Bar Exam Flashcards
(188 cards)
1
Q
Requirements of Full Faith & Credit
A
(1) Proper Jurisdiction, (2) Judgment on Merits, (3) Judgment is Final
2
Q
Defenses to Full Faith & Credit
A
(1) Judgment is Penal or (2) is Procured by Extrinsic Fraud
3
Q
Comity Requirements
A
Fairness of: (1) Jurisdiction & (2) Procedures
4
Q
Domicile
A
(1) Physical Presence & (2) Intent
5
Q
Domicile of Infant
A
Domicile of Parents (or Custodial Parent)
6
Q
Domicile of Mental Incompetent
A
Domicile of Parent, or Domicile of Choice if Acquired Before Becoming Incompetent
7
Q
NY Choice of Law Approach (Generally)
A
Interest Analysis: Apply NY Law if it has a legitimate interest in the outcome
8
Q
NY Choice of Law for Torts
A
NEUMEIER: Common domicile- state of domicile; Different domiciles- place of injury
9
Q
NY Choice of Law for Torts: Exceptions
A
(1) Place of injury has no real interest in outcome
2) Rules regulating conduct (apply place of injury
10
Q
Reasons to Invalidate Express Choice of Law Provision
A
(1) No true mutual asset or (2) State selected has no reasonable relationship with K
11
Q
Special Rules for Choice of Law for Large Contracts in NY
A
More than $250,000-Can select NY law regardless of connection with NY (but NOT labor or personal services); More than $1 million-Can select NY law & forum regardless
12
Q
NY Choice of Law for Auto Insurance Contracts
A
Contract Issues Governed by State Where Policy was Written
13
Q
NY Choice of Law for Validity of a Will
A
(1) NY Requirements or (2) State of Execution or (3) Domicile at Time of Execution or Death
14
Q
NY Choice of Law for Real Property
A
Situs of Property
15
Q
NY Choice of Law for Personal Property
A
Inter vivos- Situs at time of transaction; Inheritance- Domicile of Decedent at Death
16
Q
NY Choice of Law for Interpretation of Will
A
Law of Domicile at Time of Execution (or Revocation or Alteration)
17
Q
NY Choice of Law for Intangible Property Incorporated in Document
A
Situs where document is
18
Q
Exception to General Choice of Law Rules for Marriage
A
(1) Temporarily Leave State (2) To get married elsewhere to avoid a “prohibitory rule” (3) State of domicile will not recognize the rule
19
Q
NY Choice of Law for Legitimacy
A
Father’s Domicile or Child’s Domicile (modern trend)
20
Q
Defenses to Choice of Law
A
(1) Public Policy or (2) Substance/Procedure or (3) Penal/Tax Law
21
Q
Choice of Law: Exceptions to Rule that SOL is Procedural
A
(1) Borrowing Statute or (2) Statute Conditions Substantive Right (ex: Wrongful Death)
22
Q
NY Distinction for Standing of Passengers in Car to Challenge Search of Car
A
Unlike common law, passengers have standing to challenge weapons (if possession attributed to them due to presumption)
23
Q
Exceptions to Good Faith Doctrine for Defective Warrants
A
(1) Affidavit egregiously lacking in PC, (2) Warrant facially deficient in particularity, (3) Affidavit containing knowing or reckless falsehoods necessary to PC finding, (4) Biased magistrate
24
Q
Exceptions to Knock-and-Announce Rule
A
Reasonable Belief: (1) Futile, (2) Dangerous, (3) Inhibit the Investigation
25
Searches Incident to Arrest in NY
(1) Containers- only if officer suspects arrestee is armed; (2) Containers in cars- no searching once vehicle is outside the car
26
Automobile Exception to Warrant Requirement
PC to believe contraband or evidence of crime is inside
27
Plain View Requirements
(1) Lawful access to place, (2) Lawful access to item, (3) Criminality of item is apparent
28
Inventory Search Requirements
(1) Regulations reasonable in scope, (2) Compliance with regulations, and (3) Good faith
29
Police Pursuit & Seizure
Common Law- Person Submits or is physically restrained; NY- Pursuit is seizure
30
Dog Sniffs at Traffic Stops
Common Law- ok if not prolonging unreasonably; NY- require founded suspicion of crim activity
31
Items in Terry Frisk
Common Law- Weapons or contraband; NY- Weapons only
32
Protective Sweeps
