Two Conceptions of Tort Damages: Fair V. Full Compensation
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Self-Help and the Nature of Property
2005] SELF-HELP AND THE NATURE OF PROPERTY Henry E. Smith* I. INTRODUCTION Self-help and the law's response to it lie at the center of a system of property rights. This has become all the more apparent as questions of property - and whether to employ property law at all - have arisen in the digital world. In this Article, I argue that self-help comes in different varie- ties corresponding to different strategies for delineating entitlements. Like property entitlements more generally, the law does not regulate self-help in as detailed a fashion as it could if delineation were costless. Both property entitlements and self-help show far less symmetry and a far lesser degree of tailoring than we would expect in a world in which we did not face delinea- tion costs of devising, describing, communicating, and enforcing the con- tent of rights and privileges to use resources. Part II of this Article sets the stage for an analysis of self-help by showing how the law-and-economics treatment of entitlements leads one to expect greater symmetry in entitlements than is to be found in the law. In the commentary, rights to be free from pollution are paired conceptually with so-called rights to pollute, but the law does not provide for free stand- ing rights - as opposed to occasional privileges - to pollute. Part III shows how these apparent anomalies receive an explanation on a theory of enti- tlement delineation that accounts broadly for costs as well as benefits. Roughly speaking, the law faces a choice among strategies for delineating entitlements, and in the choice among these strategies, the benefits of mul- tiple uses of resources must be traded off against the costs of delineation and enforcement. -
Trespass Torts and Self-Help for an Electronic Age
Tulsa Law Review Volume 44 Issue 4 The Scholarship of Richard A. Epstein Summer 2009 Trespass Torts and Self-Help for an Electronic Age Catherine M. Sharkey Follow this and additional works at: https://digitalcommons.law.utulsa.edu/tlr Part of the Law Commons Recommended Citation Catherine M. Sharkey, Trespass Torts and Self-Help for an Electronic Age, 44 Tulsa L. Rev. 677 (2013). Available at: https://digitalcommons.law.utulsa.edu/tlr/vol44/iss4/2 This Legal Scholarship Symposia Articles is brought to you for free and open access by TU Law Digital Commons. It has been accepted for inclusion in Tulsa Law Review by an authorized editor of TU Law Digital Commons. For more information, please contact [email protected]. Sharkey: Trespass Torts and Self-Help for an Electronic Age TRESPASS TORTS AND SELF-HELP FOR AN ELECTRONIC AGE Catherine M. Sharkey* INTRODU CTION ................................................................................................................ 678 1. SELF-HELP: THE MISSING THIRD REMEDY .......................................................... 679 II. CONCEPTUALIZING SELF-HELP IN CYBERTRESPASS DOCTRINE ........................... 684 A. Self-Help in Plaintiff's Prima Facie Case ................................................... 684 1. Threshold Prerequisite to Invoke Legal Process ................................... 684 2. Liability for Evasion of Self-Help ........................................................ 687 B. Self-Help "Opt-Out" as Affirmative Defense ............................................ -
Agreement and Release of All Claims
SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS This Settlement Agreement and Release of All Claims (“Agreement”) is made and entered into by and between ANDRES ALEXANDER CACEDA-MANTILLA and CITY OF PALMER, ALASKA (hereinafter collectively referred to as “the Parties”). “Claimant” shall collectively mean Andres Alexander Caceda-Mantilla and his respective heirs, executors, administrators, successors, trustees, and assigns. “Released Party” shall collectively mean City of Palmer, Alaska, and its respective, employees, assigns, heirs, agents, attorneys, adjusters, insurers, and re-insurers. I. Recitals A. The purpose this Agreement is to facilitate the settlement, dismissal with prejudice, and release of any and all claims which were asserted, or which could have been asserted, with respect to the facts giving rise to Andres Alexander Caceda-Mantilla v. City of Palmer, Alaska, Kristi Muilenburg, Jamie Hammons, Daniel Potter, and Hilary Schwaderer, Case No. 3PA-18-01410 CI, a lawsuit now pending in the Superior Court for the State of Alaska at Palmer (“the Lawsuit”). B. The City of Palmer denies all the allegations of the Lawsuit and specifically denies that it has any liability based on the allegations set forth in the Lawsuit. C. The City of Palmer regrets any inconvenience, embarrassment, or personal hardship the incident may have caused Mr. Caceda-Mantilla. D. The Parties desire to enter into this Agreement to provide, among other things, for consideration in full settlement and discharge of all claims and actions of {00821062} SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS Andres Alexander Caceda-Mantilla v. City of Palmer, Alaska, et al., Case No. 3PA-18-01410 Civil Page 1 of 9 Claimant for damages that allegedly arose out of, or due to, the facts and circumstances giving rise to the Lawsuit, on the terms and conditions set forth in this Agreement. -
