Torts

Front 1

Intentional Torts

Back 1

P's hypersensitivity ignored
no incapacity defenses for children/drunks/insane/developmentally disabled, as long as D intended to commit tort
doctine of transferred intent: D who intends to commit any intentional tort against a victim will be liable for any other resulting intentional tort to that person.

Front 2

Battery

Back 2

1) D commits offensive (not permitted by people of ordinary sensitivity) or harmful contact
2) contact (either direct or indirect) with P's person (includes anything P is holding, touching, or connected to)
D need not physically touch P (poison)
offensive touch = unwelcome/inappropriate
can be time lag btwn touch and reaction

Front 3

Assault

Back 3

1) D places P in reasonable apprehension
2) of an immediate (not promise of future act) battery (requires physical act/conduct above and beyond naked verbal threat + apparent ability)

Front 4

False Imprisonment

Back 4

1) D commits act (threat is sufficient) or omission (in violation of pre-existing duty - wheelchair on plane) of restraint/confinement of which P is aware or which injures P
2) P is confined in bounded area (limits Ps freedom of movement in ALL directions) from which there is either no reasonable means of escape that P can discover, or if the way out is dangerous, disgusting, humiliating, or hidden (secret passage)

Front 5

Intentional Infliction of Emotional Distress

Back 5

1) extreme and outrageous (exceeds all bounds of decency tolerated in a civilized society; can be deliberately upsetting or insulting; often repetitive/continuous, or D is a common carrier/inkeeper, or P is fragile - child, old, pregnant/D knows it, hypensitive/D knows it) conduct
2) P suffers severe (not mild or slight) distress (actual damages required; proof of physical injury not required)
only intentional tort actionable if D behaved recklessly (w/o intent)
bystanders can recover if 1) he was present when injury occurred 2) he is a close relative of the injured person and 3) D knew 1 & 2

Front 6

Trespass to Land

Back 6

1) act of physical invasion (including even innocuous/benign acts of propelling/throwing tangible item onto somone's land; intangible items such as light/sound/smell are not trespass, but are instead nuisances; smoke might = physical invasion)
2) land (surface, air above, soil below to a reasonable (not planes) distance)
"intent to produce forbidden consequences" - D need only have intended to be on the land; legal duty to know property boundaries -> need not know that presence is forbidden

Front 7

Intentional Torts to Property: Trespass to Chattels v. Conversion

Back 7

chattel = personal property (other than land, building, or fixtures)
2 torts: 1) deliberately damaging P's personal property or 2) taking property away from P, either temporarily or forever
difference btwn trespass (small harm) v. conversion (big harm)
trespass: P can only recover cost of repair
special remedy for conversion: "you break it, you bought it" - P can recover full market value of the chattel (not just rental or repair); or replevin
NY: theft of electronic records = conversion; tampering = trespass

Front 8

Personal Property: Losers and Finders

Back 8

abandoned: owner surrenders possession (physical act) AND owner intends to relinquish ownership (mental state)
lost: owner accidentally parts w/ possession AND has no intention to relinquish ownership or control
for lost property, rights of finder are governed by statute: <$20 = must make reasonable effort to locate owner + 1 year wait = can keep property; >$20 = must turn in to police to hold for specified period (up to 3 years) based on value. If no one claims, can keep item.

Front 9

Personal Property: Gifts

Back 9

usually at issue when someone reconsiders gift already made
inter vivos gift (made while alive) -> 3 requirements: 1) donative intent (intent to give ownership); 2) acceptance of gift by donee (silence is enough); 3) valid delivery (handed over) - 1st party checks considered delivered onwhen when cashed/cleared (not just turned over), and donor can legally stop delivery on check; 3rd party checks considered delivered when physical paper is turned over; stock certificates considered delivered when turned over, even if there has been no transfer in corporate books; car is considered delivered when title or keys are turned over. agents (stand in for principal): delivery to donor's agent is NOT delivery, but delivery to donee's agent IS delivery.
gift causa mortis (in anticipation of death) -> requirements: imminent, likely risk of death of donor, of which donor is aware. If donee dies before donor dies: gift is invalid, and remains in estate of donor; if donor survives via recovery, no gift.