Can automatically search area adjoining place of arrest; need articulable basis to search more remote areas (reasonably prudent officer)
33
Exceptions to Fruit Doctrine
(1) Independent Source, (2) Inevitable Discovery (only secondary evidence in NY), (3) Attenuation
34
Harmless Error Rule
(1) Gov't must prove (2) Beyond a Reasonable Doubt (3) That the error was harmless (4) Bc D would have been convicted w/o tainted evidence
35
Wiretapping Warrant Requirements
(1) Suspected person, (2) Time period, (3) Specific crime, (4) Conversations (w/ particularity)
36
Warrantless Arrest in Public Place
Felony- PC that arrestee committed it; Misdemeanor- committed in officer's presence (NY only requires PC that arrestee committed it)
37
Bases to Challenge Confessions
(1) 14th A (voluntariness/coercion), (2) 6th A, (3) NY 6th A, (4) 5th A Miranda
38
Offense Specific Right
6th A Right to Counsel
39
Non-Offense Specific Right
5th A Right to Counsel
40
Attachment of NY Indelible Right to Counsel
(1) Formal charging, (2) D in custody, police engage in overwhelming activity, & D requests counsel, (3) filing of accusatory instrument, (4) Significant judicial activity
41
NY Indelible Right to Counsel: Protection
If D is in custody & police know he is represented on that charge, they may not question him on that charge or any other matter with attorney present; can only be waived w/ attorney present
42
5th A Right to Remain Silent
Police must scrupulously honor (not badger); must wait significant time before reinitiating & obtain waiver
43
5th A Right to Counsel
All interrogation must cease until reinitiated by D; not offense specific; expires 14 days after D is released
44
Limitations on Exclusionary Rule for Miranda Violations
Can use (1) To impeach, (2) Physical fruits, (3) Mirandized statements after non-Mirandized (unless inherently coercive, (4) Harmless error
45
Pretrial ID- Denial of Right to Counsel
6th A- rt at lineup and showup after formal charging (not photo arrays); NY- rt at lineup before charging if police know D has counsel & D requests
46
Pretrial ID- Due Process
(1) So unnecessarily suggestive (2) that it creates substantial likelihood of irreparable misidentification (reliability v. corrupting effect)
47
Exception to Exclusion of In-Court IDs
Based on observations other than pretrial ID procedure: (1) W's opportunity to view D at crime scene, (2) Certainty of W's ID, and (3) Specificity of description given to police
48
Indictments in NY
(1) All elements, (2) Legally Sufficient, (3) Reasonable cause
49
Gerstein Hearing Unnecessary
(1) Grand jury issued indictment OR (2) Magistrate issued arrest warrant
50
Notice to Prosecutor of Defenses
(1) Insanity- notice w/i 30 days after plea; (2) Alibi- P may demand w/i 20 days of arraignment; D has 8 days to respond
51
Right to Jury Trial
Serious Offenses (max sentence over 6 months)
52
Ineffective Assistance of Counsel
(1) Deficiency (objective standard of reasonableness; as if not functioning as counsel) AND (2) Prejudice (but for, outcome would be different)
53
Grounds for Withdrawal of Guilty Plea
(1) Involuntary (defect in plea-taking), (2) Jurisdictional defect, (3) Ineffective assistance of counsel, (4) P fails to fulfill
54
Double Jeopardy Requirements
(1) Same Offense, (2) Same Sovereign, (3) Attachment
55
NY: "Same Offense" for Double Jeopardy
"Transaction Test": (1) Substantially diff elements, (2) Each contains element not in other & prevents diff harms, (3) One for criminal possession & one for use, (4) Different victims
56
Exceptions to Double Jeopardy
(1) Hung jury, (2) Mistrial for manifest necessity, (3) Successful appeal (unless reversal on insufficiency of evidence, (4) Breach of plea agreement by D
57
Where Witness Cannot "Take the Fifth" in NY
Grand jury proceedings
58
Elimination of Privilege against Compelled Testimony
(1) Immunity (common law- use & deriv use; NY- transactional), (2) D takes the stand, (3) SOL
59
