New York tort distinctions

Question 1

NY INTENTIONAL TORT: In the state of New York, a prima facie tort consists of intentional infliction of pecuniary harm without justification. What are its 2 elements?

Answer 1

1. The intent to do harm per (different from intent to do other intentional torts which only require the intent to do the act which causes harm).
2. Plaintiff alleges and proves special damages, that is pecuniary loss.

Question 2

NY Defense to intentional tort: New York requires RETREAT unless 1 of 4 things is true of actor?

Answer 2

1. Cannot do so safely
2. Is in his own dwelling
3. Is police officer
   4 is assisting police officer

Question 3

NY LIBEL: Distinction between a libel per se and libel per quod (libel by “extrinsic fact”): libel by an extrinsic fact is treated like libel per se (actionable without proof of special damages) so long as that libel falls into a category that constitutes what?

Answer 3

Libel by an extrinsic fact is treated like libel per se so long as that libel falls into a category that constitutes SLANDER PER SE.

Question 4

If the statement is defamatory on its face and in one of the slander per se categories, are special damages required to be proved by the plaintiff: 1. For libel? 2. For slander?

Answer 4

1. Not required for libel

2. Not required for slander

Question 5

If the statement is defamatory on its face and NOT in one of the slander per se categories, are special damages required to be proved by the plaintiff: 1. For libel? 2. For slander?

Answer 5

1. Not required for libel

2. Yes, required for slander

Question 6

If the statement is defamatory only by extrinsic fact and in one of the slander per se categories, are special damages required to be proved by the plaintiff: 1. For libel? 2. For slander?

Answer 6

1. Not required for libel

2. Yes, required for slander

Question 7

If the statement is defamatory only by extrinsic fact and NOT in one of the slander per se categories, are special damages required to be proved by the plaintiff: 1. For libel? 2. For slander?

Answer 7

1 yes, required for libel

2. Yes, required for slander

Question 8

Is there a New York “common-law” right of privacy? Is there a New York common-law protection for one’s name or picture?

Answer 8

There is no New York common-law right of privacy, but there is a STATUTORY protection for one’s picture or name. The action survives death and may be commenced or continued by the estate. Does not apply to business entities.

Question 9

There are 3 New York defenses to the statutory protection afforded to one’s picture or name. What are those 3 defenses?

Answer 9

1. Prior written consent
2. The photographer exhibiting his work absent objection
3. Goods or art that have been sold with the person’s name, picture, or portrait thereon

Question 10

Under New York law, for negligent misrepresentation, before a defendant is liable to NON-contractual parties relying on the misrepresentation, the following 3 elements must be shown

Answer 10

1. Awareness that the representation was the to be used for a specific purpose
2. Reliance by a known party in furtherance of the purpose
3. Defendants conduct demonstrates understanding of the reliance

Question 11

Does New York recognize wrongful birth as a cause of action?

Answer 11

New York does not recognize this cause of action

Question 12

A professional does not have a duty to disclose the risk of treatment if he has the following 4 defenses, which are New York specific

Answer 12

1. The risk is TOO COMMONLY KNOWN to warrant disclosure
   2 patient indicated he would undergo treatment REGARDLESS OF RISK
2. Consent was NOT REASONABLY POSSIBLE
3. Dr. reasonably believed that disclosure of risk would adversely and substantially AFFECT PATIENT’S CONDITION

Question 13

Under New York law, does the status of the plaintiff on the premises determine the duty owed to the plaintiff?

Answer 13

NO. New York employees a uniform standard of REASONABLE CARE under the circumstances with respect to injuries on land.

Question 14

Under New York State law, a violation of which of the following constitutes negligence per se: 1. A state statute? 2. A regulation or local ordinance?

Answer 14

But breach of a regulation or local ordinance is only some evidence.

Question 15

Under New York law, the duty regarding negligent infliction of emotional distress is narrowly interpreted. The plaintiff must be within 1 what?
2 if plaintiff’s distress is caused by threat of physical impact the threat must be directed at the plaintiff or who and in what circumstances?

Answer 15

1. The plaintiff must be within “the zone of danger”
2. If case is predicated on threat of physical impact, the threat must be directed at plaintiff or IMMEDIATE FAMILY MEMBER in her presence (i.e. in the zone of danger of physical injury). No nonfamily member can recover.

Question 16

In New York, under the good Samaritan statute, a licensed health professional who voluntarily and gratuitously renders emergency treatment at the scene of the accident is subject to liability only for what?

Answer 16

Only subject to liability for gross negligence.

Question 17

Under New York law, punitive damages may be awarded in cases of what?

Answer 17

Punitive damages may be awarded in cases of gross negligence under New York law.

