Ma Bar Review - Tort Lecture Notes

TORTS LECTURES

INTENTIONAL TORTS Two overview observations: 1. The hypersensitivity of a plaintiff is never taken into account in deciding if plaintiff has a valid claim (always assume that we are dealing with a typical person). 2. There are no incapacity defenses in the law of intentional torts. a. TIP: On the exam, they will put someone who lacks legal capacity on most branches of the law and commit an intentional tort. Do not fall into this trap! A child can and commit intentional torts and can be held liable. A. Battery a. There are two (testable) elements to the cause of action: i. There must be a harmful or offensive contact ii. This contact must be with the plaintiff’s person 1. Plaintiff’s person covers anything connected to the plaintiff. It does not have to be immediate. I.e., briefcase. (Deliberate disagreeable contacts) TIP: “un-permitted” – a touch that is offensive to a person of normal sensitivity. I.e., tapping someone on the shoulder is not good enough for a cause of action. b. B. Assault a. Two elements i. The defendant places the plaintiff in a reasonable apprehension 1. The word apprehension does not mean fear - we use it hear as a synonym of knowledge, understanding. (While fear will suffice you do not need fair). 2. “Unloaded gun problem” – the defendant will lack the ability to bring the attack to conclusion. Always analyze these questions from the plaintiff’s side. I.e., if the plaintiff knows that the gun is unloaded – then he does not apprehend the touching. However, if he does not know – he would be in apprehension of the touching. a. An apparent ability can create a reasonable apprehension. ii. The apprehension must be one of immediate battery 1. Assault is not about generic threats – it is the threat of an immediate unpleasant touching. 2. “Mere words” are never considered to be by themselves an actionable assault. “Talk is cheap!” a. Must have overt physical conduct to make the threat immediate and genuine. I.e., pull out a knife, run toward the person. 3. Sometimes even if you have conduct, words may negate the immediacy. a. Conditional or subjunctive words – words that have an “if” clause. I.e., “if you weren’t my best friend I would beat the crap out of you.”

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b. Words are of future threat – not present. (Need to be in an immediate threat). C. False Imprisonment a. Two elements: i. An Act of restraint 1. Threats can be an act of restraint. I.e., If you see someone sitting in a room and you say –“if you leave this room I will kill your son.” The threat must be one that operates on someone of normal sensitivity. 2. An omission can be an act of restraint, if there is a pre-existing duty to help people move around. I.e., a person who is sentenced to 30 days of jail – the sheriff does not let him go after the 30 days are up – the act of restraint would be the failure to open the door. 3. An act of restraint only counts if the plaintiff is aware of the restraint or suffers harm. An oblivious plaintiff cannot win a claim. ii. Confinement in a bounded area 1. You have to lock the plaintiff in to be confinement in a bounded area. Keeping someone out is not false imprisonment. 2. If an area has a reasonable means of escape that plaintiff can reasonably discover is not a bounded area. i. If there is a way out you are not locked in! e.g. having to go out through an abandoned pipe full of rats is not a reasonable means of escape. ii. The plaintiff must be able to discover the way out. D. Intentional Infliction of Emotional Distress a. Two elements: i. Defendant engages in outrageous conduct 1. The outrageous conduct is done with the intent of causing the distress. However, it also includes reckless behavior a. Mere insults are not considered outrageous enough. 2. Three situations that provide us with a pretty good indication of outrageous behavior: a. If the behavior is continuous or repetitive (it is easier to label it outrageous) b. If the Defendant is a common carrier (transportation companies) or an innkeeper (and hotels). I.e., hotel serves you up a rat. c. A plaintiff who is a member of a fragile class of persons: i. Three fragile classes (commonly tested); 1. Young children 2. Elderly (got to be very old) 3. Pregnant women 3. It is outrageous to target a plaintiff’s particular weak spot (exploitation of a known sensitivity) 4. Outrageous – conduct that exceeds all bounds of decency tolerated in a civilized society (good only for an essay).

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ii. Plaintiff suffers severe stress as a consequence. 1. The stress has to be significant. I.e., you get put on depression medication as a result – this is good enough. However, you do not have to have physical symptoms. E. Trespass to Land a. Intent: The only intent required is that the defendant arrived at the location voluntarily. There is no requirement that the defendant knows that he is on someone else’s land. The plaintiff does not have to put up a fence or a sign. 1. No intent when you have a heart attack and you fall on someone’s lawn Two elements: a. Physical invasion i. Two ways to satisfy: 1. Entering the property (either on foot or on a vehicle) 2. A defendant propels (throws) physical objects onto the land. a. I.e., throwing rocks to another’s property, b. A non-physical project does not count. I.e., putting lights on your property and shining it down on your neighbor’s property. Loud music is not physical invasion. Smoke – if the smoke is a thick, dark smoke that attaches to furniture / clothes – yes it could be physical invasion. b. Land ii. In the tort of trespass the plaintiff’s interest includes the air above and the soil below out to a reasonable distance. I.e., a little boy throws a ball four feet above your land – he has invaded your airspace. F. Trespass to chattel and conversions – these are remedies for vandalism and thefts of personal property – movable assets. a. If the magnitude of the injury is relatively slight – use trespass to chattel. I.e., someone takes out a key and scratches your car. b. If the amount of harm is significant or extensive – this is conversion. Someone steals your car and takes it to get dismantled – conversion. c. In conversion, the plaintiff is entitled to treat it as a forced sale and therefore be entitled to recover the full value of the chattel. “you break it you bought it” TIP: Analyze from the perspective of the owner of the chattel – not the chattel. G. Personal Property a. Finders of personal property i. The right of a finder of a personal article, i.e., hat, umbrella, depends on whether the item is abandoned or lost: 1. Property is abandoned when an owners gives up possession with the intent to relinquish title. a. A finder is considered the lawful owner of abandoned property whenever he takes possession with the intent to obtain control. 2. Property is lost when the owner accidentally parts with possession, but has no intention to reclaim title.

