MBE Torts all

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  1. intentional torts: P required to prove (3 elements)
    • 1. voluntary act
    • 2. intent
    • 3. causation
  2. intentional tort: voluntary act: basic rule
    D must have the state of mind that directed the physical movement
  3. intentional tort: intent: general rule
    • D acts with the purpose of causing the consequence; OR 
    • D acts knowing the consequence is substantially certain to occur
  4. intentional tort: consequence means:
    the act that constitutes the tort.

    NOTE: what matters is that D intended to commit the tort, not necessary the D intended the particular harm that followed
  5. intentional tort: children and mentally incompetent persons can be held liable for intentional torts if they act with the requisite intent
  6. intentional torts: transferred intent happens when person intends to commit an intentional tort against one person but instead commits a different intentional tort against the same person;the same intended tort against a different person; OR a different intentional tort against a different person.
  7. NO transferred intent for IIED
  8. intentional tort: causation: general rule:
    D's conduct was a substantial factor in creating the harm
  9. NY: SOL for bringing an intentional tort claim in NY is no later than 1 year after D caused P's injury
  10. NY: SOL: timed from the anniversary date of the injury. If the anniversary falls on a public holiday or Sunday, P may timely commence her action on the following business day
  11. battery: elements
    • D causes a
    • harmful or offensive contact
    • with the person of another; and
    • acts with the intent to
    • cause that contact OR
    • the apprehension of that contact
  12. no battery if there is express or implied consent
  13. battery: harmful definition:
    causes an injury, physical impairment, pain or illness
  14. battery: offensive: definition
    a person of ordinary sensibilities (reasonable person) would find the contact offensive
  15. battery: offensive contact: D might be liable if aware that victim is hypersensitive but acts nonetheless
  16. battery: P does NOT need to be aware of the contact when it occurs
  17. "person"- contact with anything connected to P's person (e.g. knocking someone's cane out from under them).
  18. battery: damages: D is not required to foresee the extent of damages to be liable for all damages ("eggshell" rule)
  19. battery: damages: no proof of actual harm is required; can recover nominal damages
  20. battery: damages: many states allow punitive damages if D acted with malice or outrageously
  21. assault: P's reasonable apprehension of an imminent harmful or offensive bodily contact caused by D
  22. NY, 1 year statute of limitations to bring an intentional tort claim after D caused P's injury. SOL is timed from the anniversary date of the injury. If the anniversary falls on a public holiday or Sunday, P may timely commence her action on the following business day.
  23. In NY, assault elements=
    • 1) an unjustifiable threat of force against P
    • 2) made with the intention to arouse apprehension
    • 3) creating a reasonable apprehension of immediate physical harm and
    • 4) the apparent present ability by defendant to effectuate the threat
  24. assault: D must act with intent to either
    cause that apprehension or the contact itself
  25. assault: P's apprehension must be:
    • - reasonable
    • - P must be aware of or have knowledge of D's act

    NOTE: actual fear NOT required: only reasonable apprehension of an imminent contact
  26. assault: imminent=
    w/out significant delay, specific and immediate

    NOTE: threats of future harm are not sufficient
  27. assault: mere words: words coupled with the circumstances can indicate an imminent threat of a harmful or offensive contact
  28. assault: damages: no proof of actual damages is required. P can recover:
    • -nominal damages
    • -damages from physical harm flowing from the imminent apprehension (e.g. P suffers a heart attack).
  29. Intentional Infliction of Emotional Distress (IIED): definiton
    D is liable for intentionally or recklessly acting with extreme or outrageous conduct that causes P severe emotional distress.
  30. IIED: intent:definition
    D must intend to cause severe emotional distress or at least be reckless as to the risk of causing extreme emotional distress
  31. IIED: extreme or outrageous=
    exceeds the limits of common decency so as to be intolerable to society.
  32. extreme or outrageous does not =
    • mere insults
    • indignities
    • threats
  33. IIED: courts more likely to find conduct or language extreme or outrageous if:
    • -D in a position of authority or influence over P or
    • - P is a member of a group that has a heightened sensitivity
  34. IIED: immediate family rule
    • - conduct directed at a member of victim's immediate family
    • - member present at the time of conduct AND
    • - D is aware of that presence
    • - D can be liable, whether or not there has been physical injury (to member?)
  35. IIED: bystander rule:
    • - bystander is present at the time of the conduct
    • - D is aware of that bystander's presence and - - bystander suffers distress that results in bodily injury
    • - then D can be liable
  36. IIED: severe emotional distress= beyond what a reasonable person could endure
  37. IIED: physical injury is NOT required (but only if bystander must have physical injury)
  38. NY: IIED: intentional mishandling of a corpse is grounds for liability
  39. NIED: A defendant is guilty of negligent infliction of emotional distress if 
    the plaintiff suffers physical harm as a direct result of the defendant's negligentact
  40. Negligent Infliction of Emotional Distress (NIED): recovery without physical injury ok if:
    • 1. a special duty is owed to P and that duty is breached, but there is not threat to P's safety or fear of personal harm (e.g. hospital informed P erroneously that her mother has died) OR
    • 2. a breach of a duty of care to P that creates an unreasonable risk of physical harm to P (e.g. ski lift operator failed to secure P in the lift chair)
    • 3. Bystander cases: P witnesses injury to an immediate family member (e.g. parent, child, sibling, spouse) while that P is in the zone of danger created by the D.
  41. zone of danger= ???
  42. false imprisonment: definition
    • D acts intending to confine or restrain another within boundaries fixed by the D;
    • actions directly or indirectly result in confinement; AND
    • P is aware of the confinement or harmed by it
  43. false imprisonment: confined within bounded area: definition:
    • P's freedom of movement in all directions must be limited
    • area can be large
    • does not have to be stationary
    • not considered bounded if there is a safe means escape
  44. false imprisonment: methods of confinement: use of physical barriers, physical force, threats, invalid use of legal authority, duress, or refusing to provide a safe means of escape
  45. false imprisonment: shopkeeper's privilege:
    a shopkeeper can detain a suspected shoplifter without being considered false imprisonment
  46. false imprisonment: a court may find that the D has confined P when:
    D has refused to perform a duty to release P from existing confinement or to provide a means of escape
  47. false imprisonment: intent elements:
    • D must act:
    • with the purpose of confining P; OR
    • knowledge that P's confinement is substantially certain to result
  48. false imprisonment: D will not be liable under the intentional tort of false imprisonment if confinement due to D's negligence
  49. false imprisonment: P must be aware of the confinement at the time it occurs OR suffer actual harm from the confinement
  50. false imprisonment damages: actual damages not required; nominal damages can be recovered, unless P is not aware of the confinement
  51. defenses to intentional tort involving personal injury:express consent:general rule:
    P by words or actions manifests a willingness to submit to the conduct
  52. express consent: D's conduct cannot exceed the scope of consent
  53. express consent: consent by mistake is valid unless D cause the mistake or knew of it and took advantage of it
  54. express consent: consent by fraud is invalid if it goes to an essential matter; if a collateral matter, consent is valid.
  55. express consent: invalid if obtained under duress (i.e. threats of physical force)
  56. express consent:threats of economic duress will not make consent invalid
  57. implied consent: general rule:
    • when a reasonable person would object and you are silent; or 
    • when you enter into circumstances when you are signaling indirectly your willingness to endure certain conduct
  58. implied consent: only liable for reckless conduct if injuries arise out of athletic competitions
  59. implied consent: athletic competitions: reckless =
    conduct outside the normal scope of the sport
  60. consent: lack of capacity (e.g. youth, intoxication, incompetency, etc.) may undermine the validity of consent
  61. self-defense: use of reasonable force: general rule
    person may use reasonable force to defend against an offensive contact or bodily harm that he reasonably believes is about to be inflicted upon him
  62. self defense: force must be reasonably proportionate to the anticipated harm
  63. self defense: a reasonably mistaken belief about a threat will be a valid defense
  64. self defense: most courts require person to retreat before using deadly force unless person is in her home
    NOTE: no duty to retreat if non-deadly force
  65. self defense: stand your ground: (many jurisdictions) may use deadly force in self-defense only when he has a reasonable belief that force is sufficient to cause serious bodily injury or death that is about to be intentionally inflicted upon him.
  66. NY: self-defense: deadly force: duty to retreat if one can do so safely, unless one is within her home or within the curtilage of her home
  67. NY: self-defense: deadly force: curtilage is the enclosed area surrounding the home (e.g. fenced in backyard).
  68. NOT entitled to claim self-defense if the initial aggressor
  69. self defense- bystander rule:
    the actor is not liable for injuries to bystanders as long as the injuries were accidental and actor was behaving reasonably (not negligent)
  70. defense of others: can use reasonable force in defense of others upon a reasonable belief that that party would be entitled to use self-defense
  71. defense of property: reasonable force may be used if the person reasonably believe it is necessary to prevent tortious harm to the property
  72. deadly force to defend property may not be used (e.g. a spring gun, other mechanical devices to defend property)
  73. recapture of chattels: reasonable force may be used to reclaim personal property that has been wrongfully taken by another
  74. recapture of chattels: if the original taking was lawful and the current possessor has merely retained possession beyond the time consented to, then only peaceful means may be used.
  75. under common law, reasonable force permitted to reclaim property. under modern rule, use of force not permitted
  76. parent may use reasonable force or impose confinement as necessary to discipline his child
  77. privilege of arrest: private citizen permitted to use force to make an arrest in the case of a felony IF:
    • felony has actually been committed AND
    • arresting party has reasonable grounds to suspect that the person being arrested has committed the felony
  78. privilege of arrest: reasonable mistake as to identity is permissible in citizen's arrest, but not a mistake as to whether the felony was actually committed.
  79. privilege of arrest: police must reasonably believe a felony has been committed and that the person arrested committed it
  80. privilege of arrest: police officer who makes a mistake as to whether a felony has been committed is not subject to tort liability.
  81. harm to personal property: trespass= the intentional or reckless entry by a person or thing onto land in the actual or constructive possession of another
  82. harm to personal property:trespass to chattel: definition:
    an intentional interference with P's right to chattels either by:

