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156 Cards in this Set

  • Front
  • Back
Prima Facie Tort
1. Volitional Act by D
2. Intent
a. Specific: goal in acting is to bring about specific consq
b. General: the actor knows w/ “substantial certainty” that these consq will result
c. Transferred intent: = if D desired to produce a forbidden consq, D is liable if ANY forbidden consq occurs. (torts must be BAFiTcTl)
3. Causation: D’s act was a substantial factor in bringing about the injury
Prima Facie Tort, Elements
1. Volitional Act by D
2. Intent
a. Specific: goal in acting is to bring about specific consq
b. General: the actor knows w/ “substantial certainty” that these consq will result
c. Transferred intent: = if D desired to produce a forbidden consq, D is liable if ANY forbidden consq occurs. (torts must be BAFiTcTl)
3. Causation: D’s act was a substantial factor in bringing about the injury
Kinds of Torts? (4)
Intentional
Defamatory
Privacy
Business
Intentional Torts? (7)
- Battery
- Assault
- Intentional Infliction of Emotional Distress (IIED)
- False Imprisonment
- Trespass to Land
- Trespass to Chattels
- Conversion
Battery, definition.
= a harmful or offensive contact w/ plaintiff’s person;
invades sanctity of person’s body.
General Intentional Tort Proposition (3)
1. Reasonable P. The extreme sensitivity of a P is ignored in deciding if that P has a valid cause of action.
2. No incapacity defenses; Every D that commits elements of prima facie case must be held liable. (BAR: D will be incapable!)
3. ∀ Intent = D desires to produce legally forbidden consequence of that tort. (if child can form requisite intent → liable for IT)
Battery, elements
1. D must commit harmful or offensive contact.
a. Offensive = unpermitted by person of ordinary/normal sensibility.
2. Contact must be with P’s person (includes personal belongings), but need not be direct (poison sandwich) or harmful/damaging (2nd surgery).
Assault, definition.
= a reasonable apprehension by plaintiff of an immediate harmful or offensive contact;
invades sanctity of person’s mind.
What does apprehension mean?
Knowledge that a battery is coming. Apparent ability creates a reasonable apprehension if plaintiff knows defendant is unable to commit the battery then not assault (ie plaintiff knows gun isn't loaded)

Watch out for David/Goliath scenario
Assault, elements
1. D must place P in a reasonable “apprehension” (aka knowledge)
2. Apprehension must be of an immediate battery.
a. Immediacy = overt act / menacing gesture (display of weapon); ≠ words, BUT can negate gesture
False Imprisonment, elements
1. D must commit ACT OF RESTRAINT which P perceives/is harmed by
2. P must thusly be confined in a BOUNDED AREA where there is no reasonable means of escape that P can reasonably discover.
(Means [reasonable ≠ dangerous, disgusting, hidden, or humiliating])

NOTE: time of confinement is irrelevant
False Imprisonment, definition
an act confining the plaintiff to a bounded area
False Imprisonment, Act of Restraint ∈ ...?
1) Physical barriers or force
2) Threats, which would operate on a person of ordinary sensibility;
3) Omission, IF there was a pre-existing obligation.
4) Invalid use of legal authority
Intentional Infliction of Emotional Distress (IIED), definition
Act = outrageous conduct causing
+ Intent OR Recklessness
+ Causation
+ Damages =severe emotional distress <- Note: only IT to req dmgs

NOTE: this is a last-resort tort
IIED, Outrageous conduct
- definition
- examples
= exceeds all bounds of decency tolerated in a civilized society,
≠ mere insults
EG:
- Conduct is continuous or repetitive;
- D is a common carrier or innkeeper;
- P is member of fragile class of persons (1. Young children; 2. Elderly; 3. Pregnant women (defendant must know plaintiff is pregnant); 4. Racial, religious, ethnic or sexual minorities if specific derogatory epithets are used.)
IIED, Causation.
Bystander.
When D intentionally causes phys harm to a 3P and P thus suffers severe ED, P may recover by showing:
i. Prima facie elements of ED; OR
ii. That …
1. P was present when the injury occurred
2. P is a close relative of the person injured
3. D knew facts 1 & 2
IIED, limits of severe distress?
severe distress ≠ physical manifestation or mild annoyance; jury decides.
Trespass to Land, definition
= a physical invasion of plaintiff’s real property
Trespass to Land,
How can one invade land?
D enters P’s real property (reasonably incl subterrain and air), OR,
D throws a tangible object (not smell, sound, etc) onto land, even if innocuous/benign (water plants)
Trespass to Land, elements
1. D must commit an act of physical invasion, with sole intention of getting to the location via a voluntary act (not to invade)