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a. If the property has a value of under 20 dollars, the finder has to make a reasonable search for the owner, and if after a year you don’t find the owner, you can keep it. b. If the item is over 20 dollars, the finder is supposed to turn it over to the police. The police are supposed to hold it for a period of time. i.e., if the item is between $100-$400 dollars – the police has to hold it for six months. If the true owner does not go and get it within the time period the finder can go back and get the item from the police. b. Gifts i. Inter vivos 1. Donative intent 2. There must be acceptance by the donee (silence is good enough to manifest acceptance). If you reject it – then the gift is not complete. 3. Delivery – either the actual personal property has to be handed over or something representative of the property. I.e., you can just hand the car keys or title to the car. a. Checks: First party check – when handing a check – delivery is not completed until the check is cash. The donor can change his mind anytime before cashing. b. Third Party Check – delivery is complete when you hand it over (indorsed). This is because the person cannot stop the payment of the check. c. Stock Certificates – delivery is complete when you hand over the certificate. d. Use of agent by donor or donee- if it is the agent of the donor, delivery is not complete until the agent turns it over to the donee. If it is the donee’s agent – the minute is given the agent the gift is complete. 4. A gift causa mortis – “a gift in contemplation of death” - the intent comes from the idea of an imminent danger. You need an imminent risk of death and the death must be likely to occur. If there is reason to doubt either of these issues, then you don’t have a gift causa mortis and you would have to hand over the property. The donor has to die before the donee. If the donee dies first, then you can get the gift back. c. Liens i. Liens are rudimentary security interest. A lien is the right to possess and retain some item of personal property that has been improved or repaired or enhanced in value, until the person owing the property satisfies a debt. I.e., the mechanic does not have to give you back a car until you pay. 1. Three elements: a. Debt has arisen for services performed b. The debtor has formal title to the item c. The creditor has possession.

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2. Generally speaking if you have one item and you are holding it to secure a debt but your return the item to the person – you release the lien – the release of the property in effect will discharge a lien. 3. General Lien – is a situation where the lien holder possesses a bunch of property and has a general balance due. Releasing one item does not discharge the lien as to the remaining item. d. Bailment i. A bailment involves giving someone possession of personal property for some particular purpose. Owner is called the bailor and the person holding it is called bailee. The bailee has a duty to protect the property. He is responsible for damages. ii. General rule (an item contained in another) – There a duty of things that are reasonably found inside the other item. I.e., car and the spare tire inside – are both protected. Not if you have a mummy in your car – the mummy is not covered (not usually found there. 1. Parking lot – in order to create a bailment you have to turn over the key. (distinguish from a “park and lock” that is not an bailment) 2. Safe deposit boxes – the bank is responsible for anything that you put inside – does not matter what. 3. There are statute limiting the liability of coat check operators – the liability is cap at 200 dollars if you do not pay. iii. Exculpatory clauses – it is impermissible to attempt to void liability to intentional torts or gross negligence. 1. You can disclaim liability but you have to inform the person – cannot be a hidden disclaimer.

DEFENSES TO INTENTIONAL TORTS A. Consent a. Only person with legal capacity can give a valid consent. b. If you have capacity – two kinds of consent: i. Express consent – it is literally words in quotations marks given the Defendant permission to behave in a certain way. 1. Exception: an express consent is void if it is given under fraud or duress. One night stand cases – person sleeps with someone consensually and contracts HIV – consent is void by the court. ii. Implied consent 1. Custom and usage – If a plaintiff goes to a place or participates in an activity where invasions are customary – you consent to those invasions. a. Playing sports – you consent to all the invasions that are normal and customary to the game – whether they abide by the rules or they violate them. Key: normal and customary.

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2. Implied consent based on defendant’s reasonable interpretation of plaintiff’s objective conduct b. Reasonable - This could be a jury question. In these cases, we never care about plaintiff’s secret thoughts – the plaintiff’s subjective thoughts are not important. Here we are only concerned with external objective conduct. iii. All consents have a scope – if the defendant exceeds the scope of consent – the defendant goes right back to being liable for a tort. B. Self Defense / Defense of others / Defense of Property a. To raise one of these privileges a person must show: 1. Proper timing (tort must have been in progress or there was imminent danger) – “No revenge” 2. Reasonable belief that a tort is about to be committed against him or third person a. An honest / rational belief does not deprive a person of the defense. 3. Once you establish 1 and 2, then you are entitled to use necessary force, but no more than that. You cannot use excessive force. i.e., cannot shoot someone to stop them from slapping you on the face. This rule also allows for the use of deadly force to protect yourself or another human life. NEW YORK Deadly force – In NY, you have a duty to retreat before resorting to deadly force. No duty to retreat if: 1) you are in your home, 2) a police officer seeking to prevent flight if warning and threat of dead of serious bodily harm. b. Defense of property: Merchants / shopkeepers / store owners are likely to have a defense to false imprisonment when they have a reasonable belief that a person has shoplifted. They detain the person to inquire. i. You can NEVER use deadly force to protect personal / real property. Cannot set deadly traps to protect property. e.g. spring gun example (same concept in Criminal Law). ii. Although you cannot use deadly force to protect property – you are allow to bluff. You can make threats of using force. C. Necessity a. It is only a defense to property torts (trespass to chattel / Land). i. Two kinds: 1. Public Necessity – a public necessity arises when Defendant interferes with plaintiff’s property in an emergency to protect the community as a whole or a significant group of people. “Defendant is basically acting as a good Samaritan” a. The property could be personal or real property.

