New York Torts

Front 1

Elements of Battery

Back 1

1) Harmful or offensive contact
2) With the plaintiff's person

Front 2

Battery - Meaning of Harmful/Offensive Contact

Back 2

1) Harmful - almost never tested
2) Offensive - basically means "not permitted by average person" (does not take into account hyper-sensitivty)

Front 3

Battery - Meaning of "Plaintiff's Person"

Back 3

Not limited to flesh; includes anything the plaintiff is touching or holding
(e.g., slapping horse, poisoning lunch)

Front 4

Elements of Assault

Back 4

Only one element: Apprehension of an immediate battery

Front 5

Assault - Meaning of Apprehension

Back 5

Does not mean only fear: knowledge/awareness/understanding.

Front 6

Assault - Can a plaintiff recover for assault for a threat with an unloaded gun?

Back 6

Can recover if plaintiff does not know whether the gun is loaded.

Front 7

Assault - Meaning of Immediate

Back 7

Immediacy requires an overt action; Words are not enough.
NOTE: words can defeat immediacy if they indicate a conditional or future threat.

Front 8

Elements of False Imprisonment

Back 8

1) Defendant must commit an act of constraint that 2) results in confinement in a bounded area.

Front 9

False Imprisonment - Meaning of Act of Restraint

Back 9

1) Threats are sufficient ("don't leave or I'll kill you)

Front 10

False Imprisonment - Act of Restraint - Effect of Omission

Back 10

Omission is only an act of restraint if there is a duty to assist, e.g., a flight attendant who declines to get a wheelchair to help a disabled person off a plane.

Front 11

False Imprisonment - Act of Restrain - Effect of Plaintiff's Knowledge

Back 11

An Act of restraint only counts if the П either knows of it *or* is harmed by it.

Front 12

False Imprisonment - Meaning of Bounded Area

Back 12

1) Must be a "keeping in" (keeping out is not imprisonment).
2) Escape route does not defeat claim if either not reasonable or not reasonably discoverable.

Front 13

Elements of Intentional Infliction of Emotional Distress

Back 13

1) Outrageous conduct
2) Severe emotional distress suffered by the plaintiff

Front 14

IIED - Meaning of Outrageousness

Back 14

Conduct is outrageous if it exceeds all bounds of decency tolerated in a civilized society. Mere insults are not enough.

Front 15

IIED - Outrageousness - Examples

Back 15

1) Continuous/repetetive harassment
2) Df violtates a duty of courtesy (e.g., common carrier)
3) Pf is a member of a fragile class of persons: child, elderly, pregnant (and df knew it), had phobia (and df knew it).

Front 16

IIED - Meaning of Distress

Back 16

Must be "severe" (not highly tested).
Does not require physicial effects; does not require that you see a therapist.

Front 17

Elements of Trespass to Land

Back 17

1) Arrived at location through deliberate or conscious act
2) Physical invasion
3) Of Land

Front 18

Trespass to Land - Meaning of Physical Invasion

Back 18

Entry of land; throwing objects onto land.
Light, sound, and smell are not physical invasions.

Front 19

Trespass to Land - Meaning of Land

Back 19

1) Surface of property or
2) air above or ground below to a reasonable distance

Front 20

Elements of Trespass to Chattels and Conversion

Back 20

Harm or taking of personal (not real) property
(modest harm is Tr. to Chattels, significant harm is conversion).

Front 21

Trespass to Chattels/Conversion - Forms of Invasion

Back 21

1) Deliberate Damage
2) Denial of possession (i.e., taking)

Front 22

Conversion - Remedy

Back 22

Forced sale - full value of property (not cost of repair or rental).

Front 23

Conversion - Remedy Against a Purchaser

Back 23

NYS: An innocent purchaser is not a convertor, no remedy agains them
[I don't understand this card, having missed the lecture -- CE]

Front 24

Personal Property – Abandoned Property - Definition~

Back 24

original owner gives up possession with the intent to give up title and control
* Mental state is inferred circumstantially
* Once property is abandoned who takes possession and has the intent to take control becomes the new owner

Front 25

Personal Property – Lost Property – Definition

Back 25

Temporarily parting with possession but no corresponding mental state to permanently give up possession.
* The owner of lost property always has a right to get it back

Front 26

Personal Property – Lost Property – Rights of Finder

Back 26

* If the property is worth less than $20 the finder must first make a reasonable effort to locate the owner and if unsuccessful for 1 year you get to keep the property.

