again: Plaintiff’s Negligence as a Superseding or Sole Proximate Cause in Systems of Pure Comparative Responsibility, 33 Loyola L.A. L. Rev. 887 (2000).
- and some even relieve adults of liability to a child when the adult negligently fails to utilize child restraint systems. and some states allow evidence of seatbelt non-use in products liability actions.
- See Rougeau v. Hyundai Motor Am., 805 So.2d 147 (La. 2002) (adopting a version of the Mississippi rule: “Such evidence is only admissible in a product liability action if: (1) it has probative value for some purpose other than as evidence of negligence, such as to show that the overall design, or a particular component of the vehicle, was not defective; (2) its probative value is not outweighed by its prejudicial effect or barred by some other rule of evidence; and (3) appropriate limiting instructions are given to the jury, barring the consideration of seat belt non-usage as evidence of comparative negligence or to mitigate damages”).
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Chapter 44. Economic Harm to Intangible Interests by Conversion or Spoliation 14 results (showing 5 best matches)
- Indemnity Ins. Co. of N. Am. v. American Aviation, Inc., 891 So.2d 532 (Fla. 2004) (“Intentional tort claims such as fraud, conversion, intentional interference, civil theft, abuse of process, and other torts requiring proof of intent generally remain viable either in the products liability context or if the parties are in privity of contract.”), , Tiara Condominium Ass’n v. Marsh & McLennan Companies, Inc., 110 So.3d 399 (Fla. 2013) (economic loss rule applies only in products context).
- Liability for negligent interference with the plaintiff’s lawsuit prospects is perhaps even more problematical than liability for intentional interference. As with intentional interference, courts are likely to label damages speculative because of uncertainty whether the lost evidence would in fact have produced a winning case for the plaintiff or even whether it would have helped the plaintiff at all.
- If the plaintiff destroys evidence, such as a product manufactured by the defendant and claimed to be defective, the court might conceivably even dismiss the plaintiff’s claim altogether.
- Contracts between the parties potentially affect liability for conversion of economic interests in two major ways, one of which favors defendants and one of which favors plaintiffs.
- Liability based on transfer of a fund by bookkeeping (or computer) entry is consonant with commercial practice that treats such entries as an effective transfer, and consonant as well with the protection given to account transfers and the like under constructive trust and other equitable rules.
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Chapter 42. Interference with Contract and Economic Interests 45 results (showing 5 best matches)
- See Manufacturing Research Corp. v. Greenlee Tool Co., 693 F.2d 1037 (11th Cir. 1982) (identifying false statements “calculated to diminish the market” for the plaintiff’s product as improper means without asserting that the false statements qualified as disparagement/injurious falsehood, defamation or misrepresentation). : If the false statement is protected by a rule of the specific tort, many cases have held that the statement cannot form a basis for liability under an interference with contract or prospects theory. See § 42.2.
- See 2 Harper, James & Gray, The Law of Torts § 6.10 (3d ed. 2006 (with Supps.)); but cf. Flagstaff Affordable Housing Ltd. P’ship v. Design Alliance, Inc., 223 P.3d 664 (Ariz. 2010) (seemingly doubting the generality of the stranger version of the economic loss rule and suggesting that the cases against liability are best explained as products of rules internal to particular torts).
- Contemporary rejection or limitation of motive-based liability
- Historical liability for improper motive or purpose
- . Courts have extended liability for interference with economic opportunity to some but not all noncommercial opportunities. Liability is sometimes imposed for interference with a reasonably expected gift or inheritance and for interference with a good opportunity to recover in a lawsuit. Even so, in the few decisions on point, courts have been loath to permit recovery for interference with elections and sporting events that do not involve some specific tort. They have also tended to reject liability for spoliation of evidence which affects the plaintiff’s opportunity to prevail in a lawsuit against someone else.
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Chapter 46. Unfair Competition: Trademarks, Trade Secrets and Publicity Rights 45 results (showing 5 best matches)
- Product design
- This means that competitors can copy any feature of a product’s design that is functional and not protected by patent. general idea is that a feature is functional if it makes the product more workable, useful, or efficient than reasonable alternatives, or if it affects the quality or cost of the product. For example, the first automobile might have had a distinctive appearance, “but if its distinctiveness was due to the fact that it had an engine in front instead of horses, and a crank, radiator grill, and steering wheel, the producer would not be able to claim that this combination of functional features constituted trade dress; for that would give him a monopoly of the production of automobiles, and trademark law is not intended to confer product monopolies.” The fact that the product’s feature was once patented is strong evidence that, although the patent has expired, the feature remains functional. ...product might even have aesthetically functional features, features that...
- will be used here to stand for all identifiers of goods, including trade names. In the original passing-off or unfair-competition cases, courts tended to make liability turn on the defendant’s wrongful conduct such as intentional deceit. Non-trademark uses, as where the plaintiff’s product is named by reference to its trademark in comparative advertising or otherwise, is not ordinarily an infringement.
- advantage of a breach of confidence or commit an independent tort to do so. In particular, he is free to analyze or reverse-engineer the plaintiff’s products and to acquire the secret in that manner if he can. These rules reflect disadvantages of trade secret ownership compared to patents. They also reflect the fact that trade secrets are property protected by tort law mainly in the limited sense that tort law will impose liability for breach of confidence or some independent tort.
- American Italian Pasta Co. v. New World Pasta Co., 371 F.3d 387 (8th Cir. 2004) (“Puffery exists in two general forms: (1) exaggerated statements of bluster or boast upon which no reasonable consumer would rely; and (2) vague or highly subjective claims of product superiority, including bald assertions of superiority.”); Pizza Hut, Inc. v. Papa John’s Intern., Inc., 227 F.3d 489 (5th Cir. 2000) (“Bald assertions of superiority or general statements of opinion cannot form the basis of Lanham Act liability.”).
