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97 Cards in this Set

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What are the elements of battery?
a. Defendant must engage in a harmful or offensive contact (it's harmful or offensive if a reasonable person would consider it as such).

b. To P's person

c. Intent

d. Causation
For battery purposes, what is P's "person"?
A P’s person includes anything connected to the P – that he may be holding, touching, carrying, etc. (So purse-snatching is battery; dog-kicking is battery.)

D’s body doesn’t have to be involved, and the contact doesn’t have to happen immediately (so poisoning is battery).
What are the elements of a prima facie case for assault?
a. Defendant must create a reasonable apprehension in P (meaning not fear, but “awareness”).

b. The apprehension must be of an immediate battery (harmful and offensive contact to P's person).

c. Intent

d. Causation
What if D lacks the ability to carry a battery to conclusion?
What matters is what P knows. If P knows of D’s inability, P cannot recover for assault. If P isn’t sure, he can recover.
What gives rise to a fear of "immediate" battery?
Mere words lack immediacy. There must be accompanying conduct. (If you say, I’ll hit you in 15 seconds, that’s not a battery – yet).

Sometimes words negate immediacy – can’t say, hey, the battery will occur 6 hours later.
What are the elements of a prima facie case for false imprisonment?
a. Act of restraint (act or omission that confines or restrains P)

b. P must be confined in a bounded area.

c. Intent

d. Causation
What qualifies as an "act of restraint"?
i. Threats are sufficient, but they have to operate on the mind of the P.

ii. Omission can be an act of restraint if there was a pre-existing obligation to assist the P in moving about. (Failure to get wheelchair off plane)

iii. P must know of or be harmed by whatever it is.
What qualifies as a "bounded area"?
Keeping someone out of a space is not confining someone in a bounded area.

If there is a reasonable means of escape that P can reasonably discover, the area is not bounded (but not a dangerous, disgusting, or hidden means of escape).
What are the elements of a prima facie case for intentional infliction of emotional distress?
a. Outrageous conduct
b. Intent to cause P's emotional distress or recklessness as to the effect of D's conduct
c. Causation
d. Damages (severe emotional distress)
What qualifies as "outrageous conduct"?
Conduct that "exceeds all bounds of decency tolerated in a civilized society" (can write def on essay Q). Mere insults are never outrageous; nor is offensive language.

Hallmarks of outrageousness: when conduct in question is repetitive or continuous; when D is a common carrier or innkeeper; P is a member of a “fragile class of persons” (young children, the elderly, pregnant women that D knows is pregnant)

IF D KNEW of P’s hypersensitivity and targeted it, D’s conduct is outrageous. “Exploitation of a known sensitivity” can be outrageous.
What are the elements of a prima facie case for trespass to land?
a. D must commit an act of physical invasion

b. intent to invade land

c. causation

(Don't need to show damages!)
What is a "physical invasion"?
D can enter P’s real estate, on foot or in a vehicle (D need not be aware that he’s on P’s property; mistake will not insulate D from liability).

D can throw or propel a tangible object onto P’s land (if D shoves another person onto land, D trespassed, not friend). Light, sound, smell, etc. don’t give rise to trespass, although they might be a nuisance.
What "land" may be invaded?
Airspace qualifies as land. Picture land as a vertical column of space.
What are the elements of a prima facie case for trespass to chattels?
a. an act by D that interferes with P's right of possession in a chattel.

b. intent

c. causation

d. damages
What is a "chattel"?
Personal property, all stuff except land and buildings, including, say, a dog.
What are the elements of a prima facie case for conversion?
a. an act by D that interferes with P's right of possession in a chattel

b. the interference is so serious that it warrants requiring D to pay the chattel's full value (distinction from trespass to chattels)

c. Intent

d. Causation
What are the remedies for trespass to chattels and conversion?
Trespass to chattels: Cost of repair of chattel.

Conversion: either possession (replevin) or damages in the amount of the fair market value at the time of conversion.
What is transferred intent?
The transferred intent doctrine applies when the D intends to commit a tort aainst one person, but instead either (i) commits a different tort against that person; (ii) commits the intended tort, but against a different person; or (iii) commits a different tort against a different person. In these cases, the intent to commit a certain tort against one person is transferred to the tort actually committed or to the person actually injured for purposes of establishing a prima facie case.
When does transferred intent apply?
May be invoked ONLY if both the tort intended and the tort that results are one of the following:

a) assault
b) battery
c) false imprisonment
d) trespass to land
e) trespass to chattels
When is property abandoned?
Property is considered abandoned if the original owner abandoned AND has the subjective intent to give up title and control.

