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Flashcards in Torts Deck (64)
1

What are the 3 elements of false light?  NOTE: NY distinction

1) widespread dissemination of a major falsehood abt π  2) act would be highly offensive to a reasonable person  ...ONLY IF the matter is in the public interest... 3) the ∆ had malice (i.e. knowledge of falsehood or reckless disregard as to its falsity) NOTE: no need to prove special economic damages, emotional distress/anguish is suffiicent NOTE: this tort ~ defamation; differences: (i) for false light the falsehood doesn't have to defame; (ii) re: damage award: defamation = economic damages, BUT false light = dignitary damages NY DISTINCTION In NY, there is no "common law right to privacy" >> this tort doesn't exist  

2

What are the 2 elements of misappropriation of likeness?  NOTE: NY distinction

1) The unauthorized use of π's picture or name 2) The use is for ∆'s COMMERCIAL advantage NOTE: there is a newsworthiness exeption wrt this tort (e.g. if Sports Illustrated put pic of Jeter on mag, then mag isn’t liable; unauthorized bio) NOTE: no need to prove special economic damages, emotional distress/anguish is suffiicent NY DISTINCTION In NY, there is no "common law right to privacy"; however, "appropriation" is recognized by STATUTE The c/a survives death of π Does not protect corporations  

3

What are the 5 elements of intentional misrepresentation (fraud)?   

1) misrepresentation of a material fact Silence is generally NOT enough 2) scienter (∆ intentionally OR recklessly made the false stmt) 3) ∆ had intent to induce π's reliance on the stmt 4) justifiable and actual reliance by π Generally, reliance is justified only as to a stmt of fact (not opinion) 5) actual pecuniary damages (e.g. economic loss)  NOTE: there are NO defenses to intentional misrepresentation

4

What are defenses to invasion of privacy torts?  NOTE: NY distinction

1) Consent: Express consent OR implied consent BUT incapcitated individuals (incompetents; drunks; etc) are DEEMED INCAPABLE of consent 2)  Absolute privilege w/r/t false light or disclosure: can NEVER be loss; encompasses remarks... made during judicial proceedings (judges, lawyers, witnesses, etc) by legislators during proceedings by federal executive officals in  "compelled" broadcasts b/t spouses 3) Qualified privilege w/r/t false light or disclosure: can be lost thru abuse (i.e. it must be made in GOOD FAITH; and confined to RELEVANT STMTS/BE IN SCOPE) Generally: will arise in any situation where there is public interest to encourage ppl to speak candidly NOTE: truth IS NOT a defense NY DISTINCTION: In NY, there is no "common law right to privacy" only protection of appropriation by statute, which provides for the following defenses to prima facie appropriation... Prior written consent A photographer exhibiting his work (unless continues after written notice of objection) Goods or artwork containing name/picture that has been disposed of  

5

What are 4 defenses to defamation? 

1) Consent: Express consent OR implied consent BUT incapcitated individuals (incompetents; drunks; etc) are DEEMED INCAPABLE of consent 2) Truth: where π doesn't have to prove falsity (i.e. purely private matter), if ∆ proves truth then it's a complete defense 3)  Absolute privilege: can NEVER be loss; encompasses remarks... made during judicial proceedings (judges, lawyers, withnesses, etc) by legislators during proceedings by federal executive officals in  "compelled" broadcasts b/t spouses 4) Qualified privilege: can be lost thru abuse (i.e. it must be made in GOOD FAITH; and confined to RELEVANT STMTS/BE IN SCOPE) Generally: will arise in any situation where there is public interest to encourage ppl to speak candidly  

6

What are the 4 elements of interference w/ business relations?   

