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144 Cards in this Set

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what are the intentional torts
1) battery

2) assault

3) false imprisonment

4) intentional infliction of emotional stress

5) trespass to land

6) trespass to chattel

7) conversion
what is battery
1) D must engage in harmful or offensive conduct
*bodily conduct is offensive if it is UNPERMITTED by a person of ORDINARY sensitivity (yes to stroking hair, NO to tapping on the shoulder)

2) contact must be with plaintiff's PERSON. (includes anything connected to P (purse, hat, dog on a leash, etc)
does the D's body have had to be involved for it to be a battery
no, poisoning a sandwich is battery - bodily contact occurs b/w sandwich and mouth
does contact need to happen immediately for it to be a battery
no, again, poison through sandwich and mouth s a battery
what is assault?
D must put p in apprehension of an IMMEDIATE BATTERY
for assault, what does apprehension mean?
knowledge, awareness, understanding NOT fear.

If D threatens, but couldn't actually complete battery (unloaded gun) -- the test is from P's perspective. Did P know gun was empty, if yes no assault; if no, still an assault
for assault, what does it mean for it to be an immediate battery?
threatening words, alone, lack immediacy and cannot constitute an assault; must be accompanied by conduct (weapons, fist shaking, moving toward someone)

even with conduct, accompanying words can negate immediacy (if you weren't X, i would Y)
what is false imprisonment?
1) D must engage in an act of restraint

2) P must be confined in a bounded area
for false imprisonment, what is an act of restraint?
1) typically physical obstructions

2) threats are sufficient restraint - but must act on a person of ordinary sensitivity

3) failure to act can also be an act of restraint if there was a pre-existing obligation to assist P in moving about (handicapped person)

4) act of restraint only exists if P knew about it, or is harmed by it (if neither condition is met, no recovery)
for false imprisonment, what does it mean for P to be confined to a bounded area?
1) keeping someone out of a space is not confinement

2) not bounded if there is reasonable means of escape that P can reasonably discover. If dangerous, disgusting, humiliating or hidden -- P will win.
for false imprisonment, can P recover for damages for humilliation while falsely imprisoned?
yes
what is intentional infliction of emotional harm?
1) D must engage in outrageous conduct, and

2) P must suffer severe distress (not mild annoyance, brief irritation)
for intentional infliction of emotional harm, what constitutes outrageous conduct?
1) exceeds all bounds of decency tolerated in a civilized society

2) mere insults, without other factors, is never outrageous enough

3) hallmarks of outrageousness include
a) when conduct by D is repetitive or continuous
b) when D is common carrier or innkeeper - can't be hostile
c) P is member of fragile class (kids, elderly, pregnant) and D knows it

4) If there's a particularly senstive P, he doesn't have a claim against D UNLESS D knows of sensitivity and acts for that reas
what is trespass to land
D must commit an act of physical invasion of land
for trespass to land, what is physical invasion
1) D can enter land/real estate by foot or on vehicle

2) D need not be aware he's on private property

3) D can throw/propeal tangible object onto P's land.

BUT - if A pushes B onto land, A is trespass

NOTE - physical invasion must be by tangible object, not intangibles (floodlights, music, smells)
for trespass to land, what constitutes land
1)NOT confined to surface of property. includes air above and soil below - out to a REASONABLE distance.

so, a ball that gets thrown across air in your yard IS a trespass
what are trespass to chattel and conversion?
intentional invasion of personal property.

intentional damage or taking away from you.
how are trespass to chattel and conversion used.
it is a mechanism for getting private, money damages for vandalism or theft.
what is the difference b/w trespass to chattels and conversion
the MAGNITUDE of the harm.

1) if amount of harm is relatively modest, then cause of action is trepass to chattels

2) if harm is significant/extensive, then its conversion
So if minor harm, trespass to chattels, what is remedy?
cost of repair
if major harm, conversion, what is remedy?
P gets full market value of asset; not just cost of repairs.

D then gets title at satisfaction of judgment. basically a forced sale.
what are the affirmative defenses to intentional torts
1) consent (cannot be induced by fraud)

2) protection privileges -- self defense, defense of others, defense of property

3) necessity
who can consent
Only P's with legal capacity can consent to tortious activities.