Front 10

Personal Property: Liens

Back 10

right to continue to possess and retain someone else's personal property, where that property has been improved or enhanced in value by the possessor OR where the possessor has rendered services in connection with the property until the property owner satisfies all associated financial obligations
1) debt
2) debtor has title
3) creditor has possession of property
4) creditor acted on or in connection with property in some way
2 types: general (right to retain collection of property for balance due; release of one/some items does NOT release lien); special (only for specific items)

Front 11

Personal Property: Bailments

Back 11

bailor gives someone (bailee) possession of personal property while retaining title under any circumstances
possession of "black box" (when bailment is created of something, the contents of which are unknown): if "black box" contains what it would customarily contain, bailee is entitled to possession; banks are bailees of everything contained in safe deposit boxes
standard of care = general reasonable prudence
parking lots: standard of care applies only if bailor turns keys over
coat checks: statutory provisions vary depending on whether bailor pays fee
SL applies if 1) bailee uses property beyond scope of bailment; 2) bailee mis-delivers object (unless he can present a claim check); 3) NY: bailee cannot disclaim all liability by K

Front 12

Defenses: Consent

Back 12

only person with valid legal capacity (excludes developmentally challenged/drunks/children re: sex) can give consent
anyone can commit a tort, but NOT everyone can consent to one
children can only consent to "age-related conduct"
Type 1: express consent - given by words, except 1) if consent is obtained through fraud or neglect or 2) if D knew of or took advantage of a mistake
Type 2: implied consent - 1) due to custom or common usage (sports) or 2) due to D's reasonable interpretation of P's objective conduct (conduct does NOT include thoughts)
if D exceeds scope of consent -> liable (surgeon)

Front 13

Defenses: Self-Defense/Defense of Others/Defense of Property

Back 13

3 requirements
1) timing - tort must be in progress or imminent (no revenge)
2) D must have a reasonable belief (including reasonable mistake) that tort is being committed against him/others/property; wrt property, defense not available against one w/ privilege
3) proportionality (no excessive force, but life-threatening situation to either self or others -> right to use deadly force)
4) majority rule: retreat is not necessary v. NY: follows minority rule - retreat, if possible, required, unless D 1) is in his own home 2) cannot retreat safely or 3) is a police officer. deadly force (including use of deadly mechanical devices) is never proportional to save property

Front 14

Harms to Dignitary Interests - defamation

Back 14

PADS
harm to reputation (what other people think of you); not just emotional harm
1) defamatory statement: common forms = attack on honesty, peaceableness, loyalty, morality (including sexual); statements of pure opinion are NOT actionable, though reasonable person may conclude that opinion implies specific facts that would be defamatory; must identify P specifically (need not be by name); P must be living (can't defame dead person); D must share statement w/ 1+ person other than P (SOIL)
2) of or concerning P
3) published statement (negligent publication counts) by D to 3rd person
4) damage to P's reputation
1st Amendment issues when defamation involves matter of public concern - P must prove BOTH 1) falsity of the statement AND 2) D is at fault. If D is a public figure, P must prove malice (knowledge of falsity or reckless disgregard as to whether it was false); if proven, damages are presumed and punitive damages are allowed. If D is a private person, P need only prove negligence regarding the falsity; if the statement involves a matter of public concern, at least negligence is required. damages are available only for proved actual injury. if malice can be proved -> damages are presumed + punitive damages are allowed. if the statement is a matter of private concern, no fault as to truth or falsity need be proved; constitutional restrictions don't apply. damages are presumed and punitive damages are allowed.

