NY Torts: frequent issues

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NY Torts: frequent issues
2015-02-16 22:05:53

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  1. battery
    bettery-transferred intent
    trespass to chattels
    negligence-per se
    negligent infliction of emotional distress
    negligent supervision-intrafamily immunity
    dram shop law
    labor law
    assumption of risk
    permissive use doctrine
    defamation-qualified privilege defense
    tortious interference-contractual relations
    tortious interference-qualified privilege defense
  2. battery
    harmful or offensive contact with intent to cause that contact
  3. battery-transferred intent
    Under the doctrine of transferred intent, if a person has the intent to commit harm against one individual and harms another person in the act, the intent to harm one party can be transferred to the actual victim and the tortfeasor will be liable. 
  4. negligence: duty: show duty, breach, causation, damages
  5. negligence: duty: parent/child: NY does not generally recognize a cause of action against parents for negligent supervision of children
  6. negligence: duty: NY: parent/child: a parent may be liable for negligent supervision where the parent was aware that the child possessed vicious tendencies
  7. negligence: duty: parent/child: parent may be liable for negligently entrusting a child with a dangerous instrument
  8. For the doctrine of negligence per se to apply:
    • P must be in the class of people intended to be protected
    • the accident must be of the type of harm that the statute was intended to protect against, and
    • the harm was caused by violation of that statute
  9. negligence per se defenses
    • compliance was impossible an emergency justified violation of the statute
    • ~ D must show that complying with the statute would be even more dangerous than violating the statute
  10. negligent infliction of emotional distress elements: (ShurCS)
    • (1) the defendant engaged in conduct that the defendant should have realized
    • involved an unreasonable risk of causing emotional distress that might result in illness or bodily injury;
    • (2) that the conduct caused emotional distress to the plaintiff; and
    • (3) the distress was of such a nature as might result in illness or bodily harm.
  12. negligent supervision-intrafamily immunity: NY abandons. can sue another for ordinary negligence or intentional torts, but a child cannot sue a parent or legal guardian for negligent supervision
  13. negligent supervision: third parties: any
    person who is not the primary caregiver and supervisor of a child can be held liable for negligently failing to properly supervise the child that is temporarily entrusted to their care.
  14. The Dram Shop Act is limited to third parties injured or killed by an intoxicated
    person – it does not allow recovery for injuries sustained by the intoxicated person.
  15. To sustain a claim under the Dram Shop Act, a plaintiff must establish that the defendant unlawfully sold alcohol to a visibly intoxicated person.
  16. labor law: 

    240/241 of the New York Labor Law impose strict and absolute liability on
    property owners, general contractors, and their agents who fail to provide
    proper safety devices in relation to certain construction activities.
  17. assumption of risk:It is an affirmative defense in response to negligence that a plaintiff was aware of a risk and voluntarily accepted it. Thus, the person may not recover for an injury
  18. Under
    the VTL, the owner of a motor vehicle (including snowmobiles, all-terrain
    vehicles and boats) is vicariously liable for death or injury to person or
    property resulting from the negligent use or operation of the vehicle by any
    person using or operating it with the owner's express or implied permission.
  19. permissive use: Strong presumption being operated with owner's consent. That presumption can be rebutted by substantial evidence showing that the operation was without permission.
  20. negligence: duty: physician/patient: physicians under duty to obtain informed consent from patients
  21. tortious interference of contractual relations elements:
    • (1) the existence of a valid contract between plaintiff and a third party;
    • (2) the defendant's knowledge of that contract; (3) the defendant's intentional procurement of the third-party's breach of the contract
    • without justification;
    • (4) actual breach of the contract; and
    • (5) damages.
  22. negligence: duty: physician/patient: for med malpractice based on lack of informed consent P must prove:
    - D failed to make a timely disclosure as to the relevant risks and alternatives of a procedure

    - a reasonable person would have undergone the procedure had the withheld information been disclosed; AND

