Torts Flashcards
Types of intent
1) deliberate and purposeful
2) object of action
3) substantial certainty of resultant harm
Transferred intent
NOT applicable to intentional infliction of emotional distress.
Between victims and/or torts.
Causation
Substantial and “but for” cause
Damages for battery
If only damage to dignity, nominal damages.
If actual harm, actual damages.
If malice, punitive damages.
Assault
1) intentional
2) overt act
3) done with intent to place someone in immediate apprehension of harmful or offensive contact.
Words alone are insufficient without accompanying circumstances.
Apprehension = cognizance.
Nominal or punitive damages (if malice).
Battery
1) harmful and offensive contact (if victim is hypersensitive, defendant not liable UNLESS he knew of the hypersensitivity)
2) with victim’s person (incl. hat, dog on lease, etc.)
3) through an intentional act
False imprisonment
1) intentionally
2) confine or restrain another
- physical force
- use of a physical barrier
- direct or indirect threats (NOT mere enhortation)
- false display of authority
- failure to provide reasonable means of escape
- EXCEPTION: shopkeeper’s privilege: a shopkeeper may prevent a suspected shoplifter from leaving the premises if length and manner are reasonable.
3) to a bounded area.
- constrained in all direction.
- NO discoverable, reasonable means of escape.
4) directly or indirectly resulting in confinement.
- length of confinement is irrelevant.
- victim must be aware of confinement, UNLESS he suffered harm as a result of confinement.
Damages: actual; punitive if malice.
Intentional Infliction of Emotional Distress
1) intentionally or recklessly
- NO transferred intent.
- recklessly with regard to risk of harm.
2) engaged in extreme or outrageous conduct
- exceeds boundaries of decency.
- especially protective of elderly, pregnant women, etc.
* acts toward family: (i) member of plaintiff’s immediate family, (ii) plaintiff was present, (iii) defendant knew plaintiff was present.
* acts toward unrelated 3p: (i) plaintiff was a bystander, (ii) defendant was aware of the plaintiff’s presence, (iii) distress results in bodily injury.
3) that causes severe emotional distress.
- substantial factor requirement.
Damages: actual. if plaintiff is non-family 3p bystander, must show physical injury.
Trespass to land
1) intentional act
2) physical invasion
- includes invasion by chattels.
- includes airspace and subsurface.
3) without consent
- includes exceeding scope of consent.
Standing: anyone with right of possession.
Nominal damages available.
Trespass to chattel
1) intentional act.
- mistake NOT a defense.
2) interferes with plaintiff’s right to possession.
- dispossessing: defendant uses.
- intermeddling: stops plaintiff from using.
3) that causes damage.
Standing to sue: anyone with immediate right to possess.
Damages:
- for dispossession, actual damages + loss of use.
- for intermeddling, actual damages ONLY.
Conversion
1) intentional act
- mistake not a defense.
- need not intent to deprive.
2) of possession or interference
- steal
- substantially alter
- severely damage or destroy
3) that seriously deprives plaintiff of rights to the chattel.
- chattel = tangible personal property or intangible property in physical form.
- factors of seriousness: (1) duration and extent; (2) intent to deprive; (3) good faith; (4) expense and inconvenience to plaintiff; (5) extent of harm to chattel.
IF chattel was obtained rightfully, plaintiff must demand return before bringing conversion action.
Remedies: full damages OR replevin if chattel is unique.
Consent
NOT valid if:
1) plaintiff made mistake, defendant was aware of mistake and took advantage.
2) fraud
3) duress
4) incapacity: infancy, intoxication, incompetence.
Implied consent:
1) silence where reasonable person would consent.
2) when necessary to save someone’s life or other important interest.
3) by custom, e.g. sports.
Self-defense
Non-deadly force: reasonably belief of imminent offensive bodily contact or harm.
-mistake is OK if reasonable.
Deadly force: reasonable belief that serious bodily injury or death is imminent.
- must be proportionate to magnitude of threat.
- escalation by other party is justification.
Duty to retreat:
Majority: no duty.
Minority: duty to retreat if it can be done safely, BUT NOT in home or curtilage.
Restatement: duty to retreat everywhere, as long as it is safe.
Injury to 3rd party: NOT liable UNLESS deliberately injured bystander.
Defense of others: must have reasonable belief that other is entitled to self-defense.
Defense of property
Mistake as to boundary does NOT negate.
NO deadly force.
