NY BAR REVIEW - torts and tort damages 2019

Question 1

what type of negligence jurisdiction are we?

Answer 1

pure comparative

Question 2

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?

Answer 2

recovery

Question 3

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?

Answer 3

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

Question 4

affirmative defense to be pleaded and proved by party asserting defense

Answer 4

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

Question 5

damages diminished in cases of

Answer 5

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

Question 6

participant in sports or recreational activity

Answer 6

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

Question 7

violation of state statute that imposes specific duty

Answer 7

constitutes neg per se

Question 8

violation of municipal ordinance or administrative rule

Answer 8

constitutes some evidence of neg

Question 9

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

Answer 9

absolute liab

Question 10

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

Answer 10

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

Question 11

recreational use statute

Answer 11

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

Question 12

landowner can be found liable for what?

Answer 12

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

Question 13

intra family immunity for non willful torts

Answer 13

defense is abrogated

Question 14

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

Answer 14

actionable

Question 15

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

Answer 15

NOT

Question 16

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?

Answer 16

NOT

Question 17

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

Answer 17

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.

Question 18

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

Answer 18

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

Question 19

neglig infliction of emotional distress

Answer 19

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

Question 20

zone of danger

Answer 20

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

Question 21

pl in zone of danger

Answer 21

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.

Question 22

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

Answer 22

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

Question 23

medical malpractice resulting in miscarriage or stillbirth is what?

Answer 23

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

Question 24

statutory std of care owed to construction workers / labor law

Answer 24

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.

Question 25

what type of liab is imposed under scaffolding law?

Answer 25

absolute

Question 26

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

Answer 26

NOT

Question 27

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

Answer 27

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

Question 28

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

Answer 28

strict

Question 29

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?

Answer 29

comply w various requirements

Question 30

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?

Answer 30

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.

Question 31

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?

Answer 31

negligence

Question 32

drap shop act

Answer 32

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

Question 33

dram shop act requires what?

Answer 33

commercial sale of alcohol

Question 34

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

Answer 34

actual damages. | exemplary damages.

Question 35

what is an unlawful sale in dram shop act terms?

Answer 35

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

Question 36

dram shop liab extends to whom re minor?

Answer 36

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

Question 37

what is furnishing re general obligations law?

Answer 37

participation in deliberate plan to furnish alcohol to underage individuals

Question 38

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

Answer 38

vicarious liab

Question 39

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

Answer 39

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

Question 40

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

Answer 40

NOT

Question 41

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

Answer 41

YES. | parent's liab limited to 5k. general obligations law.

Question 42

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?

Answer 42

personal rep of a decedent's estate

Question 43

wrongful death action damages recovery?

Answer 43

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

Question 44

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

Answer 44

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

Question 45

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

Answer 45

NOT

Question 46

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

Answer 46

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

Question 47

noseworthy doctrine

Answer 47

applied in some cases of amnesia. | requires jury charge explaining lesser burden of proof

Question 48

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

Answer 48

duty to speak w care

Question 49

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

Answer 49

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

Question 50

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

Answer 50

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

Question 51

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?

Answer 51

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.

Question 52

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

Answer 52

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

Question 53

amt contribution recovered is?

Answer 53

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

Question 54

how are equitable shares determined?

Answer 54

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

Question 55

cause of action for contribution may be asserted how?

Answer 55

``` in pending action: separate action. cross claim. counterclaim. thirparty claim. ```

Question 56

what is the statute of limitations for contribution?

Answer 56

6 years, from payment

Question 57

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

Answer 57

workers comp law

Question 58

employer MUST provide ocmpensation for what?

Answer 58

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.

Question 59

employee's sole remedy ag employer lies in ?

Answer 59

recovery under workers comp law

Question 60

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

Answer 60

employee sustained grave injury

Question 61

what is a grave injury?

Answer 61

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.

Question 62

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?

Answer 62

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.

Question 63

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

Answer 63

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

Question 64

what is non economic loss?

Answer 64

pain and suffering. mental anguish. loss of consortium.

Question 65

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

Answer 65

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

Question 66

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

Answer 66

claimant's non economic loss

Question 67

apportionment of fault

Answer 67

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.

Question 68

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

Answer 68

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

Question 69

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

Answer 69

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.

Question 70

slander not actionable unless?

Answer 70

pl suffers special damage

Question 71

slander per se

Answer 71

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

Question 72

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

Answer 72

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

Question 73

libel

Answer 73

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

Question 74

common law right to privacy

Answer 74

NONE

Question 75

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

Answer 75

misdemeanor

Question 76

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

Answer 76

injunction. | sue for damages.

Question 77

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?

Answer 77

NOT transgressed

Question 78

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

Answer 78

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.

Question 79

comprehensive motor vehicle insurance reparations act / no fault law

Answer 79

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

Question 80

no fault law requires what?

Answer 80

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.

Question 81

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

Answer 81

proximate cause of injury

Question 82

what is basic economic loss?

Answer 82

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.

Question 83

what are 1st party benefits?

Answer 83

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.

Question 84

what is a serious injury in personal injury?

Answer 84

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.

Question 85

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

Answer 85

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

Question 86

insurer may exclude from coverage a person who?

Answer 86

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

Question 87

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

Answer 87

arbitration or by lawsuit

Question 88

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

Answer 88

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

Question 89

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

Answer 89

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

Question 90

covered person is?

Answer 90

``` pedestrian. owner. operator. occupant. injured through use or operation of motor vehicle. ```

Question 91

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

Answer 91

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.

Question 92

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

Answer 92

NOT. | to extent economic loss exceeds basic economic loss, YES recoverable

Question 93

public entities

Answer 93

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.

Question 94

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

Answer 94

same principles of tort law as is private landowner

Question 95

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

Answer 95

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

Question 96

municipality's provision of police protection is regarded as ?

Answer 96

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

Question 97

municipality may NOT be held liab for what?

Answer 97

injuries from failure to provide police protection

Question 98

exception to police protection provision

Answer 98

when special relationship exists bw municipality and claimant.

Question 99

special relationship definition:

Answer 99

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.

Question 100

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?

Answer 100

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.