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152 Cards in this Set
- Front
- Back
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What is the Prima Facie Case for ALL Intentional Torts?
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1. Act by D - a volitional movement
2. Intent - Specific or General 3. Causation - result legally caused by D's act or something set in motion by him. Must be a substantial factor. |
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Intent - General v. Specific
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Specific Intent - goal is to bring about specific consequences.
General Intent - actor knows with substantial certainty that the consequences will result. |
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Transferred Intent
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When D intents to commit a tort against one person but - 1. commits a different tort against that person 2. commits the same tort against another 3. commits a different tort against a different person - the intent to commit the tort to one transfers to the injured party.
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Limitations on Use of Transferred Intent
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1. Assault
2. Battery 3. False Imprisonment 4. Trespass to Land 5. Trespass to Chattels |
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Torts Battery - Prima Facie Case
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1. Harmful or offensive contact
- Julie Standard - direct or indirect contact - Striking v. set in motion 2. To P's person - P or anything connect to P 3. Intent 4. Causation |
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Torts Assault - Prima Facie Case
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1. Act by D creating reasonable apprehension in P
- apprehension = knowledge not fear 2. Of immediate harmful or offensive contact 3. Intent 4. Causation |
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Torts Assault - Apparent Ability, Effect of Words, Time frame
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Apparent Ability - D has apparent ability to commit a battery, P's knowledge can negate
Effect of Words - words alone cannot be assault AND have ability to negate Immediacy - threat of battery must be immediate. Threat of later harm is ineffective |
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False Imprisonment - Prima Facie Case
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1. Act or ommission by D that confines or restrains P
2. To a bounded area 3. Intent 4. Causation |
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False Imprisonment - Sufficient vs. Insufficient Methods of Confinement or Restraint
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Sufficient - physical barriers, physical forece, threats of force, failure to release and invalid use of legal authority.
Insufficient - moral pressure and future threats |
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False Imprisonment - Time of Confinement, Awareness of Confinement, What is a Bounded area
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Time - irrelevant how short
Awareness - must know of confinement or be harmed by it Bounded Area - freedom of movement limited in all directions - no reasonable means of escape known to Plaintiff. |
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Intentional Infliction of Emotional Distress - Prima Facie Case
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1. Act by D amounting to extreme or outrageous conduct
2. Intentional or RECKLESSNESS 3. Causation 4. Damages - severe emotional distress - more outrageous the conduct, the less the proof of damages |
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IIED - What is Extreme and Outrageous Conduct?
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Transcends all bounds of decency. Conduct that is not normally outrageous may become so if:
1. continuous in nature 2. certain type of P: children, elderly, pregnant (torts baby), super-sensitive adults if sensitivities are known to D 3. Committed by certain types of D: common carries and innkeepers liable for "gross insults" 4. Racial, religious, ethnic or sexual minorities if specific derogatory epithets are used. |
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IIED - Causation in Bystander Cases
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When D intentionally causes harm to 3rd person and P suffers IIED, P may recover by showing either:
Prima face case of IIED OR P was present when injury occurred, close relative of injured person and D knew 1 and 2 NY Distinction - P MUST be in zone of danger. |
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Trespass to Land - Prima Facie Case
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1. Physical invasion - must be person or object (intangible object is case for Nuisance)
2. of P's real property - air and subterranean for reasonable distance 3. Intent - intend to enter that particular piece of land, does not need to know it belongs to another 4. Causation (Note: P is anyone in actual or constructive possession of land) |
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Trespass to Chattels - Prima Facie Case
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1. Act by D that interferes with P's right of possession in a chattel.
2. Intent 3. Causation 4. Damages |
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Trespass to Chattel - two types of interference and damages
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two types of interference - directly damaging the chattel or a depriving P of lawful right to possession of chattel.
damages - actual damages are required - not necessarily to chattel but at least to possessory right. |
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Conversion - prima facie case
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1. Act by D that interferes with P's right to possession
- include theft, wrongful transfer, wrongful detention and substantially changing, severely damaging or misusing a chattel. 2. so serious that it warrants requiring D to pay chattels full value - The longer the withholding period and more extensive the use, more likely it is to be conversion. 3. Intent 4. Causation (NY Distinction: purchaser of stolen goods is not a converter.) |
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Conversion - subject matter, potential plaintiffs, remedies
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Subject matter - tangible personal property and intangibles reduced to physical form (promissory note)
Potential P's - those with possession or immediate right ot possession Remedies - damages (FMV at time of conversion) or Possession (replevin) |
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Defenses to Intentional Torts
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Consent, Self-Defense, Defense of Others, Defense of Property and Privilege of Arrest
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Defense to Intentional Torts - Consent types, Capacity required, exceeding consent given
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Consent Types - Express (actual) consent, Implied Consent
Capacity Requires - people without capacity cannot consent - incompetents, drunks and very young kids Exceeding Consent Given - D may be liable |
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Defense to Intentional Torts - Express Consent, Exceptions,
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D not liable if P expressly consents to D's conduct.
