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77 Cards in this Set
- Front
- Back
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General propositions for intentional torts:
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1. Extreme sensitivity is ignored in deciding if P has a valid cause of action. Assume dealing with reasonable or normal person.
2. No incapacity defenses. Every D who commits elements of prima facie case should be held liable. (incapacity: child, drunk/drugs, mentally ill, disabilities) 3. Intent is element of every intentional tort. D has intent if he desires to produce the legally forbidden consequence of that tort. Not enough to conduct the act, must desire to produce result. Transferred intent: Desire to produce any forbidden consequence, liable for other forbidden consequence. |
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Battery Elements
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1. harmful or offensive contact
Offensive = unpermitted (by person of ordinary sensitivity--not tap on shoulder but hair stroke). 2. Contact must be with P's person-- Includes anything P is connected to, holding. (purse, riding horse) • Need NOT occur instantaneously (poison) • D need not use his own body to effect contact (sandwich poisoned) |
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Assault Elements
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1. Place P in a (reasonable) apprehension
Apprehension = knowledge. NOT scared P's knowledge: Unloaded gun problem. D threatens P but cannot complete the act. If P knows that gun is unloaded, then no assault. But if does not know unloaded, then reasonable to think might be loaded, so reasonable apprehension. 2. Of an immediate battery - Words alone lack immediacy. Naked verbal threat does not provide cause of action to P. Must be conduct, must have menacing gesture (often display of weapon, could also be shaking fist). -Even with menacing gesture, accompanying words can negate immediacy. -Conditional words: if you weren't my best friend I would beat the crap out of you. -Menacing gesture with words that promise action in future not assault. |
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False Imprisonment Elements
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1. Act of restraint
-Threats can be act of restraint--(if you leave this room in next 30 minutes, going to hurt your child). Threat must operate on mind of person of ordinary sensitivity. -Omission can be act of restraint if there was preexisting obligation to help P move around. (Wheelchair passenger left on plane by airline employees (not locked in, just failure to act)). - Act of restraint only counts if P either knows about it or is harmed by it. 2. P must as a consequence be confined in a bounded area. - Area is bounded only if P's freedom of movement is limited in all directions. Barricade question (D blocks route of travel only in one direction) - Area is not bounded if there is a reasonable means of escape that P can reasonably discover. Must look at reasonableness of escape (not dangerous, disgusting, humiliating or hidden). |
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Intentional Infliction of Emotional Distress Elements
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• Only intentional tort where D can act recklessly rather than intentionally.
1. Outrageous conduct -Definition: if it exceeds all bounds of decency tolerated in a civilized society - Mere insults not outrageous - Hallmarks of outrageousness: 1) continuous or repetitive conduct; 2) D is common carrier or inn keeper--if behave rudely in deliberate attempt to disturb then tagged with outrageous behavior. But does NOT encompass negligence (badly run hotel). 3) P member of fragile class of persons--children, elderly, pregnant women. □ Hate speech normally involves use of power as well to be outrageous 2. P must suffer severe distress - No showing required of physical symptoms; No requirement of medical evidence - But must be severe--question will negate element by saying mildly annoyed. |
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Trespass to land
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1. Act of physical invasion
- Need to enter voluntarily, but not necessary to know has crossed boundary. - Can throw something tangible onto the land--innocuous or benign can still trigger liability. Must involve physical object (not light or sound) 2. P must be a possessor of land - Rented property--tenant in possession has the cause of action, not landlord. - Land interests include air above and soil below out to reasonable distance. |
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Difference between trespass to chattels and conversion
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• Difference is degree of interference--modest (trespass to chattels) or severe (conversion)
- Special remedy in conversion: P entitled to recover full market value of chattel not just cost of rental or repair. Operates as a forced sale. |
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Trespass to chattels and Conversion Elements
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• Intentional interference with personal property (everything you own other than land and buildings, includes car/vehicles, electronics) either by damaging it or deny you possession of it.
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Bona fide purchaser under NY law
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bona fide purchaser of stolen goods is NOT considered CONVERTER of those goods.
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Consent as affirmative defense to intentional tort
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• applies to all 7 intentional torts.
