Torts Mbe With Ny Distinctions

Front 1

Intentional Torts: Prima Facie Case

Back 1

To establish a prima facie case of intentional tort, plaintiff must prove:
1. Act by Defendant
2. Intent
3. Causation

Front 2

Prima Facie Tort in NY

Back 2

A prima facie tort consists of INTENTIONAL INFLICTION OF PECUNIARY HARM WITHOUT JUSTIFICATION.

Elements:
1. INTENT TO DO HARM, as distinguished from the requisite intent for other intentional torts (i.e., the intent to do the act that causes the harm).
2. The plaintiff must allege and prove special damages. PECUNIARY LOSS is an essential element.

Note: Where a TRADITIONAL TORT has been established, an action for prima facie tort will NOT lie. Also, the action will not lie if a traditional tort action could have been brought except for the running of the statute of limitations.

Front 3

Intentional Torts: Prima Facie Case: Act by Defendant

Back 3

The act required is a VOLITIONAL MOVEMENT BY defendant.

Front 4

Intentional Torts: Prima Facie Case: Intent

Back 4

Intent may be either:
1. SPECIFIC (the goal in acting is to bring about specific consequences) or
2. GENERAL (the actor know with “substantial certainty” that these consequences will result).

Front 5

Intentional Torts: Prima Facie Case: Intent; Transferred Intent: General Rule

Back 5

The transferred intent doctrine applies when the defendant intends to commit a tort against one person but instead
1. Commits a different tort against that person,
2. Commits the same tort as intended but against a different person, or
3. Commits a different tort against a different person.

In such cases, the intent to commit a certain tort against one person is transferred to the tort actually committed or to the person actually injured for purposes of establishing a prima facie case. Thus, e.g., a defendant who acts with the intent to commit an assault but whose conduct actually constitutes a battery is liable for battery.

Front 6

Intentional Torts: Prima Facie Case: Intent: Transferred Intent: Limitations on Use of Transferred Intent

Back 6

Transferred intent may be invoked only if both the tort intended and the tort that results are one of the following:
1. Assault
2. Battery
3. False Imprisonment
4. Trespass to Land or
5. Trespass to Chattels

Front 7

Exam Tip

Back 7

Everyone is “capable” of intent. Incapacity is not a good defense. Thus, young children and persons who are mentally incompetent will be liable for their intentional torts.

Front 8

Intentional Torts: Prima Facie Case: Causation

Back 8

The result must have been legally caused by defendant’s act or something set in motion by him. Causation is satisfied if defendant’s conduct was a SUBSTANTIAL FACTOR in bringing about the injury.

Front 9

Intentional Torts: Prima Facie Case—Intentional Torts to the Person: Battery

Back 9

Elements of the prima facie case:
1. HARMFUL or OFFENSIVE CONTACT;
2. To plaintiff’s person
3. Intent; and
4. Causation.

Front 10

Intentional Torts: Prima Facie Case—Intentional Torts to the Person: Battery: Harmful or Offensive Contact: Judged by Reasonable Person Standard

Back 10

Harmfulness or offensiveness are judged by a reasonable person standard.

Front 11

Exam Tip

Back 11

Contact is considered offensive only if it has not been consented to. However, consent will be IMPLIED for the ordinary contacts of everyday life (e.g., minor bumping on a crowded bus).

Front 12

Intentional Torts: Prima Facie Case—Intentional Torts to the Person: Battery: Harmful or Offensive Contact: Direct or Indirect Contact

Back 12

Contact can be direct (e.g., striking plaintiff) or indirect (e.g, setting a trap for plaintiff to fall into).

Front 13

Intentional Torts: Prima Facie Case—Intentional Torts to the Person: Battery: Plaintiff’s Person

Back 13

Plaintiff’s person includes anything connected to the plaintiff (e.g., clothing or a purse).

Front 14

Intentional Torts: Prima Facie Case—Intentional Torts to the Person: Battery: Damages Not Required

Back 14

Plaintiff can recover nominal damages even if actual damages are not proved. Plaintiff may recover punitive damages for malicious conduct.

Front 15

Intentional Torts: Prima Facie Case—Intentional Torts to the Person: Assault

Back 15

Elements of the prima facie case:

1. An act by defendant creating a REASONABLE APPREHENSION in plaintiff;
2. Of IMMEDIATE HARMFUL OR OFFENSIVE CONTACT to plaintiff’s person;
3. Intent; and
4. Causation.

Front 16

Intentional Torts: Prima Facie Case—Intentional Torts to the Person: Assault: Distinguish Fear

Back 16

Apprehension should not be confused with fear or intimidation (e.g., a weakling can cause apprehension and thus assault a bully).

Front 17

Intentional Torts: Prima Facie Case—Intentional Torts to the Person: Assault: Apparent Ability Sufficient

Back 17

If defendant has the APPARENT ABILITY to commit a battery, this will be enough to cause a reasonable apprehension.

Front 18

Intentional Torts: Prima Facie Case—Intentional Torts to the Person: Assault: Effect of Words

Back 18

Words alone are not sufficient. For the defendant to be liable, the words must be coupled with conduct. However, words can NEGATE reasonable apprehension (e.g., the defendant shakes her fist but states that she is not going to strike the plaintiff).

Front 19

Intentional Torts: Prima Facie Case—Intentional Torts to the Person: Assault: Requirement of Immediacy

Back 19

Plaintiff must be apprehensive that she is about to become the victim of an immediate battery.

Front 20

Intentional Torts: Prima Facie Case—Intentional Torts to the Person: Assault: Damages Not Required

Back 20

Plaintiff can recover nominal damages even if actual damages are not proved. Malicious conduct may permit recovery of punitive damages.

Front 21

Intentional Torts: Prima Facie Case—Intentional Torts to the Person: False Imprisonment

Back 21

Elements of the prima facie case:
1. An act or omission on the part of defendant that CONFINES OR RESTRAINS plaintiff;
2. To a BOUNDED AREA;
3. Intent; and
4. Causation.

Front 22

Intentional Torts: Prima Facie Case—Intentional Torts to the Person: False Imprisonment: Sufficient Methods of Confinement or Restraint

Back 22

Sufficient acts of restraint include:
1. Physical barriers,
2. Physical force,
3. Threat of force,
4. Failure to release, and
5. Invalid use of legal authority

Front 23

Intentional Torts: Prima Facie Case—Intentional Torts to the Person: False Imprisonment: Insufficient Methods of Confinement or Restraint

Back 23

Insufficient acts of restraint include:
1. Moral pressure, and
2. Future Threats.

Front 24

Intentional Torts: Prima Facie Case—Intentional Torts to the Person: False Imprisonment: Time of Confinement

Back 24

It is irrelevant how short the period of the confinement is.

Front 25

Intentional Torts: Prima Facie Case—Intentional Torts to the Person: False Imprisonment: Awareness of Confinement

Back 25

Plaintiff must KNOW of the confinement or be HARMED by it.

Front 26

Intentional Torts: Prima Facie Case—Intentional Torts to the Person: False Imprisonment: What is a Bounded Area?

Back 26

For an area to be “bounded,” freedom of movement must be limited in all directions. There must be no REASONABLE means of escape KNOWN to plaintiff.

Front 27

Intentional Torts: Prima Facie Case—Intentional Torts to the Person: False Imprisonment: Damages Not Required

Back 27

Plaintiff can recover nominal damages even if actual damages are not proved. Punitive damages may be recovered if defendant acted maliciously.

Front 28

Intentional Torts: Prima Facie Case—Intentional Torts to the Person: Intentional Infliction of Emotional Distress

Back 28

Elements of the prima facie case:
1. An act by defendant amounting to EXTREME AND OUTRAGEOUS CONDUCT;
2. Intent or recklessness;
3. Causation; and
4. Damages—SEVERE emotional distress.

Front 29

Intentional Torts: Prima Facie Case—Intentional Torts to the Person: Intentional Infliction of Emotional Distress: Extreme and Outrageous Conduct

Back 29

This is conduct that transcends all bounds of decency. Conduct that is not normally outrageous may become so if:
1. It is continuous in nature;
2. It is directed toward a certain type of plaintiff (children, elderly persons, pregnant women, supersensitive adult if the sensitivities are known to defendant); or
3. It is committed by a certain type of defendant (common carriers or innkeepers may be liable even for mere “gross insults”).

Front 30

Intentional Torts: Prima Facie Case—Intentional Torts to the Person: Intentional Infliction of Emotional Distress: Requisite Intent

Back 30

Unlike for other intentional torts, RECKLESSNESS as to the effect of defendant’s conduct will satisfy the intent requirement.

Front 31

Intentional Torts: Prima Facie Case—Intentional Torts to the Person: Intentional Infliction of Emotional Distress: Damages

Back 31

Actual damages (severe emotional distress), not nominal damages, are required. Proof of physical injury is not required. The more outrageous the conduct, the less proof of damages is required.

Front 32

Exam Tip

Back 32

Intentional infliction of emotional distress is the ONLY intentional tort to the person that requires damages.

Front 33

Intentional Torts: Prima Facie Case—Intentional Torts to the Person: Intentional Infliction of Emotional Distress: Causation in Bystander Cases

Back 33

When the defendant intentionally causes physical harm to a third person and the plaintiff suffers severe emotional distress because of it, the plaintiff may recover by showing EITHER the prima facie case elements of emotional distress OR that
1. She was present when the injury occurred,
2. She is a close relative of the injured person AND
3. The defendant knew facts #1 and #2.

Front 34

Exam Tip

Back 34

Intentional infliction of emotional distress is a FALLBACK tort position. Thus, if another alternative in your exam question is a tort that will also allow plaintiff to recover, it should be chosen over this alternative.

Front 35

Intentional Torts: Prima Facie Case—Intentional Torts to Property: Trespass to Land

Back 35

Elements of the prima facie case:
1. PHYSICAL INVASION of plaintiff’s REAL PROPERTY;
2. Intent; and
3. Causation.

Front 36

Intentional Torts: Prima Facie Case—Intentional Torts to Property: Trespass to Land: Physical Invasion

Back 36

The invasion may be by a person or object (e.g., throwing a baseball onto plaintiff’s land is a trespass). If INTANGIBLE MATTER (e.g., vibrations or odor) enters, the plaintiff may have a case for nuisance.

Front 37

Intentional Torts: Prima Facie Case—Intentional Torts to Property: Trespass to Land: Real Property

Back 37

Real property includes not only the surface, but also airspace and subterranean space for a reasonable distance.

Front 38

Intentional Torts: Prima Facie Case—Intentional Torts to Property: Trespass to Land: Intent

Back 38

Defendant need intend only to enter onto that particular piece of land (he need not know that the land belonged to another).

Front 39

Intentional Torts: Prima Facie Case—Intentional Torts to Property: Trespass to Land: Potential Plaintiffs

Back 39

Anyone in actual or constructive possession of the land may maintain this action.

Front 40

Intentional Torts: Prima Facie Case—Intentional Torts to Property: Trespass to Land: No Requirement of Damages

Back 40

Plaintiff can recover without showing actual injury to the land.

Front 41

Intentional Torts: Prima Facie Case—Intentional Torts to Property: Trespass to Chattels

Back 41

Elements of the prima facie case:
1. An act by defendant that INTERFERES WITH PLAINTIFF’S RIGHT OF POSSESSION in a chattel;
2. Intent
3. Causation; and
4. Damages.

Front 42

Intentional Torts: Prima Facie Case—Intentional Torts to Property: Trespass to Chattels: Two Types of Interference

Back 42

The interference may be an intermeddling (i.e., directly DAMAGING the chattel) or a dispossession (i.e., depriving plaintiff of his lawful right of POSSESSION of the chattel).

Front 43

Intentional Torts: Prima Facie Case—Intentional Torts to Property: Trespass to Chattels: Damages

Back 43

Actual damages—not necessarily to the chattel, but at least to a possessory right—are required.

Front 44

Intentional Torts: Prima Facie Case—Intentional Torts to Property: Conversion

Back 44

Elements of the prima facie case:
1. An act by defendant that INTERFERES WITH PLAINTIFF’S RIGHT OF POSSESSION in a chattel;
2. The interference is SO SERIOUS that it warrants requiring defendant to pay the chattel’s full value;
3. Intent; and
4. Causation.

Front 45

Intentional Torts: Prima Facie Case—Intentional Torts to Property: Conversion: Acts of Conversion

Back 45

Acts of conversion include wrongful acquisition (theft), wrongful transfer, wrongful detention, and substantially changing, severely damaging, or misusing a chattel.

Front 46

Intentional Torts: Prima Facie Case—Intentional Torts to Property: Conversion: Seriousness of Interference

Back 46

The longer the withholding period and the more extensive the use, the more likely it is to be conversion. A less serious interference is trespass to chattels.

Front 47

Intentional Torts: Prima Facie Case—Intentional Torts to Property: Conversion: Subject Matter of Conversion

Back 47

Only tangible personal property and intangibles that have been reduced to physical form (e.g., a promissory note) are subject to conversion.

Front 48

Intentional Torts: Prima Facie Case—Intentional Torts to Property: Conversion: Potential Plaintiffs

Back 48

Anyone with possession or the immediate right to possession of the chattel may maintain an action for conversion.

Front 49

Intentional Torts: Prima Facie Case—Intentional Torts to Property: Conversion: Remedies

Back 49

Plaintiff may recover DAMAGES (fair market value at the time of conversion) OR POSSESSION (replevin).

Front 50

Intentional Torts: Defense to Intentional Torts: Consent

Back 50

Plaintiff’s consent to defendant’s conduct is a defense, but the majority view is that one CANNOT consent to a CRIMINAL ACT. Any consent fact pattern raises two inquiries:
1. Was there a valid consent (e.g., no fraud)?
2. Did the defendant stay within the boundaries of the consent (e.g., not use a gun in a boxing match)?

Front 51

Intentional Torts: Defense to Intentional Torts: Consent: Express (Actual) Consent

Back 51

Defendant is not liable if plaintiff expressly consents to defendant’s conduct. Exceptions:

1. Mistake will undo express consent IF defendant knew of and took advantage of the mistake;
2. Consent induced by fraud will be invalidated if it goes to an essential matter, but not a collateral matter; and
3. Consent obtained by duress will be invalidated unless the duress is only threats of future action or future economic deprivation.

Front 52

Intentional Torts: Defense to Intentional Torts: Consent: Implied Consent

Back 52

APPARENT CONSENT is that which a reasonable person would infer from custom and usage or plaintiff’s conduct, e.g., normal contacts inherent in body-contact sports, ordinary incidental contact, etc. CONSENT IMPLIED BY LAW arises when action is necessary to save a person’s life or some other important interest in person or property.

Front 53

Intentional Torts: Defense to Intentional Torts: Consent: Capacity Required

Back 53

Individuals without capacity are deemed incapable of consent, e.g., incompetents, drunken persons, and very young children.

Front 54

Exam Tip

Back 54

This requirement of capacity differs from the rule for the intent element of intentional torts, where incapacity is no defense; i.e., everyone (even a young child) has the capacity to COMMIT a tort, but not everyone has the capacity to CONSENT to a tort.

