if he knows with substantial certainty that the consequences will result
He does not have to intend injury
Transferred intent
when the defendant intends to commit a tort against one person but instead
commits a different tort against that person
commits the same tort as intended but against a different person
commits a different tort against a different person
it can only be used:
Assault
battery
false imprisonment
trespass to land
trespass to chattels
Causation
NYR:
Intentional infliction of pecuniary harm without justification
intent to harm, as distinguished from the requisite intent for other intentional torts
necessary to allege and prove special damages. Pecuniary loss is an essential element
where a traditional tort has been established, an action for prima facie tort will not lie. Also the action will not lie if a traditional tort action could have been brought except for the running of the statute of limitations
The hypersensitivity of P is never taken into account in determining if P has satisfied the requirements of the tort
Assume the P is of ordinary sensitivity
There is no incapacity in intentional torts
child, drunk, retarded person, insane are all liable
Battery
Elements
Defendant committed a harmful of offensive contact
offensive
not permitted
Contact with plaintiff=s person
it includes anything that the P touches or holds
Causation
direct and indirect contact
Actual damages are not necessary
Assault
Defendant must place the P in apprehension
It must be reasonable
Apprehension means knowledge not fear
being afraid is the wrong answer
Of an immediate battery
Words alone do not have the quality of immediacy
you need physical conduct of the Defendant.
overt act required
Words can negate the implication of aggressive conduct
Causation
No requirement of actual damages
Most states allow punitive damages if act was malicious
False imprisonment
Defendant must commit an act or restraint
Threats are insufficient
Omission can sufficient if there was a pre-existing duty on defendant to assist P moving around
It is irrelevant how brief the period of confinement is
P has to know of the confinement when it occurs or at least suffer a harm
Resulting in confinement in a bounded area
Freedom of movement must be limited in all directions
Keeping someone out of the place is NOT confinement
An area is not bounded if there is a reasonable means of escape that P can reasonably discovered
Shoplifting
A shoplifter may be liable for false imprisonment
For the privilege to apply:
reasonable belief as to the fact of theft
the detention must be conducted in a reasonable manner and only nondeadly force
the detention must be only for a reasonable time and only for the purpose of making an investigation
NYD has it.
Emotional distress
Outrageous conduct
Conduct exceeds all bounds of decency tolerable in a civilized society
mere insults are not sufficient
factors that make it more likely that it is outrageous
conduct takes place in public
continuous and repetitive conduct
D is a common carrier or an innkeeper
P is a member of a fragile class
children
elderly
pregnant woman
if the person knows about the hypersensitivity of the P then, it=s becoming outrageous.
P must have suffered severe distress
Actual damages required
Trespass to land
Intent can be missing. You don=t need to know you trespassed.
Act of physical invasion
Enter the premises
Throw or propel any tangible objects on the land
odors, light, smell are not tangible: no trespass
Land
It includes the sky above and the soil below to a reasonable distance.
Trespass to chattels and conversion
Remedies for theft or vandalism
If the magnitude of the harm is slight, it is trespass to chattels
If the harm is significant, it is a conversion
You can treat the transaction as a forced sale
You don=t need to settle for the costs of repair
Actual damages must be proven for trespass o chattels
Conversion: fair market value
You cam also act in replevin.
Abandoned, lost and mislaid, personal property
Finders
If owner intends to lose and doesn=t have possession
It=s abandonment
Lost property
The true owner has always superior priority
if the item is less than $20, reasonable effort to look for the true owner
if superior to $20, give to the police
Gifts
Inter vivos
You need the requisite intent
Transfer of possession
Delivery
The item or the title has to be turned over
There are four special delivery problems
first party check
when the check is cashed by donee, if donor stops payment, no remedy
third party check
when the check is turned over
stock certificates
when the certificates are transferred, no need to record on corporations books.
agents
they stand in the shoes of the principal
Causa mortis
A gift given in contemplation of death
You have to see if there is sufficient risk of death that is likely to occur
it is conditional on the death
Liens
It=s a security attached to personal property by operation of law
Service of goods:
the person who repairs has possession and the debtor has title. The creditor can hold the property until paid, if he returns them, he loses the lien
General lien
retain all the property until paid
Bailments
It arises when you give something to somebody else to hold on for a little while.
