MBE Torts all

intentional torts: P required to prove (3 elements)

intentional tort: voluntary act: basic rule

intentional tort: intent: general rule

intentional tort: consequence means:

intentional tort: children and mentally incompetent persons can be held liable for intentional torts if they act with the requisite intent

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.

NO transferred intent for IIED

intentional tort: causation: general rule:

NY: SOL for bringing an intentional tort claim in NY is no later than 1 year after D caused P's injury

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

battery: elements

no battery if there is express or implied consent

battery: harmful definition:

battery: offensive: definition

battery: offensive contact: D might be liable if aware that victim is hypersensitive but acts nonetheless

battery: P does NOT need to be aware of the contact when it occurs

"person"- contact with anything connected to P's person (e.g. knocking someone's cane out from under them).

battery: damages: D is not required to foresee the extent of damages to be liable for all damages ("eggshell" rule)

battery: damages: no proof of actual harm is required; can recover nominal damages

battery: damages: many states allow punitive damages if D acted with malice or outrageously

assault: P's reasonable apprehension of an imminent harmful or offensive bodily contact caused by D

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.

In NY, assault elements=

assault: D must act with intent to either

assault: P's apprehension must be:

assault: imminent=

assault: mere words: words coupled with the circumstances can indicate an imminent threat of a harmful or offensive contact

assault: damages: no proof of actual damages is required. P can recover:

Intentional Infliction of Emotional Distress (IIED): definiton

IIED: intent:definition

IIED: extreme or outrageous=

extreme or outrageous does not =

IIED: courts more likely to find conduct or language extreme or outrageous if:

IIED: immediate family rule

IIED: bystander rule:

IIED: severe emotional distress= beyond what a reasonable person could endure

IIED: physical injury is NOT required (but only if bystander must have physical injury)

NY: IIED: intentional mishandling of a corpse is grounds for liability

NIED: A defendant is guilty of negligent infliction of emotional distress if 

Negligent Infliction of Emotional Distress (NIED): recovery without physical injury ok if:

zone of danger= ???

false imprisonment: definition

false imprisonment: confined within bounded area: definition:

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

false imprisonment: shopkeeper's privilege:

false imprisonment: a court may find that the D has confined P when:

false imprisonment: intent elements:

false imprisonment: D will not be liable under the intentional tort of false imprisonment if confinement due to D's negligence

false imprisonment: P must be aware of the confinement at the time it occurs OR suffer actual harm from the confinement

false imprisonment damages: actual damages not required; nominal damages can be recovered, unless P is not aware of the confinement

defenses to intentional tort involving personal injury:express consent:general rule:

express consent: D's conduct cannot exceed the scope of consent

express consent: consent by mistake is valid unless D cause the mistake or knew of it and took advantage of it

express consent: consent by fraud is invalid if it goes to an essential matter; if a collateral matter, consent is valid.

express consent: invalid if obtained under duress (i.e. threats of physical force)

express consent:threats of economic duress will not make consent invalid

implied consent: general rule:

implied consent: only liable for reckless conduct if injuries arise out of athletic competitions

implied consent: athletic competitions: reckless =

consent: lack of capacity (e.g. youth, intoxication, incompetency, etc.) may undermine the validity of consent

self-defense: use of reasonable force: general rule

self defense: force must be reasonably proportionate to the anticipated harm

self defense: a reasonably mistaken belief about a threat will be a valid defense

self defense: most courts require person to retreat before using deadly force unless person is in her home

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.

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

NY: self-defense: deadly force: curtilage is the enclosed area surrounding the home (e.g. fenced in backyard).

NOT entitled to claim self-defense if the initial aggressor

self defense- bystander rule:

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

defense of property: reasonable force may be used if the person reasonably believe it is necessary to prevent tortious harm to the property

deadly force to defend property may not be used (e.g. a spring gun, other mechanical devices to defend property)

recapture of chattels: reasonable force may be used to reclaim personal property that has been wrongfully taken by another

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.

under common law, reasonable force permitted to reclaim property. under modern rule, use of force not permitted

parent may use reasonable force or impose confinement as necessary to discipline his child

privilege of arrest: private citizen permitted to use force to make an arrest in the case of a felony IF:

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.

privilege of arrest: police must reasonably believe a felony has been committed and that the person arrested committed it

privilege of arrest: police officer who makes a mistake as to whether a felony has been committed is not subject to tort liability.