Front 55

Intentional Torts: Defense to Intentional Torts: Consent: Exceeding Consent Given

Back 55

If defendant exceeds the scope of consent and does something substantially different, he may be liable.

Front 56

Intentional Torts: Defense to Intentional Torts: Self-Defense, Defense of Others, and Defense of Property

Back 56

When a question involves the defense of self, others, or property, ask the following three questions:
1. Is the privilege available? These privileges apply only for PREVENTING THE COMMISSION of a tort. Already committed torts do not qualify.
2. Is a mistake permissible as to whether the tort being defended against (battery, trespass etc.) is actually being committed?
3. Was a proper amount of force used?

Front 57

Exam Tip

Back 57

Keep your parties clear. In questions involving these defenses, the conduct of the defendant was prompted by the commission or apparent commission of a tort by the plaintiff. That tort is not at issue, however; the issue is whether the defendant’s response itself constituted a tort against the plaintiff (usually battery, trespass to land, or trespass to chattels) or instead was privileged by one of these defenses.

Front 58

Intentional Torts: Defense to Intentional Torts: Self-Defense, Defense of Others, and Defense of Property: Self-Defense

Back 58

When a person REASONABLY BELIEVES that she is being or is about to be attacked, she may use such force as is reasonably necessary to protect against injury.

Front 59

Intentional Torts: Defense to Intentional Torts: Self-Defense, Defense of Others, and Defense of Property: Self-Defense: When is Defense Available

Back 59

1. One need not attempt escape, but the modern trend imposes a duty to retreat before using deadly force if this can be done safely, unless the actor is in her home.
2. Self-defense is generally not available to the initial aggressor.
3. Self-defense may extend to third-party injuries (caused while the actor was defending herself). An actor might be liable to a third person if she deliberately injured him in trying to protect himself.

Front 60

Self-Defense: Duty to Retreat in NY

Back 60

In NY, RETREAT IS REQUIRED before using deadly force UNLESS the actor:
1. CANNOT DO SO SAFELY;
2. IS IN HIS OWN DWELLING;
3. Is a police officer; or
4. Is a person assisting a police officer.

Front 61

Intentional Torts: Defense to Intentional Torts: Self-Defense, Defense of Others, and Defense of Property: Self-Defense: Is Mistake Allowed?

Back 61

A reasonable mistake as to the existence of the danger is allowed.

Front 62

Intentional Torts: Defense to Intentional Torts: Self-Defense, Defense of Others, and Defense of Property: How Much Force May be Used?

Back 62

One may use only that force that reasonably appears to be necessary to prevent the harm (including deadly force). If more force than is reasonably necessary is used, the defense is lost.

Front 63

Intentional Torts: Defense to Intentional Torts: Self-Defense, Defense of Others, and Defense of Property: Defense of Others: When Is Defense Available?

Back 63

One may use force to defend another when the actor REASONABLY BELIEVES that the other person could have used force to defend himself.

Front 64

Intentional Torts: Defense to Intentional Torts: Self-Defense, Defense of Others, and Defense of Property: Defense of Others: Is Mistake Allowed?

Back 64

A reasonable mistake as to whether the other person is being attacked or has a right to defense himself is permitted.

Front 65

Intentional Torts: Defense to Intentional Torts: Self-Defense, Defense of Others, and Defense of Property: Defense of Others: How Much Force May be Used?

Back 65

The defender may use as much force as he could have used in self-defense if he were the one threatened with the injury.

Front 66

Intentional Torts: Defense to Intentional Torts: Self-Defense, Defense of Others, and Defense of Property: Defense of Property: When is Defense Available?

Back 66

One may use reasonable force to prevent the commission of a tort against her real or personal property. A request to desist or leave must first be made unless it clearly would be futile or dangerous. The defense does not apply once the tort has been committed; however, one may use force in HOT PURSUIT of another who has tortuously dispossessed the owner of her chattels because the tort is viewed as still being committed.

Front 67

Exam Tip

Back 67

Remember that this defense is NOT AVAILABLE AGAINST ONE WITH A PRIVILEGE. Whenever an actor has a privilege to enter onto the land of another because of necessity, recapture of chattels, etc., that privilege will SUPERSEDE the privilege of the land possessor to defend her property.

Front 68

Intentional Torts: Defense to Intentional Torts: Self-Defense, Defense of Others, and Defense of Property: Defense of Property: Is Mistake Allowed?

Back 68

A reasonable mistake is allowed as to whether an intrusion has occurred or whether a request to desist is required. A mistake is NOT allowed as to whether the entrant has a privilege (e.g., necessity) that supersedes the defense of property right, unless the entrant conducts the entry so as to lead the defendant to reasonably believe it is not privileged (such as by refusing to say what the necessity is).

Front 69

Intentional Torts: Defense to Intentional Torts: Self-Defense, Defense of Others, and Defense of Property: Defense of Property: How Much Force May Be Used?

Back 69

Reasonable force may be used. However, one may NOT use force causing death or serious bodily harm unless the invasion of property also entails a serious threat of bodily harm.

Front 70

Exam Tip

Back 70

There is a common misconception that deadly force may be used to protect one’s home. This is not strictly true. Many of the “home defense” cases are really self-defense cases. Thus, deadly force can only be used when a person, not just property, is threatened.

Front 71

Intentional Torts: Defense to Intentional Torts: Self-Defense, Defense of Others, and Defense of Property: Reentry onto Land

Back 71

At common law, one could use force to reenter land only when the other came into possession tortuously. Under modern law, there are summary procedures for recovering possession of real property. Hence, resort to self-help is no longer allowed.

Front 72

Intentional Torts: Defense to Intentional Torts: Self-Defense, Defense of Others, and Defense of Property: Recapture of Chattels

Back 72

The basic rule is the same as that for reentry of land at common law: When another’s possession began lawfully (e.g., a conditional sale), one may use only peaceful means to recover the chattel. Force may be used to recapture a chattel only when in hot pursuit of one who has obtained possession wrongfully, e.g., by theft.

Front 73

Intentional Torts: Defense to Intentional Torts: Self-Defense, Defense of Others, and Defense of Property: Recapture of Chattels: When is Defense Available?: Timely Demand Required

Back 73

A timely demand to return the chattel is first required unless clearly futile or dangerous.

Front 74

Intentional Torts: Defense to Intentional Torts: Self-Defense, Defense of Others, and Defense of Property: Recapture of Chattels: When is Defense Available?: Recovery Only from Wrongdoer

Back 74

The recapture may be only from a tortfeasor or some third person who knows or should know that the chattels were tortuously obtained. One may not use force to recapture chattels in the hands of an innocent party.

Front 75

Intentional Torts: Defense to Intentional Torts: Self-Defense, Defense of Others, and Defense of Property: Recapture of Chattels: When is Defense Available?: Entry onto Land to Remove Chattel: On Wrongdoer’s Land

Back 75

When chattels are located on the land of the wrongdoer, the owner is privileged to enter onto the land and reclaim them at a reasonable time and in a reasonable manner, after first making a demand for their return.

Front 76

Intentional Torts: Defense to Intentional Torts: Self-Defense, Defense of Others, and Defense of Property: Recapture of Chattels: When is Defense Available?: Entry onto Land to Remove Chattel: On Land of Innocent Party

Back 76

Similarly, when the chattels are on the land of an innocent party, the owner may enter and reclaim her chattel at a reasonable time and in a peaceful manner when the landowner has been given notice of the presence of the chattel and refuses to return it. (As noted above, the chattel owner’s right to recapture supersedes the landowner’s right to defend his property.) However, the chattel owner will be liable for any actual damage caused by the entry.

Front 77

Intentional Torts: Defense to Intentional Torts: Self-Defense, Defense of Others, and Defense of Property: Recapture of Chattels: When is Defense Available?: Entry onto Land to Remove Chattel: On Land Through Owner’s Fault

Back 77

If the chattels are on the land of another through the owner’s fault (e.g., negligently letting cattle wander), there is no privilege to enter onto the land. They may be recovered only through legal process.

Front 78

Intentional Torts: Defense to Intentional Torts: Self-Defense, Defense of Others, and Defense of Property: Recapture of Chattels: Is Mistake Allowed?

Back 78

Generally, no mistake regarding defendant’s right to recapture chattels or enter onto the land is allowed. However, SHOPKEEPERS MAY HAVE A PRIVILEGE TO DETAIN for a reasonable period of time individuals whom they reasonably believe to be in possession of shoplifted goods.

Front 79

Intentional Torts: Defense to Intentional Torts: Self-Defense, Defense of Others, and Defense of Property: Recapture of Chattels: How Much Force May be Used?

Back 79

Reasonable force, not including force sufficient to cause death or serious bodily harm, may be used to recapture chattels.

Front 80

Intentional Torts: Defense to Intentional Torts: Privilege of Arrest

Back 80

Depending on the facts, the actor may have a privilege to make an arrest of a third person.

Front 81

Intentional Torts: Defense to Intentional Torts: Privilege of Arrest: Invasion of Land

Back 81

The privilege of arrest carries with it the privilege to enter another’s land for the purpose of effecting the arrest.

Front 82

Intentional Torts: Defense to Intentional Torts: Privilege of Arrest: Subsequent Misconduct

Back 82

Although the arrest itself may be privileged, the actor may still be liable for subsequent misconduct (e.g., failing to bring the arrested party before a magistrate, unduly detaining the party in jail).

Front 83

Intentional Torts: Defense to Intentional Torts: Privilege of Arrest: Mistake: Misdemeanor

Back 83

If the arrest is for a misdemeanor, it is privileged only if for a breach of peace and if the action takes place in front of defendant. (Most state statutes grant police officers a broader privilege.)

Front 84

Intentional Torts: Defense to Intentional Torts: Privilege of Arrest: Mistake: Felony

Back 84

For a felony arrest, a POLICE OFFICER may make a reasonable mistake. Citizens may make a reasonable mistake regarding the identity of the felon, but not regarding whether the felony occurred.

Front 85

Intentional Torts: Defense to Intentional Torts: Necessity

Back 85

A person may interfere with the real or personal property of another when it is reasonably and apparently necessary to avoid threatened injury from a natural or other force and when the threatened injury is substantially more serious than the invasion that is undertaken to avert it. There are two types of necessity:
1. Public—when the act is for the public good; and
2. Private—when the act is solely to benefit a limited number of people.

Under private necessity, the actor must pay for any injury he causes (unless the act was to benefit the property owner).

Front 86

Exam Tip

Back 86

Necessity is a defense only to property torts.

Front 87

Intentional Torts: Defense to Intentional Torts: Discipline

Back 87

A parent or teacher may use reasonable force in disciplining children.

Front 88

Harm to Economic and Dignitary Interests: Defamation

Back 88

The law of defamation is divided into two parts: the common law elements and the constitutional requirements.

The elements of common law defamation are:
1. DEFAMATORY LANGUAGE;
2. “OF OR CONCERNING” the plaintiff;
3. PUBLICATION thereof by defendant to a third person; and
4. Damage to plaintiff’s reputation.

If the defamation involves a MATTER OF PUBLIC CONCERN, the Constitution requires the plaintiff to prove two additional elements:
5. FALSITY of the defamatory language; and
6. FAULT on the part of defendant.

Front 89

Exam Tip

Back 89

In a common law case, plaintiff does not have to prove falsity as part of the prima facie case. Rather, defendant can offer truth of the statement as a defense.

Front 90

Harm to Economic and Dignitary Interests: Defamation: Defamatory Language

Back 90

Defamatory language is defined as language tending to adversely affect one’s reputation. A statement of opinion is actionable only if it appear to be based on scientific facts, and an express allegation of those facts would be defamatory. Name-calling is insufficient.

Front 91

Harm to Economic and Dignitary Interests: Defamation: Defamatory Language: Inducement and Innuendo

Back 91

If the statement is not defamatory on its face, plaintiff may plead additional facts as “inducement” to establish defamatory meaning by “innuendo”

Front 92

Harm to Economic and Dignitary Interests: Defamation: Defamatory language: Living Person Requirement

Back 92

Any living person may be defamed. Defamation of a deceased person is not actionable. In a limited sense, a corporation, unincorporated association, or partnership may be defamed (e.g., by remarks as to its financial condition, honesty, integrity, etc.)

Front 93

Harm to Economic and Dignitary Interests: Defamation: “Of or Concerning” Plaintiff

Back 93

The plaintiff must establish that a reasonable reader, listener, or viewer would understand that the defamatory statement referred to the plaintiff.

Front 94

Harm to Economic and Dignitary Interests: Defamation: “Of or Concerning” Plaintiff: Coloquium

Back 94

If the statement does not refer to plaintiff on its face, extrinsic evidence may be offered to establish that the statement refers to the plaintiff. This is known as pleading “colloquium.”

Front 95

Harm to Economic and Dignitary Interests: Defamation: “Of or Concerning” Plaintiff: Group Defamation

Back 95

1. If the defamatory statement refers to ALL members of a SMALL group, each member may establish that the statement is “of and concerning” him by alleging that he is a group member (i.e., everyone wins).
2. If it is a LARGE group, NO member can prove that the statement is “of and concerning” him (i.e., no one wins)
3. If the statement only refers to SOME members of a SMALL group, plaintiff can recover if a reasonable person would view the statement as referring to plaintiff.

Front 96

Harm to Economic and Dignitary Interests: Defamation: Publication

Back 96

Publication means communication of the defamation to someone other than the plaintiff. Such publication can be made either intentionally or negligently. It is the intent to publish not the intent to defame, that is the requisite intent. Eaach repetition is a separate publication. However, for magazines, newspapers, etc., most states have adopted a “single publication” rule under which all copies are treated as one publication.

Front 97

Exam Tip

Back 97

An exam favorite is the situation where a defamatory statement about plaintiff is made ONLY TO PLAINTIFF. As a general rule, there is NO publication and thus no defamation.

Front 98

Harm to Economic and Dignitary Interests: Defamation: Publication: Who May be Liable?

Back 98

Primary publishers (e.g., newspapers, TV stations, etc.) are liable to the same extent as the author or speaker. One who repeats a defamation is liable on the same general basis as the primary publisher (even if she states the source or makes it clear that she does not believe the defamation). One selling papers or playing tapes is a secondary publisher and is liable only if he knows or should know of the defamatory content.

Front 99

Harm to Economic and Dignitary Interests: Defamation: Damage to Plaintiff’s Reputation

Back 99

The type of damages plaintiff must prove depends on the type of defamation (libel or slander) involved. In some slander cases, plaintiff must prove that she suffered special damages—that is, she must have suffered some pecuniary loss in order to recover anything. But once plaintiff has proved special damages, she may recover general damages as well.

Front 100

Harm to Economic and Dignitary Interests: Defamation: Damage to Plaintiff’s Reputation: Libel

Back 100

Libel is the written or printed publication of defamatory language. Plaintiff does not need to prove special damages and general damages are presumed. The minority position distinguishes between libel per se and libel per quod (not defamatory on its face).

Front 101

Libel in NY

Back 101

A distinction between LIBEL PER SE and LIBEL PER QUOD (called libel by “extrinsic fact”) exists in NY. Libel by extrinsic fact is treated like libel per se (i.e., actionable even without proof of special damages), where the defamatory import of the completed libel falls into a category that constitutes slander per se.

