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Flashcards in Torts Deck (66):


Incapacity Defenses 

Intentional Torts 


There are no incapacity defenses to intentional torts. Anyone who commits the elements of an intentional tort should be held liable even if they have a capacity defect.  

(E.g., children/mentally ill/drunk/developmentally disabled persons can be liable for intentional torts). 



Intentional Torts 



Intent is an element of every intentional tort. The act must be deliberate and on purpose. The goal of the action must be to achieve the forbidden result. 

Knowing with substantial certainty that a certain consequence will result can also produce the requisite intent. 



Intentional Torts

Transferred Intent 


If a D desires to produce a legally forbiden consequence, but a different consequence or person is affected, it is transferred and one is treated as an intentional actor towards that second person. 

Transferred intent applies to 

  • Assault
  • Battery
  • Trespass to land
  • Trespass to chattels
  • False imprisonment




Intentional Torts: 

Damages versus Nominal Damages


Of the seven intentional torts (assault, battery, trespass to land, trespass to chattels, false imprisonment, conversion, intentional infliction of emotional distress), nominal damages are permitted as to all except: 

  1. Intentional infliction of emotional distress
  2. Conversion
  3. Trespass to chattels 

Damages are required for these three torts. 



Intentional Torts 

Extreme Sensitivity


The extreme sensitivity of plaintiff is never taken into account in determining whether P has a valid cause of action (emotional, not physical)



Intentional Torts: 



An ACT by D that brings about harmful or offensive contact to plaintiff's person, with the INTENT that the contact occur, and CAUSATION of the distress. 

  • Would the offensive touching be permitted by a reasonable or normal person? Objective test. 
  • People "consent" to the ordinary contacts of daily life (e.g., ordinary contact resulting from being on a crowded bus). 
  • PERSON = anything connected to you no matter how intimate the item is 
    • Forcibly grabbing a bag off of your arm, or slapping a horse someone is riding on the ass, can constitute batteries of the person. 
  • Damages is NOT an element of the prima facie case for battery. Nominal okay. 



Intentional Torts: 



An ACT by defendant, creating a REASONABLE APPREHENSION in plaintiff of IMMEDIATE HARMFUL/OFFENSIVE CONTACT to the plaintiff's person, with INTENT and CAUSATION

    • Apprehension is not the same thing as fear/intimidation. A weakling can cause apprehension and thus assault a bully. Apprehension means knowledge of the possible touching. 
    • For the apprehension to be shown, the plaintiff must have been aware of the threat of the defendant's act (not the D's identity). 
    • Plaintiff also must believe the threat / take it seriously, not as a joke. 
  • APPARENT ABILITY. If the defendant has an apparent ability to commit the act, this will be enough to cause reasonable apprehension. E.g., if the D's gun isn't actually loaded, it can  still be assault b/c reasonable to believe the gun is loaded (but if the P knows the gun is unloaded then no cause of action). 
  • MERE WORDS INSUFFICIENT but words can negate or suggest "immediacy." There must be accompanying physical conduct to suggest immediacy. But menacing gesture accompanied by words suggesting offensive touching is NOT immediate then there is no immediacy (e.g., words suggesting future action --> no assault) 
  • DAMAGES are not part of the prima facie case. 



Intentional Torts: 

False Imprisonment


An ACT or OMISSION by defendant that CONFINES or RESTRAINS plaintiff to a BOUNDED AREA with INTENT and CAUSATION

  • Restraint/Confinement Methods: can include physical barriers, physical force, threat of force, failure to release, invalid use of legal authority. 
    • moral pressure / future threats N/A
    • a failure to act can be an act of restraint where pre-existing duty (airplane/wheelchair example)  
  • Plaintiff must be aware of the confinement (but no fixed duration of confinement; e.g., cause of action lies if plaintiff was after a time able to break out of the confinement)
  • Bounded Area: NOT bounded if there's a reasonable means of escape that plaintiff could reasonably discover, but any dangerous/disgusting/ humiliating means is not a "reasonable" means of escape (and breaking out doesn't remove liability for false imprisonment).
  • Damages not required as element of prima facie case. 