Recapture of chattels
MAY use reasonable force to recapture wrongfully taken chattels.
If possession was by lawful means, repossession must be peaceful.
may NOT use force to recapture land.
Parental discipline
Parent MAY use reasonable force or impose reasonable confinement to discipline own child.
Educator has same privilege as parent.
Defense of necessity
enter land or interfere with personal property to prevent harm substantially more serious than the invasion of interference.
Private necessity:
- qualified privilege.
- ONLY to protect limited number of people.
- no liability UNLESS actual damages.
Public necessity:
- to protect large number of people.
- absolute defense as long as conduct was reasonable.
Citizen’s arrest
May arrest for felony if:
1) felony has been committed (mistake not okay); AND
2) arrestor reasonably believes arrestee had committed the felony (mistake is okay).
Police officers need only reasonably believe (1) and (2).
Arrest for misdemeandor:
1) breach of peace committed or reasonably appears to be committed;
2) in the presence of arresting party.
Elements of negligence
1) Duty
- no duty to act UNLESS special relationship.
- foreseeable plaintiffs only (minority view allows unforeseeable plaintiffs).
- no duty to control 3d party UNLESS special relationship.
- rescuer assumes duty UNLESS victim put self in danger.
- intended beneficiary is owed duty.
- fetus is owed duty if viable. parents can sue for wrongful birth.
2) Breach
- Standard of care: custom is relevant, allowance for physical disabilities.
3) Causation
4) Damages
Standard of care for children
4 years old = reasonable child of the same age and experience.
If child is engaging in adult activity, NO allowance made for age.
Standard of care for professionals
Same skills and knowledge
Informed consent
*must disclose risks patient would reasonably expect to be informed of.
EXCEPTIONS:
1) common and widely known risks
2) patient waiver
3) incompetent patient, BUT must disclose to guardian.
4) disclosure would be harmful to patient.
5) learned intermediary.
Standard of care for common carriers and innkeepers.
“utmost care” with regard to passengers and innkeepers.
SOC for automobile drivers
- default = ordinary care.
Guest statute:
- If passenger traveling for free, driver has duty ONLY to refrain from gross negligence and wilful or wanton misconduct.
- If passenger is paying for ride, then utmost care.
Bailor’s duties
If free, must warn ONLY of known dangerous defects.
If commercial, must inspect, and must disclose dangerous defects of which he knows or should know.
Bailee’s duties
If only bailor benefits: refrain from gross negligence.
If only bailee benefits: utmost care.
If both parties benefit: reasonable care.
*modern trend is to apply reasonable care in all situations.
Duties toward trespassers
*Refrain from intentional, wilful, or wanton misconduct.
Anticipated or known trespassers:
- duty to warn of traps.
- duty to exercise care when conducting activities on the land.
*frequent trespassers are treated as licensees.
Attractive nuisance
1) artificial condition
2) landowners knows or should know there will be children in the area
3) landowner knows or should know condition poses unreasonable risk of death or serious bodily injury
4) children cannot appreciate the danger
5) utility of condition vs. cost of eliminating is outweighed by risk of harm to children
6) landowner fails to exercise reasonable care to protect children
Duty owned to licensees
- must warn licensee of known, dangerous conditions that are unlikely to be discovered by the licensee.
- exercise reasonable care in conducting activities on the land.
Duty of easement and license holders
*must exercise reasonable care to protect trespassers.
Landlord duties
- warn tenant of any existing defects unlikely to be discovered by reasonable inspection.
- if landlord knows property is held open to the public, mere warning is NOT enough.
- responsible for areas under landlord control.
- responsible for negligent repairs.
Recreational use exception
If owner lets people use his lake for free, he is not liable UNLESS he wilfully or maliciously failed to warn.
Duty to adjacent owners
*no duty as to natural conditions, EXCEPT for trees in urban areas.
Artificial conditions: duty to prevent unreasonable risk of harm to those off the property.
Activity on the property: reasonable care to those off the property.
Duties of seller of land
- must disclose concealed and unreasonable dangerous conditions.
- duty continues until buyer has reasonable opportunity to discover defect.
Emergencies
Emergencies are evaluated as part of the reasonableness inquiry, UNLESS defendant created the emergency.
Elements of negligence per se
1) plaintiff was member of protected class
2) interest was of type intended to be protected
3) harm was of type intended to be prevented
4) harm materialized in a manner intended to be prevented.