Front 102

Harm to Economic and Dignitary Interests: Defamation: Damage to Plaintiff’s Reputation: Slander

Back 102

Slander is a spoken defamation. Plaintiff must prove special damages, unless defamation falls within slander per se categories; i.e., defamatory statements that:
1. Adversely reflect on one’s conduct in a business or profession;
2. One has a loathsome disease;
3. One is or was guilty of a crime involving moral turpitude; or
4. A woman is unchaste.

Front 103

Slander Per Se in NY

Back 103

NY has added a fifth slander per se category of IMPUTATION OF HOMOSEXUALITY in addition to the four MS categories.

Front 104

Harm to Economic and Dignitary Interests: Defamation: Damage to Plaintiff’s Reputation: Radio and Television Broadcasts are Libel

Back 104

Defamation in radio and television programs is treated by most courts today as libel.

Front 105

Harm to Economic and Dignitary Interests: Defamation: First Amendment Concerns

Back 105

When the defamation involves a MATTER OF PUBLIC CONCERN, plaintiff must prove, in addition to the common law elements:
1. Falsity of the statement, and
2. Fault on the part of defendant.

Front 106

Harm to Economic and Dignitary Interests: Defamation: First Amendment Concerns: Falsity

Back 106

In cases where plaintiff is constitutionally required to prove some type of fault, plaintiff also has the burden of proving falsity.

Front 107

Exam Tip

Back 107

If a statement of public interest is true, plaintiff has no cause of action for defamation. However, if you see this type of statement on the exam, consider whether plaintiff may have a cause of action for intentional infliction of emotional distress or invasion of right to privacy (unless plaintiff is a public figure or a matter of public concern is involved).

Front 108

Harm to Economic and Dignitary Interests: Defamation: First Amendment Concerns: Fault on Defendant’s Part

Back 108

The type of fault that a plaintiff must prove depends on the plaintiff’s status.

Front 109

Harm to Economic and Dignitary Interests: Defamation: First Amendment Concerns: Fault on Defendant’s Part: Public Official or Figure Must Prove Malice

Back 109

Under the New York Times v. Sullivan rule, malice must be proved in defamation cases brought by public officials and public figures.

Front 110

Harm to Economic and Dignitary Interests: Defamation: First Amendment Concerns: Fault on Defendant’s Part: Public Official or Figure Must Prove Malice: What Constitutes a Public Figure?

Back 110

A person becomes a “public figure” by achieving pervasive fame or notoriety or by voluntarily assuming a central role in a particular public controversy.

Front 111

Harm to Economic and Dignitary Interests: Defamation: First Amendment Concerns: Fault on Defendant’s Part: Public Official or Figure Must Prove Malice: Definition of Malice

Back 111

Malice is:
1. KNOWLEDGE that the statement was false; or
2. RECKLESS DISREGARD as to whether it was false.

This is a subjective test. Defendant’s spite or ill will is not enough to constitute malice. Deliberately altering a quotation may constitute malice if the alteration causes a MATERIAL CHANGE in the meaning conveyed by the quotation.

Front 112

Harm to Economic and Dignitary Interests: Defamation: First Amendment Concerns: Fault on Defendant’s Part: Private Persons Need Not Prove Malice

Back 112

Under Gertz v. Welch, where a private person is the plaintiff, only NEGLIGENCE regarding the falsity must be proved if the statement involves a matter of “public concern.” (If not a matter of public concern, constitutional restrictions do not apply.) Where the defendant is negligent, only “actual injury” damages are recoverable. However, where malice is found, damages may be presumed, and punitive damages allowed.

Front 113

Exam Tip

Back 113

Note that the status of the plaintiff (public figure or private person) is relevant ONLY for the degree of fault required; the element of falsity must be proved regardless of the status of the plaintiff as long as a matter of public concern is involved (and you should assume that a matter of public concern is involved whenever the plaintiff is a public figure).

Front 114

Harm to Economic and Dignitary Interests: Defamation: Defenses to Defamation: Consent

Back 114

Consent is a complete defense. The rules relating to consent to intentional torts apply here.

Front 115

Harm to Economic and Dignitary Interests: Defamation: Defenses to Defamation: Truth

Back 115

Where plaintiff does not need to prove falsity (i.e., the statement is about a purely private matter), defendant may prove truth as a complete defense.

Front 116

Exam Tip

Back 116

Remember that falsity and fault are prima facie elements only in a CONSTITUTIONAL defamation case. Plaintiff does not need to prove falsity in a COMMON LAW defamation case because defamatory statements are presumed to be false; defendant has the burden to prove truth as a defense.

Front 117

Harm to Economic and Dignitary Interests: Defamation: Defenses to Defamation: Absolute Privilege—Can Never Be Lost

Back 117

Defendant may be protected by an absolute privilege for the following: remarks made during judicial proceedings, by legislators during proceedings, by federal executive officials, in “compelled” broadcasts, and between spouses.

Front 118

Harm to Economic and Dignitary Interests: Defamation: Defenses to Defamation: Qualified Privilege—Can Be Lost Through Abuse

Back 118

Sometimes the speaker may have a qualified privilege for the following: reports of official proceedings; statements in the interest of the publisher—defense of one’s actions, property, or reputation; statements in the interest of the recipient; and statements in the common interest of the publisher and recipient.

The qualified privilege may be lost if:
1. The statement is not within the scope of the privilege, or
2. It is shown that the speaker acted with malice.

Defendant bears the burden of proving that a privilege exists.

Front 119

Harm to Economic and Dignitary Interests: Defamation: Mitigating Factors

Back 119

Mitigating factors (e.g., no malice, retraction, anger of the speaker provoked by plaintiff) may be considered by the jury on the damages issue; they are not defenses to liability.

Front 120

Harm to Economic and Dignitary Interests: Invasion of Right to Privacy: Four Branches

Back 120

This tort includes four kinds of wrongs:
1. Appropriation of Plaintiff’s Picture or Name
2. Intrusion on Plaintiff’s Affairs or Seclusion
3. Publication of Facts Placing Plaintiff in False Light
4. Public Disclosure of Private Facts About Plaintiff

Front 121

Harm to Economic and Dignitary Interests: Invasion of Right to Privacy: Four Branches: Appropriation of Plaintiff’s Picture or Name

Back 121

It is necessary to show UNAUTHORIZED USE of plaintiff’s picture or name for defendant’s COMMERCIAL ADVANTAGE. Liability is generally limited to advertisements or promotions of products or services. Mere economic benefit to defendant (not in connection with promoting a product or service) by itself is not sufficient.

Front 122

Appropriation of Plaintiff’s Picture or Name in NY

Back 122

There is NO “COMMON LAW” RIGHT OF PRIVACY, in NY. Appropriation of one’s picture or name is, however, PROTECTED BY STATUTE. The action survives death and may be commenced or continued by the estate representative. The statute does not protect corporations or partnerships.

Front 123

Harm to Economic and Dignitary Interests: Invasion of Right to Privacy: Four Branches: Intrusion on Plaintiff’s Affairs or Seclusion

Back 123

The act of PRYING OR INTRUDING must be HIGHLY OFFENSIVE TO A REASONABLE PERSON. Furthermore, the thing into which there is an intrusion must be “PRIVATE.” Photographs taken in public places are not actionable.

Front 124

Harm to Economic and Dignitary Interests: Invasion of Right to Privacy: Four Branches: Publication of Facts Placing Plaintiff in False Light

Back 124

“False light” exists where one attributes to plaintiff views he does not hold or actions he did not take. The false light must be something HGIHLY OFFENSIVE TO A REASONABLE person under the circumstances. For liability to attach, there must be publicity.

Front 125

Harm to Economic and Dignitary Interests: Invasion of Right to Privacy: Four Branches: Publication of Facts Placing Plaintiff in False Light: First Amendment Limitation

Back 125

If the matter is in the public interest, MALICE on the defendant’s part must be proved.

Front 126

Harm to Economic and Dignitary Interests: Invasion of Right to Privacy: Four Branches: Public Disclosure of Private Facts About Plaintiff

Back 126

This wrong involves public disclosure of PRIVATE INFORMATION about plaintiff (e.g., matters of public record are not sufficient). The public disclosure must be HIGHLY OFFENSIVE TO A REASONABLE PERSON of ordinary sensibilities. Liability may attach even though the actual statement is true. First Amendment limitations probably apply if the matter is of legitimate public interest.

Front 127

Harm to Economic and Dignitary Interests: Invasion of Right to Privacy: Causation

Back 127

The invasion of plaintiff’s interest in privacy (under any of the four kinds) must have been proximately caused by defendant’s conduct.

Front 128

Harm to Economic and Dignitary Interests: Invasion of Right to Privacy: Proof of Special Damages Unnecessary

Back 128

Plaintiff need not plead and prove special damages. Emotional distress and mental anguish are sufficient damages.

Front 129

Harm to Economic and Dignitary Interests: Invasion of Right to Privacy: Defenses

Back 129

Some defenses to the right of privacy actions are consent and the defamation privilege defenses. Truth generally is NOT a good defense; nor is inadvertence, good faith, or lack of malice.

Front 130

Defenses to Invasion of Privacy in NY

Back 130

The statute makes EXCEPTIONS for:
1. Prior written consent;
2. A photographer exhibiting his work unless continued after written notice of objection; and
3. Goods or a literary, musical, or artistic production that the manufacturer, dealer, author, composer, or artist has sold or disposed of with his name, picture, or portrait used in connection therewith.

Front 131

Harm to Economic and Dignitary Interests: Invasion of Right to Privacy: Right of Privacy—Miscellaneous

Back 131

The right of privacy is a PERSONAL RIGHT and does not extend to members of a family, does not survive the death of the plaintiff, and is not assignable. The right of privacy is not applicable to corporations.

Front 132

Harm to Economic and Dignitary Interests: Misrepresentation: Intentional Misrepresentation (Fraud, Deceit)

Back 132

Prima facie case:
1. MISREPRESENTATION of a material fact (not duty to disclose and opinion not actionable unless rendered by someone with superior skill in the area). Silence is generally not enough; one must make affirmative misrepresentations;
2. SCIENTER, i.e., when defendant made the statement, she KNEW or BELIEVED it was false or that there was no basis for the statement;
3. INTENT to induce plaintiff to act or refrain from acting IN RELIANCE upon the misrepresentation;
4. CAUSATION (actual reliance);
5. JUSTIFIABLE RELIANCE (generally, reliance is justifiable only as to a statement of fact, not opinion); and
6. DAMAGES (plaintiff must suffer ACTUAL PECUNIARY LOSS).

There are no defenses to intentional misrepresentation.

Front 133

Harm to Economic and Dignitary Interests: Misrepresentation: Negligent Misrepresentation

Back 133

Prima facie case:
1. MISREPRESENTATION by defendant in a BUSINESS OR A PROFESSIONAL CAPACITY;
2. BREACH OF DUTY toward a particular plaintiff;
3. CAUSATION;
4. JUSTIFIABLE RELIANCE; and
5. DAMAGES.

Generally, this action is confined to misrepresentations made in a COMMERCIAL SETTING, and liability will attach only if reliance by the PARTICULAR plaintiff could be contemplated.

Front 134

Negligent Misrepresentation in NY

Back 134

Before the defendant may be held liable for negligence to noncontractual parties who rely on the misrepresentation, the following elements must be shown:
1. AWARENESS that the statement or representation was to be used for a PARTICULAR PURPOSE;
2. RELIANCE by a known party in furtherance of the purpose; and
3. Some conduct by the defendant that demonstrates the defendant’s UNDERSTANDING of the party’s reliance.

Front 135

Harm to Economic and Dignitary Interests: Interference with Business Relations

Back 135

Prima facie case:
1. Existence of a VALID CONTRACTUAL RELATIONSHIP between plaintiff and a third party OR VALID BUSINESS EXPECTANCY of plaintiff;
2. Defendant’s KNOWLEDGE OF THE RELATIONSHIP OR EXPECTANCY;
3. INTENTIONAL INTERFERENCE by defendant inducing a breach or termination of the relationship or expectancy; and
4. DAMAGES.

Front 136

Harm to Economic and Dignitary Interests: Interference with Business Relations: Privileges

Back 136

Defendant’s conduct may be privileged where it is a proper attempt to obtain business for itself or protect its interests. A privilege is more likely to be found if defendant:
1. Interfered only with plaintiff’s prospective business rather than with existing contracts;
2. Used commercially acceptable means of persuasion rather than illegal or threatening tactics;
3. Is a competitor of plaintiff seeking the same prospective customers; or
4. Has a financial interest in or responsibility for the third party, or is responding to the third party’s request for business advice.

Front 137

Harm to Economic and Dignitary Interests: Wrongful Institution of Legal Proceedings: Malicious Prosecution

Back 137

Prima facie case:
1. INSTITUTION OF CRIMINAL PROCEEDINGS against plaintiff (e.g., filing a complaint with the police);
2. TERMINATION IN PLAINTIFF’S FAVOR;
3. ABSENCE OF PROBABLE CAUSE for prior proceedings (insufficient facts for a reasonable person to believe that plaintiff was guilty, or defendant, in fact, did not actually believe plaintiff to be guilty);
4. IMPROPER PURPOSE (i.e., something other than bringing a person to justice); and
5. DAMAGES.

Prosecutors are immune from liability.

Front 138

Harm to Economic and Dignitary Interests: Wrongful Institution of Legal Proceedings: Malicious Prosecution: Wrongful Civil Proceedings

Back 138

Most jurisdictions have extended the malicious prosecution action to cover civil cases.

Front 139

Harm to Economic and Dignitary Interests: Wrongful Institution of Legal Proceedings: Abuse of Process

Back 139

Prima facie case:
1. WRONGFUL USE of process for an ulterior purpose, and
2. Definite ACT OR THREAT against plaintiff in order to accomplish an ulterior purpose.

Front 140

Negligence: Prima Facie Case

Back 140

Elements of the prima facie case:
1. A DUTY on the part of defendant TO CONFORM TO A SPECIFIC STANDARD OF CONDUCT for protection of plaintiff against an unreasonable risk of injury;
2. A BREACH of that duty by defendant;
3. The breach is the ACTUAL AND PROXIMATE CAUSE of plaintiff’s injury; and
4. DAMAGE.

Front 141

Negligence: Duty of Care

Back 141

A duty of care is owed to all foreseeable plaintiffs. The extent of the duty is determined by the applicable standard of care. Therefore, when confronted with a negligence question, always ask:
1. Was the plaintiff foreseeable?
2. If so, what is the applicable standard of care?

Front 142

Negligence: Duty of Care: Foreseeable/Unforeseeable Plaintiffs

Back 142

A duty of care is owed only to foreseeable plaintiffs. However, a problem arises where defendant breaches a duty to one plaintiff (“P1”) and also causes injury to another (possibly unforeseeable) plaintiff (“P2”). The Palsgraf case offers two possible outcomes:
1. Cardozo View (Majority)—Foreseeable Zone of Danger
2. Andrews View (Minority)—Everyone is Foreseeable

Front 143

Negligence: Duty of Care: Foreseeable/Unforeseeable Plaintiffs: Cardozo View (Majority)—Foreseeable Zone of Danger

Back 143

P2 can recover only if she can establish that a reasonable person would have foreseen a risk of injury to her under the circumstances; i.e., she was located in the foreseeable zone of danger.

