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Flashcards in Torts Deck (96)
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1

Malice (defamation)

To establish a reckless disregard for the truthfulness of a statement, the defendant must have entertained serious doubts about its truthfulness; mere failure to check facts is not sufficient.

2

Assault/Battery damages

nominal OK absent actual damages

- punitive if malice involved

3

NY Intentional Torts SOL

1 year after injury

4

IIED NY distinction

Intentional mishandling of a corpse

5

Assault

1. reasonable apprehension of
2. imminent harm
3. caused by D's action/threat
4. D's intent to cause such harm/apprehension

6

IIED

1. Extreme and Outrageous behavior
- exceeds all bounds of human decency
2. Intentionally or R
3. Results in severe emotional distress

7

IIED 3rd parties

1. Immediate family
- D aware
2. Bystander
- D aware
- physical injury

8

False Imprisonment

i) Intending to confine or restrain another within boundaries fixed by the actor;

ii) Those actions directly or indirectly result in such confinement; and

iii) The other is conscious of the confinement or is harmed by it

9

Shopkeeper's privilege

- reasonable grounds to suspect theft
- may detain for reasonable time
- reasonable manner

10

Consent by mistake

Valid unless:
- D caused mistake
- D knew of mistake and took advantage

11

NY Duty to Retreat

Retreat
- if can do so safely
- home
- w/n curtilage (enclosed area surrounding home)

12

Self Defense injury to 3rd parties

Not liable so long as not negligent

13

Defense of property

- cannot use deadly force
- may use reasonable non-deadly force if reasonable believe that necessary to protect tortious harm to property

14

Recapture of chattel

- can use reasonable force
- but must be peaceful if initial taking was lawful

15

Trespass to chattel

Intentionally
- dispossess P of chattel
- or intermeddles and damages chattel

*Mistake of fact not a defense

16

Conversion

Intentionally commits act
- Deprives P of possession
- OR interferes w/ P's possession
So serious that
- deprives P of use of her chattel

17

Conversion remedy

Full value of chattel at time of conversion

18

Conversion Defenses

- NOT OK: mistake of law/fact
- OK NY: good faith purchaser unless informed and refuses to comply

19

Necessity defense

right to use other's property to save lives or more valuable property

- trespass to land/chattels and conversion

20

Public necessity vs Private necessity

If public necessity, not liable for any damage

21

Private Nuisance

- substantial (to reasonable person)
- unreasonable (injury > usefulness)
- interference
- use and enjoyment of land

22

Nuisance self-help (abatement)

may enter another's land to abate nuisance after:
-notice
-refusal to comply

23

Standard of care (negligence)

Most courts: Reasonably prudent person under the circumstances

Modern approach: cost-benefit approach

- foreseeability of harm, severity of harm and burden of precautions

24

Duty

Duty to all foreseeable persons who may be injured by failure to show reasonable care

- Zone of danger
- If any P foreseeable, then duty to all harmed as result

25

Special class of foreseeable Ps

- if D negligently put the rescuer or the rescued party in danger

26

Firefighter Rule

- cannot recover against negligent party if inherent in the job

- NY does not recognize

27

Standard of care for children

reasonable child of similar age, intelligence, and experience

- unless involved in adult activities

28

Standard of care (physicians)

Traditionally, same or similar locale standard

- Modern trend: national standard

29

Informed consent exception (MBE)

1. risk commonly known
2. patient unconscious
3. disclosure would be harmful

30

Common Carriers and Innkeepers

highest standard of care consistent w/ practical operation