Exceptions: 1. mistake IF D knew of and took advantage of mistake 2. consent induced by fraud if it goes to essential matter 3. consent obtained by duress will be invalidated unless is future action or future economic deprivation. |
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Defense to Intentional Torts - Implied Consent
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Apparent consent - that which Julie would infer from custom and usage or P's conduct - ex. normal contacts in body contact sport, subway bumping
Consent implied by law - necessary to save a person's life or some other important interest in person or property |
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Defense to Intentional Torts - Self-Defense, Defense of Others and Defense of Property - Three questions
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1. Is privilege available? - tort must now be or about to be committed. Already committed does not count.
2. Is a mistake permissible as to whether the tort being defended against (battery, trespass, etc) is actually being committed? 3. Was proper amount of force used? |
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Defense to Intentional Torts - Self-Defense
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-When a person reasonably believes that she is being or about to be attacked, she may used such force as is reasonably necessary to protect against injury.
-Notes: NY Distinction & modern trend imposes duty to retreat before using deadly force if can be done safely (unless in own home), generally not available to initial aggressor, can extend to 3rd party injuries caused when actor defending self although may be liable if they intentionally hurt 3rd party while protecting self. - Mistake as to existence of danger is allowed. - Only reasonable force necessary to prevent the harm is allowed, otherwise defense is lost. |
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Defense to Intentional Torts - Defense of Others
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1. When available? When actor reasonably believes that the other person could have used force to defend himself.
Mistake is allowed as to whether the other person is being attacked or has a right to defend himself is permitted. How much force? As much as the person could have used in self defense if the injury was threatened to him. |
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Defense to Intentional Torts - Defense of Property
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When available? reasonable force allowed to prevent commission of a tort against her real or personal property. Request to desist or leave must first be made unless it would be futile or dangerous.
Does not apply once tort has been committed; however can use force in hot pursuit of another who has tortiously dispossed owner of her chattels because the tort is still being committed. NOT AVAILABLE AGAINST ONE WITH A PRIVILEGE - necessity, recapture of chattels, etc. will supercede defense of property. Mistake? Reasonable mistake allowed at to whether an intrustion occured or whether a request to desist is required. Not allowed in privilege assessment unless entry conducted so as to lead D to reasonably believe it is not privileged (such as refusing to say what necessity is). How much force? reasonable but may not use force causing death or serious bodily harm unless invasion of property also entails a seriosu threat of bodily harm. |
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Defense to Intentional Torts - Reentry onto Land
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No self help allowed. There are summary procedures for recovering possession of real property.
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Defense of Intentional Torts - Recapture of Chattels
General Rule |
basic rule: when another's possession began lawfully, one may only use peaceful means. Force may be used to recapture chattel only when in hot pursuit of one who obtained wrongfully.
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Defense of Intentional Torts - Recapture of Chattels
When available? |
Timely demand required unless clearly futile or dangerous.
Recovery only from Wrongdoer or 3rd party who knows or should have known chattels were tortiously obtained. Cannot use against innocent 3rd party. Mistake allowed: No but shopkeepers may have privilege to detain for reasonable period of time individuals whom they reasonably believe shoplifted. May force be used? Reasonable force not sufficient to cause death or serious bodily harm. |
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Defense of Intentional Torts - Recapture of Chattels
Entry onto Land to Remove Chattel - wrongdoers land |
On wrongdoers land: owner privileged to enter onto land and reclaim at reasonable time in a reasonable manner after first making a demand for their return.
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Defense of Intentional Torts - Recapture of Chattels
Entry onto Land to Remove Chattel - On Land of Innocent Party |
reasonable time in a peaceful manner when landowner given notice of presence of chattel and refuses to return it. Chattel owner liable for any actual damage caused by entry.
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Defense of Intentional Torts - Recapture of Chattels
Entry onto Land to Remove Chattel - On Land through Owner's Fault |
If chattels are on land of anther through the owner's fault (negligently letting cattle wander), there is no privilege to enter on land. Must use legal process.
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Defense to Intentional Torts - Privilege of Arrest
Invasion of Land, Subsequent Misconduct, Mistake |
Invasion of land - privilege of arrest carries with it privilege to enter another's land to arrest
Subsequent Misconduct - Although arrest may be privileged, actor may still be liable for subsequent misconduct (eg - failing to bring arrested party before a magistrate, unduly detaining party in jail). Mistake - Misdemeanor - privileged for breach of peace and if action occurs in front of defendant. (Cops get broader privilege.) - Felony - Cop may make reasonable mistake. Citizens may make reasonable mistake regarding identity of felon but not whether one occurred. |
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Defense to Intentional Torts - Necessity
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Only for property torts.
A person may interfere with real or personal property of another when it is reasonably and apparently necessary to avoid threatened injury from a natural or other force and when threatened injury is more serious than the invasion undertaken to avert it. Two types of necessity: Public - act for the public good Private - when act is solely to benefit a limited number of people. Under private, actor must pay for any injuries caused unless act was to benefit owner. |
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Defense to Intentional Torts - Discipline
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Parent or teacher may use reasonable force in disciplining children.
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Defamation - common law and constitutional elements
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common law:
- defamatory language - of or concerning P - Publication by D to 3rd party - damages to P's reputation Constitutional requirements: if it involves a matter of public concern, must also prove: - falsity of defamatory language - fault on the part of the defendant (Note: on common law, truth is a defense) |
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Defamation - defamatory language, Inducement and Innuendo, Who can be P
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language tending to adversely affect one's reputation. Statement of opinion is actionable only if it appears to be based on specific facts and express allegation of those facts would be defamatory.
