Class And Outline Torts

Front 1

ALL INTENTIONAL TORTS

three requirements

Back 1

1) volitional act by D

2) intent to act (need not intend the harm)

3) D's act or thing set in motion by D which serves as legal cause

Front 2

ASSAULT
unloaded gun problem

Back 2

knows that there can be no assault and no recovery

if P doesnt know gun is not loaded, it would be reasonable to think that it might be. = reasonable apprehension this would be reaosnable knowledge of a harmful touch.

Front 3

ALL INTENTIONAL TORTS

transferred intent

Back 3

D intents against against specific P and a different result occurs, intent is transferred to the tort actually committed or to the person actually injured.; D liable if :

1) he commits a different tort against that person,

2) he commits the intent tort against a different person,

3) he commits a different tort against a different person.


LIMIT: transferred intent applies only to: assault, battery, false imprisonment, trespass against land & chattels.

Front 4

ASSAULT

words and immediacy

Back 4

words alone lack immediacy ---- there must be conduct

a naked verbal threat will not provide a cause of action of assault

Front 5

ALL INTENTIONAL TORTS

minors and incometents

Back 5

Minors and Incompetents Can have Requisite Intent: every one is “capable”

Front 6

ASSAULT

Conduct

Back 6

for mental tranquility to be disturbed there must be a menacing gesture. (there must be conduct)

this is usually a weapon.

Front 7

ALL INTENTIONAL TORTS

causation

Back 7

D's act or thing set in motion must be the legal/proximate cause of the harm

Front 8

ASSAULT

negating immediacy

Back 8

accopanying words can negate immediacy

if they do, then No recovery for P

Hint 8

CONDITIONAL WORDS: menacing gesture and "if you werent my best fried I would hit you" no apprehension of battery, we have knowledge we wont be touched. I am not going to hit you... knowledge is that you are safe.


FUTURE WORDS; menacing genture, just you wait "i will hunt you down this afternoon at 3" no apprehension, (D could change his mind, P could hide)

Front 9

ALL INTENTIONAL TORTS

Damages

Back 9

Damages: for intentional torts damage is presumed (P need not show actual injury), so all except IEED don't require actual damages, nominal and punitive (if P proves malice) are recoverable

Trespass to chattels you need to show damages, but this is easy since dispossession = loss of possession = damages

Front 10

False imprisonment

Elements

Back 10

1) D must commit an act of restraint

2) P must as a consequence be confined in a bounded area

Hint 10

NOTES:

Front 11

INTENTIONAL TORTS

BATTERY def.

Back 11

D's act 1) intentionally, 2) causes, 3) a harmful or offensive contact with 4) P's person

Front 12

FALSE IMPRISONMENT

act of restraint

Back 12

1) threats are sufficient, = act of restraint

2) omission can be an act of restraint if there is a preexisting obligation to help P move around

3) act only counts if P knows about it or is harmed by it. (if P is oblivious =no cause of action)

Hint 12

EX: If you leave I will call the cops --renta cops do this.

EX: P needs to fly to LA she lives in NY, she is in a wheel chair. she gets on plane, when they arrive, cabin crew leaves her on plane and do not summon wheel chair, they just ignore her, and dont lock the door. An hour later someone discovers her, this is false imprisonment, failure to act was a prexisting duty.

EX: I lock roommate in room while he is sleeping. no cause of action since he is not aware and is not harmed by it.

but if nurse was supposed to give roommate medication and cant get in show roommate suffered a harm and this would give you cause of action

Front 13

INTENTIONAL TORTS

BATTERY: intent

Back 13

i. Intent: no battery if from negligent or reckless conduct →transferred intent applies

Front 14

FALSE IMPRISONMENT

threat as an act of restraint---> what kind of person would it operate on?

Back 14

threat must be one that would operate on a person of ordinary sensitivity

EX: if you leave the room I will kill you child

EX: If you leave the room I will blow up jupiter - not reasonable

Front 15

INTENTIONAL TORTS

BATTERY: harmful or offensive contact

Back 15

ii. Harmful or Offensive Contact: judged by reasonable person standard. Contact is offensive only if unpermitted

Front 16

FALSE IMPRISONMENT

bounded area: freedom of movement

Back 16

trivial:

an area is bounded only if P's freedom of movement is limited in all directions

does not need to be physical, it could be a threat "dont leave the room"

Hint 16

EX: baracades dont count since you just go around it.

Front 17

INTENTIONAL TORTS

BATTERY: P's person

Back 17

iii. Meaning of “Plaintiff’s Person”: P’s body or anything connected to P

Front 18

FALSE IMPRISONMENT

bounded area: escape

Back 18

an area is not bounded if there is a reasonable means of escape P can reasonably discover.

you are not locked in unless you are locked in.

escape cannot be dangerous, discutsing, humilitating or hidden this is not a reasonable means of escape.

Hint 18

EX: P locked in basement, and can get out by crawling through rat infested sewer pipe. = false imprisonment, means of escape is not reasonable

EX: P locked in room by butler, small hidden button can let him out = false imprisonment because P cannot reasonably discover it .

EX: P is in locker room and D takes P's clothes, only way to exit is to exit without clothes, = False imprisonment not reasonable means of escape.

Front 19

INTENTIONAL TORTS

BATTERY: causation and damages
1. when does causation occur
2. can it be indirect?
3. examples of causation 3
5. what damages?

Back 19

iCausation: Contact can be direct or indirect and occur later (hitting, setting trap, poison)


Actual Damages Not required: P can recover nominal or punitive damages if malice is shown

Front 20

IEED

intent

Back 20

only intentional tort where D can be held liable even if he was acting recklessly

you dont need intent , it is sufficient you were acting with utter disregard.

Front 21

INTENTIONAL TORTS

ASSAULT def

Back 21

b. Assault: D’s act 1) intentionally 2) causes P 3) reasonable apprehension of 4) an immediate 5) harmful/offensive contact

Front 22

IEED

elements

Back 22

1) D must engage in outrageous conduct

2) P must suffer severe distress

Front 23

INTENTIONAL TORTS

ASSAULT: intent

Back 23

i. Intent: D intends Battery, misses = assault; D intends assault hits,= battery → transferred intent applies

Front 24

IEED

"outrageous Conduct" def.

Back 24

Conduct is outrageous if:

it exceeds all bounds of decency tolerated in a civilized society.

**use this on essay

Front 25

INTENTIONAL TORTS

ASSAULT: reasonableness

Back 25

ii. Reasonableness: 1) knowledge of act 2) menacing act required 3) words insufficient 5) words + act =sufficient

Front 26

IEED

outrageous: insults

Back 26

mere insults are not outrageous as a matter of law

even if done with desire to upset, this is not outrageous

*but can make a bad case worse

Front 27

INTENTIONAL TORTS

ASSAULT: apprehension

Back 27

iii. “Apprehension”: D’s expectancy of battery, knowledge/ awareness NOT fear → apparent ability = sufficient

Front 28

IEED

Hallmarks of outragousness

Back 28

these are factors that would push courts to finding outregeousness

1) conduct is contiuous or repetitive (happens over and over again)

2) D is a common carrier or inn keeper (duty of curtesy) -- does no include negligence, ie no clean towels or bugs, this is not intentional it is just badly run hotel

3) P is a member of a fragile class of persons.
young children
elderly
pregnant women

Hint 28

D is outrageous because he is an emotional bully, he is not picking on someone his own size. so here conduct might become outrageous against a special class of person even though it wouldn't be against a regular person.

D must know P is pregnant to trigger outrageousness.

HATE SPEECH: case law suggests this is outrageous but normally there is usually an abuse of power as well. (cop vs. regular person).

Front 29

INTENTIONAL TORTS

ASSAULT: immediacy and damages

Back 29

iv. Immediacy: words can negate immediacy, alone not enough need a menacing act; NO conditional or future threats

v. No requirement of damages: P may also recover nominal or punitive damages if malice proved.

Front 30

IEED

"severe distress"

Back 30

does not require a particular showing by P

no physical symptoms needed

it is only for the jury to determine if P is distressed

Hint 30

testng:

they will negate the element in the body of the problem

Fact pattern will describe D's conduct, "P is midly annoyed" and sued D. = this is not severe distress same for "slightly irritated, or momentarily shagrined" this negates the elements.

Front 31

TRESPASS TO LAND

elements

Back 31

1) D must commit an act of physical invasion

2) P must be a possessor of land

Front 32

TRESPASS TO LAND

physical invasion

Back 32

2 ways

1) D can enter P's property (on foot or vehicle, boat etc)

2) throwing tangible physical object onto land (throwing rock) (innocuous or begnie of throwing can trigger liability)(intangible forces are not a trespass, ie flood lights) )

Hint 32

you are gardening on law, and neighbor's shrubs are dry, you water them, this is tresspass to land

SMOKE: wafting smoke not physical invasion, shooty smoke = physical invasion.

Front 33

TRESPASS TO LAND

intent

Back 33

only intent required is that D wanted to get to this location through a voluntary act

not needed that D know he is crossing boundary line or that he is disrepecting property.

it is enough that he got there through a voluntary act.

law charges person to know where the boundary lines are, you cannot defeat the claim by pleading lack of intent

Hint 33

intent is an issue when you get to a place through other than a voluntary act.

D walking has a heart attack and falls on P's land. NO tresspass since not voluntary D didnt want to be there.


D on a horse and horse freaks out and runs onto P's land, NO trespass.

Front 34

TRESPASS TO LAND

standing

Back 34

P is in lawful posession of the land when the invasion takes place. Trespass is a cause of action of possesory rights

rented property; Tenant in possession has cause of action

Front 35

TRESPASS TO LAND

what "land" is protected?

Back 35

air above and soil below and surface

Front 36

TRESPASS TO CHATTELS

chattels def.

Back 36

is personal property

Front 37

TRESPASS TO CHATTELS

personal property def.

Back 37

personal property is everythign you own other than land and buildings

includes car, bike, scooter, clothes, garments, assessory
inlcudes $ paper $ in wallet

Front 38

TRESPASS TO CHATTELS

How can D hurt P's personal property

Back 38

1) D can deliberaty damage it (destroy it )

2) D can steal it or take it away from you either for a period of time or for forever.

Front 39

conversion vs. trespass to chattels

Back 39

degree of interference determine which tort:

modest interference= trespass to chattels (small harm)

significant= conversion (big harm)

Front 40

special remedy for conversion

Back 40

P is entitled to recover full market value of chattell,

there is an ehnahced remedy for conversion, NOT just rental or repair.

Hint 40

conversion operates as a forced sale.

Front 41

NY DISTINCTION CONVERSION

BFP

Back 41

in NY a BFP of stolen goods, is NOT considered a converter of those goods

Front 42

personal property issues only on state portion of exam

overview

Back 42

1) finders; found property
2) gifts
3) liens
4) bailment (most important)

Front 43

personal property issues only on state portion of exam

found property: distinguish between "abandoned" and "mislaid property"

Back 43

distingusih between abandoned and lost property

ABANDONED PROPERTY: personal property; owner no longer wishes to continue to own: we need 1) physical act of giving up possession 2) state of mind: intention to relinquish title and control

LOST/MISLAID PROPERTY: person accidently gives up possession with no intention of relinquishing title or control. True owner always has a superior claim to the property over anyone else

Front 44

personal property issues only on state portion of exam

If the owner never appears:

Back 44

property valued at less than 20 dollars: --- make reasonable effort to locate the owner. If after 1 year, owner has not come forward, you get to keep your property

property valued more than 20 dollars: you need to turn it over to the police, they need to hold iitem on statutory period depending on value, 3 months- 3 years if item is worth 5K or more.

Front 45

personal property issues only on state portion of exam

gifts: what is the issue

Back 45

issue is where the party making the gift can recover back the property, or is the gift final so that donor cant get it back

Front 46

personal property issues only on state portion of exam

inter vivos gifts
1. intent
2. acceptance
3. delivery

Back 46

INTER VIVOS GIFT: gift given during life of donor, three requiremetns

1) donor must have donative intnet, ie intent to part with title not just possession. (statements or circumstantial evidence)

2) valid acceptance by donee (generally silence is adequate) the only time this is an issue is if there is an affirmative rejection of the gift.

3) there must be delivery, a transfer of possession; object or something emblamatic of it must be turned over.

Front 47

personal property issues only on state portion of exam

special situaitons of inter vivos gifts
1. checks 1st + 3rd
2. stock certificates
3. agents

Back 47

1) checks- gift of cash effectuated by a check, if this is a first party check delivery is not complete until the check is cashed. if donor stops payment donee cannot sue. Donee only accepts gift when check is cashed.

third party check= payable to Donor by some 3P and donor signs it over to someone else. This is delivered when check is turned over. rationale: only 3P can stop payment


3) stock certificates: delivered when turned over, does not need to be recorded on corporate books

4) agents: when something turned over the the agent this is not complete; once in possession of donees agent gift is complete

Front 48

personal property issues only on state portion of exam

gift causa mortis (3)

Back 48

gifts in contemplation of death:

there must be an:

1) imminant risk of death to donor that is objectively likely to occur.

2) donor must die: gift is not valid if donor survives.

3) not a vlalid gift if donee dies first

Front 49

personal property issues only on state portion of exam

lien ---->def. 3 elements

Back 49

this is a security device to enforce payment of debt.

ELEMENTS
1) debt relating to the performance of services

2) person who is owed $, "creditor" has possession of item in question

3) debtor retains title to the property

Front 50

personal property issues only on state portion of exam

general vs. special lien

Back 50

general lien: right of creditor to retain a whole bunch of property as security for a general balance due
(self storage place) IF they give back some property does not discharge or release a general lien

special lien: right to retain sepcific property in connection for services that were performed on that specific item; if he voluntarily gives you the car the entire lein is released.

Front 51

personal property issues only on state portion of exam

bailment def. + ex

Back 51

arises whenever you voluntarily turn over possession of a peive of personal property and that person takes possession for a specific person.

coat check, parking garage. lending neighbor lawnmower.

Front 52

personal property issues only on state portion of exam

Bailment: container issues

Back 52

things inside other thins

bailee has responsibility to protect property whil ein possession

NORMAL things are part of bailment (gloves in coat,)

EXTRAORDINAY things don't (diamonds in coat pocket)

Front 53

personal property issues only on state portion of exam

Bailment: safe deposit box

Back 53

banki is a bailee of everything in the safe deposit box

Front 54

personal property issues only on state portion of exam

Bailment: park and lock

Back 54

this is not a bailment; if you leave with your keys

this is a short term license of real estate space

if you leave your keys with someone this is a bailment

Front 55

personal property issues only on state portion of exam

Bailment: duty of caare

Back 55

reasonable prudence to protect property from harm during the bailment

ordinary negligence claim if property is destroyed.

Front 56

personal property issues only on state portion of exam

Bailment: attempts at limiting liability

Back 56

bailee can limit liabilty contractually --- BUT would not cover intentional torts

bailee can NOT entirely exculpate themselves

IE max liability is $500, but not disclaim all liability.

Front 57

AFFIRMATIVE DEFENSES

consent:
1. what torts is it a defense to
2. rules for children and consent

Back 57

defense to all 7 intentional torts

1) did P have legal capacity to consent (only person with legal capacity can give valid consent)

children lack capacity; but this is a sliding scale for capacity. Children can consent to invsions based on their age appropriate context ie 11 consents to fight, not to sex, where as 16 would

Front 58

AFFIRMATIVE DEFENSES

2 kinds of consent
1. express def. + exception
2. implied defined (2 sub variations)

Back 58

EXPRESS: utterance, statment by P. if they are going to give me the words P utters then I will know it is express consent.
EXCEPTION: express consent is ignored if there has been fraud or duress, fraud or duress negates express consent.

IMPLIED CONSENT: 2 sub variations
1) consent implied by customary practice
2) implied consent based on D's reasonable interpretation of P's objective conduct. (p's unexpress mental thoughts are not part of analysis)

Front 59

AFFIRMATIVE DEFENSES

scope of consent

Back 59

this is not an all or nothing doctirne

if D exceeds scope of consent, D loses the defense and goes back to a posture of liability

determine scope and ask if D was in scope.

Front 60

AFFIRMATIVE DEFENSES

scope of consent: medical proceudres

Back 60

if doc. operates on you and expands operation to a complately unrelated part of battery, this is unconsented and is a battery

BUT if doc, extends a surgical proceudure immediately adjecent based on professional judgement this is not a battery

IE Doc. taking out kidney stones sees spleen is injured and takes it out, this is not battery.

Front 61

AFFIRMATIVE DEFENSES

protective privileges generally

Back 61

1) self defense

2) defense of 3rd persons

3) defense of property

Front 62

AFFIRMATIVE DEFENSES

to get a protective privilege D must make the following 2 part showing.

Back 62

Two part showing to get a protective privielge: TIME + BELIEF

1) D must demonstrate proper timing --D must act when the threat that he is responding to is in progress or imminent

D cannot wait for threat to be fully completed and then respond after the fact--- D must act in the heat of moment

-no revenge

2) D must establish a reasonable belief that the threat is genuine. -- you dont lose a protective privilege defense if you make a reasonable mistake,

Front 63

AFFIRMATIVE DEFENSES

protective privileges: shopkeepers privilege

Back 63

shopkeeper can reasonably detain

Front 64

AFFIRMATIVE DEFENSES

protective privileges: amount of force

Back 64

to retain the defense D must limit himself to that amount of force that is necessary under the circumstances

if you use excess force you are liable for the tort.

Front 65

AFFIRMATIVE DEFENSES

protective privileges: deadly force

Back 65

where there is an actual or reassonable beleif to a human life, you are allowed to respond with deadly force

Person running at you or a person with a knife, you can fight deadly force with deadly force

Front 66

NY DISTINCTIONS: AFFIRMATIVE DEFENSES

protective privileges: NY Retreat

Back 66

in NY you must retreat before using deadly force if it is reasonable to do so.

DOES NOT APPLY if you are in your own home.

NO NEED TO RETREAT IF YOU ARE A COP

Front 67

AFFIRMATIVE DEFENSES

protective privileges: defense of property

Back 67

use as much reasonable force as necessary


deadly force is never allowed to defend property

you are liable for a tort.

*you cannot use deadly mechanical devices either

Front 68

AFFIRMATIVE DEFENSE:

necessity overview

Back 68

only applies as an affirmative defense if you are litigating one of the three property torts.

tresspass to land, chattels or conversion

Front 69

AFFIRMATIVE DEFENSES:

two flavors of necessity

Back 69

1) PUBLIC necessity: exists when D invades P's property in an emergency to protect the community as a whole or a significant group of people

absolute defense NO liability

these will often be a natural catastrophy but could be man made. Altruistic person will be present and does soemthing to solve problem, he may not even be threatened. But this person will need something (breaks window; takes car) he helps situation but damages property


2) PRIVATE: arises when D invades property in an emergeny to protect an interest of his own.---> liable for property damage

EXCEPTION IF FOR landowner's benefit

Front 70

AFFIRMATIVE DEFENSES:

Private necessity: rules
1. actual damages
2. nominal/ punitive damages
3. how long can Entrant stay
4. what kind of tort would this be?

Back 70

consequences of private
1) D is liable to pay actual/compensatory damages for harm P's property

2) no liability for nominal or punitive damages.

3) as long as emergency continues D is allowed to remain on P's land in a position of safety (D cannot be ejected, expelled or evicted)

trespass that would normally be a trespass is not in an emergency.

EXAMPLE

D goes hiking gets caught in snow storm, breaks houses window to get in a house. P sues for tresspass to land, recovers window cost

same as above, but door is unlocked. no actual/compensatory damages. P asks for punitive or nominal damages---> not recoverable

same as above. but P thorws D out into the storm. P is liable to D.

Front 71

AFFIRMATIVE DEFENSES:

Private necessity: to protect P's own property

Back 71

if a D acts out of private necessity and danger is not to himself and the danger is to P's own property NO Liability

D sees fire in kitchen breaks window to put out fire. P sues D for broken window, no recovery. Rationale: implied consent. you are constructively assumed to say I am fine with this.

Front 72

DEFAMATION

traditional defamation cause of action elements

Back 72

three elmenets:

1) D must make a defamatory statement specifically identifying P

2) D must publish the statement


3) damages, maybe

Front 73

DEFAMATION

defamatory statement def.

Back 73

statement is defamatory when it tends to adversely affect P's reputation

law assumes all of us have a valuable asset. defamation damages that asset

defamation is NOT about emotional harm

Hint 73

consequences:
1) name calling is not defamatory because it does not generally hurt reputation. --- doesnt give listeners any concreate reason to think poorly of john smith.

2) look for an allegation or representation of fact: the alleged fact will hurt P's reputation

Front 74

DEFAMATION

defamatory statements generally (5 types of stmts)

Back 74

1. traits
2. honesty,
3. lack of peacableness (P killed someone)
4. loyalty
5. morality: sexual

Front 75

DEFAMATION

defamatory statements: statements of opinion

Back 75

stmt of opinion is defamatory if a reasonable person would assume it was based on fact.

"last year I hired A, and you would be crazy to leave your $ with him" most reasonsable people would interpret this as defamatory the underlying fact he A stole from me.

Front 76

DEFAMATION

Identify P + dead P

Back 76

you must identify P specifically

AND P must be alive at the time statement is made.

*if Person is dead you can say whatever you want and wont be liable

Front 77

DEFAMATION

publication required

Back 77

"publication" means: D shares the statement with at least 1 person other than P himself. (deminimus requirement)

NEGLIGENT PUBLICATION SUFFICIENT**

your reputation is what other people think of you

so the only way that you can hurt your reputation is to talk to other people about you

*if you tell it to P themselves, then IEED possibly.

Hint 77

the more widely informaiton is distributed = greater damages recoverable

smaller distribution= less harm = less recoverable damages

Front 78

DEFAMATION

damages, maybe (2 categories overview)

Back 78

subcategoreis:

1) libel:

2) slander

Front 79

DEFAMATION

libel

Back 79

libel is defamation embodied in a permenant format.

written down, printed, email, film, etc.

In libel P NEED NOT prove damages (SEE NY DISTINCTION)


NY DISTINGUISHES between libel per se and libel per quod. If the stmt on its face is defamatory then libel per se= presumed damage, if the stmt is not defamatory on its face then it is libel per quod.

Libel per quod requires P to plead special damages UNLESS it fits into one of slander's 4 categories, if it does then damages presumed, if NOT then plead special damages.

Front 80

DEFAMATION

slander

Back 80

slander: is an oral defamatory statement.

two kinds of slander:

1) SLANDER PER SE: treated the same a libel, so bad for reputation

Front 81

DEFAMATION

slander per se categories

Back 81

the spoken defamation falls within one of four categories, characterized as slander per se, an injury to reputation is presumed without proof of special damages. There are four categories:
slanderous statement that falls in the following categories:

1) smt relating to P's business or profession

2) stmt that P has committed a crime of moral turpitude: crime that has a serious moral dimension.

