Torts

Question 1

What are the 3 elements offalse light? NOTE: NY distinction

Answer 1

1)widespread dissemination of a major falsehood abt π 2) actwould be highly offensive to a reasonable person …ONLY IF the matter is in the public interest… 3) the ∆ had malice (i.e. knowledge of falsehood or reckless disregard as to its falsity) NOTE: no need to prove special economic damages, emotional distress/anguish is suffiicent NOTE: this tort ~ defamation; differences: (i) for false light the falsehood doesn’t have to defame; (ii) re: damage award: defamation = economic damages, BUT false light = dignitary damages NY DISTINCTION In NY, there is no “common law right to privacy”&raquo_space;this tort doesn’t exist

Question 2

What are the 2 elements ofmisappropriation of likeness? NOTE: NY distinction

Answer 2

1) The unauthorized use of π’s picture or name 2) The use is for ∆’s COMMERCIAL advantage NOTE: there is a newsworthiness exeption wrt this tort (e.g. if Sports Illustrated put pic of Jeter on mag, then mag isn’t liable; unauthorized bio) NOTE: no need to prove special economic damages, emotional distress/anguish is suffiicent NY DISTINCTION In NY, there is no “common law right to privacy”; however, “appropriation” is recognized by STATUTE The c/a survives death of π Does not protect corporations

Question 3

What are the 5 elements ofintentional misrepresentation (fraud)?

Answer 3

1) misrepresentation of a material fact Silence is generally NOT enough 2) scienter (∆ intentionallyOR recklessly made thefalsestmt) 3) ∆ had intent to induce π’s reliance on the stmt 4) justifiable and actual reliance by π Generally, reliance is justified only as to a stmt of fact (not opinion) 5) actual pecuniary damages (e.g. economic loss) NOTE: there are NO defenses to intentional misrepresentation

Question 4

What are defenses toinvasion of privacy torts? NOTE: NY distinction

Answer 4

1) Consent: Express consent OR implied consent BUT incapcitated individuals (incompetents; drunks; etc) are DEEMED INCAPABLE of consent 2) Absolute privilege w/r/t false light or disclosure: can NEVER be loss; encompasses remarks… made during judicial proceedings (judges, lawyers, witnesses, etc) by legislators during proceedings by federal executive officals in “compelled” broadcasts b/t spouses 3) Qualified privilege w/r/t false light or disclosure: can be lost thru abuse (i.e. it must be made in GOOD FAITH; and confined to RELEVANT STMTS/BE IN SCOPE) Generally: will arise in any situation where there is public interest to encourage ppl to speak candidly NOTE: truth IS NOT a defense NY DISTINCTION:In NY, there is no “common law right to privacy” only protection of appropriation by statute, which provides for the following defenses to prima facie appropriation… Prior written consent A photographer exhibiting his work (unless continues after written notice of objection) Goods or artwork containing name/picture that has been disposed of

Question 5

What are 4 defenses todefamation?

Answer 5

1) Consent: Express consent OR implied consent BUT incapcitated individuals (incompetents; drunks; etc) are DEEMED INCAPABLE of consent 2) Truth: where π doesn’t have to prove falsity (i.e. purely private matter), if ∆ proves truth then it’s a complete defense 3) Absolute privilege:can NEVER be loss; encompasses remarks… made during judicial proceedings (judges, lawyers, withnesses, etc) by legislators during proceedings by federal executive officals in “compelled” broadcasts b/t spouses 4) Qualified privilege: can be lost thru abuse (i.e. it must be made in GOOD FAITH; and confined to RELEVANT STMTS/BE IN SCOPE) Generally: will arise in any situation where there is public interest to encourage ppl to speak candidly

Question 6

What are the 4 elements ofinterference w/ business relations?