Lost property – you accidentally part with possession, but have no intention to part with ownership.
When does a finder become the new owner of found property?
If you find property with a value of less than $20, you must make a reasonable effort to find the owner, and if you don’t find him/her, you become the new owner after a year.

If you find property with a value of more than $20, you must take it to the police, who hold it for a long time. If owner never claims it, the finder can come back and claim it.
What are the requirements of an intervivos gift?
a. O must have an intent to pass title (donative intent)

b. There must be a valid acceptance by the donee. Only an issue if the donee declines the item.

c. There must be valid delivery (principal testable point). Actual item must be handed over (keys, deed, certificate, etc.).
When are checks and stocks properly delivered?
1. first-party checks: no delivery until check is cashed, because donor is always free to stop payment.

2. third-party checks: an endorsed check is delivered upon physical tender of the check

3. stock certificates: no need to cash.
When are gifts causa mortis valid?
1. Imminent risk of death that is objectively likely to occur.

2. Not valid if donor survives, nor if donee dies first.
What are "common law" liens and how do they arise?
Common law liens are basic security interests, i.e. the right to retain someone else’s personal property until the owner satisfies a debt.

How a lien arises: there must be a debt for services rendered. Property must be in possession of creditor.
What are the 2 types of common-law liens?
1. General – right of a creditor in aggregate property as security for a general balance due.

2. Special – the right to retain specific property that has been improved or acted upon as security until payment for the improvement is given (think car in mechanic's shop). If the specific property is returned to debtor, the lien is erased (unlike with general liens).
What is a bailment and what does it cover?
A bailment is created when O parts with possession for a particular purpose (lending a pen).

The contents of the item over which there is a bailment are also subject to bailment, to the extent that they are “normal”.
Is a bailment created when you:

(1) open a safety deposit box?
(2) Park & leave keys?
(3) Park and retain keys?
(1) Safety deposit boxes: this is the only case where a bailment is created, even though the bailee (bank) has no idea what is in the safe deposit box.

2. Parking lot where you leave keys: bailment.

3. Park & lock where you keep keys – not a bailment.
What duty is upon the bailee?

What level of liability might she have?

Can she contract away her liability?
Bailee has a duty of care to see to it that no harm comes to the bailed item.

(1) Bailee is strictly liable when she uses an item in ways that are outside the usual terms of the bailment.

(2) If bailee misdelivers the item at the end of the bailment, there’s a defense if the person who receives the item has documents suggesting they are entitled to it.

(3) Bailees can limit their liability, but they can’t contract it all away.
Defenses to intentional torts: Consent.

What is express consent and when is it invalid?
Preliminary Q: Are we dealing with a P who has legal capacity to consent? No drunks – kids have the capacity to consent to things that are age-appropriate though.

Express consent is a defense to any subsequent tort.

** However, express consent is ignored in cases of fraud or duress. Hypo of obtaining consent to sex under fraudulent pretenses (not letting partner know about STD). Consent is rendered invalid.
Defenses to intentional torts: Consent.

What is implied consent and when might it happen?
1) Custom or usage: If a P goes to a place or engages in an activity where certain minor tortuous invasions are considered routine, P is considered to have consented to those (subway, sports… but you don’t consent to non-routine things like getting your hand stomped on while playing basketball).

(2) D’s reasonable interpretation of P’s overt conduct (candlelit dinner and kiss hypo). Note that the subjective thoughts of the P never enter into the analysis.
Defenses to intentional torts: Self-defense/defense of others/defense of property

What are the requirements?
(1) D must show proper timing. The tort that D claims to be responding to must either be imminent or in progress. If the tort is over/finished, no protective privilege. No revenge.

(2) D must show a reasonable belief that a tort is about to be committed. (So a reasonable mistake will not destroy or negate the privilege – shopkeeper’s privilege.)

(3) Response must be proportionate.

You can use deadly force, provided you reasonably believe human life to be in jeopardy. BUT NO deadly force with respect to property, ever.

** New York distinction: NY is a retreat state; it follows the minority view that you must retreat before using deadly force. BUT there’s no duty to retreat in your own home. Also, police officer has no duty to retreat.
Defenses to intentional torts: Necessity.

When is necessity available?
Only available in cases involving the three property torts:

(1)trespass to land,
(2)trespass to chattels, and
Defenses to intentional torts: Necessity.