Affirmative duty to act
1) voluntary assumption.
- good samaritan statute: doctors in emergency situations are liable ONLY for gross negligence.
2) placing another in peril.
3) contractual duty to act.
4) authority or special relationship.
Res ipsa loquitur
Plaintiff must show:
1) type of accident would not occur in absence of negligence;
2) instrumentality that caused harm was in defendant’s exclusive control;
3) plaintiff did not voluntarily contribute.
–> inference of negligence, MUST go to jury.
Actual casuation
*“but for” cause
- if multiple tortfeasors, substantial factor test applies.
- alternative causation: if small number of tortfeasors, all of whom were negligent, but only one caused, and plaintiff is blameless, then burden of proof shifts.
Proximate cause
- if intervening forces, key is foreseeability.
- BUT unforeseen event will not be superceding cause if result was foreseeable.
Damages for negligence
Actual damages ONLY for harm to person and property.
-property: replacement OR repair AND loss of use.
NO nominal damages.
Purely economic loss NOT recoverable, EXCEPT for negligent misrepresentation.
Plaintiff has duty to mitigate.
NO attorney’s fees.
Damages for personal injury.
Can recovery both pecuniary and non-pecuniary (pain and suffering) damages.
-can recover for loss of consortium.
Eggshell skull rule
Plaintiff is liable for injuries arising from defendant’s unusual weaknesses.
Collateral source rule for insurance
- defendant NOT entitled to credit for plaintiff’s insurance.
- defendant will be credited for any payments made by his own insurance.
Puntive damages
Permitted for wilful, wanton, reckless, or malicious behavior.
Negligent infliction of emotional distress
1) defendant acted carelessly
2) caused victim to suffer severe emotional distress.
Direct causation:
- “impact rule”: physical touching led to emotional distress.
- “zone of danger” approach: (i) victim placed at risk of serious bodily injury; (ii) victim reasonably feared for safety; (iii) victim experience severe emotional distress.
- Special circumstances: negligence in transmission of info about death of loved one, or in handling love one’s corpse.
Indirect causation:
- Zone of danger: (i) plaintiff at risk; (ii) loved one suffered severe bodily injury; (iii) plaintiff suffered severe distress.
- alternative approach: (i) plaintiff related to victim; (ii) plaintiff at scene of injury; (iii) contemporaneous observation; (iv) suffered severed distress; AND in some jurisdiction (v) physical manifestation of distress.
Survival statute
Decedant’s estate can sue as if the defendant had lived.
Wrongful death
Recovery for:
1) loss of support
2) loss of companionship, consortium, and society.
NO double recovery for lost wages via survival and wrongful death actions.
NOT available for defamation, malicious prosecution, or invasion of privacy.
Child/parent loss of consortium
Parent can sue for loss of child, BUT child cannot sue for loss of parent.
Loss of consortium
If derivative action: barred by defenses like contributory negligence to underlying tort.
If independent action: not automatically barred.
Respondiat superior
1) scope of employment: time and place, type of activity, motivation.
- employer instructions not to do something are NOT a defense if actions were still foreseeable.
NOT liable for intentional torts UNLESS force is inherent in the employee’s work OR the employer authorizes.
Vicarious liability for indepednent K
- non-delegable duties:
1) highly dangerous activity.
2) duty to the public at large.
Vicarious liability for business partners
1) joint enterprise
2) common purpose
3) mutual right of control
4) tortious act committed in scope of business
Vicarious liability of car owners
- Negligent entrustment: knew or should have known that entrusted party had problems that would make accident likely.
- Family use statute: owner is liable for negligent use by family member with permission.
- permissive use statute: owner is liable for negligence of any permissive user.
Dram shop law
Common law: no duty.
Statute: seller is strictly liable to third parties injured by intoxicated customer.
Federal government actor liabiltiy
Fed actors have no general immunity, except for:
1) assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel and slander, misrep and deceit, interference with K right.
2) regulation of money supply, postal service, military service.
3) exercises of policy discretion.
Local govt immunity
NOT immune in proprietary activity.
Immune for governmental functions, EXCEPT when govt takes steps giving rise to special duty:
1) express or implied promise to act on a person’s behalf.
2) city knew that failure to act would cause harm.
3) direct contact between victim and municipality’s agents.
4) justifiable reliance by victim.
Immunity of govt officials
Immune when exercising policy discretion.
NO immunity for ministerial functions.
