Torts Flashcards
Malice (defamation)
To establish a reckless disregard for the truthfulness of a statement, the defendant must have entertained serious doubts about its truthfulness; mere failure to check facts is not sufficient.
Assault/Battery damages
nominal OK absent actual damages
- punitive if malice involved
NY Intentional Torts SOL
1 year after injury
IIED NY distinction
Intentional mishandling of a corpse
Assault
- reasonable apprehension of
- imminent harm
- caused by D’s action/threat
- D’s intent to cause such harm/apprehension
IIED
- Extreme and Outrageous behavior
- exceeds all bounds of human decency - Intentionally or R
- Results in severe emotional distress
IIED 3rd parties
- Immediate family
- D aware - Bystander
- D aware
- physical injury
False Imprisonment
i) Intending to confine or restrain another within boundaries fixed by the actor;
ii) Those actions directly or indirectly result in such confinement; and
iii) The other is conscious of the confinement or is harmed by it
Shopkeeper’s privilege
- reasonable grounds to suspect theft
- may detain for reasonable time
- reasonable manner
Consent by mistake
Valid unless:
- D caused mistake
- D knew of mistake and took advantage
NY Duty to Retreat
Retreat
- if can do so safely
- home
- w/n curtilage (enclosed area surrounding home)
Self Defense injury to 3rd parties
Not liable so long as not negligent
Defense of property
- cannot use deadly force
- may use reasonable non-deadly force if reasonable believe that necessary to protect tortious harm to property
Recapture of chattel
- can use reasonable force
- but must be peaceful if initial taking was lawful
Trespass to chattel
Intentionally
- dispossess P of chattel
- or intermeddles and damages chattel
*Mistake of fact not a defense
Conversion
Intentionally commits act - Deprives P of possession - OR interferes w/ P's possession So serious that - deprives P of use of her chattel
Conversion remedy
Full value of chattel at time of conversion
Conversion Defenses
- NOT OK: mistake of law/fact
- OK NY: good faith purchaser unless informed and refuses to comply
Necessity defense
right to use other’s property to save lives or more valuable property
- trespass to land/chattels and conversion
Public necessity vs Private necessity
If public necessity, not liable for any damage
Private Nuisance
- substantial (to reasonable person)
- unreasonable (injury > usefulness)
- interference
- use and enjoyment of land
Nuisance self-help (abatement)
may enter another’s land to abate nuisance after:
- notice
- refusal to comply
Standard of care (negligence)
Most courts: Reasonably prudent person under the circumstances
Modern approach: cost-benefit approach
- foreseeability of harm, severity of harm and burden of precautions
Duty
Duty to all foreseeable persons who may be injured by failure to show reasonable care
- Zone of danger
- If any P foreseeable, then duty to all harmed as result
Special class of foreseeable Ps
- if D negligently put the rescuer or the rescued party in danger
Firefighter Rule
- cannot recover against negligent party if inherent in the job
- NY does not recognize
Standard of care for children
reasonable child of similar age, intelligence, and experience
- unless involved in adult activities
Standard of care (physicians)
Traditionally, same or similar locale standard
- Modern trend: national standard
Informed consent exception (MBE)
- risk commonly known
- patient unconscious
- disclosure would be harmful
Common Carriers and Innkeepers
highest standard of care consistent w/ practical operation
Bailees
- Exclusive benny of bailee –> bound to use great care
- Mutual benny –> ordinary negligence
- Bailor benny –> gross negligence
Negligence Per Se
- Criminal or regulatory statute
- Against class of persons protected by statute
- Respecting the harm contemplated by statute
Defenses to neg per se
- Impossible under the circumstances
2. An emergency justified violation
Duty to Trespassers
Undiscovered: refrain from willful, wanton, reckless, or intentional misconduct
Discovered: Duty to warn/protect from concealed, dangerous, artificial harms
*does not apply to natural conditions or artificial harms absent risk of SBI
Attractive Nuisance
Liable to injuries to children if:
- artificial condition
- knows/should know children are likely to trespass
- knows/should know poses risk of death/SBI
- kids cannot discover/appreciate risk
- utility of maintaining the condition and burden of eliminating risk are slight
- fails to exercise reasonable care to protect kids
Invitees
- inspect property
- discover unreasonably dangerous conditions
- protect visitor from them
*Non-delegable
Licensees
Duty to correct or warn of concealed dangers that are known or should be obvious