Inducement and Innuendo - if not defamatory on its face, P may plead additional facts as inducement to establish innuendo. Living Person Requirement - Living person or business. Deceased is not eligible. |
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Defamation - Of or Concerning Plaintiff
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P must establish that Julie would understand defamatory statement refers to P.
Colloquium - If not explicitly about P, extrinsic evidence may be offered to establish statement is about P. |
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Defamation - Group Defamation
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If about all members of small group, each member may establish statement is about them by alleging group membership. (Everyone wins!)
If a large group, no one wins! If about some members of small group, P can recover if Julie would view statement as referring to P. |
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Defamation - Publication
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Communication of the defamation to someone other than P, either intentionally or negligently. Intent to publish and not intent to defame is what is required.
Each repetition is a separate publication but mass media is treated as one publication. |
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Defamation - liability
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Primary publishers are liable to the same extent as the author or speaker.
One who repeats is liable on same general basis as the primary publisher even if they state the source or make it clear that they do not believe the statement. Secondary publisher: One selling the paper or playing a tape is liable only if they know of the defamatory content. |
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Defamation - Damage to P's Rep - libel and slander
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Libel - written or printed. P does not need to prove that she suffered special damages. General damages are presumed. (Minority distinguishes between libel per se and libel per quod (not defamatory on its face)
Slander - spoken. P must prove special damages unless it falls under slander per se. NOTE: radio and TV broadcast treated as libel, not slander. |
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Defamation - Slander per se categories
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- adversely reflect on one's conduct in a business or profession
- one has a lothesome disease - guilty of a crime involving moral turpitude - a woman is unchaste |
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Defamation - Fault on D's Part - Public Figure
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If public figure or official, malice must be proved.
Malice - knowledge statement is false or reckless disregard for the truth. Deliberately altering a quotation may constitute malice of alteration causes a material change in meaning. Public figure - pervasive fame or notoriety or by voluntarily assuming a central role in a particular public controversy. |
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Defamation - Fault on D's Part - Private Person
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Only negligence regarding falsity must be proved if statement involves a matter of "public concern."
Where D is negligent, only "actual injury" damages are recoverable. Where malice is found, damages may be presumed and punitive damages allowed. |
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Defenses to Defamation - list
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Consent, truth, absolute privilege, qualified privilege
(Mitigating factors - eg. no malice, retraction, anger of speaker provoked by P - considered for damages but are not defenses to liability.) |
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Defenses to Defamation - Consent, Truth
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Consent - Complete defense. Intentional tort consent rules apply.
Truth - where P does not need to prove falsity, D may prove truth as a complete defense. |
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Defenses to Defamation - Absolute Privilege
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Can never be lost.
Applies to remarks made: - during judicial proceedings - legislators during proceedings - federal executive officials - "compelled" broadcasts - between spouses |
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What is the only privacy tort available in NY?
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Appropriation!
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Defenses to Defamation - Qualified Privilege
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Can be lost through abuse.
Sometimes speaker may have qualified privilege for: - reports of official proceedings - statements in interest of publisher (defense of one's actions, property or reputation) - statements in interest of recipient - statements in common interest of publisher and recipient May be lost if not within scope of privilege or if spoken with malice. D bears burden of proving privilege exists. |
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Invasion of Right to Privacy - Appropriation of P's Pictures or Name
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Unauthorized use of P's picture or name for D's commercial advantage.
Liability is generally limited to advertisements or promotions of products or services. Mere economic benefit to D (not in connection with promoting a product or service) by itself is not sufficient. |
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Invasion of Right to Privacy - Intrusion on P's Affairs or Seclusion
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Prying or intruding that is objectionable to Julie.
Thing into which intrusion took place must be private. Photo's in public places not actionable. |
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Invasion of Right to Privacy - Publication of Facts Placing P in False Light
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Where one gives P views he does not hold or actions he does not take. Must be objectionable to Julie under the circumstances.
There must be publicity. 1st Amend. limitation - if in public interest, P must prove malice. |
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Invasion of Right to Privacy - Public Disclosure of Private Facts about P
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Public disclosure of private info about P that would be objectionable to Julie of ordinary sensibilities.
Matters of public record are not sufficient. Liability can attach even if true. |
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Invasion of Right to Privacy - Elements
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1. branch of wrongdoing
2. Causation - proximate causation 3. Damages - Emotional distress and mental anguish are sufficient. Special damages are not needed. 4. Defenses - consent and defamation privilege defenses. Note: Personal right - does not extend to members of family, survive death and is not assignable. |
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Prima Facie Tort
NY Distinction |
Intentional infliction of pecuniary harm without justification.
- There must be an intent to do harm - There must be harm |
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Intentional Misrepresentation aka Fraud, Deceit - Prima Facie case
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1. Affirmative misrepresentation of material fact. Silence generally not enough.
- Note: No duty to disclose and opinion not actionable unless rendered by someone with superior skill in the area. 2. Scienter - D knew or believed it was false or there was no basis 3. Intent to induce P to act or refrain from acting in reliance upon misrepresentation. 4. Causation - actual reliance 5. Justifiable reliance on facts, not opinion. 6. Damages - Actual pecuniary loss. |
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Negligent Misrepresentation - prima facie case
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1. Misrepresentation by D in a business or professional capacity.
