Tort Claims Research Articles

“And Justice for All”: Modifying the Ninth Circuit’s <em>Feres</em> Doctrine Test to Reduce Service Member Inequity

In 1946, the Federal Tort Claims Act (FTCA) waived what was once absolute: federal sovereign immunity for government-caused torts. Nevertheless, the Supreme Court’s Feres doctrine declines to extend the FTCA’s immunity waiver to certain tort claims of military service members. The doctrine precludes petitioners who have suffered an injury incident to their military service from bringing a negligence claim against the government. Its origins are not without controversy and modern courts often have trouble applying it in an equitable manner. In 2021, for example, the U.S. Navy negligently contaminated the drinking water supply of thousands of civilians and service members on the island of Oahu. Although recent case law applying the FTCA to drinking water-related torts indicates a willingness to allow some of these claims to proceed, that willingness has not been extended to service members due to the Feres doctrine. This Note argues that the Feres doctrine is inequitable because it excludes service members’ injuries in an overbroad manner. Further, this Note proposes a modified Feres test based on the Ninth Circuit’s interpretation of the doctrine to promote equity and applies it to the Navy’s actions on Oahu.

Coordination of contractual and tort claims in the European law of jurisdiction

Under Article 7(1) and Article 7(2) Brussels I-bis Regulation of 2012, there is jurisdiction for contractual and tort claims. The delineation of these matters is not easy, particularly in cases where there is a concurrency of actions. The discussion is continuing even after the Wikingerhof judgment of the European Court of Justice of 24 November 2020. The present article discusses weaknesses associated with different concepts like duties and interests. The introduction of additional elements like the ‘indispensability’ of analysing the contract in cases of tort jurisdiction are difficult to apply and lead to new uncertainty. The admissibility of annex jurisdiction for contract and tort would alleviate the problem.

Towards the Establishment of Spouse Tort Liability within Marriage

In the evolution of law, there is a growing awakening of individual consciousness. The number of intra-marital tort claims not predicated on divorce has increased in judicial practice. However, China currently only has a compensation system for damages arising from divorce, which is not conducive to the protection of the legitimate rights and interests of the parties involved. With the development of the economy, the liberalization of ideas, the collision of Chinese and Western legal thoughts, and the independent status of marital economics, the establishment of an intra-marital tort system has become possible. Intra-marital tort litigation is not predicated on the termination of marriage, but is established to protect the victim, punish the at-fault party, and prevent the occurrence of tortious acts. The elements of such litigation should have stricter requirements than general torts.

Legal Implications for PPAT Employees Serving as Instrumental Witnesses in Title Transfer Agreements

Employees or instrumental witnesses of PPAT play a crucial role, particularly in service provision. Not only can Land Deed Officials be defendants, but employees or instrumental witnesses may also become defendants if there is a tort claim due to slow services causing harm to their clients. The presence of instrumental witnesses is vital as it can help maintain the safety of the PPAT's position in the event of contested deeds. The purpose of this study is to determine the legal consequences for PPAT employees who act as instrumental witnesses in title transfer agreements. This research employs a normative juridical method with a statutory approach and a conceptual approach. The findings of this study indicate that if an issue arises after the service is provided by the Land Deed Official to the client and involves employees or instrumental witnesses, the Land Deed Official must ensure the safety of their employees. PPAT employees who act as witnesses in title transfer agreements bear significant legal responsibilities, particularly if they are involved in unlawful acts. They may face legal liability under Article 1365 of the Indonesian Civil Code, which states that any unlawful act causing damage to another obliges the person who committed the act to compensate for the damage.