Kids can only consent to age appropriate torts
what form can consent come in
1) express consent

2) implied consent
what is express consent to an intentional tort
words spoken/written that give D permission to behave in challenged way.

Defense to ANY tort, except in cases of fraud/duress
what is implied consent to an intentional tort
comes up in 2 ways

1) custom or usage - if P goes to a place wher eminor tortious activities are routine (subway), P consents

2) based on D's reasonable interpretation of P's overt act (substantive thoughts of P are not relevant).
what happens if P gives consent, but D exceeds consent of scope?
you are liable for the tort. can't exceed scope of consent.

think doctor examples
what are protective privileges
to have a protective privilege look for

1) proper timing/chronology -- tort that D claims to be responding to must be IMMINENT OR IN PROGRESS (if tort is over, no protective privilege - i.e. no revenge)

2) reasonable belief that tort is about to be committed (reasonable mistake does not deny you the privilege)
what does a protective privilege allow you to do
use force - but only under the rule of symmetry/proportionality.

1) D can use deadly force, so long as human life is in jeopardy, or you reasonably believe it to be in jeopardy.

2) NY is a retreat state - so you must retreate before resorting to deadly force, unless in your home or you're a cop

3) deadly force is NOT allowed with respect to defending property. no deadly traps
what is the defense of necessity
1) public necessity

2) private necessity
when can necessity defenses be used?
only to defend against trespass to land, trespass to chattels, or conversion
what is public necessity
1) D invades P's property in an emergency to protect the entire community as a whole (confronting crisis, acting altruisitically, on behalf of many people) -- think mad dog in street.
what sort of defense is public necessity
an absolute defense - pay no damages for harm done to property
what is private necessity
D invades P's property in an emergency to protect an interest of his own (diverting disaster to self) -- e.g. bull chases you and you go onto someone else's property
what sort of defense is private necessity
LIMITED DEFENSE. 3 interrelated consequences

1) if harm to property, you pay for it

2) private necessity - D does not pay nominal or punitive damages

3) as long as emergency continues, D has right to stay on land in a position of safety. P can't throw D off land.
What are the three elements of defamation
1)D must make a defamatory statemetn that specifically identifies P that must adversely effect O's reputation

2)the statement must be published

3) damages, maybe?, depending on category of defamation
what does it mean for D to make a defamatory statement that specifically identifies the P
1) must adversely effect P's reputation

2) name calling is not enough

3) typically allegation/assertion of FACT that reflects negatively on character (honesty, violence, loyalty, competence, sexual propreity)

4) if opinion - rule is whether a reasonable listener would think factually based

5) statement need not be factually defamatory; additional context can be used to prove that it is defamatory


NOTE - a dead person cannot be defamed
what does it mean for a statement to be published, for the purposes of defamation
de minimus requirement. D must just tell one other person.

BUT - the more people D tells, the more damage P can get from D.

Publication need not be intentional, NEGLIGENCE will suffice (e.g. negligently leaving on loud speaker)
for defamation, are damages needed?
depends on the category of defamation (not for libel, or slander per se; yes for all other slander)
What are the three types of defamation
1) libel

2) slander
a) slander per se
b) other slander

3)*first amendment defamation
what is libel
Defamation WRITTEN down or otherwise captured in a permanent format (letter to friend, NY times)

*Does not require Damages to get to jury; can be used by P to offer persuasiveness, but NOT required to
what is slander
spoken defamation
what is slander per se
any spoken statemetn about P by D pertaining to

1) P's busines or profession

2) that P has committed a crime of moral turpitude

3) about unchasitty of a woman (any sexual activity by unmarried women)

4) statement that P suffers from loathsome disease (STD, leprosy)

5)NY - statemetn imputing homosexuality to someone.


*Does not require Damages to get to jury; can be used by P to offer persuasiveness, but NOT required to
what is all other slander?
everything else.

