Tsjc - Barbri - Torts

Front 1

What is ignored when considering intentional torts?

Back 1

Hypersensitivity is ignored in deciding if that P has satisfied the elements of an intentional tort (always assume you’re dealing with an ordinary person)

Front 2

Are there incapacity defenses in intentional torts?

Back 2

No. There are no incapacity defenses in torts – a child, drunk, or person with a mental illness can commit an intentional tort

Front 3

What are the elements of battery?

Back 3

HARMFUL or OFFENSIVE contact
With the Plaintiff’s person
**Offensive contact: touching is offensive if its unpermitted, to an ordinary person
**Contact must be with the Plaintiff’s person – includes anything the P is touching or holding

Front 4

What are the elements of assault?

Back 4

1) D places P in immediate apprehension of 2) immediate battery.
**Apprehension is a synonym for knowledge – not about fear, about knowledge

Front 5

What is the unloaded gun problem (assault)?

Back 5

- If P knows gun is empty, then he’s not in apprehension, no battery
- If P has no info about the status of the gun, then its reasonable to assume that its loaded, and there P is in apprehension, assault

Front 6

Describe the immediate battery element of assault.

Back 6

- Mere words lack immediacy
- Presence of a weapon makes it immediate (or just fist)
- When you have conduct, have to see if the accompanying words negate immediacy
- Words of future threat are not immediate

Front 7

What are the elements of false imprisonment?

Back 7

1) act of restraint (by D) and 2) P is confined in a bounded area
- Threats can be sufficient, or can be physical barriers
- Has to be threat reasonable person would be threatened by
- An omission can be an act of restraint if there’s a preexisting duty to P, then a passive failure (guy on airplane)
- Act only counts if P is aware of it or harmed by it
- Confinement must be to a bounded area - 360 degree restraint around P
- Area is not bounded if there is reaonsable means of escape that P can reasonably discover

Front 8

What are the elements of intentional infliction of emotional distress?

Back 8

1) outrageous conduct (by D) and 2) damage – severe emotional distress (by P)(no need for physical manifestations of emotional distress)

Front 9

What is meant by "outrageous conduct" for IIED?

Back 9

- D is acting with the goal of offending P – reckless conduct will be enough to show intent
- Defined as “Conduct that exceeds all bounds of decency tolerated in a civilized society.
- Never treat mere insults as outrageous

Front 10

What are the "hallmarks" of outrageous conduct for IIED?

Back 10

1. Conduct of D is is continuous, repetitive, ongoing
2. D is a common carrier or innkeeper – have an obligation to be courteous – if they’re slightly insulting, might be viewed as outrageous
3. P is a member of a fragile class of persons – outrageous because the D is picking on this person for their inherently weaker nature 1) Little children; 2) Elderly; 3) Pregnant women – D must know she’s pregnant
4. Hypersensitive Person with a phobia – not outrageous unless D knew about the phobia and exploited it

Front 11

What are the elements for Trespass to Land?

Back 11

1) Act of Physical Invasion
2) on land of another.

**only intent needed is that D got to the location on purpose (if no intentional entry then it’s a defense)
**D can enter the land OR D, without going on the land, can throw or propel tangible objects onto the land
**P’s interest not limited to surface, includes air above, soil below to a reasonable distance

Front 12

What is the difference between trespass to chattels and conversion?

Back 12

Both deal with deliberate damage or theft to an item of personal property
- Difference between the two depends on the magnitude of harm
- Slight harm: trespass to chattels – Repair costs are all that are available
- Big harm: conversion – want to give conversion P a special remedy
**Conversion P gets full market value of the property, not just the costs of repair
**Conversion amounts to a forced sale

Front 13

What are the affirmative defenses to intentional torts?

Back 13

Consent, Self Defense, Public Necessity, Private Necessity

Front 14

What are the three types of consent to an intentional tort?

Back 14

- Express Consent: “words” that express consent (doesn’t count if it was obtained through fraud or duress)
- Implied Consent - Custom or Usage: If P goes to a place or participates in an activity and invasions are common, that’s consent to those invasions (subway, playing sports)
- Apparent Consent (or implied consent based on D’s reasonable interpretation of P’s objective conduct)

Front 15

How does a D show protective privileges to an intentional tort?

