• Shuffle
    Toggle On
    Toggle Off
  • Alphabetize
    Toggle On
    Toggle Off
  • Front First
    Toggle On
    Toggle Off
  • Both Sides
    Toggle On
    Toggle Off
  • Read
    Toggle On
    Toggle Off
Reading...
Front

How to study your flashcards.

Right/Left arrow keys: Navigate between flashcards.right arrow keyleft arrow key

Up/Down arrow keys: Flip the card between the front and back.down keyup key

H key: Show hint (3rd side).h key

A key: Read text to speech.a key

image

Play button

image

Play button

image

Progress

1/146

Click to flip

146 Cards in this Set

  • Front
  • Back
Battery- prima facie case
1- harmful or offensive contact
2- intent and
3- causation
Assault- prima facie case
1- an act by the defendant causing a reasonable apprehension in plaintiff of immediate harmful or offensive contact to plaintiff's person
2- intent by defendant to to bring about in plaintiff apprehension of that contact
3- causation
*words alone are not enough, must be coupled with conduct
Menacing gesture
accompanying words can negate immediacy
False Imprisonment - Prima Facie Case
1- Act or omission to act on defendant's part that confines or restrains plaintiff to a bounded area
-threats are sufficient
-Omission can be an act of restraint
- P must know about the restraint or be harmed by it
- Can be directed at P's property
2- intent on the part of the defendant to confine or restrain plaintiff to a bounded area and
3- causation
Intentional Infliction of Emotional Distress
1- An act by defendant amounting to EXTREME AND OUTRAGEOUS CONDUCT
2- Intent or recklessness;
3- Causation; and
4- Damages- severe emotional distress
Trespass
physical invasion by defendant on the property of another
Tresppass to Chattels
1- an act by defendant that interferes with plaintiff's right of possession in a chattel
2- intent
3- causation and
4- damages
Conversion
1- an act by the defendant that interferes with plaintiff's right of possession in a chattel
2- The interference is so serious that it warrants requiring defendant to pay the chattel's full value;
3- Intent and
4- Causation
Remedy: damages
IN NY: a bonafide purchaser of stolen goods is not considered conversion
Finder of abandoned property
Finder will have ownership
- must have given up possession with mental state to intentionally relinquish title and control
Finders of lost property
Origional owner has superior title fi they accidentally gave up possession with no intent of relinquishing title or control.
IN NY:
Less than $20: make reasonable effort to locate the owner, after 1 year if ower does not come forward, keep it
-More than $20: turn it over to the police; police hold for period depending on value; when period is up, if owner never comes forward, finder can reclaim
Inter Vivos Gift
If requirements are complete, not recoverabe:
1- donative intent
2- Valid acceptance
3-Delivery
*Check- when cashed
*3rd Party Checks- only writer can stop
*Stock Certificates- When turned over
*Donor's Agent- not delivery
*Donee's agent- complete
Gifts Causa Mortis
Must be an imminent risk of death to donor that is objectively likely to occur
Donor must die, not valid if he survives
Not valid if donoee dies first
Liens
Debt relating to the performance of services
Creditor has possession of item in question
But debtor retains title to the property
General Lien
Creditor has the right to retain all of the property of another as security for balance
Special Lien
Creditor has the right to retain specified property
Bailments
voluntarily turn over a piece of property to another who takes with consent for some specific purpose
Bailment: Responsibility for things inside other things
Normal things are considered part of the bailment, but extraordinary things aren't while in the bailee's possession
Bailment: Safe Deposit Box
Evverything is bailee's responsibility
Bailment: Parking Lot
Bailor keeps kees: not bailment
Bailee keeps keys" Bailment
Bailment: NY Coat Check
Limit on dollar liability
Bailee's responsibility
Reasonable prudence to protect property during term of bailment
*Ordinary negligence if damaged while in bailee's control
*Bailee can limit liability contractually but not entirely
Affirmative defenses in intentional torts
1- Consent
2- Self Defense
3- Arrest
4- Necessity - only property torts
5- Discipline
Consent
Capacity
Sliding Scale for children
Scope
Express Consent
Utterance, statement by plaintiff
Exception: fraud or duress
Implied Consent
