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92 Cards in this Set

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Intentional Tort Requirements
1) Want to produce the given consequences (with desire/objective/etc to do so). Need a volitional movement by the defendant
Intent can be specific (goal in acting is to bring about the specific consequences) or general (act knowing with “substantial certainty” that the consequences will result)
2) You know that those consequences are virtually certain to result
Transferred Intent
Applies when the defendant intends to commit a tort against one person but instead
1) Commits a different tort against that person
2) Commits the same tort as intended but a against a different person or
3) Commits a different tort against a different person
Limitations on Transferred Intent
Transferred intent may only be invoked if both the intended tort and the resulting tort are one of the following:
1) Assault
2) Battery
3) False Imprisonment
4) Trespass to Land or
5) Trespass to Chattels
1) Defendant created a harmful or offensive contact and
2) that the contact is with the plaintiff’s person with intent
Offensive = Unpermitted
Plaintiff person includes anything connected to the plaintiff – anything the plaintiff is touching/holding
Don’t have to touch you if touch/kick your purse/dog/etc
Contact can be direct or indirect (can set trap to cause the battery)
1) Defendant places plaintiff in reasonable apprehension
2) Of an immediate battery (harmful or offensive conduct to plaintiff’s person)
3) With intent
Apprehension = Knowledge
Mere talk is NOT sufficient, there must be objective conduct which makes it immediate
Words CAN negate/destroy the immediacy
False Imprisonment
1) An act or omission of the defendant with intent that confines or restrains the plaintiff
2) To a bounded area
Types of False Imprisonment Confinement/Restraint
These include:
1) Physical Barriers
2) Physical Force
3) Threats of Force
4) Failure to Release
5) Invalid Use of Legal Authority
False Imprisonment - Things not sufficient confinement/restraint
1) Moral Pressure
2) Future Threats
Intentional Infliction of Emotional Distress
1) Extreme and Outrageous Conduct by the Defendant
2) Causing Damage = Severe Emotional Distress by the Plaintiff
3) Defendant acts with intent or recklessness
Outrageousness for Intentional Infliction of Emotional Distress
“Conduct that exceeds all bounds of decency tolerated in a civilized society”
NOT mere insults
Typical "outrageous" situations:
1) Continuous/Repetitive/ Ongoing Conduct
2) Defendant is a common carrier (ex: Northwest, Amtrack, etc)
3) Conduct directed toward people in a fragile class (children, elderly, pregnant women)
4) Conduct toward people you KNOW are hypersensitive (cannot pick on people's weaknesses)
Intentional Infliction of Emotional Distress in NY
There is a separate cause of action from intentional infliction of emotional distress caused by the intentional mishandling of a corpse
Trespass to Land
1) An act of physical invasion
2) On plaintiff’s real property (land)
3) With Intent
Throwing tangible objects on the land is a physical invasion
Land includes the soil below and the air above
Trespass to Chattels
A deliberate damage or theft of some article of personal property (chattel)
For Trespass to Chattels the degree of harm is small/modest
Can be intermeddling (directly damaging chattels) or dispossession (depriving plaintiff of his right of possession of the chattel)
Remedy = cost of repair or rental
A deliberate damage or theft of some article of personal property (chattel)
For convesrion, it is a big harm
This includes wrongful acquisition (theft), wrongful transfer, wrongful detention, and substantially changing, severely damaging, or misusing chattel
Remedy = full market value or replevin ("you break, you buy")
Express Consent
Affirmative Defense
Words in quotation marks that give the you the ability to behave in a certain way
Only valid for the scope of consent
Implied Consent
Affirmative Defense
Consent can based on custom or usage or based on defendant’s reasonable interpretation of the plaintiff’s objective conduct
Remember: Objective standard!
Only valid for the scope of consent
1) Proper Timing - threat is imminent or in progress, "in the moment"
2) Defendant must have a reasonable belief that the threat is genuine. Reasonable mistake will not destroy ability to be able to defend yourself/others/ property. Shopkeepers Privilege Exception = can detain suspected shoplifters.
Only use the amount of defense necessary in those circumstances, liable for excessive force.