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

harm to personal property:trespass to chattel: definition:

harm to personal property: trespass to chattel's: intent RULE: only the intent to do the interfering act is neessary

trespass to chattels: intent: D need not have intended to interfere with another's possession of tangible property

trespass to chattels: mistake about the legality of the action IS NOT a defense

damages: P may recover the actual damages caused and use of the goods

damages: P can only recover actual damages (includes diminution in value or the cost of repair)

conversion: RULE:

conversion: damages: P can recover the chattel's full value at the time of conversion

conversion: D must only intend to commit the act that interferes

conversion:mistake of law or fact IS NOT a defense

conversion: interference can occur by exercising dominion or control over P's chattel

conversion: if the original acquisition was not wrongful, the P must first demand return of chattel before suing for conversion

conversion: action for replevin is action for the return of the chattel

trespass to chattels vs. conversion: in conversion, interference is to such a degree that D should have to pay the full value

conversion factors:

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

trespass to land= the intentional or reckless entry by a person or thing onto land in the actual or constructive possession of another

trespass to land: intent rule:

trespass to land: mistake of fact is not a defense.

tresspass to land is actionable per se, and the party whose land is entered may sue even if no actual harm is done.

trespass to land: failure to leave P's property after a lawful right of entry has expired constitutes a physical invasion

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

trespass to land: defenses: the legal authority to enter the land. 2)consent 3)privilege 4) public or private necessity

trespass to land: necessity RULE:

trespass to land: if a private necessity, P must pay for actual damages that he has caused

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

trespass to land: SOL: 3 years

nuisance: RULE

nuisance: interference can be intentional, negligent, reckless, or the result of an abnormally dangerous activity

nuisance: interference: if the conduct that interferes with the use and enjoyment of land is unintentional, then P must show the conduct was negligent

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.

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

defense to nuisance: compliance with state or local administrative agencies is not a complete defense (though it may evidence whether activity is reasonable)

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)

public nuisance: RULE

nuisance remedies: sometimes hesitant to award injunction when value of the activity is great compared to the harm created

damages are the usual remedy for nuisance. awarded for:

private nuisance: abatement (self help) RULE:

negligence is the failure to:

negligence: to establish a prima facie case [elements]:

duty: generally no duty to act affirmatively, even if it appears unreasonable

duty: a claim for negligence will succeed if the tortfeasor could have taken reasonable steps to prevent the injury but didn't

duty: D can be found negligent for failure to warn if a reasonably prudent person would warn of the danger

duty: if acting affirmatively, the foreseeability of the harm to others is enough to give rise to this general tort duty of reasonable care.

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

duty: Palsgraf (dissenting opinion) about proximate cause

duty: a person who comes to the aid of another is a foreseeable P

duty: "firefighter's rule" certain emergency personnel may be barred from recovering damages

duty: exceptions to "no affirmative duty" rule

negligence: standard of care: reasonably prudent person under the circumstances

standard of care: D presumed to have average mental abilities and knowledge

standard of care: particular physical characteristics are taken into account (e.g. blindness, deafness)

standard of care: intoxicated ppl are held to the same standard as sober people unless the intoxication was involuntary.

standard of care: children: ask, what would a reasonably prudent child of that age would do?

standard of care: if child engaged in adult activity (e.g.), jury won't be instructed to take into account child's age

cost-benefit analysis: ask whether there is a reasonable, efficient, inexpensive, sensible precaution that should have been taken in light of the foreseeable risks

standard of care: custom is relevant, but NOT a complete defense.