• Capacity: Only person with legal capacity can give legal consent. - Children: sliding scale. Can consent to age appropriate invasions of their interests. • Express consent: utterance/statement by P. ○ Exception: express consent is ignored if there has been fraud or duress (consent to sex does not consent to STI) • Implied consent ○ Customary practice: go to place where certain invasions are routine, P consents to that invasion (sports, doctor visit). ○ D's reasonable interpretation of P's objective conduct: what a normal person would have intuited from the circumstances (jury decides). -P's unexpressed thoughts are not part of analysis. • Consent always has a scope and if D exceeds scope of consent, then goes back to position of liability. Medical procedures: operates on other area of body, it is battery. But if extends to immediately adjacent area of body using professional judgment, not a battery. |
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Protective privileges defenses to intentional torts (self-defense, defense of property)
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1. Timing requirement: Threat must be in progress or imminent, no revenge
2. Reasonable belief that threat is genuine--reasonable mistake will not negate the privilege. Must act in good faith. § Shopkeeper's privilege: Security guard can detain you because set off alarm, because attendant forgot to remove sensor. |
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Use of deadly force (MS and NY)
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• Limit to amount of force necessary--if you use excess force, you'll be liable for the tort.
○ Deadly force: Actual or reasonably believed threat to human life: allowed to respond with deadly force. - NY distinction: duty to retreat before resorting to deadly force. □ Rule of retreat does not apply if you are in your own home. □ Police officers do not have to retreat (or person assisting cop). -No deadly force to protect property |
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Necessity defense to intentional torts (applies only to trespass to land, trespass to chattels or conversion)
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• Public necessity--when D invades P's property in an emergency to protect community as a whole or a significant group of people. No liability.
• Private necessity--D invades property in an emergency to protect an interest of his own. D is not altruist, but protecting himself or his property. ○ Pay actual/compensatory damages to harm done to P's property ○ No nominal or punitive damages. ○ Right of sanctuary: As long as emergency continues, D is allowed to remain on P's land in a position of safety. Cannot be expelled. ○ P's Property: If private necessity, but danger is to P's own property, then no liability for D. Almost like implied consent. |
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NY law of finders in personal property
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• Abandoned property (person property owner no longer wishes to own--physical act of giving up possession and mental state of intention to relinquish title and control). Anyone who finds and takes possession becomes owner.
• Lost property (accidentally give up possession with no intention of relinquishing title or control). ○ Owner of lost item has superior claim to anyone else ○ Less than $20: finder must "make reasonable effort to locate owner" and if after 1 year owner does not come forward, finder owns umbrella ○ More than $20: finder must turn over to police, police must hold for statutorily specified period depending on value. If owner has not claimed it after period, finder owns. |
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Gifts--NY law of personal property
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• Inter vivos--gift given during life of donor.
○ Requirements for completion (irrevocable): 1. donor must have donative intent (to part with title not just possession), 2. must be valid acceptance by donee (generally silence is adequate, but no affirmative rejection), 3. delivery (transfer of possession)--object (if small) or something emblematic (car keys, certificate of title). □ Checks: if first party check, only acceptance when cash check, so can revoke by stopping payment. Third party check (payable to order of donor then endorsed to donee) is delivered when check is turned over. □ Stock certificates: gift is complete when certificate is turned over, not when recorded on corporate books □ Agents: when delivered to donor's agent, gift is not complete. Complete once in possession of donee's agent. • Gift causa mortis--imminent risk of death to donor that is objectively likely to occur. ○ Valid only if donor actually dies. ○ Not valid if donee dies first |
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Liens--NY law of personal property
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1. Debt relating to performance of services
2. Creditor has possession of item in question 3. Debtor retains title to property • Difference between general and special lien: ○ General lien: right of creditor to retain lots of property as security for general balance due--returning some property does not discharge lien. ○ Special lien: right to retain specific property in connection with services performed with that property--if voluntary gives property, no longer has lien on property. |
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Bailments--NY law of personal property
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• voluntarily turn over possession of piece of personal property and that person takes possession for a specific purpose.
