Glossary of NY Bar Exam Review - Torts
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- What are the genral points to remember about intentional torts?
- 1) The extreme sensitivity of a P is never taken into account in deciding if P has satisfied the elemtns of a claim. Always assume that P is a reasonable or normal person;
2) There are no incapacity defenses in intentional torts. Every D is capable of being held liable if they have committed the tort(e.g., a drunk can commit a battery; a five year old can commit false imprisonment)
- What are the intentional torts?
- ABC FITT
4) False imprisonment;
5) Intentional Infliction of Emotional Distress;
6) Trespass to Land;
7) Trespass to Chattel.
- What are the elements of battery?
- 1) D must make a harmful or offensive contact;
2) With the P's person.
- What does harmful or offensive mean?
- Harmful touching is almost never tested.
For offensive, substitute the word, "unpermitted" but bear in mind that the extreme or hypersensitivity of a particular P is not relevant. Conduct is offensive if it is not permitted by average, normal people.
- What does "with the P's person" include?
- Includes anything connected to P; not limited to P's flesh. E.g., your purse, your dog on a leash, a horse you are riding.
- Must battery result in instantaneous harm to be actionable?
- No. If I poison your lunch at 9am and you eat it at 12 and get sick, that's battery. The contact is b/t the poisoned food and your mouth.
- What are the elements of assault?
- 1) D must put P in apprehension;
2) Of an immediate battery.
- What does apprehension mean?
- Does NOT mean fear; it means knowledge.
- Where D threatens P with a gun, but can't consummate the attack b/c the gun is unloaded, is an assault?
- Whether it is an assault turns on what P knows:
1) If P knows the gun is unloaded, then he knows he can't be touched and so it can't be an assault - deny recovery;
2) But, if P doesn't know one way or the other - ignorant as to whether gun is loaded, a reasonable person would think it is likely that the gun IS loaded and therefore it's an actionable assault.
- What does the immediacy requirement mean?
- Words alone lack immediacy, so a pure verbal threat is not an assault. Must have some overt conduct to create the immediate threat. Typically, will be display of weapon, but has to be some conduct.
- What can negate immediacy?
- Even when you have threatening conduct, you have to look at the accomopmanying speech if any because D's words can negate immeddiacy that could otherwise be present in the threatening behavior (e.g.,conditional words and words in the future tense).
- What are the elements of false imprisonment?
- 1) D must commit an act of restraint; and
2) There must be confinement in a bounded area
- What are the rules for acts of restraint?
- 1) Threats are sufficient but must be such as to affect a reasonable person
2) An act of restraint includes an omission if D owed P some preexisting obligation (e.g. disabled person on plane, and on arrival airline EEs don't get the wheelchair for im so he can get off the plane);
3) Act of restraint is only legally valid to establish liability if P either knows of it or is harmed by it.
- What is the rule with respect to keeping someone out of a given area?
- This is NOT false imprisonmenet - have to lock them in, not keep them out.
- What is the rule with respect to means of escape?
- If there is a means of escape, it does not destroy the claim UNLESS it is a reasonable means of escape AND it can be reasonably discovered. If there is a reasonable escape and if it can be discovered, then it defeats the claim b/c you're not in a bounded area.
- What are the elements of intentional infliction of emotional distress?
- 1) Outrageous conduct by D;
2) Resulting in a severe emotional distress suffered by P.
- What is the standard for outrageous conduct?
- 1) Has to do with the deliberate method emplloyed to achieve the result of distress;
2) Conduct is outrageous if it exceeds all bounds offdecency tolerated in a civilized society. (state this on essay answer)
*Note: NY courts are very reluctant to uphold these claims
- What is NOT outrageous conduct?
- Mere insults are NOT outrageous.
- What are the hallmarks of outrageousness?
- 1) Where the conduct in question is continuous or repetitive (course of conduct as opposed to isolated incident) (e.g. bill collector harassing w/ phone call one night - probably not, but if it's every night for a month, much more likely);
2) Where D is a common carrier (transportation company) or an innkeeper (hotel). These businesses are charged with a high standard of treatment to their guests, so they can more easily be charged with outrageous behavior;
3) P is a member of a fragile class of persons: a) children; 2) elderly; 3) pregnant women.
- What is never taken into account in determining outrageousness?
- Hypersensitivity is never taken into account. Behavior is not made outrageous by the hypersensitivity UNLESS D knew about it and targeted it with the outrageous behavior.
- What is required to meet the severe emotional distress element?
- 1) Does NOT require evidence that P has sought the care of a psychiatrist;
2) Just has to be severe and that's determined on a c ase by case basis - mild, fleeting distres is not severe.
- What is the special situation under ED?
- There is a separate tort of distress that you c an bring for mishandling of a corpse, but that's very unlikely to come up on the bar.
- What are the elements of trespass to land?
- 1) D must commit a physical invasion;
2) There must be "land"
- What is the intent requirement for trespass to land?
- Requires only that D got to these particular geogphical coordinates through a deliberate or conscious or purposeful act. There is no additional requirement that the D be aware that he is on someone else's land. Need not be knowingly acting in defiance of property interests. If you involuntarily end up on someone's land, e.g. by rding a disobedient horse, or you have a seizure and fall onto someon'es land, that doesn't count.
- How can you satisfy the physical invasion requierment?
- 1) Entry onto another's land; or
2) Project, propel, or throw tangible objects onto a nother's land.
- Are nonphysical invasions trespass?
- No. Light, sound, smells, are non-physical invasions and they are not trespass.
- What does P's "land" include?
- Not limited to the suface of the property - includes the air above and the soil below, but only out to a reasonable distance. P owns a three-dimensional column of space, not merely a two-dimensional square on the ground.
- What is personal property?
- Anything you own except land - your stuff.
- What types of invasion are covered by conversion and trespass to chattel?
- 1) D damages your personal property; or
2) D denies you possession of your personal property (robs it)
- What crimes do these torts correspond to?
