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77 Cards in this Set

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battery
1) harmful or offensive contact; 2) with the P's person
assault
1) D places P in apprehension; 2) apprehension of immediate battery
false imprisonment
1) act of restraint by D; 2) confinement in a bounded area
intent infliction of ED
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
trespass the land
1) D must get there on purpose (incl knows to a substantial certainty); 2) need a physical invasion; nominal dmaages are ok
trespass to chattels
deliberate damage to or theft of personal property; small harm; remedy: repair costs
conversion
deliberate damage to or theft of personal property; big harm; remedy: FMV
lifetime gifts
must be intent & valid delivery; personal check delivered only when cashed;
gifts causa mortis
(in contemplation of death); donor has to actually die
liens
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
NY Self Defense
retreat rule
necessity
public necessity - emergency to protect the whole community -> complete defense; private necessity - to preserve his own interest; damages are actual harm; no nominal
libel
defamation embodied in a permanent medium of expression; no need to prove damages
slander, generally
spoken defamation; need an economic loss
slander per se
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
1st A defamation
P has affirmative burden to show falisty; fault (public figure - malice by C&C; private - negligence)
NY no fault
insurance must pay for personal injuries (not car damage; not pain/suffering); NOT covered: car theives, fleeing felons, DUI, drag racers;
NY no fault exits
more than basic economic loss (≥$50k); or serious injury; then you can get pain/suffering if you find negligence;
privacy torts
CLIP: Commercial appropriation; Light, false; Intrustion into private affairs; Publication of private facts (NY: Commercial app only); death is a defense
false light
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
publication of private facts
widespread dissemination of confidential *truthful* information
fraud
affirmative misrepresentation; fault; intend to induce reliance; actual reliance; economic harm or damage
NY extra economic tort
prima facie tort
more economic torts
fraud; NY prima facie tort; inducing breach of K; theft of trade secrets; trademark (using a brand name in a way confusing to public)
negligence duty
to foreseeable victims; all rescuers (even if not forseeable);
children's duties
under 4, incapable of negligence; 4-18 similar kid standard, unless child in adult activity
duty of a professoinal
standard of care of professional practicing in that *community*
undiscovered trespasser
no duty at all b/c completely unforseeable
discovered trespasser
activities - RPP under cirumstances (don't run over him w/your tractor); conditions- duty if known, highly dangerous hidden artificial conditions
licensee
e.g. social guests; activities - RPP; conditions - if known & hidden
invitee
e.g. shoppers; acticities - RPP; conidtions - if hidden & known or should have known
NY property duties
no categories; instead use RPP under the circumstances
warnings and land duties
if the occupier has a duty to protect, he can satisfy the duty by warning
firefighters & police officers & land duties
they can never collect - injuries are an inherent risk in their jobs
emotional distress
"near miss" case - P was in the zone of danger; must have subsequent, physical manifestations
bystander claim for ED
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
exceptions to statutory violations as negligence
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)
care standard
"you must give the amount of care that would be given by a hypothetical reasonably prudent person acting under similar circumstances"
duty to rescue
preexisting relationship (family; common carrier or inn keeper; land owner & invitee); or if you begin to rescue, then duty of reasonable care
NY good samaritan law
if doctor nurse or veterinarian begins to rescue, and fails, still no duty
breach text
"and the evidence shows conclusively that he failed to stop at the red light (breach)"; you can use res ipsa if nothing else
factual causation text
"the breach was a factual cause of the injury if, but for the breach, P would be healthy today"
unascertainable cause
if Cheny & D2 shot, not sure which one hit P, then shift BoP to D to show which was not the cause
intervening medical negligence
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)
intervening negligent rescue
P is hurt in accident and rescuer makes it worse; rescuers are always forseeable
reaction furthers injury
after an accident, the other pedestrians stampede and P is injured worse; D is liable for that too
subsequent accident or disease
P's leg is hurt in an accident; he's on crutches and falls and breaks arm; D is liable for that too
egg-shell P doctrine
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)
collateral source rule
NY: no collateral source - so if you win $300k but $20k from insurance, you can only recover $280k
pure comparitive negligence
NY: goes by jury's percentages, irregardlessly
modified comparitive negligence
MBE: if P's fault is > 50%, that is an absolute bar to recovery
preliminary injunction
must show likelihood of success on the merits; irreprable injury
permanent injunction
must show all of the elements of some tort; no adequate remedy at law; the injunction will be enforceable
defenses to an injunction
unclean hands; laches (perjudicial delay); first amendment
injuries caused by animals
domesticated - no S/L, only negligence; wild, trespassing cattle - S/L
ultra-hazordous activities
blasting & explosives; chemicals & biologicals & nukes; chlorine gas
S/L defenses
if P knedw of danger and his conduct was uneasonable; assumption of risk; comparative negligence
manufacturing defect
if it differs from all of the others --> S/L
design defect
P must identify a H.A.D.; inadequate warnings are a defect; failure under misuse can still be a defect, if foreseeable (speeding)
products negligence
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
products S/L
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
breach of implied warranties
warranties of fitness for a particular purpose or merchantability; damages can include ecnomic loss
misrepresentation
express warranties lead to economic damages;
workers comp
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)
workers comp exemptions
I/C's; teachers; non-manual laborers at non-profits; part time domestic or household EEs; clergy
workers comp exceptions
intoxication; intentional harm; voluntary, off-duty athletics (softball league); horseplay can go either way; illegal acts are covered if w/in empt
private nuisance
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
public nuisance
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
coming to the nuisance
is a factor, but not conclusive; answer is a matter of judicial discretion
zoning violation
is a factor, but not conclusive; answer is a matter of judicial discretion
ER/EE vicarious liability
if EE was w/in the scope of empt (not intentional tort); or if tort was designed to serve ER's interests
vicaroius liability for IC's
no; unless ICs working on premises injure invitees
automobile owner / driver
generally, no vicarious liability, unless driver is an AGENT (doing an errand)
NY automobile owner / driver
owner is vicariously liable for anyone driving with his permission
parents / kids
parents are never liable for torts of their children, except intentional torts up to $5k
loss of consortium
1) loss of services (laundry; fixing garage); 2) loss of society (no one to talk to); 3) loss of sex
NY pregancy duties
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