Tort - Misc. Tort Issues Flashcards
How can a π establish a private or public nuisance?
1) private nuisance = (i) a substantial, unreasonable interference with (ii) the private individual’s use or enjoyment of π’s property “Substantial” is NOT the result of π’s hypersensitivity/specialized use of the property Cts try to balance the interests (freedom of property usage vs. right to not be disturbed) to determine “unreasonable interference” NOTE: the violation of azoning ordinance or regulationmay be a factorin balancing severity; it isNOT DETERMINATIVE “Coming to the nuisance” is generally NOT a defense to nuisance unless π bought property just to bring suit 2) public nuisance = (i) an unreasonable interference with (ii) thehealth, safety, or property rights of the community E.g. using a building as a base for prostitution Private recovery for public nuisance is available ONLY IF the private party suffered unique damages from public at large NOTE: nuisance is not a separate tort in itself (i.e. you can have nuisance caused by intentional, negl, or S/L conduct)
What are the 4 relationships that fit thevicarious liabilityfact pattern? NOTE: NY distinction
- Employer/employee Relationship (respondeat superior):
- the passive employer is liable for the acts of an employee; provided that the act is committed within the scope of employment
- employer is NOT liable for the Intentional torts by employee are normally outside the scope of employment UNLESS (i) use of force is a part of the job (club bouncer) OR (ii) use of force by the employee is further goals of employer
- detour or frolic - employee can make MINOR departure/deviation from employment responsibilities and employer would STILL be liable (detour) HOWEVER employer is NOT LIABLE when an employee made unauthorized and substantial deviation (frolic)
- independent contractors - employer is generally NOT liable to independent contractors (they have special knowledge, temporary job, and not subject to employer supervision) UNLESS: nondelegable duties (employer/land owner will be vicariously liable for negligent acts/strict liability claims of independent contractor (i) hire contractor to do an inherently dangerous activities (fumigation with toxic) (ii) inland occupier/storekeeper/property owner and land OPEN TO THE PUBLIC to which have to keep reasonable safe condition (eg within store owner hires contract to build a cabin) (iii) nondelegable duties arising out of the relationship w/ a specific P or public (eg activities that are inherenly risk or affect public at large (construction work adjacent to P’s home or public highway) (iv) some jurx duty to comply with a state safety statute
- NB - outside the vicariously liability doctrine, an employer CAN BE HELD PERSONALLY LIABLE (NOT VICARIOUSLY LIABLE) for HIS OWN negligence of hiring/supervision/entrustment or retention of an employee … also for the hiring/selecting an independent contractor - Negligent Entrustment (automobile owner/driver or any other object with the potential to harm):
- general rule is YES vicarious liability for passive car owner/property owner for entrusting property with negligent user when ONLY IF the owner knew or should have known of the user’s negligent propensities … NB owner is NOT LIABLE if did not know of propensities however if lent to do an errand for owner then owner IS liable bc now have a principal-agent relationship
- NY (like many jurs) enacted ‘Permissive Use’ statute (FOR AUTOMOBILES) in which automobile user may be liable to ANYONE driving/using/loading/unloading the car (expanding the pool of recovery for P, public policy w. car insurance) statute provides that (i) owner is NOT vicariously liable for intentional tortious act by user (ii) car registration is prima facie case evidence of its ownership, raising a rebuttable presumption that the driver operated car w/ owner’s consent (iii) driving is NOT need can simply be using the car
NY DISTINCTION (Permissive Use statute): There is vicarious liability imposed on the owner of car for torts committed by ANYONE driving the car with permission (and a presumption of permission)
- Business Partners
- partner is joint venture when two or more partners have common purpose/mutual right of control can be liable for tortious acts of each other that are w/in scope of business purpose - Parent/Child Relationship
general rule is NO vicarious liability for passive adult for tortious conduct by child UNLESS (i) child is working as an agent for the parent (ii) statute violation for vandalism or school violence (iii) driving license application so parent liable for any negligent act by child in car
NY DISTINCTION:provides for same vicarious liability for parent to their children BUT amt is limited to 5,000 for damages from intentional and willful acts of minor over age of 10
- Damp Shop / Tavernkeepers/Drunks:
- owners/provider of alcohol make be liable to injuires caused to P by the 3rd party buyer of alcohol when owners/provider of alcohol provided alcohol to (i) minors or (iii) buyer who is visually intoxicated or known to get drunk/drink and drive. the general rule is NO vicarious liability for bars for tortious conduct of drunk customers
NY DISTINCTION (Dram Shop Act): makes a bar who unlawfully served (e.g. already drunk/minor) alcohol to tortfeaser, liable to the 3d party
With joint and several liablity, what 2 rights maythe out-of-pocket ∆ have against the other ∆? NOTE: NY distinction
1) Comparative contribution rights: the jury puts a number on each co-∆ and the out-of-pocket ∆ recovers based on the assigned % 2) Indemnification: cases where out-of-pocket ∆ can get FULL reimbursement… Vicarious liability: passive tortfeasor can recover from active tortfeasor Strict products liability: a non-mnfr can get indemnity from mnfr Via K: the out-of-pocket party has contractural right to indemnification NOTE: neither contribution nor indemnity affect how much the π will recover
How can suvivors of a π recover under wrongful death? NOTE: NY distinction
Thisis NOT a tort; procedural devise allows family members to stand in shoes of deceased Pecuniary damages ONLY (money deceased would have earned if lived); NOT pain & suffering If affirmative defense could have been asserted vs. deceased, then it can be asserted vs. survivors NY DISTINCTION: must be brought w/in 2 years of death; NO loss of consortium; punitive damages ARE recoverable
What are the 3spousal c/as that can be brought for tortious interference with family relationships?
1) Loss of Services: with spouse injured, the uninjured spouse can collect as you have one less person to help out (e.g. hiring another to mow lawn) 2) Loss of Society: with spouse injured, uninjured spouse cannot share companionship to same degree as before injury 3) Loss of Consortium: sex NOTE: any defense that could be asserted against physically injured party can be asserted against the uninjured spouse
When is a finder allowed to keep and retain acquired property? NOTE: NY Distinction
Depends on whether the property is… 1) Abandoned =give up possession and intent to relinquish title/ownership Rule: anyone who takes possession with desire to own becomes the new owner 2) Lost = if you part with possession BUT you have NO intent to relinquish title/cntrl/ownership (e.g., leaving umbrella behind) In NYif the item in question… has value < $20, the finder MUST make reasonable effort to locate the owner, AND IF after 1 yr, the owner is not found, you get to keep property has value > $20, then finder MUST turn item over to the POLICE; the police must then hold the item for statutory pd depending on value (NOTE: if more than $5k, the pd is 3 yrs); THEN IF no one claims then property can be kept
When can a gift giver (donor) take the item back?
Depends on type of gift… 1) Inter vivos gifts(given during the lifetime of the donor): have 3 req to past title to make gift COMPLETE/FINAL There must be an intention to past title by donor (e.g. not like borrowing lawn mower) There has to be an acceptance by the donee (NOTE: silence IS considered a valid method, so there must be a REJECTION) There must be valid delivery by (i) turning over of possession of the item (e.g. giving a physical car); OR (ii) turning over something that is representative of it (e.g. the keys to the car or the certificate of title) A first party check (i.e. “pay to the order of donee”) that is SIGNED by donor is ONLY delivered when the check is cashed A 3d party check(check that is endorsed by donor via 3d party and signed over to donee) is delivered upon receipt For stock certificates, complete delivery means signing the certificate AND taking possession Situations involving agents: (i) if agent is agent of donee, then delivery is complete upon receipt; BUT (ii) if the agent is the agent of the donor, then delivery is not YET complete 2)Gift causa mortis(gift given in contemplation of death) The gift is ONLY final when (i) there is an imminent risk of death that is likely to occur; AND (ii) the donor actually dies NOTE: Not valid if the donee dies first
What is a lien and the 2 reqs for a valid lien?
Lien= a primitive security device for debt that is associated with property Formal reqs for a valid lien: 1)There has to be a debt associated with services 2) The debtor still has formal title to the property, BUT the creditor has lawful possession
What is the difference b/t a general and a special lien?
General lien = right to retain a bunch of properties as security for general balance due (e.g. hotel room that keeps stuff in room until the bill is paid) NOTE: if you give one item back then that DOESN’T RELEASE lien as to other items Special lien = right to retain specific property related to services provide where there is a debt (e.g. mechanic’s lien) NOTE: if creditor gives up the item, then this terminates the lien BUT NOT the debt
What is a bailment and key bailment issues?