2. Breach of duty towards particular P 3. Causation 4. Justifiable reliance 5. Damages Generally confined to commercial setting and liability attaches if reliance by particular P could be contemplated. |
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Interference with Business Relations - Prima Facie case
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1. existence of a valid contractual relationship between P and 3rd party OR a valid business expectancy of P
2. D's knowledge of the relationship or expectancy 3. Intentional interference by D inducing breach or termination of relationship or expectancy 4. Damages |
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Interference with Business Relations -
Privileges |
D's actions privileged where it is a proper attempt to obtain business for itself or to protect it's interests.
More likely to be found if D: 1. interfered only with P's prospective business rather than existing contracts 2. Used commercially acceptable means rather than illegal or threatening tactics. 3. Is a competitor of P seeking same prospective customers 4. Has a financial interest in or responsibility for the 3rd party, or is responding to their request for business advice. |
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Wrongful Institution of Legal Proceedings - Malicious Prosecution - Prima facie case
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1. institution of criminal proceeding against P.
2. termination in P's favor 3. Absence of probable cause for prior proceedings - insufficient facts for Julie to believe P was guilty or D did not believe P was guilty. 4. Improper purpose - motive other than bringing a person to justice 5. Damages DA immune from liability. Most jurisdictions cover civil cases. |
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Wrongful InstituAbuse of Process - Prima facie case
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1. wrongful use of process for ulterior purpose
2. definite act or threat against P in order to accomplish ulterior purpose. |
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Negligence - Prima Facie case
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1. Duty
2. Breach 3. Actual and Proximate Cause of injury 4. Damage (Duty note: D must conform to a specific standard of conduct for protection of P against unreasonable risk of injury) |
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Negligence - Duty of Care - Two general questions to always ask
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1. Was P foreseeable?
2. What is the applicable standard of care? |
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Negligence - Duty of Care - Foreseeable/Unforeseeable P's
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Only owe duty to foreseeable P's.
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Negligence - Duty of Care
What if P breaches duty to P1 and also causes injury to another (possibly unforeseeable) P? |
Two outcomes:
Majority View: Foreseeable Zone of Danger - P2 can only recover if Julie would have foreseen a risk of injury to her under the circumstances Minority: Everyone is Foreseeable - P2 may establish existence of duty extending from D to her by showing D has breached duty to P1. |
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Negligence - Duty of Care - Rescuers
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Rescuer is a foreseeable P where D negligently put himself or 3rd person in peril. Danger invites rescue.
Firefighters rule - FF and PO may be barred from recovering for injuries caused by risk of rescue. NY Distinction - FF rule only applies to coworkers and employers |
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Negligence - Duty of Care - Prenatal Injuries
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Duty of care is owed to viable fetus.
Failure to diagnose a congenital defect or properly perform a contraceptive procedure: child may not recover for "wrongful life" but parents may recover in a "wrongful birth" or "wrongful pregnancy" action for additional medical expenses and for pain and suffering from labor. Ordinary child rearing expenses, cannot be recovered. |
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Negligence - Duty of Care - Prenatal Injuries
NY Distinctions |
Negligent impact on the body of a pregnant woman
- If child is born with injury, then the baby has a cause of action in its own name. - If the baby is born dead, no recovery. MD misdiagnosis birth defects - Can recover for the economic difference between raising a healthy child and the birth defected child. - Parents CANNOT recover emotional damages. MD botches pregnancy deterrent (vasectomy, etc.) - No recovery |
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Negligence - Duty of Care - Intended Beneficiaries of Economic Transactions
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A 3rd party for whose economic benefit a legal or business transaction was made may be a foreseeable P.
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Negligence - Duty of Care - Standard of Care
What is the standard of care and what does it mean? |
Julie aka Reasonable Person standard
Objective standard - one's conduct measured against what the average person would do. Mental deficiencies and inexperience are not taken into account. Julie has same physical characteristics as D - remember, D is expected to know and respect their limitations. |
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Negligence - Duty of Care - Standards of Care
Professionals |
Professional or someone with special occupational skills is required to possess the knowledge and skill of a member of the profession or occupation in good standing in similar communities.
Medical specialists held to national standard of care. Doc has duty to disclose risk of treatment to enable a patient to give informed consent. |
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Negligence - Duty of Care - Standards of Care
Children |
- Held to standard of child of like age, education, intelligence and experience.
- This is a subjective test. - Child under 4 usually without capacity to be negligent. - Children engaged in adult activities (eg. driving) must conform to an adult standard. |
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Negligence - Duty of Care - Standards of Care
Common Carriers and Innkeepers |
Very high degree of care - liable for slight negligence.
However, P must be a passenger or guest. |
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Negligence - Duty of Care - Standards of Care
Automobile Driver to Guest |
Ordinary duty of care. In a few guest statute states, one is liable to nonpaying passengers only for reckless tortious conduct.
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Negligence - Duty of Care - Standards of Care - Bailment Duties
Duties Owed by Bailor |
For gratuitous bailment, the bailor must inform of known, dangerous defects in the chattel. For a bailment for hire, the bailor must inform of chattel defects of which he is or should be aware.
