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146 Cards in this Set
- Front
- Back
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Battery- prima facie case
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1- harmful or offensive contact
2- intent and 3- causation |
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Assault- prima facie case
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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 |
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Menacing gesture
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accompanying words can negate immediacy
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False Imprisonment - Prima Facie Case
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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 |
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Intentional Infliction of Emotional Distress
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1- An act by defendant amounting to EXTREME AND OUTRAGEOUS CONDUCT
2- Intent or recklessness; 3- Causation; and 4- Damages- severe emotional distress |
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Trespass
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physical invasion by defendant on the property of another
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Tresppass to Chattels
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1- an act by defendant that interferes with plaintiff's right of possession in a chattel
2- intent 3- causation and 4- damages |
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Conversion
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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 |
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Finder of abandoned property
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Finder will have ownership
- must have given up possession with mental state to intentionally relinquish title and control |
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Finders of lost property
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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 |
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Inter Vivos Gift
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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 |
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Gifts Causa Mortis
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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 |
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Liens
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Debt relating to the performance of services
Creditor has possession of item in question But debtor retains title to the property |
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General Lien
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Creditor has the right to retain all of the property of another as security for balance
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Special Lien
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Creditor has the right to retain specified property
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Bailments
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voluntarily turn over a piece of property to another who takes with consent for some specific purpose
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Bailment: Responsibility for things inside other things
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Normal things are considered part of the bailment, but extraordinary things aren't while in the bailee's possession
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Bailment: Safe Deposit Box
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Evverything is bailee's responsibility
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Bailment: Parking Lot
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Bailor keeps kees: not bailment
Bailee keeps keys" Bailment |
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Bailment: NY Coat Check
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Limit on dollar liability
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Bailee's responsibility
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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 |
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Affirmative defenses in intentional torts
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1- Consent
2- Self Defense 3- Arrest 4- Necessity - only property torts 5- Discipline |
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Consent
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Capacity
Sliding Scale for children Scope |
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Express Consent
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Utterance, statement by plaintiff
Exception: fraud or duress |
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Implied Consent
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Customary Practice
D's reasonable interpretation of P's objective conduct |
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Protected Privileges
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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 |
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NY Retreat
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Retreat before resorting to deadly force if it is feasible to do so
*Not in own home *Not police |
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Necessity
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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 |
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Defamation
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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 |
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Defamation Fault requirement
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Public figure: Intent or recklessness
Private figure: negligence |
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Libel
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Permanent format, P does not need to prove special damages
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Slander
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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 |
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NY Rules about Damage in Defamation
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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 |
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Affirmative Defenses for Defamation
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Consent
Truth, D bears the burden Absolute and qualified privileges Public Concern |
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Absolute and Qualified Privilege Defense to Defamation
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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 |
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Public Concern Defense to defamation
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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 |
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Privacy Torts
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Appropriation
Intrusion False Light Disclosure |
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Appropriation
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Unauthorized use by the defendant of the plaintiff's picture or name for the defendant's commercial advantage.
Neworthiness exception, commercial purposes are expectable |
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ONLY PRIVACY TORT RECOGNIZED IN NY
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Appropriation
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Intrusion
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invasion of the P's seclusion in a way that would be objectionable to an average person
*reasonable expectation of privacy *no trespass required |
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False Light
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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 |
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Disclosure
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Widespread dissemination of information about the P that would be objectionable to the average person
*Exception: newsworthiness, necessary *Truly confidential |
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Affirmative defenses to Privacy Torts
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Consent
Absolute and Qualified Privileges for False Light and disclosure ONLY |
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Economic Torts
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Fraud
Prima Facie Tort Inducing a Breach of contract theft of Trade Secrets |
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Fraud
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Misrepresentation of fact
Deliberate or reckless Intended to induce reliance Reliance Economic Damage |
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Prima Facie tort
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NY ONLY
The intentional inflictionof pecuniary harm without justification, open-ended economic tort against someone who is acting deliberately intent Harm |
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Inducing Breach of Contract
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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 |
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Theft of Trade Secrets
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P must possess a valid trade secret
D must take the trade secret by improper means |
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Valid Trade Secret
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Information that provides a business advantage
Not generally known Owner must take steps to keep information secret |
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Improper Means of taking a trade secret
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Traderous Insider: breach of trust, who initially learned of the secret legitimately, then uses at his own advantage
Industrial spy, cracks through security |
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Negligence
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Duty
Breach Cause Damage |
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Duty is owed to
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Foreseeable victims
Exception: Rescuers |
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Duty for Pre-Natal Injuries in NY ONLY
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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 |
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How much duty is owed?