Front 15

Harms to Dignitary Interests - libel

Back 15

written
general damages presumed; need not prove special damages
NY: libel per se v. libel per quod (libel by extrinic fact - not libelous on its face; actionable even w/o proof of special damages where defamatory impact falls into a category that constitutes slander per se)

Front 16

Harms to Dignitary Interests - slander

Back 16

spoken
Type 1: slander per se - 4 categories
general damages presumed; need not prove special damages
1) statement about P's reputation
2) statement that P has committed a crime of moral turpitude
3) statement imputing unchastity to a woman (NOT a man)
4) statement that P has a loathsome disease (leprosy or VD)
5) NY: imputation of homosexuality
Type 2: slander not per se
P must prove special damages (must prove economic harm above and beyond emotional harm)
NY: must special damages be proven?

Front 17

Defenses for Defamation

Back 17

- consent
- truth
- privilege
- special (1st A concerns)

Front 18

Defenses for Defamation - consent

Back 18

express AND implied

Front 19

Defenses for Defamation - truth

Back 19

truth

Front 20

Defenses for Defamation - privilege

Back 20

absolute: based on D's status; cannot be lost; applies to 1) spouses (if spouse is only recipient); 2) gov't officers (most often in judicial branch - judges, lawyers, witnesses; also Congressmen in debate) acting w/I scope of official duties
qualified: based on circumstances of speech; can be lost through abuse or malice; arise when there is a social interest in encouraging candor; applies to (inter alia) 1) recommendations/references; 2) statements to police when investigating. 2 limitations on D: 1) frame of mind: since this defense is used only when info is false (otherwise, would use truth defense), D must have a good faith reasonable belief that his speech is accurate; 2) relevance: D must confine himself to matters connected to reason for creation of privilege.

Front 21

Defenses for Defamation - special (1st A. concerns)

Back 21

matter of genuine and general public concern
if P is a public figure (corrupt mayor), needs to prove 1) falsity of statement AND 2) fault (D made statement either knowing it was false, OR w/ reckless disregard for whether it was true or false)
if P is a private figure (mayor's secretary), needs to prove ONLY negligence (D did not investigate)

Front 22

Privacy Torts

Back 22

1) appropriation of P's picture/name (right of publicity)
2) intrusion upon P's affairs/seclusion
3) false light
4) disclosure of private facts about P
damages are presumed; emotional distress, mental anguish are sufficient damages. .
Affirmative defenses: consent; privilege (only for false light and disclosure)
NOT defenses: truth, inadvertence, good faith, lack of malice

Front 23

Privacy Torts - appropriation of P's picture/name (right of publicity)

Back 23

P must show that D used P's name/image for D's commercial advantage (mere economic benefits unconnected to promotion of product/service = insufficient). newsworthiness = exception. recognized in NY: Right survives death; statute does not protect corporations or partnerships; exceptions = 1) prior written consent; 2) photographer exhibiting his work (unless after written notice of objection)

Front 24

Privacy Torts - intrusion upon P's affairs/seclusion

Back 24

invasion of P's seclusion by D in a way that would be objectionable to the average reasonable person. requirements: 1) P must be in a place where privacy is expected (home, car); photos taken in a public place are not actionable. 2) Often electronic; no requirement of trespass of land. NOT recognized in NY

Front 25

Privacy Torts - false light

Back 25

widespread dissemination (v. defamation: need only tell one person) of a major falsehood about P that would be objectionable to an average person. Statement need NOT be defamatory. If matter of public interest, malice must be proven. Publicity required. NOT recognized in NY.

Front 26

Privacy Torts - disclosure of private facts about P

Back 26

widespread dissemination of private info about P that would be objectionable to the average reasonable person, even if info is true. Exception: newsworthiness (interpreted broadly). "dual life" (P operates in spheres of activity and D carries info from one sphere to another) -> no liability if info is not confidential in one sphere. (gay) NOT recognized in NY.