3) stmt imputing un-chastity to a woman (does not require promiscuity, it just means a woman is having sex) "A and her boyfriend has sex"= unchastity. (defamation depends on woman, community, and P's willingness to bring a claim)

**this ONLY applies to women

4) stmt by D that P suffers form a loathsome disease.

leporasy
venereal disease

Front 82

DEFAMATION

slander (NOT perse)

Back 82

P must prove damages (must be economic harm)

*not enough to show feelings hurt, NOT enough to show you have been socially impacted

Front 83

NY DISTINCTION: DEFAMATION

libel

Back 83

in NY in libel cases

certain circumstances where damages will not be presumed.

a libel requires proof of damages if:

1) not within one of four per se categoreis

2) its defamatory impact is not clear on the face of the statement but requires additional evidenece.

Front 84

AFFIRMATIVE DEFENSES FOR DEFAMATION

overview

Back 84

1) consent (see other notes on cosent same here)

2) truth; D can show words about P are factually accurate. D bears BURDEN of proof since this is an affirmative defense.

3) absolute and qualified privileges

Front 85

AFFIRMATIVE DEFENSES FOR DEFAMATION

absolute privilege

Back 85

arises based on the identity of D,

function of who D is:

1) HUSBAND AND WIFE: spouses talking to each other, have an absolute privilege they cannot be held liable.
ie you cant "publish" by saying it to your wife, so no defamation liability


2) GOVERNMENT: governmental officers engaged in conduct of official duties.
most important in judicial branch, applies to lawyers, judge, and witnesses as well,,, you can't be held liable for defamation for something said at court

also covers legislative and executive branch official in conduct of omost important in judicial branch, applies to lawyers, judge, and witnesses as well,,, you can't be held liable for defamation for something said at court


3) mandatory broadcasts

Front 86

AFFIRMATIVE DEFENSES FOR DEFAMATION

qualified privileges

Back 86

applies on when the speech is made, not who made. it

arises when there is a strong social interest in encouraging candor.

* case by case

circumstances where we want to encourage candor

EX: recommendations and references (ie say pros and cons)
-->STMTS IN THE INTEREST OF THE PUBLISHER.

EX: stmts made to police -->REPORTS OF OFFICIAL PROCEEDINGS

Front 87

AFFIRMATIVE DEFENSES FOR DEFAMATION

limits on qualified privilege

Back 87

limitation

1) SPEAKER ACTS WITH MALICE: D must have a reasonable belief that what he is saying is accurate.

2) SCOPE: confine to matters which are relevant (you lose privilege if you inject irrelevancy.

**D BEARS THE BURDEN OF PROVING THE PRIVILEGE EXISTS.

ie i wrote a letter of rec. I got it wrong, but I had a reasonable mistake.

IE S is a great candidate, I had her for class. and she also has leporasy

Front 88

DEFAMATION

special defamation analysis: matter of public concern

Back 88

if the speaking or writing of D that is alleged to be defamatory is related to a matter of public concerns

*we add two extra elements to P's case, we dont want to chill 1st amendment

P must now prove 1) the falsity of the statement that was made. 2) P must also prove some degree of fault on part of D.

Front 89

DEFAMATION

Matter of public concern defined

Back 89

on going matter of public debate

ie oil spill

Front 90

DEFAMATION

defmation and falsity

Back 90

in the regurlar case where not concerning a public concern truth is an affirmative defense

where we have a matter of public concern falisty is added as an element. you need to prove a negative.

Front 91

DEFAMATION

matter of public concern: fault

Back 91

PUBLIC FIGURE: if P is a public figure fault is intent or recklessness.

a public figure must prove that D made the statement knowing that it was false,

or did nothing

PRIVATE FIGURE: if P is a private figure in a public conern case it is sufficient to who negligence.

*ie sec. of a oil exec. accused of hiding docs in public concern of oil spill. she is a private P and matter is public concern

Front 92

PRIVACY TORTS

Appropriation

Back 92

APPROPRIATION: D uses P's name or image for a commercial purpose. without P's permission

NEWS WORTHINESS EXCEPTION; not liable if they are an outlet of the media

while most litigation will involve celebrity P need NOT be a celebrity

*THIS IS THE ONLY PRIVACY TORT RECOGNIZED IN NEW YORK the remaining three privacy torts ARE NOT available in NY

Hint 92

he can get injunction and money damages

Front 93

PRIVACY TORTS

INTRUSION

Back 93

invasion of P's seclusion in a way that would be objectionable to the average person

the opportunity where P can be free from unwanted survelience

**P MUST BE IN A LOCATION where there is a reasonable expectation of privacy

NO TRESPASS TO LAND is required

INTRUSION IS NOT RECOGNIZED IN NY
EX: eavesdropping, low tech analogies pearing in window, viedeo survalliance, listening at the key hole.

Hint 93

EX: someone breaks into my house and sets up a video camera. two torts tresspass and privacy tort

Front 94

PRIVACY TORTS

FALSE LIGHT

Back 94

D makes a widespread dissemination of a major falsehood about P that would be objectionable to an average person


*D is running all over town telling a lie about P.

false statement can be defamatory but need not be

NO INTENT requirement even a good faith error will expose D to liability

even if D has a good faith basis; this is like a strict liablity tort.

Hint 94

D tells everyone that P is embezzling $ from company; this is false light and defamation

you get different damages:
in defamation = economic damages if P got fired

false ligth= mental damages


EX: D tells everyone P is a devout catholic when P is a jew.

this is not defamatory but is still false light, we don't think its bad to be a catholic but here this is false.

Front 95

PRIVACY TORTS

Public disclosure of confidential facts: newsworthiness

Back 95

widespread dissimienation of confidential information about P that would be objectionable to the average person

EX medical records published; someone pubishs your financial records

Front 96

false light vs. defamation

Back 96

widespread dissemination distinguishes false light from defamation, in defamation publication is a deminius requirement; under false light you need to tell a lot of people

Front 97

PRIVACY TORT

disclosure of confidential fact: DUAL LIFE EXAMPLE

Back 97

P is gay man and actively political but he is not out at work.

one weekend he goes to a ralley for marriage equality and holds a sign "were gay and we want equality"

office mate sees him and then tells every one at office

this is not actionable, because he made a public disclosure by standing on the street this would not

Front 98

PRIVACY TORTS

Public disclosure of confidential facts: newsworthiness

Back 98

newsworthiness Exception: if matter is a matter where there is a legitimate public interest publish, this is construed very broadly

Front 99

PRIVACY TORT

defenses

Back 99

1) consent (defense to all 4 privacy torts)

2) absolute and qualifeid privileges (apply to false light and disclosure claim)

Front 100

PRIVACY TORTS

Public disclosure of confidential facts: underlying information confidential

Back 100

underlying informaiotn must be truly confidential

DUAL LIFE FACT PATTERN: P operates in multiple arenas or spheres of activity, all or open but tries to keep separate, there will be a lawsuit but P will lose the law suit.

GAY PETE example

Front 101

ECONOMIC TORTS

fraud Typical fact pattern

Back 101

will come up in a sale usually, and there will be trickery associated in inducing buyer

Front 102

ECONOMIC TORTS

fraud elements

Back 102

1) D must make a misrepresentation of fact

2) misrepresentation must e made deliberetyl or reckelssley; D must know he is lying or made zero effort to ascertain the truth

3) mis-representaiton must be intended to induce reliance; the misrepresentation is strategic offered to get P to do the deal *** it must be material**

4) there must be reliance; buyer must take the representation as significant in their decision to go forward with the transaction

5) there must be economic damages; he must overpay for the thing

Hint 102

1) silence is NOT enough to satisfy first element; keeping your mouth shut for the tort of fraud. if you know the product is in bad shape and don't correct buyer this is not fraud.

2) error wont trigger fraud liability

3) must be material not collateral issue

Front 103

ECONOMIC TORTS

fraud: how to think about the elements

Back 103

you lied to me on purpose, with the purpose of ripping me off, I fell for it, and got skrewed.

Front 104

ECONOMIC TORTS

PRIMA FACIE TORT

Back 104

ONLY IN NY

the intentional infliction of pecuniary harm without justification

this is an open ended economic tort, against someone acting deliberately.

This is a catchall to punish someone who behaved badly but for which there is no there cause of action

Hint 104

EX: radio station tries to exclude their competitors

you cant sue for fraud, so they would bring prima facie tort


EX: preditory pricing.

Front 105

ECONOMIC TORTS

PRIMA FACIE TORT elements

Back 105

1) intent to do harm

2) there must be harm

Front 106

ECONOMIC TORTS

inducing breach of K: elements

Back 106

BOTH on mulitistate and NY (SEE equity outline also)

1) there must be a K in existence between P and 3P

2) D must have knowledge of K

3) D must engage in persuasion designed to encourage P to breach K

4) Party must then breach K (third party then has a breach of K action against P; 3P has a second claim for inducing P to walk away)

Hint 106

the persuasion could be the offer of a better deal

Front 107

ECONOMIC TORTS

inducing breach of K: 3 privileges

Back 107

privilege to induce breach of K

1) special relaitonship: exists when there is a special relationship between one of the contracting parties

2) professional advisors.

3) clergy

Front 108

ECONOMIC TORTS

Theft of trade secrets

Back 108

border between tort and IP, would be on state portion

1) P must possess a valid trade secret (see next slide for 3 definitional elements)

2) D must then take the trade secret by improper means

Front 109

ECONOMIC TORTS

Theft of trade secrets

there definitional elements of a valid trade secret

Back 109

three definitions of a valid trade secret
1) information that provides a business advantage to the owner/possesor (usually manufacuring)

2) must not be generally known; must be secret

3) owner must take steps to keep it a secret. excercise of reasonable precaution

Front 110

ECONOMIC TORTS

Theft of trade secrets: "improper means"

Back 110

can be done in two ways:
1) traitorous insider: there was a relationship of confidence, he got it lawfully first then uses the secret for his own advantage

2) industrial spy: bribes; can be improper if you violate ordinary standard of commercial morality

Front 111

NEGLIGENCE

elements

Back 111

1) DUTY: P must prove D had a duty of care and specify what it was

2) BREACH: P must prove D failed to live up to the duty established

3) CAUSATION: two kinds: factual and proximate

4) DAMAGE

**these elements are important in essay because they are the outline for the answer, use them in this order, do not omit them even if they are a non-issue on the facts.

Front 112

NEGLIGENCE

DUTY:
1. justification
2. DUTY defined
3. duty inquiry

Back 112

JUSTIFICATION: the law of negligence understands that whenever we act in the world, a by product of the action is the possibility that someone else could be hurt. there is a possibility that we could hurt someone else.

DUTY:----->THE LAW COMMANDS THAT WE ALL INCORPORATE RISK REDUCING PRECAUTIONS INTO OUR ACTIVITIES. when you act, you must take steps to reduce the possiblity of hurting other people. we must be mindful of other people

DUTY INQUIRY:
1) to whom do I owe the duty? -->who is in my mind as I modify my behavior/ objects of my care

Front 113

NEGLIGENCE:

to whom do you owe a duty to?

Back 113

you owe a duty to foreseeable victims of carelessness:

Hint 113

other words:

you dont owe a duty of care to unfroseeable V's

**unforseeable V's always lose negligence claims on the bar.

it drives outcomes.

Front 114

NEGLIGENCE:

to whom do you owe a duty to? EXample

Back 114

two guys are on train platform; trying to make the train jumps on the train; train employee gives the man a shove. But in the process the man drops a package. the package fell to the ground and causes an explosion because of the fireworks inside. Woman is injured.

SHE IS an unforefeeable plaintiff and therefore not owed a duty of care

Palsgraf

Front 115

NEGLIGENCE:

outside zone of danger + baseball example

Back 115

outside of the zone of danger, she is an unforeseeable Plaintiff

she is very far away (comes down to proximity)

EX: EX: proprietor of a baseball stadium; Got sued by a kid that was off the premises outside the stadium, but was standing outside by the fence where foul balls go, kid trying ot get the ball gets hit by a hit and run driver, HE is not a foreseeable P. no recover

Front 116

NEGLIGENCE:

overview of exceptions

Back 116

almost all laws in negligence will have an exception. study them as rule negligence pairs

Front 117

NEGLIGENCE:

rescuer exception + Example

Back 117

if someone is involved in coming to the aid of a V, and the rescuer is injured, Rescuer will not be barred because he came from very far away. ---> he is foreseeable

**THIS IS THE EXCEPTION TO THE PALSGRAF principle


EX: P is mountain climbing, he falls and breaks his legs. An hour later an other person is climbing on a very far part of the mountain and starts to climb laterly across the mountain he loses his grip and falls to his death. He dies and sues the rope company, he is a rescuer so we let him recover.

Front 118

NEGLIGENCE:

NY DISTINCTION: prenatal injuries

Back 118

this is NY material only

1) negligent impact on the body of pregnant woman

in NY if child is threafter born within injuries Kid has a cause of action in his own name. baby will have a cause of action against neg. driver

IF baby is never born, ie pregnancy is still birth, then no separate cause of action for kid. the mother has a cause of action but NO wrongfull death for infant.

2) doctor misdiagnosis birth defects

woman asks for a test to see if baby has a problem, Doc/lab does the test wrong, baby does have defect Doc says he doesnt.

Parents can recover for the cost of caring for child in addition to the costs of regular caring child
but parents CANNOT recover emotional distress


3) doctor botches sterilization

man wants a vassectomy, and Doc does it negligently. man impregnates woman. NO RECOVERY in NY;;;; joy of the child outweighs.

Front 119

NEGLIGENCE:

quantity of care: RPP standard

Back 119

you owe that amount of care that would be given by a hypothetical reasonable prudent person acting under similar circumstances

*write this in essay
*this is an objective test!

Front 120

NEGLIGENCE:

who is reasonably prudent person?
1. objective or subjective test?
2. where does he live
3. characteristics
4. personality
5. DONT Consider 2 things
+ EX

Back 120

OBJECTIVE TEST= same for every person in society

WHERE DOES HE LIVE: reasonably prudent person lives in juror's heads.

CHARACTERISTICS: reasonblly prudent person has NO characteristics. (no age, gender, race, weight)

PERSONALITY: with respect to personality: is always paying attention, always alert, always locks their car door, always has a first aid kit, always arranges to have someone feed his pets.


DO NOT CONSIDER! novice, mental defect are ALL held to reasonable prudent person standard.

MAKE NO ALLOWANCES FOR D's personal characteristics

MENTALLY DISABLED: still held to reasonable person standard

MENTAL DISEASE: still held to purdent standard too.

NOVICE: still held to reasonably prudent person

novice, mental defect are ALL held to reasonable prudent person standard.

EX: P sued D for negligence. D kept lots of carosine in garage, and house catches fire and P's house burns down two. This is property damages. P proves all facts, D claims he is stupid and didn't know better. DONT matter

Front 121

NEGLIGENCE

reasonably prudent person exceptions (physical characteristics and superior knowledge)

Back 121

1) D's physical characteristics; if relevant reasonably prudent person is assumed to have the same physical characteristics of D (doesnt lower the standard it just changes the standard, ie blind people need to use a cane, without it they might be negligent)

2) D with superior skill or knowledge: if D is engaged in an activity where he has special skill or knowledge he is judged against a reasonably prudent person that has that skill or knowledge

body of knowledge due to knowledge, training or occupaton (ie nascar driver needs to drive his passanger car the same would a race car driver would, ie if he loses control he should try to use his skills to stop the car)

knowledge of an isolated fact that is relevant in a given situation: D is stupid, but D knows that at the corner of Maple and Elm there are trees that block Driver's view, at the intersection D should drive as a reasonably prudent person with advanced knowledge of that lack of visibility.

Front 122

NEGLIGENCE

DUTY: Seven situations where we depart from reasonable standard of care

Back 122

reasonably prudent person standard of care will be applied unless it is displaced. These situations can displace it

1) D is a child (subjective) "kid of like mind...."
2) professional (emperical) --"how do other docs do it"
3) inkeeper/ common carrier--- slight
4) bailee ---depends on whose benefit= situational
5) emergency = objective RPP under emergency
6) automobile driver/ guest = ordinary care/objective unless guest statute
7) Duty of possessors of real estate to entrants who come on the land (premises liability) --depends on condition and P's status

Front 123

NEGLIGENCE

six situations where we depart from reasonable standard of care

Back 123

reasonably prudent person standard of care will be applied unless it is displaced.

1) D is a child (subjective standard)

2) D is a professional service provider "professionals" (empirical standard)

3) Duty of possessors of real estate to entrants who come on the land (premises liability)

4)

Front 124

NEGLIGENCE

standard of care: children

Back 124

children under age of 4 owe zero duty of care

for 4-18 children are held to the standard of care of a hypothetical child of similar age experience, and intelligence, acting under similar circumstances

*significant because this is a subjective not an objective standard, this is how it departs from reasonably prudent person standard.

Hint 124

EX: two kids, B is 6 and rides bike, other kid is C is 6 and is sitting pavement playing jacks. B rides over C's hands and breaks her hands. The standard of care is hypo. child of the same child. he is supposed to ride his bike as good as a 6 year old, not an 8 year old. Even if B was riding the bike the first time, the standard would adjust to this. if B is stupid,

b should operate his bike like a stupid 6 year old who had never been on a bike before.

C only wins if he did worse than this.

It is thus difficult to win negligence claims against kids, you can win but it is an uphill struggle.

Front 125

NEGLIGENCE

Standard of care: adult activity exception

Back 125

if a child under 18 is engaged in an adult activity

then the reasonably prudent person standard applies (NOT child standard)

ADULT ACTIVITY: usually operating a vehicle with an engine. car, boat, tractor, snow mobile, space shuttle

Front 126

NEGLIGENCE

Standard of care: Professionals
1. Who does it usually apply to
2. emperical vs. objective standard
3. The ____ practice in the profession sets the standard of care
4. Locality Rule
5. Specialits Rule
6. expert testmy

Back 126

WHO: this would be a health care provider, docs, nurses, chiropractors, etc.

EMPIRICAL VS. OBJECTIVE: this is an emperical standard not objective standard

STANDARD DEFINED: standard owed by professional to patients or clients is the care of an average member of that profession practicing in a similar community.
**swaps "reasonable" for "averagemember" consequence is that in professional malpractice we compare D to his real world collegues not a hypothetical person that lives in jury's head.

*we do out and see how other docs. behave
Professionals must be "conformists" do brain surgery the way all other brain surgens do it

*litigate the way other antitrust atty do it.

THE CUSTOMARY PRACTICE OF THE PROFESSION SETS THE STANDARD OF CARE
in ordinary negligence evidnece of custom is only some informaiton about how a reasonably prudent person would be have; In professional malpractice custom is conclusive.

if other doctors do it you need to do it, if other docs don't do it you don't need to do it.

STANDARD APPLIES TO SIMILAR COMMUNITY: small town is compared to small town doctors. ---> this affects the type of experts can be called. rural doc sued need an expert from rural area not from city.


SPECIALISTS: are compared to specialists in the same filed without regard to geography.

EXPERT TESTIMONY: P in professional malpractice must always offer expert testimony to educate jury on what the professional custom is.

Front 127

NEGLIGENCE

Standard of care: Professionals "informed consent"

NY DISTINCTION

Back 127

INFORMED CONSENT: Doctors duty in neg. includes an obligation of affirmatively explaining the risks of any reccomended procedure. if doc. doesn't explain risks, and P goes forward and risks materialize, P will have a cause of action

NY EXCEPTION: where informed consent is waived

1) no need to disclose a commonly known risk (ie doc doesn't need to tell you would get an infection from surgery)

2) no disclosure if Patient declines information

3) no disclosure if Patient is mentally incompetent

4) no disclosure if disclosure would be medically harmful, ( doesn't mean that the disclosure would lead you to decline the procedure. Doc cant do this. But doc can for example, withhold info if P suffers from an anxiety disorder and he know P would get heart problems from the disclosure)

*all this usually applies to medical professionas

Front 128

NEGLIGENCE

Standard of care: Duty of possessors of real estate to entrants who come on the land
1. where can premises liability be?
2. two points for analysis

Back 128

WHERE CAN IT BE?: premises liability; can be out of doors, camp ground, ski slope, indoors, commercial facility, office, lobby of a office builidng, residential. etc.

TWO POINTS FOR ANALYSIS:

1) LOOK AT HOW P GOT HURT (entrant/victim) --->TWO WAYS:

A) P may have gotten hurt by an activity being carried out by D or D's agents on the
land. I am pouring hot coffee= activity on land

B) P might have been hurt by a harzardous static condition on the land. chandeller falls
on P= static condition

2) WHAT KIND OF ENTRANT IS THIS? four categories of entrants;

a) UNDISCOVERED TRESPASSER = no duty, always looses premises liability cases
b) DISCOVERED TRESPASSER:
c) licensee
d) invitee

Front 129

NEGLIGENCE

categories of entrants: UNDISCOVERED TRESPASSER
1. Defined
2. duty owed
3. recovery
4. rationale
5. EX

Back 129

DEFINED: Entrant comes on the land, owner/occupier is unaware of their presence

NO DUTY OWED: duty owed is zero regardless of whether hurt by activity or by condition

NO RECOVERY: undiscovered trespassers always lose.

Rationale: undiscovered trespasser is an unforeseeable P

EX: P hides himself in a bail of hay and gets crushed, no recovery. unforseeable P

Front 130

NEGLIGENCE

categories of entrants: DISCOVERED TRESPASSER
1. defined (discovered and anticipated)
2. when should you anticipate + EX

Back 130

DEFINITION: those who come on land without permission, but possessor knows the tespasser is there, ALSO includes anticipated trespassers

ANTICIPATED TRESPASSER: those who you would expect to trespasser even though you don't have actual knowledge they are there at the moment

WHEN SHOULD YOU ANTICIPATE: you should anticipate trespassing , when there has been a pattern of past trespassing = usually when people use your land as a short cut.

EX: D is a rail road company company, who granted easements to the public. even though it is not a railroad crossing it knows people cross at a specific point, they know this because of foot prints, trash present, and conductors have seen people present. The past pattern of trespass outs the railroad on notice of trespass

Front 131

NEGLIGENCE

six situations where we depart from reasonable standard of care

Back 131

4)

Front 132

NEGLIGENCE

DISCOVERED TRESPASSER:
1. duty owed for activities on the land?

Back 132

DUTY OWED = RPP
if the injury to the discovered trespasser is caused by activities on the land = reasonably prudent person standard of care

superficially is a premises liability case but will litigate and look like negligence.

mnemonic: "The DA is a reasonably prudent person"

Front 133

NEGLIGENCE

DISCOVERED TRESPASSER: Duty owed for conditions on land
1. what is the duty
2. what is the test ◀▶◀▶ what are the other other formulations
3. EX:

Back 133

DUTY OWED: possessor owes a duty to discovered trespasser only to protect known, man made, death traps, hidden on the land

Discovered trespasser injured by condition on land, possessor has a duty to protect only when condition meets a four part test:

1) ARTIFICIAL: condition must be artificial in nature (built by humans, not natural)◀▶◀▶never a duty to protect a discovered trespasser from natural conditions---> NATURAL CONDITIONS= OUTDOORS= dead tree limbs, falling rocks, quick sand ------> ARTIFICIAL= INDOOR OR OUTDOOR.

