Tort3

Front 1

what's Duty regarding negligent infliction of emotional distress?

Back 1

Duty to avoid causing emotional distress

Front 2

when does Duty regarding negligent infliction of emotional distress breached?

Back 2

breached when D creates a foreseeable risk of physical injury to P either by
(a) causing a threat of physical impact that leads to emotional distress or
(b) directly causing severe emotional distress that by itself is likely to result in physical symptoms.

Front 3

does negligent infliction of emotional distress require Physical injury or subsequent physical manifestations of the distress?is there exception?

Back 3

yes.emotional distress then physical symptom (e.g. heart attack, miscarriage); AND
Note: two cases in which a physical injury is not required: an erroneous report of a relative’s death; and a mishandling of a relative’s corpse.

Front 4

what's the other requirement for Duty regarding negligent infliction of emotional distress besides physical injury?what's an example?

Back 4

(b) Near miss requirement (zone of danger)
passengers on airplane with drunk pilot)

Front 5

what's the The bystander distress claim in intentional infliction?

Back 5

(a) Unpleasant emotion is not FEAR, but it is rather SADNESS, grief
(b) The distressed P must show that he was physically present and observed a negligent injury.
(c) Intentional infliction – P bystander must be present when negligent injury occurs & P a close relative of the injured person, & D must know these facts

Front 6

what's the bystander distress claim in negligence?

Back 6

(a) Unpleasant emotion is not FEAR, but it is rather SADNESS, grief
(b) The distressed P must show that he was physically present and observed a negligent injury.
(d) Negligent infliction – P bystander must be within “zone of danger” created by D’s negligent conduct

Front 7

what's ny distinction for negligent infliction? (very narrow)

Back 7

(a) Immediate family member (parents, children, not aunt); and
- If a doctor mismanages a pregnancy, and it results in a miscarriage or stillbirth, the mother can recover for emotional distress (relaxation of law here)
(b) In “zone of danger” (almost gets creamed himself

Front 8

what's the Intentional infliction of emotional distres's requirement?

Back 8

requires that D was deliberate & outrageous

Front 9

what's the Negligent infliction of emotional distress requirement?

Back 9

requires that D was careless

Front 10

what's the cause and damage requirement for intentional or negligent infliction of emotional distress?

Back 10

in intentional Defendant’s conduct must cause severe emotional distress. in negligent, Defendant’s conduct generally must cause tangible physical injury (e.g., miscarriage)

Front 11

how to determine breach of duty? assert theory.

Back 11

proves it with evidence (e.g., & “here, P would allege that the breach was… the failure to nail down the loose board on the deck/driving while intoxicated”)
a. Custom or usage
b. Violation of statute

Front 12

what's Res ipsa loquitur ?

Back 12

a doctrine used by P’s who cannot tell us precisely what D did that was wrong

Front 13

what's the base for " Res ipsa loquitur " and two part tests?

Back 13

this rule is based on probability.
a. Accident occurred is of a type which does not normally occur in the absence of negligence – all about probability, reasoning backward from an outcome. [or normally associated with the negligence.]
b. Accident ordinarily happens by a person in D’s position (D had exclusive control, e.g., the instrumentality causing injury was in exclusive control of

Front 14

what does causation need to take about in essay?

Back 14

– on essays, need to talk about BOTH (first factual, & then legal causation)

Front 15

is that a factual cause ?

Back 15

no,THE factual cause

Front 16

what's But-for test ?

Back 16

builds on the breach by showing that but for the breach, P wouldn’t be injured

Front 17

how would defendant defeat but for test?

Back 17

D will try to negate factual causation arguing “but for doesn’t apply, because even if D had been careful, P still would’ve sustained its injuries”

Front 18

what's Merged causation (substantial factor test) ?

Back 18

substantial factor test asks whether each D contributed to the disaster in a substantial way; if so, we hold them jointly liable

Front 19

what's Simultaneous event?

Back 19

(only one of which is liable) – true cause is unascertainable

Front 20

in unascertainable causation, what's the burden of proof?

Back 20

(b) Shift burden of proof to D to exonerate themselves by preponderance of evidence – if each D can’t, they are jointly liable

Front 21

what's Foreseeability test?

Back 21

only for foreseeable consequences of their carelessness

Front 22

what's Proximate Cause ?

Back 22

fair for someone to pay because consequences were foreseeable

Front 23

how to analyse proximate cause ?