Front 27

Economic Torts

Back 27

1) intentional fraud
2) prima facie tort
3) inducing breach of K
4) theft of trade secrets

Front 28

Economic Torts - intentional fraud

Back 28

D deliberately lied to me with goal of ripping me off and I fell for it and I got screwed. 5 elements (no defenses)
1) misrepresentation: D makes factual material representation (silence insufficent) to P in connection w/ business transaction (used car)
2) scienter: D knows (deliberate) or should have known (reckless) that misrepresentation is false
3) intent: D intends to induce reliance by P to act or refrain from acting (material misrepresentation)
4) justifiable reliance: by P on info in question
5) economic damages: P must suffer actual pecuniary loss

Front 29

Economic Torts - prima facie tort

Back 29

NY ONLY. Intentional infliction of pecuniary harm w/o appropriate justification (selling product). 2 elements
1) intent to harm (distinguish from intent to do act that causes harm, which applies to other intentional torts)
2) P must allege and prove special damages

Front 30

Economic Torts - inducing breach of K

Back 30

4 elements and 1 defense
1) K between P and 3rd party that is NOT terminable at will
2) D has knowledge of K
3) persuasion by D of 3rd party to abandon K
4) breach by 3rd party + damages
Defense: "special relationship" privilege btwn P and D: 1) relationship of trust and confidence (family advice); account re: tax liability; lawyers; clergy

Front 31

Economic Torts - theft of trade secrets

Back 31

NY ONLY. 2 elements
1) P must possess valid trade secret (method or formula) that provides business advantage to successor which is not generally known and which P takes reasonable efforts to keep secret.
2) Taking of secret by improper means: 1) traitorous insiders (improper means = breach of trust); 2) industrial spy (improper if violating ordinary commercial morality)

Front 32

Negligence

Back 32

duty, breach, causation, damages

Front 33

negligence - duty

Back 33

duty of care owed to all foreseeable victims; unforeseeable victims cannot recover for negligence (Palsgraf/Cardozo (majority view) - forseeable zone of danger/physical distance v. Andrews (minority view) - everyone is foreseeable
exceptions (foreseeable but no duty): 1) rescuers (when D puts himself or 3rd person in peril, inviting rescue, and rescuer is hurt), NOT including police/firefighters, who may be barred by "firefighter's rule" from recovering for injuries caused by the rescue; 2) intended 3rd party beneficiaries; 3) prenatal injuries (duty of care owed to viable fetus; "wrongful birth" -> recovery for additional medical expenses outside of ordinary child-rearing expenses, BUT "wrongful life" -> no recovery. NY: 1) if D negligently impacts mom and fetus is born with a) injuries -> liability (child has cause of action in his own name) or b) stillborn - > NO liability in child's name, but mother has claim for emotional damages; 2) D misdiagnoses birth defect -> mother can recover for enhanced cost of care BUT no recovery for emotional distress; 3) D botches sterilization -> NO liability
standard of care = reasonably prudent person acting under similar circumstances (RPPUSC) (objective standard); no allowance for individual attributes; insane/stupid/developmentally challenged and amateur (1st time skier) still held to RPPUSC standard.
exceptions to rule of no allowance for individual attributes: 1) if person has relevant superior knowledge (either expertise (race car driver) or knowledge of relevant isolated fact (driving in own neighborhood) -> heightened standard; 2) reasonable person is considered to have the same physical characteristics as D (reasonably prudent blind person)

Front 34

Negligence - Breach

Back 34

2 components (RPPUSC standard): 1) identify wrongful conduct 2) explain why it is wrongful. Can be established by 1) statutory violation (breach established by law); 2) custom/usage (BUT does not control as to whether it amounts to negligence; entire industry can be negligent); 3) res ipsa loquitor (something bad happened to P, but P can't identify what D did wrong to cause it - barrel) - 2 elements: 1) accident is a type normally associated w/ negligence; about probabilities (E that rules out a non-negligent explanation (earthquake) and expert opinions about probabilities can be helpful); 2) accident is normally due to someone in D's position; P is probably suing the right person (control is important, such as when D had exclusive control of the object that caused the injury). res ipsa loquitor only guarantees that case will go to jury; does not guarantee result for P.

