Torts Distinctions

Question 1

The sol for intentional torts is

Answer 1

1 year from the injury.

Question 2

NY Courts have held that intentional mishandling of a corpse is grounds for what tort?

Answer 2

IIED

Question 3

NY Courts have held that when chattel is converted, and then purchased by a good faith purchaser, the rightful owner must…

Answer 3

inform the good faith purchaser of the defect in the title and have a chance to return the property.

Question 4

When contemplating using deadly force, in New York the law imposes a ________.

Answer 4

Duty to Retreat if you can do so safely - into your home or the enclosed area surrounding your home.

Question 5

The statute of limitations for negligence is

Answer 5

3 years from the negligent act

Question 6

The SOL for negligent exposure to a harmful substance is

Answer 6

3 years from discovery or when discovery should have occured.

Question 7

The SOL is tolled for a _____ or a _____.

Answer 7

minor; insane person

Question 8

Med Mal sol is

Answer 8

2. 5 years from
   1) last treatment in continuous treatment for condition that gave rise to the act omission or failure

2) act, omission or failure

1 year from discovery of foreign object

Question 9

A parent may be liable for negligent supervision of their child if

Answer 9

the parent was aware the child possessed vicious tendencies.

Question 10

A parent may be liable for negligent entrustment of their child if

Answer 10

the parent allows the child to have a dangerous instrument

Question 11

In NY, an action for lack of informed consent has the following elements:

Answer 11

The defendant failed to make timely disclosure as to the relevant risks and alternatives of a procedure; a reasonable person would not have undergone the procedure had the withheld information been disclosed; and the unconsented to procedure was a proximate cause of the plaintiff’s injury.

Question 12

In NY a plaintiff cannot recover for lack of informed consent when

Answer 12

there is an emergency and the consent of neither the plaintiff nor another responsible party can be obtained, and a reasonable person would have given such consent.

Question 13

New York has abandoned the distinctions between people coming onto land. Instead the rule is…

Answer 13

landowner owes a duty to exercise reasonable care in maintaining his property in a safe condition to all persons foreseeably at risk. The status of the person on the land is only relevant to the foreseeability of that person being there.

Question 14

Traditionally, at common law, benefits or payments provided to the plaintiff from outside sources, such as medical insurance, did not reduce the defendant’s liability or reduce the plaintiff’s recovery. In New York,

Answer 14

the plaintiff’s recovery is reduced by any benefit or payment provided from an outside source.

Question 15

New York allows recovery for negligent infliction of emotional distress without physical injury when

Answer 15

A special duty is owed to the plaintiff and that duty is breached, but there is no threat to the plaintiff’s safety or fear of personal harm.

A breach of a duty of care to the plaintiff that creates an unreasonable risk of physical harm to the plaintiff

Bystander: Plaintiff witnesses injury to an immediate family member (parent, child sibling or spouse) while that plaintiff is in the zone of danger created by defendant.

Question 16

Wrongful death damages can include….but not include…

Answer 16

medical and funeral expenses, loss of support, loss of parental guidance, loss of probable inheritance, punitive damages

but not non economic damages such as personal grief

Question 17

Medical Malpractice resulting in miscarriage or stillbirth: there is (a/no) claim for wrongful death on behalf of the deceased child.

Answer 17

no

Question 18

A mother can recover for ____________ even without showing that she suffered an independent physical injury when her child is stillborn or miscarried

Answer 18

emotional distress

Question 19

If the child survives, the mother cannot recover for emotional distress based on __________ but she can recover based on the breach of a duty owed to her by the physician

Answer 19

injury to the child

Question 20

An employer may be required to pay punitive damages for the torts of its employees when

Answer 20

the employer was grossly negligent in hiring the employee

general managerial responsibilities were delegated to the employee

or the employer authorized or ratified the employees tortious conduct

Question 21

The owner of an automobile may be liable for the tortious acts of anyone using the automobile with permission, except if they are

Answer 21

intentional torts

Notice that there is a rebuttable presumption that the driver operated the vehicle with the owners permission

It is not necessary that the borrower actually drive the vehicle, loading and unloading is sufficient

Question 22

Parental liability is capped at $_________ for the intentional and willful acts of their minor children over age 10.