1) existence of a valid K relationship b/t π and a 3d party OR a valid business expectancy of π 2) ∆'s knowledge of the relationship/expectancy  3) intentional interference by the ∆ inducing a breach/termination of the K/expectancy  4) damages

7

What are the 3 elements of disclosure?  NOTE: NY distinction

1) public disclosure of a private/confidential info abt π  Liability would attach even if the information disclosed was true 2) disclosure would be highly offensive to a reasonable person  ...ONLY IF the matter is in the public interest... 3) the ∆ had malice (i.e. knowledge of falsehood or reckless disregard as to its falsity) EXCEPTION: the "duel spheres of life" fact-pattern >> It’s often that you share info with one sphere (neighbors) but NOT other (employer); if that info is carried to another sphere (employer), then it’s not actionable as this is considered public NOTE: there is a news worthiness exception (if there is a public desire to know, then this is relaxed) NOTE: no need to prove special economic damages, emotional distress/anguish is suffiicent NY DISTINCTION In NY, there is no "common law right to privacy" >> this tort doesn't exist  

8

What are the 5 elements of defamation?  NOTE: NY Distinction

1) Defamatory language of OR concerning the π Defamatory = if it adversely affects the reputation the subject of that stmt (i.e. name calling >> never; fact-based opinion >> maybe) Has to be concerning a living person Stmts abt a group: (i) if the stmts are about a large group, NO one is defamed; (ii) if the stmt is about a small group, π may recover if it can be reasonably be associated with π 2) Publication (intentionally OR negligently) by ∆ to a 3d person (NOT just π) NO de minimis req: revealing to ONE 3d person is sufficient for publication Primary publishers (newspapers, etc) are ALWAYS liable; secondary publishers (newspaper stand, etc) MAY be liable (if they knew of defamatory content) 3) Damage to π's reputation (type depends on type of defamation) Libel (written/printed/broadcasted publication of defamatory language): general damages are PRESUMED; no need to prove special damages Slander (spoken defamatory language): UNLESS slander per se [(i) related to π's business/profession; (ii) π has committed crime of moral torpitude (e.g. fraud); (iii) the woman π is unchaste; (iv) π has loathesome disease (leprosy; or STD)], π has to prove special economic damages NY DISTINCTION: there is an additional slander per se category available: imputation of homosexulaity ...[1st Am reqs] ONLY IF matter of "public concern"...  4) Falsity of the dematory language If stmt is TRUE, then NO c/a for defamation 5) Fault on ∆'s part (depending π's status) If π is PUBLIC OFFICIAL OR FIGURE, π has to prove malice (knowledge that stmt is false OR reckless disrgard as to its truth) to get damages If π is PRIVATE PERSON (AND matter of PUBLIC CONCERN), π has to prove at least negligence as to stmts falsity to get damages for ACTUAL INJURY NOTE: liability for IIED for defamatory speech MUST meet the defamation stds and CANNOT exist for speech otherwise protected by the 1st Am

9

What are the 2 elements of intrusion upon a person's seclusion?  NOTE: NY distinction

1) ∆'s prying or intruding into a private matter If no reasonable expectation of privacy (out in park), then not private and NO c/a for intrusion 2) Intrusion is highly offensive to a reasonable person NOTE: no need to prove special economic damages, emotional distress/anguish is suffiicent NY DISTINCTION In NY, there is no "common law right to privacy" >> this tort doesn't exist  

10

When is interference w/ business relations by ∆ privileged?   

A privilege can be found if ∆... interfered only with π's prospective business rather than existing K used commercially acceptable means of persuasion rather than illegal/threatening  tactics is a competitior of π seeking the same prospective business is a fiduciary of the 3d party, responsible for giving advice

11

What are the 2 elements of malicious prosecution?   

1) ∆ institutes criminal or civil proceedings against π w/o probable cause Prosecutors are immune from liability 2) termination in favor of the π 3) case was brought for an improper purpose (e.g. brought case for revenge) 4) damages 

12

What are the 2 elements of assault? 

1) The ∆ must intentionally place π in reasonable apprehension Apprehension = knowledge of something; doesn't need to be definitive, just reasonable and apparent You don't have to fear the ∆ to have apprehension 2) The reasonable apprehension must be of an immediate battery (harmful/offensive contact) Words alone (without action/physical gesture) lack immediacy; however, words can negate OTHERWISE valid immediacy (i.e. conditional words to negate a threat OR future intent words coupled with present ability [weapon] to harm)  NOTE: damages are not required (π can recover nominal damages)

13

What are the 2 elements of battery?