Intentional Torts: 

Intentional Infliction of Emotional Distress 



  • Outrageous conduct "exceeds all bounds of decency tolerated in a civilized society." Hallmarks include: 
    • Continuous/repetitive conduct; 
    • Defendant is common carrier or innkeeper;
    • Plaintiff is a member of a fragile class (children, the elderly, pregnant women) (must be aware of fragility); 
    • Exploitation of P's known emotional weakness 
  • Not Outrageous Conduct: 
    • Mere insults 
    • Exercise of First Amendment rights (e.g., Snyder v. Phelps)
  • DAMAGES. No physical harm requirement, no specific evidentiary requirement; no physical symptoms or medication etc., but proof of actual damages is required (emotional distress -- in any way you want that will be persuasive to jury). 
  • EXAM TIP: if there's a subjective element like this, look for language that negates that subjective element (e.g., Patricia was mildly annoyed... = no severe emotional distress). 



Intentional Torts 

Trespass to Land



  • Defendant is presumed to have knowledge of land boundaries, so he need not know he crossed a line. The intent to be in that particular place is sufficient. The only intentional act is to physically put oneself on that property. 
  • Throwing a physical/tangible object onto P's land: can be trespass as long as the act is done deliberately. 
  • Intangible invasions are NOT trespass: casting light, smell, sound, view ONTO plaintiff's property is NOT trespass (maybe nuisance). 
  • Proper plaintiff is someone IN POSSESSION of the land (not necessarly the OWNER).
  • Right is in the land above and soil below the property, but only within reasonable bounds (e.g., airplane in airspace doesn't count). 
  • No requirement of damages. 



Intentional Torts: 

Trespass to Chattels




  • Can be intermeddling or dispossessing: 
    • Intermeddling: directly damaging chattel
    • Dispossession: depriving P of lawful possession of chattel 
  • Intent to do the act of interference is all that is required; mistaken belief that D owns the chattel is no defense. 
  • Actual damages (not necessarily to the chattel but at least to the possessory right) must be shown. 
  • Difference with conversion? small/relatively modest harm; light interference with possession. 




Intentional Torts: 



An ACT that INTERFERES WITH PLAINTIFF'S RIGHT OF POSSESSION in a chattel, whose interference is SO SERIOUS that it warrants requiring D to pay the chattel's full value; with INTENT and CAUSATION. 

  • Acts of conversion include wrongful acquisitions (theft); wrongful transfer; wrongful detention; and substantially changing/severely damaging/misusing a chattel. 
  • Intent –– mistake as to ownership is no defense; the only intent required is the intent to do the act that interferes with the right of possession. Even if taker did not intend to unlawfully take or destroy the object, if it is destroyed/stolen while in taker's possession through no fault of the taker's, then taker still liable for conversion. 
  • Seriousness. The longer the withholding period, the more extensive the use, or significant harm, the more likely it is to be conversion as opposed to trespass to chattels. 
  • Subject matter. Only personal property and intangibles that have been reduced to physical form (e.g., promissory note) are subject to conversion. 
  • Remedy: plaintiff may recover DAMAGES (FMV at time of conversion) or possesson (Replevin). 



Intentional Torts: 

Defense of Consent


  • Consent is a defense to all seven intentional torts. 
  • Plaintiff must have legal capacity to consent. 
    • Drunks cannot give consent 
    • Children can only give consent to age-appropriate harms 
  • Types of Consent 
    • Express: literal words giving consent to the tortious conduct; but express consent can be LOST by: 
      • Mistake, if D knew/took advantage of P's mistake; 
      • Consent was induced by fraud (if it goes to the essential matter, not collateral matter) (STD tranmission often constitutes fraud); 
      • Consent was obtained by duress (unless the duress is only threat of future action/economic deprivation). 
    • IMPLIED CONSENT: That which a reasonable person would infer from custom/usage or plaintiff's conduct, such as body language or being in a particular place. This is a reasonableness test. 
  • SCOPE: If D exceeds scope of consent, liable for the tort. Consent is not an unlimited doctrine. 



Intentional Torts: 

Protective Privileges 


The protective privileges are: self-defense, defense of others, and defense of property. 

Must have a reasonable belief that you or the person being aided have right to self-defense and used reasonable amount of force. 