Answer 6

1) existence of a valid K relationship b/t π and a 3d party OR a valid business expectancy of π 2) ∆’s knowledge of the relationship/expectancy 3) intentional interference by the ∆ inducing a breach/termination of the K/expectancy 4) damages

Question 7

What are the 3 elements of disclosure? NOTE: NY distinction

Answer 7

1) public disclosureof a private/confidential infoabt π Liability would attach even if the information disclosed was true 2) disclosurewould be highly offensive to a reasonable person …ONLY IF the matter is in the public interest… 3) the ∆ had malice (i.e. knowledge of falsehood or reckless disregard as to its falsity) EXCEPTION: the “duel spheres of life” fact-pattern&raquo_space;It’s often that you share info with one sphere (neighbors) but NOT other (employer); if that info is carried to another sphere (employer), then it’s not actionable as this is considered public NOTE:there is a news worthiness exception (if there is a public desire to know, then this is relaxed) NOTE: no need to prove special economic damages, emotional distress/anguish is suffiicent NY DISTINCTION In NY, there is no “common law right to privacy”&raquo_space;this tort doesn’t exist

Question 8

What are the 5 elements of defamation? NOTE: NY Distinction

Answer 8

1) Defamatory language of OR concerning the π Defamatory = if it adversely affects the reputation the subject of that stmt (i.e. name calling&raquo_space; never; fact-based opinion&raquo_space; maybe) Has to be concerning a living person Stmts abt a group: (i) if the stmts are about a large group, NO one is defamed; (ii) if the stmt is about a small group, π may recover if it can be reasonably be associated with π 2) Publication (intentionally OR negligently)by ∆ to a 3d person (NOT just π) NO de minimis req: revealing to ONE 3d person is sufficient for publication Primary publishers (newspapers, etc) are ALWAYS liable; secondary publishers (newspaper stand, etc) MAY be liable (if they knew of defamatory content) 3) Damage to π’s reputation (type depends on type of defamation) Libel (written/printed/broadcasted publication of defamatory language): general damages are PRESUMED; no need to prove special damages Slander (spoken defamatory language): UNLESS slander per se [(i) related to π’s business/profession; (ii) π has committed crime of moral torpitude (e.g. fraud); (iii) the woman π is unchaste; (iv) π has loathesome disease (leprosy; or STD)], π has to prove special economic damages NY DISTINCTION: there is an additional slander per se category available: imputation of homosexulaity …[1st Am reqs] ONLY IF matter of “public concern”… 4) Falsity of the dematory language If stmt is TRUE, then NO c/a for defamation 5) Fault on ∆’s part (depending π’s status) If π is PUBLIC OFFICIAL OR FIGURE, π has to prove malice (knowledge that stmt is false OR reckless disrgard as to its truth) to get damages If π is PRIVATE PERSON (AND matter of PUBLIC CONCERN), π has to prove at least negligence as to stmts falsity to get damages for ACTUAL INJURY NOTE: liability for IIED for defamatory speech MUST meet the defamation stds and CANNOT exist for speech otherwise protected by the 1st Am

Question 9

What are the 2 elements ofintrusion upon a person’s seclusion? NOTE: NY distinction

Answer 9

1) ∆’s prying or intruding into a private matter If no reasonable expectation of privacy (out in park), then not private and NO c/a for intrusion 2) Intrusion is highly offensive to a reasonable person NOTE: no need to prove special economic damages, emotional distress/anguish is suffiicent NY DISTINCTION In NY, there is no “common law right to privacy”&raquo_space;this tort doesn’t exist

Question 10

When isinterference w/ business relations by ∆ privileged?

Answer 10

A privilege can be found if ∆… interfered only with π’s prospective business rather than existing K used commercially acceptable means of persuasion rather than illegal/threatening tactics is a competitior of π seeking the same prospective business is a fiduciary of the 3d party, responsible for giving advice

Question 11

What are the 2 elements ofmalicious prosecution?

Answer 11

1) ∆ institutes criminal or civil proceedings against π w/o probable cause Prosecutors are immune from liability 2) termination in favor of the π 3) case was brought for an improper purpose (e.g. brought case for revenge) 4) damages

Question 12

What are the 2 elements of assault?

Answer 12

1) The ∆ must intentionallyplace π in reasonable apprehension Apprehension = knowledge of something;doesn’t need to be definitive, just reasonable and apparent You don’t have to fear the ∆ to have apprehension 2) The reasonable apprehension must be of an immediate battery (harmful/offensive contact) Words alone (without action/physical gesture) lack immediacy; however, words can negate OTHERWISE valid immediacy (i.e. conditional words to negate a threat OR future intent words coupled with present ability [weapon] to harm) NOTE: damages are not required (π can recover nominal damages)

Question 13

What are the 2 elements of battery?