Front 144

Negligence: Duty of Care: Foreseeable/Unforeseeable Plaintiffs: Andrews View (Minority)—Everyone is Foreseeable

Back 144

P2 may establish the existence of a duty extending from defendant to her by a showing that defendant has breached a duty owed to P1.

Front 145

Negligence: Duty of Care: Specific Situations: Rescuers

Back 145

A rescuer is a foreseeable plaintiff where defendant negligently put himself or a third person in peril (i.e., danger invites rescue). However, firefighters and police officers may be barred by the “firefighter’s rule” from recovering for injuries caused by the risks of a rescue.

Front 146

Negligence: Duty of Care: Specific Situations: Prenatal Injuries

Back 146

A duty of care is owed to a viable fetus. In cases of failure to diagnose a congenital defect or properly perform a contraceptive procedure, the child may not recover for “wrongful life,” but the parents may recover damages in a “wrongful birth” or “wrongful pregnancy” action for any additional medical expenses and for pain and suffering from labor; ordinary child-rearing expenses, however, cannot be recovered.

Front 147

Prenatal Injuries in NY

Back 147

The child must be born alive. If the child’s injury was caused by a tort committed against the mother before the child was conceived, no action will lie. No action for wrongful death lies if, as a result of prenatal injuries, the child is stillborn.

Front 148

Wrongful Birth in NY

Back 148

NY does NOT recognize this cause of action.

Front 149

Negligence: Duty of Care: Specific Situations: Intended Beneficiaries of Economic Transactions

Back 149

A third party for whose economic benefit a legal or business transaction was made (e.g., a beneficiary of a will) may be a foreseeable plaintiff.

NY: NY cases have ruled that the attorney’s duty runs only to the client who has retained them. Only the client can sue the attorney for malpractice.

Front 150

Negligence: Duty of Care: Standards of Care: Basic Standard—The Reasonable Person

Back 150

The reasonable person standard is an OBJECTIVE standard, i.e., one’s conduct measured against what the average person would do. A defendant’s MENTAL deficiencies and inexperience are not taking into account (i.e., stupidity is no excuse). However, the “reasonable person” is considered to have the same PHYSICAL characteristics as defendant (but remember, one is expected to know one’s physical handicaps and to exercise the care of a person with such knowledge—e.g., a blind person should not fly a plane).

Front 151

Negligence: Duty of Care: Standards of Care: Particular Standards of Conduct: Professionals

Back 151

A professional or someone with special occupational skills is required to possess the knowledge and skill of a member of the profession or occupation in good standing in similar communities. Medical specialists will be held to a national standard of care. The modern trend applies a national standard to all physicians.

Front 152

Negligence: Duty of Care: Standards of Care: Particular Standards of Conduct: Professionals: Duty to Disclose Risks of Treatment

Back 152

A doctor has a duty to disclose the risks of treatment to enable a patient to give an informed consent. A doctor breaches this duty if an undisclosed risk was serious enough that a reasonable person in the patient’s position would have withheld consent on learning of the risk.

Front 153

Professionals’ Duty to Disclose Risks of Treatment: Defenses in NY

Back 153

The NY statute establishes these defenses:
1. The undisclosed RISK IS TOO COMMONLY KNOWN to warrant disclosure;
2. The patient indicated that he WOULD UNDERGO THE TREATMENT OR DIAGNOSIS IRRESPECTIVE OF THE RISK, or that he did not wish to receive the information that the practitioner was otherwise obligated to disclose;
3. CONSENT by or on behalf of the patient was NOT REASONABLY POSSIBLE; or
4. The practitioner, after considering all the circumstances, used reasonable discretion regarding the manner and extent to which risks and alternatives were disclosed because she REASONABLY BELIEVED that the manner or extent of DISCLOSURE COULD BE EXPECTED TO ADVERSELY AND SUBSTANTIALLY AFFECT THE PATIENT’S CONDITION.

Front 154

Negligence: Duty of Care: Standards of Care: Particular Standards of Conduct: Children

Back 154

Children are held to the standard of a child of LIKE AGE, EDUCATION, INTELLIGENCE, AND EXPERIENCE. This is a SUBJECTIVE test. A child under four is usually without the capacity to be negligent. Children engaged in adult activities may be required to conform to an “adult” standard of care.

Front 155

Negligence: Duty of Care: Standards of Care: Particular Standards of Conduct: Common Carriers and Innkeepers

Back 155

Common carriers and innkeepers are held to a very high degree of care; i.e., they are liable for slight negligence.

Front 156

Exam Tip

Back 156

For the higher common carrier and innkeeper standards to apply, the plaintiff MUST be a passenger or guest.

Front 157

Negligence: Duty of Care: Standards of Care: Particular Standards of Conduct: Automobile Driver to Guest

Back 157

A guest in an automobile is owed a duty of ordinary care. In the few guest statute states, one is liable to nonpaying passengers only for reckless tortious conduct.

Front 158

Negligence: Duty of Care: Standards of Care: Particular Standards of Conduct: Bailment Duties

Back 158

In a bailment relationship, the bailor transfers to the bailee possession of the chattel but not title (e.g., bailor loans her car to bailee).

Front 159

Negligence: Duty of Care: Standards of Care: Particular Standards of Conduct: Bailment Duties: Duties Owed by Bailee

Back 159

The bailee’s standard of care depends on who benefits from the bailment:
1. For a SOLE BENEFIT OF THE BAILOR bailment, there is a low standard of care;
2. For a SOLE BENEFIT OF THE BAILEE bailment, there is a high standard of care; and
3. For a MUTUAL BENEFIT bailment (typically a bailment for hire), there is the ordinary care standard.

The modern trend applies a duty of ordinary care under the circumstances, whereby the type of bailment is just one factor taken into account.

Front 160

Negligence: Duty of Care: Standards of Care: Particular Standards of Conduct: Duties Owed by Bailor

Back 160

For a SOLE BENEFIT OF THE BAILEE BAILMENT, the bailor must inform the baileee of known, dangerous defects in the chattel. For a BAILMENT FOR HIRE, the bailor must inform the bailee of chattel defects of which he is or should be aware.

Front 161

Negligence: Duty of Care: Standards of Care: Particular Standards of Conduct: Emergency Situations

Back 161

A defendant must act as a reasonable person would under the same emergency conditions. The emergency is not to be considered, however, if it is of defendant’s own making.

Front 162

Negligence: Duty of Care: Standards of Care: Owners and/or Occupiers of Land

Back 162

The extent of the liability of owners and/or occupiers of land (and those in privity with the owner/occupier) depends on where the injury occurred and on the status of the plaintiff.

Front 163

Negligence: Duty of Care: Standards of Care: Owners and/or Occupiers of Land: Duty of Possessors to Those Off Premises

Back 163

There is no duty to protect one off the premises from NATURAL CONDITIONS on the premises; however, there is a duty for unreasonably dangerous ARTIFICIAL conditions or structures abutting adjacent land. Also, one must carry on activities on the premises so as to avoid unreasonable risk of harm to others off the premises.

Front 164

Exam Tip

Back 164

In urban areas, the owner/occupier is liable for damage caused off the premises by trees on the premises (e.g., falling branches). This has been an exam favorite.

Front 165

Negligence: Duty of Care: Standards of Care: Owners and/or Occupiers of Land: Duty of Possessor to Those on Premises

Back 165

In most states the duty owed a plaintiff on the premises for dangerous conditions on the land depends on the plaintiff’s status as trespasser, licensee, or invitee.

Front 166

Duty of Possessor to Those on Premises in NY

Back 166

The plaintiff’s LEGAL STATUS NO LONGER DETERMINES THE DUTY OWED HIM. The single standard of REASONABLE CARE UNDER THE CIRCUMSTANCES governs all injuries on land. The plaintiff’s status, while no longer determinative, remains relevant in connection with the foreseeability of his presence and the amount and nature of precautions required to meet the standard of reasonable care under the circumstances.

Front 167

Negligence: Duty of Care: Standards of Care: Owners and/or Occupiers of Land: Duty of Possessor to Those on Premises: Trespassers

Back 167

No duty is owed to an UNDISCOVERED trespasser. As to DISCOVERED or ANTICIPATED trespassers, the landowner must:
1. Warn of or make safe concealed, unsafe, ARTIFICIAL CONDITIONS KNOWN TO THE LANDOWNER involving risk of DEATH OR SERIOUS BODILY HARM, and
2. Use reasonable care in the exercise of “active operations” on the property. (No duty is owed for natural conditions or less dangerous artificial conditions.)

Easement and license holders owe a duty of reasonable care to trespassers.

Front 168

Negligence: Duty of Care: Standards of Care: Owners and/or Occupiers of Land: Duty of Possessor to Those on Premises: Attractive Nuisance Doctrine

Back 168

Most courts impose on a landowner the duty to exercise ordinary care to avoid a reasonably foreseeable risk of harm to children caused by ARTIFICIAL conditions on his property. To establish the doctrine’s applicability, plaintiff must show:
1. A dangerous condition on the land that the owner is or should be aware of,
2. The owner knows or should know children frequent the vicinity of the condition,
3. The condition is likely to cause injury, i.e., dangerous because of the child’s inability to appreciate the risk, and
4. The expense of remedying the situation is slight compared with the magnitude of the risk.

Front 169

Exam Tip

Back 169

For liability to attach, the four requirements above must be shown. The child DOES NOT have the be attracted onto the land by the dangerous condition, nor is the attraction alone enough for liability.

Front 170

Negligence: Duty of Care: Standards of Care: Owners and/or Occupiers of Land: Duty of Possessor to Those on Premises: Duty Owed to Licensees

Back 170

A licensee is one who enters onto the land with the possessor’s permission for her OWN PURPOSE OR BUSINESS, rather than for the possessor’s benefit. The possessor has a duty to
1. Warn of dangerous conditions (natural or artificial) known to the owner that create an unreasonable risk of harm to the licensee and that the licensee is unlikely to discover, and
2. Exercise reasonable care in the conduct of “active operations” on the property.

The possessor has no duty to inspect or repair. (Remember: Social guests are considered licensees)

Front 171

Negligence: Duty of Care: Standards of Care: Owners and/or Occupiers of Land: Duty of Possessor to Those on Premises: Duty Owed to Invitees

Back 171

Invitees enter onto the land in response to an invitation by the landowner (i.e., they enter for a purpose connected with the business of the landowner or enter as members of the public for a purpose for which the land is HELD OPEN TO THE PUBLIC). The landowner or occupier owes the same duties owed to licensees PLUS a duty to make REASONABLE INSPECTIONS to discover nonobvious dangerous conditions and, thereafter, make them safe. One will lose invitee status if she exceeds the scope of the invitation.

Front 172

Negligence: Duty of Care: Standards of Care: Owners and/or Occupiers of Land: Duty of Possessor to Those on Premises: Duty Owed to Users of Recreational Land

Back 172

A landowner who permits the general public to use his land for recreational purposes without charging a fee is not liable for injuries suffered by a recreational user, unless the landowner willfully and maliciously failed to guard against or warn of a dangerous condition or activity.

Front 173

Negligence: Duty of Care: Standards of Care: Owners and/or Occupiers of Land: Duty of Possessor to Those on Premises: Modern Trend Rejects Status Rules

Back 173

A strong minority of states reject the distinction between licensees and invitees (and, in a few states, trespassers as well), and simply apply a reasonable person standard to dangerous conditions on the land.

Front 174

Negligence: Duty of Care: Standards of Care: Owners and/or Occupiers of Land: Duties of Lessor and Lessee of Realty

Back 174

The lessee has a general duty to maintain the premises. The lessor must warn of existing defects of which he is aware or has reason to know, and which he knows the lessee is not likely to discover on a reasonable inspection. If the lessor covenants to repair, he is liable for unreasonably dangerous conditions. If the lessor volunteers to repair and does so negligently, he is liable.

Front 175

Exam Tip

Back 175

If the guess of a tenant is injured, the landlord may be liable as lessor of the premises. But don’t stop there—remember that the tenant may also be liable to the guest because of the tenant’s status as the owner/occupier of the premises.

Front 176

Negligence: Duty of Care: Standards of Care: Owners and/or Occupiers of Land: Duties of Vendor of Realty

Back 176

A vendor must DISCLOSE to the vendee concealed, unreasonably dangerous conditions of which the vendor knows or has reason to know, and which he knows the vendee is not likely to discover on a reasonable inspection.

Front 177

Negligence: Duty of Care: Standards of Care: Statutory Standards of Care

Back 177

A statute’s specific duty may replace the more general common law duty of due care if:
1. The statute provides for a CRIMINAL PENALTY,
2. The statute CLEARLY DEFINES THE STANDARD of conduct,
3. Plaintiff is WITHIN THE PROTECTED CLASS, and
4. The statute was DESIGNED TO PREVENT THE TYPE OF HARM SUFFERED by plaintiff.

Front 178

Negligence: Duty of Care: Standards of Care: Statutory Standards of Care: Excuse for Violation

Back 178

Violation of some statutes may be excused where compliance would cause more danger than violation or where compliance would be beyond defendant’s control.

Front 179

Negligence: Duty of Care: Standards of Care: Statutory Standards of Care: Effect of Violation or Compliance

Back 179

Under the majority view, an unexcused statutory violation is negligence per se; i.e., it establishes the first two requirements in the prima facie case—a CONCLUSIVE presumption of duty and breach of duty. In contrast, even though violation of the applicable statute may be negligence, compliance with the statute will not necessarily establish due care.

Front 180

Statutory Standards of Care: Effect of Establishing Violation of Statute in NY

Back 180

Violation is a STATE STATUTE constitutes NEGLIGENCE PER SE. Unexcused breach of a regulation or local ordinance constitutes only some evidence of negligence.

Front 181

Statutory Standards and Employees in NY

Back 181

WORKERS’ COMPENSATION replaces any tort liability arising out of on-the-job accidents.

Front 182

Statutory Standards and Construction Workers in NY

Back 182

Special statutory protection is provided by NY Labor Laws for failure of contractors to provide a safe workplace or comply with mandated safety precautions.

Note: This protection applies only to construction workers, not others lawfully on the premises.

Front 183

Negligence: Duty of Care: Duty Regarding Negligent Infliction of Emotional Distress

Back 183

The duty to avoid negligent infliction of emotional distress may be breached when the defendant creates a foreseeable risk of physical injury to the plaintiff. The plaintiff usually must satisfy two requirements to prevail:
1. The plaintiff must be within the “zone of danger”; and
2. The plaintiff must suffer physical symptoms from the distress.

Front 184

Negligence: Duty of Care: Duty Regarding Negligent Infliction of Emotional Distress: Plaintiff Must be Within the “Zone of Danger”

Back 184

The plaintiff usually must show that her distress has been caused by a threat of physical impact.