Back 23

consider whether the consequences are what your worried about

Front 24

what's Direct Cause Case?

Back 24

an uninterrupted chain of events from the negligent act to P’s injury

Front 25

what's the effect of Intervening causation”?

Back 25

if intervening force is foreseeable, D will be held liable

Front 26

what are the 4 established fact pattern that d liable for indirect case?

Back 26

(a) Intervening medical negligence
(b) Intervening negligent rescue
(c) Intervening protection or reaction forces:
(d) Subsequent accident or disease

Front 27

in intervening medical negligence, does doctor remains liable?

Back 27

yes.there will be joint liability here)

Front 28

how to analysis proximate cause?

Back 28

d. Look at the breach and ask “Why is this breach?” Just look at the final outcome. If the final outcome is what you were afraid of, it is foreseeable.

Front 29

at the end of your analysis, if you find negligent foreseeable, what do you say?

Back 29

you say “The breach was the proximate cause of P’s injuries”

Front 30

what's the eggshell skull doctrine?

Back 30

foreseeability of extent of harm irrelevant.
once P establishes all the other elements of a tort, D liable for ALL damages no matter how great in scope, even if it is surprising broader than you can imagine. Applies to ALL torts, not just negligence. You take your P as you find him.

Front 31

what's Punitive damages?

Back 31

maybe in gross negligence, wanton, willful, reckless, malicious

Front 32

who has the Duty to mitigate?

Back 32

P has a duty to take reasonable steps to mitigate damages

Front 33

what's the damage for property?

Back 33

reasonable cost of repair, or, fair market value if property is nearly destroyed

Front 34

what's NON-recoverable items?

Back 34

interest from date of damage in personal injury case, & attorney’s fees

Front 35

what's Collateral source rule?

Back 35

damages not reduced just because P received benefits from other sources

Front 36

in ny， is there collateral source rule?

Back 36

In all actions, reduce P’s damage award by amount of any benefits from collateral sources

Front 37

is there defense for intentional tort?

Back 37

1. NO defense in intentional torts

Front 38

In Comparative negligence, what does d must show?

Back 38

D must show that P is guilty of some fault, defined as his failure to exercise the relevant degree of care for his own safety (reasonable prudence

Front 39

what's pure comparative fault?

Back 39

Jury weighs the fault and assigns % numbers. P’s damage award reduced by percentage of P’s fault. Thus, even if P’s fault amounts to 90%, P can still get some damages.

Front 40

what's ny comparative fault?

Back 40

Pure comparative fault, BUT no recovery if P commits a serious crime

Front 41

what's Modified/partial comparative fault ?

Back 41

i) P’s fault is less than 50% reduces recovery, but (ii) P’s fault above 50% then absolute bars recovery by P.

Front 42

what's the liability for Trespassing cattle?

Back 42

strict liability for foreseeable damages

Front 43

what's the liability for Wild animals?

Back 43

if you keep wild animals, strict liability

Front 44

what's the liability for Domesticated animals ?

Back 44

general rule NO strict liability, UNLESS, you know the dog has vicious propensities, strict liability

Front 45

what's Ultrahazardous activities, 3 elements.

Back 45

a. Activity can’t be made sufficient safe given the existing technology
b. Activity poses the risk of severe harm – if something goes wrong, it’ll be a catastrophe; and
c. Activity is uncommon in the community where it is being conducted

Front 46

what's the Claim for products-liability?

Back 46

can sue multiple parties based on different causes of action (i.e. intent, negligence, strict liability, breach of warranty (fitness, merchantability, contractual), fraud/misrepresentation, intentional claim (battery)) – MAKE SURE YOU KNOW WHICH CLAIM IS BEING TESTED and only choose that. (MULTI-STATE)

Front 47

who can sue Strict Liability?

Back 47

Any consumer, user, or bystander may have standing to sue;

Front 48

for claims based on negligence, how can retailers and wholesalers can easily get away?

Back 48

they can discharge of their duty by cursory inspection.

Front 49

under negligence/strict liability, what are recoverable?

Back 49

personal injury and property damage (no economic loss) are recoverable

Front 50

under implied warranties theory, what are recoverable?

Back 50

pure economic loss can be recovered.

Front 51

what are the available defense for product liability?

Back 51

assumption of risk (all), contributory negligence ([contributory] negligence), unreasonable misuse (strict liability, implied warranties, failure to notice), fault (comparative negligence).

Front 52

when are fault use in available product liability defense?

