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25 Cards in this Set
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01 Intentional Infliction of Pecuniary Harm Without Justification
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In New York, there is an additional intentional tort called "intentional infliction of pecuniary harm without justification." Elements are: (1) intent to do harm and (2) special damages. The intent requirement for this tort differs from common law intentional torts in that the intent must be to "do harm" rather than merely to perform the act that causes the harm. If the plaintiff is able to establish a traditional common law tort, the New York tort of intentional infliction of pecuniary harm is not available. Additionally, if a traditional common law tort action was available but the statute of limitations has lapsed, the New York tort of intentional infliction of pecuniary harm is not available.
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02 Retreat
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In New York, retreat is required before using deadly force unless the person (1) cannot do so safely, (2) is at home, (3) is a police officer, or (4) is an agent assisting the police.
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Under common law, it is not necessary to attempt to escape before using self-defense, even if using deadly force to prevent death or serious bodily injury
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03 Negligent Infliction of Emotional Distress
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New York rejects the bystander rule and follows the zone of danger rule.
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Traditionally, courts require that P was within the zone of danger meaning that P's emotional distress was caused by a threat of physical impact. Most courts now allow bystanders to recover if:
(1) P and the person injured are closely related (2) P was present at the scene of the injury (3) P personally observed the event |
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04 Voluntary Admission of Aid (Nurses, Physicians, Veterinarians)
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Pursuant to New York statute, nurses, physicians, or veterinarians who give aid at the scene of an accident, are exempt from liability if the aid is rendered negligently, Such persons are exempt from liability for ordinary negligence, but they remain liable for gross negligence.
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05 Duty Owed by Landowner to Occupants
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In New York, the plaintiff's classification as a trespasser, licensee, or invitee does not impact the duty owed to him. A standard of reasonable care is applied to all persons on the landowner's premises. While the classification itself does not determine the duty of care, it is relevant when determining the nature of warnings and precautions.
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06 Negligence Per Se
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In New York, a defendant's violation of a state statute is negligence per se. Violation of a regulation or local ordinance qualifies only as some evidence of negligence.
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07 Punitive Damages
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In New York, punitive damages may be awarded where the plaintiff can show gross negligence.
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Punitive damages are reserved for wanton and willful misconduct. These damages are usually provided for by a state statute. (i.e., punitive damages are not available for negligence)
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08 Plaintiff's Other Sources of Compensation
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In New York actions for personal injury, property damage, or wrongful death, courts are required to reduce the plaintiff's damages by the amount of any benefits the plaintiff received from collateral sources, including the plaintiff's insurance policy. Note that receipts from life insurance benefits, some Social Security benefits, and benefits from a lien against the plaintiff's award are not deducted from the recovered damages.
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09 Comparative Negligence
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New York is a pure comparative negligence jurisdiction. In New York, the plaintiff may recover even if the plaintiff's negligence exceeds that of the defendant. However, if a plaintiff is injured as a direct result of his own illegal conduct involving risk of physical harm, the plaintiff is not able to recover for his injuries.
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10 Failure to Use a Seatbelt as an Affirmative Defense
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In New York, failure to use a seatbelt is an additional affirmative defense. If the basis of a negligence claim is a car accident, a defendant can assert that the plaintiff failed to use a seatbelt to prove that the plaintiff did not make reasonable efforts to mitigate damages. Evidence of nonuse of a seatbelt can be used to prove damages, but not used as evidence of liability.
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11 Liber Per Se; Libel Per Quod
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New York has adopted a distinction between libel per se and libel per quod (or liber by extrinsic fact). Liber per se involves publications that are defamatory on their face. Liber per quod involves publications that are defamatory only if additional facts are proven. This is not the same distinction that separates slander per se and slander requiring proof of special harm even though the damages consequences are parallel. For liber per se, the plaintiff does not have to prove special damages while for liber per quod, the plantiff does have to prove special harm.
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12 Categories of Slander Per Se
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New York adds a fifth category of slander per se - "imputation of homosexuality."
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13 (No) Invasion of Privacy
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In New York, there is no common law tort for invasion of the right to privacy.
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14 Appropriation of Name or Picture
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While there is no common law right of privacy in New York, New York statute protects appropriation of the plaintiff's name or picture. This right extends after the plaintiff's death, but not to corporations or partnerships.
