Pieper Torts Flashcards
The word “tort” is commonly understood to mean a
civil “wrong” to another person or person’s property
Included under the rubric of torts is a group of civil wrongs that include “direct inference” with the person such as
1- Assault
2- Battery
3- False imprisonment
Included under the rubric of torts is a group of civil wrongs that include “interference with property rights” such as
1- Trespass
2- Conversion
Included under the rubric of torts is a group of civil wrongs that include various forms of negligence
1- Duty
2- Breach
3- Causation
4- Damages
Included under the rubric of torts is a group of civil wrongs that include disturbance of intangible interests such as
1- good reputation
2- commercial advantage
3- social advantage
What does tort law offer?
Tort law offers redress for interference with persons, property, or intangible interests.
Tort law recognizes that a behavior, which may seem entirely reasonable from the tortfeasor’s point of view, can …
create a risk so unreasonable that the tortfeasor should be held responsible for any injury that the behavior causes.
What is the common thread in tort law?
It is the unreasonable interference with the interests of others.
Why is tortfeasor usually held liable?
The tortfeasor is usually held liable because he or she acted with an unreasonable intention or because he or she departed from a reasonable standard of care under the circumstances.
The law attempts to balance …
Th law attempts to balance the plaintiff’s right to protection from harm caused by the defendant’s actions against the defendant’s right of freedom of action?
Tort liability arises from one of three bases:
(1) Intentional torts
(2) Negligence
(3) Strict Liability
What is an intentional tort
Intentional torts, where the defendant intends to interfere with the plaintiff’s interests
What is negligence
Negligence, is where the defendant fails to use reasonable care
What is Strict liability
Strict liability (“with or without fault”), where the defendant is held liable even absent wrongful intent or negligence.
Torts and crimes share several similar characteristics, but it is important to distinguish between the two to avoid confusion, define criminal law
A crime is an offense against the public at large for which the state, representing the people, brings the proceedings in the form of a criminal prosecution. Criminal law protects the public interest by punishing the offender, removing him permanently or temporarily from society, and by deterring others from imitating him. Although the victim may be called upon by the state or serve as an accuser and witness, the criminal prosecution is not purposed to compensate the crime victim.
Torts and crimes share several similar characteristics, but it is important to distinguish between the two to avoid confusion, distinguish tort actions
In contrast, tort actions are not based in penal statutes and are commenced by the injured person or someone acting on their behalf. They are intended to make the tort victim “whole” again by requiring the tortfeasor to pay compensation for the harm he caused.
An act may be a tort, but not constitute the crime of same name, or vice versa
Tort and criminal law use different burdens of proof, which are
Criminal law, a criminal prosecutor must generally prove guilt beyond a reasonable doubt, while a Tort plaintiff only needs to show a preponderance of the evidence to establish the defendant’s liability
Under what doctrine can a guilty verdict in a criminal action be used against the defendant in a subsequent civil tort action
Under the doctrine of collateral estoppel
Tort law does not usually concern itself with (what social affect)
Tort law does not usually concern itself with punishing the tortfeasor or discouraging others from committing similar offenses.
When will a jury award punitive or exemplary damages in a tort claim
Where the defendant’s wrongdoing is intentional and is so outrageous that it falls outside the realm of acceptable social conduct.
Such damages are not awarded to compensate the plaintiff for injuries, but to punish the tortfeasor and deter others from following his or her example
Elements for Negligence
Negligence is “the failure to exercise the standard of care that a reasonable prudent person would have exercised in a similar situation.”
Thus, when faced with a bar exam question involving negligence, simply ask yourself “was the defendant’s conduct reasonable under the circumstances?
In order to recover for a claim based in negligence, the plaintiff must plead and prove the following three elements:
1- A duty owed and its breach
2- Injury to the Plaintiff, (i.e., actual loss or damage)
3- Proximate Cause
A duty owed and its breach means that
Individuals are legally obligated to conform to a standard of care to act reasonably under the circumstances. The defendant’s failure to conform to the required standard of care constitutes a breach of duty to others.
The “statement that there is or is not a duty begs the essential question–whether the plaintiff’s interests are entitled to legal protection against the defendant’s conduct.”
An injury to the plaintiff (actual loss or damage) means that
A plaintiff asserting a negligence claim must plead or prove an actual physical injury to a person or property.
Once this requirement has been met, the plaintiff may also recover for economic and emotional injury.
What is the general measure of damages for property damage resulting from negligent conduct
is is generally the difference in the market value of the property just before its damage, and its value after the accident, or, alternatively, the reasonable cost of repairs necessary to restore it to its former condition, whichever amount is less
What is the NY and R2d of Torts 928 view on damages recovery?
New York allows a recovery for “the difference between the value of the chattel before the harm and the value after the harm, OR at the plaintiff’s election, the reasonable cost of repair or restoration where feasible, with due allowance for any difference between the original value and the value after repairs.
When will the law, generally, not allow a plaintiff to recover via a negligence claim
When the plaintiff suffers only economic harm or emotional injury without an accompanying physical injury, the law will generally not permit recovery via a negligence claim
Proximate Cause means that
To impose liability, the law requires a reasonably close causal connection between the defendant’s breach of duty and resulting injury. The causation must be more than a simple factual causal connection between the defendant’s tortious conduct and the plaintiff’s injury
It is quite possible to state every question which arises in connection with ‘proximate cause’ in the form of a single question:
Was the defendant under a duty to protect the plaintiff against the event which did in fact occur?
In Palsgraf v. Long Island RR, the court held that
although the LIRR owed a duty of care, it did not extend all the way to the plaintiff.
“If the actor’s conduct creates such a recognizable risk of harm only to a particular class of persons [usually those within the foreseeable zone of danger], the fact that it in fact causes harm to a person of a different class, to whom the actor could not reasonably have anticipated injury, does not make the actor liable to the person so injured.
Duty, generally means
Legal obligation, and in order to establish a negligence claim, the plaintiff must show that the defendant owed a “legal obligation” to the plaintiff
Once this legal obligation is established the duty is always the same:
to use reasonable care to avoid foreseeable injuries to another in light of the apparent risk.
Once the courts recognize that a duty of care is owed, the scope of the duty (to whom it is owed by the defendant) is defined by
The risk of harm that can reasonably be perceived
The existence of the duty is a question of
Law to be determined by the court.
When determining whether a duty exists, courts balance factors, such as
“including the reasonable expectations of the parties and society generally, the proliferation of claims, the likelihood of unlimited liability, and the public polices affecting the expansion of limitation of new channels of liability.”
The court’s ultimate goal is to find a duty that allows recovery where merited while limiting “the legal consequences of wrongs to a controllable degree.”
No duty is owed when the plaintiff is outside the?
no duty is owed by a negligent defendant to persons outside the immediate “Zone of Danger.”
When a legal duty is clearly established then
Then the “Doctrine of Foreseeability” arises, (note that the doctrine of foreseeability does not arise until a legal duty is clearly established).
Only then will foreseeability determine the scope of that duty. However, even when a duty exists, non-liability may be justified on the basis that the injury was not reasonably foreseeable.
New York is in accord with this separation of “duty” and “foreseeability.”
Those who hold themselves out to the public to provide a service, such as e.g., carriers, innkeepers, public warehouses, and public utilities can be liable under the concept of
Liability for nonfeasance
Theoretically, active conduct is that which requires some act
such as striking another
Theoretically, passive conduct is that which
is an omission or failure to act where obligated (liability for nonfeasance)
What is the duty to Aid a Person in Peril
There is no duty to aid a person in danger, even though the result of the inaction is the loss of life.
What is the exception to the “no duty to aid a person in danger”
Where the actor’s conduct–either innocent or tortious–causes the peril, the actor is under a duty to come to the victim’s aid to prevent further harm.
Tort liability for nonfeasance may be found when
The Duty Based on Special Relationships between the parties justifies imposing a duty
Duty Based on Special Relationships
Tort liability for nonfeasance may be found, however, where some special relationships between the parties justifies imposing a duty
When a passenger is injured due to his own negligence, the common carrier must
take reasonable affirmative steps to assist a passenger in peril
A landowner owes a duty to assist a third person when
the landowner is aware that the injured is on he owner’s property, even if the landowner did not cause the injury or invite the intrusion.
Landowners in general have a duty to act in a reasonable manner to prevent harm to those on their property.
In particular they have a duty to control the conduct of third persons on their premises when they have the opportunity to control such persons.
A landowner’s duty to warn of a latent, dangerous condition on his property
is a natural counterpart to his duty to maintain his property in a reasonably safe condition
Schools have a duty to
adequately supervise the students in their charge and are subject to liability for foreseeable injuries proximately related to the absence of adequate supervision. However, schools are not insurers of the safety of their students, perfection in supervision is not required, and schools are not liable for every thoughtless or careless act by which one pupil may injure another
The following relationships give rise to a duty resulting liability
1- Husband and wife owe each other a duty to feed, protect, and go to the aid of the other
2- Parent and child (similar to duty owed by spouses)
3- Where the defendant’s conduct is responsible for the imperiled plaintiff’s situation even where the defendant is without fault
4- Where the plaintiff is injured by an instrumentality in the defendant’s control, the defendant has an affirmative duty to prevent further injury.
5- Where the defendant discovers that a product it has placed into public distribution is defective, it has a duty to notify all potential purchasers and users.
6- Where the defendant established a custom or pattern of action upon which the pubic has grown to rely, the defendant may have a duty of continued action until the public is duly notified that such action will not longer be continued.
In NY and NJ a child does not have a claim against a parent (or foster parent) for
negligence supervision resulting in injury to the child due to the parent’s inattention. This avoids abuse in claims brought by a child estranged from the parent or between estranged parents suing the other on the child’s behalf.
This immunity is very narrow and does not prevent a suit against a parent by a child under circumstances where the child would have had a claim if there was no family relationship, e.g., a child injured by the negligent driving of the parent.
What is the New York approach requiring a manufacturer to warn about dangers
New York imposes a duty upon a manufacturer or seller after a sale to warn of the known dangers. However, New York has rejected a post-sale duty to recall or retrofit the defective product.
What is Government Immunity under the Municipal Tort Doctrine
Generally, under the government immunity doctrine, government entitles are not liable for nonfeasance of their public discretionary duties, e.g., police officers and fire protection. This concept is premised on the idea that because the government owes a duty to everyone (the public at large), it owes a duty to no one. In other words, the public entity owes a duty to the general public and not to specific individuals. Thus, no tort liability is imposed on a public entity for its failure to provide a public service, i.e., discretionary activities undertaken through their agents involving the exercise of reasoned judgment
A governmental agency is not liable for the negligent performance of a governmental function unless
a “special relationship” exists between the injured plaintiff and the government agency.
The special relationship arises/exists between the injured and the government agency in both NY and Multi-state when:
1- There is direct contact between the plaintiff and the government agency;
2- The government expressly or impliedly undertook an act that benefited the plaintiff in a way that was different from the rest of the public
3- The agency knew that its negligent misfeasence could foreseeably harm the plaintiff or her family; and
4- The plaintiff justifiably relied on the agency’s promise or its affirmative undertaking
What is a discretionary act by a municipal employee
Discretionary acts by municipal employees are those that involve the exercise of reasoned judgment producing different acceptable results.
What is a ministerial act
It is an act that requires adhering to a rule or standard with compulsory results.
Under the Court of Appeals ruling that “cast a cloud over the municipal action or inaction in the discretionary / ministerial duty analysis held that
Although the State long ago waived sovereign immunity on behalf of itself and its municipal subdivisions, the common law doctrine of governmental immunity continues to shield public entities from liability for discretionary actions taken during the performance of governmental functions.
Pothole Law
In New York, the law provides that no action may be maintained against a municipality for damages sustained by a defective highway, street, or sidewalk unless a written, detailed notice of the defect was given and the municipality had a reasonable time (fixed in the statute) to repair it.
What are the two exceptions to the Pothole Law in New York
There are two exceptions to the pothole law:
1- The locality created the defect through its affirmative act of negligence which “immediately” resulted in a dangerous condition; or
2- A “special use” of the street or sidewalk conferred a special benefit on the locality.
What does it mean by “Negligence Standard”
The negligent actor does not desire to bring about the consequences that follow his actions, nor does he know or believe that they are substantially certain to follow.
Negligence is not a state of mind but rather conduct producing an unreasonable risk of physical harm to others who foreseeably could be harmed by the defendant’s conduct.
What is the level of risk under the Negligence Standard
There is “merely” a risk that such consequences will follow, which would lead a reasonable person in the same position to anticipate and guard against them.
While there is generally not duty to come to the aid of one in peril, once a rescuer undertakes to render aid or assistance
The rescuer must exercise reasonable care in doing so.
One who assumes to act, even though graciously, may thereby become subject to the duty of acting carefully.
In New York, Good Samaritan statutes
absolve doctors and nurses from liability for negligence (but not gross negligence) in rendering emergency treatment at the scene of an accident.
A physician or nurse giving free advice over the telephone is also held to the standard of reasonable care.
Reasonable Care – Objective Standard
An actor will be judged by what a reasonable person would have perceived and done. The actor’s honest but mistaken (subjective) belief that no damage will result from his actions will not absolve him from liability.
If the norm to be applied were, in fact, subjective, then an innocent injured person might be denied compensation by the party causing the injury
Negligence is defined as the
failure to do what a reasonable person would do under the same or similar circumstances. The conduct of the reasonable person will be judged in light of the situation that confronts them.
The “reasonable person” should be defined as for the negligence standard
The “reasonable person” should have the same physical capacity as the defendant. A person who is blind, deaf, or otherwise physically disabled cannot be required to do the impossible by conforming to a physical standard he or she cannot possibly meet.
In theory, the standard of care remains the same, but it is flexible enough to take physical challenges into account, e.g., did the blind person take such precautions that an ordinary reasonable blind person would take?
What is the Mental Capacity standard and impact on the negligence standard in order to be liable
There is “no allowance made for mental deficiency” related to negligence. Even though the defendant did the best he or she could, there will be no exoneration from liability.
What is the exception to the mental capacity rule in regard to the negligence standard
Where the mental deficiency is so extreme that it prevents the actor from comprehending a danger or taking action to avoid it, the court may find that negligence has not been established.
What is the Children standard (requirement) to be held liable for the negligence standard
Children, although liable for their torts, are not held to the same standard as adults. The standard customarily applied asks the jury to consider a reasonable child of like age, intelligence, and experience.
By applying a subjective standard of care (the capacity of the particular child to appreciate the risk and form a reasonable judgment), courts do precisely what they refuse to do in the case of an adult
Children below the age of our are deemed incapable of negligence (non sui juris) as a matter of law.
What is the affect of Superior Knowledge, Skill, and Intelligence in regard to the negligence standard
If the actor (negligent defendant), in fact, has knowledge, skill, or intelligence superior to that of the ordinary person, the law will demand of him conduct consistent with the enhanced ability.
Professional people and those who undertake any work calling for special skills are required to exercise not just reasonable care, but the level of care reasonable in light of the special skills, ability, and information.
Such is true of physicians, surgeons, dentists, nurses, pharmacists, psychiatrists, attorneys, architects, engineers, accountants, and skilled tradesman
The person will be liable if harm results from his inadequacy.
When is the negligence standard modified
“accordingly” between the plaintiff and defendant
If the defendant represents that she has greater skills than the norm (i.e., she is a specialist), or that she has less skill, and the person (patient) accepts treatment with that understanding, the standard is modified accordingly.
Misrepresentation and Nondisclosure
If the defendant consciously misstates the facts in such a way as to lead the plaintiff to place himself or his property in danger of harm, even though the defendant does not intend such harm, the defendant has acted unreasonably and will be liable for his or her negligent use of such language.
How can misrepresentation occur?
Misrepresentation can occur through both:
1- Verbal communication
2- Non verbal communication
3- Conduct
A person that makes misrepresentations is liable to both
the person to whom the false statement (or equivalent conduct) is made, and to others who may reasonably be expected to be endangered by it.
In states where no guest statute exists, like New York and Multi-state Bar Exam, the duty owed by the operator of a motor vehicle to the passengers is
A duty of “ordinary care.”
Keep in mind that guest statutes still surface on the local portion of the New York and other bar exams as fodder for a conflict of laws analysis.
Tavern Owner Liability
Dram Shop Acts hold that tavern owners who sell liquor to visibly intoxicated persons may be held civilly liable by third parties injured by the purchaser’s subsequent drunken behavior or driving. Note that the duty of care runs to the injured third person, not to the intoxicated driver.
NY Dram Shop Act permits recovery for actual and punitive damages from a defendant who unlawfully provides liquor to a person whose intoxication is subsequently the proximate cause of another’s physical or economic injury inside or outside of New York
The exception to the Dram Shop Law (related to the plaintiff)
2- Where the plaintiff was the injured party from the defendant’s intoxication, if the plaintiff was involved with purchasing drinks for the visibly intoxicated defendant, the plaintiff cannot recover (as a passenger) from the bar under Dram Shop Statutes.
1- knowingly furnishing or assisting in procuring liquor for a person under age 21 [GOL 11-100]
How is the proof of intoxication established for liability under the Dram Shop laws
Proof of visible intoxication can be established by circumstantial evidence, including expert and eyewitness testimony.
Causation (element) of negligence is defined as
Liability for negligence arises only when the defendant’s conduct directly “causes” the plaintiff’s injury. However, determining this “causation” requires one to separate factual, actual, concurrent, and proximate cause and to identify any intervening causes that may result in lesser liability
What is the first step in determining whether a defendant is liable
The first step in determining whether a defendant is liable is finding factual cause: so ask “Was the defendant’s conduct the cause of the plaintiff’s harm? If the plaintiff is unable to prove that his harm actually resulted from the defendant’s negligence, the plaintiff is not entitled to recovery.
Factual cause is also known as
Factual cause is the “BUT FOR” cause of the injury: the plaintiff would not be injured “but for” the defendant’s act.
What is “Proximate Cause” under the negligence standard
Even where factual causation exists between the defendant’s conduct and the plaintiff’s harm, recovery will ONLY be permitted if the defendant’s act was the proximate cause of the harm to the plaintiff.
New York has adopted the “substantial factor” and avoids altogether “proximate cause” because it frequently is confusing to the lay jury.
What are the two basic theories adopted by jurisdictions with respect to proximate cause:
In New York, the defendant is liable only for the harm that was a foreseeable consequence of his unreasonable act. Liability under this theory is limited to the harm a reasonable person using ordinary care under the circumstances would have anticipated as a probable consequence of his act.
Foreseeability of Others’ Negligent Acts means that the original defendant (party that was the first to be negligent)
Will be liable for all of the consequences of his negligent acts as well as those of a third party if the defendant should have reasonably foreseen that his negligence would be followed by the negligence of a third party
What is an example of Foreseeability of Others’ Negligent Acts means that
A negligent defendant who injures a plaintiff may be held liable for the increased harm resulting from medical malpractice by a physician
Danger invites Rescue Doctrine
Many jurisdictions, including New York, hold that a defendant who negligently places herself or another person in a perilous position owes a duty to the person coming to the aid of the imperiled victim. The defendant will be liable to the rescuer as long as the rescuer exercised reasonable care under emergency circumstances in attempting the rescue.
Intervening Causes
An intervening cause is one that takes place “after” the defendant’s negligence occurs. An intervening cause may be foreseeable or unforeseeable.
What is a foreseeable intervening cause?
A foreseeable intervening cause (e.g., a doctor’s malpractice in treating an injury caused by the defendant’s negligence) will not break the “Chain of Causation” and the defendant (original negligent party) will also be liable for those injuries flowing from the intervening cause.