Front 35

Negligence - Causation

Back 35

factual cause (actual cause): demonstration by P of connection btwn D's breach and ultimate injury suffered. "but for" test: if P would have escaped unharmed w/o D's breach. If there are multiple defendants: 1) merged/joint causes (2 Ds both act to cause harm) -> substantial factor test: whether each individual breach was in itself a substantial factor in the resulting harm (2 fires); 2) unascertainable causes (2 possible causes, can't tell for certain which caused the harm, but only 1 caused the harm) - P normally can't show probable cause - 50%+ (quail hunting) -> court shifts burden of proof to Ds to come up exonerating E -> if neither D can satisfy burden or proof, both are liable.
proximate/legal cause - "fairness under the circumstances" - measured by foreseeability. direct cause (D commits breach and P suffers immediately) is unforeseeable if outcome is freakish or bizarre. Indirect cause (D commits breach, then something else happens (intervening cause), and then harm occurs) is foreseeable (and D is still liable) in "well-settled quartet": 1) intervening medical malpractice; 2) intervening negligent rescue 3) intervening reaction or protection forces; 4) subsequent disease or accident. otherwise, indirect cause is unforeseeable if the type of harm resulting from the breach is not the type expected of the breach. no liability results if either foreseeable or unforeseeable intervening events cause unforeseeable results.

Front 36

Negligence - Damages

Back 36

once negligence results in foreseeable type of damage, extent of damage is irrelevant (eggshell P); P has a duty to mitigate damages

Front 37

Negligence - Affirmative Defenses

Back 37

2 common law defenses (abolished in most jxns, including NY)
contributory negligence - P's negligence contributes to her injuries -> bars P from recovering; "last clear chance rule" = P's rebuttal: person w/ last clear chance to avoid accident who fails to do so is liable
implied assumption of risk (that an average person would clearly appreciate); members of class protected by statute will not be deemed to have assumed any risk if 1) there was no alternative to proceeding in the face of risk; 2) fraud; 3) force; 4) emergency
comparative negligence (default MBE/NY/majority rule): D offers E that P failed to exercise proper care for his own safety -> jury assigns percentages representing P's degree of fault, reducing P's recovery. 2 versions: 1) modified comparative negligence (default MBE rule, to be used only when MBE states it by name): if P's fault > 50% -> absolute bar to recovery; 2) pure comparative negligence (NY): P recovers even if P > 50% at fault; limit P's fault to damages; exception: no recovery if injury = direct result of P's illegal conduct involving risk of physical harm.

Front 38

no-fault insurance

Back 38

people injured in car accidents get $ from their own insurance company whether they were at fault, someone else was at fault, or no one was at fault. NY mandates buying 50K minimum coverage; can only be claimed for personal injuries, NOT property damage (collision insurance for property damage) and NOT pain and suffering. under his policy, driver can claim himself; anyone driving his car with his permission; his passengers; passengers of those who drive his car; pedestrians he hits. ineligible to recover: drunk drivers; drag racers; car thieves; fleeing felons. P can, in addition, sue in tort if he shows that injuries exceed statutory threshold. 2 ways: 1) loss in excess of legal threshold: if damages (injured party's medical expenses + 80% of lost earnings up to 2K/month + misc. expenses under $25/day) exceed 50K in a year/basic economic loss -> can recover 50K no-fault and sue for negligence to get excess; 2) serious injury: death, dismemberment, significant disfigurement, serious fracture, permanent and total loss of bodily organ or function. pain & suffering damages above these damages require higher levels of proof, and are mitigated by P's negligence. No-fault is portable; follows you wherever you drive (outside NY)

Front 39

equitable remedies

Back 39

types: 1) mandatory injunction (do something); 2) negative injunction (don't do something); 3) permanent injunction (after P makes his showing); 4) preliminary injunction (granted at start of litigation to freeze status quo during litigation): 2 requirements: 1) likelihood of success on merits; 2) irreparable injury - balance hardships in P's favor.
showing required: 1) no adequate remedy at law: money damages won't suffice as adequate compensation (D has no $, object has immeasurable value, D's tortuous conduct is continuous or ongoing) AND ejectment and replevin are unavailable; 2) D has violated property interest or other protectable right (always happens); 3) injunction is enforceable: must show; problem when mandatory injunction for D to do something - negative injunctions easier to enforce (walls); look to complexity, enforceability, length of time, if activity takes place outside ct's jxn; 4) balance the hardships; the more despicable D's behavior, the more likely court will find in P's favor

