Tort Liability in Warfare: States’ Wrongs and Civilians’ Rights develops a novel account of the tortious liability of states for wrongs they inflict on civilians during combat. Tort Liability in Warfare challenges orthodoxy by illustrating that ordinary domestic tort law doctrines could apply, as private law rights remain relevant during warfare and their wrongful violation triggers ordinary corrective justice duties. The book asserts that barring tort remedies for losses inflicted during warfare is not (...) necessitated by theory or doctrine but is driven by policy considerations. Tort Liability in Warfare demonstrates that these policy considerations fail to provide adequate justifications for states’ near blanket immunity from tort liability in warfare, and calls for enabling civilians to turn to tort law as a mechanism for accountability and vindication of their rights. (shrink)

The risk of tort liability for health maintenance organizations and other managed care plans has dramatically increased in recent years. This is due in part to the growing percentage of health care rendered through managed care plans. The cost-containment mechanisms commonly used by managed care plans, such as limiting access to services and/or choice of providers, creates a climate ripe for disputes that may end up in court. As dissatisfied patients and providers seek recourse in the courts, (...) class='Hi'>tort doctrines are extended and new legal theories emerge as needed. For example, the concepts of direct and vicarious tort liability developed in the hospital context have been extended by courts to encompass HMOs. vicarious liability claims, based on ostensible agency or respondeat superior doctrines, have been brought against HMOs and managed care plans for negligent treatment by physicians selected to provide care to members. (shrink)

Class action lawsuits and the justice that they are supposed to enforce have become of great concem to legislators in recent years. The traditional ruIes of tort liability cannot completely support the court decisions that have been reached. The rulings, however, are clearly in the interest of giving victims the justice that they are due. Legal scholars, such as Jules Coleman, claim that the conflicts between tort liability and class action justice cannot be reconciled in our (...) legal system. I propose an avenue of analysis whereby the principles of justice that support tort law are preserved as needed for modem issues, yet at the same time address the genuine public policy concems in these class actions. (shrink)

The book provides a comprehensive and principled account of the uncertainty problem that arises in tort litigation. It presents and critically examines the existing doctrinal solutions of the problem, as evolved in England, the United States, Canada, and Israel, and also offers a number of original solutions, such as imposition of collective liability and liability for evidential damage. Among the issues dealt with by the book are rapidly developing areas of tort law, such as mass torts, (...) liability for imposing risk and the like. The book combines the traditional doctrinal depiction of the law with general theoretical insights that include economic analysis. (shrink)

This book studies the fundamental conflicts between the protections on the legal rights and interests of victims and the freedom of infringers to act first. It is divided into four parts, the first of which explores the relevant legal methodology in order to provide possible solutions to difficult problems in Chinese tort liability law. Secondly, it puts forward a range of suggestions on how to resolve key issues in China’s torts liability law, including the general provisions; the (...) provisions concerning the fault principle; the provisions of the non-fault principle; the special liability relation; damages; and defenses and related issues. Thirdly, the book addresses major institutional issues, including: the theory of consensus force; joint infringements; and operators’ duty of care; as well as several key relations: between the right to claim insurance compensation and the right to claim compensation for personal injury; between the right to claim tort liability and the right to exercise property rights; and between the right to claim tort liability and the right to reject unjust enrichment. Further aspects in this section include compensation for death; mental damages; pure economic loss and compensation; punitive compensation; and compensation for road traffic accidents. Lastly, the book explores special issues in tort liability law, e.g. the infringement of media rights, and the specific tort liability in various administrative laws and regulations. (shrink)

This essay applies Hegel's theory of remedies to the question of whether and when breach of a penal statute should attract civil liability in tort. For Hegel, the purpose of a remedy is to vindicate the human right to self-determination by refuting the claim to validity implied in intentional or negligent acts that infringe this right. Accordingly, in determining the civil effect of legislation, a distinction must be made between statutes that effectuate pre-existing rights and those which create (...) new rights in the attempt to maximize aggregate welfare. The former should confer a civil right of action, the latter should not. Statutes that impose a duty of affirmative action should be enforced civilly if their purpose is to protect individual autonomy in circumstances where one person has gained control over the welfare of another. And statutes that protect persons from exposure to unreasonable risk should confer a civil right of action provided that the conditions of ordinary negligence liability are met. These conditions ought to supplant those connected with the legislative intent theory of statutory torts. (shrink)

