Reading...
Play button
Play button
Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
125 Cards in this Set
- Front
- Back
|
Intentional Torts: Intent Requirement
|
- D desired to produce the forbidden result or consequence
- D who desires to commit a particular IT against a particular victim will be liable for any other victim for any other IT |
|
|
Intentional Torts: Observations
|
- hypersensitivity of P is ignored (assume ordinary, avg)
- no incapacity defenses |
|
|
Intentional Torts: Battery Elements
|
- harmful or offensive contact (not permitted by person of ordinary sensitivity)
- contact must be with the plaintiff's person (incl anything being held, touched or connected) - incl. contact D knew or should have known would create a substantial certainty of harmful or offensive contact (swinging nunchucks) |
|
|
Intentional Torts: Battery
Defendant Behavior |
- lag time is ok (poisoned lunch)
- D does not have to use his own body to commit offense |
|
|
Intentional Torts: Assault Elements
|
- apprehension (reas knowledge) of an immediate battery
- must be an overt act or gesture (usu display of weapon); words alone lack immediacy |
|
|
Intentional Torts: False Imprisonment Elements
|
- D commits an act of restraint (threats sufficient)
- P is confined to bounded area (freedom of mvmt limited in all directions - P must know of act and be injured by it |
|
|
Intentional Torts: False Imprisonment
Disabled lady on airplane |
- Act of restraint incl. omissions if there was a preexisting duty
|
|
|
Intentional Torts: False Imprisonment
Reasonable Means of Escape |
- Not bounded if there is a means of escape that is not dangerous, disgusting, humiliating or impossible
- if it's unknown, doesn't count |
|
|
Intentional Torts: Intentional Infliction of Emotional Distress
Elements |
- outrageous conduct (exceeds tolerated bounds of decency; more than mere insults)
- P must suffer severe distress (not negated in facts) |
|
|
Intentional Torts: Intentional Infliction of Emotional Distress
Markers of Outrageousness |
- conduct happens over and over again
- transportation & hotel staff (w/ requisite intent) - P is member of fragile class (kid, elderly and pregnant) - if phobia is known and exploited |
|
|
Intentional Torts: Trespass to Land Elements
|
- act of physical invasion on land (incl air above and soil below)
- incl. propel, push or throwing tangible item - does not require damage to land * if it is an intangible item (ie particles, gas), there must be damage for recovery |
|
|
Intentional Torts: Trespass to Land
What if it isn't intentional? |
- mistake is no defense for intentional trespass
- negligent/reckless entry: not liable for trespass unless dmg is caused - accidental entry: no liability, even if there is damage |
|
|
Intentional Torts: Trespass to Chattel vs Conversion
Define and Differentiate |
- interference with personal property by deliberately damaging or stealing
- chattel: personal property, everything owned other than land, building and fixtures (incl pets & money) - difference is degree of harm: small--> chattel, big-->conversion |
|
|
Intentional Torts: Trespass to Conversion
You Break, You Buy |
- Conversion allows P to recover full value of assets
|
|
|
Intentional Tort: Prima Facie Tort
NEW YORK ONLY |
- intentional infliction of pecuniary harm w/o justification
- does not apply where a tradn'l tort could have been or has been est. - requires an intent to do harm not just the act causing the harm - ex. selling competing product below costs to suppress sales of rival |
|
|
Intentional Torts: Affirmative Defenses
Consent |
- requires valid legal capacity (no drunks, kids or mentally impaired)
2 types - express: words spoken or written that give D permission to behave in challenged fashion - implied (custom or common usage): if P goes to a place and engages in an activity where certain invasions are routine-->assumed to have consented (sports) - implied (reasonable interpretation): D reaonable interpretation of P objective conduct (man kissing woman on date) - if scope of consent is exceeded, return to position of liability |
|
|
