Distinctions - Torts

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apgiering
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94397
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Distinctions - Torts
Updated:
2011-07-18 13:40:45
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NY Bar Exam
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NY Bar Exam
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  1. What is a prima facie tort?
    Intentional infliction of pecuniary harm without justification.

    • Elements:
    • 1) Intent to do harm, as distinguished from the requisite intent for other intentional torts (i.e., the intent to do the act that causes the harm).
    • 2) The plaintiff must allege and prove special damages. Pecuniary loss is an essential element.

    NOTE: Where a traditional tort has been established, an action for prima facie tort will not lie. Also, the action will not lie if a traditional tort action could have been brought except for the running of the statute of limitations.
  2. What are the elements of a prima facie tort?
    • Intent to do harm; and
    • Pecuniary loss.
  3. When will an action for prima facie tort not lie?
    • Where a traditional tort has been established;
    • Where a traditional tort action could have been brought except for the running of the statute of limitations.
  4. In New York, retreat is required before using deadly force unless the actor:
    • Cannot do so safely;
    • Is in his own dwelling ("castle exception);
    • Is a police officer; or
    • Is a person arresting a police officer.
  5. What is the distinction between libel per se and libel per quod (libel by "extrinsic fact") in New York?
    Libel by extrinsic fact is treated like libel per se (i.e., actionable even without proof of special damages), where the defamatory import of the completed libel falls into a category that constitutes slander per se.
  6. What is the fifth slander per se category in New York, in addition to the four MS categories?
    Imputation of homosexuality.
  7. In an action for libel or slander, are special damages required if the statement at issue is defamatory on its face and in one of the slander per se categories?
    No.
  8. In an action for libel, are special damages required if the statement at issue is defamatory on its face and not in one of the slander per se categories?
    No.
  9. In an action for slander, are special damages required if the statement at issue is defamatory on its face and not in one of the slander per se categories?
    Yes.
  10. In an action for libel, are special damages required if the statement at issue is defamatory only by extrinsic fact and in one of the slander per se categories?
    No.
  11. In an action for slander, are special damages required if the statement at issue is defamatory only by extrinsic fact and in one of the slander per se categories?
    Yes.
  12. In an action for libel or slander, are special damages required if the statement at issue is defamatory only by extrinsic fact and not in one of the slander per se categories?
    Yes.
  13. Is there a "common law" right of privacy in New York?
    No. Appropriation of one's picture or name is, however, protected by statute.
  14. Is appropriation of one's picture or name protected by statute?
    Yes. The action survives death and may be commenced or continued by the estate representative. The statute does not protect corporations or partnerships.
  15. What are statutory defenses/exceptions for invasiosn of privacy?
    • Prior written consent;
    • A photographer exhibiting his work unless continued after written notice of objection; and
    • Goods of a literary, musical, or artistic production that the manufacturer, dealer, author, composer, or artist has sold or disposed of with his name, picture, or potrait used in connection therewith.
  16. What elements must be shown before a defendant may be held liable for negligence to noncontractual parties who rely on a misrepresentation?
    • Awareness that the statement or representation was to be used for a particular purpose;
    • Reliance by a known part in furtherance of the purpose; and
    • Some conduct by the defendant that demonstrates the defendant's understanding of that party's reliance.
  17. When will an action arise for prenatal injuries?
    The child must be born alive. If the child's injury was caused by a tort committed against the mother before the child was conceived, no action will lie. No action for wrongful death lies if, as a result of prenatal injuries, the child is stillborn.
  18. Does New York recognize "wrongful birth" as a cause of action?
    No.
  19. Can intended beneficiaries of economic transactions sue an attorney for malpractice?
    No. The attorney's duty runs only to the client who has retained him.
  20. What are three (3) defenses established by statute to professionals' duty to disclose risk of treatment?
    • The undisclosed risk is too commonly known to warrant disclosure;
    • The patient indicates that he would undergo the treatment or diagnosis irrespective of the risk, or that he did not wish to receive the information that the practitioner was otherwise obligated to disclose;
    • Consent by or on behalf of the patient was not reasonably possible; or
    • The practitioner, after considering all the circumstnaces, used reasonable discretion regarding the manner and extent to which risks and alternatives were disclosed because she reasonably believed that the manner or extent of disclosure could be expected to adversely and substantially affect the patient's condition.
  21. What is the duty of possessor to those on the premises?
    The plaintiff's legal status no longer determines the duty owed him. The single standard of reasonable care under the circumstances governs all injuries on land. The plaintiff's status, while no longer determinative, remains relevant inc onnection with the forseeability of his presence and the amount and nature of precautions required ot meet the standard of reasonable care under the circumstances.
  22. Does violation of a state statute constitute negligence per se?
    Yes. Unexcued breach of a regulation or local ordinance constitues only some evidence of negligence.
  23. Does breach of a regulation or local ordinance constitute negligence per se?
    No. It constitutes only some evidence of negligence. Violation of a state statute constitutes negligence per se.
  24. What is the effect of workers' compensation?
    It replaces any tort liability arising out of on-the-job accidents.
  25. Is there special statutory protection for failure of contractors to provide a safe workplace or comply with mandated safety precautions?
    Yes, under the New York Labor Laws.

