Negligence Liability Research Articles

Balancing Prevention and Liability: The Use of Waiver to Limit University Liability for Student Suicide

When Ms. Li’s son started university in the fall of 2013, Ms. Li was shocked when her son was asked to sign a “student management and self discipline agreement,” which freed the university of any liability if a student were to commit suicide or otherwise self-inflict injuries. The City College of Dongguan University of Technology, located in the Guangdong providence of China, asked its 5,000 incoming freshman to sign the contract, along with other paperwork typically required for matriculation in higher education, due, at least in part, to the staggering suicide rates that China has seen in the past years. And the City College is not the first to make this request of its students; Shandong Jianzhu University, also located in China, requested that its 20,000 students sign a similar waiver of liability in November of 2010. According to the American Foundation for Suicide Prevention, 38,364 suicides were reported in the United States in 2010, equating to a death by suicide every 13.7 minutes. Further, statistics estimate that 7% of all college students in the United States have suicidal thoughts, while 1% of college students attempt suicide. With increasing suicide rates among their students, colleges and universities across the country have taken action, some ramping up their mental health programs and hiring more college therapists, while others have instituted new college policies to cover reporting requirements and procedures requiring the expulsion of students who display symptoms that indicate the student may attempt or commit suicide. Courts have traditionally held that suicide is a “deliberate, intentional and intervening act that preclude[d] another’s responsibility for the harm.” Exceptions to this general rule, however, have become more prevalent, particularly in two specific cases: (1) “where the individual or entity actually caused the suicide”; and (2) “when the individual or entity had a duty to prevent the suicide.” Case law in the United States has overwhelmingly freed colleges and universities from liability in the case of student suicide, finding that the schools neither caused the suicide nor had a special duty to prevent the suicide. However, three cases, Schieszler v. Ferrum College, Shin v. Massachusetts Institute of Technology, and Leary v. Wesleyan University have somewhat muddied the waters. These cases suggest that a jury could find that a special relationship did exist and therefore hold the school liable for the suicide of one of its students in the future.To date, no colleges or universities in the United States have instituted a waiver that releases the school from liability in the case of student suicide or self-inflicted harm, but with international institutions beginning to do so, it is likely that schools in the United States may at least consider taking a similar approach. Because institutions are able to create binding waivers to release themselves from liability for foreseeable negligence, a suicide waiver, if implemented by colleges in the United States, may help prevent schools from facing liability for student suicide and self-inflicted harm in the future. Additionally, implementing waivers of this sort could incentivize the school to provide additional help and resources for students suffering with mental illnesses, which could help manage the suicide rates of college students. However, suicide waivers alone are unlikely to actually deter student suicide, potentially leaving universities with the challenge of preventing student suicide unless the schools take further steps and implement other policies to help curb student suicide.Part I of this Article discusses the case law history of university liability, beginning with an overview of the cases that have clearly held that schools are not liable for student suicide and then dissecting the Schieszler, Shin, and Leary cases, in which the courts have been less clear. Part II considers the waiver option by first illustrating the law of waiver generally and then exploring the different reasons a court may hold a waiver to be enforceable. Part III examines possible defenses to the enforceability of suicide waivers specifically, drawing on the law of waiver discussed in Part II. Part IV evaluates the suicide waiver as a viable option by comparing it to other policies that universities have implemented to help suppress liability and prevent student suicide. Part IV concludes with a brief discussion of the use of suicide liability waivers in other forums, such as juvenile detention facilities and summer camps.

Police Liability in Negligence for Failure to Prevent Crime: Time to Rethink

The article advances two propositions. The first is that the current law on the negligence liability of the police for failure to prevent a crime is unsatisfactory. The general rule of non-liability is based on two lines of argument, neither of which is persuasive. The Hill policy grounds used by the courts do not stand up to close scrutiny, whist the application of the pure omission rule to the police is also problematic. At the same time, the current law does not attach adequate significance to arguments in favour of liability. The second proposition is that the existing framework of negligence liability of public authorities can be re-adjusted to generate outcomes that better balance the valid considerations for and against liability in cases of police failure to prevent crime.