- These torts are your private moneye damage remedy for vandalism and theft of personal property.
- What do trespass to chattel and conversion have in common and what is the distinction between them?
- Both deal with intentional invasion of personal property. The distinction b/t the two goes to the extent of harm. Where there is only slight, modest harm, the appropriate claim is trespass to chattels. Where we have significant or extensive harm, the appropriate claim is conversion.
- Why are there two torts for the same exact injury?
- In order to give the conversion P (victim) a special remedy - in conversion, you get the full value of the item, not merely the cost of repair or rental. In effect, a conversion fact pattern canbe treated as a forced sale at FMV.
- What is the special NY rule with respect to conversion?
- In NY, a good faith BFP for value of stolen merchandise is not considered a converter and you don't have a remedy against them.
- When is property abandoned?
- If the oridinal owner gives up possession with the intent to relinquish title and control. Mental state is usually inferred from the circumstances.
- What is the rule with respect to finders of abandoned property?
- Once property is abandoned, a finder who takes possession and who has the intent to acquire control becomes the new owner.
- What is lost property?
- Lost property involves a temporary parting with possession, but here there is no corresponding mental desire to give up title.
- What are the rights of the owner of lost property?
- The owner of lost property always continues to own it and has a right to get it back;
- What are the rights of the finder of lost property?
- 1) If theh property is worth less than $20, the finder must first make a reasonable effort to locate the owner, and then if finder is unsuccesssful after 1 year, can keep the property;
2) If the property is worth more than $20, finder must turn it in to the police. Police will hold it for a statutorily prescribed period. Then, if owner doesn't claim it, you can go back to police station and you can keep it.
- What is the rule with respect to gifts where donor changes mind and wants them back?
- If there was a valid, consummated gift, donee wins; if not, donor gets it back.
- What is an inter vivos gift?
- A gift made during the lifetime of the donor.
- What are the rquiements for a valid gift?
- 1) Donative intent;
2) Acceptance by the donee;
3) Valid delivery.
- What is required to establish donative intent?
- Some evidence, usually circumstantial, that the donor intended to pass title.
- What is required to establish acceptance by the donee?
- Silence is sufficient. Only problem is if donee says, "Oh, no, I couldn't accept such a valuable gift from you." then there's no acceptance.
- What is required for valid delivery?
- 1) Not necessary that actual item be transferred, if something representative of it is - e.g., keys or title for auto;
- What are the special delivery circumstances?
- 1) First party checks are only delivered when the check is cashed/negotiated;
2) Third party checks are delivered the minute the paper is turned over (b/c the donor cannot stop payment on the check);
3) Stock certificates are delivered the minute they're physically delivered to the donee - don't have to wait for entries to be made on corporate books;
4) Cases where agents are injected into the facts: If gift is in the hands of the agent of the donor, it is not yet delivered. But, if the gift makes it to the hands of the recipient's agent, that constitutes delivery. If there's ambiguity about who the agent works for (e.g. UPS agent), the default is that he is the donor's agent, and so the donor can recall the gift.
- What is a lien?
- Simply a collateralized right to retain and continue to hold personal property. They arise when the possessor has improved or enhanced the value and is entitled to payment for services rendered. That party may continue to hold the object as secutity for paymetn until he gets paid.
- What is an example?
- A garage mechanic can hold car until you pay him.
- What are the elemetns of a lien?
- 1) A debt that has arisen as a result of services performed;
2) The debtor has title to the property;
3) The creditor has possession of the property.
- What are hte two types of liens?
- 1) General lien
2) Special lien
- What is a general lien?
- Granted to someone like an agent who has a bunch of property he's entiteld to hold for a general balance due.
- What is the rule for general liens?
- With a general lien, releasing some property does not release the lien on the rest of the items.
- What is a special lien?
- A lien that attaches to one unique item that has had one particular service performed on it.
- What is the rule for a special lien?
- With a special lien, if they give up physical possession, they no longer have a lien on the item - you can sell it free and clear.
- What is a bailment?
- When someone takes temporary custody of a piece of property - you want them to have possession for a temporary period of time and for a specific puropse (e.g. checking your coat at a restaurant)
- What is the rule with respect to things inside things?
- If the stuff is normally contained within the thing loaned, then there's a bailment as to that stuff too; if not, then there's not.
- What are the special bailment cases to be aware of?
- 1) Safe deposit boxes - exception to the rule in the sense that the bank is a bailee of everything in your safe deposit box even if they have no idea what's in there;
2) Parking lots - only are considered bailees if you hand over your keys; of it's a park and lock, it's not a bailment; all you're doing is renting a little piece of real estate;
3) Coat checks - a bailment is created, but the liability of the establishment is limited by statute.
- What are the affirmative defenses to the intentional torts?
- 1) Consent;
2) Self-defense, defense of others, defense of property (known collectively as the protective privileges);
- To what intentional torts is consent a defense?
- Consent is a defense to all of the intentional torts.
- What is the threshold issue for consent?
- P must have capacity (must be sane, sober adult)
- What are the two types of consent?
- 1) Express consent (words in quote markd giving D permission to act in a certain way);
2) Implied consent
- When is express consent not legally valid?
- If given as a result of duress or fraud (e.g., one night stand gone bad - STD transmitted through consensual sex. If P consented, but at the time was unaware that D had an STD, consent is void. Leaving out the fact of the STD is a form of fraud).
- What can implied consent be based on?
- 1) Custom or usuage
2) D's reasonable interpretation of P's objective conduct
- What is the rule with respect to implied consent based on custom or usage?
- P goes to a place or engages in an activity where routine invasions are typical. If P does it voluntarily, he consents to invasions that are typical (e.g., sports; no trespass if you own retail store; getting shoved on subway)
- What is the exception to implied consent in sports?
- You consent to everything that routinely happens in the game - whether it violates or conforms to the rules. It may be agasint the rules, but if it's typical in the game, you've consented to it. If it is not typical in the game, you have not consented to it.