Default Rule |
Reasonably prudent person acting under similar circumstances
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Reasonable Person Standard - No allowances for D's personal Characteristics Except:
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D's physical characteristics, bblind but not mentally retarded
Superior skill or knowledge |
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Reasonable child
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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 |
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Reasonable Professional
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Care of an average member of that profession acting in a similar community; customary practice for the profession sets the standard of care
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NY Duty of Informed Consent
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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 |
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Premises liability
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Possessors of real estate ow duty to entrants on the land depending on
How P got hurt Type of Entrant |
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Premises Liability: How P got hurt, D is liable for
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Static hazardous conditions
Act of D or agent |
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duty to undiscovered trespasser
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None, trespasser always looses
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dudty to discovered trespasser
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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 |
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Duty to licensee
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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 |
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Duty to invitee
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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 |
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NY duty on Premises Liability
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duty owed to all entrants regardless of how they get hurt, possessor is held to the reasonable prudence under the circumstance standard
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Firefighter's rule
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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 |
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Duty to child trespassers
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reasonable prudence under the circumstances
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The attractive nuisance doctrine
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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 |
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Satisfy premises liability duty and avoid tort liability by
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fixing the problem
give oral or written warning |
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Statutory dtiese of care
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regulation that is not legally related but applicable to a situation,
TEST: CLASS OF PERSON, CLASS OF RISK |
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Class of person class of risk
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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 |
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Duty to act affirmatively
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NONE
But, if you decide to act, must act as a reasonable and prudent person |
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Rescude of a stranger in Peril
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Pre-existing relationship
D caused the peril |
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NY GOOD SAMARITAN LAW
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only applies to certain occupational professions, training, nurse, physician, veteranarians
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Negligent infliction of emotional distress
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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 |
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NY Negligent Infliction of emotional distress
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Bystander- P must be in zone of danger
Strict close family member |
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Breach- P must
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Identify the wrongful behavior
Give a reason as to why that falls short of the standard of care |
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Res Ipsa Loquitur
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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 |
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Factual cause
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demonstration by the P of the connection between the breach and the injury
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BUT For Test
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But for the breach of the D, the P would have been fine- not available for multiple defendants
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Multiple Defendants and Merged Causes
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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 |
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Unascertainable CAUSE
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Statics andd probability
Burden of Proof- D must exonerate themselves |
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Proximate cause
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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. |
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Direct Cause probllems
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Lead instantaneously to injury, foreseeable or freakish and bizarre
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Indirect cause
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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 |
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Approach for unsettled fact patterns in proximate cause
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Why is it a breach
What am I afraid is going to happen? Is that what did happen? IF YES: proximate cause |
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Egg Shell Rule
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Take P as you find him
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No Fault insurance
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Designed to divert small stakes automobile accident cases from negligence
Mandatory, NY $50K Purchased by car owner |
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No Fault covers
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Personal injury, not property
Owner Driver Passengers Pedestrians |
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Recovery in no fault insurance
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one or 2 car accident; negligent or not
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Exclusion from no fault coverage
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Drunk driver
drag racer car theivs other fleeing felons |
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To benefit from coverage
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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 |
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NY threshold for no fault insurance
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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 |
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Negative injunction
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command not to do something
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mandatory injunction
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affirmative action to do something
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permanent injunction
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entered at the conclusion of trial, part of relief
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preliminary injunction
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before trial, to preserve status quo; requires:
Likely success on the merits Irreparable injury in the absence of a preliminary injunction |
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To receive an injunction must establish
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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 |
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Affirmative Defenses to Eqitable remedies (injunctions)
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Contributory Negligence
implied assumption of the risk Comparative negligence |
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Contributory negligence
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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 |
