Negligence Standard Research Articles

Child Access Prevention Laws and Pediatric Firearm Injury: A Rapid Review.

US child firearm fatality rates have risen since 2013. Child Access Prevention (CAP) laws aimed at reducing minors' access to firearms have existed since the 1980s. However, specific requirements for safe storage of firearms, standards of negligence, and penalties for offenders vary significantly by state, yielding a heterogeneous body of CAP legislation. A few studies have investigated the relative impacts of these laws on child firearm injury rates, with sometimes conflicting results. Here, we present a rapid review of the existing literature on CAP laws and their apparent impact on firearm-related injuries among US children, to assess whether CAP laws are an effective tool for reducing child firearm injuries. We conducted a rapid review of published reports that evaluated the impact of CAP laws on pediatric firearm injuries and/or deaths in the United States. We extracted target population data and outcomes of each study. The data are presented narratively. A total of 14 articles met criteria for evaluation. Taken together, these studies showed that implementation of CAP legislation was associated with reduced pediatric firearm injuries and fatalities. Moreover, longitudinal or time-series studies that examined changes in pediatric firearm injuries pre/post-CAP legislation yielded the most consistent and robust findings. CAP laws were found to be associated with reduced pediatric firearm injuries and deaths, with the magnitude of effect being proportional to CAP law stringency.

Ghana’s Health Professions Regulatory Bodies Act, 2013 (Act 857) and its Adequacy in Governing Healthcare Delivery and Medical Negligence Issues

Ghana instituted the Health Professions Regulatory Bodies Act, 2013 (Act 857) as landmark legislation seeking to enhance accountability, quality, and ethics in healthcare delivery through establishment of Regulatory Councils governing licensing, practice standards, continuing education and discipline across doctors, nurses, pharmacists and allied health professions. This analysis evaluates adequacies and shortcomings in Act 857’s frameworks to uphold standards of care and address medical negligence five years post-enactment. Progress is visible in standardized licensing protocols enabling oversight on practitioner competence via license issuance premised on education levels cleared by exams and checks. Channeling complaints through uniform procedures and linking license retention to ethical practice foster transparency. However, Act 857 falls short on comprehensively governing healthcare delivery systems issues beyond workforce such as infrastructure standards and access inequities exacerbating quality limitations and negligence risks. Narrow focus on professional self-regulation also constrains capacities to fully enforce broader quality benchmarks relating patient experience, technology support etc. Additionally, while intending to elevate conduct, complainant-driven procedures and restrictive litigation limitation periods instituted constrain efficacies in optimizing deterrence, accountability and access to justice for victims of medical negligence. Considerable legislative reforms are imperative to institute unified healthcare infrastructure standards and access equity provisions while rebalancing laws to enable equitable patient protections when harmed by substandard care. Implementation strategies also require realignment, beyond workforce to system-wide accountability, to actualize healthcare delivery enhancement goals via Act 857.

Case about Delivering to the Hospital Due to Accumulation of Phlegm: The Content, the Elements and the Standards of Civil Negligence

Case about Delivering to the Hospital Due to Accumulation of Phlegm: The Content, the Elements and the Standards of Civil Negligence

The Common Law of Landscape Hostility in the Lives and Deaths of Honeybees

This article offers a legal explanation for the decline of honeybees. While most investigations into bee populations and bee survival rates have been scientific, this article provides an additional set of causes, showing how our legal definitions of property and standards of negligence contribute to a landscape hostile to the lives of bees. Examining recent litigation in the United States and Canada, it shows how legal concepts of property impact the lives of bees, especially in cases of pesticide overspray near property boundaries, and in the forms of knowledge and ignorance in play in contesting duties of care in negligence cases. By expanding our understanding of the causes of bee death, this article points toward additional ways in which the stressors that bees face might be reduced.

Learning from hospital deaths.

Current guidelines and regulations require trusts to take full responsibility for deaths within their premises. Higher than expected deaths indicate poor standards of care or negligence. NHS Trusts need to put systems in place to ensure that they learn and extrapolate risk factors through in-depth review of care provided to patients prior to their deaths, curb and ultimately diminish relative mortality through improved practices, and improve care and safety for the whole organisation. Mortality reviews can provide insight into the standard of care that dying patients receive; this matters as NHS Hospitals are the main providers of terminal care, nationally.