Entry on Land to Recapture Chattel
1)Privileged to enter land of the wrongdoer to recapture the chattels
Must reclaim them in a reasonable time and manner after first demanding their return
2) Can enter and reclaim chattel on the land of an innocent party
Must reclaim in a reasonable time and peaceful manner when landowner has been given notice of the presence of the chattel and refuses to return it
Chattel owner may be liable for any damage caused on the land by entering it
3) Cannot enter land if the chattels are there at the fault of the owner. Those chattels must be recovered through the legal process
Reasonable force is allowed and mistake is not generally allowed
Only a defense for trespass to land, trespass to chattels, or conversion
Public Necessity: Invade property during an emergency to protect group of people - not liable
Private Necessity: Invade land to protect yourself and:
1) Defendant must pay for the actual harm he causes
2) Defendant will not be liable for nominal or punitive damages
3) Defendant is allowed to remain on plaintiff’s land in a position of safety.
Defamation Elements
1) Defamatory Language about the plaintiff
2) Publication by defendant to a third person
3) Damage to the plaintiff’s reputation
Entry on Land to Recapture Chattel
1)Privileged to enter land of the wrongdoer to recapture the chattels
Must reclaim them in a reasonable time and manner after first demanding their return
2) Can enter and reclaim chattel on the land of an innocent party
Must reclaim in a reasonable time and peaceful manner when landowner has been given notice of the presence of the chattel and refuses to return it
Chattel owner may be liable for any damage caused on the land by entering it
3) Cannot enter land if the chattels are there at the fault of the owner. Those chattels must be recovered through the legal process
Reasonable force is allowed and mistake is not generally allowed
Only a defense for trespass to land, trespass to chattels, or conversion
Public Necessity: Invade property during an emergency to protect group of people - not liable
Private Necessity: Invade land to protect yourself and:
1) Defendant must pay for the actual harm he causes
2) Defendant will not be liable for nominal or punitive damages
3) Defendant is allowed to remain on plaintiff’s land in a position of safety.
Defamation Elements
1) Defamatory Language about the plaintiff
2) Publication by defendant to a third person
3) Damage to the plaintiff’s reputation
Any defamation embodied in a permanent media of expression – typically written or recorded
Could be burned on CD, saved on computer, slideshow, film, etc
Libel plaintiffs do NOT need to prove damages – all they need is a defamatory statement and publication
Slander Per Se
Treated like libel so plaintiff doesn't have to prove damages
1) Statement by defendant concerning the plaintiff’s business or profession
2) Statement that the plaintiff committed a crime of moral turpitude
3) Statement imputing unchastity toward a woman
4) Statement that the plaintiff suffers from a loathsome disease (leprosy or venereal disease)
Defamation Defenses
1) Consent
2) Truth
3) Privilege - Absolute (spouse speaking to spouse or officers of government engaged in official functions) or Qualified (when there is a socially useful occasion of speech and want to encourage candor - can be lost through abuse)
First Amendment kind of Defamation
Plaintiff must prove defendant's falsity and fault (if public figure have to show acted recklessly or with intent, for a private person then just have to show negligence)
Defendant uses plaintiff’s name or picture without authorization for a commercial purpose
Newsworthiness Exception - if accepted under 1st Amendment then usually not actionable
Following almost always actionable:
1) Use of plaintiff’s name/picture on packaging (like cereal box)
2) Use of plaintiff’s name/picture on advertising
3) Use of the plaintiff’s name/picture as a trademark
For NY:
This is the only privacy tort recognized and the newsworthiness exception is very broad
Invasion (prying or intruding) of plaintiff’s seclusion in a way that would be objectionable to an average person
Can get injunction or monetary damages
Plaintiff must be in a position where there is a legitimate expectation of privacy in order to have a valid complaint
There is NO requirement that defendant do a trespass to land in addition to the intrusion
For NY:
There is NO tort of intrusion
False Light
Widespread dissemination of a major misrepresentation about the plaintiff that would be objectionable to an average person
Can be defamatory statement or not. Can get damages in false light for psychological and emotional damages cannot get with defamation.
Good faith belief you are telling the truth is no defense - not an intentional tort.