Intentional Torts: Affirmative Defenses
Self-Defense Elements |
- reas belief that a tort is being commited against you, your property or another person (reas mistake will not defeat)
- proportionality: only degree necessary to respond to threat (bat vs gun) incl. right to use deadly force in life threatening situation - proper timing: tort must be in progress or imminent (no revenge) |
|
|
Intentional Torts: Affirmative Defenses
NEW YORK ONLY Self Defense: Deadly Force |
- must retreat if possible before resorting to deadly force
- does not apply in your own home or to police officer - only if you can do safely |
|
|
Intentional Torts: Affirmative Defenses
Self Defense: Deadly Force & Property |
- deadly force cannot be used to protect property
|
|
|
Intentional Torts: Affirmative Defenses
Necessity |
- only a defense to property torts (land, chattel, conversion)
- arises when D interferes w/P property in an emergency 2 types - public (absolute defense): interferes to protect community as a whole or significant group of people - private (not absolute): interferes to protect personal interest |
|
|
Intentional Torts: Affirmative Defenses
Private Necessity: Damages & Right of Sanctuary |
- D must pay for harm actually done; not liable for nominal or punitive damages
- D entitled to remain on P land as long as emergency continues; cannot be expelled or rejected |
|
|
Intentional Torts: Affirmative Defenses
Shopkeeper's Privilege |
- upon reasonable supscion of theft, my detain for reasonable period of time
|
|
|
Defamation: Elements
|
- defamatory statement (oral, written, informal)
- living person - statement must be published (negligence is adequate; reputation) - damages, maybe |
|
|
Defamation: Elements
Defamatory Statement |
- adversely affects reputation (name calling not enough)
- must be an assertion of fact reflecting negatively on character traits of modest, chastity, honesty, peacefulness or competence - statements of opinion not actionable |
|
|
Defamation: Elements
Damages, Maybe: Libel |
libel: any defamation written down or otherwise permanent
- damages are presumed |
|
|
Defamation: Elements
NEW YORK ONLY Damages, Maybe: Libel |
- Libel by extrinsic fact: if defamatory only by extrinsic fact, damages not presumed (must prove)
only defamatory if you know something else about person |
|
|
Defamation: Elements
Damages, Maybe: Slander Per Se |
- slander: spoken defamation
- damages presumed 4 types - about P business or profession - crimes of moral turpitude -imputing unchastity on a woman (single lady having sex) - loathsome disease (leprosy and venereal) |
|
|
Defamation: Elements
NEW YORK ONLY Damages, Maybe: Slander Per Se |
- in addition to other 4 types, imputation of homosexuality
|
|
|
Defamation: Elements
Damages, Maybe: Other Slander |
- must show economic harm to get damages (emotional distress does not count)
|
|
|
Defamation: Elements
Special Cases, Matters of Public Concern |
- P must prove 2 additional elements
1. falsity of statement 2. fault (different standard for public v private figures) |
|
|
Defamation: Elements
Special Cases, Matters of Public Concern: Proving Fault |
- public figure: must show false statement was made knowingly or with reckless disregard for truth
- private figure: must show failure to exercise reasonable prudence in investigation |
|
|
Defamation: Affirmative Defenses
|
- Consent
- Truth/Factual Accuracy of statement - Privilege (qualified and absolute) |
|
|
Defamation: Affirmative Defenses
Privilege: Absolute |
- granted based on D status; absolutely immune from suit
- spouse: dinner convo about co-worker cannot be basis of suit - officer of govnt acting w/n scope of official duties: applies to all 3 branches (words of congressman on senate floor) |
|
|
Defamation: Affirmative Defenses
Privilege: Qualified |
- Based on context/circumstances of speech
- occurs where there is a social or public interest in encouraging candor - D must be speaking in good faith - speech confined to matters that are relevant to reason for privilege ex. reference letters |
|
|
*Privacy Torts: Appropriation
ONLY PRIVACY TORT RECOGNIZED BY NEW YORK |