Back 15

1. Proper timing – the threat to which D is responding is imminent or in progress - lose the defense if the threat is over and done with
2. The D must have reasonable belief that the threat is genuine (Reasonable mistake will not destroy a protective privilege)

Front 16

How much force is allowed in self defense of an intentional tort?

Back 16

- Can only use force that is necessary under circumstances

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

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

- Deadly force is NEVER appropriate in defense of PROPERTY

Front 17

Describe the defense of public necessity.

Back 17

- D invades P’s property in an emergency to protect the community as a whole
- Its an absolute defense, no liability at all
- Its about being the savior of the city

Front 18

Describe the defense of private necessity.

Back 18

- D invades P’s property in an emergency to preserve an interest of his own
- Not an absolute defense

3 legal consequences:
1. D must pay for actual harm caused
2. D will not be liable for nominal or punitive damages
3. As long as the emergency continues, D is allowed to remain on P’s land in position of safety – his technical trespass must be tolerated

Front 19

What is the difference between abandoned and lost property?

Back 19

- Property is abandoned if you intend to give up title and possession

- Property is lost when you give up possession inadvertantly, but don’t plan to give up title

Front 20

What are the rules on abandoned and lost property?

Back 20

- Abandoned property = finder’s keepers – no one owns it so its yours if you take it

- Lost Property – true owner ALWAYS has the right to reclaim the property
- If you find lost property, must follow the statute

Front 21

What is the key issue with respect to gifts of personal property?

Back 21

Whether or not the donor can get item back if he changes his mind

Front 22

What are the three elements to establish inter vivos gifts of personal property?

Back 22

1. Donor must have subjective donative intent: intent to turn over title, not mere turning over of possession.
2. Acceptance by donee – only time we have lack of acceptance is when donee rejects it
3. Delivery – the property itself or a representative of it must be physically handed over to the donee

Front 23

Describe the commercial paper issues that arise with respect to delivery of an inter vivos gift of personal property.

Back 23

- 1st party check paid to order of donee, signed by donor – handing over the check is not delivery. Delivery accomplished when the check is cashed – if donor cancels payment, gift is not complete

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

- Stock certificates are delivered when handed over, even before the certificates are registered in new owner’s name

Front 24

Describe the agency issues that arise with respect to delivery of an inter vivos gift of personal property.

Back 24

- If dealing with the donor’s agent, delivery is only final when the agent gives it over to donee

- If dealing with donee’s agent, once it gets to donee’s agent, delivery is final.

Front 25

What is a gift causa mortis?

Back 25

A gift in contemplation of death
1. Need evidence that there was an imminent risk of death that was objectively likely to occur
2. Gift not valid if donee dies first
3. Donor has to die, or else the deal is off

Front 26

What is a lien, and what are the two diffent types?

Back 26

A security interest in an item to enforce a debt

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

General: right to retain a whole bunch of property for a general balance due: giving up one item doesn’t give up lien

Front 27

What is a bailment?

Back 27

Created whenever you relinquish possession of personal property but retain title

Front 28

What are some special tricks to remember for bailments?

Back 28

Parking lot – not a bailment if you park your car and you retain the key – if you turn over the key, it’s a bailment

Coat check – liability of bailee is statutorily limited

exculpatory clause: generally, its invalid
- Bailee can limit his liability
- If its in a negotiable contract, then the bailee can limit its liability
- If its ex parte, the bailee has to give effective notice (put up a sign)

Front 29

What are the three elements of defamation?

Back 29

1. Defamatory statement
2. Publication
3. Damages, maybe

Front 30

What is a defamatory statement?

Back 30

A statement that tends to adversely affect your reputation (not about feelings)
- Mere name calling not classified as defamatory.
- Usually an allegation of fact that reflects negatively on character.
- Could be a statement of opinion, which is defamatory IF listener would assume that the speaker has facts to back it up
- NY courts say it depends on tone, purpose, or context if it is considered defamatory.

**P must be alive – can’t defame a dead person.

Front 31

What is publication of a defamatory statement?

Back 31

Publication occurs if D makes a statement to ONE PERSON other than the plaintiff – de minimis
- Doesn’t have to be intentional, can be negligent
- The more people who hear the statement, the more damages you’re entitled to

Front 32

When do you need to prove actual damages in a defamation case?