Medicolegal issues of peri-anaesthetic dental injuries: A21-years review of liability lawsuits in France.

Background/AimPeri‐anaesthetic dental injuries (PDI) represent a major source of potential malpractice claims against anesthesiologists. Studies about the medico‐legal aspects of PDI have mainly focused on liability insurance cases thus not encompassing those cases brought to court. The aim of this study was to assess the medico‐legal issues of PDI‐related liability lawsuits in France.Material and MethodsA review of judicial decisions pertaining to PDI was conducted on a French legal database, spanning the period between January 2000 and October 2021. Characteristics of decisions, patients and anesthesiologists, peri‐operative care, dental injuries, and convictions were collected when available for analysis.ResultsTwenty‐four judicial decisions fulfilled the inclusion criteria and were analyzed. All cases of dental injuries took place during elective surgery, 16 in the private sector and 8 in the public sector. Most injuries concerned two or more teeth and the most predominant dental injuries were luxation or avulsion (70.8% of cases). Eight cases resulted in a final verdict in favor of the plaintiff, four in the private sector (conviction rate: 25%), and four in the public sector (conviction rate: 50%). The causes of conviction were either a lack of information (5/8), a breach in the standard of care or technical negligence (3/8). The average amount of indemnification for the plaintiff was 3614 Euros (3753 Euros in 2022 inflation‐adjusted Euros) excluding legal fees.ConclusionsThe analysis of PDI‐related liability lawsuits shows that medico‐legal issues differ from those of PDI‐related insurance claims. Avulsion and luxation of multiple anterior teeth during elective surgery appear to be a risk factor for liability lawsuits. In addition, inadequacy of patient information about PDI‐risk seems to be a risk factor for conviction. Lastly, dental injuries are less at risk of civil conviction than other anesthesia‐related damages.

Are firms with 'deep pockets' more responsive to tort liability? Evidence from nursing homes.

We provide time series evidence of tort reform's impact on inputs and quality in the nursing home industry. Between 2000 and 2010, 11 state reforms capped noneconomic damages for health care services. Small chain and unaffiliated nursing homes enjoyed "judgment proof standing" and were less apt to be sued, prior to reform. We find that the managers of such homes were relatively unresponsive to the implementation of state caps on noneconomic damages. Large "deep-pocketed" chain-affiliated homes lacked judgment proof standing and implemented greater reductions in their nursing inputs in the aftermath of tort relief. However, we find little evidence of service quality erosion across four measured dimensions of care outcomes. Our findings are consistent with a "defensive care" model in which large chain homes employ unproductive inputs in an effort to meet a negligence standard of care.

Strict Products Liability 2.0: The Triumph of Judicial Reasoning Over Mainstream Tort Theory

Abstract Strict products liability has evolved in a manner that is widely misunderstood. The liability rule was first formulated to govern defective products that did not minimally perform one of their ordinary functions as expected by consumers—a malfunction that violates the implied warranty of quality. After adopting this rule, courts began applying it to products that did not malfunction and found that a test for defect based on consumer expectations often is indeterminate or can otherwise unduly limit liability in an important class of cases. To address these problems, most courts adopted the risk-utility test, a form of cost-benefit analysis that functions like the negligence standard of reasonable care. Relying on these cases, the Restatement (Third) of Torts: Products Liability embraced the risk-utility test, jettisoned the consumer expectations test, and characterized strict products liability as a misleading label that perpetuates confusion about liability being strict when it instead is based on negligence. In response, a clear majority of courts have rejected this negligence-based framework and affirmed the continued vitality of strict products liability. Puzzled by this unexpected development, mainstream scholars claim that courts are confused by the rhetoric of strict products liability. The prevailing scholarly opinion about this matter is confused; its fixation on negligence ignores the implied warranty rationale for strict products liability. Having been largely formulated as a rule of contract law, the implied warranty is under-theorized as a tort doctrine. Once adequately developed, the tort version of the implied warranty shows why courts have transformed the rule of strict products liability from the last century into a more comprehensive regime—“strict products liability 2.0”—that relies on consumer expectations to incorporate the risk-utility test into the framework of strict products liability. As compared to ordinary negligence liability, the implied warranty defines the safety problem in the normatively appropriate manner, thereby sharpening the inquiry about what’s at stake. In dismissing this important development, mainstream tort theory relies on legal categories that fundamentally differ from the ones courts have used to develop strict products liability with analogical reasoning. Scholars have either resorted to overly general theories of tort liability or have otherwise focused on narrow doctrinal questions. By not engaging in the mid-level categorical theorizing required by analogical reasoning, the mainstream position could not see how this characteristic form of judicial reasoning has created the substantively sound regime of strict products liability 2.0.