Criminal Liability for Omissions
(1) Legal Duty (statute, contract, status, voluntary assumption of care, creation of peril), (2) Knowledge of facts, (3) Ability to help
60
Specific Intent Crimes
(1) Assault, (2) 1st degree premeditated murder, (3) larceny, (4) embezzlement, (5) false pretenses, (6) robbery, (7) forgery, (8) burglary, (9) solicitation, (10) conspiracy, (11) attempt
61
Types of Strict Liability Crimes
(1) Public welfare offenses and (2) Statutory rape
62
Exceptions to Concurrence Requirement for Criminal Culpability
(1) Larceny & (2) Burglary-NY
63
Criminal Transferred Intent Does Not Apply to:
Attempts
64
Specific Intent
Desire to do act & to achieve specific result
65
Malice
Intentionally or with reckless disregard of obvious or known risk
66
General intent
Generally aware of factors constituting crime
67
Criminal intent in NY
Conscious desire to achieve particular result
68
Criminal knowledge in NY
Aware of what he was doing & that it was practically certain his conduct would cause the result
69
Criminal Battery
(1) Unlawful, (2) Application of Force to Another, (3) Resulting in bodily harm or offensive touching, (4) General intent
70
Criminal Assault (Common Law)
(1) Attempted battery- specific intent OR (2) Intentional creation other than by mere words of reasonable apprehension in mind of V of immediate bodily harm- specific intent
71
Criminal Assault (NY)
Third- intentionally causing non-serious physical injury to another; Second- serious physical injury; First- serious & weapon
72
Murder (Common Law)
(1) Causing death (2) of another (3) with malice aforethought
73
Malice Aforethought
(1) Intent to kill, (2) Intent to inflict serious bodily harm, (3) Extreme recklessness, (4) Intentional commission of inherently dangerous felony
74
Felony Murder (Common Law)
(1) D guilty of underlying felony, (2) Inherently dangerous felony, (3) Felony independent of killing, (4) Killing during felony or immediate flight, (5) Foreseeable death, (6) V is not co-felon
75
Theories of Vicarious Liability for Felony Murder
(1) Proximate Cause Theory: all co-felons guilty if one proximately causes death; (2) Agency Theory: only vicariously liable if co-felon commits killing
76
NY Felony Murder: Felonies
(1) Burglary, (2) Robbery, (3) Arson, (4) Kidnapping, (5) Escape, (6) Sexual assault
77
NY Non-Slayer Defense
(1) D did not kill V, (2) D did not have deadly weapon, (3) D had no reason to believe co-felons had deadly weapon, and (4) D had no reason to believe co-felons intended to do anything likely to result in death
78
First Degree Murder (Statutory Approach)
(1) Premeditation & (2) Deliberation
79
Second Degree Murder (Statutory Approach)
(1) All other intentional murders, (2) depraved heart, (3) Intent to cause serious physical injury
80
First Degree Murder (NY Approach)
(1) Intent to kill & causes death, (2) D is over 18, and (3) Aggravating factor (D knew/should have known V was police officer in duties, murder for hire, intentional killing of V by D in felony murder, witness intimidation, more than 1 V intentionally killed, life sentence/escaped, torture, serial, V was judge)
81
Second Degree Murder (NY Approach)
(1) Intentional killing & causes death; OR (2) Highly reckless murder (depraved indifference creating "grave risk" of death); OR (3) Unintentional killng of V during felony murder
82
Voluntary Manslaughter (Common Law)
(1) Intentional killing, (2) Heat of passion, (3) Adequate provocation
83
Involuntary Manslaughter (Common Law)
(1) Criminal negligence OR (2) Unlawful act manslaughter (killing during crime)
84
First Degree Manslaughter (NY)
(1) EED (Intentional under ED that was reasonable & extreme); OR (2) Intent to cause serious physical injury
85
Second Degree Manslaughter (NY)
Criminal recklessness
86
Criminally Negligent Homicide (NY)
Criminal negligence (seriously blameworthy conduct related to substantial & unjustifiable risk of death; foreseeable)