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

standard of care: physicians: traditional vs. modern RULE:

standard of care: physicians: informed consent requirements:

standard of care: physicians: informed consent not required if:

NY: informed consent: P must prove that:

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

negligence per se: a criminal law or regulatory statute imposes a particular duty for the protection or benefit of others

negligence per se: basic rule:

negligence per se defenses:

standard of care: common carriers and innkeepers: traditional rule:

standard of care: common carriers and innkeepers: majority RULE:

standard of care: common carriers and innkeepers BOTH have duty to act affirmatively based on the special relationship with passengers and guests

standard of care: automobile drivers: some jurisdictions have "guest statutes," wherein___

standard of care: automobile drivers: in jurisdictions with no guest statute, negligence standard

NY does NOT have a guest statute --> auto drivers owe same duty of reasonable care to guests and passengers

standard of care: a bailee takes temporary possession of another's (the bailor's) property (e.g. driver leaves car with valet)

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

standard of care: emergency situations: that of a reasonable person in the same situation

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.

NY: landowner has a non-delegable duty to maintain his premises in a safe condition

standard of care: possessors of land: traditional  RULE:

standard of care: possessors of land: non-traditional RULE:

standard of care: trespasser: general duty of possessor:

standard of care: possessors of land: RULE: discovered or anticipated trespassers

standard of care: possessors of land: RULE: no duty for undiscovered trespassers

standard of care: possessors of land: RULE: attractive nuisance doctrine:

standard of care: possessors of land: licensees enter the land with express or implied permission

standard of care: possessors of land: licensees: traditional RULE:

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)

standard of care: possessors of land: invitee: duty RULE

standard of care: possessors of land: invitee: cannot avoid the duty to invitee by assigning care of your property to an independent contractor

standard of care: possessors of land: many modern courts abolished licensee vs. invitee distinction --> just exercise reasonable care for both

NY mostly does not distinguish between invitees, licensees, and trespassers.

NY: landowner general duty:

NY: possessors of land: only distinguish licensee, invitee, and trespasser in determining foreseeability and what reasonable care might require.

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

Under the NY GOL, indemnification clauses are void and unenforceable where lessors try to exempt themselves from liability for their own negligence

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

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

standard of care: possessors of land: off premises victims: for artificial conditions must prevent unreasonable risk of harm to persons not on the premises.

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.

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.

res ipsa loquitur: elements

res ipsa loquitur: medical malpractice: ALL Ds jointly and severally liable unless they can exonerate themselves

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

negligence: causation: P must show that the breach was the cause of his or her harm

causation has two components:

cause in fact: "but-for" test:"

concurrent tortfeasors and one injury:

concurrent tortfeasors: both Ds are potentially liable; P can sue either D and collect ALL of his damages

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 ____

Joint and several liability when:

if a physician negligently reduces P's chance of survival, then P can recover. P's chance of recovery must be ____

If lost chance of survival, then the proper measure of damages is _____

Cause in fact IS NOT ENOUGH for liability

proximate, or legal cause, exists when it is foreseeable that D's breach of duty would result in certain injuries

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. 

proximate cause i.e.

proximate cause: ask:

Proximate cause factors from Palsgraf dissent:

intervening cause=

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

an unforeseeable intervening cause is a superseding cause, which severs the connection

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

modern courts tend not to focus on intervening and superseding causes

negligence damages: nominal damages cannot be recovered

negligence damages: P must prove actual harm

economic-loss rule: P who suffers only economic loss without any related personal injury or property damage cannot recover in negligence

If P has proven non-economic injury, then P can recover non-economic and economic damages

P must take steps to mitigate damages

types of damages for personal injury:

property damage: general rule:

if harm to personal property, most courts allow recovery of the cost of repairs

often, courts use replacement value as the measure of damages for household items.

collateral-source rule: traditional rule:

collateral-source rule: modern RULE:

NY: DOES NOT follow collateral source --> P's recovery is reduced by any benefit or payment provided from an outside source

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

damages: if NIED, general RULE

damages: limited circumstances allowing for NIED recovery: RULE:

damages: zone of danger: generally P can recover for emotional distress if he is in zone of danger and feared for his own safety

bystander can recover for distress if person injured is:

exceptions to physical injury requirement for NIED:

once P has recovered for a physical harm or property damage, he can sometimes add categories of damage analogous to emotional distress

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

wrongful death damages include:

NY: wrongful death damages=

NY: wrongful death: non-economic (e.g. personal grief) damages are not allowed

NY: medical malpractice: miscarriage or stillbirth: no claim for wrongful death on behalf of deceased child