A student right of audience? Implications of law students appearing in court

<p>This article examines the policy considerations underlying the common law limitation of the right of audience in the courts to professionally qualified and regulated advocates. It discusses the program conducted by Monash University in Australia whereby law students regularly represent their clients in court and analyses the safeguards built into this program in an attempt to meet those policy considerations. Finally the article looks briefly at the intriguing question of whether student advocates might be immune from liability for negligence, since that immunity still applies in Australia.</p>

Medical Malpractices and the Complexity of Healthcare Litigation: Is There a Case for No-Fault Compensation Regime in England and Wales?

Although health care law (HCL) has attained the status of a discrete field of law during the past four decades, yet malpractice litigation is heavily based upon the traditional requirements of tort law which is largely entangled with its complexities in establishing medical liability. This conundrum is exacerbated by the perceived excessive deference to medical paternalism in English and Welsh courts. Whether or not medical malpractice litigation should be exempted from strictures of the traditional paradigm of the common law in establishing liability for negligence remains contested. In this paper, I argue that due to the practical difficulties entailed in pursuing healthcare malpractice grievances via the courts system particularly the uphill task of proving clinical negligence, lawmakers should revisit the possibility of adopting a no-fault compensation scheme for all cases that can properly be categorized as medical malpractice.

La responsabilidad civil de los magistrados del tribunal constitucional en tela de juicio = Civil liability of Constitutional Court Judges al issue

En el trabajo se analiza la responsabilidad civil de los magistrados del Tribunal Constitucional teniendo en cuenta dos resoluciones judiciales. La primera, una sentencia de la Sala Primera del Tribunal Supremo, de 23 de enero de 2004 que, extralimitándose de sus funciones, condenó a los magistrados del Tribunal Constitucional por responsabilidad civil por culpa grave. La segunda, la sentencia del Tribunal Constitucional 133/2013, de 5 de junio que, casi diez años después, anula la decisión de la Sala Primera del Supremo por vulneración de dos derechos fundamentales de los magistrados constitucionales: el derecho de acceso a las funciones y cargos públicos, al impedir su ejercicio sin perturbaciones ilegítimas y el derecho a la tutela judicial efectiva, por dictar una resolución judicial con defectos constitucionales de motivación.The paper analyzes the civil liability of judges of the Constitutional Court considering two judicial decisions. The first, a judgment of the Civil Chamber of the Supreme Court of 23January 2004, exceeding their functions, condemned the Constitutional Court judges from civil liability for gross negligence. Second, the Constitutional Court133/2013, of 5 June, almost ten years later, annuls the decision of the First Chamber of the Supreme for violation of two fundamental constitutional rights of judges: the right of access to public offices, to prevent illegitimate exercise without interferenceand the right to judicial protection, to render a judgment on constitutional defects reasons.

Public Authority Immunity from Negligence Liability: Uncertain, Unnecessary, and Unjustified

During the period between the Supreme Court of Canada’s 1989 decision in Just v British Columbia and its 2001 decision in Cooper v Hobart the dominant issue in public authority negligence law was “common law immunity” for policy decisions. After 2001, proximity replaced immunity as the key concept in public authority negligence law. Immunity is most important when it is invoked to dismiss the action in the rare case in which the court had previously found a prima facie duty of care based on sufficient proximity between the parties. This is what happened at trial in Just v British Columbia and also in the 2011 Supreme Court of Canada decision in R v Imperial Tobacco Canada. Using these cases as the models, the author demonstrates that the policy-operational continuum used to determine the scope of immunity is uncertain to the point of meaningless. Next, the author suggests that a proper definition of proximity renders the immunity concept superfluous. Finally the author argues that when proximity is established on the same basis as it would be established in a private party action, it is wrong to immunize the public authority from negligence liability. The historical foundations of immunity are exposed as suspect. The accepted rationales for immunity do not apply to basic negligence issues that lie at the heart of the courts’ institutional competence. In Imperial Tobacco the government’s unnecessary negligence exposed smokers to an increased risk of illness and death. There was no justification for immunity.

Strict Liability for Police Nonfeasance? TheKinghanReport on theRiot (Damages)Act 1886

TheRiot (Damages)Act 1886 imposes a no‐fault obligation on police forces to compensate owners of property damaged in rioting. Following the riots acrossEngland in 2011 an independentHomeOffice review, theKinghanReport, concluded that the fundamental principle of theAct should be retained, while the machinery should be modernised. TheReport conceives of theAct as a useful, if highly unusual, compensation scheme that may ease socio‐economic problems in riot‐prone areas. This article questions that position. Strict liability offers potential advantages in contentious claims against public authorities, providing an incentive for the police to perform their duty to keep the peace while averting the questioning of police decision‐making that claims in negligence would inevitably require. The best alternative to negligence liability might not be ‘no liability’ (the general position now at common law), or liability based on ‘serious fault’ (as theLawCommission proposed in 2008), but liability without fault.

