Misc. Tort Issues Flashcards
What is the tort of nuisance?
an intangible interference w/ your ability to enjoy your land that is extreme, extensive, unreasonable in degree or amount. Δ must be acting intentionally, negligently, or conducting an abnormally dangerous activity.
*knowledge of your activities disturbance to the your neighbor is considered acting intentionally
What are thevicarious liability problems?NOTE: NY distinction
the law will impose VL in certain relationship situations:
1) Employer/employee (respondeat superior):VL if the tort is committed within the scope of employment. Intentional torts by employee are normally outside the scope of employment UNLESS i) force is a part of the job ii) it’s a job that creates a lot of friction i.e debt collectors/repo man OR iii) the tort was meant to serve employer’s interests
2) Independent contractor and hiring party: NO VL. Exceptions: (i)a business remains liable if an IC injures an invitee - non delegable duty
3) Automobile owner/driver: NO vicarious liability UNLESS the car is lent to do an errand for the owner (becomes principal agent rel) NY DISTINCTION (Permissive Use statute): There is vicarious liability imposed on the owner for torts committed by ANYONE driving the car with permission (and a presumption of permission)
4) Parent/child: NO vicarious liability for passive adult for tortious conduct by child. NY DISTINCTION:provides for vicarious liability for adult for the intentional torts of their kids but only up to a relatively small $ amount.
With joint and several liablity, what 2 rights maythe out-of-pocket ∆ have against the other ∆? NOTE: NY distinction
1) Comparative contribution rights: the jury puts a number on each co-∆ and the out-of-pocket ∆ recovers based on the assigned %
2) Indemnification: cases where out-of-pocket ∆ can get FULL reimbursement… Vicarious liability: passive tortfeasor can recover from active tortfeasor. Strict products liability: a non-mnfr can get indemnity from mnfr Via K: the out-of-pocket party has contractural right to indemnification
What is a loss of consortium claim?
In a case where the victim is married, the uninjured spouse can bring a 2nd loss of consortium c/a against all the same Δs. It is designed to recover for 3 damages that would otherwise go uncompensated i) loss of services ii) loss of society (companionship) iii) loss of sex
*NOTE: any defense that could be asserted against physically injured party can be asserted against the uninjured spouse
When is a finder allowed to keep and retain acquired property? NOTE: NY Distinction
Depends on whether the property is:
1) Abandoned - owner has given up possession and intent to relinquish title/ownership. Rule: anyone who takes possession with desire to own becomes the new owner
2) Lost = if you part with possession BUT you have NO intent to relinquish title/cntrl/ownership (e.g., leaving umbrella behind). In NYif the item in question… has value < $20, the finder MUST make reasonable effort to locate the owner, AND IF after 1 yr, the owner is not found, you get to keep property has value > $20, then finder MUST turn item over to the POLICE; the police must then hold the item for statutory pd depending on value (NOTE: if more than $5k, the pd is 3 yrs); THEN IF no one claims then property can be kept
What are 2 types of gifts and the rules associated w/ each?
1) Inter vivos gifts(given during the lifetime of the donor): donor must INTEND to make a gift, donee must ACCEPT and there must be a VALID delivery. If these conditions are met, a gift is considered to be final
* 4 special delivery facts - i) first party checks - not considered delivered until check is cashed ii) 3rd party checks - this is a final delivery iii) stock certificates- is delivered when you hand over the paper; it does not have to be recorded in the corporate book iv) situations where we use intermediaries/agents - delivery is complete if left w/ donee agent cf. if it is the donor’s agent delivery is not complete
2) Gift causa mortis(gift given in contemplation of death) - The gift is ONLY final when (i) there is an imminent risk of death that is likely to occur; AND (ii) the donor actually dies
* Not valid if the donee dies first or if the donor survives
What is a lien and the 2 reqs for a valid lien?
A lienis a security device used to enforce a debt. Formal reqs for a valid lien: 1)There has to be a debt associated with services 2) The debtor still has formal title to the property, BUT the creditor has lawful possession
What is the difference b/t a general and a special lien?
General lien = right to retain a bunch of properties as security for general balance due (e.g. hotel room that keeps stuff in room until the bill is paid). NOTE: if you give one item back then that DOESN’T RELEASE lien as to other items
Special lien = a lien related to a specific item, release of the item terminates the lien BUT NOT the debt.
What is a bailment and key bailment issues?
A bailment is created when you surrender possession of an item for a ltd time and ltd purpose (e.g. lending someting to someone) Bailor = owner of the object; Bailee = one who’s holding the object
Bailee takes on a legal duty to take care of the property and can be held liable if she is careless and the item is damaged.
Key bailment issues: 1) If an item inside of another item (e.g. car w/ stuff in the trunk) and you leave in a garage w/ key then the bailee is responsible if item is typical/ordinary (e.g. tire vs. gold bars) 2) A bank is a bailee of everything in a safe deposit box even if it’s unusual/not typical 3) If you turn over key in a garage, then it’s a bailment, BUT if it’s a park and lock, then NOT a bailment 4) A coat check bailment is regulated by statute Ltds on liability depends on whether it’s fee vs. free coat checkOR whether you declared a value for item
What is worker’s compensation?
It’s designed to be the EXCLUSIVE remedy of an employee injured on the job. No need to prove fault. The empl’r will be liable regardless of fault (and the emplr’s insurance will pay), BUT the emp CANNOT SUE the empl’r The workers comp bar on litigation also applies to actions against co-workers, UNLESS they were acting intentionally OR outside the scope of employment. The bar on litigation ONLY APPLIES to the employer, therefore an injured emp can sue anyone else against whom he’d have a claim E.g. on a construction site, the electric subcontractor can sue the general contractor or the plumbing subcontractor (as neither of these are the emplr of the emp) *Injured emp receives all medical expenses, 2/3rds of wages, specified lump-sum benefit in the case of death/fatal accident
What 5types of emps are NOT covered by worker’s compensation?
1) Independent contractors 2) Teachers 3) Non-manual workers for charitable orgs 4) Part-time household emps (e.g. nannys) 5) Members of the clergy
Which types of injuries are and AREN’T “covered injuries” under worker’s compensation?
A covered injury is pretty much any injury that happens at work, EXCEPT: 1) Injurydue solely to your own intoxication 2) Intentional self-injury 3) Injury during voluntary, off-duty athletic activity (e.g. company softball game) BUT the following ARE “covered”… 1) Injury from illegal acts committed during scope of emp (e.g. roofer attemting to steel copper on roof and getting hurt) 2) Injury from horseplay during work, UNLESS the horseplay is so divorced from work (then it won’t be covered)
What are equitable remedies?
Injunctions: prohibitory or mandatory; preliminary or permanent
What conditions must be satisfied in order to get a permanent injunction?
i) there must be no adequate remedy at law. this is the case when the ∆ has no money, the harm cannot be measured in monetary terms, the conduct is ongoing or continuous ii) the tort in question involves a protectable interest iii) an injunction must be enforceable. things to analyze in this respect: how complex is the conduct? how long will the conduct take? is there going to be action taken outside the boundaries of NY? iv) the benefit to the π must outweigh the harm to ∆ - balance of hardships
What defense can ∆ raise to deny a permanent injunction?
1) unclean hands - the π is guilty of misconduct
2) laches - prejudicial delay
3) 1st Am