What is public v. private necessity?
PUBLIC necessity: when a D invades P’s property in an emergency to protect the community as a whole or a significant group of people. “Savior of the city”. “Mad dog in the street”. Complete and total defense.

PRIVATE necessity: arises when D invades P’s property in an emergency to protect an interest of his own. These D’s are self-interested, so it’s a limited defense with 3 consequences:
(1) Private necessity D must pay for actual harm done to P’s property.
(2) Private necessity D never pays nominal or punitive damages.
(3) As long as emergency continues, private necessity D has a right to stay on P’s land in a position of safety. P cannot eject/expel him; there is a right of sanctuary (if P does and D is harmed, P will be liable for battery).
What are the elements of defamation?
(1) defamatory language

(2) "of or concerning" the plaintiff

(3) PUBLICATION of the language by the defendant to at least one person (need not be intentional publication)

(4) Damage to plaintiff's reputation

(If the defamation involves a matter of public concern, the Contstitution also requires plaintiff to prove (1) falsity of the defamatory language and (2) fault on the part of the defendant.)
What is a defamatory statement?
It must tend to harm reputation.

Mere name-calling is usually not defamation (usually does not harm rep).

Typical defamatory statements: allegation or assertion of fact that reflects negatively on a trait of character (such as honesty, peaceableness, competence, loyalty, sexual propriety).

Statement of opinion is defamatory if a reasonable listener would conclude that the statement is factually based.

Statement need not be defamatory on its face; context can make it defamatory.

In the U.S., the P must be living at the time the statement was made.
What is libel, and what damage to reputation must be proved to get a libel claim to the jury?
Libel is any defamation that is written down or otherwise captured in a permanent format. Handwritten letter is libel; published article is libel.

Damage here are not required to get to the jury, although the libel P is free to offer evidence of damage.
What is slander, and what damage to reputation do you have to show to get to the jury?
Slander is any spoken defamation.

For slander that is not slanfer per se, P must prove concrete harm to reputation (you got fired, you lost a contract. Mental or emotional distress, the fact that no one wants to play bridge with you anymore is not enough).
What is slander per se, and what damage to reputation do you have to show to get to the jury?
Slander per se – spoken defamation that is particularly harmful to reputation.

No requirement of damage to get to the jury.

4 specific categories:
(1) Statement by D concerning P’s business or profession.
(2) Statement by D that P has committed a crime of moral turpitude.
(3) Statement imputing unchastity to a woman.
(4) Statement that the P suffers from a loathsome disease (only 2: leprosy and venereal disease).
(**5) NY distinction – 5th category: Statement that imputes homosexuality to someone.
What are four defenses to defamation?
(1) Consent (express or implied);

(2) Truth (a complete defense);

(3) Privilege, and

(4) Qualified privilege
What are 2 kinds of absolute privileges?
Absolute privileges: arise based on ID or status of speaker.

(1) Spouses. If husband says something to wife that defames another person, he is not liable for anything.

(2) Officers of the 3 branches of government are also given absolute protection. Most important is judicial branch, where it extends not only to judges, but also to attorneys & clients. Nothing said in court can later be the subject of a defamation action.
When do "qualified" privileges arise, what are some examples, and when does D forefeit a qualified privilege?
Qualified privilege – based on purpose of speech, not on ID of speaker. Qualified privilege arises where there is a public interest in promoting candor.

Examples: letters of recommendation, credit reports, statements made to police, statement made to professional disciplinary boards.

Note: D must have a reasonable belief in the accuracy of the disputed statement (D must be speaking in good faith). You lose the qualified privilege if you deliberately spread lies. Cannot inject irrelevancies – must stick to relevant matters.
What is the non-existent BAR/BRI-only category, "First Amendment Defamation"?
Supreme Court made it hard to prove so as not to chill speech. Ps don’t want to bring it.

If what D said or wrote is a matter of public concern, then the P who wishes to sue for defamation either brings FAD, or has no claim. In addition to proving a defamatory statement, publication, and damages maybe, P must show:

(1) Falsity – P must show statement is false (this eliminates truth as a defense).

(2) Fault – P must show D made statement with fault (other than in good faith).

** If the P is a public figure, the P must show the D acted with actual malice (knew statement was false or behaved with reckless disregard to the truth).
** If the P is a private figure, it’s enough to show negligence.
What are the elements of a claim for APPROPRIATION of P's picture or name?

What is the important exception?
(1) unauthorized use of P's picture or name

(2) for D's commercial advantage

- Liability is generally limited to ads or promotions for products or services.

