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.