THE ORIGINS of the ACTION of TRESPASS on the CASE ELIZABETH JEAN Dixt
THE ORIGINS OF THE ACTION OF TRESPASS ON THE CASE ELIZABETH JEAN DIXt \\ITHINT THE last decade the origins of the action of trespass on the case have become a controversial subject arousing interest among lawyers and historians as well as among those more specialized hybrids, legal historians. At the beginning of this century no one questioned the theory of the origins of the action proposed by Ames, Holmes, Holdsworth, Salmond and others.' It was generally believed by these writers that the action of trespass on the case was a direct derivative from the well known in consimili casu clause of Edward I's Statute of 1285, West- minster II, chapter 24. Behind this belief was the support of older writers, Chitty, Reeves, Stephen and Blackstone,2 confirming beyond doubt the relationship between the action of case and Westminster II. In the course of the last thirty years, however, attention has been directed to flaws in the generally accepted theory of the origin of case. The objections were strongly voiced several years ago by Mr. Theodore F. T. Plucknett, who concluded from his study that the background, content and results of the Statute of Westminster II, and particularly of the in consimili casu clause, indicated that the action of case had no connection with the Statute.' There are two sides to the present controversy: one is represented by Mr. Plucknett himself; the other is represented by Sir William Holds- worth4 and his associate at Oxford, Mr. P. A. Landon.5 In support I Ph.D., Yale University, 1936. This article is part of a dissertation presented for the degree of Doctor of Philosophy in Yale University, June, 1936. -
The Hand Formula in the Draft "Restatement (Third) of Torts": Encompassing Fairness As Well As Efficiencyalues V
Vanderbilt Law Review Volume 54 Issue 3 Issue 3 - Symposium: The John W. Wade Conference on the Third Restatement of Article 10 Torts 4-2001 The Hand Formula in the Draft "Restatement (Third) of Torts": Encompassing Fairness as Well as Efficiencyalues V Kenneth W. Simons Follow this and additional works at: https://scholarship.law.vanderbilt.edu/vlr Part of the Torts Commons Recommended Citation Kenneth W. Simons, The Hand Formula in the Draft "Restatement (Third) of Torts": Encompassing Fairness as Well as Efficiencyalues, V 54 Vanderbilt Law Review 901 (2001) Available at: https://scholarship.law.vanderbilt.edu/vlr/vol54/iss3/10 This Symposium is brought to you for free and open access by Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Law Review by an authorized editor of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. The Hand Formula in the Draft Restatement (Third) of Torts: Encompassing Fairness as Well as Efficiency Values Kenneth W. Simons* I. THE DRAFT RESTATEMENTS DEFINITION OF NEGLI- GENCE ............................................................................... 902 II NEGLIGENCE AND FAULT ................................................... 905 III. THE DRAFT's NEGLIGENCE CRITERION AND ECONOMIC EFFICIENCY ..................................................... 906 A. DistinguishingTradeoffs from Economic Efficiency ................................................................ 908 B. DistinguishingEx Ante Balancingfrom Consequentialism.................................................. -
Restatement (Second) of Torts (1965)
Law 580: Torts Thursday, November 12, 2015 November 10, 11, 12: • Casebook pages 813-843, 866-884 • Oral Argument #4 on Tuesday November 10 Chapter 11: Property Torts and Ultrahazardous Activities II. Property Torts D. Consent III. Ultrahazardous (Abnormally Dangerous) Activites Trespass to Land Prima Facie Case 1. Volitional Act 2. Intent to cause entry onto land 3. Entry onto plaintiff’s land Restatement (Second) of Torts (1965) § 158. Liability for Intentional Intrusions on Land. One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally (a) enters land in the possession of the other, or causes a thing or a third person to do so, or (b) remains on the land, or (c) fails to remove from the land a thing which he is under a duty to remove. Affirmative Defenses: 1. Consent 2. Self Defense 3. Defense of Others 4. Defense of Property 5. Recapture of Property 6. Necessity Vincent v. Lake Erie Transportation (Minn 1910) p. 824 1. Who sued whom? 2. What happened? 3. What’s the procedural history? 4. What question(s) is/are before this court? 5. What does plaintiff argue? 6. What does defendant argue? 7. What does the court decide? 8. Why? “We are satisfied that the character of the storm was such that it would have been highly imprudent for the master of the Reynolds to have attempted to leave the dock or to have permitted his vessel to drift a way from it. …Nothing more was demanded of them than ordinary prudence and care, and the record in this case fully sustains the contention of the appellant that, in holding the vessel fast to the dock, those in charge of her exercised good judgment and prudent seamanship. -