Back 32

When its not libel or slander per se.

**Need an economic loss to show damages – that you actually lost something of value (like a job because of the statement)

Front 33

What is libel?

Back 33

Defamation in a permanent publication

**in modern technology, there are many different ways to make defamation permanent – CD, videotape, newspaper, book, etc.
**No damages necessary.

Front 34

What is slander per se?

Back 34

Treated like libel because P doesn’t have to prove damages

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

NY ONLY: Imputation of homosexuality

**If it doesn’t fall into the slander per se categories, then the P has to prove damages

Front 35

What are the defenses to defamation?

Back 35

1. Consent
2.Truth – D must prove that the defamatory utterance is factually accurate – has to be true, not that D THOUGHT it was true.
3. Privilege

Front 36

What are the two types of privilege defenses to defamation?

Back 36

Absolute Privilege:
1. Husband & Wife – no liability if a husband says something defamatory to his wife
2. Officers of government, especially in a judicial context

Qualified Privilege
1. Arises when we have a socially useful occasion for speech & we want to promote candor – statements on credit reports, statements of police officers
2. Limited privilege – get privilege if you speak in good faith. If you deliberately spread lies, then no privilege - must speak on relevant topics

Front 37

What are the four privacy torts?

Back 37

Appropriation, false light, intrusion, disclosure of a private fact

Front 38

What is appropriation?

Back 38

D uses P’s name or picture for a commercial purpose - D can get money damages or an injunction

There's a newsworthiness exception – behavior that would probably fall under First Amendment protection

Front 39

What is the only privacy tort recognized in New York?

Back 39

Appropriation.

Front 40

What is intrusion?

Back 40

Invasion of P’s seclusion in a way that would be objectionable to an average person
- P can get money damages or an injunction from D

In order to recover for intrusion:
1. P must be in a position of legitimate seclusion, must have reasonable expectation of privacy
2. No requirement that D commit trespass to land to have an intrusion

Front 41

What is false light?

Back 41

Widespread dissemination of a major misrepresentation about P that would be objectionable to the average person.

- Distinguish this from defamation (defamation only requires telling one person, but false light means you have to tell lots of people)
- Major misrepresentation can be a defamatory misrepresentation, but doesn’t have to be – false light includes, but is broader than defamation - difference is damages:
**In defamation, P can recover economic damages only but in false light, P can get emotional damages (people think less of him)

Front 42

What is disclosure of a private fact?

Back 42

Widespread dissemination of confidential information about P that would be objectionable to the average person

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

Look out for these exam tricks:
- Newsworthiness exception
- Dual Life fact pattern

Front 43

What are the defenses to the privacy torts?

Back 43

1. Consent – to all four privacy torts
2. Defamation privileges: absolute & qualified privileges will apply

Front 44

What are the elements of fraud?

Back 44

1. Affirmative misrepresentation about something (silence is not enough)
2. D must know information is inaccurate (also called scienter)
3. D must intend to induce reliance – has to be D’s goal to get P to rely on it
4. Reliance – P has to actually rely on the statement
5. Economic Harm or Damage – have to have some loss

Front 45

What is the prima facie tort in New York?

Back 45

1. Intent to do harm
2. Resulting harm

- Harm is almost always financial – catchall category
- Designed for malicious economic behavior – delibrately trying to bankrupt a business

Front 46

What are the elements of inducing the breach of a contract?

Back 46

1. Must be a valid contract, not terminable at will, between P and a 3rd party
2. D knows of the contract
3. D must exercise persuasion to convince 3rd party not to perform – could be coercion, could be offering a better deal
4. Persuasion has to work – 3rd party breaches

Front 47

When is inducing a breach of contract privileged, and therefore not a tort?

Back 47

a. As a rule, the privileges to this are in a special or counseling relationship with the 3rd party – no inducement
b. Financial or legal advisor
c. Can be moral or spiritual advisor – father tells you to breach, he’s not liable

Front 48

What is theft of a trade secret?

Back 48

1. P must own a valid trade secret
2. D must take it by improper means

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

Usually takes the form of an industrial process or formula

Front 49

What are the elements of negligence?

Back 49

1) Duty, 2) Breach, 3) Causation, 4) Damages

Front 50

To whom do you owe a duty?