* If the property is worth more than $20 have to give it to police who hold it for the statutory period (increases with amount) and if owner does not claim it within that period you get to keep it

Front 27

Personal Property – Gifts – Inter Vivos Gift – Requirements

Back 27

* A gift made during lifetime of donor
(1) Donative Intent – evidence that the donor meant to transfer title
(2) Must be acceptance by donee (silence is sufficient)
(3) Valid Delivery (most tested) –actual or representative (e.g., keys to the car, title of to car) object has to be moved from donor to donee.

Front 28

Personal Property – Gifts – Inter Vivos Gift – Special Delivery Hypos

Back 28

(i) 1st party checks (“paid to the order of donee”, signed by donor): delivered when cashed/negotiated.~(ii) 3rd Party check: delivered as soon as document is turned over. ~(iii) Stock: as soon as the certificate is delivered, do not have to wait till the corporate books are updated~(iv) Delivered on receipt of *donee’s* agent. (Ambiguous agency relationship presumed to be donor’s agent (UPS guy))

Front 29

Personal Property – Gifts –Gift Causa Mortis – Definition, Elements & Invalidation

Back 29

* A gift given in contemplation of death.
Donor must have an imminent and likely risk of death.
Invalidated 1) if the donor doesn’t die or 2) if the donee dies first.

Front 30

Personal Property – Gifts – Liens – Definition & Requirements

Back 30

* When possessor has improved or enhanced the value of a piece of personal property and is entitled to payment and that party can continue to hold the property until payment is delivered.
(1) A debt has arisen as a result of services performed
(2) The debtor has title to the property
(3) The creditor has possession

Front 31

Personal Property – Gifts – Liens – General & Special

Back 31

General Lien
* Granted in favor of someone who has property and can hold all the property for the general items due. Releasing some property does not release the lien on the rest of the items

Special Lien
* Attached to a particular object, charge, claim. If possessor gives up possession no longer have a lien on the item, can sell it to a 3rd party free and clear. (Contract claim survives)

Front 32

Personal Property – Gifts – Bailments – Definition

Back 32

* When you give someone for your stuff to hold it (e.g., coat check, parking garage, loan to a friend).

Front 33

Personal Property – Gifts – Bailments – When Created

Back 33

1) Things inside things – e.g., stuff normally within a car is a bailed, extraordinary stuff is not bailed
* but bank is a bailee of everything in a safe deposit box
* free coat checks have a statutory maximum liability of $200

Front 34

Intentional Torts – Affirmative Defenses – Consent – Defense to What

Back 34

All seven intentional torts

Front 35

Intentional Torts – Affirmative Defenses – Consent – Threshold Quesitons

Back 35

Threshold consideration:
Did the П have capacity?
(1) Intoxication – no
(2) Mental Illness – no
(3) Children – can only consent to childish things

Front 36

Intentional Torts – Affirmative Defenses – Consent – Express Consent – Requirements

Back 36

Must actually say words granting consent
Exception: duress and fraud negate consent
Note: Not disclosing an STD is fraud

Front 37

Intentional Torts – Affirmative Defenses – Consent – Implied Consent – Requirement

Back 37

Implied consent is based on Δ’s reasonable interpretation of П’s objective conduct.
E.g., you have implied consent to enter a store, and you consent to everything that routinely happens in a sports game you play.

NOTE: Never consider the subjective thoughts of the plaintiff: this is a bar exam trick.

Front 38

Intentional Torts – Affirmative Defenses – Self-Defense, Defense of Others, Defense of Property - Requirements

Back 38

(a) Proper timing (no revenge): the threat is imminent or in progress(b) Reasonable belief that the threat is genuine: A reasonable mistake will not destroy the privilege, you have to act in good faith but don’t have to be perfectly accurate. Jury determines reasonableness.
(c) Action limited to force necessary under circumstances

Front 39

Intentional Torts – Affirmative Defenses – Self-Defense, Defense of Others, Defense of Property – Use of Deadly Force

Back 39

Generally rule is, okay if you reasonably believe there is a deadly threat to you or a third person. No deadly force in defense of property is permitted.

New York Distinction: duty to retreat before using deadly force, unless you are in your own home.

