NY Torts Flashcards

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1
Q

WRONFUL DEATH - MEASURE OF RECOVERY in NY

A
  • LOSS OF CONSORTIUM
  • IN NY, Not recoverablein wrongful death actioins butpunitive dmgsare recoverable by personal rep of decendent
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2
Q

TORT IMMUNITIES
Family, State/Municipal Govt and Proprietary Functions

A
  • No Intra-Family Tort Immunity
  • No Immunity for Proprietary Functions or where a Special Rel’ship Exist w/ state/municipality. Otherwise immunity for govt. functions.
  • If activity is prioprietary –> liability can be impose according ordinary tort principles.
  • NOTE: Close Q.
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3
Q

LOSS DISTRIBUTION SCHEMES
Comparative fault & Contributory Negligence.

A

Contribution – all tortfeasors pay equal amt regardless of amt of fault

  • Defense = P was Contr. neg.
  • “Unit rule” – P’s fault must be less than all tortfeasors together

Pure Comparative – P can recover damages even if he was contributorily negligent

Modified/Partial Comparative – P can only recover if he is less at fault than D (i.e. less than 50%)

Collateral Sources Rule = $ paid by insur. co. does NOT reduce recovery

➩ Only applies to tortfeasors suing each other so if 3rd party injured, he can recover total damages against 1 of the tortfeasors alone.

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4
Q

NY TORTS SUBJECTS
REQUIREMENTS for VALID GIFT

A

INTER VIVOS GIFT

TEST:

  • Did the Donor (1) have SUBJECTIVE Donative INTENT?
    • DONATIVE INTENT- Desire to pass title, not merely to turn over possession
  • (2) Did the Recipient ACCEPT the gift?, and
  • (3) Was there a VALID DELIVERY? (objective component)
    • Silence is usually valid acceptance – only time no acceptance is explicit rejection
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5
Q

NY TORTS SUBJECTS
REQUIREMENTS for GIFT & 4 Special Delivery Requirements.

A

INTER VIVOS GIFT

TEST:

  • Donor (1) must have SUBJECTIVE Donative INTENT
    • DONATIVE INTENT- Desire to pass title, not merely to turn over possession
  • (2) Recipient must ACCEPT the gift, and
  • (3) Must have a VALID DELIVERY (objective component)
    • Silence is usually valid acceptance – only time no acceptance is explicit rejection

4 Special Delivery Requirements:

  • Checks – check must be cashed so donor can stop pmt
  • 3rd party checkdonor endorses & turns over
  • Stock certificates - delivered when handed over
  • Agents:
    • **Donor’s Ag **- Final delivery only when agent gives up the object
    • Donee’s Ag: – Complete delivery when left w/ agent
  • Gifts Causa Mortis - need *evidence that there was an IMMINENT RISK of DEATH *that is objectively LIKELY to occur & donor MUST DIE
    • Gift is invalid if the Donee dies first.
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6
Q

NY TORTS SUBECTS
Bailments - Definition, Scope of Liability, Exceptions, Common Items

A

BAILMENT: Voluntary transfer of item to someone else (w/o giving up title) for a TEMPORARY PURPOSE

  • Bailee must take reasonable prudence of care.

SCOPE OF LIABILITY:

1) Liability for Negligence:

  • IF Sole benefit for Bailor - bailee only liable for gross negligence
  • IF Benefit for Bailee - liability for slight negligence.

2) Exculpatory Clauses – cannot completely disclaim all liability but can cap it – must have effective notice – only okay for ordinary neg. – cannot exculpate self from intentional or gross neg.

3) Smtg w/in the scope of bailment is NOT protected except:

  • Safe Deposit Box – bank is the bailee of the entire contents of the box
  • Parking lots – hand over keys to someone = bailment but if it is park & lock then it is a lease of real estate & they are not responsible.
  • Coat check – normally for any harm done but not smtg like a diamond ring b/c not in scope
  • Gratuitous coat check – liability capped at $200
  • If you pay a fee, claim the value, & get a receipt – they are strictly liable for up to $300 but if there is neg. bailee owes total value of item
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7
Q

NY - LIBEL AND SLANDER RULES - LIBEL PER QUOD

A

LIBEL PER QUOD

Libel Per Quod - Called Libel by Exstrinsic Facts + treated like Libel Per Se.

