Torts Intentional Torts A. Overview 1. Disregard extreme sensitivities of plaintiff 2. No incapacity defenses B. Battery 1. Harmful or offensive contact a.

Offensive unpermitted by ordinary person i. Hypo: Stroking a strangers hair 2. With the plaintiffs person, including anything he is touching or holding a. Contact can be indirect and does not have to be instantaneous (e.g., setting a trap for plaintiff to fall into; poisoning plaintiffs drink) C. Assault 1. Defendant must place plaintiff in reasonable apprehension a. Plaintiff has knowledge/awareness, fear NOT required i. Hypo: David (Defendant) and Goliath (Plaintiff) apprehension only means knowledge, fear not required = assault ii. Hypo: Unloaded gun Certain knowledge not required, just reasonable apprehension, a reason to know/expect = assault 2. Of an immediate battery a. Words alone lack immediacy; there must be threatening physical conduct b. Words can negate immediacy of threatening gesture and = no assault i. Conditional words in conditional structure ii. Words in future tense D. False Imprisonment 1. Act of restraint physical or threat (e.g., If you leave this room, Ill kill you/your child or store security guard: If you leave, Ill call the cops) or failure/omission where preexisting duty (e.g., wheelchair-bound passenger left on plane) a. Plaintiff must know of act of restraint OR the act of restraint must cause a physical injury 2. Plaintiff must be confined in a bounded area a. No reasonable means of escape that plaintiff could reasonably discover i. If the only way out is dangerous, disgusting, humiliating, or hidden not reasonable to discover b. Affirmative defense = shop keeper privilege (stores, libraries, etc) E. Intentional Infliction of Mental or Emotional Distress a. Outrageous conduct exceeds all bounds of decency tolerated in a civilized society i. Mere insults not outrageous ii. Hallmarks of outrageousness:

1. Repetitive or continuous conduct 2. Defendant is a common carrier or innkeeper = duty of extreme courtesy 3. Plaintiff is a member of a fragile class of persons 4. Defendant knows in advance of hyper-sensitivity and commits offensive conduct anyway a. Hypo: Know co-worker is deathly afraid of snakes but put one on her desk anyway b. Plaintiff suffers severe emotional distress no specific evidentiary requirement (i.e., no need for medication or doctor) i. Being mildly annoyed is insufficient NY Distinction: Additional cause of action = intentional mishandling of a corpse F. Trespass to Land a. Act of physical invasion i. Two methods: 1. Enters land physically by car, horse, foot, boat, etc. a. No need to know that it is someone elses land. Error, mistake, or ignorance about the existence of a boundary line is no defense. Only intent required is to deliberately get to the challenged location. 2. Enters land by propelling (throwing) physical objects onto anothers land a. Hypo: Throwing stones onto land or spraying water = trespass (Doesnt necessarily have to do damage, can even be beneficial) b. Hypo: Kid 1 pushes Kid 2 onto land = Kid 1 committed trespass c. No invasion by propelling intangible physical objects (e.g., floodlights in your yard, bright light in neighbors; speakers in your yard, loud noise in neighbors) b. That interferes with plaintiffs possession of land i. Proper plaintiff not necessarily landowner but person who possesses the land ii. Interest in possession not limited to surface of property, includes air above and surface below out to a reasonable distance G. Trespass to Chattels and Conversion a. Both torts involve intentional interference with personal property i. Everything except land and buildings; includes money b. Two forms of interference with ones chattel: i. Damage (e.g., vandalism) ii. Deprive owner of possession (e.g., theft) c. EITHER form of interference is going to be addressed by these two torts. These two are alternatives. d. Difference between the torts is the scope of harm / injury, the extent.