    • dispossessing P; or
    • using or meddling with P's use of the chattel
  83. harm to personal property: trespass to chattel's: intent RULE: only the intent to do the interfering act is neessary
  84. trespass to chattels: intent: D need not have intended to interfere with another's possession of tangible property
  85. trespass to chattels: mistake about the legality of the action IS NOT a defense
  86. damages: P may recover the actual damages caused and use of the goods
  87. damages: P can only recover actual damages (includes diminution in value or the cost of repair)
  88. conversion: RULE:
    D intentionally commits an act depriving P of possession of his chattel or interfering w P's chattel in a manner so serious as to deprive P entirely of the use of the chattel
  89. conversion: damages: P can recover the chattel's full value at the time of conversion
  90. conversion: D must only intend to commit the act that interferes
  91. conversion:mistake of law or fact IS NOT a defense
  92. conversion: interference can occur by exercising dominion or control over P's chattel
  93. conversion: if the original acquisition was not wrongful, the P must first demand return of chattel before suing for conversion
  94. conversion: action for replevin is action for the return of the chattel
  95. trespass to chattels vs. conversion: in conversion, interference is to such a degree that D should have to pay the full value
  96. conversion factors:
    • duration or extent of the interference
    • D's intent to assert a right inconsistent with the rightful possessor
    • D's good faith
    • expense or inconvenience to P 
    • extent of harm to the chattel
  97. NY: conversion: a good faith purchaser of stolen property not liable unless first informed of the defect in his title to the property and fails to return the property to its rightful owner
  98. trespass to land= the intentional or reckless entry by a person or thing onto land in the actual or constructive possession of another
  99. trespass to land: intent rule:
    D need only have the intent to enter the land or cause the physical invasion NOT the intent to commit a wrongful trespass

    The intrusion must be the inevitable consequence of the act
  100. trespass to land: mistake of fact is not a defense.
  101. tresspass to land is actionable per se, and the party whose land is entered may sue even if no actual harm is done.
  102. trespass to land: failure to leave P's property after a lawful right of entry has expired constitutes a physical invasion
  103. trespass v. nuisance: trespass always involves an actual physical invasion or intrusion upon the land; nuisance may or may not involve a physical invasion or intrusion
  104. trespass to land: defenses: the legal authority to enter the land. 2)consent 3)privilege 4) public or private necessity
  105. trespass to land: necessity RULE:
    available as a defense to a person who enters onto the land of another or interferes with their personal property to prevent an injury or to prevent another severe harm
  106. trespass to land: if a private necessity, P must pay for actual damages that he has caused
  107. trespass to land: if a public necessity (i.e. private property intruded upon or destroyed when necessary to protect a large number of people from public calamities) NOT liable for damages to the property
  108. trespass to land: SOL: 3 years
  109. nuisance: RULE
    an activity that substantially and unreasonably interferes with another's enjoyment and use of land
  110. nuisance: interference can be intentional, negligent, reckless, or the result of an abnormally dangerous activity
  111. nuisance: interference: if the conduct that interferes with the use and enjoyment of land is unintentional, then P must show the conduct was negligent
  112. nuisance: if conduct that interferes with the use and enjoyment of land is intentional, it is considered a nuisance if it is more than the P should have to bear.
  113. the blocking of sunlight or obstruction of views historically not a nuisance UNLESS (in some cases) a "spite fence" i.e. a person puts up a fence with no purpose except to block their neighbor's view or sunlight
  114. defense to nuisance: compliance with state or local administrative agencies is not a complete defense (though it may evidence whether activity is reasonable)
  115. defense to nuisance: "coming to the nuisance": if you move somewhere knowing about a conduct, courts are hesitant to allow you to complain that that conduct unreasonably interferes with your use and enjoyment of the land (though NOT a complete defense to nuisance)
  116. public nuisance: RULE
    • 1) an unreasonable interference with a right common to the general public (e.g. pollution, blocking f a public highway, etc.) AND
    • 2. P has been harmed in a special or distinct way different from the publice
  117. nuisance remedies: sometimes hesitant to award injunction when value of the activity is great compared to the harm created
  118. damages are the usual remedy for nuisance. awarded for:
    • harm suffered or
    • permanent damages
  119. private nuisance: abatement (self help) RULE:
    person may enter another's land to abate a private nuisance AFTER giving D notice of the nuisance and D refuses to act. 