- What is the rule for implied consent based on D's reasonable interpretation of P's objective conduct?
- Up to the jury to determine whether or not he was reasonable; up to the judge to determine whether or not to send it to the jury. Subjective thoughts of P are irrelevant - only objective observable facts are relevant.
- What is the rule with respect to scope of consent?
- Whether express or implied, consent always has a scope, and if D exceeds the scope of consent, he is liable (e.g., doctor who extends operation to completely unrelated part of body).
- What must D demonstrate to establish a protective privilege affirmative defense?
- 1) Proper timing (imminent or in progress threat only; no revenge);
2) A reasonable belief that the threat is genuine
- What is the standard for reasonable belief that the threat is genuine?
- 1) A reasonable mistake will not destroy the privilege; must act in good faith, but don't have to be perfectly accurate.
- What is the rule with respect to shopkeepers and defense of property/
- Shopkeepers have a right to protect their property that allows them to create small false imprisonments to investigate shoplifters. If they make a reasoanble mistake, and you sue for false imprisonment, they will assert defense by saying that they had a reasonable belief. Jury will have to decide whether it's reasoanble, but if it is they will have a defense.
- What is hte rule with respect to scope of protective privilege?
- There is a limited scope. Once you have the protective privilege, D must limit himself to the force necessary under the circumstances (rule of symmetry). Can only use deadly force if the situation is life-threatening. Can NEVER use deadly force to protect property only.
- What is the special rule in NY with respect to self-defense?
- There is a duty to retreat in NY before using deadly force; however, the rule of retreat does not apply in your own home.
- To what intentional torts is necessity a defense/
- Necessity is only a defense to trespass to land, trespass to chattel, and conversion.
- What are the types of necessity?
- 1) Public necessity;
2) Private necessity;
- What is public necessity?
- Arises when D invades P's property in an emergency to protect the community as a whole or a significant group of people. The property in question can be real or personal.
- What is the rule for public necessessity?
- Public necessity is an absolute defense - D under these circumstnaces doesn't pay any damages. E.g. you shoot a rapid dog chasing a group of children.
- What is private necessity?
- When D invades P's property in an emergency to just protect an interest of his own. D is acting understandably - we don't morally condemn him - but he is acting selfishly.
- What is the rule of private necessity?
- Private necessity is a limited defense.
1) D is on the hook for actual damages, but P can't get nominal damages where there are no actual damages;
2) D will not have to pay punitive damages;
3) D has a privilege to remain on P's land in a position of safety as long as the emergency continues (sanctuary).
- What happens if the landowner violates the D's sanctuary privilege, i.e., makes him leave while the emergency is still ongoing?
- If landowner chases a trespasser in an emergency off the land while the emergency continues and the trespasser is harmed by the situation causing the emergency, he actually has a claim against the landowner.
- What is private necessity analogous to?
- Like a private, temporary eminent domain right.
- What are the elements of defamation?
- 1) Defamatory
3) by D
4) that specifically identifies P (note: P must alive; can't defame a dead person);
5) Must be publication of statement;
6) Must show damages (maybe)
- What is the statement requirement?
- Statement can be either oral or written.
- What is the defamatory requirement?
- Something is defamatory if it tends to adversely affect your reputation (almost a property tort in that it proceeds on the notion that all of us have an asset in our reputation and defamation damages that asset).
- What are the guildelines for defamation requirement?
- 1) Mere name-calling is not classified as defamatory;
2) Core type of defamation statement; allegation of fact that reflects negatively on a trait of character;
3) Between two extremes - statements of opinion. Can be defamatory if a listener would assume that the speaker has a factual basis for the opinon.
- what is the rule with respect to opinions in NY?
- NY courts have used a formula - with opinion statements, it can be considered defamatory depending on its tone, purpose, and context.
- What is the publication requriement?
- 1) Publication requires only that the defamatory statement be exposed to a minimum of one person other than the P himself.
2) The more people D tells, the higher the damages, but in terms of getting to the jury, you only need to tell one person beyond P;
3) Inadvertent publication is also actionable.
- What is the rule with respect to damages?
- Damages don't have to be proved by every single defamation P - some have to show it some don't.
1) Libel P doesn't have to show damages;
2) Slander P does have to show damages (economic harm) unless it's slander per se, in which case, P doesn't have to show damages.
- What is libel?
- Has been embodied in a permanent form (usually written down, but can also be recorded on video, etc.)
- What is slander?
- Two categories:
1) Spoken defamation (must show damages)
2) Slander per se (don't have to show damages)
- What is slander per se?
- Oral statements that are considered so damaging to the reputation, that we treat them like libel and don't require a damage showing.
- What are the types of slander per se?
- 1) Statement by D concerning P's business or profession;
2) Statement that P has committed a crime of moral turpitude;
3) Statement imputing on chastity to a woman (doesn't have to be any suggestion of promiscuity - any suggestion of sex before marriage is imputing on chastity);
4) Imputation of a loathsome disease (either leprosy or venereal disease).
- What are the types of slander per se in NY?
- Same as on MBE plus imputation of homosexuality to someone
- Where you do not have slander per se, what is the damage requirement?
- Must show economic harm. Must show that becuase of what was said about you to others, you, e.g., lost your job, or people are not patronizing your business, etc. Social harm does not count.
- What are the affirmative defenses to defamation?
- 1) Consent;
- What is the rule with respect to consent?
- Same as defense to intentional torts (can be express or implied; have to stay within scope of consent)
- What is the rule with respect to the affirmative defense of truth?
- D who's been sued for defamation - libel or slander - can always show that what he said or wrote is true and avoid liability. BUT, if you say something not true - even if you conducted a reasonable investigation and made a reasoanble mistake as to its truth, you are still liable. It's sort of a strict liability tort in this way.
- What are the types of privilege?
- 1) Absolute privilege
2) Qualified privilege
- What is an absolute privilege?
- Based on status or identity of D speaker - 2 statuses that will confer:
2) Government officers carrying out official duties.
