Misc. Tort Issues

Question 1

NUISANCE

How can a π establish a private or public nuisance?

Answer 1

NUISANCE = INTERFERENCE w/π’s ability to USE or ENJOY REAL ESTATE to an UNREASONABLE or EXCESSIVE DEGREE

1) PRIVATE NUISANCE =
(i) a substantial, unreasonable interference with
(ii) the private individual’s use or enjoyment of π’s property
→ NOTE: “Substantial” is CANNOT BE the result of π’s hypersensitivity/specialized use of the property

→ BALANCING TEST: Generally, Cts try to balance the interests (freedom of property usage vs. right to not be disturbed) to determine “unreasonable interference”
→ ∆ USUALLY LIABLE if:
(i) Action is INTOLERABLE; OR
(ii) Action is SERIOUSLY ANNOYING

→ NOTE: the violation of azoning ordinance or regulationmay be a factorin balancing severity; BUT it isNOT DETERMINATIVE

→ NOTE: “Coming to the nuisance” is generally NOT a defense to nuisance unless π bought property just to bring suit

2) PUBLIC NUISANCE =
(i) an unreasonable interference with
(ii) thehealth, safety, or property rights of the community → E.g. using a building as a base for prostitution

→ Private recovery for public nuisance is available ONLY IF the private party suffered unique damages from public at large

• NOTE: nuisance is not a separate tort in itself (i.e. you can have nuisance caused by intentional, negl, or S/L conduct)
• NOTE: Nuisance can be caused INTENTIONALLY or NEGLIGENTLY
• NOTE: Bar exam questions typically involve incompatible land uses (e.g. smoke belching factory next door to hospital for asthma patients)

Question 2

VICARIOUS LIABILITY

What are the 5 relationships that fit thevicarious liabilityfact pattern?

NOTE: NY distinction

Answer 2

4 RELATIONSHIPS TRIGGERING VICARIOUS LIABILITY:

1) EMPLOYER / EMPLOYEE (respondeat superior):
The passive employer is liable for the acts of an employee; provided that the act 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 (nightclub bouncer);
(ii) employee is seeking to further the goals of employer;
(iii) type of work predictably leads to tensions (repo-man)

NOTE: An employee can make MINOR departure from employment responsibilities and employer would STILL be liable (UNLESS the departure is significant)

2) HIRING PARTY / INDEPENDENT CONTRACTOR General there is NO liability for independent contractor, UNLESS:
(i) land occupier hires IC who then injures an invitee (e.g. a customer);
(ii) negligent hire;
(iii) non-delegable duties (e.g. IC doc in the ER); OR
(iv) abnormally dangerous activity

NY DISTINCTION: SCAFFOLD LAW
Owner of building and general contractor can be held liable for injuries related to scaffolding like hoists/structures
→ NO REDUCTION in recovery if WORKER is at FAULT UNLESS worker is 100% at FAULT

3) AUTO OWNER / DRIVER:
Generally, NO vicarious liability for passive car owner driven by another tortfeasor, 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 (NY applies a presumption of permission)

4) PARENT / CHILD:
Generally, NO vicarious liability for passive adult for tortious conduct by child → UNLESS the child is working as an agent for the parent

NY DISTINCTION:provides for vicarious liability for adult, BUT only for a maxmium amt of $5k in damages for intentional property torts by children > 10 years old

5) Tavernkeepers/drunks:
Generally, NO vicarious liability for bars for tortious conduct of drunk customers

NY DISTINCTION (Dram Shop Act): makes a bar who unlawfully served (e.g. already drunk/minor) alcohol to tortfeaser, liable to the 3rd party

NOTE
Vicarious Liability is a DOCTRINE OF LAST RESORT
→ E.g. a parent can still have had negligent behavior that makes them liable for the action of their child (leaving a loaded gun in the house, negligent hiring of independent contractor)

Question 3

CO-DEFENDANTS

With joint and several liability, what 2 rights maythe out-of-pocket ∆ have against the other ∆?