For NY:
There is NO tort of false light
Disclosure of Confidential Facts
Widespread dissemination of confidential information about the plaintiff that would be objectionable to an average person
Newsworthiness Exception - can publish information on people in the public eye or putting themselves out there, this is interpreted very broadly
For NY:
There is NO tort of disclosure
Defense to Privacy Torts (Appropriation, Intrusion, False Light, Disclosure)
1) Consent
(Defense to all 4 of the privacy torts)
2) Defamation Privileges (Available to defend a claim of false light and disclosure)
1) Must be an affirmative representation by the defendant (has to lie about something)
Silence is not enough, there is no duty to make a disclosure
Caveat Emptor = let the buyer beware, beware because silence does not mean that the product is in good shape
First step in fraud is to demonstrate that the seller affirmatively misrepresented the item
2) There has to be fault
oDefendant must know the information is inaccurate or speak recklessly.
This is sometimes called “scientor.” If you are just an idiot and don’t know what you’re saying is a lie, that’s not fraud.
3) Defendant must intend to induce reliance
Misstatement must be central to the deal and the defendant’s goal must be to get the plaintiff to rely on the falsehood.
If just making conversation and say something not true without intent to have the plaintiff rely on it then it doesn’t count.
4) Need reliance:
Plaintiff has to pay attention to what is said and use it as a component in decision-making.
Opinions need to have reliance that is justifiable
5) Need economic harm/damage
Prima Facie Tort
1) Intent to do Harm
2) Resulting Harm
Harm is almost always financial harm
This is a catchall category designed for malicious economic material.
This is a NY tort.
Inducing Breach of Contract
1) Has to be a valid contract not terminable at will between the plaintiff and some third party
2) Defendant knows of the contract
3) Defendant must exercise persuasion to convince the third party not to perform
That persuasion can be: coercion, offering a better deal, saying something negative about the plaintiff,
4) The persuasion has to work and the third party has to breach
Then plaintiff has a cause of action against defendant for inducing breach of contract as well as the claim against the third party for breach.
There is privilege to persuade third parties to breach is extended to individuals in a special or counseling relationship to the third party who breaches. Relationship can be: lawyer, accountant, spiritual, famillial, etc
Theft of Trade Secrets
1) The plaintiff must own a valid trade secret
2) The defendant must take it by improper means
Vaid Trade Secret:
1) Plaintiff must possess information that provides a business advantage – commercial value
2) That information cannot be generally known
3) Plaintiff takes reasonable efforts to keep that information a secret
Defendant must take/learn of the secret by improper means:
1) Traitorous Insider
2) Industrial Spy
Note: Reverse Engineering is NEVER improper
Copyright, Patent, Trademark
Create work of art or literature with a copyright then no one else can copy it
Invent something, go to government, get piece of paper saying it’s a patent and no one else can copy it
Brand name for your product, no one else can use it in a way that confuses the public and can’t use something closely similar
Malicious Prosecution
1) Institution of criminal proceedings against a plaintiff
2) Termination in plaintiff’s favor
3) Absence of probable cause for prior proceedings
4) Improper purpose
5) Damages
Abuse of Process
1) Wrongful use of process for ulterior purpose
2) Definite act or threat against plaintiff in order to accomplish an ulterior purpose
Elements of Negligence
1) Duty
2) Breach
3) Causation
4) Damage
Negligence: Duty
You owe a duty to foreseeable victims of your carelessness
Have to incorporate risk reducing precautions to foreseeable victims
Need to act as a reasonably prudent person (exception: expertise, know specific information, or have special phsyical characteristics like blind/wheelchair/etc compare to people with same knowledge/expertise/
Victims outside the "zone of danger" are unforeseeable
Exception: Rescuers are always foreseeable ("danger invites rescue")
Negligence: NY Duty Issues
Injuries to Fetus:
Impact due to carelessness on the pregnant woman - if baby born alive has cause of action, if not then only the woman has cause of action.
If doctor fails to diagnose birth defects, can recover for extra costs of caring for child but not for emotional damage.
If doctor messes up vasectomy and have a child, no recovery - get joy of the child.
