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2011-06-20 16:40:26
torts miscellaneous considerations

Torts-Miscellaneous Considerations
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  1. Nuisance
    =an interference with the ability to enjoy one’s property to an unreasonable degree.

    --May be deliberate, careless, or w/o fault (SL).

    • --In determining whether P has right to relief, courts generally balance the equities. Compare the degree of interference the P is suffering, vs. whether the D would be unfairly hindered in his operations/lifestyle.
    • ---No right answer; just look for MBE option that balances interests.
    • --"Coming to the Nuisance" is not generally a defense.
  2. Vicarious Liability
    =P vs. D1 (active tortfeasor) and D2 (passive party)

    Always predicated on a relationship:

    Employer-employee (resp. superior). Employer vicariously liable for torts of employee, provided the employee was acting w/in scope of employment.

    --Tend to test on scope of employment.

    • --Generally, intentional torts are outside scope. Exceptions:
    • ---Force is part of the job description, abuse of force is within scope of employment (security guard; bouncer).
    • ---Job generates tension b/t employees and customers (repo men).
    • ---Misguided effort to advance the employer’s interests (false imprisonment where security guard searches every customer).

    • No punitive unless:
    • (1) employer grossly negligent in hiring;
    • (2) employee entrusted w/ general management; or
    • (3) employer ratified/authorized.

    • Hirer-independent Kr. Generally, no vicarious liability.
    • --Exception: a land possessor will be vic liable if an independent Kr injures an invitee.
    • (shop owner hires painter; not liable for painter driving to store, but liable for painter dropping paint can on customer)

    • Auto owners-Auto drivers. Generally, no vic liability.
    • --Exception: lend someone your car so they can do an errand for you, they are your agent, and you are vic liable. A principal is always liable for torts of agent.

    • “Permissive use state.” Vic liable for anyone driving your car with your permission.
    • --Presumption of permission (D would have to rebut presumption if car was stolen)
    • --Exception: Rental car companies are not vic liable for renters. Federal statute trumps NY rule.

    • Parent-child. Parents not liable for the torts of their children.
    • Exception: statutory liability for willful property torts of children, but only up to modest dollar amounts (somewhere around 5 grand).

    • Dram Shop Statute. Vendor who unlawfully supplies intoxicated vendee is liable to 3Ps.
    • Unlawfully=visibly intoxicated or under 21.

    • Watch for active tortfeasors!
    • (D leaves gun out for infant who shoots neighbor. D not liable for tort of child; but actively negligent for leaving gun out).
    • Even where one of these relationships arises, don’t jump straight to vic lia mindset. Ask if any possibility of direct liability.
  3. Co-Defendant Remedies
    What are contribution obligations of Co-Ds to each other?

    General rule is to proceed by percentages—jury will assign a percentage resp to each D and they will collect from each other based on the numbers.

    Slight difference covered in NYP lecture.


    Indemnification. Out-of-pocket D can collect 100% from Co-D. Two cases where you can get:

    • 1. Active tortfeasor indemnifies vicariously liable party.
    • 2. In strict PL, manufacturer indemnifies non-manufacturer.
  4. Remedy for Loss of Consortium
    Where V of a tort is married, the uninjured spouse gets a second and separate COA against all available Ds.

    Two harms:

    • Loss of household services. Nobody around to do
    • this stuff, need compensation for hiring someone.

    • Loss of society. (i.e. companionship; no one to talk to).
    • --Includes psychiatrist if needed to cope.
    • --Includes loss of sex (but need to prove good sexual relationship; don’t get if estranged and sleeping in separate bedroom).
  5. Survival of Tort Actions
    Actions involving harm to intangible interests survive death of injured party. Damages recovered become part of his estate and are reachable by creditors.
  6. Wrongful Death Actions
    • --If decedent survived by distributees, personal representative of estate may maintain action.
    • --Action must be brought within two years of death.
    • --Loss of consortium NOT compensable.
    • --Punitive damages recoverable.
  7. Intra-Family Immunity
    Traditional view: one family member cannot sue another in tort for personal injury.

    • No intra-family immunity in NY.
    • --But, child cannot sue parent for negligent supervision. Third party suffering foreseeable harm can sue that parent if he negligently entrusted a dangerous instrument to the child.
  8. Governmental Immunity
    • No governmental immunity for proprietary functions, only governmental functions.
    • --Whether the govt body collects a fee or turns a profit is relevant.

    Also no immunity where P has special relationship w/ state/municipality.