    NOTE: amount of force used must be reasonable to abate the nuisance
  120. negligence is the failure to:
    exercise care that a reasonable person in that situation would exercise and acting in a way that breaches the duty to prevent foreseeable risks of harm to others
  121. negligence: to establish a prima facie case [elements]:
    • duty- D owed a duty to exercise a reasonable standard of care to a foreseeable P
    • breach- D breached that duty
    • causation- D's breach was the actual and proximate cause of P's damage and 
    • damages- P suffered legally cognizable injury or damages
  122. duty: generally no duty to act affirmatively, even if it appears unreasonable
  123. duty: a claim for negligence will succeed if the tortfeasor could have taken reasonable steps to prevent the injury but didn't
  124. duty: D can be found negligent for failure to warn if a reasonably prudent person would warn of the danger
  125. duty: if acting affirmatively, the foreseeability of the harm to others is enough to give rise to this general tort duty of reasonable care.
  126. duty: Palsgraf (majority opinion) duty of care owed to P only if P is a member of the class of persons who might be foreseeably harmed by the conduct
  127. duty: Palsgraf (dissenting opinion) about proximate cause
  128. duty: a person who comes to the aid of another is a foreseeable P
  129. duty: "firefighter's rule" certain emergency personnel may be barred from recovering damages
  130. duty: exceptions to "no affirmative duty" rule
    - assumption of duty (aiding or rescuing someone --> liable to damages caused by failure to act with reasonable care in performing aid or rescue)

    - placing another in danger

    - by authority- if authority and ability to control another

    - special relationship (e.g common carrier- passenger)
  131. negligence: standard of care: reasonably prudent person under the circumstances
  132. standard of care: D presumed to have average mental abilities and knowledge
  133. standard of care: particular physical characteristics are taken into account (e.g. blindness, deafness)
  134. standard of care: intoxicated ppl are held to the same standard as sober people unless the intoxication was involuntary.
  135. standard of care: children: ask, what would a reasonably prudent child of that age would do?
  136. standard of care: if child engaged in adult activity (e.g.), jury won't be instructed to take into account child's age
  137. cost-benefit analysis: ask whether there is a reasonable, efficient, inexpensive, sensible precaution that should have been taken in light of the foreseeable risks
  138. standard of care: custom is relevant, but NOT a complete defense.
  139. standard of care: professionals must exhibit the same skill and knowledge as another practitioner in the same field. A specialist may be held to a higher standard
  140. standard of care: physicians: traditional vs. modern RULE:
    traditional: act as a physician in the "same or similar locality"

    modern trend- act as a physician in the country would
  141. standard of care: physicians: informed consent requirements:
    must explain risks of medical procedures
  142. standard of care: physicians: informed consent not required if:
    • risks are commonly known
    • patient is unconscious
    • patient waives/refuses the info
    • patient is incompetent, or
    • patient would be harmed by disclosure (i.e. cause heart attack).
  143. NY: informed consent: P must prove that:
    • D failed to make a timely disclosure as to the relevant risks and alternatives of a procedure;
    • a reasonable person would not have undergone the procedure had the withheld information been disclosed; AND
    • the unconsented to procedure was the proximate cause of P's injury.
  144. NY:informed consent: P cannot recover when there is an emergency and the consent can't be obtained  from P or another responsible party , and a reasonable person would have given such consent
  145. negligence per se: a criminal law or regulatory statute imposes a particular duty for the protection or benefit of others
  146. negligence per se: basic rule:
    - 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
  147. negligence per se defenses:
    • - compliance was impossible or
    • - an emergency justified violation of the statute

    - D must show that complying with the statute would be even more dangerous than violating the statute
  148. standard of care: common carriers and innkeepers: traditional rule:
    higher duty of care consistent with the practical operation of the business
  149. standard of care: common carriers and innkeepers: majority RULE:
    common carriers are held to a higher standard while innkeepers liable only for ordinary negligence (not a higher standard)
  150. standard of care: common carriers and innkeepers BOTH have duty to act affirmatively based on the special relationship with passengers and guests
  151. standard of care: automobile drivers: some jurisdictions have "guest statutes," wherein___
    a driver only liable if she was reckless, grossly negligent, wanton or had willful misconduct while guests AND their friends in a car
  152. standard of care: automobile drivers: in jurisdictions with no guest statute, negligence standard
  153. NY does NOT have a guest statute --> auto drivers owe same duty of reasonable care to guests and passengers
  154. standard of care: a bailee takes temporary possession of another's (the bailor's) property (e.g. driver leaves car with valet)
  155. standard of care: bailor/bailee: modern trend: duty of care depends on the circumstances in the light of which conduct is measured by the standard of reasonable care
  156. standard of care: emergency situations: that of a reasonable person in the same situation
  157. landowner liability: In NY, all owners and occupiers of property owe a duty of care to all users of the property and guests to keep common areas safe and repair areas in disrepair. The liability of the landowner is judged under a reasonably prudent person standard.
  158. NY: landowner has a non-delegable duty to maintain his premises in a safe condition
  159. standard of care: possessors of land: traditional  RULE:
    depends on whether person an invitee, a licensee, or a trespasser
  160. standard of care: possessors of land: non-traditional RULE:
    due care owed to ALL invitees and licensees
  161. standard of care: trespasser: general duty of possessor:
    obligated to refrain from willful or wanton misconduct, or reckless harm
  162. standard of care: possessors of land: RULE: discovered or anticipated trespassers
    • - must warn or protect them from hidden dangers
    • - no duty to warn them from natural or artificial conditions that don't cause the risk of death.
  163. standard of care: possessors of land: RULE: no duty for undiscovered trespassers
  164. standard of care: possessors of land: RULE: attractive nuisance doctrine:
    possessor of land may be liable to injuries to children trespassing on land if:

    • i) an artificial condition exists in a place where the owner knows or has reason to know children are likely to trespass
    • ii) the land possessor knows or has reason to know the artificial condition poses an unreasonable risk of death or severe bodily harm
    • iii) the children, b/c of their youth do not discover or cannot appreciate the danger
    • iv) the utility to the land possessor of maintaining the condition is slight compared to the risk of injury; and
    • v) the land possessor fails to exercise reasonable care
  165. standard of care: possessors of land: licensees enter the land with express or implied permission
  166. standard of care: possessors of land: licensees: traditional RULE:
    • land possessor has a duty to either correct or warn licensees of concealed dangers
    • - possessor has no duty to inspect for dangers
    • - possessor must exercise reasonable care in conducting activities on the land
  167. standard of care: possessors of land: an invitee is someone who comes onto the land for your purpose, a mutual or joint purpose (e.g. customer in your business)
  168. standard of care: possessors of land: invitee: duty RULE
    owed a duty of reasonable care
  169. standard of care: possessors of land: invitee: cannot avoid the duty to invitee by assigning care of your property to an independent contractor
  170. standard of care: possessors of land: many modern courts abolished licensee vs. invitee distinction --> just exercise reasonable care for both
  171. NY mostly does not distinguish between invitees, licensees, and trespassers.
  172. NY: landowner general duty:
    exercise reasonable care in maintaining his property in a safe condition to all person foreseeably at risk
  173. NY: possessors of land: only distinguish licensee, invitee, and trespasser in determining foreseeability and what reasonable care might require.
  174. standard of care: possessors of land: landlord remains liable for injuries in common areas, injuries from hidden dangers about which the landlord did not warn the tenant, injuries from premises that are leased for public use, or injuries from a hazard the landlord has agreed to repair
  175. Under the NY GOL, indemnification clauses are void and unenforceable where lessors try to exempt themselves from liability for their own negligence
  176. standard of care: possessors of land: as occupier of land, tenant continues to be liable for injuries arising form conditions w/in the tenant's control
  177. standard of care: possessors of land: off premises victims: land possessor generally not liable for injuries resulting from natural conditions, except for trees in urban areas
  178. standard of care: possessors of land: off premises victims: for artificial conditions must prevent unreasonable risk of harm to persons not on the premises.
  179. standard of care: possessors of land: sellers of real property have a duty to disclose to buyers concealed an unreasonably dangerous conditions known to the seller.
  180. standard of care: possessors of land: sellers of real property: duty continues until the buyer has a reasonable opportunity to discover and remedy the defect.
  181. res ipsa loquitur: elements
    • - accident was of a kind that usually does not occur in the absence of negligence. 
    • - caused by an agent or instrumentality within D's exclusive control; AND
    • - was not due to P's own fault
  182. res ipsa loquitur: medical malpractice: ALL Ds jointly and severally liable unless they can exonerate themselves
  183. res ipsa: A claim will fail if the trier of fact determines that the person in control of the instrumentality had taken reasonable precautions to prevent such an injury
  184. negligence: causation: P must show that the breach was the cause of his or her harm
  185. causation has two components:
    • 1. cause in fact
    • 2. proximate cause
  186. cause in fact: "but-for" test:"
    P must show that the injury would not have occurred "but for" D's negligence
  187. concurrent tortfeasors and one injury:
    joint and several liability
  188. concurrent tortfeasors: both Ds are potentially liable; P can sue either D and collect ALL of his damages
  189. alternative causation: If P's harm was caused by only one of a few Ds, and it cannot be determined which one cause the harm, courts will shift burden of proof to Ds. This means ____
    courts will impose joint and several liability on both Ds unless they can show which one of them caused the harm
  190. Joint and several liability when:
    • - the tortious acts of two or more Ds combine to produce one indivisible and each act a cause of that harm
    • - concert of action: two or more tortfeasors were acting together collectively and that causes P's harm.
    • - alternative liability- P's harm caused by only one of a few Ds and cannot be determined which one cause the harm
    • -res ipsa loquitur in med malpractice
  191. if a physician negligently reduces P's chance of survival, then P can recover. P's chance of recovery must be ____
    less than 50% even prior to the negligent misdiagnosis
  192. If lost chance of survival, then the proper measure of damages is _____
    the percentage of your damages that correspond to the likelihood that D's negligence caused your harm
  193. Cause in fact IS NOT ENOUGH for liability
  194. proximate, or legal cause, exists when it is foreseeable that D's breach of duty would result in certain injuries
  195. cause: whether a duty exists is a question of law for the court to decide. Foreseeability is used to determine the scope of duty,
    only after it has been determined that there is a duty. 
  196. proximate cause i.e.
    scope of liability
  197. proximate cause: ask:
    Is this the kind of harm that made us decide that you are negligent?
  198. Proximate cause factors from Palsgraf dissent:
    • - is there a natural and continuous link between the cause and effect
    • - was one a substantial factor?
    • - was there a direct connection without too many intervening causes?
    • - was the cause likely to produce the effect?
    • - could D have foreseen the harm?
    • - was the cause too remote in time?
  199. intervening cause=
    factual cause that contributes to the harm
  200. If the intervening act is extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from D's conduct, it is regarded as a superseding act that breaks the causal nexus
  201. an unforeseeable intervening cause is a superseding cause, which severs the connection
  202. in some courts, intervening conduct of a 3rd part would be a superseding cause that would relieve the initial negligent actor from liability. But if that 3rd party negligent/criminal conduct is foreseeable, some courts hold initial negligent actor liable
  203. modern courts tend not to focus on intervening and superseding causes
  204. negligence damages: nominal damages cannot be recovered
  205. negligence damages: P must prove actual harm
  206. economic-loss rule: P who suffers only economic loss without any related personal injury or property damage cannot recover in negligence
  207. If P has proven non-economic injury, then P can recover non-economic and economic damages
  208. P must take steps to mitigate damages
  209. types of damages for personal injury:
    • - medical expenses/rehab
    • - pain and suffering
    • - lost income
  210. property damage: general rule:
    P may recover the difference b/w the market value of the property before and after the injury
  211. if harm to personal property, most courts allow recovery of the cost of repairs
  212. often, courts use replacement value as the measure of damages for household items.
  213. collateral-source rule: traditional rule:
    payments to P from outside sources, such as medical insurance, would not be credited against the liability of any tortfeasor
  214. collateral-source rule: modern RULE:
    most states allow double recovery: payments made to the plaintiff by the D's insurer are credited against D's liability
  215. NY: DOES NOT follow collateral source --> P's recovery is reduced by any benefit or payment provided from an outside source
  216. punitive damages recoverable if P can show by clear and convincing evidence that D acted willfully, recklessly, or with malice. Also available for inherently malicious torts, such as IIED
  217. damages: if NIED, general RULE
    Ps cannot recover except for limited circumstances
  218. damages: limited circumstances allowing for NIED recovery: RULE:
    when P think she is about to suffer physical harm, and as a result suffers emotional distress (i.e. think you're about to get run over by negligent driver. Not run over but suffer heart attack. Can recover).
  219. damages: zone of danger: generally P can recover for emotional distress if he is in zone of danger and feared for his own safety
  220. bystander can recover for distress if person injured is:
    • closely related to the bystander;
    • bystander is present at the scene; and
    • personally observed the accident
  221. exceptions to physical injury requirement for NIED:
    • physician misdiagnoses a disease OR
    • a funeral home mishandles a body
  222. once P has recovered for a physical harm or property damage, he can sometimes add categories of damage analogous to emotional distress
  223. wrongful death= Decedent's spouse, next of kin, or personal representative brings suit to recover losses suffered as a result of the decedent' death under actions created by state statutes
  224. wrongful death damages include:
    loss of support and loss of companionship and society
  225. NY: wrongful death damages=
    • medical and funeral expenses
    • loss of support
    • loss of parental guidance
    • loss of probable inheritance
    • punitive damages
  226. NY: wrongful death: non-economic (e.g. personal grief) damages are not allowed
  227. NY: medical malpractice: miscarriage or stillbirth: no claim for wrongful death on behalf of deceased child
  228. NY: medical malpractice: miscarriage or stillbirth:a mother can recover for emotional distress even without showing that she suffered an independent physical injury
  229. NY: respondeat superior: when an employee commits a tort, punitive damages may only be brought against an employer when:
    • employer was either grossly negligent in hiring the employee;
    • general managerial responsibilities were delegated to the employee;
    • or the employer authorized or ratified the employee's tortious conduct
  230. NY: medical malpractice: miscarriage or stillbirth:if child survives, mother cannot recover for emotional distress based on injury to the child, but can recover based on breach of a duty owed to her by the physician.
  231. survival actions= actions on behalf of decedent. claims include:
    damages resulting from personal injury or property damage
  232. recovery for loss arising from injury to fam: in parent-child recovery
    • - parent can sometimes recover for the loss of services if a child is injured
    • - parent can recover for the loss of companionship in a wrongful death action if child is killed
  233. most states don't permit recovery if failure to perform a contraceptive procedure that leads to a pregnancy, but many states permit recovery for wrongful birth if failure to diagnose a defect
  234. vicarious liability- under the doctrine of vicarious liability, a principal is vicarious liable for an agent's torts if an agency relationship exists, and the conduct was within the scope of the agency 
  235. vicarious liability: generally, a D has no duty to control the conduct of third persons so as to prevent them from harming others, even where as a  practical matter, D can exercise such control. However, agency relationships may give rise to this duty.
  236. respondeat superior=
    under this doctrine, employers are vicariously liable for the employee's torts if they occurred within the scope of employment.
  237. RULE: employer can be liable if it was a negligent hiring or failure to train
  238. in a detour, employer ___ liable
  239. in a frolic, employer ___ liable
    is not