Negligence: Special Duties: Children
Duty of Children:
Children under 4 owe no duty, Children 4 to 18 owe duty of care of children of similar age, experience, and intelligence acting under similar circumstances BUT doesn't apply if child is engaging in an adult activity, then reasonably prudent person standard
Negligence: Special Duties: Professionals
Duty of Professionals:
Professionals owe the care of an average member of the profession practicing in a similar community
Doctors have to explain risks except if:
1) If risks are commonly known
2) If patient decries the information
3) If patient is incompetent or
4) If disclosure would be harmful
Negligence: Special Duties: Entrants on Land
Duty owed to entrants on Land:
Either hurt by activities on land or dangerous conditions/activities on the land
1) Undiscovered Trespasser - Owed NO duty at all
2) Discovered Trespasser - if hurt from activity, then owe duty of reasonably prudent person; if dangerous condition only owe duty if condition was artificial, highly dangerous, hidden/concealed, and known to the land occupier
3) Licensee (enter land with permission primarily for own purposes) - for activities owe reasonably prudent person standard and for conditions owe duty to protect licensees if condition is concealed and knew of the condition in advace but there is no duty to inspect (must protect from known traps)
4) Invitees (go to commercial properties) - for activities owe reasonably prudent person standard, for conditions owe duty to protect invitee from known concealed conditions or conditions could have known - do have duty to inspect
For NY:
No distinctions, just use the reasonably prudent person standard for every circumstance, although if it is a trespasser there will still be less care than an invitee
Negligence: Special Duties: Entrants on Land Exceptions
1) Firefighters/police officers cannot recover from injuries caused during their job
2) Children Trespassers - owe reasonably prudent person standard of care but the more likely children will go on land to play with dangerous condition, the higher the duty ("Attractive Nuisance Doctrine")
3) Whenever occupier owes entrant protection from a condition, the occupier can satisfy his duty by fixing the condition or giving proper warning
Negligence: Special Duties: Statutory Standards of Care
Borrow criminal/regulatory standards for things similar to the court that state the duty required for that thing - need to ask court's permission to do this and must show:
1) He is a member of the class of persons that the statute seeks to protect and
2) The accident is in the class of risks that the statute seeks to prevent
If show those things, then it is negligent per se
Don't use statute if
1) Compliance is more dangerous than violation or 2) If compliance is impossible
Negligence: Special Duties: Duties to Act Affirmatively
No duty to act/rescue unless:
1) If there is a preexisting relationship between the person and the person in peril, you have to rescue – familial, common carrier and customer, etc
2) If defendant caused the peril
Note: Have duty to rescue reasonably under the circumstances
If you voluntarily choose to rescue, you have to do it as a reasonably prudent person and cannot just give up or mess up
NY Good Samaritan Statute: No liability if you are a doctor, nurse, or veterinarian
Negligence: Special Duties: Negligent Infliction of Emotional Distress
Plaintiff does not suffer a physical trauma, just emotional distress
Plaintiff must show:
1) Defendant was negligent
2) Plaintiff ALMOST was a victim of a trauma - in "zone of physical danger" or "target zone"
3) Plaintiff must show he suffered subsequent physical manifestations of the emotional distress (can be immediately after or longer, ex: heart attack, miscarriage)
Second theory: Bystander Claim (recognized in NY)
1) Bystander must himself be in the zone of danger, have to be almost hurt yourself
2) Close family member must be parent, spouse, or child (aunt doesn’t count)
For NY:
If doctor malpractice results in stillborn baby then mother has cause of action but if baby born alive, only the baby has the claim
Negligence: Breach
This is the point where the plaintiff must identify the wrongful conduct that the defendant engaged in and in addition the plaintiff must explain why it is wrongful conduct.
