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115 Cards in this Set

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What is ignored when considering intentional torts?
Hypersensitivity is ignored in deciding if that P has satisfied the elements of an intentional tort (always assume you’re dealing with an ordinary person)
Are there incapacity defenses in intentional torts?
No. There are no incapacity defenses in torts – a child, drunk, or person with a mental illness can commit an intentional tort
What are the elements of battery?
HARMFUL or OFFENSIVE contact
With the Plaintiff’s person
**Offensive contact: touching is offensive if its unpermitted, to an ordinary person
**Contact must be with the Plaintiff’s person – includes anything the P is touching or holding
What are the elements of assault?
1) D places P in immediate apprehension of 2) immediate battery.
**Apprehension is a synonym for knowledge – not about fear, about knowledge
What is the unloaded gun problem (assault)?
- If P knows gun is empty, then he’s not in apprehension, no battery
- If P has no info about the status of the gun, then its reasonable to assume that its loaded, and there P is in apprehension, assault
Describe the immediate battery element of assault.
- Mere words lack immediacy
- Presence of a weapon makes it immediate (or just fist)
- When you have conduct, have to see if the accompanying words negate immediacy
- Words of future threat are not immediate
What are the elements of false imprisonment?
1) act of restraint (by D) and 2) P is confined in a bounded area
- Threats can be sufficient, or can be physical barriers
- Has to be threat reasonable person would be threatened by
- An omission can be an act of restraint if there’s a preexisting duty to P, then a passive failure (guy on airplane)
- Act only counts if P is aware of it or harmed by it
- Confinement must be to a bounded area - 360 degree restraint around P
- Area is not bounded if there is reaonsable means of escape that P can reasonably discover
What are the elements of intentional infliction of emotional distress?
1) outrageous conduct (by D) and 2) damage – severe emotional distress (by P)(no need for physical manifestations of emotional distress)
What is meant by "outrageous conduct" for IIED?
- D is acting with the goal of offending P – reckless conduct will be enough to show intent
- Defined as “Conduct that exceeds all bounds of decency tolerated in a civilized society.
- Never treat mere insults as outrageous
What are the "hallmarks" of outrageous conduct for IIED?
1. Conduct of D is is continuous, repetitive, ongoing
2. D is a common carrier or innkeeper – have an obligation to be courteous – if they’re slightly insulting, might be viewed as outrageous
3. P is a member of a fragile class of persons – outrageous because the D is picking on this person for their inherently weaker nature 1) Little children; 2) Elderly; 3) Pregnant women – D must know she’s pregnant
4. Hypersensitive Person with a phobia – not outrageous unless D knew about the phobia and exploited it
What are the elements for Trespass to Land?
1) Act of Physical Invasion
2) on land of another.

**only intent needed is that D got to the location on purpose (if no intentional entry then it’s a defense)
**D can enter the land OR D, without going on the land, can throw or propel tangible objects onto the land
**P’s interest not limited to surface, includes air above, soil below to a reasonable distance
What is the difference between trespass to chattels and conversion?
Both deal with deliberate damage or theft to an item of personal property
- Difference between the two depends on the magnitude of harm
- Slight harm: trespass to chattels – Repair costs are all that are available
- Big harm: conversion – want to give conversion P a special remedy
**Conversion P gets full market value of the property, not just the costs of repair
**Conversion amounts to a forced sale
What are the affirmative defenses to intentional torts?
Consent, Self Defense, Public Necessity, Private Necessity
What are the three types of consent to an intentional tort?
- Express Consent: “words” that express consent (doesn’t count if it was obtained through fraud or duress)
- Implied Consent - Custom or Usage: If P goes to a place or participates in an activity and invasions are common, that’s consent to those invasions (subway, playing sports)
- Apparent Consent (or implied consent based on D’s reasonable interpretation of P’s objective conduct)
How does a D show protective privileges to an intentional tort?
1. Proper timing – the threat to which D is responding is imminent or in progress - lose the defense if the threat is over and done with
2. The D must have reasonable belief that the threat is genuine (Reasonable mistake will not destroy a protective privilege)
How much force is allowed in self defense of an intentional tort?
- Can only use force that is necessary under circumstances

- Deadly force – allowed if it’s a life threatening situation (for your own safety or the safety of others)

NY DISTINCTION – duty retreat before using deadly force if you can do it safely
1. No duty to retreat from your own home
2. No duty to retreat if you’re a COP

