MBE and NY Distinctions (Torts)

Question 1

Wrongful Death &

Spousal Causes of Action

Answer 1

Wrongful Death

NOT a tort; procedural devise allows family members to stand in shoes of deceased

Family = named in intestate statute

Pecuniary damages ONLY (money deceased would have earned if lived); NOT pain & suffering

Defense vs. deceased = defense vs. survivors

Spousal Causes of Action

Loss of Services: e.g. hiring another to mow lawn

Loss of Society: companionship

Loss of Consortium: sex

Question 2

Products Liability Theories:

Chart

Answer 2

Question 3

Vicarious Liability

Answer 3

Vicarious Liability (V/L)

Employer/Employee: V/L within scope of current employment

Detour vs. Frolic: minor or major departure
Things done for employee’s comfort/convenience (smoking break) IS w/i scope
Intentional Torts: conduct advance employer’s agenda?
Exceptions to rule of no V/L for Independent Contractor: (1) land occupier hires IC who injures invitee (painter in store); (2) negligent hire; (3) non-delegable duties (IC doc in the ER); (4) abnormally dangerous;

Automobile Owners/Drivers

MBE: O NOT liable for D UNLESS D on errand for owner
NYS: Permissive Use Doctrine: O V/L for anyone driving with permission (and a presumption of permission)

Parents/Children: Parents NOT generally liable (BUT NYS intentional tort +$2500 (school district sue parent for vandal))

Dram Shop: O liable for torts of patron illegally served (minor/incompetent); NOT really V/L b/c O is wrongdoer.

Question 4

Negligence:

Legal Causation/Proximate Cause

Answer 4

Question 5

Negligence:

Affirmative Defenses

Answer 5

Affirmative Defenses:

Traditional: Contributory negligence & assumption of risk: minority rules (NOT in NY)

Comparative Negligence: burden on Δ to prove Π’s degree of fault

General Std.: reasonable prudence, BUT child = child std.; statutory duties for borrowing
Π’s recovery is reduced by % of fault

Pure: exclusively by % of fault (NYS)

Modified: Π +50% responsible = NO recovery

Question 6

Strict Liability (S/L): Consumer Product Injuries

What are the 4 elements of a consumer products claim?

Answer 6

4 Elements of Consumer Product Injuries Claim

Merchant Δ routinely deals in this type of goods. Traps:

(1) casual seller is NOT merchant;
(2) service provider is NOT merchant of products used;
(3) commercial lessors ARE merchants (car rental);
(4) every party in chain of distribution IS a merchant.

Defective Product (can include a diseased animal)

Manufacturing Defect: aberration/anomaly
Design Defect: (1) hypothetical alternative design is (a) safer, (b) economical, (c) practical or (2) failure to warn

Defect Existed When Left Δ’s Hands

Presumed if product moved in normal distribution chain

Foreseeable User Making Foreseeable Use

NOT limited to intended uses (chair to change lightbulb)

Only Defense: Comparative Negligence Can ê Π Recovery

Question 7

Negligence Damages:

Eggshell Skull Rule & Collateral Payments

Answer 7

Damages

Eggshell Skull Doctrine: take Π as you find him

If Π is negligent (duty, breach, causation), then Δ pays for ALL damages.

Collateral Source Rule: full payment for damages w/NO subtractions for insurance or other payments already received.

NYS: abolished collateral source rule; Π damages reduced by collateral payments

Punitive: aggravation (spite/malice); (2) fraudulent motive; (3) willful, wanton, reckless conduct

Question 8

Strict Liability (S/L)

What are the 4 primary S/L fact patterns on the bar?

Answer 8

Injuries Caused by Animals

Domestic: ONLY S/L if Δ knew of dangerous propensity
Wild /Trespassing Cattle: S/L for animals kept by Δ (incl rats)

Ultra-Hazardous Activities

3 Elements: (1) impossible to make safe; (2) risk of severe harm; (3) uncommon in area where occurring
Remember: Π must still be foreseeable.
E.g. blasting/explosives; toxic chemicals; nuclear, brakes, cancer treatments

Nuisance

Balancing Test: whether Δ’s activities unreasonably interfere w/Π’s ability to enjoy land (injunctive relief)

Consumer Product Injuries

4 Elements: (1) Δ is merchant; (2) defective product (manufacturing/design); (3) defect existed when sold; (4) Π is foreseeable user making foreseeable use.

