Public Services Meet Private Law (original) (raw)
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Modernizing Public Nuisance: Solving the Paradox of the Special Injury Rule
2001
Introduction 757 I. Public Nuisance and the Special Injury Rule: Three Illustrations of the Paradox 765 A. The Doctrinal Landscape: Public Nuisance and the Special Injury Rule 765 1. A Brief History of Nuisance Law 767 2. Unique Aspects of the Three Types of Nuisance Actions 771 3. The Uniqueness of the Public Nuisance Cause of Action 774 B. The High Barrier Posed by the Special Injury Rule: Three Illustrations 776 1. The Exxon-Valdez Oil Spill: Differential Treatment of Recreational, Cultural, and Commercial Fishing Claims 776 2. Public Beach Access: Contrasting Results in Florida and Hawai’i 781 3. Community Welfare: Economic Losses and Threats to the Social Fabric 786 II. Examining the “Ancient” Special Injury Rule: The Twisted History of the Different-in-Kind and Differentin-Degree Tests 790
Suing Gun Manufacturers: Hazardous to Our Health
Texas Review of Law and Politics, 2001
I. INTRODUCTION1 The current assault on the gun industry started in late 1998 after Philadelphia Mayor Edward Rendell proposed that local city officials should sue the gun manufacturers to recover costs related to firearm violence in their cities2 Although Mayor Rendell put his plans for a lawsuit on hold,3 Mayor Marc Morial of New Orleans and Mayor Richard Daley of Chicago ran with the idea, making New Orleans and Chicago the first two cities to file these novel lawsuits.4 To date, thirty-three similar lawsuits have been filed by governmental entities, with the most recent filings by New York City and the state of New York in June, 2000.5 Many cities could be awaiting the outcome of the cases already filed, so more lawsuits may follows.6 Lawsuits based on similar legal theories continue to be filed on behalf of private citizens as well.7 The most prominent private case to date, Hamilton v. Accu-Tek, was filed by attorney Elisa Barnes, who sued gun manufacturers on behalf of the rel...
The relevance of public interests in private law is at the heart of some central divides in tort scholarship. This paper argues that public interests pervade private nuisance cases. The uncertain and contested nature of public interests, and the absence in both the case law and the scholarly literature of an abstract definition of what is to count as a public interest, do not prevent these matters from playing a significant role in tort. In these circumstances, it is important to reflect on how we might set about articulating the public interest. This paper argues that administrative decisions that are intended to serve the public interest can in some cases provide a defensible vision of public interest for the purposes of private law. An examination of the process by which regulatory decisions were reached can provide indicators to assist in identifying and evaluating the strength of claimed public interests.
The Restatement's Attractive Nuisance Doctrine: An Attractive Alternative for Ohio
1985
Under traditional tort doctrine, the extent of the duty that an owner or occupier of land owes to an entrant upon the land has depended on the entrant's status as a trespasser, licensee, or invitee.' The law has required the least duty of care toward trespassers. The owner or occupier has had to refrain only from willful or wanton injury to trespassers. 2 An exception to this harsh rule has developed, however, with respect to child trespassers. This special duty is known as the attractive nuisance doctrine 3 and has been adopted in some form by the vast majority of American jurisdictions, most of which have adopted the Second Restatement of Torts section 3394 version of the special rule. 5 Ohio, however, has steadfastly refused to adopt any version of the attractive nuisance doctrine. In Ohio, a trespassing child is afforded no greater protection than that afforded a trespassing adult. 6 This outdated and harsh position fails to take into account the societal value of protecting children from serious injury. Ohio's current position is based upon Railroad Co. v. Harvey, 7 a decision handed down over seventy-five years ago. Since the Harvey decision, a vast majority of jurisdictions have adopted the Restatement Rule in an effort to balance equitably the interests of landowners with those of children who may not appreciate the gravity of danger they are likely to encounter on the land. Although the Ohio court has continually rejected any form of the attractive nuisance doctrine, it has reevaluated outdated concepts in other areas of tort law. Justice Sweeney, writing for a 6-1 majority of the Supreme Court of Ohio in the recent decision of Paugh v. Hanks, 8 emphasized the court's desire to establish new standards in the area of tort law to reflect corresponding changes in modem society. 9 In Paugh, the court reaffirmed its bold recognition of a cause of action for the negligent infliction of serious emotional distress even when there has been no physical contact with the plaintiff nor physical manifestation of injury. 1 This decision
This Article is a rejoinder to the civil recourse theorist's claim that tort law will be better served by retreating to the philosopher's prefecture of private wrongs. A subsidiary goal of this Article is to refute John Goldberg's claim that my sociologically-inspired theory of torts as public wrongs serves the interests of tort reformers rather than American consumers. In a nutshell, civil recourse theory is "tort reform in disguise," not the concept of torts as fulfilling wide-ranging purposes such as the social control of corporations. If judges adopt civil recourse theory, they will be less inclined to recognize new causes of action and plaintiff classes deferring instead to legislatures. Tort law is the multi-tasker of the common law and does far more than redress private wrongs. Tort law not only redresses private wrongs, it also advances general deterrence through social control. The contemporary Toyota sudden acceleration claims and the BP oil spill are...
Dangerous Products and Injured Bystanders
Ky. LJ, 1992
As the California Supreme Court urged in Elmore v. American Motors Corp., 451 P.2d 84, 89 (Cal. 1969), one of the first cases to allow bystander recovery in strict products liability: If anything, bystanders should be entitled to greater protection than the consumer or user where injury to bystanders from the defect is reasonably foreseeable. Consumers and users, at least, have the opportunity to inspect for defects and to limit their purchases to articles manufactured by reputable manufacturers and sold by reputable retailers, where as the bystander ordinarily has no such opportunities. In short, the bystander is in greater need of protection from defective products which are dangerous, and if any distinction should be made between bystanders and users, it should be made, contrary to the position of defendants, to extend greater liability in favor of the bystanders. Id. 'During the early stages of strict products liability in tort, there was some doubt as to whether injured bystanders would be entitled to any recovery, but courts have now generally placed bystanders on an equal footing with consumers. See cases cited brfru note 25. See infra text accompanying notes 30-32. See infra text accompanying notes 33-56. See infra text accompanying notes 57-66. ' Professors James Henderson and Aaron Twerski make a strong argument that courts will not and should not extend liability to manufacturers of nondefective products.