i. Minimal interference trespass to chattels ii. Significant interference conversion e. Enhanced remedy in conversions plaintiff can recover the full market value of the item at the time of conversion, not merely cost of rental or repair i. Conversion operates as a forced sale. At plaintiffs option, defendant can be forced to purchase at full market price. f. Mistake over ownership does not negate liability Affirmative Defenses to Intentional Torts A. Consent a. Only a person with capacity can give valid consent i. Children are not entirely disabled from consenting they are allowed to consent to age-appropriate invasions b. Two kinds: i. Express consent statement by plaintiff granting defendant permission to behave in the challenged fashion 1. Void if obtained through fraud / duress ii. Implied consent 1. Through custom Plaintiff goes to a place or engages in an activity where certain invasions are routine a. Hypo: When you play sports, you consent to some rough handling = implied consent 2. Reasonable interpretation of objective conduct and surrounding circumstances body language consent; defendant entitled to read the situation c. If defendant exceeds the scope of consent and does something substantially different, he may be liable B. Protective Privileges Self-Defense, Defense of Others, Defense of Property a. Defendant must show: i. Proper timing must act in response to a threat that is in progress or imminent ii. Reasonable belief that the threat is genuine reasonable mistake will not defeat the argument b. May use that amount of force as is necessary but no more than that. Excessive force = liability. Always excessive to use deadly force to protect property. i. NY Distinction: Before you can use deadly force, there is a duty to retreat unless the actor cannot do so safely. Also does not apply in your own home (The Castle Doctrine). C. Necessity Doctrines a. Public Necessity defendant invades plaintiffs property in an emergency to protect the community as a whole or a significant group of people. Absolute defense and has no liability at all. b. Private necessity defendant invades plaintiffs property in an emergency to protect an interest of his own

i. Remains liable for damages done to plaintiffs property ii. Never liable for nominal or punitive damages iii. As long as the emergency continues, plaintiff cannot throw the defendant off that property but must allow the defendant to remain in place. Defamation 3 elements: A. Defamatory statement made by the defendant that specifically identifies the plaintiff a. Clearly defamatory allegations of facts that reflect negatively on a trait of character b. Not defamatory merely name calling; true subjective statement of opinion c. Intermediate statements of opinion that imply facts can be treated as defamatory (1) Does statement have precise meaning that is regularly understood by listeners? (2) Can statement be proven true/false? (3) Does context signal opinion rather than fact? d. Refers to small group every member of the group will have a claim e. Refers to large group no member will have a claim f. Plaintiff must be alive when the statement is made B. Publication of that statement statement made to ONE person other than the plaintiff himself; publication can be accidental or negligent C. Damage a. Damages presumed for libel and slander per se i. Libel defamatory statements written down or captured in a permanent format ii. Slander oral/spoken defamation 1. Slander per se falls into one of four categories: a. Statement relating to plaintiffs business/profession b. Statement that plaintiff has committed a crime of moral turpitude (serious crime w/ a moral dimension) c. Statement imputing unchastity (virginity, not promiscuity) to a woman d. Statement that plaintiff suffers from a loathsome disease (e.g., leprosy, venereal disease) b. Actual economic damages must be proven for slander not per se i.e., lost job, business contracts; insufficient to prove social or emotional harm c. NY Distinction: Libel that is not defamatory on its face (i.e., requires additional evidence to make out its defamatory import) and it doesnt fall into a per se category, then NY requires damages to be proven. Are Special Damages Required? Statement at Issue Is: Libel Slander Defamatory on face; is one NO NO of slander per se

categories Defamatory on face; not one of slander per se categories Defamatory only by extrinsic fact; is one of slander per se categories Defamatory only by extrinsic fact; not one of slander per se categories

NO NO YES

YES YES YES

Affirmative Defenses to Defamation A. Consent see above B. Truth defendant can prove that alleged defamatory utterance is factually accurate C. Privileges a. Absolute Privilege arises based on identity or status of the speaker i. Spouses who are communicating with each other ii. Government officials engaged in their official duties in judicial branch, applies to lawyers and witnesses as well iii. Fair reporting privilege granted to media defendants when making an accurate report of a public proceeding b. Qualified Privilege based on circumstances or occasion for the speech; arises whenever there is a public interest in encouraging candor (e.g., statements made to investigating police); two requirements i. Statement must have been made in good faith with a reasonable belief that it was accurate ii. Defendant must confine himself to matters that are relevant. If extraneous material injected, then privilege lost D. First Amendment Considerations If subject of defendants statement is a matter of public concern, then two elements are added (to make more difficult; law wants to encourage dissemination of information) a. Plaintiff must affirmatively prove that the statement was false b. Plaintiff must prove fault (statement made in something other than good faith, not an honest mistake). Kind of fault that must be proved depends on type of plaintiff i. Public figure must prove defendant knew statement was false and made it anyway or was totally reckless and made it anyway 1. Public figure if they call a press conference and people will come ii. Private figure only necessary to prove that the statement was made negligently Privacy Causes of Action

