3 results
United States
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- By W Jonathan Cardi, Professor of Law, Wake Forest School of Law, United States, Michael D Green, Williams Professor of Law, Wake Forest School of Law, United States
- Edited by Miquel Martin-Casals
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- Book:
- The Borderlines of Tort Law
- Published by:
- Intersentia
- Published online:
- 15 November 2019
- Print publication:
- 29 August 2019, pp 617-668
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- Chapter
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Summary
In the United States, both tort and contract law are generally matters of state rather than federal law. While there is a common core to both tort and contract doctrines in the US, one can find variation – sometimes narrow but sometimes broad – across the 51 independent state jurisdictions. In this United States country report, we attempt to provide a synthesis of state law while also trying to point out states whose laws deviate significantly from the synthesis.
QUESTIONS
TRACING THE BORDERLINES
The bases for liability in tort and contract are thought of as distinct in the US. The phrase ‘law of obligations’ is largely unknown in the United States. Contractual obligations are derived from the agreement of the parties to a contract that sets forth the bilateral obligations of the parties. By contrast, tort duties are imposed on parties by operation of law. This clean conceptual separation can break down in a number of contexts in which a tort occurs in a relationship where there is also a contract or potential contract between the parties, and where a contract is meant to benefit a third party. Medical and other professional malpractice, products liability, landlords’ obligations for defects in rented premises, implied warranties and other terms in contracts, and contractual waivers of tort liability are among the instances in which this occurs.
A court's characterization of an action as tort or contract matters for several reasons. Statutes of limitations typically limit tort actions to two years from the date of discovery of injury; contract actions typically are given four years from the date of material breach. Insurance contracts and principles of governmental immunity sometimes turn on the nature of the claim. The standard for liability is also quite different – to prevail in the typical tort case, a plaintiff must prove negligence; breach of contract requires no such proof, but merely that the defendant breached the agreed-upon terms. In addition, the applicable damages rules are different – rules regarding mitigation, scope of liability (proximate cause), non-pecuniary losses, and punitive damages are much more permissive in the tort context than in contract. Indeed, even some rules that tort and contract actions share – eg causation – are applied differently in sometimes outcome-determinative ways.
The United States
- from PART I - PUBLIC AUTHORITY LIABILITY OUTLINED
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- By Michael D Green, Williams Professor of Law, Wake Forest University School of Law, United States, Jonathan Cardi, Professor of Law, Wake Forest School of Law, United States
- Ken Oliphant
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- Book:
- The Liability of Public Authorities in Comparative Perspective
- Published by:
- Intersentia
- Published online:
- 27 November 2017
- Print publication:
- 26 October 2016, pp 537-558
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- Chapter
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Summary
INTRODUCTION
OVERVIEW
An initial word about terminology. ‘Public authority liability’ is not the term that would be used in the United States to describe the rules governing liability of public entities. Instead, the almost universal terminology is ‘governmental liability’ or ‘governmental immunity’. One popular treatise does employ the term ‘public entities officers and employees’ liability, although it also uses ‘governmental entities’ liability when focused on the liability of those entities apart from their employees and officials.
Public authority liability in the United States, because of its federal system, is divided between states, which are co-equal sovereigns, and the United States. Federal law addresses the liability of the federal government and its employees, while state law governs the liability of individual states and their employees. One qualification to the above statement of source of law is that federal constitutional provisions can be the basis for liability of state employees and in some instances the basis for injunctive relief as well.
Although the traditional blanket immunity for sovereign entities has long since been abrogated, governmental entities and officials retain a large amount of freedom from tort liability, particularly with regard to ‘discretionary’ decisions made in the course of governing. This area of the law is dominated by statutes – with the Federal Tort Claims Act (FTCA) governing federal liability and virtually every state having its own counterpart. Public authority liability thus involves adoption of universal principles of private tort law, along with modifications – oft en in the form of limitations on the liability of public authorities – contained in the FTCA.
Pursuant to the FTCA, the federal government may be liable for actions in its sphere, including regulatory efforts. Similarly, state governments (and substate governmental units) may be liable for actions in their sphere, including regulatory actions.
With 51 independent state jurisdictions, there is considerable variation that exists in the law governing liability of public entities and public employees.
United States of America
- from Part II
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- By Michael D Green, Williams Professor of Law, Wake Forest University School of Law, United States, Jonathan Cardi, Professor of Law and Associate Dean for Research and Development, Wake Forest School of Law, United States
- Edited by Piotr Machnikowski
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- Book:
- European Product Liability
- Published by:
- Intersentia
- Published online:
- 15 December 2017
- Print publication:
- 02 August 2016, pp 575-616
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- Chapter
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Summary
INTRODUCTION
In the US, the substantive rules of product liability are primarily determined by state courts and legislatures. Because the US has a common law system, state courts have played an especially important role in the area of product liability and tort more generally. While strict product liability was developed exclusively by state courts, once it became established, some state legislatures enacted statutes to govern product liability cases. The more comprehensive ones tended to adopt the law that had developed through the common law and place it into statutory form. In some cases, those statutes modified one or more aspects of product liability law that the courts had developed. In addition, the US has had several rounds of ‘tort reform’, in which state legislatures have restricted tort law, and some of those reforms were targeted specifically at product liability claims or, because of their breadth, encompassed product claims as well as other tort claims.
It is true that federal law sets some important limits on state product liability law in certain areas subject to federal regulation. For example, because, under the US Constitution, federal law pre-empts conflicting state law, manufacturers of generic drugs, medical devices, and automobiles who have satisfied federal-law regulations with respect to safe product design, or warnings of product risks, are sometimes immune from liability under state tort law. In addition, the US Supreme Court has identified federal constitutional limits on when, how, and in what amounts punitive damages may be awarded. Still, state law is the primary source of law governing liability for product-related injuries.
It would be a significant overstatement to say that, in substance, the US has 51 different versions of product liability law: there is a good deal of uniformity across the product liability law of each state and the District of Columbia. But there are also important differences, and thus it is oft en inaccurate to speak and write as if there were a single US product liability law. In what follows, we will aim to address the product liability issues confronted in this volume by reference to legal rules that have gained broad acceptance across the different US jurisdictions, and we will also try to note areas in which the law varies significantly among jurisdictions.