- What is the most important appication of the government officer privilege?
- In the judicial branch; attorneys get the privilege for statements/writings in the course of a lawsuit.
- What is a qualified privilege?
- Exists in socially useful context for the speech being challenged. E.g., in a letter of recommendation, job reference; credit referense; statements made to police if they're investigating something.
- What is the rule where a qualified privilege exists?
- If you limit yourself to things that are relevant, you will not be held for defamation in connection with a reasonable mistake of fact. However, if you deliberately spread lies - know the information is false and you choose to say it or write it anyway - you loose the privilege. Also, if you inject irrelvancies into the conversation, you lose the privilege.
- When are P's required to bring a 1st Amendment defamation suit instead of regular?
- When the subject matter of the statement is of public concern (includes where P is public official or figure)
- What additional elements must be shown in a 1st Amendment defamation action?
- 1) Falsity;
- What must P show for falsity element?
- P must show that falsity is affirmatively innaccurate shifts burden of proof on this issue from D to P
- What must P show for fault element?
- 1) If P is a public figure, P must prove that the statement was made with knowledge of falsity or with reckless disregard as to whether the statement was true or false;
2) A private P need only prove mere negligence;
NOTE: No one in a first A defamation actions will be able to recover where D acted reasoanbly and made a reasonable mistake.
- What are the privacy torts?
- 1) Appropriation;
3) False Light;
- What is the definition of appropriation?
- D uses P's name or picture for commercial advantage.
- What is the exception to appropration?
- Tort is subject to a newsworthiness exception. Where the picture is newsworthy, there's no action for it.
- What are the three core violations ?
- Here, you always have liability and newsworthiness exception doesn't apply.
2) Advertising; or
3) As a trademark.
- What is the rule of privacy torts in NY?
- Appropriation is the ONLY privacy tort recognized in NY - statutory claim, not under common law. And, it's very difficult to recover even on this tort - NY is not very enthusiastic about privacy torts.
- What is the definition of intrusion?
- Invasion by D of P's solitude in a way objectionable to the average person.
- What are examples of intrusion?
- 1) Wiretapping;
2) Other forms of electronic surveillance;
3) Covert videotaping;
4) Other kinds of monitoring of movement or behavior in your private space; and
5) Low tech equivalents (eavesdropping and peeping toms)
- What should you be careful of with intrusion?
- 1) P must be in a place where there's an expectation of privacy.
2) Tort does NOT require a trespass - do not have to enter or come onto P's land for an intrusion to have occurred.
- What is false light?
- Requires the widespread dissemination of a major misrepresentation about P that would be objectionable to the average person.
- What distinguishes false light from defamation?
- 1) Widespread dissemination (have to tell a lot of people). Defamation, you only have to tell one person.
2) The misrepresentation can be, but does not have to be, defamatory. The substantive statement encompassed by false light is broader than the substantive statemetn encompassed by defamation. It can be defamatory, but it doesn't have to be (e.g., can be a statement that mischaracterizes P's beliefs).
- Must D be aware that the statement is false for a false light action?
- No. This is not an intentional tort. There is no requirement that D be aware that the statement is false - strict liability. You run your mouth at your peril.
- What is disclosure?
- The widespread dissemination of confidential information about the P that is objectionable to the average person. This tort deals with TRUE information, which distinguishes it from false light and defamation. It is intimate, and confidential, and D is exposing it to the world.
- What are examples?
- 1) Academic information;
2) Financial information;
3) Medical information;
- What are the exam tricks to watch out for under disclosure?
- 1) Newsworthy Exception;
2) Dual life question.
- What is the newsworthy exception?
- If the media gets confidential information about someone in the news, they can publish it - this exception is interpreted VERY broadly.
- What is the dual life question?
- Scenario where P operates in two spheres of society and they're both reasonably public spheres. But, P is trying to keep them separated from each other. D will carry information from one of thes areas to the others. This is not actionable b/c the underlying information is not actionable. Ex: is where gay person is out everywhere but work, attends a pro-gay rally, and someone tells everyone at work that they saw him there. Not actionable.
- What are the affirmative defenses to the privacy torts?
- 1) Consent;
2) Absolute and Qualified Privileges
- What privacy torts is consent a defense to?
- Consent is a defense to all four privacy torts.
- What privacy torts are absolute and qualified privileges a defense to ?
- Available as defesnes to false light and disclosure.
- What are the elements of fraud?
- 1) Affirmative misrepresentation (silence is not enough - no duty to share information);
2) Scienter (intent - D has to know that misrepresentation is false)
3) D must intend to induce reliance (can think of this as a materiality requirement);
4) Must be justifiable reliance;
- What qualifies as justifiable reliance?
- 1) It's always justifiable to rely on an assertion of fact;
2) If it's an opinion, it's also justifiable to rely on it if D has superior skill in the subject matter.
- What special economic tort is available in NY?
- Prima facie tort?
- What is athe definition of a prima facie tort?
- Deliberate infliction of unjustified pecuniary harm
- What are the elements of a prima facie tort?
- 1) D intends to do harm;
- Is this tort recognized in most states?
- No. Minority doctrine.
- What is an example of a prima facie tort?
- Deliberately selling products at low cost to drive a rival out of business. But note, the harm has to be unjustified. Normal, fair competition is not actionable.
- What are the elements of inducting breach of K?
- 1) Valid K existing b/t P and a third party (can't be terminable at will);
2) D knows that K is in existence;
3) D persuades promisee to back out of the bargain;
4) Third party in fact breaches
- What can persuasion consist of?
- 1) Offering a better deal or
2) Other kind of persuasion, e.g., through a lie.
- What is an affirmative defense to inducing breach of contract?
- Privilege - certain parties are privileged to induce breach of K. Generally, that is where there is a special relationship b/t D and a promisee. Ex. are people in an advisory position - counselors, trusted people, lawyers, accountants, parents, etc.
- What are the IP torts?