Customary Practice
D's reasonable interpretation of P's objective conduct
Protected Privileges
Self Defense
Defense of 3rd Persons
Protection of Property
*Proper timing: Imminent
*Reasonable belief threat is genuine
*Amount of force limited to the amount necessary in the circumstances
NY Retreat
Retreat before resorting to deadly force if it is feasible to do so
*Not in own home
*Not police
Necessity
Property Torts Only
Public Necessity
Private Necessity:
*D is liable to pay actual or compensatory damages
*No liability for nominal or punitive damages
*Right of Sanctuary as long as emergency continues
*If a D acts out of private necessity, but danger is not to himself but P's property, NO liability
Defamation
1- Defamatory language by the defendant
2- of or concerning the plaintiff
3- published to a third person- even if third person knows truth about the statement
4- that causes damage to reputation
Defamation Fault requirement
Public figure: Intent or recklessness
Private figure: negligence
Libel
Permanent format, P does not need to prove special damages
Slander
Spoken
Per Se- P not required to prove damage
*Relating to P's business or profession
*Crime of moral turpitude
*Imputing on the chastity of a woman
*Loathsome disease
Not Per SE: P must prove economic harm
NY Rules about Damage in Defamation
Proof of damage required IF;
*Not within one of the 4 per se categories
*Defamatory impact is NOT clear on the face of the statement but requires additional evidence
Affirmative Defenses for Defamation
Consent
Truth, D bears the burden
Absolute and qualified privileges
Public Concern
Absolute and Qualified Privilege Defense to Defamation
recognized when the recipient has an interest in the information and it is reasonable for the defendant to make the publication of the statement. The privilege does not encompass the publication of irrelevant defamatory matter that the speaker does not reasonably believe to be connected with the interest entitled to protection
Spouses
Gov't official engaged in official duties
Qualified privileges- when the speech is made, social interest in encouraging candor
Public Concern Defense to defamation
1st Amendment limits the way the states can construct the defamation in some cases
2 extra elements to P's case
*Falsity
*Fault on the part of the D
Privacy Torts
Appropriation
Intrusion
False Light
Disclosure
Appropriation
Unauthorized use by the defendant of the plaintiff's picture or name for the defendant's commercial advantage.
Neworthiness exception, commercial purposes are expectable
ONLY PRIVACY TORT RECOGNIZED IN NY
Appropriation
Intrusion
invasion of the P's seclusion in a way that would be objectionable to an average person
*reasonable expectation of privacy
*no trespass required
False Light
D makes a wide spread dissemination of a major falsehood about the P that would be objectionable to an average Person
*Falsehood can be defamatory, but need not be
*No intent requirement, good faith error holds liability
Disclosure
Widespread dissemination of information about the P that would be objectionable to the average person
*Exception: newsworthiness, necessary
*Truly confidential
Affirmative defenses to Privacy Torts
Consent
Absolute and Qualified Privileges for False Light and disclosure ONLY
Economic Torts
Fraud
Prima Facie Tort
Inducing a Breach of contract
theft of Trade Secrets
Fraud
Misrepresentation of fact
Deliberate or reckless
Intended to induce reliance
Reliance
Economic Damage
Prima Facie tort
NY ONLY
The intentional inflictionof pecuniary harm without justification, open-ended economic tort against someone who is acting deliberately
intent
Harm
Inducing Breach of Contract
Contract between P and 3P
D must have knowledge of contract
D must try to encourage P to Breach
P mus breach
In some cases there is a privilege to induce a breach of contract when there is a special relationship between the D and one of the contracting parties
Theft of Trade Secrets
P must possess a valid trade secret
D must take the trade secret by improper means
Valid Trade Secret
Information that provides a business advantage
Not generally known
Owner must take steps to keep information secret
Improper Means of taking a trade secret
Traderous Insider: breach of trust, who initially learned of the secret legitimately, then uses at his own advantage
Industrial spy, cracks through security
Negligence
Duty
Breach
Cause
Damage
Duty is owed to
Foreseeable victims