Answer 13

1) The ∆ must intentionallycommit a harmful ORoffensive contact Intent = is satisfied as long as the ∆ knew with subsantial certainty that the harmful/offensive contact would take place Offensive = violates a reasonable sense of personal dignity(i.e. if it’s unpermitted by a person of ordinary sensitivity) 2) The contact must be with the π’s “person” “Person” includes anything that is connected to the π (what’s he’s holding, touching, etc) NOTE: damages are not required (π can recover nominal damages)

Question 14

What is tortioustransferred intent?

Answer 14

As long as ∆ has requisite intent at beginning of an intentional tort, the intent req is satisfied even if a DIFFERENT PERSON gets hurt or a DIFFERENT TORT is committed

Question 15

Which 5 intentional torts are subject to transferred intent docrtine?

Answer 15

Transferred intent may be invokes ONLY IF the tort INTENDED and the RESULTING tort are among these… assault battery false imprisonment tresspas to land trespass to chattels

Question 16

What isintent?

Answer 16

Intent may EITHER be…. Specific =the goal in acting is to bring about specific consequences General = the actor knows with “substantial certainty” that specific consequences will result NOTE: Everyone is “capable” of forming intent…INCAPACITY IS NOT A DEFENSE (e.g. a minor can form requisite intent)

Question 17

What are the 2 elements of false imprisonment?

Answer 17

1) The ∆ must commit act of restraint/confinement Sufficient restraint/confinement =(i) physical barriers; (ii) physical force; (iii) actionable threats of immediate force; (iv) failure to release; and (v) invalid use of legal authority Act of restraint only counts if π knows of it OR is harmed by it (if π is unaware AND unharmed, then there can be no tort c/a for false imprisonment) 2)The π must be confined in a bounded area An area is NOT bounded, if there is a reasonable way to escape that π can reasonably discover (If it’s disgusting, hidden, humiliating OR dangerous, then it’s NOT reasonable) Amt of time confined is IRRELEVANT NOTE: damages are not required (π can recover nominal damages)

Question 18

What are the 3 elements of intentional infliction of emotional distress (IIED)?

Answer 18

1)∆ must engage in outrageous conduct (intentionally OR recklessly) Outrageous conduct = “exceeds all bounds of decency tolerated in a civilized society” NOT outrageous = (i) mere insults; (ii) ∆ exercising his 1st Am rights Outrageous (factors) = (i) the conduct is repetitive/continusous; (ii) the ∆ is a common carrier (Amtrak) or an inkeeper (hotel) can be liable for “gross insults”; (iii) member of a certain fragile π (i.e. children, elderly, known pregnant women) 2)π must be severely distressed No specific evidence needs to be offered by π π DOESN’T need to exhibit physical symptoms from the distress BUTactual damages are necessary(π CAN’T recover nominal damages) 3) For 3d party bystander IIED, must prove: The π was present when the injury occured The π is a close relativeof the injured person; AND The ∆ knew that the π was present AND was a close relative to the injured person

Question 19

What are the 2 elements of trespass to land?

Answer 19

1)The ∆ must commit an act of PHYSICAL invasion Physical Invasion = (i) physical entrance onto property; (ii) propelling/throwing/tossing something physical onto land; but NOT (iii) intangible forces (light, smells, sounds, etc) 2)The act must interfere w/ π’s exclusive possession of real property Real property = includes not only the surface BUT ALSO airspace and subterrain (at reasonable distances) The cause of action belongs to person in possession, not necessarily the owner (the lessee) NOTE: damages are not required (π can recover nominal damages)

Question 20

What istrespass to chattels? (versus conversion?)

Answer 20

∆ intentionally interferes with π’s right of possession in a chattel Types of interference = (i) intermeddling (directly damaging chattel); OR (ii) dispossession (depriving π of lawful right to posess) ∆’s mistake as to ownership will not insulate from liability NOTE: the damage remedy is the cost of repair ————————– re: Conversion vs. TTC Conversion requires interference so serious that it warrants requiring ∆ to pay FULL value Factors of serious interference: (i) the withholding pd; (ii) the extent of the use/damage NOTE: the damage remedy is for full mkt value (a forced sale) at the time of the CONVERSION

Question 21

What is valid consent to an intentional tort?