A. Appropriation using plaintiffs name or picture for a commercial purpose; not limited to celebrities a. Newsworthiness exception e.g., Tom Bradys picture on magazine cover b. NY Distinction: Only privacy tort recognized in the state of NY, and its recognized by statute. No common law right of privacy in NY. B. Intrusion invasion of the plaintiffs seclusion in a way highly offensive to an average person; must be in a place with an expectation of privacy; e.g., surveillance, wiretapping, peeping Toms C. False Light widespread dissemination of a major falsehood about that plaintiff that would be offensive to an average person a. Widespread dissemination contrasts with publication element of defamation; defendant must tell a lot of people (more than just 1) b. Major falsehood can be, but need not be, defamatory; broader than defamation c. Defamation = economic damages; here, social and emotional damages too D. Disclosure widespread dissemination of confidential information about the plaintiff that would be highly offensive to an average person; e.g., accountant sends your tax return to everyone in your building, doctors office sends your medical records to your entire work place a. Disclosure vs. defamation / false light here, information being circulation is true (but sensitive or intimate) b. Newsworthiness exception c. Underlying information has to be truly private; only quasi-private will not work i. Hypo: John (whos not out at work) seen by a co-worker at a gay rally. Not a confidential fact he was at a public demonstration. Affirmative Defenses to Privacy Causes of Action A. Consent B. For false light and disclosure only: Defamation Privileges spouses, public officers, qualified privilege to encourage candor Fraud / Intentional Misrepresentation / Deceit A. Involves a commercial transaction usually the sale and purchase of an item B. No affirmative defenses C. 5 elements a. Misrepresentation of fact silence is not enough b. False statement made intentionally or recklessly not an honest error; e.g., cant remember exactly when you put a new transmission in car c. Intent to induce reliance no cause of action where D did not intend to induce a third partys reliance d. Justifiable reliance statement must be central to the transaction and it must influence the plaintiffs action e. Damage suffer some kind of loss Malicious Prosecution

Defendant files either a civil or a criminal (via complaining to a prosecutor) proceeding against the plaintiff. Plaintiff wins. First cause of action filed without any probable cause and was brought for an improper motive. Plaintiff suffered damage (almost always satisfied if you have to incur loss, loss of time to defend a baseless lawsuit). Essentially, baseless lawsuit filed for an illegitimate purpose. Business Torts A. Prima Facie Tort intentional infliction of pecuniary harm without justification a. Two elements disinterested malevolence i. Intent to do harm, no personal interest in doing it 1. Defined so competition not a tort ii. Inflicts harm b. NY Distinction: NY tort only. Not on MBE. B. Inducing a Breach of Contract 5 elements a. Existence of a contract between plaintiff and a third party b. Knowledge of that contract by the defendant c. Persuasion by the defendant directed at the third party designed to get the third party to abandon the contract d. Third party breaches the contract e. Absence of privilege (most often tested) i. When there is a special or pre-existing relationship, usually in the nature of being a counselor/adviser/some other trusted person, then there is a privilege C. Theft of Trade Secrets 2 elements a. Valid trade secret 3 requirements i. Information that provides a business advantage to the owner ii. Information must not be generally known iii. Owner takes reasonable efforts to keep it a secret, some precautionary measures b. Taken by improper means 2 types i. Traitorous insider learned secret originally by confidential disclosure by its owner (e.g., employee, licensee) ii. Industrial spy stranger to enterprise uses some unsavory method to learn the secret Negligence Duty A. Overview a. Obligation to take risk-reducing precautions b. Owed to foreseeable victims (i.e., inside the zone of danger) B. General Rule a. Amount of care that would be exercised by a hypothetical reasonably prudent person acting under similar circumstances; objective standard i. Automatically applies in all cases unless displaced by another rule ii. Write: Because no special duties are relevant on these facts, the general or default standard of care would govern here, namely the