Back 52

comparative negligence

Front 53

what's the statute of limitation for product liability, negligence and warranty?

Back 53

334, from the date of sale.

Front 54

what's the strict liability requirements in product liability?

Back 54

(i) D is a merchant
(ii) Product is defective
(iii) Defect existed when the product left D’s control
(iv) The use of the product by P is foreseeable by D
(v) Actual and proximate cause of the damages

Front 55

is casual seller merchant?

Back 55

no, ebayer, garage sale, etc.; no strict liability

Front 56

is service providers who have items incidental to the service, a merchant?

Back 56

NOT merchant of items incidental to the service (goods collateral to the service, e.g., restaurant and chair, )

Front 57

is commercial lessors merchant?

Back 57

YES. merchants

Front 58

does privity needed for merchant to be liable ?

Back 58

no.Any merchant in the chain of distribution can be liable (regardless of privity – no privity is required)

Front 59

what's a product defective?

Back 59

(a) Manufacturing defect
(b) Design defect

Front 60

what's Manufacturing defect?

Back 60

P’s product differs from all the other products that came off the same assembly line in a way that makes it more dangerous than consumers would expect

Front 61

does D’s precautions relevant for manufacturing defect?

Back 61

nosafety precautions DO NOT count. No matter what precautions you made, and how superb you quality control system is.

Front 62

what does p has to prove in design defect?

Back 62

P must prove there was a better hypothetical alternative design (HAD)

Front 63

what does HAD need to be?

Back 63

(i) safer, (ii) cost-effective (economical – just a little more expensive or the same cost), & (iii) practical
(can’t interfere with the primary purpose or make the product difficult to use

Front 64

what 's an example of the product design?

Back 64

instructions & warnings are elements of the product design. Product can’t be made safer at a reasonable cost and the risk is not obvious to the consumer, so lack of a warning is design defect because a warning is safer, cost-effective, and practical

Front 65

If product is brand new, and purchased through normal channels, what's the result in a product liability case?

Back 65

it is assumed that the defect existed when it left the D. Difficult for P who tries to demonstrate manufacturing defect if product is used or sold through non-normal channels

Front 66

what's the requirement for The use of the product by P is foreseeable by D?

Back 66

must be customary/intended use, not necessarily proper use. (i.e., you stand on a chair to reach something. Although that is not the intended use of the chair, it is still a foreseeable use

Front 67

when p suffers only economic loss in product liability case, what does most state do?

Back 67

most courts don’t extend strict products liability to cases in which P suffers only economic losses, when not accompanied by physical harm to P

Front 68

Does Product liability exist in cases related to the unavoidable unsafe products?

Back 68

no

Front 69

what's Nuisance?

Back 69

interference with your ability to use and enjoy your land to an unreasonable degree

Front 70

does d need to act with negligence, prudence, recklessness to be liable for nuisance?

Back 70

no.Sounds like strict liability but can read differently

Front 71

what's private nuisance?

Back 71

disturbance that (i) substantially AND (ii) unreasonably interferes with another private individual’s use or enjoyment of property

Front 72

what's the balancing test for private nuisance?

Back 72

interest v. equity→ the severity of the inflicted injury must outweigh the utility of D’s conduct. The court may take into account that every person is entitled to use his own land in a reasonable way, considering the neighborhood, land values, and existence of any alternative courses of conduct open to D.

Front 73

what's the Standard for substantial harm in private nuisance?

Back 73

whether disturbance is offensive to a normal person in community

Front 74

what's the difference between trespass and nuisance?

Back 74

Trespass (interference with possession) – Nuisance (interference with use/enjoyment

Front 75

what's Public nuisance?

Back 75

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

Front 76

in multistate, Car owner /driver of a car, is there vicarious liability?

Back 76

no, unless Driver is the owner’s agent

Front 77

in ny, what's the car owner 's liability?

Back 77

Owner vicariously liable for any driver with his permission even if the driver is not owner’s agent. This rule is trumped by federal rules in case of car renting business. Anyone driving your cat is presumed to be an authorized driver→burden of proof is on the owner to show otherwise

Front 78

In multistate, is there vicarious liability for parent and children?

Back 78

no

Front 79

what's ny distinction for parent and children vicarious liability?

Back 79

allow limited recovery (5K) for willful & intentional property torts of their minor children over age 10

Front 80

before using vicarious liability, what 's the first you need to ask?