- Exception: Newsworthiness – use for something that is newsworthy is not appropriation

- Remedy: money damages or injunction.

* Only privacy claim recognized in NY – statutory claim; newsworthiness is interpreted very broadly, NY has very limited privacy protection.
What are the elements of a claim for INTRUSTION upon P's affairs or seclusion?
(1) an act of prying or intruding

(2) onto a private thing (so photos in public places don't count, although there's no requirement of trespass; there must be an expectation of privacy)

(3) that is objectionable to a reasonable person.

- Examples: spying, wire-tapping, peeping, etc.
What are the elements of a FALSE LIGHT claim?

Can D be liable even when he spoke in good faith?
(1) widespread dissemination
(2) of a material misrepresentation about P
(3) that would be objectionable to an average person.

- The widespread dissemination requirement is more demanding than the “publication” element of defamation – you have to tell a lot of people.

- If D misrepresents P’s beliefs, you have a false light invasion of privacy, where the underlying statement is not defamatory (if D says P is a devout Catholic, it doesn’t tend to harm P’s reputation).

- This is not an intentional tort. Even a good-faith belief in the accuracy of the information will not insulate the D from liability.
What are the elements of a claim for public DISCLOSURE of PRIVATE FACTS about P?

What are the 2 exceptions?
(1) widespread dissemination

(2) of confidential information about P

(3) that would be objectionable to a reasonable person.

- Ex: Dr mails photocopy of your medical records to all members of your law firm.

- Two exceptions:
(1) Newsworthiness. Interpreted broadly – predicate of the tabloid industry.
(2) ** dual-life fact pattern/not really confidential. Say P functions in 2 different spheres of activity and trying to keep information segregated. If blabbermouth takes info from sphere 1 to sphere 2, P will lose if the info is not really confidential.
What are the defenses to invasion of privacy claims?
CONSENT – defense to all 4 privacy torts. Doesn’t have to be express; may be implied.

PRIVILEGES - (spousal, executive & candor) – defenses to false light & disclosure.
What are the elements of a fraud claim?

What are the defenses?
(1) Misrepresentation: D must make an affirmative misrepresentation of fact

(2) Scienter: With intent or recklessness concerning the misstatement (a good faith or reasonable misstatement will not be actionable for fraud).

(3) Intent: For the purpose of inducing P to rely on misrepresentation (reliance must be central to the transaction)

(4) Causation (actual reliance by P; reliance must be justifiable, i.e. based on statement of fact rather than opinion)

(5) Damage to P (must be economic).

NO DEFENSES to intentional fraud.
What is a prima facie tort?
Catch-all, open-ended tort.

Intentional infliction of pecuniary harm without justification.
What are the elements of a tort claim for inducing a breach of contract?
In general: D is aware of contract between P and 3rd party, meddles in bargain and persuades 3rd party to walk away from the bargain.


(1) Valid contract not terminable at will.

(2) Knowledge of the contract by the D.

(3) D must engage in persuasion or inducement convincing 3rd party to breach.

(4) There must be a subsequent breach.

Defense of privilege granted to certain people to interfere with certain Ks – people who are in a special relationship with one of the contracting parties. Often either a family member or a trusted advisor.
Elements of a NEGLIGENCE claim!!
P must prove, by preponderance of the evidence:

(1) duty - the D had a duty to conform to a specific standard of conduct;

(2) Breach of duty by D;

(3) Causation (both actual and proximate);

(4) Damage.
To whom do you owe a duty of care?
A duty of care is owed to all foreseeable plaintiffs -- victims of your carelessness. (So you don’t owe a duty to unforeseeable victims, who always lose negligence lawsuits.)

Under the Cardozo/majority view, the P must be in the foreseeable "zone of danger" to be a foreseeable P (Remember Helen Palsgraf is an unforeseeable P because she is not in the “zone of danger”).

** Exception: rescuers. Rescuers might appear to be unforeseeable victims at the time D acted, but they are given a free pass on the duty prong of negligence. They must prove the other 3 prongs, though.

** Neo-natal, pre-natal injuries: Where D’s negligence causes a bodily impact on a pregnant woman (say car crash), if woman gives birth to a live baby with injuries, then the newborn has a valid cause of action. BUT, if child is miscarried, then there is no recovery on the part of the infant. Mom can recover for direct injury to herself AND emotional distress for losing her child.

** Medical malpractice: Dr fails to diagnose the high likelihood of birth defects. Child born impaired. In NY, parents can recover costs of caring for that child, but they do not recover any emotional distress.