Question 9

Negligence: Breach of Duty

Res Ipsa Loquitor

Answer 9

Res Ipsa Loquitor: The Thing Speaks for Itself

Π can’t specifically explain what Δ did to cause the injury (barrel falls from warehouse)

If Π can prove 2 elements (inference of negligence), it goes to jury:

Accident of type that doesn’t normally occur in the absence of negligence
Negligence is usually committed by someone in Δ’s position (Δ more likely than not, the cause of the injury).

Question 10

Negligence:

Legal Causation/Proximate Cause

Is it fair to hold Δ liable for

Π’s injury (foreseeable)?

Answer 10

Legal Causation (Proximate Cause)

Is Π’s injury a foreseeable result of Δ’s breach?

When injury is direct and immediate result, almost always fair b/c injury is foreseeable.

Δ breaches duty, then an intervening event increases Π’s injury:

Well-Settled Quartet: Original Δ IS Liable:

Intervening Negligent Medical Treatment
Intervening Negligent Rescue
Intervening Protective Reactions
Subsequent Accident/Disease

Otherwise, Foreseeable? If NOT, then it is a superceding cause, and original Δ is NOT liable

Question 11

Negligence:

Negligent Infliction of Emotional Distress

Answer 11

Negligent Infliction of Emotional Distress

(1) in zone of danger,
(2) serious subsequent physical manifestation

NYS: (1) Π must be parent/child/spouse (NOT even aunt who raised V), and (2) Π must be in

zone of danger when family member is injured.

Question 12

Negligence: Factual/But-For Causation: Multiple Δs and:

Mingled/Merged Causes
Unascertainalbe Cause

Answer 12

Factual/But-For Causation

But for the breach, there would be no injury

Multiple Δs & Mingled Merged Causes (2 Forest Fires)

Substantial Factor: joint liability for each Δ whose breach was substantial causal factor in Π’s injury.

Multiple Δs & Unascertainable Cause (Quail Hunting)

Burden Shift: shift burden to each Δ to prove by a preponderance that they are NOT the cause.

Question 13

Negligence: Duty

Duties Owed By Land Occupiers

Firefighter Rule & Children Entrants

Answer 13

Special Duties Owed to Specific Entrants

Police/Firefighters: never recover when injury is a result of an inherent risk of the job (Firefighter Rule)

Children: benefit of the RPP in Similar Circumstances standard regardless of their legal status;

Attractive Nuisance: the more attractive the nuisance (pond for swimming), the greater the precautions of a reasonable land occupier (even if child not actually injured by attractive nuisance)

Question 14

Negligence: Duty

Affirmative Duty to Act

When is there an affirmative duty to act, the failure to

do so constituting breach?

Answer 14

Affirmative Duty to Act

General Rule: NO affirmative duty to act

3 Exceptions (duty of reasonable attempt):

Preexisting Relationship: family member; common carrier; business owner/invitee

Δ Created the Peril

Assumption of Responsibility: liable for negligent rescue.

NYS Good Samaritan Law: ONLY applies to doctors, nurses, vets.

Question 15

Negligence: Duty

Duties Owed By Land Occupiers

On the MBE ONLY, what

are the duties owed by occupiers to land entrants?

Answer 15

Duties Owed By Land Occupiers to Entrants (MBE ONLY)

(1) cause of injury to entrant: landowner’s activities OR condition (duty to warn OR repair); (2) legal status

Undiscovered Trespasser: (a) w/o permission; (b) w/o occupier’s knowledge

Unforeseeable Π: NO duty of care for activity/condition

Discovered Trespasser: occupier knows or should know

Activities: RPP in Similar Circumstances
Conditions: (1) man-made condition; (2) highly dangerous; (3) concealed; (4) known to occupier

Licensee: friends or other entrants who enter w/permission

Activities: RPP in Similar Circumstances
Conditions: (1) concealed and (2) known to occupier

Invitee: land open to public (business, hospital, airport)

Activities: RPP in Similar Circumstances
Conditions: (1) concealed; (2) known or should have discovered w/inspection

Question 16

Negligence: Duty

Negligence Per Se

Answer 16

Negligence Per Se: Statutory Std. of Care

Criminal/regulatory statutes create std. which tort law borrows & violation = negligence per se.