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2. Private Necessity – arises when a Defendant interferes with plaintiff’s property in an emergency to protect an interest of his own (person / property). Here the Defendant is acting selfinterested. This is a limited defense. Three consequences: i. Defendant must pay for actual harm to the property ii. Defendant is never liable for nominal or punitive damages iii. The person is entitled to remain on plaintiff’s land as long as the emergency continues. (Cannot be expelled – it is like a “right of Sanctuary”) DEFAMATION A. There are three elements to the traditional tort of defamation: i. Defendant makes a defamatory statement 1. A statement can be written or spoken – the format is irrelevant. It can be spoken to one person or read by millions on the paper. 2. The Statement must be about the plaintiff, but it counts only if the plaintiff was alive at the time the statement was made – cannot defame dead people. 3. A statement is considered defamatory if it tends to adversely affect plaintiff’s reputation. It is damaging only if it affects what other people think of you. a. Mere name calling is not considered defamatory / lacks ability to harm reputation b. A purported or alleged statement of fact is required c. An opinion is potentially defamatory if it subjects a purported statement of fact (an opinion that sounds as if based on fact). ii. Defendant publishes the statement 1. “Publication” – only requires that Defendant discloses the defamatory statement to one or more persons other than plaintiff himself. 2. It does not have to be intentional / carelessness counts. iii. Damages, maybe 1. Not all defamations are treated the same. a. Libel – is permanently written defamation. I.e., words written on diary, newspaper. Libel plaintiffs do not have to prove damages. (You can put on evidence of damages, but you don’t have to prove them). You get to the jury on two elements. b. Slander i. Slander per se - Spoken or oral defamation / devastating or damaging to reputation (treated same as libel – no need to prove damages) ii. Four types of statements:

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1. Statements related to plaintiff’s business or profession 2. Statement that plaintiff has committed a crime of moral turpitude 3. A statement implicating the chastity of a woman. I.e., Susan is a slot. Only applies to women – not men. 4. A statement that a plaintiff suffers from a loathsome disease. a. Leprosy b. Venereal diseases iii. Slander not per se - Plaintiff must prove damages to get to the jury. Meaning actual economic loss, i.e., lost of a job, lost of clients, etc. Emotional distress does not count. B. Affirmative Defenses to the tort of Defamation a. Consent (same rules as above) b. Truth is a defense - Defendant has the burden of establishing that the statement is true. If proven as true, Defendant is relived of liability. c. Privilege i. Absolute Privilege – turns on the identity of the speaker 1. communications between spouses a. There is an absolute privilege between a husband and wife when speaking to each other. (this is to encourage open communication in a marriage) 2. Members of the three branches of government a. Particularly the judicial branch – judges, lawyers, witnesses, - this is to avoid lawyers from being liable for calling a criminal Defendant a murderer. ii. Qualified privilege – is based on the occasion of the speech 1. Look for three things together: a. Socially valuable occasion for speech b. The defamatory statement is relevant to the socially valuable occasion c. Defendant made the statement in good faith (Honest but mistaken belief is okay – a legitimate mistake) The statement is going to be factually inaccurate, but an honest mistake 2. If you lie or insert irrelevant information – you are not protected. e.g. letters of recommendation C. The first Amendment Defamation Tort a. Two word test -- “public concern” – if the material that is being spoken or written about is of public concern – then the plaintiff can only sue on this theory –

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not under traditional defamation. I.e., being accused of insider trading on the papers. b. In a First Amendment Case, plaintiff has to show five elements i. Defendant makes a defamatory statement ii. Defendant publishes the statement iii. Damages, Maybe iv. Plaintiff must prove fault 1. Fault relates to the falsity concept. Relates to Defendant’s awareness of the falsity of the statement. How aware was he of the falsity? a. If the plaintiff is a government officer or celebrity – he has to show that the Defendant knew the statement was false or recklessly disregard as to whether it was false. b. Public figure – Intent / recklessness c. Private figure - negligence is the fault standard. v. Plaintiff must prove falsity 1. Means that plaintiff has the burden to establish that the statement is incorrect.

DIGNITARY AND ECONOMIC COURSES OF ACTIONS A. Privacy Torts i. Appropriation (theft) 1. This consists of the use by a defendant of plaintiff’s name or picture for a commercial purpose. I.e., placing someone’s picture on a cereal box without permission. a. In some cases, non-celebrities can have this course of action too. (It is not limited to celebrities / sport figures. b. Exception: Newsworthiness allows newspapers to run pictures of celebrities / people for news purposes ii. Intrusion 1. Invasion of plaintiff’s secluded space in a way that would be objectionable to an average person. This action is asserted against a private party (here we are not talking about the government. a. e.g. Wiretapping phone, secretly recording / spying / observation. b. The claim is not viable unless you have an expectation of privacy. You have to be in a secluded space. c. The tort does not require physical trespass. iii. False Light 1. Widespread dissemination by a defendant of a major misrepresentation about the plaintiff that is objectionable to the average person. a. I.e., sounds a lot like defamation. Here you are recovering for the more psychological damages. It can also be nondefamatory. i.e., a statement about your religious belief.