What is an independent intervening proximate cause (or superseding cause)
is one that is NOT reasonably foreseeable by the defendant, such that he or she cannot guard against it. An independent intervening cause sufficiently breaks the chain of causation and nullifies the initial defendant’s liability. This is because the initial negligent act is now too remote to constitute a proximate cause of the plaintiff’s injuries
When is an intervening act deemed to be a superseding cause
A superseding cause and will serve to relieve a defendant (original) from civil liability when the act is of such an extraordinary nature, or so attenuates defendant’s negligence from the ultimate injury that responsibility for the injury may NOT be reasonably attributed to the original defendant.
If the plaintiff is injured while still operating under a residual disability and while exercising proper care, the defendant is liable for both injuries, since the second injury was a foreseeable consequence of the defendant’s negligence
Examples of superseding causes
1- Act of God
2- Subsequent Criminal activity typically is a superseding cause. However, the intervention of a criminal does not absolve the defendant of liability where that criminal activity was reasonably foreseeable.
Proximate cause analysis incorporates a
“Test of temporal duration,” which asks if the “occurrence of the injury was tied to the claimed negligent act or omission within a reasonable lapse of time.
Experience has shown that where a great length of time has elapsed between the actor’s negligence and harm to another, a great number of contributing factors may have operated, many of which may be difficult or impossible to actual proof.
What is the second impact doctrine
It is where the manufacturer of a product will be liable (under a strict product liability theory) for additional injuries incurred when a second instrumentality enhances or aggravates a prior injury, due to a defect in that product. However, the plaintiff must establish that his or her injuries were more severe than they would have been had the product not been defective.
Negligence –according to Pieper Rule paragraph
Negligence is the failure to exercise reasonable care that an ordinary prudent person would have exercised under similar circumstances and which failure proximately caused a physical injury to the plaintiff, and the plaintiff must have been foreseeably threatened by the defendant’s unreasonable conduct
Tort Mnemonics: Rule to plead and prove a prima facia negligence claim a plaintiff must prove (hint DIP)
To establish a negligence claim must prove:
D- DUTY to exercise reasonable care was owed by the Defendant to the injured Plaintiff and the Defendant breached this duty (and for a negligence claim the duty is always to conform to the legal standard of reasonable conduct in light of the apparent risks).
I- Physical INJURIES to the P or his property (damages).
P- Plaintiff’s injuries were PROXIMATELY caused by the Defendant’s breach of duty
Tort Mnemonics: A defendant’s (hint FIT) conduct is unreasonable/negligent when plaintiff was within his foreseeable zone of danger
A defendants conduct is unreasonable/negligent:
F-FAILURE to take reasonable precautions in light of the foreseeable risks
I- INADVERTENCE
T- THOUGHTLESSNESS
Tort Mnemonics: a plaintiff can find res ipas loquitor in a (hint PEA)
A plaintiff can find res ipsa loquitor in a PEA:
P- PROBABILITY that the plaintiff was injured through no fault of his own
E- The defendant had EXCLUSIVE control over the instrumentality that caused the injury
A- ABSENT negligence, the injury would have not occurred
Tort Mnemonics: on the MBE, a landowner will have a different duty to an injured person (which is NOT the rule in NY), depending on whether the person was (hint LIT)
A landowner on the MBE will have a duty to an injured person on his property when the plaintiff is:
L- LICENSEE
I - IMMEDIATE
T - TRESPASSER
Pieper Rule for Duty
Duty –the duty of care owed by one person to another is to behave with that degree of care that a reasonable prudent person would exercise in a similar circumstance
Pieper Rule for Duty (what degree)
The injured party must plead and prove that the defendant owed, not a merely a general duty to act reasonably, but rather owed a “specific duty” to the injured plaintiff
Unlike causation and damages, which are both factual issues to be decided by a jury, which question is left to the court as a matter of law
The question of one member of society owes a duty of care to to reasonably prevent injury to another is a question of law to be decided by the courts.
When is a duty of reasonable care owed by the defendant towards the plaintiff (Pieper Rule)
A duty of reasonable care is owed only to those (plaintiffs) who could be foreseeably injured by the defendant’s conduct, which are those “persons within the zone of danger.”
Cardozo Rule for Negligence
“The risks reasonable to be perceived define the duty to be obeyed.”
This rule prevents subjecting the tortious actor to unlimited liability to an indefinite class of persons injured by a tortfeasor
The damages were not within the contemplation of the parties when the contract is formed
Once a legal “DIP” duty is found to exist the scope of that duty and to whom the duty is owed is based on
Foreseeability of harm, that is a duty is owed only to those who foreseeably could be injured as a result of the defendant’s breach of that duty
Rule: Restatement adopted by NY for land owner who opens his land to the public
A possessor of land owes a duty to make the premises safe, this includes providing outdoor lighting at night to those entering the land when the land is open to the public, such as restaurants, bars, macy’s
If you open your doors to the public then you need out door lighting, but you need to know that someone is coming to the property. Therefore, if you do not know someone is coming to the property, then there is no duty to illuminate, if you are not expecting any one to enter the property
What is the rule in regard to the duty of care a land owner owes for a leased out premise
There is no duty of care owed to an out of possession landlord for injuries occurring on the lease hold, except, if the landlord has contracted to maintain to upkeep the premises
Foreseeability is ONLY used when?
Foreseeability is only used when you first find a duty, in other words, foreseeability will only be applied if you determine the defendant owed a duty to the plaintiff, then you determine what the “scope” of the foreseeable duty is, in other wise, how far does the “zone of danger” go
What is the first step in determining if a defendant owed a duty to the plaintiff
The first step is based on the foreseeability of the circumstances would cause harm or interfere with the plaintiff or the plaintiff’s rights
Constructive notice is
That the land owner should have had notice or under a reasonable prudent person would have known, constructive notice is different than actual notice
What duty does a school assume?
The school assumes the duty of a parent and the school has to act as a reasonable prudent parent, and whether it was reasonable under the circumstances, such as “adequate supervision”
When supervising, what conduct will the supervisor not be liable for
Unknown acts of violence, meaning that if the person just lashed out, and did not have any tendencies to do so, the plaintiff will not be permitted to sue for negligence failure to supervise
Policy decisions by our courts limit liability or impose imitations because
Tort laws are not insurers, and have to prevent only foreseeable risks, not every possible risk like insurance. The policy is that the duty is not as broad as the plaintiff wants it to be
Presumption of Risk is
a duty of care is not owed from one golfer to another golfer, however, you may be able to sue for negligence design. No duty is owed to protect patrons in the theaters when the movie / show started and they trip and fall due to the negligence of the plaintiff
Piper–if there is on physical injury
Then the plaintiff cannot asset a tort claim on economics only
What is the duty of land owners in regard to trees
Landowners have a duty to act reasonably, and should have known or could have known of the possible harm or injury when a tree falls. The landowner has a duty to have the tree inspected annual
What is the analysis of a tree falling?
trees falling need to be determined by an expert, but must be reasonable
What is the duty owed when someone is in peril
There is no duty to go to someone in peril, the multi-state has the same tort law as New York in regard to the no duty rule. There is no duty to warn, except, and unless you bring about the peril, then tort law imposes a duty at that point
What is the Vehicle Traffic Law (VTL) in regard to a driver stopping on a hightway
Rule: VTL states that the driver coming up to the stopped car is liable, there is a VTL law that says a driver cannot stop on a highway, unless it was directed by a police officer or state, directed, otherwise you cannot stop
What is the duty when someone volunteers and assumes a duty to help someone in peril
Even though no duty of care is owed when a person voluntarily assumes a duty, but when a person decides to act, then the person must act as a reasonable prudent person would in accomplishing the task.
When can a person, who volunteered to come to the aid of someone, stop acting
A person may discontinue aiding an injured person provided that the injured person is not placed in a worse condition than before when the volunteer started to act
What is the rule in regard to Drs and Nurses in general, when they see someone in peril
Drs and nurses have NO legal duty (may be ethical) to stop and assist an injured person. However, all 50 states have good samaritan laws shielding them from liability, except for gross negligence (a.k.a. Reckless conduct)
Describe NY’s good samaritan laws
in NY the good samaritan laws are extended to anyone who voluntarily without expectation of compensation, renders medical emergency attention at the scene of an accident
DRAM Shops are
drinks sold by the glass.
What is the liability of serving drinks to someone under 21
Providing to anyone under the age of 21 creates liability to the provider, the key term is “providing,” but the person providing to the under 21 must know that the person was under 21
What is the general rule in regard to the duty owed to control a 3rd person from harming another
Generally, there is no duty owed to control a 3rd person from harming another, however, some defendant’s have a duty to control the conduct of a tortfeasor and protect a plaintiff who could foreseeably be harmed from the tortious conduct of another, such as:
1- A parent owes a duty to protect a child from foreseeable injury, this is where a parent knows the kids are being sexually assaulted, and does nothing about it
2- Common carriers (bus, train, plane) owe a duty of care to passengers and protect them from tortious conduct from the harm of others on the bus, train, plane.
3- A business that opens its doors to the public owes a duty to protect the invitee from foreseeable risks of harm
4- Under the doctrine of respondeate superior
What is the doctrine of respondeate superior
The torts of an employer or agent create vicarious liability for the principal or master, which are imputed to the employer even if the tort was committed by the employee disregarding the employers instructions.
What does an plaintiff have to do in order to recover from an employer for an employee’s negligence, or tort
The plaintiff must prove that the employees tort was:
1- Committed within the scope of an in furtherance of the employer’s business
2- The tort must be closely connected to what the employee was employed to do
Exam answer for how a plaintiff will claim the defendant’s conduct was tortious because
“the objective reasonable person would not (do the specific conduct) under the circumstances and the damages or injury are foreseeable
How do you impose vicarious liability on an employee’s intentional tort
If the employee’s tort is intentional (not negligent) then in order to impose vicarious liability on the employer, the employer “must have authorized discretionary force.” For example, bouncers in a club, or intentional tortfeasor’s act must have been motivated or performed for the interest of the employer.
On the MBE, when answering a Tort question, the general rule in regard to statutes
You must assume that there is no applicable statute unless one is specified. There’s one exception: Where a question involves survival actions and wrongful death claims, you can assume that a statute is available.
what is the approach on the MBE, when answering questions related to joint and several liability, with pure comparative negligence
Assume that the relevant rule applies, unless the fact pattern or instructions state otherwise
Intentional Torts – Strategies and Tactics on the MBE
Intentional Torts
A. Harms to the person, such as assault, battery, false imprisonment, and infliction of mental distress; and harms to property interests, such as trespass to land and chattels, and conversion
B. Defenses to claims for physical harms
1. Consent 2. Privileges and immunities: protection of self and others; protection of property interests; parental discipline; protection of public interests; necessity; incomplete privilege
Negligence – Strategies and Tactics on the MBE
Negligence
A. The duty question, including failure to act, unforeseeable plaintiffs, and obligations to control the conduct of third parties
B. The standard of care
1. The reasonably prudent person; including children, physically and mentally impaired individuals, professional people, and other special classes
2. Rules of conduct derived from statutes and custom
C. Problems relating to proof of fault, including res ipsa loquitor
D. Problems relating to causation
1. But for and substantial causes
2. Harms traceable to multiple causes
3. Questions of apportionment of responsibility among multiple tortfeasors, including joint and several liability
E. Limitations on liability and special rules of liability
1. Problems relating to “remote” or “unforeseeable” causes, “legal” or “proximate” cause, and “superseding” causes
2. Claims against owners and occupiers of land
3. Claims for mental distress not arising from physical harm; other intangible injuries
4. Claims for pure economic loss
F. Liability for acts of others
1. Employees and other agents
2. Independent contractors and nondelegable duties
G. Defenses
1. Contributory fault, including common law contributory negligence and last clear chance, and the various forms of comparative negligence
2. Assumption of risk
Strict Liability: Strategies and Tactics on the MBE
Strict Liability: claims arising from abnormally dangerous activities; the rule of Rylands v. Flectcher and other common law strict liability claims; defenses
Products Liability: Strategies and Tactics on the MBE
Products Liability: claims against manufacturers and others based on defects in manufacture, design, and warning; and defenses
Other torts:
Other Torts:
A. Claims based on nuisance, and defenses
B. Claims based on defamation and invasion of privacy, defenses, and constitutional limitations
C. Claims based on misrepresentations, and defenses
D. Claims based on intentional interference with business relations, and defenses
What are the three most common questions on the MBE related to Tort questions:
1- Questions asking you the plaintiff’s best claim;
2- Questions asking you the defendant’s best defense; and
3- Questions asking you if the plaintiff will prevail
Strategies and Tactics on the MBE negligence claims approach (test) is
A defendant must fail to exercise such care as a reasonable person in his position would have exercised; his conduct must be a breach of duty to prevent the foreseeable risk of harm to anyone in the plaintiff’s position, and this breach must cause the plaintiff’s damages
Strategies and Tactics on the MBE: The purpose of “res ipsa loquitor”
is merely one means of proving a negligence claim: it establishes a prima facie case of negligence “only where direct evidence of the circumstances of the injury is lacking.”
If you have direct evidence of how a negligence result came about, then
you do not apply “res ipsa loquitor”
In order for res ipsa to establish a prima facie case of negligence, what are the three elements to exist:
1- the event causing injury would normally not have occurred in the absence of negligence;
2- the defendant was in exclusive control of the instrumentality that likely caused the injury; and
3- the plaintiff must not have voluntarily contributed to the event causing his injury
E.g., the classic case of the human toe in the sealed can of food
The most common question “asking you if the plaintiff will prevail” is the most difficult type of question because
You are frequently “not told the nature of the claim,” instead you are told only that the plaintiff asserted a claim for damages against the defendant, and you are left to figure out what the claim is (e.g., is it based on negligence, or strict liability?)
One of the MBE Tort approaches to questions is that frequently do not include
Tort questions frequently do not tell you on what facts the plaintiff is basing her claim, it’s important that you be able to determine that from the question. Although the clues from the answer choices as to what the plaintiff’s claim must be, your knowledge of the facts to various elements apply will help you analyze questions quickly and eliminate incorrect responses
Defamation questions on the MBE for Special Damages arise based on a claim of
Defamation. There is only one situation where a plaintiff must prove special damages as part of his defamation claim: when his claim is based on slander and is for a slanderous statement not falling within any of the following four slander per se categories
Defamation: What are the four slander per se categories
- statements accusing someone of a crime;
- statements alleging that someone has a foul or loathsome diseases
- statements adversely reflecting on a person’s fitness to conduct her business or trade; and
- statements imputing serious sexual misconduct to someone (almost always to a woman).
If a plaintiff’s claim does not fall within one of the slander per se categories (four) the plaintiff must
Prove special damages or his claim will fail.
What are Special damages in a Tort claims (defamation)
Special damages are “pecuniary” [economic] damages, e.g., a lost job, inheritance, gift, customer).
When does not a plaintiff have to prove special damages
If a plaintiff’s claim is for libel, or slander per se,. This is a sneaky issue because it is easy to overlook–thus, a perfect basis for the MBE questions
Defamation: Publication means
that the defamatory statement BE COMMUNICATED to someone other than the plaintiff.
What is the approach to determining Publication on an MBE fact pattern
When you are reading a question involving an allegedly defamatory statement, you should, therefore, look carefully at the facts to see if the speaker of the statement spoke in front of someone else. If the speaker did not make his statement to anyone else other than the person claiming defamation, then there’s no actionable defamation claim
One aspect of tort claims in regard to publication that is not applicable is
Strict liability is not permitted; the plaintiff must show that the defendant either “intended” to communicate the statement to a third person or “negligently” publicized the statement to third persons.
On the MBE, in regard to defamation-publication, when is the plaintiff not permitted to recover
In situations where a third person learns of the statement through no fault of the defendant; in this situation, the plaintiff cannot recover damages for the defendant’s statement.
For instance, suppose that a defendant sends a plaintiff a letter making false accusations, the plaintiff receives the letter, and after reading it throws it away, then someone else finds the letter, reads it, and tells others. If the plaintiff uses the defendant for defamation, the plaintiff will lose, even though he’s been harmed, because the others heard the defamatory statement through no fault of the defendant
Defamation is never a
strict liability offense, instead the plaintiff will have to prove, at the very least, negligence with respect to the truth of the statement
When is a defendant not liable under a claim of defamation caused by the plaintiff’s negligence
If a defendant “reasonably (but erroneously) believed the statement was true, the defendant cannot be liable for negligence, and he therefore cannot be liable for defamation, even if the plaintiff is a private figure suing over a private matter
If the plaintiff is a public figure, or the issue is of public interest, the plaintiff has more to prove; in order to prevail, and
the plaintiff must show that the defendant “knew” the statement was false or evidenced a “reckless disregard” for the truth or falsity; proving negligence wouldnt be enough to prove reckless disregard; only if the defendant in fact “entertained serious doubts” about the statement’s truth will publication constitute reckless disregard of truth or falsity.)
Truth on the MBE is a
Complete defense to defamation; but Truth is not a defense to invasion of privacy
Invasion of privacy is not a tort itself, but, rather, is an “umbrella” tort covering four separate, distinct claims:
(1) appropriation of plaintiff’s personality for a defendant’s own commercial advantage; (2) intrusion on a plaintiff’s affairs or seclusion; (3) publication of facts that place a plaintiff in a false light; and (4) public disclosure of private facts about a plaintiff.
A statement’s truth is the essence of the damage in most
1- invasion of privacy claims
A statement’s falsity is the essence of damage in most
defamation claims, and the falsity is the “linchpin” of a defamation claim
On an MBE question, in order for a strict liability response to be valid the fact pattern must include
The easiest way to avoid the strict liability trap is to remember that the fact pattern must not just include the “elements” of strict liability, but also its sources. If a fact pattern does not address the sources, then strict liability cannot be the basis of a defendant’s liability
Like negligence, strict liability requires proof of
Duty, breach, causation, and damages.
What is the standard of duty when bringing a strict liability claim
Unlike negligence, strict liability involves an ABSOLUTE duty, not a duty of reasonable care.
What are the three ways a defendant can be strictly liable (i.e., liable without regard to fault or intent)
- By keeping a wild animal
- By conducting an “abnormally dangerous activity; or
- By “selling a defective product (strict products liability)
When will strict liability be imposed by case law or statute
Only when the question supplies the statute or cases, and you have to just recognize that, and apply what the statute or case law gives you
What is the test imposed when determining one of the three sources of strict liability related to Animals
Animals is easy to spot, if someone has a skunk, chimpanzee, elephant, or other “exotic pet” (and it need not be one you would consider dangerous); it need only be non-domesticated, and the pet causes damages of the sort that makes the species wild, the owner will be liable, no matter how careful he was about keeping the thing penned up. That’s because, with strict liability, it does not matter how careful one is—the duty is “absolute”. Also, even if a pet is domesticated, if the owner has reason to know its dangerous (e.g., its bitten someone before), then the owner will be liable
What is the test imposed when determining one of the three sources of strict liability related to abnormally dangerous activities
An abnormally dangerous activity, is one to handle carefully. It’s easy to mistake any dangerous activity for an abnormally dangerous one. You may find it helpful to remember that abnormally dangerous activities are ones that “cannot be performed with complete safety no matter how much care is taken—that is why they are a source of strict liability.
Common abnormally dangerous activities include the use of …
1- Use of pesticides
2- Use of explosives, blasting and excavating
By contrast, transmission of electricity is not generally considered abnormally dangerous
What is the test imposed when determining one of the three sources of strict liability related to defective products
The third source–defective products–is just garden-variety strict products liability (also known simply as “products liability”).