2. P must be a possessor (= actual or constructive; ≠ owner) of the land at time of trespass
Trespass to Chattels / Conversion,
- general definition
- NY distinction
= intentional interference with personal property (≠ land or buildings)

NY: bonafide purchaser of stolen goods is not considered a converter of those goods
Difference b/w Trespass to Chattels and Conversion?
Trespass To Chattels < Interference & Remedy < Conversion

- TTC: can be intermeddling (damaging chattel) or dispossession (depriving P o fright to possession) -> actual damages

- Conversion: sig interference w/ tangible item (theft, wrongful transfer/detention - time matters, subst change/dmg/misuse) -> entitled to full market value of the property (you break it you bought it) OR replevin (possession).
Personal Property (4)
Finders, Gifts, Liens, Bailment
Finders (2 "kinds" of property)
Abandoned property = P must...
1. give up possession (physical act)
2. intend to relinquish possession of title and control (mental state)

Lost/Mislaid property = accidentally give up possession w/o intent to relinquish title or control
Finders, NY distinction
NY: Finder owns property IFF found property valued
- < $20 and O doesn’t claim it in 1yr.
- > $20, and after giving it to police, who hold it for anywhere from 3mo – 5yrs, O hasn’t claimed it, finder can get it back from police.
Inter Vivos Gift, Elements
Gift given during the life of the donor.
1. Donor must have donative intent.
2. Donee must make valid acceptance (IE, no affirmative rejection)
3. Delivery: object or some representation of it must be handed over
Inter Vivos Gift, Delivery
- definition
- 4 examples
= object (if small, ring) or some representation of it (if big, land) must be handed over
EG1. 1P check: when check is cashed.
EG2. 3P check: when endorsed check is turned over to endorsee/donee.
EG3. Stock certificates: when cert is turned over, even if not recorded on corp books.
EG4. Agents: whenever algo turned over by agent.

BAR: Most heavily tested element of inter vivos gift.
Causa Mortis Gift, elements
1. Donor must die.
2. Not valid gift if donee dies first.
Liens,
- elements
- kinds
1. Debt relating to performance of services
2. Creditor has possession of property in Q
3. Debtor retains title to property

General vs. Special
General Lien, definition
= right of creditor to retain a whole bunch of property as security for a general balance due.

NOTE: returning someone’s property does not release a general lien on the property. (EG: late rent for self-storage space.)
Special Lien, definition
= right of creditor to retain specific property in connection with services, which were performed on that specific item

NOTE: returning property does release the lien, but debt still exists. (EG: car repair shop. If you don’t pay, he can keep car. )
Bailment, elements
1. Voluntary turn over of possession of a piece of property to another person (bailee)
2. Bailee consents to take possession of the property for a specific purpose

NOTE: Bailee has duty to exercise reasonable prudence to protect the property, ∈ normal things hidden in the property.
Intentional Torts, Defenses
1. Consent (express, implied)
2. Protective Privileges (defense of self, others, property)
3. Necessity (private, public; property torts only)
Consent, flowchart
1. Was consent given? Yes -> a/b
a. Was it express? No -> b; Y -> 2
b. Was it implied by custom and usage or P’s conduct? Y -> 2
2. Did P have capacity? Yes -> 3
3. Did D stay w/in his boundaries/scope?
Consent, capacity
Don’t need capacity to be liable for tort, BUT do need capacity to agree to be torted upon.