The more specific the duty, the less there is to say about the breach
Negligence: Breach: Res Ipsa Loquitor
Plaintiff must show:
1) Accident that occurred doesn’t usually occur in the absence of negligence
Can be either by simple appeal to common human experience (like asking for judicial notice) or through expert testimony
It is essentially an argument on probability – something that “normally” doesn’t occur in the absence of negligence - more often than not usually wouldn’t happen unless negligence
2) Plaintiff also has to show the accident that occurred is usually due to negligence of someone in the defendant’s position
Basically showing you sued the right person
Res Ipsa showing is circumstantial evidence of breach that gets you to the jury that is then able to do as it wishes
"The thing speaks for itself"
Negligence: Factual Causation
Plaintiff’s obligation to show a connection/linkage between the breach and the ultimate injury suffered
"But for" test - Defendant rebutts by saying "even if" he didn't breach, the harm would have occurred
For Multiple Defendants:
1) Mingle Cause Case - show defendants were both a "substantial factor" in causing the harm so jointly liable
2) Unascertainable Cause - defendants have to prove why they were not the cause, if cannot do that then jointly liable
Negligence: Proximate Cause
It is fair to hold the defnednat liable because the harm was foreseeable
Negligence: Indirect Causes
1) Intervening Medical Negligence - if send the plaintiff to the hospital and doctor is negligent and causes more harm, liable for the whole thing
2) Intervening Negligent Rescue: if you cause plaintiff to need to be rescued and during the rescue the rescuer causes more harm, you are liable for the whole thing - know rescuers will be attracted and may cause more damage so fair and foreseeable
3) Intervening Protection or Reaction Forces: Defendant liable for all the damages if put plaintiff in position where have the protection/reaction forces (like a stampede)
4) Subsequent Action or Disease: liable for both (like if you have broken leg, fall with crutches and break arm)
5) If not one of the above, ask whether you were worried about that consequence from the breach
Damages: Egg Shell Doctrine
Defendnat is responsible for all the damage, even if it is greater because of specific situation
"Take the plaintiff as you find the plaintiff"
For NY:
Do not follow the "collateral source doctrine" - amount recover will be reduced by other recovery like your personal insurance
Permanent Injunction
Must show:
1) This is the adequate remedy at law (money isn't adequate)
2) You are suffering an invasion of a property right or some other protectable right (most everything now is considered a protectable right)
3) Have to show the requested injunctive relief will be enforceable (length of conduct, complexity of conduct, and whether conduct is outside of NY makes it harder to enforce)
4) Balance the hardships (show benefit to plaintiff is greater than burden to defendant)
Injunctive relief and monetary damages are not mutually exclusive, can get both
Defenses to Injunctive Relief
1) Unclean hands
2) Laches (took too long to try and get injunctive relief and defendant changed his position in the interim time)
3) 1st Amendment - if trying to prevent publication of a book/newspaper will instead allow publication and have you get monetary damages later
Preliminary Injunction
Must show:
1) A likelihood of success on the merits and
2) Will suffer irreparable injury
Negligence: Affirmative Defenses
1) Comparative Contribution or Comparative Fault:
Defendant has to show plaintiff failed to exercise proper care for his safety and then the jury will weigh the percentage of fault and damages will be reduced according to the plaintiff's contribution
2) Pure Comparative Fault: Go exclusively by the jury’s number no matter what amount of fault the plaintiff may be assigned so plaintiff always recovers some damages even if plaintiff bears the majority of the fault
3) Modified/Partial Comparative Fault:
Plaintiff’s fault over 50% is an absolute bar to recovery while under 50% reduces recovery
For NY:
NY is a pure comparative fault jurisdiction
Strict Liability: Injury Caused by Animals
1) No strict liability for domesticated animals unless you are on notice ("Every dog gets 1 free bite")
2) Tresspass of Cattel is strict liability
3) Wild animals are strict liability
Strict Liability: Ultra-hazardous Activities
1) Activity cannot be made safe (lack technology to eliminate most of the risk)
2) Activity poses a risk of severe harm
3) Activity is uncommon in the community where it is being conducted
Big Activities:
1) Anything involving blasting or explosives
2) Anything involving highly dangerous chemicals or biological materials
3) Anything involving nuclear energy or radiation
Strict Liability: Injuries Caused by Consumer Products
1) Defendant must be a merchant = someone who routinely deals in goods of this type (Includes a commercial lessor but NOT a casual seller or service provider)
