NY Torts Distinctions

Question 1

What is the Statute of Limitations for bringing an intentional tort claim in New York?

Answer 1

No later than 1 yr after the defendant caused the plaintiff’s injury.

Question 2

Intentional mishandling of a _________ is grounds for liability based on IIED.

Answer 2

Corpse

Question 3

What is the Statute of Limitations for bringing a negligence claim in New York?

Answer 3

No later than 3 yrs from the negligent act or discovery of exposure to a harmful substance.

Question 4

What is the Statute of Limitations for a Medical Malpractice cause of action in New York?

Answer 4

No later than 2 yrs and 6 months from the act, omission, or failure complained of; or the last treatment

Question 5

What is the Statute of Limitations for a Medical Malpractice claim when the action is based on the discovery of a foreign object in the patient’s body?

Answer 5

The action may be commenced within 1 yr of the discovery.

Question 6

Does New York allow a cause of action against parents for their negligent supervision of their children?

Answer 6

New York does not generally recognize a cause of action against parents **for negligent supervision **of children unless parent was aware that the child had vicious tendencies.

Question 7

Can a parent my liable for negligent entrustment?

Answer 7

A parent may be liable for negligently entrusting a child with a dangerous instrument.

Question 8

What must a plaintiff prove in order to prevail in an action for malpractice based on lack of informed consent?

Answer 8

• The defendant failed to make a timely disclosure as to the relevant risks and alternatives of a procedure
• A reasonable person would not have undergone the procedure had the withheld information been disclosed; and
• The uncontested-to procedure was a proximate cause of the plaintiff’s injury

Question 9

When will a plaintiff not recover for lack of informed consent?

Answer 9

A plaintiff cannot recover for lack of informed consent when there is an emergency and the consent of neither the plaintiff nor another responsible party can be obtained, and a reasonable person would have given such consent.

Question 10

Does New York have a guest statute?

Answer 10

New York does not have a guest statute. Automobile drivers owe the same duty of reasonable care to guests and passengers.

Question 11

What standard of care does New York impose on Landowners to Persons on their Land?

Answer 11

New York applies the general rule under which the landowner owes a duty to exercise reasonable care in maintaining his property in a safe condition to all persons foreseeably at risk.

The status of the plaintiff as an invitee, licensee, or trespasser may be relevant only to determining foreseeability and what reasonable care might require.

Question 12

How does New York approach the Collateral Source rule?

Answer 12

New York does not follow the common law collateral source rule. In New York, the plaintiff’s recovery is reduced by any benefit or payment provided from an outside source.

Question 13

When does New York allow recovery for negligent infliction of emotional distress without physical injury?

Answer 13

1. A **special duty **is owed to the plaintiff and that duty is breached, but there is no threat to the plaintiff’s safety or fear of personal harm.
2. A breach of a duty of care to the plaintiff that creates an unreasonable risk of physical harm to the plaintiff.
3. Bystander cases: Plaintiff witnesses injury to a/an immediate family member while that plaintiff is in the zone of danger created by the plaintiff.

Question 14

What does New York’s wrongful death statute permit the personal representative of the decedent’s estate to sue for?

Answer 14

• Pecuniary losses due to injury resulting in death
  
  • Medical and funeral expenses
  • Loss of support
  • Loss of parental guidance
  • Loss of probable inheritance
  • Punitive damages
• Non-economic damages are not allowed

Question 15

What claims are available in a medical malpractice case for miscarriage or stillbirth?

Answer 15

• No wrongful death exists on behalf of the deceased child
• Mother can recover emotional distress
  
  • Does not need to show independent physical injury
• If the Child survives - Mother can recover damages based on breach of a duty owed to her by the physician (i.e., a negligence claim).

Question 16

When an employee commits a tort, punitive damages may only be brought against an employer when:

Answer 16

• The employer was grossly negligent in hiring the employee
• General managerial responsibilities were **delegated **to the employee; or
• Employer authorized or ratified the employee’s tortious conduct

Question 17

When is the owner of an automobile liable for the tortious acts of someone else using their automobile?

Answer 17

In New York, the owner of an automobile may be liable for the tortious acts of anyone using the automobile with permission.

Question 18

What does New York’s permissive use statute provide?

Answer 18

• An automobile registration is prima facie evidence of its ownership, raising a rebuttable presumption that the driver operated the vehicle with the owner’s permission.
• It is not necessary that the person borrowing the automobile actually drive it; “use,” including loading and unloading is sufficient.
• The owner of an automobile may not be held vicariously liable for intentionally tortious conduct by the automobile’s driver.

Question 19

How does New York handle Parent-Child vicarious liability?

Answer 19

New York limits parental liability to $5,000 for the intentional and willful acts of their minor children over age 10.

Question 20

What does New York’s dram shop law permit?

Answer 20

New York’s dram shop act permits third parties injured by intoxicated persons to recvoer from the seller or sever of alcohol, based upon proof that the buyer or patron was visibly intoxicated or a habitual drunkard.

Question 21

What types of immunity does New York grant to Municipalities?

Answer 21

Tort immunity attaches to the performance of traditional governmental functions (such as police and court systems).