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b. There is no intent requirement associated with this tort. You don’t escape liability if you have an honest belief that the statement is true.

iv. Disclosure 1. Widespread dissemination of confidential information about the plaintiff that is objectionable to the average person. Disclosure is about truthful information. Here, the person is spreading true secrets. a. e.g. someone is spreading around your medical records. b. Exception: Newsworthiness – if there is a public reason / justifications then we are not going to punish it. This is interpreted very broadly. So, when in doubt go with the exception. c. Dual Life Fact Pattern i. Plaintiff has two things going on in his life, both fairly public, but separated. (Not disclosure because underlying fact is public). B. Affirmative Defenses i. Consent is a defense to four privacy torts (same as before) ii. Absolute / qualified privileges – these privileges are defenses to claims of false light and disclosure only. C. Economic Torts (Business torts) i. Fraud – has five elements: 1. There must be an affirmative misrepresentation of fact (the Defendant must misstate a fact). At common law silence is not fraud. 2. You need either intent or recklessness with respect to the misrepresentation. 3. The defendant must intent to induce reliance. 4. There has to be reliance on the statement – the plaintiff has to use the information to “buy the item” 5. There has to be an economic loss. a. “someone lies to you on purpose, with the goal of screwing you and you fall for it, and get screw” ii. Inducing a breach of contract (equity outline) 1. Four elements: a. There must be a valid contract between the plaintiff and a third party, not terminable at will. I.e., could be a contract for the sale of a house. b. Defendant knows of the existence of the contract c. Defendant approaches the third party and persuades the third party to abandon the contract. I.e., persuasion could be in any way. Threats, better offer, etc.

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d. There has to be a subsequent breach of the contract. 2. Affirmative defense a. Sometimes the defendant is in a privilege situation, usually a person in a counseling relationship. Any kind of counseling relationship is going to work. I.e., lawyer, priest, father. iii. Thefts of Trade Secrets (equity outline) 1. Plaintiff must possess a valid trade secret a. A trade secret is information that provides a business advantage to his owner b. It is not generally known c. The owner takes reasonable efforts to preserve its secrecy. e.g. the info is kept locked, confidentiality agreements. The coca-cola formula, proprietary blueprints, consumer lists. d. Defendant must take the secret by improper means. i. Two main improper means: 1. The insider – this are cases where the Defendant learns the secret under confidential circumstances, usually because that person is an employee. The employee would walk away from the company and i.e., start his own company. 2. Devious outsider (“industrial spy”) – this person is a stranger to the enterprise, who learns the secret by means that fall below levels of morality. I.e., bribery, thefts. NEGLIGENCE Elements 1. Duty- the Defendant must owe the plaintiff a duty of care. 2. Breach 3. Causation (factual/legal) 4. Damages TIP: Most multi-state question will not focus on all elements. In essay – you need to talk about all 4 elements. Use the elements as the outline for the essay. A. DUTY: Two issues: Whom does the Defendant owe duty to? i. Own a duty to the foreseeable victims of your negligence. TIP: you do not own a duty to unforeseeable victims. When a non-foreseeable victim gets hurt and they sue in negligence – they are going to loose. 1. Who’s an unforeseeable victim? a. Someone who is outside the “zone of danger” – in order words – by enlarge the people who are likely to get hurt is

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the one around you – not really everyone far away. The zone gets bigger depending on what you are doing. 2. Exceptions: a. Rescuers – are always owned a duty of care. TIP: when we see a rescuer duty is owned. b. Fetus – There are three different fact patterns concerning unborn children: i. Tortuous impact on the body of the pregnant woman ii. The doctor misdiagnoses the likely of birth defects iii. Doctor conducts an improper vasectomy – and the person conceives a child and has it - there is no recovery. b. Scope of duty You own the care of a reasonably prudent person acting under similar circumstances. i. This test presupposes that all actors in the legal system have the construct of the “reasonably prudent person” in their mind. ii. Compare the Defendant with the reasonably prudent person. You make no allowances for the defendant’s individual weaknesses. This is an objective, inflexible and harsh standard. (It does matter if the person is stupid / mildly retarded / crazy / inexperience – you still have to compare them to the reasonably prudent person). 1. Two slight exceptions: a. The reasonably prudent person is assumed to have any superior knowledge possessed by the defendant (“superior knowledge” – includes the knowledge of an isolated morsel of fact, knowledge of a particular subject). b. Incorporate the physical attributes of the defendant into the reasonable person is standard, if they are relevant. i. I.e., if blind – how does a reasonably prudent blind person behaves? c. This standard is used when no other standard is available or applicable. But there are other standards that turn on the IDENTITY of the defendant in the case. i. Children: Children under the age of 4 are legally incapable of negligence. Tips: most of the kids on the bar exam are older than this. 1. Over 4 – standard of a hypothetical child of similar age, intelligence and experience. (This is the opposite of the reasonably person standard). This is a subjective, flexible and lenient standard. It is very difficult to hold children liable for negligence because the more you put in t 2. Exception: when a child is engage in an adult activity we ignore the children standard and go back to the reasonably prudent person standard. TIP: usually, it is using a vehicle of some sort. ii. Professionals: provide services in the community and they have special skills. There are a wide range of service providers that can be included.

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TIP: on the bar it is usually doctors. “A physician or doctor owns the care of the average member of the profession in a similar community.” 1. This standard compares the defendant to his or her real world colleagues. In this case it is an empirical / factually grounded standard. You go look and see what other doctors in other communities actually do. 2. The custom of the profession sets the standard of care. Te majority of jurisdictions (including NY) compare to people of similar communities. i.e., big city doctors are compared to other big city doctors a. Exception: Specialists are held to a national level. 3. All medical professionals have a duty to explain the risks of a medical procedures to a patient before engaging in the procedure. a. Exceptions: i. You do not have to explain commonly known risks of a procedure. ii. You do not have to explain risk if the patient declines the information. iii. You do not have to explain the risks of a procedure to a patient that is mentally incompetent iv. You do not have to explain the risks, if in some way this would be harmful to tee patient. iii. Land Occupiers – situation where someone comes to private property (an entrant) and get hurt while on the land, and sues the occupier. The land can be anything. I.e., home, farm, supermarket, apartment. Standard of care – Two parts: 1. How did the entrant get hurt? Only two possible accidents: a. Activities conducted on the land by the occupier or his agents. b. Encountering a dangerous condition on the property. I.e., going to a supermarket and having a shelf break on your head. 2. What is plaintiff’s legal status on the land? a. There are four different status: i. Undiscovered trespasser – people who come on the land without permission and whose presence the occupier is not aware. NEVER owned a duty of care regardless of how they get hurt (activity / condition) Why? Because the undiscovered trespasser is an unforeseeable victim. ii. Discovered Trespasser – includes trespasser that the occupier knows about and those that the person can anticipate. I.e., frequent shortcutting by people through your land.