- D uses P name or image for commercial purposes
- newsworthy exception - in NY, survives death and does not apply to corporations or partnerships |
|
|
*Privacy Torts: Intrusion
NOT RECOGNIZED BY NEW YORK |
- invasion of seclusion in a way that is objectionable to average person
- must have reasonable expectation of privacy in secluded place - ex. spying, electronic surveillance, eavesdropping |
|
|
*Privacy Torts: False Light
|
- widespread dissemination of a major falsehood about P that would be objectionable to avg person
- overlaps with defamation but statement does not have to be defamatory - economic and emotional dmgs - does not require fault, even good faith belief in accuracy defeats claim (confirm) |
|
|
*Privacy Torts: Disclosure
|
- widespread dissemination of confidential info that would be objectionable to avg. person
- newsworthy exception (legit to publish VP med records; tabloids) |
|
|
*Privacy Torts: Disclosure
Dual Life Fact Pattern |
- if P operates in 2 spheres and D carries non-private info from one to the other, not actionable
ex. outing gay co-worker after seeing at gay pride parade |
|
|
*Privacy Torts: Affirmative Defenses
|
- prior consent
- privilege (absolute & qualified) for false light and disclosure only - in NY: photographer exhibiting work that has not been prev objected to |
|
|
Economic Torts: Fraud Elements
|
- factual misrepresentation in cnxn with business trsxn (more than silence)
- scienter (guilty knowledge) - intent to induce reliance (misrep material to trsxn) - justifiable reas reliance - damage (sustained econ harm) |
|
|
Economic Torts: Fraud
Affirmative Defenses |
NONE
|
|
|
Economic Torts: Inducing Breach of Contract
Elements |
- valid K between P & 3rd party that is not terminable at will
- D has knowledge of K - D persuades 3rd party to abandon K/breach relationship |
|
|
Economic Torts: Inducing Breach of Contract
Affirmative Defense |
- special relationship
ex. father talking son out of contract-->no liability |
|
|
Economic Torts: Theft of Trade Secret: Elements
|
- valid trade secret
- taken thru improper means |
|
|
Economic Torts: Theft of Trade Secrets Elements
Valid Trade Secret |
- info providing business advantage to possessor
- not generally known - owner must take reas effort to preserve secret |
|
|
Economic Torts: Theft of Trade Secrets Elements
Improper Means |
- traderous insider (initial access legit) by breach of implied promise to keep secret
- industrious spy (outsider who learns secret by unethical, illegal means) by bribe or breaking in |
|
|
Negligence: Elements
|
- Duty
- Breach - Causation - Damages |
|
|
Negligence: Elements
Duty: To Whom |
- foreseeable victims w/n zone of danger only
- unforeseeable victims allowed to recover: rescuer |
|
|
Negligence: Elements
NEW YORK LAW ONLY Duty: Unforeseeable Victim Allowed to Recover |
prenatal negligence
- D negligently impacts mom (if Jr born w/birth defect, Jr recovers; if not born, no recovery for baby but mom can get ED) - Dr. fails to diagnosis birth defect: mom can recover for enhanced cost of care, not ED - Dr. botches sterilization: no recovery |
|
|
Negligence: Elements: Duty
Standard of Care: Default |
- reasonable prudent person under similar circumstances
- incl phys attributes and relevant superior knowledge of D (expertise and isolated facts) |
|
|
Negligence: Elements: Duty
Standard of Care: Children |
- ages 4-18)
- hypothetical child of similar age, experience, intelligence acting under similar circumstances exception: child engaged in adult activity-->default std applies ex. operating motorized vehicle |
|
|
Negligence: Elements: Duty
Standard of Care: Professionals |
- individuals with special training providing services to public
- owes patient or client the care of an average member of the profession practicing in a similar community - standard is custom: do it like the other docs - P will probably need an expert witness to explain std to jury |
|
|
Negligence: Elements: Duty
Standard of Care: Professionals "informed consent doctrine" |
duty to explain risk of procedure to patient, except
