Nuisance – Elements
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Case 2:12-Cv-01114-JD Document 17 Filed 10/19/12 Page 1 of 9
Case 2:12-cv-01114-JD Document 17 Filed 10/19/12 Page 1 of 9 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA _____________________________________ DAVID S. TATUM, : CIVIL ACTION : NO. 12-1114 : Plaintiff, : v. : : TAKEDA PHARMACEUTICALS : NORTH AMERICA, INC., TAKEDA PHARMACEUTICALS AMERICA, INC., : TAKEDA PHARMACEUTICALS : INTERNATIONAL, INC., TAKEDA : PHARMACEUTICALS COMPANY : LIMITED, TAKEDA PHARMACEUTICALS, LLC, TAKEDA : AMERICA HOLDINGS, INC., TAKEDA : GLOBAL RESEARCH & : DEVELOPMENT CENTER, INC., : TAKEDA SAN DIEGO, INC., TAP : PHARMACEUTICALS PRODUCTS, INC., ABBOTT LABORATORIES, INC., : DOES 1 THROUGH 100 INCLUSIVE, : : Defendants. : _____________________________________ DuBois, J. October 18, 2012 M E M O R A N D U M I. INTRODUCTION This is a product liability action in which plaintiff David S. Tatum alleges that the PREVACID designed, manufactured, and marketed by defendants weakened his bones, ultimately leading to hip fractures. The defendants filed a motion to dismiss many of the claims in Tatum’s First Amended Complaint. For the reasons that follow, the Court grants in part and denies in part defendants’ motion. II. BACKGROUND1 Tatum was prescribed PREVACID, a pharmaceutical drug designed, manufactured, and 1 As required on a motion to dismiss, the Court takes all plausible factual allegations contained in plaintiff’s First Amended Complaint to be true. Case 2:12-cv-01114-JD Document 17 Filed 10/19/12 Page 2 of 9 marketed by defendants. (Am. Compl. 3, 7.) After taking PREVACID, Tatum began feeling pain in his left hip, and he was later diagnosed with Stage III Avascular Necrosis. (Id. at 7.) Tatum’s bones became weakened or brittle, causing multiple fractures. -
Page 243 TITLE 19—CUSTOMS DUTIES § 1592 Possible for Such
Page 243 TITLE 19—CUSTOMS DUTIES § 1592 possible for such merchandise, or any part (4) The external display of false registration thereof, to be introduced into the United numbers, false country of registration, or, in States unlawfully. the case of a vessel, false vessel name. (c) Civil penalties (5) The presence on board of unmanifested merchandise, the importation of which is pro- Any person who violates any provision of this hibited or restricted. section is liable for a civil penalty equal to (6) The presence on board of controlled sub- twice the value of the merchandise involved in stances which are not manifested or which are the violation, but not less than $10,000. The not accompanied by the permits or licenses re- value of any controlled substance included in quired under Single Convention on Narcotic the merchandise shall be determined in accord- Drugs or other international treaty. ance with section 1497(b) of this title. (7) The presence of any compartment or (d) Criminal penalties equipment which is built or fitted out for smuggling. In addition to being liable for a civil penalty (8) The failure of a vessel to stop when under subsection (c) of this section, any person hailed by a customs officer or other govern- who intentionally commits a violation of any ment authority. provision of this section is, upon conviction— (1) liable for a fine of not more than $10,000 (June 17, 1930, ch. 497, title IV, § 590, as added or imprisonment for not more than 5 years, or Pub. L. 99–570, title III, § 3120, Oct. -
Torts in the Oil Patch
Torts in the Oil Patch Prof. Tracy Hester September 11, 2017 Announcements • Field trip to Weatherford drilling rig: Friday, Sept. 29, 2017 • Guest speakers – – Dr. John Nielsen-Gammon, Wednesday, Sept. 13, at 6 pm in BLB 109 – Roger Martella, GE VP for EHS, Wednesday, Oct. 25, time and place TBA – Dr. Gavin Clarkson - November • IEL, AIPN, GCPA Review • Basics of Oilfield E&P • Types of contamination created by E&P work • Categories of likely tort actions • Reasons to pursue tort remedy rather than agency action Environmental Law of First Resort: Tort Claims • Nuisance • Negligence (including negligence per se) • Trespass • Unjust Enrichment • Emotional Distress • Strict Liability – Ultrahazardous Activity • Exotic claims (business torts, civil conspiracy) Likely Parties • Plaintiffs: – Surface estate owners – Neighbors – both surface and mineral estate owners – Agencies and governments – NGOs • Defendants: working interest owners, operators and contractors Duties Owed by Oil Company • Be a reasonably prudent operator • “Restore” the surface ? • plow depth • concrete pads and foundations? • oil, saltwater, etc. contamination? • What else does the lease (contract) say? Nuisance • Material or substantial injury to a person of ordinary health and sensibilities in that particular locale – private vs public nuisance • no statute of limitations if public nuisance • diminution in property value vs injunction or abatement (cost) • yesterday’s economic accommodation may become tomorrow’s nuisance (Texas: to persons of “ordinary” sensibilities) • Permit to discharge is usually not a defense • Permanent, temporary, and/or continuing • “Coming to the nuisance” doctrine may not be applicable if “temporary” and “continuing” Trespass • Conduct that leads to the invasion of a person’s interest in his or her rightful exclusive possession of property • La: unlawful physical invasion of property of another • Typically, intentional tort that requires a showing of fault • Often 2 or 3 year SOL. -