Answer 22

5000

Question 23

If _________then the dram shop act permits third parties injured by intoxicated persons to recover from the seller or server of alcohol

Answer 23

the buyer or patron was visibly intoxicated or a habitual drunkard,

Question 24

Tort Immunity for Local Municipalities attaches to the performance of traditional government functions such as police and court systems, but does not attach when a municipality is

Answer 24

performing a proprietary function that is traditionally performed by a private company (such as utilities and parking lots)

Question 25

In the context of vicarious municipal liability for torts, a special relationship may allow liability. Special Relationships are created when:

Answer 25

The government entity has voluntarily assumed a duty to act and has acted on behalf of a discrete individual or group; and
• The individual or group has relied on the past performance of the duty.

There is no liability for failure to provide police services or protection absent one of these special relationships
 Governmental immunity covers rational judgment in the performance of police work.
 Where governmental immunity does not apply, there is municipal liability for the torts of police officers committed within the scope of employment under the doctrine of respondeat superior, except in cases involving NYC or the New York City Housing Authority.

Question 26

Notice of Claim requirement doesn’t apply to what kind of claim…

Answer 26

workers comp

Question 27

NY has modified the common law joint and several liability rule. How?

Answer 27

Joint and Severally liable defendants are only responsible for their proportionate share of the non economic harm if their share of liability is less than 50%. If their share of liability is greater than 50%, then their share of the noneconomic harm does not affect the plaintiff’s right to fully collect from them under joint and several liability. They can pursue an action for contribution from the other defendants, however.

Question 28

New York has ____ comparative negligence

Answer 28

pure

Question 29

If plaintiff _________, then the plaintiff cannot recover for negligence.

Answer 29

commits a serious crime

Question 30

Plaintiff’s failure to wear a seatbelt is not admissible as evidence of comparative negligence, but is admissible as evidence of a failure to ____________ which is determined after liability is determined.

Answer 30

mitigate damages.

Question 31

Assumption of the risk is divided into two doctrines. Explain them

Answer 31

Express: The plaintiff had knowledge of the specific risk that resulted in injury and voluntarily agreed to assume the risk. Express AOR need not be written

Primary: Primary assumption of the risk applies to activities involving an elevated risk of injury (particularly sporting and entertainment events) when: The risk is obvious to the plaintiff and inherent in the activity; and the plaintiff voluntarily engages in the activity.

Question 32

Owners and operators of recreational facilities cannot disclaim liability by means of contracts applications or tickets for damages caused by their employees if

Answer 32

the user pays a fee or other compensation for use of the facility. Such agreements are void as against public policy

Question 33

New York _________ the firefighter rule.

Answer 33

has abolished. FF and Cops can recover for negligence and strict liability against any person except coworkers and employers for negligence and strict liability for any statutory violation that results in a line of duty violation to a ff or cop

Question 34

Gen Con and Owners are strictly liable for ____ under the scaffold law. (Not owners of one or two family homes or engineers or architects who control only design)

Answer 34

height related injuries - workers falling or objects falling from improper safety devices. They have a duty to use safety devices.

Plaintiff cannot recover if they were the sole proximate cause of the accident, or when the worker knew of the safety device and chose not to use it.

Question 35

A manufacturer is not liable for post sale substantial modification of a product by the user that renders the product unsafe under the theory of design defect although

Answer 35

the manufacturer may still be liable for failure to warn of the dangers of modifying the product.

Question 36

Comparative negligence ___ a defense to strict liability and products liability claims in ny.

Answer 36

is

Question 37

New York (does/doesnt) recognize a common law right to privacy.