  • Generally: Timing (threat must be in progress/imminent); reasonable belief that threat was genuine; force must be proportional. 
  • Defense of Persons:  NO DUTY TO RETREAT (MBE); NY HAS DUTY TO RETREAT unless in your own home or are police officer or assisting PO. Not available to the initial aggressor unless non-aggressor escalates non-deadly force to deadly force; self-defense may extend to third-party injuries; reasonable mistake as to the existence of danger is allowed; reasonable force allowed. 
  • Defense of Property: reasonable force may be used to prevent the commission of a tort against real/personal property; request to desist or leave must first be made unless clearly futile/dangers; force may be used in HOT PURSUIT of one who has tortiously dispossessed the owner of her chattels but does not otherwise apply once the tort has already been committed. Privilege to be on the land will supersede privilege of land possessor to defend property. Reasonable Mistake: Allowed as to right to use force in defense of property where mistake involves whether an intrusion has occurred/request to desist is required. Allows reasonable force but NO deadly force.​




Intentional Torts: 

Defense of Necessity 


  • Generally only applies to PROPERTY torts (trespass to land, trespass to chattels, conversion). 
  • Public necessity: D has interfered w/ the P’s property in an emergency BUT has done so to protect community as a whole or a significant group of people. No damages recoverable. 
  • Private necessity: D invades property of P to protect an interest of his own; self-interested. D remains liable for compensatory damages (actual harm done to property) but not punitive/nominal damages. As long as the emergency continues, D has a right to be there; P cannot throw D off land b/c of right of sanctuary. 






Privilege of Arrest: 

Felony Arrest by Police Officer 


  • Reasonably believe felony has been committed and arrested person has committed it

  • Force must be reasonably necessary to make arrest; deadly ONLY when suspect poses threat of serious harm




Privilege of Arrest: 

Felony Arrest by Private Citizen 


  • Felony in fact must have been committed; must reasonably believe that arrested person committed it. 
  • Force must be reasonably necessary to make arrest; deadly ONLY when suspect poses threat of serious harm. 





Privilege of Arrest:

Misdemeanor Arrest by Anyone


  • Must be breach of peace AND committed in arresting party’s presence;
  • Force may be that necessary to make arrest; NEVER deadly force. 





Discipline of Children


Parent or teacher may use reasonable force in disciplining children. 





Not about hurt feelings; this is an economic/reputational tort regarding the value of your good name. 

  1. Defamatory language on part of D; 
  2. Of or concerning P to reasonable reader/hearer; 
  3. "Published" to third person; 
  4. that damages reputation of P. 

If P is public figure or language is matter of public concern, P must also show: 

  • ​Falsity; and 
  • Actual malice. 


  • Intent = intentional or negligent statement (if not reasonably foreseeable that a third party would hear, not defamation). 
  • Defamatory Statement: A statement is defamatory if it tends to ADVERSELY affect the P’s reputation

  • Opinion okay if likely to make someone think the P is a thief, etc., but not purely subjective opinion. 

  • Plaintiff CANNOT BE DEAD. 

  • Private discusson between P + D is not defamation but revealing statement to even one other person besides plaintiff is defamation ("publication"). 

  • Affirmative Defenses 


    • Consent 





(Indirect Defamation)


  • Inducement: P pleads and proves additional facts that show defamatory meaning when not clear on fact.

  • Innuendo: P establishes defamatory meaning. 

  • Specific Identification: Does NOT require proper name use; can be done using position.

  • Colloquium:  Use of other facts to establish that statement referred to plaintiff extrinsically. 

  • Group References: Law Distinguishes b/w large groups and small groups. Must be sufficiently small group to give members defamation claim. 










  • Where the defamatory statement is written or otherwise captured in permanent format, damages are presumed. 
    • Libel per se 
    • Libel per quod (not defamatory on its face -- only damages if the defamatory meaning falls into a category which is slander per se). 






  • Slander is a spoken/oral defamatory statement. Plaintiff must prove special damages, unless it falls into a slander per se category (presumptive damages): 
    • Statement about plaintiff's business/profession; 
    • Statement that plaintiff committed crime of moral turpitude (e.g., serious crime); 
    • Statement imputing unchastity to a woman (not available to men); 
    • Statement that plaintiff suffers from loathsome disease (STD, leprosy). 
    • NY: Imputation of homosexuality. 
  • Non Slander Per Se: MUST PROVE ECONOMIC HARM (NY: "special damages"). 




Matters of Public Concern 


  • Generally: Arises when subject matter spoken/written is a matter of public concern 
  • Public figure: must show FALSITY and MALICE (knowledge, reckless disregard for falsity).
  • But if plaintiff is a private figure (statement re public concern), must show FALSITY and at least NEGLIGENCE/CARELESSNESS. 