** Medical malpractice: botched sterilization procedure, say vasectomy. No recovery.
What is the standard of conduct - how much “care” do you owe?
A D owes the care that a reasonably prudent person acting under similar circumstances would give.

- Reasonably prudent person “lives in the jury’s head”. No allowances for D’s personable shortcomings – the RPP standard is rigorously OBJECTIVE, inflexible, harsh.
What are exceptions to the basic standard of care?
- NO exception: The mentally insane, stupid people, “novices” are held to RPP standard.

- Exceptions:
(1) Superior skill or knowledge – if D has it, the standard becomes a RPP with that superior skill or knowledge. This happens if D has a particular package of information or skills that most people don’t have. ** A stupid person can also have superior knowledge with regard to one relevant nugget of fact.
(2) Physical attributes – If D is blind or in a wheelchair, the standard will be RPP who is blind or in a wheelchair.
What is the standard of conduct for a child?

What's the important exception?
Children under 4 owe no duty of care; 4-18, owe the care of a hypothetical child of similar age, experience and intelligence acting under similar circumstances.

This means the child standard is very subjective; it’s customized to the particular child.

EXCEPTION: If the child is engaged in an adult activity, we will not use the child standard, but the RPP standard. (Such as: operating a motor vehicle.)
What is the standard of conduct for professional defendants?
A professional owes a patient or client the care of the average member of that profession practicing in a similar community.

Copycat, conformist standard – not individually “reasonably prudent doctor”. Don’t use “reasonableness”.

Empirical standard — requires a factual examination. Need to know how the colleagues behave. Custom of the profession sets the standard of care.

** Expert witness – you almost always need one to educate the jury as to what the standard of care is (worth mentioning on an essay).
Special issues for a doctor's standard of care:

- What does "community" mean?
- What is a doctor's 2nd duty?
The relevant community for PRIMARY care physicians is the geographic community (big city, rural, etc.).

The relevant community for SPECIALITS is the community of similar specialists.

2nd Duty of doctors: “Informed consent” – a doctor has a 2nd duty to explain the risks of medical procedures to patients.

4 exceptions:
(1) Commonly known risks
(2) If patient declines information
(3) If patient is incompetent
(4) If disclosure would itself be harmful
What is the duty of an owner or occupier of land to those not on the land?
(1) no duty to protect one off the premises from natural conditions on the premises;

(2) There is a duty to protect from unreasonably dangerous artificial conditions or structures abutting adjacent land

(3) ** In urban areas, the owner/occupier is liable for damage caused by trees on the premises (e.g. falling branches).
What is the duty of an owner or occupier of land to a trespasser?
No duty of care owed to an undiscovered trespasser (they’re an unforeseeable victim).

Duty owed to a discovered trespasser (anticipated/regular trespassers also fall here):

(1) For activities, RPP under similar circumstances standard.

(2) For dangerous conditions, 4-pt test:
(a) condition must be artificial (no duty of care wrt natural conditions)
(b) condition must be highly dangerous – capable of killing or maiming.
(c) condition must be concealed – no duty to protect a discovered trespasser from an open and obvious condition.
(d) possessor must have advance knowledge of condition.
** So possessor has a duty wrt all known man-made death traps.
What is the duty of an owner or occupier of land to a licensee?
Licensee – one who comes on the land with permission for their own purposes without conferring an economic benefit on the owner (social guests).

(1) For activities, RPP under similar circumstances standard applies.

(2) For dangerous conditions, 2-part test:
a. condition must be concealed from licensee;
b. possessor had advance knowledge of condition.
** so possessor has a duty wrt to all known traps.
What standard of care does a land owner or occupier owe to an invitee?
Invitee – enters premises for commercial purposes OR because it’s thrown open to the public at large.

(1) For activities, RPP under similar circumstances standard applies.

(2) For dangerous conditions – 2-part test:
a. condition must be concealed from invitee
b. possessor either had advance knowledge of condition OR could have discovered it through a reasonable inspection (turns on frequency and thoroughness).
** SO: duty wrt to all reasonably knowable traps.
Does NY use this entrant-based duty framework?
NO! NY does not use land entrant status to change the standard of care – it’s always RPP under the circumstances. But what kind of entrant you’re dealing with is always a relevant circumstance.
How can a land owner or occupier satisfy his duty of care to an entrant?
Whenever a possessor owes a duty to an entrant regarding a condition, there are 2 ways the possessor can satisfy the duty: (1) fix problem; (2) give a warning.
What are the special duties owed to firefighters/police officers and children?
Firefighters and police officers never recover for injuries that are an inherent risk of their job (assumption of risk).