87
False Imprisonment (Common Law)
Unlawful confinement without consent
88
False Imprisonment (NY)
Second- Unlawfully restraining without consent with knowledge restriction is unlawful; First- risk of serious physical injury
89
Kidnapping (Common Law)
False imprisonment that involves moving or concealing V
90
Kidnapping (NY)
Second- Abducting; First- (1) Abducting & (2) `ransom or restraint for more than 10 hours with intent to injure/rob, or death of V
91
Forcible Rape (Common Law)
Sexual intercourse w/o consent accomplished by force, threat of force, or when V is unconscious
92
First Degree Rape/Criminal Sexual Act (NY)
(1) Sexual intercourse and (2) V is under 11, V is physically helpless, by forcible compulsion, or V is under 13 and D is over 18
93
Mistake of Age Defense to Statutory Rape
Only applicable in MPC/minority (NOT common law or NY)
94
Corroboration Requirement for Sex Crimes (NY)
Generally need more than testimony of V where lack of consent is an element; Not req'd for forcible rape, criminal sexual act, or sexual abuse
95
Reckless Endangerment (NY)
Second- Recklessly engage in conduct that creates substantial risk of serious physical injury to another; First- Under circumstances evidencing a depraved indifference....grave risk
96
Larceny (Common Law)
Trespassory taking and carrying away of personal property of another (custody) with intent to permanently retain the property
97
Larceny (NY)
First- more than $1 million; Second- more than $50,000; Third- more than $3,000; Fourth- More than $1,000; Petit- less
98
Embezzlement (Common Law)
Conversion of physical property of another by a person already in lawful possession (discretion) with intent to defraud
99
False Pretenses (Common Law)
Obtaining title (ownership) to personal property by an intentional false statement with intent to defraud
100
Larceny by Trick (Common Law)
Obtaining custody (temporary) of personal property of another by intentional false statement with intent to defraud
101
Robbery (Common Law)
Larceny from another's presence by force (sufficient to overcome resistance) or threat of immediate injury
102
Robbery (NY)
Third- Forcible stealing; Second- (1) Third and (2) D aided by another present, V injured, or car stolen; First- forcible stealing and V seriously injured or D uses or displays firearm (firearm being unloaded or inoperable is affirmative defense)
103
Extortion (Common Law)
Obtain property of another through threats of future harm
104
Forgery (Common Law)
Making or altering a writing so that it is false with intent to defraud
105
Criminal Mischief (NY)
Without reasonable belief in right to do so, D recklessly or intentionally damages property of another
106
Burglary (Common Law)
Breaking and entering the dwelling of another at night with intent to commit a felony inside
107
Burglary (NY)
Third- Entering or remaining in building unlawfully with intent to commit crime inside; Second- Third and building is dwelling or non-participant is injured or D has weapon; First- D knows he is burglarizing dwelling and non-participant is injured or D carries weapon
108
Arson (Common Law)
Malicious burning of a building
109
Arson (NY)
Fourth- Reckless burning of building/vehicle; Third- Intentional; Second- Third and D should have known non-participant was inside; First- Second and explosive device
110
Criminal Trespass (NY)
Third- Knowingly enter or remain unlawfully in building or real estate which is enclosed to exclude; Second- Knowingly entering or remaining unlawfully in a building; First- Second and explosive or deadly weapon
111
Offering for Sale (NY)
Intent and ability to proceed with sale
112
Possession of Contraband (Common Law)
Control of contraband for long enough to have opportunity to terminate possession, w/ knowledge of possession & character of item
113
Receipt of Stolen Property (Common Law)