Many bailments are governed by contract law.
Whether or not bailment was created
a thing within a thing, there is bailment only for things that are normally in the thing
exception:
safe-deposit box:
the bank is the bailee for everything that is the safe
intent
the bailee must have an intent to acquire possession of the property and become a bailee.
generic intent
it is not necessary that the bailee knows the precise nature of the item
Problem situations
Parking lots
either a parking lot renting or a bailment
the key factor is whether the bailor has surrender control over the car or not
Bathhouses
the bathhouse keeper is the bailee of the clothes in the locker
Master and servant relationship
the ordinary possession of the master=s goods does not constitute bailment
Garage keeper
he is bailee for hire
Checkroom deposit
limits recovery by a patron for negligence to
the value of the coat if negligence is shown and a fee is charged for checking the coat and a value in excess of $200 is declared and a written receipt stating the value is issued when the coat is given to the checkroom attendant
$300 in value in excess of $200 is declared and the other conditions are met, but negligence cannot be shown
$200 if no fee or charge is exacted or a value in excess of $200 is not declared and a written receipt is obtained be shown.
Restaurateurs
they are not liable for coats put on hooks.
Storekeepers
he is a bailee of articles necessarily laid aside
Bank as bailee
bailee of deposit received during the period after its closing time and the next business days
Duty of care of bailee
If it is for the sole benefit if the bailor only the slight diligence is needed
If it is for the sale for the bailee, he must exercise great diligence.
If it is for the mutual benefit of the bailor and the bailee, the bailee must only exercise ordinary care.
Liability
Negligence
Absolute liability
if bailee uses the thing in an unauthorized way
if the bailee returns the thing to the wrong person except if check claim is presented
Exculpatory clause
an absolute one is usually void as against public policy.
Affirmative defenses
Consent
Individually without legal capacity cannot give consent.
Express consent
is words in quotation marks giving defendant the permission to behave in a certain way
exception
it is void if given under the circumstances of fraud and duress.
Implied consent
custom and usage
the P has gone to a place or chosen to participate in a activity where certain invasion will occur.
defendant=s reasonable interpretation of P=s objective conduct.
we do not concern ourselves with subjective conduct
consent as a scope if defendant exceeds it, he is a tortfeasor again.
Self defense, defense of others and defense of property
Timing
In order to invoke it, the invasion must be in progress or imminent. If the thing is over and done with, there is no defense.
no revenge or retaliation
Accuracy
self-defense of one=s own property
standard or reasonableness even if you=re mistaken
the jury will decide
self defense of others
MBE: reasonable belief
NYR:
reasonable belief the aided person would the right to self-defense.
Force
force which is necessary, symmetrical response.
deadly force is threatened, then you may use deadly force
deadly force is never allowed for the defense of property
bluff is allowed.
NYR:
there is a duty to retreat unless
you=re in your own home,
cannot do so safely
is a police officer
is a person assisting a police officer
Recapture of the land:
you can only do so peacefully.
force can only be used when in hot pursuit of one who has obtained the possession wrongfully.
a demand of the return of the chattel must be made before the use of force
recovery is only possible from wrongdoer
if innocent party, no recovery.
reasonable force can be used
recapture
the owner can get the chattel back by entering the wrongdoer=s land within reasonable time and in a reasonable manner
the same for an innocent party who was given notice and refuse to obey.