NY: medical malpractice: miscarriage or stillbirth:a mother can recover for emotional distress even without showing that she suffered an independent physical injury

NY: respondeat superior: when an employee commits a tort, punitive damages may only be brought against an employer when:

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.

survival actions= actions on behalf of decedent. claims include:

recovery for loss arising from injury to fam: in parent-child recovery

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

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 

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.

respondeat superior=

RULE: employer can be liable if it was a negligent hiring or failure to train

in a detour, employer ___ liable

in a frolic, employer ___ liable

an employer is not liable for torts committed by independent contractors

an employer cannot shield liability for employee negligence by describing its employees as independent contractors

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

employer may be vicariously liable for the torts of indep contractors when:

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

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

parents generally are not vicariously liable for their minor children's torts.

parents liable for kids' torts in limited exceptions:

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

NY: negligence: generally does not recognize cause of action against parents for the negligent supervision of children UNLESS:

NY: parental liability limited to $5000 for the intentional and willful acts of their minor children over age 10

NY: vicarious liability: owner of an automobile may be liable for the tortious acts of anyone using the automobile with permission

NY: vicarious liability: permissive use statute provides that:

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

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.

NY: negligence SOL: no later than 3 years from the negligent act

NY: negligence SOL: negligent exposure to a harmful substance: 3 year period runs from the time the injury was discovered or reasonably discovered

NY: negligence SOL: tolled for a minor or insane P

NY: negligence SOL: a minor may commence a negligence action within 3 years of the date of his 18th birthday

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)

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.

federal government waives immunity in tort actions, except:

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. 

municipality negligence: claims against municipal 
corporations are generally governed by New York's General Municipal Law

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.

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. 

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

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). 

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

no interspousal immunity

traditionally, parents immune from tort claims by their children; recent trend to allow liability but NOT in core parenting activities

most states eliminated charitable immunity

joint and several liability: two tortfeasors, both of whom are liable, can be liable for a single harm.

joint and several liability: P can collect damages from either defendant, but cannot recover double!

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)

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

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.

contribution: calculated either by:

pure several liability=

indemnification=

indemnification generally arises under vicarious liability and is available when:

contributory negligence: traditional rule: P's failure to exercise due care would eliminate any chance of recover. BUT most states no longer apply

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

helpless plantiff= a P who due to his own contributory negligence was in peril from which he cannot escape

helpless plaintiff: D is liable if she knew or should have known of P's peril and could have avoided harming P

inattentive P=

inattentive P: D liable only if he had knowledge of the peril

comparative negligence=

pure comparative negligence=

pure comparative negligence: P's negligence is never a complete bar to recovery

NY: is a PURE COMPARATIVE NEGLIGENCE jurisdiction

NY: pure comparative negligence: If P commits a serious crime, then P's recovery is barred

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.

NY: seatbelt: P who fails to wear a seatbelt cannot recover for those injuries that would have been prevent had the seatbelt been worn.

modified comparative negligence [adopted in most jurisdictions]:

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

comparative negligence (all): P's degree of negligence is compared to the negligence of all of the Ds combined

imputed contributory negligence: limit on person's recovery because of another person's negligence (disfavored doctrine). DOES NOT apply to:

assumption of the risk= P has knowingly and willingly accepted a risk of harm and thus cannot recover

assumption of risk: exculpatory clauses in Ks: generally parties can contract to disclaim liability on negligence

assumption of risk: exculpatory clauses in Ks: courts will hesistate to enforce if:

assumption of risk: exculpatory clauses in Ks: generally, common carriers, innkeepers, and employers cannot disclaim liability for negligence

participants and spectators in athletic events assume the risks of certain injuries and accidents that are inherent in the game or activity

NY: assumption of risk a complete bar to recovery

NY: assumption of risk: two forms:

NY: express assumption of risk requires

NY: primary assumption of risk applies to:

consent vs. assumption of risk=

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

3 categories for strict liability: 1. abnormally dangerous activities2. wild animals 3. defective products

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. 

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. 

New York employs a function test and temperament test to distinguish wild from
domestic animals. 