Increasing Pace and Scale of Prescribed Fire via Catastrophe Funds for Liability Relief

Increased prescribed burning is needed to provide a diversity of public benefits, including wildfire hazard reduction, improved forest resilience, and biodiversity conservation. Though rare, escaped burns or significant smoke impacts may result in harm to individuals and property. Liability for potential damages reduces the willingness of fire managers to expand the practice, particularly where the wildland–urban interface creates the greatest risk. Across the United States of America, efforts have been made to reduce prescribed fire-related risks through statutory reform, training and certification requirements, and private insurance. An increasing number of states have adopted the liability standard of gross negligence to protect prescribed fire practitioners. When liability relief is tied to best practices or burn manager certification, risk to the public from potential prescribed fire impacts is reduced. Under this model, however, those harmed by prescribed fire may have little legal recourse for compensation from losses. Here, we explore the pairing of a mechanism to compensate losses while limiting liability for practitioners who use best management practices. Specifically, we assess the suitability of using a catastrophe fund in conjunction with adoption of gross negligence standards, modeled after other natural hazards examples. This model could ensure public support and sustain and expand prescribed fire in many fire-prone landscapes.

Preemptive Incentives and Liability Rules for Wildfire Risk Management

Wildfires in the U.S. are growing in extent and severity, causing billions of dollars in damage each year. Wildfire policy has increased its focus on integrating fire suppression with risk mitigation through fuel reduction. In this context incentives to elicit management activities that mitigate fire risk are critical, because landowners may not carry out sufficient risk mitigation on their own. We examine the effectiveness and welfare implications of several incentive policies, including two novel approaches not studied in the context of wildfire management: liability rules and voluntary agreements. Our analysis uses a threshold model of public good provision, which allows for each landowner's mitigation choices to depend on the total amount of mitigation in the landscape. Our results suggest that the risk mitigation threshold is critical in determining the effectiveness and welfare effects of different incentive programs. When the threshold is high, only voluntary agreements and cost sharing can increase mitigation effort and welfare. Negligence standards can also be effective and welfare enhancing but only when the mitigation threshold is sufficiently low.

Moral Reflections on Strict Liability in Copyright

Accidental infringement of copyright is a pervasive and largely ignored problem. In the twenty-first century, it has become increasingly easy to infringe copyright unintentionally. When such accidental infringement occurs, copyright law holds the user strictly liable. Prior literature has questioned whether the strict liability standard is normatively defensible. In particular, prior literature has asked whether the strict liability standard ought to be reformed for economic reasons.
 This Article examines the accidental infringement problem from a new perspective. It considers whether it is fair to hold copyright users strictly liable for accidental infringements of copyright. This Article argues that the strict liability standard is not fair because it results in copyright users being held liable for accidents for which they are not morally responsible. Using the moral philosophy literature on responsibility, this Article explores our intuitions surrounding copyright’s liability standard in order to better understand why strict liability in this context seems “harsh” and “inequitable.” In turn, this provides an argument for reforming copyright’s liability rule and adopting a negligence standard. This Article then argues that, within the United States, the proposed reform to copyright’s liability rule should be accomplished by modifications to the existing fair use doctrine.