L’accident nucléaire de Fukushima a engendré une série de problèmes nouveaux. Comme il s’agissait d’une responsabilité stricte, les victimes n’ont pas eu à prouver la négligence mais ils ont entamé une action pour obtenir davantage de dédommagements pour atteinte morale. Ceci conduit à poser la question de la culpabilité pour négligence et stricte responsabilité. Je propose de ne pas entendre culpabilité au sens moral mais d’y voir une déviation par rapport à la norme. Plus grande sera la déviation, plus grande (...) la culpabilité, sans se soucier de ce qui a entraîné la responsabilité. Quant aux dommages, lesquels peuvent être compensés et lesquels ne le peuvent pas, voilà la question. Il était important de trouver des critères pour étayer cette décision et de les justifier. Pour cela, il faut étudier la structure de la responsabilité pour faute (négligence aussi bien que stricte responsabilité) et voir comment les principes fondamentaux de la justice distributive et de la justice commutative s’appliquent à cette structure. (shrink)

The Draft of the Tort Liability Law of the People’s Republic of China (The Second Draft for Examination and Approval) has been submitted by the Legislative Affairs Commission of the Standing Committee of the National People’s Congress to the Standing Committee of the National People’s Congress for deliberation.

The legislative system issue of the tort liability law refers to the correlative issue between the legislative mode, inner structure, and the codification of the tort liability law and special tort liability provisions of tort liability stipulated by other laws rather than the civil code.

After enacting the Property Rights Law, the focus of legislation in the civil law regime has changed to the tort liability law.

Although Chinese legal scholars have further researched the theories of torts in recent years, it is difficult to find any books or articles concerning the general provisions of the Tort Liability Law.

In NX v. Cabrini Medical Center, New York's highest court overruled a divided Appellate Division and held that, as a matter of law, a jury could find a hospital negligent for its failure to protect a patient from sexual assault. The court refused, however, to adopt a higher standard of tort liability for health-care providers who treat incapacitated patients.

Bernard Williams drew our attention to what might be wrong with denying the role of luck in our understanding of agency and responsibility. Susan Wolf and David Enoch, in separate works, have asked us to focus instead on what might be virtuous and valuable in embracing that role, and on how our institutions might assist us in that regard. They claim that the agent who ‘takes’ a responsibility that law or morality do not already assign to them may be displaying (...) a special moral virtue or exercising a distinctive moral power. I raise some objections to Wolf’s and Enoch’s case for that claim, and query some of its purported institutional implications for tort law systems. (shrink)

Is the negligence standard in accident law acceptable to the egalitarian? The egalitarian - the egalitarian who would compensate only losses for which the actor was not responsible - cannot accept either a system of strict liability for all accidents or a system of social insurance for all accidents. A system of tort law acceptable to the responsibility - egalitarian must be a system based on negligence. But what will negligence mean? A negligence system in which the notion (...) of reasonableness is based on efficiency, I argue, is a system that redistributes wealth from the less well off to those better off. I consider alternative notions of reasonableness, ending up with a principle of proportional responsibility and distinguishing between commercial and non-commercial cases. (shrink)

This chapter sets out to evaluate and compare the advantages and disadvantages of three mechanisms for redressing losses that are inflicted during war: tort liability, state-operated insurance schemes, and ex gratia payments. Certain factors, such as the length, cost, and location of the redress mechanism, appear to indicate that tort liability is inferior to its alternatives, to a certain extent. Other factors, for example the consistency and transparency of decisions, whether the payment amounts reflect the actual (...) costs of the injuries, the identity of the administrating body, and the ability to correct wrongs, seem to result in the contrary conclusion.In the particular context of infliction of losses during war, the inadequacies of ex gratia payments and state-operated insurance schemes are sufficiently weighty to question their desirability and effectiveness as the currently used mechanisms of redress. Moreover, although tort liability has its shortcomings, they do not reach the degree that they rule out tort liability completely as a relevant mechanism of redress, and the benefits that arise from tort liability are substantial. Taking away civilians’ ability to bring a claim in tort takes away their power to stand on their rights. The cost of removing this power, coupled with the deficiencies of ex gratia payments and state-operated insurance schemes, is sufficient to support the argument that revisions to the mechanisms of redress are needed. (shrink)