Back 50

To foreseeable victims of your carelessness

**Don’t owe a duty to unforeseeable victims, so they ALWAYS LOSE – if they are outside the “zone of danger” they are not foreseeable.

Front 51

Are rescuers foreseeable victims?

Back 51

Rescuers are never barred by foreseeable victim standard and are always owed a duty

**rescuer will still have to satisfy all the other elements of negligence (rationale: danger invites rescue)

Front 52

In NY, what duty is owed to an unborn fetus?

Back 52

3 Scenarios:

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

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

3. If a doctor botches a sterilization (bad vasectomy) NY says there is NO RECOVERY

Front 53

How much care do you owe?

Back 53

Amount of care given by a REASONABLY PRUDENT PERSON ACTING UNDER SIMILAR CIRCUMSTANCES

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

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

Exception - If D has superior knowledge, then the standard is RPP with that superior knowledge (two kinds):
1. Expertise
2. Possession of a nugget of relevant fact

Front 54

What is the duty of care of a child?

Back 54

Children under 4 are incapable of negligence

Kids 4-18: owe the duty of care of a hypothetical child of similar age, experience, and intelligence acting under similar circumstances
**Subjective standard – changes from one kid to the next

Front 55

What is the exception for the duty of care of a child?

Back 55

If a child engaged in adult activity, it’s a regular RPP standard – Adult activity is ALWAYS operating a vehicle with a motor

Front 56

What is the duty standard for professionals?

Back 56

Professionals are people who render services to the public, have special skills or training, and are licensed by the state (doctors, lawyers, dentists, etc.)

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

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

**Custom of the profession sets the standard

Front 57

What is the modified locality test?

Back 57

Compare a big city doctor with other big city doctors, small town doctors with other small town doctors.

Front 58

What is the duty of medical professionals regarding informed consent?

Back 58

They have a duty to explain risks to patient prior ro doing the procedure.

There’s no duty if:
1. Risk is commonly known
2. If patient declines info
3. If patient is incompetent
4. If disclosure would be harmful to the patient

Front 59

What is the duty to an undiscovered trespasser?

Back 59

Owed NO DUTY at all, doesn’t matter how you got hurt

**ALWAYS loses, deny him recovery because he is an UNFORESEEABLE victim

Front 60

What duty does a land occupier owe to a discovered or known trespasser?

Back 60

Includes not only trespassors the occupier knows about, but also those who should be anticipated

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

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

**”Occupiers must protect discovered trespassers from known, man-made death traps on the land”

Front 61

What duty does a land occupier owe to a licencee?

Back 61

Licensee is someone who enters land with permission primarily for his own purposes – social guest

Standard: Activities – plain vanilla RPP standard;

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

**“Duty to protect from all known conditions”

Front 62

What duty does a land occupier owe to an invitee?

Back 62

Activities: RPP, plain vanilla

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

**“Occupier has duty to protect invitee from all reasonably knowable traps in the land”

Front 63

Does New York follow the categorical approach to land occupier's duty?

Back 63

No. Use a general standard or reasonable prudence in the circumstances

**In discussing whether its reasonable in essay, RPP will use more effort to protect invited guests than trespassors (and probably EVEN MORE effort for land that’s open to the public)

Front 64

What duty is owed to child trespassers?

Back 64

Land occupier owes a child trespassor a RPP to protect from artificial conditions on the land – higher standard

Have to think about how likely it is that kids will trespass
- If there’s something that is appealing to kids, then likely kids will trespass

Front 65

What can the land occupier do when he owes a duty to protect from a condition on the land?

Back 65

1. Fix the problem
2. Give a warning – satisfy the duty and eliminate the danger
** once a warning is given, entrant has duty to protect himself – most common situation is wet floor signs

Front 66

When can a plaintiff borrow a statute to show negligence per se?

Back 66

1. When P can demonstrate he’s a member of a class of persons the statute seeks to protect

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

”Class of persons, class of risk” standard

Front 67

What are the exceptions to borrowing statute for negligence per se?

Back 67

1. If compliance is more dangerous than violation – hitting a kid with your car versus swerving into the other lane.
2. If compliance is impossible, don’t borrow

Front 68

When is there a duty to act affirmatively?