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Chapter 24. Professional Risk-Takers 17 results (showing 5 best matches)
- . The firefighters’ rule was originally a product of and justified by the premises liability rules. Under the premises liability rules, the injured firefighter could recover in several specific kinds of cases—when the landowner is guilty of active negligence, as distinguished from unsafe conditions of the property itself,
- may find themselves barred from recovery for foreseeable job-related hazards by some version of assumed risk or no-duty reasoning. Similarly, manufacturers of defective or negligently made or designed products are normally responsible for the harms inflicted by those products. When the product causes a fire or makes it worse, however, several courts have held that the firefighters’ rule bars recovery by the injured firefighter.
- . The contours of the exceptions in which liability of the employer as well as the independent contractor is recognized vary in different jurisdictions. The Restatement Third hinges direct liability for work entrusted to an independent contractor on retained control. The Restatement also retains vicarious liability for those who hire independent contractors in eight situations, which include work involving abnormally dangerous activities,
- . An arrangement under which the contractor assumes the risks of dangers inherent in a job might conceivably affect rights of or against third persons. If the contractor in control of the dangerous instrument makes repairs negligently, or fails to make them, or fails to warn those who are in danger, with resulting injury to some third person, the contractor is subject to liability to the injured person. But in at least some cases, the employer who reasonably relies upon the contractor for safety can escape liability to the victim. The limited liability of the employer is often at issue when the contractor’s
- For a collection of the landowners’ cases, see Larry D. Scheafer, Annotation, Liability of Owner or Occupant of Premises to Fireman Coming Thereon in Discharge of His Duty, 11 A.L.R.4th 597 (1981); Richard C. Tinney, Annotation, Liability of Owner or Occupant of Premises to Police Officer Coming Thereon in Discharge of Officer’s Duty, 30 A.L.R.4th 81 (1981).
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Chapter 43. Misrepresentation and Falsehoods 70 results (showing 5 best matches)
- E.g., Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 657 A.2d 212 (1995) (although comparative fault statute covered only personal injury and property damages, court would use comparative fault approach to the plaintiff’s contributory fault in negligent misrepresentation case); ESCA Corp. v. KPMG Peat Marwick, 135 Wash.2d 820, 959 P.2d 651 (1998) (similar). Sonja Larsen, Annotation, Applicability of Comparative Negligence Doctrine to Actions Based on Negligent Misrepresentation, 22 A.L.R.5th 464 (1995). Traditionally, contributory negligence had no role in strict liability claims, but that has changed in products liability suits for injury and property damage. See 2 Dobbs, Hayden & Bublick, The Law of Torts § 470 (2d ed. 2011 & Supp.). Unless the rule of strict liability for misrepresentations is intended to protect the negligent plaintiff from her own fault, comparative negligence seems as appropriate in innocent as in negligent misrepresentation cases. Comparative...
- . Third-party insurance cases are best illustrated by the ordinary liability insurance claim. The insurer insures the insured against liability to others, who are third parties. The insurer then owes the insured a duty to defend if the insured is sued by someone claiming a tort covered by the policy. It also owes the insured the duty to pay any legal liability up to the policy limits. The third-party insurance cases recognize that an insurer’s breach of contract obligation to its insured will be a tort under certain circumstances. The tort is usually characterized as a “bad faith” breach of the insurer’s duty to fairly secure the benefits of the policy to its insured. The liability insurer
- . The law of injurious falsehood applies to derogatory publications about the plaintiff’s economic or commercial interests that diminish those interests or their value. For example, a false statement communicated to others asserting that the plaintiff’s product is inferior may cause loss of sales. Courts and lawyers often call injurious falsehood by more specific names like commercial disparagement or trade libel when the defendant disparages a product, pecuniary interests may qualify even if they are not about the property, product or services offered by the plaintiff.
- Liability for negligent misrepresentation
- do not qualify as representations of fact. Puffery, exaggerated and vague statements such as those praising a product as “first class” or asserting that a given product will last a lifetime, is one particular form of the opinion or prediction statement. The rules against recovery for opinion, puffery, or predictions turn on the courts’ characterization of the representation and may apply whether or not the defendant himself purports to be offering opinion.
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Chapter 23. Family Members and Charities 18 results (showing 5 best matches)
- . Courts gave different reasons, or combinations of reasons, for the immunity. They said variously that liability would divert trust funds for purposes inconsistent with the charity and its donor’s intent; that ordinary rules of vicarious liability should not apply to impose liability for the acts of employees; that beneficiaries of a charity should not recover from it because they must waive their claims or assume the risk of negligence; and that donations to charities should not be discouraged by imposing liability for fault; and that liabilities might terminate a charity’s good works.
- Mass. Gen. Laws ch. 231, § 85V (immunity from negligence liability for volunteer coaches, umpires, referees and others); Ga. Code Ann. § 51–1–20.1 (immunity from negligence liability for volunteers to sports or safety programs of a non-profit unless insurance coverage is available); 745 Ill. Comp. Stat. § 80/1 (volunteers who coach or umpire in non-profit sports programs; standard of care lowered so that no liability is imposed unless conduct falls “substantially below” standard).
- . General principles of tort law hold that each person is responsible for the harm he negligently causes. He is not relieved of liability for negligence merely because on other occasions he has behaved with charity and generosity towards others. From time to time, however, courts or legislatures appear to forget these principles and relieve certain defendants of liability for negligently caused harm on the ground that, although their conduct was negligent, the injury was inflicted in the course of kindness or charity. For example, guest statutes once relieved the negligent automobile driver of all liability to his guest. The guest was expected to be so grateful for the ride that the little matter of negligent injury should be forgotten.
- Effect of parental liability on the child’s recovery from other tortfeasors
- In 1997, Congress enacted a volunteer protection statute that eliminates most potential liability of volunteers for “nonprofit” organizations unless the volunteer is willfully or grossly negligent. The term nonprofit may include a number of organizations such as the Chamber of Commerce that would not necessarily have been regarded as charitable. As broad as this shield is, however, liability remains for most ordinary motor vehicle negligence and for willful misconduct or gross negligence. The statute is thus one of a number that come under the general heading of “tort reform,” aimed at overall reduction in liabilities. Although the statute preempts state law, states are permitted to opt out of the statute under certain circumstances.
