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77 Cards in this Set
- Front
- Back
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battery
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1) harmful or offensive contact; 2) with the P's person
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assault
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1) D places P in apprehension; 2) apprehension of immediate battery
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false imprisonment
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1) act of restraint by D; 2) confinement in a bounded area
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intent infliction of ED
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1) outrageous conduct (extremely reckless will suffice); 2) exceeds all bounds of decency tolerated in a civilized society; 3) damage (but not necessarily physical); NY: separate CoA for distress produced by intentional mishandling of a corpse
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trespass the land
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1) D must get there on purpose (incl knows to a substantial certainty); 2) need a physical invasion; nominal dmaages are ok
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trespass to chattels
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deliberate damage to or theft of personal property; small harm; remedy: repair costs
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conversion
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deliberate damage to or theft of personal property; big harm; remedy: FMV
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lifetime gifts
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must be intent & valid delivery; personal check delivered only when cashed;
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gifts causa mortis
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(in contemplation of death); donor has to actually die
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liens
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special liens (e.g. mechanic's liens) are removed when property is returned; general liens (e.g. self storage place) are not removed when just one item goes out
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NY Self Defense
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retreat rule
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necessity
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public necessity - emergency to protect the whole community -> complete defense; private necessity - to preserve his own interest; damages are actual harm; no nominal
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libel
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defamation embodied in a permanent medium of expression; no need to prove damages
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slander, generally
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spoken defamation; need an economic loss
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slander per se
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P's business or profession; that P commited a crime of moral turpitude; imputing un-chasity to a woman; that P suffers from a loathsome disease; NY: imputation of homosexuality
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1st A defamation
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P has affirmative burden to show falisty; fault (public figure - malice by C&C; private - negligence)
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NY no fault
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insurance must pay for personal injuries (not car damage; not pain/suffering); NOT covered: car theives, fleeing felons, DUI, drag racers;
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NY no fault exits
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more than basic economic loss (≥$50k); or serious injury; then you can get pain/suffering if you find negligence;
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privacy torts
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CLIP: Commercial appropriation; Light, false; Intrustion into private affairs; Publication of private facts (NY: Commercial app only); death is a defense
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false light
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doesn't need to be defamatory, just objectionable and false and highly offensive; no good faith defense; if public figure, P must prove malice by C&C
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publication of private facts
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widespread dissemination of confidential *truthful* information
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fraud
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affirmative misrepresentation; fault; intend to induce reliance; actual reliance; economic harm or damage
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NY extra economic tort
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prima facie tort
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more economic torts
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fraud; NY prima facie tort; inducing breach of K; theft of trade secrets; trademark (using a brand name in a way confusing to public)
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negligence duty
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to foreseeable victims; all rescuers (even if not forseeable);
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children's duties
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under 4, incapable of negligence; 4-18 similar kid standard, unless child in adult activity
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duty of a professoinal
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standard of care of professional practicing in that *community*
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undiscovered trespasser
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no duty at all b/c completely unforseeable
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discovered trespasser
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activities - RPP under cirumstances (don't run over him w/your tractor); conditions- duty if known, highly dangerous hidden artificial conditions
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licensee
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e.g. social guests; activities - RPP; conditions - if known & hidden
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invitee
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e.g. shoppers; acticities - RPP; conidtions - if hidden & known or should have known
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NY property duties
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no categories; instead use RPP under the circumstances
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warnings and land duties
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if the occupier has a duty to protect, he can satisfy the duty by warning
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firefighters & police officers & land duties
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they can never collect - injuries are an inherent risk in their jobs
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emotional distress
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"near miss" case - P was in the zone of danger; must have subsequent, physical manifestations
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bystander claim for ED
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P must be present and witness negligently-inflicted injury and injury must be to close family member; in medicine context, if mom is victim of med/mal and child is stillborn, she has a bystander claim for ED
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exceptions to statutory violations as negligence
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1) if compliance would be more dangerous than violation (would have run over child, so swerves and runs someone off the road); 2) if compliance is impossible (had a heart attack and ran a red light)
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care standard
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"you must give the amount of care that would be given by a hypothetical reasonably prudent person acting under similar circumstances"
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duty to rescue
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preexisting relationship (family; common carrier or inn keeper; land owner & invitee); or if you begin to rescue, then duty of reasonable care