Receiving possession and control of stolen personal property knowing it has been obtained criminally by another with intent to permanently deprive owner of interest in property
114
Accomplice Liability (Common Law v. NY)
Common law- requires intent that crime be committed; NY- enough if accomplice intends to aid in conduct & otherwise has mental state for principal's crime (includes negligence & recklessness)
115
Defense to Accomplice Liability (Common Law v. NY)
Common law- encourager must repudiate & aider but neutralize aid or prevent crime; NY- substantial effort to prevent commission of crime (no defense to attempt crimes)
116
Solicitation
Asking someone to commit crime with intent it be committed
117
Conspiracy
Agreement between 2 or more people to commit crime and overt act in furtherance, w/ specific intent to enter into agreement & accomplish objectives of conspiracy (contrast bilateral & unilateral approaches)
118
Vicarious Liability in Conspiracy
Pinkerton- must be committed in furtherance of crime & foreseeable; NY exception- D not liable for the crime if he merely conspired and did not participate
119
Attempt
Overt act beyond mere preparation w/ specific intent to commit underlying crime (cannot attempt recklessness, negligence, felony murder- lack intent)
120
Attempt Crimes: Required Act
NY & Common law- proximity test (dangerously close); MPC & majority- substantial step that strong corroborates criminal purpose
121
Withdrawal & Inchoate Crimes
Common law- no defense (except for vicarious liability for conspiracy); NY- defense if (1) D renounces prior, (2) D makes sincere and successful effort to prevent, and (3) renunciation was complete and voluntary
122
Merger Rules of Inchoate Crimes
Solicitation (always merges), Attempt (does not merge in NY), Conspiracy (never merges)
123
Insanity Defense Tests
M'Naghten (didn't know it was wrong or understand nature); Irresistible impulse (unable to control/conform); MPC (lacked substantial apacity to appreciate criminality or conform); NY (lacked substantial capacity to appreciate consequences or that conduct was wrong)
124
Voluntary Intoxication Defense
Common law- only specific intent; NY- only intent or knowledge, where it negates mental state
125
Mistake of Fact
Common law: unreasonable for specific intent, reasonable for general or malice; NY- reasonable for negligence, any for intent/know/reck if it negates mental state
126
Exceptions to Common Law Initial Aggressor Rule
D withdraws & communicates withdrawal OR V suddenly escalates to deadly
127
Exceptions to NY Retreat Requirement for Deadly Force
(1) Cannot in complete safety, (2) In home & not initial aggressor, (3) D believes it is burglary, rape, arson, kidnapping, or sodomy
128
Exceptions to NY Rule for Use of Non-Deadly Force
(1) D provoked force w/ intent to cause physical injury or (2) D was initial aggressor
129
Effect of Unreasonable Mistake about Need to Use Deadly Force
Common law- mitigate; NY- no defense
130
Use of Force to Prevent a Crime
Non-deadly- prevent serious breach of peace; Deadly- only to prevent felony risking human life
131
Use of Deadly Force to Defend Property
Intruder entered in tumultuous manner AND occupant reasonably believes deadly force is necessary to prevent person attack
132
Use of Force to Resist Arrest
Common law- only non-deadly force and only if arrest is unlawful; NY- no use of force except if officer uses excessive force
133
Use of Deadly Force by Police against Fleeing Felon (NY)
(1) Felon threatens death or serious bodily harm AND (2) Deadly force is necessary to prevent his escape
134
Duress (Common Law v. NY)
Common law- no defense to homicide; NY0 defense to all crimes
135
Entrapment
Criminal design originated w/ gov't and D was not predisposed to commit crime
136
NY Distinctions on Habit Evidence
Person must be in complete control of the circumstances. Habit is generally inadmissible to show that same amount of care was exercised (except products liability to show how P used product).