Liability of pediatric nurses for professional negligence in Taiwan: a case study

Liability attribution and professional negligence in pediatric nursing are topics that have been neglected in Taiwan. (1) Identify the definitions of related criminal activities in accordance with domestic criminal law; (2) Elucidate the facts and the dispute in a current case involving a pediatric nurse; (3) Elucidate the principle of 'no punishment without law'; (4) Explore the reasons why the pediatric nurse in the current case received a verdict of 'not guilty'. A literature review and case study approach were used to analyze a sentence reconsideration of the first instance No. 1 (2011) issued by the Taiwan high court, Kaohsiung branch court. The conditions for the scrutiny of criminal activity under Taiwan criminal law are statement of facts, illegality (justifiable cause), and liability (excuse). In this case, the pediatric nurse was accused of failing to prevent an infant from suffocation and of not discharging her obligations as a nurse. The pediatric nurse rebutted the charge of criminal negligence. The intervening behaviors of the pediatric nurse were found to be legal and not culpable. In this case, the High Court and Supreme Court made a final criminal judgment based on the presumption of innocence, and the pediatric nurse was pronounced innocent of the charge. This article intends to assist pediatric nurses understand their liabilities under Taiwan's criminal law. Pediatric nurses should gain a better understanding of the nature of liability for professional negligence in order to clarify how actions that may be illegal do not necessarily make nurses culpable.

The New Old Efficiency Theories of Causation and Liability

AbstractFor the last 40 years, efficiency theorists have attempted to demonstrate that tort liability in general and negligence liability in particular can best/only be explained by the hypothesis that judges are trying to maximize aggregate social welfare. Thirty years ago I published a pair of articles criticizing these attempts, noting especially the efficiency theorists’ inability to explain and justify the factual causation requirement in tort law. Nevertheless, the efficiency theorists have continued to make the same arguments. In this paper, I canvass the old arguments and their current restatements, including the attempts by some of the leading theorists to equate ex post analysis of actual causation with ex ante analysis of negligent conduct and attempts by others to explain the actual negligence liability rules. None of the rules proposed by the efficiency theorists is consistent with the practice of the courts, and none of them would promote efficient deterrence. Worse yet, the least descriptively plausible negligence liability rule proposed by the efficiency theorists is the one likely to be the least inefficient in actual practice, while the one assumed by most efficiency theorists will be the most inefficient. The fundamental problem with the efficiency theories is that they assume that the focus of law should be and is on the maximization of aggregate social welfare, rather than justice – the promotion of everyone’s equal external freedom in their interactions with others.

Do Australian Fire Brigades Owe a Common Law Duty of Care?

The law regarding the fire service’s liability for alleged negligence in the way they plan for or respond to a fire is reasonably untested. This paper reports on three cases that were decided in 2012 by the Supreme Courts of New South Wales, Tasmania and the Australian Capital Territory. It is argued that the weight of authority is that the fire brigades are established to provide fire services for the common good, not for individual benefit, and the financial burden of unfortunate operational decisions should be borne by insurers or by the uninsured. Even so, two Supreme Courts have arrived at different conclusions with respect to the question of whether or not the NSW Rural Fire Service owes a common law duty of care to those at risk from bushfire. It is therefore argued that the issue of duty of care would benefit from a determination by the High Court of Australia.

Non-Pecuniary Damages in the Age of Personality Rights: A Search for a Fair and Reasonable Framework Comparing the German and Italian Legal System

Non-Pecuniary Damages in the Age of Personality Rights: A Search for a Fair and Reasonable Framework Comparing the German and Italian Legal System

The Small Company: Directors' Status and Liability in Negligence

(2013). The Small Company: Directors' Status and Liability in Negligence. King's Law Journal: Vol. 24, No. 3, pp. 343-368.

Law's impact on youth sport: should coaches be ‘concerned about litigation’?