2) Plaintiff must show that the Product has a defect, either Manufacturing defect (1 in a million that causes harm) or design defect (could have designed it safer, cost effectively, and practically) or information like warnings should be part of the design
3) Have to show defect existed when product left the defendant's hands
4) Plaintiff has to show that he was a foreseeable user, making a foreseeable use of the product
Strict Liability Defenses
Use comparative fault just like negligence
Suffer a harm that is an interference with your ability to enjoy you land to an unreasonable degree
Don’t care whether the defendant acts intentionally, negligently, or with all reasonable care – the defendant can be held liable regardless
Court balances the interests and decides whether relief should be granted
Vicarious Liability on Multistate
Based on Relationship:
1) Employee/Employer - liable if within the scope of employment, usually use of force not within scope. Exception: if use force part of the job (like bouncer) then within scope and if job generates friction/anger or if force done for benefit of employer then use of force is within the scope
2) Hiring party and independent contractor - liable only if contractor hurts invitees
3) Automobile owner and driver of car - owner is not vicariously liable unless driver is doing an errand for the owner
4) Parents/Children- no vicarious liability
Vicarious Liability in NY
1) Permissive Use Doctrine - owner of car is liable for drivers of his car with permission, presume permission and must prove driver did not have permission
2) Parent/Children Exception: Parents can be vicariously liable for damage of the intentional torts of their children for up to $25,000
Loss of Consortium
1) Uninjured spouse can sue for loss of services
2) Uninjured spouse can recover for loss of society
3) Uninjured spouse can sue for loss of sex
Governmental Immunity
Exists when government officials exercise discretion about traditionally governmental activities (like police discretion in police enforcement)
But, if government does a proprietary function, then no immunity – like maintaining a municipal parking lot, wet floors in a State University
Assumption of Risk
Affirmative Defense
Plaintiff must have:
1) Known of the risk and
2) Voluntarily proceeded in the face of the risk
This is not an absolute bar of recovery and falls within comparative fault to reduce the plaintiff's damage award.
Negligence: Special Duties: Duties of Lessor and Lessee
The lessee has a general duty to maintain the premises. The lessor must warn of existing defects he knows of or has reason to know of and which he knows the lessee is not likely to discover upon inspection. If the lessor covenants to repair, he is liable for unreasonably dangerous conditions. If the lessor volunteers to repair and does so negligently, he is liable. If a guest of the tenant is injured, the landlord may be liable as the lessor but the tenant may also be liable to the guest because the tenant was teh owner/occupier of the premises.
Negligence: Special Duties: Duties of Vendor of Realty
Vendor must disclose to the vendee concealed, unreasonably dangerous conditions of which the vendor knows or has reason to know and which he knows the vendee is not likely to discover on a reasonable inspection.
Negigence: Damages: Punitive Damages
Plaintiff may recover punitive damages if the defendant's conduct is "wanton and willfull," reckless, or malicious
Negligence: Damages: Nonrecoverable Items
1) Interest from the date of damage in a personal injury action
2) Attorney's fees
Negligence: Damages: Property Damage
Can recover the reasonable cost of repair, or if the property is nearly destroyed, the fair market value at the time of the accident
Negligence: Damages: Collateral Source Rule
Damages are not reduced just because the plaintiff received benefits from other sources like insurance.
For NY:
NY does not follow this rule
Contribution defense to intentional torts
No defense of contributory negligence to intentional torts
No defense of assumption of risk for intentional torts.
Defenses: Last Clear Chance Rule
Plaintiff can recover despite her contributory negligence. Under this rule, the person with the last clear chance to avoid an accident who fails to do so is liable for negligence (plaintiff's rebuttal to a defendant's claim of contributory negligence)
Defenses: Imputed Contributory Negligence
Generally, contributory negligence of a third party will be imputed to a plaintiff (and bar her claim) only when the relationship between the third party and the plaintiff is such that a court could find the plaintiff vicariously liable for the 3rd party's negligence. Negligence is imputed in the following relationships: master/servant, partner, joint venturer. It is not imputed for: husband/wife, parent/child, automobile owner and driver.
Private Nuisance
Substantial, unreasonable intereference with another private individual's use or enjoyment of property that he actually possesses or to which he has a right of immediate possession.
Substantial interference = offensive, inconvenient, annoying to the average person in the community.
Unreasonable Interference = severity of the inflicted injury must outweigh the utility of defendant's conduct.