1) The ∆ must intentionally commit a harmful OR offensive contact Intent = is satisfied as long as the ∆ knew with subsantial certainty that the harmful/offensive contact would take place Offensive = violates a reasonable sense of personal dignity (i.e. if it’s unpermitted by a person of ordinary sensitivity) 2) The contact must be with the π’s “person”  “Person” includes anything that is connected to the π (what's he's holding, touching, etc) NOTE: damages are not required (π can recover nominal damages)

14

What is tortious transferred intent?    

As long as ∆ has requisite intent at beginning of an intentional tort, the intent req is satisfied even if a DIFFERENT PERSON  gets hurt or a DIFFERENT TORT is committed

15

Which 5 intentional torts are subject to transferred intent docrtine?    

Transferred intent may be invokes ONLY IF the tort INTENDED and the RESULTING tort are among these... assault battery false imprisonment tresspas to land trespass to chattels

16

What is intent?    

Intent may EITHER be.... Specific = the goal in acting is to bring about specific consequences General = the actor knows with "substantial certainty" that specific consequences will result NOTE: Everyone is "capable" of forming intent...INCAPACITY IS NOT A DEFENSE (e.g. a minor can form requisite intent)

17

What are the 2 elements of false imprisonment? 

1) The ∆ must commit act of restraint/confinement Sufficient restraint/confinement = (i) physical barriers; (ii) physical force; (iii) actionable threats of immediate force; (iv) failure to release; and (v) invalid use of legal authority Act of restraint only counts if π knows of it OR is harmed by it (if π is unaware AND unharmed, then there can be no tort c/a for false imprisonment) 2) The π must be confined in a bounded area An area is NOT bounded, if there is a reasonable way to escape that π can reasonably discover (If it’s disgusting, hidden, humiliating OR dangerous, then it’s NOT reasonable) Amt of time confined is IRRELEVANT NOTE: damages are not required (π can recover nominal damages)

18

What are the 3 elements of intentional infliction of emotional distress (IIED)? 

1) ∆ must engage in outrageous conduct (intentionally OR recklessly) Outrageous conduct = "exceeds all bounds of decency tolerated in a civilized society" NOT outrageous = (i) mere insults; (ii) ∆ exercising his 1st Am rights Outrageous (factors) = (i) the conduct is repetitive/continusous; (ii) the ∆ is a common carrier (Amtrak) or an inkeeper (hotel) can be liable for "gross insults"; (iii) member of a certain fragile π (i.e. children, elderly, known pregnant women) 2) π must be severely distressed No specific evidence needs to be offered by π π DOESN'T need to exhibit physical symptoms from the distress BUT actual damages are necessary (π CAN'T recover nominal damages) 3) For 3d party bystander IIED, must prove: The π was present when the injury occured  The π is a close relative of the injured person; AND The ∆ knew that the π was present AND was a close relative to the injured person  

19

What are the 2 elements of trespass to land? 

1) The ∆ must commit an act of PHYSICAL invasion  Physical Invasion = (i) physical entrance onto property; (ii) propelling/throwing/tossing something physical onto land; but NOT (iii) intangible forces (light, smells, sounds, etc)  2) The act must interfere w/ π’s exclusive possession of real property Real property = includes not only the surface BUT ALSO airspace and subterrain (at reasonable distances) The cause of action belongs to person in possession, not necessarily the owner (the lessee) NOTE: damages are not required (π can recover nominal damages)

20

What is trespass to chattels?   (versus conversion?)  

∆ intentionally interferes with π's right of possession in a chattel Types of interference = (i) intermeddling (directly damaging chattel); OR (ii) dispossession (depriving π of lawful right to posess) ∆'s mistake as to ownership will not insulate from liability  NOTE: the damage remedy is the cost of repair -------------------------- re: Conversion vs. TTC Conversion requires interference so serious that it warrants requiring ∆ to pay FULL value Factors of serious interference: (i) the withholding pd; (ii) the extent of the use/damage   NOTE: the damage remedy is for full mkt value (a forced sale) at the time of the CONVERSION

21

 What is valid consent to an intentional tort?  