- Deadly force is NEVER appropriate in defense of PROPERTY
Describe the defense of public necessity.
- D invades P’s property in an emergency to protect the community as a whole
- Its an absolute defense, no liability at all
- Its about being the savior of the city
Describe the defense of private necessity.
- D invades P’s property in an emergency to preserve an interest of his own
- Not an absolute defense

3 legal consequences:
1. D must pay for actual harm caused
2. D will not be liable for nominal or punitive damages
3. As long as the emergency continues, D is allowed to remain on P’s land in position of safety – his technical trespass must be tolerated
What is the difference between abandoned and lost property?
- Property is abandoned if you intend to give up title and possession

- Property is lost when you give up possession inadvertantly, but don’t plan to give up title
What are the rules on abandoned and lost property?
- Abandoned property = finder’s keepers – no one owns it so its yours if you take it

- Lost Property – true owner ALWAYS has the right to reclaim the property
- If you find lost property, must follow the statute
What is the key issue with respect to gifts of personal property?
Whether or not the donor can get item back if he changes his mind
What are the three elements to establish inter vivos gifts of personal property?
1. Donor must have subjective donative intent: intent to turn over title, not mere turning over of possession.
2. Acceptance by donee – only time we have lack of acceptance is when donee rejects it
3. Delivery – the property itself or a representative of it must be physically handed over to the donee
Describe the commercial paper issues that arise with respect to delivery of an inter vivos gift of personal property.
- 1st party check paid to order of donee, signed by donor – handing over the check is not delivery. Delivery accomplished when the check is cashed – if donor cancels payment, gift is not complete

- 3rd party check – if grandma endorses over to a check from a 3rd party, then handing it over completes delivery because grandma can’t cancel the check

- Stock certificates are delivered when handed over, even before the certificates are registered in new owner’s name
Describe the agency issues that arise with respect to delivery of an inter vivos gift of personal property.
- If dealing with the donor’s agent, delivery is only final when the agent gives it over to donee

- If dealing with donee’s agent, once it gets to donee’s agent, delivery is final.
What is a gift causa mortis?
A gift in contemplation of death
1. Need evidence that there was an imminent risk of death that was objectively likely to occur
2. Gift not valid if donee dies first
3. Donor has to die, or else the deal is off
What is a lien, and what are the two diffent types?
A security interest in an item to enforce a debt

Special lien: right to retain a particular item because of repairs, etc. (mechanic holding your car – if he releases the car to you, he releases the lien)

General: right to retain a whole bunch of property for a general balance due: giving up one item doesn’t give up lien
What is a bailment?
Created whenever you relinquish possession of personal property but retain title
What are some special tricks to remember for bailments?
Parking lot – not a bailment if you park your car and you retain the key – if you turn over the key, it’s a bailment

Coat check – liability of bailee is statutorily limited

exculpatory clause: generally, its invalid
- Bailee can limit his liability
- If its in a negotiable contract, then the bailee can limit its liability
- If its ex parte, the bailee has to give effective notice (put up a sign)
What are the three elements of defamation?
1. Defamatory statement
2. Publication
3. Damages, maybe
What is a defamatory statement?
A statement that tends to adversely affect your reputation (not about feelings)
- Mere name calling not classified as defamatory.
- Usually an allegation of fact that reflects negatively on character.
- Could be a statement of opinion, which is defamatory IF listener would assume that the speaker has facts to back it up
- NY courts say it depends on tone, purpose, or context if it is considered defamatory.

**P must be alive – can’t defame a dead person.
What is publication of a defamatory statement?
Publication occurs if D makes a statement to ONE PERSON other than the plaintiff – de minimis
- Doesn’t have to be intentional, can be negligent
- The more people who hear the statement, the more damages you’re entitled to
When do you need to prove actual damages in a defamation case?
When its not libel or slander per se.

