Ny Torts

Front 1

To establish a prima face case of intentional tory, plaintiff must prove

Back 1

1. Act by Defendant
2. Intent
A. Specific
B General
3. Causation

Front 2

Battery? (4)

Back 2

1. Harmful or offensive contact
2. To plaintiff's person
3. Intent
4. Causation

Front 3

Assault (4)

Back 3

1. An act by defendant creating a reasonable apprehension in plaintiff
2. Of immediate harmful or offensive contact to plaintiff's person
3. Intent
4. Causation

Front 4

False Imprisonment (4)

Back 4

1. Ac act or omission
2. To a bounded area
3. Intent
4 Causation

Front 5

Intentionally Infliction of Emotional Distress(4)

Back 5

1. An act of extreme and outrageous conduct
2. Intent or recklessness
3. Causation
4. Damages--severe emotional distress

Front 6

Trespass to Land (4)

Back 6

1. Physical invasion of
2. plaintiff's real property
3. Intent
4. Causation

Note Slight or trivial

Front 7

Trespass to Chattels (4)

Back 7

1. An act by defendant that interferes with plaintiff's right of possession in a chattel
2. Intent
3. Causation
4. Damages

Front 8

Conversion (4)

Back 8

1. An act by defendant that interferes with plaintiff's right of possession in a chattel
2. The interference is so serious that it warrants P to demand full value
3. Intent
4. Causation

Front 9

What is the Express Consent defense?

What are the exceptions? (3)

Back 9

Defendant is not liable if plaintiff expressly consents to defendant's conduct.

Exceptions:

(1) Mistake will undo express consent if defendant knew of and took advantage of the market
(2) Consent induced by fraud will be invalidated if it goes to an essential matter, but not a collateral matter
(3) Consent obtained by duress will be invalidated unless the duress is only threats of future action or future economic deprivation.

Front 10

What is the Implied Consent defense?

Back 10

Apparent consent is that which a reasonable person would infer from custom and usage or plaintiff's conduct

Front 11

What is Consent Implied by Law?

Back 11

When action is necessary to save a person's life or some other important interest in person or property

Front 12

Self-Defense

Back 12

When a person reasonably believes that she is being or is about to be attacked, she may use such force as is reasonably necessary to protect against injury.

Front 13

Defense of Property

Back 13

One may use reasonable force to prevent the commission of a tort against her real or personal property. A request to desist or leave must first be made unless it clearly would be futile or dangerous

Front 14

Necessity (3) (Public v. Private) (Defense to Trespass)

Back 14

A person may interfere with the real or personal property of another when it is

1) reasonably and apparently necessary to
2) avoid threatened injury from a natural or other force and
3) when the threatened injury is substantially more serious than the invasion that is undertaken to avert it.

2 types

1. Public--when the act is for the public good
2. Private--when the act is solely to benefit any person or any property from destruction or serious injury

*Under private necessity, the actor must pay for any injury he causes

Front 15

Defamation (3) If Public (5)

Back 15

1. Defamatory language of or concerning the plaintiff
2. Publication thereof by defendant to 3rd person;
3. Damage to plaintiff's reputation

If public concern

4. Falsity of the defamatory language
5. Fault

Front 16

Libel

Back 16

Libel is the written or printed publication of defamatory language. Plaintiff does not need to prove special damages and general damages are presumed.

The minority position distinguishes between libel per se and libel per quod (not defamatory on its face).

Front 17

What is Slander (4)

Back 17

Slander is spoken defamation. Plaintiff must prove special damages, unless defamation falls within slander per se categories, defamatory statement that:

1) Adversely reflect on one's conduct in a business or profession
2) One has a loathsome disease
3) One is or was guilty of a crime involving moral turpitude, or
4) A woman is unchaste

Front 18

.What is the definition of malice? (2) (as it applies to Pub. Fig.)

Back 18

1. Knowledge that the statement was false, or
2. Reckless disregard as to whether it was false

Front 19

What is the Appropriation of Plaintiff's Picture or Name?

Back 19

It is necessary to show unauthorized use of plaintiff's picture or name for defendant's commercial advantage

Front 20

What is intrusion upon plaintiff's affairs?

Back 20

1. The act of prying or intruding must be objectionable to a reasonable person.

2. An intrusion must be "private".

Front 21

What is publication of facts placing plaintiff in false light?

Back 21

"False light" exists where one attributes to plaintiff views he does not hold or actions he did not take. RP standard

Front 22

What is the Public Disclosure of Private Facts about Plaintiff?