Necessity
property torts alone
trespass to land, to chattel and conversion
public necessity
Defendant invades P=s property interest in an emergency situation to protect the community as a whole or some significant group of people.
it is an absolute defense
private necessity
when the defendant interferes with P=s property interest in an emergency situation to protect an interest of his own
it is only a qualified defense
Defendant pays for harm caused
very similar to the concept of eminent domain.
such defendant is never liable for nominal or punitive damages
P cannot throw the defendant of his land so long as the emergency persists.
he throws him, if he will be liable.
Defamation
Prima facie case
Defamatory statement about P.
It must be something that tends adversely to affect P=s reputation
Mere insults are not defamatory
Statement of facts are not defamatory that says something negative about the P, it is defamation
honesty, chastity or loyalty
Statement of opinion can be defamatory provided that listener assumes that speaker has the fact
NYR:
no absolute privilege on opinions
If it innocuous
proof of inducement and innuendo:
when adding facts it becomes defamatory
You can only defame a living person
Publication
It has to be communicated to a third person
It does not need an intentional act, negligent publication suffices.
Damages, may be.
Not every defamation P has to prove damages
LIBEL which is defamatory statement recorded in writing or some other permanent form
you do NOT have to prove damages
NYR
distinction between libel per se and libel per quod ( called libel by extrinsic fact)
libel by extrinsic fact is treated like libel per se where the defamatory import of the completed libel falls into a category that constitutes slander per se
if it=s per se no need to prove special damages, if it=s not libel per se then you need to prove special damages.
all defamatory broadcasts are treated as libel
SLANDER which is oral in nature
they are not all treated the same
slander per se
you do NOT prove damages
DEF:
a statement concerning P=s business or profession
P is guilty of a crime of moral turpitude
embezzlement, molestation of children
imputing on chastity of a woman
by defendant that P suffers a loathsome disease
leper
venereal disease
Aids: there is a problem because it is not only transmitted by sex.
NYR:
imputation of homosexuality
if it=s slander only by extrinsic fact and in per se category you need to prove damages.
defamatory on its face and not per se, you still have to prove damages
Slander not per se
you have to prove actual damages
for NYR:
you have to prove damages any time except when defamatory on its in face and slander per se
Falsity
MBE:
even if the statement is true, it can give rise to liability if there is sufficient circumstances t constitute emotional distress.
Fault
public officials:
malice must be proven
Public figure
malice required
when he achieves such pervasive fame or notoriety that he becomes a public figure for all purposes and contexts
where he voluntarily assumes central role in a particular public controversy
for that limited range of issues.
private persons need not prove malice
matters of public concern:
negligence must be proven
damages are limited to actual injury
private of purely private concern
no constitutional limit
presumed and punitive damages might be given even without malice
Affirmative defenses to defamation
Consent
Truth
Defendant bears the burden
Privileges
Absolute
a communication between spouses
by a member of one of the three branches of federal govt in the conduct of official duties
judge
congressman
executive branch
Qualified immunity
socially useful occasion for the speech
the challenged statement must be relevant to the speech
in good faith
letter of recommendation , talk to the police.
Privacy
Appropriation
When the defendant uses P=s portrait or picture for commercial purposes.
Newsworthiness exception
if the newspaper uses the picture on frontpage
NYR:
this is the only privacy tort and the exception is interpreted very broadly: this is a statute
there is no common law right of privacy in NY.
defenses
written consent
photographer exhibiting his work unless continued after written notice of objection
goods or a literary, musical or artistic production that the manufacturer, dealer, author, composer or artist sold or disposed of with his name, picture or portrait used in connection.
Intrusion
Act of prying or intruding on the affairs or seclusion of the P by the D
The intrusion is something that would be objectionable to a reasonable person
The thing to which there is intrusion or prying is private
No need of physical entry
NYR: no law of intrusion
False light
Publication of facts about the plaintiff by defendant placing P in a false light
The false light is something that would be objectionable to a reasonable person under the circumstances
Malice on the part of the D where the published matter is of public interest
False light
views he does not hold
actions that he did not take
Disclosure
Publication or public disclosure by D of private info about the P
The matter made public is such that a reasonable person would object.
