NY Torts

Question 1

IIED (2 & example) :

Answer 1

(1) intent – D must intend the severe emotional distress, or act recklessly re this risk
(2) extreme & outrageous conduct (‘entriely intolerable to civilized society)

EG – intentionally mishandling corpse – (stern)

Question 2

SOL for intentional torts

Answer 2

1 year after cause of injury

Question 3

Conversion (2, three rules)

Answer 3

(1) intentionally commits act of POSSESSION or INTERFERENCE
(2) that is so serious as to deprive P of chattel

Damages = full value at time of conversion 
Mistake NOT a defense 
Rule: good faith purchaser of stolen property MUST BE INFORMED of defect to title before 
		liability can attach (Gallery, eg)

Question 4

Self-defense using non-deadly force:

Answer 4

allowed to use nondeadly force to defend against (1) intentinonal harmful or offensive contact that (2) D REASONABLY believes is about to be inflicted on him

NO duty to retreat

Question 5

Self-defense using deadly force:

Answer 5

D may use deadly force only where (1) D has reasonable belief that (2) force sufficient to cause serious bodily injury or death is (3) about (4) to be intentionally inflected upon him.

Duty to retreat if one can do so safely, unless at home/curtilage.

Question 6

SOL negl

Answer 6

3 yrs from negligent act 
	if exposure case, then runs from DISCOVERY (or when should've been discov)
	tolled for minors/ insane
	minor:   3 yrs from 18th birthday
	med mal: 2.5 years**

Question 7

Med mal SOL

Answer 7

2.5 years from act/omission/failure OR last treatment if continuous treatment from act/omission/failure; OR

1 year from discovery of FOREIGN OBJECT in P’s body

Question 8

Negligent supervision tort available?

Answer 8

Only if (a) parent aware of vicious tendencies, or (b) that parent entrusted kid with dangerous instrument

Question 9

Informed consent tort (5, defense)

Answer 9

P must prove that (1) D failed to make a timely disclosure (2) as to the relevant risks and (3) alternatives of a procedure, and that (4) a reasonable person would not have undergone the procedure had the information been disclosused, and (5) that the procedure proximatley caused the injury.

Defense: emergency prevented consent and RP would have consented

Question 10

Drivers/passenger liabilty:

Answer 10

NY does NOT have a guest statute. Drivrs owe same duty of reasonable care to passengers

Question 11

Landowner/possessor of land liability:

Answer 11

No tripartite distinction. Landowner owes a duty to exercise reasonable care in maintaining his property in safe condition to all persons foreseeably at risk. Status as invitee/licensee/trespasser is relevant to whether P is foreseeable P.

Question 12

Collateral source rule:

Answer 12

NY does not follow CL collateral source rule (no reduction). In NY, P’s recovery is reduced by any benefit or payment provided from an outside source.

Question 13

NIED (3)

Answer 13

Recovery allowed in three circumstances: (1) special duty breached (eg hospital misinforms P that mom died); (2) breach of duty of care creates an unreasonable risk of phsyical harm to P (ski lift); and (3) bystander cases: P witnesses injury to an (i) immediate family member, (ii) while P is in zone of danger created by D.

Question 14

Wrongful death, recoverable damages:

Answer 14

pecuniary losses from injury leading to death, including 1. medical/funeral expenses, 2. loss of parental support, 3. loss of guidance, 4. loss o fprobable inhertance, 5. punitive damages. BUT pain and suffering damages are NOT allowed.

Question 15

Medical malpractice re miscarriage or stillbirth:

Answer 15

Rules: (1) No claim for wrongful death of kid, (2) mother can recover emotional distress even without injury if kid dies, (3) no emotional distress recoverable if kid only injured, (4) mom can still sue for doctor’s breach of duty to HER.

Question 16

Vicarious liability for ER/EE (NY):

Answer 16

Follows basic rules. Respondeat superior. Liable for negligent acts of Ees committed in scope of employment (frolic, detour). Generally, not liable for intentional acts, unless use of force part of job.

Remember: analyze the NEGLIGENT HIRING claim. 

Punitive damages available ONLY if ER was grossly negl in hriing employee, general managerial responsibiliteis were delegated to EE, or ER ratified the tortious conduct.

Question 17

VL owner/user of car (NY):

Answer 17

Car owner may be liable for tortious acts of anyone using car with permission. NY permissive use statute provides that: (1) car’s registration is PF evidence fo ownership raising rebuttable presumtpiont that dirver operated with owner’s permission, (2) person borrowing need not be driving, loading/unloading is enough, (3) owner NOT VL for intentional torts of driver.

Question 18

5 categories of VL in NY:

Answer 18

EE-ER, owner-driver, parent-child, bar owner-patron, municipality-police.

Question 19

Parent-child VL:

Answer 19

parental liability limited to 5000 for intentional/willful acts of minor children over age 10

Question 20

Dram shop VL:

Answer 20

dram shop act permits TP injured by drunks to recover from seller/server of alochol if : (1) buyer or patron was visibly intoxicated, or (2) habitual drunkard.

Question 21

Municipal immunity, VL, notice (4) :

Answer 21

Limited immunity for traditional gov’t functions (not proprietary acts).