2) HIGHLY DANGEROUS: condition must be highly dangerous, capable of doing very serious bodily harm ◀▶◀▶no duty to protect a discovered trespasser from a moderatly or slighlty dangers condition

3) CONCEALED: condition must be concealed from the trespasser (not apparent) ◀▶◀▶no duty to protect discovered trespasser from an open and obvious hazard on the land

4) KNOWLEDGE: hazard must be one that the land possessor knew about in advance (must have been prior knowledge)


**ONLY WHEN ALL FOUR ELEMENTS ARE MET CAN TRESPASSER recover.

EX: P walks on a rotten bridge, D knows= liablity, known, manmade, death tap (looked like a normal bridge, but wasnt)

Front 134

NEGLIGENCE

LICENSEE
1. Definition
2. who are licensees
3. solicitor rule
4. duty for activities:
5. duty for conditions (2) ◀▶◀▶ rule opposites
6. ex + contrast with discovered trespasser.

Back 134

DEFINITION: licensees enter with permission without any purpose of commercial benefit to land owner/possessor

WHO: friends, house guests, solicitors who come to front door

SOLICITOR RULE: solicitors get an implied consent by custom, unless you have a sign against solicitng

DUTY FOR ACTIVITIES: possessors owe licensees, reasonable prudent care

DUTY FOR CONDITIONS: condition must be
1) concealed condition ◀▶◀▶no duty to protect against open and obvious conditions
2) condition known to D.◀▶◀▶No duty if this is an unknown trap...possessor must protect licensee from all known traps on the land
*Doesnt matter if man made/ artificial


EX: I inite you to my house and you slip on my rug which I know doesnt have traction. I am liable, this is a known trap, it is concealed from you, but I know rug doesnt have traction.

*Note, we wouldn't owe a duty of care if this was a discovered trespasser it is not dangerous enough

Front 135

NEGLIGENCE

INVITEES
1. definition
2. who is an invitee
3. duty for activities
4. duty for conditions ◀▶◀▶
5. what is a reasonable inspection
6. analysis

Back 135

INVITEE DEFINITION: invitees enter land either 1) to confer a commercial benefit on property owner, or 2) they enter land that is open to the public generally

WHO: customers, museum (even if no admission charge), visiting hospital, airport visitor, even without commercial benefit

DUTY FOR ACTIVITIES; When possesor is engaged in activities the duty is reasonably prudent standard of care

DUTY FOR CONDITIONS:
1) dangerous condition must be concealed from the invitees, (victim, P) ◀▶◀▶ NO duty for open and obvious danger
2) condition must be one that the possessor either KNEW about in advance or COULD HAVE discovered through reasonable inspection ◀▶◀▶no duty if possesor couldnt have known or discovered through inspection

◀▶◀▶possessor must protect an invitee from all reasonably knowable traps on the land (not known traps)

WHAT IS A REASONABLE INSPECTION:
type of inspection that would be conducted by a reasonably prudent person
reasonably prudent person would NOT expect real estate every day and would not inspect every inch
a reasonable inspection takes into account cost and benefits IT IS NOT the duty of an insurer

ANALYSIS

1) is the thing a trap (does it look normal; does ti give advanced warning of unstable condition)

2) did possessor know in advance?

3) should possessor have discovered trap through a program of reasonable inspection? --evidence about how often and how thurouly inspects and evidence on whether or not this is reasonable under the circumstances. ** jury decides this

RULE: possessor protects from all reasonable knowable traps, but it turn on a fight over inspections

Front 136

DUTY OF POSSESSOR:

duty of possessor

OVERVIEW: 4 entrants + 2 type of harm + duty owed to each

Back 136

four types of entrants

two types of harm

1) UNDISCOVERED LOSESS ALWAYS

2) everyone else gets reasonable prudent standard of care for activities (except for trespassers)

discovered trespasser is protected from known man made, hidden death traps

licenseses is protected from concealed conditions known by possessor

invitee is protected from all concealed conditions which are known are could be known through reasonable inspection

Front 137

NEGLIGENCE: NY DISTINCTION

NY state

Back 137

NY has abolished the entire pemises approahc

ALL ENTRANTS REGARDLESS OF HOW THEY GET HURT, LAW SUIT IS PREDICATED ON REASONABLE PRUDENCE UNDER THE CIRCUMSTANCES

Hint 137

reasonably prudent person acting under similar circumstances, one of these circumstances would effect the kind of care taken is likely to be the kind of entrant owner is dealing with

in NY when authorized person and trespasser gets hurt, they will both demand that D behaved as a reasonably prudent person under the circumstances (so you would still treat these people different)


STATE that NY abolished the circumstances, but when you talk about breach talk about circumstance when entrant came and how he got hurt, we just talk about this under breach

Front 138

NEGLIGENCE

fire fighters rule

Back 138

fire fighters rule

a police officer or firefighter cannot recover in negligence for any risk that is an inherent risk of the job.

Rationale: assumption of risk, you are compensated by beneifts and the like

Front 139

NEGLIGENCE

fire fighters rule: NY Distinction

Back 139

NY fire fighter doctrine is only applicable in lawsuits agaisnt the employer or co-workers of the firefighter

IN NY you can have a suit against the homeowner in negligence

Front 140

NEGLIGENCE

Child trespasser + Attractive nuisance (duty of care/test)

Back 140

CHILD+ DANGEROUS + ARTIFICIAL CONDITION= RPP: child trespassers injured by artificial conditions on the land they can demand that D lived up to a standard of reasonable prudence under the circumstances.


ATTRACTIVE NUSIANCE: under a reasonably prudent person analyis, if there is Something on the land that draws children in , we expect possesor to take reasonable precutions analysis)

1) PROBABILITY: proximity to children: how likely is it that kids would trespass (if likely then loss of precautions to make safe for kids, but if not likely then little precautions)

2) CALL KIDS: is there something on the land that will lure children to come there? (does this call to children and is attractive nusiance doctrine)

3) AGE: how old are the children, are the children because of their age likely to appreciate the degree of danger

Front 141

NEGLIGENCE

ways to satisfy duty

Back 141

when ever a land posessor owes a duty to an adult entrant in regard to a condition two ways to satisfy your duty

1) fix the problem (repair it; make it safer)

2) give a warning; warnings satisfy duties "warning dangerous bridge do not cross"

**LOOK for choices that mention warnings, good answers! "R is liable to S unless he warned her about the condition"

"S cannot recover if R gave her a warning"

Hint 141

usually a wet floor!

possessors owe us a duty to protect us. they can satisfy the duty by either fix the problem i.e. dry it with cloths. or but up a warning (yellow signs) this is a warning

Front 142

NEGLIGENCE

NO FAULT INSURANCE: what does it

Back 142

no fault insurance scheme is designed to divert relatively small stakes automobile accidents from the negligence system

under a no-fault scheme, if you are under a relatively minor accident, instead of litigating, you just go straight to your own insurance company.

Front 143

NEGLIGENCE

NO FAULT INSURANCE: what you need to know (2)

Back 143

1) when an injured party can collect under the no-frault provision of the insurance policy (K law question but regulated heavily by insurance statute)

2) when can I still sue in tort? (notwithstanding no-fault in NY)

Front 144

NEGLIGENCE

NO FAULT INSURANCE:
1. is it mandatory
2. how much coverage for personal injury
3. personal injury and property damage coverage

Back 144

statute makes insurance mandatory--- you must buy auto insurance

50,000 of no-fault coverage: Minimum (you can buy more if you want)

no fault covered ONLY covers personal injuries NOT property damages (one car accident with tree, you get proceeds for medical, not for car damage)

Front 145

NEGLIGENCE

NO FAULT INSURANCE: who is covered

Back 145

WHO IS COVERED; policy would be purchased by the owner of the car:
1. owner
2. anyone driving owner's par
3. any passangers injured in owner's car
4. any pedestrians hit by owner's car
*all are covered by owners policy

Front 146

NEGLIGENCE

NO FAULT INSURANCE: who is covered ; who is excluded

Back 146

WHO IS COVERED; policy would be purchased by the owner of the car:
1. owner
2. anyone driving owner's par
3. any passangers injured in owner's car
4. any pedestrians hit by owner's car
*all are covered by owners policy; if injured they dont go through thier own they use the owners

they can recover whether one car accident or two car accident

can recover regardless of negligence

EXCLUSIONS: the following bad people cannot recover under no-fault:
1. drunk driver no recovery
2. drag racers
3. car theives
4. other fleeing felons

Front 147

NEGLIGENCE

NO FAULT INSURANCE: what neg. claims remain viable

Back 147

in order to sue P must demonstrate that his injuries are in excess of the statutory threshold.

"p must plead past the threshold"

THRESHOLD: two alternative thresholds
1) you exceed the threshold if you suffered serious injury: death, dismemberment, significant disfigurement, serious fracture, or permnant and total loss of a bodily organ/ bodily function.
*if you have this kind of injury you can go to court and sue in tort, but you still claim under no-fault policy, you get 50K under no-fault, then you assert a neg. claim, you cannot win the claim unless you can establsih the other driver was negigent.

2) you plead past threshold if you have damages in excess of basic economic loss: this is the sum of three numbers
1) medical expenses (past and future
+
2) lost income (max 2K a month, 24K a year) EX you out of work for two month =4K
+
3) 24 dollars a day for misc. expensese.

= numbers must be higher than 50K, if more than 50K you have serious exonomic loss and you can sue in tort, if less than 50K no tort suit you only get no-frault insurance benefits.

Front 148

NEGLIGENCE

NO FAULT INSURANCE:
1. does no fault insurance include pain and suffering?
2. if you get in an accident outside of NY can you still get no fault?

Back 148

NO fault recovery NEVER includes pain and suffering

no fault is portable, if you have an accident you can pursue no fault remedy even though the accident did not occur on NY soil.

Front 149

NEGLIGENCE;

special duty standard: statutory standard of care
1. what is the 2 part showing that P would need to make to have the staute apply

Back 149

P getting ready for neg. trial, discovers a statute the words which regulate the behavior of D that lead to accident. but the statute is not on its face about tort liablity, it is criminal or regulatory stattue instead.

P pedestrian is hit by car, claims car ran red light. P finds a statute "all drivers must stop at red lights, failure to do so is punishable by fine" while statute addresses teh facts of his case it is not legally relevant since ti woudl only apply in traffic court, but P brings the statute to the court's attention, and suggests that the statute's standard should replace the reasonbly prudent person under similar circumstances, instead we should say "D is obligted to stop at all red lights"

this would be treatment as negligence per se. Judge will do it if P makes a 2 part showing
1) P must demonstrate that he falls within the class of persons that the statue seeks to protect.

2) P must demonstrate that the injury is in the class of risks that the statute seeks to prevent.
class of person; class of risk test

****When this is satisfied the statute becomes the standard of care, it will be "borrowed" it will go into the jury's charge.

EX: P smells gas, lights a marijuana cig. and blows up neighbor's house. Neighbor tries to use marijuana law as a borrowed standard of care in tort action. Marijuana law fails class of person class of harm test, so we just litigate under the reasonably prudent person standard of care

Front 150

NEGLIGENCE

two exceptions to statutory borrowing

Back 150

1) compliance is more dangerous than a violation: if statutory compliance would be more dangerous than a statutory violation DO not use the statute even if the class of person class of harm test is met.

2) if compliance with statute is impossible we will not borrow the statue even when two part test is met.

Hint 150

EX: D crossex a double line to avoid hitting kid. P cant borrow statue that says don't cross double line. gets litigated under reasonably prudent standard of care.

EX: driver has chest pains, prudent person, wouldnt drive if he knew would always take his medication

Front 151

NEGLIGENCE

special duty standard: duty to act affirmatively
1. is there a duty to act affirmatively?
2. what is the effect of a special relationship (LIST 3)
3. if you decide to rescue you must do so_______!

Back 151

DUTY TO ACT AFFIRMATIVELY: your duty of care never encompasses a duty to act affirmatively. You dont have to rescue a stranger in danger --- you are never negligent never liable for walking away from someone in peril. No duty to rescue; this is a negligence rule,

EXCEPTION SPECIAL RELATIONSHIPS: if there is a prexisting relationship between person in peril, then there might be negligence:

1. land possess/entrant
2. family relationship
3. D caused the peril (negligent or non-negligent behavior)

EVEN IF D HAS NO DUTY TO RESCUE BUT DECIDES TO RESCUE; HE MUST RESCUE AS A RESONABLY PRUDENT PERSON,---- if he commits negligence he will be liable (deters voluntary rescue)

Front 152

NEGLICENGE

good samaritan NY STATUTE

Back 152

NOT on MS, BUT NY ONLY

NY only applys to certain occupational classes, does NOT to all citizen

Immunizes:
1. Nurses
2. physicians
3. vetrainarians.

Front 153

NEGLIGENCE:

Neg. Infliction of Emotional Distress
1. definition
2. Is this a tort?

Back 153

this could be a separate tort but is a duty problem because; we are asking to what degree careless behavior that does not lead to physical trama, still causes liablity because it causes emotional distress.

three senarios where P will succeed for NIED

this is a quasi tort three senarios

Front 154

NEGLIGENCE:

three senarios where P will succeed for NIED: overview
1. what is the first thing you must find?
2. list the three senarios

Back 154

three senarios where P will succeed for NIED

* you must first find D violated a standard of care, he needs to have breached one of the standards we already talked about

SENARIO I: near miss case
Senario II: bystander case
senario III: preexisting relationship likley to lead to emotional distress

Front 155

NEGLIGENCE

NIED: senario I

Back 155

SENARIO I near miss case
near miss case: D is liable of NIED if his neg. conduct put P in a zone of physical danger; P was distressed, and the stress then produced subsequent physical manifestations of the distress

P and D are strangers
EMOTION = fear

Hint 155

EX: P in zone, has distress and has heart attack - NIED

Front 156

NEGLIGENCE

NIED: senario II

Back 156

by stander claim for Emotional distress
P and D are strangers
EMOTION= grief

P must be a 1) contemporaneous witness; 2) to a neg. bodily injury inflicted on a close family member (spouse, parent, child)

NY requires P (bystander) that is distress must be himself in the zone of physical danger

NY CLOSE FAMILY MEMBER: aunt is not close family member (even though aunt raised her from birth)

Front 157

NEGLIGENCE

NIED: senario III

Back 157

preexisting relationship between P and D and where an error (neg. act) can foreseeably cause distress.

Neg. Medical diagnosis:

Front 158

IEED v. NIED

Back 158

IEED= D is acting deliberately

NIED= is careless behavior

Front 159

NEGLIGENCE

Element 2: BREACH
1. definition
2. two part analysis

Back 159

DEFINITION: breach is the point in the case where D fell short of the obligations imposed by the duty standard

TWO THINGS YOU NEED TO SAY TO GET FULL CREDIT:
1. FACT: identify the wrongful behavior-- this is a factual analysis, get fact and use it in answer

2. ADVOCATE: give a reason why the identifying fact falls short of standard of care---- this is argumentation, this is our role as advocate,

RPP analysis EX:
"P will claim that D's breach here was looking away from the road and playing with the radio. This is unreasonable because reasonbale people keep their eyes fixed on the road"


*when the standard of care is more narrow, breach analysis is
EX: "protect tress passer, Owner didnt repair it or give a warning"
"D didnt follow the law, as specified in statute "

Front 160

NEGLIGENCE

BREACH: res ipsa loquitor

1. when used?
2. Two part showing
3. two kinds of proof on first prong
4. Effect
5. EX

Back 160

WHEN USED: brought in to Neg. claim when P lacks information about what D did wrong. Action is one that is normally associated with negligence ( argument based on probability, P is saying I dont know why this happened, but typically a this would only happen only if someone did neg.) EX: P walking on street and a barrel of flour falls out of building and hits P on head, sues warehouse.

TWO PART SHOWING:
1) P must demonstrate that the accident is one noramlly associated with negligence--->p can simply appeal to common knowledge, ASKS judge for judicial notice

2) must show that accident is normally due to the negligence of someone in D's position (ie you sued the right person) show D had control over the object


TWO KINDS OF PROOF FOR FIRST PRONG:
1) evidence that rules out a non-negligent explanation, ---> changes the probabilities in favor of negligence
2) call Witness who does studies on probabilities.

EFFECT: if you prove res ipsa it gets you to the jury, doesnt mean you will actually get a verdict,

EX: P bought chewing tobacco, finds a toe, sued for neg. Court says that there is no reason why with oridinary care human toes would not be in tobacco.

if litigated today this would prob. be strict liability

Front 161

NEGLIGENCE

CAUSATION: overview

Back 161

factual cause

proximate cause

Front 162

NEGLIGENCE

CAUSATION: factual cause

1. Definition
2. test
3. tip for analysis

Back 162

DEFINITION: demonstration by P of a connection/link between breach and injury suffered

Each element of neg. analysis builds on analysis before

TEST: "but for" the breach P would not be injured.

TIP FOR ANALYSIS: in doing but for analysis imagine like a movie, we do a remake of the movie, it will be identical except fro one thing, except here D does not commit the breach. So we now need to see how remade move comes out. if P still gets hurt breach doesnt matter. if P does not get hurt, then this show breach was a factual cause of injury

Front 163

NEGLIGENCE

CAUSATION: factual cause

MULTIPLE D'S AND MERGED CAUSES: (what test is used)

Back 163

multiple D cases use alternative tests (not but for)

MULTIPLE D'S AND MERGED CAUSES: 2 careless parties their forces merge and their forces together harm P

EX: 2 neg. campers fail to put out fires, two forest fires and P's house burns down

SUBSTANTIAL FACTOR TEST: is each breach standing alone capable of causing the injury. IF each could = substantial factor = liability

IF BUT D's breaches are sub. factors they are jointly and severaly liable

Front 164

NEGLIGENCE

CAUSATION: factual cause

MULTIPLE D'S AND UNASCERTAINABLE CAUSE

Back 164

unascertainable cause

summers v. tice: Duty here is to behave as a RPP, breach is that people do not fire your weapon in the direction of a person. Factual cause, one D is guilty of hurting P, the other is not guilty, but we dont know who caused it. causation is therefore unascertainable, we then look to probability or statistics. (each has 50%). P has the burden of proof, P must show more likley than not that D1 fired,no, all he can show is 50%,this is under 51%, (same for D2). THE BURDEN OF PROOF then is shifted to D's. D's then have the burden to exonerate themselves, if they cant' then they will be jointly and severally liable.

Front 165

NEGLIGENCE:
CAUSE:

PROXIMATE CAUSE: what is the metric/ functional equivilent

Back 165

*** FAIRNESS duty, breach, factual cause, and P shows liability would be fair under the circumstances

EX: D is driving car, and hits P, P's car if full of dynamite. 100's die. Should D need to pay?

There is some place to argue about fairness the fairness analysis can be argued about.


THE METRIC HERE IS FORSEEABILITY: it is fair to make people pair for the foreseeable consequnces of their foreseeable duty....... it would be unfair to make people pay for the unforeseeable consequences of their carelessness.

DONT USE "IS THIS A PROXIMATE CAUSE"

Front 166

NEGLIGENCE:
CAUSE:

PROXIMATE CAUSE: direct cause problems

Back 166

direct cause problems; breach that leads instantenously to injury

things that occur in direct cause are foreseable = D is prox. cause (fair)

freakish and bizzare injury = unforeseeable= unfair = D should lose.

Front 167

NEGLIGENCE:
CAUSE:

PROXIMATE CAUSE: indirect cause case overview
1. what happens in these cases
2. what are the four settled fact patterns

Back 167

D commits the breach, other stuff happens, only after the other stuff does P suffer the full harm

FOUR WELL SETTLED PATTERNS: all indirect cause fact patters, in all 4 D is liable, outcomes are forseeable and fair, D is a proximate cause

1. INTERVENING MEDICAL NEGLIGENCE

2. intervening neg. rescues

3. intervening reaction or protection forces

4. subsequent disease or accident

Front 168

NEGLIGENCE:
CAUSE:
PROXIMATE CAUSE: indirect cause case overview

INTERVENING MEDICAL NEGLIGENCE

Back 168

when you neg. operate your car, P will likely need to see a doctor. IT is forseeable that P needs a doc and that doc. might be neg. Since foreseeable D is liable.

D Runs a red light and hits P, P breaks leg and taken to hospital med. neg. happens P then needs to have his leg amputed. D is the prox. cause of broken leg. D can also be sued for neg.

Front 169

NEGLIGENCE:
PROXIMATE CAUSE: indirect cause case overview

INTERVENING NEG. RESCUE

Back 169

when you hurt someone due to carelessness, resues will be drawn, and in some cases resucers will make things worse, since this is foreseeable, D is liable for damage done by rescuers.

Front 170

NEGLIGENCE:
PROXIMATE CAUSE: indirect cause case

intervening reaction or protection forces

Back 170

3. intervening reaction or protection forces

D runs red light, enters into podestrian crossing, breaks P's leg, to protect themselves from the car, the people stampede and panic. One of the stampeding people hurts P's arm other person. D is now liable for P's leg and arm

Front 171

NEGLIGENCE:
PROXIMATE CAUSE: indirect cause

subsequent disease or accident

Back 171

subsequent disease or accident

D injurs P breaks left leg, P is now on crutches. and wobbles and breaks his right leg. D liable forth both legs.

if you hurt someone and leave them in a weak condition, it is foreseeable that they would have a subsequent accident or disease. D liable for both

Front 172

NEGLIGENCE:

CAUSE: indirect cause fact pattern
1. analysis for things that are not in the four categories of well settled proximate cause

Back 172

1. look at the breach? ask why is this a breach, what am I worried is going to happen. then ignore rest of problem and look at what happened to P; then ask is that what I expected, if it is waht you expected, then foreseeable and D liable,

if not a match, then not foreseeable, not proximate, D not liable.


EX: three people go to a club to have lunch. A orders shrimp it is bad, and makes A sick, she goes to bathroom to throw-up. (club was not RPP bec. they left it unrefrigerated)

B then goes to see if A is okay to give her aid and comfort, in a consequence B slips on a puddle on the bathroom floor.

Breach, serving bad shrimp, stuff happens in between, this is an indirect cause action; We are afraid people would get sick. Does bad shrimp foreseeably break arms. no foreseability, not proximate cause. P loses her suit for her broken arm.

Front 173

NEGLIGENCE:

DAMAGES: egg shell skull rule

Back 173

if D has committed all other elements of a tort then D will be liable for all injuries suffered by P no matter how great in scope they may be


YOU TAKE P AS YOU FIND P: if he is frail too bad!

IF D has duty, breach, factual cause, fairness= D liable for all


NOTE EGG SHELL SKULL IS NOT LIMITED TO LAW OF NEG. IT APPLIES TO ALL RULES

Hint 173

EX: i am drunk and I stumble into P and he gets a bruse, I am liable for bruse.

same facts, but when P falls she fractures her hip, D is also liable

Front 174

EQUITABLE REMEDIES:

when are you entitled to injunction

Back 174

this is what you do to get an injunciton

Front 175

EQUITABLE REMEDIES:

negative injunction def.

Back 175

neg. injunction = command to D to NOT to do something (refrain from conduct

Front 176

EQUITABLE REMEDIES:

mandatory injunction def.

Back 176

mandatory injunction = injunction requires an undertaking, requires affirmative action

Front 177

EQUITABLE REMEDIES:

permnant injunction def.