    NOTE: This protection applies only to constuction workers, not others lawfully on the premises.
  26. Describe the New York version of the duty regarding negligent infliction of emotional distress.
    NY retains a narrower version of the traditional rule: If the plaintff's distress is caused by theat of physical impact, the threat must be directed at the plaintiff or an immediate family member in her presence (i.e., in the "zone of danger" of physical injury). No other plaintiff who sees the defendant negligently injuring another can recover damages for her own distress.

    NOTE: New York has ruled that a woman has the right to seek damages for emotional distress when she miscarries or delivers a stillborn baby because of medical negligence. This rule does not extend to a woman who givs birth to a baby with deformities. In that case, the cause of action belongs to the baby.
  27. Can a woman seek damages for emotional distress when she miscarries or delivers a stillborn baby because of medical negligence?
    Yes. This rule does not extend to a woman who gives birth to a baby with deformities. In that case, the cause of action belongs to the baby.
  28. Who has a cause of action if a baby belongs with deformities?
    The baby. Not the mother.
  29. When is a licensed health professional who voluntarily and gratuitiously renders emergency treatment at the scene of an accident subject to liability?
    Only for gross negligence.
  30. When can punitive damages be awarded in a tort case?
    Only in cases of gross negligence.
  31. Can the trier of fact consider nonuse in mitigation of damages in a motor vehicle accident where the plaintiff has failed ot make use of an available seat belt?
    Yes, but not as evidence of the issue of liability. Failure to use a seat belt is an affirmative defense.
  32. Is failure to use a seat belt an affirmative defense in a motor vehicle accident?
    Yes.
  33. Are courts required to reduce a successful plaintiff's damage award by the amount of any benefits that the plaintiff has received or will receive from collateral sources in all actions for personal injury?
    Yes. This includes proceeds received from the plaintiff's own insurance policy. However, no reduction will be made for life insurance benefits, certain Social Security benefits, and other benefits for which a lien may be imposed against the plaintiff's award.

