New York tort distinctions Flashcards
NY INTENTIONAL TORT: In the state of New York, a prima facie tort consists of intentional infliction of pecuniary harm without justification. What are its 2 elements?
- The intent to do harm per (different from intent to do other intentional torts which only require the intent to do the act which causes harm).
- Plaintiff alleges and proves special damages, that is pecuniary loss.
NY Defense to intentional tort: New York requires RETREAT unless 1 of 4 things is true of actor?
- Cannot do so safely
- Is in his own dwelling
- Is police officer
4 is assisting police officer
NY LIBEL: Distinction between a libel per se and libel per quod (libel by “extrinsic fact”): libel by an extrinsic fact is treated like libel per se (actionable without proof of special damages) so long as that libel falls into a category that constitutes what?
Libel by an extrinsic fact is treated like libel per se so long as that libel falls into a category that constitutes SLANDER PER SE.
If the statement is defamatory on its face and in one of the slander per se categories, are special damages required to be proved by the plaintiff: 1. For libel? 2. For slander?
- Not required for libel
2. Not required for slander
If the statement is defamatory on its face and NOT in one of the slander per se categories, are special damages required to be proved by the plaintiff: 1. For libel? 2. For slander?
- Not required for libel
2. Yes, required for slander
If the statement is defamatory only by extrinsic fact and in one of the slander per se categories, are special damages required to be proved by the plaintiff: 1. For libel? 2. For slander?
- Not required for libel
2. Yes, required for slander
If the statement is defamatory only by extrinsic fact and NOT in one of the slander per se categories, are special damages required to be proved by the plaintiff: 1. For libel? 2. For slander?
1 yes, required for libel
2. Yes, required for slander
Is there a New York “common-law” right of privacy? Is there a New York common-law protection for one’s name or picture?
There is no New York common-law right of privacy, but there is a STATUTORY protection for one’s picture or name. The action survives death and may be commenced or continued by the estate. Does not apply to business entities.
There are 3 New York defenses to the statutory protection afforded to one’s picture or name. What are those 3 defenses?
- Prior written consent
- The photographer exhibiting his work absent objection
- Goods or art that have been sold with the person’s name, picture, or portrait thereon
Under New York law, for negligent misrepresentation, before a defendant is liable to NON-contractual parties relying on the misrepresentation, the following 3 elements must be shown
- Awareness that the representation was the to be used for a specific purpose
- Reliance by a known party in furtherance of the purpose
- Defendants conduct demonstrates understanding of the reliance
Does New York recognize wrongful birth as a cause of action?
New York does not recognize this cause of action
A professional does not have a duty to disclose the risk of treatment if he has the following 4 defenses, which are New York specific
- The risk is TOO COMMONLY KNOWN to warrant disclosure
2 patient indicated he would undergo treatment REGARDLESS OF RISK - Consent was NOT REASONABLY POSSIBLE
- Dr. reasonably believed that disclosure of risk would adversely and substantially AFFECT PATIENT’S CONDITION
Under New York law, does the status of the plaintiff on the premises determine the duty owed to the plaintiff?
NO. New York employees a uniform standard of REASONABLE CARE under the circumstances with respect to injuries on land.
Under New York State law, a violation of which of the following constitutes negligence per se: 1. A state statute? 2. A regulation or local ordinance?
But breach of a regulation or local ordinance is only some evidence.
Under New York law, the duty regarding negligent infliction of emotional distress is narrowly interpreted. The plaintiff must be within 1 what?
2 if plaintiff’s distress is caused by threat of physical impact the threat must be directed at the plaintiff or who and in what circumstances?
- The plaintiff must be within “the zone of danger”
- If case is predicated on threat of physical impact, the threat must be directed at plaintiff or IMMEDIATE FAMILY MEMBER in her presence (i.e. in the zone of danger of physical injury). No nonfamily member can recover.
In New York, under the good Samaritan statute, a licensed health professional who voluntarily and gratuitously renders emergency treatment at the scene of the accident is subject to liability only for what?
Only subject to liability for gross negligence.
Under New York law, punitive damages may be awarded in cases of what?
Punitive damages may be awarded in cases of gross negligence under New York law.
Under New York law, the plaintiff’s failure to use a seatbelt is what?
The plaintiff’s failure to use a seatbelt is an affirmative defense which mitigates damages but is not evidence of liability.
Under New York law, tort liability arising out of on-the-job accidents are preclusively handled by what type of law?
Workers compensation
What is the New York collateral source rule for damages under tort law?
All actions for personal injury, property damage, or wrongful death are required to reduce plaintiff’s damages by the amount of any benefits that plaintiff has or will receive from collateral sources (including his own insurance). This does not include life insurance or Social Security, though.
Under New York comparative negligence law, May the plaintiff recover if his culpable conduct exceeds the defendants? When may the plaintiff not recover for his own couple conduct?
Yes, the plaintiff may recover even if his culpable conduct exceeds the defendants. However, if one is injured as a direct result of one’s own ILLEGAL conduct involving risk of physical harm, you may not recover for your injuries.
Punitive damages are only available for respondeat superior if one of 3 things is the case
- Employer was grossly negligent in hiring or retaining employee
- Employee was entrusted with general management of business
- Employer authorized or ratified tortious act
With respect to automobile owner vicarious liability in New York, New York has a PERMISSIVE USE statute that provides 3 things
- Owner not vicariously liable for intentionally tortious operation by driver
- Registration is prima facie evidence of ownership, meaning driver has rebuttable presumption of owners permission
- Not required that borrower of car actually driving vehicle, borrower’s mere presence is sufficient
Parents are liable for up to $5000 of willful and intentional ______ torts of their minor child over age ___
$5000 for property torts for children over age 10
