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NYS Bar > Torts > Flashcards

Torts Flashcards

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1
Q

What is the risk-utility test?

A

To prevail on a claim for strict product liability, a jury must determine that the risks posed by the product outweigh its benefits. The alternative design must have been economically feasible.

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2
Q

What is required to show defamation of a group?

A

If a defamatory statement is made about a group, the group must be so small that it can reasonably be understood to refer to the plaintiff as a member of the group.

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3
Q

What is self defense?

A

Defense to intentional tort.

Third-parties are justified in using reasonable force in defense of others upon reasonable belief that the defended part would be entitled to use self-defense him/herself.

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4
Q

Cardozo’s view of duty

A

Defendant is liable only to a plaintiff who is within the zone of foreseeable harm. This looks like a causation inquiry, but Cardozo analyzed it under duty.

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5
Q

Trespass to chattels

A

Intentional interference with the plaintiff’s right of possession by either (1) dispossessing the plaintiff of the chattel OR (2) using or intermeddling with the plaintiff’s chattel.

Must prove actual damages caused by interference or loss.

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6
Q

Manufacturing defect elements

A

(1) product was defective (differed from design specification)
(2) the defect existed at the time the product left the defendant’s control
(3) the defect caused the plaintiff’s injury when used in an intended or reasonably foreseeable way (including foreseeable misuse).

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7
Q

What is the professional negligence standard?

A

Whether the professional exercised the same skill, knowledge, and care as another electrician in the community.
Note: Community standard is NOT conclusive. Judge can determine that community standard itself is negligent.

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8
Q

Common carrier and innkeeper liability

A

Common law = Highest duty of care.

Third Restatement = Reasonable care

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9
Q

What is a guest statute?

A

Automobile drivers owe a duty of ordinary reasonable care to all passengers, including guests (riders who do not pay for the ride).

A minority of states have passed guest statutes, imposing only a duty to refrain from gross or wanton and willful misconduct regarding guests. (Lowers the standard of care.)

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10
Q

What is an intervening cause?

A

Does NOT break the causal chain. Defendant is liable for harm caused by foreseeable intervening forces that occur at the time of the defendant’s act and the plaintiff’s injury.

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11
Q

What is a superseding cause?

A

Breaks the causal chain.

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12
Q

Attractive nuisance doctrine elements

A

(1) artificial condition exists
(2) owner knows or has reason to know children are likely to trespass
(3) owner knows or has reason to know that the condition poses an unreasonable risk of death or serious injury to children.
(4) the children, because of youth, do not discover or cannot appreciate the danger
(5) utility of maintaining the condition and the burden of eliminating the danger are slight compared to the risk of harm to children
(6) landowner fails to exercise reasonable care to protect the children from harm.

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13
Q

Elements of Intentional Tort

A

(1) Voluntary act

(2) Intent = purposeful and knowing the consequence is substantially certain

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14
Q

Battery elements

A

(1) harmful or offensive conduct (objective standard)
(2) To another’s person
(3) Causation
(4) Intent (transferred intent applies)

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15
Q

Assault Elements

A

(1) Conduct or other circumstances (mere words insufficient)
(2) π has reasonable apprehension and awareness of ∆’s act
(3) Imminent threat of harm
(4) intent (transferred intent applies)

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16
Q

Intentional Infliction of Emotional Distress (IIED) Elements

A

(1) intent (not transferred) or recklessness
(2) Extreme and outrageous conduct by ∆
(3) 3rd Party Liability (members of immediate family even if no bodily injury) (bystander with bodily injury)

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17
Q

False Imprisonment elements

A

(1) Intent to confine or restrain within boundaries
(2) victim is conscious of confinement OR harmed by it

Shopkeeper’s privilege = can reasonably detain someone suspected of shoplifting

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18
Q

What are the 6 defenses to intentional torts?