Answer 21

1) Express consent= spoken/written “words” by π, giving ∆ permission to behave in a certain way Express consent is not a valid defense if obtained via fraud (as to essential matter), duress (threats);OR π’s mistake (if ∆ took advantage of that mistake) 2) Implied consent = two types… Apparent consent = consent based on ∆’s reasonable interpretation of π’s objective conduct/body language (NOTE: this applies ONLY to NORMAL contactinherent in sports, ordinary incidental contact like on a train, etc) Consent implied by law = arises when it’s necessary to save a person’s life (or other important interest in person or property) NOTE: incapcitated individuals (incompetents; drunks; etc) are DEEMED INCAPABLE of consent; BUT children can consent to an age appropriate invasion of their person NOTE: all consents have a scope, and if ∆ exceeds the scope, then he will be liable for the tort

Question 22

When canself-defense excuse a ∆’s intentional tort? NOTE:NY distinction

Answer 22

1) When a ∆ reasonably believes that she is being OR is about to be attacked The threat must be in progress or imminent→can’t use self-defense to responded to completed intentional tort (i.e. revenge) A reasonable mistake as to the existence of the danger is allowed Generally NOT available to intital aggressor 2) When ∆ uses such force as reasonably necessary to protect against injury Can use up to deadly force if the circumstances necessitate it NY DISTINCTION: If there is a possibility of retreat, then you CAN’T use deadly force; UNLESS…(i) ∆ can’t retreat safely; (ii) ∆ is in his own house; (iii) ∆ is a police officer (or a person assisting a police officer)

Question 23

When can defense of othersexcusea ∆’s intentional tort?

Answer 23

1) When a ∆ reasonably believes that a 3d partyis being OR is about to be attacked The threat must be in progress or imminent&raquo_space;can’t use defense of others to responded to completed intentional tort (i.e. revenge) A reasonable mistake as to the existence of the danger to 3d partyis allowed 2) When ∆ believes that the 3d party could have used force to defend himself Can use as much force as he could have used in self-defense if he were the one threatened with injury

Question 24

When can defense of propertyexcuse toa ∆’s intentional tort?

Answer 24

One may use reasonable force (but NOT deadly force)to prevent the commision of tort against her real or personal property E.g., Asecurity guard’s privilege to use REASONABLE force in detaining suspects (defense to false imprisonment) OR in attempting arrest (assault) A request to desist or leave must first be made (UNLESS futile) The threat must be in progress (∆’s defense will be in hot pursuit) or imminent→can’t use defense of property to responded to completed intentional tort (i.e. revenge) A reasonable mistake as to whether an interference has occured is allowed; NOTE: mistake is NOT ALLOWED when π’s interference is privileged (e.g. necessity)

Question 25

When can private necessityexcuse toa ∆’s intentional tort to property (land, chattels, conversion)?

Answer 25

If there is an emergency, which requires protection of∆’sprivate interest The ∆ IS liable for actual damages to π’s property, BUT is not liable for nominal/punitive damages As long as the emergency continues, the ∆ CANNOT be expelled, evicted or ejected; there is a “right of sanctuary”

Question 26

When can public necessityexcuse toa ∆’s intentional tort to property (land, chattels, conversion)?

Answer 26

If there is an emergency, which requires protection of thecommunity as a whole or a significant group of ppl The ∆ IS NOT liable for actual damages, nominal or punitive damages w/r/tto π’s property As long as the emergency continues, the ∆ CANNOT be expelled, evicted or ejected; there is a “right of sanctuary”

Question 27

NY ONLY What are the 2 elements of prima facie tort?

Answer 27

1) intent to do harm (cf. intent to do action that then causes harm) 2) π must allege/prove special (pecuniary) damages NOTE: This is a “catch all” tort that could apply ONLY IF no other traditional tort is available

Question 28

How can a π establish a private or public nuisance?

