NY Torts: additional issues

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  1. V . STRICT LIABILITY: A prima facie case for strict liability requires (i) an absolute duty to make the plaintiff’s person or property safe, (ii) breach, (iii) actual and proximate causation, and (iv) damages.
  2. A . Abnormally Dangerous Activities
    • 1. Basic Rule
    • A defendant engaged in an abnormally dangerous activity will be held strictly liable—without any proof of negligence—for personal injuries and property damage caused by the activity, regardless of precautions taken to prevent the harm. Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 20 (2010).
  3. 2. Definition of “Abnormally Dangerous”
    • Abnormally dangerous means that an activity:
    • i) Creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised; and
    • ii) The activity is not commonly engaged in.
  4. In addition to these requirements, in evaluating whether an activity is abnormally dangerous, courts often consider the gravity of the harm resulting from the activity, the inappropriateness of the place where the activity is being conducted, and the limited value of the activity to the community.
  5. EXAM NOTE: The focus is on the inherent nature of the activity, not how careful the defendant may or may not be in conducting the activity.
  6. Common abnormally dangerous activities include mining, blasting, using explosives, fumigating, excavating, disposing of hazardous waste, storing gasoline in residential areas, storing toxic chemicals and gases, and storing large quantities of water and other liquids.
  7. New York Point of Law: Scaffold Law
    Under New York’s “Scaffold Law,” all contractors, owners, and their agents, except owners of one- and two-family dwellings who contract for work in building, demolishing, repairing, cleaning, or altering a building or structure, must erect or furnish scaffolding, hoists, stays, ladders, slings, hangers, clocks, pulleys, braces, irons, ropes, and other devices to protect a person employed to perform the labor. N.Y. Labor Law § 240. This “scaffolding law” imposes strict liability on contractors, owners, and their agents for height-related injuries, whether from falling objects or the workers themselves falling as the result of improper safety devices. N.Y. Labor Law § 240.
  8. No liability for failure to provide such protection may be imposed on professional engineers, architects, or landscape architects who do not direct or control the work for activities other than planning and design.
  9. Liability will not attach if such safety devices were available at the construction site and the construction worker knew of such devices, but nonetheless chose not to use the devices. Gallagher v. New York Post, 14 N.Y.3d 83 (2010).
  10. Courts have rejected recovery when the plaintiff was the sole proximate cause of the accident.
  11. Violation of duty of care: res ipsa loquitur: Res Ipsa Loquitur
  12. Under the doctrine of res ipsa loquitur, the trier of fact may infer the existence of the defendant’s negligent conduct in the absence of direct evidence of such negligence. Res ipsa is circumstantial evidence of negligence that does not change the standard of care.
  13. EXAM NOTE: Res ipsa loquitur does not apply if there is direct evidence of the cause of the injury.
  14. a. Traditional requirements
  15. Under the traditional standard for res ipsa loquitur, still used in many jurisdictions, the plaintiff must prove that:
  16. i) The accident was of a kind that ordinarily does not occur in the absence of negligence;
  17. ii) It was caused by an agent or instrumentality within the exclusive control of the defendant; and
  18. iii) It was not due to any action on the part of the plaintiff.
  19. b. Modern trends
  20. Even under the traditional requirements, courts often generously interpret the “exclusive control” requirement.
  21. Example: The defendant hires an independent contractor to clean and maintain his store premises. The plaintiff is injured when she slips on a floor negligently left wet by an independent contractor. Courts will find that the duty to maintain the premises open to the public is a non-delegable duty, such that the defendant continued to be in “exclusive control.” Therefore, res ipsa loquitur can be used to find that the defendant breached a duty of reasonable care.
  22. 1) Medical malpractice
  23. In medical malpractice cases when several physicians, nurses, and other medical personnel have access to the plaintiff during surgery, a small number of jurisdictions apply res ipsa loquitur, finding that each defendant has breached a duty of care unless he can exonerate himself. In the absence of such exonerating evidence, the courts hold all defendants jointly and severally liable. See, e.g., Ybarra v. Spangard, 25 Cal. 2d 486 (1944).