- excludes commonly known risks - patient can decline information - doesnt apply to incompetent - no disclosure if it would be harmful |
|
|
Negligence: Elements: Duty
Standard of Care: Possessor of Property |
2 Questions
- how did entrant get hurt/cause of injury - what kind of entrant is it |
|
|
Negligence: Elements: Duty
Standard of Care: Possessor of Land Cause of Injury |
2 Possibilities:
- by activity conducted by possessor or his employees on land (AP) - P encountered dangerous condition on land (DC) |
|
|
Negligence: Elements: Duty
Standard of Care: Possessor of Land Type of Entrant: Undiscovered Trespasser |
- no duty of care, no recovery with injury
|
|
|
Negligence: Elements: Duty
Standard of Care: Possessor of Land Type of Entrant: Anticipated Trespasser |
- pattern of trespass, presence known by owner
- if caused by possessor activity: default standard - if caused by dangerous condition on land: duty for man made death traps (artificial-no duty to protect from naturally occurring conditions) (highly dangerous) (not open and obvious) (known to possessor--no duty to inspect) |
|
|
Negligence: Elements: Duty
Standard of Care: Possessor of Land Type of Entrant: licensee |
- social guests
- if caused by possessor activity: defaut standard - if caused by dangerous condn: duty only when condition was concealed from P and known by D |
|
|
Negligence: Elements: Duty
Standard of Care: Possessor of Land Type of Entrant: invitee |
- enters w/ permission & confers economic benefit (customer)
- if caused by possessor activity: default standard - if caused by dangerous condn: duty only when condition was concealed and possessor either knew or could have known thru reas investigation (ie wet floor |
|
|
Negligence: Elements: Duty
Standard of Care: Possessors of Land Exceptions |
- firefighters and police-->no recovery from inherent risks
- child trespassers injured by artificial condition --> default standard (where reas incl how likely it is child will trespass) |
|
|
Negligence: Elements; Duty
Standard of Care: Possessor of Land NEW YORK LAW ONLY |
- abolished categories
- reasonable person under circumstances, regardless of type of entrant or cause of injury - but reasonableness analysis does include what type of entrant |
|
|
Negligence: Elements: Duty
Standard of Care: Statutory (statute displaces default std) |
- allowed to show violation of criminal or regulatory statute
- class of persons, class of risks requirement - if statute doesnt apply, just use default standard |
|
|
Negligence: Elements: Duty
Standard of Care: Statutory Exceptions to Statutory Borrowing |
- if compliance w/statute would be be more dangerous than viol it, not usable as std of care
- if compliance would be impossible, cant borrow |
|
|
Negligence: Elements: Duty
Standard of Care: Affirmative Duty To Act |
- there are none
- no duty to rescue stranger in peril - dont be sucked in by emotions (phelps doesnt have to rescue drowning baby) - if D acts w/o legal duty & screws up-->liable |
|
|
Negligence: Elements: Duty
Standard of Care: Affirmative Duty to Act Exceptions |
(standard of care: default)
- preexisting relationship bn D & P - if D put P in position of peril however, if with duty to act, no duty to endanger your own safety |
|
|
Negligence: Elements: Duty
NEW YORK ONLY Standard of Care: Affirmative Duty to Act |
- Good Samaritan Law offers protection to those who act w/o legal duty
- only extends to dr, nurses and vets - protection loss w/gross negligence |
|
|
Negligence: Elements: Duty
Standard of Care: Negligent Infliction of Emotional Distress |
1. Find D negligent under one of the other duty standards
2. apply plus factors based on whether it is a "near miss" or "bystander" claim |
|
|
Negligence: Elements: Duty
Standard of Care: Negligent Infliction of Emotional Distress "near miss" claim |
- P was in a zone of phys danger produced by D negligence
ex. driver runs red light and almost hits pedestrian - P suffered subsequent phys manifestation of distress (observable, diagnosable and not self reported) - can be later or instantaneous ex. heart attack, miscarriage |
|
|
Negligence: Elements: Duty