Answer 28

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)

Question 29

What are the 4 relationships that fit thevicarious liabilityfact pattern? NOTE: NY distinction

Answer 29

1) Employer/employee (respondeat superior):the passive employer is liable for the acts of an employee; provided that the act is committed within the scope of employment Intentional torts by employee are normally outside the scope of employment (UNLESS force is a part of the job OR employee is further goals of employer) An employee can make MINOR departure from employment responsibilites and employer would STILL be liable (UNLESS the departue is significant) Independent contractors: in general NO liability for independent contractor, UNLESS: (i)land occupier hires IC who injures invitee (e.g. a customer); (ii) negligent hire; (iii) non-delegable duties (e.g. IC doc in the ER); OR (IV) abnormally dangerous acitivity 2) Automobile owner/driver: the general rule is NO vicarious liability for passive car owner driven by another tortfeasor, UNLESS the car is lent to do an errand for the owner (becomes principal agent rel) NY DISTINCTION (Permissive Use statute): There is vicarious liability imposed on the owner for torts committed by ANYONE driving the car with permission (and a presumption of permission) 3) Parent/child: the general rule is NO vicarious liability for passive adult for tortious conduct by child UNLESS the child is working as an agent for the parent NY DISTINCTION:provides for vicarious liability for adult, BUT only for a maxmium amt of $5k in damages for intentional property torts by children > 10 4) Tavernkeepers/drunks: 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

Question 30

With joint and several liablity, what 2 rights maythe out-of-pocket ∆ have against the other ∆? NOTE: NY distinction

Answer 30

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

Question 31

How can suvivors of a π recover under wrongful death? NOTE: NY distinction

Answer 31

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

Question 32

What are the 3spousal c/as that can be brought for tortious interference with family relationships?

Answer 32

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

Question 33

When is a finder allowed to keep and retain acquired property? NOTE: NY Distinction

Answer 33

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

Question 34

When can a gift giver (donor) take the item back?

Answer 34

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

Question 35

What is a lien and the 2 reqs for a valid lien?

Answer 35

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

Question 36

What is the difference b/t a general and a special lien?

Answer 36

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

Question 37

What is a bailment and key bailment issues?

Answer 37

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

Question 38

NY ONLY: What are the 2 elements for theft of avalid trade secret?

Answer 38

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)

Question 39

NY ONLY: What is no fault insurance?

Answer 39

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

Question 40

NY ONLY:Which injured parties are (and aren’t)allowed to collect no fault benefits from an insurance company (1st party benefits)?

Answer 40

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

Question 41

NY ONLY:When are you STILL permitted to file a trad negl suit in NY after the election of no fault insurance benefits?

Answer 41

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)

Question 42

What is the 4-part test determining whether injunctive relief is appropriate?

Answer 42

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

Question 43

What 2 special defenses may a ∆ assert against an injunctive remedy (ONLY)?

Answer 43

1) Unclean hands: the π is guilty of some offsetting conduct 2) Laches: prejudicial delay by π to seek relief (~SOL, but independent of SOL) E.g. if there is a legal nuisance, and both money and injunctive relief is requested; since factory has been there for YEARS, and the π didn’t seek relief, there should be no injunctive relief granted 3) 1st Amendment: e.g., enjoining a newspaper publication NOTE: you can STILL sue for MONEY DAMAGES nws these special defenses

Question 44

How does worker’s compensation work?

Answer 44

It’s designed to be the EXCLUSIVE remedy of an emp injured on the job The empl’r will be liable regardless of fault (and the emplr’s insurance will pay), BUT the emp CANNOT SUE the empl’r The workers comp bar on litigation also applies to actions against co-workers, UNLESS they were acting intentionally OR outside the scope of employment The bar on litigation ONLY APPLIES to the employer, therefore an injured emp can sue anyone else against whom he’d have a claim E.g. on a construction site, the electric subcontractor can sue the general contractor or the plumbing subcontractor (as neither of these are the emplr of the emp) Injured emp receives… All medical expenses 2/3rds of wages Specified lump-sum benefit in the case of death/fatal accident

Question 45

What 5types of emps are NOT covered by worker’s compensation?

Answer 45

1) Independent contractors 2) Teachers 3) Non-manual workers for charitable orgs 4) Part-time household emps (e.g. nannys) 5) Members of the clergy

Question 46

Which types of injuries are and AREN’T “covered injuries” under worker’s compensation?

Answer 46

A covered injury is pretty much any injury that happens at work, EXCEPT: 1) Injurydue solely to your own intoxication 2) Intentional self-injury 3) Injury during voluntary, off-duty athletic activity (e.g. company softball game) BUT the following ARE “covered”… 1) Injury from illegal acts committed during course of emp (e.g. roofer attemting to steel copper on roof and getting hurt) 2) Injury from horseplay during work, UNLESS the horseplay is so divorced from work (then it won’t be covered)

Question 47

What are the 3 theories of breach of duty?