Absolute Privileges


Absolute Privilege for:

  • Statements made by spouses communicating with each other; 
  • Officer of the government exercising duties: 
    • Judiciary – judges, lawyers, and witnesses are judicial officers for the purposes of this rule as long as reasonably related to the proceeding. Anything said during or related to these proceedings will not expose you to defamation liability. 
    • Legislatures – anything said on the floor of assembly, no reasonably related requirement. 
    • Executive proceedings – government executive official is absolutely privileged for any statement made while exercising the functions of her office, no reasonably related requirement. 
  • Members of the media: fair reporting privilege. Broadcasters and media outlets have an absolute privilege to report on public proceedings but must be an accurate report. 




Qualified Privileges


Qualified privilege recognized when recipient has an interest in the information and it is reasonable for the D to make the publication of the statement. Arises when there is a public interest in encouraging candor. Not based on who the D is but when the D speaks + surrounding circumstances. Common circumstances = recommendations/reference; statements to the police. 

  1. Reasonable good faith belief that statement is true; 
    • Will lose privilege if used as excuse to spread lies
  2. Confined to relevant matters.
    • Can't interject irrelevancies




Privacy Torts


  1. Appropriation. D uses P's name or picture for commercial advantage. Cause of action is not limited to celebrities. 
    • Exception for newsworthy context 
  2. Intrusion. Invasion of P's physical seclusion in a way highly offensive to an average/ordinary person. Includes: electronic surveillance; low-tech anologies such as listening at key-hole; peering in windows. Must be in place where there is a reasonable expectation of privacy. 
    • Note: NY has no cause of action for intrusion.
  3. False Light. Widespread dissemination of a material falsehood about plaintiff that is highly offensive to the average person. 
    • Overlaps with defamation but broader scope of falsehood (not required to be defamatory). But requirement of widespread disemmination (defamation requires just 1 person). 
    • E.g., statement mischaracterizing beliefs not necessarily defamatory but could be false light. 
    • False light = social damages (not economic). 
  4. Disclosure. Widespread dissemination of confidential information about the plaintiff, highly offensive to the average person. Information may be truthful but must be intimate, private, and sensitive. 
    • Not applicable to newsworthy persons such as presidential candidates; 
    • Information known in one sphere of life (e.g., social) is not confidential for these purposes even if not known in another sphere of life (e.g., work) (must be a truly private fact). 



Affirmative Defenses to Privacy Torts


  • Consent is a defense to all four privacy torts
  • Defamation privileges (Absolute and qualified) are defenses to false light and disclosure suits (not appropriation/intrusion). 



Intentional Misrepresentation / Fraud 


  • Commercial transaction tort. Requires an affirmative, material misrepresentation of fact by the defendant, made intentionally or recklessly, with the intent to induce the reliance of the plaintiffcausation (P justifiably relies), and economic damages.


  • Omission or silence not actionable. 
  • Intentioanl falsehood transmitted to a third party will not make D lible to the plaintiff. 
  • Statement must be material (not trivial). 



Malicious Prosecution


  1. D institutes a criminal or civil proceeding against P without probable cause. 
  2. Case terminated favorably to P. 
  3. D brought case with improper purpose (no good faith believe in legitimate claim). 



Inducing Breach of Contract 



  1. Existence of valid contract between P and third party;
  2. Knowledge of contract by D; 
  3. Persuasion of the third party to abandon eal by D (means not relevant; can include better deal offer); 
  4. Actual breach of contract (cannot be sued for trying to persuade). 


  • Special relationship already existing between D and third party, such as an advisory relationship; counselor; family member; etc. 



Interference with Business Relationship


Prima facie case: 



  1. Existence of a valid contractual relationship b/w P and third party; or valid expectancy of P; 
  2. Defendant's knowledge of the relationship/expectancy;
  3. Intentional interference by D that induces breach or termination of the relationship/expectancy;
  4. Damage to plaintiff 



Pecuniary Fraud Tort 


  • Intentional inflicting of pecuniary harm without justification. Requires: (1) intent to do HARM; (2) P shows special damages. 
  • Distinguish with other economic intentional torts -- intent to do the act, not necessarily the harm). 