*P must prove damages (concrete ECONOMIC HARM) - loss of contract, fired, business deals lost,e tc -- not mental/emotional harm
what are the defenses to defamation
1) consent (express or implied)

2) truth

3) privileges - two kinds
for defenses to defamation, what kinds of privileges are there?
absolute privilege
and
qualified privilege
for defenses to defamation, what is the absolute privilege
based on IDENTITY/STATUS of speaker

1) spouse can defame 3rd person to spouse

2) statemetns made by officers of three branches of the government are privileged
a) this extends to anything said in court by attorneys or witnesses - in briefs, legislative hearings, etc
for defenses to defamation, what is the qualified privilege
based on PURPOSE of speech. Where there is a public interest in promoting candor.

E.g. letters of recommendation, credit reports, statemetn to cops.

To retain the privilege, D must observe 2 conditions
1) D must have reasonable belief in accuracy of statement (good faith, can't deliberately spread lies) and

2) D can't inject irrelevancies - must limit commetns to relevant matters
when is first amendment defamation used?
if what D wrote or said is a matter of PUBLIC CONCERN, P can only bring an FAD claim
what does first amendement defamation require
1) defamatory statement (adverse reputation effects)

2) publication

3) damages maybe

4) falsity of statement - P must prove that statemtn is false (burden shifts to P, not truth to D as affirmative defense)

5) that D acted with FAULT in making statement - other than in good faith or with reasonable basis.
for FA defamation, what degree of fault is required in making false statement about matter of public concern?
1) If P is public figure - D knew statemetn was false, and made it anyway, or behaved recklessly in making statement (in investigating truth/falsity) -- that is D acted with ACTUAL MALICE

1) IF P is private figure - it is enough to show that D was negligent. in ascertaining truth of falsity fo facts.
what are the new york distinctions for when damages are required in case of libel and slander?
Special damages are not required for Libel, UNLESS - defamatory only by extrinsic fact (no on its face) and NOT in one of slander per se categories

Special damages ARE required for Slander unless defamatory on its face, and in one of slander per se categories (i.e. not if defamatory on face an dnot slander per se; not if extrinsic fact and per se; not if extrinsic fact and not per se)
What right to privacy does NY protect
Just Appropriation of one's picture or name.

Action survives death, and may be commenced or continued by estate representatives (but does not protect partnerships/corporatoins)
what are the defenses to ny's privacy/appropriation law
1) prior wirtten consent

2) photographer exhibiting work unless continued after written objection

3) goods or a literary, musicial or artistic production that the manufacturer, dealer, author, composer or artist has sold or disposed of with his name, pciture, portrait used in connection with it.
what are the laws of privacy on the mbe?
1) appropriation

2) intrusion

3) false light

4) disclosure of private fact
for privacy rights, what is appropriation
1) D is going to use P's name or picture for a COMMERCIAL purpose

2) note - use of image/name in TV/magazine story is not enough, even if motivated by profit.
what can D get if a violation of appropriation is found
an injunction to avoid having picture/name used AND

damages for use
what is the exception to the appropriation privacy right?
1A implications if it is used for something NEWS WORTHY - then no appropriation

this exception is HUGE in ny.
for privacy rights, what is intrusion
invasion of P's SOLICITUDE in a way objectionable to the AVERAGE PERSON (spying, eavesdropping, peeping, wiretapping, video surveillance.

*P must be somewhere with expectatoin of privacy (e.g. car.home, NOT whispering at a cocktail party).

*Does NOT require D to trespass -- telescope into someone's apartment is an intrusion
for privacy rights, what is false light
Facts deemed to present P in false light and if it attributes to him
1) views he did not hold OR
2) actions that he did not take
for privacy rights, what is required for a finding of false light
1) widespread dissemination of a material misrepresentation about P that would be objectionable to the average person
*this is much more demanding a standard than publication standard for defamation

2) misinformation about P being spread all over town could be defamatory, but could also be non-defamatory statements
*e.g. misrepresenting P's political/ethcial/religious beliefs

nOTE - b/c this is not an intentional tort, good faith belief in truth is NOT a defense
for privacy rights, what is disclosure of a private fact
DEF - widespread dissemination of confidentional information about P that would be objectionable to the AVERAGE person (e.g. photocopying and passing along medical records).

EXCEPTIONS
1) can be dislcosed if news worthy.

