Torts

Front 1

Is there an incapacity defense to intentional torts?

Back 1

No

Front 2

Battery

Back 2

Harmful or offensive contact with P’s person

Front 3

Assault

Back 3

D places P in reasonable apprehension of immediate battery

Front 4

False imprisonment

Back 4

D commits act of restraint; P is confined to bounded area

Front 5

IIED

Back 5

D engages in outrageous conduct and P suffers severe distress

Front 6

Does D need to know he’s on another’s land to trespass?

Back 6

No

Front 7

Is consent an affirmative defense?

Back 7

Yes

Front 8

Requirement for any defense privilege

Back 8

D acted when threat was imminent or in progress, and D had reasonable belief that threat was genuine

Front 9

Defamation

Back 9

D publishes defamatory statement concerning P; might need damages

Front 10

When does NY require proof of damages for defamation?

Back 10

Slander that’s not per se

Libel that’s not in a per se category if defamatory impact is not clear on face of statement

Front 11

Additional defamation requirements for public concern

Back 11

P must demonstrate falsity of statement and show some degree of fault on part of D

Front 12

Defenses to defamation

Back 12

Truth, consent, privilege

Front 13

What is the only privacy tort in NY?

Back 13

Appropriation – D uses P’s name or image for commercial purposes

Front 14

Intrusion

Back 14

D invades P’s seclusion in a way that is reasonably objectionable to average person

P must have had reasonable expectation of privacy / no trespass required

Front 15

False Light

Back 15

D makes widespread dissemination about major falsehood concerning P that would be objectionable to average person

Falsehood need NOT be defamatory
No intent required

Front 16

Public disclosure of private facts

Back 16

D makes wrongful public disclosure of private information (matters of public record are INSUFFICIENT) that would be highly offensive to reasonable person of ordinary sensibilities

Statement need not be false

Front 17

FRAUD

Back 17

D makes misrepresentation of fact deliberately or recklessly that is intended to induce reliance, does in fact induce reliance, and P suffers economic damage

Silence doesn’t create liability

Front 18

Requirements for trade secret

Back 18

Info provides business advantage, info is not generally known, owner takes steps to keep info secret

Front 19

To whom is duty owed?

Back 19

Foreseeable victims

Front 20

What do you need to show in attorney malpractice claim?

Back 20

That you would have recovered but for attorney’s negligence

Front 21

What duty standard governs malpractice claims?

Back 21

Custom

Front 22

What duty standard governs children over 4?

Back 22

Hypothetical child of similar age, experience and intelligence acting under similar circumstances

Front 23

When is informed consent requirement waived?

Back 23

Commonly known risks, patient declines info, patient is mentally incompetent, disclosure would be medically harmful (does NOT mean disclosure would cause patient to decline operation)

Front 24

How can D satisfy his duty vis-à-vis dangerous conditions?

Back 24

Warnings

Front 25

Duty to undiscovered trespassers

Back 25

None

Front 26

Duty to discovered trespassers

Back 26

D must protect from known, man-made death traps

Front 27

Duty to licensees

Back 27

D must protect from all known traps, regardless of seriousness

Front 28

Duty to invitees

Back 28

D must protect from all reasonably known traps

Front 29

Duty to any entrant (except trespasser) for dangerous activity

Back 29

RPP

Front 30

Entrant rule in NY

Back 30

All entrants for both condition and activity analyzed under RPP under similar circumstances standard; discuss identity fo entrant at breach stage

Essay: “NY has abolished the traditional approach in favor of RPP under similar circumstances…”

Front 31

Firefighter’s rule

Back 31

Police and firefighters cannot recover in negligence for any risk that is an inherent risk of the job

NY: rule only applies against employer or co-worker; you CAN sue in negligence a person who started the fire, though analysis should discuss assumption of risk

Front 32

What if entrant who’s injured is a child?