A

(1) Consent (express or implied)
(2) Self defense
(3) Defense of others
(4) Defense of property
(5) parental discipline
(6) Privilege of arrest (see felony + reasonable to suspect the person arrested committed it. Different standards for mistake of whether crime committed for private vs police)

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19
Q

Trespass to Chattels elements

A

(1) interference with πs right of possession (dispossessing or intermeddling)
(2) Intent to do the act

mistake not a defense

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20
Q

Conversion

A

(1) intentional act
(2) interferes with π’s possession
(3) serious enough to deprive π of the use of the chattel
(4) damages (full value of property or replevin)

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21
Q

Trespass

A

(1) intent to be on the land (knowledge of trespass immaterial)
(2) physical invasion

Necessity as defense: Private and public necessity

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22
Q

Private Nuisance

A

substantial and unreasonable interference with another’s use or enjoyment of his land

Defenses: (1) regulatory compliance = admissible but not complete defense (2) coming to the nuisance = not complete defense

Abatement = reasonable force permitted to abate, but ∆ must receive notice of the nuisance and refuse to act first.

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23
Q

Public Nuisance

A

Unreasonable interference with a right common to the general public

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24
Q

Negligence elements

A

(1) Duty
(2) Breach
(3) Causation (but-for and proximate)
(4) Harm

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25
Q

When do ∆’s have an affirmative duties to act?

A

(1) assumption of duty
(2) placing another in peril
(3) contract
(4) by authority
(5) by relationship (employer-employee / parent-child / common carrier-passenger)

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26
Q

What is negligence per se? What are its elements?

A

(1) Criminal or regulatory statute imposes a specific duty for protection of others
(2) ∆ neglects duty
(3) ∆’s violation proximately caused the harm

∆ is liable for anyone in the class of people intended to receive protection for the harms of the type the statute intended to protect against

Defenses: (1) compliance impossible, (2) violation reasonable under the circumstances

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27
Q

What are the three specific standards of care assigned to three types of tortfeasers?

A

Common carriers = highest duty of care consistent with operation of the business (majority view)

Innkeepers = ordinary negligence standard (majority)

Automobile drivers = ordinary care to guests and passengers (majority), unless guest statute imposes lower duty. (minority = refrain from wanton & willful misconduct)

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28
Q

What duty is owed to trespassers under the traditional and modern/restatement approaches?

A

Traditional approach = no willful, wanton, reckless or intentional misconduct

Modern and Third Restatement = reasonable standard of care under all circumstances. No duty to a flagrant trespasser.

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29
Q

What duty is owed to off-premises victims?

A

Duty to prevent unreasonable risk of harm by artificial conditions.

No duty to protect against harm by natural conditions (except trees in urban areas)

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30
Q

Res ipsa loquitur elements

A

(1) π’s injury under ∆’s exclusive control
(2) injury would not occur unless negligent
(3) π is not responsible for injury

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31
Q

Eggshell π rule

A

Extent of damages need not be foreseeable

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32
Q

What are “actual damages”?

A

Actual injuries (personal or property damages), not just economic loss

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33
Q

What are “compensatory damages”?

A

Make the victim whole

34
Q

What is a “personal injury”?

A

past and future pain and suffering, medical expenses, lost wages, reduced future earnings, and eggshell rule

35
Q

What is the collateral source rule? What is it in common law versus NY?

A

Traditional = Benefits from outside source are not credited against liability

NY = payments from outside source are credited against liability

36
Q

Negligent infliction of emotional distress (NIED) elements

A

(1) threat of physical impact directed at π or someone near π
(2) (a) bystander is within the zone of danger OR (b) has a close relationship to injured person, is present, and personally observed the accident
(3) Physical symptoms required (majority rule)

37
Q

Vicarious liability (respondeat superior)

A

Tort committed within the scope of employment (includes detours but not frolics)

No vicarious liability for negligent hiring, supervision, entrustment, or retention of employee. These are primary negligence of the employer.