Look for dual fact patterns - in closet at work, not in private life -- this is not a confidential issue b/c go to public rally's!
what are the affirmative defenses to privacy claims>
1) consent is a defense to all four (express and implied)

2) absolute and qualified defamation privileges are a defense to false light and dislcosure
*absolute - spouse and govt. official
*qualified - public policy in promoting candor
what are the economic torts
1) fraud
2) prima facie tort
3) inducing breach of K4) other - negligent misrepresentation, etc.
what is fraud
comes up in commercial transactions, suorrounding purchase/sale of items generally

5 elements, no affirmative defenses
1) D must make a misrepresentation of a fact (silence is not enough, must be an affirmative misstatement)

2) intent or recklessness concerning misstatemetn -- good faith or reasonable misstatement is not fraud

3) purpose of statemetn must be to induce reliance of P - and statement must be central to transaction

4) P must actually rely on statemetn

5) P must suffer economically - must be damages (e.g. you overpaid
what is a prima facie tort?
intentional infliction of pecuniary harm w/o justification

1) malicious devious activity to hurt someone commercially

2) deliberately selling goods below cost to drive out competition
what is inducing breach of K
D is aware of K b/w P and 3Ps and meddles in bargain and persuades 3P to walk away from it.
what must be proven for inducing breach of K
1) must prove valid K, not cancelable at will

2) must be knowledge of K by D

3) D must engage in persuasion, inducement convincing 3P to abandon K

4) there must be a subsequent breach
is there ever a defesne to inducing breach of K
YEs - usually defense of privilege granted to some people to interfere with Ks- that is people in special relationship to contracting partes
what are the four elements of negligence
duty

breach of duty

causation (proximate and cause in fact)

harm/damages
To WHOM do you owe a duty of care (duty of care is obligation to take safety precautions when you engage in activities)
DUTY is OWED to FORSEEABLE VICTIMS of CARELESSNES

but, NOT to
1)unforseeable victims (closer you are, more likely duty)
2) people not in zone of danger created by carelessness
3) BUT resuers are not barred from distance
what is ny's rule on fetal injuries
If D's negligence causes bodily impact on pregnant women. . .
1) if baby is born with injuries, then child has tort cause of action
2) if baby is born still born/miscarriage - mother can recover for emotional distress

2) medical malpractice - if doctor fails to recognize high likelihood of birht defects, parents can have kid and kid is born impaired
*can recover for cost of caring for child (economic, school, meds), but not for emotional distress

3) botched sterilization procedure on men, no recovery
how MUCH care is owed?
1) owe ot other peoplethe care of a reasonably prudent person acting under similar circumstances

2) this is an objective standard implemented by jury - it doesn't matter if you're not the average person (if you're stupider, emotionally retarded, etc)
Is MORE or LESS care ever owed than that of a reasonably prudent person?
YES.

1) superior skills or knowledge - if D possesses superior skill or knowledge, standard becomes reaosnably prudent person with superior skills or knowledge (can be race care driver, or just a guy who knows a corner really well b/c he's lived there for 20 years

2) physical attributes - if blind or in wheelchair, you owe duty of care of reasonably prudent person with physical attribute
What are the SIX SPECIAL STANDARDS for how much care is owed?
1) kids

2) professional defendants

3) landowners

4) statutory standard of care

5) duties to act affirmatively

6) negligent infliction of emotional duress
what is the special standrad of care for kids?
1) children under four, owe ZERO standard of care - they cannot be negligent

2) 14-18 -- owe standard of care of hypothetical child of similar age, experience, and intelligence acting under similar circumstances
*very subjective, customized flexible
are there any exceptions to the special standard a kid owes
yes, if kid is engaged in adult activity. normally driving a motorized vehicle
what is the special standard of care for professional defendants (usually med mal and doctor)
standard of care from professional to client is care of average member of profession practicing in similar community
for special standard of care for professional defendants, what does "average member of the profession" mean
real world standard, empirical standard, requires factual investigation
for special standard of care for professional defendants, what does "similar community" mean
1) similar geographic community - big city v. small city, rural towns, etc.