Back 80

whether negligence applies

Front 81

a child got the loaded gun of his parents, which was placed on their coffee table and killed a neighbor, is the parent vicarious liable?

Back 81

directly liable for negligence, no need to go to vicarious liability.

Front 82

what's Indemnification?

Back 82

allows shifting the entire loss

Front 83

what's Vicarious liability for indemnification?

Back 83

out-of-pocket D allowed indemnification from active tortfeasor

Front 84

what's indemnification for strict product- liability?

Back 84

non-manufacturing D’s can get indemnification from manufacturer

Front 85

what's Loss of Consortium?

Back 85

if victim of (any) tort is a married person, the uninjured spouse gets a separate cause of action in his/her name to recover for 3 elements of damage

Front 86

what's the loss of consortium 's damage?

Back 86

1. Loss of services (cooking, cleaning, etc.)
2. Loss of society (lost his best friend, etc.)
3. Loss of sex

Front 87

what's the right for Finder of Personal Property?

Back 87

rights depend on whether property is Abandoned or Lost property

Front 88

what's Abandon and what's the owner's right?

Back 88

==> owner gives up possession with intention to relinquish title and control
− Finder is the lawful owner when he finds the abandoned property and takes possession

Front 89

what's lost property? what's the owner's right for lost property?

Back 89

owner accidentally parts with possession but no intention to relinquish title or control
a. True owner has superior rights
b. If property value under $20 – finder must make a reasonable effort to locate the finder; wait 1 year then may keep if owner doesn’t show up
c. If property value over $20 – finder must turn it over to the police, who must hold onto it for a specified statutory period of time; if owner doesn’t show up in that time, the finder can return & take possession

Front 90

for gifts made while you are alive, what are the 3 elements?

Back 90

a. Donative intent
b. Acceptance by recipient/donee
c. Valid delivery

Front 91

if Donee affirmatively rejects a gift, can he ask for it later?

Back 91

yes

Front 92

what's Valid delivery?

Back 92

– either actual property or symbolic (e.g. title to car), either the actual personal property is handed over, or something representative of the item is handed over (e.g., the car keys are handed over)

Front 93

when is the delivery for Donor’s checks?

Back 93

delivery is only complete when the check is cashed or negotiated (So Donor can stop payment if it hasn’t been cashed/negotiated)

Front 94

what's the delivery time for 3rd party checks?

Back 94

delivery is complete when you hand it over (donor can’t stop payment)

Front 95

when is the delivery for Stock certificates?

Back 95

delivery is complete when you hand over the certificate [in trust, you must actually record the new title.

Front 96

what's lien?

Back 96

right to possess & retain some item of personal property that has been improved, repaired or enhanced in value, until the person claiming or owning the property satisfies the improvement, repair, or enhancement.

Front 97

what's General lien?

Back 97

Granted in favor of an agent who has a bunch of property and can retain all that property for a lump sum due

Front 98

does releasing some property release the lien on the rest of the items in general lien?

Back 98

no

Front 99

what's special lien?

Back 99

Attaches to one unique item that has had one unique service performed on it.

Front 100

if one give up physical possession of special lien, do they have a lien on the item?

Back 100

no,they do have a contract action

Front 101

what's the 3 elements that arise from a lien?

Back 101

a. Debt has arisen from service performed
b. Debtor has formal title to the item
c. Creditor has possession

Front 102

what's Bailments?

Back 102

giving somebody possession of personal property for some particular purpose

Front 103

what's the bailee's duty and obligation?

Back 103

bailee has an obligation to take care of the property, & his losing the property or allowing it to get damaged is a source of liability

Front 104

what's the Things inside things in bailment?

Back 104

if the stuff is normally contained there, it is a bailment.

Front 105

a. Cars in parking lot , when is the bailment?

Back 105

must give keys

Front 106

in safe deposit box, is bank the bailee even if they have no idea what’s in there?

Back 106

yes

Front 107

can you limit exculpatory clause ?

Back 107

can limit (contract away liability for ordinary negligence) BUT cannot avoid liability entirely (intentional or gross negligence); requires notice

Front 108

when is the coat check for full value?

Back 108

if negligence on the part of the bailee (they left it unintended), fee charged, declared value over $200, and written receipt stating the value

Front 109

when does coat-check operator has to pay $300

Back 109

no negligence other than the elements in item.

Front 110

when does coat-check operator has to pay $200?

Back 110

if no fee charged, or no declared value over $200 but written receipt issued.