But there is no immunity when a municipality is performing a proprietary that is traditionally performed by a private company.

Question 22

When is a special relationship created, such that liability may attach to the municipality for acts of either commission or omission?

Answer 22

A special relationship arises when:

• The government entity has voluntarily assumed a duty to act and has acted on behalf of a discrete individual or group; and
• The individual or group relies on the past performance of the duty

Question 23

In what respects does New York follow the common law rule of joint and several liability?

Answer 23

New York departs from the common law rule of joint and several liability for non-economic damages. New York follows the common law rule for economic damages.

Question 24

When is a joint tortfeasor in New York liable for non-economic damages and for how much when he is liable?

Answer 24

In New York, a tortfeasor who is found to be 50% or less liable is responsible for only his equitable share of the plaintiff’s non-economic damages.

Question 25

What are the New York Rules re: Comparative Negligence?

1. Which one has NY adopted?
2. When is recovery never available?
3. What is the **seatbelt rule? **

Answer 25

1. New York has adopted Pure Comparative Negligence
2. Recovery is not available if plaintiff commits a serious crime
3. A plaintiff who fails to wear a seatbelt cannot recover for those injuries that would have been prevented had the seatbelt been worn because of their failure to mitigate damages.

Question 26

What is Express Assumption of the Risk?

Answer 26

Express Assumption of the risk requires proof that:

• Plaintiff had knowledge of the specific rick that resulted in injury; and
• Voluntarily agreed to assume the risk
• Express Assumption of the risk need not be written

Question 27

What is Primary Assumption of the Risk?

Answer 27

Applies to activities involving elevated risk of injury when:

• The risk is obvious to the plaintiff and inherent in the activity; and
• plaintiff voluntarily engages in the activity

Question 28

Can an owner or operator of recreational facilities disclaim liability if the user pays a fee or other compensation for use of the facility?

Answer 28

No, the owner and operator may not disclaim liability my means of contracts, applications, or tickets. Such agreements are void as against public policy.

Question 29

What is NY’s Firefighter Rule?

Answer 29

New York permits recovery by firefighters and police officers against any person, except the officer’s employer or co-workers, for any culpable conduct (negligence and strict liability) for any statutory violation that results in a line-of-duty injury to a firefighter or police officer.

Question 30

What is New York’s Scaffold Law?

Answer 30

New York’s scaffold law makes general contractors and/or owners strictly liable for height-related injuries, whether from falling objects or the workers themselves falling as a result of improper safety devices.

Exceptions:

• Owners of one and two family dwellings
• Professional engineers or architects who do not direct or control the work for activities other than planning and design.

Question 31

In New York, how does post-sale “substantial” modification affect the manufacturer’s liability under a strict products liability claim?

Answer 31

A manufacturer is not liable for post-sale substantial modification of a product by the user that renders the product unsafe under the theory of design defect. May be liable for failure to warn of the dangers of modifying the product.

Question 32

What is a defense to a strict liability products claim?

Answer 32

Comparative Negligence is a defense to strict liability and product liability claims in New York.

Question 33

Which Privacy torts New York recognize and not recognize?

Answer 33

New York does not recognize:

• common law right to privacy
• intrusion
• false light
• disclosure

New York **does **recognize:

• Invasion of privacy tort of appropriation (by statute)

Question 34

What is the tort of interferring with contractual relations in NY called?

Answer 34

Inducing a breach of contract

Question 35

What must the plaintiff prove to recover in a theft of trade secrets claim?

Answer 35

A valid trade secret not commonly known whose secret is preserved and that the defendant used improper means to acquire it.

Question 36

What is a tort for Unfair Competition?

Answer 36

When a business possess goodwill constituting property or commercial advantage, that goodwill is protected from misappropriation by others to compete against the business.

Question 37

New York’s no-fault auto insurance law requires all owners of motor vehicles to obtain liability insurance that covers injury caused to whom?

Answer 37

To any person other than a person in another motor vehicle.

Question 38

No-fault Insurance covers basic economic loss up to $50,000. What is basic economic loss?

Answer 38

• Reasonable medical expenses;
• 80% of lost wages (up to $2,000/month for up to 3 yrs);
• Reasonable and necessary household expenses (up to $25/day); and
• $2,000 death benefit

Does not include non-economic loss

Question 39

When may a plaintiff sue in tort for auto accidents instead of under a no-fault auto insurance claim?

Answer 39

• S - where plaintiff sustains serious injury
• U - against uninsured motorist
• E - economic loss exceeds $50,000

Question 40

What is a serious injury, which allows a plaintiff to sue under tort instead of under a no-fault auto insurance liability claim?

Answer 40

Serious injury consists of the following:

• Death;
• Serious/Significant disfigurement;
• Fracture;
• Permanent or extended loss or impairment of bodily parts or functions

Question 41

New York’s worker’s compensation is no-fault insurance covering employees for what?

What type of losses (damages) does it not cover?

Answer 41

• A - Accidents at the workplace
• D - Diseases contracted because of workplace conditions
• D - Death resulting from workplace injuries

It does not cover non-economic damages (pain and suffering).