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Chapter 22. Liability of Government Entities, Officers and Employees 89 results (showing 5 best matches)
- This means, for example, that if a private person would be immune under state law for the same actions, the government will be as well. See In re FEMA Trailer Formaldehyde Products Liability Litigation (Mississippi Plaintiffs), 668 F.3d 281 (5th Cir. 2012) (because Mississippi and Alabama “emergency statutes” immunize private persons who voluntarily and without compensation allow their property or premises to be used as shelter in a natural disaster, the federal government’s voluntary provision of emergency housing units to hurricane victims was also immunized conduct under the FTCA).
- Cases for no liability—exceptions to the waiver of immunity
- Cases for liability
- Not infrequently, the pattern of retained immunity or excluded liability is much like that in the FTCA. For instance, statutes may exclude liability for intentional torts like assault, battery, and false imprisonment No summary can capture all the exceptions, some of which are quite narrow. Several states, for example, exempt the state from liability for certain injuries resulting from snow and ice conditions. Some specific immunities may be waived to the extent that the public entity is covered by liability insurance.
- Although the arguments do not seem broad enough to support a public duty rule, they rightly point to particular instances in which liability is inappropriate. For instance, if an officer must choose when to arrest a dangerous person, appropriate caution may counsel delay. If so, he cannot be found negligent. In the same way, a busy precinct may have no officers to spare for the protection of every person within its jurisdiction. If not, it cannot be found negligent. Ordinary negligence rules appropriately exclude liability in such cases, but they leave open the possibility of liability when police officers unprofessionally shirk their duty and when administrative bumbling sends officers to the wrong place. The public duty doctrine, in contrast, excludes liability in all cases in which agencies fail to enforce or obey a statutory directive that is deemed to create a duty to the public at large.
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Chapter 45. Legal Malpractice 22 results (showing 5 best matches)
- See Warren v. Williams, 313 Ill.App.3d 450, 730 N.E.2d 512, 246 Ill.Dec. 487 (2000) (city attorney who entered an appearance for a police officer who knew nothing of the suit created an attorney-client relationship with the officer); Togstad v. Vesely, Otto, Miller & Keefe, 291 N.W.2d 686 (Minn. 1980) (consultation about a potential medical malpractice claim; seeking and receiving advice when reasonable person would rely upon it is enough); Edmonds v. Williamson, 13 So.3d 1283 (Miss. 2009) (husband of injured party in products liability case neither signed a retainer nor paid a fee, but accepted lawyer’s services, forming client-lawyer relationship).
- Minn-Kota Ag Products, Inc. v. Carlson, 684 N.W.2d 60 (N.D. 2004).
- § 45.7 Liability to Non-clients
- § 45.7 Liability to Non-Clients
- A lawyer is not immune from liability for malicious prosecution or abuse of process, however. Finally a lawyer may owe fiduciary duties to non-clients, with resulting liability for breach.
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Chapter 27. Prenatal and Birth-Related Injury 19 results (showing 5 best matches)
- . A number of substances in the environment or in products may cause fetal harm. Lead is famously dangerous to a developing fetus as well as to children. In such a case, if exposure is demonstrated and harm results, liability may be established.
- See James A. Henderson & Theodore Eisenberg, The Quiet Revolution in Products Liability: An Empirical Study of Legal Change, 37 UCLA L. Rev. 479 (1990). Professor Boston proposed a demanding standard for mass tort cases, less for individualized injuries. Gerald W. Boston, A Mass-Exposure Model of Toxic Causation: the Content of Scientific Proof and the Regulatory Experience, 18 Colum. J. Envtl. L. 181 (1993).
- The argument against liability seems most significantly addressed to cases involving the mother’s use of substances that could harm the fetus. Liability in substance abuse cases, which could include excessive consumption of coffee or use of tobacco, might conflict with the mother’s right of autonomy, bodily integrity, and privacy. Where mother’s ingestion is involved, it is plausible to argue that the mother’s legal, but dangerous, activities like smoking would entail too much of an intrusion on autonomy. A Texas court has rejected any duty by a pregnant woman that would impose liability for illegal ingestion of cocaine during pregnancy. So far one substance-ingestion case actually recognized a potential liability, but it did not discuss the central issue of the mother’s own rights, and its authority is clouded by later decisions. ...obviously apply to auto cases, at least one court thought that even a rule permitting the liability of a mother to a child born injured because of the...
- Product and Environmental Injuries to Fetus
- Namislo v. Akzo Chems., Inc., 620 So.2d 573 (Ala. 1993); Snyder v. Michael’s Stores, Inc., 16 Cal.4th 991, 945 P.2d 781, 68 Cal.Rptr.2d 476 (1997); Pizza Hut of Am., Inc. v. Keefe, 900 P.2d 97 (Colo. 1995); Hitachi Chem. Electro-Products, Inc. v. Burley, 219 Ga.App. 675, 466 S.E.2d 867 (1995). See also Meyer v. Burger King Corp., 26 P.3d 925 (Wash. 2001).
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Chapter 7. Defenses to Intentional Torts 38 results (showing 5 best matches)
- Limits of the privilege: liability for actual harm
- In contrast to the privilege of private necessity, the public necessity privilege is complete because it protects against liability for actual harm inflicted and not merely against liability for technical trespass.
- Whether the case is regarded as an intentional tort with a privilege defense, a negligence case, or a strict liability case, the most important consideration is whether the court perceives the dog (or other condition) as a trap or as a product of willful behavior.
- is clear about the defendant’s liability on the facts, but uncertain about the defendant’s potential liability to an actual burglar.
- In most cases, physical injury betokens a breach of the peace and in any event it is plausible to say that the owner who wishes to use self-help must accept liability for any actual injuries, intended or not. If he wishes to avoid that risk, he must resort to judicial process. So when the wrongful occupant is actually injured, liability is relatively easy to justify.