Front 185

Duty Regarding Negligent Infliction of Emotional Distress: Plaintiff Must be Within the “Zone of Danger” in NY

Back 185

NY retains the narrow version of the traditional rule: If the plaintiff’s distress is caused by threat of physical impact, the threat must be directed at the plaintiff or an IMMEDIATE FAMILY MEMBER in her presence (i.e., in the “zone of danger” of physical injury). No other plaintiff who sees the defendant negligently injuring another can recover damages for her own distress.

Note: NY has ruled that a woman has the right to seek damages for emotional distress when she miscarries or delivers a stillborn baby because of medical negligence. This rule does not extend to a woman who gives birth to a baby with deformities. In that case, the cause of action belongs to the baby.

Front 186

Negligence: Duty of Care: Duty Regarding Negligent Infliction of Emotional Distress: Plaintiff Must Suffer Physical Symptoms from the Distress

Back 186

Most courts usually require that the defendant’s conduct cause the plaintiff emotional distress that manifests itself in PHYSICAL SYMPTOMS (note that severe shock to the nervous system that causes physical symptoms will satisfy this requirement)

Front 187

Negligence: Duty of Care: Duty Regarding Negligent Infliction of Emotional Distress: Special Situations Where Requirements Not Always Necessary: Bystander Not in Zone of Danger Seeing Injury to Another

Back 187

A bystander outside the “zone of danger” of physical injury who sees the defendant negligently injuring another can recover damages for her own distress as long as:
1. The plaintiff and the person injured by the defendant are CLOSELY RELATED,
2. THE PLAINTIFF WAS PRESENT at the scene of the injury, and
3. The plaintiff PERSONALLY OBSERVED OR PERCEIVED the event.

Most states still require physical symptoms, but the modern trend drops that requirement.

Front 188

Negligence: Duty of Care: Duty Regarding Negligent Infliction of Emotional Distress: Special Situations Where Requirements Not Always Necessary: Special Relationship Between Plaintiff and Defendant

Back 188

The defendant may be liable for directly causing the plaintiff severe emotional distress that leads to physical symptoms when a duty arises from the relationship between the plaintiff and the defendant, such that the defendant’s negligence has great potential to cause emotional distress (e.g., doctor’s misdiagnosis that patient has terminal illness).

Front 189

Negligence: Duty of Care: Duty Regarding Negligent Infliction of Emotional Distress: Special Situations Where Requirements Not Always Necessary: Other Situations

Back 189

The plaintiff may be able to recover without proving the two requirements where the defendant’s negligence creates a great likelihood of emotional distress (e.g., erroneous report of relative’s death or mishandling a relative’s corpse).

Front 190

Exam Tip

Back 190

Keep in mind that the torts for infliction of emotional distress are not the only means of recovering damages for emotional distress. If physical injury has been caused by commission of a tort, plaintiff can “tack on” damages for emotional distress as a “parasitic” element of the physical injury damages, without the need to consider the elements of the emotional distress torts.

Front 191

Negligence: Duty of Care: Affirmative Duties to Act

Back 191

Generally, one does not have a legal duty to act. Exceptions to this rule exist, however:
1. Assumption of Duty by Acting
2. Peril Due to Defendant’s Conduct
3. Special Relationship Between Parties
4. Duty to Control Third Persons

Front 192

Negligence: Duty of Care: Affirmative Duties to Act: Assumption of Duty by Acting

Back 192

One may assume a duty to act by acting (e.g., once defendant undertakes to aid someone, he must do so with reasonable care).

Exception: Many states have enacted Good Samaritan statutes, which exempt doctors, nurses, etc., from liability for ordinary, but not gross, negligence.

Front 193

Assumption of Duty to Act by Acting: Good Samaritan Statutes in NY

Back 193

In NY, by statute, a licensed health professional who voluntarily and gratuitously renders emergency treatment at the scene of an accident is subject to liability only for GROSS NEGLIGENCE.

Front 194

Negligence: Duty of Care: Affirmative Duties to Act: Peril Due to Defendant’s Conduct

Back 194

One has a duty to assist someone he has negligently or innocently placed in peril.

Front 195

Negligence: Duty of Care: Affirmative Duties to Act: Special Relationship Between Parties

Back 195

A special relationship between the parties (e.g., parent-child) may create a duty to act. Similarly, COMMON CARRIERS, INNKEEPERS, SHOEKEEPERS, and others that gather the public for profit owe duties of reasonable care to aid or assist their patrons. In addition, places of public accommodation have a duty to prevent injury to guests by third persons.

Front 196

Negligence: Duty of Care: Affirmative Duties to Act: Duty to Control Third Persons

Back 196

Generally, there is no duty to prevent a third person from injuring another. An affirmative duty may be imposed, however, if one has the actual ability and authority to control a person’s actions, and knows or should know the person is likely to commit acts that would require exercise of this control.

Front 197

Negligence: Breach of Duty

Back 197

Where defendant’s conduct falls short of that level required by the applicable standard of care owed to the plaintiff, she has breached her duty. Whether the duty of care is breached in an individual case is a question for the trier of fact. The main problem relates to proof of the breach. Plaintiff may use one of the following theories:
1. Custom or Usage
2. Violation of statute
3. Res Ipsa Loquitur

Front 198

Negligence: Breach of Duty: Custom of Usage

Back 198

Custom or usage may be used to establish standard of care, but does not control the question of whether certain conduct amount to negligence. For example, although certain behavior is custom in an industry , a court may find that the entire industry is acting negligently.

Front 199

Negligence: Breach of Duty: Violation of Statute

Back 199

Existence of a duty owed to plaintiff and breach thereof may be established as a matter of law by proof that defendant violated an applicable statute (“negligence per se”). Causation and damages must still be established by plaintiff.

Front 200

Negligence: Breach of Duty: Res Ipsa Loquitur

Back 200

In some cases, the very occurrence of an event may tend to establish a breach of duty. The doctrine of res ipsa loquitur requires plaintiff to show that:
1. The accident causing the injury is a type that would not normally occur unless someone was negligent, and
2. The negligence is attributable to defendant (i.e., this type of accident ordinarily happens because of the negligence of someone in defendant’s position). This can often be shown by evidence that the instrumentality causing the injury was in the exclusive control of defendant. (Plaintiff must also establish freedom from fault on his part.)

Front 201

Negligence: Breach of Duty: Res Ipsa Loquitur: Effect of Res Ipsa Loquitur

Back 201

Where res ipsa loquitur is established, plaintiff has MADE A PRIMA FACIE CASE and no directed verdict may be given for defendant. Plaintiff can still lose, however, if the inference of negligence is rejected by the trier of fact.

Front 202

Exam Tip

Back 202

Questions testing on res ipsa loquitur often have the defendant making a MOTION FOR A DIRECTED VERDICT. These questions don’t require you to memorize rules of civil procedure—all you need to remember is the following:
1. DENY defendant’s motion for directed verdict if plaintiff has established res ipsa loquitur or presented some other evidence of breach of duty (such as defendant’s violation of a statute);
2. GRANT defendant’s motion if plaintiff has failed to establish res ipsa loquitur and failed to present some other evidence of breach of duty.

Occasionally, plaintiff may also move for a directed verdict. Plaintiff’s motion should always be DENIED except in the rare case where plaintiff has established negligence per se through violation of an applicable statute AND there are no issues of proximate cause.

Front 203

Negligence: Causation

Back 203

Once negligent conduct is shown (a breach of the standard of care owed a foreseeable plaintiff), plaintiff must show that the conduct was the cause of the injury. For liability to attach, plaintiff must show BOTH actual cause and proximate cause.

Front 204

Negligence: Causation: Actual Cause (Cause in Fact)

Back 204

Before defendant’s conduct can be considered a proximate cause of plaintiff’s injury, it must first be a cause in fact of the injury. Several tests exist:
1. “But For” Test
2. Joint Causes—Substantial Factor Test
3. Alternative Causes Approach

Front 205

Negligence: Causation: Actual Cause (Cause in Fact): “But For” Test

Back 205

Act or omission is the cause in fact of an injury when the injury would not have occurred but for the act. This test applies where several acts (each insufficient to cause the injury alone) combine to cause the injury.

Front 206

Negligence: Causation: Actual Cause (Cause in Fact): Joint Causes—Substantial Factor Test

Back 206

Where several causes bring about injury, and any one alone would have been sufficient to cause the injury, defendant’s conduct is the cause in fact if it was a substantial factor in causing the injury.

Front 207

Negligence: Causation: Actual Cause (Cause in Fact): Alternative Causes Approach

Back 207

This test applies when there are two acts, only one of which causes injury, but it is not known which one. The burden of proof shifts to defendants, and each must show that his negligence is not the actual cause. [Summers v. Tice]

Front 208

Exam Tip

Back 208

Distinguish these last two tests: Under the joint causes approach, both parties caused the harm. Under the alternative causes approach, although both parties acted negligently, only one caused the harm.

Front 209

Negligence: Causation: Proximate Cause (Legal Causation)

Back 209

In addition to being a cause in fact, the defendant’s conduct must also be the proximate cause of the injury. Even though the conduct actually caused plaintiff’s injury, it might not be deemed to be the proximate cause. Thus, the doctrine of proximate causation is a LIMITATION OF LIABILITY and deals with liability or nonliability for unforeseeable or unusual consequences of one’s acts.

Front 210

Negligence: Causation: Proximate Cause (Legal Causation): General Rule—Scope of Foreseeable Risk

Back 210

A defendant generally is liable for all harmful results that are the normal incidents of and within the increased risk caused by his acts. This is a FORESEEABILITY test.

Front 211

Exam Tip

Back 211

Questions raising proximate cause issues will not require you to make a judgment call on foreseeability in a close case. Often the call of the question will be whether one or both parties are entitled to summary judgment—which should be denied if there is ANY ISSUE OF FORESEEABILITY FOR THE JURY. In other cases, the facts in the question will be so clear-cut that COMMON SENSE will tell you immediately whether the harm that occurred was foreseeable.

Front 212

Negligence: Causation: Proximate Cause (Legal Causation): Liability in Direct Cause Cases

Back 212

In a direct cause case, where there is an uninterrupted chain of events from the negligent act to plaintiff’s injury, defendant is liable for all FOREESEEABLE HARMFUL RESULTS, regardless of the unusual manner in which they arose or the unusual timing of cause and effect. Defendant is not liable for UNFORESEEABLE HARMFUL RESULTS not within the risk created by defendant’s negligence. Most harmful results will be deemed foreseeable in direct cause cases.

Front 213

Negligence: Causation: Proximate Cause (Legal Causation): Liability in Indirect Cause Cases

Back 213

In an indirect cause case, an affirmative intervening force (e.g., an act by a third person, an act of God) comes into motion after defendant’s negligent act and combines with it to cause plaintiff’s injury.

Front 214

Negligence: Causation: Proximate Cause (Legal Causation): Liability in Indirect Cause Cases: Foreseeable Results Caused by Foreseeable Intervening Forces—Defendant Liable

Back 214

Defendant is liable where his negligence caused a foreseeable harmful response or reaction from a dependent intervening force or created a foreseeable risk that an independent intervening force would harm plaintiff.

Front 215

Negligence: Causation: Proximate Cause (Legal Causation): Liability in Indirect Cause Cases: Foreseeable Results Caused by Foreseeable Intervening Forces—Defendant Liable: Common Dependent Intervening Forces

Back 215

The following dependent intervening forces are ALMOST ALWAYS FORESEEABLE:
1. Subsequent medical malpractice,
2. Negligence of rescuers,
3. Efforts to protect the person or property of oneself or another,
4. Injuries caused by another “reacting” to defendant’s actions,
5. Subsequent diseases caused by weakened condition, and
6. Subsequent accident substantially caused by the original injury.

Front 216

Negligence: Causation: Proximate Cause (Legal Causation): Liability in Indirect Cause Cases: Foreseeable Results Caused by Foreseeable Intervening Forces—Defendant Liable: Independent Intervening Forces

Back 216

Independent intervening forces that are not a natural response or reaction to the situation created by the defendant’s conduct may be foreseeable if defendant’s negligence increased the risk of harm from these forces. Independent intervening forces include:
1. Negligent acts of third persons,
2. Crimes and intentional torts of third persons, and
3. Acts of God.

Front 217

Negligence: Causation: Proximate Cause (Legal Causation): Liability in Indirect Cause Cases: Foreseeable Results Caused by Unforeseeable Intervening forces—Defendant Usually Liable

Back 217

Defendant is liable where his negligence increased the risk of a foreseeable harmful result and that result is ultimately produced by an unforeseeable intervening force. This rule does not apply where the unforeseeable intervening force was a crime or intentional tort of a third person.

Front 218

Negligence: Causation: Proximate Cause (Legal Causation): Liability in Indirect Cause Cases: Unforeseeable Results Caused by Foreseeable Intervening Forces—Defendant Not Liable

Back 218

In the rare case where a totally unforeseeable result was caused by a foreseeable intervening force, most courts hold defendant not liable..

Front 219

Negligence: Causation: Proximate Cause (Legal Causation): Liability in Indirect Cause Cases: Unforeseeable Results Caused by Unforeseeable Intervening Forces—Defendant Not Liable

Back 219

Intervening forces that produce unforeseeable results (results not within the increased risk created by defendant’s negligence) are generally deemed unforeseeable and SUPERSEDING. Superseding forces break the causal connection between defendant’s initial negligent act and plaintiff’s ultimate injury, thus relieving defendant of liability.

Front 220

Negligence: Causation: Proximate Cause (Legal Causation): Unforeseeable Extent or Severity of Harm—Defendant Liable

Back 220

In all cases, defendant takes his plaintiff as he finds him; i.e., defendant is liable for all damages, including aggravation of an existing condition, even if the extent or severity of the damages was unforeseeable. This is also known as the “eggshell-skull plaintiff” rule.

Front 221

Negligence: Damages

Back 221

Damage is an essential element of negligence; thus, damage will not be presumed (and nominal damages are not available).

Front 222

Negligence: Damages: Personal Injury

Back 222

Plaintiff is to be compensated for all his damages (past, present, and prospective), both ECONOMIC damages (such as medical expenses) and NONECONOMIC damages (such as pain and suffering). Foreseeability of the extent of harm is generally irrelevant; i.e., one takes one’s plaintiff as one finds him. A plaintiff suffering physical injury also may recover damages for any resulting emotional distress.

Front 223

Negligence: Damages: Property Damage

Back 223

The measure of damage is the reasonable cost of repair or, if the property is nearly destroyed, its fair market value at the time of the accident.

Front 224

Negligence: Damages: Punitive Damages

Back 224

Plaintiff may recover punitive damages if defendant’s conduct is “wanton and willful,” reckless, or malicious.

NY: Punitive Damages may be awarded in cases of GROSS NEGLIGENCE.

Front 225

Negligence: Damages: Nonrecoverable Items

Back 225

Nonrecoverable items include:
1. Interest from the date of damage in a personal injury action, and
2. Attorney’s fees.

Front 226

Negligence: Damages: Duty to Mitigate

Back 226

As in all cases, plaintiff has a duty to take reasonable steps to mitigate damages (e.g., seek appropriate treatment).