Tort Recovery for Loss of a Chance David A
University of Missouri School of Law Scholarship Repository Faculty Publications Fall 2001 Tort Recovery for Loss of a Chance David A. Fischer University of Missouri School of Law, [email protected] Follow this and additional works at: http://scholarship.law.missouri.edu/facpubs Part of the Torts Commons Recommended Citation David A. Fischer, Tort Recovery for Loss of A Chance, 36 Wake Forest L. Rev. 605 (2001) This Article is brought to you for free and open access by University of Missouri School of Law Scholarship Repository. It has been accepted for inclusion in Faculty Publications by an authorized administrator of University of Missouri School of Law Scholarship Repository. TORT RECOVERY FOR LOSS OF A CHANCE David A- Fischer- "Loss of a chance" is a novel theory of causation commonly used by courts in the United States in medical misdiagnosis cases. Yet, the theory has a vastly broader potential application than this. In fact, it could be applied in virtually every case of questionable causation. While this Article asserts that the doctrine could legitimately be expanded and applied in a variety of additionalsituations, the Article cautions that it would be unwise to apply the doctrine so broadly that it routinely supplants traditional causation rules. The Article searches for a principled basis for limiting the theory within proper bounds by comparing the differing applicationsof the loss of a chance doctrine in British Commonwealth cases and United States cases. The Article concludes that current rationalesfor the doctrine do not provide an adequate limiting principle, but that a case by case policy analysis can appropriatelylimit the theory. -
GUZMAN Delivered the Opinion of the Court
IN THE SUPREME COURT OF TEXAS 444444444444 NO. 14-0067 444444444444 MIRTA ZORRILLA, PETITIONER, v. AYPCO CONSTRUCTION II, LLC AND JOSE LUIS MUNOZ, RESPONDENTS 4444444444444444444444444444444444444444444444444444 ON PETITION FOR REVIEW FROM THE COURT OF APPEALS FOR THE THIRTEENTH DISTRICT OF TEXAS 4444444444444444444444444444444444444444444444444444 Argued March 26, 2015 JUSTICE GUZMAN delivered the opinion of the Court. In this residential construction dispute, the paramount issue on appeal is whether the statutory cap on exemplary damages is waived if not pleaded as an affirmative defense or avoidance. See TEX. R. CIV. P. 94 (requiring pleading and proof of affirmative defenses and avoidances); see also TEX. CIV. PRAC. & REM. CODE § 41.008(b) (limiting exemplary damages to the greater of $200,000 or two times economic damages plus noneconomic damages not exceeding $750,000). Our courts of appeals are split on the issue, and in this case, the lower court affirmed an exemplary damages award in excess of the statutory cap because the petitioner did not assert the cap until her motion for new trial. 421 S.W.3d 54, 68-69 (Tex. App.—Corpus Christi 2013). We hold the exemplary damages cap is not a “matter constituting an avoidance or affirmative defense” and need not be affirmatively pleaded because it applies automatically when invoked and does not require proof of additional facts. See TEX. R. CIV. P. 94. Here, the petitioner did not plead the statutory cap but she timely asserted the cap in her motion for new trial. We therefore reverse the court of appeals’ judgment in part and render judgment capping exemplary damages at $200,000. -
Claims of Wrongful Life and Wrongful Birth - NY by Victoria Belniak
October 2006 Health Care Law Claims of wrongful life and wrongful birth - NY By Victoria Belniak Background The New York courts have long struggled with determining what injuries are properly compensable when a child is born impaired, and the parents are able to establish that a health care provider was negligent in failing to detect the impairment prenatally or to advise the parents of the likelihood of the impairment. Typically, in such cases, parents will argue that had they been advised of the impairment before the child was born, they would have chosen to terminate the pregnancy. In wrestling with the thorny damages issues presented by such cases, the New York courts have made a distinction between damages stemming from “wrongful life” and those stemming from “wrongful birth.” Issues What is the difference between a claim for wrongful life and one for wrongful birth, and can recovery be had under such theories? Comments Wrongful life claims are typically initiated on behalf of an impaired infant, seeking to recover damages for the very fact that he or she was born at all. The New York courts have rejected such claims, signaling an unwillingness to hold that life, even if marred by disability or disease, is a compensable injury. In Alquijay v. St. Luke’s-Roosevelt Hospital, 63 N.Y.2d 978, 473 N.E.2d 244 (1984), a mother claimed that had she known that her baby would be born with Down’s syndrome, she would have terminated the pregnancy. The Court of Appeals held that there is no cause of action for wrongful life, and life, even when the baby is born in an impaired state, does not constitute an injury. -
"Tort" Standards for the Award of Mental Distress Damages in Statutory Discrimination Actions