**Need an economic loss to show damages – that you actually lost something of value (like a job because of the statement)
What is libel?
Defamation in a permanent publication

**in modern technology, there are many different ways to make defamation permanent – CD, videotape, newspaper, book, etc.
**No damages necessary.
What is slander per se?
Treated like libel because P doesn’t have to prove damages

Slander that falls into one of the following categories (LUMP):
1. Loathsome Disease
2. Unchastity
3. Moral Turpitude
4. Profession or Business

NY ONLY: Imputation of homosexuality

**If it doesn’t fall into the slander per se categories, then the P has to prove damages
What are the defenses to defamation?
1. Consent
2.Truth – D must prove that the defamatory utterance is factually accurate – has to be true, not that D THOUGHT it was true.
3. Privilege
What are the two types of privilege defenses to defamation?
Absolute Privilege:
1. Husband & Wife – no liability if a husband says something defamatory to his wife
2. Officers of government, especially in a judicial context

Qualified Privilege
1. Arises when we have a socially useful occasion for speech & we want to promote candor – statements on credit reports, statements of police officers
2. Limited privilege – get privilege if you speak in good faith. If you deliberately spread lies, then no privilege - must speak on relevant topics
What are the four privacy torts?
Appropriation, false light, intrusion, disclosure of a private fact
What is appropriation?
D uses P’s name or picture for a commercial purpose - D can get money damages or an injunction

There's a newsworthiness exception – behavior that would probably fall under First Amendment protection
What is the only privacy tort recognized in New York?
Appropriation.
What is intrusion?
Invasion of P’s seclusion in a way that would be objectionable to an average person
- P can get money damages or an injunction from D

In order to recover for intrusion:
1. P must be in a position of legitimate seclusion, must have reasonable expectation of privacy
2. No requirement that D commit trespass to land to have an intrusion
What is false light?
Widespread dissemination of a major misrepresentation about P that would be objectionable to the average person.

- Distinguish this from defamation (defamation only requires telling one person, but false light means you have to tell lots of people)
- Major misrepresentation can be a defamatory misrepresentation, but doesn’t have to be – false light includes, but is broader than defamation - difference is damages:
**In defamation, P can recover economic damages only but in false light, P can get emotional damages (people think less of him)
What is disclosure of a private fact?
Widespread dissemination of confidential information about P that would be objectionable to the average person

- Deals with truthful information, but its intimate or private
- 3 situations to look out for:
1. Circulating academic info
2. Circulating financial info
3. Circulating medical info

Look out for these exam tricks:
- Newsworthiness exception
- Dual Life fact pattern
What are the defenses to the privacy torts?
1. Consent – to all four privacy torts
2. Defamation privileges: absolute & qualified privileges will apply
What are the elements of fraud?
1. Affirmative misrepresentation about something (silence is not enough)
2. D must know information is inaccurate (also called scienter)
3. D must intend to induce reliance – has to be D’s goal to get P to rely on it
4. Reliance – P has to actually rely on the statement
5. Economic Harm or Damage – have to have some loss
What is the prima facie tort in New York?
1. Intent to do harm
2. Resulting harm

- Harm is almost always financial – catchall category
- Designed for malicious economic behavior – delibrately trying to bankrupt a business
What are the elements of inducing the breach of a contract?
1. Must be a valid contract, not terminable at will, between P and a 3rd party
2. D knows of the contract
3. D must exercise persuasion to convince 3rd party not to perform – could be coercion, could be offering a better deal
4. Persuasion has to work – 3rd party breaches
When is inducing a breach of contract privileged, and therefore not a tort?
a. As a rule, the privileges to this are in a special or counseling relationship with the 3rd party – no inducement
b. Financial or legal advisor
c. Can be moral or spiritual advisor – father tells you to breach, he’s not liable
What is theft of a trade secret?
1. P must own a valid trade secret
2. D must take it by improper means

Valid trade secret:
1. P possesses info that provides a business advantage
2. Info can’t be generally known
3. P takes efforts to keep the info a secret

Usually takes the form of an industrial process or formula
What are the elements of negligence?
1) Duty, 2) Breach, 3) Causation, 4) Damages
To whom do you owe a duty?
To foreseeable victims of your carelessness

**Don’t owe a duty to unforeseeable victims, so they ALWAYS LOSE – if they are outside the “zone of danger” they are not foreseeable.
Are rescuers foreseeable victims?
Rescuers are never barred by foreseeable victim standard and are always owed a duty

**rescuer will still have to satisfy all the other elements of negligence (rationale: danger invites rescue)
In NY, what duty is owed to an unborn fetus?
3 Scenarios:

1. Impact due to carelessness injuring a pregnant woman
- if baby has injuries when he’s born, the baby has a cause of action
- If the baby dies, the baby has no claim

2. When pregnant woman sees a doctor and the doctor negligently fails to tell her about a birth defect, NY allows recovery from the doctor for enhanced costs in caring for the child (but no emotional distress)