Those involved in the coaching of youth sport are experiencing an increasingly bureaucratized regime of protective measures that have the capacity to directly impact on the delivery of activities. Contemporaneously, there have been two decided cases that have imposed liability for negligence on a schoolmaster responsible for team selection, and on a rugby referee. Whilst these cases are confined to their own circumstances and cannot be held to herald a broader liability, there remains the potential for coaches to exhibit concerns about such litigation that have been identified within other professions. This article outlines the contemporary framework for legal liability and the concept of ‘concerns about litigation’ found in other areas, before locating such concerns in existing sports based research. It argues that coaches of youth sport are increasingly likely to be concerned about potential litigation, and that further targeted research, based on existing principles, is needed.

Waivers and Negligence: Defining the Patient-Physician Relationship by Refusal of Blood Transfusions

This paper discusses a recent health law issue originating from British Columbia, Canada. In Hobbs v. Robertson, the health law issue in question is whether a waiver that bars physician liability for negligence is valid. This is an important question because any answer will have a significant effect on both health law and the patient-physician relationship dynamic. At present, there is no judgment on this case and the British Columbia Court of Appeals has, for the second time, remitted that action back to trial court. This inquiry addresses aspects of tort and contract law in the patient-physician relationship. To address this health law issue, three critical questions are analyzed. The first question is if a waiver can be valid between a patient and physician. The second is whether a waiver is valid only between a patient and a hospital or also with the physician. The final question asks if negligence may be included in a waiver. After analysis, three potential solutions are suggested and discussed with one being chosen as the most suitable for implementing.

Уговарање одговорности за штету - проширење, ограничење и искључење

An arrangement on expansion, limitation and exclusion of liability for damages can be entered into the main agreement by both debtor and creditor, or can be entered into subsequently, as a separate agreement. As a rule, this arrangement is informal. If the law prescribes or sets the form of the agreement as a condition of its validity, it is obligatory for both parties, or otherwise it can be considered null and void. By means of agreement, contractual liability of a debtor can be expanded to legal situations for which he would not otherwise be liable under identifying provisions of the Law of Obligations. The debtor is free of liability if he proves he could not fulfill his obligation due to circumstances that arose after the agreement had been entered into, and that could not be prevented, eliminated or avoided. By means of arrangement, debtor and creditor can exclude contractual liability of the debtor for mere negligence (culpa levis) and those cases where the debtor is liable by law, regardless of his guilt. The arrangement of parties that excludes the debtor’s liability for intention or gross negligence is null and void. In that case the creditor has right to damages or full compensation. An interested party can by means of claim demand the abrogation of a contractual provision on exclusion of liability even for mere negligence, if such an arrangement came as a result of a monopoly position of the debtor or in general, from the unequal relationship between the two contractual parties. The provisions on limitation of the debtor’s liability are valid: 1. If the amount to which the debtor’s liability is limited is not clearly disproportional to the damage that later occurred, 2. If the debtor has not caused the damage intentionally or by gross negligence and 3. If the law prescribes nothing else in this certain case.

Insurance between Neighbours: Stannard v Gore and Common Law Liability for Fire

Liability under Rylands v Fletcher has since its inception been justified by ideas of risk-creation and loss-spreading, in circumstances where parties are free from blame. Pollock described it as amounting to an ‘insurance’ between neighbours; in its contrast with negligence liability, it has more recently been described as the ‘conscience’ of the law. Here we are concerned with the nature and limited existence of Rylands liability for damage done by the escape of fire after the Court of Appeal s decision in Stannard v Gore. How does ‘insurance’ through liability compare with the well-recognised and widespread practice in relation to fire, of insuring oneself? We particularly discuss the possible purposes of the long disembodied section 86 of the Fires Prevention (Metropolis) Act 1774, the significance of insurance in that statute, and the importance of rival interpretations of its applicability to Rylands liability. We identify the current difficulties in this area of law as lying in the elusiveness of the social purposes which have shaped its principles, suggesting that any justification of Rylands liability for fire should indeed take account of the long-established practice of first party insurance.

Economic Analysis of Medical Malpractice Liability and Its Reform

This Chapter provides an economic analysis of medical error employing a model in which physicians who provide suboptimal medical care may have done so knowingly (as in the traditional model) or accidentally. Accidental medical error is a leading cause of medical negligence: many if not most physicians who provided suboptimal care did not know they were doing so but instead misdiagnosed the patient, unintentionally selected the wrong treatment or erred in treatment provision. Accordingly, in order to promote optimal health care markets, malpractice liability must be structured to both induce physicians to want to provide optimal treatments (when they are informed) and to invest optimally in the expertise and patient safety measures which reduce the risk that they will misdiagnose the patient, select the wrong treatment, or err in the delivery of care. This Chapter shows that negligence liability can achieve both goals, but only if expected damages for accidental negligence are less than the ex post cost of the harm imposed. Malpractice liability can be relied on to induce optimal investment in patients’ welfare only if medical institutions also are directly liable to their patients for harms caused by medical error and if medical providers and insurers are precluded from contracting over liability with patients.