Back 177

perm. injunction= entered at the conclusion of a full trial on the merits as part of the final releif of the law suit, (at the end of trial)

Front 178

EQUITABLE REMEDIES:

preliminary injunction

Back 178

preliminary injunction= entered shortly after complaint is filed, after a truncated hearing, designed merely to preserve the status quo

Front 179

EQUITABLE REMEDIES:

how to get an injunction

Back 179

you cant get an injunction unless you have first established a tort

ie itentional or negligent etc.

after establishing tort P must make a 4 part additional showing:
1. "no adequate remedy at law"
2. tort in question, impinges on a property interest or protectable right
3. injunction is enforceable
4. balance of hardships tips in favor of P (benefit to P out weighs harm D would suffer)

Front 180

EQUITABLE REMEDIES:

"no adequate remedy at law"
1. what does it mean
2. three times where there is not an adequate remedy at law.

Back 180

no adequate remedy at law

"at law" means money; money will not remedy the tort in this case.

money would not be adequate on the facts before the court

WHEN MONEY WOULD NOT BE ADQUATE:
1. D has now money "inpecunious" or judgement proof.

2. harm is impossible to measure in monetary terms (leave your dog at kenel dont have money to pay they want to kill your dog)

3. conduct is onerious making repeated lawsuits, (every time you pass D he hits you, you sue every time)

Front 181

EQUITABLE REMEDIES:

To get an injunction what are the two basis?

Back 181

tort in question, impinges on a property interest or protectable right

torts invade rights; the second prong is almost always met

recite it in analysis! then say "right to not be subject of fraud"

Front 182

EQUITABLE REMEDIES:

injunction is unenforceable
1. which type of injunction is easy to enforce?
2. which type is harder to enforce?
3. what are 4 things to consider in "enforceability"

Back 182

injunction is enforceable

a negative injunction is easy to enforce, since there are no questions of judgment associated with it. "dont do X" when D does X he gets hauled by to court.

mandatory injunctions are harder to enforce

EX: you bring action for nusiance, for loud factory, you request an injunction ordering factory to erect noise abatement walls. Court wouldn't do this since they can measure the noise etc. so not enforceable.

THINGS TO CONSIDER
1. **look at complexity of conduct being ordered or P is requesting

2. look at how long task will take

3. if ongoing compliance is needed

4. look at whether the activities will need to take place outside the jurisdiction (courts less willing if out of jurisdiction)

Front 183

EQUITABLE REMEDIES

defenses that will defeat injunctive relief

Back 183

1.unclean hands
2. laches
3. 1st amendment (no prior restraint on speech

Front 184

EQUITABLE REMEDIES

defenses that will defeat injunctive relief UNCLEAN HANDS

Back 184

D can show that P is guilty of some form of misconduct.

P does not have credibiliy or standing to ask for relief

EX: P sues D for theft of trade secret. D defends by showing P stole trade secret from X

Front 185

EQUITABLE REMEDIES

defenses that will defeat injunctive relief: LACHES

Back 185

PREJUDICIAL DELAY

D argues because you didnt sue me earlier. I assumed you were fine with action. D then has detrimentally changed his position

EX. P lives next to factory for 3 years. he wants them to stop using smoke stack. D argues that in those 3 years they expanded operations, why didnt you sue earlier. Court can still give money damages but NO injunction

Front 186

EQUITABLE REMEDIES

defenses that will defeat injunctive relief: FIRST AMENDMENT

Back 186

Be weary about injunctions on free speech

Front 187

EQUITABLE REMEDIES

two additional things P mush show at a preliminary injunction hearing

Back 187

preliminary injunction entered after filing, and turncated hearing. at hearing P must make 2 showing for preliminary injunctions (in addition to 4 mentioned)


1. likely success on the merits.
2/ P will suffer an irreperable injury without the injunction

Front 188

AFFIRMATIVE DEFENSES to neg.

what are the three?

Back 188

1. traditional contributory neg.
2. implied assumption of the risk (NY seat belt distinction)
3. comparitive neg.

Front 189

AFFIRMATIVE DEFENSES to neg.

traditional contributory neg.
1. which jurisdictions still use it?
2. is it the law in NY
3. what is the phrase that will trigger using this doctrine
4. What is the doctrine
5. EX

Back 189

WHICH JURISDICTIONS IS IT USED IN: abolished in most jurisdictIons

NOT LAW IN NY

HOW DO YOU KNOW WHEN TO USE: "in a jurisdiction following 'traditional" neg. defenses"


DOCTRINE: if P in neg. claim has failed to excercise proper care for his own safety P will be barred from ALL recovery.

failure to excercise proper care= NOT acting RPP, or statutory violation (j walking)

EX: D driving drunk, P is j walking. in traditional jurisdiction P recovers NOTHING. absolute bar to recovery

Front 190

AFFIRMATIVE DEFENSES to neg

LIMITATIONS ON TRADITIONAL CONTRIB. Neg.
1. is contributory negligence a minority rule?
2. what is the exception to the rule?

Back 190

Contributory neg. is the minority rule.

exceptions to minority rule: last clear chance

Front 191

AFFIRMATIVE DEFENSES to neg.

traditional implied assumption of the risk
1. is contributory neg. a majority or minority rule
2. is it the law in NY
3. what phrase lets us know assumption of risk is a possible defense?
4. What is the assumption of risk doctrine
5. In Contrib. Neg. jurisdiction what is the effect of assumption of risk
6. Two key things to look for in assumption of risk fact patterns

Back 191

Contributory neg. is a minority rule

NOT NY LAW

WHEN TO USE: "litigating in a state that uses traditional defenses"

DOCTRINE: conduct from which we infer the message "that's okay, Ill take my chances" ---- I know I am dealing with neg. person and there is a higher chance that I might get hurt.

THIS IS AN ABSOLUTE BAR TO RECOVERY

KEY THINGS TO LOOK FOR:

1. KNOWLEDGE + APPRECIATION: P had knowledge and appreciation of the risk: you are aware you are interacting with neg. party, and there is a higher chance I might get hurt, I am okay with this

2. VOLUNTARY you must take on the risk voluntarily: it cant be that you have no choice or that you are in emergency.

Front 192

AFFIRMATIVE DEFENSES to neg.

NY DISTINCTION: SEAT BELTS
1. How can D use P's failure to wear a seat belt?
2. What traditional common law defense is this?

Back 192

failure to wear a seat belt can be shown by D to mitigate P's recovery

This is implied assumption of risk

Front 193

AFFIRMATIVE DEFENSES to neg.

COMPARATIVE NEG.
1. is this a majority or minority rule?
2. what is the consequence of being in this jurisdiction?
3. what does the jury do?

Back 193

THIS IS MAJORITY RULE


1. assigns a different consequence to P's failure to excercise care in his own safety; legal consequence is that RECOVERY IS REDUCED not barred entirely

2. jury assigns each person a number that reflect liability or fault, P's recovery is reduced by number

D 70% to blame, P 30% to blame--- P has 100K in damages, P only recovers 70K, he must absorb the remaining 30K.

Front 194

AFFIRMATIVE DEFENSES to neg.

Comparative Neg.
1. what are the two different versions of Comparative Neg.
2. Which one do I use on the multistate?
3. when do I use it on the multistate?
4. What does NY follow?

Back 194

1. pure comparative neg (use this on MS if exam is silent)

2. Partial/modified comparative neg.

*NY = Pure

Front 195

AFFIRMATIVE DEFENSES to neg.

COMPARATIVE NEG.: pure comparative neg.
1. what drives the recovery numbers?
2. P will ______ recover
3. Is NY a pure comparative neg. State?
4. What exam do I use Pure comparative neg. on?

Back 195

we go strictly by the percentages that jury brought back

P always recovers a little money even if P bears bulk of fault

NEW YORK IS A PURE COMPARATIVE NEG. STATE (use this on NY side)

Front 196

AFFIRMATIVE DEFENSES to neg.

COMPARATIVE NEG.: partial/modified comparative neg.
1. Who decides fault percentages?
2. what is the threshold?
3. what happens if P is 43% at fault ?
4. What happens if P is 51% at fault?

Back 196

Jury assigns fault percentanges

the threshold is 50%

P assigned less than 50% of fault will have damages reduced

but P who has more than 50% of fault gets zero

Front 197

STRICT LIABILITY CAUSES OF ACTIONS

overview (3)

Back 197

1. strict liablity for injuries caused by animals (domestic and wild)

2. abnormally dangerous activities

3.strict liability caused by consumer products

Front 198

STRICT LIABILITY CAUSES OF ACTIONS

strict liability for injuries: DOMESTIC animals
1. is there strict liability for injuries caused by domestic animals?
2. What is the way I can be liable for domestic animal injury?
3. When can I be strictly liable?

Back 198

DOMESTICATED ANIMALS; no strict liability for domesticated animals that you keep but you may be liable on neg. theory (dogs or bulls)

EXCEPTION; you will be strictly liable if you have a domesticated anImal with vicious propensities and you are aware of those propensities, you will be strictly liable for keeping an animal of that nature.

*usually if Dog previously bit someone = vicious propensities.
barks and snaps a lot = vicious propensity

1st bite= no strict liability but neg.
2nd bite= strict liability

Front 199

STRICT LIABILITY CAUSES OF ACTIONS

strict liability for injuries caused by DOMESTIC animals

1. Is there strict liability for an injury caused by a domestic animal to a trespasser?

Back 199

no strict liability for trespassers, you will not be strictly liable

Front 200

STRICT LIABILITY CAUSES OF ACTIONS

strict liability for injuries caused by WILD animals
1. Is strict liability available for injuries caused by wild animals?
2. Can I get out of strict liability if I take lots of safety precautions
3. If my defanged snake bites someone is there strict liability?
4. If my declawed tiger mauls a kid, am I strictly liable?

Back 200

YOU WILL be strictly liable if you keep a wild animal

D's efforts at safety precautions are legally irrelevant bec. this is strict liability

EX: D has the toughest best tiger cage and hires 4 armed guards to watch tiger. Tiger gets out and eats kid. D is strictly liable

EX D has Bee's --> strict liability for killer Bee's but not for honey bee's


3. If my defanged snake bites someone is there strict liability? YES
4. If my declawed tiger mauls a kid, am I strictly liable? YES

Front 201

STRICT LIABILITY CAUSES OF ACTIONS

ABNORMALLY DANGEROUS ACTIVITIES
1. what is the two part test to see if something is abnormally dangerous?
2. Can an activity become abnormally dangerous?
3. can an activity not be considered abnormally dangerous after it once was?
4. Does strict liability still happen if Person takes lots of precautions?

Back 201

activity is abnormally dangerous if it meets 2 tests:

1) activity creates a foreseeable risk of serious harm even when reasonable care is excercised.

2) activity must not be a matter of common usage in the area where D conducts it. (activities are not abnormally dangerous all the time, they can change)
EX crop dusting, in field, vs. spraying trees in a city

IF TWO PART TEST MET, STRICT LIABILITY IF P HURT

safety precautions are irrelevant bec. strict liabilitiy

Front 202

1. what are the 5 theories of products liability
2. How do I know which liability thoery to use?

Back 202

liability theories "BRB NS" ="be right back Nancy Soto"
1. N=neg.
2. R=res ipsa
3. B=breach of implied warranty under Art 2.
4. B =dangerous product booby trapped = battery
5. S =strict liability for a product as well

call of question will tell you which theory to use.

"P sued D for neg." you cant use strict liability

ON ESSAY it can be open ended.

Front 203

STRICT LIABILITY CAUSES OF ACTIONS

strict liability caused by consumer products ELEMENTS
1.what are the 4 elements?

Back 203

4 ELEMENTS:

1. D MUST BE a merchant "commercial supplier"
2. P must show product is defective
3. actual and proximate cause
4. damages

Front 204

STRICT LIABILITY CAUSES OF ACTIONS: products

who is a merchant

Back 204

routinely deals in goods of this type

Front 205

STRICT LIABILITY CAUSES OF ACTIONS: products

Casual sellers
1. who are they
2. are they merchants?
3. Can they be strictly liable?
4 How can you sue a casual seller?

Back 205

normal people

not merchants

CANNOT be strictly liable

BUT can be liable under other theories. "BRB NS"

Front 206

STRICT LIABILITY CAUSES OF ACTIONS: products

service providers
1. who are these people?
2. are they merchants?
3. can they be strictly liable?
4. How can I sue a service provider?

Back 206

individuals who primary business who is offering a service are not merchants of goods that are tangible to service

you can sue them for any other liability theory: neg., intentional tort, etc.

EX: chair at doc. office breaks and you get hurt. no strict liability for the char, but here we do have premises liability, you would be invitee, if duty of reasonable inspection then poss. neg.

Front 207

STRICT LIABILITY CAUSES OF ACTIONS: products

commercial lessor's
1. do they part with title?
2. are they merchants?
3. Example of commercial lessor
4. NY LAW + Fed Law NO fault

Back 207

are merchants even though they don't part with title


EX rental car company= commercial lessor

NY = liable FED= trumps NY and says no liability (this is for NY Fault!)

Front 208

STRICT LIABILITY CAUSES OF ACTIONS: products

"merchant" and the distribution chain
1. who is strictly liable
2. What type of privity is required?
3. can P only sue people she dealt with?

Back 208

this is every person in distribution chain is strictly liable

not just people P dealt with

strict liability = NO privity requirement

Front 209

STRICT LIABILITY products

P must show product is defective

Back 209

Second element

Front 210

STRICT LIABILITY products

P must show product is defective

1. what is defective?
2. what is the key phrase?
3. How are safety precautions factored in?
4. How are quality control officers factored in?

Back 210

defective = product came off the assembly line different from other products in a way that makes it more dangerous than a consumer would expect

"departs from intended design"

safety precautions are irrelevant

quality control officers are irrelevant.

Front 211

STRICT LIABILITY products

design defect
1. when is there a design defect?
2. what must P do in the courtroom?
3. what are information defects?
4.is a product without a warning a design defect?
5. what are the two requirements of warning label?
6. Will putting a label on a defective product get you out of strict liability?

Back 211

WHEN IS THERE A DESIGN DEFECT? product has a design defect if there exists a safer practical and cost effective way to build it.

WHAT MUST P DO IN COURT? P must posit a hypothetical alternative design and explain why it is safer, practical (cant make product more difficult to use or deter primary purpose), and cost effective (cant be significantly more expensive)

EX: dulling a knife is not practical
EX: adding steel to car like a tank (not cost effective)

design defect= strict liability

INFORMATION DEFECT: warnings and instructions are forms of design defects

if a product has certain risks that cannot be eliminated in a cost effective way and consumer would not be aware,

product with a warning is safer, and this is cost effective

product without a warning = defective design.

TWO REQUIREMENTS OF A WARNING LABEL: warning must:
1. be sufficiently clear
2. sufficiently prominent

WARNINGS ARE NOT TOTALLY SAFE; if a product can be physically made safer, slapping a warning on wont help you. you should just make the product safer.

Front 212

STRICT LIABILITY products

1. what must P show about a product and its distribution from D?
2. what is the consequence of a product which has been changed/ altered since it left D's "hands"
3. What is Plaintiff's presumption?
4. what is the effect of P's presumption?
5. When does P's presumption not apply

Back 212

if a product has been altered changed or tamperd with it will eliminate strict liability on the part of merchant who sold it.


*difficult to prove

P'S PRESUMPTION: if the product moved in ordinary channels of distribution it is assumed product was not altered. D has burden of proving contrary (burden shifting)

PRESUMPTION DOES NOT APPLY TO USED GOODS:

Front 213

STRICT LIABILITY products

1. what are foreseeable uses?
2. are intended uses foreseeable uses?
3. are misues foreseeable uses?
4. Must P be using the product as intended at the time of injury?
5. What is the conseuqence of P not using the product as intended if the use is foreseeable

Back 213

a foreseeable use is NOT limited to the uses that vendor/manufacturer intended.

many unintended and misuse are still foreseeable.

P must be making a forseeable use of the product at time of injury

1. what are foreseeable uses? = intended and misuses can be foreseeable
2. are intended uses foreseeable uses? YES
3. are misues foreseeable uses? YES (sometimes)
4. Must P be using the product as intended at the time of injury? NO, P can still recover even if he was misuing the product so long as his misuse was foreseeable!
5. What is the conseuqence of P not using the product as intended if the use is foreseeable? P can still sue in strict product theory, foreseeability is key!

Front 214

STRICT LIABILITY products

affirmative defense: comparative fault
1. what is the consequence of P's malfeasance?
2. Will P's malfeasance completely bar recovery?

Back 214

comparative fault

any P misconduct with respect to any strict liablity fact pattern will lead to a damage reduction based on percentages.

Front 215

WORKERS COMPENSATION

1. what is worker's comp?
2. Can a worker sue their boss in tort?
3. What is the consequence of worker malfeasance?
4. What is the consequence of co-worker malfeasance?

Back 215

WHAT IS IT? statutory insurance scheme provides benefits to those injured on job.

SUING IN TORT: insurance money =YOU CANT SUE BOSS IN TORT or coworker

MALFEASANCE: guaranteed compensation whether by employer carelessness or because if some accident, or bec. you did something dumb.

Front 216

WORKERS COMPENSATION

LIMIT ON COMPENSATION
1. true false: I can recover pain and suffering damages
2. true false: I cannot recover punitive damages

Back 216

LIMIT ON COMPENSATION:

FALSE: you will not recover pain and suffering
TRUE: NO punitive damages

Front 217

WORKERS COMPENSATION

how are disputes resolved in the worker's comp. world?

Back 217

resolved by workers compensation board

Front 218

WORKERS COMPENSATION

1. who is covered
2. who is not covered?

Back 218

virtually everyone

EXCEPTIONS;
1. teachers and other nonmanual labors as edu. religious, and non profits

2. part time domestic and other house hold employees.

3. independent contractors are NOT employees = NOT covered by worker's comp. these people will SUE in TORT.

Front 219

WORKERS COMPENSATION

what kinds of injuries
1. what is covered?
2. what is not covered? (3)
3. are illegal acts compensable?
4. What is the area of cloudiness for activity?

Back 219

everything EXCEPT:
1. if injury is solely due to employee intoxication

2. employee intentionally causes injury to himself, self-inflicted injury

3. injury occurs in a voluntary off duty athletic activity.


illegal acts committed by employee are covered!!!

*we don't know if horse play is covered (decided on cases by case basis minor horse play = benefits, major horse = outside scope of employment.

Front 220

WORKERS COMPENSATION

if you are covered employee and have a covered injury what do you get? (3)

Back 220

1. you get lost wages; ONLY 2/3RDS average weekly wage (no taxes)

2. ALL OUT OF POCKET MEDICAL EXPENSES

3. IN THE EVENT OF DEATH STATUTORY AMOUNT + FUNERAL EXPENSES

Front 221

WORKERS COMPENSATION

covered employee + 3P suit

Back 221

covered employee remains free to sue any 3P who is liable for injury

PEOPLE INJURED WHILE USING INDUSTRIAL PIECE OF EQUIPTENT: workers comp and suit for equpment manufacture


GENERAL VS. SUBCONTRACTORS: employee gets injured and still can sue sub.

Front 222

NUSCIANCE

Def.

Back 222

type of harm in torts (not an actual tort)

interference with the ability to enjoy one's own property to an unreasonable degree.

Front 223

NUSCIANCE

how to cause nusciance

Back 223

D can cause a nusicance by acting deliberately, carelessly, or with no fault

ie intentional conduct, negligent conduct, or strictly

Front 224

NUSCIANCE

to determine if nusciance is there

Back 224

balance the equities

balance harm vs. what D is doing and if D would be unfairly hindered if D is liable

Front 225

MISC.

vicarious liablity

Back 225

P will have a valid cause of action against someone who directly commited tort (active tortfesor), P wants to sue D2, (has no direct connection with injury causing conduct Passive tortfeasor)

vicarious liablity is predicated on the relationship between the passive and active tort feasor

Front 226

MISC.

vicarious liablity: types of relationship

Back 226

types of relationships

1. employer/employee:
2. employer and independent contracts

Front 227

MISC.

vicarious liability: employer/employee:
1. when is employer liable for employee torts?
2. Is employer liable for torts outside the scope of employment?
3. is employer liable for employee's intentional torts ?
4. test (3)

Back 227

employer/employee:

employer is liable for torts of employee provided employee was acting in scope of employment

INTENTIONAL TORTS intentional torts are out of scope of employment
EXCEPTION
1. if force is part of employment then abuse of force is in scope of employment

2. where job generates tension or friction between employees and customers.

3. employees misguided effort to advance employers interest

Front 228

MISC.

vicarious liability: employer/independent contractor:
1. is there vicarious liability for employer/ indep. contractor?
2. what is the exception?
3. Who does the exception apply to?

Back 228

employer and independent contracts

RULE : NO vicarious liability here,

EXCEPTION: land possess will be vicariously liable if independent contractor injures invitee.

Front 229

MISC.

Vicarious liability: automobile owners and drivers
1. what is the rule on vicarious liability?
2. what is the exception? Rationale for exception?

Back 229

RULE: no vicarious liability if you lend someone your car

EXCEPTION: if you lend your car so person can do an errand for you = vicarious liability (agent/principal relationship, principle is always liable for torts of agent.)

Front 230

MISC.

Vicarious liability: automobile owners and drivers

NY DISTINCTION
1. What kind of state is NY?
2. Are you Vicariously liable for someone driving your car?
3. what is D's burden?
4. what is the rule on rental cars?

Back 230

NY PERMISSIVE USE STATE

in NY you are vicariously liable for anyone driving your car with your permission NY presumption that only behind the while is driving with your permission


D NEED TO PROVE NO PERMISSION

EXCEPTION FOR RENTAL CARS: when you rent a herts car you are driving with permission, in NY injured pedestrian can sue herts, under federal NO suit

Front 231

MISC.

parents and kids
1. what is the common law rule?
2. What is the NY Rule?
3. What is a common bar trick?

Back 231

COMMON LAW: parents are NOT liable for torts of kids.

NY DISTINCTION: dollar amount limitations 5K

Bar trick: D leaves loaded gun for kid.

This is not just vicarious, D is liable for his own negligence. ASK IF THERE IS ANY POSSIBILITY OF DIRECT LIABILITY FIRST

Front 232

MISC.

co-defendant remedies
1. What happens when P successfully sues multiple D's and gets all $ from one D?
2. when can 1 D get all the money?

Back 232

P successfully sued multiple D's and collected all money from 1D,

D1 wants to get other D's to chip in:

RULE: proceed by percantages. jury will assing a percentage and then they will collect from D's based on the numbers.

EXCEPTION: out of pocket party can recover 100$ of money to party= INDEMNIFICATION

Front 233

MISC:

INDEMNIFICATION: 2 situations where applies

Back 233

1) vicariously liable party gets full indemnification from active tort feasor

2) nonmanufacturer gets full indemnification in strict products case from the manufacturer

Front 234

MISC:

remedy for loss of consortium
1. who can sue?
2. who can they sue?
3. what is recovery allowed for? (3)

Back 234

where victim of tort is married, uninjured spouse gets a separate and second cause of action against ALL available D's

RECOVERY ALLOWED FOR:
1. loss of household services
2. loss of society (loss of companion ship)
3. loss of sex

Front 235

ECONOMIC TORTS

NY DISTINCTION for Negligent misrepresentation

Back 235

d.  NY Distinction: Before D may be held liable for neg. to noncontractual parties who rely, NY requires:
i. Awareness stmt/representation was to be used for a particular purpose

ii. Reliance by a known party in furtherance of that purpose

iii. Some conduct by D that demonstrates D’s understanding of that reliance.