In recent years, there have been heated discussions in the Chinese legal field on the legislation of tort law, a constitutive part of the civil code, and certain consensus has been achieved.

Tort law and liability insurance have a complex interaction in which each shapes the evolution and effects of the other. This interaction and its many forms and facets in different international contexts must be comprehended to understand fully the ethical responsibilities of liability insurers. This essay builds on previous scholarship on the tort law–liability insurance interaction through a series of observations from the perspective of a global reinsurer. It seeks in part to extend previous analyses (...) of this interaction by also considering issues in the developing world. It seeks to make some normative questions and stances explicit concerning this interaction, as well as to identify some empirical questions that still need to be answered. The responsibility of liability insurers includes ethically shaping the responsibility of others in interaction with tort law in countless diverse situations. (shrink)

It is a common phenomenon in the legal life of China for the administrative legislation to adjust civil legal relation.

Courses on bioethics and the law traditionally have focused their coverage on ethical issues arising from individual patients’ encounters with the medical care system, but the course also provides an excellent opportunity to expose students to ethical issues arising at the intersection of medical care and public health. The following materials were assembled for use near the end of a semester-long law school course in Bioethics & Law. I taught the course relying heavily on problems contained in Barry R. Furrow (...) et al., Bioethics: Health Care Law and Ethics, 7th ed., which was the primary text for the course. (shrink)

The American Journal of Bioethics, Volume 12, Issue 4, Page 15-17, April 2012.

Volume 10, Issue 3, September 2019, Page 396-407.

According to the national lawmaking program, China would establish a complete socialist legal system, and the establishment of the Civil Code is the important part of this legal system. In 1999, the promulgation and Implementation of the Contract Law indicated that the beginning of the Civil Code was successful. However, at the time of legislating the property rights law, many disputes emerged, some disputes were related to politics, while the others were related to lawmaking.

The aims of this chapter are threefold. First, it recaps the arguments made in previous chapters, according to which there is nothing about warfare that necessarily renders tort law and theory as inherently inapplicable in the context of warfare, and indicates that there are good normative and policy reasons for tort law to be an available recourse for redressing belligerent wrongs. Second, this chapter demonstrates that the arguments advanced in this book align with an overall move to constrain (...) sovereign immunity and the abandonment of the position that human rights do not apply during armed conflict. Third, some remaining potential critiques regarding the adequacy of ordinary tort law as the means to redress belligerent wrongs, as opposed to a new tort of violating customary international law or developing remedies under international law, are addressed. (shrink)

The current rise in malpractice litigation has led to concern in the research community as to the prospect of litigation against researchers. Clearly as the responsibility for the day-to-day conduct of the research falls upon the researchers they will be potentially liable should there be negligence in the conduct of the research project itself. But to what extent can the research ethics committee and its members be held liable should harm result to the research subject? How far does the prospect (...) of the threat of litigation equate with the reality of the prospect of liability? Although the NHS research governance framework suggests that primary responsibility for the conduct of the trial is with the researcher this does not mean that REC members will be immune from actions in tort where research subjects suffer harm in the conduct of a research project approved by their NHS REC. This paper focuses upon the prospect for liability in the law of tort of NHS RECs and their members. While in practice the vast majority of such claims are unlikely to be successful members of RECs may incur resultant legal costs as a consequence of involvement in proposed litigation. It is submitted that the scope of indemnity provision provided to RECs and their members should be precisely determined, otherwise there is a real prospect that the risk of malpractice litigation may deter individuals from serving on such committees. (shrink)

This paper offers an economic analysis of one aspect of the possible liability for incorrect information traded on information markets: expert liability for incorrect asset valuation. The article does not address the questions of whether and under what circumstances an expert should bear contractual liability for an incorrect valuation. Rather, it assumes such contractual liability towards the person who has solicited the opinion and focuses instead on analyzing the circumstances under which the expert’s liability should (...) be extended to third parties as well. (shrink)

Errata slip inserted. Bibliography: p. 137-140.