Remediating Racism for Rent: A Landlord’s Obligation Under the FHA

The Fair Housing Act (FHA) is an expansive and powerful piece of legislation that furthers equal housing in the United States by ferreting out discrimination in the housing market. While the power of the Act is well recognized by courts, the full contours of the FHA are still to be refined. In particular, it remains unsettled whether and when a landlord can be liable for tenant-on-tenant harassment. This Note argues, first, that the FHA does recognize liability in such a circumstance and, second, that a landlord should be subject to liability for her negligence in such a circumstance. Part I illustrates how the purpose and text of the FHA and analogous civil rights provisions suggest that a landlord should be held liable for her response to tenant-on-tenant harassment. Part II analyzes the standards of liability for tenant-on-tenant harassment that currently exist in the context of the FHA. Part III argues that a negligence standard of liability best accounts for the special status of the home and the unique nature of the landlord-tenant relationship.

Tailoring Negligence Standards to Accident Records

Traditional economic models of accident law are static and assume homogeneous individuals under perfect information. This paper relaxes these assumptions and presents a dynamic unilateral accident model in which potential injurers differ in their probability of accident. Information about individual risk-type is hidden from the social planner and from each potential injurer. We ask how negligence standards should be optimally tailored to individual risk-type when this is imperfectly observable. We argue that information about past accident experiences helps to efficiently define negligence standards, narrowing the distance between first-best standards perfectly tailored to individual risk-type and third-best averaged standards. We finally show that negligence standards refined on the basis of past accident experiences and of individual risk-type do not undermine private incentives to undertake due care.

Evaluating wildland fire liability standards – does regulation incentivise good management?

Fire spread on forested landscapes depends on vegetation conditions across the landscape that affect the fire arrival probability and forest stand value. Landowners can control some forest characteristics that facilitate fire spread, and when a single landowner controls the entire landscape, a rational landowner accounts for spatial interactions when making management decisions. With multiple landowners, management activity by one may impact outcomes for the others. Various liability regulations have been proposed, and some enacted, to make landowners account for these impacts by changing the incentives they face. In this paper, the effects of two different types of liability regulations are examined – strict liability and negligence standards. We incorporate spatial information into a model of land manager decision-making about the timing and spatial location of timber harvest and fuel treatment. The problem is formulated as a dynamic game and solved via multi-agent approximate dynamic programming. We found that, in some cases, liability regulation can increase expected land values for individual land ownerships and for the landscape as a whole. But in other cases, it may create perverse incentives that reduce expected land value. We also showed that regulations may increase risk for individual landowners by increasing the variability of potential outcomes.

Auditor Reputation Concerns, Legal Liability, and Standards

ABSTRACTThis paper studies how legal liability due to negligence can weaken or strengthen an auditor's reputation concerns in the client market to provide high audit effort. A negligence liability rule relies on auditing standards to provide a threshold for the level of due care. When the negligence standard is lax, legal liability can weaken the auditor's reputation incentives, with lower audit effort than without legal liability. If the damage payment is low, noncompliance is less costly, because with compliance, reputational concerns cause the auditor to provide higher costly audit effort than the standard. In this case, investors also prefer noncompliance, and earnings quality is lower than if there were no legal liability damages. When the standard is stringent, noncompliance is less costly for the auditor, and legal liability strengthens reputation incentives. Investors may also prefer noncompliance, and earnings quality is higher than if there were no legal liability damages.JEL Classifications: M41; M42; D82; M48.

The Complementary Role of Liability and Safety Regulation

This article deals with the control of hazardous activities in situations where potential victims can affect their exposure to risk. Economists have generally considered ex ante regulation (safety standards) to be a substitute for ex post policies (exposure to tort liability) in order to control externalities. We show that when the victim’s compensation is partial (e.g., due to death or serious bodily injury) there are inefficiencies associated with the exclusive use of negligence liability and that an optimal policy may involve the combined use of ex-ante regulation and ex-post liability. A noteworthy feature of our explanation is that regulation is complementary to liability, in the sense that it may facilitate a higher and more efficient standard of negligence. In that case, it is efficient to set the regulatory safety standard below the standard of negligence, which is consistent with the legal doctrines of negligence per se and the (non) regulatory compliance defense.