• Things inside other things: bailee has responsibility to protect things in possession--normal things are considered part of bailment, but extraordinary things are not included. ○ Safety deposit box exception: bank is bailee of everything in the box. • Parking lot: park and lock facility where you keep your keys, not a bailment. But if you leave your keys, it is a bailment • Coat checks: limits liability based on facts and circumstances. • Bailee must exercise reasonable prudence to protect property--negligence claim if property is damaged. ○ Bailees can limit their liability contractually, but cannot entirely exculpate themselves. |
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Defamation--First Element: Defamatory statement specifically identifying P
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○ Defamatory: tends to adversely affect P's reputation.
○ Reputation is considered personal property - Name calling is generally not defamatory because generally doesn't hurt reputation, no concrete reason to think poorly, conclusory. - Allegation/representation of fact that reflects negatively on trait of P. Traits: honesty, violent, loyalty, morality (includes sexual morality) - Opinion can be defamatory if a reasonable listener would assume that it was based on fact. ○ Must identify P--not necessarily by name, but must be identifiable - Alive: Cannot defame a dead person. |
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Defamation--Second Element: Publication
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○ De minimis requirement: D must share the statement with at least one person other than P himself.
○ Does not require intent, can publish negligently. ○ More people means more damages. |
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Defamation--Third element: proof of damages, maybe
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○ Libel: defamation in permanent format. P does not have to prove damages in libel.
○ Slander: oral defamation. - Slander per se--so harmful to reputation treated same as libel and do not have to prove damages □ 4 categories: relating to P's business or profession; crime of moral turpitude (crime with serious moral dimension); imputing unchastity to a woman (single woman is sexually active is all that is required, only women); loathsome disease (leprosy; venereal disease). - Slander not per se--must show economic damages (lost job, revenues down), social harm does not count. ○ NY distinction: Libel--certain circumstances where damages not presumed, if a) not within per se category and b) defamatory impact is not clear on the face of the statement but requires additional evidence. - Slander per se: also includes category of imputation of homosexuality. |
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Affirmative defenses to defamation
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1. Consent--express or implied.
2. Truth--D bears burden of proving words were factually accurate, but will exonerate if can prove. 3. Absolute and qualified privileges § Absolute privilege (based on D identity)--1) spouses talking to each other; 2) governmental officers engaged in conduct of official duties--applies in judicial branch to judge, lawyers and witnesses. Also covers legislative and executive officers. § Qualified privileges (based on when speech is made)--strong social interest in encouraging candor. Examples: 1) recommendation/references; 2) statement to police. □ Limitations: 1) D must have reasonable belief in accuracy of statement; 2) confine to matters that are relevant. |
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Defamation--Public Concern elements
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• 2 extra elements required for P's--don't want to chill public discussion
1. P must prove falsity of statement (no longer affirmative defense, but part of P's case). 2. P prove some degree of fault on part of D. Type of fault depends on identity of P: § Public figure (Senator, basketball star) fault is intent or recklessness § Private figure fault is negligence. ○ No recovery for reasonable mistake |
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Privacy torts---Appropriation
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• 2 extra elements required for P's--don't want to chill public discussion
1. P must prove falsity of statement (no longer affirmative defense, but part of P's case). 2. P prove some degree of fault on part of D. Type of fault depends on identity of P: § Public figure (Senator, basketball star) fault is intent or recklessness § Private figure fault is negligence. ○ No recovery for reasonable mistake |
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Privacy torts---Intrusion
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• Intrusion: invasion of P's seclusion in a way that would be objectionable to an average person.
○ Examples: surveillance, peeping tom. ○ P must be in a location where there is reasonable expectation of privacy. ○ No trespass to land required. ○ Not recognized in NY |
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Privacy torts--False Light
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• False light: D makes widespread dissemination of major falsehood about P that would be objectionable to average person.
○ Widespread dissemination distinguishes false light from common law defamation where publication is de minimis requirement. ○ Falsehood can be defamatory but need not be. Larger topical range of subject than covered by defamation. § D tells many people P is embezzling--false light (emotional damages) and defamation (economic damages). § Not defamatory: significantly misrepresented religious beliefs ○ No intent requirement: even good faith error exposes D to liability. ○ Not recognized in NY |
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Privacy torts--Disclosure
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• Disclosure: widespread dissemination of confidential information about P that would be objectionable to average person.