The Place of Assumption of Risk in the Law of Negligence, 22 La
Louisiana Law Review Volume 22 | Number 1 Symposium: Assumption of Risk Symposium: Insurance Law December 1961 The lP ace of Assumption of Risk in the Law of Negligence John W. Wade Repository Citation John W. Wade, The Place of Assumption of Risk in the Law of Negligence, 22 La. L. Rev. (1961) Available at: https://digitalcommons.law.lsu.edu/lalrev/vol22/iss1/5 This Article is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact [email protected]. The Place of Assumption of Risk in the Law of Negligence John W. Wade* The "doctrine" of assumption of risk is a controversial one, and there is considerable disagreement as to the part which it should play in a negligence case.' On the one hand it has a be- guiling simplicity about it, offering the opportunity of easily disposing of certain cases on a single issue without the need of giving consideration to other, more difficult, issues. On the other hand it overlaps and duplicates certain other doctrines, and its simplicity proves to be misleading because of its failure to point out the policy problems which may be more adequately presented by the other doctrines. Courts disagree as to the scope of the doctrine, some of them confining it to the situation where there is a contractual relation between the parties,2 and others expanding it to any situation in which an action might be brought for negligence.3 Text- writers and commentators commonly criticize the wide applica- tion of the doctrine, and not infrequently suggest that the doc- trine is entirely tautological. -
Sniadach, the Replevin Cases and Self-Help Repossession -- Due Process Tokenism? Julian B
Boston College Law Review Volume 14 Article 2 Issue 3 Number 3 2-1-1973 Sniadach, The Replevin Cases and Self-Help Repossession -- Due Process Tokenism? Julian B. McDonnell Follow this and additional works at: http://lawdigitalcommons.bc.edu/bclr Part of the Fourteenth Amendment Commons Recommended Citation Julian B. McDonnell, Sniadach, The Replevin Cases and Self-Help Repossession -- Due Process Tokenism?, 14 B.C.L. Rev. 437 (1973), http://lawdigitalcommons.bc.edu/bclr/vol14/iss3/2 This Article is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Law Review by an authorized editor of Digital Commons @ Boston College Law School. For more information, please contact [email protected]. SNIADACH, THE REPLEVIN CASES AND SELF-HELP REPOSSESSION-DUE PROCESS TOKENISM? JULIAN B. MCDONNELL* Last term, a divided United States Supreme Court invalidated the replevin statutes of Pennsylvania and Florida. In Fuentes v. Shevinl and Parham v. Cortese' (the Replevin Cases), the Court held these statutes unconstitutional insofar as they authorized repossession of collateral through state officials before the debtor was notified of the attempted repossession and accorded an opportunity to be heard on the merits of the creditor's claim. The Replevin Cases involved typical consumer purchases of household pods,' and accordingly raised new questions about the basic relationship between secured creditors and consumer debtors—a relationship upon which our consumer credit economy is based. Creditors have traditionally regarded the right to immediate repossession of collateral after determining the debtor to be in default as the essence of personal property security arrange- ments,' and their standard-form security agreements typically spell out this right. -
July 25, 2019 NACDL OPPOSES AFFIRMATVE CONSENT
July 25, 2019 NACDL OPPOSES AFFIRMATVE CONSENT RESOLUTION ABA RESOLUTION 114 NACDL opposes ABA Resolution 114. Resolution 114 urges legislatures to adopt affirmative consent requirements that re-define consent as: the assent of a person who is competent to give consent to engage in a specific act of sexual penetration, oral sex, or sexual contact, to provide that consent is expressed by words or action in the context of all the circumstances . The word “assent” generally refers to an express agreement. In addition the resolution dictates that consent must be “expressed by words or actions.” The resolution calls for a new definition of consent in sexual assault cases that would require expressed affirmative consent to every sexual act during the course of a sexual encounter. 1. Burden-Shifting in Violation of Due Process and Presumption of Innocence: NACDL opposes ABA Resolution 114 because it shifts the burden of proof by requiring an accused person to prove affirmative consent to each sexual act rather than requiring the prosecution to prove lack of consent. The resolution assumes guilt in the absence of any evidence regarding consent. This radical change in the law would violate the Due Process Clause of the Fifth and Fourteenth Amendments and the Presumption of Innocence. It offends fundamental and well-established notions of justice. Specifically, Resolution 114 urges legislatures to re-define consent as “the assent of a person who is competent to give consent to engage in a specific act of sexual penetration, oral sex, or sexual contact, to provide that consent is expressed by words or action in the context of all the circumstances . -