    - b/c not within the scope of employment
  240. an employer is not liable for torts committed by independent contractors
  241. an employer cannot shield liability for employee negligence by describing its employees as independent contractors
  242. if employer retain a right of control over the way that employee does the work, will be treated as an employee even if described as an independent contractor
  243. employer may be vicariously liable for the torts of indep contractors when:
    • -inherently dangerous activity
    • - non delegable duty
    • - duty of an operator of premises to keep the premises safe for the public; and
    • - duty to comply with safety statutes
  244. business partners: when two or more parties have a common purpose and mutual right of control, they may be liable for each other's torts that are committed within the scope of the business purpose
  245. negligent entrustment: a person can be directly liable for negligently entrusting a vehicle, gun or dangerous device to someone who is not in the position to care for it
  246. parents generally are not vicariously liable for their minor children's torts.
  247. parents liable for kids' torts in limited exceptions:
    • - child commits a tort while acting as an agent for the parent
    • - state statues provide for the liability of parents for kids' specific acts (e.g. school violence or vandalism)
    • - parent approves application for child to get his license
  248. negligence of parents: a parent is under a duty to exercise reasonable care to prevent a minor child from harming a third party, provided the parent
    • - has the ability to control the child; and
    • - knows or should know of the necessity for exercising such control
  249. NY: negligence: generally does not recognize cause of action against parents for the negligent supervision of children UNLESS:
    • parent aware the child possessed vicious tendencies OR
    • negligently entrusting a child with a dangerous instrument
  250. NY: parental liability limited to $5000 for the intentional and willful acts of their minor children over age 10
  251. NY: vicarious liability: owner of an automobile may be liable for the tortious acts of anyone using the automobile with permission
  252. NY: vicarious liability: permissive use statute provides that:
    • an automobile's registration is prima facie evidence of its ownership raising a rebuttable presumption that the driver operated the vehicle with the owner's permission
    • it is not necessary that the person borrowing the automobile actually drive it; "use," including loading and unloading is sufficient.
    • the owner of an automobile may not be held vicariously liable for intentional tortious conduct by the automobile's driver
  253. dram shop laws (recognized in many states) limits the liability of bars and bartenders for injuries cause when people drink too much and injure the third parties
  254. NY: dram shop act permits third parties injured by intoxicated persons to recover from the seller or server of alcohol, based upon proof hat the buyer or patron was visibly intoxicated or a habitual drunkard.
  255. NY: negligence SOL: no later than 3 years from the negligent act
  256. NY: negligence SOL: negligent exposure to a harmful substance: 3 year period runs from the time the injury was discovered or reasonably discovered
  257. NY: negligence SOL: tolled for a minor or insane P
  258. NY: negligence SOL: a minor may commence a negligence action within 3 years of the date of his 18th birthday
  259. NY: negligence SOL: medical malpractice must be commenced no later than 2.5 years of either the act, omission or failure complained of; or the last treatment (when there is continuous treatment for the condition that gave rise to the act, omission, or failure)
  260. NY: negligence SOL: if the action is based on the discovery of a foreign object in P's body and 2.5 year period expired, action may still be commenced within 1 year of the discovery of the object.
  261. federal government waives immunity in tort actions, except:
    • certain torts: assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, and interference with contractual rights
    • discretionary functions: planning or decision making
    • contract conformed to gov't specifications and gov't knew about any known dangers
    • traditional gov't activities (i.e. tax collection, admiralty, military activity, etc.)
  262. municipality negligence: In New York, a municipality can be sued when acting in a proprietary capacity rather than a governmental capacity provided a notice of claim is filed within 90 days of the alleged tort. 
  263. municipality negligence: claims against municipal 
    corporations are generally governed by New York's General Municipal Law
  264. municipality negligence: In determining whether a certain function is proprietary or governmental, a common test is ascertain whether the municipality is involved in an enterprise that is commercial in character or that is normally carried on by private individuals or companies.In determining whether a certain function is proprietary or governmental, a common test is ascertain whether the municipality is involved in an enterprise that is commercial in character or that is normally carried on by private individuals or companies.
  265. municipality negligence: Governmental entities, with certain exceptions, have waived immunity and are answerable for the negligence of their officers and employees to the same extent as individuals or private corporations engaged
    in the same enterprises. 
  266. municipality negligence: A municipality cannot be sued if a plaintiff is injured due to the municipality's failure to provide a service that is owed to the general public, such as police protection
  267. municipality negligence: Under the NY Gen. Mun. Law, any action for
    personal injury or injury to property against a municipality must be commenced
    within one year and ninety days from the happening of the event giving rise to
    the suit (in the case of a wrongful death claim, there is a two year statute of
    limitations rather than one year and ninety days). 
  268. for gov't officials, immunity applies if performing a discretionary function, as long as done without malice or an improper purpose. But NO immunity for ministerial acts
  269. no interspousal immunity
  270. traditionally, parents immune from tort claims by their children; recent trend to allow liability but NOT in core parenting activities
  271. most states eliminated charitable immunity
  272. joint and several liability: two tortfeasors, both of whom are liable, can be liable for a single harm.
  273. joint and several liability: P can collect damages from either defendant, but cannot recover double!
  274. 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)
  275. 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 involving
    auto  accident or workers comp laws
  276. contribution: if two or more tortfeasors subject to liability to the same P and one of the tortfeasors has paid more than his fair share of the damages, then that tortfeasor can sue the other tortfeasor for contribution.
  277. contribution: calculated either by:
    • - comparing how far each tortfeasor departed from the standard of care or
    • - pro rata allocation
  278. pure several liability=
    each tortfeasor is only liable for his own share of the harm
  279. indemnification=
    shifts entire loss from one party to the other
  280. indemnification generally arises under vicarious liability and is available when:
    • - there is a prior agreement between the parties
    • - there is equitable indemnification- a substantial difference b/w the blameworthiness of the two parties, requiring a shifting of the loss from one to the other
    • - there is significant additional harm caused by another tortfeasor; or 
    • - under strict liability, each supplier has indemnification against previous suppliers
  281. contributory negligence: traditional rule: P's failure to exercise due care would eliminate any chance of recover. BUT most states no longer apply
  282. last clear chance doctrine= under contributory negligence rules, if D had the last clear chance to avoid the harm, but failed to do so, then the P could still recover
  283. helpless plantiff= a P who due to his own contributory negligence was in peril from which he cannot escape
  284. helpless plaintiff: D is liable if she knew or should have known of P's peril and could have avoided harming P
  285. inattentive P=
    P in peril due to his own inattention
  286. inattentive P: D liable only if he had knowledge of the peril
  287. comparative negligence=
    apportion damages b/w D and P based on their relative degrees of fault
  288. pure comparative negligence=
    P's damages reduced by the extent to which P contributed to the harm
  289. pure comparative negligence: P's negligence is never a complete bar to recovery
  290. NY: is a PURE COMPARATIVE NEGLIGENCE jurisdiction
  291. NY: pure comparative negligence: If P commits a serious crime, then P's recovery is barred
  292. NY: P's failure to wear a seatbelt is not admissible as evidence of comparative negligence; however, admissible as evidence of failure to mitigate damages.
  293. NY: seatbelt: P who fails to wear a seatbelt cannot recover for those injuries that would have been prevent had the seatbelt been worn.
  294. modified comparative negligence [adopted in most jurisdictions]:
    • if P is LESS at fault then D, P's recovery is reduced by his percentage of fault
    • if P is MORE at fault, P cannot recover
  295. modified comparative negligence: in most jurisdictions, if P and D are equally at fault then P recovers half of his total damages. In some, if P and D are equally at fault, P recovers nothing
  296. comparative negligence (all): P's degree of negligence is compared to the negligence of all of the Ds combined
  297. imputed contributory negligence: limit on person's recovery because of another person's negligence (disfavored doctrine). DOES NOT apply to:
    • a married P whose spouse was contributorily negligent in causing the harm in a suit against a third party
    • a child P whose parent's negligence was a contributing cause of her harm in a suit against a 3rd party
    • an automobile passenger suing a 3rd party driver if the negligence of the driver of the car in which the passenger was riding also contributed to the accident
    • an automobile owner in an action against a D driver for negligence when the driver of the owner's car also was negligent
  298. assumption of the risk= P has knowingly and willingly accepted a risk of harm and thus cannot recover
  299. assumption of risk: exculpatory clauses in Ks: generally parties can contract to disclaim liability on negligence
  300. assumption of risk: exculpatory clauses in Ks: courts will hesistate to enforce if:
    • they disclaim liability for reckless or wanton misconduct; or gross negligence
    • there is a gross disparity of bargaining power between the two parties 
    • the party seeking to enforce the provision offers services of great importance to the public (e.g. medical services)
    • the provision is subject to contract defenses (e.g. fraud or duress)
  301. assumption of risk: exculpatory clauses in Ks: generally, common carriers, innkeepers, and employers cannot disclaim liability for negligence
  302. participants and spectators in athletic events assume the risks of certain injuries and accidents that are inherent in the game or activity
  303. NY: assumption of risk a complete bar to recovery
  304. NY: assumption of risk: two forms:
    • 1) express
    • 2) primary
  305. NY: express assumption of risk requires
    • proof that P had knowledge of the specific risk that resulted in injury and
    • voluntarily agreed to assume the risk