○ Examples: academic records, financial information, medical records. ○ Exception: newsworthiness--legitimate public interest. Construed very broadly (celebrity gossip). ○ Must be truly confidential--dual life fact pattern: P might operate in multiple arenas that are open, but keeps separate (gay man not out at work), not actionable. Not recognized in NY |
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Affirmative defenses for Privacy torts
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Consent: defense to all 4 privacy torts
Absolute and qualified privileges: available as defenses to false light and disclosure. |
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Economic torts--Fraud
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1. D makes a misrepresentation of fact--Silence is not enough.
2. Misrepresentation made deliberately or recklessly--Error by D does not trigger fraud 3. Intended to induce reliance--has to be material. 4. Buyer must rely on the representation 5. Economic damage ○ Exam tip: someone lied to me on purpose, I fell for it, and got screwed. Intuitive. |
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Economic torts--Inducing Breach of Contract
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1. Contract in existence between P and 3rd party
2. D must have knowledge of contract 3. D must engage in persuasion designed to encourage P to breach contract (could be offer of better deal). 4. P breaches contract. ○ Defense: Privilege to induce breach of contract when there is a special relationship between D and one of contracting parties (family, professional advisers, clergyman). |
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Economic torts---NY Distinction Prima Facie Tort
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• NY distinction: Prima facie tort--Intentional infliction of pecuniary harm without justification
1. Intent to do harm: distinguished from requisite intent for other intentional torts (i.e. intent to do act that causes the harm). 2. Pecuniary loss: P alleges and proves special damages ○ Where traditional tort has been established, action for prima facie tort will NOT lie. § Action will NOT lie if traditional tort action could have been brought except for running of statute of limitations. ○ Examples: sell products below cost to put someone out of business; record company/radio owner puts own songs on top 10 list, but excludes competitors. |
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Economic Torts--Theft of Trade Secret
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1. P must posses valid trade secret: 1) information that provides a business advantage to owner/possessor; 2) must not be generally know; 3) owner must take steps to keep information secret.
2. D must take trade secret by improper means: either by traitorous insider (initially learned legitimately) or industrial spy (theft) ○ Theft or violation of business ethics. |
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No Fault Insurance--Who can collect?
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○ statute makes no fault insurance mandatory $50K. Only covers personal injury/lost wages, not property losses.
○ Policy purchased by owner, covers: owner, anyone driving owner's car, any passengers injured in owner's car and any pedestrians hit by owner's car. - Bad people cannot recover: drunk driver, drag racer, car thieves, other fleeing felons. |
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No Fault Insurance--When can you still sue in tort?
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P must demonstrate that injuries are in excess of statutory threshold.
○ Threshold: 1) suffered "serious injury"--death, dismemberment, significant disfigurement, serious fracture or permanent or total loss of bodily organ or bodily function OR § 2) damages in excess of basic economic loss--sum of medical expenses, lost income to max of $2000/month, $25/day must exceed $50K. • Never includes pain and suffering. • No fault is portable--if you have a NYS policy and accident is out of state, can still recover under policy. |
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Negligence--Duty: To whom do you owe a duty?
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To foreseeable victims . Unforeseeable victims--"outside the zone of danger" (very far from the action--depends on circumstances) . No duty of care owed--unforeseeable always lose negligence claims.
§ Exception: rescuers--if involved in coming to aid of victim and rescuer is injured, then not barred because began problem very far away. |
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NY Prenatal Injuries
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§ NY Prenatal injuries: negligent impact on the body of a pregnant woman--if child born with injuries, child has separate cause of action; if miscarriage/still birth, no separate cause of action for child for wrongful death, mother will have cause of action for emotional distress.
§ Doctor misdiagnoses birth defects: parents recover for extra costs of caring for child, but no emotional distress. § Doctor error in sterilization: no recovery. |
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Negligence--Duty: Reasonably Prudent Person Standard and Exceptions
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§ Reasonably prudent person: no external attributes (no height, sex, weight, race), but it has a highly defined personality (always alert, safe). D not allowed to have any shortcomings or individual characteristics (even developmental disabilities/mental illness/novice or beginner) as compared to the reasonably prudent person—objective harsh standard.