3. If a doctor botches a sterilization (bad vasectomy) NY says there is NO RECOVERY
How much care do you owe?
Amount of care given by a REASONABLY PRUDENT PERSON ACTING UNDER SIMILAR CIRCUMSTANCES

**Negligence ALWAYS depends on the circumstances.
** Objective Standard - jury compares the RPP with the D

**We don’t make any allowances for D’s personal shortcomings

Exception - If D has superior knowledge, then the standard is RPP with that superior knowledge (two kinds):
1. Expertise
2. Possession of a nugget of relevant fact
What is the duty of care of a child?
Children under 4 are incapable of negligence

Kids 4-18: owe the duty of care of a hypothetical child of similar age, experience, and intelligence acting under similar circumstances
**Subjective standard – changes from one kid to the next
What is the exception for the duty of care of a child?
If a child engaged in adult activity, it’s a regular RPP standard – Adult activity is ALWAYS operating a vehicle with a motor
What is the duty standard for professionals?
Professionals are people who render services to the public, have special skills or training, and are licensed by the state (doctors, lawyers, dentists, etc.)

Standard: owe patients or clients the care of an average member of that profession practicing in the community

**Empirical: factually based – it’s an instruction that we compare them not with a hypothetical person, but with his real world colleague

**Custom of the profession sets the standard
What is the modified locality test?
Compare a big city doctor with other big city doctors, small town doctors with other small town doctors.
What is the duty of medical professionals regarding informed consent?
They have a duty to explain risks to patient prior ro doing the procedure.

There’s no duty if:
1. Risk is commonly known
2. If patient declines info
3. If patient is incompetent
4. If disclosure would be harmful to the patient
What is the duty to an undiscovered trespasser?
Owed NO DUTY at all, doesn’t matter how you got hurt

**ALWAYS loses, deny him recovery because he is an UNFORESEEABLE victim
What duty does a land occupier owe to a discovered or known trespasser?
Includes not only trespassors the occupier knows about, but also those who should be anticipated

If trespassor hurt by activities on the land, standard is RPP in similar circumstances

If trespassor hurt by conditions on the land, occupier owes trespasser duty only when it meets four part test:
1. Injurious condition is artificial (no duty to protect trespassors from natural conditions)
2. Highly dangerous (could maim or kill)
3. Condition must be concealed from trespassor (no duty to protect from open and obvious condition)
4. Condition is one where land occupier knew about it in advance (no duty to inspect)

**”Occupiers must protect discovered trespassers from known, man-made death traps on the land”
What duty does a land occupier owe to a licencee?
Licensee is someone who enters land with permission primarily for his own purposes – social guest

Standard: Activities – plain vanilla RPP standard;

Condtions – Two Part Test:
1. Concealed condition to trigger duty
2. Occupier knew about it in advance

**“Duty to protect from all known conditions”
What duty does a land occupier owe to an invitee?
Activities: RPP, plain vanilla

Conditions: 2 part test:
1. Condition is concealed from invitee
2. Occupier either knew about it in advance, or could have discovered through a reasonable inspection (inspection that would be done by a RPP)

**“Occupier has duty to protect invitee from all reasonably knowable traps in the land”
Does New York follow the categorical approach to land occupier's duty?
No. Use a general standard or reasonable prudence in the circumstances

**In discussing whether its reasonable in essay, RPP will use more effort to protect invited guests than trespassors (and probably EVEN MORE effort for land that’s open to the public)
What duty is owed to child trespassers?
Land occupier owes a child trespassor a RPP to protect from artificial conditions on the land – higher standard

Have to think about how likely it is that kids will trespass
- If there’s something that is appealing to kids, then likely kids will trespass
What can the land occupier do when he owes a duty to protect from a condition on the land?
1. Fix the problem
2. Give a warning – satisfy the duty and eliminate the danger
** once a warning is given, entrant has duty to protect himself – most common situation is wet floor signs
When can a plaintiff borrow a statute to show negligence per se?
1. When P can demonstrate he’s a member of a class of persons the statute seeks to protect

2. When accident falls within the class of risk the statute seeks to prevent

”Class of persons, class of risk” standard
What are the exceptions to borrowing statute for negligence per se?
1. If compliance is more dangerous than violation – hitting a kid with your car versus swerving into the other lane.
2. If compliance is impossible, don’t borrow
When is there a duty to act affirmatively?
Usually, there is no duty.