BUT, capacity is sliding scale.
EG: two 8 year-olds can consent to wrestle ∴ not battery.
Express Consent
= words in quotation marks

BUT, express consent is ignored if there is fraud or duress
Implied Consent
A. from customary practice (EG, sports); OR
B. based on D’s reasonable interpretation of P’s objective conduct (jury decides; intent n/a).
Consent, scope
If D exceeds scope of consent, D loses consent.
EG: if Dr extends operation on P to unrelated part of body, battery UNLESS b/c medically nec (spleen about to burst).
Protective Privileges (3)
Self Defense
Defense of 3P
Defense of property
Protective Privileges, Elements
When can defense (of self, others or property) be invoked as an affirmative defense?
1. Proper Timing = D must act when threat he is supposedly responding to is in progress or imminent; No Revenge.
2. D must establish reasonable belief (or mistake) that threat is genuine. (EG: Shopkeeper’s Privilege.)
3. D’s response is limited to the amount of force necessary under the circumstances.
Protective Privileges, Deadly Force
- definition
- NY distinction
= if there is an actual or reasonable belief of deadly threat, D may respond with deadly force; DF never reas response in defense of property

NY, Rule of Retreat (before DF).
BUT, n/a IFF
- D's in own home
- D is a cop or is assisting one
- Retreat cannot be accomplished safely
Necessity
- defense to what kind of tort?
- kinds of necessity?
A defense applicable against property torts. (trespass to land/chattel, or conversion); BUT, does not relieve D of liability for damage done to property

1. Public Necessity
2. Private Necessity
What is Public Necessity? Consequences?
where D invades P’s property in an emergency to protect the community as a whole, or a significant group of people -> absolute defense
What is Private Necessity?
D invade property in emergency to protect property of his own (person or belonging)
Private Necessity, what are the consequences?
1. A private necessity D is liable to pay actual (IE, compensatory) damages to harm done to P’s property, UNLESS its to protect P’s own property. (douse fire in locked house)
2. There is no liability for nominal or punitive damages
3. “Right of Sanctuary” - as long as the emergency continues, D is allowed to remain on P’s land in a position of safety.
Defamation,
Two kinds?
1. Libel = defamation embodied in a permanent format (∈ printed on paper, email, on hard drive, etc)
2. Slander = oral defamatory statement (S in slander is for “spoken”)
Defamation, elements
1. Defamatory statement that identifies living P by name/description
2. Published
3. Damages (maybe)
What makes a statement defamatory? Limitations?
Allegation of fact that reflects negatively on P's character trait/reputation.

∈ honesty, esp $; hostility; disloyalty; immorality
∈ opinion → reasonable listener would assume factual
≠ name-calling
Defamtaion,
what is publication?
D must tell at least one other person, but, doesn't have to be intentional.
NOTE: ∈ N publication
NOTE: higher publication (many hear it → greater harm → greater damages
Defamation,
what is Negligent Publication?
EG: D writes letter to P accusing him of fraud but transposes address number. Neighbor reads it. This is publication.
Defamation,
how are damages determined?
Depends on defamation type.
1. Libel: don't have to prove damages
2. Slander: must prove economic damages (emotional/mental insuff) 3. Slander Per Se: don't need to prove damages
Slander Per Se (4 kinds + NY distinction)
= oral defamatory statement that does not require proof of damages b/c as harmful to rep as libel.

1. Business or Profession (prof never went to law school)
2. Crime of moral turpitude (X abuses hija)
3. loathsome disease - leprosy or vd.
4. imputing unchastity (≠ promiscuity) in a woman.
5. NY: imputation of homosexuality
Libel/Slander, NY Distinction.
Are special/presumed damages required?
Libel: NO, UNLESS it’s not one of slander per se categories + Defamatory impact is clear only w/ extrinsic fact.
Slander: YES, UNLESS it is one of slander per se categories + defamatory impact is clear on its face.
Defamation, Affirm D: Truth
= words D said are factually accurate; D bears burden of proof
Defamation, Affirmative defenses (3)
1. Consent
2. Truth
3. Privilege (absolute and qualified)
Defamation, Absolute Privilege
= f(who D is) -> Publishing ∉
1. Statements between spouses
2. Members of gov't while engaged in official duties
Defamation, Qualified Privilege
= f(when statement made)
1. When strong social interest in encouraging candor
2. Elements (limitations)
i. D must have a reasonable belief of accuracy
ii. Must be relevant to circ.

