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NY BAR REVIEW > NY BAR REVIEW - torts and tort damages 2019 > Flashcards

NY BAR REVIEW - torts and tort damages 2019 Flashcards

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1
Q

what type of negligence jurisdiction are we?

A

pure comparative

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2
Q

action to recover damages forpersonal injury, injury to property, wrongful death, culpable conduct atttibutable to claimant or decedent, contributory neglig, assumption of risk, DOESNT bar what?

A

recovery

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3
Q

action to recover damages forpersonal injury, injury to property, wrongful death, culpable conduct atttibutable to claimant or decedent, contributory neglig, assumption of risk, diminishes what?

A

amount of damages otherwise recoverable in proportion which culpable conduct attributable to claimant or decedent bears to culpable conduct which caused the damages.

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4
Q

affirmative defense to be pleaded and proved by party asserting defense

A

action to recover damages forpersonal injury, injury to property, wrongful death, culpable conduct atttibutable to claimant or decedent, contributory neglig, assumption of risk

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5
Q

damages diminished in cases of

A

implied assumption of risk, but where pl voluntarily assumes known risk of injury, such express assumption will absolve def of duty owed to pl

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6
Q

participant in sports or recreational activity

A

voluntarily assumes and consents to risks inherent in and arise out of nature of sport generally and which flow from participation

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7
Q

violation of state statute that imposes specific duty

A

constitutes neg per se

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8
Q

violation of municipal ordinance or administrative rule

A

constitutes some evidence of neg

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9
Q

in certain cases, violation of state statute may impose what?

A

absolute liab

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10
Q

duty owed by owner / occupier of land to person entering premises - invitee, licensee, trespasser

A

reasonable care under the circumstances.
landowner MUST act as reasonable person in maintaining premises in reasonably safe condition in view of all circumstances, likelihood of injury to others, seriousness of injury, burden of avoiding risk

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11
Q

recreational use statute

A

no duty to keep sage for entry / use by others for hunting, fishing,boating, hiking, cross country skiing, sledding, snowmobile operation, other recreational activities , or give warning of any hazardous condition on property

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12
Q

landowner can be found liable for what?

A

willful / malicious failure to guard or warn ag dangerous condition or for injury suffered where permission to use property was granted for consideration

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13
Q

intra family immunity for non willful torts

A

defense is abrogated

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14
Q

actions bw parents and children actionable or not, to same extent that such are brought by non family members?

A

actionable

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15
Q

parent’s neg failure to supervise their child is or not actionable by child?

A

NOT

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16
Q

parent’s neg failure to supervise their child - 3rd party tortfeasors are or are not entitled to contribution from parents for liab resulting in part from neglig supervision of child?

A

NOT

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17
Q

when parent breached duty owed to 3rd parties by negligently permitting infant child to use dangerous instrument - actionable or not?

A

actionable. parent may be found liable to 3rd party injured as consequence of parent’s failure to proect 3rd party from foreseeable harm that results from child’s improvident use of dangerous instrument, which harm includes 3rd party’s tort liab.

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18
Q

3rd party cast in liab for injury to a child may seek what?

A

contribution from parent who has negligently entrusted child w dangerous instrument and whose neg contributed to child’s injury

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19
Q

neglig infliction of emotional distress

A

zone of danger rule. emotional distress upon witnessing injury of a member of pl’s immediate family

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20
Q

zone of danger

A

pl is in it if he is exposed to an unreasonable risk of injury due to def’s conduct.

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21
Q

pl in zone of danger

A

may recover damages for injuries suffered in consequence of shock or fright resulting from contemporaneous observation of serious physical injury or death of member of pl’s immediate family, where def’s same conduct was substl factor in causing injury to pl’s fam mmbr.

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22
Q

where def unreasonably endangered pl’s physical safety , def breached duty owed directly to pl, entitling pl to?

A

recover all damages sustained, including those suffered as consequence of witnessing suffering of immediate family mmbr also injured by def’s conduct

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23
Q

medical malpractice resulting in miscarriage or stillbirth is what?

A

violation of duty of care to expectant mother, entitling her to damages for emotional distress, even in absence of indep injury to her.

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24
Q

statutory std of care owed to construction workers / labor law

A

scaffolding law.
duty on contractors, owners, agents, to furnish or erect scaffolding, hoists, stays, ladders, other devices, so as to give proper protection to workers involved in erection, demolition, repairing, altering, painting, cleaning, pointing, of bldg or structure.

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25
Q

what type of liab is imposed under scaffolding law?

A

absolute

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26
Q

pl’s comparative fault in scaffolding law violation reduces or not the recovery?