No liability for independent contractors

38
Q

Vicarious liability (partners)

A

Partners with a (1) common purpose and (2) mutual right of control = vicarious liability

39
Q

Vicarious liability (Car owners / negligent entrustment / family use statutes)

A

Negligent entrustment = if ∆ knows or should have known of the driver’s negligent propensities

Family use statutes = ∆ is liable for tortious act of family members driving with permission
vs.
Owner liability statute = liable for anyone driving with permission

40
Q

When is assumption of risk? When is it a defense to negligence?

A

Unreasonably proceeding in face of known, specific risk bars recovery. Applicability depends on type of jurisdiction:

(1) Contributory negligence jurisdiction—no recovery
(2) Comparative fault jurisdiction—merely reduces recovery (merges into comparative fault analysis)

41
Q

Strict liability categories

A

“DAD”

(1) Abnormally dangerous activity
(2) Animals (wild) (domestic only if owner knows or has reason to know about dangerous propensities OR reasonable foreseeable damages caused by trespassing animals)
(3) Defective products

42
Q

What are the types of products liability?

A

(1) Defective Design
(2) Defect in manufacturing
(3) Failure to warn

43
Q

Product defect elements

A

(1) product was defective
(2) defect existed when it left ∆’s control
(3) defect caused π’s injuries when used in a reasonably foreseeable way

No privity requirement

44
Q

Defective Design tests

A

(1) consumer expectation test = dangerous beyond expectation of ordinary consumer
(2) risk-utility test = reasonable alternative designs were economically feasible and available to ∆ + Failure to use that design made the product unreasonably unsafe

45
Q

What is a manufacturing defect?

A

Product does not conform to ∆’s own specifications

46
Q

What is a failure to warn defect?

A

(1) foreseeable risk of harm
(2) not obvious to ordinary user of the product
(3) risks could have been reduced or avoided by giving instructions/warnings

47
Q

What is the implied warranty of merchantability?

A

Product is generally acceptable and reasonably fit for ordinary purpose

48
Q

What are the types of warranty?

A

(1) merchantability (implied)
(2) fitness (implied)
(3) any express warranties

49
Q

What is the implied warranty of fitness?

A

Product fit for particular purpose. Seller must know the purpose and know the buyer relied on seller’s skill or judgment in supplying the product.

50
Q

Defamation elements

A

(1) Defamatory language (reduces respect, esteem or goodwill)
(2) of or concerning π
(3) publication to a third party
(4) falsity
(5)
If public figure = actual malice
If private figure + matter of public concern = negligence or actual malice
if private figure + no public concern = at least negligence

51
Q

What are the 4 defenses to defamation?

A

(1) truth
(2) consent
(3) absolute privilege
(4) qualified privilege
(5) defamed person is dead

52
Q

What are the 4 common law invasion of privacy torts?

A

(1) misappropriation
(2) intrusion upon seclusion
(3) false light
(4) public disclosure of private facts

53
Q

Intentional interference with contract elements

A

(1) ∆ knew of contractual relationship between π and 3rd party
(2) ∆ intentionally interfered with contract, resulting in a breach AND
(3) breach caused damages to π

54
Q

Theft of trade secrets elements

A

(1) P owns valid trade secret (provides a business advantage)
(2) Not generally known
(3) Reasonable precautions to protect
(4) D took secret by improper means

55
Q

Malicious prosecution

A

Intentional & malicious institution of legal proceeding for

improper purpose; no probable cause; action dismissed in favor of the person against whom it was brought

56
Q

Abuse of Process

A

use of legal process against P in a wrongful manner to accomplish a purpose other than that for which the process was intended; willful act; proof of damages
required

57
Q

Is assumption of risk a defense in comparative fault jurisdictions?

A

No. It merges into the comparative fault analysis.

58
Q

Does assumption of risk apply as a defense to strict liability theories?

A

Yes.

59
Q

Can you defame a dead person?

A

No. A deceased person cannot be legally defamed

60
Q

What is misappropriation of the right to publicity?

A

Use of π’s name or likeness for commercial purposes without authorization.