Charitable immunity
most states have abrogated charitable immunity.
“in concert” liability
1) common plan or agreement
2) act within scope of agreement
OR
1) tortfeasors acted independently
2) acts came together to produce indivisible harm.
Pure several liability
Tortfeasor only liable for his portion of the harm.
Indemnification by judicial order
Judge MAY order indemnification is one defendant made big mistake and other defendant made minor mistake.
NOT available in comparative fault jurisdictions.
MAY apply to additional harm, e.g. medical malpractice.
Contributory negligence
Traditional rule: complete bar to recovery.
NOT a defense is defendant was grossly negligent or reckless. defense is to ordinary negligence only.
*Last clear chance doctrine:
1) oblivious peril AND defendant actually knew of peril;
OR
2) helpless peril AND defendant knew or should have known of the peril.
Pure comparative negligence
*default method.
Modified comparative negligence
Two alternative rules:
1) plaintiff can recover if no more negligent than defendant;
2) plaintiff can recover if not as negligent as defendant.
Aggregation: add all defendant liabilities to see if plaintiff’s threshold is met.
Doctrine of last clear chance applies.
*generally no imputed contributory negligence, except between employer-employee in car accidents.
Express assumption of risk
Plaintiff knowingly and voluntarily assumes risk = complete bar to recovery.
BUT waivers for harm worse than negligence that leads to bodily harm = unconcionable = void.
NO waiver for common carrier liability.
NO waiver when there is fraud, force, or emergency.
implied assumption of risk
Requirements: 1) knowingly 2) voluntarily 3) unreasonably encounter the risk.
Effects:
- contributory negligence jurisdiction = complete bar to recovery.
- comparative negligence jurisdiction = factor taken into account in determining fault.
NOT available if plaintiff is member of statutorily protected class.
Abnormally dangerous/ultrahazardous activities
1) activity is inherently dangerous
2) danger cannot be eliminated though reasonable care
3) activity is uncommon/unusual.
Strict liability for airplanes
- Strict liability to landowners and occupants of land.
- Duty of utmost care to passengers (NOT strict liability).
- crop dusting = inherently dangerous.
Rule of rylands v. fletcher
Strict liability for bringing item on another’s property that would cause mischief if escaped (e.g., broken dam).
Strict liability for animals
If licensee or invitee: strict liability for injuries caused by wild or abnormally dangerous animals.
Trespassers: no liability, EXCEPT for vicious watchdog.
If domestic animal escapes, owner is liable for injuries resulting from animal’s propensities (foreseeable damages).
If household pet escapes, NO strict liability UNLESS owner knew or should have known of pet’s dangerous propensity.
If wild animal escapes, strictly liable for harm from dangerous propensities (including others’ reactions).
Defenses to strict liability
- Contributory negligence NOT a defense.
- Comparative negligence may reduce recovery.
- Assumption of risk is a complete bar to recovery.
- statutory privilege: essential public services are exempt from strict liability.
Negligence standard for products liability
Foreseeable plaintiff = anyone present when product was used.
Duty = reasonable care in design, manufacture, inspecting, and warning.
NO purely economic damages.
Defenses = contributory negligence, comparative negligence, assumption of risk.
Strict products liability
- Manufacturing defect
1) product doesn’t meet manufacturer’s own standards;
2) defect existed when in defendant’s control;
3) defect cause injury;
4) product was used in reasonably foreseeable way. - Design defect
1) Design defect; - consumer expectations test;
- Cost-benefit test (alternate designs)
2) defect existed when product left defendant’s control;
3) defect caused plaintiff’s injury
4) plaintiff used product in foreseeable way. - Failure to warn
1) forseeable risk of harm
2) not recognized by ordinary customer
3) warning would have reduced risk of injury. - EXCEPTION: learned intermediary, UNLESS intermediary unlikely to intervene OR physician involvement is minimal.
Proof of product defect
If product destroyed, plaintiff may rely on quaisi-res ipsa proof.
Chain of distribution in strict products liability
- Lessors of commercial product are subject.
- For hybrid transactions, dominant feature controls.
- Component part distributor liable if:
1) part was unaltered;
2) part contributed to failure.
Casual sellers and auctioneers are NOT party of chain of distribution.
Defenses to products liability
- Comparative negligence can reduce recovery.
- Contributory negligence NOT a defense if misuse was forseeable.
- Assumption of risk = complete bar.