Chapter 668 Liability in Tort — Comparative Fault
1 LIABILITY IN TORT — COMPARATIVE FAULT, §668.3 CHAPTER 668 LIABILITY IN TORT — COMPARATIVE FAULT Referred to in §321J.4B, 625.21 668.1 Fault defined. 668.11 Disclosure of expert witnesses 668.2 Party defined. in liability cases involving 668.3 Comparative fault — effect — licensed professionals. payment method. 668.12 Liability for products — defenses. 668.4 Joint and several liability. 668.13 Interest on judgments. Evidence of previous payment or 668.5 Right of contribution. 668.14 future right of payment. 668.6 Enforcement of contribution. 668.14A Recoverable damages for medical 668.7 Effect of release. expenses. 668.8 Tolling of statute. 668.15 Damages resulting from sexual 668.9 Insurance practice. abuse — evidence. 668.10 Governmental exemptions. 668.16 Applicability of this chapter. 668.1 Fault defined. 1. As used in this chapter, “fault” means one or more acts or omissions that are in any measure negligent or reckless toward the person or property of the actor or others, or that subject a person to strict tort liability. The term also includes breach of warranty, unreasonable assumption of risk not constituting an enforceable express consent, misuse of a product for which the defendant otherwise would be liable, and unreasonable failure to avoid an injury or to mitigate damages. 2. The legal requirements of cause in fact and proximate cause apply both to fault as the basis for liability and to contributory fault. 84 Acts, ch 1293, §1 See also §619.17 668.2 Party defined. As used in this chapter, unless otherwise required, “party” means any of the following: 1. -
The Constitutionality of Strict Liability in Sex Offender Registration Laws
THE CONSTITUTIONALITY OF STRICT LIABILITY IN SEX OFFENDER REGISTRATION LAWS ∗ CATHERINE L. CARPENTER INTRODUCTION ............................................................................................... 296 I. STATUTORY RAPE ............................................................................... 309 A. The Basics.................................................................................... 309 B. But the Victim Lied and Why it Is Irrelevant: Examining Strict Liability in Statutory Rape........................................................... 315 C. The Impact of Lawrence v. Texas on Strict Liability................... 321 II. A PRIMER ON SEX OFFENDER REGISTRATION LAWS AND THE STRICT LIABILITY OFFENDER.............................................................. 324 A. A Historical Perspective.............................................................. 324 B. Classification Schemes ................................................................ 328 C. Registration Requirements .......................................................... 331 D. Community Notification Under Megan’s Law............................. 336 III. CHALLENGING THE INCLUSION OF STRICT LIABILITY STATUTORY RAPE IN SEX OFFENDER REGISTRATION.............................................. 338 A. General Principles of Constitutionality Affecting Sex Offender Registration Laws........................................................................ 323 1. The Mendoza-Martinez Factors............................................. 338 2. Regulation or -
Proof of Fault in Media Defamation Litigation
Vanderbilt Law Review Volume 38 Issue 2 Issue 2 - March 1985 Article 1 3-1985 Proof of Fault in Media Defamation Litigation Lackland H. Bloom, Jr. Follow this and additional works at: https://scholarship.law.vanderbilt.edu/vlr Part of the Torts Commons Recommended Citation Lackland H. Bloom, Jr., Proof of Fault in Media Defamation Litigation, 38 Vanderbilt Law Review 247 (1985) Available at: https://scholarship.law.vanderbilt.edu/vlr/vol38/iss2/1 This Article 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]. VANDERBILT LAW REVIEW VOLUME 38 MARCH 1985 NUMBER 2 Proof of Fault in Media Defamation Litigation Lackland H. Bloom, Jr.* I. INTRODUCTION ..................................... 249 II. ACTUAL MALICE .................................... 255 A. Clear and Convincing Evidence ............. 255 B. Knowledge of Falsity ...................... 256 C. Reckless Disregardfor the Truth ........... 259 1. Il1 W ill .............................. 260 2. Failure to Investigate or Verify ........ 264 (a) Lead Time .................... 267 (b) Seriousness of the Charge....... 270 (c) Inherent Improbability ......... 273 (d) Awareness of Inconsistent Infor- m ation ........................ 275 (e) No Source ..................... 277 (f) Obvious Reason to Doubt Source 278 (g) Failure to Consult an Obvious Source ........................ 283 (h) Failure to Consult an Expert ... 285 (i) No Further Verification Following Denial ........................ 286 * Associate Professor of Law, Southern Methodist University. B.A. 1970, Southern Methodist University; J.D. 1973, University of Michigan. I wish to thank Marilyn Lahr, J.D. 1986, Southern Methodist University School of Law, for her valuable assistance and the Southern Methodist University School of Law for its generous support. -