What to do With Cross-Border Environmental Pollution: Legislative Aspects

Abstract – Environmental torts and possibility of trans-border dispute settlement thereof has gained significant prominence in the recent years. Cases such as Urgenda foundation v the State of the Netherlends, Milieudefensie et al. v. Royal Dutch Shell plc., ClientEarth v. Enea, Neubauer et al. v. Germany demonstrate that environmental tort cases can be brought by stakeholders globally rather than relying on involvement of a relevant national responsible authority. EU climate policy of decreasing GHG emissions and the ambitious target of reaching climate neutrality by 2050 has resulted in a rapid development of environmental law. Thus, environmental regulation is becoming increasingly complex and possible breaches may cause serious legal consequences affecting everyone not just selected individuals or states. These developments could possibly lead to a necessity of a forum or rules where any natural person or an NGO could bring a claim against a state or multinational corporation which engages in illegal activities causing harm the environment on a global scale. Using litigation as a tool to empower society to stand against environmental wrongdoers may serve as a deterring factor to maintain order when it comes to environmental regulation. While such reasoning may seem farfetched and extreme, nevertheless it still raises a question of current regulation on determination of jurisdiction and the applicable law and whether it would be possible to benefit from developing these rules. By engaging in a systematic literature analysis identifying the relevant terms, the research shall explore the basic principles of private international law in relation to assigning jurisdiction and determining applicable law in claims concerning environmental torts. The research shall develop a methodology with the aim of covering and identifying a wider range of problems related to the determination of jurisdiction and application of law in cross-border environmental tort claims. Some of the main issues concern the determination of defendants in cases involving multinational corporations, multi-claimant cases, and the compensation of indirect damages. An exploration of material aspects in the developments of the current EU regulation and guidelines shall be analysed in conjunction with the aforementioned notion. The result of the study not only will reflect the specifics of the application of the Brussels Ibis Regulation and Rome II regulation in cross-border environmental torts, but also how the EU environmental regulation could potentially promote corporate responsibility and environmental protection. Thus, developing research on interaction between private international law and environmental law. Keywords - environmental tort, SEG emissions, jurisdiction, applicable law, cross-border pollution

Contractual Limitations of Liability and their Impact on Tort Claims

Abstract By concluding a contract, parties intend to allocate the contractual risk between them. This means that parties must anticipate any future adverse result and determine whether a party will have to cover any loss incurred by the other party as a result of performance or, more often, bad performance. In sales contracts, for example, parties may decide to exclude any liability for defects of goods, especially when selling used goods or for other reasons, or at least to limit liability for some defects or to limit types of possible claims. Similarly, in mergers and acquisitions, parties very strictly determine what is known by the seller in a disclosure letter and give the buyer access to some information in a data room prior to the conclusion of the contract to limit liability to the unknown and the non-disclosed. CA Hill/BJM Quinn/SD Sollomon, Mergers and Acquisitions, Law, Theory, and Practice (2019) 372–403; R Tschäni/H-J Diem/M Wolf (eds), M&A-Transaktionen nach Schweizer Recht (3rd edn 2021) 209–215 (paras 420–431); O Duys/K Henrich in: W Hölters (ed), Handbuch Unternehmenskauf (8th edn 2015) ch 16, paras 16.108–16.116. For each party, much of contractual drafting boils down to limiting risk to the greatest extent possible, or at least to ensure compensation for any risk incurred. If parties are on an equal footing, this may lead to an equitable allocation of risk and a balanced contractual liability regime. Contractual limitations of liability are, therefore, part of this process of adequate allocation of risks. In this contribution, I will briefly address three issues. First, I will look at which principles are applicable to the validity of limitations of contractual liability (I) and then determine to what extent these principles apply to tort claims (II). This will finally lead me to determine whether the Principles of European Tort Law (PETL) need to be supplemented by a further rule dealing with the validity of contractual clauses limiting liability in tort (III).