care of a reasonably prudent person acting under similar circumstances. b. Personal attributes dont count; i.e., very dumb person, mentally retarded held to the same standard i. Exception If defendant has superior skill or knowledge, then that becomes part of the reasonably prudent person analysis; e.g., NASCAR driver in car accident c. Physical attributes will be built in if they are relevant; e.g., If blind and vision is relevant to case, then standard will be a reasonably prudent person who cannot see Duty Six Special Standards of Care [all 6 virtually guaranteed to be on exam] A. Negligence Claims Against Children a. Exercise the care of a hypothetical child of similar age, experience, and intelligence acting under similar circumstance; subjective standard i. Exception If child is engaged in adult activity (always operating a motorized vehicle on the exam), then no special standard; use adult reasonably prudent person standard B. Negligence Claims Against Professionals / Malpractice Claims a. Exercise the skill and knowledge normally possessed by members of that profession in good standing in similar communities; neither objective nor subjective empirical standard of care (i.e., go out and investigate) b. Informed consent duty doctor has the duty to explain the risks of a medical procedure to a patient prior to undertaking that procedure so that the patient can make an informed decision i. 4 situations where informed disclosure not required 1. No duty to disclose commonly-known risk; e.g., infections when invasive procedure 2. Patient declines disclosure 3. Patient is incompetent (i.e., mentally ill) 4. If disclosure would be harmful in a way other than causing the patient to decline the procedure (e.g., prone to panic attacks, which could induce a heart attack so dont tell) C. Premises Liability Cases a. Injury by dangerous object/hazardous condition. If injury by activities on land, then not a premises liability case b. Unknown Trespasser zero duty owed c. Known or Anticipated Trespassers when there has been trespassing in the past i. Duty to protect from any condition that meets a four-part test 1. Artificial condition 2. Highly dangerous must be able to cause death/serious bodily injury 3. Dangerous condition concealed from entrant 4. Condition known to defendant

d. Licensees enter land with permission (express or implied) but do not confer an economic benefit on the possessor; e.g., social guest, Girl Scouts selling cookies, meter reader, political activist with petition i. Duty to protect from hazards that meet a two-part test 1. Dangerous condition concealed from entrant 2. Condition known to defendant e. Invitee enter with permission and either (1) confer economic benefit on the possessor or (2) the land is held open to the public generally i. Duty to protect from hazards that meet a two-part test 1. Concealed from entrant 2. Defendant knew about hazard or could have discovered with reasonable inspection a. Reasonable inspection would have been performed by the reasonably prudent person; takes into accounts costs vs. benefits, community standards f. NY Distinction: NY abolished adherence to these categories as a standard of duty and applies only a reasonably prudent person standard of care in premises liability. The plaintiffs status, while no longer determinative, remains relevant in connection with the foreseeability of his presence and nature of precautions required to meet the standard of reasonable care under the circumstances. Essay: Because plaintiff was a trespasser, then the reasonably prudent person does not exercise great care to protect a trespasser. g. Firefighters and Police Officers Doctrine can never recover in negligence for inherent risk of job i. NY Distinction: In NY, the doctrine only applies if the firefighter is suing his employer or a co-worker; otherwise the doctrine is abolished; i.e., firefighter can assert negligence claim if he is hurt by a fire that is negligently set h. Child Trespassers possessor owes a duty of reasonable prudence to protect trespassing children from artificial conditions on the land i. Attractive Nuisance Doctrine if there is something on the land that draws children in, it is more likely that land possessors will be liable because they should have expected it; applies even if Object A attracts children but Hazard B hurts them i. Two ways possessor can satisfy duty of care (and avoid legal liability) i. Fix problem repair and make safe ii. Give warnings if adequate in nature, fully satisfies duty D. Statutory Standards of Care a. Asks court to borrow legally irrelevant criminal statute in negligence suit; e.g., traffic regulations b. Violation treated as conclusive evidence of breach, negligence per se c. Plaintiff allowed to borrow statute when he established a two-part test i. He is a member of the class of persons the statute seeks to protect ii. The accident is in class of risks that the statute seeks to prevent d. Exceptions

i. If obeying a statute would be more dangerous than violating it, then do not borrow statute even if it meets two-part test ii. Compliance with the statute is impossible under the circumstances e. If statute doesnt apply (exception or 2-part test), use general standard E. Duties to Act Affirmatively a. No duty to act affirmatively; no duty to rescue a person in peril b. Exceptions i. Pre-existing relationship triggers a duty historically just legal relationships (innkeeper/guest) but modern trend applies to all relationships (e.g., dinner with a friend) ii. If defendant caused the peril (negligently or not negligently, it doesnt matter), then a duty to rescue c. When applicable, duty to reasonably under the circumstances. Do not have to put your life in jeopardy. d. A gratuitous rescuer must act as a reasonably prudent person; can be held liable for negligence if they screw up i. NY Distinction: Good Samaritan Statute applies only to nurses, doctors, and veterinarians; insulates them from ordinary negligence if they choose to gratuitiously rescue F. Negligent Infliction of Emotional Distress a. Negligent act but no physical trauma to plaintiff b. Three Kinds i. Near-miss cases actions almost hurt plaintiff directly; defendants negligence put plaintiff into a zone of physical danger 1. Plaintiff must prove subsequent physical manifestations of the distress ii. Bystander actions kill or seriously injure a third party 1. Two requirements a. Plaintiff close family member of injured b. Plaintiff must see injury as it happens c. NY Distinction: Plaintiff himself must have been in the zone of danger as well iii. Relationship plaintiff and defendant are in a preexisting business relationship and highly foreseeable that negligence by defendant will distress plaintiff; e.g., medical laboratory gives incorrect cancer results to plaintiff, funeral home makes mistake Negligence Breach A. Overview a. Requires plaintiff to do 2 things i. Identify the faulty behavior that the defendant engaged in, his failure to exercise reasonable care; could be an act of commission or omission ii. Explain why that behavior is faulty, reason demonstrating that it falls below the standard of care