Tendencije u oblasti nepažnje medicinskog osoblja, sa posebnim osvrtom na Mađarsku

Medical negligence has long been in the focus of legal research in most countries. In some countries, the negligence standard has been replaced by the avoidability standard, the latter leading to a no-fault system. Nonetheless, most legal systems apply the negligence standard. In my opinion, the negligence standard should be sustained because, despite the undoubted advantages of the no-fault system, the 'good old law' on medical negligence promotes greater legal certainty and patient safety. Criminal medical negligence differs from civil medical negligence as regards onus, as well as in other ways. In the UK, many lawyers and physicians have protested against the legal practice of gross negligence manslaughter, an effort which may also serve as an example for other countries. In most continental European countries, the enforcement of a foreign punitive damages judgment would run counter to the ordre public; however, in some countries, such as in France and Hungary, a punitive damages judgment might be enforced.

Tailoring Negligence Standards to Accident Records

The standard 1-period, unilateral care accident model assumes identical injurers and perfect information of an individual’s risk type. However, these assumptions are unlikely to hold in real-world accident scenarios. This paper considers a 2-period, unilateral care accident model in which injurers differ by probabilities of accident (their risk types) and have incomplete information about their risk types. We find that courts should optimally examine an individual’s accident history to accurately infer the risk type and adjust the due level of care accordingly. We show that tailoring due levels of care in the second period affects the definition of the due level of care in the first period. When judges have access to accident records but the risk type is hidden, they should relax the due level of care for first-time offenders to generate more information about an individual’s risk type, which helps to establish more efficient differentiated standards in the subsequent period.

Rethinking the Laws of Good Faith Purchase

This Essay is a comparative economic analysis of the disparate doctrines governing the good faith purchase of stolen or misappropriated goods. We argue that prior treatments have misconceived the problem. An owner will take optimal precautions to prevent theft if she is faced with the loss of her goods; and a purchaser will make an optimal investigation into his seller’s title if faced with the loss of the goods. An owner and a buyer cannot both be faced with the full loss, however. This presents a problem of “double moral hazard” and it cannot be solved in a first-best efficient way. However, the laws of the major commercial nations are less efficient than they could be. This is particularly true of current U.S. law: In the United States, an owner always can recover stolen goods, which reduces her incentive to take optimal precautions. In turn, a buyer of those goods makes a suboptimal investigation into title because the owner may never find him. We propose that the owner should be permitted to recover goods only if she satisfies a negligence standard set at the socially optimal precaution level (which we argue is feasible). This would increase her incentive to take precautions while retaining her efficient incentive to search for stolen goods. Since owner search and buyer investigation are complements, our proposal leaves unchanged the buyer’s incentive to investigate. Also, under current law, an owner who voluntarily parts with her goods cannot recover them from a good faith purchaser. This rule reduces the owner’s incentive to search and so reduces the buyer’s incentive to investigate. Thus, we propose that a negligence standard should apply to owners generally. We argue that the verifiability objections to a vague standard of negligence can be satisfied by the specification of rulelike proxies for owner negligence. A comparative analysis of the law of good faith purchase in the leading commercial jurisdictions shows the chaotic nature of the current disparity in treatment of owners and buyers. Since today many stolen goods cross national borders, a generally applicable solution to the good faith purchase issue will further reduce the demand for stolen goods, reduce the incidence of strategic litigation, and enhance social welfare.

The Sources and Challenges of Norm Generation in Tort Law

AbstractTort cases apply particular standards of behaviour to defendants and society, often using common-sense sounding benchmarks such as “reasonableness”. This article explores the ways in which courts establish facts, for the purpose of making a decision on appropriate standards of behaviour, by using sources of authority from the world beyond tort. Facts, rather than being separate from and prior to the application of the legal norms, are often inseparably bound with legal judgment in any particular decision. Two areas of tort law are assessed: some of the English asbestos cases, and the Dutch Urgenda climate change case. The facts required for the setting of, and compliance with, the standard of negligence in these cases are found in a range of external sources, including standards, rules and understandings from scientific bodies, regulators, legal and non-legal documents.