But may have duty if (1) special relationship created bc govt (a)volunarily assumed duty to act wrt discrete group or person, and (b) person relies. 

Where immunity does not apply, VL for torts within scope of employment under respondeat superior, UNLESS (a) City of New York or (b) NYC Housing Auth.  

Notice reqs:  P must file notice to municipality within 90 days, action must be filed within 1 year of end of 90 day period (ie 15 months after occurrence).  Does not apply to workers comp.

Question 22

Multiple Defendants, J&S Rule:

Answer 22

Ds found to be 50% or less at fault are only liable for equitable share of non-economic damages
Rule does NOT apply to car accidents or workers comp

Question 23

NY: Pure or Comparative?

Answer 23

Pure comparative negligence. BUT if P commits serous crime, then recovery is barred. Also, assumption of risk is COMPLET bar.

Question 24

Seatbelt rule

Answer 24

the failure to wear a seatbelt is NOT admissible as evidnce of comparative negligence, only as evidence of failure to mitigate damages.

Question 25

Assumption of risk NY:

Answer 25

Complete bar to recovery. Two forms: (1) express AOR if P had knowledge of specific risk and voluntary agreement to assume risk…. need not be written, (2) primary AOR if (a) risk is obvious to P and (b) inherent in activity, and (c) P voluntarily engages in activity.

BUT agreements disclaiming liability by recreational faciilities are VOID against public policy. 

NY abolished firefighters rule.

Question 26

Firefighter Rule:

Answer 26

abolished in NY (under CL rule prevented recovery by police/fire in line of duty)

rule – PD FD can recover for negligence causing line-of duty injury, BUT not against employers or coworkers

Question 27

NY Scaffold law:

Answer 27

Owners and general contractors SL for height-related injuries (both from falling objects or workers themselves) as a result of improper safety devices. Duty to furnish scaffolding etc.
EXCEPTION: one- to two-family dwellings
EXCEPTION: professional engineers/architects
EXCEPTOIN: P cannot recover if sole proximate cause OR if chose not to use devices

Question 28

Design defect NY:

Answer 28

P must show product was (1) defectviely dsesigned, (2) defect existed when left D’s control, (3) defect caused injury and (4) P used proeduct in reasonably foreseeable manner.
NOT liable if post-sale substantial modification, although there may still be laibility for fialure to warn of dangers of modification

Comparative negligence IS a defense to SL

Question 29

Slander Per Se NY

Answer 29

Special damages must be proven unless slander per se. Untrue statement re sexual orientation is slander per se.

Question 30

Privacy Torts NY:

Answer 30

Recognizes appropriation, BUT NOT intrusion, false light or disclosure.

Question 31

Appropriation of right of publicity re death in NY

Answer 31

Does NOT survive death.

Question 32

Intentional interference with business relations in NY is known as

Answer 32

Inducing a Breach of K

Question 33

Theft of trade secrets:

Answer 33

Ps must prove (1) valid trade secret, (2) not commonly known (3) whose secrecy is preserved, and D used improper means to acquire it (eg sabotage, or breach of confidence by EE)

Question 34

Unfair competition:

Answer 34

(1) business posesses good will consittuing property, and (2) another bisness misappropriates it to compete against the biz.

Question 35

No fault auto insurance, basics (5):

Answer 35

All owners must obtain insurance to cover injury to any person other than person in another car.

No fault insurance covers BASIC ECONOMIC LOSS up to $50,000.

Coverage extends to out of state accidents

Replaces right to sue, with EXCEPTIONS (“SUE”)

No-fault coverage DENIED in certain situations (drunk, eg)

Question 36

Basic economic loss (no-fault scheme):

Answer 36

Coverage up to $50,000, INCLUDING: (1) reasonable medical expenses, (2) 80% of lost wages up to 2000 per month, (3) reasonable and necessary household expenses up to $25 a day, and (4) a $ 2000 death beneift. DOES NOT include emotional suffering.

Question 37

Exceptions when accident victims can sue in tort (no-fault scheme):

Answer 37

No-fault compensation replaces right to bring tort suit, UNLESS “sue”: (a) victim suffered “SERIOUS injury” = death, disfigurement, fracture, or impairment of body parts or functions (90 of 180 days following injury); (b) tortfeasor was UNINSURED motorist, or (c) ECONOMIC loss exceeds $50,000.
If exception applies, P can obtain non-economic damages.

Question 38

No-fault coverage denied if:

Answer 38

(1) P intentionally contributed to own accidents, as when intoxicated, (2) commiting felony, (3) in stolen vehicle, or (4) are uninsured.

Question 39

Minimum mandatory liability policy:

Answer 39

25/50/10 coverage (1) $25,000 for bodily injury to one person, (2) $50,000 for bodily injury to all persons, and (3) $10,000 for property damage.

Question 40

Workers’ comp NY:

Answer 40

No-fault coverage that precludes tort action
NOT available to intoxicated EEs or EEs who deliberately injure themselves
Coverage includes: medical expenses, wage replacement, BUT NOT noneconomic damages
Tort suit CAN be brought by EE “gravely injured” ie permanent disfigured or disabled
EE can sue TP (not employer)