A

NOT

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27
Q

exception for pl’s comparative fault in scaffolding law violation recovery

A

owners of 1 or 2 family dwellings who contract for but dont direct or control the work.

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28
Q

what type of liab on owners, contractors, agents, for scaffolding law violation where worker sustains elevation related injury, due to falling object of falling worker, where injury is consequence of absence or improper use of required safety device

A

strict

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29
Q

labor law requires contractors and owners and their agents, excluding owners of 1 and 2 family dwellings who contract for but do not direct or control work to what?

A

comply w various requirements

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30
Q

the law requires all areas in which construction, excavation, demolition work being performed be so constructed, shored, guarded, and operated, so as to provide what?

A

reasonable and adequate protection to persons employed or lawfully frequenting such places. commissioner of labor is authorized to make rules to carry provisions into effect.

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31
Q

violation of the rules requiring all areas in which construction, excavation, demolition work being performed be so constructed, shored, guarded, and operated, so as to provide reasonable and adequate protection to persons employed or lawfully frequenting such places is evidence of what?

A

negligence

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32
Q

drap shop act

A

creates cause of action in favor of person injured in person, property, means of support, or otherwise, by an intoxicated person as ag any person who by unlawfully selling liquor or assisting in procuring liquor for such intoxicated person, caused or contributed to such intoxication

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33
Q

dram shop act requires what?

A

commercial sale of alcohol

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34
Q

what type of damages recovered from violation of dram shop act?

A

actual damages.

exemplary damages.

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35
Q

what is an unlawful sale in dram shop act terms?

A

to a minor.
to a visibly intoxicated person.
to a habitual drunkard.
alcohol beverage control act.

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36
Q

dram shop liab extends to whom re minor?

A

person, social host, knowingly causing intoxication in person under 21 by furnishing or assisting in procuring alcohol to minor

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37
Q

what is furnishing re general obligations law?

A

participation in deliberate plan to furnish alcohol to underage individuals

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38
Q

vehicle owner liab for death or injury to person or property resulting from neg use or operation of vehicle by person using or operating vehicle w express or implied permission of owner

A

vicarious liab

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39
Q

strong presumption of permissive use that can only be rebutted w what?

A

substl evidence sufficient to show driver of vehicle WASNT operating it w express or implied permission of owner

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40
Q

parents are or not vicariously liab for torts of minor children?

A

NOT

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41
Q

parent of infant over 10 y of age is or not liable for damages caused by infant who willfully, maliciously, or unlawfully damages, destroys, defaces public or private property

A

YES.

parent’s liab limited to 5k. general obligations law.

42
Q

who may bring an action to recover damages due to injury resulting in decedent’s death as ag person who would have been liable to decedent if death hadnt ensued?

A

personal rep of a decedent’s estate

43
Q

wrongful death action damages recovery?

A

pecuniary losses suffered by those for whose benefit the action is brought

44
Q

damages of wrongful death action is exclusively for benefit of whom?

A

decedent’s distributees. to be distributed in accordance w pecuniary injuries suffered by distributees.

45
Q

proceeds of wrongful death action are or not assets of estate to be distributed in accordance w decedent’s will or laws of intestacy

A

NOT

46
Q

pl in wrongful death case held to what degree of proof required?

A

high.

where injured party can himself testify and describe occurence upon which action is based

47
Q

noseworthy doctrine

A

applied in some cases of amnesia.

requires jury charge explaining lesser burden of proof

48
Q

in commercial context, what type of duty exists when relationship bw parties is such that 1 may justifiably rely upon other for info?

A

duty to speak w care

49
Q

liab for neg misrepresentation in commercial transaction may be imposed where what?

A

there is a special relationship bw parties giving rise to exceptional duty regarding commercial speech and justifiable reliance on such speech

50
Q

whether relationship bw parties is such that reliance is justified is what?

A

a question of fact, w consideration given to whether the person making the representation held unique or special expertise, whether a special relationship of trust or confidence existed bw parties, whether speaker was aware of use to which info would be put and supplied it for that purpose

51
Q

accountant may be liable to party w whom DOESNT have privity of contract where party relies to his detriment on inaccurate financial reports prepared by accountant if?

A

accountant was aware that the financial reports would be used for a particular purpose.
in furtherance of that purpose, known party was intended to rely.
there was some conduct on part of accountant linking him to that party, which evinces accountant’s understanding of that party’s reliance.

52
Q

persons subj to liab for same personal injury, property damage, wrongful death may claim what?