NY: ONLY state statutes; NOT local ordinance/reg.
Class of Person/Class of Risk: Burden on Π to show

She is among the class of persons the statute was written to protect
The accident was w/i the class of risks which the statute was written to prevent.

Exceptions: (1) compliance more dangerous than violation (cross yellow lines to avoid hitting child); (2) impossibility (heart attack caused violation)

If NOT per se still could be violation of RPP std.

Question 17

Negligence: Duty

Who are 2 V’s who are presumptively foreseeable so are owed a duty whether or not actually foreseeable?

Answer 17

Rescuers: injuries to rescuers are ALWAYS (presumptively) “foreseeable.”

Fetuses: negligent Δ injures pregnant lady

Fetus stillborn: no recovery;
Fetus born alive w/damages: injury to baby is foreseeable; baby can recover.
Dr. negligently misses birth defect depriving parents opportunity to abort = parents can recover costs of raising child.
Dr. botches sterilization procedure: MBE injury is foreseeable;

NYS: NO recovery (joy of raising children)

Act of God: always foreseeable.

Question 18

Negligence: Duty

Std. of Care by Professionals

Answer 18

Std. of Care By Professionals to Patients/Clients

Care that is given by the average member of that profession in similar community

Std. is empirical/discoverable
Industry Std. is Std. (NOT just some evidence)
Similar Community: rural vs. urban

Exception: specialists (brain surgeons) are held to a national standard.

Informed Consent By Docs

It is negligence for a doc not to provide patient w/information about risks

Exceptions: (1) commonly known risks; (2) waiver; (3) incompetent patient; (4) disclosure is harmful.

Question 19

Negligence: Duty

General Rule: To whom do we owe a duty of care?

Answer 19

Duty to Foreseeable Victims

Everyone owes a duty of care to foreseeable victims of their potential negligence.

Foreseeable Victims: w/i Zone of Danger

Duty Owed: level of care given by a reasonably prudent person (RPP) in similar circumstances

RPP: NO allowances for Δ’s shortcomings;

EXCEPT: (1) ↑ std. for superior knowledge (NASCAR driver = higher driving std.); (2) physical characteristics (reasonable blind Δ).

E.g. Psychologist has duty to protect 3rd party from known and dangerous acts of patients.

Question 20

Negligence: Duty

Std. of Care by Children

Answer 20

Special Duty Standard for Children

Children < 4: Incapable of negligence

Children > 4: hypothetical child of similar age, experience, intelligence in similar circum. (drastically different standard from RPP)

EXCEPTION: Adult Activity = Adult Std. (e.g. vehicle w/engine)

Question 21

Inducing Breach

of Contract

Answer 21

Inducing Breach of Contract

Valid contract between Π and 3rd party
Δ knows about contract
Δ persuades 3rd party to breach contract
Results in an actual breach of the contract

Exception: privilege between Δ and 3rd party; e.g. advisory relationship (lawyer, relative, priest)

Question 22

Negligence:

What are the four elements of negligence?

Answer 22

Negligence

Duty (foreseeable Vs)

Breach (conduct falls short; res ipsa)

Causation

Factual (But-For)
Legal/Proximate (Blameworthiness)

Damages (eggshell skull doctrine)

Question 23

Fraud/Deceit

What are the

5 elements of fraud?

Answer 23

Fraud/Deceit

Affirmative Misrepresentation (NOT Silence)
Intent/Recklessness
Specifically Intended to Induce Reliance
On Which Π Reasonably Relies

Always Reasonable to Rely on Facts
Sometimes Reasonable to Rely on Opinion if Speaker has Superior Knowledge

Damages Result

(No transferred intent if overheard by 3rd party).