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Negligence - Duty of Care - Standards of Care - Bailment Duties
Duties Owed by Bailee |
The bailee's standard of care depends on who benefits from the bailment:
1. for a sole benefit of the bailor bailment, - low standard of care 2. for sole benefit of bailee bailment - high standard of care 3. mutual benefit bailment, there is an ordinary care standard |
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Negligence - Duty of Care - Standards of Care
Emergency Situations |
D must act as a reasonable person would under the same emergency circumstances. Emergency is not considered if it is D's own making.
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Negligence - Duty of Care - Standards of Care - Owners and/or Occupiers of Land
In general |
Extent of liability of owners and/or occupiers of land (and those in privity with owner/occupier) depends on where the injury occurred and on the status of the P.
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Negligence - Duty of Care - Standards of Care - Owners and/or Occupiers of Land
Duty of Possessor to Those Off Premises |
- No duty to protect one off the premises from natural conditions on the premises.
- However, there is a duty for unreasonably dangerous artificial conditions or structures abutting adjacent land. - Also, one must carry on activities on property so as to avoid unreasonable risk of harm to others outside the property. - Exam fave: in urban areas, owner/occupier is liable for damages caused off premises by trees on the premises. |
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Negligence - Duty of Care - Standards of Care - Owners and/or Occupiers of Land
Duty of Possessor to Those on Premises - Multistate |
Depends on P's Status on Land - trespasser, licensee or invitee
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Negligence - Duty of Care - Standards of Care - Owners and/or Occupiers of Land
Duty to Trespassers - Multistate |
- No duty to an undiscovered trespasser.
- Discovered or anticipated trespassers - Landowner must: - warn of or make safe concealed, unsafe, artificial conditions known to the landowner involving risk of death or serious bodily harm - use reasonable care in exercise of "active operations" on the property. - No duty owed for natural conditions or less dangerous artificial conditions. - Easement and license holders owe a duty of reasonable care to trespassers. |
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Negligence - Duty of Care - Standards of Care - Owners and/or Occupiers of Land
Attractive Nuisance Doctrine - Multistate |
- Duty to exercise ordinary care to avoid a reasonably foreseeable risk of harm to children caused by artificial conditions to his property.
- P must show: -- dangerous condition on land owner is or should be aware of -- owner knows or should know children frequent the vicinity -- condition is likely to cause injury (ie - dangerous b/c child's inability to appreciate the risk) -- expense of remedying the situation is slight compared with the magnitude of the risk. (Note: child does not have to be attracted to land by the dangerous condition.) |
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Negligence - Duty of Care - Standards of Care - Owners and/or Occupiers of Land
Duty Owed to Licensees - multistate |
One who enters with possessors permission for his own purpose or business rather than possessor's benefit. Also social guests.
Duty to: - warn of dangerous conditions known to owner that create unreasonable risk of harm and licensee is unlikely to discover. - exercise reasonable care in conduct of "active operations" on property. No duty to inspect or repair. |
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Negligence - Duty of Care - Standards of Care - Owners and/or Occupiers of Land
Duty Owed to Invitees |
Entrance onto land by invite of landowner for business purposes or members of the public for a purpose for which land is held open to public.
Duty is same as to licensees PLUS must make reasonable inspections to discover non-obvious dangerous conditions and make them safe. - One loses invitee status if they exceed the scope of invitation. |
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Negligence - Duty of Care - Standards of Care - Owners and/or Occupiers of Land
Duty Owner to Users of Recreational Land |
Landowner who permits general public use of his land for recreational purposes without charging a fee is not liable for injuries suffered by a recreational user unless landowner willfully and maliciously failed to guard against or warn of a dangerous condition or activity.
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Negligence - Duty of Care - Standards of Care - Duties of Lessor and Lessee of Realty
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- lessee has a general duty to maintain the premises.
- lessor must warn of existing defects of which he is aware or has reason to know and which he knows lessee is not likely to discover on a reasonable inspection. - If lessor covenants to repair, he is liable for unreasonably dangerous condition. If lessor volunteers to repair and does so negligently, he is liable. - Note: if guest of tenant injured, landlord and/or tenant may be liable. |
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Negligence - Duty of Care - Standards of Care - Owners and/or Occupiers of Land
Duties of Vendor of Realty |
Vendor must disclose to vendee concealed, unreasonably dangerous conditions of which vendor knows or has reason to know, and which he knows the vendee is not likely to discover on a reasonable inspection.
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Negligence - Duty of Care - Statutory Standards of Care
When does it control? |
Statutes specific duty of care may replace common law duty if:
1. statute provides for a criminal penalty 2. statute clearly defines the standard of conduct 3. P is within the protected class 4. statute was designed to prevent the type of harm suffered by P |
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Negligence - Duty of Care - Statutory Standards of Care
Excuse for Violation and Effect of Violation or Compliance |
Violation of some statutes may be excused when compliance would cause more danger than violation or where compliance is beyond D's control.
An unexcused statutory violation is negligence per se and establishes conclusive presumption of duty and breach of duty. Compliance does not establish due care. |
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Negligence - Duty of Care - Standards of Care - Owners and/or Occupiers of Land
NY Standard |
Does away of all this and applies the plain vanilla standard - Acting with the amount of care that a reasonably prudent person under similar circumstances.