A

contribution.

regardless of whether an action has been brought or judgment rendered ag the person from whom contribution is sought.

53
Q

amt contribution recovered is?

A

excess paid by person seeking contribution over and above his equitable share of judgment recovered by injured party.

54
Q

how are equitable shares determined?

A

in accordance w relative culpability of each person liab for contribution. pl may recover full amt of damages from either, but if 1 def pays entire judgment, he may recover the contribution of other amt from other defendant, by way of contribution

55
Q

cause of action for contribution may be asserted how?

A 
in pending action:
separate action.
cross claim.
counterclaim.
thirparty claim.
56
Q

what is the statute of limitations for contribution?

A

6 years, from payment

57
Q

which law- limitations on claims for contribution in workers comp context?

A

workers comp law

58
Q

employer MUST provide ocmpensation for what?

A

disability or death of employees from injuries arising out of and in the course of employment regardless of wether the employer or employee was negligent.

59
Q

employee’s sole remedy ag employer lies in ?

A

recovery under workers comp law

60
Q

employer NOT liable for contribution or common law indemnification to 3rd party for injuries sustained by employee acting w/in scop of employment unless?

A

employee sustained grave injury

61
Q

what is a grave injury?

A

death.
permanent and total loss of use or amputation of arm, leg, hand, foot.
loss of multiple fingers, toes, index finger.
paraplegia, quadriplegia.
total and permanent blindness / deafness.
loss of nose or ear.
permanent and sever facial disfigurement.
acquired injury to brain caused by external physical force resulting in peramanent total disability.

62
Q

release given to 1 or 2 or more persons liab or claimed to be liab in tort for same injury or wrongful death reduces what?

A

claim of injured party ag other tortfeasors by greatest of amt stipulated in release, amt of consideration paid for release, or amt of released tortfeasor’s equitable share of damages.

63
Q

tortfeasor who obtains his release from injured party is relieved of liability for contribution to whom?

A

any other tortfeasor and waives right to claim contribution from any other tortfeasor

64
Q

what is non economic loss?

A

pain and suffering.
mental anguish.
loss of consortium.

65
Q

def whose proportionate share of fault is 50% or less is liab for what?

A

pl’s non economic loss only to extent of such proportionate share

66
Q

def whose liab is less than 50% is only severally liab for what?

A

claimant’s non economic loss

67
Q

apportionment of fault

A

culpable conduct of any person not a party to action shall NOT be considered if pl is unable w due diligence to obtain jurisdiction over such person.

68
Q

if pl/worker has NOT sustained grave injury, the law precludes what?

A

consideration of employer’s culpable conduct in determining equitable shares.

69
Q

joint and several liability limitations do not apply to whom/what?

A

tortfeasor liab for having violated a nondelegable duty, such as is imposedon owners and contractors by labor law or liab arising under doctrine of respondeat superior.
actions requiring proof of intent- torts of fraud or assault.
persons liab by reason of ownership, use or operation of motor vehicle.
product liab action to apportioned share of manufacturer where manufacturer is NOT a party to action and pl establishes inability to obtain jurisdiction over manufacturer who wouldve been liable under doctrine of strict liab.
if pl/worker sustained grave injruy and sues def claimed liable for injury, to extent of equitable share of pl’s employer.
to persons held liable for causing injury by having unlawfully released hazardous substance into environment.

70
Q

slander not actionable unless?

A

pl suffers special damage

71
Q

slander per se

A

charging pl w serious crime.
tends to injure pl in his trade/business/profession.
pl has loathsome disease.
imputing unchastity to woman.

72
Q

law presumes damages will result from the 4 categories and damaged need NOT be alleged or proven.

A

charging pl w serious crime.
tends to injure pl in his trade/business/profession.
pl has loathsome disease.
imputing unchastity to woman.

73
Q

libel

A

damages are presumed where sttmt charges person with committing serious crime or tends to cause injury to person’s profession or business

74
Q

common law right to privacy

A

NONE

75
Q

use for advertising or trade purposes of name or picture of any living person w/o their written consent is what?

A

misdemeanor

76
Q

person whose name, picture, voice , is sued for purposes of advertising or trade w/o person’s written consent may seek what?

A

injunction.

sue for damages.

77
Q

if person’s picture is NOT used for trade or advertising purpose, butrather in connection w reporting newsworthy event or matter of public interest, statutory right of privacy is what?

A

NOT transgressed

78
Q

pl may recover damages for injuries resulting from prima facie tort, which is what?

A

infliction of intentional harm, resulting in damage, w/o excuse or justification, by act or series of acts which would otherwise be lawful. essential element of cause of action is DAMAGES.