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Chapter 26. Duty to Protect from Third Persons and from Self-Harm 89 results (showing 5 best matches)
- Scope of liability or proximate cause
- The modified regulatory statutes are now often called Dram Shop statutes, too. Where a true Dram Shop statute has been enacted, the statute is sometimes read to exclude the development of common law liability, Most legislation passed in response to the decisions is restrictive. In particular, a number of statutes limit or abolish liability of social hosts, or abolish their liability to the adult drinker himself. Some impose evidentiary restrictions, limiting liability to cases in which the adult drinker was visibly intoxicated, for example. Others go beyond that, limiting liability to specific situations The California statute abolishes all liability of alcohol providers except those who furnish alcohol to an obviously intoxicated minor.
- Compare Ferreira v. Strack, 652 A.2d 965 (R.I. 1995) (no liability to third person) Martin v. Marciano, 871 A.2d 911 (R.I. 2005) (liability to minor guest injured through another guest’s intoxicated attack); and Reynolds v. Hicks, 134 Wash.2d 491, 951 P.2d 761(1998) (no liability to third person) Hansen v. Friend, 118 Wash.2d 476, 824 P.2d 483 (1992) (liability for wrongful death of minor resulting from provision of alcohol by social host).
- As in most other negligence cases, liability is imposed only if the defendant’s negligent conduct caused the harm complained of. And of course the duty imposed under these rules is only a duty of reasonable care, so liability does not follow unless the school breached its duty. If the harm was not reasonably foreseeable, or if the school took reasonable precautions in the light of foreseeable harm, it simply is not negligent and liability cannot be imposed.
- . The second kind of statute was known as a Dram Shop or Civil Damage Act. These statutes, originally enacted in only a small number of states, did not merely regulate the sale of alcohol. Instead, they provided expressly for civil liability of alcohol providers. Dram shop statutes sometimes imposed strict liability upon the provider (and sometimes upon the lessor of the premises where alcohol was sold as well). On the other hand, liability in such cases might be limited to a rather small Contemporary statutes imposing liability may also impose specific limits and may provide the exclusive remedy, barring any common law claim.
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Chapter 4. Direct and Intentional Interference with the Person 65 results (showing 5 best matches)
- Relevance of recklessness in determining liability
- . The Restatement Second recognized these rules but fragmented the principle of extended liability by building extended liability into the definition of each separate tort. The Restatement Third addresses extended liability in a single provision. Traditional discussion and the Restatement Third express the extended liability doctrine as a result of “transferred intent:” the defendant’s intent to harm A is transferred to B, for example. The “transferred” intent expression is merely a metaphor. It may be more accurate to state the rule as an extended liability rule by saying that the defendant, who acts in such a way that the intended injury would be actionable, is liable for all direct consequences even though they are not intended.
- It is possible to think of liability in excess of moral fault as a species of strict or absolute liability. In Manning v. Grimsley, 643 F.2d 20 (1st Cir. 1981), the court regarded the transferred intent rules as imposing absolute liability, although the court also thought that to be justified.
- Umbrella liability for intentional physical harm
- The strict liability arguments
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Chapter 3. Tort Law in Practice 26 results (showing 5 best matches)
- . Liability insurance protects the insured against tort liability by paying the insured’s tort victims. Liability insurance is not health or accident insurance; it pays only when the insured is legally liable to pay because of his tort. Once a claim covered by the policy is asserted against the insured, the liability insurer is obliged to defend the claim and to pay any judgment rendered against the insured, subject to the limits of the policy.
- Insurance affecting decisions on liability?
- Ironically, expanded liability tends to drive up insurance costs, which in turn may lead some people to reduce or eliminate their insurance, thus reducing the funds available to make compensation. Alternatively, increased insurance costs have led some groups to seek exemption from tort liability or at least a limitation on the amount of damages they must pay. As this pressure increases, some courts seem inclined to restrict liability in order to protect those funds from excessive demands, resulting in less overall compensation for injury.
- Excuses generally do not defeat tort liability
- Defeating liability on other grounds
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Chapter 5. Intentional Interference with Real Property: Trespass to Land 29 results (showing 5 best matches)
- A third kind of case that might impose strict liability for trespass to land involves harms to land caused by the defendant’s use of explosives or other high energy sources, as where the defendant’s blasting with dynamite throws stones or debris onto the plaintiff’s land. Strict liability was once imposed in such cases, sometimes on a trespass theory. Strict liability is still imposed on the same facts, but the cases are no longer Liability is strict whether the resulting harm is a trespass to land or an injury to the person. The result is that trespass itself generates little or no strict liability.
- Strict liability for trespass
- A second possible case of theoretical strict liability occurs if the trespasser exploits the land or its resources in the innocent and reasonable belief that he is entitled to do so. But in that case the trespasser himself has made a gain from the trespass and liability for that enrichment derived from another’s property is appropriate, quite apart from tort law and regardless of his innocence.
- The most significant possibility for strict liability based on trespass (as distinct from that based on grounds of abnormally dangerous activity) arises under the extended liability rule discussed in § 58.
- Removal of lateral or subjacent support subjects the defendant to strict liability as well as to liability for negligence. See Restatement Second of Torts §§ 817 to 821 (1979).
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Chapter 6. Intentional Interference with Tangible Personal Property: Trespass to Chattels and Conversion 28 results (showing 5 best matches)
- As already indicated, even a minor trespass may warrant liability for conversion if, in the course of the trespass, substantial though unintended harm results to the chattel. This rule is a manifestation of the extended liability rule seen in other intentional torts such as trespass to land and battery.
- See Restatement Third of Torts (Liability for Physical and Emotional Harm) § 5(2) (2010) (“An actor who intentionally causes physical harm is subject to liability for that harm.”).
- the duties owed. Two other kinds of contract provisions that might affect liability are quite different, because they do not limit the duty owed or deny its breach. The first limits liability by limiting the damages recoverable; the second attempts to exculpate the bailee entirely by providing he is not liable even for his tortious acts. Cases and statutes usually support agreements that merely limit the amount of the bailee’s liability, where such clauses are properly presented and unambiguous. Exculpatory clauses are viewed less charitably. Courts have often thought that clauses completely exempting the bailees for hire from all liability are void or ineffective to relieve the bailee and certain others from liability in tort.
- Coyne’s & Co., Inc. v. Enesco, LLC, 565 F.Supp. 2d 1027 (D.Minn. 2008); Pestco, Inc. v. Associated Products, Inc., 880 A.2d 700 (Pa. Super. 2005).