Child trespassers – entitled to the care of a RPP wrt artificial conditions on the land. But if the odds that children will trespass is particularly high (attractive nuisance -- not necessarily that children will be attracted, but maybe just because a school is nearby), and that children will be likely to be hurt, then a RPP will make land safer.
How does P get a statutory standard of care to kick in for negligence-per-se?
(1) P must show that he’s a member of the class of persons that the statute seeks to protect.

(2) P must also show that the accident that occurred is within the class of risks that this statute seeks to prevent.

- If compliance with the statute would be more dangerous than violation, don’t borrow the statute.
- If compliance with the statute was impossible under the circumstances, don’t borrow the statute.
What are the duties to act affirmatively?
There are none!

No general duty to rescue a person in peril, but:
(1) if D caused the peril, there is a duty to rescue.
(2) Also, if there was a preexisting relationship (family, common carriers, land possessors/invitees) between D and person in peril, there is a duty.
(3) But never obligation to put yourself in peril.
(4) If D chooses to rescue voluntarily, D is liable for any injury caused. However, many states, including NY, have passed “good samaritan” statutes – however in NY, it’s only for professionals, including veterinarians.
What is the duty regarding negligent infliction of emotional distress? What must P show to recover?
The duty to avoid causing emotional distress to another is breached when D creates a foreseeable risk of injury to P, either by (i) causing a threat of physical impact that leads to emotional distress or (ii) directly causing severe emotional distress that by itself is likely to result in physical symptoms.

Two-part test:
(1) P must have been in a “zone of physical danger” – a “near miss”.
(2) There must be subsequent physical manifestations of the distress (e.g. a heart attack, miscarriage or rash).

** no injury requirement where (i) a relative's death was erroneously reported; (ii) a relative's corpse was mishandled.

In 50% of states, including NY, there is a “bystander” distress claim: focus on unpleasant emotion suffered by P. With normal NIED, it’s fright; with bystander, the P registers horror at a ringside seat for seeing a close family member harmed. Interpreted narrowly in NY (have to be yourself in the zone of danger, must be very close family).
Who is entitled to claim insurance money under a no-fault insurance scheme?
** Only works if everyone has insurance. In NY, you have to have both no-fault and normal insurance by law.

By and large, you look to the insurance company of the insured vehicle. The car owner, driver, passengers, and hit pedestrians will all look here to recover, even if they were negligent.

** Exception: Bad people are disqualified from receiving no-fault benefits: drunk drivers, car thieves, fleeing felons, drag racers.
Can you go to court if you have no-fault insurance?
Normally no. But no pain & suffering is available under no-fault scheme...

In NY, you can go to court if you have suffered greater than a basic economic loss (med expenses + unreimbursed earnings over 2k/mo – does total exceed 50k for one year?) OR “serious injury” (that results in death, dismemberment, significant disfigurement, serious fracture or permanent and total loss of a bodily organ or function).

NY insurance is portable – if you have an accident elsewhere, you can still claim on your NY no-fault insurance.
How may a plaintiff show breach of a duty by defendant?
P must identify the specific wrongful conduct of the D, AND explain why it was wrongful. Always requires both a factual showing (what’s wrong) and argumentation (why it’s wrong). P may use one of the following theories:

(1) custom or usage (but a court could find an entire industry negligent);

(2) violation of statute (negligence per se)

(3) Res ipsa loquitur
When does res ispa loquitur apply?
Res ipsa loquitur comes into the analysis if P is unable to show facts. If P’s in a factual vacuum, that’s a clue.

Classic case: barrel of flour falls out of warehouse window, hitting P on head. Argument based on probability – normally if a barrel falls out of a window, there was negligence.

(1) P must show that accident is one normally associated with negligence of some kind (i.e. there probably was negligence).
(2) P must show that accident is normally due to negligence of someone in this defendant’s position, for example by showing D’s control (i.e. I probably sued the right person).

Mostly res ipsa is not a ticket to victory, but a ticket into the jury box.
What is actual causation?

What is the test for it?
Actual causation is shown by establishing a factual connection or linkage between the breach and the injury suffered.