Question 24

Theft of Trade Secrets

Answer 24

Theft of Trade Secrets

Valid Trade Secret Exists

Trade Secret: private information provides business advantage, protected by Π

Δ Takes the Secret By Improper Means

Traitorous Insider: learned legitimately

Industrial Spying: legal means can be improper if they overcome Π’s reasonable precautions

Question 25

Defamation:

Affirmative Defenses

What are the 3 affirmative defenses to defamation?

Answer 25

Affirmative Defenses to Defamation

Consent
Truth
Absolute & Qualified Privilege

Absolute: ID of speaker: (1) spouses; (2) gov’t officers w/i scope (includes lawyers in court)
Qualified: contexts where candor encouraged (e.g. recommendations, conversations w/police). Protects reasonable mistakes on relevant topics

Question 26

Defamation:

1st Amendment Defamation

Answer 26

1st Amendment Defamation

Π must also prove (1) statement was false and (2) Δ is blameworthy
Fault:

Public Π (Famous or Injects Self Into Public Debate): Δ intentional/reckless disregard of truth
Private Π: Δ negligently disregarded truth

Thus, reasonable mistake is NEVER basis for liability.

Punitive damages ONLY available for intent or recklessness (public or private Π).

Question 27

Defamation

What are the elements

of defamation?

Answer 27

Defamation: Libel (Print) & Slander (Oral)

(1) defamatory statement (2) published;
(3) causes damages (slander ONLY)

Defamatory Statement

Statement that adversely effects Π’s reputation;
Opinion can be defamatory if reasonable party would believe declarant has supporting facts.
Slander Per Se: (1) Π’s Business/Profession; (2) Π Committed Serious Crime; (3) Unchastity to a Woman; (4) Π has a loathsome disease; (5) NYS: homosexuality

Publication

Disclosure to at least 1 3rd party; intentional/negligent
If statement forces Π to publish the statement herself in order to ascertain the extent of distribution, such publication is attributed to D (“Did D tell you that I . . .” ).

Damages

ONLY for slander (NOT per se): specific economic loss

Question 28

Privacy Torts (MBE)

What are the 4 privacy torts and what are the elements of each?

Answer 28

Privacy Torts

Appropriation: use of Π name/likeness for commercial advantage (BUT newsworthiness exception for book/newspaper). (NY: ONLY recognized privacy tort)

Intrusion: objectionable invasion of Π’s reasonable expectation of privacy (e.g. hidden camera).

False Light: objectionable widespread dissemination of major falsehood about Π (not intentional tort)

Compare defamation: widespread, (not 1 person); damages for emotional damage (not economic); includes non-defamatory falsehoods; no mistake is a defense (not an intentional tort).

Disclosure of Private Fact: objectionable widespread dissemination of confidential information about Π (BUT newsworthiness exception; ALSO dual life not confidential).

Affirmative Defenses: consent; absolute/qualified privilege (only to false light and disclosure)

Question 29

Intentional Torts:

Trespass to Land

Answer 29

Trespass to Land

(1)physical invasion (2) of land

Physical Invasion

Δ physically enters land (knowledge irrelevant)
Δ propels something physical onto or over land

Of Land

Includes the air above (to a reasonable distance), and soil below the land.

Question 30

Intentional Torts:

Defenses to Intentional Torts

What are the 3 defenses

to intentional torts?

Answer 30

Consent By Π w/Legal Capacity

Express consent (authorization for challenged conduct) cannot be obtained by fraud (concealment of STD).
Implied consent: (1) custom & usage OR (2) reasonable interpretation of Π’s conduct

Custom: place/activity where challenged invasion is customary (e.g. sports or subway at rush hour).
Reasonable Interpretation: Π’s manifestation of conduct perceived by Δ is question of fact for jury

Protective Privileges

Response to immediate/imminent harm w/reasonable belief that the threat is genuine (reasonable mistake OK)
Appropriate Force: necessary in circumstances; deadly ONLY to protect life; NYS: retreat, but not at home.