NY: In motor vehicle accidents where the plaintiff has failed to make use of an available seat belt, the trier of fact may consider nonuse in mitigation of damages but not as evidence on the issue of liability. Failure to use a seat belt is an AFFIRMATIVE DEFENSE.

Front 227

Negligence: Damages: Collateral Source Rule

Back 227

Damages are not reduced just because plaintiff received benefits from other sources (e.g., health insurance).

Front 228

Collateral Source Rule in NY

Back 228

In ALL actions for personal injury, property damage, or wrongful death, courts are REQUIRED to REDUCE a successful plaintiff’s damage award BY THE AMOUNT OF ANY BENEFITS THAT THE PLAINTIFF HAS RECEIVED OR WILL RECEIVE FROM COLLATERAL SOURCES (including proceeds received from the plaintiff’s own insurance policy). However, no reduction will be made for life insurance benefits, certain Social Security benefits, and other benefits for which a lien may be imposed against the plaintiff’s award.

Note: All damages in excess of the first 250,000 allocated for compensation for FUTURE pain and suffering must be reduced to the present day value by the court, and then paid out over 10 years or the length of the time determined by the jury, whichever is shorter.

Front 229

Negligence: Defenses to Negligence: Contributory Negligence

Back 229

Contributory negligence is negligence on the part of the plaintiff that contributes to her injuries. The standard of care for contributory negligence is the same as for ordinary negligence. Hence, a rescuer will not be deemed contributorily negligent without taking into account the emergency situation. Also, plaintiff’s violation of an applicable statute may be used to establish his contributory negligence.

Front 230

Negligence: Defenses to Negligence: Contributory Negligence: As Defense to Defendant’s Violation of Statute

Back 230

Contributory negligence is a defense to negligence proved by defendant’s violation of an applicable statute unless the statute was designed to protect this class of plaintiffs from their incapacity and lack of judgment (e.g., child injured after darting into street in school zone and getting hit by a speeding car of defendant).

Front 231

Negligence: Defenses to Negligence: Contributory Negligence: No Defense to Intentional Torts

Back 231

Contributory negligence is not a defense to wanton and wilfull misconduct or intentional tortious conduct.

Front 232

Negligence: Defenses to Negligence: Contributory Negligence: Effect of Contributory Negligence

Back 232

Contributory negligence completely barred plaintiff’s right to recover at common law. Almost all jurisdictions now favor a comparative negligence system.

Front 233

Negligence: Defenses to Negligence: Contributory Negligence: Last Clear Chance—An Exception to Contributory Negligence

Back 233

Last clear chance permits plaintiff to recover despite her contributory negligence. Under this rule, the person with the last clear chance to avoid an accident who fails to do so is liable for negligence. (Last clear chance is essentially plaintiff’s rebuttal to the defense of contributory negligence.

Front 234

Negligence: Defenses to Negligence: Contributory Negligence: Last Clear Chance—An Exception to Contributory Negligence: Helpless Peril

Back 234

In many states, where the plaintiff is in “helpless peril,” defendant will be liable if he knew or should have known of plaintiff’s predicament.

Front 235

Negligence: Defenses to Negligence: Contributory Negligence: Last Clear Chance—An Exception to Contributory Negligence: Inattentive Peril

Back 235

In “inattentive peril” situations (i.e., plaintiff could have extricated herself if attentive), defendant must actually have known of plaintiff’s predicament.

Front 236

Negligence: Defenses to Negligence: Contributory Negligence: Last Clear Chance—An Exception to Contributory Negligence: Prior Negligence Cases

Back 236

For the last clear chance doctrine to apply, defendant must have been able, but failed, to avoid harming plaintiff at the time of the accident. If defendant’s only negligence occurred earlier, the doctrine will not apply.

Front 237

Negligence: Defenses to Negligence: Contributory Negligence: Imputed Contributory Negligence

Back 237

As a general rule, the contributory negligence of a third party will be imputed to a plaintiff (and bar her claim) only when the relationship between the third party and the plaintiff is such that a court could find the plaintiff vicariously liable for the third party’s negligence. Negligence is imputed in employer-employee, partner, and joint venturer relationships. Negligence is not imputed between husband and wife, parent and child, and automobile owner and driver.

Front 238

Negligence: Defenses to Negligence: Assumption of Risk

Back 238

Plaintiff may be denied recovery if she assumed the risk of any damage caused by defendant’s act. Plaintiff must have
1. Known of the risk, and
2. Voluntarily proceeded in the face of the risk.

Front 239

Negligence: Defenses to Negligence: Assumption of Risk: Implied Assumption of Risk

Back 239

Knowledge may be implied where the risk is one that an average person would clearly appreciate. Plaintiff may NOT be said to have assumed the risk where there is no available alternative to proceeding in the face of the risk or in situations involving fraud, force, or an emergency. Also, common carriers and public utilities may not limit their liability by disclaimer, and members of a class protected by statute will not be deemed to have assumed any risk.

Front 240

Negligence: Defenses to Negligence: Assumption of Risk: Express Assumption of Risk

Back 240

The risk may be assumed by an express agreement.

NY: Certain groups of person are precluded by statute from using contract clauses to deny liability (e.g., lessors, building contractors, amusement parks).

Front 241

Negligence: Defenses to Negligence: Assumption of Risk: No Defense to Intentional Torts

Back 241

Assumption of risk is not a defense to intentional torts, but it is a defense to wanton and willful misconduct.

Front 242

Negligence: Defenses to Negligence: Comparative Negligence

Back 242

In comparative negligence states, plaintiff’s contributory negligence is not a complete bar to recovery. Rather, the trier of fact weighs plaintiff’s negligence and reduces damages accordingly (e.g., if plaintiff is 10% at fault, her damages are reduced by 10%). A majority of states have adopted PARTIAL comparative negligence, which still bars plaintiff’s recovery if his negligence was more serious than defendant’s negligence (or in some states at least as serious as defendant’s). States that have adopted PURE comparative negligence allow recovery no matter how great plaintiff’s negligence was.

Front 243

Comparative Negligence in NY

Back 243

The plaintiff may recover EVEN IF THE PLAINTIFF’S CULPABLE CONDUCT EXCEEDS THE DEFENDANT’S. However, one injured as a direct result of her own ILLEGAL CONDUCT involving risk of physical harm may not recover for her injuries, notwithstanding the comparative fault statute.

Front 244

Exam Tip

Back 244

One the MBE, assume that pure comparative negligence applies unless the question states otherwise.

Front 245

Negligence: Defenses to Negligence: Comparative Negligence: Effect on Other Doctrines

Back 245

Last clear chance is not used in comparative negligence jurisdictions. Most comparative negligence jurisdictions have abolished the defense of implied assumption of risk but have retained the defense of express assumption of risk. In most states, plaintiff’s negligence will be taken into account even though defendant’s conduct was “wanton and willful” or “reckless” but not if it was intentional.

Front 246

Liability Without Fault (Strict Liability): Prima Facie Case

Back 246

For strict liability, the following elements must be shown:
1. The nature of the defendant’s activity imposes an ABSOLUTE DUTY TO MAKE SAFE;
2. The dangerous aspect of the activity was the ACTUAL and PROXIMATE CAUSE of the plaintiff’s injury; and
3. The plaintiff suffered DAMAGE to person or property.

Front 247

Liability Without Fault (Strict Liability): Liability For Animals: Trespassing Animals

Back 247

An owner is strictly liable for reasonably foreseeable damage done by a trespass of his animals.

Front 248

Liability Without Fault (Strict Liability): Liability For Animals: Personal Injuries: Strict Liability for Wild Animals

Back 248

An owner is strictly liable for licensees and invitees for injuries caused by wild animals (even those kept as pets).

Front 249

Liability Without Fault (Strict Liability): Liability For Animals: Personal Injuries: N Strict Liability for Domestic Animals

Back 249

An owner is not strictly liable for injuries caused by domestic animals unless he has knowledge of that particular animal’s dangerous propensities that are not common to the species.

Front 250

Liability Without Fault (Strict Liability): Liability For Animals: Personal Injuries: Strict Liability Not Available to Trespassers

Back 250

Strict liability will generally not be imposed in favor of trespassers in the absence of the owner’s negligence. However, a landowner may be liable on intentional tort grounds for injuries inflicted by vicious watchdogs.

Front 251

Liability Without Fault (Strict Liability): Abnormally Dangerous Activities

Back 251

Courts applying the rule of Rylands v. Fletcher generally impose two requirements for finding an activity to be abnormally dangerous:
1. The activity must create a foreseeable risk of SERIOUS HARM EVEN WHEN REASONABLE CARE IS EXERCISED by all actors; and
2. The activity is NOT A MATTER OF COMMON USAGE in the community.

Front 252

Exam Tip

Back 252

Exam questions testing on strict liability often include a statement in the facts or in an answer choice that the defendant exercised reasonable care. Remember that NO AMOUNT OF REASONABLE CARE on the part of the defendant will relieve him of liability in a strict liability situation.

Front 253

Liability Without Fault (Strict Liability): Extent of Liability: Scope of Duty Owed

Back 253

The duty owed is the absolute duty to make safe the normally dangerous characteristic of the animal or activity. It is owed to all foreseeable plaintiffs.

Front 254

Liability Without Fault (Strict Liability): Extent of Liability: Defenses

Back 254

In CONTRIBUTORY NEGLIGENCE states, contributory negligence is no defense is plaintiff has failed to realize the danger or guard against it. It is a defense if plaintiff knew of the danger and his unreasonable conduct was the very cause of the harm from the wild animal or abnormally dangerous activity. Assumption of the risk is a good defense to strict liability. Most COMPARATIVE NEGLGIENCE states apply their comparative negligence rules to strict liability cases.

Front 255

Products Liability: Basic Principles

Back 255

Products liability refers to the liability of a supplier of a defective product to someone injured by the product.

Front 256

Products Liability: Basic Principles: Theories of Liability

Back 256

There are five theories of liability that plaintiff may use:
1. Intent
2. Negligence
3. Strict Liability
4. Implied Warranties of Merchantability and Fitness for a Particular Purpose, and
5. Representation Theories (express warranty and misrepresentation).

Front 257

Exam Tip

Back 257

If the question does not indicate what theory of liability plaintiff is using, apply a strict liability theory because that is the easiest to prove.

Front 258

Products Liability: Basic Principles: Common Elements

Back 258

To find liability under any products liability theory, plaintiff must show:
1. A DEFECT, and
2. Existence of the defect WHEN THE PRODUCT LEFT DEFENDANT’S CONTROL.

Front 259

Products Liability: Basic Principles: Common Elements: Types of Defects: Manufacturing Defects

Back 259

If a product emerges from manufacturing different and more dangerous than the products that were made properly, it has a manufacturing defect.

Front 260

Products Liability: Basic Principles: Common Elements: Types of Defects: Design Defects

Back 260

When all products of a line are the same but have dangerous propensitie, they may be found to have a design defect.

Front 261

Products Liability: Basic Principles: Common Elements: Types of Defects: Inadequate Warnings

Back 261

A product may be defective as a result of the manufacturer’s failure to give adequate warnings as to the risks involved in using the product that may not be apparent to users. For prescription drugs and medical devices, warnings given to “learned intermediaries” (e.g., prescribing physicians) will usually suffice in lieu of warnings to the patient.

Front 262

Products Liability: Basic Principles: Common Elements: Proving a Defect: Manufacturing Defect

Back 262

For a manufacturing defect, defendant will be liable if plaintiff can show that the product failed to perform as safely as an ordinary consumer would expect (defendant must anticipate reasonable misuse). This test also applies to defective food products.

Front 263

Products Liability: Basic Principles: Common Elements: Proving a Defect: Design Defects

Back 263

For a design defect, plaintiff usually must show that the defendant could have made the product safer, without serious impact on the product’s price or utility.

Front 264

Products Liability: Basic Principles: Common Elements: Proving a Defect: Government Safety Standards

Back 264

A product’s NONCOMPLIANCE with government safety standards establishes that it is defective, while COMPLIANCE with safety standards (including labeling requirements) is evidence—but NOT conclusive—that the product is not defective.

Front 265

Products Liability: Basic Principles: Common Elements: Proving a Defect: Scientifically Unknowable Risks

Back 265

Defendant will not be held liable for dangers not foreseeable at the time of marketing.

Front 266

Products Liability: Basic Principles: Common Elements: Proving a Defect: Unavoidably Unsafe Products

Back 266

Manufacturers will not be held liable for some dangerous products (e.g., knives) if the danger is apparent and there is no safer way to make the product.

Front 267

Products Liability: Basic Principles: Common Elements: Existence of Defect When Product Left Defendant’s Control

Back 267

The defect must have existed when the product left defendant’s control. This will be inferred if the product moved through normal channels of distribution.

Front 268

Exam Tip

Back 268

In virtually all products liability actions, the fact that there was no contractual PRIVITY between the plaintiff and defendant will not prevent plaintiff from recovering. Nevertheless, it is still a favorite WRONG CHOICE in products liability exam questions based on negligence or strict liability theories. Remember that any foreseeable plaintiff, including a bystander, can sue any commercial supplier in the chain of distribution regardless of the absence of a contractual relationship between them.

Front 269

Products Liability: Liability Based on Intent

Back 269

Defendant will be liable to anyone injured by an unsafe product if defendant intended the consequences or knew that they were substantially certain to occur. Products liability actions based on intent are not very common. If intent is present, the most likely tort is battery.

Front 270

Products Liability: Liability Based on Intent: Who can Sue?

Back 270

Privity is not required, so any injured plaintiff can sue.

Front 271

Products Liability: Liability Based on Intent: Damages

Back 271

In addition to compensatory damages, punitive damages are available.

Front 272

Products Liability: Liability Based on Negligence

Back 272

The prima facie case is the same as in any negligence case. Plaintiff may show:
1. Duty
2. Breach,
3. Actual and Proximate cause, and
4. Damages.

Front 273

Products Liability: Liability Based on Negligence: Duty of Care

Back 273

A duty of care is owed to any foreseeable plaintiff.

Front 274

Products Liability: Liability Based on Negligence: Duty of Care: Who Can Sue?

Back 274

Privity with the defendant is no longer required, so any foreseeable plaintiff can sue. This includes:
1. Users
2. Consumers; and
3. Bystanders

Front 275

Products Liability: Liability Based on Negligence: Duty of Care: Who Can be Held Liable?

Back 275

Commercial suppliers such as manufacturers, wholesalers, and retailers can be held liable.

Front 276

Products Liability: Liability Based on Negligence: Breach of Duty

Back 276

Breach of duty is shown by:
1. NEGLIGENT CONDUCT of defendant leading to
2. The supplying of a DEFECTIVE PRODUCT (as defined above).

Front 277

Products Liability: Liability Based on Negligence: Breach of Duty: Proof of Negligence

Back 277

Negligence is proved the same as in a “standard” negligence case. The plaintiff may invoke res ipsa loquitur.

Front 278

Products Liability: Liability Based on Negligence: Breach of Duty: Liability of Retailers and Wholesalers

Back 278

It is very difficult to hold retailers and wholesalers liable for negligence because they can usually satisfy their duty through a cursory inspection.