** “But for” test – would the accident have been avoided but for the breach? I.e. was the breach “a” cause for the accident?
What do you do if there are multiple defendants who could have caused the injury?
Multiple D’s – 2 different approaches.
(1) “merged causes” – (ex: 2 negligent forest fires) – use the “substantial factor” test. Was either or both or all Ds' negligence a substantial factor in the accident? Decision left to the jury.
(2) “unascertainable causes” – (ex: 2 hunters shoot, one pellet in 3rd hunter’s eye) – shift the burden of proof. Now, it’s up to the Ds to prove that their negligence was NOT the cause. If neither D can show negligence wasn’t factual cause, both Ds will be held jointly liable.
What is proximate or legal causation?

What is the key element to finding proximate causation?
Legal – proximate cause (think “fairness” – a limitation on liability to cases where we think it’s fair).

Foreseeability is key – we think it’s fair to make people pay for the foreseeable consequences of their negligence.
What are "direct cause" and "indirect cause" cases where proximate causation is generally found?
(1) “direct cause” question – D commits a breach, and P is immediately injured. Here, proximate cause is almost always found, unless the accident is freakish and bizarre.

(2) “indirect cause” question – D commits breach, but there are intervening events. 4 scenarios where judicial consensus is that D’s liability is fair:
(i) intervening medical negligence. D driver is liable for direct injury and injury due to intervening medical negligence (note: dr is also liable).
(ii) intervening negligent rescue.
(iii) intervening protection or reaction forces.
(iv) subsequent disease or accident.
What is BAR/BRI prof's "fast and dirty" approach to figuring out whether there's proximate cause?
“Fast and dirty approach” – look at breach. Why do I think it’s a breach? What am I afraid of? Skip middle of story, look at final outcome. Look at P, and say, is that what I was afraid of? If so, there's proximate cause. If not, there isn't. (think bad shrimp, vomit, broken arm hypo)
For what damages could a D be liable?
Eggshell skull principle – once the D is shown to have committed all the other elements of the tort, that D has to pay for ALL damage suffered by the P, even if surprisingly great in scope. You take your P as you find your P.

** Applies to ALL torts. Not the place to look for foreseeability. Say there's an intentional tort like punching P in the nose, and P literally has an eggshell skull -- tortfeasor is liable for breaking P’s skull.

Collateral source rule: Damages are not reduced just because P received benefits from other sources (i.e. insurance). ** Note: NY does NOT have the collateral source rule – tort recoveries here WILL be reduced by sums received from other sources, such as your own insurance.
What are the affirmative defenses to negligence
(1) Contributory negligence (but most states have adopted comparative negligence scheme)

(2) Assumption of risk (P must have or should have known of the risk and voluntarily proceeded in the face of the risk

(3) Comparative fault/negligence: If D offers evidence that P was also negligent, the jury will be asked to compare D & P’s negligence and assign them a percentage number. P’s recovery is then reduced in accordance with those numbers.
** Modified/partial comparative negligence: P fault under 50% reduces recovery; P fault over 50% is an absolute bar.
What liability does D have for injuries caused by his animal?
(1) Domesticated animals (dog bite cases) – no strict liability. If your dog bites someone, victim must prove you’re negligent.
** Exception: if you have knowledge of animal’s vicious propensities (e.g. dog has already bitten someone, “one free bite”), you’re strictly liable.

(2) Trespassing cattle – strict liability. Doesn’t matter how careful you are.

(3) Wild animals – if you keep one, you’re strictly liable.
When does strict liability apply for injuries caused by activities?
Activity must be "ultra-hazardous":
(1) It can’t be made reasonably safe given existing technology
(2) The activity imposes a risk of severe harm
(3) The activity must be uncommon in the area where it’s being conducted (out of context)

** Usually one of 3: (1) anything involving blasting/explosives; (2) highly dangerous or toxic biological/chemical agents; (3) anything involving nuclear energy or radiation.
What is worker's compensation?
Statutory insurance scheme; exclusive remedy of employees injured on the job by their employer.

Employers/coworkers are thus immune from tort liability, and injured worker won’t get pain & suffering or punitive damages.
Who is covered by worker's compensation?
Employees only (Must distinguish between employees and independent contractors).

A few employees are not covered:
(1) teachers & white-collar non-profit employees
(2) part-time, household employees (babysitter, part-time cleaning person)
(3) clergy
What is covered by worker's compensation?
Injuries that arise out of the employment.

Not covered:
(1) If employee’s injury is due solely to his own intoxication, he won’t get insurance benefits.
(2) If an employee intentionally injured himself, no workers’ comp benefit.
(3) If you get hurt in a voluntary, off-duty athletic activity, no worker’s comp.