61
Q

What is intrusion upon π’s private affairs?

A

∆ intrudes upon π’s private affairs, solitude, or seclusion in a manner unreasonable to a reasonable person.

62
Q

What is false light?

A

Putting together half-truths to convey a false impression about π.

63
Q

What is public disclosure of private facts?

A

(1) ∆ gives publicity (more than mere publication) to a matter concerning the private life of another
(2) matter publicized is highly offensive to a reasonable person
(3) matter is not of public concern (defined broadly)

64
Q

Is workplace safety a delegable duty for vicarious liability?

A

No. Even if employer hires an independent contractor, duty of workplace safety is not delegable.

65
Q

When is a π entitled to punitive damages for intentional torts?

A

Upon showing that ∆ acted (1) with malice OR (2) outrageously, willfully, or wantonly.

66
Q

When is strict liability imposed for wild animals?

A

(1) If the harm arises from a dangerous propensity that is characteristic of the wild animal OR of which the owner has reason to know.
(2) for π’s fearful reaction to the sight of an unrestrained wild animal

67
Q

What is a wild animal?

A

As a species or class is not by custom devoted to the service of mankind in the place where he is being kept.

68
Q

When is strict liability imposed for domestic animals?

A

(1) If he knows or has reason to know of the animal’s dangerous propensities AND the harm results from those dangerous propensities.
(2) under a dog-bite statute

69
Q

What is a dog-bite statute?

A

Many states hold owners of dogs or other domestic animals strict liable for damages from personal injuries.

70
Q

When is an animal owner strictly liable for damages caused by a trespassing animal?

A

Owner of any animal (domestic or wild) is strictly liable for “reasonably foreseeable” damages caused by the animal while trespassing.
Exception for dogs and cats. However, exception does not apply if the animal’s owner knows of the intrusion and its tendency to cause damage.

71
Q

When will a π’s own conduct reduce damages in a strict liability claim?

A

Depends on jurisdiction:
Contributory negligence = π’s actions cannot bar recovery.
Comparative negligence = (1) majority = no reduction; (2) minority = reduced

Assumption of risk = can always bar recovery if ∆ was aware of the danger and voluntarily assumed the risk.

72
Q

Is a landlord generally liable for damages caused by a tenant’s animal?

A

No. But some jurisdictions hold landlord liable under a negligence theory if landlord knows about the animal and its dangerous propensity.

73
Q

What are the two ways for third-parties to assert negligent infliction of emotional distress?

A

(1) bystander within zone of danger

(2) (i) π closely related to victim, (ii) present at the scene of injury, AND (iii) personally observed the injury

74
Q

Can a π recover economic loss in a strict liability tort claim?

A

No. Only personal injury or damage to property.

75
Q

What is transferred intent?

A

When a person intends to commit one intentional tort, but ends up committing another, the person is liable for the tort actually committed.

Also applies when person intends to commit the tort against one person but instead commits it against another.

76
Q

What are the qualified privileges to defamation?

A

(1) statement is in the interest of the ∆, such as defending his reputation
(2) in the interest of the recipient of the statement
(3) matter affecting an important public interest
(Most common in employment references, credit reports, charges and accusations within professional societies, etc.)

77
Q

When is a qualified privilege to defamation lost?

A

If it is abused, by making statements outside the privilege or acting with malice (∆ cannot know that the statement is false).

78
Q

What are the absolute privileges to defamation?

A

(1) in the course of a judicial proceeding (and must relate to the proceeding)
(2) in the course of legislative proceedings
(3) between husband and wife
(4) required publications by radio, television, or newspaper (e.g., statements by a political candidate)

79
Q

What special proof of damages must be shown in a slander case?

A

Special damages. (not needed in defamation case). Exception if slander pre se.

80
Q

What are the slander per se cases?

A

(1) serious crime of moral turpitude
(2) unfit for trade or business
(3) loathsome disease
(4) sexual misconduct

NYS Bar (24 decks)

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