Standard of Care: Negligent Infliction of Emotional Distress "bystander" claims |
- negligent D hurt someone physically & bystander can recover if:
*observed in real time *at close proximity *victim is a close family member (spouse or child) where D conduct was intentional, bystander must prove D knew or should have known of his presence |
|
|
Negligence: Elements: Duty
Standard of Care: Negligent Infliction of Emotional Distress NEW YORK LAW ONLY "bystander" claims addendum |
- in addition to other 3 factors, bystander must be w/n zone of danger
ex. kid in the yard hypo |
|
|
Negligence: Elements: Breach
(fact + persuasion) |
- P identifies precise wrongful conduct D engaged in and explains why it constitutes a breach
(more specific the duty, less explanation needed) |
|
|
Negligence: Elements: Breach
res ipsa loquitor |
"the thing speaks for itself"
- used by P who lacks info to id what D did wrong - allowed to prove 2 substitute facts & no evidence of breach needed * accident was of a type normally assoc w/negligent behavior *accident was due to the negligence of someone in D position (immediately prior to accident, D had control) ex. human toe in chewing tobacco |
|
|
Negligence: Elements: Causation
Factual Cause |
- must discuss before proximate
- showing by P of relationship bn breach and injury: "but for" - rebuttable by D with "even if" |
|
|
Negligence: Elements: Causation
Factual: Multiple Defendants: Merged Cause |
1. merged causes: 2 people breach separately, later merge (ex forest fire that burns home)
- use substantial factor test, not but for *was individual breach capable of causing harm on its own-->if yes, D is liable; if both, jointly/severely |
|
|
Negligence: Elements: Causation
Factual: Multiple Defendants: unascertainable cause |
quail hunters case
- D must come fwd and present exonerating evidence |
|
|
Negligence: Elements: Causation
Proximate Cause |
Prove fairness
-->fair to make people pay for foreseeable consequences of breach - direct cause: D commits breach and P suffers immediate harm--if result is bizarre it's unforeseeable, not liable |
|
|
Negligence: Elements: Causation
Proximate Cause: Intervening Events that Create Liability |
D commits breach, something else happens, then P suffers harm
- medical malpractice - negligent rescue - reaction/protection forces - subsequent disease or accident if not on list: - why is D conduct considered negligent? - look at injury: is this what you feared would happen? - if yes, foreseeable-->D liable |
|
|
Negligence: Elements: Damage
"Egg Shell Skull" |
- take your P as you find your P
- once D has committed all other elements, D is liable for ALL damages suffered by P, even if great in scope |
|
|
Negligence: Elements: Damages
NEW YORK LAW ONLY |
tort award will be reduced by money P receives from other sources to compensate for the same injury
|
|
|
Negligence: Affirmative Defenses
- comparative negligence |
- offers evid that P failed to exercise proper care for own safety
- if shown, jury will be told to assign percentage based on degree of fault and P recovery will be so limited |
|
|
Negligence: Affirmative Defenses
-comparative negligence: 2 types |
pure (majority, applies in NY): strictly by the numbers, P recovers regardless of percentage
-modified: if P fault is over 50%, absolute bar to recovery |
|
|
Strict Liability: Safety Precautions
|
safety precautions are legally irrelevant where a party is strictly liable
|
|
|
Strict Liability: Injury by Animal
domesticated |
- domesticated: only if dog has vicious propensity known to owner
* 1st time surprise (negligent) thereafter on notice |
|
|
Strict Liability: Injury by Animal
Wild Animal |
(will not be ambiguous)
- owner/keeper always strictly liable (even if "tame") - being scared and fleeing is enough for recovery - remember, safety precautions irrelevant |
|
|
Strict Liability: Abnormally Dangerous Activity
|
- activity creates a foreseeable risk of serious harm
- activity not a matter of common usage ex. blasting, flammable products |
|
|
Strict Liability: Injury Caused by Product
Elements |