Question 18

Under New York law, the plaintiff’s failure to use a seatbelt is what?

Answer 18

The plaintiff’s failure to use a seatbelt is an affirmative defense which mitigates damages but is not evidence of liability.

Question 19

Under New York law, tort liability arising out of on-the-job accidents are preclusively handled by what type of law?

Answer 19

Workers compensation

Question 20

What is the New York collateral source rule for damages under tort law?

Answer 20

All actions for personal injury, property damage, or wrongful death are required to reduce plaintiff’s damages by the amount of any benefits that plaintiff has or will receive from collateral sources (including his own insurance). This does not include life insurance or Social Security, though.

Question 21

Under New York comparative negligence law, May the plaintiff recover if his culpable conduct exceeds the defendants? When may the plaintiff not recover for his own couple conduct?

Answer 21

Yes, the plaintiff may recover even if his culpable conduct exceeds the defendants. However, if one is injured as a direct result of one’s own ILLEGAL conduct involving risk of physical harm, you may not recover for your injuries.

Question 22

Punitive damages are only available for respondeat superior if one of 3 things is the case

Answer 22

1. Employer was grossly negligent in hiring or retaining employee
2. Employee was entrusted with general management of business
3. Employer authorized or ratified tortious act

Question 23

With respect to automobile owner vicarious liability in New York, New York has a PERMISSIVE USE statute that provides 3 things

Answer 23

1. Owner not vicariously liable for intentionally tortious operation by driver
2. Registration is prima facie evidence of ownership, meaning driver has rebuttable presumption of owners permission
3. Not required that borrower of car actually driving vehicle, borrower’s mere presence is sufficient

Question 24

Parents are liable for up to $5000 of willful and intentional ______ torts of their minor child over age ___

Answer 24

$5000 for property torts for children over age 10

Question 25

Does New York have a dram shop act?

Answer 25

&Yes, the vendor is vicariously liable for unlawfully supplying a drunk with more alcohol.

Question 26

Under New York law do farms to intangible interests survive the plaintiffs death?

Answer 26

Yes, even harms to INTANGIBLE interests survive death.

Question 27

Our wrongful death actions part of the decedent’s estate?

Answer 27

No, those are damages for the death itself

Question 28

For a cause of action that survives death, under New York law, will the damages become part of the estate? How will they be distributed? Are they reachable by creditors?

Answer 28

Yes, damages claims that survives the death of the plaintiff become part of the estate. They will be distributed according to the will or intestacy law. They are reachable by creditors.

Question 29

Under New York law the measure of recovery for wrongful death actions: 1 includes loss of consortium? 2 allows for punitive damages?
3. How are damages recovered allocated by the estate’s personal representative?

Answer 29

1. Loss of consortium is not compensable in a wrongful death action.
2. Punitive damages are recoverable.
3. Damages are allocated in a manner proportionate to the pecuniary loss sustained by the distributees.

Question 30

Does one’s estate have the right to bring a wrongful death action in New York?

Answer 30

2 years from the time of death

Question 31

What are the intrafamily tort immunities in New York?

Answer 31

There are no intrafamily tort immunities in New York of any kind.

Question 32

May a child sue apparent for negligent supervision in New York? Why or why not?

Answer 32

A child cannot sue his parents for negligent supervision because a parent does NOT owe a duty to his child to exercise due care in day-to-day supervision.

Question 33

Under New York law, there is no governmental immunity for proprietary functions or where a special relationship exists with the state or municipality. Otherwise,____

Answer 33

Otherwise, community exists for all governmental functions

Question 34

does unborn baby have action in its own name if mom is injured and baby born with injury? what if injury causes unborn baby death, miscarriage?

Answer 34

Yes, baby has separate COA if it is eventually born alive.

No baby COA if stillborn or miscarried b/c it’s not a human.

Question 35

If Dr. negligently says “your kid’ll be born w/o defects” and there are defects, what can parents recover?

Answer 35

cost of child rearing special needs kid in excess of normal kid costs

Question 36

if dr. screw up viscectomy and there’s another kid, can parent win suit?

Answer 36

no, child rearing is supposed to be a joy, so you can’t recover as though it’s a harm.

Question 37

Does NY use categories of Ps on premises (trespasser, licensee, invitee) to determine standard of care for premises liability? If not, what standard does NY use?

Answer 37

NY uses “reasonably prudent person under the circumstances” test, which is still dependent on what type of P you have, e.g., reasonably prudent person does more to protect invitee than trespasser.

Question 38

bystandar recovers for negligent infliction of emotional distress cases in NY when?

Answer 38

Bystander: P is close family member & be eye witness - NY also reqs P is in zone of danger. Can’t see a stabbing from 200 feet away