Answer 47

1) Custom or usage to define standard of care: if ∆ acts differently from the custom that everyone else follows NOT controling as to whether as to whether conduct was negligence (as the entire industry/sector/etc may be negligent) 2) Violation of statute (Negligence per se): if the ∆ violates a duty as established by statute 3) Res Ipsa Loquitur:π can’t specifically explain what Δ did to cause the injury (e.g. barrel mysteriously falls from warehouse); If π can prove3 elements (inference of negligence), it goes to jury (i.e. no summary judgment)… Accident of type that doesn’t normally occur in the absence of negligence Negligence is usually committed by someone in Δ’s position (Δ had exclusive cntl of instrument of injury) π was not contributorily negl. in the injury

Question 48

What is theEggshell Skull Rule AND the Collateral Source Rule? NOTE: NY Distinction

Answer 48

Eggshell Skull Rule: the ∆ takes π as she finds him…if ∆ is negligent (i.e. duty, breach, causation), then Δ pays for ALL damages Collateral Source Rule: damages are not reduced just b/c π received benefits from other sources (i.e. health insurance) NY DISTINCTION: NY has abolished the collateral source rule; π’s damages are REDUCED by collateral pmts

Question 49

What is the std of care owed bypossessor of land? NOTE: NY Distinction

Answer 49

1) For undiscovered trespasser(on land w/o permission OR occupier’s knowledge)… NO duty of care for activity/condition (unforeseeable) 2) For discovered/obvious trespasser (occupier knows OR should know)… Posessor activities: RPP in similar circumstances Land conditions:duty to warn/make safe from(1) man-made (ONLY) condition; (2) highly dangerous; (3) concealed; (4) known to occupier NOTE: under attractive nuisance doctrine, LIABLE if child (i)is foreseeably attracted to land (e.g. a pool); (ii)CAN’T appreciate the risk of the condition; AND (iii) compliance is less expensive than risk imposed&raquo_space;then duty to warn/make safe for man-made conditions (ONLY) 3) For licensees(friends or other entrants who enter w/ permission)… Posessor activities: RPP in similar circumstances Land conditions: duty to warn/make safe for conditions (natural AND man-made) (1) concealed and (2) known to occupier 4) For invitee (business or land open to public; benefit posessor)… NOTE: an invitee loses his status as an invitee if he exceeds the scope of his invitation (i.e. becomes a trespasser) Posessor activities:RPP in similar circumstances Land conditions:duty to warn/make safe for conditions(1) concealed; (2) known or should have discovered w/ reasonable inspection NY DISTINCTION: doesn’t distinguish b/t type of entrant Std of care = reasonable care under the circumstance BUT entrant status is evidence of foreseeablity(foreseeability scale: customer>guest>trespasser)

Question 50

When is there an affirmative duty to act (the failure todo so constituting breach)? NOTE: NY Distinction

Answer 50

General Rule: NO affirmative duty to act 3 Exceptions, which necessitatesdoing what’s reasonable under circumstances(no requirement of martyrdom) Preexisting relationship: family member; common carrier; innkeeper; business owner/invitee Δ created the danger ∆ assumped responsibility (attempted to rescue)&raquo_space; liable for negligent rescue NY Distinction: For medical professionals, an attemted rescue is only actionable if grossly negligent (Good Samaritan Law)

Question 51

General rule: To whom do we owe a duty of careAND what’s the level of care?

Answer 51

1) everyone owes a duty of care to foreseeable victims of their potential negligence Foreseeable Victims: w/in Zone of Danger 2) level of care = that given by a reasonably prudent person (RPP) in similar circumstances (objective std) RPP: NO allowances for Δ’s shortcomings;EXCEPT: (i) ↑ std. for superior knowledge (e.g. NASCAR driver = higher driving std.); (ii) physical characteristics (e.g. reasonable blind Δ).

Question 52

What are the 3 elements of negligence per se? NOTE: NY Distinction

Answer 52

To establish duty/breach, π needs to show… 1) the statute provides for criminal penalty that clearly defines std. of conduct 2) π is w/ in class of ppl that the statute is meant to protect 3) the statute was designed to prevent the type of harm suffered by π EXCEPTIONS: (i) compliance more dangerous than violation (e.g. cross yellow lines to avoid hitting child); and (ii) impossibility of compliance (e.g. heart attack caused violation) NY DISTINCTION:ONLY state statutes (NOT local ordinance/reg.) will establish negligence per se (otherwise only some evidence of negl.)

