Rule Paragraph 2009 Prior NY Bar Flashcards
The issue is whether a third party cross-claim or interplead a parent under the theory of negligence supervision of his/her own child
Generally, in New York there is no intra-family tort immunity. However, a child may not bring a cause of action against its parent for negligent supervision.
Third parties are also barred from bringing a cause of action against a parent for injuries flowing from the child’s action based on the theory of negligent supervision of the child
When a party files a motion to dismiss the rule paragraph is
Under the New York CPLR, a motion to dismiss may be granted if, taking all the allegations in the relevant pleadings as true, and in a light favorable to the non-moving party, there is no issue of fact, and based on the law, as applied to the undisputed facts, the moving party should be granted. However, if there is a question or issue of fact then the the motion should be denied
Generally, a prima facia case for negligence must establish
there was (1) a duty owed to the plaintiff, (2) the duty was breached, (3) and the breach was the proximate cause of (4) damages.
New York’s approach to a duty of landowner owes to persons who comes onto the land
New York REJECTED the categorical approach to the type of duty that a landowner owes to persons who come onto the land. This means the duty of care owed to person’s on the land are NOT categorical governed by that person’s status as an invitee, licensee, known or unknown trespasser, etc.
What is the standard applied in New York when someone enters a landowner’s property
New York applies the basic “reasonable person” standard of care and requires that a plaintiff show that the reasonably prudent person would have acted in a particular way under the given set of circumstances, and the defendant (landowner) failed to adhere to that standard
What theory did New York reject when it accepted the Governmental Interest Approach to choice of law issues
New York rejected the “vested rights approach” to choice of law problems. The vested rights approach stated that the law of the “situs” where the cause of action vested (accrued) is the law that should be applied in a cause of action.
The old vested rights approach to choice of law analysis, under which the law governing a claim in tort would be the law of the place where the injury occurred.
What was the issue the New York courts found with the “vested rights approach”
This approach was a clear cut answer to choice of law problems, but often led to the law of a completely disinterested State being applied to a controversy
What is the Governmental Interest Approach to the choice of law issue in a case
Under the Governmental Interest Approach, you examine the connections that each State has to the parties and events in the litigation, analyze the difference between the State laws, pinpoint the underlying policies behind those State laws, and then apply the facts to the law to determine which State has a greater interest in having its law applied.
What case(s) established and defined the Governmental Interest Approach Test
New York applies the governmental interest approach, which was developed in the Babcock case. This approach attempts to apply the law of the state with the greatest governmental interest in the outcome.
What are the three general theories, under Neumeier
Under Neumeier, (1) when both parties are domiciled in the same State, that State’s laws apply; (2) If the plaintiff and the defendant are domiciled in different states, you generally apply the law of the situs of injury as long as that State’s law would protect its own domiciliary. However, in an unprovided for case (3) one that does not fit into either of the first two categories, you apply the law of the situs of injury (where the injury accrued), unless another State has a much greater interest in the litigation
What is an “unprovided for case” under the Neumeier theory under the Governmental Interest Approach Test
In which the law of the state where the injury occurred does not favor its resident. In such a situation, the law of the state where the injury occurred is applied absent some strong governmental interest in the controversy
The governmental interest approach rule paragaraph
first identifies the factual contacts with each state; identifies the laws in issue; identifies the policies that support each of the laws; applies the factual contacts to the policies; then finally applies the law of the state with the greater interest in the outcome. In torts cases, the NY COA has refined this approach with three Neumeier tests.