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Implied assumption of the risk
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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 |
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Comparative Negligence
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assigns consequence to P's failure to exercise care for his own safety
Reduce recovery, not bar |
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Pure comparative negligence
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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 |
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Partial/modified negligence
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P assigned less than 50% of fault and will have damages reduced, more than 50% at fault, gets nothing
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Strict liability causes of action
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injuries caused by animals, not domesticated but wild
Abnormally dangerous activity Consumer products |
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Liability for abnormally dangerous activities
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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 |
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Injuries caused by consumper products
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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 |
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Nuisance
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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 |
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Relief for Nuisance
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Balance the equities, compare the amount of intereference, look at D and see whether he woudl be inhibited
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Workers compensation in NY
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Statutory insurance scheme provides benefits to those injured on the job, but can't sue in tort
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Limits on workers comp
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No pain and suffering
No punitive damages |
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Disputes in workers comp
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handled by administrative action
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Coverage in workers comp
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everyone except teachers and non manual laberors at education, religious and non profits
Part time domestic and other household employees Independent contractors |
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Injuries covered under workers comp
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most but not
intoxication intentional self inflicted injury voluntary, offid ty athletic activity illegal acts ARE COVERED horesplay |
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Benefits under worksers comp
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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 |
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Vicarious liability
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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 |
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Employer/employee liability
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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 |
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Liability of hiring party over independent contractor
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No unless land possessor if contractor injures an invitee
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Liaibility of automobile owners/drivers
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Not usually unless you lend ar for an errand for you (agent)
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NY automobile liability
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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 |
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Parents liability for torts of children
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NO
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Co-defendant remedies
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Indemnification
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Indemnity
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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 |
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Contribution
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apportions the loss among those who are at fault
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Standard of Care- professional
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duty to possess and exercise the degree of knowledge and skill of other doctors in similar localities.
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Standard of care- medical
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national standard, owes a duty to exercise superior knowledge and skill possessed in specialty
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Standard of care- children
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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 |
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Standard of care- superior knowledge
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required to use that knowledge, trier of fact should take that into account
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Duty owed by a by a common carrier
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a common carrier owes a nondelegable duty to provide a safe vehicle in which to ride
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Liability of a pricnipal for tortious acts of his agent
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Generally, a principal wil not be liable for tortious acts of his agent if the agent is an independent contractor
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intentional misrepresentation - prima facie case
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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 |
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Negligent misrepresentation prima facie case
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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 |
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Assumption of risk
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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 |
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Comparative negligence and assumption of risk
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assumption of risk is a complete defense
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Duty to rescue
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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 |
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strict products liability
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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 |
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Wrongful death
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recovery is allowed only to the extent that the deceased could have recovered in a personal injury action had he lived
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Transferred Intent general rule
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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 |
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Transferred intent applies to
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assault
battery false imprisonment trespass to land trespass to chattels |
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Are incapacity, young children and mental incompetetents liable for their intentional torts?
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yes
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To establish a prima facie case of intentional tort, plaintiff must prove
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1-Act
2- Intent 3- Causation |
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Intentional Infliction of Emotional Distress- Bystander Cases
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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 |
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Trespass to Land
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1- Physical Invasion of the plaintiff's real property
2- intent 3- causation |
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Respondeat superior
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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. |
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Strict Liability: defective product, Prima facie case
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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 |
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Invasion of privacy, 4 forms
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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 |