Assumption of Risk, Waiver, and Release of Liability
Rev. 4/30/2020 ASSUMPTION OF RISK, WAIVER, AND RELEASE OF LIABILITY READ THIS ASSUMPTION OF RISK, WAIVER AND RELEASE OF LIABILITY BEFORE YOU SIGN IT. IT AFFECTS YOUR LEGAL RIGHTS. I, ____________________________ [print student’s name], agree to act in a responsible and safe manner during my participation in the ____________________________ “the Program.” I acknowledge and agree that I must comply with the rules and requirements of the Program, any other applicable University policy, and all applicable local, state, and federal law. I agree to follow the instructions issued by Program directors and staff. I will also abide by signage posted on the University’s campus. I understand that I may be dismissed from the Program for misconduct. I understand that my participation in the Program is voluntary, and I may be exposed to risks and hazards that could result in serious illness, bodily injury, disability, or death. These risks and hazards may include, but are not limited to: (i) vehicular, pedestrian, or other accidents, such as drowning, (ii) storms, floods, fires, earthquakes, and other natural disasters, (iii) infectious diseases or viruses, including but not limited to COVID-19, (iv) limited or inadequate medical care, (v) inadequate design, safety, and maintenance of buildings and public places, (vi) terrorist activities, and (vii) allergic reactions to food, insects, or other allergens. I also understand that during the Program I may use or access educational computer applications, web-based services, or online content that could expose me to certain cyber risks, including but not limited to, cyber predators, data mining, phishing, viruses, malware, data breaches, cyberbullying, exploitation, victimization, cyber stalking, online grooming, reputational loss, brand hijacking, and image replication. -
Chapter 7 Tort Law and Product Liability Chapter Outline 1
Chapter 7 Tort Law and Product Liability Chapter Outline 1. Introduction 2. The Basis of Tort Law 3. Intentional Torts 4. Negligence 5. Cyber Torts: Defamation Online 6. Strict Liability 7. Product Liability 8. Defenses to Product Liability 9. Tort Law and the Paralegal Chapter Objectives After completing this chapter, you will know: • What a tort is, the purpose of tort law, and the three basic categories of torts. • The four elements of negligence. • What is meant by strict liability and under what circumstances strict liability is applied. • The meaning of strict product liability and the underlying policy for imposing strict product liability. • What defenses can be raised in product liability actions. Chapter 7 Tort Law and Product Liability Chapter Outline I. INTRODUCTION A. Torts are wrongful actions. B. The word tort is French for “wrong.” II. THE BASIS OF TORT LAW A. Two notions serve as the basis of all torts. i. Wrongs ii. Compensation B. In a tort action, one person or group brings a personal-injury suit against another person or group to obtain compensation or other relief for the harm suffered. C. Tort suits involve “private” wrongs, distinguishable from criminal actions that involve “public” wrongs. D. The purpose of tort law is to provide remedies for the invasion of various interests. E. There are three broad classifications of torts. i. Intentional Torts ii. Negligence iii. Strict Liability F. The classification of a particular tort depends largely on how the tort occurs (intentionally or unintentionally) and the surrounding circumstances. Intentional Intentions An intentional tort requires only that the tortfeasor, the actor/wrongdoer, intended, or knew with substantial certainty, that certain consequences would result from the action. -
Torts - Trespass to Land - Liability for Consequential Injuries Charley J
Louisiana Law Review Volume 21 | Number 4 June 1961 Torts - Trespass To land - Liability for Consequential Injuries Charley J. S. Schrader Jr. Repository Citation Charley J. S. Schrader Jr., Torts - Trespass To land - Liability for Consequential Injuries, 21 La. L. Rev. (1961) Available at: https://digitalcommons.law.lsu.edu/lalrev/vol21/iss4/23 This Note is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact [email protected]. 862 LOUISIANA LAW REVIEW [Vol. XXI is nonetheless held liable for the results of his negligence. 18 It would seem that this general rule that the defendant takes his victim as he finds him would be equally applicable in the instant type of case. The general rule, also relied upon to some extent by the court in the instant case, that a defendant is not liable for physical injury resulting from a plaintiff's fear for a third person, has had its usual application in situations where the plaintiff is not within the zone of danger.' 9 Seemingly, the reason for this rule is to enable the courts to deal with case where difficulties of proof militate against establishing the possibility of recovery. It would seem, however, that in a situation where the plaintiff is within the zone of danger and consequently could recover if he feared for himself, the mere fact that he feared for another should not preclude recovery.