What is the list of all the important things you need to know about strict product liability for the MBE:
- DEFECT: The product must have been defective;
- CONTROL: The defective condition must have existed when the product left the defendant’s control;
- CHANGES: The product must not have been expected to undergo significant changes before it got to the user (or, it must not actually undergo significant changes);
- BUSINESS: The seller must be in the business of selling the product (that is, he cannot be a casual seller or a user, even one who uses the product while performing a paid service that does not incorporate a transfer of the product);
- CAUSATION: Damage must result from the defect (a defendant is liable for any harm to persons or property);
- NO PRIVITY: The defendant’s duty extends to anyone foreseeably endangered by the product (this means there is no “privity requirement”)
Mnemonic: CCC BoND (Control; Changes; Causation; Business; No privity; Defect)
In products liability cases, strict liability can be the easiest type of claim to prove because
The defendant can be liable for defects created by those who came before him in the distribution chain, and the plaintiff does not have to prove any lack of care.
Strict liability is generally hard to prove because
It applies only to a very limited number of situations
No matter what type of strict liability question you are examining, do not forget the
Proximate cause requirement. Remember what strict liability was designed to do: compensate for damage caused by the extraordinary risks created by certain enterprises.
if the consequences are outside the extraordinary risk that created absolute liability, the defendant will not be liable.
Products liability: you must remember that there are actually three different ways in which someone who makes or sells a product can be held liable for injuries the product causes.
It is not the only the basis of liability for harm caused by products; but the three ways are: (1) strict products liability; (2) breach of warranty; and (3) negligence.
Although products liability is by far the most important of the three, you cannot completely forget about warranty and negligence on the MBE
What is the theory of warranty on the MBE in products liability claims
As for warranty, you should remember that it’s a separate theory of recovery for a defective product–it is “not an element of strict products liability.”
What are the two types of warranties in a products liability claim
1- Express warranty, and 2- Implied warranty
What is an express warranty on the MBE
Express warranties do show up on the MBE (e.g., a vendor furnishes a sample of the products to be sold; that constitutes an express warranty that the products will match the sample). When an express warranty is present, a commonly tested aspect is that a plaintiff who successfully sues someone for breach of warranty is entitled to the “benefit of the bargain.”
Products liability negligence
As for negligence, remember that it is “always available as an alternative theory” when a product hurts someone; therefore, in products questions, you should be aware that negligence might be the correct answer choice. A defendant cannot be liable for product-related negligence, though, unless, at a minimum, the defect was discovered by reasonable means
What is one of the common MBE situations when the purchaser of a defective, unreasonably dangerous product
learns about an available safety device but fails to install it.
If a purchaser finds out about a safety device that should be installed on a product but fails to install it
Then the purchaser may be found to be a fault for failing to install the device. But in a comparative-fault jurisdiction (which is what you were told to assume by default on the MBE), that plaintiff-negligence will at most be reduce, not eliminate, the plaintiff’s recovery. That’s true whether the suit is brought in negligence or strict liability
What is the theory on Privity when brining a products liability claim
When a product liability claim is based on either negligence or strict liability, privity is not an issue, because “anyone” who could foreseeably be endangered by the product can make a claim
What is the liability for other’s fault under a strict products liability claim
An important feature of strict products liability, is that the defendant need not have created the defect–the defect merely has to be in existence “when the product leaves his control.” Thus, a retailer can be liable for a manufacturer-created defect, even if the retailer did not know about it and could not have discovered it.
What is the liability for other’s fault under a products liability for negligence
Under negligence, by contrast to strict liability, the defendant himself “must” have failed to exercise due care in order to be held liable–the defendant cannot be held liable for the negligence of those preceding him in the distribution chain.
What is the liability for other’s fault under a products liability for negligence liable to the defendant
A defendant’s negligence can take a variety of forms. Watch out for any behavior that is characterized as “unreasonable.” Thus, if defendant did not inspect and a reasonable person would have, or if he did inspect but did not find a defect when a reasonable inspection woudl have discovered it, the defendant will be liable, but only because his own conduct has been unreasonable
Defenses to Negligence
Comparative Negligence (New York and Multi-State Rule).
What is the theory of contributory negligence
Under the theory of contributory negligence, even if the plaintiff was 1% at fault, the plaintiff would not be able to recovery, and the contributory negligence barred a plaintiff from recovery.
RULE: Under contributory negligence, the negligence of the plaintiff, no matter how small, completely bars recovery.
Comparative causation is
A more accurate description of the comparative negligence statute because the underlying task in each case is to analyze and compare the causal conduct of each party.
Under CPLR 1411 (Pure form of Comparative Negligence)
in New York, has adopted the pure form of comparative negligence on all causes of action for personal injury, injury to property, or wrongful death, and this theory is not limited to negligence cases.
Define Pure Comparative Negligence
Under a pure comparative negligence statute, (New York rule), a plaintiff can be 99% responsible for his or her own injury, and this comparative negligence will not preclude the plaintiff from recovering 1% of the damages from the defendant.
The modified comparative negligence view applied in the majority of states (35)
Permits the negligent plaintiff to recover damages as long as he or she was either 50% or less liable for his or her own injury. Under this modified comparative negligence theory, a plaintiff will be barred from any recovery if she is more negligent than (or in some states, as negligent as) the defendant.
Depending on the modified comparative negligence jurisdiction:
- The plaintiff may recover only if the plaintiff’s comparative fault does not equal or exceed the defendant’s fault. This is called the “49% rule” (adopted in 13 jurisdictions) because the plaintiff’s fault cannot exceed 49%. Thus, in these jurisdictions, if the jury finds the plaintiff’s fault was 50% or greater, she is prevented from recovering damages; or
- The plaintiff may recover only if the plaintiff’s fault does not exceed the defendant’s fault. This is called the “50% rule” adopted in 20 states, including New Jersey, Connecticut, and Massachusetts
In some modified comparative negligence jurisdictions, where multiple defendants have contributed to the plaintiff’s injury,
the plaintiff’s percentage of fault is compared to each defendant separately.
Other states have adopted the “unit rule,” which
compares the plaintiff’s comparative negligence with all defendants as one unit to determine if the plaintiff’s fault exceeds the fault of all the defendants. The rule is recognized in New Jersey, Connecticut, Massachusetts
Who is comparative fault raised by the defendant
Comparative fault should be raised initially as an “affirmative defense” by the defendant under CPLR 1412 and 3018.
What are the proposed questions for a jury’s special verdict for comparative negligence:
- Was defendant at fault?
- If so, was defendant’s fault a proximate cause of plaintiff’s injuries or damages?
- What is the total damage sustained by plaintiff?
- Was plaintiff also at fault, or did his actions amount to culpable conduct?
- If so, was plaintiff’s culpable conduct a proximate cause of plaintiff’s injuries or damages?
- What percentage of the overall fault or culpable conduct may be attributed to plaintiff?
- What is the sum to be awarded to plaintiff for his damages?
- What is the net damage to plaintiff after applying the comparative percentages of fault to the total injury award.
What is the last chance theory?
The last chance theory doctrine mitigates the harshness of the contributory negligence bar to recovery. It allows a plaintiff full recovery despite his or her own contributory negligence if the plaintiff establishes that the defendant had the last chance to avoid injury to the plaintiff. the last chance rule cannot be invoked unless there is an issue of contributory negligence.
In several jurisdictions that have enacted comparative negligence statutes, courts have held that the last clear chance rule is no longer viable.
To successfully invoke the last clear chance doctrine in contributory negligence jurisdictions, the plaintiff must establish:
- That the defendant was aware of the plaintiff’s presence; and
- The circumstances were such that the defendant could have averted the injury, so that the defendant’s failure to do so constitutes negligence.
- ASSUMPTION OF RISK
a. Implied Assumption of Risk
What is Assumption of Risk–Doctrine of “Implied” Assumption of Risk
A plaintiff who consciously puts herself in a position where she is likely to be injured in the expected course of events is deemed to assume the known risk of injury
In NY a person involved in athletic activities, either as a participant or spectator, the doctrine of primary assumption of risk
is an absolute defense if “a consenting participant is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks.
Primary assumption of risk applies even under less than optimal conditions, such as
- playing on irregular surface is a risk inherent in outdoor sports.
- the assumed risks inherent in skiing have even been codified in NY. GOL 18-101.
NY GOL 18-101 holds that
the statute states that risks created by ice, ruts, and rocks are inherent in skiing, and courts have consistently denied relief to plaintiffs injured by these risks.
As Judge Cardozo put it, (related to assumption of risk)
“One who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary, just as a fencer accepts the risk of a thrust by his antagonist or a spectator at a ball game, the chance of contract with the ball … the timorous may stay at home.”
As an integral part of athletic competitions, persons are generally held by their
actual and implied consents to the risks of “injury-causing events that are known, apparent or reasonably foreseeable consequences of the participation.”
The risk of a security guard, standing in an end zone area getting run over by a professional football player was so “perfectly obvious” that a unanimous Appellate Division dismissed the suit.
However, if the risk assumed was not a factor in causing the injury, than
there will no diminution of damages, and the defendant will be liable
New York limits the defense of assumption of risk to
just primary assumption of risk involving participants or spectators in athletic activities. Otherwise, the defense, in effect, reverts to the old contributory negligence doctrine.
When the doctrine of assumption of risk is not available, the defendant could or should assert
the doctrine of comparative negligence.
NY has not applied the assumption or risk doctrine outside
of primary assumption of risk of athletic participants and spectators and it is clear that its limited application must be closely circumscribed if it is not seriously to undermine and displace the principles of comparative causation. Thus, except for primary assumption of risk, comparative negligence has supplanted that doctrine.
The assumption of risk defense, outside the limited context of spectators or sports participants, has been displaced by the comparative negligence doctrine.
The defense of assumption of risk requires proof that the plaintiff
knowingly placed herself in a position of danger. In order for a defendant to assert the defense of assumption of risk, the plaintiff must have been able to accept or reject the risk, and the decision to do so must have been voluntary.
The assumption of risk is not voluntary (by the plaintiff) and the defense is not available if
the defendant’s conduct has removed all safe and reasonable alternatives
Express Assumption of Risk
In addition to implied assumption of risk, there is also an express assumption of risk resulting from an agreement expressly relieving the defendant from any obligation of due care. This is a complete bar (no comparative negligence) to a plaintiff’s claim.
An exculpatory clause is made known to the plaintiff by
Notice. It is an effective as an express assumption of risk, except when a statute states the contrary or when the defendant’s conduct is reckless.
What is an example of an “exculpatory clause”
A bailee who posts the sign “All Personal Property Left at Owner’s Risk,” and railroad tickets and lease parking lot tickets containing the broadest exculpatory clauses. In these cases, the bailee is attempting to expressly relieve itself of a duty of care to the bailor.
There are numerous exceptions to the general rule of “exculpatory clauses”
- Some states refuse to enforce exculpatory clauses
- NY GOL sections 5-321, 322, 323, 325, and 326 prohibit agreements which attempts to exempt from liability those who engage in various businesses that serve the public, including landlords, caterers, gymnasia, and places of amusement
The UCC 2-219(s) holds that exculpatory clauses to limitations to exclude recovery for personal injuries caused by a
dangerously defective product are prima facie unconscionable
In NY exculpatory clauses are
enforceable, but are not favored, and the courts strictly construe them. NY courts frown upon contracts intended to exculpate people from the consequences of their negligent acts. Although some are enforceable, they are subject to close judicial scrutiny
In NY, unless the party’s express language is unmistakably clear, an exculpatory clause will
not insulate a party from his own negligence
Under the Supremacy Clause of the US Constitution, any conflict between NY GOL and US Admiralty Law
Shall be governed by federal law. Thus, the express, signed release and waiver of liability from a boating accident in “rough” waters that was disclosed, will allow the defendant to dismiss the plaintiff’s claim
In NY if a release from liability did not clearly and unequivocally insulate the defendant’s from liability for its own negligent acts and, thus,
is not enforceable against the negligent acts of the defendants. A release from liability is nevertheless enforceable to the extent it insulates the defendants from liability from an act caused by reasons other than the defendant’s negligence.
Employers may exempt themselves from
liability of wrongs to employees
A common carrier that transports goods or passengers for hire may not
exempt itself from liability
Hospitals have been regularly prohibited from
enforcing exculpatory clauses for negligence
Courts are less likely to up hold an exculpatory clause (in a contract)
where there was an inequality of bargaining power (contracts of adhesion).
Exculpatory contracts cannot be used to diminish or limit one’s liability for injuries resulting from
an affirmative and intentional act of misconduct, such as conversion or battery
A warehouseman or common carrier can limit but cannot totally avoid liability,
so long as it provides the bailor with an opportunity to increase the bailee’s liability by payment of a higher storage fee. UCC 7-204
NY usually requires what language to be included in an express release
The language in the express release must be precise and unmistakably clear, and NY usually requires the word “negligence” to be expressly mentioned.
The fairest course is to provide explicitly that claims based on negligence must be included
A New York agreement releasing a party from “any and all responsibility or liability of any nature whatsoever”
Does not bar a claim based on ordinary negligence.
Although assumption of risk is not a defense to
An intentional tort
Assumption of risk is a defense in an action based on
1- Negligence
2- Reckless conduct
3- Strict products liability
4- Breach of Warranty
The “Emergency Doctrine”
is an emergency situation which may lessen the duty owed by a defendant. The conduct required is that of a reasonable person under the actor’s emergency circumstances.
An emergency is defined as
an occurrence when a sudden or unexpected event or combination of circumstances calls for such immediate action that the actor is left no time for thought, or is reasonably so disturbed or excited that he cannot weigh alternative courses of action and must make a speedy decision based largely on impulse or guess.
An actor will not be found liable under the emergency doctrine when
the actor’s actions taken are reasonable and prudent in the emergency context.
The emergency doctrine is frequently asserted by
drivers being sued by an injured passenger where the driver was faced with an oncoming car or someone unexpectedly runs into the street, and the driver only has seconds to react, and tried unsuccessfully to avoid the accident. Under such conditions, the actor is not held to the same standard of care and conduct as one who had a full opportunity to reflect.
A driver confronted with an emergency situation may still be found at fault when
his or her reaction is found to be unreasonable
When is the Emergency Doctrine NOT available
The Emergency Doctrine cannot be used to excuse an actor who, through his own negligence, created the emergency situation.
If an “emergency” can be reasonable anticipated
Likewise, some “emergencies” can be reasonably anticipated and the actor must be prepared to meet them when he or she engages in an activity in which they are likely to arise, and therefore, the emergency doctrine cannot be used to excuse an actor.
In light of comparative negligence, the viability of the emergency doctrine
has been questioned by some jurisdictions, with a few going as far as to abolish it
What is an example of when the emergency doctrine is not available
When something is well known, and therefore cannot be considered a sudden and unexpected circumstance, such as the sun can interfere with one’s vision as it nears the horizon at sunset, particularly when one is heading west.
Therefore, the court held that the juries can allocate fault and apportion damages and thus, concluded that the better remedy under the circumstances would have been comparative negligence .
Comparative negligence is distinguished from the “outlaw doctrine,” which is invoked against plaintiffs injured in the
course of their criminal activities of a serious nature (joyriding, making a pipe bomb, or committing a burglary).
Under the outlaw doctrine, public policy, a.k.a.
denies the injured person any claim and precludes the jury from apportioning damages. Based on public policy, judicial relief is denied to a plaintiff who was injured while knowingly and intentionally committing serious criminal or illegal acts
Examples of the Outlaw Doctrine, when the plaintiff could not recover
- A burglar injured in a burglarized home from a latent dangerous condition that was known by the homeowner
- A plaintiff injured by an explosion while constructing a pipe bomb.
- A passenger injured while “joyriding” in a stolen vehicle.
- An intoxicated plaintiff injured while participating in a drag race at 100mph
Manning v. Barker test (outlaw doctrine cases) is not
applied if the defendant’s illegal conduct is not sufficiently serious.
Release (at common law as applied in the MBE)
At common law (i.e., absent a statute), a release of one joint tortfeasor effectively released all of the tortfeasors, the party who obtained the release could then sue the other tortfeasors for contribution to share in the cost of the release based on their proportionate share of fault in causing the plaintiff’s injury.
Unless otherwise specified, this is the law to be applied on Multistate, which is the opposite of NY
Release, by statute in NY, have modified the common law release rules so that
A release of one joint tortfeasor does not release all other joint tortfeasors, and the released party cannot seek contribution from the other tortfeasors (nor can the non-settling tortfeasors took to the released party for contribution).
Under NY - GOL 15-108, the plaintiff’s right to recover against other tortfeasors is reduced by either:
1) the amount paid to the plaintiff for the release, or 2) the apportioned share of fault of the released party, whichever amount is greater.
Imputed Negligence –Vicarious Liability
Imputed negligence is imposed where, because of some relationship between A and B, A’s negligence should be attributed to B, even though B has played no part in A’s negligent act and even may have acted to prevent it.
Imputed negligence is more commonly known as vicarious liability. The following are examples of relationships where vicarious liability exists:
1- Master-Servant or Employer-Employer (respondeat superior);
2- Partner-Partner in a partnership
3- Principal-Agent;
4. Automobile Owner-Driver (in certain circumstances); and
5- Co-Owners of realty
In order for an employer-employee to be liable under the doctrine respondeat superior,
the tort of the employee must have been committed within scope of and in furtherance of the employer’s business. Respondeat superior liability extends to acts of employees or agents undertaken in “furtherance” of the employer’s interests, even though these acts were done irregularly or in disregard of an employer’s instructions.
In order for an employer-employee to be liable under the doctrine respondeat superior, Where the tort is intentional,
Where the tort is intentional, the tortious behavior must be calculated to facilitate or promote the business for which the employee was hired, e.g., security guard who injures a patron while removing them from the employer’s premises.
Where the employee’s intentional torts arise purely from the employee’s or agent’s personal motivation (outside the scope of employment)
Then the employee’s intentional torts arise purely from the employee’s or agent’s personal motivation (outside the scope of employment), then the employer is not vicariously liable and the doctrine of respondeat superior is not applicable
An employee (or person) with dangerous propensities can cause an employer to be liable under the doctrine of vicarious liability because
An employer has a duty to reasonable care and refrain from placing a person with known dangerous propensities in a position that would present a foreseeable risk of harm to others. The more contact with the public an employee has, the greater the scope of the employer’s duty.
The tort of negligent hiring is an
Independent tort. Thus, an employer may be liable for an employee’s intentional torts committed outside the scope of employment (e.g., assault, rape, etc.). Here the employer is liable because the employer’s active negligence in placing such an employee in a position to do foreseeable harm was a substantial factor in causing the injury (e.g., hiring a convicted rapist as a security guard at a women’s college).
An employer is not ordinarily liable for the torts of
Independent contractors.
An independent contractor agrees to
perform services for another, but unlike an employee or agent, the independent contractor is NOT “controlled or subject to the right to control in the performance of the undertaking.
What are the “certain exceptions” that exist when an employer is liable for an independent contractor
Such as where the independent contractor performs a “NON-DELEGABLE DUTY” of the employer
New York Labor Law 240 and 241 imposes strict tort liability upon a general contractor and the real property owner
(1) to provide a safe working condition, and to provide safety devices necessary to protect construction workers, or
(2) where the delegated task is inherently dangerous, e.g., keeping vicious animals, working with high tension electrical wires, etc.
Whether a worker is an employee or an independent contractor for vicarious liability purposes, generally, is
a question of fact. The jury will consider, for example, how the worker was:
(1) paid
(2) whether the employer controls the time, place, and day-to-day direction of the work being performed by the independent contractor/employee
Automobile Owner-Driver liability, and by statute, the owner of an automobile, all terrain vehicle, snowmobile, and vessels may be
vicariously liable for the torts of the driver.
The owner of vehicle may also be liable where the owner has
negligently entrusted the car to an unfit driver.
New York imposes vicarious liability upon a vehicle owner for the negligence of the driver who uses the car with
the owner’s permission.
