NY Torts Flashcards
WRONFUL DEATH - MEASURE OF RECOVERY in NY
- LOSS OF CONSORTIUM
- IN NY, Not recoverablein wrongful death actioins butpunitive dmgsare recoverable by personal rep of decendent
TORT IMMUNITIES
Family, State/Municipal Govt and Proprietary Functions
- No Intra-Family Tort Immunity
- No Immunity for Proprietary Functions or where a Special Rel’ship Exist w/ state/municipality. Otherwise immunity for govt. functions.
- If activity is prioprietary –> liability can be impose according ordinary tort principles.
- NOTE: Close Q.
LOSS DISTRIBUTION SCHEMES
Comparative fault & Contributory Negligence.
Contribution – all tortfeasors pay equal amt regardless of amt of fault
- Defense = P was Contr. neg.
- “Unit rule” – P’s fault must be less than all tortfeasors together
Pure Comparative – P can recover damages even if he was contributorily negligent
Modified/Partial Comparative – P can only recover if he is less at fault than D (i.e. less than 50%)
Collateral Sources Rule = $ paid by insur. co. does NOT reduce recovery
➩ Only applies to tortfeasors suing each other so if 3rd party injured, he can recover total damages against 1 of the tortfeasors alone.
NY TORTS SUBJECTS
REQUIREMENTS for VALID GIFT
INTER VIVOS GIFT
TEST:
-
Did the Donor (1) have SUBJECTIVE Donative INTENT?
- DONATIVE INTENT- Desire to pass title, not merely to turn over possession
- (2) Did the Recipient ACCEPT the gift?, and
- (3) Was there a VALID DELIVERY? (objective component)
- Silence is usually valid acceptance – only time no acceptance is explicit rejection
NY TORTS SUBJECTS
REQUIREMENTS for GIFT & 4 Special Delivery Requirements.
INTER VIVOS GIFT
TEST:
-
Donor (1) must have SUBJECTIVE Donative INTENT
- DONATIVE INTENT- Desire to pass title, not merely to turn over possession
- (2) Recipient must ACCEPT the gift, and
- (3) Must have a VALID DELIVERY (objective component)
- Silence is usually valid acceptance – only time no acceptance is explicit rejection
4 Special Delivery Requirements:
- Checks – check must be cashed so donor can stop pmt
- 3rd party check – donor endorses & turns over
- Stock certificates - delivered when handed over
-
Agents:
- **Donor’s Ag **- Final delivery only when agent gives up the object
- Donee’s Ag: – Complete delivery when left w/ agent
-
Gifts Causa Mortis - need *evidence that there was an IMMINENT RISK of DEATH *that is objectively LIKELY to occur & donor MUST DIE
- Gift is invalid if the Donee dies first.
NY TORTS SUBECTS
Bailments - Definition, Scope of Liability, Exceptions, Common Items
BAILMENT: Voluntary transfer of item to someone else (w/o giving up title) for a TEMPORARY PURPOSE
- Bailee must take reasonable prudence of care.
SCOPE OF LIABILITY:
1) Liability for Negligence:
- IF Sole benefit for Bailor - bailee only liable for gross negligence
- IF Benefit for Bailee - liability for slight negligence.
2) Exculpatory Clauses – cannot completely disclaim all liability but can cap it – must have effective notice – only okay for ordinary neg. – cannot exculpate self from intentional or gross neg.
3) Smtg w/in the scope of bailment is NOT protected except:
- Safe Deposit Box – bank is the bailee of the entire contents of the box
- Parking lots – hand over keys to someone = bailment but if it is park & lock then it is a lease of real estate & they are not responsible.
- Coat check – normally for any harm done but not smtg like a diamond ring b/c not in scope
- Gratuitous coat check – liability capped at $200
- If you pay a fee, claim the value, & get a receipt – they are strictly liable for up to $300 but if there is neg. bailee owes total value of item
NY - LIBEL AND SLANDER RULES - LIBEL PER QUOD
LIBEL PER QUOD
Libel Per Quod - Called Libel by Exstrinsic Facts + treated like Libel Per Se.