- Defense under K, like disclaimer and notice, are NOT defenses.
Defenses to breach of express warranty
1) assumption of risk
2) comparative negligence
3) failure to give timely notice
4) unforeseeable misuse
Remedies for breach of warranty of suitability for a particular purpose
Personal injury, property damage, AND purely economic losses.
Private nuisance
1) substantial and unreasonable interference;
- victim’s actual sensitivities irrelevant, except for damages.
- injury of victim must outweigh benefit to defendant.
2) with plaintiff’s use or enjoyment.
- Standing = possessory right in property.
- Abatement = may enter defendant’s land on notice if defendant fails to take action, BUT responsible for any damages caused.
Public nuisance
1) Unreasonable intereference
2) With right common to all members of community.
- Standing: governmentl ONLY, UNLESS plaintiff suffers unique injury.
- Abatement = ONLY for plaintiffs with unique injury.
Remedies for nuisance
Damages: depreciation, personal injury, property damage.
Injunction: weigh relative hardship, UNLESS defendant’s sole purpose was to cause harm.
Defenses to nuisance
If defendant is negligent, –> contributory negligence, comparative negligence, assumption of risk.
If defendant acts intentionally –> no defenses.
*Coming to the nuisance : plaintiff cannot sue for nuisance existing when he possessed the property.
Defamation
1) Defamatory language
- diminishes respect, esteem, or goodwill, OR deters association.
- defamatory on its face OR when coupled with extrinsic fact.
- MUST be false.
- libel (written) or slander (oral).
2) of or concerning the plaintiff;
- refers to plaintiff.
- scorn or ridicule in the eyes of respectable members of the community.
3) published to a third party who understood the defamatory content;
- intentional or negligent communication to a third party.
- NOT eavesdroppers.
4) damage to plaintiff’s reputation.
Level of fault for defamation
- Public figure or official:
- must show actual malice = knowledge that statement was false OR reckless disregard for truth.
Limited public figure: voluntarily injects himself into public controversy = treated as public figured in regard to that controversy.
- Private figure:
- statement about matter of public concern: must show statement was false AND made negligently or with actual malice
- statement about other matters: must show at least negligence in determining truth or falsehoold.
Damage for defamation
Libel:
- General damages presumed, EXCEPT if plaintiff must prove extrinsic fact to prove defamatory statement, UNLESS slander per se.
- Special damages for economic loss, personal injuries, and emotional distress.
- Slander
- general damages NOT presumed, UNLESS slander per se.
- must prove special damages.
- slander per se:
- disparage abilities in business, profession, or trade.
- impute unchastity to woman.
- assert plaintiff has loathsome disease.
- accuse of crime of moral turpitude.
- Constitutional limitations:
- if private figure on matter of public concern, general damages not awarded UNLESS defendant acted with actual malice.
- if private matter, general damages are awardable for negligence.
Defenses to defamation
1) Truth
2) Within scope of consent
3) Absolute privileges:
- in course of judicial proceedings.
- in course of legislative proceedings.
- between husband and wife.
- by media entities if publication was required.
4) Qualified privileges (NO malice):
- about important public interest.
- in the interest of publisher/defendant.
- in the interest of third party or recipient.
Invasion of privacy
Limited to individual harmed, do not survive individual, do not apply to corporations.
Damages:
- emotional and mental distress.
- need not prove special damages.
Defenses:
- absolute and qualified privileges.
- consent.
- truth is NOT a defense.
Misappropriation of right to publicity (invasion of privacy)
1) unauthorized use of
2) image or identity
- includes objects closely associated with plaintiff.
3) to reap commercial gain or advantage.
Intrusion upon seclusion (invasion)
1) intruding, physically or otherwise,
2) in the private affairs, solitude, or seclusion,
3) objectionable to reasonable person.
Placing plaintiff in false light (invasion)
1) make public a fact
2) placing plaintiff in false light
3) that reasonable person would find objectionable.
- If fact relates to public interest, plaintiff must show malice to recover.
Public disclosure of private facts (invasion)
1) public disclosure of private fact
2) reasonable person of ordinary sensibilities would object.
NOT actionable if facts was newsworthy or of legitimate public interest.
Truth is NOT a defense.
Intentional mispresentation
1) misrep of fact, NOT opinion,
- failure to disclosure is misrep if: (i) duty to disclose, or (ii) fiduciary relationship, or (iii) misleading or deceptive, or (iv) actively conceals, or (v) conceals when knows plaintiff is mistaken and plaintiff cannot correct, or (vi) fails to disclose new info that makes prior statement false.