*No duty to inspect
Landlord tort liability
common areas w/r/t hidden dangers which LL failed to warn or hazard caused by LL's negligent repairs or hazard LL agreed to fix
Duty to act
- voluntary rescuers must exercise reasonable care
- created peril (even if not negligent)
- K
- authority
- relationship
Res Ipsa Loquitor
- infer N absent direct neg
- doesnt ordinary occur w.o neg
- exclusive control of D
- not due to any action on part of P
Collateral Source Rule
Traditionally: no credit against tortfeasor liability
NY: does not recognize collateral source rule
Punitive damages in tort
willful, wanton, reckless, malicious
NIED
- N act
- creates foreseeable risk of physical injury
- causes a threat of physical impact
- results in emotional distress (usually manifests physically)
NIED (bystander)
- outside zone of danger
- closely related
- present at scene
- personally observed (or otherwise perceived)
Wrongful death
spouse, next of kin, personal rep
- loss of support
- loss of companionship
Non-fatal injury to family
Spouse: loss of consortium
Parent: loss of services if child injured
- some jx allow companionship if kid killed
Child
- most allow loss of companionship if parent died
- most do not allow loss of consortium for injured parents
Vicarious Liability (negligence)
- right to control the activities of emp
- w/n scope of employment
- intended to benny the employer
- not a frolic
Vicarious Liability (intentional torts)
- Use of force part of job
2. Authorizes emp to act on his behalf and position provides opp to commit tort
Non-delegable duties
- inherently dangerous activities
- Duty to keep public places in reasonably safe condition
Parental liability of children
Generally not liable for child’s torts
Exceptions:
- child acting as parent’s agent
- statutory
Negligence of parents
duty to exercise reasonable care to prevent intentional or negligent harm to 3rd party if:
- knows/should’ve known of necessity and opportunity to control child
- ability to control child
Abnormally dangerous activities
Strict liability
Abnormally dangerous (def)
foreseeable and highly significant risk of harm
Animals
Wild animals –> SL if harm arises from dangerous propensity of animal of which owner has reason to know
- P must not knowingly cause injury
- applies to fearful reaction to sight of unrestrained wild animal
Domestic animals –> SL if knows/should know of dangerous propensity
Defenses to SL
- contributory neg is NOT a bar
- assumption of the risk IS a bar to recovery
Animal damage to land
Owner is SL for any damage caused by his animal (not a household pet) while trespassing
Products liability damages
Non-econ damages not allowed in neg or SPL
SPL
- defective
- Existed at time left D’s control
- defect caused injury when used in an intended or reasonably foreseeable way
- foreseeable misuses count!
Design defect tests
- Consumer expectation test
- Risk-Utility Test
- reasonable and feasible alternative available and failure to use that alternative rendered design defective
Product alteration
significant changes = superseding causes
Defamation
- Defamatory language
- concerning P
- Published to 3rd party
- Damages P’s reputation
- can’t damage deceased’s reputation
Defamation (public concern)
P must prove falsity
- negligence or malice
Defamation (public official - public figure)
P must prove malice
- falsity
- P entertained serious doubts
Libel damages
- P need only prove general damages BUT, if nature of defamation reqs proof of extrinsic facts, P must prove special damages or slander per se - crime - trade/profession - disease - sexual misconduct
Slander damages
Special damages or slander per se
Constitutional limits on damaages
Public figure: actual damages only
Private individual/matter of public concern: only actual damages unless malice proven
Private individual/private matter: general (including presumed damages) w/o showing malice
Misrepresentation
- material fact
- K or R
- Intended to induce P to act
- P actually relied
- Justifiably
- Damages (economic)
Negligent Misrepresentation
- Providing false info
- to P
- P justifiably relied on info
- P is in K w/ D or P is 3rd party beneficiary known by D
Neg SOL
3 years from negligent act
SOL based on exposure to harmful substance
3 years from discovery of injury or when injury reasonably should’ve been discovered
NY parent/child
NO negligent supervision tort unless:
- aware of vicious tendencies
- negligent giving child a dangerous instrument
NY Physician Informed consent action
- D failed to timely disclosure relevant risks/alternatives
- Reasonable person would’ve gone through with it
- Poxy cause
NY Landowners
Collapsed common law categories:
Duty of reasonable care in maintaining property in a safe condition to all foreseeable Ps.