Theft of Trade Secrets


General Rule: (2) Elements 

  1. Valid trade secret (information that provides business advantage to the possessor, such as known-how; not generally known; must take reasonable measures to keep secret); 
  2. Theft of secret through improper means (traitorous insider; industrial spy). 




The Prima Facie Case 


  1. Duty 
  2. Breach 
  3. Causation 
  4. Damages






The law asks people to take what steps are reasonably necessary to lower the probability that actions will harm other people. 

Duty owed to FORESEEABLE victims, not unforeseeable ones (Palsgraf

  • Unforeseeable victims are those outside the zone of danger, except RESCUERS
  • NEW YORK RULE: duty also arises when D negligently impacts body of pregnant woman. 
    • Child born with injuries has cause of action in own name; 
    • Miscariage or still birth: no cause of action i nchild's name but mother has claim for loss of child; 
    • Doctor misdiagnoses brth defect: once child born, parents can recover cost of caring for child but not emotional distress; 
    • Doctor messes up sterlizationNO RECOVERY FOR LATER PREGNANCY IN NEW YORK.






  • REASONABLY PRUDENT PERSON standard. This is objective, regardless of personal shortcomings such as developmental disability, insanity, etc. 
  • Exceptions:
    • Superior skill/knowledge (must use that); 
    • Physical attributes (height, sight, etc.) 
  • Miscellaneous duties:
    • Emergency: duty to act reasonably under the circumstances of the emergency (probably a lower duty than ordinary). 
    • Health care professionals owe duty of informed consent (if an undisclosed risk was serious enough that a reasonable person in that patient's position would not have consented to the treatment, duty breached). 
    • Professionals malpractice litigation: must exercise the skill and knowledge normally possessed by others of that profession in good standing in that community. Not an imaginary reasonable person standard; this is about custom. 
      • MBE: national standard
      • NY: locality standard (except for specialists, for whom their is a national standard of care). 
    • Mental health professionals owe an additional duty to warn a specific identifiable person if a patient threatens that person. 



Premises Liability 


General rule: arises when someone enters a piece of real estate and gets hurt by a static condition on that property. Defendant is whoever is in possession of that property. 

Four Duties Depending on the Type of Entrant. 

  1. Undiscovered trespasser:
    • ​​no duty of care 
  2. Discovered/anticipated trespassor:
    • duty to protect ONLY for artificial conditions on the land that are both concealed and highly dangerous (risk of severe harm, death, great bodily injury), of which the defendant is aware. 
  3. Licensee (permission but no potential economic benefit conferred on possessor): 
    • implied consent by custom: unless you put up a gate or a sign, implied consent that treats people coming up to the door (girl scout cookie sellers, religious zealots, etc.) as licensees. 
    • duty of care to protect from all conditions that are concealed/non-obvious and dangerous (not necessarily highly dangerous) of which the defendant is aware
  4. Invitees (enters land with permission and potentially conferring economic benefit on possessor, such as customer, or the property is open to the public at large, such as a mall/church):
    • duty of care to protect from all conditions that are concealed/non-obvious and dangerous of which the defendant was either aware or could have been aware through reasonable inspection. 
    • a person who exceeds the scope of his invitation loses status as an invitee and becomes at most a licensee (duty to warn of known conditions, not to inspect). 



Premises Liability Footnotes 


  • Fire fighters and police officers: often enter private property but are barred from recovery any injury that is an inherent risk of their jobs, even if caused by another's negligence. 
    • NY Distinction: this rule only applies to the firefighter or policeman's employer or co-worker. The firefighter or policeman may recover from other parties. 


  • Children: owed a higher duty than an adult trespassor. Under the attractive nuisance doctrine, the landowner has a duty to exercise ordinary care to avoid reasonably foreseeable risk of harm to children caused by artificial conditions on property. Test: 
  1. dangerous artificial condition on land of which owner is or should be aware; 
  2. owner is or should be aware that children frequent vicinity;
  3. condition is dangerous because child is unable to appreciate risk. 
  4. the expense of remedying the situation is slight compared with the magnitude of the risk. 



New York Rule on Premises Liability


  • New York does not follow these gradiations of premises liability. It has abolished all of these rules in favor of reasonable care standard (but in practice those gradiations tend to follow the type of entrant on the premises, so ok to discuss common law in any discussion as long as you point out the standard is reasonableness). 