Federal law has preempted this area of NY law for rental cars so that commercial leasing companies (Avis or Hertz) are no longer vicariously liable for the negligence of the lessee of the car
Co-owners of Realty (tenants in common, JWROS, Tenants by the entirety between spouses, are
jointly and severally liable for latent dangerous conditions on the realty. A co-tenant’s indivisible right to possess all of Blackacre translates into a duty to maintain the premises in a safe manner.
What is the exception to the Co-owner liability to maintain the premises in a safe manner
If however, the co-tenants enter an agreement to each exclusively occupy part of the property to the exclusion of the other (e.g., one co-tenant lived on the second floor and the other lived on the first floor), then each is treated as a landlord out-of-possession and each is not liable for the dangerous conditions of the other’s property.
Res Ipsa Loquitor means in latin
“The thing speaks for itself.”
What does the doctrine of Res Ipsa Loquitor permit
This doctrine permits the finder of fat to find negligence on the part of the defendant even though the plaintiff lacks direct evidence of the defendant’s negligence.
How is Res ipsa pled?
Res ipsa is pled by demonstrating that the object causing harm was under the “exclusive control” of the defendant or his servants, and the accident is such that, in the ordinary course of events, it would have not occurred in the absence of negligence, i.e., the occurrence giving rise to the injury does not happen if those in control of the situation use proper care
The exclusive control requirement under Res Ipsa, as generally understood, is that
the evidence must afford a rational basis for concluding that the cause of the accident was properly such that the defendant would be responsible for any negligence connected with it. The purpose is simply to eliminate within reason all explanations for the injury other than the defendant’s negligence.
Expert testimony related to res ipsa
is admissible to assist the jury on the issue
Conditions necessary for the application of res ipsa loquitur are:
(1) The event (harm) must be of a kind that ordinarily does not occur in the absence of negligence;
(2) The harm must be caused by an agency or instrumentality within the exclusive control of the defendant; and
(3) The harm must not have been due to any voluntary action or contribution on the part of the plaintiff.
Once the elements of res ipsa loquitor are present, the effect of the doctrine is to allow
the plaintiff to present his case based upon circumstantial evidence of the defendant’s negligence. In other words, the plaintiff will survive a motion to dismiss for failure to state a claim or for a directed verdict for failing to prove negligence with concrete evidence
In what type of cases would a plaintiff win a summary judgment or directed verdict under the res ipsa loquitur doctrine
Only in the rarest of res ipsa loquitur cases may a plaintiff win summary judgment or a directed verdict. That would only happen when the plaintiff’s circumstantial proof is so convincing and the defendant’s response so weak that the influence of defendant’s negligence is inescapable
The first condition of res ipsa loquitur is that
The event is such that, in the light of ordinary experience, it gives rise to an inference that someone must have been negligent.
Examples of res ipsa loquitur’s first condition, that in the light of ordinary experience, it gives rise to an inference that someone must have been negligent:
(1) objects such as bricks or window panes falling from the defendant’s premises;
(2) Falling elevators;
(3) Bursting water sprinkler pipes damaging a tenant’s property;
(4) the collapse of structures;
(5) livestock loose on the highway;
(6) The explosion of boilers or other objects under the defendant’s control;
(7) A car rolling downhill shortly after it was parked at a curb;
(8) Defective food in sealed containers;
(9) Scalpels or other surgical instruments left in a patient’s body;
(10) An airplane crash or train crash; or
(11) a customer on a massage table when the masseuse pushed down on his upper body tipping over the table
The second condition of res ipsa loquitur
Is the injury must be caused by an agency or instrumentality within the exclusive control of the defendant
What does exclusive control under the res ipsa loquitur doctrine mean
That “exclusive control” is a relative term, not an absolute. The logical basis for the control element requirement is simply that it must appear that the negligence of which the thing speaks is probably that of defendant and not of another.
In any res ipsa loquitur case where it is equally probable that the negligence was committed by one other than the defendant,
the court must direct the jury that the plaintiff has not proven his case.
the plaintiff’s injury under a claim of res ipsa loquitur must either be traced to
(1) a specific instrumentality or cause for which the defendant was responsible; or (2) it must be shown that defendant was responsible for all reasonable causes to which the accident could be attributed.
The plaintiff in a res ipsa loquitur case is not required to eliminate
with certainty all other causes or inferences, and such standard would be tantamount to making a plaintiff prove a civil case beyond a reasonable doubt.
Where such other causes are equally probable in a res ipsa loquitur claim, there must be evidence to permit the jury
to eliminate them. “the requirement does not mean that the possibility of other causes must be altogether eliminated, but only that their likelihood must be so reduced that the greater probability lies at defendant’s door.
The third condition of res ipsa loquitur
Absence of any action on the part of the plaintiff contributing to the accident, evidence need not show the plaintiff’s inactivity, but merely must remove the inference of the plaintiff’s responsibility.
Even where the plaintiff’s own contribution is left in doubt by conflicting evidence or shared control of the situation (related to res ipsa loquitur doctrine)
it is still possible to apply the principle of res ipsa loquitur under proper instruction to the jury. Under a comparative negligence statute, the plaintiff need not be entirely eliminated as a possible cause, since contributory negligence would not be an absolute bar.
Under the res ipsa doctrine, once the injured plaintiff establishes the three elements there is
no additional requirement that to prove there was actual or constructive notice of the defective condition
Negligence Mnemonic –D.I.P.
D - Duties
I - Injury
P- Proximate Cause
Employers are NOT responsible for their employees tort when:
Where the employees intentional tort arises solely and purely from the employees motivation, “outside the scope of employment” and the intentional tort is not motivated to serve the employer’s interest, then the employee is not vicariously liable
Example of an employers vicarious liability from a employees tort
Messenger on a bike goes thru a red light and hits a pedestrian, so you name the employer, since the messenger was within the scope of the employer’s business.
What actions does an employer have against the employee in a vicarious liability suit
The employer can indemnify or cross-claim against the employee.
Both the Multistate and NY allows the employer to bring an indemnification claim against the employee.
The requirement for vicarious liability is that
the tort by the employee must serve the employer’s own interest
battery is a
harmful or offensive touching
An injured plaintiff’s claim for an intentional tort by en employee, against the employer is based on
the employer NOT exercising reasonable care, hiring, retaining or controlling the employee
Vicarious liability is based on the employer’s active negligence by exposing 3rd parties to foreseeable risk of tortious conduct by the employer’s employees. This liability is separate and apart from passive liability under the doctrine of Respondeat Superior
Negligence –Landowner Liability –Duty Owed to Intoxicated Guest Leaving the Property
It has long been the rule in New York that “landowners in general have a duty to act in a reasonable manner to prevent harm to those on their property.” In particular they have a duty to control the conduct of third persons on their premises when they have an opportunity to control such persons. When a person leaves and enters his car with no assistance from the land owner, the landowner is no longer responsible.
Requiring social hosts to prevent intoxicated guests from leaving their property would inappropriately expand the concept of duty
Negligence –Landowner Liability –Duty Owed to warn of
Latent, dangerous condition on his property is a natural counterpart to his duty to maintain his property in a reasonable safe condition.
Foreseeability should not be confused with
The element of Duty owed
Negligent Hiring
The law is well settled that an employer has a duty to use reasonable care and refrain from knowingly retaining in its employment a person with known dangerous propensities in a position that would present a foreseeable risk of harm to others.
When the retention of an employee may involve a risk of bodily harm to others, the discretion of the government is limited and superseded by the duty to abate the risk of dangers to others.
What is the standard of an employer in regard to negligent hiring
An employer must conduct a reasonable inquiry in evaluating an employee’s past criminal record and may not negligently assign a former convict with a violent history to an unsupervised sensitive position where there is a foreseeable danger to others.
What defenses does an employer have to vicarious liability respondeat superior theories
In a CPLR 3211(a)(7) motion, the defendant successfully moved to dismiss several of the plaintiff’s claims because the employee’s conduct “did not fall within the scope of his employment and therefore, the employer (defendant) is not vicariously liable for his conduct under the theory of respondeat superior
If a defendant successfully argues the defenses afforded under vicarious liability for respondeat superior, what other claims may the plaintiff bring the cause of action under
Theories of:
1- Negligent hiring
2- Negligent retention of the employee
3- Negligent supervision
In order to have valid claims under Negligent hiring, the defendant must have
the defendant location or subdivision was not responsible or play any role involved in hiring the employee that committed the tort
In order to maintain a claim for negligent retention and negligent supervision
The plaintiff must prove that employer was on “notice” about the employees conduct (which was not in the scope or furtherance of the employer’s business), and the employer knew of the tortious behavior but did not take the necessary steps to prevent the wrongful conduct to continue
Employers will be liable for a claim of negligent retention of an employee and not vicarious liability when
The employer is aware that the employee’s intentional conduct caused foreseeable harm to another person, in which the employee’s conduct was outside the scope and interest of the employer’s business, but the employer intentionally retained the unfit employee
Therefore, one you decide that the fact pattern has an employee’s wrongful conduct, which is outside the scope and furtherance of the employer’s business, determine if the employer retained the employee after having notice, if yes, then the employer is liable for either negligent retention or negligent supervision, and NOT vicarious liability
An unexpected altercation by one person against another does
Not generally create liability for the bar owner or school. The exception is that the bar owner or school knew about the individual’s propensity to start fights or attack others.
The bar or school has to be on notice that the person is an issue, and thus notice was a foreseeable tort.
In order for a plaintiff to recover against a school or bar, in which the plaintiff was in an altercation with a person at the establishment
In order to recover the plaintiff must establish that the business or the school is on notice that the violence could occur and it was negligent in protecting its patrons or students
How is the reasonable prudent person standard modified, and when?
The reasonable prudent person with a similar impairment under similar circumstances is determined on whether or not the person’s actions under the same or similar circumstances reasonable in light of her disabilities, and would another person with the same disabilities acted in the same or similar way
When is insanity a defense?
Insanity is a contract and criminal law defense, but it is not a defense to negligence or intentional torts.
How does the defense of insanity affect a claim for negligence or intentional torts
Insanity is not a defense to negligent or intentional torts. However, insanity is a defense when the defendant is sued for punitive damages.
Lack of mental capacity is not a defense in negligent or intentional tort
What is an exception to the objective reasonable prudent person test
The exception to the objective reasonable prudent person test is made for infants, as a matter of law a child cannot be negligent
According to the MBE, at what age does a child have to be in order to be named a defendant in negligent or intentional tort case
According to the MBE, the child’s seventh (7th) birthday
According to New York, at what age does a child have to be in order to be named a defendant in negligent or intentional tort case
According to New York, the child’s fourth (4th) birthday
What is the standard applied to child when determining a prudent reasonable standard
An infant over non-sui-juris age is judged by a quasi-subjective standard based on what would be expected of a prudent child of similar age and experience. (i.e., other nine-year-olds)
Under the MBE, can a parent be liable for negligent supervision?
YES, in the MBE, a child (or legal guardian/parent) can bring a claim for negligent supervision against the negligent parent. For example, if the parent let a minor child play in traffic, the parent can be liable
Under the NY/NJ policies, can a parent be liable for negligent supervision?
NO. In New York and New Jersey, a child (or legal guardian/parent) CANNOT bring a claim for negligent supervision
Negligent supervision can be brought against who
1- Grandparents
2- Aunt, Uncles
3- Schools
Anyone other then legal parents or foster parents or siblings
The rule of two on the MBE, NY and NJ Bar means that you should
When you have two or more parties involved in the fact pattern, you must determine the liability for each party separately and segregate the parties and decide the liability separately
When can a family member (child) sue another family member (parent)–a.k.a know as an intrafamily lawsuit
An intrafamily lawsuit is permitted to allow family members to assert tort claims against other family members if those claims could be asserted outside the family relationship.
The way to determine liability under this fact pattern is too swap out the injured family member and decide if a claim could be brought, if yes, then the family member can bring a claim. Such as a motor vehicle accident
The rule of negligent supervision in NY holds that
In NY a child does not have a legally cognizable claim against a parent for a parent’s negligent supervision that resulted in the child’s own injury. A parents failure (negligent supervision) “to watch out for” a child does not constitute a tort actionable by the child because the parent failed to watch out for the safety. The immunity extends ONLY to siblings and foster parents
In New York, one family member can sue another
for negligence or intentional tort, but a child cannot sue a parent for negligent supervision.
Disability of infancy has what affect on a tort claim
A disability of infancy tolls the tort claim until the minor turns 18, and the now lawful child can bring a claim of negligence
Protection of negligent supervision only applies to
1- parents
2- siblings
3- foster parents
Protection of negligent supervision DOES NOT apply to
1- grandparents 2- baby sitters 3- everyone else 4- Schools 5- other adults (other than parents)
Negligent supervision standard rule is that
Schools, baby sitters and other adults (other than parents) owe a D.I.P. Duty to a child to promote adequate supervision and do not get the protection of negligent supervision of limitations on liability
if a child darts away from anyone other then a party who is exempt from negligent supervision, what are the defenses and alternate claims
If a child darts out from a 3rd person, the 3rd person is not liable under the element of foreseeability, and the darting child was not foreseeable. However, the parent should argue that the 3rd party is liable for negligent supervision
Parents vicarious liability for their children’s torts
Absent a statute, parents are not generally not held vicariously liable for the torts of their children merely because of the parent child relationship.
What are the four exceptions to create vicarious liability for a parent, under a parent-child relationship
The nemonic is S.I.C.K
SERVANT – where a child acts as a SERVANT or agent of the parent; under the doctrine of respondeat superior
INSTRUMENT– where the parent entrusts or knowingly leaves in the child’s possession an INSTRUMENT that in light of the child’s age, intelligence, disposition, and prior experience, creates an unreasonable risk of harm to others
CONSENTS – where the parent knows of a child’s tortious conduct and directs, approves or CONSENTS to the child’s tortious conduct
KNEW – where the parent has the ability to control the child, but fails to exercise the control even though the parent KNEW of the infant’s violent tendencies, which could endanger a 3rd party.
In order to assert a negligence claim a plaintiff must plead and prove
a physical injury to the plaintiff’s body or property
Negligence laws are designed to protect individuals from
physical harm, except for a non-medical professional malpractice.
Negligent claims are not permitted for
non-physical injuries, such as psychological injuries (without physical) or purely noneconomic loss, such as lost profits in the absence of a physical injury
In order to recover for lost profits or economic harm
the plaintiff must have also suffered a physical injury, if there is no physical injury then the plaintiff cannot recover.
What is the purpose of requiring a plaintiff to prove both a physical injury and economic injury under the theories of negligence and strict liability?
The policy argument is to maintain a distinction between tort obligations, such as negligence and strict liability, and contractual obligations and breach or warranty claims
Therefore, there is no economic only claim under a negligence claim
If the fact pattern only indicates purely economic harm, the plaintiff’s remedies are
To sue for an economic claim under a breach of contract between the parties. Therefore, there is no economic only claim under a negligence claim
As a general rule, recovery for negligent performance of a contractual duty is limited to an action for contract, and
that a party to the contract is not liable in tort to non-contracting parties.
such as incidental unintended 3rd party beneficiaries, who are parties that were not named in the contract but benefit from the contract, i.e., snow removal contractors are not liable to the pedestrians that may cross before the snow is cleared
What are the three exceptions the Court of Appeals listed to the general rule that a party to the contract is not liable in tort to non-contracting parties.
There must be DIRECT PRIVITY of contract between the parties
1- Where the contracting party, in failing to exercise reasonable care in the performance of his duties; launches a force or instrument of harm;
2- Where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties; and
3- Where the contracting party has entirely displaced the other’s duty to maintain the premises safely.
What are the three exceptions the Court of Appeals listed to the general rule that a party to the contract is not liable in tort to non-contracting parties, according to Pieper
1- in failing to exercise reasonable care in performing the contract the contractor launched a force or instrumentality of harm, so determine if under the circumstances the contractor created the original harm or hazard
2- The plaintiff detrimentally relied on the contractor’s obligations and duties under the contract, so determine if the injured party was aware of the contract or relationship before or after the plaintiff sustained the injury
3- The contract had completely displaced the responsible party’s duty to safely maintain property. However, some duties that cannot be delegated
What is the rule in regard to recover from pain and suffering
The rule to recover for pain and suffering requires proof that the injured person was conscious and cognitively aware of the pain after the accident.
What is the plaintiff’s threshold burden in regard to recovery under for pain and suffering
Plaintiff’s have the threshold burden of proving consciousness for at least some period of time following an accident in order to justify an award of damages for pain and suffering. The burden can be satisfied by direct or circumstantial evidence.
What kind of evidence DOES NOT satisfy the plaintiff threshold burden of proving consciousness for at least some period of time following an accident in order to justify an award of damages for pain and suffering
Mere conjecture, surmise or speculation is not enough to sustain a claim for pain and suffering damages. Without legally sufficient proof of consciousness following an accident, a claim for conscious pain and suffering must be dismissed
The economic loss doctrine provides that
tort recovery in strict products liability and negligence against a manufacturer is not available to a “downstream” purchaser were the claimed losses flow from damage to the property that is the subject of the contract, and personal injury is not alleged or at issue
Once a plaintiff can establish a personal injury due to the defendants negligence or intentional tort, than the plaintiff’s recovery may include
Both past and future illness, pain and suffering, medical expenses and lost wages
When a plaintiff claims lost earnings, the lost wages must be proven by
A plaintiff claiming lost earnings must prove the actual amount of past earnings by document, income tax or other documentation
When the plaintiff suffers property damage, the plaintiff’s claim for the property damages have to be either
(a) the reasonable lost to repair the property; or (b) the decreased value whichever is less
If the plaintiff’s property that was damaged due to the plaintiff’s negligence was business property, the owner may recover
lost profits incurred in replacing the damaged property
Distinguish the requirements to bring a claim in strict products liability or breach of warranty
For a claim in strict products liability the plaintiff needs a physical injury to the person in order to bring a strict products liability claim, and be able to recover economic injuries
So any claim that does not cause the plaintiff a physical injury, the claim will be a breach of warranty because you only have economic damages. The plaintiff will then sue under contract or privity of contract, which is vertical or horizontal
What legal responsibility and duty does the plaintiff have related to a damages claim
Just as in contract law an injured plaintiff has a legal duty to mitigate tort damages by under going reasonable medical treatment, in which a reasonable prudent person would under take that is not risky or unreasonable
What is the doctrine of avoidable consequences
a reasonable prudent person is required to under go reasonable medical procedures in order to limit recovering money damages for injuries, pain and suffering that the plaintiff could have avoided by reasonable medical care.
Thus if the plaintiff unreasonably delayed in obtaining medical treatment or failed to follow medical advice, which includes missing follow up doctor appointments, not taking medicine in the proper prescribed manner, then the plaintiff cannot recover for the injuries and pain and suffering she experience due to her own consequences
When a plaintiff has a duty to mitigate the damages and avoid piling on recovery under which doctrine
the doctrine of avoidable consequences
Damages do no have to be
FORESEEABLE. The damages do not have to be foreseeable, so the defendant will be liable even though the defendant’s conduct with a plaintiff must be intentional, reckless, or negligent resulting in injuries, damages do not need to be foreseeable because a tortious defendant takes the plaintiff as he or she finds him or her, and the defendant is liable for ALL the resulting injuries, including death, disability or personal injury even the ultimate injury was not foreseeable from the defendant’s conduct.
What is the rule of law about jury’s knowledge of a plaintiff’s immigration status in NY
In NY if an injured plaintiff is an illegal immigrant, the illegal status (plaintiff status) cannot be reported to the jury. The courts have held that the status is irrelevant for the purpose of recovering damages of medical, pain or suffering, and past or future lost earnings.
What is the rule of law about jury’s knowledge of a plaintiff’s immigration status in more conservative states
In more conservative states you can bring up the immigration status to be considered for future earnings because the presumption is the illegal immigrant will return home and receive lower wages.
