Ny Torts 2009

Front 1

How do you know when victim was a foreseeable victim?

Back 1

Victim was within the zone of danger

Front 2

When a doctor negligently impact the mother, and a baby is born injured, the doctor has breached its duty of care to whom?

Back 2

Child has claims

Front 3

When a doctor negligently impact the mother, and a baby is still born, the doctor has breached its duty of care to whom?

Back 3

The mother has claims, not the child

Front 4

If a doctor fails to diagnose a birth defect, mother can recover for ________ but not ___________

Back 4

1. Actual cost of care but not

2. Emotional Distress

Front 5

If a doctor botches a sterilization, the parents can collect __________.

Back 5

Nothing

Front 6

Generally what is the standard of care in a negligence case?

Back 6

A reasonable prudent person acting under similar circumstances, unless the D has relevant superior knowledge

Front 7

Are children under 4 held to the RPP rule?

Back 7

No children under 4 are legally incapable of negligence. Note that they can commit intentional torts.

Front 8

What is the duty of care for children older than 4 but younger than 18?

Back 8

A subjective standard. They have the duty of a child of similar age, experience, and intelligence acting under similar circumstances. (unless adult activity)

Front 9

What is the standard of care owed to trespassers as to activities on the property?

Back 9

Reasonable Prudent Person Standard

Front 10

What is the standard of care owed to trespassers as to conditions on the property?

Back 10

There is a duty if ...

1. Artificial Condition

2. Highly dangerous

3. Concealed or hidden from trespasser

4. Possessor knows of danger in advance

Front 11

What is a licensee?

Back 11

Enters onto the owner's property with permission but confers no benefit to the owner.

Front 12

What is the standard of care owed to a licensee as to artificial and natural conditions?

Back 12

RPP standard -- protect from all traps

1. Concealed from licensee

2. Known to the owner

Front 13

What is an invitee?

Back 13

Enters owner's property to confer economic benefit to the owner.

Front 14

What is an owner's duty to an invitee as to artificial and natural conditions?

Back 14

Owner has a duty if he knew about the hazard in advance or could have discovered the hazard with a reasonable inspection.

Front 15

What is a land owner's duty to children as as to artificial conditions?

Back 15

Must avoid foreseeable risk of harm to children caused by artificial conditions on property ...

1. Dangerous condition that owner should have known about

2. Owner knows children frequent the vicinity

3. Condition is likely to cause injury

Front 16

What is a landowner's duty to an undiscovered trespasser?

Back 16

No duty under any conditions.

Front 17

What is a landowner's duty to discovered trespasser with respect to natural conditions?

Back 17

None

Front 18

What is a landowner's duty of care as to active operations on their land?

Back 18

Duty of reasonable care except as to undiscovered trespassers (no duty)

Front 19

What is the NY approach to duty of care for a landowner?

Back 19

Always a reasonable person standard but remember "acting under the circumstances." This could mean more care to an invitee than a trespasser.

Front 20

What standard of care is owed by professionals?

Back 20

Duty of an average professional practicing in a similar community (NY and MR)

NY only -- Informed consent (must explain risks but not commonly known ones)

Front 21

What are the exceptions to the informed consent rule in NY?

Back 21

1. No duty if patient refuses info

2. No duty to disclose to incompetent

3. No duty if disclosure would cause independent harm to the patient

Front 22

Under what circumstances can an injured plaintiff bring a tort suit on top of their recovery from no fault insurance in NY?

Back 22

Must show loss greater than the legal threshold ...

1. Medical bills + lost wages + 25 days of random expenses if greater than 50k

2. Very serious injury

Front 23

What injured plaintiffs can bring a tort suit on top of their recovery from no fault insurance in NY?

Back 23

1. Anyone driving car with permission

2. Any passengers

3. Any pedestrians hit by the car

Front 24

What injured plaintiffs cannot bring a tort suit on top of their recovery from no fault insurance in NY?

Back 24

1. Drunk drivers

2. Drag Racers

3. Fleeing felons or car thieves

Front 25

A statute's more specific duty of care may replace the more general common law duty of care if ....

Back 25

1. Statute provides for a criminal penalty

2. Statute clearly defines the standard of conduct

3. Statute was designed to prevent the type of harm suffered by the plaintiff

Front 26

Under what three conditions does a person have an affirmative duty of care to act?

Back 26

1. Preexisting duty

2. Special Relationships (brother/sister - employer/employee)

3. D put the P in a position of peril

Note - courts will try to make more up

Front 27

What are the elements or res ipsa loquitur?

Back 27

1. Accident causing the injury is of a type that would normally not occur unless someone was negligent

2. The negligence is attributable to to the defendant (normally occurs because of negligence of someone in the D's position)

Front 28

What are the elements of strict liability for abnormally dangerous activities?

Back 28

1. The activity must create a foreseeable risk of serious harm even when reasonable care is exercised by all actors

2. Activity is not a matter of common usage in the community

Front 29

What is the rule for trespassing animals?

Back 29

An owner is strictly liable for reasonably foreseeable damage done by a trespass of his animals.

Front 30

When does the doctrine of transferred intent apply?

Back 30

D intends to commit an intentional tort against on person but instead ...