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15 Defenses to Appropriation of Name or Picture
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New York statute allows the following defenses to the codified appropriation of the plaintiff's name or picture: (1) the defendant received prior written consent, (2) a photographer may display his work unless he has received written notice of objection, and (3) goods or artistic production, including musical and literary, that the manufacturer, dealer, author, composer, or artist has sold with his name, picture, or portrait.
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16 Negligent Misrepresentation
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In New York, the defendant may be held liable to non-contractual parties who rely on the defendant's misrepresentation if (1) the defendant was aware that the statement or representation was to be used for a particular purpose, (2) there was reliance by a known party in furtherance of the particular purpose, and (3) conduct by the defendant evidences his understanding of the known party's reliance.
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Under common law, negligent misrepresentation occurs when D, in a professional capacity, makes a misrepresentation that causes P to rely upon advice or a service that results in pecuniary loss. Elements:
(1) misrepresentation (2) breach of duty (3) causation (4) justifiable reliance (5) damages In general, D is only liable for negligent misrepresentation to Ps he knew would rely on the misrepresentation. |
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17 Parents' Vicarious Liability
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In New York, parents are liable for willful and wanton intentional property torts of their minor children over the age of 10 up to $5,000.
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Under common law, certain relationships give rise to vicarious liability, including:
(1) employer-employee (2) principal-agent (3) joint partners A parent-child or bailor-bailee relationships do not typically create a special relationship for purposes of vicarious liability |
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18 Automobile Owners' Vicarious Liability
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In New York, the Permissive Use statute imposes vicarious liability on every owner of a car that gives permission to a driver and every driver is presumed to have permission. This doctrine is limited by statute and therefore, rental car companies are not held vicariously liable for the torts of customers unless the rental company was negligent or criminally liable.
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19 (No) Loss of Consortium in a Wrongful Death Action
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In New York, loss of consortium is not an actionable claim in a wrongful death action. Punitive damages are recoverable in a New York wrongful death action. In New York, the statute of limitations for a wrongful death claim is two years.
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Under common law, the victim's personal representative typically brings this action for the pecuniary injury suffered by the victim's surviving spouse or next of kin. Recoverable losses include the loss of financial support and loss of consortium. Recovery is limited to what the decedent would have recovered had he lived.
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20 Survival of Tort Actions (Actions for Harm to Intangible Interests)
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In New York, actions for harm to intangible interests survive. Examples of intangible claims are libel and slander.
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Under common law, tort actions ended upon the death of the tortfeasor or the victim-P
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21 (No) Intra-Family Immunity
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In New York, there is no intra-family tort immunity. A parent does not owe a duty to his child to exercise reasonable care in supervising the child in New York. As such, a child cannot sue his parents for negligent supervision. However, a parent does have a duty to protect third parties from injury caused by his infant child from use of dangerous instrument. If an infant child harms a third party with a dangerous instrument, the parent can be liable to the third party under negligent entrustment.
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22 (No) State or Municipality Tort Immunity (Under Some Circumstances)
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In New York, there is no state or municipality tort immunity for proprietary functions or where a special relationship exists with the state or municipality. New York has interpreted the term "special relationship" narrowly in the context of the police's duty to rescue. A special relationship exists between the police and a citizen only where the police have personally and directly promised the citizen that they will perform a certain protective act.
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Intentional Mishandling of a Corpse
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NY recognizes intentional mishandling of a corpse; it is akin to an intentional infliction of emotional distress
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Duty of Care in Regard to Fetuses
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In NY, if D commits a negligent act leading to impact on mother's body and:
(1) the baby is born with injuries - the baby will have a separate cause of action, even though it wouldn't have been a foreseeable P within the zone of danger (2) the child is born dead - the child has no claim, but mother can sue for emotional distress If a doctor misdiagnoses likelihood of birth defect - the parents are entitled to enhanced cost of care for child with disease but they do not get recovery for emotional distress. If a doctor botches a sterilization procedure and the mother becomes pregnant - no recovery. |
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Vicarious Liability - Employer-Employee
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In NY, punitive damages are not recoverable in a vicarious liability action against an employer unless:
(1) the employer was grossly negligent in hiring the employee or allowing him to continue work (2) the employee was a general manager (3) the employer authorized or ratified the tortious act |
Under the theory of respondeat superior, a principal or employer will be vicariously liable for the tortious act committed by his agent or employee if the tortious act occurred during the scope of the master-servant relationship.
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