Public Nuisance
An act that unreasonably intereferes with the health, safety, and property rights of the community.
Nuisance Remedies
Plaintiff usually is awarded damages and if those are inadequate the court can award an injunction based on a balancing of the party's hardships. The court will not balance the hardships if the defendant was willful or if the plaintiff makes an assertion of right.
Private Nuisance Remedy of Self-Help Abatement
Self-help abatement is available after notice to defendant and defendant's refusal to act. Only necessary force can be used.
In private nuisance cases, only a public authority or private party that suffered unique damages can seek an injunction or abatement.
Nuisance Defenses
Legislative Authority (zoning, etc) is not an absolute defense but is persuasive. No one actor is liable for all damage caused by concurrence of his acts and others (if a bunch of people contribute to polluting a stream, each is responsible for the damage). Contributory negligence is generally no defense to nuisance unless plaintiff's case is based on a negligence theory.
If plaintiff "comes to the nuisance" recovery will not be barred unless she came just to bring a harassing lawsuit.
Liability of Tavernkeepers
Common Law: No liability imposed on vendors of alcohol for injuries resulting from the intoxication, whoever sustained those injuries.
Modern Law:
Many states have Dramshop Acts that give 3rd parties a cause of action against the tavernkeeper. Several courts imposed liability on tavernkeepers even without the Dramshop Act.
NY Defenses to Appropriation
Along with the newsworthiness exception, the following are also exceptions to appropriation in NY:
1) Prior written consent
2) A photographer exhibiting his work unless continued after written notice of objection
3) Goods or a literary, musical, or artistic production that the manufacturer, dealer, author, composer, or artist has sold or disposed of with his name, picture or portrait used in connection therewith
Negligent Misrepresentation in NY
Before defendant may be held liable for negligence to non-contractual parties who rely on the misrepresentation, the following must be shown:
1) Awareness that the statement or representation was to be used for a particular purpose
2) Reliance by a known party in furtherance of the purpose
3) Some conduct by defendant that demonstrates the defendant's understanding of the party's reliance
Express Assumption of Risk in NY
Certain groups of persons are precluded by statute from using contract clauses to deny liability (lessors, contractors, amusement parks, etc). Furthermore, in motor vehicle accidents where the plaintiff has failed to make use of an available seat belt, trier of fact may consider non-use in mitigation of damages but not as evidence on the issue of liability. Failure to use a seat belt is an affirmative defense.
Respondeat Superior in NY
Punitive damages are not recoverable in an action against an employer for torts of its employee unless:
1) The employer was grossly negligent in hiring or allowing the employee to continue to work
2) The employee was entrusted with the general management of the business
3) The tortious act was authorized or ratified by the employer
Tavernkeepers in NY
NY Dram Shop provision makes a vendor who "unlawfully" supplied intoxicated vendees with alcohol liable to third parties injured by the intoxicated vendees. The "unlawful" sale of alcohol includes selling to visibly intoxicated people and any person actually or apparently under the age of 21
Survival of tort claims after death in NY
Actions involving harm to intangible interests, such as libel and slander, survive.
The personal representative of the decedent's estate may maintain an action for wrongful death.
Loss of consortium is NOT compensable in a wrongful death action. Punitive damages are recoverable by the personal representative of the descedent and allocated among distributees who have sustained pecuiary loss in proportion to the amount of loss sustained by each.
The wrongful death action must be brought within 2 years from the time of death.
Intra-Family Tort Immunities in NY
There are no intra-family immunities of any kind in NY. A parent does NOT owe a duty to supervise a child's day to day activities and therefore a child cannot sue his parent for negligent supervision. There is a duty for the parent to protect third parties from foreseeable harm resulting from an infant child's improvident use of a dangerous instrument found to be subject to the parent's control. This may even apply if the infant is unrelated to the defendant. In those cases, the defendant-parent may be found liable to a third party under a theory of negligent entrustment.
State and Municipal Government Immunity in NY
There is no immunity for proprietary funcitons or where there is a special relationship establisehd with the state/ municipality. In all other cases there is immunity.
Where there is a proprietary function, laibility may be imposed according to ordinary tort principles.
Governmental v. Proprietary can be a close question