Front 279

Products Liability: Liability Based on Negligence: Causation

Back 279

An intermediary’s (e.g., wholesaler’s) negligent failure to discover a defect does not supersed the original manufacturer’s negligence unless the intermediary’s conduct exceeds ordinary foreseeable negligence.

Front 280

Products Liability: Liability Based on Negligence: Nature of Damages Recoverable

Back 280

Physical injury or property damage must be shown. (Recovery will be denied if the sole claim is for economic loss.)

Front 281

Products Liability: Liability Based on Negligence: Defenses

Back 281

The defenses are the same as in a general negligence action.

Front 282

Products Liability: Liability Based on Strict Tort Liability

Back 282

The prima facie case:
1. A strict duty owed by a COMMERICAL SUPPLIER of a product;
2. Production or sale of a defective product;
3. Actual and proximate cause; and
4. Damages.

Front 283

Products Liability: Liability Based on Strict Tort Liability: Duty

Back 283

Defendant has a duty to supply safe products.

Front 284

Products Liability: Liability Based on Strict Tort Liability: Duty: Who Can Sue?

Back 284

Privity is not required—users, consumers, and bystanders can sue.

Front 285

Products Liability: Liability Based on Strict Tort Liability: Duty: Who Can Sue?: No Substantial Alteration

Back 285

For liability to attach, the product must reach the plaintiff without substantial alteration.

Front 286

Products Liability: Liability Based on Strict Tort Liability: Duty: Who Can Sue?: Does Not Extend to Services

Back 286

Strict products liability applies only to products. Even where a product is provided incident to a service (e.g., blood during an operation), there is no strict liability. Plaintiff may, however, sue in negligence.

Front 287

Products Liability: Liability Based on Strict Tort Liability: Duty: Who Can Be Held Liable?

Back 287

Any commercial supplier can be held liable. Casual sellers will not be held strictly liable.

Front 288

Products Liability: Liability Based on Strict Tort Liability: Production or Sale of Defective Product

Back 288

Plaintiff must show that the product is defective. The defect must make the product dangerous beyond the expectation of the ordinary consumer. Retailers may be liable even if they have no opportunity to inspect the product.

Front 289

Products Liability: Liability Based on Strict Tort Liability: Causation

Back 289

For actual cause, plaintiff must show that the defect existed WHEN THE PRODUCT LEFT DEFENDANT’S CONTROL. If the defect is difficult to trace, plaintiff may be able to rely on an inference that this type of product failure ordinarily would occur only as a result of a product defect. Proximate cause is the same as in negligence cases.

Front 290

Products Liability: Liability Based on Strict Tort Liability: Nature of Damages Recoverable

Back 290

Physical injury or property damage must be shown. Recovery will be denied if the sole claim is for economic loss.

Front 291

Products Liability: Liability Based on Strict Tort Liability: Defenses

Back 291

In CONTRIBUTORY NEGLIGENCE states, ordinary contributory negligence is no defense where plaintiff merely failed to discover the defect or guard against its existence, or where plaintiff’s misuse was reasonably foreseeable. Assumption of the risk is a defense. In most COMPARATIVE NEGLIGENCE states, courts will apply their comparative negligence rules.

Front 292

Products Liability: Liability Based on Strict Tort Liability: Disclaimers Ineffective

Back 292

Disclaimers are IRRELEVANT in negligence or strict liability cases if personal injury or property damages occur.

Front 293

Products Liability: Implied Warranties of Merchantability and Fitness

Back 293

There are two warranties implied in every sale of goods that can serve as the basis for a suit by a buyer against a seller:
1. MERCHANTABILITY, which refers to whether the goods are of average acceptable quality and are generally fit for the ordinary purpose for which the goods are used; and
2. FITNESS FOR A PARTICULAR PURPOSE, which arises when the seller knows or has reason to know the particular purpose for which the goods are required and that the buyer is relying on the seller’s skill and judgment in selecting the goods.

Front 294

Products Liability: Implied Warranties of Merchantability and Fitness: Who Can Sue?

Back 294

Most courts no longer require vertical privity. Most states adopted a narrow version of the horizontal privity requirement. This means the buyer, family, household, and guests can sue for personal injuries. These warranties also generally apply to a lease of goods.

Front 295

Products Liability: Implied Warranties of Merchantability and Fitness: What Constitutes Breach?

Back 295

If the product fails to live up to either of the above standards, the warranty is breached and the defendant will be liable.

Front 296

Products Liability: Implied Warranties of Merchantability and Fitness: What Constitutes Breach?: Proof of Fault Unnecessary

Back 296

Plaintiff does not have to prove any fault on the part of defendant.

Front 297

Products Liability: Implied Warranties of Merchantability and Fitness: Causation

Back 297

Actual cause and proximate cause are handled as in ordinary negligence cases.

Front 298

Products Liability: Implied Warranties of Merchantability and Fitness: Damages

Back 298

Personal injury and property damages, AND PURELY ECONOMIC loss, are recoverable.

Front 299

Products Liability: Implied Warranties of Merchantability and Fitness: Defenses

Back 299

Defenses include assumption of risk (using a product while knowing of breach of warranty) and contributory negligence to the same extent as in strict liability cases. Failure to give notice of breach is a defense under the UCC (even in personal injury cases).

Front 300

Products Liability: Implied Warranties of Merchantability and Fitness: Effect of Disclaimers

Back 300

Disclaimers are generally rejected in personal injury cases but upheld for economic loss.

Front 301

Products Liability: Representation Theories

Back 301

In addition to the theory of implied warranties, a defendant may be liable when a product does not live up to some affirmative representation. The two representation theories are:
1. Express Warranty
2. Misrepresentation of Fact

Front 302

Products Liability: Representation Theories: Express Warranty

Back 302

Any affirmation of fact or promise concerning goods that becomes part of the basis of the bargain creates an express warranty.

Front 303

Products Liability: Representation Theories: Express Warranty: Who Can Sue?

Back 303

Any consumer, user, or bystander can sue. If a buyer sues, the warranty must have been “part of the basis of the bargain.” If plaintiff is not in privity (e.g., bystander), she need not have relied on the representation as long as someone did. An express warranty may also be made in a lease of goods.

Front 304

Products Liability: Representation Theories: Express Warranty: Breach

Back 304

Fault need not be shown to establish breach. Plaintiff need only show that the product did not live up to its warranty.

Front 305

Products Liability: Representation Theories: Express Warranty: Causation, Damages, and Defenses

Back 305

Causation, damages, and defenses are treated just as they are under implied warranties.

Front 306

Products Liability: Representation Theories: Express Warranty: Disclaimers

Back 306

A disclaimer will be effective only in the unlikely event that it is consistent with the warranty.

Front 307

Products Liability: Representation Theories: Misrepresentation of Fact

Back 307

A seller will be liable for misrepresentations of facts concerning a product where:
1. The statement was of a material fact concerning quality or uses of goods (mere puffery insufficient), and
2. The seller intended to induce reliance by the buyer in a particular transaction.

Liability is usually based on strict liability but may also arise for intentional or negligent misrepresentations.

Front 308

Products Liability: Representation Theories: Misrepresentation of Fact: Justifiable Reliance

Back 308

Justifiable reliance is required (i.e., the representation was a substantial factor in inducing the purchase). Reliance need not be the victim’s (it may be a prior purchaser’s). Privity is irrelevant.

Front 309

Products Liability: Representation Theories: Misrepresentation of Fact: Causation and Damages

Back 309

Actual cause is shown by reliance. Proximate cause and damages are the same as for strict liability.

Front 310

Products Liability: Representation Theories: Misrepresentation of Fact: Defenses

Back 310

Assumption of risk is not a defense if plaintiff is entitled to rely on the representation. Contributory negligence is the same as in strict liability, unless defendant committed intentional misrepresentation.

Front 311

Nuisance

Back 311

Nuisance is not a separate tort in itself. Rather, nuisances are a type of harm—the invasion of either private property rights or public rights by conduct that is tortious because it falls into the usual categories of tort liability (i.e., intentional, negligent, strict liability). There are two types of nuisance: private and public.

Front 312

Nuisance: Private Nuisance

Back 312

Private nuisance is a SUBSTANTIAL, UNREASONABLE INTERFERENCE with another private individual’s USE OR ENJOYMENT of property that he actually possesses or to which he has a right of immediate possession.

Front 313

Exam Tip

Back 313

Nuisance questions on the MBE will often flag the correct choice with a key term from the definition of nuisance—e.g., defendant is liable because the activity created a “substantial” (or “unreasonable”) interference with plaintiff’s use of her land.

Front 314

Nuisance: Private Nuisance: Substantial Inferference

Back 314

Substantial interference is interference that is offensive, inconvenient, or annoying to the average person in the community. It is not substantial if it is merely the result of plaintiff’s hypersensitivity or specialized use of his own property.

Front 315

Nuisance: Private Nuisance: Unreasonable Interference

Back 315

To establish unreasonable interference, required for nuisances based on intent or negligence, the severity of the inflicted injury must outweigh the utility of defendant’s conduct. In balancing these respective interests, courts take into account that every person is entitled to use his own land in a reasonable way, considering the neighborhood, land values, and existence of any alternative courses of conduct open to defendant.

Front 316

Nuisance: Private Nuisance: Trespass to Land Distinguished

Back 316

In a trespass, there is an interference with the landowner’s EXCLUSIVE POSSESSION by a physical invasion; in a private nuisance, there is an interference with USE OR ENJOYMENT.

Front 317

Nuisance: Public Nuisance

Back 317

Public nuisance is an act that unreasonably interferes with the HEALTH, SAFETY, OR PROPERTY RIGHTS OF THE COMMUNITY, e.g., using a building for criminal activities such as prostitution. Recovery by a private party is available for a public nuisance only if the private party suffered unique damage not suffered by the public at large.

Front 318

Nuisance: Remedies: Damages

Back 318

Plaintiff will usually be awarded damages.

Front 319

Nuisance: Remedies: Injunctive Relief

Back 319

If the legal remedy of damages is unavailable or inadequate (e.g., the nuisance will cause irreparable injury), injunctive relief will be awarded. In this case, the court will consider the relative hardships. However, hardships will not balanced where defendant’s conduct was willful.

Front 320

Nuisance: Remedies: Abatement by Self-Help

Back 320

In this case of a private nuisance, self-help abatement is available after notice to defendant and his refusal to act. Only necessary force may be used. In public nuisance cases, only a public authority or a private party who has suffered some unique damage can seek an injunction or abatement.

Front 321

Nuisance: Defenses: Legislative Authority

Back 321

Legislative authority for “nuisance activity” (e.g., a zoning ordinance) is not an absolute defense but is persuasive.

Front 322

Nuisance: Defenses: Conduct of Others

Back 322

No one actor is liable for all damage caused by concurrence of his acts and others.

Example: Ten steel mills are polluting a stream. Each steel mill is responsible only for the pollution it causes.

Front 323

Nuisance: Defenses: Contributory Negligence

Back 323

Contributory negligence generally is no defense to nuisance unless plaintiff’s case rests on a negligence theory.

Front 324

Nuisance: Defenses: Coming to the Nuisance

Back 324

One may “come to a nuisance” (purchasing land next to an already existing nuisance) and thereafter, pursue an action. It is generally not a bar to plaintiff’s action unless she “cam to the nuisance” for the sole purpose of bringing a harassing lawsuit.

Front 325

General Considerations for All Tort Cases: Vicarious Liability

Back 325

Vicarious liability is liability that is derivatively imposed. In short, this means that one person commits a tortious act against a third party and another person will be liable to the third party for this act.

Front 326

General Considerations for All Tort Cases: Vicarious Liability: Doctrine of Respondeat Superior

Back 326

A master/employer will be vicariously liable for tortious acts committed by her servant/employee if the tortious acts occur within the SCOPE OF THE EMPLOYMENT relationship.

Front 327

Doctrine of Respondeat Superior in NY

Back 327

PUNITIVE DAMAGES are NOT recoverable in an action against an employer for torts of employees unless:
1. The EMPLOYER was GROSSLY NEGLIGENT in hiring or allowing the employee to continue to work;
2. The EMPLOYEE was ENTRUSTED with the general management of the business; or
3. The EMPLOYER AUTHORIZED OR RATIFIED the tortious act.

Front 328

General Considerations for All Tort Cases: Vicarious Liability: Doctrine of Respondeat Superior: Frolic and Detour

Back 328

An employee making a MINOR deviation from his employer’s business for his own purposes is still acting within the scope of his employment. If the deviation in time or geographic area is substantial, the employer is not liable.

Front 329

General Considerations for All Tort Cases: Vicarious Liability: Doctrine of Respondeat Superior: Intentional Torts

Back 329

It is usually held that intentional tortious conduct by employees is not within the scope of employment.

Exceptions:
1. Force is authorized by the employment, e.g., bouncer
2. Friction is generated by the employment, e.g., bill collector.
3. The employee is furthering the business of the employer, e.g., removing customers from the premises because they are rowdy.

Front 330

General Considerations for All Tort Cases: Vicarious Liability: Doctrine of Respondeat Superior: Liability for Own Negligence

Back 330

Employers may be liable for their own negligence by negligently selecting or supervising their employees. (This is NOT vicarious liability.)

Front 331

General Considerations for All Tort Cases: Vicarious Liability: Independent Contractor Situations

Back 331

In general, a principal will not be vicariously liable for tortious acts of her agent if the agent is an independent contractor. Two BROAD EXCEPTION exist, however:
1. The independent contractor is engaged in inherently dangerous activities, e.g., excavating next to a public sidewalk or blasting.
2. The duty, because of public policy considerations, is simply nondelegable, e.g., the duty to use due care in building a fence around an excavation site.

Front 332

General Considerations for All Tort Cases: Vicarious Liability: Independent Contractor Situations: Liability for Own Negligence

Back 332

The employer may be liable for her OWN negligence in selecting or supervising the independent contractor (e.g., hospital liable for contracting with unqualified and incompetent physician who negligently treats hospital’s patient). (This is not vicarious liability.)

Front 333

General Considerations for All Tort Cases: Vicarious Liability: Partners and Joint Venturers

Back 333

Each member of a partnership or joint venture is vicariously liable for the tortious conduct of another member committed in the SCOPE AND COURSE of the affairs of the partnership or joint venture.

Front 334

General Considerations for All Tort Cases: Vicarious Liability: Automobile Owner for Driver

Back 334

The general rule is that an automobile owner is not vicariously liable for the tortious conduct of another person driving his automobile. In some jurisdictions, courts employ theories other than vicarious liability to hold an automobile owner liable.

Front 335

Automobile Owner for Driver in NY

Back 335

NY has adopted a PERMISSIVE USE statute that provides:
1. The owner is NOT VICARIOUSLY LIABLE for INTENTIONALLY tortious operation of the driver;
2. REGISTRATION IS PRIMA FACIE EVIDENCE OF OWNERSHIP—proof of ownership raises a rebuttable presumption that the driver used and operated the vehicle with the owner’s consent and permission; and
3. It is not necessary that the person to whom the owner granted permission actually operated the vehicle (mere presence if sufficient).