Front 40

defenses against injunction

Back 40

unclean hands: if P behaved inappropriately in the same transaction (unrelated transactions irrelevant)
laches: unreasonable prejudicial delay; if P has not acted in a long time, and D detrimentally relies on delay

Front 41

Strict Liability

Back 41

safety precautions irrelevant
3 topics
1) liability for injury caused by animals: 1) domesticated animals - usually dog bite cases; no SL for dog bites unless dog has vicious propensities known to owner. (bite 1 = negligence; bite 2 = SL); 2) wild animals - usually tiger, lion, bear; SL
2) abnormally dangerous activity: 2 attributes - 1) activity creates foreseeable risk of serious harm even when reasonable care is exercised; 2) not a matter of common usage in community where it is done (crop dusting)
3) products liability: one of multiple courses of action that injured P can pursue, including negligence, breach of warranty of merchantability under UCC, fraud, battery (if booby trap product), and SL.
4 elements
1) D is a merchant (one who routinely deals w/ goods of this type); commerical lessor (rental cars), all merchants in distribution chain, not just the one P dealt w/ directly (no privity required); casual sellers (craigslist), services providers for products incidental to provision of the service (chair breaks at restaurant) not SL
2) D must show that product is defective: 1) manufacturing defect (departs from intended design, more dangerous than consumers would expect); 1 in a million - safety precautions don't make it not SL; P recovers if P can show that it failed to perform as safely as an ordinary customer would expect. 2) design defect (when product would have been built differently (baby crib) - hypothetical alternative design); must show that alternative is safer, economically feasible (not significantly more expensive), and practicable (not hard to use or w/ new safety hazards). 3) instruction/warnings on product (if product has residual risks that can't be physically designed out AND risk is not obvious to users, defective to sell product w/o adequate warnings/instructions): must be obvious; not a substitute for design defects. exception: unavoidably unsafe products (knife) - if can't make safe and danger is apparent, no SL.
3) D must prove that product has not been altered since it left D: presumption of no alteration if product has moved in ordinary channels of distribution -> burden shifts to D to show alteration; disclaimers irrelevant if personal injury or property damage occurs
4) P was using product in foreseeable way when he got hurt: foreseeable, NOT intended use (standing on chair); if use is unforceable -> no liability
defense: comparative responsibility: any P stupidity will be admissible and jury can assign percentages/reduce recovery (tiger)

Front 42

Nuisance

Back 42

interference w/ ability to enjoy one's own land to an undue degree - elements 1) substantial interference AND 2) unreasonable interference 3) w/ P's use and enjoyment of property. D could have created nuisance intentionally, negligently (parties), or w/o fault (factory smokestacks). P must show that, balancing the equities, P's ability to enjoy use of the land has been interfered w/ to an unreasonable degree

Front 43

Worker's Compensation

Back 43

statutory insurance scheme which is the exclusive remedy of covered employees injured at work - replaces ALL tort liabilty arising out of on-the-job accidents
employer through insurance is SL, but recovery is limited: no recovery for punitive damages; no pain and suffering; only salary and medical bills
disputes about WC are addressed in admin proceedings
employees are covered; independent contractors are not
statutory exceptions (can still sue in tort): teachers, non-manual employees of charitable institutions, part time domestic and other household employees, clergy, agricultural employees
covers any injuries on the job, except 1) injuries due solely to employee's intoxication; 2) intentional self-inflicted injuries or injuries caused by coworker; 3) voluntary off-duty athletic activity. Exceptions to exceptions: injury on job associated w/ illegal conduct; horseplay (unless outrageous/after employment ended - factory)
recovery: 2/3 average weekly wage (no taxes) + all out of pocket medical expenses + in the case of death, statutory prescribed amount and funeral expenses. In addition to WC, employee can sue 3rd party in tort (often, manufacturer of industrial equipment that injured employee in factory, or construction sub employee can sue general contractor - gets WC from sub) for damages