Satisfying the Duty for Premises Liability


  1. Fixing dangerous condition 
  2. Warning of the danger 



Statutory Standards of Care 


  1. Criminal statute. Criminal sttutes may be treated as special, highly specific standards where the violation of the statute should be treated as a per se violation of the duty of care and becomes the charge to the jury (no need to show violation of reasonably prudent standard). 
    • The violation must have caused the accident (e.g., crossing a dividing line / running a red light caused accident; but merely driving without a license didn't cause an accident). 
    • P must show he is a member of the class of persons the statute is trying to protect, and 
    • that the accident falls within the class of risks that the statute was trying to prevent 
      • E.g., motor vehicle violations
      • ​where compliance with the statute would be more dangerous;
      • where compliance is impossible, then do not use the statute even when the two part test is met.
    • ​​As a general rule there is no duty to act affirmatively, and no obligation to rescue a person in peril, unless one of the following conditions is met, in which case there is a duty to act reasonably (not necessarily to succeed in rescue): 
    • (1) Pre-existing legal relationship (common carrier, inn keeper); 
    • (2) Placed P in peril / caused peril 
    • (3) voluntary/gratuitous rescuer (if you undertake, must do so reasonably, can't be careless). 
      • ​New York has good samaritan laws allowing those with special skills (eg doctors) to rescue without liability for simple negligence; companies and business will not have vicarious liability for misuse of rescuscitation device. 



Negligent Infliction of Emotional Distress 


  • Generally, a D breaches a duty to avoid negligent infliction of emotional distress when he creates a foreseeable risk of physical injury to the plaintiff through causing a threat of physical impact that leads to emotional distress. 
    • No physical injury but psychologically/emotionally upset
  1. Near-miss cases: negligence of D put plaintiff in zone of physical danger and this is why P is upset. No zone = no recovery. Requires physical manifestations of the distress (e.g., heart attack, miscarriage, etc.) 
  2. Bystander case: negligence of D caused serious physical injury to someone other than P and P is upset because that person got hurt/killed. Requires plaintiff to be a close family member or related to the victim (NY interprets strictly; spouse/child); plaintiff must be physically present and see X hurt in real time; and plaintiff must have personally observed/perceived the event; and have physical symptomps.
    • NY: must be in zone of danger
  3. Relationship Cases: where pre-existing business relationship and foreseeable that carelessness will cause distress (e.g., doctor-patient): E.G., false positive diagnosis for HIV/cancer; lost body in funeral home, etc.






  • P must identify exactly what D did wrong and give a reason why it was wrong. 
  • Statutes: 
    • compliance with statute is not necessarily establishment of due care, but in certain circumstances violation of statute --> conclusive presumption of negligence. 
  • "This conduct is unreasonable because ([custom; low cost of precaution; common sense]). 



Res Ipsa Loquitor



  1. The action is of a type normally associated with negligence; 
    • ​​NY: Presumption of breach in rear-end collision case
  2. Accient of this type is normally due to the negligence of someone in D's position (usually by showing that D had control over the injury). 

Jury can decide case either way

Expert testimony usually establishes 




But-For Causation


But for test: but for the breach the plaintiff would be healthy today. 

  1. Substantial Factor Test: 
    • if 2 Ds each cause a breach, the question is whether the breaches independently would have caused the breach, or if both breaches were "substantial factors" in the injury, in which case the Ds can be held jointly liable. 
  2. Unascertainable Cause Case: 
    • ​​If two Ds engaged in the same activity but only 1 injury was produced, and can't show which D actually caused the injury, then buren of proof shifts to defendants to show their breach did not cause the harm. If they can't, can hold them both liable. 



Proximate Causation


  • Concerns liability for the foreseeable consequences of careless acts. If the consequences were foreseeable given the breach, there will be no significant proximate cause issues. 
  • Indirect cause issues: defendant liable for well-settled quartet of cases, including:
    • Intervening medical negligence (but not gross negligence);
    • Intervening negligent rescue; 
    • Intervening protection or reaction forces; 
    • Subsequent disease or accident; 
    • Wrongful pregnancy






  • Damages are not presumed in negligence cases; there must be actual harm or injury.  
    • Nominal damages not available in negligence actions; 
    • Property damage: measure of damages is the reasonable cost of the repair, or, if the property has been almost or completely destroyed, FMV at time of injury. 
    • Punitive damages only recoverable if the conduct was reckless, malicious, willful, and wanton. 
  • Eggshell plaintiff: take plaintiff as you find him
  • Collateral Source Rule: damages not reduced just because P received benefits from other sources, but 
    • NEW YORK RULE: P's recovery normally reduced by any amounts that have been received from other sources, such as own health insurance and disability insurance policies. 