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1. Activities: an occupier owns a duty of reasonable prudence under the circumstances. 2. Conditions: the occupier must protect from conditions that are the four part test: a. Artificial conditions on land – build or constructed by people. Never protect from a natural conditions on the land. b. Condition has to be highly dangerous – capable of causing severe injury or death c. Condition must be concealed from the trespasser – hidden the person cannot conceive the danger for themselves. You owe no duty for blatant conditions d. Condition must be one that the occupier knows about in advance “An occupier must protect discovered trespassers from all known manmade deathtraps.” ii. Licensees – social guests a. Activities – duty of reasonable prudence b. Conditions – Two parts: i. must be concealed form the licensee – ii. the condition must be one that the occupier has advance knowledge of “A land occupier must protect licensees from all known traps on the land” iii. Invitee – enter property that have been open to the public at large. I.e., supermarket, mall – (when you go to the mall you are an invitee), hospital, airport 1. Activities: the land occupier is obligated to give a duty of reasonably prudent person 2. Conditions: two part test: a. Concealed from the invitee b. Conditions that the land occupier knows about or could discover through a reasonable inspection. i. Question: Did they know or should have known through a reasonable inspection? “The occupier must protect the invitee from all reasonably knowable traps on the land” Summary: Undiscovered trespassers are never owned a duty Everyone else is owned a reasonable prudent duty of care with regards to activities For conditions look at the phrases

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Two footnotes: Reasonable prudence, in discussing it we are going to suggest that we behave differently depending on the circumstances. a. Infant trespassers – Attractive Nuisance Doctrine - If you have a trespassing child in question then ignore everything and analyze it under the reasonable prudent test. Most courts impose a duty on a landowner to avoid a reasonably foreseeable risk of harm to children caused by artificial conditions on his property. To establish the applicability, plaintiff must show: 1. A dangerous condition on the land that the owner is or should be aware of 2. The owners knows or should know children frequent the vicinity of the condition 3. The condition is likely to cause injury, i.e., dangerous because of the child’s inability to appreciate the risk, and 4. The expense of remedying the situation is slight compare with the magnitude of the risk TIP: if it is not likely for children to come to your land – then you don’t have to take any steps. b. There two ways that an occupier of land can satisfy the duty. i. Repair a condition / fix the problem ii. Give a warning - Warning can be oral/ written / sign - a warning converts a concealed hazard into an obvious one.

B. Statutory Standards of care (either borrowing a criminal / regulatory statute) a. Statutory negligence = negligence per se – it is borrowing a statute to deduce the duty of care. i. Two requirements 1. Plaintiff has to show that he is a member of the class of persons that the statute seeks to protect 2. Accident must be within the class of risks that the statute seeks to protect. ii. “Class of persons / Class of risks tests (purpose of the statute) If both of these things are met, then we borrow the statute as our standard of care. This gives the plaintiff a big advantage – it is more likely than not that she will prevail in her claim. iii. If the plaintiff does not meet the two part test, then you go ahead and litigate under the reasonable prudent person standard. 1. Two Exceptions (test is met, but we do not borrow the statute and litigate under the reasonable person standard) a. If compliance is more dangerous than violation under the circumstances. (i.e., violating traffic law less dangerous than hitting a pedestrian) b. Compliance is impossible under the circumstances.\

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IV.

AFFIRMATIVE DUTIES a. There are no duties to act affirmatively in the law. i. There is no duty to rescue 1. Tip: ignore how mean it is for the person to just keep walking, but there is no duty to rescue. a. Exceptions: i. If the Defendant put the plaintiff in peril, then the Defendant has a duty to rescue ii. If there is a pre-existing relationship that triggers a duty to rescue 1. family relationship 2. common carrier or innkeeper towards a consumer 3. land occupier and business invitee iii. However, if you have a duty, that does not mean that you have to put your own life in danger – always behave as a reasonable prudent person. I.e., if you don’t know how to swim – don’t try to swim out and save your drowning mother – call for help, throw a rope. No requirement to do something that would put your life in peril. b. If you have no duty and you voluntarily decide to rescue, you have to rescue reasonably (i.e., carefully) NEW YORK – “Good Samaritan” law protects anyone who provides medical care at the scene of an emergency who acts as a reasonable prudent person AND the victim does not object. V.

Negligent Infliction of Emotional Distress a. In these situations, a Defendant will usually behave unreasonably, breach a statute, but it will not case physical injury, only emotional. i. Plaintiff has to show that the Defendant was negligent, plus 1. you have to show exposure to a reasonable risk of physical harm that did not materialize – “near miss” 2. you have to show subsequent physical manifestation a. I.e., after the incident the person has a heart attack, miscarriage, twitch in the neck, etc. b. The reason for the physical manifestation is to prevent fraud. To make sure that the claim of distress is genuine. NEW YORK No direct physical impact where there is a clearly discernible physical injury to the plaintiff, caused by psychic trauma resulting from the negligent injury to another AND the plaintiff injury was foreseeable, given her relationship to the injured party and her close proximity to the event causing the injury (e.g. mother hears car accident, runs to the scene, sees daughter’s body and dies).