  24. 2) Product liability
  25. In negligence cases involving products, even if the product passes through many hands—those of the manufacturer, the distributor, the retail store, and the consumer/user—if the manufacturer wrapped the package or it is clear that any negligence took place during the production process, many courts ignore the exclusivity requirement.
  26. 3) Comparative fault jurisdictions
  27. Courts in the vast majority of jurisdictions that have adopted comparative fault also are inclined to loosely apply the third requirement—that the harm must not be due to any action on the part of the plaintiff (whether such action constitutes contributory negligence or not)—because such a requirement would otherwise be in tension with the law holding that the plaintiff’s contributory negligence is no longer a total bar to recovery.
  28. c. Third Restatement
  29. In light of the fact that the majority of jurisdictions generously apply the traditional requirements for res ipsa loquitur, the Third Restatement has rearticulated the requirements of the doctrine in the following manner:
  30. The fact-finder may infer that the defendant has been negligent when:
  31. i) The accident that caused the plaintiff’s harm is a type of accident that ordinarily happens as a result of negligence of a class of actors; and
  32. ii) The defendant is a relevant member of that class of actors.
  33. Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 17 (2010).
  34. However, because the Third Restatement was only recently adopted, few courts have adopted this precise articulation of the doctrine.
  35. d. Procedural effect of res ipsa loquitur
  36. If the plaintiff establishes a prima facie case of res ipsa, then the trial court should deny the defendant’s motion for a directed verdict, and the issue of negligence must be decided by the trier of fact. In most jurisdictions, res ipsa does not require that the trier of fact find negligence on the defendant’s part. It simply establishes an inference of negligence sufficient to avoid dismissal of the plaintiff’s action.
  37. 3. Proximate Cause (Scope of Liability)
  38. In addition to proving actual causation, the plaintiff must prove that the defendant’s tortious conduct was a proximate cause of her harm. Some courts and the Third Restatement replace the proximate causation terminology with the issue of whether the plaintiff’s harm was within the “scope of liability” of the defendant’s conduct. A defendant’s liability is limited to those harms that result from the risks that made the defendant’s conduct tortious. Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 29 (2010).
  39. EXAM NOTE: Remember that there must be factual cause for proximate cause to exist, and if factual cause exists, then proximate cause exists unless there are intervening acts.
  40. a. Limitation on liability
  41. The basic idea of proximate causation (or scope of liability) is that there must be limits on liability for the tortious acts of the defendant. There are two sub-issues in proximate causation:
  42. 1) Which plaintiffs can recover?
  43. a) Majority rule
  44. Recall that a majority of jurisdictions hold that the defendant does not owe a duty of care to the plaintiff unless the plaintiff is among the class of victims who might foreseeably be injured as a result of the defendant’s tortious conduct. See § IV.B.3. Foreseeability of Harm to the Plaintiff, supra.
  45. b) Minority/Restatement rule
  46. In the minority of jurisdictions—and in the Third Restatement—which plaintiffs can recover is determined by whether harms to them were proximately caused by the defendant’s tortious conduct or were within the scope of liability of the defendant’s conduct.
  47. Under the Andrews test, whether the plaintiff’s harms are proximately caused by the defendant’s conduct requires consideration of the following factors:
  48. i) Is there a natural and continuous sequence between cause and effect?
  49. ii) Was the one a substantial factor in producing the other?
  50. iii) Was there a direct connection without the intervention of too many intervening causes?
  51. iv) Was the cause likely to produce the effect?
  52. v) Could the defendant have foreseen the harm to the plaintiff?
  53. vi) Is the cause too remote in time and space from the effect?
  54. 2) Types of risk
  55. The second proximate cause (scope of liability) issue is whether the plaintiff can recover for the specific type of risk that harmed her. For example, even if the court decides that a duty of care is owed to a specific plaintiff, a ship owner, because there is a foreseeable risk that a defendant stevedore’s dropping of a plank into the hold of a ship might dent the ship, is the defendant still liable when the dropped plank unforeseeably causes vapors in the hull of the ship to ignite, totally destroying the ship? Again, there are two approaches.