Back 68

Usually, there is no duty.

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

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

**If you take on a duty to rescue, you have to complete it – held liable if you botch or abandon the rescue

Front 69

What must a plaintiff show for negligent infliction of emotional distress?

Back 69

1. That D committed negligence 2. That even though he didn’t suffer a trauma, he almost did because he was in the “zone of danger” - near miss or close call
3. That he suffered subsequent physical manifestations as a result of the distress

Front 70

What is the standard in NY for negligent infliction of emotional distress?

Back 70

In order to claim, you must be PRESENT and you must WITNESS the injury of a CLOSE RELATIVE

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

**Pregnant mother who is victim of medical malpractice can recover if the negligence results in a still birth – mother has bystander claim

Front 71

What must be identified to show a breach of duty?

Back 71

Wrongful conduct AND why its wrongful

The WHAT and the WHY.

Front 72

What must the plaintiff show by way of substitute for showing D's wrongful conduct (res ipsa)?

Back 72

1. That the accident that occurred doesn’t normally occur in absence of negligence.
2. That the accident that occurred is normally due to negligence of someone in D’s position

Front 73

What are the two types of causation that must be shown?

Back 73

Factual and proximate causastion.

Front 74

What is factual causation and what must be shown to prove it?

Back 74

P’s obligation to show a link between the breach and the injury suffered

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

**D is free to rebut the factual element by using “even if” form – will argue “even if I was careful, you still would have been injured.”

Front 75

What is the rule for the Mingled Cause case?

Back 75

Don’t use BUT FOR test, but use “SUBSTANTIAL FACTOR” TEST

Ask: did each D’s actions result in the damage or injury? If yes, then hold them both jointly liable for the damage or injury.

Front 76

What is the rule for the Unascertainable Cause case?

Back 76

In these cases, we shift the burden of proof to the D’s – they would each have the burden to show that, more likely than not, it WASN’T his actions that caused the injury (the hunting pellet case)

**If neither of them can prove it, then they both are jointly liable.

Front 77

What is legal or proximate cause?

Back 77

If it’s FAIR to hold D liable

- Foreseeability is the measuring stick – make people pay for foreseeable consequences of their actions
- Two Categories of these types of questions:
1. Direct Cause - D commits breach, P suffers an injury – consequences are almost always foreseeable, and almost always the D’s breach is the cause
2. Indirect Cause Questions – D acts, stuff happens in the middle, and P later gets injured

Front 78

What are the four well settled indirect questions?

Back 78

1. Intervening Medical Negligence
2. Intervening Negligent Rescue
3. Intervening Protection or Reaction Forces
4. Subsequent Accident or Disease

Front 79

What is the rule for Intervening Medical Negligence?

Back 79

D runs red light, breaks P’s leg, P goes to hospital where doctor puts too tight cast on P’s leg, he gets gangrine, and they amputate his leg
1. D is liable for the amputated leg, as well as any other injuries P suffered
2. If D thrusts someone into medical system, its foreseeable that a doctor could make things worse

**NOTE: Doctor who put on bad cast is also liable – joint liability between D and Doctor

Front 80

What is the rule for Intervening Negligent Rescue?

Back 80

If rescuer injures P while rescuing P from peril caused by D’s negligence, D is liable for rescuer’s negligent rescue.

Front 81

What is the rule for Intervening Protection or Reaction Forces?

Back 81

1. D hits pedestrian in busy cross-walk – other pedestrians flee, and one of them steps on P’s face
2. D is liable for injury from both the hitting with the car and the stepping on the face

Front 82

What is the rule for Subsequent Accident or Disease?

Back 82

If D hits P, breaks P’s leg, but later P falls on his crutches and breaks his arm, D is liable for the broken leg and the broken arm

Front 83

What is the eggshell skull doctrine?

Back 83

Says that once D has committed other elements of tort, D must pay for ALL harm suffered by P, even if harm is surprisingly large in scope

**Take P as you find P (not limited to negligence)

Front 84

Does NY follow the collateral source rule?

Back 84

No. In NY, amounts of damage will be reduced by any sum you receive from other sources.

If you get a $300K damage award, but you already got $20K from insurance, then you are only entitled to $280K

Front 85

What is an injunction?