- merchant who routinely deals in goods of this type (not casual seller or service provider)
- demonstrate type of defect (manufacturing, design, warning) - proof that product has not been altered since it left D hand (ordinary channel of distribution sufficient) - engaged in foreseeable use of product at time of injury (many unintended uses are still foreseeable) - injured party must have been a foreseeable user |
|
|
Strict Liability: Injury Caused by Product
Elements: manufacturing defect |
- product departs from intended design and is more dangerous than consumer would expect
|
|
|
Strict Liability: Injury Caused by Product
Elements: design defect |
- product could have been built differently
- P must show alternative design that *would be safer, economically feasible and practical ex. baby crib |
|
|
Strict Liability: Injury by Product
Defective Warning |
- product sold w/o warning where risk was not obvious to user
- warning will substitute for physical redesign if residual risk cannot be engineered out |
|
|
Strict Liability: Affirmative Defenses
|
- assumption of risk
- product misuse - adequate warning (not required to warn if product only dangerous when used in large quantities or where danger is generally known to public) - comparative fault: recovery reduced by percentage of P stupidity |
|
|
Strict Liability: Other Areas Falling Under SL
Nuisance Claims |
- interference w/someone's ability to enjoy their own land
- behavior can be intentional, negligent or w/o fault= P has relief - P must show balancing of equities in his favor |
|
|
Strict Liability: Other Areas Falling Under SL
Worker's Compensation: Employees not covered |
- teachers, white collar employees of charitable orgs, household employees, part time domestics, clergy and indpt contractors
|
|
|
Strict Liability: Other Areas Falling under SL
Worker's Compensation: Injuries not covered |
- injury due solely to employee's own intoxication
- intentionally/self-inflicted injury by self or co-worker - voluntary company athletic activities |
|
|
Strict Liability: Other Areas Under SL
Workers Compensation: Specific Scenarios |
- injury on job associated w/illegal act-covered (stealing staples and supply closet falls)
- horseplay-->covered, unless extreme and beyond scope of job |
|
|
Strict Liability: Other Areas Under SL
Workers Compensation: Recovery |
- limited to medical bills and lost wages
- free to sue 3rd party |
|
|
Vicarious Liability: Theory of Last Resort
|
- try to get D for his own negligence first
ex. dad w/loaded revolver in plain view |
|
|
Vicarious Liability: Relationships
Employer/Employee |
- VL for acts committed w/n scope of employment
- no VL for intentional torts, unless *employer authorized use of force (police, bouncer) *misguided attempt to serve employer purpose |
|
|
Vicarious Liability: Relationships
indpt contractor/hiring party |
no VL, but
* land possessor will be VL if indpt contractor hurts an invitee * hiring party VL if indpt contractor involved in ultra hazardous act or non-delegable duty (duty imposed on employer that cannot be passed on to IC) |
|
|
Vicarious Liability: Relationships
automobile owner/driver |
- driver only liable if on an errand for owner
|
|
|
Vicarious Liability: Relationships
NEW YORK LAW ONLY automobile owner/driver: permissive use doctrine |
- provides VL whenever driver is using car w/owners permission, where permission is presumed
- not VL for intentionally tortuous - not necessary that person to whom owner granted permission actually operate vehicle - no longer applies to rental car companies |
|
|
Vicarious Liabilities: Relationships
parent/child |
No VL
|
|
|
Vicarious Liabilities Relationships
NEW YORK ONLY LAW parent/child |
parents liable for children over 10 upt o a maximum of $5,000
|
|
|
Vicarious Liability: Relationship
NEW YORK ONLY LAW Tavern-keeper |
- vendor who unlawfully supplies an intoxicated vendee w/alcohol is liable to 3rd party for injury caused by vendee
- where unlawful is *sale of alcohol to visibly intoxicated person *sale to any person actually or apparently under the age of 21 |
|
|
Co-Defendants: What Rights does CD1 have against the others?