b. Essay Duty/Breach: In this case, plaintiff will say that the breach was defendants looking away from the road to change the radio station. That is unreasonable because reasonable people keep their eyes on the road. B. Res Ipsa Loquitur utilized by plaintiffs who lack information of what the defendant did wrong; allows them to avoid/withstand directed verdict a. Allow to go forward without evidence of breach if can satisfy 2 prongs i. Must show accident was of a type normally associated with negligence; probability argument 1. Can rule out non-negligent explanations ii. Must show accident of this type is normally due to the negligence of someone in the defendants position 1. Demonstrate that defendant had control over the injurycausing object at the time that the breach was most likely to have occurred Negligence Factual Cause A. Overview a. Requirement that plaintiff establish connection/linkage between the breach that was just identified and the harm that was suffered b. Essays: i. Defendants are not factual causes, breaches are factual causes. ii. Always use indefinite article a; breach was a cause, not the c. But-for test plaintiff must demonstrate that but-for the breach, he would be uninjured today i. Parallel universe with no breach. Plaintiff uninjured, then satisfies but-for test B. Merged Cause two negligent defendants, each of whom releases a destructive force in the world; e.g., two separate fires merge and burn down item a. No but-for would lead to illogical results b. Substantial Factor analysis breach was theoretically capable of causing the entire harm by itself c. If both breaches are substantial factors, then two defendants are jointly liable; typical outcome C. Unascertainable Causes e.g., two hunters negligently shoot at the same time and in the same direction, one shot (cannot tell which) blinds a third hunter a. Shifts burden of proof to defendants to explain why their particular breach was not the responsible event; if neither can do it, then hold them jointly liable Negligence Proximate Cause A. Overview a. Requires that liability would be fair done by showing that was happened in this instance was a foreseeable consequence of the breach B. Direct Cause Defendant commits breach, plaintiff immediately suffers harm a. Injury almost always foreseeable; almost always going to call breach proximate cause

b. Only deny recover due to proximate cause if the outcome was freakish and bizarre C. Indirect Cause Defendant commits a breach, more stuff happens, then plaintiff suffers injury a. Four Well-Settled Precedential Scenarios i. Intervening Medical Negligence/Malpractice Defendant runs red light, hits pedestrian, break pedestrians leg. Negligent doctor forces leg amputation. Driver liable for broken and amputated leg. 1. Negligent doctor remains liable for his carelessness as well ii. Intervening Negligent Rescue Rescuer grabs and drags pedestrian, dislocating his shoulder. Driver liable for both broken leg and dislocated shoulder. iii. Intervening Protection or Reaction Forces Others in crowded crosswalk are panicking and stampede to get out of way. One steps directly on face of pedestrian with broken leg. Driver liable for both broken leg and facial disfigurement. iv. Subsequent Disease or Accident Pedestrian gets crutches, which cause him to fall and break his arm. Driver liable for both broken arm and leg. b. If doesnt follow well-settled fact pattern (1) Look at breach. What is it about the conduct that Im afraid of? (2) Ignore everything in middle of story and just look at injury at end. Is that what you were afraid of? (3) If yes, proximate cause. If no, not a proximate cause. i. Hypo: A and B at lunch. A eats bad shrimp, vomits in bathroom. B goes to check on her, slips in vomit, and breaks a bone. Restaurant not the proximate cause of Bs broken bone. Negligence Damages A. Eggshell skull principle thin skull rule Once a plaintiff has established all other elements of a case, plaintiff recovers for all damages suffered, even if they are surprisingly great in scope B. NY Distinction: A recovery by a plaintiff in tort will be reduced by any recoveries/money received by other sources such as insurance Affirmative Defenses to Negligence A. Contributory negligence and assumption of the risk abolished in NY and the majority of states a. NY Distinction: Primary assumption of the risk statement that we are dealing with a reduced standard of care, primarily in athletic cases duty of care in sports is merely to refrain from reckless conduct b. NY Distinction: Failure to wear a seatbelt is not considered to be an affirmative defense but instead is a mitigation of damage; cannot recover for enhanced damages associated with your failure to put on the seatbelt B. Comparative Negligence defendant proves that plaintiff failed to exercise proper care for his own safety