2) specialists -- community is all specialists in same field across the country.
for special standard of care for professional defendants, what is "informed consent" principle
dr. must explain risks and procedures so patients can decide whether to go forward.

EXCEPT
1) no need to explain commonly known risks
2) no need to explain if patient declines info
3) no ned to disclose if patient is incompetent
4) no need to disclose risks if dislcosure itself would be harmful.
for special standard of care for professional defendants, how do you educate jury on professional standard of care?
through expert witnesses
For special standard of care, what duty is owed by POSSESSORS OF LAND to those who come onto the land? I.e. someone comes on land, gets harmed, sues
Duty comes from analyzing two key issues

1) how did entrant get hurt?

2) what kind of entrant is it?
For special standard of care, possessors of land, HOW can an entrant be HURT?
1) by activity being conducted on land by a possessor or one of possessor's employees, OR

2) by a dangerous condition on the land
For special standard of care, possessors of land, HOW can an entrant ENTER?
1) undiscovered trespasser - comes onto land w/o permission; and possesors do not know he's there

2) discovered trespasser - trespasser who should have been anticipated/expected

3) licensee - someone who comes onto land w/ permission for their own purpose and don't confer economic benefit on owner (social guests)

4) invitee - people who enter land for commercial purposes or land is open to the public at large (park, museum, etc)
What duty is owed to an UNDISCOVERED TRESPASSERfor harm due to . . .

1) an activity

2) a dangerous condition
NONE! No duty of care owed to an undiscovered trespasser! no negligence
What duty is owed to an DISCOVERED TRESPASSER for harm due to . . .

1) an activity

2) a dangerous condition
Activities:
Possessor owes duty of a HYPOTHETICALLY PRUDENT PERSON STANDARD acting under similar circumstances

Dangerous Condition: Possessor owes duty of care, if 4 part test is met

1) condition is an artificial condition built by a human

2) condition is highly dangerous - can kill/maim someone

3) concealed condition w/r/t discovered trespasser (trespasser cannot see/appreciate danger for self) AND

4) possessor had advanced knowledge of condition

So, possessor owes duty to protect against all KNOWN, MAN-MADE, DEATH TRAPS ON LAND
What duty is owed to an LICENSEE for harm due to . . .

1) an activity

2) a dangerous condition
Activities:
Possessor owes duty of a REASONABLY PRUDENT PERSON STANDARD acting under similar circumstances

Dangerous Condition: Possessor owes duty of care, if 2 part test is met

1) condition is concealed from licensee(licensee cannot see/appreciate danger for self) AND

2) possessor knew in advance of condition

So, possessor owes duty to protect against all KNOWN, TRAPS ON LAND (natural/artificial; deadly/not)
What duty is owed to an INVITEE for harm due to . . .

1) an activity

2) a dangerous condition
Activities:
Possessor owes duty of a REASONABLY PRUDENT PERSON STANDARD acting under similar circumstances

Dangerous Condition: Possessor owes duty of care, if 2 part test is met

1) condition is concealed from invitee(cannot see/appreciate danger for self) AND

2) possessor either knew in advance of condition OR could have discovered through reasonable inspection (duty to inspect!)

So, possessor owes duty to protect against all KNOWN, TRAPS ON LAND (natural/artificial; deadly/not)
can firefighters and cops recover for injuries on from going onto property
No. that is an inherent risk of job.
what about kids and land?
kids are entitled to a reasonably prudent standard with regard to artificial conditions on the land.

if something invites children onto land -- but can consider the ability of kids to protect themselves.
if a duty is owed to an entrant about a condition, how can the duty be satisfied?
1) by fixing problem

2) by giving warning
NY - What duty is owed to entrant to land by possesors?
For all entrant status people,

Duty of reasonably prudent person under circumstances is owed.

Doesn't depend upon status of entrant, BUT reasonably purdent people make greater efforts for paying customers, invited guests, etc. than trespassers
special duty standards - statutory standard of care

statute addresses standard of care at issue, but statute is about criminal/regulatory nature, NOT for civil tort suit.