    NOTE: need not be written
  306. NY: primary assumption of risk applies to:
    activities involving an elevated risk of injury (particularly sporting and entertainment events) when:

    the risk is obvious to P and inherent in the activity AND

    P voluntarily engages in the activity
  307. consent vs. assumption of risk=
    assumption applies to negligence; consent applies to intentional torts
  308. NY: assumption or risk: firefighters and police officers may recover against any person, except 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
  309. 3 categories for strict liability: 1. abnormally dangerous activities2. wild animals 3. defective products
  310. Under New York law, strict liability generally only applies in cases involving abnormally
    dangerous activities and vicious animals – in cases involving vicious animals,
    a person who owns, harbors, or possesses a wild animal is generally strictly
    liable for any damage the animal may cause to persons or property. 
  311. Under strict liability, P does NOT need to show D was negligent. Strict liability is liability that does not depend on actual negligence or an intent
    to harm, but is based on the breach of an absolute duty to make something safe. 
  312. New York employs a function test and temperament test to distinguish wild from
    domestic animals. 
  313. 1. abnormally dangerous activities
    • 2. wild animals
    • 3. defective products
  314. factors in determining whether abnormally dangers:
    • whether it creates a foreseeable and highly significant risk of physical harm EVEN when reasonable care is exercised
    • gravity of the harm resulting from the activity
    • whether the activity is uncommon 
    • if it has great value to the community AND
    • if the activity is appropriate for the location
  315. only strictly liable for the harm the flows from the risk that made the activity abnormally dangerous
  316. traditional rule is airplane damage subject to strict liability but now negligence law
  317. strict liability: traditionally includes wild animals
  318. wild animals= as a species or class not by custom devoted to the service of mankind in the place where he is being kept. Wild even if particular animal has a gentle nature!
  319. most jurisdictions only liable for dog if negligent or if you had reason to know of your dog's dangerous propensities
  320. owners of any animals (other than household pets) are liable for reasonably foreseeable damage caused by his animal while trespassing. BUT owners of household pets will be liable IF
    owner knows or has reason to know pet is intruding on another's property
  321. An owner’s knowledge of a dog's habit of lunging at or biting people is sufficient
    to establish viciousness. 
  322. The plaintiff must always prove causation in wild or vicious domestic animal cases.
  323. Landlords are generally not held strictly liable for a tenant’s vicious animal. 
  324. P's negligence may reduce recovery in comparative fault states (e.g. New York) ie. if P is
    aware of the dangerous propensity of an animal and taunts the animal, he may be prohibited from recovering under the doctrine of assumption of the risk
  325. contributory negligence is not a defense to strict liability (so P could have contributory negligence but D still fully liable if strict liability)
  326. MINORITY: comparative negligence of a P should reduce his recovery, even in strict liability
  327. strict liablity: assumption of risk is a complete bar to recovery
  328. strict liability: party performing an essential public service is exempt from strict liability (but may be still liable for negligence)
  329. NY: strict liability: scaffold law makes general contractors and/or owners strictly liable for heigh-related injuries, whether from falling objects or the workers themselves falling as the result of improper safety devices
  330. Strict products liability: Under New York law, a manufacturer, supplier, distributor, or seller of a product that is defective and unreasonably dangerous can be held strictly liable in
    tort when the product causes injury to the user or his property.
  331. strict products liability: In New York, there are three types of product defects that create strict liability against the manufacturer: (1) manufacturing errors which cause a product to be
    dangerous and cause harm; (2) defects in design; and (3) lack of or inadequate warnings which cause harm.
  332. products liability: negligence: P must prove that the particular defendant was negligent; not just that the product was defective
  333. strict products liability: RULE: the manufacturer, distributor, or seller (retailer) of a defective product may be liable for harm that is caused by the product being defective
  334. strict product liability: ELEMENTS- p must show:
    • 1. the product was defective (in manufacture, design, or failure to warn)
    • 2. the defect existed when product left D's control; and
    • 3. defect cause P's injury
  335. NY: strict products liability: design defect: P must show:
    • 1. the product was defective (in manufacture, design, or failure to warn)
    • 2. the defect existed when product left D's control;
    • 3. defect cause P's injury AND
    • 4. P used the product in a reasonably foreseeable manner
  336. manufacturing defect=
    product deviates from what manufacturer intended
  337. manufacturing defect: RULE:  if product deviates from the intended design and that deviation makes it more dangerous and causes your harm, then the D is liable even if D acted reasonably
  338. design defect=
    consumer expectation or risk-utility
  339. design defect: consumer expectation=
    product is defective in design if it is less safe than contemplated by the ordinary consumer
  340. NY: design defect: a manufacturer is not liable for post-sale substantial modification of a product by the user that render the product unsafe, although the manufacturer may still be liable for failure to warn of the dangers of modifying the product
  341. design defect: risk-utility test: product is defective in design if it could have been made safer by additional safety features
  342. A defense to strict liability is contributory negligence. In
    such cases, the plaintiff's recovery would be reduced pursuant to comparative
    fault principles to the extent that the plaintiff is guilty of culpable conduct
    in: (1) misusing the product, (2) failing to discover the defect; (3) failing
    to perceive the danger, or (4) otherwise failing to avert his injuries or
    damage in the exercise of reasonable care.
  343. strict products liability:
    Warnings do not insulate the manufacturers' liability
  344. failure to warn=
    product does not include an adequate warning
  345. warnings are most important when you cannot change the design of the product without making the product ineffective (e.g. prescription drugs)
  346. "learned intermediary": General RULE:
    manufacturer does not have a duty to warn the customer directly but satisfies that duty by warning the doctor prescribe the drug key