    - the unconsented to procedure was proximate case of P's injury
  23. tortious interference- qualified privilege defense
    • The
    • defense of qualified privilege is available to a defendant charged with
    • defamation or a claim of tortious interference with contractual relations only
    • upon a showing that: (1) there was some special relationship with the party
    • with whom the conversation took place; and (2) that the scope of the
    • conversation did not exceed the bounds of which the privilege would prescribe.
  24. negligence: duty: physician/patient: P cannot recover for lack of informed consent when there is an emergency and the consent of neither P nor another responsible party could be obtained, and a reasonable person would have given such consent
  25. negligence: duty: driver/passenger: no guest statute- car drivers owe same duty of reasonable care to guests and passengers
  26. negligence: duty: landowners/persons on land: largely no distinction b/w invitees, licensees, and trespassers; only applies in determining:
    • - foreseeability and
    • - what reasonable care might require
  27. negligence: duty: landowners/persons on land: general rule under which landowner owes a duty to exercise reasonable care in maintaining his property in a safe condition to all persons foreseeably at risk
  28. negligence: duty: damages: no common-law collateral source rule- P's recover reduced by any benefit or payment provided by an outside source
  29. negligence: liability: direct: employer negligence: an employer may be directly liable for the negligent hiring, supervision, or retention of an employee.
  30. negligence: liability: direct: employer negligence: P must demonstrate that an employer knew or should have known that the employee hired posed an unreasonable risk of danger, and caused injury.
  31. negligence: liability: vicarious: respondeat superior: an employer is libale for its employee's torts committed within the scope of employment
  32. negligence: liability: vicarious: respondeat superior:employers generally not liable for the intentional torts of their employees, except where force/confrontation is an inherent part of the employee's work (i.e. bouncers, repo men)
  33. negligence: liability: Automobile Owners: The owner of a vehicle (or any other object that carries the potential for harm, i.e. gun, lawn mower) may be liable for the negligent acts of a driver or user to whom the car/other property was entrusted if owner knew or should have known of user’s negligent propensities.
  34. negligence: liability: Automobile Owners: presumed that drivers have permission, and up to owner to rebut that presumption with substantial evidence
  35. negligence: liability: automobile owners:Family-purpose doctrine: owner of an automobile may be liable for tortious acts of any family member driving the car with permission
    permission may be implied even if no express permission
  36. negligence: SOL: no later than 3 years from the negligent act
  37. negligence: SOL: for an action based on negligent exposure to a harmful substance, the 3 year period runs from the time the injury was discovered
  38. negligence: SOL: tolled for a minor or insane P; a minor may commence a negligence action within  3 years of the date of his 18th bday
  39. negligence: SOL: med malpractice= 2 years and 6 months of either the:
    -act, omission, or failure complained of; OR

    - the last treatment where there is continuous treatment for the condition that gave rise to the act, omission or failure
  40. negligence:SOL: med malpractice: if action based on the discovery of a foregin object in P's body and 2.5 year has expired:
    1 year of the discovery of the object
  41. negligence: defenses: pure comparative negligence: P's recovery reduced based on P's own negligence
  42. negligence: defenses: pure comparative negligence:P's own negligence never a complete bar to recovery
  43. negligence: defenses: pure comparative negligence: P is barred from recovery if commits a serious crime
  44. negligence: defenses: pure comparative negligence:P's failure to wear a seatbelt no admissible as evidence of comparative negligence, but admissible as failure to mitigate damages, which is determined after liability is determiend
  45. negligence: defenses: pure comparative negligence: P who fails to wear a seatbelt cannot recover for those injuries that would have been prevent had the seatbelt been worn.
  46. negligence: defenses: assumption of risk: a complete bar to recovery
  47. negligence: assumption of risk: two forms: express and primary: express elements
    • - express: P had knowleged of the specific risk that resulted in injury and voluntarily agreed to assume the risk
    • ~ need not be written
  48. negligence: assumption of risk: two forms: express and primary:primary elements
    • - primary: activities involving an elevated risk of injury, particularly sport and entertainment events when:
    • i. risk is obvious to P and inherent in the activity
    • ii. P voluntarily engages in the activity
  49. negligence: assumption of risk: two forms: express and primary:primary assumption of risk: Owners and operators of recreational facilities cannot disclaim liability by means of contracts, applications, or tickets for damages caused by their employees if the user pays a fee or other compensation for use of the facility
  50. negligence: assumption of risk: two forms: express and primary:primary assumption of risk:
    New York now permits recovery by firefighters and police officers against any person, except the officer’s employer or co-workers, for any culpable conduct, including common-law negligence and strict liability for any statutory violation that results in a line-of-duty injury to a firefighter or police officer.
  51. negligence: res ipsa loquitur: Under the doctrine of res ipsa loquitur, the trier of fact may infer the existence of negligence in the absence of direct evidence of such negligence
  52. negligence: res ipsa loquitur: to successfully asser res ipsa, P must prove:
    • 1) P's injury or damage was caused by an instrumentality or condition which was under D's exclusive control
    • 2) P's harm would not have occurred if D had used ordinary care while the instrumentality was under his control and 
    • 3) P was not responsible for his injuries
  53. negligence: res ipsa: does not require the trier of fact to find that D was negligent; it merely establishes and inference of negligence to avoid dismissal
  54. NY: joint and several liability: a tortfeasor 50% or less at fault responsible only for his equitable share of P's non-economic damages (e.g. pain and suffering)
    a tortfeasor 50% or less at fault responsible only for his equitable share of P's non-economic damages (e.g. pain and suffering)
  55. NY: joint and several liability: equitable shares based on the relative culpability of each person contributing to the total liability for non-economic damages UNLESS a case involvingauto  accident or workers comp laws