Common Law Affirmative Defense Doctrines


Distinct minority position today: 

  1. Contributory negligence as complete defense; 
  2. Primary assumption of risk as complete defense 
    • ​​But in NY even though not applying these doctrines in most cases, applies this lower duty to participants/spectators in sporting events. 



Comparative Negligence 


  • Plaintiff failed to exercise reasonable care for own safety. Reasonably prudent standard. Jury assigns percentage of fault; damages reduced by that percentage.
  • Pure comparative negligence: even if P is guilty of the majority of the fault, P gets at least some money. 
  • Modified/partial comparative negligence: only used on bar if mentioned by name. A P that is 50% or more at fault gets 0; P that is less than 50% at fault gets reduced damages, unless: 
    • D had last clear chance to avoid P's harm and failed;
    • D's conduct is more egregious than P's (e.g., P was negligent and D was reckless/wanton). 



Assumption of the Risk 


  • Assumption of the risk not a defense to intentional torts
  • Assumption may be EXPRESS (assumed by express agreement as long as not adhesion contract, where one party has no choice but to accept terms); 
  • Assumption may be IMPLIED (as where average person could clearly appreciate risk. P may not assume risk where no available alternatie to proceeding in the face of the risk, or in situations involving fraud/force/emergency. Common carriers and public utils may not limit their liability by disclaimer; member sof class protected by statute not deemed to have assumed risk. 



Worker's Compensation


    • Injury is solely because of intoxication of employee;
    • Self-inflicted (purposeful) injury; 
    • Voluntary off-duty athletic activity; 
    • Illegal acts of employee 
  • Ban on lawsuits outside of the worker's comp scheme only applies to the employer 
    • Teachers and white collar workers for non-profits;
    • Part-time domestic/household held;
    • Clergy people 
    • Injuries on construction sites of subcontractors (no worker's comp for independent contractor). 



Strict Liability: 

Injuries Caused by Animals 


  1. House pets / live stock: no liability, unless you are negligence and victim proves so. Applies to house pets and farm animals. 
    • Exception: if you know about animal's viscious propensities, you are held Strictly Liable the second time, unless the victim is a trespassor on your land. 
    • NY Distinction: if injury has to do with aggression by animal, only theory is strict liability; P only wins if there is propensity; otherwise OK to use negligence. 
  2. Wild Animals -- strict liability (safety precautions don't matter)



Strict Liability: 

Abnormally Dangerous Activities 


  1. activity must create foreseeable risk of serious harm, even if reasonable care is exercised. Activity cannot be made very safe. 
  2. activity cannot be common (must be out of place in communuity: blasting, working with toxic chems/biological materials; anything involving radiation). 

To recover on a strict liability theory on grounds of abnormally dangerous / ultra-hazardous activity, the harm must have been caused by the foreseeable dangerousness of the activity. E.g., cannot recover on a strict liability theory if D is transporting a box of dynamite and the dynamite falls on P's foot, injuring P (but not exploding). 

If the call of the question asks for strict liability, remove all negligence-based answers. 



Strict Products Liability

(Prima Facie Case)


  1. Strict duty owed by a commercial supplier (merchant)
    • NOT: casual sellers; service providers for whom products are incidental to service
    • YES: lessors of property; every party in chain of distribution of a party if merchant
  2. Production or sale of defective product 
    • If the product was dangerous beyond expectation of ordinary consumer, or a less dangerous alternative/modification was economically feasible, then there was a defective product. 
    • Reasonably foreseeable use: courts require suppliers to anticipate reasonably foreseeable uses, even if they are misuses
  3. Actual and proximate cause 
    • product must not have been altered since it left defendant's hands, but this is presumed.
  4. Damages






Strict Products Liability: 

Defective Product 


  1. Manufacturing Defect: Product has an MD when it differs from all others that came off the same assembly line in a way that makes it more dangerous than consumers would expect. Liable no matter how many checks were done (departs from intended design, the one in a million). 
  2. Design Defect: If product could have been made safer, and those safer versions were economical and practical (no impairment of utility), then there is a design defect. Failure to conform to a gov't regulation is proof of design defect, but compliance with reg is NON-CONCLUSIVE proof of no defect. 
  3. Information Defect: IF product cannot be re-designed and lacks adequate warnings about risks. Adequacy = bilingual; goods symbols. But if a product has a design defect, you cannot escape liability by putting a warning on it.  