Note: A recently enacted federal statute preempts the NY statute that allows rental and leasing companies to be considered “owners” for the purposes of the “permissive use” statute. Rental and leasing companies can only be held liable if there was negligence or criminal wrongdoing on the part of the company.

Front 336

General Considerations for All Tort Cases: Vicarious Liability: Automobile Owner for Driver: Family Car Doctrine

Back 336

In many states, the owner is liable for tortious conduct of immediate family or household members who are driving with the owner’s express or implied permission.

Front 337

General Considerations for All Tort Cases: Vicarious Liability: Automobile Owner for Driver: Permissive Use

Back 337

A number of states have now gone further by imposing liability on the owner for damage caused by anyone driving with the owner’s consent.

Front 338

General Considerations for All Tort Cases: Vicarious Liability: Automobile Owner for Driver: Negligent Entrustment

Back 338

An owner may be liable for her OWN negligence in entrusting the car to a driver. Some states have also imposed liability on the owner if she was present in the car at the time of the accident, on the theory that she could have prevented the negligent driving, and hence was negligent herself in not doing so. (This is not vicarious liability).

Front 339

General Considerations for All Tort Cases: Vicarious Liability: Bailor for Bailee

Back 339

Under the general rule, the bailor is not vicariously liable for the tortious conduct of his bailee.

Front 340

General Considerations for All Tort Cases: Vicarious Liability: Bailor for Bailee: Negligent Entrustment

Back 340

As above, the bailor may be liable for her OWN negligence in entrusting the bailed object. (This is not vicarious liability)

Front 341

General Considerations for All Tort Cases: Vicarious Liability: Parent for Child

Back 341

A parent is not vicariously liable for the tortious conduct of the child at common law. Note, however, that most states, by statute, make parents liable for the willful and intentional torts of their minor children up to a certain dollar amount (e.g., 10,000).

Front 342

Parent for Child in NY

Back 342

Parents are liable up to a maximum of 5,000 dollars for the willful and intentional PROPERTY TORTS of their minor children OVER AGE 10. Also, there is a duty by a parent to protect third parties from foreseeable harm resulting from an infant child’s improvident use of a dangerous instrument where such use is found to be subject to the parent’s control. This rule may apply even when the operator of the dangerous instrument (the infant) is unrelated to the defendant. In such a case, the defendant-parent, rather than being vicariously liable, may be found directly liable to the third party under a theory of negligent entrustment.

Front 343

General Considerations for All Tort Cases: Vicarious Liability: Parent for Child: Child Acting as Agent for Parents

Back 343

Courts may impose vicarious liability if the child committed a tort while acting as the agent for the parents.

Front 344

General Considerations for All Tort Cases: Vicarious Liability: Parent for Child: Parent Liable for Own Negligence

Back 344

The parent may be held liable for her own negligence in allowing the child to do something, e.g., use a dangerous object without proper instruction. Further, if the parent is apprised of the child’s conduct on past occasions showing a tendency to injure another’s person or property, she may be liable for not using due care in exercising control to mitigate such conduct, e.g., by allowing the child to play with other children he has a history of attacking.

Front 345

General Considerations for All Tort Cases: Vicarious Liability: Tavernkeepers: Common Law

Back 345

No liability is imposed on vendors of intoxicating beverages for injuries resulting from the vendee’s intoxication, whether the injuries were sustained by the vendee or by a third person as a result of the vendee’s conduct.

Front 346

General Considerations for All Tort Cases: Vicarious Liability: Tavernkeepers: Modern Law

Back 346

Many states, in order to avoid this common law rule, have enacted Dramshop Acts. Such states usually create a cause of action in favor of any third person injured by the intoxicated vendee. Several courts have imposed liability on tavernkeepers even in the absence of a Dramshop Act. This liability is based on ordinary negligence principles (the foreseeable risk of serving a minor or obviously intoxicated adult) rather than vicarious liability.

Front 347

Tavernkeepers in NY

Back 347

The NY Dram Shop provision makes a vendor who has “unlawfully” supplied an intoxicated vendee with alcohol liable to third parties injured by the intoxicated vendee. The “unlawful” sale of alcohol includes selling to a visibly intoxicated person and to any person actually or apparently under the age of 21.

Front 348

Exam Tip

Back 348

When you see an MBE question on vicarious liability, recognizing whether the doctrine applies I only the first step in your analysis. Even where defendant is not vicariously liable, plaintiff may prevail if defendant personally was negligent in supervising the person causing the injury. Always look for this option among your answer choices.

Front 349

General Considerations for All Tort Cases: Parties—Multiple Defendant Issues: Joint and Several Liability

Back 349

Where two or more negligent acts combine to proximately cause an indivisible injury, each negligent actor will be jointly and severally liable (i.e., liable to plaintiff for the entire damage incurred). If the injury is divisible, each defendant is liable only for the identifiable portion.

Front 350

Multiple Defendant Issues in NY

Back 350

See NY Practice outline, Third-Party Practice.

Front 351

General Considerations for All Tort Cases: Parties—Multiple Defendant Issues: Joint and Several Liability Defendants Acting in Concert

Back 351

Where two or more defendants act in concert and injure plaintiff, each is jointly and severally liable for the entire injury. This is so even if the injury is divisible.

Front 352

General Considerations for All Tort Cases: Parties—Multiple Defendant Issues: Joint and Several Liability: Statutory Limitations

Back 352

Many states have abolished joint liability either:
1. For those defendants judged to be less at fault than plaintiff, or
2. For all defendants regarding noneconomic damages.

In these cases, liability will be proportional to defendant’s fault.

Front 353

General Considerations for All Tort Cases: Parties—Multiple Defendant Issues: Satisfaction

Back 353

Recovery of full payment is a “satisfaction.” Only one satisfaction is allowed. Until there is satisfaction, however, one may proceed against all jointly liable parties.

Front 354

General Considerations for All Tort Cases: Parties—Multiple Defendant Issues: Release

Back 354

In most states, a release of one tortfeasor does not discharge other tortfeasers unless it is expressly provided for in the release agreement.

Front 355

General Considerations for All Tort Cases: Parties—Multiple Defendant Issues: Contribution and Indemnity

Back 355

Contribution and indemnity are doctrines that determine how joint tortfeasors allocate between them the damages they must pay to a successful plaintiff.

Front 356

Exam Tip

Back 356

To keep these two doctrines separate in your mind, recall that generally, for CONTRIBUTION to apply, both defendants must have a MEASURABLE DEGREE of culpability for the tort, but INDEMNITY usually applies when one of the parties is MUCH MORE RESPONSIBLE than the other. It is important to note that neither of these doctrines affects how much the PLAINTIFF receives. Rather, they deal with how much of the total award EACH DEFENDANT ultimately must pay.

Front 357

General Considerations for All Tort Cases: Parties—Multiple Defendant Issues: Contribution

Back 357

The rule of contribution allows a defendant who pays more than his share of damages under joint and several liability to have a claim against other jointly liable parties for the excess; i.e., it APPORTIONS RESPONSIBILITY among those at fault.

Front 358

General Considerations for All Tort Cases: Parties—Multiple Defendant Issues: Contribution: Limitations

Back 358

The contribution defendant must be originally liable to the plaintiff. Also, contribution is not applicable to intentional torts.

Front 359

General Considerations for All Tort Cases: Parties—Multiple Defendant Issues: Contribution: Methods of Apportionment: Comparative Contribution

Back 359

Most states have a comparative contribution system, whereby contribution is imposed in proportion to the RELATIVE FAULT of the various defendants.

Front 360

General Considerations for All Tort Cases: Parties—Multiple Defendant Issues: Contribution: Methods of Apportionment: Equal Shares

Back 360

In a minority of states, apportionment is in EQUAL SHARES regardless of degrees of fault.

Front 361

General Considerations for All Tort Cases: Parties—Multiple Defendant Issues: Indemnity

Back 361

Indemnity involves SHIFTING THE ENTIRE LOSS between or among tortfeasors. Indemnity is available in the following circumstances:
1. By contract,
2. In vicarious liability situations,
3. Under strict products liability, and
4. In some jurisdictions, where there has been an identifiable difference in degree of fault (e.g., retailers who negligently rely on a product’s condition may receive indemnification from the manufacturer who negligently manufactured it; one whose liability is based on a secondary duty may recover indemnification from a person who had a primary duty; one who is passively negligent may recover indemnification from a joint tortfeasor who is actively negligent).

Front 362

General Considerations for All Tort Cases: Parties—Multiple Defendant Issues: Comparative Contribution

Back 362

As noted above, most comparative negligence states have adopted a comparative contribution system where contribution is in proportion to the relative fault of the various defendants. This approach ALSO supplants indemnification rules based on identifiable differences in degree of fault.

Front 363

General Considerations for All Tort Cases: Survival and Wrongful Death: Survival of Tort Actions

Back 363

Survival acts allow one’s cause of action to survive the death of one or more of the parties. The acts apply to actions involving torts to property and torts resulting in personal injury. However, torts invading intangible personal interests (e.g., defamation, invasion of right of privacy, malicious prosecution) expire upon the victim’s death.

NY: Actions involving HARM TO INTANGIBLE INTERESTS, such as libel and slander, SURVIVE.

Front 364

Distribution of Damages When Injury Causes Death in NY

Back 364

When a cause of action owned by the decedent in his lifetime survives and the injury CAUSES DEATH, the damages recovered in the action are PART OF HIS ESTATE and will be distributed according to his will or by intestacy. Damages are limited to those accruing before death (damages for the death itself are recovered in a wrongful death action). Because the decedent’s debts must be paid, the damages are reachable by the decedent’s creditors.

Front 365

General Considerations for All Tort Cases: Survival and Wrongful Death: Wrongful Death

Back 365

Wrongful death act grant recovery for pecuniary injury resulting to the spouse and next of kin. A decedent’s creditors have no claim against the amount awarded. Recovery is allowed only to the extent that the deceased could have recovered in an action had he lived. Hence, the decedent’s contributory negligence reduces the wrongful death recovery in comparative negligence states. Similarly, a potential beneficiary’s contributory negligence reduces her share of the recovery in comparative negligence states.

Front 366

Wrongful Death: Who May Bring Action in NY?

Back 366

When the decedent is survived by distributes, the PERSONAL REPRESENTATIVE of the decedent’s estate may maintain an action for wrongful death.

Front 367

Wrongful Death: Measure of Recovery in NY

Back 367

LOSS OF CONSORTIUM is NOT compensable in a wrongful death action. PUNITIVE DAMAGES are recoverable by the personal representative of the decedent. The damages recovered are allocated by the personal representative among the distributees who have sustained pecuniary loss in proportion to the amount of loss sustained by each.

Front 368

Wrongful Death: Procedure in NY (Including Statute of Limitations)

Back 368

See NY Practice Outline, Specific Statutes of Limitations—Two Years.

A wrongful death action must be brought within TWO YEARS from time of death. The action usually is consolidated with the surviving action for the decedent’s pre-death injuries. The plaintiff has the burden of proof except as to the decedent’s culpable conduct. The death of the beneficiary does not discharge the action, but pecuniary damages to the beneficiary are computed only up to the date of the beneficiary’s death.

Front 369

General Considerations for All Tort Cases: Tortious Interference with Family Relationships: Husband-Wife

Back 369

Either spouse may bring an action for indirect interference with consortium and services caused by defendant’s intentional or negligent tortious conduct against the other spouse.

Front 370

General Considerations for All Tort Cases: Tortious Interference with Family Relationships: Parent-Child

Back 370

A parent may maintain an action for loss of a child’s services as a result of defendant’s tortious conduct, whether intentional or negligent. A child, however, has no action in most states against one who tortuously injures the parent.

Front 371

General Considerations for All Tort Cases: Tortious Interference with Family Relationships: Nature of Action

Back 371

Actions for interference with family relationships are derivative. Hence, any defense that would reduce or bar recovery by the injured family member also reduces or bars recovery for interference with the family relationship.

Front 372

General Considerations for All Tort Cases: Tort Immunities: Intra-Family Tort Immunities

Back 372

Under the traditional view, one member of a family unit could not sue another in tort for personal injury. Today, most states have ABOLISHED HUSBAND-WIFE IMMUNITY. A slight majority have abolished parent-child immunity (but generally do not allow children to sure merely for negligent supervision). Those that retain parent-child immunity do not apply it in:
1. Cases alleging intentional tortious conduct, or
2. Automobile accident cases to the extent of insurance coverage.

Front 373

Intra-Family Tort Immunities—Injury to Person in NY

Back 373

There is NO INTRA-FAMILY IMMUNITY of any kind in NY. However, a parent does NOT owe a duty to his child to exercise due care in supervising the child’s day-to-day activities; therefore, A CHILD CANNOT SUE HIS PARENTS FOR NEGLIGENT SUPERVISION.

Front 374

General Considerations for All Tort Cases: Tort Immunities: Governmental Tort Immunities

Back 374

In varying degrees, federal, state, and municipal tort immunity has been eliminated. Where it survives, immunity attaches to GOVERNMENTAL, not proprietary functions.

Front 375

General Considerations for All Tort Cases: Tort Immunities: Governmental Tort Immunity: Federal Government

Back 375

Under the Federal Tort Claims Act, the United States has WAIVED IMMUNITY for tortious acts. However, immunity will still attach for:
1. Assault
2. Battery
3. False imprisonment
4. False arrest
5. Malicious prosecution
6. Abuse of Process
7. Libel and Slander
8. Misrepresentation and deceit
9. Interference with contract rights

Immunity is not waived for acts that are characterized as “discretionary,” as distinguished from those acts termed “ministerial.”

Front 376

General Considerations for All Tort Cases: Tort Immunities: Governmental Tort Immunity: State and Local Governments

Back 376

Most states have substantially waived immunity to the same extent as the federal government; about half have also abolished municipal immunity to the same extent. Where municipal immunity has been abolished, the “public duty” rule provides that a duty owed to the public at large is not owed to any particular citizen absent a special relationship between the governmental body and the citizen. Where municipal immunity still exists, contrast “governmental” functions (i.e., functions that could only be performed adequately by the government) and “proprietary” functions (functions that might as well have been performed by a private corporation). Courts limit application of sovereign immunity by NOT granting it for proprietary functions.

Front 377

Governmental Tort Immunity: State and Municipal Government in NY

Back 377

There is no immunity for proprietary functions or where a special relationship exists with the state/municipality. Otherwise, immunity exists for governmental functions.

Front 378

Proprietary Functions in NY

Back 378

Where the activity is a “proprietary function,” liability may be imposed according to ordinary tort principles. Note: Deciding whether the state or municipal activity is governmental or proprietary may be a close question.

Front 379

General Considerations for All Tort Cases: Tort Immunities: Governmental Tort Immunity: Immunity of Public Officials

Back 379

Public officials carrying out official duties are immune from tort liability for discretionary acts done without malice or improper purpose. Liability attaches, however, for ministerial acts.

Front 380

General Considerations for All Tort Cases: Tort Immunities: Charitable Immunity

Back 380

The majority of jurisdictions have eliminated charitable immunity