Front 40

Intentional Torts – Affirmative Defenses – Necessity – Defense to What?

Back 40

Available only to the three property torts: trespass to land, trespass to chattel, and conversion.

Front 41

Intentional Torts – Affirmative Defenses – Necessity – Public Necessity – Definition and Effect

Back 41

Invasion of property because of an emergency, in order to protect the community as a whole or group of people

No damages: public necessity is an absolute defense

Front 42

Intentional Torts – Affirmative Defenses – Necessity – Private Necessity – Definition and Effect

Back 42

When a Δ invades П property in an emergency to protect an interest of his own. Defendant has a property interest for duration of danger: principle of sanctuary means, plaintiff may not chase defendant away.

Limited defense: private necessity still requires Δ to pay for the harm he causes, but defendant will not pay nominal or punitive damages.

Front 43

Defamation - Elements

Back 43

1) A publication of 2) a defamatory statement (oral or written) by Δ that specifically identifies the П and that 3) actually or constructively causes damage.

Front 44

Defamation – Meaning of Defamatory

Back 44

If it tends to adversely effect your reputation.
Core defamation – an allegation of fact that reflects negatively on trait of character.
Name calling – not defamatory.
Can’t defame a dead person.

Front 45

Defamation – Meaning of Defamatory – Opinions

Back 45

Statement of opinion – defamatory if the listener would assume that the speaker has facts to back it up

NYS Distinction: opinion statements can be considered defamatory depending on its 1) tone 2) purpose and 3) context.

Front 46

Defamation – Meaning of Publication

Back 46

Not necessarily magazines, books
Has to be broadcast to a minimum of one 3rd person (other than П himself)

* Inadvertent publication is also actionable, e.g., misaddressed letter

Front 47

Defamation – Libel – Definition and Damages

Back 47

Libel is embodied in a permanent form (written down)

Libel П’s don’t need to prove damages

Front 48

Defamation – Slander – Per Se

Back 48

Slander is spoken defamation. Per se slander: oral statements so damaging that we treat them like libel (no damage requirement). Includes a statement:
- about plaintiff’s business or profession;
- that the П has committed a crime or moral turpitude;
- imputing a loathsome disease (leprosy, STD);
- imputing unchastity (sex before marriage) to a woman

NY Distinction: A statement imputing homosexuality is a form slander per se.

Front 49

Defamation – Slander – Damages

Back 49

Have to prove damages and damages must be ECONOMIC, social harm does not count (e.g., kicked you out of the club).

Front 50

Defamation – Defense - Privilege

Back 50

Privilege applies when the statement serves a socially useful function. (e.g., talking to police, job reference letter).

You lose the privilege if you intentionally misstate or if you make irrelevant claims

Front 51

Defamation – First Amendment Defamation – Definition and Elements

Back 51

First amendment defamation applies to matters of public concern. Must prove:
1) Falsity – knowledge of falsity, reckless lack of investigation. Here, plaintiff must prove falsity (unlike regulation defamation, where truth is a defense).
b) Fault – degree of fault depends on plaintiff; if plaintiff is a public figure, fault will have to be recklessness or intent. If plaintiff is not public figure, intent will have to be on negligence. Reasonable mistake always a defense.

Front 52

Privacy Torts – Appropriation - Definition

Back 52

Def’n: Defendant uses plaintiff’s name or picture for commercial advantage. E.g.: image used in 1) packaging, 2) advertising, or 3) as a trademark.

Subject to a first amendment “newsworthiness” exception.

Front 53

Privacy Torts – Invasion – Definition

Back 53

*MBE only, NY does not recognize.

1. invasion of person’s solitude in a way objectionable to the average person
2. person must have a reasonable expectation of privacy

Front 54

Privacy Torts – False Light – Definition

Back 54

*MBE only, NY does not recognize.
Defn: widespread dissemination of a major misrepresentation about the plaintiff that would be objectionable to an average person

widespread – distinguishes this from defamation

misrepresentation – the misrepresentation does not have to be defamatory; does not have to injure reputation

Front 55

Privacy Torts – False Light – Requisite Knowledge

Back 55

Exam trick: this is not an intentional tort; there is no requirement that the defendant be aware that the statement is false.

Front 56

Privacy Torts – False Light – Remedy

Back 56

No money damages; this is a purely dignitary harm.