Front 236

INTENTIONAL TORTS: General

1. prima facie case
2. transfered intent + limit
3. Minors + incometents
4. causation
5. damages

Back 236

PRIMA FACIE CASE (1) a volitional act by D, 2) intent to act, not intent for injury 3) D act/ thing in motion was legal causation

TRANSFERED INTENT D intents prohibited act against P and different result occurs intent transferred to the tort actually committed or to the person actually injured.; D liable if 1) he commits a different tort against that person, 2) he commits the intent tort against a different person, 3) he commits a different tort against a different person.

Limit: transferred intent applies only to: assault, battery, false imprisonment, trespass against land & chattels.


MINORS + INCOMPETENTS Can have Requisite Intent: every one is “capable”


CAUSATION D’s act or thing set in motion by D must be legal cause; = D was a substantial factor in bringing injury


DAMAGES for intentional torts damage is presumed (P need not show actual injury), so all except IEED don't require actual damages, nominal and punitive (if P proves malice) are recoverable

Front 237

INTENTIONAL TORTS

List intentional torts to the person:

Back 237

1. battery
2. assault
3. false imprisonment
4. IEED

Front 238

INTENTIONAL TORTS

BATTERY:
1.elements
2. intent
3. "harmful + offensive"
4. "p's person"
5. Causation
6. Damages

Back 238

ELEMENTS: Battery: D’s act 1) intentionally, 2) causes a 3) harmful or offensive contact with 4) P’s person.


INTENT: no battery if from negligent or reckless conduct →transferred intent applies

HARMFUL OR OFFENSIVE CONDUCT judged by reasonable person standard. Contact is offensive only if unpermitted →

P'S PERSON: P’s body or anything connected to P


CAUSATION : Contact can be direct or indirect and occur later (hitting, setting trap, poison)

DAMAGES: Actual Damages Not required: P can recover nominal or punitive damages if malice is shown

Front 239

INTENTIONAL TORTS

ASSAULT:
1. elements
2. intent
3. reasonableness
4. apprehension
5. immediacy
6. causation
7. damages

Back 239

ELEMENTS: Assault: D’s act 1) intentionally 2) causes P 3) reasonable apprehension of 4) an immediate 5) harmful/offensive contact

INTENT: D intends Battery, misses = assault; D intends assault hits,= battery → transferred intent applies

REASONABLENESS 1) knowledge of act 2) menacing act required 3) words insufficient 5) words + act =sufficient

APPREHENSION: D’s expectancy of battery, knowledge/ awareness NOT fear → apparent ability = sufficient


IMMEDIACY: words can negate immediacy, alone not enough need a menacing act; NO conditional or future threats

CAUSATION: d' must be legal cause

DAMAGES: No requirement of damages: P may also recover nominal or punitive damages if malice proved.

Front 240

INTENTIONAL TORTS

FALSE IMPRISONMENT
1. elements
2. intent/causation
3. act of restraint
4. felony arrest NO warrant + force
5. Misdemeanor arrest NO warrant + Force
6. Crime prevention arrest NO warrant
7. insufficient methods of restraint
8. Time of Confinement + Knowledge
9. Bounded area
10. Damages
11. Shop keeper privilege

Back 240

ELEMENTS: D 1) intentionally 2) commits an act of restraint 4) which causes 5) P to be confined in a bounded area

INTENT/ CAUSATION:: transferred intent applies → D’s act/ thing in motion by D must be the legal cause (direct/indirect)

ACT OF RESTRAINT: Physical Barriers; Physical Force; Direct Threats of Force; Indirect threats of force; Failure to prove means of escape* preexisting duty; Invalid use of legal authority → no need for P to test restraint/ resist

FELONY ARRESTS NO WARRANT: (no warrant) by officer/citizen valid if reasonable grounds felony commits and person arrested committed it. (private person no reasonable mistake as to whether felony occured)

MISDEMEANOR ARRESTS NO WARRANT Misdemeanor arrests (no warrant) by officer/citizen valid if midemeanor was breach of peace and committed in the presence of arresting party

CRIME PREVENTION ARREST: Crime prevention arrest (no warrant) by officer/ citizen valid if felony, or breach of peace in process of being committed or reasonably appears about to be committed

FELONY FORCE: Force for felony officer/citizen can use force necessary to effect arrest, deadly force ONLY when threat of serious bodily harm to the arresting party

MISDEMEANOR FORCE: Force for misdemeanor: officer/citizen= amount of force reasonably necessary NEVER deadly force

INSUFFICIENT METHODS OF RESTRAINT: Insufficient methods of restraint: moral pressure or future threats

TIME OF CONFINEMENT: Time of confinement irrelevant (goes to damages) but P should we either aware/knowledge or be harmed by it → exception for minor children and incompenant who cannot be aware

BOUNDED AREA: Bounded area: freedom of movement restricted 360; No reasonable escape which P may reasonably discover (not reasonable if humiliating, discomfort, material harm to clothes, danger of harm, requires heroics, embarrasement)

***P need to know/ be conscious or be harmed by confined → P = oblivious no CoA

DAMAGES: Damages not required: P may recover nominal and punitive damages.

SHOPKEEPER PRIVILEGE: Shopkeeper privilege: if reasonable belief of threat; may detain in reasonable manner for reasonable time.

Front 241

INTENTIONAL TORTS

IEED

1. Elements
2. intent
3. extreme and outrageous + 4 hallmarks
4. causation
5. intent/causation + Bystander cases
6. damages

Back 241

ELEMENTS: Intentional Infliction of Emotional Distress: D’s 1) act amounting to extreme and outrageous conduct 2) intentionally or reckless, 3) causes 4) P’s severe emotional distress [damages] → alternative fall back tort look to others first

INTENT: only intentional tort that does not require intent; recklessness will do (acting reckless of a high probability emotional distress will result)

EXTREME AND OUTRAGEOUS: Extreme and Outrageous Conduct: conduct exceeds all bounds of decency tolerated by society; (not mere insults)
4 hallmarks fact Q for jury: 1) public conduct, 2) continuous conduct, 3) common carrier/inn keeper, 4) fragile class of persons (elderly, young child, pregnant women, known sensitivity of P)


CAUSATION: D’s conduct proximately (legal) causes P’s emotional distress→ Fact Q for jury. → watch for negating element ie P mildly annoyed does not = IEED. Special liability for mishandling Corpses =NY

INTENT/CAUSATION + BYSTANDER CASE: D liable to Bystander for emotional distress: 1) B was present when D injured V, 2) B is a close relative of V, 3) D knew 1, and 2.


DAMAGES: Actual Damages Required: only intentional tort that required actual damages, punitive damages where malice

Front 242

INTENTIONAL TORTS

List intentional torts to property

Back 242

1. trespass to land
2. trespass to chattell
3. conversion

Front 243

INTENTIONAL TORTS

Trespass to Land

1. elements
2. standing
3. intent
4. physical invasion
5. land
6. causation
7. damages
8. defenses

Back 243

ELEMENTS: Trespass to land: D 1) intentionally, 2) causes 3) an act of physical invasion 4) upon land in possession of another

STANDING: P must have actual or constructive possession of the land to bring action. (true owner, AP, lessee)

INTENT: D must voluntary intent conduct to enter land, not necessarily trespass. → involuntary = no intent no tress.

PHYSICAL INVASION: Physical Invasion of Plaintiff’s land: tangible objections thrown or by walking, riding in motor vehicle.

Lawful right of entry expires = trespass; flooding land =trespass, watering roses = trespass

LAND Land: above, surfice and below.

CAUSATION: physical invasion must have been legally (proximately caused) by D or something set in motion by D.

DAMAGES: No requirement of Damages: P can recover without showing actual injury, nominal and punitive if malice.

DEFENSES: necessity, consent

Front 244

INTENTIONAL TORTS;

Trespass to chattels

1. elements
2. standing
3. property included
4. D's act
5. intent
6. Causation
7. damages

Back 244

ELEMENTS: Tress pass to chattels: D’s act 1) intentionally 2) causes 3) an interference with P’s right of possession in her chattel; 4) damages

STANDING: anyone with possession or an immediate right of possession

PROPERTY: tangible personal property,

D'S ACT: slight interference →Intermeddling (damage hitting P’s car) or dispossession (dispossessing P of right of possession)

INTENT: intent to act sufficient → Mistake is not a defense, trespass not required → transferred intent applies

CAUSATION: D’s act is legal (proximate cause) or something set in motion by D.

DAMAGES: Actual Damages required: loss of possession is actual harm, NO Nominal damages, can get rental or repair value

Front 245

INTENTIONAL TORTS

conversion
1. elements
2. standing
3. intent
4. causation
5. BFP + NY DISTINCTION
6. property included
7. D's act
8. Acts that count
9. Bailees
10. Damages
11. Replevin

Back 245

ELEMENTS: D’s act 1) intentionally 2) causes 3) an interference with P’s right of possession in chattel, and 4) is so serious that it requires D to pay the fair market value of the converted chattel.

STANDING anyone with possession or an immediate right of possession

INTENT: intent to act sufficient → Mistake is not a defense, trespass not required

CAUSATION: D’s act is legal (proximate cause) or something set in motion by D.

BFP: BFP liable if stolen = converter → accidential conduct insufficient (but liable in neg. for damage)
2.  NY DISTINCTION: BFP of stolen goods is not converter

PROPERTY: tangible personal property (dogs, clothes etcs) , intangible property reduced to a physical form

D'S ACT: Act by Defendant: serious interference → see intermeddling/ dispossession above.

ACTS THAT COUNT: wrongful acquisition, transfer, detention, substantially changing, severely damaging/destroying, misusing


BAILEES: Bailees receiving stolen property: bailee who, without notice, receive stolen goods not liable for conversion. If bailee has notice and true owner makes claim, bailee is liable for conversion if she gives goods to thief.

DAMAGES: purchase prive FMV, of chattel converted, as of time place of conversion

REPLEVIN: if P wants chattel returned he can use replevin (hard if chattel changed since P needs to describe in replevin order if sheriff can't recognize then replevin impossible)

Front 246

INTENTIONAL TORTS

NY DISTINCTION PRIMA FACIE TORT ELEMENTS
1. what are the elements
2. how is this distinguished from other torts
3. when I can I bring the action?
4. when Can't i bring the action?

Back 246

IV. NY DISTINCTION--- PRIMA FACIE TORT: a prima facie tort consists of intentional infliction of pecuniary harm without justification

ELEMENTS:
i. Intent to do harm, as distinguished from the requisite intent for other intentional torts (i.e. the intent to do the act that causes harm),

ii. P must allege and prove special damages. Pecuinary loss is an essential element

iii. *where a traditional tort has been established an action for prima facie tort will not lie. The action will not lie if a traditional tort could have been brought but for running of SoL

Front 247

defenses to intentional torts generally (6)

Back 247

1. consent.
2. self defense
3. defense of others
4. defense of property
5. necessity
6. discipline

Front 248

DEFENSES TO INTEN. TORTS

CONSENT
1. definition:
2. express: what is it + three ways to not have it
3. implied: three ways to get it
4. Jury + P's mental thoughts
5. Capacity
6. Criminal Acts
7. Invalid consent
8. Scope/ losing consent

Back 248

DEFINITION: Consent: defense to all intentional torts, D reasonably believes P consented act is privileged. (see capacity and scope)

EXPRESS: valid consent unless induced by: 1) mistake D knows about and takes advantage of, 2) induce by fraud, 3) induced by duress (no threats of economic or future harm count)

IMPLIED: valid if 1) reasonable person infer from P’s conduct, 2) inferred from usage or custom, 3) implied by law.

JURY AND P'S MENTAL THOUGHTS: *jury decides reasonableness, → P’s unexpected mental thoughts are NOT considered

CAPACITY: Capacity required: incompetents, intoxicated, and infants cannot consent to a tortious act (see is Parent consent)

CRIMINAL ACTS: maj. No consent to criminal acts, min. criminal consent permitted to defend civily.

INVALID CONSENT: Consent invalid where law seeks to protect members of Victim’s class

SCOPE: Exceeding consent given: defense lost =liability statute impos

Front 249

DEFENSES TO INTEN. TORTS

SELF DEFENSE:
1. def.
2. reasonable mistake
3. retreat: CL + NY Distinction
4. First aggressor
5. Force + Deadly force
6. 3P injuries

Back 249

SELF DEFENSE: P has reasonable grounds to believe she is or is about to be attacked, may use such force as reasonably necessary to protect against injury → retaliation not allowed

REASONABLE MISTAKE: reasonable mistake as to danger is allowed.

RETREAT: CL RULE: retreat not necessary →  NY DISTINCTION: duty to retreat before using deadly force if can be done safely, unless 1) in own home, 2) P is a cop (or Person assisting cop)

FIRST AGGRESSOR: Not available to first aggressor: unless aggressor used non-deadly force, P returns with deadly force, A gets deadly force

FORCE: only force reasonably necessary, excess force = loss of privilege potential liability.

DEADLY FORCE: okay if P is threatened by death or serious bodily injury

3P INJURIES: Extends to third party injuries: if 3P injured in using self defense, no liability, unless some neg./deliberately uses bystander to protect himself.

Front 250

DEFENSES TO INTEN. TORTS

DEFENSE OF OTHERS
1. definition
2. reasonable mistake
3. force

Back 250

DEFINITION: Defense of others: actor reasonably believes other person could have used force to defend themselves.

If 3P would have no right of self defense, actor not liable if he reasonably belief 3P would have self defense

REASONABLE MISTAKE: reasonable mistake allowed: Reasonable mistake okay as to whether 3P is being attacked or whether 3P would have been permitted to defend himself. (minority does not allow reasonable mistake)

FORCE: Actor is only privileged in the same circumstances 3P would be. defendor can use as much force as he could use in self-defense if the act was threatened to him.

Front 251

DEFENSES TO INTENTIONAL TORTS

DEFENSE OF PROPERTY
1. Definition
2. request to desist
3. mistake
4. mistake + privilege entrant

Back 251

DEFINITION: Defense of Property: one may use reasonable force to prevent the commission of a tort against his property.


REQUEST TO DESIST: Request to desist required: you must request to desist before force used, unless it would be futile or dangerous

MISTAKE: Reasonable mistake allowed: as to property owner’s right to use force, whether intrusion occurred, and to whether request to desist is required.

MISTAKE AND PRIVILEGED ENTRY: Reasonable mistake not allowed for privileged entry: necessity privilege superceded, UNLESS entrant negates privilege (intentionally/negligently, ie doesn't tell owner reason for intrusion)

Front 252

DEFENSES TO INTENT. TORTS

REENTRY ONTO LAND

1. Common law rule
2. modern law.

Back 252

iv. Reentry onto land: P tortiously dispossessed by fraud or force

CL: force okay to renenter land only when possession by tort.

ML: no self-help, we have summary procedures

Front 253

DEFENSES TO INTENT. TORTS

RECAPTURE OF CHATTELS
1. definition
2. demand
3. force
4. entry onto land to remove chattel: 1) wrongdoers land 2) innocent party land 3) owner's fault
5.shopkeeper privilege
6. mistake

Back 253

DEFINITION: Recapture of Chattels: CL: force okay to recapture only when possession by tort. ML: NO force to recapture: Once tort is completed, no recovery. exception for hot pursuit, tort still ongoing → where other’s possession began lawfully one may use peaceful means of recovering possession.

DEMAND: Timely demand required to return chattel is first required unless futile or dangerous

FORCE: Reasonable Force okay: in Recovery only from wrongdoer or 3P who know or should know chattel tortiously obtained (no force of recapture from innocent party) ** for all no deadly or serious bodily harm

ENTRY ONTO LAND TO REMOVE CHATTEL: Entry upon land to Remove chattel
a. On wrongdoer’s land: demand for return= owner privileged to retake, at reasonable time in reasonable manner after first making demand.

b. On land on innocent party: notice and refusal to return= owner privileged to retake, at reasonable time in reasonable manner after first making demand. → chattel owner liable for entry damage

c. On land through owner’s fault: no privilege to enter onto land→ recovery by legal process

SHOPKEEPER PRIV.: Shopkeeper’s Privilege: can reasonably detain people they thought stole, reasonable time, reasonable manner

MISTAKE: Reasonable mistake NOT allowed.

Front 254

DEFENSES TO INTENT. TORTS

Priv. of Arrest
1. definition
2. land
3. subsequent misconduct
4. misdemeanor arrest w/out warrant
5. felony arrest w/out warrant
6. mistake

Back 254

DEFINITION: Privilege of Arrest: actor may be privileged to make arrest of 3P

LAND: Invasion of land okay to effectuate arrest

SUBSEQUENT MISCONDUCT: Subsequent misconduct: arrest may be valid, D liable for subsequent misconduct. (unlawful detention etc)

MISDEMEANOR ARREST: Misdemeanor arrest: only for breach of peace, or if D’s presence

FELONY ARREST: Felony arrest: police officer can make a reasonable mistake→ citizen may make reasonable mistake for identity of felony, but not as to whether felony occurred.

MISTAKE: If mistake= false imprisonment

Front 255

DEFENSES TO INTENT. TORTS

NECESSITY
1. definition (3)
2. public
3. private

Back 255

DEFINITION: Necessity: defense only for property torts. D may interfere with the real and personal property of another when 1) it is reasonably necessary 2) to avoid threatened injury from natural or other force, 3)when threatened injury is substantially more serious than invasion.

PUBLIC: Public Necessity: act is for public good = absolute defense

PRIVATE: Private Necessity: act benefits limited number of people = qualified defense, D must pay damages for injury
No damages if act was to benefit the owner of land

Front 256

DEFENSES TO INTENT. TORTS

DISCIPLINE

Back 256

DEFINITION: Discipline: parent or teach may use reasonable force against children→ age, sex of kid, and seriousness of behavior

Front 257

ECONOMIC TORTS

DEFAMATION
1. Elements
2. defamatory language (inducement)
3. methods of defamation
4. stmts of opinion
5. who can be defamed
6. of concerning P (colloquium)

Back 257

ELEMENTS: DEFAMATION: 1) defamatory statement 2) “of or concerning” P (live NOT dead P) 3) publication by D to 3P, 4) Damage to P’s reputation → MATTER OF PUBLIC CONCERN: constitution requires P to prove 2 more elements 5) Falsity, 6) fault on D’s part.

DEFAMATORY LANGUAGE: Defamatory language: language that hurts/ adversely affects P’s reputation, Facts =liability, →opinion/ name calling = insufficient

Inducement & innuendo: statement not defamatory on face= P must prove more facts as “inducement” to establish def. by inuendo


METHODS OF DEF.: statements, pictures, satire, drama, etc.

STMTS OF OPINION: Statements of opinion are not sufficient: unless based on fact and those facts would be defamatory → OR when listener would assume speaker has a factual basis for his opinion.

WHO CAN BE DEFAMED: Who can be defamed: living person, NO def. for dead. →Corp./ unincorp. Assn./ partnership MAY be defamed.

OF CONCERNING P: “of or concerning” O: P must show that a reasonable reader, listener, or viewer would understand reference to P

Colloquium: if statement does not refer to P on face, extrinsic evidence allowed

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ECONOMIC TORTS

DEFAMATION
1. group defamation
2. publication
3. intent to publish
4. repetition
5. single publication rule

Back 258

GROUP DEFAMATION:
All members of a small group = each member can show “of concerning” and file action

All members of a large group = NO member can prove “of concerning” NO action can be filed

Some members of a small group = P can recover if reasonable person would view reference to P

PUBLICATION: Publication: = D communication to a 3P who understood it. Comm. Only to P doesn’t count

INTENT TO PUBLISH: Intent to publish required: not the intent to defame, so no defense to this → negligent pub. =sufficient!

REPETITION: each repetition is a separate claim P can sue on

SINGLE PUBLICATION RULE: “single publication rule”: newspapers, magazines, books = single publication; publication = when for sale, damages based on total effect of story on readers.

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ECONOMIC TORTS

DEFAMATION
1. liable parties

Back 259

LIABLE PARTIES: Who may be liable? (remember D must tell 3P; no def. when D only talks to P)

Primary publisher= liable to same extent as author or speaker

Republisher= one who repeats defamation liable as same basis of primary publisher

Secondary Publisher= one selling papers or tapes = liable only if known or Should have known defamation

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ECONOMIC TORTS

DEFAMATION
damages generally

Back 260

DAMAGE TO P'S REPUTATION: Damage to P’s reputation: type of damages = type of def.

General and Special damages:
1. General presumed damages: use restricted for “matter of public concern”

2. Special damages: P must prove pecuniary loss, once P proves, general damages are recoverable.

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ECONOMIC TORTS

DEFAMATION
libel def and damages

Back 261

LIBEL: Libel: def. stmt in writing or some other permanent form. Libel also recorded by radio or TV

General damages presumed: P does not need to prove special damages.

Libel distinction—minority position
1. Libel per se= presumed damages: stmt must be defamatory on fact
2. Libel per quod- special damages usually required: stmt NOT def. on face.  NY has this distinction: NY distinguishes between Libel per se and libel per quod. When Libel per quad= proved through extrinsic fact, treated as libel per se where def. falls into one of the four slander categories→ Effect: general damage presumed/ actionable without proof of special damages

Front 262

ECONOMIC TORTS

DEFAMATION
1. slander def.
2. repetitions + slander
3. radio + TV
4. damages for slander
5. Categories of slander per se+ NY distinction

Back 262

SLANDER: spoken defamation. (less permanent less physical form)

REPETITIONS: repetition of libel = libel (even if oral); written repetition of slander = libel.

RADIO + TV: Radio and TV broadcasts = libel

DAMAGE FOR SLANDER: Damage rules for slander Special damages usually required

Slander per se—injury presumed if in one of following categories:
a. Business/profession: stmt affects P’s abilities in bus. Or trade
b. Loathsome disease: VD or leperasy
c. Crime of moral turpitude: involves many CL causes of action
d. Unchastity of a woman: only applies to woman, does not mean promiscuity but can. (ie D fucked her BF this week= unchaste)
e.  NY DISTINCTION: NY adds category of imputation of homosexuality

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ECONOMIC TORTS

DEFAMATION
1. matters of public concern elements
2. matters of public conern def.
3. contract matters of public vs. private concern
4. falsity
5. fault on D's part + public offical/ figure + malice def. + alteration/ misquotation + Private person
6. damages: actual injury + malice

Back 263

MATTERS OF PUBLIC CONCERN: First amendment concerns: stmt =matter of public concern, P must also prove 5) falsity, 6) fault on D’s part → when public concern: no liability without fault--- damages= actual injury recovery of presumed or punitive damage restricted.

DEFINITION: Public concern: public debate, look to context, form and content.

CONTRAST MATTERS OF PRIVATE CONCERN: Matters of private concern—NO constitutional limits: only the CL elements are required → presumed and putative damages recoverable even if NO malice.

