Lecture 20 - Ny & Multistate Torts Part Ii

Front 1

Negligence is unreasonable conduct caused by D's FIT conduct. What does FIT stand for?

Back 1

F - failure to take reasonable precautions
I - inadvertence
T – thoughtlessness

Front 2

What is negligence?

Back 2

Negligence is a failure to exercise reasonable care that a reasonably prudent person (RPP) would've exercised under similar circumstances and which failure proximately caused a physical injury to P who was foreseeably threatened by D's unreasonable act or omission. It is unreasonable conduct creating a foreseeable risk of harm to the plaintiff to whom defendant owed a duty of care.

Front 3

To plead and prove a negligence claim, the plaintiff must demonstrate DIP. What does DIP stand for?

Back 3

D - the defendant owed a duty to exercise reasonable care to the injured plaintiff and D breached that duty
I - P suffered "physical injury" to his person or property. (remember strict products liability vs. breach of warranty)
P - the plaintiff's injuries were proximately caused by D's breach of duty (i.e. D's conduct was a substantial factor in bringing about P's injuries).

Front 4

What must occur for reasonable duty to occur?

Back 4

The injured party must plead and prove that D owed not merely a general duty to act reasonably, but rather a specific duty to the particular plaintiff. The duty of care owed is simply to behave with the degree of care that an RPP would have exercised in similar circumstances.
Unlike causation and damages, which are both factual issues for a jury, the question of whether someone owes a duty of care to reasonably prevent injury to another is a question of law for the court.

Front 5

Where a legal duty of reasonable care exists, what is considered?

Back 5

The scope of that duty and to whom it is owed is based on foreseeability of harm. (i.e. A duty is owed only to those who foreseeably could be injured as a result of D's breach of duty. (i.e. those within the zone of danger)). Foreseeability is defined as being reasonably anticipated. (i.e. The event or the outcome followed D's conduct and it should have been anticipated by the defendant.)

Front 6

When a person voluntarily assumes a duty, he must act as an RPP. What is this?

Back 6

A volunteer may discontinue aiding a person unable to adequately protect himself provided the injured person is not placed in a worse position than before he met the volunteer.

Front 7

What legal duty do doctors and nurses have or don’t have in regards to assisting an injured person?

Back 7

Doctors and nurses have no legal duty to stop and assist an injured person, but all states have Good Samaritan laws shielding them from liability for negligence (but not for recklessness or gross negligence). NY extends Good Sam. protection to anyone who voluntarily and without expectation of compensation renders emergency medical assistance at the scene of an accident. The protection also extends to volunteer fire departments that respond to emergencies, but NY and NJ do not extend Good Sam. protection to medical treatment in an emergency room.

Front 8

Is a duty owed to control a third person? List some examples.

Back 8

Generally no duty is owed to control a third person in order to prevent harm to another. However, some defendants have a duty to control the conduct of a tortfeasor and protect the plaintiff.
Example: A parent owes a duty to protect a child.
Example: A common carrier owes a duty to passengers.
Example: A business that opens its door to the public owes a duty to protect business invitees from foreseeable harm.
Example: A school has a duty to protect its students.

Front 9

Under the doctrine of respondeat superior, the torts of an agent or employees are vicariously imputed to the employer even if the tort was committed in disregard of the employer's instructions. What does this mean?

Back 9

P must show that the employee's torts were committed within the scope and in furtherance of the employer's business. The tort must be closely connected with what the employee was employed to do.

Front 10

Are employers liable for employees intentional torts?

Back 10

Employers generally are not liable for their employee's intentional torts unless the employer authorized the use of discretionary force or the act was motivated by and performed to assist or promote the business interest of the employer.
When the employee's intentional torts arise purely from the employee's personal motivation, then the employer is not vicariously liable.

Front 11

When can a plaintiff sue the employer?

Back 11

A plaintiff injured by the intentional act of an employee may sue the employer for its failure to exercise reasonable care in hiring, retaining, or controlling its employee. This liability is based on the employer's active negligence in exposing 3rd persons to the foreseeable risk of misconduct by the employee. This is separate and apart from respondeat superior passive liability.
An unexpected and sudden altercation usually does not render a business or a school liable to the injured P because most batteries are not foreseeable. To recover, P must establish that the owner was on notice that violence could occur and was negligent in protecting its patrons or students. Public establishments and schools are not absolute insurers for the safety of patrons and students.

Front 12

What is the duty owed?

Back 12

The duty to act reasonably is governed by the objective RPP. D's lack of experience or mental deficiency is not considered. However, if D is an expert, then his or her conduct will be measured by the higher standard of care owed by a reasonably prudent expert.

Front 13

Is insanity a defense to negligent or intentional torts?