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Negligence - Duty of Care - Duty Regarding Negligent Infliction of Emotional Distress
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Duty to avoid causing ED is breached when D creates a foreseeable risk of physical injury to P, either by:
1. causing a threat of physical impact that leads to ED OR 2. directly causing severe ED that by itself is likely to result in physical symptoms (limited to cases where a duty arises from a special relationship between P and D). (Note: can be tacked on with physical injury claims.) |
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Negligence - Duty of Care - Negligent Infliction of Emotional Distress
Zone of Danger Requirement and Bystander's Distress from Seeing Injury to Another |
Z of D - P's distress is caused by threat of physical impact to her, most courts require P be within "zone of danger" to recover for ED.
Bystander's Distress - most courts allow bystandar outside ZoD to recover from D's neg. injury of another so long as: - P and injured are closely related, P was present at the scene and P observed or perceived the injury |
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Negligence - Duty of Care - Negligent Infliction of Emotional Distress
Physical Symptoms Requirement |
P can recover in most jurisdictions only if D's conduct cause some physical symptoms from the distress.
Two cases where physical symptoms are not required: erroneous report of a relative's death and a mishandling of a relative's corpse. |
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Negligence - Duty of Care - Affirmative Duties to Act, exceptions
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generally one does not have a legal duty to act. Exceptions:
- Assumption of Duty by Acting (one you act, you must use Julie care) - Peril Due to D's Conduct (gotta help somebody you placed in danger) - Special Relationship Between Parties (parent-child, etc) (Common carriers, shopkeepers, innkeepers and customers) - Duty to Control 3rd Persons (only if one has actual ability and authority to control a person's actions and knows or should know person is likely to commit acts that would require use of this control. |
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Breach of Duty - General
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When D falls short of the level required by applicable standard of care owed to P.
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Breach of Duty - Two of Three types - Custom or Usage and Violation of Statute
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1. Custom or Usage
- may be used to establish care but does not control the question whether conduct is negligent. Entire industry could be negligent. 2. Violation of Statute - Negligence per se if duty owed to P and breach are established by law. Still must show causation and damages. |
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Breach of Duty - Res Ipsa Loquitur
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- "the thing speaks for itself"
- Requires P to show that: 1. accident of that type would not normally occur unless someone was negligent AND 2. Negligence was attributable to D (this type of accident ordinarily happens bc of neg of someone in D's position) - This can often be shown by showing instrumentality causing injury was in exclusive control of D and that P was free of fault. |
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Breach of Duty - Res Ipsa Loquitur
Effect of Res Ipsa |
P has made a prima facie case and no directed verdict can be issued for D. D can still win if no neg. is inferred by trier of fact.
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Negligence - Causation
General |
P must show D's action was the actual and proximate cause of his injuries.
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Negligence - Causation - Actual Cause tests
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But For test
Substantial Factor test Alternative Causes Approach |
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Negligence - Causation
But For test |
Injury would not have occurred but for the act. Test applies where several acts (each insufficient on its own) combine to cause the injury.
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Negligence - Causation
Joint Causes |
Substantial Factor test - where several cause but any one alone would have been sufficient to cause the injury, D's conduct is cause in fact if it was substantial factor in causing injury.
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Negligence - Causation
Alternative Causes Approach |
Two acts, only one of which causes injury but it is not known which one. Burden shifts to D's who each must show that their neg is not the actual cause.
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Causation - Proximate Cause - General
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AKA Legal Cause - a limitation of liability for unforeseeable or unusual circumstances.
generally, a D is liable for all harmful results that are the normal result of and within the increased risk caused by his acts. This is the foreseeability test. |
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Causation - Proximate Cause - Liability in Direct Cause Cases
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where there is an uninterrupted chain of events from the negligent act to P's injury, D is liable for all foreseeable harmful results, regardless of unusual manner or timing. D is not liable for unforeseeable harmful results not within the risk created by D's negligence.
- most harmful results will be deemed foreseeable in direct cause cases. |
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Causation - Proximate Cause - Liability in Indirect Cause Cases
General |
An affirmative intervening force (eg. act of 3rd person, act of God) comes into motion after D's negligence and combines with it to cause P's injury.
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Causation - Proximate Cause - Liability in Indirect Cause Cases
Foreseeable Results Caused By Foreseeable Intervening Forces - D Liable |
D is liable where his neg. caused a foreseeable harmful response or reaction from a dependent intervening force or created a foreseeable risk that an independent intervening force would harm P.
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Causation - Proximate Cause - Liability in Indirect Cause Cases
Foreseeable Results Caused By Foreseeable Intervening Forces - Common Dependent Intervening Forces |
These are almost always foreseeable:
1. subsequent med mal 2. neg. of rescuers 3. efforts to protect the person or property of oneself or another 4. injuries caused by another "reacting" to D's actions 5. subsequent diseases caused by P's weakened condition. 6. Subsequent accident substantially caused by original injury (ex. slip and fall on ice due to having to walk with a cane bc of D). |
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Causation - Proximate Cause - Liability in Indirect Cause Cases
Foreseeable Results Caused By Foreseeable Intervening Forces - Independent Intervening Forces |
Independent intervening forces that are not a natural response or reaction to the sit created by D's conduct may be foreseeable if D's neg. increased risk of harm from these forces.
These include: neg. acts of 3rd persons, crimes and intentional torts of 3rd persons and acts of God. |
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Causation - Proximate Cause - Liability in Indirect Cause Cases
Foreseeable Results Caused By Foreseeable Intervening Forces - When is D usually liable? |
D is liable where his neg. increased the risk of a foreseeable harmful result and that result is produced by an unforeseeable intervening force.