2) done with scienter, intentionally or recklessly,
3) with intent to induce relience;
4) in fact induces reliance.
- must be justifiable reliance.
Damages:
- NO nominal damages.
- Consequential damages if proved with sufficient certainty.
- actual economic loss.
Negligent misrep
1) careless misrep
2) breaches duty owed to plaintiff
3) causes justifiable reliance
4) causes damage.
Usually limited to:
- commercial transactions
- those plaintiffs defendant intended to rely on statement
- use of info for intended reasons.
Negligence defenses available.
Damages: reliance + consequential damages if proved with certainty.
Intentional interference with business relations
(1) knows plaintiff has contractual relationship or expectancy;
- NOT terminable-at-will Ks.
2) intentionally interferes;
- far exceed fair competition.
3) resulting in breach or loss of expectancy;
- frustration is sufficient.
4) resulting in damages.
Theft of trade secrets
1) Valid trade secret;
2) reasonable precautions to protect;
3) defendant acquires by improper means.
- must be intentional, negligence NOT enough.
- attempts to obtain or protect business interests are privileged.
Damages: actual damages + emotional distress + punitive damages.
Trade libel
= statements that are injurious to business or products (NOT manager’s reputation).
1) publication;
2) derogatory statement;
3) relates to title to property or quality of products;
4) interference or damage to business relationship.
Damages = special damages, NO nominal damages, NO emotional distress.
Malicious prosecution
1) intentionally and maliciously institutes
2) for improper purpose
3) civil or criminal legal action without probable cause
4) that is ultimately dismissed in favor of victim.
Damages = legal fees, lost work time, loss of reputation, emotional distress.
- Prosecutors and judges have absolute immunity.
Abuse of process
1) use of civil or criminal legal process
2) in a wrongful manner
- no requirement of ill will or spite.
3) to accomplish improper purpose
4) causing damages to victim.
NY: SOL for intentional torts
1 year after defendant caused injury.
NY: intentional infliction of emotional distress
includes intentional mishandling of a corpse.
NY: conversion
Good faith purchaser of stolen property must be notified and fail to return before being held liable for conversion.
NY: self defense using deadly force
Must retreat if safe, UNLESS in home or curtilage.
NY: SOL for negligence
= 3 years from negligent act
for minor victim = 18th birthday + 3 years.
insane = end of insanity + 3 years.
medical malpractice = 2 years 6 months from (1) act or omission OR (2) last treatment.
foreign object in plaintiff’s body = 1 year from discovery if discovered after 2.5 year limit.
NY: parent duty to supervise child
NY does NOT recognize duty to supervise child, BUT does recognize negligent entrustment with dangerous instrument.
NY: malpractice based on informed consent
1) physician failed to make timely disclosure of relevant risks and alternatives;
2) reasonable person would not have undergone procedure had withheld info been disclosed;
3) unconsented procedure was proximate cause of plaintiff’s injury.
NY: driver/passenger duty of care
NY does NOT have a guest statute. Drivers owe duty of reasonable care.
NY: duties of landowners
NO distinction between invitees, licensees, and trespassers.
Landowner has duty to use (1) reasonable care in maintaining land in (2) safe condition for (3) all person foreseeably at risk.
NY: collateral source rule
Plaintiff’s recovery is reduced for payments by his own insurance.
NY: negligent infliction of emotional distress
Allows recovery WITHOUT physical injury if:
1) special duty to plaintiff was breached; or
2) unreasonable risk of physical harm to plaintiff; or
3) plaintiff witnesses injury to immediate family member while in zone of danger.
NY: wrongful death damages
Representative of estate can sue for pecuniary losses including:
1) medical and funeral expenses
2) loss of support
3) loss of parental guidance
4) loss of inheritance
5) punitive damages
BUT NOT non-economic losses.
NY: medical malpractice damages
for miscarriage of stillbirth:
- no claim for child.
- mother can recover for emotional distress, regardless of physical injury.
- if child survives, mother cannot recover for emotional distress due to injury of the child, but can recover based on breach of physician’s special duty to her.
NY: vicarious liability, employer/employee punitive damages
ONLY if:
1) grossly negligent in hiring employee;
2) general managerial responsibilities delegated to the employee;
3) employer authorized or ratified employee’s tortious conduct.
