Tag: Torts

baby feet

If You Give a Law Student a Baby

Bobby Stroup Leave a comment

Editor’s Note: Congratulations, Bobby, and welcome to the world, baby Stroup!

By Bobby Stroup

If you give a law student a baby, they’re going to look for legal risk. And if they live in the Bay State, they’re going to want a class on ‘MILK’ (Massachusetts Infant Legal Knowhow). 

Then, after learning about the relevant law and policy, they’re probably going to want to write a legal blog post. They’ll need to do additional research to see how they can legally imitate a popular children’s book. Their research will show that “fair use” allows them to parody the book series by exaggerating its format in a new story.  Read More

Austin, TX, USA - Oct. 2, 2021: Participants at the Women's March rally at the Capitol protest SB 8, Texas' abortion law that effectively bans abortions after six weeks of pregnancy.

The Impact of Criminal Abortion Bans on Assisted Reproduction in the Post-Dobbs Landscape

The Petrie-Flom Center Staff Leave a comment

By Yvonne Lindgren

In Dobbs v. Jackson Women’s Health, the Supreme Court overruled Roe v. Wade, the constitutional floor that had protected the abortion right for nearly fifty years, and returned the issue of regulating abortion to the states. In the post-Dobbs landscape, thirteen states have banned abortion, either through laws passed after the decision, through trigger laws, or by reviving pre-Roe era abortion bans. As a result of criminalizing abortion, the protective function of medical malpractice law is supplanted by provider and institutional decision-making driven by the imperative to avoid criminal liability and loss of licensure. This essay argues that abortion bans have made all reproductive health care less safe, and that these new pregnancy-related dangers will disproportionately impact assisted reproduction, because those who conceive through assisted reproduction often face a higher risk of complications needing medical intervention, and because women may be reluctant to act as surrogates in light of the heightened risk of pregnancy.

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UN United Nations general assembly building with world flags flying in front - First Avenue, New York City, NY, USA

The UN Must Take Steps To Be an Accountable Player in Public Health

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By Bailey Kennedy

If a government commits a tort, it can be sued — but the United Nations cannot be. That’s because it is generally understood that the UN has absolute immunity, meaning that no national court has jurisdiction over the UN. This immunity is justified on the basis that the UN cannot effectively fulfill its role in the world if it is constantly at risk of being hauled into court around the globe. Moreover, at the time the UN was founded, it was understood to be an organization that would promote peace, security, and health across the globe — and why would such an organization need to be sued? 

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Green parking meter reads "expired."

How the Unpredictable Long-Term Effects of COVID-19 Infection Pose a Challenge That Tort Law Cannot Meet

Jennifer S. Bard Leave a comment

By Jennifer S. Bard

The longer the pandemic continues, the more obvious it is how effective the sweeping federal and state laws shielding medical providers from malpractice associated with COVID-19 have been. Few cases have been brought, and so far there is no record of successful judgements or settlements.

Even without these statutes, proving negligence in COVID-related cases would be exceptionally difficult, given the ever-evolving virus and treatment options. Still today it would be hard to prove that any good faith attempt at care was unreasonable and that there was a causal link to greater harm — both necessary to demonstrate negligence.

But, at some time in the relatively near future, this will change. The declared public health emergency will end, and with it the federal and remaining state blanket liability protections. A standard of care will develop and issues involving the prevention, diagnosis, and treatment of COVID-19 will become the subject of tort litigation.

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Lawyer and client in courtroom.

Liability for COVID-19 Vaccine Harms: We Need to Do Better

Dorit Reiss Leave a comment

By Dorit Reiss

COVID-19 vaccines are extremely safe, and serious harms are rare. But rare does not mean the risk is zero; thus, we need a way to determine which people have plausible claims of harm from the vaccines, and we must then compensate them quickly and generously. However, the regular torts system is not a good option for adjudicating these claims. Fortunately, we already have a better system — no-fault compensation — available to address the problem.

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Airplane taking off from the airport.

In-Flight COVID Transmission: Surveying the Liability Landscape

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By Christopher Robertson

Do airlines have legal obligations to manage the risk of in-flight infections?

In the pre-COVID era, I answered this question affirmatively. In a 2016 paper, I reviewed the scientific literature showing that airline travel is a key vector for spreading infectious disease, both because airports and airplanes tend to mix people in such close quarters that they are likely to infect each other, and because it efficiently distributes infected people around the world to then infect more people.

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Bill of Health - Gavel on mask during pandemic, class action lawsuits during pandemic

Relying on the Unreliable? COVID-19 Claims Can’t Proceed Without a Proper Standard of Care

The Petrie-Flom Center Staff Leave a comment

By Michelle Richards

In the United States, the imposition of tort liability for the transmission of an infectious disease goes back more than a century. It is no surprise, therefore, that similar claims have been filed for damages arising from the transmission of the COVID-19 virus.

However, in order for these claims to be adjudicated fairly, they must be judged against a standard of care. A standard of care provides a benchmark for the level of caution a reasonable party would take in particular circumstances. If the standard of care is not met, liability may be imposed.

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Empty classroom.

Tort Liability for Faculty Who Fail to Tell the Class About COVID Cases in Their Midst

The Petrie-Flom Center Staff Leave a comment

By Heidi Li Feldman

The more individuals must rely on their own judgment and effort to protect themselves from disease, the more they need information regarding the possibility of exposure to the cause of the disease.

This simple proposition, combined with changes in how governments and institutions are approaching COVID, means that university faculty should rethink their role in keeping their students informed about COVID cases among class members. To satisfy their legal obligations to protect students from harm, faculty must consider whether safeguarding their students from incurring COVID in their classrooms necessitates sharing such information. Fulfilling their legal duties to students may even require faculty to disregard administrative prohibitions against disseminating news of COVID cases in the class.

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