Denial of Russia’s Sovereign Immunity in Tort Claims by IDPs in National Courts of Georgian

Denial of Russia’s Sovereign Immunity in Tort Claims by IDPs in National Courts of Georgian

CIVIL LIABILITY OF SELF-GOVERNMENT BODIES

This article provides a comprehensive exploration of civil liability within self-government bodies, examining the legal framework, sources of liability, and strategies for accountability and risk mitigation. Self-government bodies wield significant power in shaping local affairs and services, yet they face complex challenges in navigating the balance between autonomy and accountability. The concept of sovereign immunity, historical precedent, and evolving legal standards shape the landscape of civil liability, with implications for transparency, trust, and effective governance. Key sources of liability include tort claims, constitutional violations, and statutory obligations, posing financial and reputational risks for government entities.

Tort Claims Arising From Military Aircraft Crashes Are Not Preempted By The Federal Aviation Act

The Second Circuit's landmark ruling in Jones v. Goodrich Pump & Engine Control Sys., Inc. establishes crucial precedent by asserting that tort claims stemming from military aircraft crashes are not field or conflict preempted by the Federal Aviation Act (the Act). This decision, the first of its kind at the appellate level, carries far-reaching implications. The court’s rationale, grounded in the Act’s plain language, emphasizes that “public aircraft,” including military ones, are exempt from Federal Aviation Administration regulation. Title 49, section 44701(a)(1), explicitly excludes public aircraft from the Act’s purview. While the court’s analysis relies on the Act’s text, it is fortified by a comprehensive examination of legislative history dating back to the early days of aviation. This Article contends that the Second Circuit’s reasoning, supported by both statutory language and over a century of legislative evolution, should serve as a universally adopted guideline. The separation of civil and military aircraft regulation, initiated in the Paris Convention of 1919 and continued through subsequent legislative acts, underscores the distinct standards governing military aviation. The inherent divergence in purpose and design between civil and military aircraft, coupled with Congress’s consistent exclusion of military aircraft from FAA regulation, solidifies the argument against preemption. As the sole appellate authority on this matter, the Jones decision provides a robust foundation for future courts facing Federal Aviation Act preemption challenges in “public aircraft” tort cases.

Jurysdykcja krajowa w sprawie roszczeń deliktowych z tytułu afery dieselgate w świetle dotychczasowego orzecznictwa TSUE: uwagi na tle wyroku TSUE w sprawie C-343/19 VKI v. Volkswagen oraz postanowienia Sądu Najwyższego z dnia12 maja2022 r., IICSKP1506/22

The article discusses the judgment of the Court of Justice of the European Union (CJEU) in case C-342/19 VKI v. VW and the decision of the Polish Supreme Court of 12 May 2022, both connected with the infamous “dieselgate”. The cases concerned claims of the owners of Volkswagen cars equipped with the “defeat devices” that manipulated the emissions tests. The question decided by both courts was whether claimants may enforce their tort claims for damages against the manufacturer in the Member States where the cars where acquired. CJEU found that they do and the Polish Supreme Court followed suit. The article analyses both cases against the background of existing case law of the European Court under Article 7(2) of the Brussels I Regulation. According to the well-established case law of the Court, the place of harmful event is to be understood both as the place where the event leading to damage is located, as well as the place where the damage occurred. Regarding the place of damage, the author takes the view that it occurs not in the state where the car is acquired – as found by CJEU - but where it is registered and used. This in itself should not, however, suffice to establish the jurisdiction of the court at the place of damage. In each case (and not only when the damage is purely financial) the court must confirm under the individual circumstances of the case that this place is suitable as the forum for resolving the dispute. Among these circumstances the most important is that of the foreseeability for the defendant that because of his or her actions he or she can be sued at the given forum. This possibility to foresee should be established on the basis of defendant’s actions undertaken in the forum. In cases where a defective product is the source of liability (such as in VKI v. VW) these are in particular: marketing products in that state or directing advertising activities thereto. The paper also compares European solutions with those adopted in US. The author argues that the CJEU should more bold in looking into an American standard that requires “some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws” and thus protect the defendant from being sued in a place of damage that is loosely connected with the case.