- § 6.1 Development of Liability for Interference with Chattels
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Chapter 25. Limiting Liability for Non-Action 56 results (showing 5 best matches)
- Restatement Second of Torts § 314, Illus. 1 (1965). See also Restatement Third of Torts (Liability for Physical and Emotional Harm) § 37 & 38 (2010) (covering the same ground, also making it clear that the defendant does not escape liability if he has himself created a risk of physical harm).
- Restatement Third of Torts (Liability for Physical and Emotional Harm) § 37, cmt. i (2010) (suggesting that special considerations involved with public entity defendants might sometimes trump the rules of liability based on undertakings).
- . All states have adopted one or more “good Samaritan” statutes, which typically immunize particular classes of people against negligence liability for offering assistance in specified kinds of emergencies; most commonly, these apply to medical personnel. A good number of states, however—over a dozen—extend this protection to “all persons,” usually protecting them from negligence liability for providing emergency assistance at the scene of an accident, as long as they have not received payment for their assistance. The purpose of these statutes is to encourage people to provide emergency care or services without fear of negligence liability. Liability under these statutes follows only where the rescuer acts in a grossly negligent way, or as some statutes have it, willfully or wantonly. These statutes have been held to immunize lay people who negligently assisted plaintiffs in need of rescue;
- If reasonable care requires it, he must act affirmatively to minimize the harm he has innocently caused and he is subject to liability for any additional harm caused by his failure to do so. The defendant is subject to liability for the entire harm done if he was negligent in the first place; but even if he acted innocently in causing the initial harm, he is subject to liability for the added harm he could have avoided by taking reasonable steps.
- he is subject to liability for that harm. In that case, whether he has undertaken or promised something to a third person is entirely irrelevant; what is relevant is that he did something and did it negligently. The problem addressed in this section is different. It concerns the defendant who, in his dealings with one person, can be perceived as having undertaken actions that will provide safety for a different person, but who has not begun performance of those actions and thus cannot be said to have been engaged in risk-creating conduct. The defendant promises to keep A’s brakes in good condition, but never lifts a finger to do so, with the foreseeable result that when A’s brakes fail, the others with whom the defendant has not dealt at all are injured. In this third-party nonperformance situation, courts once rejected all liability on the grounds that the plaintiff was not in privity with the defendant ..., modern tort law makes room for negligence liability under a series of rules...
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Chapter 38. Privacy 20 results (showing 5 best matches)
- . Because the basic nature of the tort is intrusion, liability does not turn upon publication of any kind. For that reason, liability for intrusion alone would not ordinarily raise free speech considerations that may concern other forms of privacy invasion. In particular, an intrusion upon privacy is not justified by newsworthiness of material that may be gained.
- But the Restatement also characterizes the plaintiff’s right as one of property, perhaps as if to say that even an innocent taking of that property right in identity is actionable. Some authority might be read to support liability even if the defendant does not intend to appropriate the plaintiff’s identity or reap the benefits of her fame. A public figure may be mentioned in a work of fiction if her identity is not used to tout a product or imply her sponsorship and if the work is clearly not a factual report about the public figure. So fictional work involving Notre Dame and its mention of its president does not offend the rights of either the school or the individual, and even more clearly so if the work is one of criticism or satire.
- . Some cases that may be thought to support the Restatement’s broad liability are actually much narrower. Those cases impose liability for revelation of private facts when the defendant obtained the private information by wrongful means such as trespass, deceit, betrayal, or breach of confidence. A number of cases imposing liability can be justified on the ground that the published information was wrongfully obtained. In a former child prodigy turned into an obsessive recluse who valued privacy above all was the subject of a New Yorker profile that subjected him to merciless treatment. The court went off on a newsworthiness issue, but if the interviewer had gained entry into Sidis’ room and mind by deceit and breach of confidence, liability of the interviewer would have been entirely appropriate. Such cases need not turn on such subjective criteria as the shocking nature of the disclosure or the private quality of the facts. Liability would be appropriate because the information...
- However, the fact that information was wrongfully obtained does not automatically lead to liability where the defendant’s wrongdoing is deemed collateral. Desnick v. American Broad. Cos., Inc., 44 F.3d 1345 (7th Cir. 1994). As to liability for publishing information wrongfully obtained by another where the information is of public concern, see Bartnicki v. Vopper, 532 U.S. 514, 121 S.Ct. 1753, 149 L.Ed.2d 787 (2001).
- For example, in Hart v. Electronic Arts, Inc., 740 F.Supp.2d 658 (D.N.J. 2010), the defendant’s football video games may have used the plaintiff’s likeness, replicating actual games in which he played. The court thought such a use would not be commercial unless the likeness was used to increase sales of the games and also that a celebrity’s identity might serve dual purposes as newsworthy speech and also as speech designed to sell products, substantially complicating the newsworthy-commercial distinction.
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Chapter 10. Duty and the Ordinary Standard of Reasonable Care under the Circumstances 86 results (showing 5 best matches)
- . Finally, some authorities have suggested that tort liability will provide proper incentives to those “in charge” of the insane person to control his conduct. This point does not seem quite right. If one in charge is negligent in failing to control the insane person, he will be liable for his own negligence. If incentive is obtainable in the law of negligence, liability of the caretaker for his own negligence should be more effective than liability of the insane person himself. If the caretaker is not negligent but on the contrary has exercised optimum care to control the insane person, there is no reason to give him incentives to do more.
- Liability of children
- It is more frequently adopted in statutes to limit defendants’ liability. Such statutes include the now almost-extinct guest statutes, all of which may protect defendants from liability for ordinary negligence. “Gross negligence” is an important term in the Oil Pollution Act, and a significant amount of liability in the Gulf oil spill will turn on interpretation of the term.
- The Good Samaritan statutes relieve health care professionals of any responsibility for negligence in medical emergencies, generally imposing liability only for reckless or wanton misconduct. Similarly, statutes may limit the liability of public entities to cases of wanton misconduct. Some of the old guest statutes provided that the driver of an automobile was liable to a nonpaying guest only for gross negligence, but others limited liability to cases of willful, wanton, or reckless conduct.