Question 53

Who are 2 victims’s who are presumptively foreseeable(so are owed a duty whether or not actually foreseeable)? NOTE: NY distinction

Answer 53

1) Rescuers: injuries to rescuers are ALWAYS (presumptively) foreseeable (“danger invites rescue”) 2) Fetuses: negligent Δ injures pregnant lady If fetus is born dead: mother has a claim, but baby’s estate CAN’T bring claim If fetus born alive w/ defects: injury to baby is foreseeable&raquo_space; (i)baby can recover; (ii) parents can recover for marginal costs given defects If there is a botched sterilization (“wrongful birth”): can get damages for child rearing expenses NY DISTINCTION: parent’s CAN’T recover b/c “joy of new child outweighs marginal expenses”

Question 54

What is the std of care owed bychildren?

Answer 54

1) Children ≤ 4: incapable of negligence 2) Children b/t 5 and 18: owes duty of hypothetical child of similar age, experience, intelligence in similar circum. (NOTE: drastically different standard from RPP) EXCEPTION: if child engages in adult activity&raquo_space; child is held to adult std. (e.g. vehicle w/engine)

Question 55

What is the std of care owed byprofessionals?

Answer 55

Std of care = that is given by the average member of that profession (in good standing) in similar community Std. is empirical/discoverable Liability still turns on whether it wasREASONABLY FORESEEABLEthat the professional’s action/servicewouldCAUSEa HARM “Similar community” = rural vs. urban;EXCEPTION: specialists (e.g. brain surgeons) are held to a national standard

Question 56

How does π establishbut-for/factual causation?

Answer 56

Test = “But for the breach, there would be no injury” 2 important scenarios 1) Multiple Δs & mingled/merged causes (e.g. 2 Forest Fires) “Substantial Factor” test: joint liability for each Δ whose breach was substantial causal factor (i.e. could individual cause the damage)in π’s injury. 2) Multiple Δs & unascertainablecause (e.g. Quail Hunting case) Burden Shift: shift burden to each Δ to prove by a preponderance that they are NOT the cause; if can’t they are jointly liable

Question 57

What are the 2 elements ofnegligent infliction of emotional distress? NOTE: NY Distinction

Answer 57

1) π is in zone of danger 2) serious subsequent physical manifestation EXCEPTION 1: if π is not in zone of danger, but witnesses injury to 3d party; this requires: (i) close relationship b/t π and 3d party; (ii) the presence of π at scene of injury AND π’s witnessing the injury NY DISTINCTION: w/ this exception, π STILL has to be w/in zone of danger AND have a immediate family relationship (nuclear family, not extended) EXCEPTION 2: if π is not in zone of danger, but is in a special relationship w/ ∆where it is very foreseeable that carelessness will cause distress (e.g. Dr. negligently telling patient he has AIDS when he doesn’t)

Question 58

What are the 3affirmative defensesto prima facie neglience (duty, breach, causation, damages)? NOTE: NY Distinction

Answer 58

1) Contributory negligence: negl on part of π that contributes to her injury that COMPLETELY bars π’s recovery Contributory negl. is a minority rule Contributory negl. is NOT a defense to wanton/willfull misconduct or intentional tortious conduct Last Clear Chance Exception: π is STILL able to recover n/w/s being contributorily negl. if ∆ had last chance to avoid the accident 2) Assumption of risk: π is denied recovery if she assumed the risk of any damage caused ∆’s act NOTE: Most comparative negl. jx have ABOLISHED the separate defense of “implied assumption of risk”→ would just analyse the π’s conduct under comparative negl. principles Assumption of risk is NOT a defense to intentional tortious conduct (but it IS A DEFENSE to wanton/reckless misconduct) NY DISTINCTION:assumption of the risk has been abolished, but cts still use label, “primary assumption of the risk”, which applies ONLY to participants or spectators in sporting/recreational activities 3) Comparative negl.: π’s negligence is not a complete bar to recovery, but her recovery is reduced to the extent (%) that she is negl. in causing the injury; two types… Pure (default): π’s recovery is reduced by % of her fault Modified/partial: if π is ≥ 50% negligent, then she get’s NO recovery NY DISTINCTION: the π may recover even if the π’s negligence % is greater than the ∆’s (BUT if π’s conduct was illegal, NO recovery)

Question 59

What is the prima facie case for negligence?