Facts may be true
If there is a public legitimate interest
the publication is privileged if there is no malice.
Defenses to privacy
Consent
Defamatory defenses
Absolute and qualified privileges are applicable to false light and disclosure
Commercial torts
Misrepresentation
Intentional misrepresentation: fraud and deceit
Elements of prima facie case
Misrepresentation
material past or present fact
no general duty to disclose unless
fiduciary relationship
in real property, the p cannot know or be aware pf material info about the transaction
where the D speaks and her utterance deceives the P, she will be under a duty to inform the P of the true facts
active concealment actionable
Scienter
D knew it was false or
reckless disregard as to its truth or falsity
An intent to induce plaintiff=s reliance on the misrepresentation
exception :
continuous deception, any person who has the product can bring an action
third party
the D is liable when person talks to some one who relies on the information if the D could reasonably foresee that P will have such reliance
Causation
Justifiable reliance by plaintiff on the misrepresentation
reliance on fact is almost always justifiable
no duty to investigate
reliance on opinion usually not justifiable unless
if superior knowledge by D
when a statement is made by a lawyer to a layperson
if statement of future event is viewed as a statement of present intent.
Damages
only if he has suffered actual pecuniary loss as a result on the reliance of the false statement.
Negligent misrepresentation
Prima facie case
misrepresentation made by the defendant in business or professional capacity
breach of duty toward particular plaintiff
causation
justifiable reliance
if reliance was contemplated
foreseeability is not sufficient to establish liability for negligent misrepresentation.
damages
NYR: before a defendant may be held liable for negligence to non contractual parties who rely on the misrepresentation, the following elements must be shown
awareness that the statement or representation was to be used for a particular purpose
reliance by a known party in furtherance of the purpose
some conduct by the D that demonstrates the D=s understanding of that party=s reliance
Inducing a breach of contract
In equity
Valid contract between the P and the third party which is not terminable at will.
D has knowledge of that contract
The D persuades the third party to drop the contract
Subsequent breach
Exception: when there is a privilege
If the D is a competitor of the P, he has a right to induce a refusal to deal
Between the D and third party
duty of care to the third party
financial interests in the third party
advice of D is requested
Theft of trade secret
A trade secret is plan, process, formula or any other valuable information not patented but which gives its possessor a competitive advantage as long as it is kept secret.
How was it taken,
Memorized, written form
there is a violation for memorizing: the trend today in NY.
By improper conduct
Relationship of taker to owner
Fiduciary relationship
Contract relationship
express covenant not to disclose trade secrets: strictly enforceable
Theory to apply
Property right
Fiduciary duty.
Contract relationship
Trademark infringement
Any mark, word, letter, letter, design, picture or combination thereof
It has to be affixed to goods
Adoption and use
You need to have a trademark
Registration establishes prima facie case of ownership
Infringement
Give rise to public likelihood of confusion as to the source of the goods
Copyright infringement
Exclusive right to continue to reproduce and sell an original work of authorship as expressed and fixed in a tangible medium
Negligence
Duty of care
To whom do we owe a duty?
to those foreseeable victims
there is not duty to unforeseeable victims
if an unforeseeable victim brings, an action he will lose because there is no duty
you only owe a duty to those who are in the zone of danger
most of the time physical presence is necessary
exception
rescuers:
the rescuer is a foreseeable victim as long as the rescue is not wanton.
prenatal injury
the fetus must have been viable at the time of the injury
wrongful life action not recognized
the child as no action if the doctor failed to discover a defect
wrongful birth and wrongful pregnancy
actionable
either for failure to diagnose the defect
failure to perform a contraceptive procedure
NYR
child must be born alive, if the child=s injury was caused by a tort committed against the mother before the child was conceived, no action will lie.