- . In a sense, courts impose a kind of strict liability when they hold a person responsible for harms he did not have the mental capacity to avoid. A different approach would be to regard the mentally incompetent person as a force of nature, like lightning, and leave it to all other individuals to insure themselves or provide their own protection. Some civil law countries, in fact, have immunized the insane person from tort liability, at least in certain circumstances.
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Chapter 29. Emotional Harm 51 results (showing 5 best matches)
- Rationale for recognizing liability in assumed and independent duty cases
- Products warnings
- This rule went far beyond a duty to avoid severe emotional harm; it imposed liability for such minor misconduct as insulting or profane language. The special liability was somewhat peculiar and courts today might well conclude that liability for a carrier’s insult alone is no longer justified because more finely tuned rules now apply to all defendants. However, the liability of carriers and innkeepers probably played a role in developing a degree of responsibility for emotional harm.
- The plaintiff there was an ethical vegan, a person who refuses to ingest animal products as a matter of personal ethics. He was offered a job contingent on undergoing a TB test. Since the test would put substances in his body, he asked the manufacturer for assurance that it contained no such animal products and was told that it was “vegan friendly.” He accepted the test, then discovered that the manufacturer’s assurance was false. He claimed emotional harm and physical harms resulting from that emotional harm.
- . As the exceptions to the rule against liability accumulated, courts and lawyers gradually began to realize that the traditional rule against liability for emotional harm alone no longer accurately stated what courts were doing in fact. In a 1948 Supplement to the First Restatement of Torts, the American Law Institute for the first time recognized a separate tort for intentional infliction of emotional distress. The special rules and exceptional cases are now largely subsumed in this newly recognized tort.
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Chapter 39. Misusing Judicial Process 20 results (showing 5 best matches)
- . Almost everyone directly involved in litigation enjoys an absolute immunity from liability for communications made in the litigation or even in preparation for it lest the voices of the honest be stilled by fear of liability. Although in some states a witness retained as an expert is subject to liability for expert malpractice, this liability runs only to the party who retained him. Otherwise, witnesses are immune; even those who testify to a knowing falsehood avoid liability to those harmed by his testimony, either on the ground that perjury is not a tort or that the witness is absolutely immune.
- This result reflects the tendency of many courts to limit liability for conduct occurring after suit is brought but to permit liability for wrongfully bringing suit in the first place. For instance, although perjury is not ordinarily actionable, pre-litigation spoliation of evidence sometimes is. and are subject to liability.
- See Briscoe v. LaHue, 460 U.S. 325, 333, 103 S.Ct. 1108, 1114, 75 L.Ed.2d 96 (1983) (“A witness’s apprehension of subsequent damages liability might induce two forms of self-censorship. First, witnesses might be reluctant to come forward to testify. And once a witness is on the stand, his testimony might be distorted by the fear of subsequent liability.”).
- In the most common kind of case, the plaintiff is complaining because the defendant unjustifiedly instigated an earlier suit or criminal prosecution against the plaintiff, causing the plaintiff expense and perhaps loss of reputation. The injustice felt by one who has been wrongly prosecuted is clear enough. The chief policy against redress for such a victim is that prosecutions of the arguably guilty should not be discouraged by the threat that the complaining witness will be held liable in damages. Moreover, if a second court could impose liability for what was done in the first, then a third court could question the second, and a fourth could question the third. Much more substantially, litigation in the first court’s resolution of the issues represents the appropriate solution to the dispute. These policies translate into great caution about imposing liability upon those who instigate criminal or civil litigation or utilize the process of the courts.
- The policy of limiting liability of those involved in legal processes is expressed in two major ways. First, courts protect many actors in the legal process by recognizing privileges or immunities. Second, courts require the plaintiff who asserts harm resulting from litigation to prove a series of difficult elements to make out a prima facie case.
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Chapter 11. Importing Statutory Standards of Care: Negligence Per Se 42 results (showing 5 best matches)
- imposing strict liability and should spell out justifications for such selective strict liability or return to the fault principle.
- See, e.g., Gore v. People’s Sav. Bank, 235 Conn. 360, 665 A.2d 1341 (1995) (“defendant ordinarily may avoid liability upon proof of a valid excuse or justification”); Restatement Third of Torts (Liability for Physical and Emotional Harm) § 15 (2010).
- O’Donnell v. Elgin, J. & E. Ry., 338 U.S. 384, 70 S.Ct. 200, 94 L.Ed. 187 (1949) (under Federal Safety Appliance Act governing certain railroad safety equipment for workers, railroad’s reasonable care is irrelevant to liability); cf. Sanatass v. Consolidated Investing Co., 10 N.Y.3d 333, 887 N.E.2d 1125, 858 N.Y.S.2d 67 (2008) (liability for violation of state scaffold law referred to as strict liability).
- especially cogent consideration because the legislature might well have been willing to impose criminal liability, especially for a limited fine typical in many traffic ordinances, but not unlimited civil liability. And it might have been willing to impose liability when guilt is established beyond a reasonable doubt as required in some criminal cases, but not upon merely a preponderance of evidence, the standard in civil cases.
- . A court’s acceptance or rejection of a statutory standard necessarily reflects its attitudes about justice and policy. Courts refused for a long time to impose liability upon sellers of alcohol who sold in violation of statutory restrictions. They simply rejected the statutory standard as inappropriate. As public and judicial attitudes changed, courts began to adopt the statutory standards for liquor sellers and to impose tort liability for their violation when, for example, the seller provides alcohol to a minor or an intoxicated person who then causes harm as a result of the intoxication. There are many examples of statutes that are rejected as grounds for tort liability on very broad grounds of policy or attitude, including, for example, statutes that would, if utilized in tort litigation, impose liability upon governmental agencies or
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Chapter 30. Nuisance 31 results (showing 5 best matches)
- Contemporary cases say a nuisance is actionable only if the defendant creates the nuisance either by strict liability activity, by negligence, or by intentional interference with the plaintiff’s enjoyment interests. That being so, the law of private nuisance could be radically restated as liability for substantial and unreasonable interference with the plaintiff’s use and enjoyment of her land by negligent or intentional interference, or, more rarely, by strict liability activities.