Assumption of Risk states that
“one is deemed to have assumed, as a voluntary participant, spectator, or even bystander certain risks occasioned by athletic or recreational activity, and to the extent of such an assumption, any legally enforceable duty to reduce the risks of such activity is limited.
Under this doctrine, “one is deemed to have assumed ‘those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation.
The court defines the risk assumed under the Assumption of Risk doctrine to be
“Broad and may encompass risks engendered by less than optimal conditions, provided those conditions are open and obvious and that the consequently arising risks are readily appreciable.”
The complained of hazard, was, in fact, open and obvious to plaintiff and ‘as safe as it appeared to be.”
Assumption of Risk- Golfer
As the Court of Appeals explained, while there is no fixed rule regarding the distance and angle which are considered within the ambit of foreseeable danger, if the distance and angle are great enough they are not within the danger zone as defined by previous cases.
The Court also noted that the doctrine of primary assumption of risk appears to relieve a golfer from having to give a warning before hitting the ball
What are the “Modern Developments” in the Doctrine of Primary Assumption of Risk”
It sets limits on the duty of care owed to participants in sporting and recreational activities by requiring that the existence of a duty be evaluated against a consideration of the risks the plaintiff assumed when he or she elected to participate in the even, and how those assumed risks qualified defendant’s duty of him or her.
What is the result of the Doctrine of Assumption of Risk
the result is that the defendant is relieved of a legal duty to the plaintiff; and being under no duty; he or she cannot be charged with negligence
The application of the doctrine of assumption of risk in golf
provides an additional basis for affordance because it compels us to conclude that the plaintiff assumed the risk of being struck by a poorly-executed shot. 2009
Assumption of Risk – Exculpatory Clause -When is a release not a release
Based on public policy, the general proposition that the law frowns upon an agreement intended to exculpate a party from consequences of its own negligence and requires that such contracts be subject to close judicial scrutiny.
What kind of language is required in a release form that releases the defendant of a negligence claim
Because exculpation provisions are not favored by the law, they are strictly construed against the party relying on them and must be ambiguously expressed in unmistakable language that is clear and explicit in communicating the intention to absolve from negligence the party seeking to be insulated from liability
What type of release forms are “wholly void”
Agreements which purport to grant exemption for liability for gross negligence or deliberate misconduct, no matter how explicitly expressed, are wholly void
When is an agreement that clearly and unambiguously attempts to exempt a party only from liability for ordinary negligence unenforceable
An agreement that clearly and unambiguously attempts to exempt a party only from liability for ordinary negligence will not be enforced by the courts of NY if it is found to violate public policy either by way of conflicting with an overriding public interest or because it constitutes an “abuse a special relationship between the parties, or both.
Examples of special relationships of parties between whom such release agreements have been found by courts to be void include
1- employers and their employees
2- common carriers and their passengers
The court held that release agreements which negates the minimal standard of care for professionals
cannot be justified because to accept such a policy which sanctions an agreement that negates the minimal standard of professional care which have been carefully forged by State regulation and imposed by law, would undermine the purpose of the standards
The Doctrine of Assumption of Risk can take several forms, such as
1- A plaintiff can expressly or 2- impliedly assume the risks of the defendant’s negligent conduct.
An express assumption of risk arises when
a plaintiff expressly releases the defendant’s from the defendant’s future tort liability. Although the law enforces agreements that exculpate a defendant from consequences of the defendant’s own negligence, the plaintiff’s intent must be expressed in unmistakably clear language, i.e., word “negligence” must be expressly mentioned in the release.
What lack of or language in a release will NOT bar a plaintiff from recovering from a defendant
1- Missing words such as “defendant’s own negligence”
2- Agreements to release from any and all responsibility or liability of any nature whatsoever for any loss of property or personal injury will not bar claims based on negligence
NY GOL 5-326 voids an express assumption of risk signed by a recreational “user” of a gym or other place of public amusement ….
where a fee is charged
What is the exception to the NY GOL 5-326 when a public facility or gym is being used and a released is signed
Where the facility is being used for “instructional purposes”
Assumption of Risk - Exculpatory Clause - Infant - Parent’s Signature
A minor is not bound by a release executed by his parent, and is ineffective as against the infant. A release generally extinguishes the parent’s rights because they signed the release
In NY, because of CPLR 1411, assumption of risk is not a complete bar to recovery except in cases involving
(1) express assumption of risk and (2) primary assumption of risk
Express Assumption of Risk is found
when a plaintiff orally or in writing has released another from future tort liability. The release is an express agreement that the defendant does not have to use reasonable care for the plaintiff’s benefit. It serves as a complete bar to a plaintiff’s negligence claim but not to a claim for reckless or intentional conduct
Primary Assumption of Risk is found
where there is an elevated risk of danger, typically in sporting and entertainment events and other activities where the party was perfectly free to engage in the activity or not as he or she wished. Primary assumption of risk negates the duty of care owed by the defendant provided the risk is a foreseeable, customary part of the activity. This “no duty” rule applies only to risks that are common, frequent and expected in a particular sport or act.
When evaluated the facts in a negligence claim, in which the defendant raises the defense of “Primary Assumption of Risk” determine
questions of fact whether defendant’s conduct created risks beyond those inherent in the sport or entertainment that the plaintiff assumed, and that the plaintiff did not assume the additional risks created by the defendant’s conduct
NY GOL 5-326 voids an express assumption of risk signed by a recreational “user” of a gym or other place of public amusement because
Every agreement in connection with “membership application, ticket of admission” or similar writing between the owner or operator of a pool, gymnasium, place of amusement or recreation to which such owner or operator receives a “fee” or other “compensation” for the use of such facilities, which attempts from liability for damaged caused from the negligence of the owner, operator shall be deemed void as against public policy and wholly unenforceable
NY GOL 5-326 states that any release entered into by a pool, gym, place of amusement or place of recreation for which a fee is charged is
Void and unenforceable in New York
When apply NY GOL 5-326, the court will generally focus on
Whether the defendant’s purpose of the facility is being used for “instructional purposes” (as contrasted to “recreational purposes”) if the release is in fact enforceable
What approach does the court take to determine whether a facility is for instructional or recreational for NY GOL 5-326 purposes
In assessing whether a facility is instructional or recreational, courts have examined, inter alia the organization’s name, statement of purpose and whether the money it charges is tuition or a fee for use of a facility.
Be careful because training sessions can be argued as “instructional” in nature, but appear to be ancillary to the recreational activities of the facility.
Assumption of Risk - Recreational Activities, the NY Court of Appeals held that when athletic facilities are involved,
the doctrine focuses on the duty of care owed to participants who engage in voluntary sports activities. The Court concluded that there is no duty of care owed (thus there can be no liability) when consenting participants are aware of the risks, have an appreciation of, and voluntarily assume the risks.
Assumption of risk in this form is really a principle of no duty, or no negligence and so denies the existence of any underlying cause of action
When engaging in a sport or recreational activity, a participant consents
to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from participation, which are risks participants are legally deemed to have accepted personal responsibility for because they commonly inhere in the nature of those activities.
The precedents in court do not go so far as
to exculpate a facility owner’s of ordinary type of alleged negligence that is not associated with the sport or recreational activity
Assumption of Risk–Sports Spectator
As was aptly summarized by Chief Judge Cardozo, the spectator at a sporting event, no less than the participant, “accepts the dangers that inhere in it so far as they are obvious and necessary, “The timorous may stay at home.”
The court defined the duty of care owed by the proprietor of a sporting arena or field to its spectators that
An owner is not an insurer of the safety of its spectators but owes, like any other owner or occupier of land, a duty to exercise “reasonable care” under the circumstances to prevent injury to those who come to watch sporting events
When a fact pattern deals with a plaintiff being injured at sporting arena or field, determine what actions the plaintiff took, such as
Having made the decision to “stand” in an unprotected area. Analyze the plaintiff’s actions and determine if the plaintiff assumed the obvious risk
As a matter of law, a participant in (or at) a sporting event
assumes the risk of injuries normally associated with the sport. Participating in a sporting event, the decedent had consented that the extent of the duty owed to him by defendant was no greater then merely to avoid reckless or intentionally harmful conduct.
What is the “enhanced risk doctrine” related to sports injuries
It is where a co-participant engages in reckless conduct causing injury to another participant. In that situation the duty to avoid reckless conduct is breached. Other factual contexts have given rise to liability for sports injuries under the enhance risk doctrine where the injury proximately resulted from risk enhancing conduct that was not inherent in the sport.
For risk-enhancing conduct to be actionable
the enhancement must be substantial and the culpable conduct unreasonable in light of the circumstances. The risk-enhancing conduct must also be of such a substantial nature as to constitute a breach of duty for it to be actionable.
Breach of Contract – Tort Duty Owed is defined by the NY COA that the proper inquiry
the proper inquiry is simply whether the defendant has assumed a duty to exercise reasonable care to prevent foreseeable harm to the plaintiff.
In the ordinary case, a contractual obligation, standing alone, will impose a duty only in favor of the promisee and intended third-party beneficiaries and mere inaction, without more, establishes only a cause of action for breach of contract.
When can a claim for in action under a contract give rise to tort liability
Inaction may give rise to tort liability where no duty to act would otherwise exist if, for example, performance of contractual obligations has induced detrimental reliance on continued performance and inaction would result not “merely in withholding a contractual benefit, but positively or actively in working an injury.” In such a case, the defendant has undertaken not just by his promises but by his deeds a legal duty to act with due care.
It is the responsibility of the courts to (do what with negligence claims)
In fixing the orbit of duty, “to limit the legal consequences of wrongs to a controllable degree.” The courts’ definition of an orbit of duty based on public policy may at times result in the exclusion of some who might otherwise have recovered for losses or injuries if traditional tort principles had been applied.
Causation - Concurrent Tortfeasors
are defined as multiple tortfeasors, which either acted in concert or contributed concurrently to the same wrong; they are joint tortfeasors, and their wrongs are not independent and successive
Successive tortfeasors are defined as
where multiple tortfeasors’ neither act in concert nor contribute concurrently to the same wrong, they are not joint tortfeasors; rather their wrongs are independent and successive.
What are the liabilities for the initial tortfeasor (defendant) when there are “successive tortfeasors”
Under successive and independent liability, of course, the initial tortfeasor may well be liable to the plaintiff for the entire damage proximately resulting from his own wrongful acts; including aggravation of injuries by a successive tortfeasor.
What are the liabilities for the “successive” tortfeasor (defendant) when there are “successive tortfeasors”
The successive tortfeasor, however, is liable only for the separate injury or the aggravation his conduct has caused.
Certainly, a subsequent tortfeasor is not to be held jointly and severally liable for the acts of the initial tortfeasor with whom he is not acting in concert in every case where it is difficult, because of the nature of the injury, to separate the harm done by each tortfeasor from others
What is the exception to the successive tortfeasor doctrine
Where the nature of the injury is incapable of any reasonable or practical division or allocation among multiple tortfeasors, non-concurrent tortfeasors may be considered jointly and severally liable. There is no evidence upon which a jury could base a finding of distinguishing that either defendant alone inflicted the one injury
Joint and several liability allows
the plaintiff to recovery 100% of the damages from one or all of the defendants, and if only one defendant pays the 100%, then the defendant will sue the other defendants for their portion of the liability
What is the scope of duty to supervise according to the NY COA
The scope of duty to supervise varies according to the circumstances but, in the operation of recreational areas, it does not extend to protecting patrons from “the dangers inherent in the sport so far as they are obvious and necessary.”
The municipalities duties are to provide adequate general supervision did not extend to providing strict or immediate supervision to protect users from obvious risks.
When the plaintiff’s claim for failure to supervise does not establish a prima facia claim, consider bringing a claim on the theory of
the plaintiff acted because of a “justifiable reliance” on the supervisor’s negligent words or acts.
In order to assert a claim for negligent words involving risk of physical harm, there must be
detrimental reliance, for example, “when one familiar with a hazard offers direct assurances of safety to one who is unfamiliar with the hazard and who foreseeably relies upon those assurances.
No liability arises when the defendant’s statements or negligent words are made in circumstances
where reliance (both justifiable or detrimental) is unforeseeable or unjustified
Causation - Independent Intervening Cause permits the defendant to escape liability because
Where the acts of a third person intervene between the defendant’s conduct and the plaintiff’s injury, the casual connection is automatically severed. In such a case, liability turns on whether the intervening act is normal or foreseeable consequence of the situation created by the defendant’s negligence.
In cases arising out of injuries sustained on another’s property, the scope of the possessor or landowner’s duty is defined
by past experience and the “likelihood of conduct on the part of third persons, which is likely to endanger the safety of the visitor
To establish a prima facia case of proximate cause, a plaintiff must show
that the defendant’s negligence was a substantial cause of the events which produced the injury.
What is the standard to determine if there was Independent Intervening Cause
The NY COA held that “it is difficult to understand what measures could have been undertaken to prevent plaintiff’s injury except presumably … surely an unreasonable burden
An intervening act may
break the causal nexus when it is extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant’s conduct.
The act has to be far removed from the defendant’s act, such as (1) extraordinary, (2) and not foreseeable, (3) or preventable (4) in the normal course of events
In order to prevent a defendant from arguing that an intervening act protects the defendant from liability, a plaintiff’s claim needs to prove more than just
Plaintiff presented no evidence other than “mere conclusions, expressions of hope or unsubstantiated allegations that the alleged insufficient [protection, supervision, etc.] was a proximate cause of the plaintiff’s injuries
Causation - Proximate Cause - Summary Judgment is determined by
Where there is any doubt, confusion, or difficult in deciding whether the issue ought to be decided as a matter of law, the better course is to leave the point to the jury to decide.
Furthermore, the precise manner of the accident need not be foreseeable, it is enough that the injuries caused the plaintiff could be foreseeable from the facts in the case
A defense available to a defendant for a negligence claim is that
the plaintiff’s reckless conduct and knowingly aware of the risks, is the “sole proximate cause” of the resulting injuries
To carry the burden of proving a prima facia case, the plaintiff must generally show that the defendant’s negligence was
a substantial cause of the events which produced the injury.
Although it is ordinarily for the trier of fact to determine legal cause, where only one conclusion may be drawn from the established facts the question of legal cause may be decided as a matter of law
Common Carrier - Ordinary Care is Owed meaning that
A Common Carrier is subject to the same duty of care as any other potential tortfeasor – reasonable care under all of the circumstances of a particular case. The court concluded that it simply is not practical or fair to impose a duty upon one to exercise more care than one reasonably can
Damages - Conscious Pain and Suffering - Plaintiff’s burden
Plaintiff’s have the threshold burden of proving consciousness for at least some period of time following an accident in order to justify an award damages for pain and suffering
The burden can satisfied by direct or circumstantial evidence.
When a defendant’s tortuous conduct proximately causes a plaintiff’s death, then the decease’s estate may assert two claims:
(1) the underlying tort claim, e.g., negligence, strict products liability or battery. The proceeds of the tort claim pass into the decedent’s estate and are distributed according to the decedent’s will. Such a recovery is subject to the claims of the decedent’s creditors if the decedent is insolvent.
(2) the wrongful death claim is to recover solely for the economic loss suffered by the intestate distributes. This recovery does not pass into the decedent’s estate but is distributed directly to the intestate distributes according to their economic loss suffered. This recovery is not subject to the estate’s creditors. The state of limitations for such a claim is two years. EPTL 5-4.1
How are reasonable damages calculated for pain and suffering?
In calculating the amounts (on a case-by-case basis) the courts should analyze prior similar amounts recommended in earlier decisions for the same pain an suffering, including the duration of the pain and suffering
Danger Invites Rescue means that
Someone who has tortiously placed himself or another person in peril, is liable for the injuries suffered by one who comes to the rescue of the endangered person. Since the rescue is a foreseeable danger as a result of a tortfeasor’s breach of duty, the resulting injuries to the rescuer are deemed proximately caused by the breached duty.
Justice Cardozo so eloquently defined the Danger Invites Rescue Doctrine as
Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognizes them as normal. It places their efforts within the range of the natural and probable. The wrong that imperils life is a wrong to the imperiled victim; it is a wrong also to his rescuer.
The doctrine of danger invites rescue creates what duty
creates “a duty of care toward a potential rescuer where a culpable party has placed another person in a position of imminent peril which invites a third party, the rescuing plaintiff, that come to his aid, and also to encompass situations where the culpable party has placed himself or herself in a perilous situation which invites rescue
Under the NY GOL 11-100, which imposes liability for injuries caused by intoxicated individuals who have not reached the legal drinking age upon persons who ….
“unlawfully furnishing” alcohol beverages to them. A parent can be held liable under GOL 11-100 if he or she ‘constructively’ furnishes or assists in procuring alcoholic beverages to underage person by specifically, failing to supervise such individuals at his or her residence.
A bar owner can be liable for the actions of a 3rd party defendant, when the defendant suddenly and unprovoked fights and injures the plaintiff
a tavern owners in New York - if you are going to make money by serving liquor to intoxicated patrons who have become belligerent and aggressive, then liability will be imposed on the tavern if the belligerent ones subsequently injure others
GOL 11-101 states that “any person who shall be injured in person, property, “means of support,” or otherwise by an intoxicated person can
sue the one who unlawfully procured or sold the liquor to the intoxicated person.
New York does not extend Dram Shop liability to
a social host who continues to serve liquor to an intoxicated guest
New Jersey, in Kelly v. Gwinell, holds that a social host
who continues to serve liquor to an intoxicated guest can be liable for the injuries caused by the proximate cause of the defendant’s intoxication
The Dram Shop GOL 11-101 provides a strict reading that
“any injured person shall have a right of action against any person for unlawfully ‘selling’ to or unlawfully ‘assisting’ in procuring liquor for such intoxicated person.
The Dram Shop Act has consistently been read by lower courts as applicable only to sales of alcohol for profit – that is COMMERCIAL sales.
That the statute is properly limited to sellers of intoxicating liquors is made plain even by its title: “Compensation for injury caused by the illegal SALE of intoxicating liquor.
In order to determine if a “sale” occurred under the Dram Shop Laws NY GOL 11-101, the court will determine if
The association was engaged in the commercial sale of alcohol as contemplated by the Dram Shop Act. The Association made no direct sales of alcohol, and had no recognizable expectation of pecuniary gain from its social affairs. The availability of beer to co-employees who had chipped in to buy their own food and beverages for a party cannot be considered a commercial sale of alcohol.
What is duties and responsibilities does a landowner have in regard to an intoxicated person on his property
Lower courts have recognized that a landowner may have a responsibility for injuries caused by an intoxicated guest on the ground that a landowner has a duty “to act in a reasonable manner to prevent harm to those on their property”, the court observed that “these decisions have uniformly acknowledged that liability may be imposed only for injuries that occurred on defendant’s property, or in an area under defendant’s control, where the landowner-defendant had an opportunity to supervise the intoxicated guest.
NY GOL Laws 11-100 and 11-101 are an exception to the common law rule
that a person consuming alcohol beverages is solely responsible for injuries caused by his or her own intoxication
NY GOL 11-101 applies only to a commercial sale “knowingly” made to an intoxicated person.
NY GOL 11-100, which extends liability to “anyone” who “knowingly” delivers alcohol to any person under the age 21, sober or intoxicated, and does not require that there be a commercial sale. With knowledge or reasonable cause to believe that such person was under the age of 21, shall be liable to any person proximately injured by the intoxicated person
In order for plaintiffs to prevail on a claim of common-law negligence
there must first be a duty owed by defendant to them. Foreseeability of harm (in NY) alone is not enough. The legal duty must be established
Vehicle and Traffic Law 338(1), which imposes vicarious liability on every vehicle owner whose vehicle is
negligently operated in the state by a person using it with the owner’s express or implied permission
Under VTL 338(1), there is a rebuttable presumption that a driver is using a vehicle with the owner’s express or implied permission, and this presumption prevails until there is substantial evidence to the contrary.