NOTE: NY distinction

Answer 3

ACTIONS/RIGHTS FOR OUT-OF-POCKET ∆:

1) COMPARATIVE CONTRIBUTION RIGHTS:
Out-of-Pocket ∆ can go after other ∆s to get their apportioned % of fault to partially recover the 100% in damages he had to pay
→ The jury puts a number on each co-∆ and the out-of-pocket ∆ recovers based on the assigned %

2) INDEMNIFICATION:
Situations where out-of-pocket ∆ can get FULL reimbursement…
(i) Vicarious liability: the passive tortfeasor that was held vicariously liable can recover from the active tortfeasor

(ii) Strict products liability: a non-mnfr (wholesaler or other distributor) can get indemnity from mnfr

**Via K: the out-of-pocket party has contractual right to indemnification

NOTE: neither contribution nor indemnity affect how much the π will recover

Question 4

WRONGFUL DEATH

How can suvivors of a π recover under wrongful death?

NOTE: NY distinction

Answer 4

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

PECUNIARY DAMAGES ONLY (money deceased would have earned if lived); NOT pain & and suffering

If affirmative defense could have been asserted vs. deceased, then it can be asserted vs. survivors

NY DISTINCTION: must be brought w/in 2 years of death; NO loss of consortium; punitive damages ARE recoverable

Question 5

SPOUSAL COAs

What are the 3spousal c/as that can be brought for tortious interference with family relationships?

Answer 5

Whenever the victim of a tort is married, the spouse gets a separate independent cause of action:

1) LOSS OF SERVICES: with spouse injured, the uninjured spouse can collect as you have one less person to help out (e.g. hiring another to mow lawn)

2) LOSS OF SOCIETY/COMPANIONSHIP: with spouse injured, uninjured spouse cannot share companionship to same degree as before injury
3) LOSS OF CONSORTIUM: sex

NOTE: any defense that could be asserted against the physically injured party can also be asserted against the uninjured spouse

Question 6

When is a finder allowed to keep and retain acquired property?

NOTE: NY Distinction

Answer 6

Depends on whether the property is…

1) Abandoned =give 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

Question 7

When can a gift giver (donor) take the item back?

Answer 7

Depends on type of gift…
1) Inter vivos gifts(given during the lifetime of the donor): have 3 req to past title to make gift COMPLETE/FINAL There must be an intention to past title by donor (e.g. not like borrowing lawn mower)

There has to be an acceptance by the donee (NOTE: silence IS considered a valid method, so there must be a REJECTION)

There must be valid delivery by (i) turning over of possession of the item (e.g. giving a physical car); OR (ii) turning over something that is representative of it (e.g. the keys to the car or the certificate of title)

A first party check (i.e. “pay to the order of donee”) that is SIGNED by donor is ONLY delivered when the check is cashed
A 3d party check(check that is endorsed by donor via 3d party and signed over to donee) is delivered upon receipt

For stock certificates, complete delivery means signing the certificate AND taking possession

Situations involving agents: (i) if agent is agent of donee, then delivery is complete upon receipt; BUT (ii) if the agent is the agent of the donor, then delivery is not YET 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

		NOTE: Not valid if the donee dies first

Question 8

What is a lien and the 2 reqs for a valid lien?

Answer 8

Lien= a primitive security device for debt that is associated with property
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

Question 9

What is the difference b/t a general and a special lien?

Answer 9

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 = right to retain specific property related to services provide where there is a debt (e.g. mechanic’s lien)

NOTE: if creditor gives up the item, then this terminates the lien BUT NOT the debt

Question 10

BAILMENT

What is a bailment and key bailment issues?

Answer 10

A bailment is created when you surrender possession of an item for a ltd time and ltd purpose (e.g. lending something to someone)

Bailor = owner of the object

Bailee = one who’s holding the object → Bailee takes on a legal duty of care wrt the item and can be held accountable if the item is destroyed

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

Question 11

TRADE SECRET

NY ONLY: What are the 2 elements for theft of avalid trade secret?

Answer 11

1) Valid trade secret EXISTS

Trade secret = private information that provides business advantage, which is reasonablyprotected by π

2) Δ takes the trade secret by IMPROPER MEANS

Traitorous insider: learned legitimately but then uses for own purposes

Industrial spying: learning trade secret thru often criminal means (NOTE:legal means can be improper IF they overcome π’s reasonable precautions)

Question 12

NY ONLY:

What is no fault insurance?