No action for wrongful death if, as result of prenatal injuries, the child is stillborn
Wrongful pregnancy is NOT recognized in NY.
How much care?
the Reasonable prudent person standard
comparison between he D and the hypothetic RPP, you don=t take into the D=s character
being insane, stupid, inexperienced are irrelevant
exception
incorporate superior knowledge of the D, it usually works at the disadvantage of the D.
physical characteristics into RPP,
blind
paraplegic.
Children
under 4, incapable of negligence
between 4 and 11/12: hypo child of similar age, experience and intelligence
when D engages in adult activity, the child standard does not apply, RPP does.
driving a car, flying a plane, driving a motor boat.
professionals
they=re required ti possess and exercise the knowledge and the skill of a member of the profession or occupation in good standing in the same or similar communities
Doctors on MBE.
the custom sets the duty of care
expert witness is needed to P to make her case in an essay question
it=s a local community
doctors have a duty to disclose reasonable info
informed consent
you don=t need to explain to someone who is incompetent.
NYR: duty to disclose Defenses
the undisclosed risk is too commonly known to warrant disclosure
the patient indicated that he would undergo the treatment or diagnosis irrespective of the risk, or that he did not wish to receive information that the practitioner was otherwise obligated to disclose
consent by or on behalf of the patient was not reasonably possible
the practitioner, after considering all the circumstances, used reasonable discretion regarding the manner and extent to which risks and alternatives were disclosed because he reasonably believed that the manner or extent of disclosure could be expected to adversely and substantially affect the patient=s condition.
owners and occupiers of land
duty of possessor to those off the premises
natural conditions
General rule: the landowner owes no duty to protect one outside the premises from natural conditions on the land
exception: for decaying trees next to sidewalks
artificial conditions
general rule: no duty owed
exceptions:
UNREASONABLE DANGEROUS CONDITIONS: when it is abutting adjacent land
DUTY TO PROTECT PASSERSBY: take due precautions to protect persons passing by from dangerous conditions
conduct of persons on property
reasonable care with respect to his own activities on the land and to control the conduct of others on his property
duties of possessor to those on premises
NYR:
the legal status of the P does not determines the duty owed to him. The single standard of reasonable care under the circumstances governs injuries on land
it is still relevant to the foreseeability of his presence and the amount and nature of precautions required to meet the standard of reasonable care under the circumstances.
duty owed to a trespasser
undiscovered trespassers: NO duty
discovered trespassers: ordinary care to warn the trespasser of or to make safe artificial conditions known to the landowner that involve a risk of death or serious bodily harm and the trespasser is unlikely to discover
anticipated trespassers; they are treated on the same basis as discovered trespassers
infant trespassers: attractive nuisance doctrine: ordinary care to avoid foreseeable risk of harm to children caused by artificial conditions on his property: P must show that (1)there is a dangerous condition present on the land, (2) he knows or should have known that young persons frequent the vicinity of this dangerous conditions, (3) the condition is likely to cause injury, (4) the expense of remedying the situation is slight compared with the magnitude of the risk.
persons with easement or license to use the land do not have the status of landowner, they must exercise the reasonable care to protect the trespasser.
duty owed to a licensee
a licensee is a person who enters the land with the landowner permission for her own purpose or business
duty to warn of known conditions that creates an unreasonable risk of harm t the licensee and that the licensee is unlikely to discover
no duty to inspect nor repair
Social guests are licensees
duty owed to an invitee
an invitee is a person who enters the premises in response to an express or implied invitation of the landowner
those who enters as members of the public for which the land is held open to the public
those who enter for a purpose connected with the business or other interests of the landowner
entrants serving a purpose of the possessor are generally held as invitees
one who comes under normal circumstances during work hours is an invitee
police officers and firefighters are licensees.
duty to warn and duty to inspect for repair.
make safe means warning is sufficient
duties of a lessor to realty
it generally falls on the person who has control
exceptions:
duty of lessor to lessee: have to give warnings of existing defects
effect of lessor=s covenant to repair: liability for unreasonable dangerous conditions.