- Actionable w/o proof of special damages
NY - LIBEL AND SLANDER RULES - PER SE CATEGORIES
PER SE CATEGORIES:
- BAD BUSINESS MAN
- UNCHASTE
- CARRY DISEASES
- GUILTY OF CRIME
- IMPUTATION OF HOMOSEXUALITY
NY - LIBEL AND SLANDER RULES - When are special damages required?
** NEED SPECIAL DAMAGES WHEN:**
Slander (spoken)
- Def. on face and NOT IN one of per se categories
- Def. only by exs. fact and IN a per se category
- Def. only by exs. fact and NOT IN one slander per se categories
Libel (written)
- Def. only by exs. fact and NOT IN one slander per se categories
NY - INVASION OF THE RIGHT TO PRIVACY
**NO COMMON LAW OF RIGHT TO PRIVACY **
- BUT APPROPRIATION OF PICTURE/NAME protected by statute + action survives death
- DEFENSES
- Prior written consent
- Photographer exhibition before notice of objction
- Goods of literary/musical/aritistic production
NY ASSUMPTION OF DUTY TO ACT - GOOD SAMARITAN STATUTE
Licensed Health Professional
_Licensed Health Professional _
Only liable for gross negligence if gratuitously and voluntarily helps at scene of accident
NY TORTS SUBJECTS
Liens - Purpose, Requirements for Creation & Types
LIEN
Security device in a particular item(s) of personal property to enforce a debt.
3 REQ. FOR CREATION:
- (1) Debt relates to services performed,
- (2) Debtor has legal title,
- (3) Creditor will have possession of the item
TYPES:
- Special lien - right to retain a particular item b/c a particular repair was performed on that item - if creditor releases the item then the lien ends – not the end of the underlying debt, though.
- General lien - right to retain a whole bunch of property for a general balance due – if 1 item released, does not release whole lien
NY TORTS SUBJECTS
Workers Compensation - Description, Scope of Liability and Limits
Worker’s Compensation
- Statutory insurance scheme, which makes insurance the exclusive remedy of employees injured on the job w/ respect to the employer.
- Employer is essentially strictly liable (w/ insurance co paying) regardless of fault – if on the job injury, then compensation to injured worker
-
But NO TORT LITIGATION and LIMITED LIABILITY (no p&s, no punitive damages)
- If you die - get statutory amount and funeral damages.
NY TORTS SUBJECTS
No-Fault Insurance - Whose Covered? When Can You Sue? Purpose?
Anyone injured by covered vehicle has claim against owners insurance company instead of against the D himself.
- $50k req. for each car in NY.
- Owner, passengers, driver, pedestrians hit by car – can all get regardless of whether at fault
- Except - drunk drivers, drag racers, car thieves, fleeing felons
Can still sue for neg. if:
- Economic Loss –$50k+ damages = sum of all of your medical expenses, 80% of actual salary but not more than $2k/mo., miscellaneous expenses associated with the injury up to $25/day
-
Serious injury - death, dismemberment, serious disfigurement, serious fracture, permanent loss of a bodily organ or function
- So P can get both sometimes but NO double recovery.
- NY no fault applies even if you have an accident in another state.
- Only applies to personal injuries – not personal property damage – so if your car is banged up you have to litigate or buy collision insurance
➩ Litigation allows a P to recover for pain & suffering unlike no fault.
NY TORTS SUBJECTS
Who is covered by worker’s comp & what type of injuries are covered?
1) Employee covered but independent contractors not
* Not covered – Teachers, non-manual labors who work for non-profits, part time domestic or household employees (babysitter, housecleaner), clergy
2) Covered employee can recover for injuries arising out of employment
* o NOT arising from employ. – injury solely due to intoxication of em’ee, em’ee intentionally tries to harm himself or other (stab self in leg), injury occurs in voluntary off-duty athletic event
3) Illegal acts on the job are covered (stealing roof shingles, fall off)
- Horse play – can go either way, depends on how completely absurd – w/in scope of employment to engage in a little idiocy on the job
- Injured employees remain free to sue 3rd parties (e.g. manufacturer of machine)