- 1) Theft of trade secret;
2) Trademark infringement;
3) Copyright infringement;
4) Patent infringement.
- To whom do you owe a duty of care?
- 1) You owe a duty of care to foreseeable victims.
2) You do NOT owe a duty of care to unforeseeable victims.
- How can you identify an unforeseeable victim?
- Those not within the zone of danger.
Palsgraff; the rape victim dragged into building with broken door (unforeseeable victim of landlord who didn't maintain the door); the "where the hell did you come from P"
- What are the exceptions to the Palsgraff rule?
- 1) Rescuers;
- What is the rule for rescuers?
- Rescuers are always owed a duty and always safe from being thrown out of court on the Palsgraff argument. They have to sustain a foreseeable type of harm, but their status as parties who began the story very far away will not deny the recovery.
- What is the rule for fetuses?
- 1) In NY, if fetus is born alive with injuries, it has a cause of action and it is a good P notwithstanding Palsgraff.
2) But, in NY, if it is a still birth/miscarriage, then there is no separate claim for wrongful death. The mother only will have a claim.
3) In NY, where doctor misdiagnoses a birth defect, you can recover the costs of caring for that child, but not any emotional distress damages.
4) In NY, where doctor messes up a sterilization procedure, there is no recovery for that b/c NY courts have reasoned that the joy/benefit outweighs any possible negatives.
- What is the general standard of care?
- The care of a reasonably prudent person acting under similar circumstances.
- What should you keep in mind about the reasonably prudent person standard?
- 1) Don't ignore the acting under similar circumstnaces prong of the standard.
2) Compare RPP to D and don't make any allowances for individual characteristics of D. It is inflexible and objective and ends up being pretty harsh.
- What types of characteristics of D may not be considered under the RPP standard?
- 1) Stupidity;
2) Mental retardation;
3) Mental illness;
- What types of characteristics of D WILL be considered under RPP standard?
- 1) If D has superior knowledge, that superior knowledge will be considered. It becomes a standard of a RPP with the same superior knowledge.
2) We will take into account the physical characteristics of the D if they're relevant (e.g., if the D is blind, the standard is a RPP who is blind).
- In what situations will the general RPP standard NOT apply?
- 1) Where D is a child under age 4;
2) Where D is a child b/t ages of 5 and 18;
3) Where D is a professional;
4) Where D is an occupier of real estate;
5) Where there is a statutory standard of care
- What is the standard of care for children under the age of 4?
- Children under age 4 are incapable of negligence - they owe the rest of us NO duty.
- What is the standard of care for children b/t ages 5 and 18?
- Children b/t ages of 5 and 18 are supposed to exercise care of a hypothetical child of the same age, experience, and intelligence acting under similar circumstances.
Exact opposite of the general RPP standard - incredibly subjective and extremely lenient to Ds.
- What is the exception to the applicable standard of care for children?
- If a child is engaging in an adult activity, we do not use the special child standard of care; we instead use the general RPP standard.
- What is an adult activity?
- Generally, operating a motor vehicle - car, tractor, power, boat, jet sk, snowmobile.
- What is the standard of care for professionals?
- Professionals owe the care of the average member of their profession practicing in a simlar community. The standard instructs us to compare the D with his real world colleagues. It's neither objective nor subjective - it's empirical (factually based). Custom of profession is standard of care.
- Who are professionals?
- Professionals are people who have special skills and training and provide services to the public. Often they are licensed. Examples include engineers, architacts, CPAs, lawyers. It will be a doctor most of the time.
- Is the standard custom of the profession determined locally or nationally?
- Locally, EXCEPT with regard to specialists. Specialists are compared to other specialists of the same type nationwide.
- What other duty is imposed on physicians?
- Obligation of information with medical patients - usually labeled informed consent. Doctur has a duty to explain the risks of medical procedure to the patient. Failure to do so will enable P to bring negligence claim if those risks materialize.
- What are the exceptions to the duty of informed consent?
- 1) No duty to disclose commonly known risks;
2) No disclosure duty if patient declines the information;
3) No duty where patient is incompetent;
4) No disclosure duty if disclosure would be harmful to the patient.
- What is the duty of care owed by occupiers of real estate to people who come on the land?
- The duty turns on the legal status of the entrant on the land:
1) Undiscovered trespasser;
2) Discovereed trespasser;
- What duty does the occupier owe where the entrant is an undiscovered trespasser?
- Undiscovered trespassers are owed NO duty of care; they always lose even if they were hurt by an affirmative activity like run over by a tractor. This is b/c he is the classic Palsgraff P.
- What duty doe sthe occupier owe where the entrant is a discovered trespasser and who is included in this category?
- Category also includes anticipated trespassers - classic example is where people take frequent unauthorized shortcuts across a piece of someone else's land.
For discovered and anticipated trespassers, the only conditions as to which there's a duty are those that are:
2) highly dangerous;
3) hidden from the trespasser; and
4) konwn to the occupier.
Note here there is NO duty to inspect your land and discover conditions.
(Shorthand: Duty to protect from known manmade deathtraps)
- What duty does the occupier owe where the entrant is a licenses and what are licensees?
- Mostly social guests.
Occupier has to protect licensee from all conditions on the land that are:
1) Concealed from the licensee; and
2) Konwn in advance by the D occupier
Here, the duty runs to BOTH natural and artificial conditions and BOTH highly dangerous and moderately dangerous conditions.
(Shorthand: Duty to protect from all known traps on land)
- What duty does the occupier ower where the entrant is an invitee and who is an invitee?
- Invitees are people who enter land that is essentially open to the public at large
Occupiers have to protect invitees from all conditions that meet the following two tests:
1) The danger is concealed from the invitee; and
2) The danger is one that hte occupier knew about in advance OR could have discovered with a REASONABLE INSPECTION.
Effectively there's a duty to reasonably inspect. (Shorthand: Duty to protect from all reasonably knowable traps on land)
- What standard of care do occupiers of real estate owe in NY?
