MBE and NY Distinctions (Torts) Flashcards

Question

Defamation: Affirmative Defenses What are the 3 affirmative defenses to defamation?

Answer 1

Affirmative Defenses to Defamation Consent Truth Absolute & Qualified Privilege Absolute: ID of speaker: (1) spouses; (2) gov’t officers w/i scope (includes lawyers in court) Qualified: contexts where candor encouraged (e.g. recommendations, conversations w/police). Protects reasonable mistakes on relevant topics

Answer 2

1st Amendment Defamation Π must also prove (1) statement was false and (2) Δ is blameworthy Fault: Public Π (Famous or Injects Self Into Public Debate): Δ intentional/reckless disregard of truth Private Π: Δ negligently disregarded truth Thus, reasonable mistake is NEVER basis for liability. Punitive damages ONLY available for intent or recklessness (public or private Π).

Answer 3

Defamation: Libel (Print) & Slander (Oral) (1) defamatory statement (2) published; (3) causes damages (slander ONLY) Defamatory Statement Statement that adversely effects Π’s reputation; Opinion can be defamatory if reasonable party would believe declarant has supporting facts. Slander Per Se: (1) Π’s Business/Profession; (2) Π Committed Serious Crime; (3) Unchastity to a Woman; (4) Π has a loathsome disease; (5) NYS: homosexuality Publication Disclosure to at least 1 3rd party; intentional/negligent If statement forces Π to publish the statement herself in order to ascertain the extent of distribution, such publication is attributed to D (“Did D tell you that I . . .” ). Damages ONLY for slander (NOT per se): specific economic loss

Answer 4

Privacy Torts Appropriation: use of Π name/likeness for commercial advantage (BUT newsworthiness exception for book/newspaper). (NY: ONLY recognized privacy tort) Intrusion: objectionable invasion of Π’s reasonable expectation of privacy (e.g. hidden camera). False Light: objectionable widespread dissemination of major falsehood about Π (not intentional tort) Compare defamation: widespread, (not 1 person); damages for emotional damage (not economic); includes non-defamatory falsehoods; no mistake is a defense (not an intentional tort). Disclosure of Private Fact: objectionable widespread dissemination of confidential information about Π (BUT newsworthiness exception; ALSO dual life not confidential). Affirmative Defenses: consent; absolute/qualified privilege (only to false light and disclosure)

Answer 5

Trespass to Land (1)physical invasion (2) of land Physical Invasion Δ physically enters land (knowledge irrelevant) Δ propels something physical onto or over land Of Land Includes the air above (to a reasonable distance), and soil below the land.

Answer 6

Consent By Π w/Legal Capacity ``` Express consent (authorization for challenged conduct) cannot be obtained by fraud (concealment of STD). Implied consent: (1) custom & usage OR (2) reasonable interpretation of Π’s conduct ``` Custom: place/activity where challenged invasion is customary (e.g. sports or subway at rush hour). Reasonable Interpretation: Π’s manifestation of conduct perceived by Δ is question of fact for jury Protective Privileges Response to immediate/imminent harm w/reasonable belief that the threat is genuine (reasonable mistake OK) Appropriate Force: necessary in circumstances; deadly ONLY to protect life; NYS: retreat, but not at home. Necessity (Public/Private) Defense to Intentional Property Torts Public: interference to protect public = absolute defense Private: interference to protect self-interest; must pay for actual damages; NOT punitive/nominal; Right of Sanctuary

Answer 7

Intentional Infliction of Emotional Distress (1) Intentional or recklessly outrageous conduct (2) causes Π severe distress Intentional Outrageous Conduct Purpose of conduct was to cause distress or recklessly so caused Conduct exceeds bounds of decency Insults alone are NOT enough. Common carrier has higher responsibility Fragile Class: what is NOT outrageous to an adult might be outrageous to a child; elderly; known pregnant woman; known hypersensitive Π Causes Π Severe Distress

Answer 8

Trespass to Chattel & Conversion Deliberate interference with personal property Private civil remedies for vandalism/theft: includes (1) damaging or (2) stealing any personal property. Trespass to Chattel Harm to the personal property is minor Conversion Massive destruction to property or killing a pet. Remedy: full value of property (break it, buy it) Mistake concerning ownership is NOT a defense “(I thought it was my car.”), so long as act is intentional.

Answer 9

Battery (1) harmful/offensive contact, (2) w/Π’s person Harmful/Offensive Contact Offensive contact = unpermitted by person of reasonable sensitivity Includes intent to frighten Π With Π’s Person Includes anything Π is touching or connected to (handbag; kicking dog being walked)

Answer 10

False Imprisonment (1) act of restraint that (2) confines Π in a bounded area Act of Restraint Includes act, threat (“stay in room or I’ll kill you”), omission (illegal refusal to release prisoner). Π must be aware of confinement (not asleep) or injured by it Taking of clothes = restraint Confines Π in Bounded Area NOT bounded if there is a reasonable means of escape that Π can reasonably discover Shopkeepers’ Privilege: reasonable suspicion, means of detention, amount of time = affirmative defense.

Answer 11

3 Overriding Principles: (1) NO added benefit for hypersensitive Π; (2) NO incapacity defenses; (3) D acts w/ intent or knowledge of substantial likelihood of harm. Battery: (1) harmful/offensive contact, (2) w/Π’s person Assault: (1) Π in apprehension (2) of immediate battery False Imprisonment: (1) act of restraint (2) confines Π in bounded area Intentional (Reckless) Infliction of Emotional Distress: (1) outrageous conduct; (2) causes Π severe distress Trespass to Land: (1) physical invasion (2) of land. Trespass to Chattel/Conversion: deliberate interference w/personal property (minor=TTC; major=Conversion)

Answer 12

Assault (1) Π in apprehension (2) of immediate battery Apprehension = Knowledge/Understanding Immediate Battery Some minimal conduct that makes threat seem real & immediate (NOT words alone) Words can negate immediacy (“if” “later”)

Answer 13

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 Covered employee can recover for injuries arising out of employment 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 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)

Answer 14

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.

Answer 15

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 é Litigation allows a P to recover for pain & suffering unlike no fault.

Answer 16

Contribution – all tortfeasors pay equal amt regardless of amt of fault Defense = P was Cont. 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 é Only applies to tortfeasors suing each other so if 3rd party injured, he can recover total damages against 1 of the tortfeasors alone.

Answer 17

Security device in a particular item(s) of personal property to enforce a debt. 3 Reqs. for Creation – (1) Debt relates to services performed, (2) Debtor has legal title, (3) Creditor will have possession of the item 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. Genera lien - right to retain a whole bunch of property for a general balance due – if 1 item released, does not release whole lien

Answer 18

Inter vivos gifts - Donor (1) must have subjective donative intent, (2) recipient must accept the gift, and (3) must have a valid delivery (objective component) Donative intent - desire to pass title, not merely to turn over possession Silence is usually valid acceptance – only time no acceptance is explicit rejection 4 special delivery situations: Checks – check must be cashed so donor can stop pmt 3rd party check – donor endorses & turns over Stock certificates - delivered when handed over Agent of Donor - delivery is only final when agent gives up the object Agent of Donee – delivery complete 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.

Answer 19

Voluntary transfer of item to someone else (w/o giving up title) for a temporary purpose. Bailee must take reasonable prudence of care. Sole benefit for Bailor - bailee only liable for gross negligence. Benefit for Bailee - liability for slight negligence. 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. 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

MBE and NY Distinctions (Torts) Flashcards

(43 cards)