University of Michigan Journal of Law Reform Volume 11 1977 Developing "Tort" Standards for the Award of Mental Distress Damages in Statutory Discrimination Actions Harold J. Rennett University of Michigan Law School Follow this and additional works at: https://repository.law.umich.edu/mjlr Part of the Civil Rights and Discrimination Commons, Legal Remedies Commons, and the Torts Commons Recommended Citation Harold J. Rennett, Developing "Tort" Standards for the Award of Mental Distress Damages in Statutory Discrimination Actions, 11 U. MICH. J. L. REFORM 122 (1977). Available at: https://repository.law.umich.edu/mjlr/vol11/iss1/8 This Note is brought to you for free and open access by the University of Michigan Journal of Law Reform at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in University of Michigan Journal of Law Reform by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. DEVELOPING "TORT" STANDARDS FOR THE AWARD OF MENTAL DISTRESS DAMAGES IN STATUTORY DISCRIMINATION ACTIONS Affronts to dignity are compensable by monetary damages for "mental distress" 1 through various tort actions.2 Some courts recently have rec ognized significant similarities between the emotional injury suffered by victims of such "dignitary"3 torts and the emotional injury suffered by persons aggrieved under federal and state discrimination statutes.4 In creasingly, victims of discrimination have sued successfully under these statutes for mental distress damages.5 1 "Mental distress" takes many forms and is referred to by many names. The injury discussed in this article is primarily one that is not caused by physical injury. -
The Metropolitan Corporate Counsel: Are Punitive Damages Available
CorporateThe Metropolitan Counsel® www.metrocorpcounsel.com Volume 13, No. 3 © 2005 The Metropolitan Corporate Counsel, Inc. March 2005 Are Punitive Damages Available Under The Copyright Act? Marc J. Rachman Sara L. Edelman and David Greenberg DAVIS & GILBERT LLP Given the Copyright Act’s1 express enu- meration of available remedies under the Act and its silence with respect to punitive damages, one would think that a copyright owner is barred from seeking punitive damages when bringing a claim for copy- Marc J. Rachman Sara L. Edelman David Greenberg right infringement. Several recent deci- sions in the Southern District of New York, profits of the infringer... or ... statutory statutory damages amount. however, have allowed punitive damages damages....” 2 A copyright owner may elect The Second Circuit United States Court claims to proceed. This article will discuss to recover statutory damages at any time of Appeals long ago stated explicitly that the traditional view that punitive damages prior to final judgment; such damages can “[p]unitive damages are not available in are not available under the Copyright Act, range anywhere from as little as $200 for statutory copyright actions.” 6 That court and will explore recent decisions indicating innocent infringements to $150,000 for recently explained that “[t]he purpose of that such damages might be recoverable willful infringements.3 Notably, Congress punitive damages – to punish and prevent under certain circumstances. This article made no provision in the Act for awards of malicious conduct – is generally achieved will then discuss the implications for both punitive damages. “The language is clear, under the Copyright Act through the provi- plaintiffs and defendants, and will finally unambiguous, and exclusive: these are the sions of 17 U.S.C. -
1:16-Cv-08219 Document #: 36 Filed: 05/17/17 Page 1 of 17 Pageid
Case: 1:16-cv-08219 Document #: 36 Filed: 05/17/17 Page 1 of 17 PageID #:<pageID> IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION ABLE HOME HEALTH, LLC, ) ) Plaintiffs, ) ) Case No. 16-cv-8219 v. ) ) Judge Robert M. Dow, Jr. ONSITE HEALTHCARE, INC., S.C., et al., ) ) Defendants. ) ) ) MEMORANDUM OPINION AND ORDER Before the Court is Defendant Onsite Healthcare, Inc., S.C.’s motion to dismiss [29]. For the reasons set forth below, Defendant’s motion [29] is granted with respect to Counts II through Count V, but denied with respect to Count I. This case is set for further status on June 15, 2017, at 9:00 a.m. to discuss pre-trial scheduling and the possibility of settlement. I. Background Defendant Onsite Healthcare, Inc., S.C. “provides professional medical services to home bound patients in the State of Illinois through its staff of licensed physicians.” [29-1, at 2.] Plaintiff Able Home Health, LLC is a “home healthcare agency” that provides “nursing and therapy services to home bound patients” in Illinois. Id. In July 2016, Plaintiff received a two- page fax on its fax machine from Defendant. [1, ¶ 9.] That fax is on Defendant’s letterhead, addressed to “Home Health Partners,” and has the subject line, “New Physician to serve the Rockford Area.” [1, at 21.] The text of the fax’s first page states: Dear Partners in Healthcare, We are happy to announce the addition of Louis R. Warren, MD to Onsite Healthcare’s team of Providers. Dr. Warren will be able to support the internal Case: 1:16-cv-08219 Document #: 36 Filed: 05/17/17 Page 2 of 17 PageID #:<pageID> medicine needs of patients in the areas of Rockford and Belvedere effective July 11, 2016.