Front 57

Privacy Torts – Dissemination – Definition

Back 57

widespread dissemination of confidential information objectionable to a reasonable person, e.g., (academic information, financial information, medical information)

Note:
* Subject to newsworthiness exception.
* Information has to be generally confidential – more than just that you hoped someone in particular would never find out.

Front 58

Privacy Torts – Affirmative Defenses

Back 58

1) Consent.

2) The defamation privileges (available to defend against false light and disclosure).

Front 59

Economic Torts – Fraud – Elements

Back 59

Where a defendant interacting with a plaintiff in order to obtain economic advantage, fraud results when te following elements exist:
1) affirmative misrepresentation (silence is not enough);
2) scienter (must know that the claim is false);
3) claim is intended to induce reliance;
4) results in actual and justifiable reliance; and
5) results in damage (i.e., you must enter into the transaction, and get less than the value of the thing you bargained for).

Front 60

Economic Torts – Fraud – When is it justifiable to rely on an assertion?

Back 60

1) Always justifiable to rely on an assertion of fact.

2) If the assertion takes the form of an opinion, it is justifiable to rely on it if the defendant has superior skill or expertise in the area of the opinion.

Front 61

Economic Torts – Prima Facie Tort – Definition

Back 61

Intentional infliction of economic harm.

But, justification is a defense, e.g., competition is fine.

Front 62

Economic Torts – Inducing breach of contract - Elements

Back 62

1) There is a contract;
2) defendant knows of contract’s existence
3) defendant attempts to persuade contractor not to go through with the contract; and
4) it works.

Front 63

Economic Torts – Inducing breach of contract – Exceptions

Back 63

It is fine to induce a breach of contract when there exists a special relationship between the persuader and the party to the contract: e.g., your dad; your lawyer; your accountant; probably clergy.

Front 64

Intellectual Property Torts That Can Be Remedied in Equity – The List of Torts

Back 64

1. Theft of a trade secret
2. Trademark infringement
3. Copyright infringement
4. Patent infringement
5. Trade liable
6. Idea theft

Front 65

Prima Facie Negligence – Elements

Back 65

1) Duty of care
2) Breach of the duty
3) Causation (legal and factual)
4) Foreseeable Harm
* Note – harm to rescuers and to fetuses need not be foreseeable

Front 66

Prima Facie Negligence – Standard of Care

Back 66

The care of a reasonably prudent person acting under similar circumstances.

* Do not consider diminished capacities of actual defendant.
* Do consider the superior knowledge of a defendant (the standard becomes a “reasonably prudent person possessed of the (particular or general) superior knowledge.”
* Do consider relevant physical disabilities (i.e., reasonable person confined to a wheelchair).

Front 67

Prima Facie Negligence – Standard of Care – Those who do not owe the normal duty of care

Back 67

1) Babies (younger than 4): no duty of care.
2) Children between 4 and 18: owe the care of a reasonable child of similar age, experience and intelligence acting under similar circumstances.
3) Professionals: owe the care of the average member of their profession practicing in a similar community.

* for general practitioners, standard is geographic community; for specialists, community is community of, e.g., neurosurgeons.
* a doctor has a duty to explain risks.

Front 68

Prima Facie Negligence – Duties of Landowners – To tresspassers

Back 68

Duty to protect from known, manmade deathtraps. Elements:
(a) artificial improvement on land;
(b) knowledge of danger;
(c) danger is hidden; and
(d) danger is very dangerous (e.g., rotten bridge over canyon).

Front 69

Prima Facie Negligence – Duties of Landowners – To licensees

Back 69

Duty to protect against major or minor, manmade or natural dangers, i.e., against all traps. Elements:
(a) Danger is concealed
(b) Danger is known to occupier

Front 70

Prima Facie Negligence – Duties of Landowners – To invitees

Back 70

Duty to protect from all reasonably knowable traps on the land (i.e., duty to inspect). Elements:
(a) danger is concealed;
(b) danger is one occupier knew about in advance, or could have discovered with a reasonable inspection.

Front 71

Prima Facie Negligence – Duties of Landowners – Duty in New York

Back 71

New York follows a significant minority position: all entrants are entitled to reasonable prudence in protection of entrants (though reasonably prudence varies according to status of entrant (trespasser, licensee, invitee)).

