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56 Cards in this Set
- Front
- Back
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When do you use the special defamation test?
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when it involves a public concern
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What is the special analysis for public concern defamation?
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1. pl must prove the falsity of the statement that was made
2. the pl must also prove some degree of fault on the part of def. a. if public figure - intent or recklessnes b. if private figure - negligence |
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How many privacy torts are there and what are they?
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Four
1. appropriation 2. intrusion 3. false light 4. disclosure |
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What is the privacy tort of appropriation?
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to take something that doesn't belong to you.
Def uses pl's name or image for a commercial purpose |
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What is the exception to appropriation?
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newsworthiness
ex: Derek Jeter's photo on cover of SI |
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For the tort of appropriation must the pl be a celebrity?
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No
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What privacy torts are recognized in NY?
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Only appropriation
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What is the privacy tort of intrusion?
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the invasion of the pl's seclusion in a way that would be objectionable to the average person.
To make the claim the pl has to be in a location where there is a reasonable expectation of privacy. Ex: covert video, eavesdropping, etc. |
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For the privacy tort of intrusion must the def be in a location where there is a reasonable expectation of privacy?
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yes
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Does the privacy tort of intrusion require trespass to land?
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no
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Is the privacy tort of intrusion recognized in NY?
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no
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What is the privacy tort of false light?
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the def makes a widespread dissemination of a major falsehood about the pl, that would be objectionalbe to an average person.
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What is the publication requirement for the privacy tort of false light?
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have to tell a bunch of ppl
not a deminimis requirement |
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Does the privacy tort of false light have an intent requirement?
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No, even a good faith error exposes the def to liability.
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Is the privacy tort of false light recognized in NY?
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no
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What is the privacy tort of disclosure?
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widespread dissemination of confidential information about the pl that would be objectionable to the average person.
Ex: medical records, tax returns, etc. |
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Is there an exception to the privacy tort of disclosure?
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Yes, newsworthiness.
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Is the privacy tort of disclosure recognized in NY?
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No
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What are the affirmative defenses to the privacy torts?
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1. Consent - a defense to all four
2. absolute and qualified privileges for: a. false light b. disclosure |
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What are the elements to the economic tort of fraud?
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1. the def must make a misrepresentation of fact (silence doesn't count)
2. the misrepresentation must be made deliberately or recklessly 3. the misrepresentation must be intended to induce reliance 4. there has to be reliance 5. has to be economic damages somebody lied to me on purpose with the goal of ripping me off and i got screwed |
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What are the elements to the economic tort of prima facie tort?
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1. Intent to do harm
2. there must be harm |
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What are two examples of the economic tort of prima facie tort?
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1. record company lying about record sales for top 10 show
2. selling below cost to put someone out of business |
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What are the elements of the economic tort of inducing a breach of contract?
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1. there must be a contract in existence b/w the pl and a 3rd party
2. def must have knowledge of the contract 3. def must engage in persuasion designed to encourage the pl to breach the contract 4. the 3rd party has to breach the contract |
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Are there privileges to induce a breach of contract?
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Yes, for advisory positions e.g. parents, lawyer, accountant, etc.
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What are the elements to the economic tort of theft of trade secrets?
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1. pl must possess a valid trade secret
a. there must be information that provides a business advantage to the owner b. has to not be generally known c. the owner must take steps to keep the information secret 2. the def mus then take the trade secret by improper means a. traitorous insider b. industrial spy |
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What are the 3 requirements for a trade secret?
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1. there must be information that provides a business advantage to the owner
2. has to not be generally known 3. the owner must take steps to keep the information secret |
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What are the elements of negligence?
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1. duty
2. breach 3. causation a. factual b. proximate 4. damages |
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What is duty in terms of negligence?
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obligation to take risk reducing precautions
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What are the two subparts of duty?
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1. to whom do I owe this duty
2. how much care do I owe |
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Who do you owe a duty to?
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foreseeable victims of carelessness - don't owe a duty of care to unforseeable victims (Palsgraf)
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What is the rescuer exception?
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If someone is involved in coming to the aid of a primary victim and the rescuer is injurd, the rescuer is not barred from recovery.
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What are the three pre-natal inrury scenarios?
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1. negligent impact on the body of a pregnant woman - if child born w/ injuries then child has right to COA in own name. If no child born then no separate COA in child's name.
2. doctor misgiagnoses birth defects - parents can recover costs above those of raising a healty child. 3. botched sterilization - no recovery - joy of children |
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What is the standard duty owed?
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you owe that amount of care as would be given by a reasonably prudent person acting under similar circumstances.
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When do you depart from the reasonable and prudent person standard of care?