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Intentional v. Negligent infliction of emotional distress
In intentional, the defendant’s conduct is intentional (action is designed to cause distress)
In negligent, the defendant’s conduct is negligent. NEW YORK No Fault Insurance Liability (Applicable to automobiles only) This is a situation when there will normally be a duty, but the legislature has taken it away and supplanted, trumped or replace the duty for automobile cases In an automobile cause usually you cannot sue, but you can get insurance money. Two Questions: Is this one of the cases where lawsuit will be barred? Can victim get money from the insurance company? NY has a mandatory insurance scheme: Victim’s insurance carrier pays out-of-pocket expenses regardless of fault. 1. Maximum of $10,000 for up to 80% of medical expenses 2. 60% of lost income and earning capacity 3. Death benefits of $5,000 per individual If person does not have insurance he is liable for the benefits provided under the act and his license will be revoked. Only applies to personal injury. NO coverage for property damage. Plaintiff may sue the defendant for out-of-pocket expenses in excess of $10,000. Tort cause of action available, including pain and suffering if: 1. Significant and permanent loss of an important bodily function 2. Permanent injury 3. Significant and permanent disfigurement 4. Death

BREACH This is the part of the case where the plaintiff has to get specific about the wrongful conduct that the defendant committed which cause the litigated event. TIP: in an essay in discussing breach – start by saying “here, the plaintiff would allege that the breach was . . .” 1. Res Ipsa – is a doctrine that is used by plaintiffs who cannot really show direct evidence of breach. Prongs: a. The plaintiff has to show that the accident that occurred is of a time that does not normally occur in the absence of negligence. a. This prong is really about probability reasoning backwards from an outcome. The plaintiff is arguing that this is the type of accident that would not have occurred but for someone’s negligence

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b. The plaintiff has to show that the defendant had exclusive control over the injury causing instrumentality. a. The underlying idea is that the plaintiff has to show that the person named in the compliant is the most likely responsible party (the exclusively has been relaxed bit – you don’t have to show so much total control) Res Ipsa avoids a directed verdict – you get to the jury. However, the jury is free to do whatever it wants. CAUSATION Causation is basically two elements: 1. Factual Causation TIP: When writing an essay – must write about factual causation first. A. This is the part of the case that the plaintiff establishes a real world connection between the breach and the damage. It builds on the breach. The way to prove it is by using the “but for test” – (but for the breach I would be uninjured today). B. The defendant will attempt to negate or counter-argue factual causation by saying that “even if” I was careful, you would still be injured (so do not blame me). This test does not yield good results in multiple defendant cases - two alternative rules: a. Mingled causation – with multiple defendants - In a case involving mingled causation the two plaintiffs would point fingers at each other and the plaintiff would go home empty handed. In this type of cases, the test of factual causation would be “the substantial factor test” - is a test where we ask “did each defendant contribute in a substantial way – if both found to be substantially liable – then they are both held liable. b. Multiple defendants and unascertainable cause – This shifts the burden to the defendants to show by a preponderance of the evidence that he was not the cause. If the defendants cannot exonerate themselves, they would be jointly and severely liable. NEW YORK – Market share liability If plaintiff you cannot tell which of the manufacturers sold the product then all the companies will be liable according to each manufacturer’s percentage share of the total market. Market share theory does NOT apply where defendant (?) is able to identify a majority of the manufacturers. 2. Legal Causation – Proximate cause “Fairness” (alternative name for studying purposes – do not write on exam) - meaning is fair to impose liability under the circumstances. Foreseeability is a test for fairness. (We think is fair to make people pay for the foreseeable consequences of their carelessness – however, we do not think it fair for them to pay for unforeseeable consequences a. Direct cause fact patterns – in this fact pattern outcome is almost always foreseeable, and therefore it is almost always fair to make the defendant pay. Always grant the plaintiff relief unless the fact patter is so ridiculous that imposition of liability becomes unfair.

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b. Indirect cause fact pattern - in this fact patterns the defendants causes the injury – but then something happens that makes the initial injury more severe. There are four specific types of cases: “well settled Corte” Always find the defendant liable: i. Intervening medical negligence – It is foreseeable that in some cases the medical system would make things worse rather than better. D will be held liable for all the harm caused (including what the doctor does in trying to treat the plaintiff). ii. The doctor will also remain liable for the medical malpractice itself. iii. Intervening negligent rescue – (same analysis) – it is foreseeable that a well meaning but careless rescuer will make things worst. The rescuer will be liable too, unless he is protected by a good Samaritan law (in NY only doctors, nurses and veterinarians) iv. Intervening protection or reaction forces – there will be liability for any injuries that the plaintiff suffers from I.e., people trying to protect themselves. v. Subsequent accident or decease – (same analysis) TIP: (quick and dirty analysis) – if not one of the four then look at the breach and ask – why am I calling this behavior negligent in the first place? What causes me to be angry at this defendant? Ignore everything else and look at the outcome and say – is this what I worried about if yes – then you have liability. If not then find no liability. DAMAGES 1. Egg Shell Skull Doctrine Once plaintiff establishes all other elements plaintiff is given all the damages sustained even if surprising in scope – you take your plaintiff as you find him. This doctrine is not limited to negligence. It applies to all torts that we have dealt with. NEW YORK An award to a plaintiff will be reduced by any money received by the plaintiff from insurance. (i.e., your own insurance company pays for your bills).

EQUITABLE REMEDIES (INJUNCTION) Two kinds of injunctions: 1. Negative injunctions – is an order to refrain from an act 2. Mandatory injunction is one that makes a defendant undertake an activity. Permanent injunction comes at the end of the case after the trial. 1. First you must show that there is a tort 2. Four points for relief: a. No adequate remedy at law (money is not good enough for the plaintiff) On the essay – you have to say why money is not good enough: b. If the defendant is insolvent a monetary award will not be particularly useful. c. Hard to put monetary value on a unique item. d. The conduct is repetitive or continuous or ongoing –i.e., is the repeated use of trade secrets, repeated trespasser. 3. Plaintiff must establish that he has a protectable interest (right) deserving of enforcement in injunctive relief. (Under modern case law this requirement is reduced to a formality – it is satisfied 100% most of the time).