Can P borrow statute? use duty of care for this case?
We let P borrow standard of care if
1) P can show he is member of class of person that statute seeks to protect, AND

2) P also has to show that accident which occurred is within the class of risks that statute seeks to prevent

**Class of Person**Class of Risk** TEST
are there any exceptions to the rule allowing for the borrowing of a standard in a statute?
yes,
1) if compliance with statute is more dangerous than violation, don't borrow even if test is met - e.g. crossing lane to avoid hitting person

2. if compliance was impossible under statute, don't borrow
Special situation -
when do you have a Duty to act Affirmatively?
1) If D put P in peril, then there IS a duty to rescue, even if D wasn't negligent (careful, but car accident anyway)

2) pre-existing relationship b/w D and P - family, innkeeper/common carrier, employer/employee, land possessor/invitee

3) if D w/o a duty volunteers to rescue P and screws it up
*many states have a good samaritan exception to this rule
*NY - if professional (doctor, nurse, veterinarian), and help out, can't be liable for simple negligence, but can for gross negligence

NOTE - if duty to rescue arises in these situations - it is a duty to use reasonable care under the circumstances (no need to risk your life)
special situatoin - negligent infliction of emotional distress (careless D, with no direct trauma to P, but P gets bummed
P can recover for emotional duress if
1) P was in zone of danger (near miss) AND
2) P has subsequent physical manifestations of distress
*seconds or weeks later
*heart attack/miscarriage/skin rash

OR

1) Special situations where court allows P to recover in absence of physical injury, e.g. mishandling of a relatives corpse
special situation -- NY rule - on bystander distress claim
if there is an unpleasant emotion suffered by P (grief/sorrow/horror) - distressed party can recover
1) if had a ringside seat to negligently inflicted injury on close family member
*very narrowly interpreted in NY - close proximity - you must be in the zone of danger
*close family member - spouse, parent, child
How do you do the breach analysis on the exam?
P must identify specific wrongful conducty by D and explain why wrongful.

P must demonstrate
1) factual wrongful conduct
2) argument for why wrong, even if obvious.

Breach is factual issue flowing from problem.

The more specific the duty, the less you have to say about the breach.
what is Res Ipsa Loquitor?
if P lacks info about what D did that was wrong (state of factual ignorance/vacuum) - you may need this.
what is the rule of res ipsa loquitor
1) P must show (argue or appeal to common knowledge) 2 prongs in lieu of direct evidence that D was wrong

a) accident is the kind that is normally associated with negligence (sometimes expert witness will be used, and

b) accident is type that normally occurs due to negligence of someone in D's position (probability argument)
*show that D had control over instrumentality/object causing injury.

If P can prove both, issue goes to the jury (very rarely directs a verdict)
Is res ipsa loquitor available where more than one person is control of instrumentality
not usually, BUT - if one D had control over entire site, than yes.
what are the two prongs of causation
1) factual

2) proximate cause.

DO FACTUAL CAUSE FIRST.
what is factual cuase
P must establish a connection or linkage b/w breach that P identified and ultimate injury

"BUT FOR" D's breach, accident would not have happened.
what is the rule for factual cause if there are multiple defendants
1) multiple D's and merged causes -- substantial factor test - was D's breach a substantial factor contributing to P's injuries?

If yes, then both jointly liable (think 2 fires combine to burn house down)

2) unascertainable causes - simultaneous acts of negligence make true cause unascertainable - burden shifts to D to prove that he is not responsible. if can't then jointly liable (2 guns, 1 accidentally hit P)
what is a superseding force?
one that breaks the causal chain b/w the initial wrongful act and the injury and thus the superseding cause becomes the immediate cauase and relieves 1st actor of consequences
what is proximate cause?
"D is liable for all harmful results that are normal incidets of and within the increased risk caused by his acts"

Serves as limitation in liability situation - liability only in situations where it is fair/forseeable

RULE - something is proximate cause of an injury when it is the forseeable consequence of that action
What types of proximate cause are there?
1) direct cause - D breaches, P suffers injury immediately -- consequences are almost always forseeable, unless freakish and bizarre result. (intuition here)

2) indirect cause -- D breaches, stuff happens in middle, P is harmed

a) intervening medical negligence - D is still liable

b) intervening negligent rescue - if rescue is forseeable, D is still liable

c) intervening protection or reactive forces - D is still liable of course people freak out

d) subsequent disease or accident - liable for everything, if you leave someone in weakened state - forseeable they will get more injuries