This chapter examines the extent of concurrent liability in tort. In practice, a plea of concurrent tort liability is almost entirely driven by the different limitation rules for actions for breach of contract and for the tort of negligence. In a pure economic loss claim, breach and damage are frequently separated by a long time period, so it is common to find a claimant out of time for their contract action but not for a (...) class='Hi'>tort claim. The chapter then discusses the contrast between Hedley Byrne & Co Ltd v Heller & Partners Ltd and Robinson v PE Jones (Contractors) Ltd. It explains how a coherent line could have been drawn between the two cases. (shrink)

Standard theories of liability say that X is liable to Y only if Y was harmed, only if X caused Y harm, and (usually) only if X was at fault. This article offers a series of criticisms of each of these claims, and use them to construct an alternative theory of liability in which the nature of X's having imposed a risk of harm on Y is central to the question of when X is liable to Y, and (...) for how much. The article ends with some conjectures on ignorance as an excusing condition. (shrink)

Many recent decisions in tort law attempt to combine two conceptually incommensurable features: a traditional 'but for' test of factual causation, and the scientific or medical evidence that is required to explain how some injury occurred. Even when applied to macroscopic objects, the 'but for' test fails to identify causes, because it merely rephrases in the language of possible worlds what may be inferred from what is inductively known about the actual world. Since scientific theories explain the occurrence of (...) events without reference to causes, this test of causation is not only ineffectual but also inapplicable to scientific or medical evidence. Tort law, therefore, should abandon the 'but for' test; when scientific or medical evidence is required in a tort case, the courts should rely on the explanatory strategies that function within the theories from which they borrow such evidence. (shrink)

Although article 130 of the General Principles of Civil Law of the People’s Republic of China (hereinafter referred to as the General Principles of Civil Law) states, “if two or more persons jointly infringe upon another person’s rights and cause him damage, they shall bear joint and several liability”, it gives no clear provisions of the definition and constitutive elements of joint tort.

Should there be civil liability when a person who could easily and without risk rescue another fails to do so? It is argued that the failure to act does not cause the harm that follows, and that the misfeasance/nonfeasance distinction provides no basis for liability. In spite of this, it is maintained that there can sometimes be a duty to rescue, and even a right to be rescued, even in the absence of a voluntary undertaking or an explicit (...) assumption of responsibility.There are convincing arguments for some sort of legal recognition of a duty to rescue, but these arguments do not support tort liability. Nor is a case for tort liability made with the argument that a growth of tort law in this direction would be compatible with the values most centrally involved in the division between torts and contracts. Furthermore, there is a case against tort liability — namely, that the purpose of tort liability is to compensate, that there are certain sorts of situations in which compensation is apposite, and that failure to rescue does not fit into these categories. Criminal liability is the appropriate way for the law to recognize a duty to rescue. (shrink)

In most cases, liability in tort law is all-or-nothing—a defendant is either fully liable or not at all liable for a claimant's loss. By contrast, this paper defends a causal theory of partial liability. I argue that a defendant should be held liable for a claimant's loss only to the degree to which the defendant's wrongdoing contributed to the causing of the loss. I ground this principle in a conception of tort law as a system of (...) corrective justice and use it to critically evaluate different mechanisms for “limiting” liability for consequences of wrongdoing and for “apportioning” liability between multiple wrongdoers. (shrink)

In this short paper, I shall answer the title’s question first in the context of criminal law and then in the context of tort law. In that latter section, I shall also mention in passing contractual and other forms of civil liability that are strict, although they will not be my principal focus. My conclusions will be that strict liability is never proper as the basis for retributive punishment; that it is a very crude device for achieving (...) deterrence through nonretributive penalties; and that with respect to tort liability, it is best justified as a means of defining insurance categories. (shrink)