Front 44

Vicarious Liability

Back 44

there is an active tortfeasor, but P wants to sue 2nd defendant, purely passive party who had no direct connection w/ injury-causing conduct
based on relationship - types:
1) employer-employee w/I scope of employment (respondeat superior) - usually issue is whether intentional tort is w/I scope of employment (Gap); no vicarious liability for intentional torts except 1) if force is authorized by employer as part of job (bouncer); 2) job routinely causes friction (repo man); 3) misguided attempt to serve boss' purposes (security guard searches bags)
2) independent contractors and hiring parties: no liability for independent contractor except 1) land possessor vicariously liable if contractor hurts invitee (paint falls on customer's head); 2) inherently dangerous activities
3) auto owner and drivers: MBE: owners not liable for torts of drivers unless 3rd party is on D's errand - agent-principal v. NY: permissive use doctrine - owner is liable for use by others w/ his permission, but not for intentional torts. Presumption: all drivers have owner's permission - registration is prima facie evidence of ownership; owner has to prove car thief. exception: rental car company not liable for customers.
4) parents and children - common law: no liability for children v. NY: liability up to 5K for willful and intentional property torts of children 10+.
if D leaves gun unattended, he is liable

Front 45

co-defendants

Back 45

sue multiple Ds and recover from 1 person -> w/ comparative contribution, jury assigns each D a percentage of fault, and out-of-pocket D can recover pursuant to those numbers in contribution claim. 2 indeminification exceptions (D can get full reimbursement) 1) vicarious liability (from tortfeasor); 2) non-manufacturer (retailer) SL in products liability (from manufacturer)

Front 46

loss of consortium

Back 46

married tort victim -> uninjured spouse can sue same tortfeasor and recover
3 categories of damage
1) loss of services (household chores)
2) loss of society (companionship)
3) loss of sex

Front 48

negligence - duty - special standards of care - children

Back 48

1) children (<4 legally incapable of negligence -> no duty to care to anyone; 4<x<18 - > duty of care of hypothetical child of similar age, experience, and intelligence acting under similar circumstances (tricycle) - SUBJECTIVE standard that is difficult to meet. exception: if child is engaged in adult activity (driving) -> vanilla RPPUSC standard

Front 49

negligence - duty - special standards of care - common carrier/innkeeper

Back 49

2) common carrier/innkeeper (high degree of care -> liable for even slight negligence to P (BUT only if P is a guest/passenger)

Front 50

negligence - duty - special standards of care - professionals

Back 50

3) professionals (usually health care providers) (care of average member of profession practicing in similar community (NY/majority rule: locality rule, BUT don't assume that city doctor provides better care than rural doctor; also there is a national standard of care within each specialty) -> must conform to professional custom (here, dispositive; in normal circumstances, custom is mere E of prudence). P must educate jury via expert witness about this standard of care. Informed consent doctrine: doctor has duty to disclose risks of recommended procedures before patient makes decision about whether to go forward, BUT no duty to disclose if 1) commonly known risk; 2) patient declines info; 3) patient is incompetent; 4) disclosure would be harmful b/c it would cause another medical problem (anxiety disorder), NOT b/c it would lead patient to decline procedure