FALSITY: Falsity: P must prove stmt is false. Rationale: protect 1st amendment, no chilling of speech

FAULT ON D'S PART: Fault of D: type of fault P must prove depends on P’s status

PUBLIC OFFICIAL/ FIGURE: Public official/ public figure malice required [public figure= famous/notoriety/ assumes role in public controversy, puts self in limelight]

MALICE DEF: Malice def: knowledge stmt false, OR reckless disregard as to whether it was false. → Subjective test, D’s spite NOT enough

Alteration/misquotation = malice when material change to meaning occurs

PRIVATE PERSON: Private Person NO malice required
Matters of public concern = negligence required

No liability without fault: if def. nature was apparent to reasonably prudent person, P must show D permitted publishing through malice or negligence

DAMAGES: Damages limit to “actual injury”: no presumed damages

Actual injury: evidence of actual injury required: not limited to out of pocket loss. Can include injury to rep, emotional distress, anguish/ suffering → If P cannot prove actual injury no recover unless he can prove malice

Malice = presumed and punitive damages: if p cant prove actual injury no recovery unless malice evidence can allow recover

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ECONOMIC TORTS

DEFAMATION
defenses
1. consent
2. truth
3. absolute priv. (3)
4. qualified priv.
5. Priv. burden.

Back 264

Defenses to defamation

CONSENT: Consent: complete defense, same as above.

TRUTH: Truth: Complete defense in cases of private concern ONLY where P is not required to prove falsity,

ABSOLUTE PRIV: Absolute privilege: complete immunity based on party who said it. →Privilege can never be lost

Husband/wife: 3P cannot sue H and W for def. when communication is between them

Gov’t affairs: judicial, executive, and legislative proceedings NOT def. [speech and debate clause]

“Compelled” broadcast/publication: when radio/ TV/ newspaper forced to allow speaker no Def.


PRIV. BURDEN: D bears the burden of proving privilege exists


QUALIFIED PRIV: Qualified privilege: D makes def. stmt in pubic interest/ interest of others. →Privilege lost through abuse

EX: Reports of public proceeding; stmt in interest of publisher; defense of one’s actions, property, reputation, stmt in interest of recipient, stmt in common interest (between recipient and publisher) ; fair comment and criticism

LOSING PRIV: Loss through abuse: 2 ways, 1) stmt not in scope of priv. ie irrelevant 2) speaker acts with malice

D bears the burden of proving privilege exists

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ECONOMIC TORTS

DEFAMATION
mitigating and aggravating factors
1. no actual malice
2. retraction
3. anger

Back 265

Mitigating + aggravating factors: not defenses to liability, heard by jury on the issue of damages.

No actual malice – D may prove source of information/ grounds for belief.

Retraction: unless made immediacy to negate def. effect, does not undue wrong. Failure to retract after P asked can hurt D


Anger: of speaker proved by P

Front 266

PRIVACY TORTS

general
1. list torts + NY Distinction
2. causation
3. what forms of liability are there?
4. damages required? what is sufficient
5. misc.= what kind of right + death (NY DISTINCTION) + assignment + corps.

Back 266

Invasion of right to privacy:
General: 4 torts total in common law: 1) appropriation, 2) intrusion, 3) false light, 4) public disclosure private fact


 NY Distinction: NY does not recognize common law right of privacy. It protected by statute→ action survives death and commenced by estate representative→ statute does not protect corporations. (APPROPRIATION is the only tort recognized)

CAUSATION: Causation: Invasion is proximately (legally) caused by D’s conduct

LIABILITY: Liability: can be intentional, negligent, strict liability

DAMAGES: no special damages, emotional distress and mental damage are sufficient.

MISC:
Right of privacy is a personal right→ DOES NOT extend to family members

Right does NOT survive death of P →  NY Distinction: survives for appropriation, estate rep.

Right of privacy is NOT assignable

NO Corps. → right of privacy only applies to people, only people have privacy

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PRIVACY TORTS

APPROPRIATION
1. Elements
2. economic benefit
3. p's status
4. newsworthiness
5. NY Distinction

Back 267

ELEMENTS: Appropriation of P’s pic. Or name: D uses 1) P’s pic. Or name 2) for commercial advantage, 3) without P’s permission

ECONOMIC BENEFIT:Limited to the advertisement or promotion of products or services: → mere economic benefit is insufficient

P'S STATUS: P need not be a celebrity

NEWSWORTHINESS EXCEPTION: Newsworthiness exception: use is okay if connected to media outlet

i NY DISTINCTION: *this is the ONLY privacy tort recognized in NY, the other three are NOT recogizned

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PRIVACY TORTS

Intrusion
1. elements
2. expectation of privacy
3. EX

Back 268

ELEMENTS: Intrusion on P’s affairs or seclusion: D commits 1) act of prying or intentional intrusion, physical or otherwise, 2) upon the solitude of another or his private affairs [zone of privacy] 3) that is highly offensive to an reasonable person.

EXPECTATION OF PRIVACY: P has a reasonable expectation of privacy: pictures in a public place insufficient expectation of privacy

Intrusion highly offense to a reasonable person:

EX: eavesdropping device, spying, telescope peeping into someone’s window, recording calls, voyeurism, obscene phone calls

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PRIVACY TORTS

FALSE LIGHT
1. Elements
2. views/acts P doesnt have
3. offensive to a reasonable person
4. dissemination
5. intent to publish
6. public interest.

Back 269

ELEMENTS: Publication of facts placing P in a false light: 1) dissemination of a major falsehood about P 2) that is highly offensive to a reasonable person, 3) D published/ publicity attacked 4) actor has malice (knowledge and reckless disregard) where that matter is in the public interest

VIEWS/ ACTS P'S DOESN'T HAVE: Attributes to P views he does not hold or actions he did not take:

OFFENSIVE TO REASONABLE PERSON: Highly offensive to a reasonable person: false light does NOT require the statement be defamatory

DISSIMENATION: Widespread dissemination required: this is how def. and false light distinguished, def. has a de minius publication requirements, false light requires a lot of people are told

INTENT TO PUBLISH: Intent to distribute wide: you don't need to have intent for widespread dissemination it could be inadvertent/non-intentional

PUBLIC INTEREST: Malice requires if public interest: if public matter = knowing or reckless disregard of falsity → 1st Amendment Concerns

Front 270

PRIVACY TORTS

PUBLIC DISCLOSURE OF PRIVATE FACTS
1. elements
2. public disclosure + private fact
3. newsworthiness exception
4. dual life exception
5. truth as a defense
6. matter of public interest.

Back 270

ELEMENTS: Public disclosure of private facts about P: D makes a 1) public disclosure of 2) private information or private facts 3) that are highly offensive to a reasonable person of ordinary sensibilities. 3) if in public interest malice required

PUBLIC DISCLOSURE: Public disclosure: disclosure must be public not private.

PRIVATE: Private matter: something that is not in the public record or common knowledge.

NEWSWORTHINESS EXCEPTION: Newsworthiness exception: matters of public interest = broadly interpreted

DUAL LIFE EXCEPTION: Dual life Exception: P operates in 2 spheres, both reasonably public, but P tries to keep them separate, if D carriers information from one sphere to another this is NOT actionable. GAY PETE

TRUTH IS NOT A DEFENSE: Truth is not a defense: the facts may be true, they don't need to be false. They just need to be private.

MATTER OF PUBLIC INTEREST: Public interest malice required: knowledge or reckless disregard as to the falsity. Public interest +NO malice =not actionable.

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PRIVACY TORTS

DEFENSES:
1 consent
2. absolute privelege (3)
3. qualified priv.
4. losing priv.
5. NOT good defenses (4)
6. NY Distinction (3)

Back 271

DEFENSES to privacy:

CONSENT: Consent: express and implied apply to all 4 torts

ABSOLUTE/ QUALIFIED PRIVILEGED: Absolute/qualified privileges: ONLY apply to false light and public disclosure claims

NOT GOOD DEFENSES: Mistake, truth, good faith, lack of malice are NOT good defenses


 NY Distinction: NY statute makes exceptions for:
1. Prior written consent
2. Photographer exhibiting his work unless continued after written notice of objection
3. Goods or literary, musical, artistic productions, that manufacturer, dealer, author, composer, or artist has sold or disposed of with his name, picture, or portrait, used in connection therewith

Front 272

ECONOMIC TORTS

Intentional misrepresentation (fraud/deciet)
1. elements.
2. material
3. duty to disclose + exceptions (3)
4. active concealment
5. scienter
6. intent to induce. + 3P + continuous misrep.
7. justifiable reliance + P's inspection + opinion reliance (4) (exceptions 2)
8. damages
9. defenses

Back 272

ELEMENTS: INTENTIONAL MISREPRESENTATION (FRAUD/DECEIT): 1) false statement/ misrepresentation, 2) scienter, 3) intent to induce P to act or refrain from acting in reliance on the false representation, 4) causation, 5) justifiable reliance, 6) damages (pecuniary loss suffered by p)

MATERIAL: Misrepresentation goes to material matter NOT collateral matter

DUTY TO DISCLOSE: No general duty to disclose: no general duty to disclose a material fact/ opinion→ simple failure to disclose a material fact does not generally satisfy the first element
Exceptions:
1. Fiduciary relationship exists: executor/ beneficiary; MSH/mSH; Bank/depositors; principle/agent; family/old friends → Doesn’t matter if P gets taken advantage of, too bad for him it needs to be a relationship

2. Real property: D selling real property, knows P is unaware and cannot reasonably discover, material information about the transaction

3. D lies: D speaks and her utterance deceives P, under Duty to inform P of true facts

ACTIVE CONCEALMENT: Active concealment is actionable: D conceals a material fact = duty
to disclose fact (failure = 1st element satisfied)

SCIENTER: Scienter: P must prove D made the representation knowing it to be false, or with reckless disregard as to its falsity.

If no scienter: D may still be liable for negligent mis-representation

INTENT TO INDUCE: Intent to induce reliance: D must intend to induce P or a class of persons to which P belongs to act or refrain from acting in reliance on the misrepresentation.

Continuous mis-representation exception: where the mis-representation “continous” not necessary reliance of particular P be intended. Anyone who had possession of product or instrument can bring an action

third-party foreseeable reliance: liability for D to 3P who foreseeably rely on mis-representation

CAUSATION: Causation: Actual reliance by P required; mis-representation played a substantial part in P’s decision

JUSTIFIABLE RELIANCE: P must justifiably rely: reliance can be unjustified

No duty on P to investigate: but if P does investigate he cannot rely on misrepresentation that was inconsistent

Opinion reliance = unjustified: value, quality, statement of law, stmts of future events.

Exceptions: opinion reliance will be justified in the following:
a. D has superior knowledge: stmt of law made by atty. etc
b. Stmt of “present intent”

DAMAGES: Damages: actual pecuniary loss required. → most courts use K measure of damages “benefit of bargain” (value of prop. As represented less value of property’s actual value

NO DEFENSES to intentional misrepresentation

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ECONOMIC TORTS

NEGLIGENT MISREPRESENTATION
1. elements
2. application
3. duty attaches
4. causation
5. justifiable reliance
6. damages
7. NY distinction (3)

Back 273

ELEMENTS: Negligent misrepresentation: 1) misrepresentation by D made in business or professional capacity 2) breach of duty toward P, 3) Causation, 4) justifiable reliance, 5) damages

APPLICATION: Applies only to commercial transactions (much for confined than intentional mis-representaiton)

DUTY ATTACHES: Duty attaches only if reliance by Particular P contemplated: D’s duty only goes to specific P stmt made to or to specific P D knew would rely on it (forseeabiility sufficient for intentional mis-rep., but NOT enough for neg. misrepresentation)

CAUSATION; JUSTIFIABLE RELIANCE AND DAMAGES: Causation, justifiable reliance, damages: same as intentional misrepresentation


 NY Distinction: Before D may be held liable for neg. to noncontractual parties who rely, NY requires:
i. Awareness stmt/representation was to be used for a particular purpose
ii. Reliance by a known party in furtherance of that purpose
iii.Some conduct by D that demonstrates D’s understanding of that reliance.

Front 274

ECONOMIC TORTS

interference with business relations [k interference/inducing breach of K]

1. elements
2. application
3. damages
4. defenses (4 factors)

Back 274

ELEMENTS; Interference with Business relations: [interference with K; inducing breach of k] 1) valid K relationship P and third party or a valid business expectancy by P, 2) D’s knowledge of that relationship or expectancy, 3) intentional interference by D inducing breach/termination of relationship/ expectancy and 4) damages

APPLICATION: Applies to any K
b.Must be K in effect → but can be business expectancy
c.D intended to interfere with existing/prospective K relationships of P: Note not negligent interference!

DAMAGES: Actual damages required: But mental distress and punitive damages also recoverable

DEFENSES: Privileged (affirmative defenses): D’s interference is privileged when attempt to business; see factors:
i. Prospective business relationship less likely to be interference
ii. Using commercially acceptable means of persuasion less likely to be interference
iii. D is a competitor of P less likely to be interference
iv. D has a advisory relationship with 3P less likely to be interference (D gives business advice, i.e. not interference family, financial advisor, lawyer, priest)

Front 275

ECONOMIC TORTS

Theft of trade secrets
1. elements
2. valid trade secret elements
3. improper conduct 2.

Back 275

Theft of trade secrets: 1) P possess a valid trade secret, 2) improper conduct, 3) P suffers economic damages

Valid trade secret if: 1) info. Provides business advantage to the owner/possessor 2) info. Not generally known (secret), 3) owner takes exercise of reasonable precaution to keep info. Secret.


2 Improper conduct: traitorous insider 1) first learned secret legitmatly someone in confidential relationship w/owner revels secrets, improper means = breaches confidence; uses secret for own advantage, industrial spy 2) industry spy bribes someone, improper means = violates commercial morality (can be illegal or not)
NEGLIGENCE

Front 276

NEGLIGENCE

prima facie case

Back 276

NEGLIGENCE

Prima facie case: 1) duty, 2) breach, 3) causation, 4) damages → The existence of a duty to conform to a specific standard of conduct for the protection of P against an unreasonable risk of injury, a breach of that duty by D, that the breach of duty by D was the actual and proximate cause of the plaintiff’s injury; and damage to P’s person or property.

Front 277

NEGLIGENCE

duty
1. general
2. forseeable P
3. unforseeable P
4. two ways to extend duty
5. who is forseeable 2 views
6. Automatically foreseeable P (3)

Back 277

II. DUTY: A general duty of care is imposed on all human activity. → affirmative conduct or by omission when duty exists

FORESEEABLE P: Foreseeable P’s owed duty of care. if at the time of the negligent conduct, no foreseeable risk of injury to a person in the position to P is created by D’s act, the general duty of care does not extend from D to P.

UNFORESEEABLE P: Unforeseeable P: D breaches duty to P1, causes injury to P2, no foreseeable risk of injury at time neg. act. → unforeseeable P always loses.

TWO WAYS TO EXTENT DUTY OF CARE:
D’s creates an unreasonable risk of injury to Ps in the position of P = gen. duty of care extends from D to P.

Factors such as the status of the parties (e.g., owners or occupiers of land) or statutes may limit or extend this general duty.

WHO IS FORESEEABLE TWO VIEWS
i.Cardozo Maj. View: Duty to P’s in zone of danger [determined by proximity]. P2 recovery= RPP would have foreseen risk of injury to P2 in that circumstance → foreseeable =close/ unforeseeable =far away

ii.Andrew’s View Min. View: D owes a duty to anyone who suffers injuries as a prox. Result of his breach to someone. →Beach of duty to P1 and injury to P2 results, P2 may recover.

AUTOMATICALLY FORESEEABLE P: c.Automatically foreseeable P: = recovery (exceptions to cardozo)
i.Rescuers (as long as not wanton/neg.) see firefighter rule/ assumption of risk too
ii. prenatal injuries (see next card)
iii. Intended beneficiaries: for whose economic benefit legal/business transaction is made

Front 278

NEGLIGENCE

duty

forseeable P's prenatal injuries NY Distinctions;
1. neg. impact on mom + kid born injured
2. wrongful birth
3. wrongful pregnancy
4. wrongful life

Back 278

ii. Prenatal injuries:  NY DISTINCTION:
1. Neg. impact on W body: kid born with injures = CoA in kid name; kid dies = M CoA, no wrongful death for infant, NO CoA in kid name

2. Wrongful birth: Doc. Misdiagnosis birth defects: recovery cost of caring ($ diff. of cost of reg. kid vs. special kid) → NO emotional distress recovery (permitted in NY but not most other states)

3. Wrongful pregnancy: Botches sterilization: NO recovery in NY, most states would recover

4. “Wrongful life” action not recognized

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NEGLIGENCE

duty : reasonably prudent person
1. Def. of duty
2. where does he live
3. physical characteristics
4. mental ability.
5. knowledge + superior knowledge

Back 279

Legal duty to act as an ordinary, prudent, reasonable person (RPP) in similar circumstances→Presumption ordinary, RPP will take precautions against creating unreasonable risks of injury to other persons.

The reasonable person: imaginary lives in jury’s mind

1. Physical characteristics= D’s (presumption D knows Handicaps)

2. Average mental ability= individual mental hanicaps NOT considered (stupid, retarded, insane, novice is irrelevant)

3. Knowledge = Average member of community (individual shortcomings not considered)

4. Superior knowledge must be used: = RPP with such superior knowledge (member of profession in good standing in community/locality. → use as much skill as you have: Specialist liable, general practioner might not be.

Front 280

NEGLIGENCE

DUTY: particular standard of care not RPP

1. professionals + NY Distinction for informed consent
2. children + adult activity exception
3. common carrier/ inn keeper
4. auto driver/ guest + guest statutes
5. bailment (3 situations and ML)
6. emergency

Back 280

Particular standard of conduct: compare D to real people; Subjective test

PROFESSIONALS: Professionals: [empirical test] care given by average member in good prof. standing in similar community [locality= practitioner/ specialist= nat. standard] . →Testifying expert city=city; rural = rual not city. Standard of care = customary practice, custom is conclusive ‘do it the way other professionals would do it”

a. Prof. must disclose treatment risks: if not=liability
b  NY DISTINCTION: (no MS rule) Exceptions to duty to disclose treatment risk
i. Commonly known risks
ii. P declines to hear information
iii. P incompetent (consent not reasonably possible)
iv. P would have consented anyway
v. Doctor concludes disclosure would be harmful to P condition


CHILDREN: Children: Under 4: no duty of care→ 4-18: standard of care = children of like age, education, intelligence and experience.

a.Adult activity exception= RPP standard. Usually vehicle operation

COMMON CARRIER/INN KEEPER: Common carrier/ Inn keeper= slight negligence. (higher standard of care)

AUTO DRIVER TO GUEST: Auto Drivers to guest: = ordinary care; CL = invitee treatment; Owner is under duty to warn licensee of know defects which owner may be aware of.

a.Guest statues: driver liable for reckless/wanton conduct (ie duty is only not to be reckless/wanton)

BAILMENT:
a. Sole benefit of bailor = baille liable for gross neg.
b. Sole benefit of bailee = bailee liable for slight neg.
c. Mutual benefit = bailee exercise ordinary due care.
d. Modern trend: see if bailee excercised ordinary care in all circumstances

EMERGENCY: Emergency situation: D = RPP under similar circumstances
a. NOT considered if D made emergency

Front 281

NEGLIGENCE

duty: particular standard of care not RPP

OWNERS AND OCCURPIERS OF LAND
1. duty of possessor to those off premises.
2. natural conditions + trees
3. dangerous artificial conditions
4. activities.

Back 281

Owner’s and occupiers of land: liability = where injury occurred + P status

Duty of possessor to those off premises:
a.Natural conditions = no duty

i.Tree exception: rural area = NO duty, Residential/Urban area= reasonable care

b.Dangerous artificial conditions abutting the land = duty (passerby’s protected too)

c. NO activities which have unreasonable risk of harm to those outside property

Front 282

NEGLIGENCE


duty: particular standard of care not RPP

1. DUTY of possessor to those off the premises
1. undiscovered trespasser
2. discovered trespasser (artifical, natural, active operations, less dangerous artifical conditions)
3. who is discovered or anticipated.
4. attractice nuisance doctrine (6 + artifical, natural, forseeability of harm)
5. duty of easement holders
6. duty of employers/independent contractors

Back 282

2.Duties of possessor to those on the premises: P’s legal status controls:
TRESPASSER: Trespasser: entrant =NO permission/privilege

UNDISCOVERED: Undiscovered trespassers= NO DUTY

DISCOVERED/ANTICIPATED: Discovered/anticipated Trespassers=

Artificial conditions: warn or make safe, concealed unsafe, artificial conditions, know to Land owner, involving risk of death or serious bodily harm,

Active operations = exercise reasonable care

Easement license holders= reasonable care to trespassers

NO DUTY for natural conditions OR less dangerous artificial conditions


WHO IS DISCOVERED ANTICIPATED:
5. “Discovered” = actual/ constructive knowledge → warning signs convert anticipated to undiscovered
6. “Anticipated”: actual or constructive (knows or should know)

ATTRACTIVE NUISANCE DOCTRINE:
iii. “Attractive Nuisance” Doctrine: 1) dangerous condition, 2) owner should be aware, 3) owners knows or should know kids frequent, 4) condition is likely to cause injury, 5) child unable because of risk to appreciate. 6) expense of remedy slight compared to risk
1.Artificial condition = dangerous + likely injury to kids (not bodies of water)
2. Natural conditions: none (unless kid= invitee or licensee)
3. Foreseeability of harm = liability + (reasonable care)


DUTY OF EASEMENT HOLDERS; Duty of easement and license holders to trespassers: reasonable care to protect trespassers

DUTY OF EMPLOYEES/INDEPENDENT CONTRACTORS: Employees/independent contractors= exercise same duty the owner has to

Front 283

NEGLIGENCE

duty: particular standard of care not RPP----DUTY of possessor to those on the premises

LICENSEE:
1. how does he enter
2. duty owed (4)
3. active operations
4. duty to inspect.

Back 283

LICENSEE: enters w/permission + for own purpose/business. (social guests, solicitors, firefighters, police officer)

i. Duty owed: RC → 1) warn/make safe, 2) concealed/artificial condition, 3) known to D, 4) unreasonable risk of harm to Licensese, 5) licensee unlikely to discover

ii. Active operations = reasonable care

iii. No duty to inspect

Front 284

NEGLIGENCE

duty: particular standard of care not RPP-----DUTY of possessor to those on the premises

INVITEE:
1. how does he enter
2. duty owed (4) + (2)
3. active operations
4. duty to inspect.
5. Exceeding scope

6. uses of recreational land
7. modern trend

Back 284

INVITEE: enter w/business of landowner or open to the public
i. Artificial/natural conditions: 1) warn/make safe, 2) concealed/artificial condition, 3) known to D + knowable , 4) unreasonable risk of harm to invitee 5) invitee unlikely to discover

1.PLUS: 1) reasonable inspections to discover nonovous dan. Conditions and 2) warn/ make safe

ii.Active operations = reasonable care

iii.Reasonable inspections: to discover/make safe nonobvious conditions

iv.Exceeding scope = lose invitee status

d. Users Recreational land: no fee= no liable; land owner malicious/ warn about dangerous condition/activity = liable

e.MODERN TREND = Reasonable care REGARDLESS OF STATUS to dangerous conditions (except trespassers) NY Distinction: follows this view

Front 285

NEGLIGENCE

duty: particular standard of care not RPP-----DUTY of possessor to those on the premises

LESSOR OF REALTY
1. lessee duty
2. admission to the public
3. lessor duty
4. covenant to repair
5. volunteer repair
6. tenant liability

Back 285

Duties of a lessor/lesse of realty:
a. Leseee= gen. duty to maintain premises (lessor not liable for dan. Condition if all property leased→ if some property leased lessor maintains common passage ways)

i.Admission to public: lessor knows Lesee is leasing to public =liable for unreasonably dan. Conditions existing at time transfer. Liable continues where Lessee is not likely to repair, Warning is NOT sufficient.

b. Lessor = at commencement of lease warn defects known/ should know + lesse unlikely to discover.

i. Covenant to repair = liable for unreasonable dangerous conditions

ii. Volunteer repair= liable neg. repair

c. Tenant liable to invitees/ licensees: owner + occupier = liable if in T’s control

Front 286

NEGLIGENCE

DUTY; special standard of care === vendor of realty

Back 286

4. Vendor of realty: =disclose concealed, unreasonably dan. Conditions, vendee wont likely discover with reasonable inspection → continues until vendee should have discovered.