Necessity (Public/Private) Defense to Intentional Property Torts

Public: interference to protect public = absolute defense

Private: interference to protect self-interest; must pay for actual damages; NOT punitive/nominal; Right of Sanctuary

Question 31

Intentional Torts:

Intentional Infliction of Emotional Distress

Answer 31

Intentional Infliction of Emotional Distress

(1) Intentional or recklessly outrageous conduct
(2) causes Π severe distress

Intentional Outrageous Conduct

Purpose of conduct was to cause distress or recklessly so caused
Conduct exceeds bounds of decency

Insults alone are NOT enough.

Common carrier has higher responsibility
Fragile Class: what is NOT outrageous to an adult might be outrageous to a child; elderly; known pregnant woman; known hypersensitive Π

Causes Π Severe Distress

Question 32

Intentional Torts:

Trespass to Chattel &

Conversion

Answer 32

Trespass to Chattel & Conversion

Deliberate interference with personal property

Private civil remedies for vandalism/theft: includes (1) damaging or (2) stealing any personal property.

Trespass to Chattel

Harm to the personal property is minor

Conversion

Massive destruction to property or killing a pet.
Remedy: full value of property (break it, buy it)

Mistake concerning ownership is NOT a defense “(I thought it was my car.”), so long as act is intentional.

Question 33

Intentional Torts:

Battery

Answer 33

Battery

(1) harmful/offensive contact, (2) w/Π’s person

Harmful/Offensive Contact

Offensive contact = unpermitted by person of reasonable sensitivity
Includes intent to frighten Π

With Π’s Person

Includes anything Π is touching or connected to (handbag; kicking dog being walked)

Question 34

Intentional Torts:

False Imprisonment

Answer 34

False Imprisonment

(1) act of restraint that
(2) confines Π in a bounded area

Act of Restraint

Includes act, threat (“stay in room or I’ll kill you”), omission (illegal refusal to release prisoner).
Π must be aware of confinement (not asleep) or injured by it
Taking of clothes = restraint

Confines Π in Bounded Area

NOT bounded if there is a reasonable means of escape that Π can reasonably discover

Shopkeepers’ Privilege: reasonable suspicion, means of detention, amount of time = affirmative defense.

Question 35

Intentional Torts: Summary

What are the 6 intentional torts and their elements?

Answer 35

3 Overriding Principles: (1) NO added benefit for hypersensitive Π; (2) NO incapacity defenses; (3) D acts w/ intent or knowledge of substantial likelihood of harm.

Battery: (1) harmful/offensive contact, (2) w/Π’s person
Assault: (1) Π in apprehension (2) of immediate battery
False Imprisonment: (1) act of restraint (2) confines Π in bounded area
Intentional (Reckless) Infliction of Emotional Distress: (1) outrageous conduct; (2) causes Π severe distress
Trespass to Land: (1) physical invasion (2) of land.
Trespass to Chattel/Conversion: deliberate interference w/personal property (minor=TTC; major=Conversion)

Question 36

Intentional Torts:

Assault

Answer 36

Assault

(1) Π in apprehension (2) of immediate battery

Apprehension = Knowledge/Understanding

Immediate Battery

Some minimal conduct that makes threat seem real & immediate (NOT words alone)
Words can negate immediacy (“if” “later”)

Question 37

NY Torts Subjects

Who is covered by worker’s comp & what type of injuries are covered?

Answer 37

Employee covered but independent contractors not

Not covered – Teachers, non-manual labors who work for non-profits, part time domestic or household employees (babysitter, housecleaner), clergy

Covered employee can recover for injuries arising out of employment

NOT arising from employ. – injury solely due to intoxication of em’ee, em’ee intentionally tries to harm himself or other (stab self in leg), injury occurs in voluntary off-duty athletic event

Illegal acts on the job are covered (stealing roof shingles, fall off)
Horse play – can go either way, depends on how completely absurd – w/in scope of employment to engage in a little idiocy on the job
Injured employees remain free to sue 3rd parties (e.g. manufacturer of machine)

Question 38

NY Torts Subjects

Workers Compensation

Answer 38

Worker’s Compensation

Statutory insurance scheme, which makes insurance the exclusive remedy of employees injured on the job w/ respect to the employer.
Employer is essentially strictly liable (w/ insurance co paying) regardless of fault – if on the job injury, then compensation to injured worker
But NO TORT LITIGATION and LIMITED LIABILITY (no p&s, no punitive damages)
If you die - get statutory amount and funeral damages.