Does not apply when unforeseeable intervening force was a crime or intentional tort of a 3rd person. |
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Causation - Proximate Cause - Liability in Indirect Cause Cases
Unforeseeable Results Caused By Foreseeable Intervening Forces - When is D not liable? |
In the rare case where a totally unforeseeable result was cause d by a foreseeable intervening force, most courts hold D not liable.
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Causation - Proximate Cause - Liability in Indirect Cause Cases
Unforeseeable Results Caused By Unforeseeable Intervening Forces - When is D not liable? |
Intervening forces that produce unforeseeable results are generally deemed unforeseeable and SUPERSEDING. Superseding forces break the causal connection between D's initial negligent act and P's ultimate injury, relieving D of liability.
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Causation - Proximate Cause - Liability in Indirect Cause Cases
Summary - For. Res by Unfor. IF, Unfor. Res. by For IF, Unfor. Res. b Unfor IF |
For. Results by Unfor. IF - usually liable unless IF is criminal act
Unfor. Results by For. IF - Rare. not liable Unfor. Results by Unfor. IF - not liable |
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Damages - Personal Injury
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P is to be compensated for all his damages, both special and general. Remember the eggshell skull rule.
Compensation |
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Damages - Property Damage
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Cost of repair or if property is nearly destroyed, the FMV at the time of the accident.
Compensation |
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Damages - Punitive Damages
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If D's conduct is "wanton and willful," reckless or malicious.
Punishment |
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Damages - Nonrecoverable Items
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interest from date of DAMAGE in PI action and attorney's fees
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Damages - Duty to Mitigate
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In all cases, P has a duty to take reasonable stops to mitigate damages.
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Damages - Collateral Source Rule
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Damages are not reduced simply because P receives benefits from another source.
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Defenses to Negligence - Contributory Negligence
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Neg. on part of P that contributes to her injuries. Standard of care is same as ordinary neg. Completely bar P's recovery.
NY DOES NOT HAVE CONTRIBUTORY NEGLIGENCE |
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Defenses to Negligence - Contributory Negligence - NOT IN NY
As Defense to D's Violation of Statute |
Can be used unless statute was designed to protect this class of P from their incapacity and lack of judgment.
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Defense to Negligence - Contributory Negligence - NOT IN NY
Defense to Intentional Torts |
Not a defense to intentional torts
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Defense to Negligence - Contributory Negligence - Last Clear Chance exception - NOT IN NY
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Permits P to recover despite her contributory negligence. Under this rule, person with last clear chance to avoid an accident who fails to do so is liable for negligence.
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Defense to Negligence - Contributory Negligence - Imputed Contributory Negligence
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Contributory Negligence of 3rd party will be imputed to P only when relationship between 3rd party and P is such that the court could find P vicariously liable for 3rd party's negligence.
Yes: employer-employee, partner, joint venturer. No: husband-wife, parent-child, owner-driver. |
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Defense of Negligence - Assumption of Risk - General
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P denied recovery if she assumed risk of damage caused by D's act. P must have known of risk and voluntarily proceeded in the face of the risk.
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Defense of Negligence - Implied Assumption of Risk
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NOT IN NY but failure to wear a seatbelt can mitigate damages.
Knowledge is implied where risk is one the average person would clearly appreciate. P has NOT assumed the risk when there is no available alternative to proceeding in the face of the risk or in fraud, force or emergency. Common carriers and public utilities may not limit liability by disclaimer and members of a class protected by statute will not be deemed to have assumed any risk. |
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Defense of Negligence - Assumption of Risk - No Defense to Intentional Torts
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Not a defense to intentional torts but is a defense to wanton and willful misconduct.
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Defense of Negligence - Comparative Negligence - general and two forms
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P's neg is not a complete bar to recovery. Damages are reduced according to apportionment of fault.
Two forms: partial - P barred recovery if more at fault than D. pure - P recovers portion they are not at fault for. MBE: Pure unless otherwise noted. NY is PURE |
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Strict Liability - Prima Face case
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1. existence of absolute duty on D to make safe.
2. breach 3. actual and proximate cause 4. damages |
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Strict Liability - Trespassing animals
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Owner is strictly liable for reasonably foreseeable damage done by a trespass of his animals.
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Strict Liability - Animals - Personal Injuries
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Wild Animals - strict liability to licensees and invitees for injuries caused by wild animals so long as P did nothing to bring about the injury.
Domestic Animals - No strict liability unless D had knowledge of particular animal's dangerous propensities that are not common to the species. Trespassers - strict liability not imposed in favor of trespassers in absence of owners neg. |
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Strict Liability - Abnormally Dangerous Activities - define
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activity is abnormally dangerous when:
1. activity must create a foreseeable risk of serious harm even when reasonable care is exercised by all actors. 2. activity is not in common usage in the community. REASONABLE CARE DOES NOT MATTER FOR ABNORMALLY DANGEROUS ACTIVITIES. |
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Products Liability - Theories of Liability
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1. intent
2. negligence 3. strict liability 4. implied warranties of merchantability and fitness for a particular purpose 5. Representation theories (express warranties and misrepresentation) Strict liability is easiest to prove. |
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Products Liability - Common elements - basic info
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to find liability under any products liability theory, you must show:
- a defect - existence of a defect when the product left D's control |
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Products Liability - Types of Defects
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Manufacturing Defects - if product emerges from manufacturing different and more dangerous than products made properly.