Strict Products Liability: 

Affirmative Defenses 


  1. Comparative Responsibility: Any P 's misconduct/foolishness/cockiness will result in jury assignment of % fault, reduction of recovery. 





  • Type of harm as well as cause of action -- intangible interference, unreasonable in degree, with person's ability to use and enjoy real property. 
  • D must have engaged in conduct deliberately/negligently
  • Balancing test: court endeavors to balance interests of D and P. 
  • Substantial interference = offensive/inconvenient/annoying to an average person in the community (even if D is takng all reasonable efforts to limit nuisance effects). 
  • Balancing test: severity of injury must outweigh utility of D's conduct, taking into consideration the neighborhood, property values, costs to D to eliminate conditin; social benefits of allowing condition to continue. 
    • If P can still show that there is a substantial, unreasonable interference with P's use of land, but the court believes the utility of D's conduct outweighs P's interest, then P can get damages but not an injunction. 



Vicarious Liability


  1. Employer-employee: employer vicariously liable for acts committed in scope of employment (generally intentional torts outside scope unless authorization to use force such as bouncer). 
  2. Independent contractor: usually no vicarious liability, unless non-delegable duties. 
  3. Owner of car-driver of car: generally no vicarious liability, unless driver is doing something for benefit of owner. 
    • New York: Vicarious liability for owners if gave permission to use, presumption of permission
  4. Parents-Kids: no vicarious liability (can have cause of action for negligent entrustment)
    • New York: some limited vicarious liability for children's intentional torts 
  5. Dramshop Acts: not available at common law, but with an act, cause of action in favor of third parties for persons injured by an intoxicated vendee. 



Multiple Defendants



  • generally res ipsa cannot be used to hold multiple defendants liable because you can't show exclusive control; but there is an exception for a surgical setting among a team of physicians
  • if you don't know which of the present Ds did the damage you must show concerted action to hold all liable (intentional torts only). 


  1. Comparative Contribution: Each Co-D has a % of fault assigned; out of pocket D recovers based on that percentage.
  2. Indemnification: indemnified out of pocket tortfeasor can get all the money back. 
    • Vicariously liable Ds can get indemnification from active tortfeasor
    • Non-manufacturer can get indemnification from manufacturer
  3. See NY Distinctions in NY Practice. 



Loss of Consortium


  • Married person: uninjured spouse has cause of action (contingent liability) for: 
    • Loss of services
    • Loss of society/companionship
    • Loss of sex 
    • Derivative claim; same defenses asserted against injured party can be asserted against spouse. 



Directed Verdicts


For plaintiff to succeed on a motion for direct verdict, must establish all elements of the case and this is very hard. 

For defendant to succeed on a motion for directed verdict, must establish absence of duty + absence of breach. If Plaintiff can show duty + breach, the motion will usually be denied (even if there are questions as to causation and damages -- usually jury questions). 



NY: No Fault Insurance


  • A person will be excluded from coverage if ijured while operating a motor vehicle in a race or speed test 
  • First party benefits do not include non-economic losses of pain and suffering. 
  • The statute of limitations begins to run on the date of the accident, not when the p discovers serious injury. 
  • Basic economic losses include medical expenses and lost earnings. 



Land Owner's Duty for Independent Contractor's Negligence

Torts §422 provides that a "possessor of land, who entrusts work to an independent contractor, is subject to the same liability as though he had retained the work in his own hands." This is a clear expression of the landowner's nondelegable duty to protect others from unsafe conditions.




Rescuer's Cause of Action

All of the circumstances should be considered when evaluating the conduct of the rescuer, including the excitement of the accident and the speedy response of the rescuer. A rescuer is a foreseeable plaintiff as long as the rescue is not wanton; hence, the defendant is liable if he negligently puts himself in peril and the plaintiff is injured attempting a rescue. A plaintiff may take extraordinary risks when attempting a rescue without being considered contributorily negligent. The emergency situation is one of the factors taken into account when evaluating the plaintiff’s conduct. Assumption of risk may be applicable, depending on the circumstances, such as if the rescue were reckless.