Question 39

NY Torts Subjects

No-Fault Insurance

Answer 39

Anyone injured by covered vehicle has claim against owners insurance company instead of against the D himself.
$50k req. for each car in NY.
Owner, passengers, driver, pedestrians hit by car – can all get regardless of whether at fault

Except - drunk drivers, drag racers, car thieves, fleeing felons

Can still sue for neg. if:

Economic Loss –$50k+ damages = sum of all of your medical expenses, 80% of actual salary but not more than $2k/mo., miscellaneous expenses associated with the injury up to $25/day
Serious injury - death, dismemberment, serious disfigurement, serious fracture, permanent loss of a bodily organ or function

So P can get both sometimes but NO double recovery.

NY no fault applies even if you have an accident in another state.
Only applies to personal injuries – not personal property damage – so if your car is banged up you have to litigate or buy collision insurance

é Litigation allows a P to recover for pain & suffering unlike no fault.

Question 40

Loss Distribution Schemes

Comparative fault & contributory negligence.

Answer 40

Contribution – all tortfeasors pay equal amt regardless of amt of fault

Defense = P was Cont. neg.
“Unit rule” – P’s fault must be less than all tortfeasors together

Pure Comparative – P can recover damages even if he was contributorily negligent
Modified/Partial Comparative – P can only recover if he is less at fault than D (i.e. less than 50%)
Collateral Sources Rule = $ paid by insur. co. does NOT reduce recovery

é Only applies to tortfeasors suing each other so if 3rd party injured, he can recover total damages against 1 of the tortfeasors alone.

Question 41

NY Torts Subjects

Liens

Answer 41

Security device in a particular item(s) of personal property to enforce a debt.

3 Reqs. for Creation – (1) Debt relates to services performed, (2) Debtor has legal title, (3) Creditor will have possession of the item

Special lien - right to retain a particular item b/c a particular repair was performed on that item - if creditor releases the item then the lien ends – not the end of the underlying debt, though.

Genera lien - right to retain a whole bunch of property for a general balance due – if 1 item released, does not release whole lien

Question 42

NY Torts Subjects

Requirements for gifts & 4 special delivery requirements.

Answer 42

Inter vivos gifts - Donor (1) must have subjective donative intent, (2) recipient must accept the gift, and (3) must have a valid delivery (objective component)

Donative intent - desire to pass title, not merely to turn over possession
Silence is usually valid acceptance – only time no acceptance is explicit rejection

4 special delivery situations:

Checks – check must be cashed so donor can stop pmt
3rd party check – donor endorses & turns over
Stock certificates - delivered when handed over
Agent of Donor - delivery is only final when agent gives up the object
Agent of Donee – delivery complete when left w/ agent

Gifts causa mortis - need evidence that there was an imminent risk of death that is objectively likely to occur & donor must die

Gift is invalid if the Donee dies first.

Question 43

NY Torts Subects

Bailments

Answer 43

Voluntary transfer of item to someone else (w/o giving up title) for a temporary purpose.

Bailee must take reasonable prudence of care.

Sole benefit for Bailor - bailee only liable for gross negligence.
Benefit for Bailee - liability for slight negligence.

Exculpatory clauses – cannot completely disclaim all liability but can cap it – must have effective notice – only okay for ordinary neg. – cannot exculpate self from intentional or gross neg.

Smtg w/in the scope of bailment is NOT protected except:

Safe Deposit Box – bank is the bailee of the entire contents of the box
Parking lots – hand over keys to someone = bailment but if it is park & lock then it is a lease of real estate & they are not responsible.
Coat check – normally for any harm done but not smtg like a diamond ring b/c not in scope
Gratuitous coat check – liability capped at $200
If you pay a fee, claim the value, & get a receipt – they are strictly liable for up to $300 but if there is neg. bailee owes total value of item