Back 85

Its an order to do or refrain from doing something

1. Negative injunction – prevents you from doing something
2. Mandatory injunction – requires that you do something

Front 86

What must be shown for a permanent injunction to issue?

Back 86

First, must show liability on the part of the D.

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

Front 87

What are the defenses to injunctive relief?

Back 87

1. Unclean hands – that P is guilty of some kind of misdeed or wrongfulness

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

3. First Amendment – if what you’re trying to enjoin is a defamation or privacy tort, you won’t get it because it’s considered a prior restraint.

Front 88

What are the affirmative defenses to negligence?

Back 88

Only One – majority and NY rule: Comparative Negligence (or comparative fault)

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

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

- We will reduce the P’s recovery accordingly

Front 89

What are the two kinds of comparative negligence?

Back 89

1. Pure Comparative – goes by jury numbers no matter what the jury numbers are – NY follows this rule – if P is 95% liable for his own injuries, we will still give P 5% of the damages.

2. Modified or Partial Comparative Fault – P’s fault under 50% = P will still recover; P’s fault over 50% = recovery barred.

Front 90

What are the rules for injuries caused by animals?

Back 90

1. Domesticated Animals (dog bite)
a. Rule: not strictly liable for dog bites – can only be held liable if P can show some negligence
b. EXCEPTION – if you know the animal has vicious propensities, you will be held strictly liable - If the dog has previously bitten someone, you are on notice

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

3. Wild Animals – strict liability with NO EXCEPTIONS (safety precautions irrelevant)

Front 91

What are the rules for Ultra Hazardous Activities?

Back 91

Strictly liable for the activity
There are three attributes:
1. Activity can’t be made safe – lack technology to eliminate risk
2. Activity poses a risk of severe harm
3. Activity is uncommon in the community where it’s being conducted

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

**Safety precautions are irrelevant, despite utmost precaution

Front 92

What are the elements of a strict products liability cause of action?

Back 92

1. D must be a merchant.
2. P has to show that the product has a defect.
3. P has to show the defect existed when product left D’s hands
4. P has to show he was a foreseeable user making a foreseeable use of the product

Front 93

What is a merchant for strict liability purposes?

Back 93

Someone who deals in goods of this type

Can be asked in one of four ways:
1. Casual seller – not a merchant – not held strictly liable
2. Service Provider – not a merchant of goods of this kind – goods are incidentally available
3. Commercial Lessor – is a merchant, so can be held strictly liable – ex. rental car company
4. D need not be the merchant with whom P dealt with directly – just a merchant in the chain of distribution

Front 94

What are the two kinds of product defects for strict liability?

Back 94

Manufacturing defect and design defect

Front 95

What is a manufacturing defect for strict products liability?

Back 95

It differs from all others that came off the same assembly line in a way that makes it more dangerous than a common consumer would expect

No defense that manufacturer took utmost care

Front 96

What is a design defect for strict products liability?

Back 96

P identifies an alternative way that it might be built – a hypothetical alternative design (HAD)

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

Information can and should be part of the design (means warnings and instructions)
1. If product has residual risk that can’t be designed away & is not apparent to users, must be a warning
2. Selling such a product without a warning is selling a defective product
3. Warning must be effective

Front 97

What must a P prove in order to show the defect existed when product left D’s hands for strict products liability?

Back 97

P has to show product hasn’t been altered

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

Proof of alteration becomes an affirmative defense

Front 98

What must a P prove in order to show he was a foreseeable user making a foreseeable use of the product in a strict liability case?

Back 98

Not limited to intended uses – mere misuse will not defeat recovery

Not whether use was intended, but whether use was foreseeable

Front 99

What are the defenses to the strict liability situations?

Back 99

1. In NY and majority, use comparative fault just like regular negligence

2.If P does something that’s a foolish failure to take his own safety into consideration, we will reduce P’s damages

Front 100

What is nuisance?

Back 100

An interference with P’s ability to enjoy land to an unreasonable degree

Involves incompatible land use – two parcels adjacent to each other

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

**Only test: Courts endeavor to balance the interest between the two parties
- D has legal right to use land to maximize his enjoyment or profits, as long as it doesn’t overcome P’s rights to enjoy his land

Front 101

When will employer be vicariously liable to torts of employee?