NY NIED w/o physical injury
- Special duty owed
- Breach of duty that creates unreasonable risk of physical harm
- P saw injury to immediate family member while P in zone of danger
NY wrongful death damages
NOT OK: non-economic
NY vicarious liability damages
Punitive only allowed when:
- grossly negligent hiring
- general managerial responsibilities delegated to employee
- Employer authorized conduct
NY permissive use statute
owner liable for tortious acts of allowed users
- not intentional torts
NY parental liability limit
5K for willful/intentional acts of child over 10
NY dram shop law
if patron visibly intoxicated or habitual drunkard
NY limited immunity to local municipalities
- immune from traditional gov functions
- not immune for proprietary functions
- not immune if special relationship:
- voluntary assumed duty
- reliance on past performance
Recreational facilities
Cannot disclaim liability by means of K or tix
- caused by their employees if
- user pays a fee
VOID AGAINST PUBLIC POLICY
NY Scaffold law
general contractors and owners SL for height-related injuries
- not applicable to 1-2 family dwellings
- architects/engineers not responsibly for planning
NY SPL - comparative neg
is a bar to SL and product liabilities
NY Invasion of privacy
Only recognizes appropriation
- fails at death
- not intrusion/false light/ disclosure
NY - Theft of trade secrets
Valid trade secret
not commonly known
secrecy is preserved
D used improper means to acquire it
No Fault insurance
- requires insurance for injuries to any person other than a person in another car
Covers basic econ loss up to 50K
- reasonable medical expenses
- 80% of lost wages (up to 2k/mo)
- 2K death benny
- DOES NOT COVER non-econ
*Extends to accidents in other states
Escaping No fault
- Serious injury
- death
- serious disfigurement
- fracture
- perm or extended loss/impairment of body parts or functions - Uninsured Motorist
- Econ loss > 50K
No fault exceptions
- P intentionally contributed to harm
- Committing a felony
- Stolen vehicle
- Uninsured
Worker’s Compensation
No fault insurance covering injured employees.
Covers:
- medical expenses
- wage replacement
Escaping worker’s comp
- Grave injury
- -> perm disfigurement, in pain, disabled - Can sue 3rd parties
Proxy cause
exists when the defendant’s actions are a direct cause of the plaintiff’s injuries. Or, if an intervening force occurs between the defendant’s act and the plaintiff’s injury, the defendant still may be liable if the intervening force was foreseeable.
Publishing private facts
- The First Amendment shields the media from liability for publication of a lawfully obtained private fact
- First Amendment also shields the media from liability for publishing information that was obtained illegally by a third party as long as the information involves a matter of public concern, and the publisher neither obtained it unlawfully nor knows who did
Invasion of privacy
on the public disclosure of private facts is grounded in the disclosure of truthful information about the plaintiff that is not of legitimate concern to the public and that a reasonable person would find highly offensive
Personal injury damages included
includes all actual damages incurred, past and future pain and suffering (e.g., emotional distress), medical expenses, lost wages and any reduction in future earnings capacity, and loss of consortium
Seatbelt rule
the plaintiff’s failure to wear a seatbelt is not admissible as evidence of comparative negligence,
- is admissible as evidence of a failure to mitigate damages.
- A plaintiff who fails to wear a seatbelt cannot recover for those injuries that would have been prevented had the seatbelt been worn.
Nuisance allows this type of damages
Purely economic - trespass/SL/neg do not