3) REALIZE - independnet intervening forces are still forseeable and DO NOT cut off Ds liability where D's negligence increased the risk that such forces would harm P (whether intervening act cuts off D's liability is determined by forseeability)
what is the rule on damages?
1) once all elements of a tort are shown, D must pay all damages suffered by P even if great in scope
*take your victim as they come!*applies to all torts*eggshell skull*

2) Collateral source rule - tort recoveries are reduced by sum/awards from other sources (including P's own insurance) -- NY!!! uses!!!
what are the affirmative defenses?
1) comparative fault, comparative neglignece
what is comparative fault, comparative negligence
1) D must offer evidence that P failed to exercise proper care for his own safety (reasonable care)

2) if D can do this, jury is instructed to compare D and P's negligence and assign % of fault to each

3) P's recovery will be decreased by % of his own faults
what kinds of comparative negligence are there?
1) pure comparative negligence (NY) - go strictly by #s ans P always recovers something
*NY - except if P is invovled in serious criminal activity at time of accident, then barred

2) Modified/partial comparative - P's fault <50%, then P's fault reduces recovery; if >50% fault, P gets nothing!
what is contributory negligence?
under traditional rules, P's contributory negligence, is a complete defense.

If P is at all negligent too, P gets nothing!
what is the last clear chance doctrine
exception to contributory negligence --

permits P to recover despite his own contributory neglignece, IF D had last clear chance to avoid accident and failed to do so -- if so, then D is liable for negligence
when is there strict liability for a cause of action?
1) injuries caused by animals

2) ultra-hazardous activities

3) products liabilities
what are rules for SL for injuries caused by animals?
1) domesticated animals - no SL, UNLESS if you have knowledge of vicious propensities of your domesticated animals

2) trespassing cattle - SL no matter how careful you've been

3) wild animals - SL no matter how careful.
what are rules for SL for injuries caused by ultrahazardous activities
ultrahazardous if
1) can't be made reasonably safe given existing tech

2) activity imposes a severe risk of harm

3) activity is uncommon in area where being conducted

MBE - Anything with blasting explosives dynamite -- or highly dangerous/toxic chemical or biological agents -- anything with nuclear energy or radiation

REALIZE - if SL, safety precautions don't matter
What about Strict products liability? (realize lots of products liability aren't strict)
1) D is merchant

2) Product is defective (design or manufacturing)

3) Product was not altered since left D's hands

4) must show P was making a forseeable use of product
when will strict products liability be applied?
most courts will not extend it to cases where only economic loss is suffered by P (i.e. not accopmanied by a physical harm to P)
for strict products liability, what does it mean for someone to be a merchant?
merchant is someone who routinely deals in goods of this type

1) casual sellers are not merchants

2) service providers (hospitals, law firms, restaurants, medical officers) even if make goods available are not merchants

3) commercial lessor IS a merchante, even though doesn't part with title to goods (car rental) - is SL

4) every merchant in a distribution chain is merchant and can be SL (multiple D's can be on the hook!) - no privity of K required, can sue anyone up the chain
for strict products liability, how do you know if a product is defective -- manufacturing defect?
manufacturing defect exists if product is different from all others that came off the assembly line in a way that makes it more dangerous than consumers would expect -- one in a million!

safety precautions are irrelevant.
for strict products liability, how do you know if a product is defective -- design defect?
design defect exists if there is an alternative way to build product (hypotethetical alternative design).

So, if hypothetical design meets these three tests, this version is defective
1)HAD is safer than product marketed
2) HAD is about the same price as product marketed
3) HAD is practical and doesnt' make product hard to use or undermine its functions.

**IF there is a HAD, product warnings aren't enough to escape liability888
for strict products liability, how do you know if a product is defective -- what is the relevance of product warnings?
REquried if
1) product cannot be physically redesigned to be safer in cost neutral and practical way AND
2) it has residual risk not apparent to consumers

If it lacks good (clear, big, obvious) warnings, then it is defective
for strict products liability, how do you show that product has not been ALTERED?
If travelled in ordinary channels of distributoin, it is assumed it was not altered.