Back 101

If the employee was acting within the scope of his employment

General rule: intentional torts are outside the scope of employment
- Exceptions:
1. Where job involves use of physical force (security guard, bouncer)
2. If job invites violent confrontation (debt collector or repo man)
3. Anytime its done to serve employer’s interests, no matter how misguided

Front 102

When is a hiring party vicariously liable for the torts of its independent contractor (IC)?

Back 102

No vicarious liability – hiring party not liable for torts of IC

**Exception – if land occupier has IC working on the premises and IC injures invitees, then hiring party is vicariously liable

Front 103

When is the owner of a car vicariously liable for the torts of the driver?

Back 103

General Rule: owner not liable

**Exception: if driver is doing an errand for the owner, then driver is an agent – owner is vicariously liable for torts committed by his agent (driver)

Front 104

What is the New York rule for vicarious liability of owners of vehicles?

Back 104

Follows permissive use doctrine

1. Owner of car IS vicariously liable for torts of anyone driving with permission
2. Presumption that anyone driving HAD permission
3. Companies that rent or lease vehicles cannot be held liable for torts of lessors – exception

Front 105

When is a parent vicariously liable for the torts of his child?

Back 105

No vicarious liability and no exceptions

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

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

**Look to see if there’s any other theory of liability first before looking to vicarious

Front 106

What immunities are available for torts?

Back 106

Only one left is governmental immunity
1. When government officials exercise discretion in traditional government activities, there’s immunity – police giving someone police protection
2. When government engages in proprietary functions, like a business, then no immunity

Front 107

When can an uninjured spouse sue for loss of consortium?

Back 107

When victim of a tort is a married person (not cohabiting, not long term relationship), uninjured spouse also gets cause of action

Uninjured spouse can sue for 3 kinds of damages:
1. Loss of Services – no one to cook meals, no one to mow lawn, may have to hire someone to do those things
2. Loss of Society – because the spouse is injured, has no one to talk to
3. Loss of Sex – not getting laid, might as well get paid

Front 108

How does Worker's Compensation operate?

Back 108

Employer is essentially strictly liable, but the compensation is paid by the insurance company
1. Employer and coworkers are immune from suit – no tort litigation
2. Employee can’t get pain & suffering or punitive damages
3. Doesn’t matter if employee is at fault, don’t have to go through costs of litigation

Front 109

Who is covered by Worker's Compensation?

Back 109

Employee is covered, but Independent Contractors are not covered

Three narrow categories of employees that are outside worker’s compensation scheme:
1. Teachers & non-manual laborers who work for non-profits
2. Part-time domestic or household employees – babysitters, lawn mowers
3. Clergy

Front 110

What is covered by Worker's Comp?

Back 110

Not covered:
1. Injury due SOLELY to intoxication of employee
2. If employee either intentionally harms himself or employee intentionally harms someone else – can’t intentionally get benefits of worker’s comp
3. If the injury occurs during the course of a voluntary, off-duty athletic event
4. Partly not covered: Horseplay – depends on nature of the horseplay (courts allow some horseplay on the job, but not outrageous horseplay

**Illegal Acts are covered – not outside scope of employment

Front 111

Who can an employee covered by Worker's Comp sue in tort?

Back 111

Anyone but the boss or a co-worker who may have caused the injury.

Front 112

What is No-Fault Insurance?

Back 112

System designed to divert minor car accidents form the tort system - Injured parties go to the insurance company to get compensation for their injuries

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

**Only applies to personal injuries, not property damage

Front 113

Who is covered by no-fault insurance?

Back 113

Anyone injured by a covered vehicle has a claim against owner’s insurance policy – passengers, pedestrians, other drivers

Barred from no-fault claim:
a. Drunk Drivers
b. Drag Racers
c. Car Thieves
d. Fleeing Felons

Front 114

When can you get out of no-fault insurance coverage and litigate in tort?

Back 114

1. Serious Injury or
2. More than basic economic loss (BEL is limited to $50K)

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

If its more than $50K, then can sue outside of no-fault

Front 115

What qualifies as a serious injury for no-fault insurance purposes?

Back 115

1. Death as a result of the accident
2. Dismemberment – loss of a limb
3. Disfigurement
4. Total or permanent loss of an organ or bodily function