Back 22

This wrong involves public disclosure of private information about plaintiff. The public disclosure must be ORP

Front 23

Intentional Misrepresentation (5)

Back 23

1.Affrimative Misrepresentation
2. Scienter
3. Intent
4. Actual and Justifiable reliance (causation)
5. damages

Front 24

Negligent Misrepresentation (applies only to commercial settings) (5)

Back 24

1. Misrepresentation in a business or professional capacity
2. Breach of duty toward a particular plaintiff
3. Causation
4. Justifiable reliance
5. Damages

Front 25

Malicious Prosecution(5)

Back 25

1. Institution of criminal proceedings against plaintiff
2. Termination in plaintiff's favor
3. Absence of probable cause
4. Improper purpose
5. Damages

Front 26

What is Interference w/ Business Relations? (4)

Back 26

1. Existence of a valid contractual relationship
2. D knowledge of the relationship or expectancy
3. Intentional interference
4. Damages

Front 27

What are the elements of negligence? (4)

Back 27

1. Duty
2. Breach
3. Actual and proximate cause
4. Damges

Front 28

Duty Regarding Negligent Infliction of Emotional Distress (2)

Back 28

Breached when

1) Causing a threat of physical impact that leads to emotional distress
2) Directly causing severe emotional distress that by itself is likely to result in physical symptoms

Front 29

Contributory Negligence

Back 29

Plaintiff's own negligence contributes to her injury

Front 30

Implied Assumption of Risk

Back 30

P knew of a risk of injury and voluntarily assumed it

Front 31

Pure Comparative Negligence

Back 31

P own negligence contributes to her injury

Front 32

Partial Comparative Negligence

Back 32

Plaintiff's own negligence contributes to her injury

Front 33

Strict Liability (4)

Back 33

1. Existence of an absolute duty on the part of the defendant to make safe.
2. Breach of that duty
3. The breach of the duty was the actual and proximate cause of the plaintiff's injury
4. Damage to the plaintiff's person or property

Front 34

Trespassing Animals

Back 34

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

Front 35

What are the elements to Ultrahazardous or Abnormally Dangerous Act (3)

Back 35

1. Must involve risk of serious harm
2. Must be one that cannot be performed w/o risk of serious harm
3. Activity is not commonly engaged in

Front 36

Products liability

Back 36

1 Defect
2. Existence of the defect when the product left defendant's control

Front 37

Implied warranties of Merchantability and Fitness

Back 37

1. Refers to whether the goods are of average acceptable quality and are generally fit for the ordinary purpose for which the goods are used

2. Fitness for a particular purpose, which arises when the seller knows or has reason to know the particular purpose for which the goods are required and that the buyer is relying on the seller's skill and judgment in selecting the goods

Front 38

Private Nuisance

Back 38

Private nuisance is a substantial, unreasonable interference with another private individual's use or enjoyment of property that he actually possesses or to which he has a right of immediate possession.

Front 39

What is a Public Nuisance?

Back 39

Public nuisance is an act that unreasonably interferes with the health, safety, or property rights of the community,

Front 40

What is the Shopkeeper's Privilege (defense) (3)

Back 40

a) Shopkeeper may detain suspected shoplifter w/o suffering False Imprisonment claim IF:
(1) Reasonable suspicion,
(2) Detention is carried out by reasonable means, AND
(3) Reasonable amount of time (i.e., only as long as necessary to investigate)

Front 41

What is Absolute Privilege—Can never be lost; flows from status of speaker (2)

Back 41

1) Statements made between spouses
(2) Statements made by government officials while acting within scope of official affairs
(a) Applies to all branches (judicial proceedings, legislators)
(b) Also covers lawyers during trials

Front 42

What is a Qualified Privilege—(flows from circumstances, rather than status of speaker) (3)

Back 42

(1) Socially useful occasion (e.g., letters of recommendation, conversations with police, credit reports)—Policy: We want to encourage candor in certain instances
(2) Statement must be relevant to the occasion—privilege is lost if statement was not within the scope of the privilege
(3) D must have a reasonable belief, at the time the statement was made, that the statement was true (good faith)—privilege is lost if speaker acted with malice

Front 43

What is Misappropriation of Trade Secrets (two elements)

Back 43

1. Valid trade secret
a) Defined—Information not generally known that provides a competitive advantage
b) Owner must take reasonable means to protect
2. Obtained through improper means and used for own purposes
a) D learns of secret by virtue of fiduciary or confidential relationship
b) Access obtained through criminal or unethical means

Front 44

What are the general duties that Owners owe Occupiers of Land(3)