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i. Need to establish that the injunction is enforceable. Courts are not going to entered orders that are not going to be followed. (This becomes more of a problem with mandatory injunctions rather than with negative injunctions). 1. The more complex the conduct, the harder to enforce and the less likely that is going to be granted. 2. How long will the conduct take? Easier for conduct that would take a short time. 3. Is any conduct outside the jurisdiction of the court? ii. (Balancing the hardships) Plaintiff must that the benefit to the plaintiff outweighs the burden to the defendant. Her we do what we think is fair. You can get both an injunction and money damages in the same case. Defenses to injunctive relief: 1) Unclean hands – an argument that the plaintiff is guilty of some misconduct that makes the plaintiff unworthy of an injunction. 2) Laches – Means prejudicial delay – it is the equivalent of a statute of limitations – the argument is that plaintiff waited too long to bring up the lawsuit and the defendant has relied on the delay. 3) First Amendment considerations - in an injunction request that involves communication activities – the defendant can always bring up a first amendment argument. Preliminary injunction – you seek immediately following the complaint. a. Two specific requires to get preliminary injunction: i. Show a likelihood of success on the merits of the case (it means that a hearing on a preliminary injunction is ii. Show that you would suffer irreparable harm if preliminary relief is not granted NEGLIGENCE DEFENSES Contributory negligence Assumption of risks Comparative negligence (NEW YORK LAW) a. The defendant has to show that the plaintiff is guilty of some fault. Plaintiff fault is defined as the failure of a plaintiff to exercise the relevant degree of care for his or her own safety. People have to use “reasonable prudence” to protect themselves and others. The standard of care could also be statutory. b. When the defendant establish this fact, the jury will be instructed to assign each litigant a percentage fault number and then plaintiff’s damages will be reduce in accordance with those numbers. (plaintiff’s damages are reduced by the amount of his fault) c. Two versions; a. Pure comparative fault – Here, we go strictly by the percentage numbers – they govern the damage award. In this situation, the plaintiff will always get something. In order words – the plaintiff may recover even if plaintiff’s culpable conduct exceeds defendant’s. NEW YORK IS A PURE COMPARTIVIE STATE.

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i. Exception: If the plaintiff commits a serious crime that leads to the injury, then this would result in a denial of damages. I.e., a burglar who falls on loose carpeting in your house – do not own any money. b. Modified or Partial comparative fault – plaintiff fault of less than 50% reduces recovery. But plaintiff’s fault in excess of 50% is an absolute bar. The 80% guilty plaintiff will go home with nothing. STRICT LIABILITY There are 4 strict liability actions that come up: 1) injury caused by animals a. injuries caused by domesticated animals (almost always a dog) i. No strict liability in connection to dog bites. 1. Exception: if you know that your dogs have vicious propensities and continue to keep it as a pet, now you are strictly liable. a. How do you have knowledge? Dog has previously bitten someone else. In effect at the first bite – you can pretend a bit of surprise –after that you are presumed to have knowledge. The first bite will subject you to liability only for negligence. b. Trespassing cattle i. You are strictly liable for any damages that your trespassing cattle may do. 1. i.e., if cattle crosses over and tramples crops /eats the crops. c. Wild animals i. If you keep wild animals strict liability for anything damages that they cause. Meaning you are liable regardless of any precautions that you may have taken. I.e., if you keep a tiger in your backyard you are responsible for the tiger eating the neighbor’s child. 2) Ultra hazardous activities: a. Three characteristics: 1. The activity cannot be made safe (we lack the technology to make the activity safe) 2. The activity imposes a risk of severe harm (if something goes wrong is going to be a catastrophe 3. The activity is uncommon in the community where it is being conducted i.e., crop dusting. a. On an essay – you use the three point tests b. On MBE you are going to be able to recognize activities instantly: 1) blasting (anything involving the use of explosives) 2) anything involving dangerous chemicals, anything involving radiation / nuclear energy c. If you run an ultra hazardous activity, you are strictly liable regardless of your precautions. Tip: the question will be loaded with precautions. Key: Precautions are irrelevant – it does not matter what safety precautions you take – you are liable for any damages caused.

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NUISANCE A. Nuisance is not a separate tort in itself; nuisances are a type of harm. This involves the incompatible use of land (basically situations where one neighbor is getting on the other’s nerves). B. General Rule: You are liable for nuisance if your activities interfere to an unreasonable (means “excessive / undue amount”) degree with the plaintiff’s use and enjoyment of his land. Tip: On the bar, usually the answer to a nuisance question is the one that most closely states the rule. a. Public – an act that interferes with the health, safety, or property rights of the community. i.e., running a prostitution house. b. Private – substantial, unreasonable interference with another private’s individual’s use or enjoyment of property. STRICT LIABILITY FOR PRODUCT RELATED INJURY When a person gets hurt by a product, there are likely to be many different causes of action. TIP: you have to pay attention tot the theory that’s being asserted. I.e.., if is says “in negligence, or fraud action.” On the bar, the plaintiff has to show four (4) things: a. Defendant is a merchant (someone who routinely deals in goods of this type) ii. Causal sellers are not merchants and cannot be held strictly liable. I.e., a regular person selling a car. iii. Services providers are not merchants of goods that are collateral to the service provided. I.e., cannot sue a restaurant on strict liability for a share breaking.. iv. Commercial lessors are merchants and can be held strictly liable. 1. Rental companies, computer leasing companies, etc. b. Establish that the product has a defect i. Two alternative kinds of defects: 1. Manufacturing Defect a. It exists when the product that hurts the plaintiff differs from all other that came off the same assembly line in a way that makes it more dangerous than consumers would expect. i.e., the one in a million products –“the one in a million mouse in the coke bottle. b. Safety precautions are not a defense and are not relevant. Focus on the condition of the object. 2. Design Defect a. Prove that there is another way that the product could have been built. Basically plaintiff must establish that there is hypothetical alternative design that is 1. Safer 2. Cost effective 3. Practicable.