a. Proper care reasonable prudence for your own safety -OR- failure to observe a self-protective statute (e.g., dont jaywalk) b. Plaintiffs recovery reduced based on his percentage of fault c. Two different kinds i. Pure Comparative Negligence Default on MBE and rule in state of NY; go strictly by percentages 1. NY Distinction: In NY, one injured as a direct result of her own illegal conduct involving risk of physical harm may not recover for her injuries, in spite of the comparative fault statute. ii. Modified or Partial Comparative Negligence only use on MBE if mentioned by name; plaintiff fault < 50% reduces recovery; plaintiff fault > 50% is an absolute bar to recovery Strict Liability A. Strict Liability for Products four elements a. Defendant is a merchant (i.e., someone who routinely deals in goods of this type) i. Casual seller (e.g., eBay) not a merchant; no strictly liability ii. Service provider often makes products available incidental to their services but are not merchants of these products; no strict liability iii. Lessor of products/personal property (no real estate) merchants iv. Every party in a distribution chain is a merchant. Privity of contract not required for strict liability claim b. Product defective three kinds i. Manufacturing defect product departs from its intended design; different from all others that came off of assembly line ii. Design defect if theres another way it could have been built that meets a three-part test 1. Safer hypothetical alternative design safer than version actually marketed 2. Cost-effective costs about the same or slightly more 3. Practical cannot interfere with the operation or use of the product in ordinary course; cant make cumbersome or hard to handle iii. Information Defect product has residual risks that cannot be designed away (too expensive to get rid of or getting rid of would make product ineffective) -AND- consumers are unaware of those residual risks 1. If product can be redesigned under design defect test, then a warning will not insulate merchants from liability 2. If product does not conform to a government regulation, then defectively designed. If it does, evidence of non-defect but not conclusive. c. Product not altered since it left defendants control

i. If moved in ordinary channels, this element is presumed and the burden shifts to the defendant to disprove it. d. Plaintiff must be making a foreseeable use of the product i. A foreseeable use does not have to be a proper use. Many misuses of products are foreseeable. B. Abnormally Dangerous Activities e.g., blasting/any use of explosives; highly toxic chemical or biological material; involving nuclear energy or radiation a. Strict liability for abnormally dangerous activities b. Two-part test for abnormally dangerous activity i. Activity cannot be made reasonably safe even when reasonable care is exercised ii. Activity not a matter of common usage in the community c. Safety precautions are irrelevant and should be ignored C. Injuries Caused by Animals a. Domesticated Animals house pets and farm animals i. No strict liability for injuries caused by domesticated animals ii. Exception If animal has vicious or dangerous propensities -ANDyou have knowledge of those vicious or dangerous propensities, then you can be held strictly liable. 1. Generally, dog has previously bitten someone else 2. NEVER strict liability to a trespasser on your land. iii. NY Distinction: On MBE, you can be held liable for negligence if it leads to an animal-related injury. In NY, there is no negligence liability for injuries caused by domesticated animals. b. Wild Animals i. If you keep a wild animal, youre strictly liable ii. Safety precautions are irrelevant and should be ignored Affirmative Defenses for Strict Liability A. Comparative Responsibility any plaintiff misconduct, foolishness, inattention, or cockiness will result in an assignment of percentage blame to plaintiff and a reduction in recovery Nuisance A. Interference with the enjoyment of the use of the land to an unreasonable degree B. No particular frame of mine required C. Balance interests Defendant should be able to use his property as he sees fit. But plaintiff should be free from oppression, misery, and unreasonable interference. Workers Compensation Awards A. Employer is liable to the employee through insurance for a fixed amount of compensation, regardless of any fault; employee is barred from litigation a. Bar against litigating extends to suits against co-workers; e.g., cant sue co-worker for dropping a bar on your foot