1. abnormally dangerous activities

factors in determining whether abnormally dangers:

only strictly liable for the harm the flows from the risk that made the activity abnormally dangerous

traditional rule is airplane damage subject to strict liability but now negligence law

strict liability: traditionally includes wild animals

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!

most jurisdictions only liable for dog if negligent or if you had reason to know of your dog's dangerous propensities

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

An owner’s knowledge of a dog's habit of lunging at or biting people is sufficient
to establish viciousness. 

The plaintiff must always prove causation in wild or vicious domestic animal cases.

Landlords are generally not held strictly liable for a tenant’s vicious animal. 

P's negligence may reduce recovery in comparative fault states (e.g. New York) ie. if P is

contributory negligence is not a defense to strict liability (so P could have contributory negligence but D still fully liable if strict liability)

MINORITY: comparative negligence of a P should reduce his recovery, even in strict liability

strict liablity: assumption of risk is a complete bar to recovery

strict liability: party performing an essential public service is exempt from strict liability (but may be still liable for negligence)

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

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.

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.

products liability: negligence: P must prove that the particular defendant was negligent; not just that the product was defective

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

strict product liability: ELEMENTS- p must show:

NY: strict products liability: design defect: P must show:

manufacturing defect=

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

design defect=

design defect: consumer expectation=

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

design defect: risk-utility test: product is defective in design if it could have been made safer by additional safety features

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.

strict products liability:
Warnings do not insulate the manufacturers' liability

failure to warn=

warnings are most important when you cannot change the design of the product without making the product ineffective (e.g. prescription drugs)

"learned intermediary": General RULE:

inference of defect: it may be difficult to prove that a defect caused the harm. RULE

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

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

strict liability: defendant: retailer or distributor can purchase indemnification up the chain of distribution meaning they can recover from the manufacturer

strict liability: defendant:  casual seller is not liable for defective products

strict liability damages: plaintiff can recover for personal injury or property damage

strict liability: damages: claims for purely economic loss cannot be brought under strict liability must be brought under breach of warranty

comparative fault jurisdiction: plaintiff's own negligence reduces recovery in a strict products liability action [also in NY]

product misuse: comparative fault vs. contributory negligence

contributory negligence is not a defense when the plaintiff is negligent in failing to discover the defect

contributory negligence IS a defense if P unreasonably proceeded in the face of a known defect

strict liability: assumption of risk a COMPLETE BAR to recover (unless comparative fault --> partial bar proportionate to degree of fault)

strict liability: a substantial change in the product is a superceding cause that cuts off liability

compliance with government standard is evidence, but not conclusive evidence, that the product is not defective UNLESS

state tort claim preempted by fed law if

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)

disclaimers or limitations by seller generally doe snot bar or reduce a valid products liability claim

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

New York does not distinguish between spoken and written defamation.

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

defamation: public figure/official requirements=

actual malice=

if private individual but matter of public concern, D entitled to some constitutional protections

defamatory statement=

defamation: "of or concerning"=

of or concerning: if a group, member of the group can only bring action if:

defamation: "publication"=

publication: person who repeats a defamatory statement may be liable for defamation

Internet service providers not publishers

defamation: falsehood: opinions not necessarily actionable. but may be actionable if person who states opinion implies that they have objective facts to support it.

falsehood: if public concern/official/figure: P has to prove state is false and no defense that statement is true.

if private individual w/ public concern, P must prove D was at least negligent to the truth (no knowing/reckless standard)

P must only prove general damages (i.e. damages that compensate P for harm to reputation)

defamation: libel [definition]=

slander per se (four categories). P:

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

defamation: slander [definition]=

defamation: slander: P must prove either special damages or show concrete harm

damages: public official/figure/concern can only recover actual damages. Private individuals may recover general damages

defamation: defenses:

defenses: conditional privileges: statement made in good faith pursuant to some duty or responsibility e.g.:

invasion of privacy: four causes of action:

misappropriation of right to publicity: P has the right to decide if someone can use their name or likeness for commercial purposes

misappropriation of right to publicity: if injured from misappropriation, right to sue

unreasonable intrusion of P's private affairs=

false light=

P cannot claim false light if:

public disclosure of private facts=

mistake as to consent to the publication of defamatory statemet can negate the defense of consent.