Exceptions:
1. If there’s a preexisting relationship – family, common carrier, land occupier & business invitee
2. If D caused the peril, then duty to rescue

**Duty is to rescue reasonably under circumstances – don’t have to go into a burning building

**If you take on a duty to rescue, you have to complete it – held liable if you botch or abandon the rescue
What must a plaintiff show for negligent infliction of emotional distress?
1. That D committed negligence 2. That even though he didn’t suffer a trauma, he almost did because he was in the “zone of danger” - near miss or close call
3. That he suffered subsequent physical manifestations as a result of the distress
What is the standard in NY for negligent infliction of emotional distress?
In order to claim, you must be PRESENT and you must WITNESS the injury of a CLOSE RELATIVE

NY statute (very stingy)
1. Bystander must himself be within the zone of danger
2. Close family member must be a parent, spouse or child (no others)

**Pregnant mother who is victim of medical malpractice can recover if the negligence results in a still birth – mother has bystander claim
What must be identified to show a breach of duty?
Wrongful conduct AND why its wrongful

The WHAT and the WHY.
What must the plaintiff show by way of substitute for showing D's wrongful conduct (res ipsa)?
1. That the accident that occurred doesn’t normally occur in absence of negligence.
2. That the accident that occurred is normally due to negligence of someone in D’s position
What are the two types of causation that must be shown?
Factual and proximate causastion.
What is factual causation and what must be shown to prove it?
P’s obligation to show a link between the breach and the injury suffered

BUT FOR – breach is factual cause of injury if, but for the breach, P would be healthy today

**D is free to rebut the factual element by using “even if” form – will argue “even if I was careful, you still would have been injured.”
What is the rule for the Mingled Cause case?
Don’t use BUT FOR test, but use “SUBSTANTIAL FACTOR” TEST

Ask: did each D’s actions result in the damage or injury? If yes, then hold them both jointly liable for the damage or injury.
What is the rule for the Unascertainable Cause case?
In these cases, we shift the burden of proof to the D’s – they would each have the burden to show that, more likely than not, it WASN’T his actions that caused the injury (the hunting pellet case)

**If neither of them can prove it, then they both are jointly liable.
What is legal or proximate cause?
If it’s FAIR to hold D liable

- Foreseeability is the measuring stick – make people pay for foreseeable consequences of their actions
- Two Categories of these types of questions:
1. Direct Cause - D commits breach, P suffers an injury – consequences are almost always foreseeable, and almost always the D’s breach is the cause
2. Indirect Cause Questions – D acts, stuff happens in the middle, and P later gets injured
What are the four well settled indirect questions?
1. Intervening Medical Negligence
2. Intervening Negligent Rescue
3. Intervening Protection or Reaction Forces
4. Subsequent Accident or Disease
What is the rule for Intervening Medical Negligence?
D runs red light, breaks P’s leg, P goes to hospital where doctor puts too tight cast on P’s leg, he gets gangrine, and they amputate his leg
1. D is liable for the amputated leg, as well as any other injuries P suffered
2. If D thrusts someone into medical system, its foreseeable that a doctor could make things worse

**NOTE: Doctor who put on bad cast is also liable – joint liability between D and Doctor
What is the rule for Intervening Negligent Rescue?
If rescuer injures P while rescuing P from peril caused by D’s negligence, D is liable for rescuer’s negligent rescue.
What is the rule for Intervening Protection or Reaction Forces?
1. D hits pedestrian in busy cross-walk – other pedestrians flee, and one of them steps on P’s face
2. D is liable for injury from both the hitting with the car and the stepping on the face
What is the rule for Subsequent Accident or Disease?
If D hits P, breaks P’s leg, but later P falls on his crutches and breaks his arm, D is liable for the broken leg and the broken arm
What is the eggshell skull doctrine?
Says that once D has committed other elements of tort, D must pay for ALL harm suffered by P, even if harm is surprisingly large in scope

**Take P as you find P (not limited to negligence)
Does NY follow the collateral source rule?
No. In NY, amounts of damage will be reduced by any sum you receive from other sources.

If you get a $300K damage award, but you already got $20K from insurance, then you are only entitled to $280K
What is an injunction?
Its an order to do or refrain from doing something

1. Negative injunction – prevents you from doing something
2. Mandatory injunction – requires that you do something
What must be shown for a permanent injunction to issue?
First, must show liability on the part of the D.