Front 51

negligence - duty - special standards of care - possessors of real estate

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4) possessors of real estate (premises liability) - P enters land and gets hurt. Duty to those off premises: no duty to protect those off premises from natural conditions on premises, except 1) duty for unreasonably dangerous artificial conditions or structures abutting adjacent land and 2) duty for damage caused off premises by falling branches/trees. Duty to those on premises: P can be hurt either by 1) activity conducted by D/D's agent (coffee) or 2) when P encounters hazardous static condition on land (chandelier). 4 types of entrants: 1) undiscovered trespassers (NO duty of care owed, regardless of whether trespasser was hurt by activity or condition - unforeseeable Palsgraf victim); 2) discovered/anticipated (regular pattern of trespassing, such as frequent shortcut - railroad) trespassers (duty of care = RPPUSC - warn/make safe/concealed; for duty to exist, condition must meet 4-part "known manmade death trap" test (rotting bridge): 1) artificial (usually indoors; either way, no duty to protect from natural conditions on land, including tree branches); 2) highly dangerous; 3) hidden; 4) known in advance by possessor; 3) licensee (usually social guest, sometimes canvasser, who enters land w/ permission and w/o purpose of conferring economic benefit on land possessor) (duty of care = RPPUSC vanilla for activities; warn of dangerous conditions (natural or artificial) known to owner, which licensee is unlikely to discover, and exercise reasonable care in the conduct of active operations on the property (rug). no duty to inspect/repair. conditions must meet 2-part "all known traps" test: 1) concealed from licensee AND 2) known in advance by possessor; 4) invitee (enters w/ possessor's permission; either 1) confers economic benefit on possessor (BarBri) or 2) enters premises open to general public (hospital) (duty of care = RPPUSC vanilla for activities; same as for licensees + duty to inspect to discover non-obvious dangerous conditions and make them safe, unless invitee exceeds scope of invitation, in which case he will lose status. conditions must meet 2-part "reasonably knowable traps" test: 1) concealed from invitee AND 2) either known in advance by possessor OR RPPUSC could have discovered through reasonable inspection. exceptions: 1) firefighter/police: no recovery for risk inherent to job; 2) child trespasser: if injured by artificial conditions, entitled to RPPUSC vanilla standard of care (if land owner 1) anticipates child trespassers b/c of proximity of children, or 2) if conditions present "attractive nuisance" (something on land that draws kids); kid does not need to be injured by what attracted him to land. recreation land for public and not charge fee: owe WRT condition to land: possessor can satisfy duty by 1) fixing problem or 2) warning. NY: abolished these categorical standards. standard = RPPUSC for all injuries on land; BUT similar circumstances depends on 1) what kind of entrant P is, 2) foreseeability of his presence, 3) amount/nature of precautions required to meet standard of reasonable care under the circumstances (nighttime v. daytime)

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negligence - duty - special standards of care - statutory standards of care

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5) Statutory Standards of Care (negligence per se) - where statute prohibits an activity that results in criminal or regulatory liability and P wants court to borrow the duty under statute. Borrowing is permissible under a 2-part "class of person, class of risk" test: 1) P must show that he is a member of the class of persons that the statute seeks to protect AND 2) P must show that the accident is in the class of risks that the statute seeks to prevent. (pot explosion). If P does not meet borrowing test, reverts to RPPUSC vanilla standard of care. exceptions: 1) if compliance w/ statute would be more dangerous than violating it, will not use statute as standard of care, even if 2-part test is met (car accident/yellow line); 2) if compliance w/ statute would be impossible (car accident/heart attack)

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negligence - duty - special standards of care - affirmative duty to act

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6) Affirmative Duty to Act: no duty to act affirmatively, BUT once D chooses to act, must as act RPPUSC (voluntary rescuer who botches rescue is liable). No duty to rescue person in peril except if 1) there is a pre-existing relationship btwn the rescuer and rescuee; or 2) if D put P in a position of peril. NY: Good Samaritan law is narrow, and applies only to nurses, doctors, and veterinarians; all are subject to liability only for gross negligence.
Negligent Infliction of Emotional Distress: to be liable, D must be negligent under another duty standard, + either 1) near miss: P suffered subsequent physical manifestations due to distress AND P was in a zone of physical danger produced by D's negligence; 2) bystander: P suffered grief as contemporaneous witness to negligent bodily injury inflicted on a close family member AND P observes in real time, at close proximity (NY: bystander or immediate family member must also be in zone of danger), and the victim is a close family member (spouse/parent/child; beyond that, jxns disagree); or 3) pre-existing relationship btwn P and D, and negligent act can foreseeably cause distress (HIV test)