1. Commits a different tort against that person

2. Commits the same tort against a different person

3. Commits a different tort against a different person

Front 31

To what intentional torts does the doctrine of transferred intent apply? (FATT Bitch)

Back 31

1. False imprisonment

2. Assault

3. Trespass to land

4. Trespass to chattels

5. Battery

Front 32

What are the elements of battery?

Back 32

1. D intended to do the act

2. Harmful or offensive contact

Front 33

Does the contact need to be instantaneous for a battery?

Back 33

No

Front 34

Does the D have to use their own body to commit a battery?

Back 34

No

Front 35

For the purposes of battery a "person" includes that the victim is ________ or _______ to.

Back 35

1. Touching or

2. Connected to

Front 36

What are the elements of assault?

Back 36

1. D placed P in reasonable apprehension

2. Of an immediate battery

Front 37

The plaintiff must have _______ to be placed in "reasonable apprehension" of an imminent battery.

Back 37

Knowledge

Front 38

_________ not mere words create the immediacy necessary for assault.

Back 38

Conduct of the Defendant

Front 39

What are the elements of false imprisonment?

Back 39

1. Restraint of the plaintiff

2. In a bounded area

Front 40

In the context of false imprisonment, when will threats be enough to constitute restraint?

Back 40

Where the threats would restrain a person of average sensibilities.

Front 41

In the context of false imprisonment, when will an omission of the D be enough to constitute restraint?

Back 41

If there was a preexisting duty to facilitate the movement of the P

Front 42

In order to satisfy the restraint prong of false imprisonment, the P must have ________ of the restraint or must have been _________ by it.

Back 42

1. Known

2. Harmed

Front 43

When is the plaintiff bounded for the purposes of false imprisonment?

Back 43

Plaintiff's movement is impeded in 360 degrees.

Front 44

The area is not _________ for the purposes of false imprisonment if there is a reasonable means of escape that the P knows about or could reasonably discover.

Back 44

bounded. But that exit can't be disgusting, dangerous, or humiliating.

Front 45

What are the elements of intentional infliction of emotional distress?

Back 45

1. Outrageous conduct

2. Severe distress

Front 46

Is physical injury necessary to establish a claim for intentional infliction of emotional distress?

Back 46

No

Front 47

Is physical injury necessary to establish a claim for negligent infliction of emotional distress?

Back 47

Yes.

Front 48

If a bailee uses the object beyond the scope of the bailment, the baillee is _________.

Back 48

Strictly liable

Front 49

What degree of care must a bailee exercise generally

Back 49

Reasonable are of the object

Front 50

Where a bailee delivers the item to the wrong person, the bailee is ________.

Back 50

Strictly liable.

Front 51

What is the prima facie case for strict liability?

Back 51

1. Existence of an absolute duty to make safe

2. breach of the duty

3. Breach was actual and proximate cause

4. damage

Front 52

What are the general elements of defamation?

Back 52

1. Defamatory language

2. Of or concerning the plaintiff

3. Publication

4. Damage to P's reputation

Front 53

What are the elements of defamation where the defamation involves a matter of public concern?

Back 53

1. Defamatory language

2. Of or concerning the plaintiff

3. Publication

4. Damage to P's reputation

5. Falsity

6. Fault on part of defendant

Front 54

What are the different standards for proving fault under defamation on matters of public concern?

Back 54

Public Figure - malice (knowledge or reckless disregard)

Private Person - negligence

Front 55

Who is a public figure for the purposes of defamation?

Back 55

Person who has achieved pervasive fame or notoriety by voluntarily assuming a central role in a particular public controversy.

Front 56

Are damages available under Libel?

Back 56

Yes, damages are presumed but P can show why he should get more.

Front 57

Are damages available for slander?

Back 57

Generally have to show economic harm.

Front 58

Can a plaintiff get damages for slander if he proves slander per se?

Back 58

yes.

Front 59

What are the elements of slander per se.

Back 59

1. About P’s business or profession

2. Says P committed a crime of moral perpetude

4. Imputing unchastity to a woman

5. Saying P has a loathsome disease

Front 60

Under what circumstances will the qualified privilege to defamation apply?

Back 60

Situations where society wants to encourage candor (e.g. references, official investigations) but speaker must confine discussion to the relevant topic

Front 61

Name and define the only privacy tort recognized in NY.

Back 61

Appropriation, which is the use of P's name or image for commercial purposes without consent.

Front 62

Define intrusion.

Back 62

Tortuous invasion of someone elses' property in a way that would be objectionable to an average person (spying, eavesdropping)

Front 63

P will not have an action for Intrusion if the P did not have a _________ in the place where the alleged tort occured.

Back 63

Reasonable expectation of privacy

Front 64

Define the tort of false light.

Back 64

Widespread dissemination of major falsehood that would be objectionable to an average person

1. Does not have be defamatory

2. Can get emo damages

3. GF belief in accuracy not a defense - SL applies

Front 65

What is the tort of disclosure?

Back 65

Widespread disclosure of confidential information about P that would be objectionable to an average person

Front 66

Since inn keepers and common carriers have a higher duty of care, they may be found liable for even _______ negligence.

Back 66

slight