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When the plaintiff proves that there is a defect; this creates liability for anyone who makes it and provides for recovery to anyone who got hurt by the product. b. A product design includes the information that accompanies the product, meaning: 1. the instructions and 2. warnings c. A product with bad instructions or warning can be considered to have a design defect. 1. Warnings have to be clear and prominent (unclear, un-prominent warnings make for a defect design). c. The defect existed back when the product left the defendant’s hand i. This element can never be an issue for design defects because the product design never changes. However, it is trickier in manufacturing cases. ii. A presumption is raised that the defect existed when the product left the Defendant’s hands when the product has moved in the ordinary channels of distribution. The defendant is free to show otherwise. d. Plaintiff must show that he was making a foreseeable use of the product. The issue is whether the use was a common foreseeable use? Not necessarily the intended use of the product. i. I.e., standing of a chair is not the intended use, but it is a foreseeable use of the chair. DEFENSES Comparative Fault Most states, NY included will balance the plaintiff’s fault against that of the defendant in deducing damages. The jury will assign percentages and then it will be balanced. VICARIOUS LIABILITY In this situations we have two parties, one active tortfeasor and second party who is not involved. Vicarious liability flow form relationships – there are 4 ½ types of relationships: a. Employer – employee – an employer is vicariously liable for the actions of the employee if they are committed within the scope of employment. 1. Scope of employment includes: i. minor deviations form work (if deviation is substantial (in time or geographical are, the employer is not liable). ii. Intentional Torts 1. Generally are not within the scope of employment. Exceptions: a. If the job involves the sue of force, i.e., nightclub bouncer b. If the job is one that generates friction, i.e., automobile repossessions c. The servant is furthering the business of the master. i.e., overzealous employee. b. Hiring party / independent contractor 1. Generally no vicarious liability

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2. Exception: A land occupier is vicariously liable when independent contractor hurts invitees. (they are liable because the duty owned to an invitee is nondelegable. c. Owner of car and driver of car – generally no vicarious liability 1. Exception: If you let your car to a person so that they can run an errand for you – that person becomes your agent and therefore you would be liable for any torts committed while performing that errand. NEW YORK The owner is liable for the torts of the driver even if there is no errand, under dangerous instrumentality doctrine. The owner of a car is liable for negligent damage caused by another operating the car with the owner’s consent. d. Parents – kids 1. No vicarious liability. Parents are not vicariously liable for the torts of their children. e. Tavern Keepers Can be found vicariously liable for the torts of patrons to whom they serve alcohol, if the service is illegal (this is based on the foreseeable risk of serving minor or obviously intoxicated adults) 1. When is service illegal? i. Serving to minors ii. Serving a drunk NEW YORK No cause of action against a social host for injuries to a third party resulting from intoxication of a minor to whom alcohol had been served at a private function. TIP: Before using a theory of vicarious liability – see if you can get a direct theory of liability. Many parties could be liable for their own negligence. Before selecting this option – make sure to determine if there is a claim against the third person.

MISCELLANEOUS TOPICS A. CO-DEFENDANTS a. Assume that co-defendants are jointly liable. Plaintiff can recover from anyone of the defendants. b. Comparative distribution – the jury will assign all of the defendants % of faults and the one out-of-packet defendant (Defendant paying the plaintiff in full) can recover in proportion to those percentages from the other non-paying defendant c. Exceptions: i. Indemnity - Defendant could be entitled to complete reimbursement form the other defendants when: 1. The out of pocket party is vicariously liable, he is entitled to be indemnified by the active tortfeasor 2. In a strict liability case for product injuries, non-manufacturer defendant can get indemnification from the manufacturer.

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B. WRONGFUL DEATH a. It is not a course of action – it is a procedural device that allows family members to bring an action for whatever the tort committed by the defendant. The procedural device makes the claim derivative. – meaning that any claims that can be asserted against the decedent can be asserted against the plaintiff (family members) b. In NY this device is limited to pecuniary losses (money) – you cannot sue for emotional grief. C. WORKER’S COMPENSATION a. This is a statutory insurance scheme that is the exclusive remedy for almost anyone hurt on the job (provided that they are covered). They employer is strictly liable for the injury. Downfalls: i. You will not get any pain and suffering ii. No punitive damages iii. Cannot sue in court 1. Who’s covered: a. The scheme only covers employees and not independent contractors or third parties. b. Three clusters of employees who are not covered: i. Teachers or non-manual laborers who work for nonprofit organization ii. Part-time domestic employees, i.e., babysitters iii. Members of the clergy for an on the job injury. c. Covered Injury must arise out of employment i. If the employee is injured due to his intoxication – not covered. ii. If you intentionally or attempt to intentionally injury yourself. iii. If your injury occurred during a voluntary off duty athletic activity. i.e., playing softball after work iv. Horse Play – a limited amount of horse play on the job is allowed, (not covered when man playing hide and seek hid inside a big mixer and was killed) d. What do you get? i. Medical expenses ii. 2/3 of wages iii. If you die you get a scheduled death benefit (predetermined amount) D. LOSS OF CONSORTION a. If the victim of any tort is a lawfully married person – the un-injured spouse gets a separate cause of action in her or his name to recover: i. Loss of services ii. Loss of society iii. Loss of sex

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NEW YORK
A child can recover loss of parental consortium if permanent disability occurs.
A parent also has the right to recover for permanent loss of filial consortium resulting from a child’s permanent total disability. Damages are only available for the period that a child is a minor.

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