Exception: Rescuers
Duty for Pre-Natal Injuries in NY ONLY
Impact on the body of a pregnant woman- If the child is born with injuries, the childd has a cause of action in his own name. Stillbirth, No separate cause of action for the child, mother will have a cause of action but not wrongful death
Doctor misdiagnosed birth defect- Parents can recover the cost of caring for the child that are in addition to the cost of raising a healthy child, economic difference
Botched sterilization- No recovery
How much duty is owed?
Default Rule
Reasonably prudent person acting under similar circumstances
Reasonable Person Standard - No allowances for D's personal Characteristics Except:
D's physical characteristics, bblind but not mentally retarded
Superior skill or knowledge
Reasonable child
Under 4, incapable of negligent acts
Held to the standard of child of similar age, experience, intellect, acting under similar circumstances
EXCEPT under 18 engaged in an adult activity
Reasonable Professional
Care of an average member of that profession acting in a similar community; customary practice for the profession sets the standard of care
NY Duty of Informed Consent
Doct'rs duty includes affirmatively explaining the risks of any proceedure
No need to disclose a commonly known risk
No need if patient declines
No need if patient is mentally incompetent
No need if disclosure would be medically harmful, but this does not meanpatient would refuse treatment if he knew information
Premises liability
Possessors of real estate ow duty to entrants on the land depending on
How P got hurt
Type of Entrant
Premises Liability: How P got hurt, D is liable for
Static hazardous conditions
Act of D or agent
duty to undiscovered trespasser
None, trespasser always looses
dudty to discovered trespasser
D knows they are there w/o permission and anticipated- Reasonably prudent standard
Duty when static dangerous condition
*Artificial in Nature
*highly dangerous
*Concealed from trespasser
*Possessor must know in advance
POSSESSOR OWES THE DISCOVERED TRESPASSER A DUTY ONLY TO PROTECT FROM KNOWN, MAN MADE DEATH TRAPS ON THE LAND
Duty to licensee
enters with permission, no commercial purpose
A possessor must protect a licensee from all known traps on the land
Harm by activities- reasonable prudence
Harm by conditions, duty owed if :
1- concealed and
2- known to d
Duty to invitee
Enters with permission for a commercial benefit to possessor or general public
A psosessor must protect an invitee from all reasonably known traps by the land
*Concealed from invitee
*Possessor should have known or could have discovered through reasonable inspection
NY duty on Premises Liability
duty owed to all entrants regardless of how they get hurt, possessor is held to the reasonable prudence under the circumstance standard
Firefighter's rule
A police officer of firefighter cannot recover in negligence for any risk that is an inherent risk of the job. Assumed risk they are compensated for
NY NARROWED: ONLY APPLICABLE AGAINST EMPLOYER OR CO-WORKERS, CAN HAVE A CASE AGAINST THE HOMEOWNER
Duty to child trespassers
reasonable prudence under the circumstances
The attractive nuisance doctrine
special duty upon owner or occupier of land in regard to children on his property:
1- there is a dangerous condition present on the land of which the owner is or should be aware
2- the owner knows or should know that young persons frequent the vicinity of this dangerous condition
3- the condition is likely to cause injury because of the child's inability to appreciate the risk and
4- the expense of remedying the situation is slight compared with the magnitude of the risk
Satisfy premises liability duty and avoid tort liability by
fixing the problem
give oral or written warning
Statutory dtiese of care
regulation that is not legally related but applicable to a situation,
TEST: CLASS OF PERSON, CLASS OF RISK
Class of person class of risk
P must deomstrate
1-he falls within the class of persons the statute seeks to protect
2- the injury is in the class of risks the statute seeks to prevent
Statute will be borrowed as standard of care, jury will be charged
EXCEPTIONS:
1- compliance is more dangerous than violation
2- compliance was impossible
Duty to act affirmatively
NONE
But, if you decide to act, must act as a reasonable and prudent person
Rescude of a stranger in Peril
Pre-existing relationship
D caused the peril
NY GOOD SAMARITAN LAW