Covered, surprisingly:
(1) Illegal acts during employment (worker steals shingles, falls & dies)
(2) Horseplay – some degree is considered part of the job, and is covered.
What do you get from worker's compensation?
All medical expenses, plus 2/3 of your weekly work rate. If you die, you can get a statutorily determined death benefit plus funeral expenses.
If boss can't be sued due to worker's compensation, who can?
(1) Equipment manufacturers

(2) Jobsites with multiple employers – you can always sue 3rd parties who are not your boss.

(3) IN NY, if there has been a GRAVE injury, the 3rd party sued can assert an indemnification claim against the employer.
What is a basic case for strict liability?
P must show:

(1) existence of an ABSOLUTE DUTY on the part of D to make something safe (owed to all foreseeable Ps);

(2) breach of that duty;

(3) actual and proximate causation;

(4) damage to P's person or property.
What are the five different theories of products liability?
(1) Intent
(2) Negligence
(3) Strict liability
(4) Implied warranties of merchantability and fitness for a particular purpose;
(5) Repesentation theories (express warranty and misrepresentation)
What are the elements common to any products liability claim?
(1) must show a defect

(2) must show that the defect existed when if left defendant's control
What are the three different types of product defects?
(1) Manufacturing defect: If a product emerges from manufacturing different and more dangerous than the products made properly, it has a manufacturing defect.

(2) Design defect: When all products of a line are the same, but have dangerous propensities, they may be found to have a design defect.

(3) Inadequate warnings: If the danger was not apparent to users and the manufacturer failed to give adequate warnings as to the risks involved in using the product, the product may be defective.
How do you prove the three different types of product defects?
(1) Manufacturing defects: D will be liable if P can show that product failed to perform as safely as an ordinary consumer would expect (D must anticipate reasonable misuse).

(2) Design defects: P must show that D could have made the product safer, without serious impact on product's price or utility. Best way to show: a qualifying alternative design.

(3) Inadequate warnings: If product doesn't comply with government standards, it's defective. Warnings must be clear and understandable to people – may require pictures and multiple languages. (Note – you can’t defeat a design defect by putting a warning on a product.)
What are the elements for a prima facie case of strict products liability?
P must prove:

(1) existence of a strict duty owed by a COMMERCIAL SUPPLIER (merchant) of a product;

(2) Breach of that duty;

(3) Actual and proximate cause (including that P was making a foreseeable use of the product);

(4) Damage
In products liability cases, how do you show breach and causation?
Breach: P must show product was defective

Actual cause: P must show defect existed when product left D's control.

Proximate cause: "Fairness" and foreseeability. P must have been making a foreseeable use of the product, even if it was an improper use.
When is there vicarious liability for purely passive parties?
When there is a special relationship, like:

(1) Employer/employee – employer is vicariously liable for torts committed by employees in the scope of their employment, unless it’s a detour (v. frolic), or an intentional tort (unless it was authorized, like a bouncer using force inappropriately, or if job generates friction or tension, or if employee was acting to serve employer’s purposes in a misguided way)
** NY is pretty expansive in allowing for employer vicarious liability

(2) Auto owner/auto driver – owner not liable for torts of driver UNLESS owner lends driver the car to run an errand for owner. Federal statute says a car renter is NEVER vicariously liable for torts committed by driver of the car.
** In NY, the owner is vicariously liable for all torts committed by all drivers driving with permission. Only exception is the rental situation.

(3) Independent contractor & hiring party – generally no liability for torts of IC. But if a land possessor hires an IC to work on the premises and the IC hurts an invitee, the possessor is vicariously liable. (Mall & flower IC’s – if IC knocks flowerpot on your head, mall liable)

(4) Parents/kids – parents not vicariously liable for the torts of their kids.
** Cautionary note – when parent is not a purely passive party (i.e. parent was negligent), you don’t need vicarious liability, and the parent may be liable.
What is a loss of consortium claim?
In any case where the victim of a tort is married, the uninjured spouse gets a separate tort claim for 3 types of damage:

(1) Loss of services (I might need to hire someone to perform household chores)

(2) Loss of society/companionship

(3) Loss of sexual intimacy
What is a private nuisance?
A substantial, unreasonable interference with another private individual's use or enjoyment of property that he possesses or has an immediate right of possession.
What is a public nuisance?
Public nuisance is an act that unreasonably interferes with the health, safety or property rights of the community (e.g. building used for criminal activities like prostitution).

Recovery by a private party is only available if the party suffered unique damage not suffered by the public at large.