voluntary repair by lessor: if he does so negligently: liability
effect of admission of the public: liability for unreasonable dangerous conditions existing at the time he transfers possession
tenant remains liable for licenses and invitees
statutory standards of care: Negligence per se
when criminal liability statute is applicable
P must show that he is within the protected class
he must show that the statute provided to prevent the type of harm the plaintiff suffered
if you show this, you borrow the statute and proof of breach will equal to negligence per se. If the P cannot borrow the statute, then you go back to negligence.
NYR
violation of a state statute constitutes negligence per se, violation of a regulation or local ordinance constitutes only some evidence of negligence
exceptions:
when compliance with the statute would have been more dangerous than not compliance, you don=t borrow the statute
compliance impossible under the circumstances, you don=t borrow the statute either.
duty to rescue
there is no duty to rescue but if you affirmatively choose to do it, then you must do it with reasonable care.
if the defendant puts the person in peril, then he has a duty to rescue
if there is a pre-existing relationship between the parties
family relationship
common carrier and innkeepers owe a duty to rescue
landowner and invitee
NYR:
there=s a limited samaritan statute:
it is limited to doctors, nurses and vet who helped in an emergency situation are shielded from liability
negligent infliction of emotional distress
it is very limited
P must suffer physical injury from the distress
exceptions:
erroneous report of a relative=s death or the mishandling of a relative=s corpse.
P must be in the zone of danger
NYR:
limited to immediate family members
No fault insurance ( probably in the multiple choice)
it is designed to screen out of litigation minor suits..
you look at your own insurance instead of the D=s.
it only applies to minor accidents and personal injuries not property damages.
Coverage
everyone who drives the car, any passenger and any pedestrian hit by the car.
you=re out of the no-fault insurance
if suffer more than the basic economic loss: it has to be <$50.000
actual medical expenses + 80% loss of earnings up to $2000 during three years + any miscellaneous expenses up to $25 during a year.
if serious injuries
death,
dismemberment
serious fracture
permanent kiss of a body organ or function
no fault recovery never includes pain and suffering.
it is portable, it goes everywhere.
certain tort action still remain:
property damage claims
damages from wrongful death
economic loss not included in the basic economic loss
non economic loss ( pain and suffering ) if there is serious injury
Breach of duty
Custom and usage
It may be introduced to establish the standard of care in a given case.
Violation of statute
Applicable statute: Negligence per se.
Res ipsa loquitur
The fact that a particular injury occurred may itself establish or ten to establish that there was a breach of duty.
It used because the P cannot prove specifically
Thee P must show that the injury is of type that could not occur without negligence
The instrumentality was within the exclusive control of the D.
Effect
no directed verdict for D.
the P has made his prima facie case, the case goes to the jury that=s all it does.
Causation
Actual cause ( cause in fact)
The but for test
an act or omission to act is the causee in fact of an injury when the injury would not have occurred but for the fact.
Concurrent causes: it applies to all acts that are need in combination to show that they cause the injury
it does not work for multiple defendants.
Additional tests
joint cause: the substantial factor test
any alone is sufficient to cause the injury, it is sufficient if D=s conduct was a substantial factor in causing the injury.
alternative causes approach
the P mus only show that the injury was caused by one of the D=s, then the burden shifts to the D to exonerate themselves.
Proximate cause ( fairness)
Foreseeability: to detremine if it would be fair or not.
Direct cause fact pattern
D acts and P suffers, nothing happen in between. In this fact pattern, almost always hold the D liable because most of the consequences will be foreseeable.
Indirect cause fact pattern
D acts, something happens in the middle and then P suffers:
intervening, superseding cause
4 easy indirect: D will be held liable
intervening negligent medical treatment
the doctor is also liable
intervening negligent rescue
intervening reaction or escape forces
subsequent disease on acccident
if it doesn=t fall into those 4:
what don=t you like about the behavior
what happened to the P is what worries me, the D is liable
Damages
Actual harm or injury.