Front 72

Prima Facie Negligence – Duties of Land Occupiers – Ways to Discharge the Duty

Back 72

1) Fix the harm
2) Warn

Front 73

Prima Facie Negligence – Duties of Land Occupiers – Exceptions to normal duties

Back 73

* Firefighters and police officers never recover for injuries that are an inherent risk of their job

* Child trespassers: when a child trespasses on land, a child is owed the standard of reasonableness with regard to all artificial improvements on the land.
(a) The reasonably prudent person will contemplate how likely it is that children will trespass, and will adjust dangers accordingly
(b) Part of the consideration is identifying attractive nuisances.

Front 74

Prima Facie Negligence – Standard of Care – Borrowed Duties

Back 74

Statutory violations can be borrowed and turned into duty standards, making breach equal per se negligence. Can be done when:
(1) plaintiff can show she is a member of the class of persons the statute seeks to protect;
(2) the accident is in the class of harms that the statute seeks to prevent.

Front 75

Prima Facie Negligence – Standard of Care – Borrowed Duties – Exceptions to Per Se Rule for Borrowed Duties

Back 75

Violation of a borrowed duty will not be per se negligent when:
(1) compliance with the statute would be more dangerous than breach; or
(2) compliance would be impossible under the circumstances.

Reasonable prudence standard will again apply in these situations.

Front 76

Prima Facie Negligence – Standard of Care – Duties to act affirmative

Back 76

Generally, there are none. Except when:
1) you caused the danger; or
2) you have a special relationship, i.e.:
(i) Family duty to family;
(ii) Common carrier/innkeeper to patrons;
(iii) Landowner to invitee.

Front 77

Prima Facie Negligence – Breach

Back 77

* Per se (e.g., borrowed) duty: violation = breach.
* Reasonable care:
1) must a) identify with specificity the thing the plaintiff did, and b) explain why it is wrong; OR
2) claim res ipsa loquitor. Must show:
(1) accident is of a type which doesn’t normally occur in the absence of negligence; and
(2) type of accident is most plausibly caused by someone in the defendant’s position.

Front 78

Prima Facie Negligence – Causation – Elements

Back 78

1) Factual causation (but-for causation or, for each of multiple defendants, substantial factor)
2) Legal causation (proximate causation)

Front 79

Prima Facie Negligence – Factual Causation – Effect of Unascertainable Cause

Back 79

Old rule: where two causes are equally likely, the plaintiff loses.

Modern rule: burden is on defendants for whom causation is equally likely to exonerate themselves.

Front 80

Prima Facie Negligence – Legal Causation – Principle

Back 80

We think it is fair to make people pay for the foreseeable consequences of their actions. Legal causation requires proximate cause, which includes foreseeable damages.

Front 81

Prima Facie Negligence – Legal Causation – Intervening events that do not preclude recovery

Back 81

Recovery not prohibited:
1) Intervening medical neglicence
2) Intervening negligent rescues
3) Intervening forces of protection or reaction
4) Subsequent disease or accident
In general: ask why is this negligent? What am I afraid of? Then, ignore the middle part, and ask whether the thing that happened is the thing that we are afraid of.

Front 82

Prima Facie Negligence – Remedy –Damages – General Rule

Back 82

All damages suffered by the plaintiff, even if they are surprisingly great in scope: you take your plaintiff as you find her.

Front 83

Prima Facie Negligence – Remedy – Damages – Collateral Source Rule

Back 83

General rule is the “collateral source rule”: we ignore payments that a plaintiff receives from other sources in calculating damages.

New York Distinction: Damages awards are reduced by amounts received from other sources.

Front 84

Prima Facie Negligence – Remedy – Equitable Remedies – Availability and Elements

Back 84

Injunction can be negative/prohibitory or mandatory/affirmative. Can be permanent or preliminary. Most bar questions concern a permanent negative injunction.

No plaintiff can get an injunction before first establishing liability on the merits. Then need to show:
1) No adequate remedy at law
2) Protectable property interest or other protectable right (modern approach: very low bar)
3) Injunction would be enforceable

Front 85

Prima Facie Negligence – Remedy – Equitable Remedies – What constitutes “no adequate remedy at law”

Back 85

Must show that money damages are no good:
(a) Defendant has no money
(b) Harm is impossible to measure
(c) Harm is ongoing

Front 86

Prima Facie Negligence – Remedy – Equitable Remedies – Considerations for whether the injunction is enforceable

Back 86

(i) Complexity of the conduct
(ii) Required length of the injunction
(iii) Out-of-jurisdiction enforcement required?
(iv) Balance benefit to plaintiff against hardship to defendant, keeping in mind the culpability of defendant in weighing hardship against her.