Back 44

(i) With respect to activities being conducted on the land, owner generally has a duty to exercise reasonable care under the circumstances (BUT no duty is ever owed to undiscovered trespassers)
(ii) Owner is NEVER liable for open or obvious conditions—P expected to care for himself
(iii) There are two ways owner can satisfy his duty to P (either works):
(a) Fix or repair the condition (i.e., eliminate the problem), OR
(b) Give a warning—unknown hazard becomes a known hazard

Front 45

Undiscovered Trespassers

Back 45

NO duty owed (b/c unforeseeable)

Front 46

Discovered/Anticipated Trespassers (awareness) (4)

Back 46

(i) Must protect against:
(a) Concealed or hidden—no duty to protect against obvious conditions
(b) Artificial conditions—no duty to protect against natural conditions
(c) Known to landowner
(d) Involving risk of death or serious bodily harm—condition must be highly dangerous (no duty for minor harms)

Front 47

Licensees ("business/social guests")(2)

Back 47

(i) Must protect against:
(a) All concealed or hidden conditions (artificial AND natural; any unreasonable risk of harm)—no duty to protect against obvious conditions
(b) Known to landowner—no duty to inspect

Front 48

What is the duty of care to Invitees ("customers"—land held open to the public) (2)

Back 48

(i) Must protect against:
(a) All concealed or hidden conditions (artificial AND natural; any unreasonable risk of harm)—no duty to protect against obvious conditions
(b) About which landowner knew or should have known—duty to make reasonable inspections

Front 49

Persons Off Premises (2)

Back 49

(i) NO duty to protect against natural conditions
(ii) MUST protect against unreasonably dangerous artificial conditions or structures abutting adjacent land

Front 50

Infant Trespassers—"Attractive Nuisance Doctrine"? (6)

Back 50

(i) Owner must exercise reasonable care to protect against reasonably foreseeable harm to children caused by artificial conditions
(ii) P must show:
(a) Dangerous condition
(b) About which owner knew or should have known
(c) Owner knows or should know children frequent the area
(d) Condition is likely to cause injury (i.e., dangerous b/c of child's inability to appreciate risk)
(e) Expense of remedying situation is slight compared to magnitude of risk

Front 51

Statutory Standards of Care

Back 51

1) Specific statutory duty may replace general common law duty if ("borrow statute"):
(a) Statute provides for criminal penalty
(b) Statute clearly defines standard of conduct
(c) Class of Persons—P is within the protected class, AND
(d) Class of Risk—Statute was designed to prevent type of harm suffered
(2) If established, gives rise to finding of "negligence per se"
(3) Excuses—Don't borrow statute when:
(a) Compliance with statute would be more dangerous than violation
(b) Compliance was impossible under the circumstances (e.g., ran red light due to heart attack)

Front 52

Vicarious Liability

Back 52

A. General Points—EVEN IF D cannot be held liable on a vicarious liability basis, D may still be found liable on negligent hiring/entrustment grounds

Front 53

What is Respondeat Superior? (3)

Back 53

1. General Rule—Employers are vicariously liable for torts committed by employees within the scope of employment
2. Frolic & Detour
a) Detour—Minor departures are still w/i scope of employment—thus employer liable
b) Frolic—Significant departure are NOT w/i scope of employment—thus employer not liable (employee is "off on a frolic of his own")
3. Intentional Torts
a) General Rule—NOT w/i scope of employment, thus employer is NOT liable
b) Exceptions (three):
(1) If use of physical force is part of job description (e.g., bouncer)
(2) Jobs that generate friction (e.g., repo man)
(3) Employee is furthering business of employer (e.g., removing rowdy customers)

Front 54

Independent Contractors, what are the exceptions? (3)

Back 54

1. General Rule—NO vicarious liability
2. Big Exceptions (three):
a) Contractor is engaged in inherently dangerous activities (e.g., blasting)
b) Duty is non-delegable b/c of public policy (e.g., building fence around excavation site)
c) Landowner liable for injuries to invitees caused by contractor—TESTED

Front 55

Partners and Joint Venturers

Back 55

Each member vicariously liable for tortious conduct of others committed in scope and course of partnership affairs

Front 56

Automobile Owner/Driver

Back 56

1. General Rule—NO vicarious liability
2. Exception—If owner lends car to do errand for owner (owner may be liable on agency theory)

Front 57

Governmental Tort Immunity

Back 57

A. Government is immune from tort liability when government engages in traditional government activities involving exercise of "policy discretion" (e.g., FDA approves drug, governor delays deployment of national guard)
B. However, government CAN be sued when engaging in proprietary or ministerial activities (e.g., operating a parking lot, operating college dorms, employee driving car on government business)
C. Most states have abolished intra-family and charitable immunities