Answer 12

PURPOSE: Designed to divert minor auto accidents from the ct system by denying the right to sue, but giving g’teed comp from an insurance company

NY ONLY: gives benefits for PERSONAL injuries (i.e. NOT a banged up car, which is covered by collision insurance)

Injured party receives… (i) Medical exp
(ii) Lost wages:80% of weekly wages up to 2k/month for a max of 3 yrs (i.e. if you make >$30k, then you max out)
(iii) Misc expenses of $25/day up to 1 yr
(iv) BUT NOTHING for pain and suffering
Policy limits can cap medical expenses

This benefit is portible (even if injured out of state)

BOTTOM LINE: if you see a CAR in a fact pattern THINK no fault insurance

Question 13

NY ONLY:

Which injured parties are (and aren’t)allowed to collect no fault benefits from an insurance company (1st party benefits)?

Answer 13

WHO CAN COLLECT:

1) The policy holder OR any authorized driver of policy holder’s car
2) Any passenger in the policy holder’s car (assuming driver is authorized driver)
3) Any pedestrian injured by policy holder’s car

NOTE: NEGLIGENT drivers still COLLECT

BUT NOT…

1) Drunk drivers
2) Drag racers
3) Car thieves and other fleeing felons struck by driver’s car

NOTE: If two vehicles collide, occupants of each car will look to no fault beneifts of THAT CAR

Question 14

NY ONLY:

When are you STILL permitted to file a trad’l neg’l suit in NY after the election of no fault insurance benefits?

Answer 14

π can still go to court when:
1) When π has “injuries in excess of basic economic loss”, then π can sue anyone

Formula: add medical + 80% of weekly wages capped at $2k capped at 1 yr (24k) + misc. exps at $25/day up to a yr (9k); IF this exceeds $50k, THEN π can sue

2) If π “suffered a SERIOUS INJURY” then π can sue.
SERIOUS INJURY =
(i) death
(ii) dismemberment
(iii) significant disfigurement (e.g. 6-inch scar);
(iv) fracture
(v) loss of a fetus
(vi) peminant loss of bodily organ or function
(vii) perm. consequential limitation of bodily organ (e.g. perforated lung and having trouble breathing)
(viii) significant ltd of use of bodily function/system
(ix) a non-permanent injury that prevents you from performing acts that are normally/customary for π for a pd of 90 days

NOTE: you can BOTH damages and no-fault rovery, but no double recovery (i.e. no 2x medical bills)

NOTE: Statute of limitation on additional suit starts AT TIME OF ACCIDENT and NOT at time that serious injury is discovered or time that claims in excess of $50K arise

Question 15

4 PART DEMONSTRATION FOR INJUNCTIVE RELIEF

What is the 4-part test determining whether injunctive relief is appropriate?

Answer 15

PART I: NO ADEQUATE REMEDY AT LAW

1) π must show that there is no adequate remedy at law

(i) Money is not an adequate on the facts of this case to provide relief);
(ii) Where ∆ has no money (insolvent ∆);
(iii) The harm is impossible to measure in monetary terms;
(iv) Where ∆ is abt to destroy a priceless artifact; OR
(v) Where ∆ keeps trespassing on land; or keeps punching you in face

PART II: PROTECTABLE RIGHT 

2)HARM involves a PROTECTABLE RIGHT OR PROPERTY INTEREST

→NOTE: This is a legacy element as courts once held that you can only get an injunction if your property interests were effected
→Modern view: you have a protectable interest if reputation, privacy, bodily integrity is involved
→This is kind of a “free square on a bingo card”; never an obstacle to getting an injunction

PART III: INJUNCTION IS ENFORCEABLE

3)injunction must be enforceable

→ Almost never an issue in a negative injunction
→ With an affirmative injunction you may have an issue
→ E.g., A paper has to print a retraction and then the court would have to judge whether retraction is sufficient
→ Look at the complexity of the conduct (the harder, the harder it is to be enforceable)
→ Look how long it would take (longer? Harder to enforce)
→ Look to see if activities would take place out of jx

PART IV: BALANCE OF HARDSHIPS FAVORS π

4)the balance of hardships must “tip in the π’s favor”
→ The benefit to the π, must outweigh the harm that the ∆ will suffer

***NOTE: injunctions and monetary damages are NOT mutually exclusive

Question 16

DEFENSES TO INJUNCTIVE REMEDY

What 3 special defenses may a ∆ assert against an injunctive remedy (ONLY)?