    -exception manufacturer is aware that the drug will be given directly without the personal intervention of doctors for healthcare providers
  347. inference of defect: it may be difficult to prove that a defect caused the harm. RULE
    circumstantial evidence can be sufficient if the injury is the kind that ordinarily would not result in the absence of a product the facts and we can eliminate other causes then that provide sufficient evidence that the defect caused the harm
  348. inference of defect: plaintiffs: not required to be in privity of contract with the defendant anyone foreseeably injured by defective product can be a plaintiff  includes purchasers subsequent users and even bystanders
    • not required to be in privity of contract with the defendant
    • anyone foreseeably injured by defective product can be a plaintiff  
    • includes purchasers subsequent users and even bystanders
  349. strict liability: defendant must be in the business of selling 
    -includes the manufacturer or distributor and the retailer even if the distributor or retailer we're not responsible for the defects
  350. strict liability: defendant: retailer or distributor can purchase indemnification up the chain of distribution meaning they can recover from the manufacturer
  351. strict liability: defendant:  casual seller is not liable for defective products
  352. strict liability damages: plaintiff can recover for personal injury or property damage
  353. strict liability: damages: claims for purely economic loss cannot be brought under strict liability must be brought under breach of warranty
  354. comparative fault jurisdiction: plaintiff's own negligence reduces recovery in a strict products liability action [also in NY]
  355. product misuse: comparative fault vs. contributory negligence
    • in a comparative fault jurisdiction misuse or modification will reduce recovery
    • in a contributory negligence jurisdiction if product misuse unforseeable, will completely bar recovery
  356. contributory negligence is not a defense when the plaintiff is negligent in failing to discover the defect
  357. contributory negligence IS a defense if P unreasonably proceeded in the face of a known defect
  358. strict liability: assumption of risk a COMPLETE BAR to recover (unless comparative fault --> partial bar proportionate to degree of fault)
  359. strict liability: a substantial change in the product is a superceding cause that cuts off liability
  360. compliance with government standard is evidence, but not conclusive evidence, that the product is not defective UNLESS
    a state tort claim that may be preempted
  361. state tort claim preempted by fed law if
    • congress explicitly indicates it's preempted
    • congress has comprehensively regulated the field OR
    • it would be impossible for the manufacturer to comply with both the fed reg and state tort law
  362. state of the art: unless jurisdiction explicitly states, compliance with the level of scientific and technical knowledge at the time the product was manufactured or distributed is not a complete defense (but relevant evidence)
  363. disclaimers or limitations by seller generally doe snot bar or reduce a valid products liability claim
  364. Under New York law, defamation is the act of harming the reputation or good name of another by making a false statement to a third person
  365. New York does not distinguish between spoken and written defamation.

  366. In
    New York, a prima facie case for defamation requires proof of the following
    elements: (1) a false and injurious statement of fact concerning the plaintiff;
    (2) publication to a third party by the defendant; (3) depending on the status
    of the plaintiff and defendant, made with malice, recklessness, gross
    negligence or made negligently or innocently; and (4) special damages (i.e.
    financial loss
  367. defamation: public figure/official requirements=
    general defamation elements + actual malice
  368. actual malice=
    knowledge that statement false or reckless disregard to the truth of the statements
  369. if private individual but matter of public concern, D entitled to some constitutional protections
  370. defamatory statement=
    language that diminishes respect, esteem, or goodwill towards P or deters others from associating with P
  371. defamation: "of or concerning"=
    a reasonable person must believe the defamatory language referred to this particular P
  372. of or concerning: if a group, member of the group can only bring action if:
    the group is so small that the matter can reasonably be understood to refer to that member
  373. defamation: "publication"=
    communicated to a 3rd party who understood the content
  374. publication: person who repeats a defamatory statement may be liable for defamation
  375. Internet service providers not publishers
  376. defamation: falsehood: opinions not necessarily actionable. but may be actionable if person who states opinion implies that they have objective facts to support it.
  377. falsehood: if public concern/official/figure: P has to prove state is false and no defense that statement is true.
  378. if private individual w/ public concern, P must prove D was at least negligent to the truth (no knowing/reckless standard)
  379. P must only prove general damages (i.e. damages that compensate P for harm to reputation)
  380. defamation: libel [definition]=
    • defamation that is written, printed, or otherwise recorded in a permanent form 
    • - includes TV and radio broadcasts
  381. slander per se (four categories). P:
    • has committed a serious crime or crime of moral terpitude
    • is unfit for his or her own trade or business
    • has a loathesome disease
    • has committed severe sexual misconduct
  382. libel per quod: if libel is not libelous on its face and requires additional facts to show why it is defamatory, then there are limits on P's damages
  383. defamation: slander [definition]=
    defamation by spoken word or gesture, or any form other than libel
  384. defamation: slander: P must prove either special damages or show concrete harm
  385. damages: public official/figure/concern can only recover actual damages. Private individuals may recover general damages
  386. defamation: defenses:
    • - a truthful statement
    • - P consented to defamation
    • - in the course of judicial proceedings
    • in the course of legislative proceedings
    • - b/w husband and wife AND
    • - in required publications by radio and TV (i.e. statements by a political candidate that a station must carry and cannot censor)
  387. defenses: conditional privileges: statement made in good faith pursuant to some duty or responsibility e.g.:
    • in the interest of D
    • in the interest of the recipient of the statement or affecting some important public interest
  388. invasion of privacy: four causes of action:
    • 1. misappropriation of the right to publicity
    • 2. unreasonable intrusion upon the P's private affiars
    • 2. false light
    • 4. public disclosure of private facts
  389. misappropriation of right to publicity: P has the right to decide if someone can use their name or likeness for commercial purposes
  390. misappropriation of right to publicity: if injured from misappropriation, right to sue
  391. unreasonable intrusion of P's private affairs=
    D's intrusion upon P's private affairs, solitude or seclusion in a manner that is objectionable to a reasonable person
  392. false light=
    putting together a series of half truths to convey a false impression
  393. P cannot claim false light if:
    • statement is true
    • public official/figure and no actual malice
    • public concern and D not negligent as to the truth
  394. public disclosure of private facts=
    D gives publicity to a matter concerning the private life of another and the matter publicized is highly offensive to a reasonable person, and not of legitimate concern to the public