137
NY Exception to Subsequent Remedial Measures
Strict liability for manufacturing defects- post-accident changes are admissible to suggest defect at time of accident
138
Exceptions to Evidentiary Exclusion of Settlements of Disputed Civil Claims
(1) Impeachment- bias; (2) Gov't agency exception- statements of fact during discussion with regulatory agency (NY does not recognize)
139
Admissibility of Withdrawn Guilty Pleas
FRE- inadmissible; NY- admissible in subsequent civil case (not criminal)
140
Admissibility of Offers to Plead Guilty
Inadmissible
141
Admissibility of Plea of Nolo Contendere
Inadmissible in subsequent civil case
142
Admissibility of Guilty Pleas
Admissibility
143
Substantive Use of Character Evidence in Criminal Case
D's character: D can offer evidence of his own traits if relevant (rep/opinion- only rep in NY) & P can then rebut through cross exam about specific acts (to impeach knowledge about D), calling contradictory W, or--in NY--prove D has conviction that reflects adversely on trait in issue
V's character: D can offer evidence that V was initial aggressor (not in NY!); P can rebut w/ V's character for peacefulness or D's violence
V's sexual behavior in sex misconduct cases admissible for limited purposes
144
Admissibility of Specific Acts of Character
(1) Cross examination to impeach W's knowledge of D OR (2) When character itself is one of the ultimate issues of the case
145
Admissibility of Victim's Sexual Behavior in Sex Misconduct Case
(1) Someone else is source of semen/injury, (2) behavior w/ D- consent, (3) violation of DP, (4) NY- conviction of prostitution w/i 3 years if relevant, (5) NY- rebuttal of V's failure to engage in sex in certain time
146
Substantive Use of Character Evidence in Civil Case
Character is essential element: (1) Negligent hiring/entrustment, (2) Defamation, (3) Child custody dispute
Rep, Opinion (not NY), Specific Acts
147
Non-Character Purposes for Character Evidence
Motive, intent (state of mind), mistake/accident, identity (need clear & convincing evid in NY), common scheme or plan
Prove though conviction or evidence rime occurred
148
Admissibility of Sexual Misconduct to Show Propensity
FRE: Admissible; only prior acts (not rep/opinion)
NY: inadmissible (except MIMIC)
149
Ancient Document Rule
Authenticity inferred if: (1) At least 20 yrs (30-NY), (2) facially free of suspicion, & (3) found in place of natural custody
150
Self-Authenticating Documents
(1) Official publications, (2) Certified copies in public office, (3) newspapers, (4) trade inscriptions/labels, (5) acknowledged document by notary, (6) commercial paper
NY: Only if (1) civil, (2) of non-party, & (3) produced by subpoena during discovery
151
Best Evidence Rule: Duplicates
Admissible to same extent as original
Exceptions: (1) unfair, (2) question to authenticity of original, (3) NY- photocopies, if not made in ordinary course of business
152
Excuses for Non-Production under Best Evidence Rule
(1) Lost & cannot find w/ due diligence, (2) Destroyed w/o bad faith, (3) Cannot obtain by legal process
Preponderance of the evidence standard
153
Exclusions from Best Evidence Rule
(1) Voluminous records- can use summary, (2) Certified copies of public records, (3) Collateral documents (at court's discretion)
154
Dead Man's Statute
(1) In a civil action (2) Interested witness is incompetent to testify (3) against estate of decedent (4) concerning personal transaction or communication between interested witness & decedent
Exception: Opponent opens the door (such as by offering former testimony of decedent)
NY Exception: Auto Accidents
155
NY Exception to Dead Man's Statute
(1) Auto accident (2) based on negligence (3) surviving interested party may testify (4) about observations of decedent's conduct & demeanor (facts) (5) but not about statements decedent made
156
Past Recollection Recorded
(1) Fail to job W's memory, (2) Personal knowledge at former time, (3) Made or adopted by W, (4) Made or adopted when fresh, (5) W can vouch for accuracy when made or adopted
FRE: proponent can only read to jury; NY- can show
FRE & NY: adversary can show to jury
157
Battery (Tort)
Harmful or offensive contact with P's person
158
Assault (Tort)
Reasonable apprehension of immediate battery (not words alone)
159