Back 32

RPP under similar circumstances. Discussion should include likelihood that kids would trespass, presence of attractive nuisances, and age of kids likely to trespass

Front 33

Good Samaritan Rule

Back 33

MBE: No rule; once you decide to rescue, you must act as RPP

NY: Citizens with some degree of rescue training are exempt from negligence standard; protects gratuitous rescue by nurses, physicians and vets

Front 34

NIED

Back 34

IF D violated a duty, P can recover NIED in three scenarios:

(i) near miss – must be physically close call that produced subsequent PHYSICAL manifestations

(ii) bystander claim: P is contemporaneous witness to negligent bodily injury inflicted on close family member (spouse, parent, child)

NY: P must have HIMSELF been in zone of physical danger

(iii) preexisting relationship, if negligent act could foreseeably have caused distress (negligent medical diagnosis)

Front 35

Res ipsa

Back 35

P must show accident is one normally associated with negligence, and accident normally due to negligence in someone in D’s position

Front 36

Merged Causes test

Back 36

Substantial factor: was each breach, standing alone, theoretically capable of causing injury? If so, both Ds jointly and severally liable

Front 37

Unascertainable causes test

Back 37

Burden shifts to D to exonerate himself; if he can’t each D jointly and severally liable

Front 38

When is D the proximate cause?

Back 38

When consequences of his breach were foreseeable

Front 39

Four well-settled indirect cause cases

Back 39

All ARE proximate causes:

Intervening medical negligence
Intervening negligent rescue
Intervening reaction or protection forces
Subsequent disease or accident

Front 40

NY damages offset rule

Back 40

In all actions for personal injury, property damage or wrongful death, court is required to reduce P’s damage award by amount of ANY benefit that P received or will receive from collateral sources (including insurance), though not for life insurance or SS

Front 41

Traditional contributory negligence

Back 41

If P acted negligently, he’s barred from all recovery

Front 42

Traditional implies assumption of risk

Back 42

P barred from all recovery if his conduct implied, “that’s OK, I’ll take my chances”

Front 43

What kind of state is NY vis-à-vis damages?

Back 43

Purse comparative negligence: P can recover even if he’s 90% at fault

Front 44

Partial / Modified Comparative Negligence

Back 44

If P more than 50% at fault, he recovers nothing

Front 45

Can child sue his parent for negligent supervision in NY?

Back 45

No

Front 46

When is there strict liability for animals?

Back 46

Domesticated animal: when animal has vicious propensities of which owner is aware (dogs: previous bite or growling)

Wild animals: owner always strictly liable, efforts at safety are irrelevant

D never strictly liable if P is trespasser on his land (unless intentional torts w/ watchdog)

Front 47

When can SL be imposed for abnormally dangerous activity?

Back 47

If the activity creates a foreseeable risk of serious harm even when reasonable care is exercised, and it’s not a matter of common usage in the community

Front 48

Requirements for SL in products liability

Back 48

D is merchant; goods are defective (design / manufacture); product has not been altered; P’s use is foreseeable)

Front 49

Does need to act with fault to be liable for trespass

Back 49

No – he can act totally without fault and be liable

Front 50

Is comparative negligence a defense to strict liability?

Back 50

Yes, if – e.g. – P was petting a wild animal, it reduces D’s percentage of fault

Front 51

When is D liable for negligence torts of his employee?

Back 51

When is employee was acting w/in scope of employment

Front 52

When is D liable for intentional torts of employee?

Back 52

Never, UNLESS force is part of job description, job generates friction with customers, or employee was engaged in misguided effort to advance employer’s interests

Front 53

When is employee liable for torts of independent contractor?

Back 53

Never, though land possessors ARE liable for injuries inflicted by independent contractors on invitees

Front 54

When is auto owner liable for torts of driver

Back 54

MBE: only when tortfeasor is running an errand on D’s behalf (agent/principal)

NY: Permissive use state; liable whenever someone’s driving his car with his permission (but not rental car company)

Front 55

When are parents liable for the torts of their children?

Back 55

MBE: never liable vicariously

NY: liable up to modest dollar amount

Parents might be directly liable if their negligence contributed to tort (leaving gun accessible to children)

Front 56

What must P show to get permanent injunction?

Back 56

No adequate remedy at law, tort impinges on property right or protected interest, injunction is enforceable, balance of hardships tips in his favor

Front 57

What must P show to get temporary injunction?

Back 57

Permanent injunction factors, + likelihood of success on the merits and that he’d suffer irreparable harm in absence of injunction

Front 58

Defenses to injunctive relief

Back 58

Unclean hands, laches, 1A

Front 59

Abandonment

Back 59

Physical act of giving up possession + intent to relinquish title nad control

Front 60

When is an inter vivos gift irrevocable?

Back 60

When there was donative intent, a valid acceptance and delivery

Front 61

What kind of claim can person bring against bailee who damages his property?

Back 61

Negligence

Front 62

What do you get from worker's comp?

Back 62

Lost wages, medical expenses, funderal expenses in the event of death