NOTE: only used when statement was false – otherwise use truth defense.
Defamation,
Ask 3 questions...
1. Is the privilege available? Already committed torts do not qualify.
2. Is a mistake permissible as to whether the tort being defended against (battery, trespass, etc.) is actually being committed?
3. Was a proper amount of force used?
Defamation, Public Concern
= if statement ~ matter of public concern, prove actual malice (← harder for P to win):
Actual Malice = P must prove
1. falsity of statement (now we assume truth)
2. D's fault - D made statement w/ K of falsity or reckless disregard for the truth (public figure) or N (private person).
Privacy Torts (rare)
- (4)
- NY distinction
∈ actions objectionable to an average person.

Appropriation
Intrusion
False Light
Disclosure

NY: no CL right of privacy except appropriation, (but not by corporations or partnerships)
Appropriation
= D uses P’s image or name for a commercial purpose

EXCEPTION, Newsworthy (eg, biogrophies)
Intrusion
= invasion of P’s seclusion in a way that would be objectionable to an average person.

NOTE: location must have reasonable expectation of privacy, BUT no trespass to land req.
False Light
= widespread (>>1 person) dissemination of a major falsehood about P objectionable to avg person.

Falsehood ∈, ≠ defamatory, eg sig misrep of one’s beliefs
NOTE: SL; no intent req.
Disclosure
= widespread dissemination of a confidential info (tax return, med info) about P objectionable to avg person

Confid info = t/a spheres. (P gay but not out everywhere)
EXCEPTION, Newsworthy.
Privacy Tort, Defenses
. Appropriation Intrusion False Light Disclosure
Consent
Privlg
Privacy Tort, Defenses
NY distinctions
exceptions for:
- prior written consent
- photographer exhibiting his work unless continued after written objection
- goods or a literary/ musical/ artistic production that the manufacturer/ dealer/ author/ composer/ artist has sold or disposed of with his name/ pic used.
BUSINESS TORTS
= Involve harm to the pocket book, not body

Fraud / Misrepresentation
Inducing a Breach of Contract
Theft of Trade Secrets
Fraud / Misrepresentation
BAR: rare
Usually: contractual obligation + tangible obj (car, house) + trickery

Elements
1. D must make a misrep of fact.
2. D must know he is making a misrep.
3. Materiality. Intend to induce reliance.
4. P must rely on misrep to go forward w/ transaction.
5. Must be damage.
NY: Negligent Misrepresentation
D liable for N to non-contractual parties who rely on misrep IFF
1. Awareness that statement or rep was to be used for a particular purpose
2. Reliance by a known party in furtherance of purpose; and
3. Conduct by D demonstrating D’s understanding of party’s reliance.
Prima Facie Tort ← NY only
- definition
- elements
= intentional infliction of pecuniary harm w/o justification. (a catch-all; eg, no face-to-face dealings)

1. Intent to do harm, as distinguished from the requisite intent for other ITs
2. P must allege and prove special/pecuniary damages

NOTE, n/a IFF: traditional tort established or could have been brought but for running of SOL.
Inducing a Breach of Contract
1. K existing b/w X & P.
2. D must know of K.
3. D must engage in persuasion designed to encourage X to breach K (BUT, privilege: special relationship / advisory capacity).
4. X must breach K.
Theft of Trade Secrets
1. P must possess valid trade secret
(Secret info that w/ biz advantage to owner who take steps to protect it.)
2. D must take secret by improper means
Improper Means ∈
1. Traitorous Insider: confid breach;
2. Industrial Spy: even if violation of ordinary stds of biz morality (not just law)
Negligence, elements.
1. Duty. risk reducing precautions.
2. Cause.
3. Breach. P must prove that D failed to live up to duty (in #1)
4. Causation. Factual OR Proximate
Duty of Care
= P must prove that D had a duty of care and specify what it was.
= Risk reducing precautions (b/c the byproduct may hurt someone).
N, Who is owed care?
Any foreseeable victims of carelessness; ie, unforeseeable victims – outside the zone of danger – always lose N claims. (Palsgraf)
Exception: rescuers. (mountain climber)
N, Duty to Foreseeable V:
NY exceptions (prenatal)(3)
1. Prenatal Injuries: N impact on pregnant woman.
• If child is prematurely born / born injured → child has separate cause of action
• If child is stillborn → no wrongful death claim.
2. Wrongful birth: Parents can recover cost of raising impaired child above cost of healthy child, BUT no emotional distress dmg.
3. No Improper sterilization. (Joy of child)
N, Quantity of care?
Objective Test (same for ∀)
Amount as would be given by a reasonably prudent person acting under similar circs.
N, What is a reasonably prudent person?
≠ normal
∉ personal characteristics
∈ D’s phys char (blind)
∈ superior skill / knowledge of isolated fact
∈ children, professionals, premises liability
Standard of Care, Child
Subjective Test ∴ difficult to win N against kid