Back 13

Although insanity is a contract and criminal law defense, it is not a defense to intentional or negligent torts. Insane or intoxicated persons are liable for injuries they inflict. Insanity is a defense however, when plaintiff seeks punitive damages.

Front 14

What is the exception to the objective RPP test?

Back 14

An exception to the objective RPP test is made for infants.

Front 15

When can a child be deemed negligent by law?

Back 15

As a matter of law, a child may not be negligent (a) in MBE until their 7th birthday and (b) in NY until her 4th birthday.
MBE and NY children are not liable for intentional torts until their 4th birthday.

Front 16

How is an infant judged liable?

Back 16

An infant over the non sui juris (not his own master) age is judged by a quasi subjective standard based on what would be expected of a prudent child of similar age, experience, and intelligence.

Front 17

What about if the child engages in adult activity, then how is the child held liable?

Back 17

If a child engages in adult activity, then the child is held to the adult standard of RPPs because activities are inherently dangerous.

Front 18

Problem: Father negligently allowed S, his 3 year old son to play in heavy traffic. S was hit by D's speeding car. May S sue F?

Back 18

Yes, in MBE, but no in NY. (tested often in NY)

Front 19

Who have abolished intra family immunity and what does this mean for families?

Back 19

NY and most states have abolished intra family immunity and permit family members to assert tort claims against each other if those same claims could have been asserted between parties outside the family relationship. However, a NY or NJ child does not have a legally cognizable claim against a parent for a parent's negligent supervision resulting in the child's own injury. Likewise, a foster parent or sibling owes no duty to supervise, but a grandparent who was babysitting does.

Front 20

Could D, the driver of the speeding car who was sued by S implead the father in NY?

Back 20

Not in NY because F owed no legal duty to supervise S, F did not commit a tort. Thus, D has no right to contribution from F.

Front 21

What does the GOL expressly prohibit?

Back 21

The GOL expressly prohibits the imputation of a parent's contributory negligence to an infant's claim.

Front 22

What do schools, babysitters, and other adults owe?

Back 22

A duty to provide adequate supervision to a child.

Front 23

Absent a statute, parents generally are not vicariously liable for the torts of their children merely due to the parent child relationship, but tort claims against parents are permitted if the child is SICK. Explain what SICK means.

Back 23

S - in an employment relationship where the child commits a tort while acting as a servant or agent of the parent
I - where the parent entrusts or knowingly leaves in the child's possession and instrument, which in light of the child's age, intelligence, disposition and prior experience creates an unreasonable risk of harm to others.
C - where a parent knows of the child's tortious conduct and directs, approves, or consents to it.
K - where a parent has the ability to control the child, but fails to exercise that control even though the parent knew of the child's violent tendency that could endanger a 3rd party.

Front 24

Injury to the Plaintiff occurs when?

Back 24

P must plead and prove a physical injury to P's body or P's property for a prima facie case of negligence.

Front 25

How are negligence laws designed?

Back 25

Negligence laws are designed to protect individuals from the risk of physical harm to their persons or property with a few exceptions. Negligence claims are generally not permitted for solely psychological injury, or for purely economic loss in the absence of a physical injury or verifiable physical symptoms. The "economic loss rule" serves to maintain a distinction between a tort obligation and a contractual one.

Front 26

Once the plaintiff establishes a personal injury, damages may include what?

Back 26

Past and foreseeable future illness, medical expenses, lost wages, and physical and emotional pain and suffering.

Front 27

A pain and suffering recovery requires what?

Back 27

Proof that an injured person was conscious and cognitively aware of the pain after the accident. If the plaintiff died instantly or painlessly, there is no recovery for conscious pain and suffering, though the estate may still sue for wrongful death.

Front 28

A plaintiff claiming lost earnings must prove what?

Back 28

The amount of actual past earnings by means of an income tax return or other documentation. Lost earnings must be established with reasonable certainty.

Front 29

Where property is negligently destroyed, damages are assessed how?

Back 29

(a) the reasonable cost of repair or (b) the decrease in its value, whichever is less. If it is business property, the owner also may recover lost profits incurred due to a delay in replacing the property.

Front 30

An injured P must mitigate damages by undergoing medical treatment that an RPP would've taken. Under the doctrine of avoidable consequences, an injured P is required to undergo reasonable medical treatment (not risky or dangerous). What happens if P violates this?

Back 30

P's violation of this doctrine prevents recovery for those injuries and pain and suffering that could've been avoided by reasonable medical care. (e.g. If plaintiff unreasonably delayed in obtaining medical treatment or failed to follow medical advice, keep follow up doctor appointments or take medications, she may not recover any increased or economic or non-economic injuries.)

Front 31

Even though D's contact with P must be either intended, highly likely, or foreseeable, the exact resulting injuries to P need not be foreseeable or unforeseeable?

