Torts
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Survival of the Fittest? The Origins and Evolution of the Substantial-Similarity Doctrine
The substantial-similarity doctrine had its origins in the nineteenth century, arising as a way of aiding courts in determining whether accident re-creation evidence, either through actual re-creation or analysis of other similar accidents, is relevant and admissible. In recent decades, the doctrine has become an enigma for some courts, in part because its foundational principles had become so well understood that for many years they were never expressly stated. A small but growing number of courts are replacing this useful tool for evaluating evidence with a near-blanket rule of exclusion that rejects relevant and reliable evidence. A review of the doctrine’s birth and evolution, combined with a series of thought-experiments, helps define the appropriate bounds for the doctrine. The substantial-similarity doctrine, in its original form, is defended against the emerging trends towards blanket rules, both in terms of coherency of the legal system and in terms of product safety. Read More …
Sticks and Stones May Break My Bones But Extreme and Outrageous Conduct Will Never Hurt Me: The Demise of Intentional Infliction Of Emotional Distress Claims in the Aftermath of Snyder V. Phelps
57 Wayne l. Rev. 473 – Sticks and Stones May Break My Bones but Extreme and Outrageous Conduct Will Never H… by WayneLawReview
Torts
This Survey found that narrow interpretations of words and phrases are the vehicle our appellate courts use to engage in outcome determinative decisions. In many cases, the motivation is to remove a case from the docket instead of striving to allow a plaintiff her day in court with a jury. Analyses of cases involving premises liability, medical malpractice, and governmental immunity demonstrate anti-individual bias in favor of corporate, insurance, and government interests. Read More …
Symmetrical Use of Universal Damages Principles—Such as the Principles Underlying the Doctrine of Proximate Cause— To Distinguish Breach-Induced Benefits That Offset Liability from Those That Do Not
“Remedies” is its own area of law, the focus of which is “the bottom line.” It is the source of law that determines just what a prevailing plaintiff in a civil case wins and, conversely, just what the defendant in that case loses. In many cases, this bottom line is determined by a deceptively simple, but critically important, principle: the “rightful position” principle. Whether the plaintiff’s claim is based on the defendant’s breach of a duty imposed by law or a duty undertaken by contract, the rightful-position principle usually directs an award of money—i.e., compensatory damages—that is supposed to place the plaintiff, as nearly as a sum of money can, in the position that he or she would have occupied but for the breach. Read More …