truth is not a defense to invasion of privacy, but is always a defense to defamation

NY: no common law "right to privacy", including intrusion, false light, or disclosure

NY: recognizes by statute invasion of privacy tort of appropriation

NY: appropriation: claim does not survive death and an action may not be commenced or continued after one's death

intentional misrepresentation: elements

false misrepresentation: a deceptive or misleading statement about a material fact or concealing a material fact.

affirmative duty to disclose material facts if:

intentional misrepresentaiton: scienter=

intentional misrepresentation: intent=

intentional misrepresentation: causation=

intentional misrepresentation cannot be justified if facts are obviously false or it is clear D was stating a non-professional opinion

P must prove actual, economic, pecuniary loss.

negligent misrepresentation=

negligent misrepresentation defenses: can recover out-of-pocket and consequential damages if the negligent representation is proven with sufficient certainty

intentional interference with business relations: ELEMENTS

intentional interference with K: K cannot be terminable at will and must be a valid K

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

interference can be justified if motivated by considerations of health, public safety, or public morals

NY: intentional interference with contractual relations= inducing a breach contract

NY: inducing a breach of K: in addition to economic damages, P may recover punitive damages and damages for emotional distress

misappopriation of trade secrets: ELEMENTS:

NY: misappropriation of trade secrets= theft of trade secrets. P must prove that they have:

NY: unfair competition= business possesses goodwill constituting property or commercial advantage, that goodwill is protected from misappropriation by others to compete against the business

trade libel=

trade libel: ELEMENTS

trade libel: proof of special damages is required

slander of title= false statements that call into question P's ownership of real title; P must prove ELEMENTS:

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

malicious prosecution: can recover damages proximately caused by this conduct including for legal expenses, lost work time, loss of reputation, and emotional distress

malicious prosecution: prosecutors get absolute immunity in tort (though not immunity from criminal prosecution)

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

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

NY: no-fault auto insurance: covers basic economic loss up to $50,000

NY: no-fault auto insurance: basic economic loss covers:

NY: no-fault auto insurance: basic economic loss does not include pain and suffering, other non-economic loss

NY: no-fault auto insurance: extends to accidents that occur in another state

NY: no-fault auto insurance: replaces the right of automobile injury victims to sue in tort unless they suffer "serious injury."

NY: no-fault auto insurance: serious injury=

NY: no-fault auto insurance:where  sustains serious injury, she may sue in tort and her claim may include noneconomic loss

NY: no-fault auto insurance: injury victims may also sue in tort if their economic loss exceeds $50,000

NY: to get out of no-fault and sue in tort remember SUE

NY: no-fault auto insurance: coverage denied to Ps who:

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]

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.

NY: workers comp is no fault insurance covering employees injured on the job provided by their employers

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.

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.

A claim can be made after an employee retires if there is acausal link between the claimant's disability and his decision to retire.

However, loss of work due to a voluntary withdrawal from the labor market thatis not associated with a disability is not compensable.

While the employee can obtain reimbursement for injuries without having to prove fault, the employee is barred from filing tort claims against the employer.

This limited recoveryis available for medical expenses, two thirds of salary and, if the employeedies, funeral expenses and a lump sum death benefit.

The amount an injuredemployee receives is not decreased by his carelessness, nor increased by theemployer's fault.

Pain and suffering damages are not recoverable because they are considered punitive damages.

In addition, wrongful death actions may not be maintained by the family.

Workers compensation excludes independent contractors, teachers, clergy and domestic part-time help from its coverage.  

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.

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.

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.

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.

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. 

NY: workers' comp: generally includes

NY: workers' comp: not available to intoxicated employees or those who deliberately injure themselves

NY: workers' comp: injuries due to extracurricular or off-duty sporting activities are not subject to reimbursement

NY: workers' comp covers the following losses:

NY: workers' comp does not cover non-economic damages (e.g. pain and suffering)

NY: workers' comp: employee cannot sue employer for negligence unless gravely injured

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

NY: workers' comp: employees permitted to sue responsible third parties in tort (e.g. product manufacturers)

NY: workers' comp: an employee's receipt of damages can reduce or require reimbursement to the employer's payment of any workers' comp claim