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1. def is a child
2. Professionals 3. duty of possessors of real estate 4. Statutory duty standard 5. duties to act affirmatively 6. negligent infliction of emotional distress |
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What is the standard of care for children? Generally? And the Exception?
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SUBJECTIVE standard
1. def is a child - under the age of 4 - incapable of negligent acts. 4-18yrs old, held to the standard of a hypothetical child of similar age, experience and intelligence, acting under similar circumstances. 2. if child is under 18 and engaged in an adult activity then use the RPP standard of care ex: operating a vehicle w/ an engine |
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What is the standard of care for a professional?
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EMPIRICAL
the care of an average member of that profession practicing in a similar community (compare def to real world colleagues) |
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For NY what is informed consent for medical professionals?
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Doctor must affirmatively explain the risks of any recommended procedure except:
1. no need to disclose a commonly know risk (infection after surgery) 2. if the patient declines the information 3. patient is mentally incompetent 4. the disclosure would be medically harmful |
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How do you determine the standard of care owed by a possessor of real estate?
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1. ask how the pl got hurt (activity or condition)
2. what kind of entrant am I dealing with a. undiscovered trespasser b. discovered trespasser c. Licensee d. Invitee |
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How can a pl get hurt on a possessor's property?
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1. activity
2. condition |
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What are the four types of entrants to property?
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1. undiscovered trespasser
2. discovered trespasser / anticipated trespasser 3. Licensee 4. Invitee |
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What is the duty of care owed to an undiscovered trespasser?
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Zero, whether they are hurt by an activity or condition
will always lose a premises liability case |
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What is the duty of care owed to a discovered trespasser / anticipated trespasser?
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1. Activity - the standard of care is RPP
2. Condition - for their to be a duty must satisfy 4 part test a. condition must be artificial in nature b. condition must be highly dangerous c. condition must be concealed from the trespasser d. the land possessor knew about the condition in advance the possessor owes a duty to a discovered trespasser only to protect from known man-made death-traps on the land. |
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What is the 4 part test that must be satisfied for a possessor of land to owe a duty of care to a discovered trespasser injured by a condition?
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1. condition must be artificial in nature
2. condition must be highly dangerous 3. condition must be concealed from the trespasser 4. the land possessor knew about the condition in advance the possessor owes a duty to a discovered trespasser only to protect from known man-made death-traps on the land. |
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What is the duty of care owed to a licensee?
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1. activity - RPP - plain vanilla standard of care
2. condition - 2 part test for when duty is owed: a. concealed condition b. condition must be known to the def. a possessor must protect a licensee from all known traps on the land type of condition doesn't matter, can be man-made or artificial and only need be slightly dangerous. - slippery rug |
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What is a licensee?
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enter land w/ permission but w/o any purpose of conferring commercial benefit to the land possessor
ex: social guests, solicitors |
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What is the 2 part test that must be satisfied for a possessor of land to owe a duty of care to a licensee injured by a condition?
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1. concealed condition
2. condition must be known to the def. type of condition doesn't matter, can be man-made or artificial and only need be slightly dangerous. - slippery rug |
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What is an invitee?
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enter land either to conver a commercial benefit on the property owner or enter land that is open to the public generally.
Ex: customers, visit hospital, visit museuml, etc. |
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What duty of care does a land possessor owe an invitee injured by an activity?
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RPP - plain vanilla
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What duty of care does a land possessor owe an invitee injured by a condition?
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2 part test for when duty is owed
1. dangerous condition must be concealed from the invitee 2. possessor eithr knew about or could have discovered through reasonable inspection a possessor must protect an invitee from all reasonably knowable traps on the land. |
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What is NY's approach to entrants and duty of care?
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Only one approach to duty of care - all entrants regardless of how they get hurt is governed by the RPP under the circumstances.
However, one of the circumstances is likely to be the kind of entrant. Use the old approach for the circumstances. |
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What is the firefighter's rule?
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police officer or firefighter generally can't recover in negligence for inherent risks of the job.
NY is different - narrower - can't sue employer or co-workers - can sue negligent home owner. |
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Is the firefighter's rule applicable in NY?
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Yes, but narrower. can't sue employer or co-workers - can sue negligent home owner.
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What are the rules for child trespassers injured by artificial conditions?
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treated more generously than adults
hold possessor to reasonable prudence under the circumstances. |
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What are the two ways to satisfy a duty to an adult entrant?
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1. fix the problem
2. give a warning |
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Do warnings satisfy a duty to an adult entrant?
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yes
ex: wet floor sign |
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What are the questions involved with child trespassers?
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1. How likely is it that kids will trespass
2. is there something on my land that will lure children (attractive nuissance doctrine) 3. how old are the likely trespassing children likely to be - will they appreciate the danger |