Front 287

NEGLIGENCE

DUTY; special standard of care

1. when does statute replace standard of care
2. exception (2)
3. violation statute: Maj. and min.
4. NY Distinction: statute vs. reg/ordinance

Back 287

iv. Statutory standards of care: statute replaces CL duty of care: 1) provides criminal penalty, 2) clearly defines standard of conduct 3) P in protected class 4) designed to prevent the kind of harm suffered by P
1. EXCEPTION: statute wont be borrowed if compliance = 1) more dangerous 2) impossible

2. Violating standard= Maj. View: neg. per se → conclusive presumption of duty + breach

a. Min. view: 1) rebuttable presumption of duty, only prima facie evidence of neg.


b.  NY DISTINCTION: violation statute = Neg. Per se; Violate reg./ local ordinance = evidence of neg.
3. Statute compliance NOT necessarily establishes due care
4. Civil Statute = P sues under it

Front 288

NEGLIGENCE

DUTY; special standard of care

NIEED
1. ELEMENTS
2. NY Distinction
3. by stander recovery
4. special relationship
5. other situation where D liable (2)

Back 288

Duty regarding negligent infliction of emotional distress:
i. P in zone of danger: 1) D creates foreseeable risk of injury to P, 2) P in zone of danger, 3) P has physical symptoms → harm = immediate, Exception impact rule: slight impact = recovery

1.NY Distinction: P’s distress caused by threat of physical impact, 1) P or immediate family member (in P’s presence) in zone of danger 2) P has physical symptoms. → NO OTHER P who sees V can recover


ii. Bystander NOT in zone: 1) outside zone of danger, 2) sees
D neg. injury V 3) P and V =closely related 4) P resent at injury, 5) P observed/saw event

iii. Special relationship between P and D: liable when duty from special relationship D’s neg. has great potential to cause emotional distress.

iv. Other situations: liable where D’s neg. = great emotional distress→ neg. transmission of message/ mishandling corpse (reporting relative dead/ mishandling corpse)

Front 289

NEGLIGENCE

DUTY; special standard of care

1. duty to act + exception
2. NY distinction on duty to act
3. D created peril
4. special relationship
5. common carrier/inkeeper
6. places of public accomodation
7. contractual duties
8. duty to prevent 3P from injuring + exception

Back 289

Affirmative duty to act: no legal duty to act
i. Assumption of duty by acting: if act = reasonable care

1. EXCEPTION: good Samaritan statute: exempt doctors, nurses from ordinary neg.


a.  NY DISTINCTION: doctors, nurses, vets exempted-→ liable for gross negligence.


ii. D created peril= under duty of reasonable care to assist P

iii. Special relationship: =lible for omission → parent/kid, employer/employee

1. Common carriers/inn keepers/ shopkeepers: reasonable care to assist P (applies for places that gather public for $)

2. Places of public accommodation: duty to prevent injury to guests by 3P

iv. K’s and legal duty: nonfeasance=no duty: liability for BoK, misfeasance= duty required: failing to perform due care K obligations =violation of legal duty

v. Control of 3P: no duty to prevent 3P from injuring P’s

1. EXCEPTION: D = actual ability + authority to control 3P = Liability ( D knows/should have known 3P’s acts would require D’s control.)

Front 290

NEGLIGENCE

BREACH:
1. when does breach occur
2. to things you need to prove breach?
3. what are the two ways you can establish a standard of care?
3. which are conclusive?
2. what is NY distinction for violation of a statute

Back 290

BREACH: conduct < duty = breach → Q for trier of fact

Proof of breach: 1) P shows what happened (direct/ circumstantial evidence) 2) Facts = D acted unreasonably (custom, statute, res ipsa)

Establishing standard of care:
i. Custom/usage: not conclusive to neg.
ii. Violation of statute: Maj. view= neg. per se → conclusive presumption of duty + breach
1.Min. view: 1) rebuttable presumption of duty , only prima facie evidence of neg.

2.  NY DISTINCTION: violation statute = Neg. Per se; Violate reg./ local ordinance = evidence of neg.

Front 291

NEGLIGENCE


BREACH
1. elements of res ipsa
2. what does Res ipsa get you
3. if you have more than 1D can you use res ipsa
4. If you prove res ipsa can you also get a directed verdict? (if P proves res ipsa, P doenst prove res ipsa_
5 Does res ipsa change the burden of proof?

Back 291

iii. Res ipsa loquitor: 1) not occur w/out neg. 2) neg. attributable to D, 3) P not at fault (estb. By testmy)

1. Inference of neg.: not type of thing that happens without someone’s neg.

2. Attributed to D = thing in exclusive control of D; accident = neg. from someone in D’s position

3. Effect: = P makes prima facie case of neg. → NO directed verdict for D → P can still lose of tier rejects
a. burden of proof doesn't change → NO presumption of neg.
4. Multiple D’s =NO RES IPSA against either to establish prima facie case.
5. D’s motion for Directed verdict =
a. DENIED if P establishes res ipsa or other evidence of breach of duty (ie statute)
b. GRANTED: P DOES NOT establish res ipsa or some other evidence of breach
6. P’s motion for directed verdict=
a. DENIED unless, neg per se + NO issues of proximate cause
b. GRANT: P establish neg per se + NO issues of proximate cause

Front 292

NEGLIGENCE

CAUSE
1. what two types need?
2. What test do independent acts get when the merge and combine injury
3. what test do joint causes get if they are a each sufficient to cause harm and both cause harm
4. every substantial factor D is ______ liable
5. what is the effect of having alernating causes?

PROXIMATE CAUSE:
1. A proximate cause must also be_____?
2. what does prox. do (2)
3. D is liable for ______ and ______
4. Superceding for defined and effect
5. if I have a forseeability issue will I get a MSJ?
6. Direct cause defined
7. indirect cause defeined
8. foreseeable results caused by forseeable intervening forced? dependent intervening force (4) + indepndent intervening for(3)
9. Foreseeable results caused by unforeseeable intervening force? liable? exception?
10. unforeseeable results caused by foreseeable intervening force? liable?
11. unforeseeable results caused by a unforeseeable intervening force? liable?
12 what is egg shell skull.

Back 292

CAUSATION: actual (but for) + proximate (legal) BOTH required: [actual required before proximate, if no actual no prox]

ACTUAL CAUSE
a. Actual Cause (Causation in Fact): Cause in fact of injury→ Tests:
i.“But For” test: act/ omission= cause in fact = injury not happen but for act/omission

1. independent acts (could have caused injury along) forces combine = injury

ii. Joint causes—Substantial factor: several causes, each sufficient to injure = injury [both cause harm]

1. Cause in fact = D substantial factor in injury → Every Substantial factor D = joint and several

iii. Alternating Causes: 2 acts, only one causes harm = injury but we don't know which one → Burden of proof shifts to D, each D shows he is not actual cause. If D can show not cause = joint and several liability

PROXIMATE CAUSE
b. Proximate Cause (Legal Cause): must have cause in fact → cause in fact does not mean prox. Cause too

i. Rule: prox cause limits liability for unforeseeable P’s and unforeseeable consequences.

1. D liable = normal incidents of and within increased risk caused by his acts (foreseeability)

2. Foreseeable results: within increased risk created by D, kind of harm we thought of

3. Unforeseeable results: not in increased risk by D, NOT kind of harm we thought of

4. Superceding force: breaks causation chain = NO LIABILITY

5. Motion for summary judgment DENIED= ANY forseeability issue for the jury

ii. Direct Cause: uninterrupted chain of events between D’s act to P’s injury [no intervening force]
1. Harm foreseeable= liable: unusual manner, timing, cause, effect irrelevant
2. Harm UNforseeable=NOT liable: conduct = risk of harm, but harm is unforeseeable
iii. Indirect Cause: stuff/ space between D’s neg. and P’s injury→ intervening forces present
1. Liability =foreseeability

FORESEEABLE RESULTS CAUSE BY FORESEEABLE INTERVENING FORCE: Foreseeable results caused by foreseeable intervening forces= liable: foreseeable response/reaction from:

a.Dependent intervening force: normal responses/ reaction = foreseeable
i. Accident/ med. Neg. =liable
ii. Neg. resuers=liable
iii. Neg. Efforts to protect Person OR property =liable
iv. “Reaction” forces= liable (neg. firing gun at X’s feet, X neg. responds)
v. subsequent accident= liable

b. Independent intervening force: independent not natural reactions. Foreseeable = D neg. increased risk that these forces would harm P.
i. Neg. 3P acts: liable if foreseeable
ii. Criminal acts/intentional torts of 3P: liable if foreseeable
iii. Acts of god: liable if foreseeable.


FORESEEABLE RESULTS CAUSED BY UNFORESEEABLE INTERVENING FORCES. Foreseeable results caused by UNforseeable intervening forces= liable (usually): Conduct threatens particular injury, but injury caused by unforeseeable intervening force. (more weight to foreseeable harm than foreseeability of intervening force)
a.EXCEPTION: unforeseeable crime/intentional tort = superceding force, NO liable


UNFORESEEABLE RESULTS CAUSED BY FORESEEABLE INTERVENING FORCE: UNforeseeable results caused by Foreseeable intervening forces= D NOT liable:
a. Foreseeable intervening force = foreseeable result= LIABLE
b. Foreseeable intervening force + UNforeseeable result = NOT LIABLE


UNFORESEEABLE RESULTS CAUSED BY AN UNFORESEEABLE INTERVENING FORCE: UNforseeable results caused by UN foreseeable intervening force=D NOT LIABLE:
a. intervening force + unforeseeable result = unforeseeable intervening force = NO LIABLE, force = superceding cause
b. Unforeseeable result= not kind of harm imagined,
c. superceding force= break cause chain, NO liable


iv. EGG SHELL SKULL: unforeseeable extent/severity harm = liability; D takes V as he finds him.
1. Second act: only liable for increased damages

Front 293

NEGLIGENCE

DAMAGES:
1. what is needed in neg.
2. what type of damages are not allowed.
3. does foreseeability result damages?
4. what damages in personal injury (economi + noneconomic)
5. what damages for property damages:
6. punitive damage + NY Distinction
7. nonrecoverable items (2)
8. Does P have a duty to mitigation (property, personal injury, NY seatbelts)
9. Collateral source rule + NY distinction (no reduction for + future pain and suffering payout)

Back 293

DAMAGES: actual harm/ injury → proof of harm needed! →NO NOMINAL damages → foreseeability irrelevant

PERSONAL INJURY: Personal injury: compensation =all damages (past, present, prospective, specual + general)

i. Economic damages= adequate compensation→ med. Expenses, lost earnings, impaired future earnings (discount NPV to avoid excess award) -→ NO ATTY FEES

ii.Noneconomic = pain/suffering

PROPERTY DAMAGE: Property damage: reasonable cost of repair → destroyed property = FMV at time of accident

PUNITIVE DAMAGE: Punitive Damage: D’s conduct = wanton/ willful, reckless, malicious → ADDITION to compensatory damages
i. NY DISTINCTION: punitive damage also = gross neg.

NONRECOVERABLE ITEMS: Nonrecoverable items: 1) interest from date of damage in personal injury action, 2) atty fees

DUTY TO MITIGATE: Duty to mitigate: P MUST mitigate
i. Property = preserve/safeguard
ii. Personal injury= get care to heal/cure/ prevent aggravation
NY DISTINCTION: where P didn't wear seat belt = Trier can evaluate non-use in mitigation but NOT as evidence of liability →

FAILURE TO USE SEATBELT= affirmative defense.


COLLATERAL SOURCE RULE: Collateral Source: Damages NOT reduced if P gets other benefits (insurance, employment benefits, Social leg. Benefit)

NY DISTINCTION: personal injury, property damage, wrongful death = REDUCE P’s damage by amount of benefits P has/ will receive from collateral sources

1. NO reduction for: life insurance, SS benefits, other benefits where a lein can be imposed.

2. Future pain/suffering = $ over 250K→reduced to NPV + paid out by Court over 10 yrs. Or length determined by jury. (which ever is shorter)

Front 294

DEFENSES TO NEGLIGENCE:
1. three defenses generally?
2. contributory neg. what is it NOT a defense to (3)
3. contrib. neg is ________ defense
4. Does a rescuer get cont. neg?
5. Does remaining in danger get cont. neg?
6. Does a violating a staute = cont. neg?
7. what is the defense to staute violation? who uses it and when are they not allowed to?
8. are avoidable consequence contributory neg.?
9. effect of contrib. neg.
10. escape doctrine. (helpless vs. inattentive peril)
11. what is the effect of imputed neg. ?
12. what are the three kinds of relationships not imputed?
13. who does get imputed (2)

Back 294

VI. DEFENSES TO NEGLIGENCE: 1) contributory neg. 2) assumption of risk, 3) comparative neg. → ONLY NEG, no intental torts,

CONTRIBUTORY NEG: Contributory negligence: D’s neg + P’s neg = P injury → NOT A DEFENSE to intentional torts or Strict liablity!NO willful and wanton misconduct

i. “traditional” common law defense

STANDARD: Standard: same standards for ordinary neg.
1. Rescuer can take risks = NO con. Neg.
2. Remaining in danger= Contrib. neg. (passanger of drunk driver)
3. Violation of Statute by P: cont. neg.
4. Defense to D’s statute violation: P’s contributory neg. = defense to D’s violation of statute UNLESS statute protects class of plaintiff (then P’s violation wont be cont. neg/defense) (kid running in front of car, P’s contrb. Neg. is NOT defense)
5. Avoidable consequences: failure to mitigate = avoidable consequence NOT conrib. Neg.

EFFECT OF CON. NEG: P’s contrib.. neg. = completely barrs recovery (even if P 1% neg.)

ESCAPE DOCTRINE: Escape doctrine: “last clear chance”: p can recovery even with contrib.. neg. if D had last clear chance to avoid accident =liable. (helpless peril = D knowns/should know = liable; inattentive peril D knows = liable)

IMPUTED NEG:
iv. 3P neg. imputed to P = barred claim → when 3P/ P relationship = Vicarious liability

1. NOT Imputed: parent/kid, husband wife, auto owner/driver → *but still may have own neg.

2. NOTE: if joint tortfeasors P can sue both, so long as cont. neg, not imputed

v. Lost of services + V contrib. neg. = NO parent/spouse recovery: Parent/spouses’ actions denied if V contrib. neg. (rationale these are derivative actions, can succeed unless underlying claim would too, NOTE this is NOT “imputed Cont. neg”

Front 295

NEGLIGENCE

DEFENSES
assumption of risk
1. elements (2)
2. is reasonableness relevant?
3. Is this a defense to intentional torts?
4. Is this a defense to neg.?
5. Is this a defense to strict liability?
6. is this a defense to wanton/ recklessness misconduct?
7. to have implied assumption of risk we need?
8. what happens if P is forced into the risK?
9. what happens if P has no alternative but the risk?
10. what happens this was an emergency?
11. three types of risk not assumable
12. can risk be assumed expressly?
13. NY Distinction, 3 people who cannot use K to deny liability
14. when we are discussing assumption of risk which other defense should we discuss?

Back 295

b. Assumption of risk: 1) P knows risk 2) voluntarily proceeds → reasonableness irrelevant → NO defense to intentional torts,→ Defense to neg. and strict liability and wanton/reckless conduct

ELEMENTS; Implied assumption of risk: knowledge=risk appreciated by average person;

VOLUNTARINESS: Voluntary = P’s choice NOT voluntary if NOT P choice or NO alternative but risk; emergency NOT voluntary, force NOT voluntary

RISKS NOT ASSUMABLE: Risks NOT Assumable:
a. Common carrier/ public utility NOT limit liability by disclaimer
b. Protected member of statute cannot Assume risk (worker safety law/worker injury)
c. NO assumption if fraud, force, emergency

EXPRESS ASSUMPTION OF RISK: Express assumption of risk: exculpatory Clause = scrutinized, but enforceable (less likely in adhesion K)

1. NY DISTINCTION: lessors, building contractors, amusement part CANNOT use K’s to deny liability

ASSUMPTION OF RISK + OTHER DEFENSES: **Discuss assumption of risk + Contributory neg. together= P’s conduct can amount to both (passenger knows driving with drunk driver= below RPP, assumption of risk)

Front 296

NEGLIGENCE

DEFENSES
comparative neg.
1. What are the two types?
2. what type does NY use?
3. what is sig. of comparative neg.
4. in partial comparative neg. P's neg. must not ______?
5. in partial comparative neg. if we have multiple D's how do we assess their fault?
6. significane of pure comparative neg.
7. which type of comparative neg. is the defeault rule?
8. when do I use pure comparative neg?
9. what does the jury do in both pure and partial comparative neg.
10. in D's counter claim for injuryes do we look to P's damages too?
11. NY Distinction, what happens if P is the primary wrongdoer?
12. NY Distinction, what happens if P's illegal conduct involving risk of harm injured her?

Back 296

Comparative negligence: P recovers something; Trier weighs P’s neg. vs. D’s neg. and determines damages

PARTIAL comparative negligence: P neg ⊇ threshold = NO RECOVERY
1. >: →P’s neg > D’s neg. = NO recovery → P=51%
2. ⊇: →P’s ⊇ D = NO recovery → P= 50 or 51% (cant be more than 49% at fault)

3. Multiple D’s: uses combined of all D’s neg.


ii. PURE comparative neg: P ALWAYS recovers something; recovery = reduced % fault (even if P primary wrongdoer)
1. DEFAULT RULE: pure comparative neg. Is default, if MBE silent use this

2. Jury determines %

3. D counter claims for D injuries→ calculation of comp. neg. separate from P’s damages

4.  NY DISTINCTION: P recovers even if primary wrongdoer. Illegal conduct involving risk of harm: P’s illegal act involving risk of harm= injury = NO RECOVERY (regardless of comparative fault)

Front 297

NEGLIGENCE
DEFENSES

Comparative fault + other doctrines (this is how comparative fault effects other doctrines)

1. which defense do we not use anymore in comparative neg. jurisdictions?
2. is implied assumption of risk a minority or majority rule?
3. where implied assumption is still law what are the two situations used?
4. is express assumption of risk used in comparative neg. jurisdicitons?
5. is express assumption a majority or minority rule in comparative neg. jurisdictions
6. is P's conduct still considered if D's conduct was "wanton and willful"?

Back 297

Comparative fault + other doctrines:
1. Last clear chance: NOT USED in comparative neg. jurisdicitons

2. Implied Assumption of risk: most abolished but 2 categories where retained:

a. D duty = limited care bec. Of P’s knowledge of risks → Court protects D by holding he didn't breach duty

b. D’s breach to P + P’s assumption of risk = balance reasonableness (like cont. neg.). *reasonableness relevant: If P = unreasonable → contrib. neg = reduced or barred damages


3. Express Assumption of risk: most comparative neg. have express assumption of risk

4. Wanton/ Willful Conduct: P’s neg. considered even if D’s conduct = willful/wanton/reckless

Front 298

STRICT LIABILITY AND ANIMALS

1. what is the prima facie case (3)
2. animals and strict liablity
3. is P liable for domestic animals in strict lialbity?
4. Is P strictly liable for his trespassing animals?
5. is P strictly liable for his wild animals?
6. what happens if P is reallly careful can he get out of strict liability?
7. what happens if P knows his Dog has dangerous propensities?
8. is owner strictly liable to licensees and invitees for animals
9. what is the public duty exception, what is its effect?
10. what kind of standard must trespassers met for animal injuries
11. What happens when P uses an intentional and vicious dog?

Back 298

PRIMA FACIE CASE: Prima Facie case: 1) nature of D’s activity imposes an actual duty to make safe. 2) Dangerous aspect of the activity is the actual and proximate cause of P’s injury 3) P suffered damage to person or property

ANIMALS: Liability for animals: care irrelevant for strict liability ie declawed lion, defanged snake→ proximate cause = fleeing from

P'S TRESPASSING ANIMALS: P’s Trespassing animals = strict liability for any damage IF reasonable foreseeable

WILD ANIMALS: Wild animals = Strict liability → exception if P consciously/voluntarily brought about jury

DOMESTIC ANIMALS: Domestic Animals= NO Strict liability (includes farm animals)
i. P’s knowledge of Dangerous propensities = strict liability (actual bites, or non-bites but viciousness)

PERSONS PROTECTED FROM ANIMALS:
Licensees/ Invitees” Landowner strictly liable: wild animals/ abnormally dangerous domestic animal

D under Public duty to keep animals →NEGLIGENCE only, not strict liability

trespassers must prove negligence: discovered trespassers + failure to warn = neg.

INTENTIONAL USE OF VICIOUS DOGS: 1. Intentional use of vicious watch dog known to cause serious bodily harm = intentional tort (even to tespassers)

Front 299

STRICT LIABILITY AND ABNORMALLY DANGEROUS ACTIVITIES

1. what is the test? (3)
2. how relevant is care?
3. how can this be decided? is it a question of fact or law?
4. What is the extent of liability?
5. foreseeability of harm?
6. what types of cause are required?
7. when is D's liability cut off?

Back 299

ABNORMALLY DANGEROUS ACTIVITY:
III. Abnormally dangerous activity
a. Test: abnormally dangerous = 1) activity creates foreseeable risk of serious harm even when reasonable care is excercised by all actors, 2) the activity is not a matter of common usage in the community.

CARE: Care excercised is irrelevant

QUESTION OF LAW: Q of law for court → can be decided on Motion for Directed verdict.

EXTENT OF LIABILITY: Extent of liability: (duty owed)
a. Duty to make safe the normally dangerous characteristic of animal or activity.

duty owed to foreseeable P and the kind of harm: Foreseeable P’s and kind of Harm → P’s foreseen a risk of harm to +harm flows from normal dangerous propensity

CAUSE: Cause in Fact and Proximate cause required: D’s liability cut off by unforeseeable intervening forces.

Front 300

STRICT LIABILITY

defenses
1. what are the two categories in contrib. neg. jurisdictions
2. when is cont. a defense?
3. When is cont. neg. NOT a defense?
4. does reg. comparative neg apply?

Back 300

Defenses:
CONTRIBUTORY NEG:
i. Unknowing Contributory Neg.: P’s contrib. neg NO defense (P fails to realize/guard against danger)

ii. Knowing Contrib. Neg.: P knows danger + unreasonable conduct = injury cause (type of assumption of risk) (type of defense!)