Tort tales and total justice: Exploring attitudes toward everyday tort claims for workplace injuries

AbstractDespite some retrenchment, the litigation state remains alive and well. All this litigation has engendered intense debates over whether increased lawsuits represent a rising tide of justice or a flood of frivolous claims. Tort law has been at the center of these debates for decades, standing at the fault line between “tort tale,” “total justice,” and “mixed” narratives about the perils and benefits of litigation. In this article, we use a survey experiment to probe attitudes toward claims for workplace injuries in light of these narratives. We find that our participants held multifaceted views. On one hand, they favored making claims over doing nothing or asking family members for help and saw lawsuits as equally appropriate as filing a government claim or hiring a lawyer to send a demand letter. On the other hand, tort tale themes cast a subtle shadow over our participants' views. When told claimants did not rush to the courts in defiance of tort tale expectations, our participants saw the lawsuit as more justified. Indeed, the more remedies exhausted prior to litigation, the more justifiable the lawsuit seemed, even though repeated denials of claims might undermine faith in their merits. The bottom line, we contend, is that attitudes toward litigation reflect not only the choice of remedy but also how remedies are used, even when the underlying claim is meritorious—a point that could be useful to practitioners and advocates as they weigh claiming options as well as litigation and public communication strategies.

Does a judicial expert in Russian law enjoy immunity from civil liability or should he bear property responsibility for the quality of the conclusion prepared by him?

Present article is devoted to the search for an answer to the question of whether a judicial expert in Russian law should bear civil (property) responsibility for drawing up an expert opinion that does not meet the requirements of the law, or the nature of the relations connecting him with the court, the procedural position of the expert and the specifics of the function performed by him, taking into account his social and individual competence determines the granting of immunity from bringing a forensic expert to property liability. In conclusion, Despite the above arguments in support of the existence of immunity, as well as the emerging approaches of Russian law enforcement practice, it seems that a forensic expert should be a subject of property liability both to the court, which has the right to refuse to pay remuneration or reduce its amount if it finds that the expert improperly fulfilled his duties to conduct an expert study, and before the parties to the court proceedings, who have the right to file an independent tort claim against him for recovery of damages caused.

Disentangling Immigration Policy From Tort Claims for Future Lost Wages

Abstract While largely unknown, the Indiana Supreme Court’s 2017 opinion Escamilla v. Shiel Sexton Co. deserves to be canonized for closely examining – and, ultimately, rejecting – the incursion of federal immigration law and policy into state tort law. For over two decades, state and federal courts have relied on the United States Supreme Court’s 2002 ruling in Hoffman Plastic Compounds v. NLRB, to deny future lost wages awards to successful tort claimants who lack documentation. Escamilla reveals the faulty logic underlying this caselaw and provides a clear and straightforward framework for future courts to employ when faced with this issue. Ultimately, Escamilla demonstrates why plaintiffs’ undocumented status, alone, is insufficient to allow tortfeasors to escape paying tort victims what often amounts to substantial damages. In doing so, Escamilla fortifies the compensation and deterrence functions of tort law.

Consumer Jurisdiction and Choice of Law Rules in European and Chinese Private International Law

This article compares consumer jurisdiction and choice of law issues in China and the EU. It aims to answer the following questions. What is the notion of consumer? Are farmers, package travel tourists and timeshare tourists consumers? Are dual-purpose contracts consumer contracts? Is a consumer jurisdiction rule needed in China and if yes, under what ground and with what conditions? Is choice of court agreement in consumer contracts valid? How to limit the exercise of party autonomy and what role mandatory provisions may play? Shall consumer contract and tort claims be subject to the same applicable law? Based on a comparative analysis with European law, this article concludes that to improve cross-border consumer protection, China should reform its law to include package travel contracts and timeshare contracts into consumer contracts and determine the nature of dual-purpose contracts pursuant to their primary purpose. Moreover, the current limitation on party autonomy should be lifted by providing freedom to both parties and relying on mandatory provisions as a safety valve. The consumer choice of law rule and its interaction with the general contract choice of law and tort choice of law rule needs to be reexamined.