- NY follows a significant minority rule and has abolished this entire scheme. All entrants are entitled to reasonable prudence under the circumstances. BUT, one of the factors to talk about in determining whether behavior was reasonable is what type of entrant it was. So, you don't want to ignore the status of the entrant; it is still a factor in your analysis; but it is not the defining element in the analysis.
- What is the rule for firefighters and police officers?
- Firefighters and police officers never recover for injuries that are an inherent risk of their job.
- What is the rule for child trespassers?
- When a child trespasses on land, that child is owed the standard of a reasonably prudent person with regard to all artificial conditions on the land (Ignore te rules above where the trespasser is a CHILD). The more likely it is that a child will trespass, the more precautons you must take. If it's extremely unlikely that children will trespass, then you can leave more hazards around. But, if children are likely to come on your land, then you must take those hazards away.
- What would cause you to think that it is more likely that children will come on your land?
- If you have something that would be tempting for a child to want to play on (attractive nuisance)
- If an occupier does owe a duty to entrants, how can he satisfy the duty and avoid liability?
- Two ways:
1) Fix the problem;
2) Give a warning. Warnings satisfy duties.
- What role can statutes play in a negligence action?
- Where it is not a statute that deals directly with tort liability, but it proscribes the conduct that gave rise to the liability, P will try to "borrow" the statute and make it conclusive on the breach - negligence per se.
- When will borrowing be allowed?
- If P satisfies a two-part test:
1) P must show that he's a member of the class of persons the statute seeks to protect;
2) P must show that the accident is in the class of harms that the statute seeks to prevent.
(Class of person; class of risk test)
- What is the result when the class of persons class of risk test is met?
- The statute will become the standard and violation of the statute will constitute negligence per se.
- What is the result of failing to meet the test for borrowing a statute?
- You don't get kicked out of court, you just resort back to the ordinary RPP standard.
- What is the exception to the class of person, class of risk rule?
- 1) If statutory compliance would be more dangerous than statutory violation, we do not borrow the statute (even if the class of person/class of risk test is met) and instead use general RPP standard;
2) If compliance would be impossible under the circumstances, you litigate under the general RPP standard..
- What are the duties to act affirmatively?
- There is no duty to rescue, EXCEPT:
1) If D put the P in peril, hat will trigger a duty to rescue;
2) If there is a preexisting relationship, it will trigger a duty to rescue;
- What preexisting relationships will always trigger a duty to rescue?
- 1) Relative (not limited to blood relatives - any family member);
2) Common carrier or innkeeper and their patients;
3) Land occupier and invitee
- Where there is a duty to rescue, what is its scope?
- It is a reasonable duty to rescue. You are not required to put your own life in jeopardy. If you can't swim, you don't have to jump in the lake - you can throw a rope, run for help, or dial 911.
- What is the rule if there is no duty to rescue but you choose to rescue?
- If you negligently cause harm while rescuing, you can be held liable for that.
- What is the NY rule for duty to rescue?
- In NY, if a nurse, doctor, or vetrinarian engages in a voluntary rescue, they will be insulated from liability for ordinary negligence. If you are not in one of these categories in NY, you rescue at your peril and are not insualted from liability.
- What is the ordinary case of NIED?
- Near miss claim
- What must P show for a near miss NIED claim?
- A P seeking recovery for negligent infliction of emotional distress where there has been no physical trauma, must show three things:
1) A breach of some other standard of care;
2) Although you didn't sustain any physical trauma as a result of the carelessness, you were in a "zone of physical danger" (it was a near miss or a close call);
3) Subsequent physical manfiestations of the distress.
- What is the subsequent requirement?
- Can be almost instantaneous or can happen any time down the road.
- What is the physical manifestation requirement?
- Can be reasonably mild or serious, but must be physical (e.g. heart attack, miscarriage, skin inflammation). This is to avoid fraudulent claims.
- What is the second types of NIED claim?
- The bystander claim, where P is seeking recovery for a diffferent emotion than in the near miss claim. Near miss claim, the unpleasant emotion that D's actions produced is fear or fright. In the bystander claim, the unpleasant emotion is grief, sadness, at seeing something tragic.
- What must the distressed P show?
- 1) That he was physically present;
2) And observed a negligent injury;
3) To a close family member
- What must the distressed P show in NY?
- Same as above plus, that bystander was actually in t eh zone of danger. And, NY has construed the close family member rule very narrowly. Where niece had been raised by her aunt and saw her injured, court said not a close enough relative.
- In what other case can you recover for emotional distress?
- Where doctor mismanages a pregnancy and it results in a miscarriage or stillbirth, the mother can recover for Ed. Here, we've relaxed the law b/c the mother didn't sustain the injury, nor was she at risk of physical injury.
- What is the most important part of negligence in terms of essay writing?
- Breach is hte area that requies most analysis on essays unless the duty is specific, like a statute. When breach is of a duty to drive like a RPP, the P must identify what constitutes the breach and why it was unreasonable.
- What is res ipsa loquitor?
- Breach doctrine that applies when the P is unable to identify the wrongful conduct that D has engaged in. When we ask P what did D do wrong, P shrugs and says I don't know. That's when res ipsa applies.
- What is the classic res ipsa case?
- Barrel that falls out of the window. P has no information about what D did wrong.
- What must P show to substitute for direct evidence of breach?
- 1) Accident is of a type which doesn't normally occur in the absense of negligence;
2) This type of accident is normally due to the negligence of someone in D's position (ie, you have logically sued the most plausible negligent party).
- What happens if P establishes those two things?
- The case goes to the jury. The jury is free to come back with any verdict it wishes. (Don't be under the impression that if you make a res ipsa showing, P necessarily wins. All res ipsa does is get you to the jury box)
- What must P establish for causation?
- 1) Factual causation; and
2) Legal causation (proximate cause)
- What is factual causation?
- P must establish a connection b/t the breach conduct and the injury. (But for causation)
- What is the best way to start talking about factual causation on an essay?