B. C.

D. E.

i. Exception can sue co-worker if he was acting outside the scope of employment Independent contractors, teachers, part-time household employees, and clergy not covered Covered injury required almost anything that happens during course of employment a. Exceptions No insurance benefits where: i. Employee injured due to his own intoxication ii. Employee intentionally tried to injure himself or others iii. Injured during a voluntary, off-duty athletic activity b. Can recover benefits where: i. Illegal activities e.g., roofer falls off roof while trying to steal downspouts from homes gets workers comp ii. Horseplay Receive all medical expenses, 2/3 of average weekly pay, and statutorily specified benefit if causes death Only bars lawsuit against employers and co-workers, not others. Can still sue third parties, e.g., manufacturer for products liability

Miscellaneous Topics A. Vicarious Liability four relationships tested a. Employer/Employee employer vicariously liable if committed in scope of employment i. Intentional torts normally outside scope of employment. 1. Exceptions a. Job involves use of force, then vicarious liability for misuse of that force b. Job generates friction, tension, animosity c. Intentional tort done out of misguided effort to advance the employers purposes b. Hiring Party / Independent Contractor no vicarious liability for torts of independent contractor i. Exception hiring party liable to invitees on his property if they are injured by an independent contractor c. Automobile Owner/Driver generally, no vicarious liability for torts of driver i. Exceptions 1. General exception If I lend you my car so that you can do an errand for me. Principal/agent relationship here 2. NY Distinction: NY is a permissive use state. Vicarious liability for anyone driving your car with your permission. d. Parent/Child parents are not liable for the torts of their children i. NY Distinction: NY statute provides very limited liability up to a very low statutory maximum e. Never use until you ask yourself: Can I hold this defendant directly liable for his own conduct?

B. Co-Defendants a. Plaintiff wins judgment against multiple defendants and collects all the money from one of the co-defendants, the out-of-pocket defendant b. Jury assigns percentages to each defendant and out-of-pocket defendants recovers accordingly c. Exceptions out-of-pocket defendants gets ALL of the money back (i.e., indemnification) i. Vicariously liable defendant gets indemnification from an active tortfeasor ii. A non-manufacturer (typically a retailer) gets indemnification from manufacturer in a strict products case. C. Loss of Consortium a. Separate cause of action for spouse/parent in his own name b. Three components of damage that might not otherwise be compensable loss of household services, loss of society (i.e., companionship, friendship, interaction), loss of sex c. All three items must be proven, they are not presumed NY Distinction Rules A. When a cause of action owned by the decedent in his lifetime survives and the injury causes death, the damages recovered in the action are part of his estate and will be distributed according to his will or by intestacy. Damages are limited to those accruing before death (damages for the death itself are recovered in a wrongful death action). Because the decedents debts must be paid, the damages are reachable by the decedents creditors. B. A wrongful death action must be brought within two years from time of death. The action usually is consolidated with the surviving action for the decedents pre-death injuries. The plaintiff has the burden of proof except as to the decedents culpable conduct. The death of the beneficiary does not discharge the action, but pecuniary damages to the beneficiary are computed only up to the date of the beneficiarys death. C. There is no intra-family immunity of any kind in NY. However, a parent does not owe a duty to his child to exercise due care in supervising the childs day-to-day activities; therefore a child cannot sue his parents for negligent supervision.

D. Bonus Topics Personal Property A. Found Property a. Abandonment Owner has given up possession of an item with intent to give up title and control. Inferred from circumstantial evidence. i. Finder can acquire title by taking control and having an intent to acquire title b. Lost Original owner always continues to own lost property i. If item worth < $20 must make reasonable efforts to locate the owner. After one year without success, the finder may keep the item ii. If item worth > $20 must turn over to the police. If, after statutorily specified period of time, the owner does not claim, the finder may go back to the police and get it. B. Gifts a. Inter vivos gifts 3 requrements to pass title: i. Donor must have donative intent inferred from surrounding circumstances ii. Donee must accept the gift. Silence counts as a valid acceptance. iii. Valid delivery of the item Donor must turn over possession of the item or something representative of it 1. 1st party check Written by Generous to Lucky. Not delivered when physically handed over. Only delivered when cashed. Generous can stop payment. 2. 3rd party check Written to Generous but endorsed by Generous Pay to the order of Lucky. Delivered when physically handed over. 3. Stock certificates Delivered when handed over. Transfer on corporate books not required. 4. Agents If intermediary parties are used in transfer, item considered delivered when turned over to the agent of the donee b. Causa mortis gift in contemplation of death i. Requires imminent risk of death that is likely to occur (objective test) ii. Gift only valid if the donor dies first. Gift not valid if the donee dies first. C. Liens security device used to enforce the payment of a debt a. 3 requirements: (1) debt for services; (2) debtor must retain title to that object; (3) creditor must have possession b. General lien gives creditor the right to obtain all rights of property as security for a general balance due. If creditor gives debtor one item, that does not release their lien. c. Special lien lien on a particular item where there have been services performed on that item. Lien released if creditor gives debtor the item back.