§ Exceptions: 1. D physical characteristics--if D is blind, reasonably prudent blind person standard. 2. D's superior skill or knowledge--tested against reasonably prudent person who has that knowledge/skill. Skill (racecar driver); knowledge of isolated fact in certain situation (lived in same neighborhood for 20 years, drive as reasonably prudent person with advanced knowledge of circumstances). |
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Negligence--Duty: Children
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under age 4, incapable of negligent acts; age 4-18, held to standard of care of similar age, experience and intelligence acting under similar circumstances--subjective standard, more flexible, lenient.
□ Exception: if a child under 18 is engaged in an adult activity, use the reasonably prudent person standard. (operating a vehicle on an engine). |
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Negligence--Duty: Professionals
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applies to health care providers, other professionals (architect, accountant, etc.)--care of average member of that profession practicing in a similar community.
□ Not compared to imaginary reasonable person, but compared to real world colleagues--empirical test. Demands professionals be conformists. □ Customary practice of profession sets standard of care. □ Expert testimony needed to educate jury on custom of that community. Specialists are compared to national standard of care. |
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Negligence--Duty: Informed Consent
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□ NY only: informed consent. Doctor must explain the risks of a procedural--if fails to do so, and risk materializes, doctor liable.
® Exceptions: commonly known risks; patient declines the information; patient mentally incompetent; if disclosure would be medically harmful (unclear, but doesn't mean that disclosure would lead you to decline procedure). |
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Negligence--Duty: Possessors of real estate to entrants on land
Undiscovered trespassers |
Undiscovered trespasser: no duty, regardless of whether activity or condition.
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Negligence--Duty: Possessors of real estate to entrants on land
Discovered Trespasser |
Discovered trespasser (without permission but possessor knows you are there or anticipate that will trespass--when there has been a pattern of past trespassing, shortcut):
◊ activity injury--reasonably prudent person standard; ◊ condition injury--duty triggered if condition fits: 1) artificial (man-made) no duty for natural conditions; 2) highly dangerous; 3) concealed from trespasser, not open and obvious; 4) known to land possessor. ◊ All known, man-made death traps on land. |
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Negligence--Duty: Possessors of real estate to entrants on land
Licensees |
Licensees (with permission, but without any purpose of conferring commercial benefit on landowner, social guest, solicitors--implied consent):
◊ Activity injury--reasonably prudent person standard; ◊ Condition injury--duty if: 1) concealed condition, 2) known to D. ◊ All known traps on land (natural and moderately dangerous included). |
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Negligence--Duty: Possessors of real estate to entrants on land
Invitees |
Invitee (enter to confer commercial benefit on property owner or land open to public generally):
◊ Activity injury--reasonably prudent person standard ◊ Condition injury--duty if: 1) concealed from invitee; 2) know to D OR could have discovered through reasonable inspection. All reasonably knowable traps on the land. |
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Negligence--Duty: Possessors of real estate to entrants on land
NY Rule |
□ NY Distinction: abolished traditional approach, all entrants get reasonable prudence under the circumstances. (not based on legal status, but status is part of circumstances.
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Negligence--Duty: Possessors of real estate to entrants on land
Firefighter's Rule |
Fire fighter's rule: cannot recover in negligence for any risk that is an inherent risk of the job.
NY distinction: only applies in lawsuits between employer or colleague. Not categorical exclusion. |
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Negligence--Duty: Possessors of real estate to entrants on land
Child Trespassers |
Child trespassers: get reasonable prudent person under the circumstances treatment.
® How likely? If children will come on land, then must take lots of precautions. In highly unlikely, then no need to take lots of precautions. ® "Attractive nuisance doctrine"--anything tempting to children, must take added precautions. ® How old will the children be? |
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Negligence--Duty: Possessors of real estate to entrants on land
2 ways to avoid liability? |
□ Warning satisfies duty: Whenever land possessor owes a duty to an adult entrant regarding a condition on the land, can satisfy duty and avoid liability: 1) fix problem; 2) warn . Wet floor sign.