Then, four part showing:
1. No adequate remedy at law – means money damages won’t be adequate
2. That you are suffering an invasion of either a property interest or some kind of protectable right
3. Have to show that the injunction will be enforceable
4. Balance the hardships
What are the defenses to injunctive relief?
1. Unclean hands – that P is guilty of some kind of misdeed or wrongfulness

2. Laches – prejudicial delay – no brightline term of years – P has waited so long to bring claim that D has changed his position

3. First Amendment – if what you’re trying to enjoin is a defamation or privacy tort, you won’t get it because it’s considered a prior restraint.
What are the affirmative defenses to negligence?
Only One – majority and NY rule: Comparative Negligence (or comparative fault)

If D wants to use this defense, he has to show that P failed to exercise proper care for his own safety

- If D shows this, the jury will be instructed to weigh each party’s negligence against each other

- We will reduce the P’s recovery accordingly
What are the two kinds of comparative negligence?
1. Pure Comparative – goes by jury numbers no matter what the jury numbers are – NY follows this rule – if P is 95% liable for his own injuries, we will still give P 5% of the damages.

2. Modified or Partial Comparative Fault – P’s fault under 50% = P will still recover; P’s fault over 50% = recovery barred.
What are the rules for injuries caused by animals?
1. Domesticated Animals (dog bite)
a. Rule: not strictly liable for dog bites – can only be held liable if P can show some negligence
b. EXCEPTION – if you know the animal has vicious propensities, you will be held strictly liable - If the dog has previously bitten someone, you are on notice

2. Trespassing Cattle – you are strictly liable for trespassing cattle

3. Wild Animals – strict liability with NO EXCEPTIONS (safety precautions irrelevant)
What are the rules for Ultra Hazardous Activities?
Strictly liable for the activity
There are three attributes:
1. Activity can’t be made safe – lack technology to eliminate risk
2. Activity poses a risk of severe harm
3. Activity is uncommon in the community where it’s being conducted

Typical Situations:
a. Anything involving blasting or explosives
b. Highly dangerous chemicals or biological materials
c. Anything involving nuclear energy or radiation

**Safety precautions are irrelevant, despite utmost precaution
What are the elements of a strict products liability cause of action?
1. D must be a merchant.
2. P has to show that the product has a defect.
3. P has to show the defect existed when product left D’s hands
4. P has to show he was a foreseeable user making a foreseeable use of the product
What is a merchant for strict liability purposes?
Someone who deals in goods of this type

Can be asked in one of four ways:
1. Casual seller – not a merchant – not held strictly liable
2. Service Provider – not a merchant of goods of this kind – goods are incidentally available
3. Commercial Lessor – is a merchant, so can be held strictly liable – ex. rental car company
4. D need not be the merchant with whom P dealt with directly – just a merchant in the chain of distribution
What are the two kinds of product defects for strict liability?
Manufacturing defect and design defect
What is a manufacturing defect for strict products liability?
It differs from all others that came off the same assembly line in a way that makes it more dangerous than a common consumer would expect

No defense that manufacturer took utmost care
What is a design defect for strict products liability?
P identifies an alternative way that it might be built – a hypothetical alternative design (HAD)

HAD must meet three tests:
1. Safer than the product
2. Cost effective – no more expensive than the version marketed
3. Practical – has to still function properly

Information can and should be part of the design (means warnings and instructions)
1. If product has residual risk that can’t be designed away & is not apparent to users, must be a warning
2. Selling such a product without a warning is selling a defective product
3. Warning must be effective
What must a P prove in order to show the defect existed when product left D’s hands for strict products liability?
P has to show product hasn’t been altered

There is a presumption that it wasn’t altered if it was transported in the regular channels

Proof of alteration becomes an affirmative defense
What must a P prove in order to show he was a foreseeable user making a foreseeable use of the product in a strict liability case?
Not limited to intended uses – mere misuse will not defeat recovery

Not whether use was intended, but whether use was foreseeable
What are the defenses to the strict liability situations?
1. In NY and majority, use comparative fault just like regular negligence

2.If P does something that’s a foolish failure to take his own safety into consideration, we will reduce P’s damages
What is nuisance?
An interference with P’s ability to enjoy land to an unreasonable degree

Involves incompatible land use – two parcels adjacent to each other

**Rule: we don’t care if D acts negligently, carelessly or deliberately, or used his best efforts to reduce nuisance

**Only test: Courts endeavor to balance the interest between the two parties
- D has legal right to use land to maximize his enjoyment or profits, as long as it doesn’t overcome P’s rights to enjoy his land
When will employer be vicariously liable to torts of employee?
If the employee was acting within the scope of his employment