Answer 59

1) duty (owed to all foreseeable victims/πs) 2) breach (conduct falls short of duty) 3) causation: factual (but-for) & legal/proximate (blameworthiness) 4) damages (eggshell skull doctrine) NOTE: if you are given a negl. question in an essay, you must discuss EVERY element

Question 60

How does π establishproximate/legal causation?

Answer 60

1) For direct causes:established if π’s injury a immediate foreseeable result of Δ’s breach ∆ is not liable for unforeseeable harmful results not within risk created by ∆’s negl. 2) For indirect causes: when there are intervening causes (increasing π’s injury),original Δ IS STILL liable for… intervening negligent medical treatment (e.g. malpractice) intervening negligent rescue intervening reactions to protecting property/person subsequent accident/disease to π foreseeableindependent intervening forces if ∆ increased the riskof harm by that force(e.g. theft, acts of God, etc); NOTE:if it’s an unforseeableindependent intervening forceAND an intentional tort by 3d person, then it’s a superceding cause (no ∆ liability)

Question 61

What is the prima facie case forstrict products liability?

Answer 61

1) strict duty owed by a merchant ∆ that routinely deals in this type of a product Traps: (i)casual seller is NOT merchant; (ii)service provider (i.e. they offer products incidentally to services)is NOT merchant of products used; (iii)commercial lessors ARE merchants (e.g. car rental company); (iv)every party in distribution chain IS a merchant NOTE: Privity is not required (users, consumers and bystanders can all sue) 2) production OR sale of a defective product Manufacturing defect: aberration/anomalyin batch from same assembly line Design defect: (i) hypothetical alternative design is (1) safer, (2) economical, AND (3) practical NOTE: Failure to conform to a gov’t regulation is CONCLUSIVE proof of a defective design (BUT compliance with gov’t regulation is NOT conclusive evidence of a non-defective product) Inadequate warnings defect:exists if (i) the product has residual risks that cannot be designed out; (ii) the consumers will not be aware of the risk; AND (iii) the product does not have adequate warnings 3) the product was not altered in any way (i.e. defect existed when it left Δ’s hands) Presumed if product moved in normal distribution chain If π buys secondhand, then he’d have to prove non-alteration 4) the π is making a foreseeable use of the product NOT limited to intended uses, but to foreseeable uses (e.g. chair to change lightbulb) ———– NOTE: products liability can be brought under OTHER theories of tort [intent, ordinary negl., warranties of merchantability/fitness, and representation (warranties)]

Question 62

What are the 2basicstrict liability fact patterns?

Answer 62

1) Injuries Caused by WILD animals Domestic: ONLY S/L if Δ knew of dangerous propensity; Wild: S/L for wild animals kept by Δ NOTE: doesn’t matter if the animal is COMMON or UNCOMMON for the community EXCEPTION: ∆ would never be strictly liable for trespasser on property (even if domestic animal has vicious propensity and the owner has knowledge) 2) Ultra-Hazardous Activities Elements: (i)creates a foreseeable risk of serious harm, EVEN when reasonable care is exercised (i.e can’t be made safe); (ii) uncommon activity in area where occurring E.g. blasting/explosives; toxic chemicals; nuclear, brakes, cancer treatments NOTE: the dangerous aspect of the activity has to be the actual/proximate cause of π’s injury for S/L to stick

Question 63

What are the 3 affirmative defenses to prima faciestrict liability?

Answer 63

1) Contributory negl. It is NO defense, if π failed to realize the danger It IS a defense, if π knew appreciated the danger AND his unreasonable conduct was the very cause of the harm 2) Assumption of risk: is a good defense to S/L 3) Comparative negl.: apply the same comparative negl. rules to S/L cases

Question 64

What are the 3 affirmative defenses to prima faciestrict products liability?

Answer 64

1) Contributory negl. It is NO defense, if π failed to realize the danger It IS a defense, if π knew appreciated the danger AND his unreasonable conduct was the very cause of the harm 2) Assumption of risk: is a GOOD defense to S/L 3) Comparative negl.: apply the same comparative negl. rules to S/L cases