Back 31

Foreseeable. The tortious D takes P as he finds her and thus is liable for resulting death, physical injury, or disability if the injured plaintiff had a soft skull or brittle bones. P’s vulnerability will not relive D from liability.

Front 32

Explain what F CLIPS is.

Back 32

F - Factual cause
C - concurrent cause
P - proximate cause
S - successive causes

Front 33

What does the F in F CLIPS stand for?

Back 33

F - Factual cause
By proving factual cause, P simply establishes that but for D's conduct, P's injuries would not have occurred.
Generally, factual cause alone is insufficient to establish negligence. P must further demonstrate that D's negligent conduct was a substantial factor in causing P's physical injury.

Front 34

What does the C in F CLIPS stand for?

Back 34

C - concurrent cause
A D's negligence does not have to be the sole proximate cause of injury. An injury may have more than 1 proximate cause.
At common law and in MBE where the acts of several tortfeasors contribute to P's injury, each is 100% jointly and severally liable for all of P's injuries. NY has abolished joint and severally liability for P's non-economic injuries where D is 50% or less responsible for P's injury. Such a tortfeasor is only severally liable for non-economic injuries apportioned to her by the jury.
Generally, P has the burden of proving that the conduct of a specific defendant was a proximate cause of his injuries. However, where P suffers a single injury as a result of the conduct of multiple tortfeasors, and P cannot establish which D caused the injury, then under the alternative liability theory, the burden of persuasion on causation shifts from the P to the Ds who are in a better position than P to identify the actual cause of P's injuries. If neither can prove who inflicted P's injury, both are held jointly and severally liable even though only one of them could have done it.

Front 35

What does the P in F CLIPS stand for?

Back 35

P - proximate cause
Proximate cause requires a close causal connection between D's negligent conduct and P's injury. To recover, P's injury must be the natural and probable consequence of D's tortious act. Proximate cause limits a D's liability for the consequences of her negligent conduct. D's negligent conduct must be a "substantial factor" in causing P's physical injury. A negligent D therefore, is not liable for P's injuries caused by a remote, bizarre, or extraordinary events.

Front 36

What does the S in F CLIPS stand for?

Back 36

S - successive causes
Successive causes arise where P's injuries are proximately caused by multiple acts of negligence occurring at different times. The original tortfeasor is liable for all subsequent foreseeable injuries arising from the initial tort.
An intervening proximate cause is one that takes place after D's negligent act, but which contributes to P's injuries. A foreseeable intervening cause does not break the chain of causation and the original tortfeasor is also liable for P's injuries flowing from that foreseeable intervening cause.
A foreseeable successive cause doesn’t break the chain of causation and the original tortfeasor is also liable for plaintiff’s injuries flowing from that foreseeable intervening cause. However, a superseding proximate cause is extraordinarily attenuated as to be unforeseeable and break original chain of causation cutting of earlier defendant’s liability for subsequent injury.
However, a superseding proximate cause (aka an independent intervening proximate cause) is extraordinary and so attenuated as to break the original chain of causation and cut off the earlier tortfeasor's liability for P's subsequent injury. It prevents the original D's negligence from being the proximate cause of P's subsequent injuries.
Whether an intervening cause is independent and superseding depends on whether the intervening event was normal and foreseeable or extraordinary under the circumstances.
A plaintiff's own negligent conduct may be and often is the sole superseding cause of P's own injury.
The intervening tortious actor is solely liable for subsequent injuries if the earlier initial act has become too remote to constitute a proximate cause of plaintiff’s injuries.
Under the second impact doctrine, a manufacturer may be liable for increased injuries cause by its defectively designed product.
Intervening act of nature or intervening criminal conduct often constitutes unforeseeable intervening causes. However, such events do not relieve an original tortfeasor from liability if the intervening activity was foreseeable and could have been avoided by reasonable care. For example, a landlord is liable for batteries committed on the tenant where the landlord breached its duty to provide reasonable security.

Front 37

What does LARGE CDD stand for?

Back 37

L - last clear chance (LCC)
A – assumption of risk
R – res ispa loquitor
G - guest statute (not NY)
E – emergency doctrine
C - comparative or contributory negligence
D - Dram Shop

Front 38

The L in LARGE CDD is further explained how?

Back 38

L - last clear chance (LCC)
LCC is asserted by a P to defeat D's defense of contributory negligence. In a comparative negligence jurisdiction, there is no need to use last clear chance.
In a contributory negligence jurisdiction, a negligent P may still recover by showing that D had the last clear opportunity to avoid the accident. LCC frequently is raised by negligent plaintiffs who are infants, intoxicated, or otherwise helpless to escape the danger they negligently brought about.

Front 39

A – assumption of risk
The R in LARGE CDD is further explained how?