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Negligence--Duty: Negligence per se
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criminal or regulatory statute that regulates D's duty but does not technically apply in tort.
□ Class of person, class of risk test---P must demonstrate: 1) falls within class of persons that the statute seeks to protect; and 2) injury is in class of risks that statute seeks to prevent. Statute becomes the standard of care, borrowed. □ Exceptions (do not borrow, use reasonably prudent person): 1) if statutory compliance would be more dangerous than violation; 2) if statutory compliance would be impossible (out of D's control). |
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Negligence--duty to act affirmatively?
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None
□ Only when you undertake activities that duties arise--no duty to rescue, even when it would be easy and moral. □ Exceptions: 1) preexisting relationship triggers duty. Looking for established relationship in law: property owner-invitee, family, 2) D put P in peril--due to negligence or non-negligent behavior 3) D starts to rescue and does so negligently is liable--must rescue as a reasonably prudent person. ◊ NY Distinction--Good Samaritan law: protects from negligence liability for gratuitous rescue by nurse, doctor, vet. |
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Negligent infliction of emotional distress
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when no direct physical trauma, P must show: breach of duty of care; and either
1) Near miss: D's negligent conduct put P in a zone of physical danger and P was distressed and distress produced physical symptoms. 2) Bystander: P contemporaneous witness to negligent bodily injury inflicted on close family member. ® MBE: Physically present, but not necessarily in zone of danger. ® NY distinction: requires bystander who is distressed must be in zone of physical danger ◊ Family member: spouse, parent, child. NY did not allow aunt who raised her. 3) Preexisting relationship between P and D and where negligent act can foreseeably cause distress. Example: negligent medical diagnosis. |
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Negligence--what is breach?
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Breach--identify the wrongful behavior (fact) and explain why it is unreasonable (or falls short of standard of care) (advocacy).
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Negligence--what must P show for res ipsa loquitor?
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○ Res ipsa loquitur: if P is unable to identify D's negligent conduct, P must show two things as a substitute for direct evidence of breach (to get to jury):
1. Accident is the type that does NOT normally occur without negligence (probability--either judicial notice or expert evidence; evidence that rules out non-negligent explanation) 2. Accident is normally due to the negligence of someone in D's position. (show D had control over object. |
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Negligence--what is the test for factual causation?
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○ Factual causation: demonstration by P between breach and ultimate injury suffered. Standard test is "but for".
§ Essay tip: Repeat the breach as the factual cause. P argues BUT FOR D's negligent act, no injury. D argues EVEN IF, still injury. |
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Negligence--how do you show factual causation in multiple D cases?
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□ Multiple Ds and merged causes (2 careless parties, release forces, merged forces hurt P): Apply substantial factor test--whether each breach standing along was capable of causing the injury. If both Ds' breaches are substantial factors then jointly and severally liable.
□ Unascertainable cause: (Tyson hunting case)2 Ds, only one D caused injury but cannot identify which, 50-50 probability that caused injury, but normally P must show more likely than not. Instead, shift burden to Ds to exonerate if they can; if they can't, jointly and severally liable. |
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Negligence--how do you show proximate causation in a direct causation case?
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§ Direct cause: breach that leads instantaneously to injury. In a direct cause fact pattern, most of the time injuries are foreseeable, therefore liability is fair and D is proximate cause. Unforeseeable only if freakish and bizarre.
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Negligence--how do you show proximate causation in an indirect causation case (D commits breach then something happens in middle then P suffers full harm)?
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Well-settled patterns where D is held liable:
1. Intervening medical negligence: foreseeable that doctor makes it worse. D liable for whole injury and doctor also liable for his malpractice. 2. Intervening negligent rescue: foreseeable that rescuer makes it worse. D liable for whole injury and rescuer is also liable for his negligent rescue. 3. Intervening protection/reaction forces: foreseeable that other people protecting themselves from D's breach and could make injury worse. (P trampled by other pedestrians in red light case) 4. Subsequent disease or accident: foreseeable that someone in weakened state from injury could get subsequent disease or injury. □ If not well-settled, examine breach and determine if this is what I was worried about, if injury was what was worried about, then proximate cause. (bad shrimp does not cause broken arm) |
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What is the eggshell skull rule?