NON-STANDARD KIDNEYS FOR TRANSPLANTS: CLINICAL MARGINS, MEDICAL MORALITY, AND THE LAW

Advances in kidney transplantation over the past six decades have been impressive, but have not eliminated the significant variability in outcome related to donor organ quality. Organ shortage means that, in addition to 'standard' deceased donor kidneys (SD), 'non-standard donor' (NSD), 'expanded criteria donor', or 'marginal' kidneys, which fail to meet standard criteria and are often associated with less good outcomes, are now being transplanted into selected recipients as a means of increasing the donor pool. A similar, but less-documented, practice has developed in living donation. This article outlines the clinical rationale and ethical argument underpinning the use of such donor kidneys and examines their legal status in the UK, which we claim remains largely undefined and untested. While it is probable that the general principles governing medico-legal consent and liability also apply to organ donation, the special circumstances of donation, notably the inadequate supply of donors and the emphasis on a 'gift relationship', make it difficult to know how far existing medico-legal precedents can or should apply. The non-standard status of deceased donor organs creates potential problems for the validity of 'appropriate consent' to donation required by statute. It may also be relevant to the use of interventions intended to optimise deceased donor organ quality. Furthermore, the SD/NSD distinction in clinical practice may produce unexpected legal effects. For example, the recent UK Regulations 2012, which bring into force the EU Directive on standards of quality and safety of human organs intended for transplantation, could produce a negative legal restraint on the use of NSD kidneys. There is an urgent need for clarification of the effect of using NSDs in areas such as recipient and donor consent, liability for negligence, and the law of product liability. Some argue that the need for non-standard organs results from society's failure to compel the retrieval of all suitable standard organs from the deceased as a community resource. However, the Human Tissue Acts of 2004 and 2006 (Scotland), which govern organ donation and transplantation in the UK, expressly require individual consent or authorisation in the decision to donate. This emphasis on individual autonomy appears to chime with prevailing public opinion. However, the sense of medico-legal security gained by uncritical observance of the existing law and of directives published under its authority may be an obstacle to the development of a system which adequately meets the needs of recipients while safeguarding donor autonomy.

The Indirect Influence of Politics on Tort Liability of Public Authorities in English Law

The scope of negligence liability of public authorities in English law has undergone significant changes in the Post-World War II period, first expanding and then, from the mid-1980s, retracting. This article tries to explain why this happened not by focusing, as is common in most commentary on this area of law, on changing doctrinal “tests,” but rather by tying it to changes in the background political ideology. My main contention is that political change has brought about a change in the law, but that it did so by affecting the scope of the political domain, and by implication, also the scope of the legal one. More specifically, I argue that Britain's Post-War consensus on the welfare state has enabled the courts to expand state liability in accordance with emerging notions of the welfare state without seeming to take the law into controversial territory. When Thatcher came to power, the welfare state was no longer in consensus, thus making further development of legal doctrines on welfarist lines appear politically contentious. The courts therefore reverted back to older doctrines that seemed less politically charged in the new political atmosphere of the 1980s.

Navigating the “Noxious” and “Invasive” Regulatory Landscape: Suggestions for Improved Regulation

In the United States, only species listed on state or federal noxious weed lists are regulated. According to our analysis, these regulatory lists poorly represent invasive plants in unmanaged (i.e., nonagricultural) systems. To improve the representation of invasive plants on state regulatory lists, we recommend allocating listing authority to invasive species councils and provide guidance for the science-based reform of noxious weed lists. We also recommend commercial best practices to test for invasiveness prior to intentional introduction of new plant products. Finally, we introduce a negligence liability scheme to discourage the introduction of potential invaders. If adopted, our recommendations could benefit nonagricultural ecosystems and could have positive consequences for bioenergy producers and others in plant industry, who are under scrutiny for promoting potentially invasive species as energy crops. As the bioenergy industry gains momentum, a revised regulatory regime may alleviate the concerns regarding one potential negative consequence of novel plant introduction.