only applies to certain occupational professions, training, nurse, physician, veteranarians
Negligent infliction of emotional distress
D MUST HAVE VIOLATED ANOTHER STANDARD OF CARE
Near Miss
Bystandar of close family member's injury
Preexisting relationship between P and D AND negligent act can foreseeably cause distress
NY Negligent Infliction of emotional distress
Bystander- P must be in zone of danger
Strict close family member
Breach- P must
Identify the wrongful behavior
Give a reason as to why that falls short of the standard of care
Res Ipsa Loquitur
The accident is one that is normally associated with negligence, probability
1- Proof that rules out a non-negligent explaination
2- Accident is ormally due to someone in the d's position
Guarantees jury consideration only, not verdict
Factual cause
demonstration by the P of the connection between the breach and the injury
BUT For Test
But for the breach of the D, the P would have been fine- not available for multiple defendants
Multiple Defendants and Merged Causes
Substantial Factor test- asks whether each breach standing alone was capable of causing the injury
IF so, laibility
If liability for both, Joint and severally liable
Unascertainable CAUSE
Statics andd probability
Burden of Proof- D must exonerate themselves
Proximate cause
the defendant is liable for all harmful results that are the normal incidents of, and within the increased risk caused by, his acts.
An indirect cause case is one where the facts indicate that a force came into mnotion after the time of defendant's negligent act and combined with the negligent act to cause injury to the plaintiff. Whether an intervening force will cut off the defendant's liability for the plaintiff's injury and be deemed superseding is determined by foreseeability.
Direct Cause probllems
Lead instantaneously to injury, foreseeable or freakish and bizarre
Indirect cause
Well settled fact patterns, d is always laible, foreseeable, fair, proximate cause for others
- intervening Medical negligence/malpractice
- Intervening negligent rescues
- Intervening reaction or protection forces
- Subsequent Disease
Approach for unsettled fact patterns in proximate cause
Why is it a breach
What am I afraid is going to happen?
Is that what did happen?
IF YES: proximate cause
Egg Shell Rule
Take P as you find him
No Fault insurance
Designed to divert small stakes automobile accident cases from negligence
Mandatory, NY $50K
Purchased by car owner
No Fault covers
Personal injury, not property
Owner
Driver
Passengers
Pedestrians
Recovery in no fault insurance
one or 2 car accident; negligent or not
Exclusion from no fault coverage
Drunk driver
drag racer
car theivs
other fleeing felons
To benefit from coverage
must demonstrate that the injuries are in excess of the statutory threshold
Minor suits to screen out of litigation has to be serious loss or lsos greater than the basic economic loss
NY threshold for no fault insurance
1- Mathematical and technical- basic economic loss, medical expenses, loss of income max $2K/mo, $25/day misc, must be higher than $20K. If yes, can sue in tort, less, no fault
2- Open ended conceptual threshold has been exceeded if serious in jury exceeded if:
death
dismemberment
significant disfigurement
serious fracture
permanent or total loss of a bodily organ or bodily function
Negative injunction
command not to do something
mandatory injunction
affirmative action to do something
permanent injunction
entered at the conclusion of trial, part of relief
preliminary injunction
before trial, to preserve status quo; requires:
Likely success on the merits
Irreparable injury in the absence of a preliminary injunction
To receive an injunction must establish
all elements of tort and
NO adequate remedy at low, money is not sufficient
Tort impinges on a property interest or protectable right
Injunction is enforceable
balance of hardships tips in favor of the P
Affirmative Defenses to Eqitable remedies (injunctions)
Contributory Negligence
implied assumption of the risk
Comparative negligence
Contributory negligence
If a P in a negligence claim has failed to exercise proper care :
Failure to act as a reasonably prudent person
for his own safety, that P will be barred from all recovery, ABOLISHED IN NY
DEFENSE: Assumption of the risk
Exception: D had last clear chance to avoid injury
Implied assumption of the risk
Conduct by P from which we infer he knows he is dealing with a negligent person and hightened chance of harm w/o a problem, abolished in nY