Damages will not be presumed.
Damages recoverable in the action
Personal injury
past, present and prospective.
foreseeability is irrelevant
Property damages:
the reasonable cost of repair
the full market value if destroyed.
Punitive damages
if the D=s conduct was wanton and willful, reckless, or malicious
NYR:
only in gross negligence
Non recoverable items
interest from date of damage in personal injury action
attorney=s fees
Collateral source Rule
Generally, they are not reduced by other benefits received by P from other sources.
NYR:
in all actions for personal injury, property damage or wrongful death, courts are required to reduce successful P=s damage award by the amount of any benefits that the P has received or will receive from collateral sources.
No reduction will be made for life insurance benefits, certain social security benefits and other benefits for which a lien may be imposed against the P=s award.
Equity relief
When do you get it:
When you don=t have any remedy at law
If the harm is impossible to measure
If the harm is continuous.
Trade secret
The tortious conduct threatens a property interest or protectable interest
It is only a formality.
The injunction must be enforceable.
A negative injuction is easy to enforce
if the court has personabl jurisdictin:
hold in contempt
mandatory injuction is more difficult
complexity of the conduct,
the more complex, the less likely the court will order an injunction.
The balance of hardship tips in favor iof the P.
Money damages and equitable relief can be mixed
Defenses
Unclean hands:
in pari delicto
Laches
unreasonably delayed and the delay is prejudicial to the D.
Estoppel
Defenses of impossibility, hardship and freedom of speech
if expresive conduct, courts will be relunctant to grant the relief as opposed to damages.
Preliminary injunction
P must show likelihood of success on the merits
P must show he suffered irreparable harm
TRO ex parte proceeding are allowed, no notice necessary as for temporary and permanent injunction.
Affirmative defenses to negligence
Contributory negligence
5 states still aply it.
You use it when the Q says follow traditional Common Law defenses.
Is P guilty of any fault?
Failure of P to exercise the relvant duty of care for his or her own safety
It is an absolute bar to recovery
Last clear chance
The person with the last clear chance to avoid an accident who fails to do so is liable for negligence.
Imputed contributory negligence
P may proceed against both negligent parties
It will be imputed when the P and the negligent party stand in such a relationship to each other that the courts find it proper to impute the negligence
Common fact patterns
master and servant
partners and joint venturers
husband and wife
not imputed
parent and child
not imputed
automobile owner and driver:
not imputed
Assumption of risk
Traditional common law jurisdiction:
It has been abolished in most states
If he has assumed any risk of any damage caused by the D=s acts.
The P must have known the risk and voluntarily assumed it.
Implied assumption of risk.
Knowledge of the risk
if the average person would appreciate the risk
Voluntary
when there is no available alternative to proceed.
Certain risk may not be assumed
common carriers and public utilities are not permitted to limit their liability for personal injury
where a statute is enacted to protect a class
situations involving fraud, force or an emergency.
Express assumption
Agreement
exculpatory clauses.
It is defense to strict liability cases
Comparative negligence
The trier of fcat weighs the P=s negligence against that of the D=s and reduces P= award accordingly.
Partial comparative negligence
Most of the time if the P=s fault is over 50%, he will recover nothing.
Pure comparative negligence: NYR:
You go strictly by the numbers:
the P will always recover something.
Liability without fault
Prima facie case
Absolute duty on the part of D to make safe
Breach of that duty
It was the actual and proximate cause of the injury
Damage to P=s person or property
Liability for animals
Trespassing animals
The owner is liable for the trespass as long as it was foreseeable.