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○ Egg-shell skull rule: if D has committed all other elements, D is liable for all of P's damages, no matter how great in scope. Take your P as you find him.
§ Applies to all torts: negligence, intentional torts, privacy, economic torts. |
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Equitable remedies in tort--what must P show to get a permanent injunction (entered at conclusion of full trial on merits as part of final relief on the lawsuit)?
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○ Establish a tort, then need to make 4 part showing to get injunction:
1) no adequate remedy at law (money will not remedy tort in this case) □ examples: D has no money; harm is impossible to measure; conduct is ongoing 2) Tort impinges on property interest or protectable right--usually easily satisfied (right to be free from fraud, etc.) 3) Injunction is enforceable--easier to enforce negative injunction; mandatory injunction: courts are reluctant to grant if complicated behavior, long period of time, or outside jurisdiction. 4) Balance of hardships tips in favor of P--benefit to P outweighs harm to D. |
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Equitable remedies in tort---what are the special defenses to a permanent injunction?
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§ Unclean hands: D shows P himself is guilty of some misconduct that leads to denial.
§ Laches (prejudicial delay): D argues that P's delay in suing means that D has detrimentally relied on P's not suing. § First Amendment: any case that raises concern about prior restraint. |
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Equitable remedies in tort--what must P show to get a Preliminary injunction (entered shortly after complaint is filed after truncated hearing and designed to preserve status quo)?
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• Two additional showings required--1) likely success on merits; 2) irreparable harm.
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Affirmative defenses to negligence--what is Traditional contributory negligence?
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Traditional Contributory negligence--abolished in all but 5 states. If P has failed to exercise proper care for his own safely (either not reasonably prudent or statutory violation), P is barred from recovery. D avoids liability if he can prove P was also negligent.
○ Last clear chance: tortfeasor might still be held liable if he had the last clear chance to prevent the injury. |
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Affirmative defenses to negligence--what is traditional implied assumption of the risk?
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Traditional implied assumption of the risk--abolished by all but 12 states. Conduct by P from which we infer P knows dealing with negligent person and heightened chance of injury, but continues anyway. Look for: knowledge and appreciation of the risk; take on risk voluntarily.
○ NY distinction: P failure to wear seatbelt can mitigate damages, but cannot be used as evidence on issue of liability. |
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Affirmative defenses to negligence--what is comparative negligence?
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Comparative negligence--majority rule and NY rule. P fault reduces recovery. Jury assigns percentage fault.
○ Pure comparative negligence (MBE and NY): follow strictly the percentages that jury assigns, so P gets some recovery even if mostly negligent § NY distinction: one injured as a direct result her own illegal conduct involving risk of physical harm may not recover for her injuries, notwithstanding comparative fault statute. ○ Partial/modified comparative negligence: P assigned less than 50% of fault will have damages reduced, but P assigned more than 50% of fault recovers zero. |
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Strict liability for animals
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○ Domesticated animals--no strict liability for animals (usually dog bites, but one bull question)
§ Strictly liable if you have a domesticated animal with vicious propensities and you know about it (if your dog has bitten someone, etc.). § Owners can be liable under negligence theory. § No strict liability if victim is trespasser on your land. ○ Wild animals--owners strictly liable if you keep a wild animal. D's efforts at safety are legally irrelevant. |
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Abnormally hazardous activities
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• Abnormally dangerous activities: creates foreseeable risk of serious harm even when reasonable care is exercised AND activity must not be a matter of common usage in the community where D conducts it (in context).
○ Safety precautions are legally irrelevant |
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Consumer product strict liability--element 1: who is a merchant?
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D must be a merchant (routinely deals in good of this type).
§ Casual sellers cannot be held strictly liable. § Service providers not merchants to goods that are collateral to the service. § Commercial leasers ARE merchants, can be held strictly liable--rental care company. No privity requirement: Merchant includes every merchant in distribution chain, NOT limited to who P dealt with |
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Consumer product strict liability--how does P show element 2, that the product was defective?
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§ Manufacturing defect: if it differs from others than came off the same assembly line (departs from intended designed) in a way that makes it more dangerous that consumers would expect.