Front 87

Prima Facie Negligence – Remedy – Equitable Remedies – Special defense to bar injunctive relief

Back 87

(a) Unclean hands: if the plaintiff has engaged in misconduct, that can result in a denial of injunctive relief
(b) Laches: prejudicial delay; defendant has detrimentally relied on inaction, so unfair to enjoin
(c) First amendment: (For privacy torts or defamation) courts will generally not issue injunctions on publication

Front 88

Prima Facie Negligence – Remedy – Equitable Remedies – How to get a preliminary injunction

Back 88

At a “mini-trial,” plaintiff must demonstrate likelihood of success on the merits

Front 89

Prima Facie Negligence – Affirmative defenses to negligence

Back 89

Comparative negligence
a) Defendant will try to show plaintiff’s own fault (acting unreasonably, violation of statute)
b) Jury will compare fault, and plaintiff’s recovery is reduced by percentage of plaintiffs comparative fault.

Other traditional common law defenses, no longer applied:
a) Contributory negligence
b) Assumption of risk

Front 90

No-fault insurance – Carriage requirement

Back 90

In New York, must carry $50,000 no-fault insurance

Front 91

No-fault insurance – Who it applies to

Back 91

Anyone in a “small accident”
* Everyone looks to car owner’s insurance: owner, any authorized driver, people hit

People who cannot claim no-fault insurance:
(1) Drunk drivers
(2) Car thieves
(3) Drag-racers

Front 92

No-fault insurance – When it applies to

Back 92

Basic economic loss
(1) Max $50,000 loss
(2) Calculation: medical expenses, plus 80% of lost wages up to $2000/mo., plus miscellaneous $25/day.
* Note, calculation permits no pain & suffering coverage

Serious injury
(1) Death, dismemberment, disfigurement, total and permanent loss of a bodily organ or function

* No-fault claims are portable, follow insurance

Front 93

Strict liability – Injuries caused by animals

Back 93

* Injuries caused by domesticated animals: no strict liability in connection with ownership of the dog, however, if you have knowledge of your dog’s vicious propensities and you continue to keep it as a pet, then there is strict liability

* Trespassing cattle: Livestock that leaves your property and does harm, you’re liable

* Wild animals: No matter how much care you take to restrain your tiger, you’re liable if it gets out and causes damage

Front 94

Strict Liability – Ultrahazardous Activities – Rule and Examples

Back 94

Criteria for identification (from restatement):
(1) Activity cannot be made safe
(2) Activity poses a risk of severe harm
(3) Uncommon in the community where it is conducted by this defendant
* Safety precautions are irrelevant

Big examples:
(1) Explosions
(2) Anthrax
(3) Nuclear material

Front 95

Worker’s Compensation – What you can

Back 95

It becomes the exclusive remedy, don’t have to prove fault, don’t have to (or get to) litigate.

Cover all employees in the work force except:
1) Doesn’t cover independent contractors
2) Part time household employees (i.e., babysitters, weekly housekeepers)
3) Clergy
4) In New York: teachers and other white collar workers at non-profits are not covered

* Cannot sue the employer; but you are still free to sue ANYBODY else: manufacturers of the machine that hurt you, other bosses, etc. Cannot sue your coworkers unless they acted outside the scope of their employment or they acted intentionally.

Front 96

Worker’s Compensation – What injuries are covered

Back 96

Anything, except:
1) Injury solely due to intoxication of the employee
2) If you intentionally injure yourself on the job
3) Any injury that takes place in voluntary off-duty athletic activity is not covered
4) “horseplay” – the injury takes place in connection with a frivolous activity on the job (but watch out – some horseplay is considered part of the job).