Absolute bar to recovery
IN NY failure to wear a seatbelt can mitigate damages
Comparative Negligence
assigns consequence to P's failure to exercise care for his own safety
Reduce recovery, not bar
Pure comparative negligence
Implied assumption of risk is usually treated as a variant of contributory negligence. If the P unreasonably assumed the risk of injury, he will be considered contributorily negligent and his damages will be reduced
go strictly by percentages jury assigned, NY USES THIS METHOD
Partial/modified negligence
P assigned less than 50% of fault and will have damages reduced, more than 50% at fault, gets nothing
Strict liability causes of action
injuries caused by animals, not domesticated but wild
Abnormally dangerous activity
Consumer products
Liability for abnormally dangerous activities
Activity must create a foreseeable risk of serious harm, even when reasonable care is exercised
Not common usage in the area where defendant conducts it
Strict liability
Injuries caused by consumper products
D must be a Merchant
Must be evidence that the product is defective, design defect, product has not been altered since it left D's hands
P making a foreseeable use of the product at the time of the injury
Comparative negligence is an affirmative defense
Nuisance
An interference with one's ability to enjoy one's own property to an unreasonable degree
D can cause by acting deliberately, carelessly, or without any fault at all, intentional, negligent, strict- factory, abnormally dangerous activity
The interference will not be characterized as substantial if it is merely the result of plaintiff's specialized use of her own property
Relief for Nuisance
Balance the equities, compare the amount of intereference, look at D and see whether he woudl be inhibited
Workers compensation in NY
Statutory insurance scheme provides benefits to those injured on the job, but can't sue in tort
Limits on workers comp
No pain and suffering
No punitive damages
Disputes in workers comp
handled by administrative action
Coverage in workers comp
everyone except teachers and non manual laberors at education, religious and non profits
Part time domestic and other household employees
Independent contractors
Injuries covered under workers comp
most but not
intoxication
intentional self inflicted injury
voluntary, offid ty athletic activity
illegal acts ARE COVERED
horesplay
Benefits under worksers comp
lost wages, 2/3 of weekly wages, no taxes
all out of pocket medical expenses
Death statutorily prescribed amount and funeral expenses
An employee is free to sue any third party
Vicarious liability
P wants to sue a 3rd party
Can arise in partnership and joint venture situations b/c each member of the partnership is liable for the tortious conduct of another partner committed in thee scope of the partnership's affairs
Employer/employee liability
employer responsible for acts of employee whiel acting within the scope of his employment
Intentional torts not covered
If force is part of job description abuse of force is within the scope of employment
misguided attempt to advance the employer's interest
Liability of hiring party over independent contractor
No unless land possessor if contractor injures an invitee
Liaibility of automobile owners/drivers
Not usually unless you lend ar for an errand for you (agent)
NY automobile liability
vicariously liable for anyone driving your car with your permission
Presumption tha tnayone behind the wheel of yoru car is driving with your permission, you have burden to prove stolen car
Parents liability for torts of children
NO
Co-defendant remedies
Indemnification
Indemnity
permits a shifting between the tortfeasors of the entire loss (the payment made to satisfy plaintiff's judgment
Available in vicarious liability situations, where one party is held liable for damages caused by another simply because of his relationship to that person
Contribution
apportions the loss among those who are at fault
Standard of Care- professional
duty to possess and exercise the degree of knowledge and skill of other doctors in similar localities.
Standard of care- medical
national standard, owes a duty to exercise superior knowledge and skill possessed in specialty
Standard of care- children
Child of similar age, education, intelligence, and experience
However, a child must conform to an adult standard of care when engaging in an activity in which usually only adults engage