In New York under the VTL law, if a vehicle owner gives expressed permission to use the vehicle (father to son), the the son
may extend this permission by permitting a friend to drive the father’s vehicle, thereby extending the parent’s (owner’s) liability.
Dram Shop Act - Proof of Visible Intoxication, known as the “visibly intoxicated standard”
Liability under the Dram Shop Act (GOL 11-101(1)) prohibits the commercial sale to any “visibly intoxicated person,” e.g., glassy eyes, motor impairment, or difficulty speaking and controlling the level of one’s voice.
The visibly intoxicated standard was specifically crafted to
limit the tavern keeper’s exposure and to preclude the imposition of a regulatory or monetary penalty when “he or she had no reasonable basis for knowing that the consumer was intoxicated”.
The Dram Shop Act applies to commercial sales of alcohol, i.e., “direct sales of alcohol” for
Profit. The event in which alcohol is severed (sold) in order to make profit. The corporate host did not make any direct sales of alcohol and there is no evidence that the provision of alcohol resulted in a pecuniary gain.
In determining whether a statute creates a private cause of action, the court considers the following factors:
(1) whether the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) whether recognition of a private right of action would promote the legislative purpose; and (3) whether creation of such a right would be consistent with the legislative scheme
The Courts of NY have consistently refused to recognize what type of claim related to alcohol
This State has consistently refused to recognize a common-law cause of action against providers of alcoholic beverages in favor of person(s) injured as a result of their own voluntary intoxication…an exception to the common law rule applies to the property owners duty to protect others while on the landowner’s property
Duty to Control Third Parties is determined by
a property owner has a duty to take reasonable measures to control the foreseeable conduct of third parties on the property to prevent them from intentionally harming or creating an unreasonable risk of harm to others.
When does a property owner have a duty to take reasonable measures to control the foreseeable conduct of third parties on the property
This duty arises when there is an ability and opportunity to control such conduct, and an awareness of the need to do so.
What is burden of proof does the defendant have for a summary judgment motion to dismiss a claim for liability under the theory of liability to control a third person
In order to make a prima facia showing as a matter of law, the defendant must submit evidence demonstrating that the defendant did not have the ability and opportunity to control the conduct of the 3rd party, and the defendant had no “awareness of the need to control” the conduct of the 3rd party, who was or may have been under the supervision of another party (not affiliated with the defendant)
Emergency Doctrine Jury Charge - Medical Malpractice
The emergency doctrine jury charge which charges the jury that when a person is confronted by an unexpected and sudden occurrence, she may not be negligent if there was insufficient time to react and to avoid the injury even though it later appeared she did not make the safest or best choice.
It relieves a defendant faced with an emergency who in hindsight failed to exercise her best judgment or that of a reasonably prudent person under normal circumstances
When is defendant entitled to a charge on the emergency doctrine
In viewing the evidence in the light most favorable to that party, there is a reasonable view of the evidence that his or her conduct was the product of a sudden and unforeseeable occurrence not of his or her own making
Determine if the defendant was “trained and prepared for the medical occurrence” during the procedure, therefore, the event is not considered an unforeseen occurrence within the respective field
Emergency Doctrine – Sudden and Unexpected Event
The NY COA has articulated and applied the common-law emergency doctrine which recognizes that when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for though, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken are responsible and prudent in the emergency context, provided that the actor has not created the emergency
The emergency doctrine is not available when
as a matter of law there was no qualifying event which justified issuance of the emergency instruction, such as admitted knowledge that the weather was worsening, the event could reasonably be expected under the circumstances
The doctrine recognizes that a person confronted with such an emergency situation cannot reasonably be held to the same accuracy of judgment or conduct as one who has had full opportunity to reflect, even though it later appears that the actor made the wrong decision.
Emergency Doctrine - Related to the Sun’s Glare
The Sun’s Glare is not an emergency. it is well known, and therefore cannot be considered a sudden and unexpected circumstance, that the sun can interfere with one’s vision as it nears the horizon at sunset, particularly when one is heading west.
This is not to say that the sun glare can never generate an emergency situation, but under the circumstances presented, there is no reasonable view of the evidence under which sun glare constitutes a qualifying emergency.
The Court will also determine if the driver lived, worked or was familiar with the area, and could be clearly familiar with the general area
Labor Law - Absolute Liability - Proximate Cause Required, in construction, repair, alteration or maintenance of realty what liability is imposed
In construction, repair, alteration or maintenance of realty strict tort liability is imposed on the general contractor and the owner of the real property for unsafe conditions on a construction site that proximately cause a worker’s injury.
Labor Law 240(1) imposes
absolute liability and non-delegable duty to erect safety devices and to provide a safe place for construction workers who are working at heights.
In order for a injured worker to recover for personal injuries, the worker must establish
(1) an unsafe condition existed, and (2) it proximately caused the plaintiff’s injuries
So the worker must is required to show an existing statutory violation and that the violation proximately caused the plaintiff’s injury. Violation of the statute alone is not enough; plaintiff is obligated to show that the violation was a contributing cause of the fall.
What is the recalcitrant worker defense
Where safety equipment was provided (scaffolding, safety harness, or ladders) but the injured worker failed to use this equipment, the door is open to the “recalcitrant worker defense” and a defendant may show that the workers’ conduct was the “sole proximate cause” of his own injuries
In order to determine whether a defendant’s conduct amounts to direction and control on a construction job site, control of an independent contractor, or one or two family residential dwelling home, the plaintiff must prove that the defendant conduct
the defendant had taken control of the of the project that amounts to direction and control “depends upon the degree of supervision exercised over ‘the method and manner in which the work is performed.’”
Residential Dwelling Exception to Absolute Liability, a defendant would argue no liability because their conduct
did nothing more than what any ordinary homeowner would do in deciding how they wanted the home to look upon completion. Furthermore, the defendant did not provide the plaintiff with any equipment or work materials, nor where present at the time plaintiff undertook the renovation work.
Defendants exercised on supervisory control over the activity bringing about the injury
Labor Law - Cleaning a Manufactured Product is limited to
to the protection of only workers employed in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure. It is apparent from the text of Labor Law 240(1), and its history confirms, that its central concern is the dangers that beset workers in the construction industry.
Therefore, cleaning does not encompass routine of manufactured products
The mere allegation that plaintiff had disobeyed his supervisor’s instruction when he climbed a broken ladder does not
provide a basis for a defense against plaintiff’s Labor Law 240(1) cause of action. It is well settled that the injured’s contributory negligence is not a defense to a claim based on Labor Law 240(1) and that the injured’s culpability, if any, does not operate to reduce the owner/contractor’s liability for failing to provide adequate safety devices.
The recalcitrant worker defense requires the defendant to show
a showing that the injured worker refused to use the safety devices that were provided by the owner or employer, so the defense has no application when no adequate safety devices were provided
Landlord’s Duty to Provide Security means that
Although a landlord is not a guarantor for the safety of tenants, a landlord owes a duty to take minimal security precautions against reasonably foreseeable criminal acts by third parties. “Such an obligation is recognized by our law, as but a natural corollary to the landowner’s common-law duty to make the public areas of his property reasonably safe for those who might enter.
How can a landlord-defendant discharge is common law duty to take minimal security precautions against reasonably foreseeable criminal acts by third parties
(1) provide locks, (2) intercom system; (3) 24-hour security
Where a municipality voluntarily undertakes to act on behalf of a particular citizen who detrimentally relies on a promise of help or protection the
municipality enters a “special relationship” and thereby undertakes a duty to that individual citizen to carry out its municipal function with reasonable care
The elements required to create this “special relationship” with the municipality are:
(1) A promise to act to aid that citizen and the municipality’s breach of that promise;
(2) Knowledge by the municipality that inaction could lead to harm;
(3) Some form of direct contact between the municipality’s employees and the injured party; and
(4) the party’s justifiable reliance on the municipality’s affirmative undertaking
Under the “Economic Loss” Rule there is
no recovery in the absence of a physical injury to either the person or person’s property.
Why there must be an economic harm is because
Foreseeability of harm does not define duty. Absent a duty running directly to the injured person there can be no liability in damages, however careless the conduct or foreseeable the harm. This restriction is necessary to avoid exposing defendant to unlimited liability to an indeterminate class of people conceivably injured by any negligence in a defendant’s act
A public nuisance exists for
Conduct that substantially interferes with the common right of the public and the public’s safety and comfort
Negligence - Emotional Harm - Bystander, allows the plaintiff-third party to recover for observing the another’s peril according to the NY COA when
The NY COA defined a duty owed to members of “immediate family” who do not sustain physical impact in the accident but are within the zone of impact (danger). Such persons are not physically injured, but are threatened with bodily harm as a result of defendant’s negligent conduct, and are permitted to sue for negligent infliction of emotional harm.
Recovery under negligent infliction of emotional harm (“NIEH”)
this is based on the concept that the defendant is liable because he breached a duty to such a person by negligently exposing her to unreasonable risks of bodily harm. Thus, such a person is entitled to recover all damages sustained as a result of the defendant’s breach, including mental suffering from witnessing the death or serious bodily injury to a member of the immediate family
What is the “immediate family member” rule in New York
Only includes spouses, grandparents, parents, siblings, and children. It therefore, excludes cousins and nieces, aunts, uncles, nephews
What is the “immediate family member” rule in New Jersey
The familial relationship test in NJ is not limited to by blood or marriage. In NJ the appellate court allowed an unmarried “partner” to recover. NJ has a broader definition of “any two persons who share an adequate earnest emotional commitment in a relationship that is equivalent to familial.”
Grandparent’s liability for negligent supervision
The court distinguished grandparents, from foster parents and natural parents, and subject grandparents to claims and liability for injuries resulting from their negligent supervision of their grandchildren because grandparents are only temporary custodians who take care of the child for a day, and as such, have been held to be subject to causes of action alleging negligent supervision.
Negligent Supervision - School’s Liability according to the Appellate Division, First Department
While a school is not an insurer of the safety of its students since it cannot reasonably be expected to continuously supervise and control all of their movements and activities, it has a duty to “adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision.
Although the Board established its prima facia entitlement to judgment as a matter of law, the plaintiffs raised triable issues of fact as to whether the Board of Ed was negligent in failing to adequately supervise the infant plaintiff
According to the Appellate Division, First Department, Schools have a duty similar to parents to
a duty to supervise their students with the same degree of care as a parent would exercise in the same circumstances. Thus, the task is to determine whether defendants exercised the same degree of care in supervising plaintiff as would a reasonably prudent parent.
It is enough that plaintiff show the other student (person) had previously exhibited violent tendencies which should have placed the City on notice that she would, given the opportunity, assault plaintiff in the future
In order to determine foreseeability the type of danger or harm is determined by
that it is not necessary that the exact nature of the danger be foreseeable, all that must be shown is that ‘the general risk and character of injuries are foreseeable.’
Several well known tort theories, in general three (3) that limit or eliminate an injured plaintiff’s tort recovery are
1- Comparative Negligence, which reduces a plaintiff’s recovery by the plaintiff’s apportioned share of fault
2- Contributory Negligence, which prohibits the injured plaintiff from any recovery if the jury finds the plaintiff to be at all fault, even 1%
3- Outlaw doctrine, which arises where a plaintiff is injured while knowingly participating in criminal activity of a serious nature
Outlaw doctrine is
arises where a plaintiff is injured while knowingly participating in criminal activity of a serious nature, and prevents the injured plaintiff from recovery.
The rule in the Outlaw doctrine that is premised on public policy, is that
The rule, which is premised upon the public policy that “one may not profit from one’s own wrongdoing.” However, DOES NOT compel dismissal of a complaint ‘merely because the plaintiff’s injuries were occasioned by a criminal act.
Rather, preclusion of any recovery is required only where the plaintiff’s injuries were a direct result of a serious violation of the law involving hazardous activities which are not justified under the circumstances.
What are the determinative factors when a plaintiff is denied recovery under the Outlaw Doctrine
The fact that the plaintiff did not hatch the plan or build, construct or create the actual device is NOT determinative, as an individual’s “KNOWING” participation in a serious criminal violation may be sufficient to preclude recovery
Real Property - Duty to Light Premises states that
The owner of a building open to the public has a duty to illuminate the exterior of the building for the invitees, licensees and trespassers entering the building with it is open to the public.
Thus, the court adopted a single standard of reasonable care, specifically, a “landowner must act as a reasonable person in maintaining his or her property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury and the burden of avoiding the risk
What is the general duty of care in regard to requiring landowners to illuminate their property
Providing outside lighting to one’s property may be a reasonable response by a private landowner who knows, or should know, that someone will visit the property and confront a hazard that would be reasonably avoided by the illumination, BUT to impose a general duty of care requiring landowners to illuminate their property during all hours of darkness, would be to expand the rule beyond the acceptable limits
CPLR 3212 in negligence cases
CPLR 3212 is a summary judgment motion made after the issue is joined, and is rarely granted in negligence actions, because negligence most frequently is a question of fact.
Summary judgment motions are available in negligence actions
ONLY if the defendant’s negligence or lack thereof can be concluded as a matter of law
When is the determinative fact of whether the landlord does NOT owe a duty to warn of dangers posed on the land
There is no duty to warn since the danger was/is open and obvious, the court held that “that a landowner has no duty to warn of open and obvious danger.”
When is the determinative fact of whether the landlord DOES owe a duty to warn of dangers posed on the land
A latent hazard may give rise to a duty to protect entrants onto the land from that danger.
The issue of whether a hazard is latent or obvious is
generally fact-specific and thus usually a jury question, a court may determine that a risk was open and obvious as a matter of law when the established facts compel that conclusion
Open and Obvious Dangerous Condition rule paragraph
There is no doubt that a landowner has a duty to prevent the occurrence of foreseeable injuries. However, there is NO duty on the part of the landowner to warn against a condition that can be really be observed by those employing the reasonable use of their senses, to open and obvious dangers or conditions, and the open and obvious condition is a warning in itself
When does the court require the State / defendant to take action for dangers
The controlling factor central to negligence claims for failure to warn is that the State must take such precautions where latent dangers exist not readily apparent to the public.
The court held that a “landowner has no duty to erect barriers or fences in order to enclose natural geographical phenomena which do not in some way represent latent dangers or conditions, so to prevent persons coming upon the land from injuring themselves by entering onto the condition in question
The common law doctrine of “attractive nuisance” is
a doctrine which protects infant trespassers or intermeddlers who may be enticed into harm’s way
The doctrine of Res Ipsa Loquitur permits an
inference of negligence to be drawn from the very occurrence of a certain type of accident and the defendant’s relation to it. If the requirements for application of the doctrine are met, a plaintiff is allowed to rest her case on circumstantial evidence when the specific cause of the accident is known
To demonstrate the existence of a triable issue by relying on a res ipsa loquitur theory, the plaintiff must establish three things:
1) the accident is of a kind that ordinarily does not occur in the absence of someone’s negligence
2) the instrumentality causing the accident was within defendant’s exclusive control; and
3) the accident was not due to any voluntary action or contribution by plaintiff
However, the plaintiff need not conclusively eliminate all other possible explanations. It is enough to present evidence from which a reasonable jury could conclude that it is more likely than not that defendant’s negligence caused the injury
Res Ipsa Loquitur - Exclusive Control of the instrumentality of the accident
“is not an absolutely rigid concept, but is subordinate to its general purpose, that of indicating that it was probably the defendant’s negligence which caused the accident in question. It is not necessary for plaintiff to rule out all other possible causes, only to show that they are less likely
The doctrine of Res Ipsa Loquitur is an evidentiary rule which permits
but does not require the jury to draw an inference of negligence from the facts in evidence against the defendant (or out of the control of the plaintiff)
Exclusive control is a “relative term, not an absolute” because the permissible inference of negligence under the res ipsa loquitur doctrine is grounded on the remoteness of any probability that the negligent act was caused by someone other than the defendant
In order to recover damages for an alleged breach of a land owner’s duty,
the claimant must demonstrate that the landowner created, or had actual or constructive notice of, the hazardous condition notice of, the hazardous condition which precipitated the injury
In order to constitute constructive notice, a defect
a defect must be visible and apparent, and it must exist for a sufficient length of time prior to the accident to permit the owner, or its employees, to discover and remedy it
Under the doctrine of res ipsa loquitur the jury MAY
but is not required to draw the permissible inference. The use of res ipsa loquitur does not relieve the plaintiff of the burden of proof. The jury has great latitude in a case involving res ipsa loquitur and even where the defendant offers no proof, it is still for the jury to decide, on the plaintiff’s proof, whether liability has been established
In considering a motion to set aside a jury verdict by either the plaintiff or defendant, as contrary to the weight of the evidence, the standard to be applied
was whether the evidence so preponderated in favor of the plaintiffs that the verdict could not have been reached on any fair interpretation of the evidence. In making this determination, the Court must proceed with considerable caution, for in the absence of indications that substantial justice has not been done, a successful litigant is entitled to the benefits of a favorable jury verdict.
New York imposes on the possessor of real property-what type of duty
a single duty owed to anyone entering the land, regardless of status, to inspect and make the land safe. the duty is simply to take reasonable measures to prevent injury to any person whose presence was reasonably foreseeable.
What is the NY court approach when looking at such factors to determine the likelihood of an injury occurring on the landowner’s property to others
New York courts look at such factors as the likelihood of an injury to others and the burden (the cost) of undertaking measures to avoid the risk
What must a slip and fall plaintiff prove in order to recover (any or all of the three requirements)
When a plaintiff enters the defendant’s property and slips and falls resulting in personal injury, the plaintiff must prove the existence of a latent dangerous condition that the defendant:
1- created the condition
2- had actual notice of the dangerous condition, or
3- had constructive of the dangerous condition, i.e., there must exist proof that the dangerous condition existed for a sufficient length of time prior to the accident to permit the defendant to discover and remedy it.
In a slip an fall claim, the defendant is afforded reasonable time to
to have had (or employees have had) an opportunity to discover and remedy the problem that caused plaintiff’s fall could have been deposited there only minutes or seconds before the accident, and any other conclusion would be pure speculation
Slip and Fall - Recurring Dangerous Condition
Admitted actual knowledge of frequent conditions which create a hazardous condition, such as a slip and fall, liability may exist based on the recurring condition.
In a recurring dangerous condition, the plaintiff’s burden is
that the plaintiff is not required to prove that defendant had, or should have had, knowledge of the exact item of debris which caused the plaintiff to fall, but that recurring dangerous conditions occur.
Slip and Fall - Storm in Progress Theory holds that
Under the circumstances, (the landowner), will not be liable for accidents occurring as a result of the accumulation of snow or ice on the premises until an adequate period of time has passed following cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the snow, sleet, or storm.
A slip and fall claim against a third-party contractor hired to remove and clear the property requires the plaintiff to prove or establish that
the contractor created the icy condition OR owed a duty to the plaintiff. if a duty is established, then the contractor would be able to use the “storm in progress” defense
Former owner can be entitled to dismiss or removal from the case, but must prove that
in order to establish a prima facie entitlement to judgment as a matter of law by the former owners, the former owners must prove (1) they did not own the premises on the day of the accident, and (2) that the alleged dangerous condition did not exist during their period of ownership
Slip and Fall - Summary Judgment for a store owner
In order to establish a prima facia case, plaintiff is required to show either actual or constructive notice of the condition causing her fall. Actual notice is the storeowner not taking action in reasonable time after being informed; Constructive notice, is that a defect (spill) must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit the defendant’s employees to discover and remedy it.
Moreover, in a slip and fall, “mere conclusions based upon surmise, conjecture, speculation or assertions are without probative value.