A bailment is created when you surrender possession of an item for a ltd time and ltd purpose (e.g. lending someting to someone) Bailor = owner of the object Bailee = one who’s holding the object Bailee takes on a legal duty of care wrt the item and can be held accountable if the item is destroyed Key bailment issues: 1) If an item inside of another item (e.g. car w/ stuff in the trunk) and you leave in a garage w/ key then the bailee is responsible if item is typical/ordinary (e.g. tire vs. gold bars) 2) A bank is a bailee of everything in a safe deposit box even if it’s unusual/not typical 3) If you turn over key in a garage, then it’s a bailment, BUT if it’s a part and lock, then NOT a bailment 4) A coat check bailment is regulated by statute Ltds on liability depends on whether it’s fee vs. free coat checkOR whether you declared a value for item
NY ONLY: What are the 2 elements for theft of avalid trade secret?
1) Valid trade secret EXISTS Trade secret = private information that provides business advantage, which is reasonablyprotected by π 2) Δ takes the trade secret by IMPROPER MEANS Traitorous insider: learned legitimately but then uses for own purposes Industrial spying: learning trade secret thru often criminal means (NOTE:legal means can be improper IF they overcome π’s reasonable precautions)
NY ONLY: What is no fault insurance?
Designed to divert minor auto accidents from the ct system by denying the right to sue, but giving g’teed comp from an insurance company NY ONLY gives benefits for PERSONAL injuries (i.e. NOT a banged up car, which is covered by collision insurance) Injured party receives… Medical exp Lost wages:80% of weekly wages up to 2k/month for a max of 3 yrs (i.e. if you make >$30k, then you max out) Misc expenses of $25/day up to 1 yr BUT NOTHING for pain and suffering Policy ltds can cap medical expenses This benefit is portible (even if injured out of state) BOTTOM LINE: if you see a CAR in a fact pattern THINK no fault insurance
NY ONLY:Which injured parties are (and aren’t)allowed to collect no fault benefits from an insurance company (1st party benefits)?
1) The policy holder OR any authorized driver of policy holder’s car 2) Any passenger in the policy holder’s car (assuming authorized driver) 3) Any pedestrian injured by policy holder’s car BUT NOT… 1) Drunk drivers 2) Drag racers 3) Car thieves and other fleeing felons NOTE: If two vehicles collide, occupants of each car look to no fault beneifts of THAT CAR
NY ONLY:When are you STILL permitted to file a trad negl suit in NY after the election of no fault insurance benefits?
1) When you have “injuries in excess of basic economic loss”, then you can sue anyone Formula: add medical + 80% of weekly wages capped at $2k capped at 1 yr (24k) + misc. exps at $25/day up to a yr (9k); IF it exceeds $50k, THEN you can sue 2) If you “suffered a serious injury” death dismemberment significant disfigurement; fracture loss of a fetus peminant loss of bodily organ or function perm. consequential limitation of bodily organ (e.g. perforated lung and having trouble breathing) significant ltd of use of bodily function/system a non-permanent injury that prevents you from performing acts that are normally/customary for π for a pd of 90 days NOTE: you can BOTH damages and no-fault recovery, but no double recovery (i.e. no 2x medical bills)
What is the 4-part test determining whether injunctive relief is appropriate?
1) π must show that there is no adequate remedy at law(i.e. money is not adequate on the facts of this case to provide relief) Where ∆ has no money (insolvent ∆) The harm is impossible to measure in monetary terms ∆ is abt to destroy a priceless artifact ∆ keeps trespassing on land; or keeps punching you in face 2)you have a protectable right involved in this particular lawsuit This is a legacy element as cts once held that you can only get an injunction if your property interests were effected Modern view: you have a protectable interest if reputation, privacy, bodily integrity is involved This is kind of a “free square on a bingo card”; never an obstacle to getting an injunction 3)injunction must be enforceable Almost never an issue in a negative injunction With an affirmative injunction you may have an issue E.g., A paper has to print a retraction and then the ct would have to judge whether retraction is sufficient Look at the complexity of the conduct (the harder, the harder it is to be enforceable) Look how long it would take (longer? Harder to enforce) Look to see whether activities would take place out of jx 4)the balance of hardships must “tip in the π’s favor” The benefit to the π, must outweigh the harm that the ∆ will suffer NOTE: injunctions and monetary damages are NOT mutually exclusive