1) Express consent = spoken/written “words” by π, giving ∆ permission to behave in a certain way  Express consent is not a valid defense if obtained via fraud (as to essential matter), duress (threats); OR π's mistake (if ∆ took advantage of that mistake) 2) Implied consent = two types... Apparent consent = consent based on ∆’s reasonable interpretation of π’s objective conduct/body language (NOTE: this applies ONLY to NORMAL contact inherent in sports, ordinary incidental contact like on a train, etc) Consent implied by law = arises when it's necessary to save a person's life (or other important interest in person or property) NOTE: incapcitated individuals (incompetents; drunks; etc) are DEEMED INCAPABLE of consent; BUT children can consent to an age appropriate invasion of their person NOTE: all consents have a scope, and if ∆ exceeds the scope, then he will be liable for the tort

22

When can self-defense excuse a ∆'s intentional tort?   NOTE: NY distinction 

1) When a ∆ reasonably believes that she is being OR is about to be attacked  The threat must be in progress or imminent →can't use self-defense to responded to completed intentional tort (i.e. revenge) A reasonable mistake as to the existence of the danger is allowed Generally NOT available to intital aggressor  2) When ∆ uses such force as reasonably necessary to protect against injury Can use up to deadly force if the circumstances necessitate it NY DISTINCTION: If there is a possibility of retreat, then you CAN'T use deadly force; UNLESS...(i) ∆ can't retreat safely; (ii) ∆ is in his own house; (iii) ∆ is a police officer (or a person assisting a police officer)

23

When can defense of others excuse a ∆'s intentional tort?  

1) When a ∆ reasonably believes that a 3d party is being OR is about to be attacked  The threat must be in progress or imminent >> can't use defense of others to responded to completed intentional tort (i.e. revenge) A reasonable mistake as to the existence of the danger to 3d party is allowed 2) When ∆ believes that the 3d party could have used force to defend himself Can use as much force as he could have used in self-defense if he were the one threatened with injury

24

When can defense of property excuse to a ∆'s intentional tort?  

One may use reasonable force (but NOT deadly force) to prevent the commision of tort against her real or personal property E.g., A security guard's privilege to use REASONABLE force in detaining suspects (defense to false imprisonment) OR in attempting arrest (assault) A request to desist or leave must first be made (UNLESS futile) The threat must be in progress (∆'s defense will be in hot pursuit) or imminent → can't use defense of property to responded to completed intentional tort (i.e. revenge) A reasonable mistake as to whether an interference has occured is allowed; NOTE: mistake is NOT ALLOWED when π's interference is privileged (e.g. necessity) 

25

When can private necessity excuse to a ∆'s intentional tort to property (land, chattels, conversion)?  

If there is an emergency, which requires protection of ∆'s private interest  The ∆ IS liable for actual damages to π's property, BUT is not liable for nominal/punitive damages As long as the emergency continues, the ∆ CANNOT be expelled, evicted or ejected; there is a “right of sanctuary”   

26

When can public necessity excuse to a ∆'s intentional tort to property (land, chattels, conversion)?  

If there is an emergency, which requires protection of the community as a whole or a significant group of ppl  The ∆ IS NOT liable for actual damages, nominal or punitive damages w/r/t to π's property As long as the emergency continues, the ∆ CANNOT be expelled, evicted or ejected; there is a “right of sanctuary”   

27

NY ONLY What are the 2 elements of prima facie tort?

1) intent to do harm (cf. intent to do action that then causes harm) 2) π must allege/prove special (pecuniary) damages NOTE: This is a "catch all" tort that could apply ONLY IF no other traditional tort is available

28

How can a π establish a private or public nuisance?  