< 4yr = zero duty; no liability
4-18yr = ~ of similar age, experience & intelligence acting under similar circ.
BUT, adult activities = apply adult reasonable std of care; (op vehicle w/ engine)
Standard of Care, Professionals
Empirical Test
= customary std of practice (of an avg member of profession practicing in a similar community)
(City v. Country doc; BUT specialists = superior skill)
Standard of Care, Professionals
NY Distinction, informed consent.
Doctors have an obligation to explain the risk of a procedure UNLESS...
1. a commonly known risk
2. patient doesn’t want to know, or would undergo treatment irrespective of risk
3. consent impossible b/c patient disable → incapable of understanding
4. if disclosure would be medically harmful (controversial)
Standard of Care, Professionals
NY Distinction, malpractice.
Attorney's duty only runs to client who has retained him; only client can sue for malpractice
Standards of Care, Premises Liability
duty of possessor of RE to entrants who come o the land
Standards of Care, Premises Liability
How did P/victim/entrant get hurt? (2)
- By an activity being carried out by D or D’s agents on the land.
- By a hazardous static condition.
Standards of Care, Premises Liability
What kind of entrant?
- (4)
- Exceptions + NY distinction
w/o Permission:
Undiscovered trespasser
Discovered trespasser (∈ anticipated trespassers)

w/ Permission:
Licensee (no $$ benefit to O)
Invitees (yes commercial benefit)

Exceptions:
- Firefighter/Police
- Attractive Nuisance
- NY: abolished entrant classes (still, type affects circ!!)
Table: Entrant v. Injury
...
Undiscovered trespasser
Duty: never owed b/c unforsble (trespassor sleeps in hay)
Discovered trespasser
Duty: If injury occurred from activity on land → reas prudence under circ UNLESS action/hazard was
• Natural;
• open and obvious (not concealed);
• not highly dangerous; OR
• land possessor had no prior K

IE: landowner has duty to protect a discovered trespasser against known, man-made deathtraps
Licensee
Duty: reasonable prudence under circ UNLESS
- Not known to D; OR
- Open and obvious.

IE: possessor must protect licensee against all known traps.
Licensee
Duty: reasonable prudence under circ. PROVIDED
- Possessor did knew or could have known via reas inspection; AND
- Not open and obvious to V.

IE: possessor must protect invitee against all reasonably known traps.
Entrants, Exception: Firefighter/Police
Firefighter/Police cannot recover in N for any risk that is inherent in the job. Policy: (AoRR)

NY: narrowed. Only applicable against employer or co-workers. o
EG: D Nly leaves stove. ← A: MBE, Firefighter cannot sue D; NY, F can sue D.
Entrants, Exception: Attractive Nuisance
O must live up to reas std of prudence under the circ and take extra precautions to protect kids from hazard on land that lures children

BUT, child does not have to be attracted to the land by the dangerous condition
Premises Liability
What are 2 ways to avoid liability / to satisfy duties?
1. Fix problem (but then no tort Q)
2. Give warning. (bridge sign, “don’t cross, danger”; say, “rug’s slippery”)
NY: No Fault Insurance
= Designed to divert relatively small stakes car accident cases from N system – don't prove other person’s fault, just go to your own insurance company.
NY: No Fault Insurance
Who and what does it cover?
Covers personal injury, never pain & suffer – O, driver & passenger of car and pedestrians
- Excludes bad ppl (drunk, thieves, racers)
NY: No Fault Insurance
What N claims remain liable?
P must please past the threshold:
1. suffered “serious injury”
2. damages in excess of “basic economic loss” ” = medical expenses (past + future) + lost income (max of $2000/month) >> $50,000
Negligence per se, definition
Violation of a state statute constitutes statutory standards of care
BUT unexcused breach of regulation or local ordinance constitutes only some evidence of N.
Negligence per se, elements
class of [person + risk] test.
1. P must show he falls w/in class of persons the statute seeks to protect.
2. Injury is in class of risks statute seeks to prevent.