NY: owner/user of automobile
NY has permissive use statute:
1) Owner NOT liable for intentional torts.
2) Registration is prima faciae evidence of ownership = rebuttable presumption that owner consented.
3) loading and unloading qualify as “use.”
NY: parent/child liablity
Parental liability limited to $5,000 for intentional and wilful acts of children over 10.
NY: dram shop law
Victims can recover based on proof that tortfeasor was visibly intoxicated when served.
NY: municipal police/rescue workers
Traditional government functions are immune, BUT proprietary functions are NOT immune.
Liability for special relationship:
1) voluntarily assumed;
2) reliance on past performance of duties.
Police service:
1) no liability absent special relationship;
2) immunity for rational judgment in police work;
3) municipal liability for torts by police officers under respondeat superior EXCEPT for city of NY and NYC housing authority.
Bringing action against cities (NOT applicable to worker’s comp):
1) Plaintiff must file notice within 90 days of claim arising.
2) Action must be filed within 15 months of claim arising.
NY: joint and several liability
Tortfeasors less than 50% at fault are responsible ONLY for equitable share of non-economic damages.
NOT applicable to car accidents or worker’s comp.
NY: pure comparative negligence
1) recovery reduced for plaintiff’s negligence.
2) plaintiff negligence NEVER a complete bar to recovery.
3) no recovery if plaintiff commits serious crime.
4) failure to wear seatbelt NOT admissible to prove negligence, but may be used to mitigate damages (only recover for injuries that would have occured if seatbelt worn).
NY: assumption of risk
1) plaintiff knew of specific risk that resulted in injury and
2) voluntarily assumed risk.
NO writing requirement.
Primary assumption:
1) risk is obvious and inherent in activity;
2) plaintiff voluntarily engages in activity.
NY: recovery by firefighters and police officers
Firefighters and police officers can recover against any person for any culpable conduct, including negligence and strict liability, in the line of duty.
NY: scaffold law
- General contractors and/or owners are strictly liable for height-related injuries.
- contractors have duty to build scaffolds, harnesses, etc.
- plaintiff may NOT recover when he was sole proximate cause.
- plaintiff may NOT recover if he knew safety devices were available but didn’t use them.
NOT applicable to: 1-2 family dwellings, engineers and architects who only plan or design.
NY: products liability
Substantial post-sale modification = manufacturer NOT liable, BUT may still be liable for failure to warn not to modify.
NY: slander per se
False statement about sexual orientation can be slander per se.
NY: no right to privacy
NY does NOT recognize common law right to privacy, i.e. NO intrusion, false light, or disclosure.
BUT statutorily provides for misappropriation of identity, which survives death.
NY: intereference with business relations
interference with contractual relations = “inducing a breach of K”.
Theft of trade secrets:
1) valid trade secret;
2) not commonly known;
3) secrecy is preserved;
4) acquired by improper means.
NY: no fault auto insurance
Covers any person other than person in another vehicle, and covers accidents occuring in other states.
Covers basic economic loss up to $50,000:
1) medical expenses;
2) 80% of lost wages (up to $2k/month);
3) Household expenses (up to $25/day);
4) $2,000 death benefit.
- NOT non-economic loss.
Victims may NOT sue in tort or recover non-economic losses UNLESS:
1) they suffer serious injury (Death, Significant disfigurement, Fracture, Permanent or extended impairment of body parts or functions).
2) uninsured motorist.
3) economic loss exceeds $50,000 (but no non-economic loss).
Coverage denied to plaintiffs who:
1) intentionally contributed, especially through intoxication.
2) were committing felony when they got injured.
3) are in a stolen vehicle.
4) are uninsured.
NY: minimum motor vehicle insurance coverage
Fault coverage 25/50/10: $25k for injury to one person, $50k for injury to 2 persons, $10k for property damage in any one accident.
No-fault; $50k.
NY: Worker’s comp
Covers injuries, illness and disease contracted due to workplace conditions, and resulting death.
- does NOT cover intoxicated employees or those who deliberately injure themselves.
- does NOT cover off-duty sporting activities.
Covered expenses:
1) Medical
2) Wage replacement
NOT non-economic damages.
Employee can sue non-responsible party in tort, BUT recovery under worker’s comp will be reduced under collateral source rule.
NY: recreational facilities
Operators of recreational facilities cannot disclaim liability for negligence of employees if customers pay for entry.
