NY Torts Flashcards
IIED (2 & example) :
(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)
SOL for intentional torts
1 year after cause of injury
Conversion (2, three rules)
(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)
Self-defense using non-deadly force:
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
Self-defense using deadly force:
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.
SOL negl
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**
Med mal SOL
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
Negligent supervision tort available?
Only if (a) parent aware of vicious tendencies, or (b) that parent entrusted kid with dangerous instrument
Informed consent tort (5, defense)
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
Drivers/passenger liabilty:
NY does NOT have a guest statute. Drivrs owe same duty of reasonable care to passengers
Landowner/possessor of land liability:
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.
Collateral source rule:
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.
NIED (3)
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.
Wrongful death, recoverable damages:
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.
Medical malpractice re miscarriage or stillbirth:
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.
Vicarious liability for ER/EE (NY):
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.
VL owner/user of car (NY):
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.
5 categories of VL in NY:
EE-ER, owner-driver, parent-child, bar owner-patron, municipality-police.
Parent-child VL:
parental liability limited to 5000 for intentional/willful acts of minor children over age 10
Dram shop VL:
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.
Municipal immunity, VL, notice (4) :
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.
Multiple Defendants, J&S Rule:
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
NY: Pure or Comparative?
Pure comparative negligence. BUT if P commits serous crime, then recovery is barred. Also, assumption of risk is COMPLET bar.
Seatbelt rule
the failure to wear a seatbelt is NOT admissible as evidnce of comparative negligence, only as evidence of failure to mitigate damages.
Assumption of risk NY:
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.
Firefighter Rule:
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
NY Scaffold law:
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
Design defect NY:
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
Slander Per Se NY
Special damages must be proven unless slander per se. Untrue statement re sexual orientation is slander per se.
Privacy Torts NY:
Recognizes appropriation, BUT NOT intrusion, false light or disclosure.
Appropriation of right of publicity re death in NY
Does NOT survive death.
Intentional interference with business relations in NY is known as
Inducing a Breach of K
Theft of trade secrets:
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)
Unfair competition:
(1) business posesses good will consittuing property, and (2) another bisness misappropriates it to compete against the biz.
No fault auto insurance, basics (5):
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)
Basic economic loss (no-fault scheme):
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.
Exceptions when accident victims can sue in tort (no-fault scheme):
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.
No-fault coverage denied if:
(1) P intentionally contributed to own accidents, as when intoxicated, (2) commiting felony, (3) in stolen vehicle, or (4) are uninsured.
Minimum mandatory liability policy:
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.
Workers’ comp NY:
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)