UNLESS compliance w/ statute is impossible OR more dangerous than not
Negligence, Affirmative Duties to Act
There are none; Never have to do anything
UNLESS: pre-existing duty (once you do, be reasonable)
Negligence, Affirmative Duties to Act
EXCEPTION to pre-existing duty
= good Samaritan law
NY: • NY: does not apply to ∀citizens, only to a licensed health professional (nurse / doc/ vet) who voluntarily and gratuitously render emergency treatment at the scene of an accident → is subject to liability only for gross N
Negligent Infliction of Emotional Distress, definition
= how carefully P must behave in order to avoid bumming people out (instead of avoiding physical trauma)
NIED, elements
1. D has breached one of the other stds (reas care, pre existing duty, etc); AND
2. Physical Contact or Harm, via either:
a. Near-Miss
b. Bystander
c. Preexisting Relationship
NIED, Near-Miss
D’s N conduct put P in a zone of physical danger, which distressed P (usu fear), and P then had phys symptoms
NIED, Bystander
- NY distinction
P must be contemporaneous witness to a N bodily injury inflicted on a close family member by a Neg D.

NY:P must be self/family member and himself in zone of phys danger as well. (BUT: ED for miscarriage or stillborn b/c of medical N. )
NIED, Preexisting Relationship
Preexisting Relationship b/w P & D + a foreseeable risk of distress if D acts carelessly (Eg, AIDs diagnosis)
N, Breach
= Point in case where P demonstrates that D fell short of duty imposed by std.
1. ID wrongful behavior.
2. Explain why the behavior falls short of reasonable care.
Res Ipsa Loquitur
= Use in N claim when P lacks info about what D did wrong (barrel out window; toe in tabacco)
1. P must show that accident is one normally associated w/ N ← based on probability. (if no breach shown, deny directed verdict)
a. Evidence ruling out non-N explanation; OR Offer expert ~ probability
2. Accident is usu due to N of someone in D’s position ← ID of D (control).
Factual Cause
- definition
- test
demonstration by P between breach identified and injury suffered

But-for test.
Causation, Multiple D
(exception to But-for text)
1. Merged Cause
2. Unascertainable Cause
Causation, Multiple D
Merged Cause
Two careless parties release forces in world which merge and hurt a P

Substantial Factor Test:
was each breach alone capable of causing the injury? If Yes, hold both parties jointly + severally liable
Causation, Multiple D
Unascertainable Cause
Shifts burden to Ds to exonerate themselves. If they can’t, they are joint and severally liable.
Proximate Cause
= It is fair to make people pay for the foreseeable consequences of their actions. (BUT, reas people disagree)
Proximate Cause, Direct cause
Breach that leads instantaneously to injury
IE, Overwhelmingly foreseeable; ≠ freakish/bizarre
Proximate Cause, Indirect cause
D commits breach + others stuff happens → P suffers full harm
Proximate Cause, Indirect cause
What are well-settled patterns? (4)
i. Intervening medical N/malpractice.
ii. Intervening N rescue.
iii. Intervening rxn / protection forces.
iv. Subsq disease or accident.
Proximate Cause, ASK...
Why did I call that a breach? What am I afraid of/worried is going to happen?
If what happened to P is the same, it was foreseeable and there was PC.
Damages, Eggshell skull
= take your P as you find him; if D did elements, liable for ∀injury whatever the scope.
Damages, Punitive Damages
NY: punitive damages may be awarded in cases of gross N
Damages, Collateral Source Rule
NY: Personal / property damage, or WD, → comparative N (incl P’s insurance).
Damages, Injunctions
= need to establish a tort + show:
1. N
2. “There is no adequate remedy at all” ← ie, money inadequate
3. Injunction is enforceable (negative v. mandatory)
4. Balance of hardships tips in favor of P
Damages, Injunctions
How to show “There is no adequate remedy at all” ?
a. D has no money
b. Harm is impossible to measure in monetary terms (dog in kennel)
c. Conduct is ongoing/repetitive, making it onerous to bring mult law suits (bully)
d. Tort impinges on property right or protectable interest
Damages, Injunctions
Negative v. Mandatory
Negative injunction = command to D to refrain from conduct
- easy to enforce

Mandatory injunction = requires an undertaking/affirmative action by D
ii. Look at
1. Complexity of injunction to be ordered
2. How long it will take
3. Whether actions must take place outside the jurisdiction
Damages, Injunctions
How can D can show P is NOT entitled to injunction?
1. Unclean hands.
2. Laches. Prejudicial delay.
3. Freedom of speech.
Damages, Injunctions
Permanent vs. Preliminary
Permanent injunction = part of final relief in law suit, entered at conclusion of full trial on the merits.