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NY good samaritan law
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if doctor nurse or veterinarian begins to rescue, and fails, still no duty
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breach text
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"and the evidence shows conclusively that he failed to stop at the red light (breach)"; you can use res ipsa if nothing else
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factual causation text
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"the breach was a factual cause of the injury if, but for the breach, P would be healthy today"
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unascertainable cause
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if Cheny & D2 shot, not sure which one hit P, then shift BoP to D to show which was not the cause
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intervening medical negligence
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P is hurt in accident and doctor makes it worse; we hold first D liable for the amputated leg (forseeable chance things will get worse, not better)
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intervening negligent rescue
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P is hurt in accident and rescuer makes it worse; rescuers are always forseeable
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reaction furthers injury
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after an accident, the other pedestrians stampede and P is injured worse; D is liable for that too
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subsequent accident or disease
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P's leg is hurt in an accident; he's on crutches and falls and breaks arm; D is liable for that too
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egg-shell P doctrine
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once you've committed a tort, D must pay for all the harm suffered even if harm is surprising in scope (take P as you find him)
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collateral source rule
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NY: no collateral source - so if you win $300k but $20k from insurance, you can only recover $280k
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pure comparitive negligence
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NY: goes by jury's percentages, irregardlessly
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modified comparitive negligence
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MBE: if P's fault is > 50%, that is an absolute bar to recovery
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preliminary injunction
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must show likelihood of success on the merits; irreprable injury
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permanent injunction
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must show all of the elements of some tort; no adequate remedy at law; the injunction will be enforceable
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defenses to an injunction
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unclean hands; laches (perjudicial delay); first amendment
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injuries caused by animals
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domesticated - no S/L, only negligence; wild, trespassing cattle - S/L
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ultra-hazordous activities
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blasting & explosives; chemicals & biologicals & nukes; chlorine gas
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S/L defenses
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if P knedw of danger and his conduct was uneasonable; assumption of risk; comparative negligence
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manufacturing defect
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if it differs from all of the others --> S/L
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design defect
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P must identify a H.A.D.; inadequate warnings are a defect; failure under misuse can still be a defect, if foreseeable (speeding)
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products negligence
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show breach by negligent conduct (res ipsa) leading to supplying of defective product; no recovery for solely economic loss - must be physical or property injury
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products S/L
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D must be a merchant; if it says S/L, don't pick negligence; no S/L if adequate warnings and directions; no recovery for solely economic loss - must be physical or property injury
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breach of implied warranties
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warranties of fitness for a particular purpose or merchantability; damages can include ecnomic loss
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misrepresentation
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express warranties lead to economic damages;
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workers comp
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is the exclusive remedy for EEs injured on the job; ER is strictly liable; no pain/suffering; no punitive; but you can sue 3rd parties (manufacturers)
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workers comp exemptions
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I/C's; teachers; non-manual laborers at non-profits; part time domestic or household EEs; clergy
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workers comp exceptions
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intoxication; intentional harm; voluntary, off-duty athletics (softball league); horseplay can go either way; illegal acts are covered if w/in empt
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private nuisance
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substantial interference w/private person's enjoyment or use; need tangible harm; or decline in property value (brothel next door); or personal discomfort to owner
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public nuisance
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unreasonably inteferes w/health, safety or property rights of community (using a bldg for a crack house); recovery by private party only if uniquely damage
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coming to the nuisance
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is a factor, but not conclusive; answer is a matter of judicial discretion
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zoning violation
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is a factor, but not conclusive; answer is a matter of judicial discretion
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ER/EE vicarious liability
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if EE was w/in the scope of empt (not intentional tort); or if tort was designed to serve ER's interests
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vicaroius liability for IC's
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no; unless ICs working on premises injure invitees
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automobile owner / driver
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generally, no vicarious liability, unless driver is an AGENT (doing an errand)
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NY automobile owner / driver
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owner is vicariously liable for anyone driving with his permission
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parents / kids
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parents are never liable for torts of their children, except intentional torts up to $5k
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loss of consortium
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1) loss of services (laundry; fixing garage); 2) loss of society (no one to talk to); 3) loss of sex
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NY pregancy duties
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D strikes pregnant W, if baby is born w/deformities, baby has CoA; if baby is born dead, no claim; 2) if doctor negligently fails to diagnose impending birth defects, mom has recovery for enhanced costs of caring for child, but no ED; 3) if NY doc botches sterilization, no recovery -> but great joy
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