Design Defects - when all products are the same but have dangerous propensities. Inadequate Warnings - Manu. fails to give adequate warnings as to risks involved in using product. Danger must not be apparent to users. |
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Products Liability - Proving a Defect
Manufacturing Defect |
P must show that product failed to perform safely as an ordinary consumer would expect. D must anticipate reasonable misuse.
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Products Liability - Proving a Defect
Design Defect |
P usually must show that D could have made the product safer without serious impact on price or utility.
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Products Liability - Proving a Defect
Government Safety Standards |
Product's noncompliance with gov't safety standards establishes that it is defective while compliance is evidence (not conclusive) that the product is not defective.
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Products Liability - Proving a Defect
Scientifically unknowable risks |
D will not be held liable for dangers not foreseeable at the time of marketing.
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Products Liability - Proving a Defect
Unavoidably Unsafe Products |
Manu. will not be held liable for some dangerous products if the danger is apparent and there is no safer way to make the product.
ex. knives |
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Products Liability - Existence of Defect When Product Left D's Control
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Defect must have existed when product left D's control. Will be inferred if products moved through normal channels of distribution.
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Products Liability - Based on Intent
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D liable to anyone injured by unsafe product if D intended the consequences or know that they were substantially certain to occur.
Who can sue? - anyone injured Damages - compensatory and punitive Defenses - intentional torts defenses |
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Products Liability - Based on Negligence
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same as normal neg:
duty, breach, actual and proximate cause, damages Duty to who/who can sue: any foreseeable P - users, consumers, bystanders Who's liable? commercial suppliers - manu., wholsr, retail. Breach: negligent conduct leading to the supplying of a defective product. - proof of neg: standard neg. Res ipsa counts too. - Liability of Retail. & Whlsrs: can cure their duty through a cursory inspection. Causation: Unless intermediary's conduct exceeds ordinary foreseeable negligence. Nature of damages recoverable: must show PI or property damage Defenses: Same as negligence action |
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Products Liability - Liability Based on Strict Tort Liability
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Prima facie case:
1. strict duty owed by a commercial supplier of a product 2. breach of that duty 3. actual and proximate cause 4. damages Who can sue? users, consumers, bystanders - product must reach P without substantial alteration - only applies to products Who is liable? commercial suppliers. casual sellers are not. Breach: P must show product is defective and the defect makes the product unreasonably dangerous. Retailers may be liable even w/o opportunity to inspect product. Causation: - actual cause - defect existed when it left D's hands. If defect difficult to trace, P can rely on an inference that this type of product failure ordinarily would occur only as a result of a product defect. - Proximate Cause: same as in negligence cases Damages: physical injury or property damage must be shown. Defenses: In contrib states, assumption of the risk is a defense. Comparative states will apply their compar. neg. rules. Disclaimers: irrelevant |
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Product Liability - Implied Warranties of Merchantability and Fitness for a particular purpose
General |
Merch - the goods are of average acceptable quality and generally fit for the ordinary purpose for for which goods are used.
Fitness - seller knows or has rtk particular purpose for which goods are required and buyer is relying on sellers skill and judgment in selecting the goods. |
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Product Liability - Implied Warranties of Merchantability and Fitness for a particular purpose
Who can sue? What constitutes breach? Damages? |
Who: Buyer, family, household, guests, bailees and leasees
Breach: product does not live up to either standard Damages: PI, property damage, economic loss |
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Product Liability - Implied Warranties of Merchantability and Fitness for a particular purpose
Defenses / Disclaimers |
Defenses: assumption of risk (using while knowing of breach of warranty), contributory negligence (same as in strict liability cases). Failure to give notice of breach is a defense under UCC.
Disclaimers: not effective for PI, upheld for economic loss |
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Representation theories - Express Warranties
what? Who can sue? Breach? Causation? Damages? Defense? Disclaimers? |
any affirmation of fact or promise concerning goods becomes part of basis of bargain.
Consumer, user, bystander can sue as long as buyer relied on representation when buying Breach - did not live up to warranty Causation, Damages, Defenses - same as implied warranties Disclaimers - valid only in rare case it is consistent with warranty |
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Representation theories - Misrepresentation of Fact
what? Reliance? Breach? Causation? Damages? Defense? Disclaimers? |
statement was a material fact concerning quality or uses of goods (mere puffery insufficient) AND seller intended to induce reliance by buyer in a particular transaction.
Reliance must be justifiable. Actual cause shown by reliance. Prox cause and damages are same as for strict liability. Defenses: assumption of risk NOT valid. Contrib. negl same as in strict liability unless D committed intentional misrepresentation. |
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Survival of Tort Actions
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Cause of one's action survives the death of the party or parties.
Applies to actions on torts to property and personal injury. Torts to intangible personal interest (eg.appropriation, defamation, invasion of right to privacy, malicious prosecution) expire upon death. |
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Wrongful Death
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Recovery by spouse and next of kin for pecuniary injury resulting from vic's death.
Vic's creditors have no claim against amount awarded. Recovery is allowed only to the extent vic could have recovered in an action if he had lived. |