With the rapid development of artificial intelligence technology, driverless cars are gradually moving from laboratory technology to market application. This technological revolution not only brings convenience and efficiency enhancement to the society, but also accompanies the legal difficulties of accident liability allocation. The traditional traffic accident liability allocation model is based on the driver's fault to divide the responsibility, but in the driverless scenario, the autonomous decision-making and behavior of the vehicle weakens or even completely replaces the role (...) of the driver, which makes the existing legal framework face significant challenges in dealing with the problem of accident liability attribution. In this paper, we propose an “optimal mechanism” for assigning liability to driverless cars from the perspective of legal economics, with a view to seeking a dynamic balance between technological risks and legal norms. By analyzing the efficiency of liability attribution rules, this paper attempts to provide legal support for the development of driverless technology and institutional guarantee for the fair distribution of accident liability. (shrink)

Complex technologies such as Artificial Intelligence (AI) can cause harm, raising the question of who is liable for the harm caused. Research has identified multiple liability gaps (i.e., unsatisfactory outcomes when applying existing liability rules) in legal frameworks. In this paper, the concepts of shared responsibilities and fiduciary duties are explored as avenues to address liability gaps. The development, deployment and use of complex technologies are not clearly distinguishable stages, as often suggested, but are processes of cooperation (...) and co-creation. At the intersections of these stages, shared responsibilities and fiduciary duties of multiple actors can be observed. Although none of the actors have complete control or a complete overview, many actors have some control or influence, and, therefore, responsibilities based on fault, prevention or benefit. Shared responsibilities and fiduciary duties can turn liability gaps into liability overlaps. These concepts could be implemented in tort and contract law by amending existing law (e.g., by assuming that all stakeholders are liable unless they can prove they did not owe a duty of care) and by creating more room for partial liability reflecting partial responsibilities (e.g., a responsibility to signal or identify an issue without a corresponding responsibility to solve that issue). This approach better aligns legal liabilities with responsibilities, increases legal certainty, and increases cooperation and understanding between actors, improving the quality and safety of technologies. However, it may not solve all liability gaps, may have chilling effects on innovation, and may require further detailing through case law. (shrink)

This collection of contemporary essays by a group of well-known philosophers and legal theorists covers various topics in the philosophy of law, focusing on issues concerning liability in contract, tort and criminal law. The book is divided into four sections. The first provides a conceptual overview of the issues at stake in a philosophical discussion of liability and responsibility. The second, third and fourth sections present, in turn, more detailed explorations of the roles of notions of (...) class='Hi'>liability and responsibility in contracts, torts and punishment. The collection not only presents some of the most challenging work in legal philosophy, but it also demonstrates the interdisciplinary character of the field of philosophy of law, with contributors taking into account recent developments in economics, political science and rational choice theory. This thought-provoking volume will help to shed light on the underexplored ground that lies between law and morals. (shrink)

The American tort system regularly conducts a sort of lottery in which plaintiffs try to name as many defendants in a tort action as they can in order to collect a large judgment from at least one of them. This procedure is encouraged under strict joint and several liability, which permits plaintiffs to recover greater damages from defendants - usually businesses - with less moral culpability for the tort than poorer defendants, who bear greater culpability. In (...) a case involving the Disney Corporation and a negligent amusement park rider, for instance, Disney was forced to pay 86% of the court award to the plaintiff, even though the jury found the company to be only 1% liable for the injury. The legal principle of joint and several liability violates morality in several different ways. Even though the principle appears to be better in the short run for plaintiffs, I will show that it fails not only to satisfy utilitarianism, but compensatory justice as well. Hence, the legal principle of joint and several liability should be eliminated in favor of a better, fairer law, which I will briefly sketch at the end. (shrink)

:Strict liability in tort law is thought by some to have a moral counterpart. In this essay I attempt to determine whether there is, in fact, strict liability in the moral domain. I argue that there is, and I critically evaluate several accounts of its normative foundations before suggesting one of my own.