Цивилистические основания донорства

The authors reveal in the article the nature, the main idea of donor legal relations, legal relations in the sphere of transplantation of donor organs and tissues, pointing out the problems that have objectively developed in our legal order. In fact, transactions in the sphere of donation and transplantation exist, but there is no proper legal regulation of the emerging legal relations. The authors adhere to the position that a person has the right to dispose of his body provided that such disposal does not entail the donor’s death or disability, and has the right to a commensurate compensation, acting not as a payment, but as a compensation for the harm to health, which was or could be a consequence of entering into donor legal relations. The necessity of terminological unity of normative-legal regulation of these relations is shown. The main purpose of the work is to reveal the private legal nature of donation, donor legal relations and legal relations in the field of transplantation. An attempt is made to describe the system of transactions in donation, proper ways of defence, problems of correlation of tort and contractual claims in relation to donation are discussed. Foreign experience is touched upon, showing the uncertain steps of different legal orders towards a freer regulation of this sphere of social relations. Political-economic and moral reasoning on the necessity of transferring donation relations from the sphere of public law to private law, as well as from state regulation to free market is given. Attention is emphasised on a number of contradictions that require resolution in doctrine, legislation and judicial practice.

How a Simple Tort Claim is Transformed into an Exposition of the Implications of Artificial Intelligence on the American Legal System

This article discusses issues relating to artificial intelligence (AI) in the context of a lawsuit essentially alleging negligence. The case, however, quickly turned to a discussion relating to how the plaintiff’s attorneys, with the aid of ChatGPT, fabricated as series of precedents that would have permitted their case to go forward on the basis of the application of a statute of limitations found in the Montreal Convention. The article discusses AI as it applies to the Rules of Professional Conduct and Rule 11 of the Federal Rule of Civil Procedure relating to the duties and responsibilities of attorneys. All of the quotations and factual representations are taken from the Case Documentations.

RESPONSIBILITY OF A LAND DEED OFFICIAL IN A MERGER LAWSUITS FOR TORT AND DEFAULT (DECISION STUDY: 217/PDT.G/2017/PN.MLG)

The judges legal consideration in combining tort and default claims is justified. In District Court Decision Number 217/Pdt.g/2017/PN.Mlg stated that Defendant I had been proven to have committed an act of default for not paying off the dependents on the payment for the sale and purchase of land and buildings, and Defendant II had been proven to have committed an torfOnrecht for making and using notarial sale and purchase agreement in violation of the law, so that it caused losses to the Plaintiff.The research method used is normative juridical, using secondary data from library research. The panel of judges in accepting the merger of tort and default lawsuits was carried out by analyzing whether the two lawsuits were closely related. So if the two lawsuits have a close relationship between one and the other lawsuit, then the merger lawsuit can be justified, where the merger of the lawsuit can create a simple, fast and light cost court, and can avoid conflicting decisions.

Criminal Acts Against The Law Of Corruption (Case Study Medan District Court No. 45 / Pid.Sus-TPK/2021 / Fr.Mdn jo Medan High Court case No. 33/Pid.Sus-TPK/2021 / PT.Mdn)