  56. a) Direct cause
  57. A majority of U.S. courts hold that the plaintiff can recover when the defendant’s tortious acts are the direct cause of the plaintiff’s harm—a cause without the intervention of independent contributing acts. In deciding whether the plaintiff can recover for a particular type of harm, these courts look at many of the same factors that Judge Andrews considered in Palsgraf. These jurisdictions hold that the foreseeability of the type of harm does not necessarily preclude liability.
  58. b) Unforeseeable type of risk
  59. A strong minority of U.S. jurisdictions hold that whether a plaintiff can recover for a particular type of risk is determined by whether or not that particular risk is foreseeable as a result of the defendant’s tortious conduct. If it is not, then there is no proximate cause, and the plaintiff cannot recover.
  60. b. Extent of damages
  61. Even though a strong minority of jurisdictions hold that the type of risk that produces the plaintiff’s harm must be foreseeable, under the “thin skull” or “eggshell skull” rule and the “shabby millionaire” rule, the extent of the damages need never be foreseeable.
  62. c. Intervening and superseding causes
  63. Many proximate cause questions involve intervening and superseding causes.
  64. 1) Intervening cause
  65. An intervening cause is a factual cause of the plaintiff’s harm that contributes to her harm after the defendant’s tortious act has been completed.
  66. 2) Superseding cause
  67. A superseding cause is any intervening cause that breaks the chain of proximate causation between the defendant’s tortious act and the plaintiff’s harm, thereby preventing the original defendant from being liable to the plaintiff.
  68. a) Foreseeability
  69. Most courts hold that an unforeseeable intervening cause is a superseding cause that therefore breaks the chain of causation between the defendant and the plaintiff. Examples of foreseeable intervening forces include subsequent medical malpractice, disease, or accident; negligence of rescuers; normal forces of nature; or efforts to protect a person or property. Examples of unforeseeable superseding causes include extraordinary acts of nature (“act of God”) and criminal acts and/or intentional torts of third parties.
  70. b) Negligent intervening causes
  71. As a general guideline, negligent intervening acts are usually regarded as foreseeable and do not prevent the original defendant from being held liable to the plaintiff.
  72. Example: The defendant negligently injures the plaintiff in an auto accident. The plaintiff seeks treatment for the resulting broken leg, and the treating physician commits malpractice that results in the amputation of the leg. Because the original driver-defendant’s negligence was a but-for cause of the amputated leg and because medical malpractice is foreseeable, the driver’s negligence is also a proximate cause of the amputated leg, and he may be held liable for the damages caused by the entire injury, including the consequences of the amputation.
  73. c) Criminal intervening causes
  74. Criminal acts of third parties are generally regarded as unforeseeable superseding causes and therefore break the chain of causation between the original defendant’s negligence and the plaintiff’s harm.
  75. However, if the duty breached by the defendant is one of failing to use reasonable care to protect the plaintiff and the plaintiff is harmed by a criminal act, then the original defendant remains liable.
  76. Example: If a middle-school student is assaulted during a field trip and her parents are able to prove that her teacher failed to use reasonable care to protect her, then the fact that the intervening cause of her harm, the assault, was criminal will not preclude the student and her parents from holding the school liable.
  77. d) Effect of non-superseding intervening causes
  78. If the intervening negligent act is not a superseding cause, then the original defendant and the actor responsible for the intervening negligent act can be held jointly and severally liable to the plaintiff.
  79. EXAM NOTE: Remember that the original tortfeasors remain liable unless the results of an intervening negligent act are unforeseeable. In particular, keep in mind that medical malpractice is foreseeable, and therefore it is not a superseding cause that breaks the chain of causation and insulates the defendant from liability.
  80. insurance: no fault: New York requires car owners to maintain “no-fault” liability insurance to cover injuries caused to others, except for people in other vehicles.
  81. insurance: no fault: covers basic economic losses such as medical expenses and lost wages and it replaces the right of many automobile injury victims to sue in tort, unless they suffer “serious injury.”
  82. insurance: no fault: Serious injury includes death, disfigurement, fracture, or permanent or extended impairment of body parts or functions; these may not be covered by insurance and D would still be liable under tort
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NY Torts: additional issues
torts additional issues
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