- Repeat the breach: "Talking on the cell phone was the factual cause."
Then make your analysis. Apply the test: "But for..." need ot establish that but for the breach, P would have escapted injury. "Talking on the cell phone was the factual cause of the injury, b/c but for the fact that he was talking on his cell phone, he would have seen me in the crosswalk and had time to swerve.
- How do D's try to rebut "but for" arguments?
- With "even if" arguments: "Even if I hadn't been talking on the cell phone, you still would have been injured b/c you darted out in front of my car at the last minute." Can use this to check if but for has really been established.
- What is the rule in a multiple D case?
- Don't use the but for test. There are two different scenarios:
1) Mingled cause cases;
2) Unascertainable cause cases
- What is the mingled cause case?
- 1) A and B are unrelated; never met; strangers
2) Both are camping in same park at same time and negligently fail to extinguish campfires;
3) Wind fans flames and two separate forest fires burn independently and eventually combing (mingle)
4) The single fire burns down P's house.
5) P sues A and B as co-Ds
- What is the test in the mingled cause case?
- The test is substantial factor. If each D was a significant contributing factor to the misfortune, they will be jointly liable. (it's a we'll know it when we see it" standard)
- What is the unascertainable cause case?
- Summers v. Tice
- What is the rule in the unascertainable cause case?
- Shift the burden of proof - up to the D to show that they are NOT the cause of the injury. If neither D can show that he did not cause the injury, then they will be jointly liable for the injury.
- What is legal causation (proxmiate cause)?
- Anotehr way to thinnk of it is fairness - that it is fair to make D pay under the circumstances. It's fair to make people pay for the foreseeable consequences of their behavior; but it is unfair to make people pay for the unforeseeable consequenses of their behavior.
- How will proximate cause be tested?
- 1) Direct Cause Question;
2) Indirect Caue Patterns (most)
- What are the direct cause questions and what is the rule?
- Where D commits breach, and injury occurs immediately. In a direct cause case, the injury is almost always foreseeable bb/c of the very short time and space interval. The only exception/limitation on that proposition is if you read the fact pattern and you actually laugh out loud. If it's that absurd, there's no proximate cause
- What is the indirect cause pattern?
- D commits breach and breach either casues no injury or only a partial injury, Then, additional stuff happens and only after this additional stuff does P suffer the full extent of the harm. There is a well-settled quartet of these types of patterns.
- What are the types of indirect cause fact patterns that arise?
- 1) Intervening Medical Negligence;
2) Intervening Negligent Rescue;
3) Intervening Protection or Reaction Forces;
4) Subsequent Disease or Accident
- What is the rule in intervening medical negligence cases?
- D is liable for the injury caused by the intervening medical negligence.
- What is the rule in intervening negligent rescue cases?
- D is liable for injuries caused by intervening negligent rescue.
- What is the rule for interventing protection or reaction forces?
- D is liable for resulting injuries.
- What is the rule for subsequent disease or accident cases?
- D is liable for resulting injuries.
- What is the rule where an indirect cause fact pattern does not fall into one of these four categories?
- Ask yourself, "Why is this a breach?" "Why am I calling this conduct negligent? What are we afraid might happen as a result?" Then try to ignore the middle of the story and just look at the end of the story - if the end of the story is exactly what you were afraid of, it's foreseeable; make D pay. If not, it's unforeseeable and D is not liable.
- What is the rule for damages?
- Eggshell Skull Rule: Once we find that D has committed all of the other elements, than D has to pay for ALL of hte damages suffered, even if they are surprising in scope. You take your P as you find him.
- To what torts does the eggshell skull rule apply?
- ALL torts, not just negligence.
- What special rule applies to damages in NY?
- Collateral source rule is that we ignore payments that a P receives from other sources in calculating damages. Example would be health insurance. But, in NY, we DON"T have the collateral source rule, so in NY, damage recovery will be reduced by amounts received from other sources, such as your own first party insurance
- What types of injunctions are there?
- 1) Negative or prohibitory (don't do X) or
2) Mandatory or affirmative (you must do Y).
An injunction can also be permanent or preliminary.
- What type of injunction do most questions involve?
- A P asking for a permanent negative injunction.
- What steps are involved in the analysis where injunction is requested?
- 1) First, have to go through substantive tort analysis and establish liability on the merits;
2) Then, go through second analysis as to availability of injunctive relief.
- What must P show to get injunctive relief?
- 1) There is no adequate remedy at law;
2) You have a protectable property interest or other protectable right that's being infringed upon;
3) Have to show that an injunction is enforceable;
4) Balance the hardships
- What does the phrase "remedy at law" mean?
- What are some reasons hy money might not be adequate?
- 1) D is judgment-proof;
2) Harm is impossible to measure e.g., where D is threatening an intentional property tort for something that is priceless);
3) Where conduct is ongoing (e.g., constant trespassers).
- What is the protectable property interest or protectable right requirement?
- Basically a formality - P must have a protectable right, but P always will.
- What is the enforceability requirement?
- 1) Almost never a problem with a negative or prohibitory injunction, but can be problem with mandatory or affirmative injunction.
2) Should talk about: 1) Complexity of conduct; 2) length of time; 3) any activities that have to take place outside the jurisdiction.
- What is the balancing of the hardships test?
- P must show that the benefit to him outweighs the harm the D suffers through the injunction. Court doesn't look blindly at the hardship, but is influenced by the equities of the case.
- Is court limited to injunction OR money damages?
- No. Can do both.
- What special defenses can D assert to the issuance of an injunction (not to liability on the merits)?
- 1) Unclean hands;
3) First Amendment
- What is the unclean hands defense?
- If P has engaged in misconduct, that can result in denial of injunctive relief. Sometimes comes up in IP litigation.
- What is the laches defense?
- Means prejudicial delay. If P has neglected to file a lawsuit for extended period of time and only belatedly seeks the injunction, D can say that he assumed that P was OK with the behavior b/c P was silent for years and D detrimentally relied on the acquiecense. Not based on specific period of time, but an informal measurement of undue delay.