- Strict liability
- Some public nuisance litigation raises issues of manufacturers’ liability for the societal costs of their products. For instance, in one case a number of counties sued manufacturers of over-the-counter cold medications containing pseudophedrine for the counties’ costs in dealing with the effects of the methamphetamine epidemic; the court denied the public nuisance claim in light of proximate cause considerations.
- See Erbrich Products Co., Inc. v. Wills, 509 N.E.2d 850 (Ind. App. 1987) (statutory version of coming-to-nuisance rule).
- Anglado v. Leaf River Forest Products, Inc., 716 So.2d 543 (Miss. 1998) (rejecting stigma damages where defendant did not produce the contaminating dioxin).
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Chapter 19. Expanded Duties of Care: Carriers, Innkeepers and Fiduciaries 17 results (showing 5 best matches)
- See, rejecting vicarious liability of the priests’ employers but imposing liability upon them for their own breach of fiduciary duty, Doe v. Liberatore, 478 F.Supp. 2d 742 (M.D. Pa. 2007); Moses v. Diocese of Colorado, 863 P.2d 310, 322 (Colo. 1993).
- The Warsaw Convention (now the Montreal Convention) provides for strict liability for accidents causing injury aboard an international air carrier, but only for approximately the first $135,000 in damages. Above that sum, carriers can avoid liability by proving that they were not negligent. See Edward C. Bresee, Jr., and Sirce Elliott, Recent Developments in Aviation Law, 71 J. Air L. & Com. 101, 170 (2006).
- . Courts have generally been reluctant to impose liability upon defendants for failing to protect the plaintiff from attacks by others. However, a defendant may owe a duty of care to protect the plaintiff from herself or others in several circumstances—when the defendant’s actions enhance the risk of Liability, however, is only imposed when the duty is breached by negligence of the carrier.
- . In a few cases, the innkeeper’s duty may be less than the duty to use reasonable care. Some jurisdictions may shield land occupiers, including innkeepers, from liability for negligent failure to clear natural accumulations of ice and snow,
- When a special relationship exists between the plaintiff and defendant, however, the parties are no longer strangers and the defendant owes a duty of care, which, if breached, can result in liability. The relationship of innkeeper and guest is such a special relationship, giving rise to a duty of care and to potential liability on the part of the innkeeper for attacks on the guest by others.
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Chapter 20. Premises Liability 68 results (showing 5 best matches)
- Giacona v. Tapley, 5 Ariz. App. 494, 428 P.2d 439 (1967) (five-year-old, liability recognized); Goodwin v. Jackson, 484 So.2d 1041 (Miss. 1986) (three-year-old, liability denied).
- Rush v. Plains Tp., 371 Pa. 117, 89 A.2d 200 (1952) (no liability); cf. Dehn v. S. Brand Coal & Oil Co., 241 Minn. 237, 63 N.W.2d 6 (1954) (similar facts but stronger evidence that landowner knew of fires, liability).
- On the whole topic, see Jean C. Love, Landlord’s Liability for Defective Premises: Caveat Lessee, Negligence, or Strict Liability?, 1975 Wis. L. Rev. 19.
- . Some of the statutes affirmatively provide that liability may be imposed when the landowner actually knows of a danger. However, other statutes make no such provision. Most do not directly recognize the common law distinctions between known and unknown dangers, between known and unknown users, or between natural and artificial conditions. Such statutes raise the possibility that the landowner would be immune from liability even when he fails to warn a known user who is about to encounter a known danger. It seems quite possible that such statutes would actually leave the permissive land user worse off than she would be under the contemporary liberal rules for liability to known or foreseeable trespassers.
- which could conceivably mean that the owner is not liable for an activity negligently carried on. Others, however, track the traditional premises liability rules in protecting against liability for conditions on the land but not necessarily protecting against liability for active negligence.
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Chapter 13. Proving Negligence Claims 19 results (showing 5 best matches)
- However, the probability of negligence is increased if the plaintiff can produce additional evidence that tends to exclude innocent, non-negligent causes of the injury. For instance, if the plaintiff shows that wear and tear and external harm to the defendant’s product are unlikely explanations of the product’s failure, the inference that the product was negligently made or defective is considerably strengthened and the jury may be allowed to draw the inference.
- Special liabilities of multiple defendants
- E.g., Branham v. Ford Motor Co., 390 S.C. 203, 701 S.E.2d 5 (2010) (the fact that a bicycle is not equipped with lights “does not create the inference that the bicycle is defective and unreasonably dangerous,” quoting). Res ipsa loquitur aside, this book does not use the term inference to describe ultimate evaluations of conduct or products like the conclusion that an actor is negligent.
- . The just basis for liability of a hospital or surgeon for injury to a patient that may have been caused by any one of the health care team is grounded in the idea that those who accept custody of a person who is unable to care for himself are implicitly accepting responsibility to guarantee care, or at least to provide information about the causes of harm inflicted. In a sense this is a kind of strict liability, but it is rooted in the implicit terms of the parties’ consensual arrangements.
- Darling v. J.B. Expedited Servs., Inc., 2006 WL 2238913 (M.D. Tenn. 2006); Restatement Third of Torts (Liability for Physical and Emotional Harm) § 8(a) (2010) (where reasonable minds can differ).
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Preface 1 result
- ...the first edition of this book in 2000 were immense, and certainly included changes in attitudes of judges and legislators. From the first volume of this hornbook in 2000 to the work today, changes have been more incremental, but also pervasive and important. For example, in intentional torts, the Restatement Third of Torts: Intentional Torts to Persons created a new tort of purposeful infliction of bodily harm. Whether courts will embrace the new tort, and with what limitations, is a matter for coming legal development, and lawyers are well-advised to be alert to the new possibilities. Moreover, all-or-nothing doctrines such as assumption of the risk have continued to fade away, and are increasingly discarded as separate defenses and instead incorporated into comparative fault defenses. While legislatures continue to limit the liabilities of many favored groups, common law duties of care are expanding in a number of areas. The areas of duty to protect third persons from harm,...