1) private nuisance = (i) a substantial, unreasonable interference with (ii) the private individual's use or enjoyment of π's property "Substantial" is NOT the result of π's hypersensitivity/specialized use of the property Cts try to balance the interests (freedom of property usage vs. right to not be disturbed) to determine "unreasonable interference" NOTE: the violation of a zoning ordinance or regulation may be a factor in balancing severity; it is NOT DETERMINATIVE "Coming to the nuisance" is generally NOT a defense to nuisance unless π bought property just to bring suit 2) public nuisance = (i) an unreasonable interference with (ii) the health, safety, or property rights of the community E.g. using a building as a base for prostitution Private recovery for public nuisance is available ONLY IF the private party suffered unique damages from public at large NOTE: nuisance is not a separate tort in itself (i.e. you can have nuisance caused by intentional, negl, or S/L conduct) 

29

What are the 4 relationships that fit the vicarious liability fact pattern? NOTE: NY distinction

1) Employer/employee (respondeat superior): the passive employer is liable for the acts of an employee; provided that the act is committed within the scope of employment Intentional torts by employee are normally outside the scope of employment (UNLESS force is a part of the job OR employee is further goals of employer) An employee can make MINOR departure from employment responsibilites and employer would STILL be liable (UNLESS the departue is significant) Independent contractors: in general NO liability for independent contractor, UNLESS: (i) land occupier hires IC who injures invitee (e.g. a customer); (ii) negligent hire; (iii) non-delegable duties (e.g. IC doc in the ER); OR (IV) abnormally dangerous acitivity 2) Automobile owner/driver: the general rule is NO vicarious liability for passive car owner driven by another tortfeasor, UNLESS the car is lent to do an errand for the owner (becomes principal agent rel) NY DISTINCTION (Permissive Use statute): There is vicarious liability imposed on the owner for torts committed by ANYONE driving the car with permission (and a presumption of permission) 3) Parent/child: the general rule is NO vicarious liability for passive adult for tortious conduct by child UNLESS the child is working as an agent for the parent NY DISTINCTION: provides for vicarious liability for adult, BUT only for a maxmium amt of $5k in damages for intentional property torts by children > 10 4) Tavernkeepers/drunks: the general rule is NO vicarious liability for bars for tortious conduct of drunk customers NY DISTINCTION (Dram Shop Act): makes a bar who unlawfully served (e.g. already drunk/minor) alcohol to tortfeaser, liable to the 3d party

30

With joint and several liablity, what 2 rights may the out-of-pocket ∆ have against the other ∆? NOTE: NY distinction

1) Comparative contribution rights: the jury puts a number on each co-∆ and the out-of-pocket ∆ recovers based on the assigned %   2) Indemnification: cases where out-of-pocket ∆ can get FULL reimbursement...  Vicarious liability: passive tortfeasor can recover from active tortfeasor Strict products liability: a non-mnfr can get indemnity from mnfr Via K: the out-of-pocket party has contractural right to indemnification NOTE: neither contribution nor indemnity affect how much the π will recover

31

How can suvivors of a π recover under wrongful death? NOTE: NY distinction

This is NOT a tort; procedural devise allows family members to stand in shoes of deceased Pecuniary damages ONLY (money deceased would have earned if lived); NOT pain & suffering If affirmative defense could have been asserted vs. deceased, then it can be asserted vs. survivors NY DISTINCTION: must be brought w/in 2 years of death; NO loss of consortium; punitive damages ARE recoverable

32

What are the 3 spousal c/as that can be brought for tortious interference with family relationships?  

1) Loss of Services: with spouse injured, the uninjured spouse can collect as you have one less person to help out (e.g. hiring another to mow lawn) 2) Loss of Society: with spouse injured, uninjured spouse cannot share companionship to same degree as before injury 3) Loss of Consortium: sex  NOTE: any defense that could be asserted against physically injured party can be asserted against the uninjured spouse

33

When is a finder allowed to keep and retain acquired property? NOTE: NY Distinction

Depends on whether the property is... 1) Abandoned = give up possession and intent to relinquish title/ownership Rule: anyone who takes possession with desire to own becomes the new owner 2) Lost = if you part with possession BUT you have NO intent to relinquish title/cntrl/ownership (e.g., leaving umbrella behind) In NY if the item in question... has value < $20, the finder MUST make reasonable effort to locate the owner, AND IF after 1 yr, the owner is not found, you get to keep property has value > $20, then finder MUST turn item over to the POLICE; the police must then hold the item for statutory pd depending on value (NOTE: if more than $5k, the pd is 3 yrs); THEN IF no one claims then property can be kept

34

When can a gift giver (donor) take the item back?