What Conditions in a slip and fall may indicate the store may or may not have had notice
1- the spill was dirty
2- the spill had footprints in it
3- the banana peal had wheel marks
4- any other evidence that the spill or banana was for “an appreciable length of time”
what are the grounds for granting a summary judgment motion in favor of the defendant (store owner) for a slip and fall inside the store
Inasmuch as there is insufficient evidence for a jury to infer that the yogurt, banana, spill had been on the floor for any appreciable length of time to establish that defendant had constructive notice of the allegedly dangerous condition which caused plaintiff to fall
Tree- Falling Limbs the defendant landowner can be held liable if
When a tree falls and injures someone who is not present on the property where the tree is located, the landowner can ONLY be liable if he or she had actual or constructive knowledge of the defective condition of the tree
Constructive notice is determine in Tree- Falling Limbs the defendant landowner can be held liable
Constructive notice that a tree or limb is dangerous may be based on signs of decay or other defects that are readily observable by someone on the ground or that a reasonable inspection would have revealed
The public’s right of passage carries with it an obligation upon the occupiers (owner-tenant) of abutting land
to use reasonable care to see that the to see that the passage is safe
Landowners or occupiers may be liable for injury resulting from
- open manhole in the sidewalk
- Overhanging object ready to fall
- Unguarded excavation next to the street
The possessor of land generally is under no affirmative duty to remedy conditions that are
of purely natural origin upon the land, although they may be highly dangerous or inconvenient to neighbors.
Conditions on a land that are purely natural origin upon the land included:
1- A foul swamp
2- Falling Rocks
3- The spread of weeds or thistles growing on his land
4- The normal, natural flow of surface water
5- Harm done by indigenous animals
6- Natural accumulations of snow or ice
7. Overgrown vegetation obstructing motorists’ view at an intersection, however, a duty may be created b statute or ordinance
Where an occupier has altered a natural condition of the premises, her or she will be held liable for damage resulting from any negligence on his or her part for the following
1- Erecting a structure that discharges water upon the sidewalks;
2- Construction of a parking lot in which water collects;
3- Weakening rocks by the construction of a highway; or
4- Piling sand where the wind may blow it
What is a landowner’s duty to warn of dangerous conditions outside their land
Landowners have no duty to warn of dangerous conditions outside their land, even if they directly threaten those coming onto their land. However, some dangers “might be so clearly known to the landowner, though not open or obvious to others, that a duty to warn would arise.”
Rule paragraph for a landowner’s duty
A landowner has a duty to exercise reasonable care in maintaining its property in a safe condition under all the circumstances, including the likelihood of injury to others, the seriousness of the potential injuries, the burden [cost] of avoiding the risk of harm and the foreseeability of a potential plaintiff’s presence on the property
In New York, someone injured or killed by a falling limb or tree must prove
there was actual or constructive notice of the tree’s dangerous condition. Constructive notice can be established by proof that a reasonable inspection would have revealed a visible manifestation of the danger.
What duty is imposed in regard to inspecting a tree on a landowner’s property
There is no duty to CONSTANTLY inspect trees; thus, the injured plaintiff must be able to prove through the testimony of an expert arborist that the defect was readily observable for an extended period.
What duty is imposed in regard to inspecting a tree on a municipality
A municipality owes a duty to reasonably maintain trees that block the road
Owners or possessors will be liable if he or she permits:
- others on his land to throw junk upon adjoining property;
2- Others to play ball in a manner which will endanger adjoining property or its possessors; or
3- A hotel allowing conventioneers to become so riotous that they endanger persons on the adjoining street
Landowners’ duty to provide security may be responsible for
Landowners may be responsible for the criminal activities of others that take place on their property. A common example is liability for injuries to a tenant assaulted by a stranger who entered the building through a broken door.
The plaintiff must prove that the landowner knew or should have known of the danger and that the landowner’s negligence in failing to fix the lock proximately caused the crime
Causation is particularly hard to prove in premise assault cases against the landlord because
The plaintiff must prove that the criminal entered due to the landlord’s negligence rather than another tenant’s, or that the criminal is not himself or herself another tenant. This can be an almost insurmountable task if the criminal is not apprehended because the court will summarily dismiss the case if the plaintiff cannot come up with more than “conjecture that negligent security permitted an intruder to enter the premises.”
The bar is set even higher for the plaintiff for
premeditated crimes: when killers plan a crime and target a victim, the owners of the scene of the crime cannot be liable, regardless of negligence
Trespassing is defined as
A person who enters or remains on land in the possession of another, without privilege to do so created by the possessor’s consent or otherwise, is a trespasser
Trespassing at common law, created what liability for the possessor of land
None. the possessor of land is not liable for injury to trespasser caused by the possessor’s failure to exercise reasonable care to maintain his land in a safe condition, or failure to carry on activities in a manner that does not endanger trespassers.
What is New York’s treatment on the common law liability of a trespasser
New York does not adhere to the common law rule, and bases liability not upon the injured party’s status, but upon the foreseeability of the injury.
A common law landowner has no liability to a trespasser for:
1- Concealed pitfalls
2- Dangerous electric wires
3-Defective buildings; or
4. Negligently operated machinery
When may a land owner have a duty to use reasonable care to prevent harm to certain trespassers
Where the occupier of land knows that trespasser in substantial numbers are habitually entering the land at a particular point, or habitually traversing some small part of it, most courts have held that there is a duty to use reasonable care to prevent harm to such trespassers, including warning them of latent dangerous conditions on the land known to the landowner
What is the majority rule once the presence of the trespasser is discovered
There is a duty to use ordinary care to avoid injuring the trespasser.
What is the minority rule once the presence of the trespasser is discovered
The minority rule holds that the possessor is only liable for injury to a known trespasser if the possessor’s conduct is “willful and wanton.”
Trespassing children: The Attractive Nuisance Theory
A landowner will be liable for injury to a trespassing infant where the following conditions are met:
1- The owner or occupier should anticipate children at the place of danger, i.e., he or she knows or should know that children are attracted to and likely to trespass upon the place where the dangerous condition is found;
2- The owner or occupier knows or should know of the condition and should recognize that it creates an unreasonable risk of serious bodily harm or death to trespassing children;
3- Children lack the capacity to recognize the danger or risk, i.e., the child, because of his or her immaturity, either will not discover the condition or cannot appreciate the danger involved;
4- The risk to the children involved is greater than the cost of correcting the condition; and
5- The owner of the occupier fails to exercise reasonable care to eliminate the danger
What is the New York approach on the Attractive Nuisance Theory
New York does not adhere to the attractive nuisance theory but in essence adopts it under the theory that a duty is owed to anyone who enters the land, regardless of status, to inspect and make the property safe
A licensee is
Any person who comes on the land with a privilege arising from consent of the land possessor (and is therefore distinguished from a trespasser), but who enters for his own purpose rather than for any purpose, benefit, or interest of the possessor of the land (and is therefore distinguished from an invitee).
Examples of Licensees
Social visitors;
Those in search of their children, servants, or other third persons;
People who come in to get out of the weather; Tourists visiting a factory per their own request;
A neighbor coming to borrow a tool;
A salesperson canvassing at the doors of private homes;
Those soliciting money for charity; and
A stranger entering a building to post a letter in a mailbox provided solely for tenants.
Social guests and other licensees are deemed to
understand that when they enter the land they are placed on the same footing as family. They must take the premises as they occupier uses them, without any inspection or preparation for their safety
A possessor owes the licensee
A possessor owes the licensee NO duty of inspection.
Licensees are deemed to understand
that they take their chances as to any defective condition unknown to the occupier.
Licensees are entitled to
they are entitled to a warning of only known dangers. the possessor of land is under an obligation to disclose to the licensee any concealed dangerous condition on the premises of which he has knowledge
It is generally held that there is an obligation by the occupier towards a licensee
an obligation to warn or inform the licensee as to any active operation that he or she carries on, to exercise reasonable care for the protection of a licensee
Invitees are those
those who enter premises upon invitation to confer a benefit to the landowner, and are owed protection not only against dangers of which the occupier is aware, but also against those that the occupier should, with reasonable care, have discovered
Examples of Invitees
1- A customer in a store;
2- Patrons of restaurants, banks, theaters, beaches, fairs, and places of amusement;
3- Drivers picking up or delivering goods at residential or commercial sites;
4- Independent contractors and their workers;
5- Mail carriers; and
6- People called to the property to make repairs
7- Those who bring employees their lunch;
8- Users of public toilets or telephones; or
9- People who go into banks to change currency
The duty of affirmative care related to invitees is
The duty of affirmative care to make the premises safe for the invitee is imposed upon the possessor as a price for the economic benefit one derives, ore expects to derive, from the presence of the visitor. When no benefit is found, the possessor is under no such duty
The alternative theory of invitee includes that
The Alternative Theory deemphasizes the economic purpose of the invitee.
When the land possessor encourages others to enter the property to further a purpose of their own, there is an implied representation that reasonable care has been exercised to make the place safe for those who come for that purpose.
Example of Alternative Theory Invitees
- Persons attending free lectures, church services, meetings, etc.
- Spectators invited to free public places of amusement;
- Those who enter the premises with the reasonable expectation of buying an item, which is in fact not sold on the premises; and
- Users of municipal parks, playgrounds, swimming pools, libraries, bathrooms, golf courses, community centers, etc.
What is the limitation of the obligation towards invitees
The special obligation toward invitees exists only while the visitor is on the part of the premises opened to him as an invitee.
Under the special obligation to invitees that limit the area of the premises opened to him are defined as
The area of invitation will vary with the circumstances, but generally extends to:
- The entrance of the property;
- The provision of a safe exit the visit’s purpose is concluded;
- All parts of the premises to which invitee’s purpose can reasonably be expected to take him; and
- Those parts of the premises, which are so arranged as to lead him reasonably to think that they are are open to him.
If an invitee remains on the land beyond the time reasonably necessary to accomplish the purpose of which he came, the thereafter
becomes a licensee.
What is the duty of an occupier
An occupier is not an insurer of the safety of others. The occupier’s duty is to exercise reasonable care:
1- Extending to anything that threatens or poses an unreasonable risk of harm to the invitee;
2- Not to injure the invitee by negligent conduct;
3- To warn the invitee of latent dangers of which the occupier is or should have been aware;
4- To inspect the premises to discover latent dangerous conditions; and
5- To take reasonable precautions to protect the invitee from dangers that are foreseeable from the use of the land
The landowner is NOT liable for
conditions that DO NOT pose an “unreasonable risk” or for conditions that the owner did not or could not have known about even though reasonable care was exercised.
Liability does not extend to landowner when the invitee
knew of the dangers or the dangers were “open and obvious” conditions, (which are not inherently dangerous as a matter of law).
A finding that the condition proximately causing the plaintiff’s injury was open and notorious has what affect on the plaintiff’s claim
It is never fatal to a plaintiff’s negligence claim, but it is relevant only to a plaintiff’s comparative fault
Even visible hazards do not necessarily qualify as open and obvious because the nature or location of some hazards, while they are technically visible, make them likely to be overlooked.
Generally, to constitute constructive notice
a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit the defendant’s employees to discover and correct it
A public employee is defined for landowner liability as
one who comes upon the land in the exercise of a privilege not conferred by the consent of the occupier, but rather enters in the performance of his public duty
New York Rule in regard to landowner liability
The focus in NY is no longer on the status of the plaintiff, but on the conduct of the defendant, and the duty of care owed is correlated to foreseeability and the risk of harm reasonably perceived.
What is New York’s single standard of care for landowners
Landowners must maintain their property with reasonable care.
How does the Court in NY determine if the landowner’s conduct was reasonable
In determining whether the landowner’s conduct was reasonable, the court will consider the likelihood of the injury to others, the seriousness of the injury, and the burden upon the defendant of avoiding the risk
Firefighters Rule - Common Law
The professional rescue doctrine and the firefighter’s rule preclude a professional rescuer (police or fire personnel) from recovering for injuries associated with emergency rescue activities.
New York’s Firefighter Rule
New York statutorily allows firefighters and police officers to sue for on-duty personal injuries or wrongful death proximately caused by the negligence of anyone except a fellow employee or his/her employer
An injured firefighter or police officer injured on private private must
still plead and prove that the land possessor created the dangerous condition or had actual or constructive notice of the condition that proximately caused the injury
New Jersey’s Firefighter rule
New Jersey statutorily allows firefighters and police officers to sue for on-duty personal injuries or wrongful death proximately caused by the negligence of anyone except a fellow employee or his/her employer
Defenses to the slip and fall claim
The defendant is assured success if it can be shown that the defendant:
1- Did not create the alleged hazardous condition;
2- Did not have actual notice of its existence; and
3- Did not have constructive notice of its existence. Constructive notice of a defect exists when it is visible and apparent and has existed for a sufficient length of time before the accident that it could have been discovered and corrected
If a defendant has actual knowledge or a particular on going and recurring hazardous condition then
the defendant may be charged with constructive notice of each specific reoccurrence of that condition.
New York imposes absolute liability on realty owners and general contractors to protect workers from gravity related injures such as
Falling objects or falling workers, as well as from unsafe working conditions. This law is designed to place the responsibility for a worker’s safety upon the site owner and contractor rather than on the worker.
A worker can recover under the labor law if he can prove
- he was injured while constructing, repairing, demolishing, cleaning (interior and exterior window cleaning of a commercial structure), altering, painting, (not wallpaper) or excavating
2- The injury was proximately caused by the direct consequences of the force of gravity; and
3- He is not provided with protective safety devices such as a safety ladder, scaffolding, or harness protection
If safety equipment is provided and readily available but the recalcitrant worker refused to use it, and use of the equipment would have prevented the injury then
then there is no liability and the plaintiff-worker cannot recover
An injured workers’s comparative negligence has what effect on the plaintiff’s claim
It has no defense
what are the two heavily litigated defenses to absolute liability under Labor Law 240(1)
1- The recalcitrant worker defense, and
2- the sole proximate cause defense where the worker “on his own initiative, took a fool hearty risk which resulted in his injury
New York exempts what class or group from liability Labor Law 240(1)
New York exempts from liability the owner-occupier of one or two family dwellings where the owner contracts for, but does not direct or control the work.
What class of owner-occupiers of dwellings are subject to strict liability tort liability under Labor Law 240(1)
Owner-occupier of three or more apartments, and a one or two family dwelling that was used exclusively for commercial purposes, the exclusion does not apply because said homeowners are not deemed to lack business acumen and sophistication. Likewise, an owner who rents out the one or two family residence and lives elsewhere does not get the exemption
Recreational Use Statutes – NY GOL 9103 provides that
owners, lessees or occupiers owe no duty of care to keep the premises safe to gratuitous (no fee is charged), recreational users of the land, e.g., people entering for the purpose of hiking, hang gliding, cross country skiing, wood gathering, or using recreational motorized vehicles (snowmobile). Liability is imposed only for a willful or malicious failure to guard or to warn against a dangerous condition
Negligence Per Se is a
violation of a statue mandating a standard of care, absent an excuse, is conclusive on the issue of negligence
To establish a defendant’s liability for Negligence Per Se, the court must first determine:
1- The plaintiff was a member of the class of persons that the statute was designed to protect, and 2- the statute was enacted to prevent the type of harm that occurred as a result of the violation
Mnemonic for Causation “Cause” for Negligence
F CLIPS
FACTUAL causes (but for)
CONCURRENT causes of the P’s injuries
LEGAL causes (Restatement language for both cause-in-fact & proximate cause)
INDEPENDENT intervening causes (a.k.a. superseding cause)
PROXIMATE causes
SUCCESSIVE causes
Factual cause is
Unlimited and Infinite, and is “but for,” but for causation can always find someone to blame in order to have a legal cause, you must show more then but for
When factual cause (but for) is the answer choice
Factual (but for) cause needs more and is usually or generally the wrong answer choice
When the topic of negligence arises on the MBE or NY Bar Exam question, you must
Narrow the topic of negligence down to whether duty, foreseeability, and causation damages, then list out the definitions, elements and list
Rule: for providing factual cause (but for)
by providing factual cause the plaintiff simply “but for” the defendant’s conduct, the plaintiff’s injuries would not have occurred, however, but for needs limits
Rule: about factual cause being insufficient to establish negligence
Generally factual cause is sufficient to establish negligence, the plaintiff must further demonstrate that the defendant’s conduct was a substantial cause of the plaintiff’s injuries
Proximate cause requires
Proximate cause requires a close causal connect between the defendant’s conduct and the plaintiff’s injury, and in order for the plaintiff to recover the conduct must be the natural and probable cause (consequences) of the act
Rule: Proximate Cause
Proximate cause limits a defendant’s liability for the consequences of her negligent conduct. Defendant’s conduct must be a substantial factor in bringing about the plaintiff’s injuries. A negligent defendant is not responsible for the plaintiff’s injuries from “bizarre or farfetched” injuries. Therefore, the issue is what are the natural and foreseeable consequences from the defendant’s conduct
Rule: Substantial Factor
In order to recover the plaintiff must prove that the defendant’s breach of duty was a substantial factor in producing the plaintiff’s injury.
Plaintiff’s careless conduct can be a
Plaintiff’s careless conduct can be a defense, rather than the defendant’s failure or negligence to post warnings and is the sole proximate cause of the plaintiff’s injuries
Concurrent causes (multiple defendants)
Rule: an injury may have more than one (1) proximate cause, however, the plaintiff is not required to eliminate every other possible cause of injury, and need only have sufficient evidence from which a jury can conclude the conduct of the defendants was more probable than not, and the defendant’s [failure to act, unreasonable or negligent conduct] was the cause of the plaintiff’s injuries caused in whole or party by the defendant
Rule at common law and MBE where the acts of multiple tortfeasors contribute to plaintiff’s injuries
Rule at common law and MBE where the acts of multiple tortfeasors contribute to plaintiff’s injuries, each is 100% jointly and severally liable for all of the plaintiff’s injuries, regardless of the defendant’s apportioned fault
NY has abolished the pure joint and several liability for defendant’s when there are multiple tortfeasors
NY has abolished the joint and several liability for defendant’s non-economic injuries when one of defendant’s is 50% or less responsible for the plaintiff’s injuries, such a tortfeasor is liable for his portion of the plaintiff’s non-economic portion of injury assigned by the jury
NY Article 16 of the CPLR holds that
the apportion of damages is on a percentage, and the jury has to determine what the economic and non-economic damages are
When NY applies joint and severable liability
The defendant with a smaller percentage of liability (under 50%) will be limited when the “non-economic pain and suffering” of the plaintiff when one of the defendants is less than 50% liable, but the defendant with under 50% liability will be held responsible to pay 100% of the medical or lost wages / economic cost even if the defendant with less than 50% is even 1% liable, but pays 100% of economic losses.
Joint and severally liable under CPLR Article 16 holds that
Either defendant no matter what the percentage of assigned liability is will pay 100% of the economic loss, and then the parties recover from each other
In NY under the CPLR Article 16, the co-defendant who was less than 50% liable will be responsible for what portion of non-economic (pain and suffering) damages
Only the portion of liability (percentage of 100%) of the total damages awarded to the plaintiff for non-economic damages (pain and suffering)
NY CPLR treats liability different under tort claims in what manner
Intentional conduct is different than negligent recovery or protections under Article 16. Intentional and reckless conduct caused by multiple defendants split joint and severally for both economic and non-economic recovery, it does not matter the % of liability of either defendant, or the % which is apportioned by the jury, and either defendant will pay 100% and then have an action to recover from the other defendant for the % of liability
The “Alternative Liability Theory” is that (concurrent tortfeasors)
Generally the plaintiff has the burden of proving that the conduct of a specific defendant was a proximate cause of the plaintiff’s injuries. However, where the plaintiff suffers a single injury as a result of the conduct of multiple defendant’s and the plaintiff cannot establish which defendant caused the injury, then under the “alternative liability theory” the burden of persuasion on the “causation” issue shifts to the defendants who are in a better position than the plaintiff to identify the actual cause of the plaintiff’s injuries (Summers v. Tice), if neither defendant can prove who inflicted the plaintiff’s injuries, than both defendant’s are held jointly and severally liable even though only one of them could have caused the plaintiff’s injuries
Successive causes of injury
Rule: Successive causes arise where the plaintiff’s injuries are proximately caused by multiple acts of negligence occurring at different times. The original tortfeasor is liable for all subsequent foreseeable injuries arising from the original tort.