- What is the First Amendment defense?
- If tort is disclosure or defamation, D may be able to argue that an injunction against publication violates the constitutional protection against prior restraints on speech.
- What is a preliminary injunction?
- Party will be asking for this immediately after complaint is filed and in theory, it's designed to freeze the status quo pending trial.
- What must P show to get a preliminary injunction?
- 1) Likelihood of success on the merits;2
2) P would suffer irreparable harm if the preliminary injunction is not granted;
3) - Additional procedural requirements under CPLR
- What are the affirmative defenses to negligence?
- Comparative negligence or contributory negligence.
- What are the minority/majority rules?
- Only 5 states still have traditional contributory negligence (but still tested a lot on MBE). Comparative negligence is the majority rule.
- What must D show for comparative negligence?
- D must show that P is guilty of fault - that he failed to exercise proper care for his own safety. Evidecne can simply be a showing that P didn't behave reasonably under the circumstances, or that P violated a statute.
- What happens once D has offered evidence of P's fault?
- Jury is instructed to compare the fault of the two parties, weigh that fault against each other, and assign each litigant a peprcentage number. Then P's recovery is reduced based on the percentage number of his fault.
- What is the rule where there are counterclaims?
- In a counterclaim action, you determine percentage of fault, but then apply those numbers separately to each party's individual damages.
- What are the strict liability claims?
1) Products liability;
2) Abnormally dangerous activity;
3) Wild animals
- What is the rule with respect to cases involving domesticated animals?
- No SL for injuries caused by domesticated animals. Have to proceed on negligence theory. But, if you have knowledge of your dog's vicious propensities and you contine to keep it as a pet, then there is SL.
- What would give you knowledge of dog's vicious propensities?
- Generally, that dog has previously bitten someone.
- What is the rule for trespassing cattle?
- SL for trespassing cattle. If you have livestock and it leaves your land and goes onto someone else's land and eats grass or tramples it, you're SL.
- What is the rule for wild animals?
- If you keep wild animals, you will be strictly liable. These are things like lions and tigers and bears.
- What is the rule for abnormally dangerous activities?
- Any party engaged in abnormally dangerous activity will be SL for resulting harm.
- What is the definition of abnormally dangerous activity?
1) H - High risk of death or severe harm;
2) A - Activity cannot be made safe;
3) N - Not a common activity in the community where it is being conducted by this D (out of context);
4) D - Degree of danger outweighs danger to the community.
- What types of activities are almost always abnormally dangerous activities?
- 1) Blasting/explowives;
3) Crop dusting;
4) Storage or transportation of highly dangerous chemical or biological substances;
5) Anything involing nuclear energy or radiation.
- What causes of action does a person have when hurt by a bad consumer product?
- Multiple causes of action:
1) Likely to have a negligence claim;
2) May have a warranty claim under the law of sales;
3) Under certain circumstances, if there were lies told about the products features, they may have a fraud claim;
4) SL claim
*Always look at call of question to see what theory P is proceeding under. Just because it's a product, doesn't mean that SL is the cause of action in a given question.
- What are the elements for a strict liability for products defect/
- 1) D was a merchant;
2) Product is defective;
3) Defect existed when prodcut left D's hands;
4) P was a foreseeable user of the product making a foreseeable use.
- Who are and are not merchants?
- 1) People who routinely deal in goods of this type are merchants.
2) Casual sellers are by definition not merchants, and therefore cannot be strictly liable;
3) Service providers are not merchants of items that are incidental to the service;
4) Commercial lessors ARE merchants and can be held strictly liable.
- What merchant does D have to be?
- D has to be a merchant, but doesn't have to be THE merchant that P dealt with directly (no privity of K is required). You can sue every merchant in the distribution chain.
- What types of defect will satisfy the product defect element?
- 1) Manufacturing defect;
2) Design defect
- What is a design defect?
- Product has a design defect if there is a hypothetical alternative design that is:
1) Safer than the actual design;
2) Cost-effective (meaning only a little more expensive, or no more expensive than design manufacture actually used);
3) Practical (can't make product difficult to use or interfere with its primary purpose).
If P shows such a design then the existing product is defective and there is strict liability.
- What else doe sproduct design include?
- Information. Specifically, warnings and instructions. If a product has some residual safety risk that can't be physically eliminated at a reasonable cost and which risks are not obvious to a consumer, a warning is cost-effective and practical and thus the sale of teh product with its residual safety risks absent a warning is the sale of a defaective product.
- What are the requirements for warnings?
- Warnings must be clear, understandable, and prominent. May not be good enough to put warning on p. 15 of the instruction booklet. May need to have sticker on operative part of the item, may need to be in multiple languages and have pictures.
- What is the rule for defect when product left D's hands?
- If defect arose subsequently, due to mishandling or deteriroiration from age, then D is not strictly liable. If product is new, nad was purchased in ordinary channels of distribution, than it is presumed that the problem existed when it left the hands of everyone up the chain to the manufacturer. Evidence of subsequent damage can be offered as affirmative defense, but have to prove it. If the product is old, P will have to prove this element, which can be difficult.
- Who must P be in a SL products case?
- A foreseeable user of the product making a foreseeable use. (Standard is not use vs. misuse; it's foreseeable vs. unforeseeable).
- What are the defenses to strict liability claims?
- Comparative negligence: Any negligence by P can be demonstrated and jury will assign fault percentage, and recovery will be reduced accordingly.
- What is nuisance?
- Nuisance, unlike any other tort, is not defined by the D's conduct, but by the harm suffered by the P. It's a type of harm - interfefence with your ability to use and enjoy your land to an unreasoanble degree. Typically means inconsistent land use.
- How do courts decide nuisance cases?
- Courts typically balance the equities - the D has a right to use his land in whatever way he wants; but P has a right to be free from excess interfefence and that requires a trade-off and judges normally exercise equitable discretion.
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