Answer 37

does not

Question 38

New York does recognize a statutory tort called appropriation, which is

Answer 38

defendant’s unauthorized use of plaintiff’s picture or name for defendant’s commercial advantage

Question 39

New York (does/does not) recognize the privacy torts of intrusion, false light, or disclosure

Answer 39

does not

Question 40

Inducing a breach of contract is

Answer 40

a tort usually known as interference with contractual relations

Question 41

Inducing a breach of contract can cause a defendant to have to pay what kinds of damages?

Answer 41

Punitive, emotional distress

Question 42

Theft of trade secrets: elements:

Answer 42

valid trade secret; not commonly known; whose secrecy is preserved; and that the defendant used improper means to acquire it

Question 43

Unfair competition is:

Answer 43

when a business possesses goodwill constituting property or commercial advantage, that goodwill is protected from misappropriation by others to compete against the business.

Question 44

No Fault Auto insurance Law Requires

Answer 44

all owners of motor vehicles to obtain liability insurance that covers injury caused to any person other than a person in another vehicle.

Question 45

No Fault Auto Insurance Law covers a basic economic loss of

Answer 45

50k

Question 46

Basic Economic loss in terms of no fault includes:

Reasonable_______;
• _______ % of lost wages (up to $_______ per month for up to 3 years);
• Reasonable and necessary ________expenses (up to $25 a day); and
• A $____________ death benefit.

BEL does not include _____

Answer 46

reasonable medical expenses; 80% of lost wages (up to 2000 a month for 3 years) reasonable and necessary household expenses (up to $25 a day) and a $2000 death benefit.

Non economic loss

Question 47

NY’s No Fault covers accidents which occur in another state (T/F)

Answer 47

True

Question 48

Victims of a car accident sue under no fault auto insurance law. They cannot sue in tort unless they suffer __________

Answer 48

serious injury

Question 49

In terms of no fault, serious injury includes:

Answer 49

death, serious/significant disfigurement/fracture/permanent or extended loss or impairment of bodily parts or functions (impairment that prevents a person from performing her usual daily activities for at least 90 days of the 180 days following the injury)

Question 50

Where a plaintiff sustains a serious injury, she can sue in tort and her claim can include:

Answer 50

noneconomic loss

Question 51

Injury victims may also bring a tort action against __________

Answer 51

uninsured motorists

Question 52

Injury victims may sue in tort if their economic loss exceeds -

Answer 52

50k

Question 53

An accident victim can sue in tort instead of no fault if:

Answer 53

SUE

Serious injury
Uninsured Motorist
Economic loss in excess of 50k

Question 54

Plaintiffs cannot even recover under no fault if

Answer 54

intentionally contributed to their own accidents (particularly as a result of intoxication), were committing a felony when they were injured; are in a stolen vehicle; or are uninsured.

Question 55

Minimum mandatory motor vehicle liability insurance required under NY law is

Answer 55

25/50/10

25 for bodily injury to one person
50 for bodily injury to all persons
10 for property damage in any one accident

50 minimum coverage for no fault

Question 56

Workers comp is defined as

Answer 56

no fault insurance covering employees injured on the job provided by their employers

Question 57

generally, what kind of things can happen to an employee to be covered under workers comp

Answer 57

accidents at the workplace, contracting disease because of workplace conditions, death resulting from the above

Question 58

Workers comp won’t cover

Answer 58

employees who deliberately injure themselves, or are intoxicated.

Question 59

Workers comp covers…but not…

Answer 59

medical expenses, wage replacement….non economic damages

Question 60

An employee cannot sue his employer for negligence unless…

Answer 60

the employee is gravely injured (permanently disfigured, in pain, or disabled)

Question 61

Employees can sue responsible parties in tort for their workplace injuries but

Answer 61

if they recover, must subtract that from the recovery from their employer. (no double recovery)