Personal injuries
Wild animals:
strict liability
Domestic animals
knowledge is required
Persons protected
licensees and invitees
landowner is strictly liable
public duty exception
When the owner is under a duty to keep the animal
negligence must be shown
trespassers must prove negligence
Ultra hazardous and abnormally dangerous activity
Test
The activity must involve a risk of serious harm to persons or property
The activity must be one that cannot be performed without risk of serious harm no matter how much care is taken.
It must not be a commonly engaged in activity by persons in the community.
Products liability
D must be a merchant
A casual seller is not a merchant
Sercive businesses are not merchant of goods that they incidentally provide
No requirement that P and D dealt directly
Commercial lessors are considered merchants
The product must be defective
Manufacturing defect
defect if it defers from all the others that came from the same assembly line and makes it more dangerous than consumers would expect
Design defect
When there is another way to construct it
the alternative design must be safer than the marketed version
the laternative design must be cost effective
the alternative design must be practical
if those 3 conditions are met, then there is a design defect.
warnings and instructions are part of the design
if there is a warning but it could be physically redesigned then there will be strict liability.
the product must have existed when it left D=s hands
it can only be an issue in a manufacturing defect not in a design defect
If the priduct traveled through common channels, it is presumed tht defect existed.
Foreseeable use
It=s broader than intended use
Defenses
Behavior equivalent to assumption of risk is a bar to recovery
Products liability can be based
On intentional tort
Negligence
Strict liability
Nuisance
Private nuisance
It is a substantial, unreasonable interference with another=s use or enjoyment of property that he possesses.
Substantial interference
It mus be offensive, inconvenient or annoying to an average person in the community
Unreasonable
Injury must outweigh the utility of defendant=s conduct.
Public nuisance
It is an act that unreasonably interferes with the health, safety, or property rights of the community
Coming to the nuisance
When a landowner buys some land adjoining a nuisance, he has a right of use and enjoyment like any others as long as he bought in good faith and not for the sole purpose to harass.
Miscellaneous
Vicarious liability
A employer and employee
Employer is liable for the torts of their employee committed within the scope of the employment
Frolic and detour
a minor departure from the work routine is a detour, and employer will still be liable.
a major deviation from the the work routine is a frolic and the employer will not be held liable.
Intentional torts are considered to be outside the scope of employment
Exception
if force is part of the job, then the intentional tort is part of the job.
if jobs cause friction
if directly serves the interest of an employer, he is liable.
Independent contractors.
No liability
Exception:
hazardous work
injures a invitee on land
Automobile owners automobile drivers
no vicarious liability
exception
you lend the car to do an errand, because the driver is an agent, then there is liability.
NYR has a permissive use statute that states:
owner is not vicariously liable for intentionally tortious operation by the driver
registration is prima facie evidence of ownership: rebuttable presumption that driver used and operated the vehicle with the owner=s consent and permission
it is not necessary that the person to whom the owner granted permission actually operated the vehicle.
Parents/children
no vicarious liability
NYR:
there is a statutory liability imposed on parents up to $2500.
Multiple defendants issues
Release
it is a document that P gives D when settling the case.
it does not affect the other D.
Reconciliation of rights between multiple defendants
P has won, joint and several liability,
if all D were active tortfeasors of roughly equal culpability, D will have the right to contribution
if there is a significant difference between the degrees of fault, and if it is the less guilty who pays, there is a right to indemnity, it shifts 100% of the damages to the others.
NYR:
we go strictly by the numbers, you get what the others were supposed to pay.
Wrongful death
It is not a separate tort. It just means that the person is dead and you need a theory to base the action. It is a derivative action.
Any defenses that could have been asserted against a decedent had he survived are available.
Torts immunity
Govt immunity
when the govt behavs in a traditional governmental capacity involving discretion, the govt is immune
when the govt is engaged in ministerial/ proprietary activities it will be liable
Family
the modern view is that it is aboloshed
NYR:
it has been abolished.
Charitable immunity
held at the same standard because it has insurance.
Worker=s compensation
Uncovered
Teachers, clergy, non manual labor for non profit org.