In essence, the land has a very important meaning for human life, because the land is the main foundation of all activities carried out. In accordance with the ownership and use of land in Indonesia, there are lands that are controlled by state-owned institutions, one of which is land controlled by PT.Kereta Api Indonesia (Persero). State-controlled land PT.Kereta Api Indonesia (Persero) which was originally to support the potential development process of PT.Kereta Api Indonesia (Persero) itself, now there are many houses and community business activities throughout Indonesia, one of which is in the city of Medan, North Sumatra province, there are many areas on the edge of the railway where on each edge there are houses and business activities of residents who are renting from the land assets of PT.Kereta Api Indonesia (Persero). The problem raised in this thesis is the lease of land assets of PT.KAI (persero) Division I North Sumatra which led to the conviction in the verdict of committing acts against the law of corruption, because they do not want to fulfill their obligations to pay rent, while the requirements of Article 2 and Article 3 of the UUPTPK are acts against the law (Wederrechtelijkheid) or abuse of control that begins with a violation of procedure or, contrary to the rules or deviations from the authority provided for in the law on procurement of government goods and services, the procedure starts from planning, the need until the completion of all activities to obtain government goods/services with the aim of enriching themselves or benefiting themselves, causing financial losses to the state. While the unlawful acts committed by the defendant include the scope of civil (Onrecht Matiq Overheidsdaad) which is private (vide Article 1365 of the Civil Code) and can file a tort claim in the form of reimbursement of costs, losses, and interest as in Article 1243 of the Civil Code and Article 1267 of the Civil Code.

미국 연방불법행위청구법(FTCA)상 재량기능 예외와 그 시사점

On July 14, 2022, the Supreme Court of Korea made a ruling on the “state compensation claim case due to overcrowded incarceration.”(Korean Supreme Court Decision No. 2017Da266771) One ex-prisoner, recognized the overcrowded confinement period as 186 days, was awarded 1.5 million Korean Won in state compensation and the other ex-prisoner, recognized the overcrowded confinement period as 323 days, was awarded 3 million Korean Won in state compensation. The Supreme Court of Korea acknowledged the state’s damages liability based on the violation of ‘dignity and value as a human being’ Sect. 10 of Korean Constitution, not the violation of specific laws in this ruling. Unlike the National Compensation Act in Korea, the state compensation liability based on the tort of a public officer’s in the United States, which separately stipulates the state compensation liability due to the public officer’s intentional torts and the state compensation liability caused by the public officer’s negligence. The Federal Tort Claims Act has a discretionary function exclusion clause, and the U.S. Supreme Court recognizes this exclusion in its rulings. The U.S. Federal Circuit courts have presented different rulings on the scope of exclusion from discretionary function in relation to the illegal acts of federal officers. In Bivens claims, the alleged violation of the federal constitution here is a violation of very specific constitutional provisions, such as the 1st and 8th Amendments. It did not target violations of the ideology of guaranteeing basic human rights such as ‘dignity and value as a human being’. Regarding the Bivens claim, the U.S. Supreme Court would not hardly find cases in which the state recognized torts liability for the human rights violations of prisoners. Even considering these points, the state compensation liability should not be based on a violation of the Korean Constitution Sect. 10 ‘dignity and value as a human being’, but on a violation of the actual laws or specific regulations. There are concerns that the recognition of state compensation liability due to a violation of the Korean Constitution Sect. 10 ‘dignity and value as a human being’ would have provided a starting point for similar state compensation lawsuits in the future in Korea. If it becomes a catalyst to promote supplementary works such as new legislations and construction of new facilities to improve prisoner’s basic human rights, it might be also considered to be meaningful Korean Supreme Court’s decision in Korea.

Contractual Arbitration Clauses and Non-Contractual Claims

Are non-contractual claims such as tort claims covered by standard arbitration clauses? Italian arbitration law contains a provision which seems to resolve this issue in favour of arbitration but which is interpreted restrictively by the Italian Court of Cassation. In other jurisdictions, the traditional approach was to find the answer by interpreting the wording of the clause. The modern view is to focus instead on the requirement of ‘factual equivalence’ between the non-contractual claim and the performance of the contract that contains the arbitration clause. Non-Contractual Claims, Principle of Wide Interpretation, In Favorem Validitatis, One-Stop Adjudication, Italian Court of Cassation, Italian Code of Civil Procedure, Wind Jet Judgment, General Arbitration Clauses, Fiona Trust, CDC Hydrogen Peroxide