What topic is generally a good source of fact patterns for successive tortfeasors and liability
The medical malpractice industry are great examples for exams, and test on liability for successive tortfeasors
Medical malpractice claims for successive causes of injuries to the plaintiff usually include
that the original tortfeasor negligently set a chain of events that are commonly foreseeable, and medical injuries are foreseeable to include all subsequent medical issues related to the injuries. It will usually state that the defendant “negligently set a chain of events that are commonly foreseeable, and medical injuries are foreseeable to include all subsequent medical issues related to the injuries
What is, generally, the question in medical malpractice claims with successive tortfeasors
The question is usually what can you hold the original tortfeasor- (always remember) everything was the exacerbation of the original injuries, make sure the connection between the successive tortfeasors is not “bizarre.”
What is the rule about a “superseding proximate cause” (a.k.a. independent intervening” cause
A superseding proximate cause (a.k.a. independent intervening cause) is extraordinary and so attenuating to break off or cut off the earlier tortfeasor’s injuries to the plaintiff, and therefore, does not hold the original tortfeasor liable after that point. It prevents the original defendant (tortfeasor #1) negligence to be a cause of the plaintiff’s subsequent injuries, and cuts off the defendant’s liability at that point. The subsequent defendant (tortfeasor #2) will then be responsible for the damages from the point of intervention
When determining how far the original tortfeasor’s liability should go for subsequent injuries to the plaintiff, you must determine if
the subsequent injury was a foreseeable flowing injury from the original tortfeasor’s negligence.
Subsequent injuries on the MBE, generally, relate to what type of questions
Generally, the question relates to a “summary judgment” issue, the reasoning in the fact pattern is because the negligent conduct was either 1) foreseeable or 2) NOT foreseeable. Negligence cuts off at some point, so what is the sole proximate cause
Determine what is the sole proximate cause of the plaintiff’s injury because
Rule: the plaintiff’s own negligent conduct may be and often is the sole superseding cause of the plaintiffs own subsequent injuries, but he will attempt to tie the latter injury with the original injury.
The intervening tortious actor is
Rule: the intervening tortious actor is solely liable for the subsequent injuries if the earlier negligent act has “become too remote to constitute” a proximate cause for the plaintiff’s injuries, therefore, this limits the initial tortfeasor’s fault to the initial injury.
what type of acts, generally, constitute unforeseeable superseding causes
Rule: intervening acts of nature OR intervening criminal conduct often constitute unforeseeable superseding causes, such as (1) an act of god (which is generally considered bizarre and unforeseeable); or (2) Criminal behavior such as burglary, assault (even though it would not have happened but for the defendant left the plaintiff alone.
When is an original tortfeasor still liable for an unforeseeable intervening act, such as an act of nature or criminal conduct
Such events as an act of nature or criminal conduct, DO NOT relieve an original tortfeasor for liability if the intervening act was foreseeable and could have been avoidable using reasonable care. An act of god can be foreseeable (Super Storm Sandy)
On the MBE, liability for criminal conduct after a negligent conduct is found when
the criminal conduct is the same type of crime that the negligent defendant knew about or the same type of crime that happened to the defendant earlier in the same area. So if a defendant knows that the area is a high crime area or the defendant was robbed, then it may be foreseeable that if the defendant places a plaintiff negligently in the same situation, the defendant can be liable for the subsequent criminal act
Contributory Negligence means
Rule: In a contributory negligence jurisdiction, if a plaintiff’s negligence contributes to even 1% of the accident, the plaintiff is barred from any recovery. (only 4 states still recognize contributory negligence)
Unclean hands doctrine
means that a plaintiff cannot go to court and recover for damages suffered in which the plaintiff and defendant were involved with a wrongful act
Comparative Negligence is defined as
In a Comparative negligence jurisdiction, a plaintiff my recover from the defendant, even though the plaintiff was also liable for the plaintiff’s injuries. The plaintiff is not barred from recovering for his own harm caused (unlike contributory negligence).
What are the different types of Comparative Negligence
1- Pure Comparative Negligence
2- Modified Comparative Negligence
What is Pure Comparative Negligence
In a Pure Comparative negligence jurisdiction, a plaintiff my recover from the defendant, even though the plaintiff was also liable for the plaintiff’s injuries, no matter how great the plaintiff’s percentage of fault. The plaintiff’s culpability and percentage of liability for his own injuries ONLY reduces proportionately the amount of damages that the plaintiff may recover. Therefore, if the defendant is 1% liable, the plaintiff can still recover
Modified Comparative Negligence
Modified comparative negligence, which is in 34 states, allows a plaintiff to recover provided that the plaintiff’s negligence is not equal to or greater then the defendants negligence
What are the two types of Modified Comparative Negligence jurisdictions (theories)
1- 49% Rule
2- 50% Rule
What is the 49% rule in a modified comparative negligence jurisdiction
The 49% rule says that the plaintiff cannot be more found more than 49% liable (or contributed to) for his injuries. Therefore, if the plaintiff is found more than 49% liable, he cannot recover
What is the 50% rule in a modified comparative negligence jurisdiction
The 50% says that the plaintiff cannot be more found more than 49% liable (or contributed to) for his injuries. Therefore, if the plaintiff is found more than 49% liable, he cannot recover
What is the “Unit Rule” in a modified comparative negligence jurisdiction
Where there are multiple defendant’s, jurisdictions that applied the modified comparative negligence theory, AND adopted and applied the Unit Rule, which is comparing the plaintiff’s % of liability and comparing it to the “combined” or “total combined percentage of negligence” by all of the defendant’s collectively, and allowing the plaintiff’s claim to be reduced by the plaintiff’s liability against all of the defendant’s combined negligence
What is an example of the “Unit Rule” comparative negligence reecovery
The jury returned a verdict in which the plaintiff was 30% negligent; Defendant X was 25% liable, and Defendant Y was 45% liable, under the Unit Rule, the plaintiff can recover 70% of the verdict from both X & Y because the combined negligence of the defendant’s of 70% exceeds the plaintiff’s 30%
What is the recovery theory in a comparative negligence jurisdiction WITHOUT the unit rule
If the unit rule did not apply, the plaintiff who was 30% negligent would not be able to recover from Defendant X who is only 25% negligent. Therefore, the plaintiff can only recover from Defendant Y who was 45% liable
An estate that brings a wrongful death claim is subject to the
same mathematical haircut that would apply to the deceased had the deceased been able to bring his own claim
What is the rule in NY in regard to the failure to wear a seatbelt in a motor vehicle liability claim
Rule: Since failure to wear an available seatbelt is rarely an approximate cause of an accident, and the failure by a plaintiff to wear an available seat belt is UNAVAILABLE for liability purposes, and not allowed to be presented to the jury for comparative fault. However, the information about failure to wear a seatbelt is available and permitted to be submitted to the jury on the issue of the plaintiff’s damages, and the apportioned failure will reduce the amount of the plaintiff’s recovery
NY takes the view that the discussion of seatbelt use in a motor vehicle case
NY takes the view that the discussion of seatbelt is not relevant until damages.
NY takes the view that the jury may be influence to apportion fault for failure not to wear a seatbelt, but not wearing a seatbelt is not the cause of an accident, but applies only to damages
NJ takes the view that the discussion of failure to use or use of a seatbelt
NJ allows no seatbelt information to be submitted to the jury for all portions of liability, fault, and damages
The “Outlaw” doctrine
The outlaw doctrine denies a plaintiff any recovery while he/she is engaged in serious criminal activity.
Serious criminal activity for the outlaw doctrine includes
1- Joy Riding
2- Home made bombs
3- Burglary
What does the outlaw doctrine has what affect on a negligence claim
The outlaw doctrine is a defense to a negligence claim
What is the general rule for vicarious liability
Vicarious liability focuses on shifting blame from the actively negligent party to one in a better position compensate the plaintiff.
Vicarious liability is distinguished from
Rule: Vicarious liability is distinguished from joint and severally or comparative liability that one is vicarious liable (responsible for the acts) for another person’s torts, strictly due to a relationship or contract, not do to one’s own affirmative negligence
What recourse does a vicarious liable defendant have
The vicarious liable defendant is then left with a claim for indemnification against the tortfeasor
Res Ipsa Loquitur Rule
Res Ipsa loquitur doctrine aids an injured party who does not know and cannot plead exactly what the defendant did that caused the injury and accident, but “the thing speaks for itself,” the Res Ipsa doctrine permits but does not require the jury to draw an inference (it is not a presumption) of negligence from circumstantial evidence in the absence of direct evidence
Res ipsa gets the plaintiff over what objections and hurdle
Res ipsa gets the plaintiff over the summary judgment stage because the plaintiff only has circumstantial evidence and no physical evidence or direct evidence
The plaintiff cannot prove the specific negligence of the defendant, but the negligence could not have happened without the defendant’s negligence
If there is a presumption in a civil claim, the jury must find
the jury must find that the presumption is true
Res ipsa in a civil claim is an
inference, and the jury may find that the defendant is negligent on the inference, instead of the presumption
Res ipsa enables the PL to establish a prima facia case and to
survive a motion to dismiss; a motion for summary judgment; or a motion for a directed verdict without direct evidence of the defendant’s negligence.
The Res Ipsa doctrine does not relieve the plaintiff’s responsibility of
proving the burden of persuasion for proving negligence, and the plaintiff still has remains responsible for this burden, even if the defendant fails to come forward and explain what happened
RULE: Res Ipsa requires the plaintiff to prove what three elements; Element 1
P.E.A
(1) PROBABILITY exists that neither the plaintiff nor anyone other then the defendant caused the plaintiff’s injuries; however, if it is more likely then not that someone else or the plaintiff caused the injuries then the plaintiff will not be able to rely on res ipsa defense
RULE: Res ipsa is not applicable where
it is equally probable where a third person and not the defendant might have caused the condition or injury to the plaintiff
RULE: Res Ipsa requires the plaintiff to prove what three elements; Element 2
P.E.A.
(2) the instrumentality or area causing plaintiff’s injury was under the EXCLUSIVE control of the defendant and the defendant had the right or power of the instrumentality when the negligence occurred, and the purpose of the “exclusive control” element is to eliminate cause of accident other than defendant’s negligence
So you need to prove that the defendant was in charge and had exclusive control for Res Ipsa to get to the jury, but you still have to convince liability
Examples of non-exclusive control
People drop things in escalators, revolving doors, general pubic, so you need to determine could anyone else have damaged, reached, touched or caused the defendant NOT TO have exclusive control?
Of the three necessary elements of Res Ipsa, which is the most difficult to prove
Exclusive control element is the most difficult or important
RULE: Res Ipsa requires the plaintiff to prove what three elements; Element 3
P.E.A
(3) ABSENT negligence, this type of negligence does not occur
RULE: To rely on res ipsa the plaintiff’s responsibility in regard to other possible causes
To rely res ipsa the plaintiff need not conclusively eliminate every other possible cause of injury, it is enough that the evidence supporting the elements provides a rational basis that the injury was caused by the defendant’s negligence
RULE: Negligence Per Se
Absent a valid excuse the violation of a statutory safety standard of care (in NY) is negligence per se, which gives rise to a “conclusive presumption of negligence” that the jury must accept. If the violation occurred the jury must find the defendant is negligent
RULE: To be entitled to negligence per se the plaintiff must establish three elements: Element 1
(1) that the defendant’s violation of a safety statute proximately caused the plaintiff’s injury.
RULE: To be entitled to negligence per se the plaintiff must establish three elements: Element 2
(2) the plaintiff was a member of the class of persons that the statute was intended to protect
RULE: To be entitled to negligence per se the plaintiff must establish three elements: Element
(3) the harm to the plaintiff was the type of harm the statute was designed and intended to prevent
When is a defendant NOT liable for negligence per se when the defendant violates a safety statute
Even though a violation of the a statute occurs, the violation is not the proximate cause of the injuries to the plaintiff, and the defendant is not liable for negligence per se
A defendant can take what action in a negligence per se claim
Rule: If a defendant does not rebut the evidence of negligence per se with a “valid excuse” for violating the statute the jury must find against defendant on the liability issue
RULE: related to licensing and vehicle registration statutes in NY
In NY most licensing and vehicle registration statutes are not susceptible to negligence per se because they are primarily revenue raising and do not seek to prevent harm and do not necessarily seek to protect any class of persons
Therefore, driving without a license is not a claim under negligence per se, so make sure the statute is for safety not “revenue” generating
RULE: In NY but not the MBE
the violation of a local safety ordinance or administrative agency’s safety requirement is not negligence per se and is deemed only some evidence of negligence which the jury may consider
So the courts in NY have held that the a local ordinance is not enough, and you need the defendant to violate a state statute
The MBE will apply negligence per se when a violation occurs of
Local ordnance, statute statutes, village safety regulations
RULE: Negligence per se does not apply in which of the following three (3) situations, situation 1
(1) Where diligence of care the defendant could not have complied with the safety statute because there was no warning
RULE: Negligence per se does not apply in which of the following three (3) situations, situation 2
(2) The defendant acted under an unanticipated and sudden emergency; or
RULE: Negligence per se does not apply in which of the following three (3) situations, situation 3
(3) violating the statute was safer then complying with the statute, such as avoiding hitting a child that ran out and the defendant crossed over yellow lines and hit another car
Express and Implied Assumption of Risk is
a defense to a negligence claim
RULE: The assumption of risk defense in NY
The assumption of risk defense asserts that the plaintiff assumed a known risk of foreseeable injuries; it can be asserted as a defense or claim for negligence or even strict tort liability.
Assumption of Risk on the MBE applies to what types of conduct
the defendant’s Negligence, Strict Tort Liability, and Reckless conduct
Assumption of Risk in NY is NOT a defense for what type of conduct by the defendant
the defendant’s Reckless conduct, and intentional conduct, so if the defendant acts recklessly or intentional the assumption of risk defense is not available
RULE: a plaintiff my not hold a defendant liable for his conduct when
The plaintiff expressly or impliedly assumed the risk of the defendant’s tortious conduct
RULE: Express Assumption of Risk
Express assumption of risk arises when the plaintiff orally or in writing [which is usually in an exculpatory clause in a contract], releases the defendant (another) from future tort liability, it is an express agreement prior to the plaintiff’s injuries that the defendant does not owe the plaintiff a duty of reasonable care and the expressed assumption of risk is a complete bar to the plaintiff’s negligence claim
In NY in order for an expressed assumption of risk in a written document requires that the defendant include what type of language
The law enforces express agreements that exculpate or limit a party’s consequences of his own negligence, and NY the language in the express clause must be very specific and clear to include the word “negligence”.
The law in NY dislikes what kind of language in an expressed assumption of risk waiver
The law in NY dislikes broad language, such as “any and all claims”
RULE: in NY, what type of express written waivers are not enforceable
NY does not enforce the following express written waivers for: (1) a release in a construction contract of the strict liability arising under NY’s labor law;
(2) a release by a “recreational user” of swimming pools, health clubs or other recreational places where a “fee is charged,” and therefore, the releases are not enforceable even though you signed something
This is distinguished from the MBE
What are the motives for making a release unenforceable in NY
It encourages the establishment to have proper insurance, and protects against shady outfits from opening and closing
RULE: an expressed release is fully enforceable if the plaintiff is attending the recreational facility, health club, etc. if
However, such a release is enforceable if the user is attending the facility for “instructional purposes” rather then purpose of regular recreational uses.
Trainers and Instructional are considered against the plaintiff because
The plaintiff is taking on more risk by having a trainer or instructor
In order NOT to enforce a release waiver, what two elements must be satisfied
1- You need a physical “place” of use
2- You need to have paid a fee to maintain use the facilities
Implied assumption of risk is a defense in what situations
The implied assumption of risk is a complete bar from a claim when the plaintiff is either involved in a sporting activity or a spectator at a sporting activity
On the MBE and in NY what kind of conduct by the defendant cannot be waived by the injured party
A written NY or MBE release of the defendant’s “reckless or intentional” conduct is against public policy and cannot be waived.
Therefore, gross negligence cannot apply to a release. So if you signed a waiver to negligent conduct by the defendant, you plead something higher then mere negligence, like gross negligence to get around the waiver
Release signed by a parent for a minor child
A release signed by a parent for a minor child may not bind the minor child’s right to bring a claim, such as release must be approved by a court prior.
In NY when you have a defense of express or implied assumption of risk, the plaintiff’s attorney should either
1- knock out the release under one of the four release waivers that are not valid in NY, or 2- plead a higher standard then negligence
Implied assumption of risk
is not based on a written or orally expressed contract or release, it arises when the plaintiff’s conduct voluntarily encounters and assumes a risk, and the plaintiff is subsequently injured by a “KNOWN AND COMMON APPARENT RISK OF THE HARM” that the plaintiff engaged
RULE in MBE but not NY on implied assumption of risk
The plaintiff may impliedly assume even the risk of the defendant’s reckless conduct
RULE: the threshold question in order to assert the assumption of risk doctrine (both expressed or implied) the defendant must prove that the plaintiff, or what actions would prevent the defendant from asserting the assumption of risk doctrine
To asset the assumption of risk defense the plaintiff must have been “able” to understand what risk was being “accepted” or able to “reject” the risk and the decision by the plaintiff to do so was voluntary, thus if the defendant’s conduct foreclosed all safe and reasonable alternatives, then the assumption of risk was not voluntary, and the defense does not apply
RULE: When playing a sporting activity, either professional or amateur, a defendant is NOT liable when
The injury to the plaintiff occurred from “common and apparent risks voluntarily” known to occur by engaging in the sport, and the plaintiff assumed those risks
RULE: When playing a sporting activity, either professional or amateur, a defendant IS liable when
The injury to the plaintiff occurred from the defendant’s conduct that was an “unreasonable increase” of the “common and apparent risks voluntarily” known to occur by engaging in the sport.
Therefore, if the defendant’s conduct exceeded the plaintiff’s assumption of risk, the defendant cannot invoke the implied assumption of risk defense
The assumption of risk applies to
where the plaintiff is injured by a common an apparent risk where the plaintiff either participated or spectator in a recreational or sporting event. The assumption of risk defense ONLY applies to sporting events
In NY the assumption of risk has what affect on the plaintiff’s claim
In NY the assumption of risk has a “complete bar” to the plaintiff’s recovery
The only way for the plaintiff to get around the applied assumption of risk doctrine when the defendant elects it, is to
The only way to overcome the defense is to show that the defendant’s conduct was beyond what is common and apparent to the sport. So penalties, fouls and other wrongful conduct, are common, so just because there is a foul does not mean an automatic recovery, so you have to prove the conduct was above the common conduct in the sport
NY Courts have recognized that implied assumption of risk does not
fit well with comparative negligence, and the courts have limited the application of implied assumption of risk, and placed limitations on the application of the defense for barring claims that ONLY arise out of athletic and recreational activities
Primary Assumption of risk does what to the claim
Assumption of risk is a 100% bar to any recovery and therefore, no claim
Horseplay and the assumption of risk doctrine
Horse play in schools is not subject to the assumption of risk defense, and therefore, the assumption of risk is not applicable to horse play in schools
Outside sporting events, what use of the assumption of risk defense does the defendant have
Outside of sporting events assumption of risk is dead and not applicable because NY has comparative negligence laws