There may be circumstances in which it is morally justifiable intentionally to kill a person who is morally innocent, threatens no one, rationally wishes not to die, and does not consent to be killed. Although the killing would wrong the victim, it might be justified by the necessity of averting some disaster that would otherwise occur. In other instances of permissible killing, however, the justification appeals to more than consequences. It may appeal to the claim that the person to be (...) killed has acted in such a way that to kill him would neither wrong him nor violate his rights, even if he has not consented to be killed or to be subjected to the risk of being killed. In these cases, I will say that the person is liable to be killed. Although I borrow the notion of liability from legal theory, and although much of what I say will be informed by the literature on liability in both tort law and criminal law, my concern in this article is with moral rather than legal liability. (shrink)

In this chapter, the author tries to investigate the tortuous liability issues from the perspective of looking into the claim of unliquidated damages under the purview of ‘Negligence, Strict, and Product Liability and Vicarious Liability’. So, this chapter talks about the liability issues that may arise under three scenarios: first, when the sale of a product connects small parties like a manufacturer and a consumer, and second, when two parties are in a direct contractual relationship. The (...) third case is when the user relies on information supplied by the computer system. However, the first scenario considered here is negligence and strict liability under the law of torts. In contrast, the second and third scenarios fell under both—express and implied, covering breach of warranties. Lastly, the third scenario again deals with negligence. (shrink)

The courts have experienced difficulty in justifying the imposition of liability to third parties for negligent misstatements. The justifications ordinarily invoked relate to notions of assumption of responsibility and detrimental reliance. These can be seen, in turn, to rest upon a normative framework of give and take (or «mutuality») between statement makers and third party recipients. This article challenges the cogency of that normative framework and offers an alternative based upon the remedial nature of tort, which has traditionally (...) focused upon the particular interactions by which wrongdoers have caused harm to others. The most important indicators of liability to third parties relate, in turn, to normatively significant features of the causal sequence between acting and the infliction of harm. These indicators, it is submitted, are (i) actual knowledge of the likelihood of harm if care is not taken and (ii) the tightness of the causal connection. (shrink)

Among the most complicated issues in the law of delict, in the case of multiple debtors, is to determine the scope of each co-debtor’s liability. The rule of proportional liability clearly favours debtors more than the aggrieved party. And, on the contrary, the solidary liability best suits the interests of the aggrieved party as the risk of co-debtor’s insolvency is transferred to the debtors. Furthermore, in the latter case, the debtors who attempt to allocate the scope of (...) their liability among themselves and fail to reach an agreement have to undergo two legal procedures: the first concerning the compensation to the creditor, and the second concerning the determination of the scope of their liability among themselves. Adequate balancing of the interests of the two parties (the debtor and the creditor) lies among the major tasks of tort law. Therefore, he law should seek specific rules instrumental in determining the scope of the co-debtor’s liability in the case of multiple debtors. The application of the rule of solidary liability is based on the assumption that individuals whose joint actions inflicted damage must compensate it together. (shrink)

Tort Liability Law. Typical legislation patterns of Tort Liability Law in civil law legal system are the general provision pattern represented by French Law and the enumeration pattern represented by German Law.

In Holding Health Care Accountable , E. Haavi Morreim differentiates between duties of expertise and resource duties, arguing for tort liability respecting the former and contract liability respecting the latter. Though Morreim's book addresses ordinary clinical medicine, her liability scheme may also be relevant elsewhere. Focusing on disaster medicine, and especially the medical management of violent mass disasters (e.g., where terrorists have deployed weapons of mass destruction), I argue in this essay that Morreim's classification of duties (...) still fits, but that it is difficult to hold government powers accountable for their many resource and expertise duties. This difficulty is compounded by political arrangements that foist under-funded mandates for disaster services on healthcare providers. As a result of such arrangements, hospitals and clinicians are prone to liability for expenditures and clinical interventions that are beyond their scope. This problem can be mitigated, I argue, by examining and clarifying the apparent social compact between society and healthcare. (shrink)