Misc. Tort Issues

Question 1

What are the elements of private/public nuisance?

Answer 1

Nuisance is an interference with π’s ability to use or enjoy real estate to an unreasonable or excessive degree (private) OR an interference with the health, safety, or property rights of the community (public)

- Intentionally or negligently
- Balance the interests
- Key phrases: intolerable, seriously annoying, definitely offensive

** The violation of azoning ordinance or regulationmay be a factorin balancing severity; it isNOT DETERMINATIVE

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

Question 2

What are the relationships that fit thevicarious liabilityfact pattern?

NOTE: NY distinction

Answer 2

1) Employer/Employee = LIABLE in scope of employment
- UNLESS employee is furthering goals of employer

2) Hiring Agent/Independent Contractor = NOT liable
- EXCEPT NY Scaffold Law - building owner and general contractor held liable even if worker partially at fault

3) Automobile Owner/Driver = NOT liable (NY = LIABLE under Permissive Use statute)
4) Parent/Child = NOT liable (NY = LIABLE up to 5k for kids > 10)
5) Tavernkeepers/Drunks = NOT liable (NY = LIABLE under Dram Shop laws)

Question 3

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

NOTE: NY distinction

Answer 3

1) Comparative contribution
2) Indemnification
- Retailer can recover 100% from manufacturer
- Passive tortfeasor can recover 100% from active tortfeasor)

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

Question 4

How can suvivors of a π recover under wrongful death?

NOTE: NY distinction

Answer 4

Thisis NOT a tort; procedural devise allows family members to stand in shoes of deceased
- Pecuniary damages ONLY (lost wages not pain &
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

What are the spousal causes of action that can be brought for tortious interference with family relationships?

Answer 5

1) Loss of Services (errands)
1) Loss of Society (companionship)
3) Loss of Consortium (sex)

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

Question 6

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

Answer 6

1) Valid trade secret EXISTS
2) Δ takes the trade secret by IMPROPER MEANS

Traitorous insider = learned legitimately but then uses for own purposes

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

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

Question 7

What is the test determining whether injunctive relief is appropriate?

Answer 7

1) No adequate remedy at law ($ not enough)
2) Suffered harm to a property interest or protectable right
3) Injunction would be enforceable
4) Balance of hardship dips in π’s favor (benefit to π > harm to ∆)

No adequate remedy =

- Insolvent ∆
- ∆ about to commit conversion
- Conduct is ongoing or continuous

Protectable right = there is tort liability

** Enforceability usually only an issue for mandatory injunctions; look at complexity, jurisdiction of conduct

**Special showing of likelihood of success on the merits and irreparable harm for preliminary injunctions

NOTE: injunctions and monetary damages are NOT mutually exclusive

Question 8

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

Answer 8

1) Unclean hands
2) Laches (prejudicial delay)
3) 1st Amendment Prior Restraint

Question 9

How does worker’s compensation work?

Answer 9

Worker’s compensation is a statutory system in which individuals hurt on a job are guaranteed recovery from employer’s insurance but that is the exclusive remedy (cannot sue employer or coworkers, unless they are acting intentionally or outside the scope of employment)

** Employee can still sue 3d parties

Damages includes:

- All medical expenses
- 2/3rds of wages
- Statutory lump-sum benefit in the case of death

Question 10

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

Answer 10

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

Question 11

Which types of injuries are and aren’t “covered injuries” under worker’s compensation?

Answer 11

Not covered activities:

1) Injurydue solely to your own intoxication
2) Intentional self-injury
3) Injury during voluntary, off-duty athletic activity

BUT the following ARE covered…

1) Injury from illegal acts committed during course of employee
2) Injury from horseplay during work, UNLESS the horseplay is too divorced from work

Question 12

What are the types of injunctive relief available?

Answer 12

1) Negative/Prohibitory
2) Mandatory

1) Preliminary
2) Permanent

Question 13

What special showing must you make to obtain a preliminary injunction?

Answer 13

1) Likelihood of success on the merits

2) Irreparable harm