|
- comparative contribution
- vicarious liability exception: VL D entitled to full indemnification from active tort feasor |
|
|
Loss of Consortium: Recovery by Spouse
|
- 3 causes of action against tortfeasor by spouse:
*loss of services *society (companionship) *sex |
|
|
Wrongful Death
NEW YORK ONLY LAW |
- must be brought w/n 2 years from time of death
- P has burden of proof, except as to D culpable conduct |
|
|
Intra-family tort immunity: injury to person
NEW YORK ONLY LAW |
- no intra-family immunity in NY
- child cannot sue parent for negligent supervision - duty to protect 3rd parties from foreseeable harms resulting from an infant child's use of a dangerous instrument (even if infant is unrelated) |
|
|
Equitable Remedies: Injunction
Types |
preliminary: granted at start of lawsuit to freeze status quo
*P has to show likelihood of success on merits & irreparable harm permanent: granted at end of lawsuit as relief to P w/valid CoA |
|
|
Equitable Remedies: Injunction
Elements |
- must show liability of D
- no adequate remedy at law - D has viol property interest or other protectable right (always met) - show injunction is enforceable by the court - balance of the hardships test |
|
|
Equitable Remedies: Injunction
Elements: No Adequate Remedy at Law |
- object in question has immeasurable value
- tortuous conduct is ongoing |
|
|
Equitable Remedies Injunction: Defenses
|
- unclean hands-->P has behaved inappropriately
- laches: prejudicial delay by P *D has changed position in reliance on P long delay/silence - prior restraint on speech |
|
|
Personal Property: Losers & Finders
|
- abandon: owner surrenders possession and has an intent to relinquish title and control
-lost: owner accidently parts w/possession *true owner has superior claim over others |
|
|
Personal Property: Losers & Finders
NEW YORK ONLY LAW finders of lost property |
- less than $20 value: reas effort to locate for 1 year
- exceed $20 value: turn it over to police to hold, may retrieve later if not claimed |
|
|
Personal Property: Gifts
inter vivos |
- consummation vest ownership in recipient and denies donor ability to reclaim
- requires: *donative intent to part w/title & ownership *acceptance of gift by donee (absent aff rejection) *valid delivery (actual item or something representative) first party checks: delivery occurs w/deposit third party checks: delivery occurs w/receipt stock certs: delivery upon receipt |
|
|
Personal Property: Gifts
in contemplation of death |
- gift predicated on assumption of imminent death
*imminent risk, likely, donor aware - if donee dies first or donor survives, gift negated |
|
|
Personal Property: Liens
Definition |
- right to continue to possess/retain someone else's property until financial obligation met where:
*property has been improved or enhanced by possessor or *possessor has rendered services in cnxn with property |
|
|
Personal Property: Liens
Elements |
- Debt or contractual obligation
- debtor has title to some physical property - creditor has possession of that property |
|
|
Personal Property: Liens
2 Types |
- special: right to retain specific property to secure particular charge
(ex. dry cleaners) - general: retain all property for gen. balance due (ex self storage) |
|
|
Personal Property: Bailments
Definition & Standard of Care |
- giving someone else possession while retaining title
-bailee std of care: SL for any harm to property resulting from use outside intended realm and for mis-delivery (unless person presented valid claim check) |
|
|
Personal Property: Bailments
Black Box Issue |
- bailee only responsible for things customarily found inside
|
|
|
Personal Property: Bailments
NEW YORK LAW ONLY Liability |
- bailee may not disclaim all liability by contract (ok to limit)
|
|
|
No Fault Insurance: When Can you Claim Benefits & Who
|
- only for personal injuries (does not cover property)
- anyone else driving your car, with your permission, can also claim - drunk drivers, drag racers and car thieves cannot claim NFI |
|
|
No Fault Insurance: When do you still have the right to bring a tort suit
NEW YORK LAW ONLY |
If you can demonstrate a loss in excess of legal threshold ($50K)
2 alternatives ways: - more than basic economic loss: add med expenses, lost earnings, misc expenses--if it exceeds 50K - serious injury: death, dismemberment, serious fracture, etc |
|
|
Torts: Negligence
Intra-Family Immunity NEW YORK ONLY |
- NY has eliminated defense of intrafamily immunity
- child may not recover against his parent for negligent supervision - also disallows counterclaim or third party complaint against a parent for negligent supervision |