Back 39

R – res ispa loquitor
The res ipsa doctrine aids an injured party who does know and cannot plead exactly what D did to proximately cause the accident, but "the think speaks for itself." It permits, but does not require the jury to draw an inference (it is not a presumption) of negligence from circumstantial evidence in the absence of direct evidence.
Res ipsa enables P to establish a prima facie case and to survive a motion to dismiss, a motion for summary judgment, or a motion for a directed verdict when she rests her case without any direct evidence of D's negligence. Because res ipsa gives rise to an inference and not a presumption, the burden of persuasion for proving negligence remains with P even if D fails to come forward to explain what happened.

Front 40

Under R from LARGE CDD, res ipsa requires P to prove PEA. What does PEA stand for?

Back 40

P - a probability exists that neither P nor anyone other than D caused P's injuries.
Res ipsa is not applicable where it is equally probable that a 3rd person and not D might have caused the accident.
E - the instrumentality or area causing P's injury was under D's exclusive control or D had the right or power to control it when the negligence occurred. The purpose of the exclusive control element is to eliminate causes for the accident other than D's negligence.
A - the accident would not have occurred in the absence of negligence.

Front 41

The G in LARGE CDD is further explained how?

Back 41

G - guest statute (not NY)
A guest statute prohibits a gratuitous automobile passenger from recovering against a negligent driver unless the guest's injuries were caused by the driver's gross negligence or reckless conduct. (guess statute might be important for conflict of laws question in NY).

Front 42

E – emergency doctrine
The C in LARGE CDD is further explained how?

Back 42

C - comparative or contributory negligence
In a contributory negligence jurisdiction, if P's negligence contributes even only 1% to the accident, P is barred from any recovery.
12 states recognize pure comparative negligence where P may recover no matter how great P's apportioned share of fault. P's culpable conduct reduces proportionately the amount of damages P may recover. (NY)
34 states recognize a modified comparative negligence theory, which allow a negligent P to recover provided P's negligence does not (1) equal D's fault (this is called the 49% rule because P's fault may not exceed 49%) or (2) exceed D's fault (this is called the 50% rule because P's negligence cannot exceed 50%). (NJ)
Where there are multiple defendants, some modified comparative negligence jurisdictions compare P's % of fault to each D separately. However, most states (NJ) adopt the unit rule comparing P's % of negligence with the combined negligence of all Ds as one unit to determine if P's fault equals or exceeds the defendant's fault as one unit.
In a comparative negligence jurisdiction, P's recovery is reduced by P's own % of culpable fault. Any derivative claims arising from P's injuries (e.g. Loss of consortium by a spouse, loss of an injured child's services by a parent, or a wrongful death claim) likewise will be reduced to the extent of the injured plaintiff's comparative negligence.
Because failure to wear a seatbelt is rarely a proximate cause of an accident and the failure by a NY P to wear a seatbelt is not admissible on the issue of liability and P's comparative fault. It is admissible however, on the issue of P's damages.
The outlaw doctrine denies P any recovery when she is injured while engaged in a serious criminal activity.

Front 43

The D in LARGE CDD is further explained how?

Back 43

D - Dram Shop
At common law, a bar or restaurant was not liable to 3rd persons for injuries occurring off the bar's premises caused by an intoxicated customer. The bar providing the liquor was a cause in fact, but the conduct of the patron consuming the liquor was considered to be the proximate cause of the patron's tortious conduct.
Dram Shop statutes impose liability on the providers of alcohol in certain circumstances. Under NY's Dram Shop statute, a 3rd person who is personally or financially injured by an intoxicated person may assert a cause of action against a 3rd party who unlawfully provided liquor to the intoxicated person.

Front 44

An unlawful sale under Dram Shop occurs by what 4 things?

Back 44

1. a direct commercial sale of liquor to a visibly intoxicated person. Circumstantial evidence may be used to establish visible intoxication. Some states (NJ, but not NY) extend this liability to social hosts who knowingly provide liquor to an intoxicated guest they know will be driving.
2. Providing liquor to someone the provider knew or reasonably should have known was under age 21.
In NY and NJ, a plaintiff injured by an intoxicated youth may sue the person, even a social host who knowingly furnished the youth with alcohol.
3. providing a controlled substance to anyone.
In NY, the intoxicated person, even the intoxicated minor may not assert a claim against the unlawful provider. Only 3rd persons who proximately suffer personal injury, property damage, or loss of means of support have a cause of action. Accordingly, if the intoxicated driver dies, his family may sue the tavern for wrongful death if the family has suffered a pecuniary loss as a result of the unlawful sale of liquor. The tavern owner then may assert the drunk driver's comparative negligence to reduce the wrongful death judgment.
In NY, a Dram Shop claim, whether for personal injury or wrongful death is governed by a 3 year s/l and punitive damages are recoverable.
If the plaintiff procured the alcohol for the intoxicated person, he is precluded from recovering under Dram Shop.