Front 97

Worker’s Compensation – What you get

Back 97

What you get
(1) 2/3 of weekly wage
(2) all out of pocket medical expenses
(3) if death, then a death benefit specified by statute + funeral expenses

* Cannot get pain and suffering

Front 98

Strict liability for products – Elements

Back 98

1) Defendant was a merchant who routinely deals in goods of this type
2) The product is defective
3) The defect must have existed when the product left the defendant’s hands
4) Plaintiff is a foreseeable user

Front 99

Strict liability for products – Who is a merchant

Back 99

* Casual sellers are not merchants
* Service providers are not merchants of items incidental to the service
* Commercial lessors are merchants, can be held strictly liable (e.g., car rental agency)
* Defendant does not have to be the merchant from whom plaintiff bought the product; no privity requirement – you can sue all the way up the chain of supply

Front 100

Strict liability for products – What is a defect

Back 100

Can show either:
(1) Manufacturing defect – if it differs from all of the others that came off the same assembly line in a way that makes it more dangerous than consumers would expect: the “consumer expectation” test.
(2) Design defect – if there is another way to build it – a hypothetical alternative design that meets three tests:
(a) It’s safer than the version marketed
(b) Must be cost-effective to produce
(c) Must be practical, i.e., must not be rendered useless or difficult to use for its primary purpose

* Design defects can also arise from lack of warning
* Defect must exist at time product left merchant’s hands (presumed for new products).

Front 101

Strict liability for products – Who may sue

Back 101

The plaintiff must be a foreseeable user, and the use must be a foreseeable use
* The bar exam trick: Many foreseeable uses of a product are actually misuses; misuse does not defeat liabilities

Front 102

Strict liability for products - Defenses to strict products liability

Back 102

Comparative fault – same as for negligence. Any plaintiff fault will be called to jury’s attention, a number is assigned and damages are reduced accordingly

Front 103

Nuisance – Definition & Points

Back 103

Interference with ability to use and enjoy land to an undue or unreasonable degree (means inconsistent land use).

Defined, not by defendant’s conduct, but by injury plaintiff has suffered.

Courts balance the equities since both parties have rights and it requires a tradeoff

Defendant’s claim that plaintiff “came to the nuisance” is not defense

Front 104

Vicarious Liability – Definition

Back 104

Someone who goes out and commits a tort (the active tort-feasor) and there’s a party that had no connection to producing the injury but has a relationship to the tort-feasor that gives rise to liability.

Front 105

Vicarious Liability – Employer-Employee

Back 105

Where an employee commits tort, employer will be liable as long as employee was acting in scope of employment.
* Intentional torts are generally outside the scope of employment.
* But, if the employee is given the authority to use force as part of the job description, then, if the employee abuses authority, employer is liable; or
* if the job creates animosity/tension/friction (e.g., repo man); or
* if the employee committing the intentional tort is acting in a misguided/overzealous effort to serve the employer’s purposes

Front 106

Vicarious Liability – Independent Contractor

Back 106

Generally no vicarious liability. Except, a land owner is liable for injuries by a contractor to an invitee.

Front 107

Vicarious Liability – Car Owner and Driver

Back 107

No vicarious liability – but, if you borrow a car to do an errand for the owner, the is an agent-principal relationship.

New York Distinction: the owner of the car is always liable for torts committed by authorized drivers. There is a presumption that anyone behind the wheel of your car is driving with permission.

Front 108

Vicarious Liability – Parents and children

Back 108

Generally, there is no vicarious liability in parents for torts of their children

New York Distinction: there is a statute in NY that provides very limited liability in parents for certain kinds of torts (but he didn’t tell what they were…)

Front 109

Vicarious Liability – Tavern Owner and Patron

Back 109

In New York, a tavern keeper who unlawfully supplies alcohol is liable for torts of the patron

Front 110

Joint Tortfeasor Liability – General Rule

Back 110

If you recover all your money from A, and A wants to get some of the money from B, a joint tortfeasor, the New York rule is the minority rule, “comparative contribution:” jury will assign percentages of fault and A can collect from B in accordance with the numbers.

Exceptions (full indemnity):
a) A vicariously liable passive party can get all of his money back from the active tortfeasor.
b) A non-manufacturer who is held strictly liable for a product can be indemnified by the manufacturer.

Front 111

Wrongful Death – Definition and Limitations

Back 111

Wrongful death is not a tort, it is a procedural device for permitting survivors to sue.
* Defendant retains all defenses against the derivative wrongful death claim that she would have had against the first-party claim.
* Recovery is limited to pecuniary loss.

Front 112

Loss of Consortium

Back 112

Whenever the victim of a tort is married, the uninjured spouse gets a cause of action in his/her own right. Three items to be compensated:
a) Loss of services
b) Loss of society
c) Loss of sex