Free passon this issue. D must raise it if there is evidence
for strict products liability, how do you know if a forseable use has been made?
NOT limited to proper and intended use of a given product.

Many technical misuses are forseeable.
does comparative neglience apply to SL claims?
yes - now all foolishness/failure to follow instructoins, ignoring of obvious/dangerous situation by P will be factored in by jury and % assigned to recovery

ALSO -- assumption of the risk!
what is assumption of the risk?
Requires P to
1) know of risk, AND
2) voluntarily assume the risk (ignore the warnings)
what is a nuisance?
D will be found to have committed a nuisance if its activities interfere with P's ability to use or enjoy P's own land to an unreasonable degree
for nuisance claims, how do we determine if something is a reasonable use?
courts balance the interests -- D also has right to use land as he sees fits, so long as abiding by applicable zoning laws

In fact, conduct consistent with zoning ordinance permits is highly persuasive evidence that it is not a nuisance
what sort of mens rea is required by D for a nuisance claim?
conduct giving rise to nuisance claim can be negligently, intentional, or even in good faith. D's intent is NOT part of analysis.
what is vicarious liability?
if X goes out and commits a tort (battery, negligence, defamation) - and victim sues X (primary tortfeasor) and Y (a primary passive party)
when does vicarious liability come up
certain relationships,
e.g.
1)employer/employee
2) car owner and driver
3) contractor subcontractor
4) parents-kids
so what does vicarious liability do?
liability flow from relationship bw/ purely passive party and active tortfeasor to victim
what is the rule for vicarious liability AND employer/employee relationsihps -
employer is liable for acts of employee committed within scope of employment

1) departures from work - frolic v. detour (minor departures are within scope of work, major are not)

2) intentional torts- outside scope of employment, except
a) if boss authorizes employee to use force as part of job, e.g. bouncer
B) job creates friction (debt collector)

3) if employee is acting ot serve employer's purposes, but is misguided or overzealous, still vicarious liability.
what is the rule for vicarious liability AND car owner/driver-
car owner is not liable for torts of drivers, EXCEPT
1) if driver is doing an errand for owner or
2)if state has permissive use statute

NY - Owner is vicariously liable for all torts committed by drivers driving with permission, EXCEPT in car rental situations.
what is the rule for vicarious liability AND independent contractor/hiring party relationsihps -
hiring party is not vicariously liable for torts of independent contractor EXCEPT if land possesor hires and independent contractor hurts an invitee
what is the rule for vicarious liability AND parents/kids relationsihps -
parents are NOT vicariously liable for torts of kids (but realize parent can be liable for kids actions through negligence, etc. if not purely passive party -e.g. leave guns lying around is negligence)

NY - exception for torts with max. of $5k, parents are vicariously liable
general note on vicarious liability
shouls always be last possible theory. first see if D is liable for his own conduct (neglient entrustment, failure to investigate, etc)
multiple co-defendants - what is the rule of joint and several liability?
each tortfeasor is liable to for entire damages

realize - note ntirely just - b/c some Ds will not have enough money, or only one will be liquid, etc
multiple co-defendants - what is the rule of joint and several liability -- any exceptions (when one D can get all money back from another D)
1) vicarious liaiblity - purely passive party can get all his money back from active tortfeasor

2)sl claim for defective product - non-manufacturer can get all money back from manufacturer
what is loss of consortium
In any case where victim of tort is married, uninjured spouse of victim gets a separate tort claim (gender neutral) which allows uninjured spouse to recover on

1) loss of services - cooking, cleaning housework

2) loss of society, companionship

3) loss of sex
what are gratuitous bailments?
gift-loan of something. bailor has duty to inform bailee of known dangerous defects

neither slight duty, nor SL

duty is not fulfilled by telling someone else to tell bailee
what are bailments for mutual benefit?
bailee requried to exercise ordinary due care -- liability on bailee will only be imposed if bailee is negligent
when is a bailee liable to owner?
liable for conversion if bailee uses chattel in such a amanner as to constitute a material breach of the bailment agreement, e.g. substantial interference with bailor's possession