False Imprisonment (Tort)
Act of restraint that confines P to bounded area (no reasonable means of escape P can reasonably discover)
160
Intentional Infliction of Emotional Distress
(1) Outrageous conduct, (2) Severe Emotional Distress, (3) Actual damages, (4) Intent or Recklessness
161
IIED Bystander
(1) Prima facie case of IIED or (2) P was present, P was close family member, & D knew both those facts
162
Trespass to Land
Act of physical invasion that interferes with P's exclusive possession of land
163
Trespass to Chattels
Intentional interference with item of personal property
164
Conversion
Intentional interference with item of personal property resulting in significant harm (misappropriation)
165
Torts Requiring Actual Damages
(1) IIED, (2) Trespass to chattels, (3) Conversion
166
Defenses to Intentional Torts
(1) Consent, (2) Protective Privileges, (3) Necessity
167
Torts to Which Necessity is a Defenses
(1) Trespass to land, (2) Trespass to chattels, (3) Conversion
168
Requirements for Inter Vivos Gifts
(1) Donative intent, (2) Acceptance, (3) Delivery
169
Requirements for GIfts Causa Mortis
(1) Imminent risk of death likely to occur and (2) Donor dies
170
Defamation Claim
(1) Defamatory statement that specifically identifies P, (2) Publication, (3) Damages (general/special/presumed), (4) For Public Figures or Matters of Public Concern- Fault & Falsity
171
Defamation Damages
Libel- presumed; Slander per se- presumed; Slander- special damages (economic harm) must be proven
NY: libel per quod- don't need special damages if within a slander per se category
172
Categories of Slander Per Se
(1) P's business/profession, (2) Crime of moral turpitude, (3) Unchastity to woman, (4) Loathsome disease, (5) NY- Homosexuality
173
Affirmative Defenses to Defamation
(1) Consent, (2) Truth, (3) Privilege, (4) Opinion
Absolute Privilege: (1) Spouse, (2) Gov't, (3) Media
Qualified Privilege: (1) Good faith & (2) Maters topically relevant to purpose of the privilege
174
Privacy Torts
(1) Appropriation, (2) Intrusion, (3) False Light, (4) Disclosure
NY only recognizes Appropriation for human individuals & it survives death (unlike common law)
175
Appropriation
D uses P's name or image for commercial advantage (Exception- newsworthiness)
176
Intrusion
Invasion of P's seclusion in a way that will be highly offensive to average person
177
False Light
WIdespread dissemination of major falsehood about P that would be highly offensive to avg person
178
Disclosure
Widespread dissemination of confidential info about P that would be highly offensive to average person (Exception- newsworthiness)
179
Affirmative Defenses to Privacy Torts
(1) Consent; (2) Privileges (only for false light & disclosure)
180
Fraud
(1) Affirmative misrepresentation of fact (2) Made intentionally or recklessly (3) Intended to induce reliance (4) Reliance (5) Economic Damages as a Result
181
Negligent Misrepresentation
Only in NY: (1) Awareness statement was to be used for a particular purpose, (2) Reliance in furtherance of purpose, (3) Conduct by D demonstrating D's understanding of party's reliance
182
Malicious Prosecution
(1) D institutes crim or civil proceeding w/o PC, (2) Case is terminated favorably to P, (3) Case brought for improper purpose
183
Prima Facie Tort
Only in NY: Intentionally inflicting economic harm without justification (special damages req'd)
Not permitted where there is a traditional tort or would be if not for SOL
184
Inducing Breach of Contract (Interference with Business Relations)
(1) Existence of valid K between P and third party, or valid business expectancy of P, (2) Knowledge of K or expectancy by D, (3) Persuasion of 3rd party to abandon, (4) Damage to P
Privilege: special relationship
185
Theft of Trade Secrets
Only on NY: (1) Valid Trade Secret (2) Improper Means
186
Attractive Nuisance
(1) Artificial Dangerous Condition, (2) Possessor should have known kids likely to trespass, (3) Child fails to appreciate danger because of age, (4) Utility of maintaining conditions is slight compared to risk
187
Negligence Per Se
(1) Member of Class & (2) Class of Risks
Exceptions: (1) Compliance more dangerous or (2) impossible
188
Duty to Act (Tort)
(1) Pre-existing relationship, (2) D put P in peril, (3) D undertook/assumed duty to act, (4) Emergency