Standard of care- superior knowledge
required to use that knowledge, trier of fact should take that into account
Duty owed by a by a common carrier
a common carrier owes a nondelegable duty to provide a safe vehicle in which to ride
Liability of a pricnipal for tortious acts of his agent
Generally, a principal wil not be liable for tortious acts of his agent if the agent is an independent contractor
intentional misrepresentation - prima facie case
1- misrepresentation by defendant
2- scienter- defendant's state of mind, requires plaintiff to show that defendant made the statement knowing it to be false or made with reckless disregard as to its truth or falsity
3- intent to induce plaintiff's reliance on the misrepresentation
4- causation (actual reliance on the misrepresentation)
5- justifiable reliance on the misrepresentation and
6- damages
Negligent misrepresentation prima facie case
1- a misrepresentation made by defendant in a business or professional capacity
2- breach of duty toward that particular plaintiff
3- causation
4- justifiable reliance
5- damages
Assumption of risk
a plaintiff in a negligence action may be denied recovery if he assumed the risk of any damage caused by defendant's acts.
The risk may be assumed by express agreement
Comparative negligence and assumption of risk
assumption of risk is a complete defense
Duty to rescue
As a general rule, no legal duty is imposed upon any person to affirmatively act for the benefit of others
However, one who gratuitously acts for the benefit of another, although under no duty to do so, is then under a duty to act like a reasonable person
strict products liability
commercial supplier owes a duty not to sell a product that is so defective as to be unreasonably dangerous to all foreseeable plaintiffs
P must show negligent conduct on the part of the manufacturer that led to teh supplying of a product with an unreasonably dangerous defect. The standard of care is reasonable care; failure to discover the defect when a proper inspection would have revealed it establishes the failure to exercise due care
Wrongful death
recovery is allowed only to the extent that the deceased could have recovered in a personal injury action had he lived
Transferred Intent general rule
Defendant intends to commit a tort against one perso but instead
1- commits a different tort against that person
2- commits the same tort as intended but against a different person, or
3- commits a different tort against a different person
the intent to commit a tort is transfered to the tort actually committed or the person actually injured
Transferred intent applies to
assault
battery
false imprisonment
trespass to land
trespass to chattels
Are incapacity, young children and mental incompetetents liable for their intentional torts?
yes
To establish a prima facie case of intentional tort, plaintiff must prove
1-Act
2- Intent
3- Causation
Intentional Infliction of Emotional Distress- Bystander Cases
When the defendant intentionally causes physical harm to a third person and the plaintiff suffers severe emotional distress, the plaintiff may recover by showing either teh prima facie case elements of emotional distress or that
1- present when the injury occurred
2- close relative of the injured person and
3- defendant knew facts 1 and 2
Trespass to Land
1- Physical Invasion of the plaintiff's real property
2- intent
3- causation
Respondeat superior
A form of vicarious liability
If a tortfeasor has gone off on a frolic of his own, he is no longer acting within the scope of the partnership and the other partners will not be liable.
However, a minor deviation from the partnership activity will not take it outside of the scope of the partnership's affairs.
Strict Liability: defective product, Prima facie case
1- a strict duty owed by a commercial supplier- a casual seller who is not in the business of manfacturing, distributing, or selling the product does not owe a strict duty to subsequent purchasers
2- production or sale of a defective product
3- actual and proximate cause
4- damages
DEFENSE- Assumption of the risk- P must have known of the risk and voluntarily assumed it
Invasion of privacy, 4 forms
1- Appropriation of the plaintiff's picture or name for the defendant's commercial advantage
2- Intrusion upon plaintiff's affairs or seclusion;
3- publication of facts that place the plaintiff in a false light and
4- public disclosure of private facts about plaintiff