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Chapter 28. Wrongful Death and Survival Actions 9 results (showing 5 best matches)
- See Higgins v. Butcher, Yelv. 89, 80 Eng. Rep. 61 (K.B. 1607). Torts to personal property did survive, however. See Percy H. Winfield, Death as Affecting Liability in Tort, 29 Colum. L. Rev. 237, 242–43 (1929).
- See, e.g., Helmut Koziol, Recovery for Economic Loss in the European Union, 48 Ariz. L. Rev. 871, 882 (2006) (noting that cases of relational loss are a frequent situation in which European countries assign liability for economic loss).
- See Tex. Civ. Prac. & Rem. Code § 74.303 (capping health care liability claims for wrongful death or survival actions at $500,000 per claimant for all damages), applied in In re Columbia Med. Ctr. of Las Colinas, 306 S.W.3d 246 (Tex. 2010); W. Va. Code § 55–7B–8 (capping compensatory damages against health care providers at $500,000 per occurrence for death and certain serious injury claims).
- See Griffis v. Wheeler, 18 So.3d 2 (Fla. Dist. Ct. App. 2009) (statutory rule that certain intoxicated persons could not recover for personal injury barred wrongful death suit as well); Cramer v. Slater, 146 Idaho 868, 204 P.3d 508 (2009) (holding that when professionals fail to assess and prevent suicide and patient commits suicide, matter is one of comparative fault and jury is charged with assigning liability).
- . Tort law is usually state law and that is also true with wrongful death statutes. However, a number of important federal statutes have been enacted, among them the Federal Employers’ Liability Act (FELA)
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Chapter 8. Consent 16 results (showing 5 best matches)
- . Some defendants, because of their relationship to the plaintiff, are under an affirmative obligation to provide appropriate information to the plaintiff to permit an informed consent, and are subject to liability if they fail to do so and harm results.
- Why should the plaintiff be barred from recovery on the basis of manifested consent when she has not actually consented? In the usual case, the main reason is that the defendant who acts on a reasonable understanding of appearances is simply not a wrongdoer. The consent does not relieve him of liability for a tort; he is not a tortfeasor at all.
- The plaintiff in these cases often asserts the claim on a theory of negligence, no doubt because the therapist’s liability insurance will cover negligence but not intended torts.
- . When pastors or priests abuse minors, courts have sometimes imposed liability, although even in the child abuse cases courts have sometimes invoked immunities to protect the religious organization from liability.
- See Schu1tz v. Roman Catholic Archdiocese of Newark, 95 N.J. 530, 472 A.2d 531 (1984) (forcible sexual acts against a member of priest’s Boy Scout group, resulting in boy’s suicide; held, the Archdiocese is a charity and thus immune from tort liability for its negligence in failing to prevent such things).
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Chapter 40. Interference with Family Relationships 7 results (showing 5 best matches)
- Liability of therapists for alienating a child’s affections
- J.A.H. v. Wadle & Assocs., 589 N.W.2d 256 (Iowa 1999) (public policy: confidentiality and divided loyalties of therapist would ensue if liability is imposed; in any event, no negligent treatment was proven); Bird v. W.C.W., 868 S.W.2d 767 (Tex. 1994). Contra Montoya v. Bebensee, 761 P.2d 285 (Colo. Ct. App. 1988).
- . Families and family relationships have been important in tort law in a number of ways. The present chapter focuses only upon the potential liability of those who interfere with family relationships where physical harm to the claimant is no part of the claim. “Relational injury” or injury to the family relationship itself with the concomitant emotional harm and loss of well-being is the essential concern here. The most notable historical example is the claim by a spouse that the defendant has alienated the affections of the other spouse, but contemporary custody battles and the seduction of children by religious groups has raised issues about “interference” and alienation in new contexts.
- See Zamstein v. Marvasti, 240 Conn. 549, 561, 692 A.2d 781, 787 (1997); Doe v. McKay, 183 Ill.2d 272, 700 N.E.2d 1018, 233 Ill.Dec. 310 (1998); cf. Ryder v. Mitchell, 54 P.3d 885 (Colo. 2002) (mother’s suit against her children’s therapist for communicating to their father a diagnosis unfavorable to mother was not actionable; the therapist had duty only to her patients, since a threat of liability could present a barrier to appropriate treatment of the patient). Similarly, so far as the claim is based on reporting suspected child abuse, statutory privileges will usually protect the therapist. See Myers v. Lashley, 44 P.3d 553 (Okla. 2002).
- The defendant was not subject to liability unless his conduct was a substantial factor, along with other causes, for the alienation,
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Part VIII. Dignitary and Economic Torts 3 results
- An important but partial exception is that, although defamation was traditionally a kind of strict liability tort, free speech considerations have led courts to require intentional or negligent falsehood in many cases. See § 519.
- . Negligence is often an insufficient basis for liability when it comes to pure economic torts. Negligent interference with contract, for example, is not ordinarily actionable. However, in some cases the defendant owes the plaintiff a duty of care because of his undertaking or special relationship with the plaintiff, in which case, a negligence action is permitted for pure economic harm. Legal malpractice claims are examples.
- . The distinction between stand-alone dignitary or economic harm and physical harm to persons and property is not merely an idle classification. Both the explicit rules and the guiding policies of dignitary and economic torts usually differ radically from the rules of negligence and the rules of trespassory torts like battery. The mode of legal analysis also differs in most cases. For example, negligence is seldom the basis for liability in dignitary and economic torts.
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- Publication Date: December 29th, 2015
- ISBN: 9781628101478
- Subject: Torts
- Series: Hornbooks
- Type: Hornbook Treatises
- Description: This single-volume hornbook provides a comprehensive overview of tort and injury law. The book covers all of the major topics in tort law. Topics include liability for physical injuries, as well as emotional, dignitary, and economic harms. This newly-updated edition includes citations to hundreds of cases and statutes decided over the last decade, as well as references to the Restatement (Third) of Torts.
