Torts NY Distinctions Flashcards
Statute of limitations for intentional tort
One year from injury
IIED elements
(1) intent AND
2) Extreme or outrageous conduct (includes mishandling corpse
Duty to retreat — self defense
If non-deadly = no duty to retreat
If deadly = must retreat unless (1) within the home OR (2) curtilage of the home
Statute of Limitations for negligence claim
Three years from the negligent act
If medical malpractice = 2 years, 6 months from (1) last treatment or (2) discovery of foreign objection in body
Tolled if insane or a minor
Negligent parental supervision
Generally no liability. Only liable if parent was aware that the child possessed vicious tendencies.
Liability for negligently entrusting child with dangerous instrument
Physician-patient duty
Informed consent = timely disclosure of risks and alternatives.
Driver-passenger duty
No guest statute. Drivers owe duty of reasonable care to guests and passengers.
Landowners-persons on land duty
No difference between licensee, invitee, and trespasser
Landowner owes duty of reasonable care in maintaining safe conditions on land to all reasonably foreseeable entrants.
Collateral source rule
In NY = πs recovery is reduced by any benefit or payment provided by an outside source.
Medical malpractice resulting in stillbirth or miscarriage
No wrongful death claim for child. No emotional distress based on injury to child.
Mother can recover for her own emotional distress without showing injury.
Punitive damages requirements for vicarious liability
(1) employer was grossly negligent
(2) General managerial duties were delegated to employee
OR
(3) Employer authorized or ratified tortious conduct
Owner-user of automobile
Owner is liable for negligence of user who has permission to use the car.
Permissive use statute = presumption that person used auto with owner’s permission. “Use” includes loading or unloading.
Dram shop liability
Person must be visibly intoxicated or a habitual drunkard.
Parent-child liability
NY limits parental liability to $5,000 for intentional or willful acts of minor children over 10yo
Municipal liability
Immunity applies to performance of traditional governmental functions.
Only liability if a special relationship is created between official and others = voluntarily accepts a duty AND group relies on performance of that duty.
π must file notice of lawsuit within 90 days after claim arises.
Comparative negligence
NY follows pure comparative negligence standard
Joint and several liability
Non-economic damages = if ∆ is found 50 percent or less at fault, he is only responsible for his equitable share of the π’s non-economic damages (pain and suffering)
Rule does not apply to cases of automobile accidents and worker’s compensation.
Assumption of risk
(1) πhad knowledge of specific risk
(2) risk resulted in injury AND
(3) πvoluntarily agreed to take on the risk
Scaffold strict liability
Makes general contractors and/or owners strictly liable for height related injuries.
Law does not apply to one- or two-family homes.
π cannot recover is he knew about safety equipment that was available and decided not to use it.
NY’s right to privacy tort
Only misappropriation. Claim ends with death of π.
Intentional interference with business relations
Called “inducing a breach of contract.”
May recover economic damages AND punitive damages AND damages for emotional distress.
What are the no-fault auto insurance requirements? And when does no fault insurance not replace the ability to sue?
Must cover injury to any person EXCEPT other driver
Must cover basic economic loss up to $50,000.
No fault insurance replaces ability to sue UNLESS “SUE”
(1) there are “serious injuries,” which includes death, serious disfigurement, fractures, permanent or extended loss or impairment of bodily parts.
(2) Uninsured driver
(3) economic loss in excess of $50,000
Workers compensation
No-fault insurance covers employees injured on the job. Covers (1) medical expenses and (2) wage replacement. But not non-economic damages (pain and suffering).
Employee cannot sue employer UNLESS “gravely injured”—permanently disfigured, in pain, or disabled.
“serious injury”
An exception to no-fault insurance for car accidents. Includes:
(1) death
(2) disfigurement
(3) fracture
(4) permanent or extended impairment of body parts or functions.
Is it necessary to join all alleged tortfeasers in the same case?
No. Tortfeasors facing joint and several liability are not parties who must be joined
Who can an emergency responder (police and fire fighters) sue?
No fire fighter statute in NY. Can sue for injuries suffered in the line of duty. But CANNOT sue employer or co-workers for any culpable conduct.