    NOTE: almost impossible to win
  395. mistake as to consent to the publication of defamatory statemet can negate the defense of consent.
  396. truth is not a defense to invasion of privacy, but is always a defense to defamation
  397. NY: no common law "right to privacy", including intrusion, false light, or disclosure
  398. NY: recognizes by statute invasion of privacy tort of appropriation
  399. NY: appropriation: claim does not survive death and an action may not be commenced or continued after one's death
  400. intentional misrepresentation: elements
    • false misrepresentation
    • scienter
    • intent
    • causation
  401. false misrepresentation: a deceptive or misleading statement about a material fact or concealing a material fact.
  402. affirmative duty to disclose material facts if:
    • a fiduciary relationship
    • other party likely to be misled by statements D made earlier or
    • D aware the other party is mistaken about the basic facts of the transaction and custom suggests that disclosure should be made
  403. intentional misrepresentaiton: scienter=
    D knew the representation is false or acted with reckless disregard for tis falsehood
  404. intentional misrepresentation: intent=
    D must intend to induce P to act in reliance on the misrepresentation
  405. intentional misrepresentation: causation=
    the misrepresentation must intend to induce P to act in reliance on the misrepresentation AND P must have actually relied on the misrepresentaiton
  406. intentional misrepresentation cannot be justified if facts are obviously false or it is clear D was stating a non-professional opinion
  407. P must prove actual, economic, pecuniary loss.
  408. negligent misrepresentation=
    providing false information to a P as a result of D's negligence in preparing the information [e.g. accounting firm]
  409. negligent misrepresentation defenses: can recover out-of-pocket and consequential damages if the negligent representation is proven with sufficient certainty
  410. intentional interference with business relations: ELEMENTS
    • D knew of a contractual relationship b/w P and 3rd party
    • D intentionally interfered with the K, resulting in a 
    • breach and
    • breach caused damages to P
  411. intentional interference with K: K cannot be terminable at will and must be a valid K
  412. interference can also be preventing a party from fulfilling its K or substantially adding to burden of performance AND D's conduct must exceed fair competition and free expression
  413. interference can be justified if motivated by considerations of health, public safety, or public morals
  414. NY: intentional interference with contractual relations= inducing a breach contract
  415. NY: inducing a breach of K: in addition to economic damages, P may recover punitive damages and damages for emotional distress
  416. misappopriation of trade secrets: ELEMENTS:
    • P owns a valid trade secret that is not generally known
    • P has taken reasonable precautions to protect it AND
    • D has taken the secret by improper means
  417. NY: misappropriation of trade secrets= theft of trade secrets. P must prove that they have:
    • a valid trade secret
    • not commonly known
    • whose secrecy is preserved; and
    • that the D used improper means to acquire it (e.g. industrial sabotage or breach of confidence by an employee)
  418. NY: unfair competition= business possesses goodwill constituting property or commercial advantage, that goodwill is protected from misappropriation by others to compete against the business
  419. trade libel=
    statements that injures or disparages a P's business or product; statement does NOT need to be defamatory
  420. trade libel: ELEMENTS
    • publication
    • of a derogatory statement
    • related to the quality of P's business or products
    • that damages the business relationships
  421. trade libel: proof of special damages is required
  422. slander of title= false statements that call into question P's ownership of real title; P must prove ELEMENTS:
    • publication 
    • of a false statement
    • derogatory to P's title
    • with malice
    • causing special damages that 
    • diminishes value in the eyes of third parties
  423. malicious prosecution= a person intentionally and maliciously institutes or pursues a legal action for an improper purpose, without probably cuase and the action is dismissed in favor of the person against whom it was brought
  424. malicious prosecution: can recover damages proximately caused by this conduct including for legal expenses, lost work time, loss of reputation, and emotional distress
  425. malicious prosecution: prosecutors get absolute immunity in tort (though not immunity from criminal prosecution)
  426. abuse of process: P myst prove D has set in motion a legal procedure in proper form, but has abused it to achieve some ulterior motive; some willful act perpetrated in the use of the process which is not proper in the regular conduct of that proceeding; and conduct cause damages
  427. NY: no fault auto insurance: all owners of motor vehicles must obtain liability insurance that covers injury caused to any person other than a person in another vehicle
  428. NY: no-fault auto insurance: covers basic economic loss up to $50,000
  429. NY: no-fault auto insurance: basic economic loss covers:
    • reasonable med expenses
    • 80% of lost wages
    • reasonable and necessary household expenses
    • $2,000 death benefit
  430. NY: no-fault auto insurance: basic economic loss does not include pain and suffering, other non-economic loss
  431. NY: no-fault auto insurance: extends to accidents that occur in another state
  432. NY: no-fault auto insurance: replaces the right of automobile injury victims to sue in tort unless they suffer "serious injury."
  433. NY: no-fault auto insurance: serious injury=
    • death
    • serious/significant disfigurement
    • fracture; Or
    • permanent or extended loss or impairment of bodily parts or functions (impairment that prevents a person from performing her usual daily activities for at least 90 days of the 180 days following the injury).
  434. NY: no-fault auto insurance:where  sustains serious injury, she may sue in tort and her claim may include noneconomic loss
  435. NY: no-fault auto insurance: injury victims may also sue in tort if their economic loss exceeds $50,000
  436. NY: to get out of no-fault and sue in tort remember SUE
    • serious injury
    • uninsured motorist
    • economic loss in excess of $50,000
  437. NY: no-fault auto insurance: coverage denied to Ps who:
    • intentionally contributed to their own accidents, particularly as a result of intoxication,
    • were commiting a felony when they got injured
    • are in a stolen vehicle or
    • are uninsured
  438. NY: no-fault auto insurance: minimum mandatory motor vehicle liability insurance coverage required under NY is $25,000 for bodily injury to one person, $50,000 to all persons, and $10,000 for property damage [25/50/10]
  439. In NY, when an employee is injured or killed in the course of his employment, the sole remedy against the employer is a recovery under the Workers' Compensation Law.
  440. NY: workers comp is no fault insurance covering employees injured on the job provided by their employers
  441. NY: Under Workers' Compensation Law, an employer is strictly liable for work-related injuries while the employee is limited in the amount of damages the employee can receive.
  442. To be covered under the Workers' Compensation Law, the employee must be on the job at the time of the accident and the accident must
    be work-related.
  443. A claim can be made after an employee retires if there is acausal link between the claimant's disability and his decision to retire.
  444. However, loss of work due to a voluntary withdrawal from the labor market thatis not associated with a disability is not compensable.
  445. While the employee can obtain reimbursement for injuries without having to prove fault, the employee is barred from filing tort claims against the employer.
  446. This limited recoveryis available for medical expenses, two thirds of salary and, if the employeedies, funeral expenses and a lump sum death benefit.
  447. The amount an injuredemployee receives is not decreased by his carelessness, nor increased by theemployer's fault.
  448. Pain and suffering damages are not recoverable because they are considered punitive damages.
  449. In addition, wrongful death actions may not be maintained by the family.
  450. Workers compensation excludes independent contractors, teachers, clergy and domestic part-time help from its coverage.  
  451. While employees cannot sue their employer or co-workers(unless the co-workers acted intentionally), the employees can sue a third party that contributed to the injury.
  452. A third party is prohibited from seeking indemnification or contribution from an employer for an employee's on the job injury unless the employee suffered a grave injury (such as death, total loss of arm, leg, hand, foot,nose, ear, index finger, total loss of multiple fingers/toes,paraplegia/quadriplegia; severe facial disfigurement; total deafness or blindness; or brain damage causing total disability) or the employer entered into a written contract to indemnify the third-party.
  453. In an action by an employee against a third party, when the injuries are not grave, the employer’s culpable conduct cannot be considered when apportioning fault.
  454. However, when the injuries are grave, the non-economic loss limitations for personal injury do not apply to the extent of the employer’s apportioned liability.
  455. Defenses to Workers’ Compensation claims are (1) assumption of risk;(2) intoxication from drugs or alcohol, or (3) intent to injure him/herself or someone else. 
  456. NY: workers' comp: generally includes
    • accidents at the workplace
    • contracting a disease b/c of workplace conditions
    • death resulting from above injuries
  457. NY: workers' comp: not available to intoxicated employees or those who deliberately injure themselves
  458. NY: workers' comp: injuries due to extracurricular or off-duty sporting activities are not subject to reimbursement
  459. NY: workers' comp covers the following losses:
    • med expenses
    • wage replacement
  460. NY: workers' comp does not cover non-economic damages (e.g. pain and suffering)
  461. NY: workers' comp: employee cannot sue employer for negligence unless gravely injured
  462. NY: workers' comp: grave injury is an extraordinarily high bar in which a worker must be permanently disfigured, in pain, or disabled in order to sue in tort
  463. NY: workers' comp: employees permitted to sue responsible third parties in tort (e.g. product manufacturers)
  464. NY: workers' comp: an employee's receipt of damages can reduce or require reimbursement to the employer's payment of any workers' comp claim
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2015-01-07 11:41:41
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