Answer 16

1) UNCLEAN HANDS: ∆ asserts that the π is guilty of some offsetting conduct

2) LACHES: prejudicial delay by π to seek relief (~SOL, but independent of SOL)
→ Triggered if π has waited/delayed in seeking relief to the point where ∆ relied on the lack of action by π
→ E.g. if there is a legal nuisance, and both money and injunctive relief is requested; but since the factory has been there for YEARS (2 expansions, etc.), and the π didn’t seek relief at any prior point, there should be no injunctive relief granted

3) FREEDOM OF SPEACH: 1st Amendment RIGHT
→ e.g., enjoining a newspaper publication
→ NOTE: you can STILL sue for MONEY DAMAGES nws these special defenses

Question 17

WORKER’S COMPENSATION

How does worker’s compensation work?

Answer 17

CONCEPT:

1) Designed to be the EXCLUSIVE remedy of an employee injured on the job
(i) The employer will be liable to pay benefits to any
employee injured on the job REGARDLESS of FAULT
(ii) the employer’s insurance will pay
(iii) BUT the employee CANNOT SUE the employer

2) The workers comp bar on litigation also applies to actions against co-workers, UNLESS they were acting intentionally OR outside the scope of employment

3) The bar on litigation ONLY APPLIES to the employer/co-workers (mostly), 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 employer of the employee)
→ BUT NOTE: IF EMPLOYEE sues 3rd PARTY for injuries sustained in the course of her employment, the EMPLOYER may NOT be held LIABLE to 3rd PARTY for contribution UNLESS EMPLOYEE sustained a GRAVE INJURY.
→ ALSO, EMPLOYEE NOT ENTITLED to DOUBLE RECOVERY for the same injury. Worker’s Comp Insurance provider has right of reimbursement out of any damages recovered in 3rd PARTY action to the extent of workers’ compensation benefits it paid to the employee.

4) NO PAIN & SUFFERING from worker’s comp and CANNOT seek it outside of worker’s comp

5) RECOVERY: Injured emp receives…
(i) ALL medical expenses
(ii) 2/3rds of LOST WAGES
(iii) Specified lump-sum benefit in the case of death/fatal accident (specified by statute)

6) Suits against 3rd Parties: Employer can still sue a 3rd party - e.g. the manufacturer of a defective delivery truck

Question 18

What 5types of emps are NOT covered by worker’s compensation?

Answer 18

1) Independent contractors*
2) Teachers
3) Non-manual workers for non-profits (white-collar)
4) Part-time household emps (e.g. nannys)
5) Members of the clergy

• NOTE: Indipendent contractor can still sue their employee and they are also not barred by exclusivity

Question 19

COVERED INJURY (WORKER’S COMP)

Which types of injuries are and AREN’T “covered injuries” under worker’s compensation?

Answer 19

COVERED INJURY: pretty much any injury that happens at work
EXCEPT:
1) Injurydue solely to your own intoxication
2) Intentional self-injury or injury while intentionally attempting to injure co-worker
3) Injury during voluntary, off-duty athletic activity (e.g. company softball game) (if pressured to attend by boss then not voluntary)

BUT the following ARE “covered”…

1) Injury from illegal acts committed during course of emp (e.g. roofer attempting 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)

Question 20

What are the 4 TYPES OF INJUNCTIONS?

Answer 20

1) NEGATIVE or PROHIBITORY INJUNCTION
→ DON'T DO X 
→ STOP DOING Y
                             OR
2) MANDATORY INJUNCTION
→ You MUST DO Z
-------------------------- 

3) PRELIMINARY INJUNCTION
→ A FREEZE RQST at the BEGINNING of suit
                             OR
4) PERMANENT INJUNCTION
→ FINAL REMEDY at END of suit

Question 21

What are the 2 special showings for a PRELIMINARY INJUNCTION?

Answer 21

1) Demonstrate a LIKELIHOOD OF SUCCESS on the merits

2) Demonstrate that IRREPARABLE HARM will occur w/o injunction

Question 22

NY ONLY:

Who are “COVERED PERSONS” under NY NO FAULT INSURANCE?

Answer 22

1) Owner
2) Operator
3) Occupant of Insured’s Auto
4) Pedestrian hit by Insured’s Auto
5) ANY other person entitled to 3rd Party Benefits (e.g. pedestrian struck by insured’s vehicle that had been stolen)

NO DISTINCTION for PERMISSIVE and NON PERMISSIVE USERS but Drivers and Passengers of vehicles KNOWN to be STOLEN are NOT COVERED