D. Bailment owner of personal property gives that property voluntarily to someone else for a limited time and for a limited purpose a. Items inside other items if typical and customarily found there, then that creates a bailment as well i. Hypo: Spare tire in trunk of car in parking garage = bailment created for spare tire b. Safe deposit boxes bank liable for anything in safe deposit box c. Garage if garage requires you to turn over your key, then that creates a bailment for the car. If you park and lock your car, no bailment for the car. No duty of care to ensure that your car is not damaged or stolen. d. Coat check liability depends on whether or not you pay a fee and whether or not you declare a valuation. No-Fault Insurance only tested on NY exam; likely to be an essay subject A. Overview a. If you see an automobile accident, think about no-fault insurance b. Only relates to personal injury, not property damage c. Who has a claim against Joes insurance company? Joe, authorized drivers of Joes car, passengers in Joes car, pedestrians hit by Joes car i. Passengers in other car in accident would look to that drivers insurance company d. No-fault benefits denied to drink drivers, drag racers, and car thieves or other fleeing felons e. Receive i. Medical expenses ii. Lost wages for up to 36 months, capped in 2 ways 1. No more than $2,000/month, or 2. 80% of true wages iii. Additional $25/day of miscellaneous expenses iv. NOTHING for pain and suffering v. Cant get more than your policy limit f. Benefits are portable entitled to no-fault benefits even for accidents in another state B. When, despite the no-fault statute, are you still permitted to go to court? a. If you have more than basic economic loss -ORi. (1) Medical expenses + (2) 80% of lost wages up to limit of $2,000/month + (3) $25/day for miscellaneous expenses. If this is over $50,00 over the course of one year, then you can bring a lawsuit. b. If you have a serious injury i. Any one of the following (1) death; (2) dismemberment (losing a limb); (3) significant disfigurement; (4) fracture (broken bone); (5) loss of a fetus; (6) permanent loss of a bodily organ; (7) permanent limitation on the use of a limb or a bodily organ; (8) non-permanent injury but one that prevents you from performing your normal activities for 90 days

c. If entitled to bring a lawsuit, you can still recover your insurance benefits. Your insurance recovery is just deducted from final award. Injunctions A. Injunctive relief and monetary relief are not mutually exclusive; can get both B. Preliminary or Permanent a. Preliminary granted at beginning of lawsuit; designed to preserve status quo i. Plaintiff applies for at the beginning of the case. Must make a special two-part showing: 1. Must show a likelihood of success on the merits 2. Must demonstrate irreparable injury if not given injunction b. Permanent granted at close of proceedings as relief on the merits i. Must make a four-part showing: 1. Must show that you have no adequate remedy at law a. Remedy at law = monetary remedy b. 3 situations (1) defendant has no money; (2) harm impossible to measure in monetary terms (e.g., priceless work of art); (3) tortious conduct is repetitive or ongoing 2. Must show that you have a property interest or a protectable right at stake a. Protectable right involved in every tort; e.g., battery = bodily integrity; false imprisonment = freedom of mobility; invasion of privacy = privacy 3. Injunction must be enforceable a. Negative injunction easier to enforce so long as there is personal jurisdiction; can hold the defendant in contempt b. Mandatory injunctions are more subjective, courts dont like to have to evaluate whether or not the performance is adequate. Discuss: (1) the more complex the conduct, the harder it will be to enforce; (2) the longer the task will take, the harder enforcement will be; (3) any requirement that activities take place outside the jurisdiction, then harder to enforce 4. Balance of hardships must tip in the plaintiffs favor C. Negative or Mandatory a. Negative Do not do X; you are legally forbidden from doing X b. Mandatory Go out and undertake activity Y D. Special Defenses do not defeat liability on the merits but may persuade a judge not to enter an injunction a. Unclean hands because injunctions are special, plaintiff must be free from blame; plaintiff misconduct can be grounds for denying injunction

b. Laches prejudicial delay; if plaintiff did not sue promptly and defendant changed position in reliance on plaintiffs inaction, then no injunction c. First Amendment injunctions that attempt to prevent someone from speaking run afoul of the First Amendment; comes up particularly in defamation, sometimes disclosure and false light