MBE and NY Distinctions (Torts) Flashcards
Wrongful Death &
Spousal Causes of Action
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
Products Liability Theories:
Chart
Vicarious Liability
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.
Negligence:
Legal Causation/Proximate Cause
Negligence:
Affirmative Defenses
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
Strict Liability (S/L): Consumer Product Injuries
What are the 4 elements of a consumer products claim?
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
Negligence Damages:
Eggshell Skull Rule & Collateral Payments
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
Strict Liability (S/L)
What are the 4 primary S/L fact patterns on the bar?
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.
Negligence: Breach of Duty
Res Ipsa Loquitor
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).
Negligence:
Legal Causation/Proximate Cause
Is it fair to hold Δ liable for
Π’s injury (foreseeable)?
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
Negligence:
Negligent Infliction of Emotional Distress
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.
Negligence: Factual/But-For Causation: Multiple Δs and:
Mingled/Merged Causes
Unascertainalbe Cause
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.
Negligence: Duty
Duties Owed By Land Occupiers
Firefighter Rule & Children Entrants
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)
Negligence: Duty
Affirmative Duty to Act
When is there an affirmative duty to act, the failure to
do so constituting breach?
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.
Negligence: Duty
Duties Owed By Land Occupiers
On the MBE ONLY, what
are the duties owed by occupiers to land entrants?
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
Negligence: Duty
Negligence Per Se
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.
Negligence: Duty
Who are 2 V’s who are presumptively foreseeable so are owed a duty whether or not actually foreseeable?
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.
Negligence: Duty
Std. of Care by Professionals
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.
Negligence: Duty
General Rule: To whom do we owe a duty of care?
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.
Negligence: Duty
Std. of Care by Children
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)
Inducing Breach
of Contract
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)
Negligence:
What are the four elements of negligence?
Negligence
Duty (foreseeable Vs)
Breach (conduct falls short; res ipsa)
Causation
Factual (But-For)
Legal/Proximate (Blameworthiness)
Damages (eggshell skull doctrine)
Fraud/Deceit
What are the
5 elements of fraud?
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).
Theft of Trade Secrets
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
Defamation:
Affirmative Defenses
What are the 3 affirmative defenses to defamation?
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
Defamation:
1st Amendment Defamation
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).
Defamation
What are the elements
of defamation?
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
Privacy Torts (MBE)
What are the 4 privacy torts and what are the elements of each?
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)
Intentional Torts:
Trespass to Land
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.
Intentional Torts:
Defenses to Intentional Torts
What are the 3 defenses
to intentional torts?
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
Intentional Torts:
Intentional Infliction of Emotional Distress
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
Intentional Torts:
Trespass to Chattel &
Conversion
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.
Intentional Torts:
Battery
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)
Intentional Torts:
False Imprisonment
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.
Intentional Torts: Summary
What are the 6 intentional torts and their elements?
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)
Intentional Torts:
Assault
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”)
NY Torts Subjects
Who is covered by worker’s comp & what type of injuries are covered?
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)
NY Torts Subjects
Workers Compensation
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.
NY Torts Subjects
No-Fault Insurance
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.
Loss Distribution Schemes
Comparative fault & contributory negligence.
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.
NY Torts Subjects
Liens
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
NY Torts Subjects
Requirements for gifts & 4 special delivery requirements.
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.
NY Torts Subects
Bailments
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