Preliminary injunction = entered soon after complaint is filed after a truncated hearing and is designed to preserve the status quo.
Show: P will probably win AND P will otherwise suffer irreparable harm
Negligence, Affirmative Defenses
- Contributory N
- Traditional Applied Assumption of the Risk
- Comparative N
Negligence, Affirmative Defenses
Contributory N
= where P has failed to exercise proper care to protect himself, P will be barred from all recovery.

Exception, Last Clear Chance: N on part of P will not defeat recovery IFF D, through exercise of ordinary care, had last chance (suff time + ability) to avoid accident; ~ abrogated since adoption of Comp N

NOTE: this is a traditional, but now minority, rule. NY: doesn’t follow this.
Negligence, Affirmative Defenses
Traditional Applied Assumption of the Risk
= conduct that says, “that’s OK, I’ll take my chances”

1. P had knowledge and appreciation of the risk
2. P takes on the risk voluntarily (≠ emergency)

NOTE: this rule is traditional, now minority.
Maj = Express Assumption of the Risk, ∈ NY
NY: BUT failure to wear seatbelt can be offered to mitigate damages.
Comparative N
= where P has failed to exercise proper care to protect himself, P fault reduces recovery

Pure vs. Partial/Modified
Pure Comparative N
Assign %s derived by jury; P may recover even if P’s culpable conduct exceeds D’s UNLESS injury is a direct result of Ps own illegal conduct w/ risk of phys harm

NOTE: majority, ∈ NY.
Partial/Modified Comparative N:
Fault assigned P is:
>50% → damages reduced;
<50% → P gets no recovery
Strict Liability, elements
1. Existence of absolute duty on the part of D to make safe
2. Breach of that duty
3. Breach = actual & proximate cause of P’s injury
4. Damage to P’s person or property
Strict Liability, Animals
1. Domesticated/Farm animals: No SL, unless it has known vicious (even snarly) propensities.
2. Wild animals: SL. IE, safety precautions don’t matter.
Strict Liability, Abnormally dangerous activity, elements
1. Activity creates a frsbl risk of serious harm even when reas care is exercised. (precautions n/a)
2. Activity must not be a matter of common usage where conduct occurs.
→ trigger SL whenever anyone is hurt.
Strict Liability, Product Liability
Injuries caused by consumer products
→ triggers liability under a number of theories (N, breach of UCC implied warranty, booby-trap (battery), SL).
Strict Liability, Product Liability
-> under theory of SL, elements
1. D must be a merchant (= routinely deals in goods of this type).
2. P must show product is defective.
3. Product has not been altered since it left D’s hands (ordinary distribution channels)
4. P must be making a foreseeable (≠ intended use; ∈ some mis-uses) use of product at time of injury.
Strict Liability, Product Liability
-> under theory of SL, merchant
= routinely deals in goods of this type
- NO SL, Casual sellers = common folk selling used goods; (sue car-seller for fraud, not SL)
- NO SL, Service providers = individuals whose primary biz is offering a service
- YES SL, Commercial lessors = trade / deal in goods for profit, but not title (car rental)
Strict Liability, Product Liability
-> under theory of SL, kinds of defects?
(YES, SL)
- Manufacturing Defect = “one in a million product”
(defect | more dangerous than consumers would expect; toe in tobacco)

Design Defect = could be built in a safer, practical, &amp; more cost effective way.
(D must posit an alt design: doesn’t undermine primary purpose / not harder to use.) BUT, ~ not shown if danger apparent only after prod reaches public.