General rule: intentional torts are outside the scope of employment
- Exceptions:
1. Where job involves use of physical force (security guard, bouncer)
2. If job invites violent confrontation (debt collector or repo man)
3. Anytime its done to serve employer’s interests, no matter how misguided
When is a hiring party vicariously liable for the torts of its independent contractor (IC)?
No vicarious liability – hiring party not liable for torts of IC

**Exception – if land occupier has IC working on the premises and IC injures invitees, then hiring party is vicariously liable
When is the owner of a car vicariously liable for the torts of the driver?
General Rule: owner not liable

**Exception: if driver is doing an errand for the owner, then driver is an agent – owner is vicariously liable for torts committed by his agent (driver)
What is the New York rule for vicarious liability of owners of vehicles?
Follows permissive use doctrine

1. Owner of car IS vicariously liable for torts of anyone driving with permission
2. Presumption that anyone driving HAD permission
3. Companies that rent or lease vehicles cannot be held liable for torts of lessors – exception
When is a parent vicariously liable for the torts of his child?
No vicarious liability and no exceptions

**Vandalism in schools – parents can be liable for intentional torts of kids up to $5000

If kid plays with gun and shoots someone, father who left gun out is NOT vicariously liable - He was an ACTIVE TORTFEASOR – vicarious liability should be a fall back theory

**Look to see if there’s any other theory of liability first before looking to vicarious
What immunities are available for torts?
Only one left is governmental immunity
1. When government officials exercise discretion in traditional government activities, there’s immunity – police giving someone police protection
2. When government engages in proprietary functions, like a business, then no immunity
When can an uninjured spouse sue for loss of consortium?
When victim of a tort is a married person (not cohabiting, not long term relationship), uninjured spouse also gets cause of action

Uninjured spouse can sue for 3 kinds of damages:
1. Loss of Services – no one to cook meals, no one to mow lawn, may have to hire someone to do those things
2. Loss of Society – because the spouse is injured, has no one to talk to
3. Loss of Sex – not getting laid, might as well get paid
How does Worker's Compensation operate?
Employer is essentially strictly liable, but the compensation is paid by the insurance company
1. Employer and coworkers are immune from suit – no tort litigation
2. Employee can’t get pain & suffering or punitive damages
3. Doesn’t matter if employee is at fault, don’t have to go through costs of litigation
Who is covered by Worker's Compensation?
Employee is covered, but Independent Contractors are not covered

Three narrow categories of employees that are outside worker’s compensation scheme:
1. Teachers & non-manual laborers who work for non-profits
2. Part-time domestic or household employees – babysitters, lawn mowers
3. Clergy
What is covered by Worker's Comp?
Not covered:
1. Injury due SOLELY to intoxication of employee
2. If employee either intentionally harms himself or employee intentionally harms someone else – can’t intentionally get benefits of worker’s comp
3. If the injury occurs during the course of a voluntary, off-duty athletic event
4. Partly not covered: Horseplay – depends on nature of the horseplay (courts allow some horseplay on the job, but not outrageous horseplay

**Illegal Acts are covered – not outside scope of employment
Who can an employee covered by Worker's Comp sue in tort?
Anyone but the boss or a co-worker who may have caused the injury.
What is No-Fault Insurance?
System designed to divert minor car accidents form the tort system - Injured parties go to the insurance company to get compensation for their injuries

Legal requirement for insurance – must have no-fault coverage (at least $50K) and must also have liability coverage.

**Only applies to personal injuries, not property damage
Who is covered by no-fault insurance?
Anyone injured by a covered vehicle has a claim against owner’s insurance policy – passengers, pedestrians, other drivers

Barred from no-fault claim:
a. Drunk Drivers
b. Drag Racers
c. Car Thieves
d. Fleeing Felons
When can you get out of no-fault insurance coverage and litigate in tort?
1. Serious Injury or
2. More than basic economic loss (BEL is limited to $50K)

Basic economic loss includes:
1. Medical expenses
2. Lost earnings up to $2000 a month
3. Daily Expenses of $25 a day

If its more than $50K, then can sue outside of no-fault
What qualifies as a serious injury for no-fault insurance purposes?
1. Death as a result of the accident
2. Dismemberment – loss of a limb
3. Disfigurement
4. Total or permanent loss of an organ or bodily function