Front 58

What is Loss of Consortium? What can the spouse recover? (3)

Back 58

1. Separate cause of action for spouse of person injured by ANY tort
2. Spouse can recover:
a) Loss of services (e.g., cooking, cutting grass)
b) Loss of society/companionship
c) Loss of sex

Front 59

Wrongful Death (3)

Back 59

1. This is a procedural device, NOT a substantive claim
2. Permits surviving family members to sue tortfeasor on behalf of victim
3. Key—This is a "derivative action" (any defenses that could have been asserted against decedent can be asserted against P) (e.g., comparative negligence)

Front 60

Comparative Contribution (Majority Rule)

Back 60

1. Jury is instructed to assign each D a percentage of fault, and out-of-pocket D can seek contribution from other Ds in accordance with that allocation

Front 61

Indemnification (100% make whole) (3)

Back 61

1. Out-of-pocket D may be entitled to indemnification IF:
a) D is the "passive party" in a vicarious liability case (e.g., employer can recover from employee)
b) Distributors/resellers/merchants is entitled to indemnification from manufacturer in products liability case

Front 62

Res Ipsa Loquitur

Back 62

Refers to situations when it's assumed that a person's injury was caused by the negligent action of another party because the accident was the sort that wouldn't occur unless someone was negligent.

Front 63

Defective as Labeled

Back 63

If its condition would defeat the expectations which the reasonable person would form upon reading its label

Front 64

A claim for defamation must prove that the defendant was?

Back 64

At fault; that the
information was a false and defamatory communication of fact about the plaintiff,
published to a third person who understood it was defamatory and which, as a
result, caused harm to the plaintiff.

Front 65

Exceptions to the pecuniary loss element for defmation...

Back 65

Exceptions include allegations regarding (1) criminal activity; (2) misconduct or incompetence in plaintiff's trade or occupation; (3) sexual misconduct; and (4) plaintiff having a "loathsome" disease.

Front 66

What is respondeat superior?

Back 66

Latin for "let the master answer," a key doctrine in the law of agency, which provides that a principal
(employer) is responsible for the actions of his/her/its agent (employee) in the "course of employment."

Front 67

The private necessity privilege means that one is... (3)

Back 67

(1) is only liable for actual damages (unlike traditional trespass,
which is a dignitary tort and does not require actual damage); that he (2) is not
legally a trespasser while the danger exists and; that (3) Owner has no privilege
to "protect his property" from Peter's use until the dangerous situation has
passed.

Front 68

Good samaritan rule

Back 68

if a volunteer comes to the aid of an injured or ill person who is a stranger, the person giving the aid
owes the stranger a duty of being reasonably careful. In some circumstances negligence could result
in a claim of negligent care if the injuries or illness were made worse by the volunteer's negligence.

Front 69

The elements of intentional infliction of emotional distress are: (3)

Back 69

(1) defendant's
intentional (with purpose or knowledge to a substantial certainty) or recklessly (2)
extreme and outrageous conduct (3) causes plaintiff severe emotional distress.

Front 70

A battery is caused by

Back 70

an intentional harmful or offensive touch to the plaintiff's person or an extension thereof, without consent or privilege. The actual touching is not required to be done personally by the defendant as long as the defendant
set into motion an action with purpose or knowledge to a substantial certainty that
the offensive or harmful touching would result.

Front 71

The first was assault:

Back 71

The defendant must have the apparent present physical
ability to complete his threatened battery for the tort of assault to be complete. Words alone are not sufficient.

Front 72

Unlike ordinary negligence, the plaintiff in a legal malpractice claim must...(2)

Back 72

prove that (1) the lawyer's misconduct or lack of action caused her loss AND (2) that,
had the lawyer met the standard of care, the plaintiff would have won her claim or defense and been eligible to receive a specifically defined result.

Front 73

The doctrine of res ipsa loquitur generally cannot be applied unless (2)

Back 73

(1) the
defendant had exclusive control of the instrumentality during the relevant time
and; (2) the plaintiff shows that she was not responsible for the injury.

Front 74

What is Contributory negligence?

Back 74

a doctrine of common law that if a person was injured in part due to his/her own negligence (his/her
negligence "contributed" to the accident), the injured party would not be entitled to collect any damages (money) from another party who supposedly caused the accident.

Front 75

A directed verdict (also called Judgment as a Matter of Law) allows judgment

Back 75

if the evidence, when viewed in the light most favorable to the nonmoving party, is
such that a reasonable person/jury could not disagree. A directed verdict is entered at the close of the evidence before the matter goes to a jury.