Information Defect = product w/ risks that cannot be phys limited/cost-effectively reduced + consumer would not be aware of ~ → sufficiently clear and prominent warning. (aka, treat as part of product’s design)
NOTE: dangerous product + warning << physically safer product
Worker’s Compensation
= A statutory insurance scheme providing benefits to worker’s injured on job, no matter cause (so ~SL)(pretty easy to get $)

BUT trade-off is that you can’t sue employer in tort (can sue 3P, eg for design defect); no pain & suffering, nor punitive damages
Worker’s Compensation
Who and what is covered?
- Person: Virtually everyone
- illegal acts during employment hours
- minor horseplay (not completely outside scope of employment)
Worker’s Compensation
Who and what is NOT covered?
- People:
--- Teachers and other non-manual laborers, education, religious and non-profits; part-time and annual domestic employees
--- Independent contractors (b/c they’re not employees);
- If an injury is 1. solely due to employee intoxication, OR Intentionally self-inflicted
- Voluntary off-duty athletic activity (firm softball game)
Worker’s Compensation
NY distinction
Failure of contractors to provide a safe workplace or comply with mandated safety precautions is specially protected by NY Labor laws

NOTE: protection applies only to construction workers, not others lawfully on premises
Nuisance
= interference w/ ability to enjoy one’s own property to an unreasonable degree.

1. D can act w/ intent, N or SL
2. P has right to relief based on balance of equities (degree of interference [P’s enjoyment of land vs. hindering D], also t/a D’s actions)
Vicarious Liability
= P has action against active tortfeasor, D1, and wants to sue 2nd D who was a passive party but who has a kind of relationship w/ D1.
Vicarious Liability, Relationships
Respondeat Superior (Y)
Employer-independent contractor (N)
Car Owner-Driver (N)
Parents-kids (N)
Tavernkeeper (N)
Vicarious Liability,
Respondeat Superior
Yes, VL: if employee acted w/in scope of job and not intentionally UNLESS:
- force is part of job (bouncer), E’er liable for excessive force
- job generates force b/w employer and customer (repo man)
- misguided effort to advance employer’s interest
Vicarious Liability,
Respondeat Superior
NY Distinction
Punitive damages are not recoverable under RS, UNLESS:
i. Employer was grossly N in hiring or allowing employee to continue work
ii. Employee was entrusted w/ general management of biz, OR
iii. Employer authorized or ratified the tortuous act.
Vicarious Liability,
Car Owner-Driver
Yes, VL: if O lends driver car to run errand for O. (D is agent.)
Vicarious Liability,
Car Owner-Driver
NY Distinction
NY = permissive use state:
Presumption that anyone driving O’s car has O’s permission ∴ O liable

Note: Registration = prima facie evid of ownership
EXCEPTION (under fed law), Rental companies IFF own N or criminal wrongdoing
Vicarious Liability,
Parent-Child
NY: only up to $5000 for the willful and intentional property torts of minor kids > 10.

NOTE: parent leaves out gun, kid shoots someone. P ≠ passive 3P; hay direct liability.
Vicarious Liability,
Tavernkeeper
NY distinction
NY, Dram Shop: a vendor who has “unlawful” supplied an intoxicated vendee w/ alcohol is liable to 3P injured by intoxicated vendee.
“Unlawful” sale incl selling to a visibly intoxicated person or to anyone actually or apparently under 21yr.
Co-defendant remedies
Q: P sues multi-Ds, collects all $$ from D1 → D1 sues D2 & D3; general recovery is jury’s %s.
Loss of consortium
= where V of tort is married, uninjured spouse gets a separate cause of action against all available Ds
Survival of Tort Actions
= actions involving harm to intangible interests, such as libel and slander, survive

NY: distribution of damages when injury causes death → damages are
• part of his estate (distributed via will).
• limited to those accruing before death (damages for death recovered in a WD)
• reachable by decedent’s creditors
Wrongful Death
- Who can bring action?
- What do you get?
- NY SOL
Who: If survived by distributes, estate rep
What: Punitive damages; No loss of consortium.
NY: SOL - must be brought w/in 2yrs from time of death
Tort Immunities, Intra-family
NY: no such duty. BUT...
- no parental duty to exercise due care in supervision -> kid can't sue his parents for N supervision.
- parent/guardian owes duty to protect 3P from foreseeable harm resulting from a child’s improvident use of a dangerous instrument subject to parent’s control.
Tort Immunities, Governmental
= no immunity for proprietary fxn nor where a special relationship exists w/ state/municipality. Otherwise, immunity exists from gov’t fxns.