    NOTE: All damages in excess of the first $250,000 allocated for compensation for future pain and suffering must be reduced to the present day value by the court, and then paid out over 10 years or the length of the time determined by the jury, whichever is shorter.
  34. In an action for personal jury, what is the requirement for reduction and allocation of damages over the first $250,000 for future pain and suffering?
    Must be reduced to the present day value by the court, and then paid out over 10 years or the length of the time determined by the jury, whichever is shorter.
  35. Are certain groups of persons precluded by statute from using contract clauses to deny liability for negligence?
    Yes, e.g., lessors, building contractors, amusement parks.
  36. Can the plaintiff recover even if the plaintiff's culpable conduct exceeds the defendant's?
    Yes. However, one injured as a direct result of his own illegal conduct involving risk of physical injury may not recover for her injuries, notwithstanding the comparative fault statute.
  37. Can one injured as a direct result of his own illegal conduct involving risk of physical injury recover for her injuries?
    No, notwithstanding the comparative fault statute.
  38. When are punitive damages recoverable in an action against an employer for torts of employees?
    • The employer was grossly negligent in hiring or allowing the employee to continue to work;
    • The employee was entrusted with the general management of the business; or
    • The employer authorized or ratified the tortious act.
  39. New York has adopted a permissive use statute that provides:
    • The owner is not vicariously liable for intentionally tortious operation by the driver;
    • Registration is prima facie evidence of ownership - proof of ownership raises a rebuttable presumption that the driver used and operated the vehicle with the owner's consent and permission; and
    • It is not necessary that the person to whom the owner granted permission actually operated the vehicle (mere presence is sufficient).
  40. Are rental or leasing companies considered "owners" for purposes of the "permissive use" statute concerning owner liability for intentionally tortious operation by the driver?
    No. Rental or leasing companies can only be held liable if there was negligence or criminal wrongdoing ont he part of the company.
  41. Are parents liable for the willful and intentional property torts of their minor children over age 10?
    Yes, for up to a maximum of $5,000.
  42. Is there a duty by a parent to protect third parties from forseeable harm resulting from an infant child's improvident use of a dangerous instrument where such use is found to be subject ot the parent's control?
    Yes. This rule may apply even when the operator of a dangerous instrument (the infant) is unrelated to the defendant. In such a case, the defendant-parent, rather than being vicariously liable, may be found directly liable to the third party under a theory of negligent entrustment.
  43. Is a vender who has "unlawfully" supplied an intoxicated vendee with alcohol liable to third parties injured by the intoxicated vendee?
    Yes, under the New York Dram Shop provision. The "unlawful" sale of alcohol includes selling to a visibly intoxicated person and to any person actually or apparently under the age of 21.
  44. What constitutes the "unlawful" sale of alcohol?
    Selling to a visibly intoxicated person or to any person actually or apparently under the age of 21.
  45. Do actions involving harm to intangible interests, such as libel and slander, survive?
    Yes.
  46. When a cause of action owned by the decedent in his lifetime survives and the injury causes death, are the damages recovered in the action part of his estate?
    Yes. They will be distributed according to his will or by intestacy. Damages are limited to those accruing before death (damages for the death itself are recovered in a wrongful death action). Because the decedent's debt must be paid, the damages are reachable by the decedent's creditors.
  47. Who can bring a wrongful death action?
    When the decedent is survived by distributees, the personal representative of the decedent's estate may maintain an action for wrongful death.
  48. Is loss of consortium compensable in a wrongful death action?
    No.
  49. Are punitive damages recoverably in a wrongful death action?
    Yes, by the personal representative of the decedent. The damages recovered are allocated by the personal representative among the distributees who have sustained pecuniary loss in proportion to the amount of loss sustained by each.
  50. What is the statute of limitations for a wrongful death action?
    Must be brought within two years from time of death.

    The action usually is conslidated with the surviving action for the decedent's pre-death injuries. The plaintiff has the burden of proof except as to the decedent's culpable conduct. The death of the beneficiary does not discharge the action, but pecuniary damages to the beneficiary are computed only up to the date of the beneficiary's death.
  51. Is there intra-family immunity in New York?
    No. However, a parent does not owe a duty to his child to exercise due care in supervising the child's day-to-day activites; therefore, a child cannot sue his parents for negligent supervision.
  52. Can a child sue his parents for negligent supervision?
    No. A parent does not owe a duty to his child to exercise due care in supervising the child's day-to-day activities.
  53. Is there immunity for proprietary functions or where a special relationship exists with the state/municipality?
    No. Otherwise, immunity exists for governmental functions.
  54. Does immunity exist for governmental functions?
    Yes. However, there is no immunity for proprietary functions or where a special relationship exists with the state/municipality.

    NOTE: Deciding whetehr the state or municipal activity is governmental or proprietary may be a close question.
  55. How can liability be imposed where the governmental activity is a "proprietary function"?
    According to ordinary tort principles.

    NOTE: Deciding whetehr the state or municipal activity is governmental or proprietary may be a close question.

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