COMPARATIVE NEG. Comparative neg: apply rules from neg. cases. (1) partial, (2) pure.
PROD

Front 301

PRODUCTS LIABILITY:

General overview
1. what should I do when I see a product?
2. what are the possible theories of liablity for products? (5)
3. what are the elements of a products liablity case (3)
4. what are the types of defects? Define each
5. manufacuring defects also apply to?
6. warnings must (2)
7. how do you prove a manufacturing defect ?
8/ how do you prove a design defect?
9. what is the effect of compliance with a gov. safety standard?
10. Will D be held liable for a misuse of her product?
11. is there lialbity for scientifically unkowable risks
12. what is the CL and ML for allegery warnings
13. is there liability for an unavoidably dangerous product?
14 is privity required in products cases/
15. what is P's presumption?
16. who can be sue
17. WHO has standing to sue?
18. what kinds of uses will not be actionable?

Back 301

TYPICAL FACT PATTERN: Product fact pattern→ check what theory P is asserting (neg., intentional tort, or strict liability)

THEORIES OF LIABILITY: Theories of liability: 1) intent, 2) negligence, 3) strict liability, 4) implied warranties of merchantability and fitness for a particular purpose 5) representation theories (express warranty and misrepresentation)

ELEMENTS: Elements for Product liability for any liability theory: 1) a defect, 2) existence of Defect when product left D’s control (presumption in regular channel of distribution by D)

TYPES OF DEFECTS:
a. Manufacturing defects=product diff. more dangerous than proper products (food defect)

b. Design defects= dangerous propensity→ all products made the same

c. Inadequate warnings= type of design defect; warning can’t remedy dangerous defect →must have 1) clear, 2) prominent warning

PROVING DEFECTS:
a. Manufacturing defects: liable= product less safe than ordinary C would expect

b. Design Defects: P shows D could have made product safer (feasibility, usefulness/purpose, obviousness of danger, reasonably, cost effectively) → use this analysis regardless of liability theory

c. Gov. Safety standards: noncompliance =defective; compliance = evidence NOT conclusive product not defective

d. Misuse= D required to reasonably anticipate foreseeable uses

e. Scientifically knowable risks: no liability if impossible to know risks = no liability

f. Allergies: CL small%= no warning; ML: warning for any product with risk of allergy

g. Unavoidably dangerous products: danger apparent + no safer way to make (knife) = NO liablity

PRIVITY:
b. Privity not required for products cases→including neg. and intentional torts

P'S PRESUMPTION:
i. Presumption that if product was in “channel of distribution” left D’s hands with defect

WHO CAN P SUE?
c. P can sue anyone in distribution chain = manufacturer, retailer, distributor etc

LIABILITY AND FORESEEABILITY:
d. Liability to any foreseeable P →P buyer → can be: buyer’s family/friends, employees, bystanders

e. Liability for ALL foreseeable uses→ including misuses,

Front 302

PRODUCTS LIABILITY

LIABILITY BASED ON INTENT:
1. who is D liable to?
2. what tort will it most likley be?
3. Does privity matter?
4. what types of damages are available? (2)
5. what defenses are available?
6. what defenses should I not use?

Back 302

Liability based on intent: liable = anyone injured→ D intended OR knew substantially certain to occur + [defect + D’s hands]
a. Battery → privity irrelevant→ Compensatory/ punitive damages→Intentional tort defenses. (not Neg. defenses no assumption of risk/comparative fault)

1. consent. is the only one I think would apply

Front 303

PRODUCTS LIABILITY

LIABILITY BASED ON NEG.
1. What is the prima facie case?
2. what is the duty?
3. who does the duty apply to?
4. what are the elements of breach?
5. what is proof of neg. in a manufacturer case?
6. who might not be liable in a manufacturer case?
7. what is proof of neg. in a product defect case?
8. what is not a superceding cause?
9. what kinds of damages can I get?
10. what kinds of damages can I NOT get?
11. what defenses are available
12. DO I count P's neg.
13. when are disclaimers relevant?

Back 303

III. Liability based on negligence: 1) existence of legal duty D to P, 2) Breach , 3) actual proximate cause 4) damages + [defect + D’s hands]

a. DUTY: D’s with Duty of Care to P: Commercial suppliers + manufacturers + anyone in distribution chain

b. BREACH: 1) neg. conduct, 2) causing 2) supply of defective product by D

Neg.: D’s conduct < standard of care RRP similar circumstances + superior skill/ training

Proof of neg. in manufacturer case
a. Manufacturer = res ip sa
b. Dealer not liable = buys from reputable supplier +only cursory inspection (no reason to anticipate product dangerous)


2. Proof of Neg. in Product defects case: constructive/ actual notice of defect
a. No neg. if danger apparent only after goes to public.

CAUSATION: use actual and proximate cause analysis here
i. Intermediary’s failure to discover produce NOT superseding cause: can be if failure something more than ordinary neg. → both manufacturer and intermediary liable is not superseding cause

d. Damages: Personal injury/ property damage same as usual neg. analysis → NO ECONOMIC LOSS, P should bring breach of Warranty

e. DEFENSES: all same defenses. *P's cont. neg. counts

f. Disclaimers irrelevant if personal/property damage occurs

Front 304

PRODUCTS LIABILITY

STRICT LIABILITY TORT
1. elements (4)
2. who must D be?
3. Who can' D be?
4. is there liability even if D could not inspect?
5. requirement of actual cause?
6. how can P prove actual cause?
7. what is P's presumption regarding adequate warning?
8. what is not a proximate cause
9. what kinds of damages are available?
10. what kinds of damages are NOT available?
11. what defenses can I use
12. What is not a defense in cocontrib. neg. states? (2)
13. what is a defense in contrib. neg. states?
14. what are disclaimers irrelevant

Back 304

ELEMENTS: Strict tort liability: 1) strict duty owed by commercial supplier 2) production/sale of defective product, 3) actual/proximate cause, 4) damages. + [defect + D’s hands]

WHO IS D: D is commercial supplier/commercial lessor: not service provider, casual seller (non-merchant)

Strict liability = Privity not required + Liability even if no opportunity to inspect + NO substantial alteration

CAUSATION:
ACTUAL CAUSE: Actual cause: trace harm to defect, that existed when leaving D’s hands

1. Tracing is hard= P can rely on inference of product defect

2. Lack of adequate warning = presumption that adequate warning would be read/heeded

PROXIMATE CAUSE: Proximate cause: failure of intermediary NOT= superseding cause → Intermediary’s failure to discover produce NOT superseding cause: can be if failure something more than ordinary neg. → both manufacturer and intermediary liable is not superseding cause

DAMAGES: Damages: Personal injury/ property damage same → NO ECONOMIC LOSS, P should bring breach of Warranty

DEFENSES: Defenses:

contributory neg. NO defense if P failed to discover/guard against→ NO defense is misuse foreseeable

i. Comparative neg. rules apply

ii. Assumption of risk = valid defense

f. Disclaimers irrelevant if personal/property damage occurs

Front 305

PRODUCTS LIABILITY

Implied warranty of merchantability and fitness for a particular purpose:

1. what is merchantability
2. what is fitness
3. Does P need to show D's fault?
4. what things does this apply to (3)
5. what are the privity requirements?
6. what kinds of disclaimers can I use?
7. what kinds of disclaimers can I NOT use? why not?
8. causation?
9. what kinds of damages are recoverable (3)
10. When does assumption of risk prevent recovery?
11. when would I recover in a contrib. neg. state?
12 When would I NOT recover in contrib neg state?
13. when would I recover in a comparative neg. state?
14. what must Buyer give Seller within a reasonable time?

Back 305

Implied warranty of merchantability and fitness for a particular purpose:
a. Merchantability: goods= average acceptable quality + fit for ordinary purpose goods used for

b. Fitness: S knows/reason particular purpose goods required for + B relies on S’s skill/judgment selecting goods

c. Proof of D’s fault NOT needed

d. Applies to goods + bailments and leases

e. Narrow horizontal privity NO vertical privity: buyer’s family, household, and guests [UCC 2-218 Alt. A]

i. Alternative B: extends protection to any natural person who suffers personal injury
ii. Alternative C: any person who suffers injury
iii. Alternative A is majority Rule.

f. Disclaimers must be specific + narrowly construed [UCC 2-316]: disclaimers that limit personal injury damage = unconscionable.

g. Causation = same as neg. case.

h. Damage: personal + property + economic loss ARE recoverable.

DEFENSES:
i. Assumption of risk: UCC 2-715 = using product + knowing of BoW = injuries NOT proximate

ii. Contributory neg: unreasonable failure to discover defect = recovery → unreasonable conduct after discover = NO recovery

iii. Comparative neg. rules apply

iv. Notice of breach: UCC 2-607 = B gives S notice + within reasonable time after B discovers/ could have discovered breach.

j. Disclaimers rejected in personal injury → upheld in economic loss

Front 306

PRODUCTS LIABILITY CASES:

REPRESENTATION THEORIES

express warranty:
1. when does this happen?
2. what things does this apply to
3. is privity required?
4. P is not in privity does he need to know about the affirmative misrepresentation?
5. P must show?
6. P doesnt need to show?
7. when is a disclaimer consistent?
8. Is a disclaimer effectually possible?
9. what are causation, damages and defenses?

misrepresentation of fact:
1. when is seller liable? (2)
2. what are the 3 ways of liablity?
3. does privity matter?
4. P must ___?
5. the fact misrepresented must be?
6. how is cause shown?
7. is an intermediary a superceding cause?
8 what are damages?
9. can I use assumption of risk?
10. when is contrib. neg. a valid defense?

Back 306

Representation theories (express warranty and Misrepresentation of Fact): affirmative representation not met

EXPRESS WARRANTY: Express warranty: S’s affirmation fact or promise to B + goods become basis of bargain UCC 2-313

i.Applies to goods + bailments + leases

ii. Privty not required 2-318 [modern trend]→ Min. rule applies
1. Narrow horizontal privity NO vertical privity: buyer’s family, household, and guests [UCC 2-218 Alt. A]
a. Alternative B: extends protection to any natural person who suffers personal injury
b. Alternative C: any person who suffers injury
c. Alternative A is majority Rule.

iii. Warranty must have been made as basis of bargain → P not in privity need not know of affirmation but basis of his bargain

iv. P must show Breach of warranty did occur: P need not show breach by D fault

v. Disclaimer effective if consistent with express warranty made. UCC 2-316 = impossible to disclaim

vi. Causation, damages, defense = same as implied warranty


MISREPRESENTATION OF FACT
Misrepresentation of Fact: Seller liable 1) stmt of material fact concerning quality or uses of goods (mere puffery insufficient) 2) Seller intended to induce reliance by the buyer in a particular transaction.

i. Liable = strict liability, intentional, negligent misrepresentation

ii. Justifiable reliance required → privity irrelevant (prior purchasers sufficient)

iii. Material fact = fact quality/nature/ appropriate use of product

iv. Causation: actual cause shown by reliance → intermediary not superseding, analysis above same

v. Damages: personal + property damage → NO ECONOMIC LOSS

vi. Defenses: NO assumption of risk → contributiory neg. = valid
defense IF misrepresentation was NEG.

intentional misrepresentation = NO contrib. neg. [then punitive damages]

Front 307

NUISANCE

1. is a type of tort?
2. elements of private nuisance?
3. what is substantial interference?
4. what is the interference measured by?
5. Can I recover in nuisance If I have a specialized use?
6. How do I look at D's injury and D's utility?
7. elements of a public nuisance (2)
8. recovery is only where?
9. what counts as a unique harm? (6)
10. When does P get damages?
11. when is injunctive releif granted?
12. when will I get injunctive releif in public nusiance?
13. when is self-help available?
14. what are my defenses? (4)

Back 307

NUISANCE: not separate tort = type of harm

PRIVATE NUISANCE: Private Nuisance: 1) substantial, unreasonable, interference 2) with another private individual’s use or enjoyment of property 3) that he actually possess/ has immediate right of possession.

a. Substantial interference = offensive + inconvenient + annoying to ave. person → NO Egg shell P/ specialized use

b. Unreasonable interference: P’s injury > D’s utility → balancing test: consider neighborhood, land value, alternative conduct.

PUBLIC NUISANCE
II. Public Nusiance: 1) act unreasonably interferes 2) with health, safety, property rights of community

a. Recovery only where unique harm (special damages) → diff. kind of harm than gen. public
i. Personal injury, harm to health, personal distress, physical harm to chattels, sub. Interfence with his own land

REMEDIES:
a. Damages → p suffers unique harm

b. Injunctive relief: damage at law inadequate = injunctive → court considers irreparable injury and D interests [NO balancing where D’s conduct willful]

i. Public nuisance = only public authority + private party w/unique damage

c. Abatement/ Self-help:
i. Private nuisance= self-help = notice to D + D refusal to act→ ONLY necessary force

ii. Public nuisance= only a public authority or private party who suffered unique damage can seek injunction or abatement


IV. Defenses:
a. Legislative authority= not absolute but persuasive

b. Conduct of others= no one actor liable for all damages caused by concurred of his acts and others

c. Contributory negligence: no defense UNLESS P’s case= neg. theory

d. Coming to the nuisance: not a bar to P’s action; unless came to to sue.

Front 308

VICARIOUS LIABILITY:
1. def.
2. what are the requirements for respondeat superior? (2)
3. what is a frolic? Liable?
4. what is a detour? liable?
5. are intentional torts within scope of employment?
6. when might an intentional tort be in scope? (3)
7. When is employer neg.
8. what is the NY distinction for putitive damages?and employee torts? (3)
9. does an independent contractor have VL?
10. When could an independent contractor have VL? (2)
12/ Do partners have VL?
13.Do joint ventures have VL
14. what is a joint venture: 4
15. is an owner VL for a driver?
16 what is the family car doctrine?
17. permissive use doctrine?
18. What does NY adopt?
19. what other theory can I sue a car owner for?
20. is a bailor VL for bailee
21. what is bailor liable for?
22. Is a parent VL for kid?
23. In NY is parent VL for kid?
24. 2 types of NY distinctions for parent child- list
25. is a tavernkeeper VL in CL?
26. Is tavernkeeper VL in NY? when?

Back 308

Vicarious liability: P holds D (passive tortfeasor) liable for another person’s tort (active tortfeasor)→ relationship key

EMPLOYER/ ELMPLOEE: Respondeat superior: employer/employee + scope of employment
i. Frolic vs. Detrour: detour= scope + employer liable → frolic = outside scope + employer not liable

ii. Intentional Torts: NOT within scope; UNLESS: 1) force authorized, 2) friction generated, 3) furthering Buss. Of employer

iii. Liability for own negligence: employer liable = own neg. + neg. selecting/supervising employee ≠ VL

iv.  NY DISTINCTION: NO Punitive Damages UNLESS: 1) employer gross neg. for hiring; 2) employer entrusted with management of business, 3) employer authorized/ratified tortious conduct

INDEPENDENT CONTRACTORS: Independent Contractor Situations: P ≠ VL if Independent Contractor: EXCEPT: 1) inherently dangerous activities, 2) public policy considerations → P = liable for owner neg + neg. hire/supervision

PARTNERS AND JOINT VENTURES: Partners and joint ventures: each member = VL if scope + course of affairs
i. Joint venture= limited time/purpose→ 2P+ implied/express K + 1) common purpose + 2) mutual right of control

AUTOMOBILE AND DRIVER: Auto mobile Driver: owner ≠ VL for Driver
i. Family car doctrine: owner liable = immediate family/household members + express/implied permission

ii. Permissive Use Doctrine: NY DISTINCTION: NY adopts owner ≠ VL for Driver→ Reg. prima facie evidence of ownership; proof of ownership = rebuttable presumption permission→ even if stole owner has burden to prove no permission

1. Doesn’t matter of P with permission used the car → rental leasing liable NY but NOT fed.

iii. Negligent entrustment = owner liable

BAILOR AND BAILEE: Bailor for Bailee≠ VL → Bailor = neg. entrustment

PARENT/CHILD: Parent Child: CL: P ≠VL for kid unless agent for P→NY DISTINCTION: P=Liable >5K + willfull/intentional + property tort + Kid<10

i. NY DISTINCTION: P = liable neg. if Kid using dangerous instrument + subject to P’s control

ii. P =liable if fialure to mitigate + NO due care + know Kid’s past conduct

TAVERN KEEPERS: Tavernkeepers: CL=NO VL → NY Distinction: Tavern = VL to 3P if serving to P<21 + Drunk P

Front 309

MULTPLE D ISSUES: apply to all cases

1. def. joint and several liability.
2. when you have a Divisible injury what does D pay?
3. when D's act in concert what is the consequence?
4. what is satisfaction
5. what is release: CL and ML diff.
6. What is contribution?
7. when is contribution NOT allowed?
8. what is indemnity?
9. to idemnify by K you must?
10. indemnity under strict products liblity
11. Does VL apply to indemnity?
12. when are you likely to see indemnity (3)
13. how does comparative neg. interact with indemnity

Back 309

Multiple D issues:
a.Joint/Several Liablity= 2+ torts + Combine = proximate cause + indivisible injury
i. Divisible injury = D pays portion
ii. Acting in concert= Joint/severl (even if divisible)

b. Satisfaction/release: p recovers from 1 ≠ recover further. If not satisfaction = sue others; → CL release= surrender action+ 2 tortfeasors = NO action against other tort feasors, ML: only release if express. (released= reduced damage)

CONTRIBUTION
i. Contribution = Tortfeasor + paid more than share + indivisible injury + other D liable to P + NOT intentional tort

1. Comparative contribution=degree of fault OR equal shares=D’s pay equal (regardless of fault)

INDEMNITY
ii. Indemnity= shifts economic loss from D1 to D2 (between or among)
1. Right to indemnity by K + clearly intended

2. VL

3. Indemnity under strict product liability: Supplier indemnity for others in distribution chain → manufacturer = liable if defective when let hands

4. D’s identifiable Diff. in degree of fault with other D’s: least fault = indemnity from wrongful Tortfeasor
a. Retailers neg. rely on product condition
b. Secondary duty D recover primary duty P
c. Passive D from Active neg. D.

iii. Comparative neg. rejects indemnity → apportion on fault unless

Front 310

SURVIVAL AND WRONGFUL DEATH
1. what was CL rule on survival?
2. what is ML rule on survival?
3. How is NY's survival rule that ML and CL?
4. who can bring wrongful death claim?
5. who can bring wrongful death in NY?
6. In NY how long do you have to bring wrongful death claim?
7. what cases are consolidated in NY?
8. can you get punitive daamge in NY?
9. how is damage calculated (date)?
10. What can I recover? (5)
11. What can I NOT recover CL?
12. What can I NOT recover NY? what can I recover?
13. Can I get loss of consortium for los of my kid?
14. can creditor claim is? CL and NY
15. what are limits on derivative actions?

Back 310

Survival and wrongful death

SURVIVAL:
Survival: CL= Death of V or D = NO action→ ML= survival +property/personal injury, damages = paid to estate →NO tort survival if intangible interest

NY DISTINCTION: tort + harm to intangible interest (libel/slander/mal prosecutino) = Survival

WRONGFUL DEATH:
b. Wrongful death: brought by= personal rep, spouse, next of kin
i. NY DISTINCTION: P = survived by Distributed → Personal Rep brings
1. brought in 2 years from death → wrongful death/ injury action = consolidated → P has burden → Beneficiary death = okay, punitive damage=up to Benificary death date
ii. Recovery= pecuniary injury (loss of support + loss of consortium) *med bill, funeral, lost wage. NO pain/suffering

1. NY DISTINCTION: loss of consortium≠ Valid in wrongful death
a. punitive damage= recoverable → damages = part of estate + distribute by will/intestacy + (damages before death + wrongful death) + reachable by creditor

KIDS!

Kids/elder death= loss of support small/small recovery → creditors =NO claim to amount  can reach

iv. Defenses against Dead/beneficiary: recovery= only extend Dead could recovery (contrib. neg.) → beneficiary defenses don't bar but reduce

Front 311

TORTIOUS INTERFERENCE WITH FAMILY RELATIONSHIPS

1. what can a spouse sue for? (3)
2. can a parent sue for a child?
3. can a child sue for a parent?

Back 311

Tortious interference w/Family relationships: derivative actions = reduce/success if original action reduce/succeed

a. Husband/wife= recover loss of consortium→ loss of service + loss of society + loss of sex.

b. Parent/kid= p= loss of kid service → NO KID action

Front 312

TORT IMMUNITIES:
1. In CL could I sue brother for property damage?
2. in CL could I sue my brother for personal injury?
3. who coundlt I sue in CL?
4. who can I sue in ML?
5. In ML does husband wife immunity exist?
6. in ML does parent kid immunity exist? (2) maj or min. rule?
7. in NY can a kid sue parent for neg. supervision?
8. can a 3p sue parent for neg. supervision? what effect?
9. Has Fed. waived immunity? how?
10. where is Fed still immunity (9)
11. what are discretionary acts? are they immune?
12. are fed. contractors immune in products liablity?
13. Are states immune? from what?
14. how do municipalities become immune?
15 where can municipatieis still be immune?
16. what are gov. functions? immune?
17 what are proprietary functions? immune?
18. NY'S Position?
19. when are public officials immune?
20. What are ministerial acts? immune?
21. are charities immune?

Back 312

Tort immunities:

INTRAFAMILY TORT IMMUNITY: Intrafamily tort immunities: CL= immunity for personal injury (not property), no suing ( husband wife + parent/Kid)→ML: some allow P/K = tortiou/ automobile

NY DISTINCTION: NO intrafamily immunity. Kid ≠ Sue P for neg. supervision = kid harm → 3P ≠ sue P for neg. supervision (when K sues 3P, 3P seeks P contribution= fail. State CoA)

GOVERNMENT TORT IMMUNITY: Gov’t Tort Immunity: immunity = state agencies (school/hospital)

i. Fed. Gov’t: = waived immunity FTCA;

EXCEPTIONS: assault, battery, false imprisonment/ arrest, mal.pros, abuse/process, defamation, misrepresentation/deceit, interference with K rights

1. Discretionary act= immunity (palning/decision)→ ministerial act= waived (operational level)

2. Fed. contractor= immunity if products liability + specifications by Gov’t + warned of danger

STATES
ii. State Gov’t: = like fed.; immunity = discretional, leg. Judicial acts


MUNICIPALITIES:
iii. Municipalities: state immunity waives= municipality waived (immunity = discretionary, leg, jud.)

1. Public duty rule Limitation: duty owed to public ≠ owed individual = no action unless special relationship: 1) assumption by promise/action of affirmative duty to P, 2) knowledge inaction=harm, 3) direct contact with P, 4) P’s justifiable reliance on municipality undertaking

GOVERNMENT FUNCTIONS
iv. Gov. functions= immunity: only adequately performed by gov’t

PROPRIETARY FUNCTIONS
v. Proprietary functions ≠ immunity: = function can be by private corp. city = revenues from service

1. NY DISTINCTION: immunity = gov. functions, immunity ≠ proprietary = liable ordinary tort principles

vi. Immunity for public officials= official duty +
discretionary act + NO malice/ improper purpose

1. Ministerial = no immunity + lower level official

vii. no charitable immunity.