  • Actionable w/o proof of special damages
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8
Q

NY - LIBEL AND SLANDER RULES - PER SE CATEGORIES

A

PER SE CATEGORIES:

  • BAD BUSINESS MAN
  • UNCHASTE
  • CARRY DISEASES
  • GUILTY OF CRIME
  • IMPUTATION OF HOMOSEXUALITY
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9
Q

NY - LIBEL AND SLANDER RULES - When are special damages required?

A

** NEED SPECIAL DAMAGES WHEN:**

Slander (spoken)

  • Def. on face and NOT IN one of per se categories
  • Def. only by exs. fact and IN a per se category
  • Def. only by exs. fact and NOT IN one slander per se categories

Libel (written)

  • Def. only by exs. fact and NOT IN one slander per se categories
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10
Q

NY - INVASION OF THE RIGHT TO PRIVACY

A

**NO COMMON LAW OF RIGHT TO PRIVACY **

  • BUT APPROPRIATION OF PICTURE/NAME protected by statute + action survives death
  • DEFENSES
    • Prior written consent
    • Photographer exhibition before notice of objction
    • Goods of literary/musical/aritistic production
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11
Q

NY ASSUMPTION OF DUTY TO ACT - GOOD SAMARITAN STATUTE
Licensed Health Professional

A

_Licensed Health Professional _

Only liable for gross negligence if gratuitously and voluntarily helps at scene of accident

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12
Q

NY TORTS SUBJECTS
Liens - Purpose, Requirements for Creation & Types

A

LIEN

Security device in a particular item(s) of personal property to enforce a debt.

3 REQ. FOR CREATION:

  • (1) Debt relates to services performed,
  • (2) Debtor has legal title,
  • (3) Creditor will have possession of the item

TYPES:

  • Special lien - right to retain a particular item b/c a particular repair was performed on that item - if creditor releases the item then the lien ends – not the end of the underlying debt, though.
  • General lien - right to retain a whole bunch of property for a general balance due – if 1 item released, does not release whole lien
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13
Q

NY TORTS SUBJECTS
Workers Compensation - Description, Scope of Liability and Limits

A

Worker’s Compensation

  • Statutory insurance scheme, which makes insurance the exclusive remedy of employees injured on the job w/ respect to the employer.
  • Employer is essentially strictly liable (w/ insurance co paying) regardless of fault – if on the job injury, then compensation to injured worker
  • But NO TORT LITIGATION and LIMITED LIABILITY (no p&s, no punitive damages)
    • If you die - get statutory amount and funeral damages.
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14
Q

NY TORTS SUBJECTS
No-Fault Insurance - Whose Covered? When Can You Sue? Purpose?

A

Anyone injured by covered vehicle has claim against owners insurance company instead of against the D himself.

  • $50k req. for each car in NY.
  • Owner, passengers, driver, pedestrians hit by car – can all get regardless of whether at fault
  • Except - drunk drivers, drag racers, car thieves, fleeing felons

Can still sue for neg. if:

  • Economic Loss –$50k+ damages = sum of all of your medical expenses, 80% of actual salary but not more than $2k/mo., miscellaneous expenses associated with the injury up to $25/day
  • Serious injury - death, dismemberment, serious disfigurement, serious fracture, permanent loss of a bodily organ or function
    • So P can get both sometimes but NO double recovery.
  • NY no fault applies even if you have an accident in another state.
  • Only applies to personal injuries – not personal property damage – so if your car is banged up you have to litigate or buy collision insurance

➩ Litigation allows a P to recover for pain & suffering unlike no fault.

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15
Q

NY TORTS SUBJECTS
Who is covered by worker’s comp & what type of injuries are covered?

A

1) Employee covered but independent contractors not
* Not covered – Teachers, non-manual labors who work for non-profits, part time domestic or household employees (babysitter, housecleaner), clergy
2) Covered employee can recover for injuries arising out of employment
* o NOT arising from employ. – injury solely due to intoxication of em’ee, em’ee intentionally tries to harm himself or other (stab self in leg), injury occurs in voluntary off-duty athletic event
3) Illegal acts on the job are covered (stealing roof shingles, fall off)

  • Horse play – can go either way, depends on how completely absurd – w/in scope of employment to engage in a little idiocy on the job
  • Injured employees remain free to sue 3rd parties (e.g. manufacturer of machine)
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