§ Design defect: if there is safer, practical (not more difficult to use or undermine primary purpose) and cost-effective (not significantly more expensive) way to build it. P must posit hypothetical design and if shows, then strictly liable. □ Information: warnings and instructions are part of product's design. If product has certain risks that cannot be designed out and consumer not aware of--so without warning, product is defective. Warnings must be sufficiently clear, prominent and understandable. ® If could be made physically safer, not enough to put warning to escape strict liability. |
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What are the 4 elements of a consumer product strict liability claim?
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1. D must be a merchant (routinely deals in good of this type).
2. Evidence that product is defective 3. Product has not been altered since it left D's hands. § Presumption: if product moved in ordinary channels of distribution, it is assumed not altered. Used-goods not in normal channel of distribution. 4. P must be making foreseeable use of product at the time he is injured. Not limited to manufacturer's intended uses--many misuses are foreseeable. |
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What is the affirmative defense to consumer product strict liability?
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○ Comparative fault (majority rule): P fault will lead to reduction of damages by percentages.
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Who is covered by workers' compensation?
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• Who is covered?
○ Virtually everyone is covered, except: teachers and other non-manual laborers at educational and religious nonprofits, and part-time domestic workers. ○ BUT independent contractors are not employees and thus are not covered by workers' compensation. |
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What kind of injuries are cover by workers' compensation?
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○ If injury is solely to employee intoxication, not covered.
○ Employee intentionally injured himself not covered. ○ Voluntary, off-duty athletic activity not covered. ○ Illegal acts committed by employee on the job are covered. Horseplay issue: decided case-by-case on whether minor horseplay or completely outside of scope of job. |
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What do you get in workers' compensation?
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○ 2/3 of weekly wages; out of pocket medical expenses.
○ Death: statutorily prescribed amount, plus funeral expenses. ○ Limits on compensation: no pain and suffering, no punitive damages. |
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What is nuisance?
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• Type of harm, not actually a tort. An interference with the ability to enjoy one's own property to an unreasonable degree.
○ D can cause nuisance intentionally, negligently or strictly. ○ Courts balance the equities: compare P's interference and what D is doing. |
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What kind of relationships trigger vicarious liability, where P has a valid cause of action against D1 who directly committed a tort, but P wants to sue D2, who had no direct connection with the injury-causing conduct, but who has a relationship with D1?
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○ Employer-employee: vicariously liable for torts of employee acting within scope of employment
§ Intentional torts are generally outside the scope of employment □ Exceptions: 1) if force is part of job description, then abuse of force in within scope of employment. 1) Where job generates friction/tension between employees and customers--repo man. 2) Misguided effort to advance employer's interests ○ Employer-independent contractor: generally not vicariously liable § Exception: land possessor is vicariously liable if independent contractor injures an invitee ○ Automobile owned-automobile drivers: generally no vicarious liability, but exception if lend car so they can do errand for you then they are your agent and you are liable. § NY distinction: permissive use state--vicariously liable for anyone driving your car with your permission. Presumption that anyone driving your car has your permission. But rented car does not get vicarious liability to rental car company under federal law. ○ Parent-child: parents are not liable for the torts of their children. § NY distinction: statutory liability for torts of children over 10, modest amount $5K. |
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What are co-D remedies?
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• P collects all money from D1, but D1 wants to get payment from D2 and D3:
○ Jury assigns percentage liability and collect based on the numbers. ○ Exception: Indemnity--- If out-of-pocket party can get 100% from third party § Vicariously liable party can get 100% indemnification from active tortfeasor. § Non-manufacturer gets full indemnification in strict products case from manufacturer. • NY distinction: See New York Practice. |
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What is loss of consortium?
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• In any case where victim of tort is married, uninjured spouse gets a second separate cause of action against all available defendants
• Compensates for ○ Loss of services--domestic services ○ Loss of society/companionship ○ Loss of sex |
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What is the NY collateral source rule?
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○ NY distinction--Collateral source rule: in all actions for personal injury, property damage or wrongful death, courts are required to reduce a successful {'s damage award by amount of any benefits that P received or will receive from collateral sources (including P's insurance policy, but not life insurance or SS.
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