79
Q

comprehensive motor vehicle insurance reparations act / no fault law

A

means of compensating victims of automobiel accidents for economic losses promptly and w/o regard to fault or neglig.

80
Q

no fault law requires what?

A

every owner’s policy of liab insurance issuedon motor vehilce is to provide for payment of 1st party benefits to person injured in use or operation of vehicle, other than occupantsof another motor vehicle or motorcycle.

81
Q

in order to find that injufry was causedin use or operation of vehicle, vehicle MUST be what?

A

proximate cause of injury

82
Q

what is basic economic loss?

A

up to 50k per person of:
necessary medical and related expenses w/o limitation as to time, provided need for such services is ascertainable w/in 1 year of date of accident.
loss of earnings, up to 2k per month for up to 3 years from date of accident.
other reasonable and necessary expenses, up to $25 a day for not more than a year from date of accident.

83
Q

what are 1st party benefits?

A

payments to reimburse injured person for basic economic loss, less 20% of lost earnings and amount paid under state or federal law in disability or workers comp benefits.
insurance law.

84
Q

what is a serious injury in personal injury?

A

one resulting in:
death.
dismemberment.
significant disfigurement.
fracture.
loss of fetus.
permanent loss of use of body organ, member, function, system.
permanent consequential limitation of use of a body organ or member.
significant limitation of use of body function or system.
medically determined injury or impairment of non permanent nature which prevents injured person from performing substly all of material acts which constitute such person’s usual and customary daily activities for not less than 90 days during the 180 days following the accident.

85
Q

every owner’s policy of liability insurance issued on motor vehicle must provide for payment of what?

A

1st party benefits to person injured in use or oepration of vehicle, other than occupants of anoterh motor vehicle or motorcycle.

86
Q

insurer may exclude from coverage a person who?

A

intentionally causes his injury.
injured as result of operating a vehicle while intoxicated or while his ability to operate vehicle is impaired by use of illegal drug.
is injured while in course of felony, while seeking to avoid lawful arrest, while operating vehicle in speed contest, or while operating or occupying vehicle known to be stolen

87
Q

dispute re recovery of 1st party benefits can be resolved through?

A

arbitration or by lawsuit

88
Q

policy of insurance issued on motorcycle MUST provide for payemnt of ?

A

1st party benefits to pedestrian injured by use or operation of motorcycle. no fault coverage is optional for owner and operator of motorcycle.

89
Q

action by covered person ag another covered person for personal injury from neg in use or operation of motor vehicle, NO right to what?

A

recovery for non economic loss, except in case of serious injury or for basic economic loss. insurance law.

90
Q

covered person is?

A 
pedestrian.
owner.
operator.
occupant.
injured through use or operation of motor vehicle.
91
Q

action by covered person ag noncovered person - such as, manufacturer of defective seatbelt

A

basic economic loss is recoverable.
insurer who paid 1st party benefits to reimburse covered person for basic economic loss has lien ag any judgment to extent of benefits paid. insurance law.

92
Q

basic economic loss is or NOT recoverable in action by covered person ag another covered person,

A

NOT.

to extent economic loss exceeds basic economic loss, YES recoverable

93
Q

public entities

A

immune from negl claims arising out of performance of govtl functions, including police protection, unless injured establishes special relationship w entity creating specific duty to protect that individual.

94
Q

when state or other public entity acts in proprietary capacity as landowner, subject to what?

A

same principles of tort law as is private landowner

95
Q

municipality’s duty to provide police protection is a duty which is?

A

owed to public at large and NOT to particular indiv or class of indiv

96
Q

municipality’s provision of police protection is regarded as ?

A

resource allocating function, best left to discretion of policy makers.

97
Q

municipality may NOT be held liab for what?

A

injuries from failure to provide police protection

98
Q

exception to police protection provision

A

when special relationship exists bw municipality and claimant.

99
Q

special relationship definition:

A

assumption by municipality, through promise/action, of affirmative duty to act on behalf of party injured.
knowledge on part of municipality’s agents that inaction could lead to harm.
direct contact bw municipality’s agents and injured party.
party’s justifiable reliance on municipality’s affirmative undertaking.

100
Q

NO action ag municipality.
fire district.
school district.
to recover damages alleged to ahve been sustained by reason of negl or wrongful act of def unless what?

A

notice of claim is served w/in 90 days after claim arises o, in case of wrongful death, 90 days from apptmt of rep of decedent’s estate.

general municipal law.
civil practice and procedure.

NY BAR REVIEW (123 decks)

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