Depends on type of gift... 1) Inter vivos gifts (given during the lifetime of the donor): have 3 req to past title to make gift COMPLETE/FINAL  There must be an intention to past title by donor (e.g. not like borrowing lawn mower) There has to be an acceptance by the donee (NOTE: silence IS considered a valid method, so there must be a REJECTION) There must be valid delivery by (i) turning over of possession of the item (e.g. giving a physical car); OR (ii) turning over something that is representative of it (e.g. the keys to the car or the certificate of title) A first party check (i.e. "pay to the order of donee”) that is SIGNED by donor is ONLY delivered when the check is cashed A 3d party check (check that is endorsed by donor via 3d party and signed over to donee) is delivered upon receipt For stock certificates, complete delivery means signing the certificate AND taking possession  Situations involving agents: (i) if agent is agent of donee, then delivery is complete upon receipt; BUT (ii) if the agent is the agent of the donor, then delivery is not YET complete 2) Gift causa mortis (gift given in contemplation of death) The gift is ONLY final when (i) there is an imminent risk of death that is likely to occur; AND (ii) the donor actually dies NOTE: Not valid if the donee dies first

35

What is a lien and the 2 reqs for a valid lien?

Lien =  a primitive security device for debt that is associated with property   Formal reqs for a valid lien: 1)There has to be a debt associated with services 2) The debtor still has formal title to the property, BUT the creditor has lawful possession

36

What is the difference b/t a general and a special lien?

General lien = right to retain a bunch of properties as security for general balance due (e.g. hotel room that keeps stuff in room until the bill is paid) NOTE: if you give one item back then that DOESN'T RELEASE lien as to other items Special lien = right to retain specific property related to services provide where there is a debt (e.g. mechanic’s lien) NOTE: if creditor gives up the item, then this terminates the lien BUT NOT the debt

37

What is a bailment and key bailment issues?

A bailment is created when you surrender possession of an item for a ltd time and ltd purpose (e.g. lending someting to someone) Bailor = owner of the object Bailee = one who's holding the object Bailee takes on a legal duty of care wrt the item and can be held accountable if the item is destroyed Key bailment issues: 1) If an item inside of another item (e.g. car w/ stuff in the trunk) and you leave in a garage w/ key then the bailee is responsible if item is typical/ordinary (e.g. tire vs. gold bars) 2) A bank is a bailee of everything in a safe deposit box even if it’s unusual/not typical 3) If you turn over key in a garage, then it’s a bailment, BUT if it's a part and lock, then NOT a bailment 4) A coat check bailment is regulated by statute Ltds on liability depends on whether it’s fee vs. free coat check OR whether you declared a value for item

38

NY ONLY: What are the 2 elements for theft of a valid trade secret?

1) Valid trade secret EXISTS Trade secret = private information that provides business advantage, which is reasonably protected by π 2) Δ takes the trade secret by IMPROPER MEANS Traitorous insider: learned legitimately but then uses for own purposes Industrial spying: learning trade secret thru often criminal means (NOTE: legal means can be improper IF they overcome π’s reasonable precautions)  

39

NY ONLY: What is no fault insurance?

Designed to divert minor auto accidents from the ct system by denying the right to sue, but giving g’teed comp from an insurance company NY ONLY gives benefits for PERSONAL injuries (i.e. NOT a banged up car, which is covered by collision insurance) Injured party receives...  Medical exp Lost wages: 80% of weekly wages up to 2k/month for a max of 3 yrs (i.e. if you make >$30k, then you max out) Misc expenses of $25/day up to 1 yr BUT NOTHING for pain and suffering Policy ltds can cap medical expenses This benefit is portible (even if injured out of state) BOTTOM LINE: if you see a CAR in a fact pattern THINK no fault insurance

40

NY ONLY: Which injured parties are (and aren't) allowed to collect no fault benefits from an insurance company (1st party benefits)?

1) The policy holder OR any authorized driver of policy holder’s car 2) Any passenger in the policy holder’s car (assuming authorized driver) 3) Any pedestrian injured by policy holder’s car BUT NOT... 1) Drunk drivers 2) Drag racers 3) Car thieves and other fleeing felons NOTE: If two vehicles collide, occupants of each car look to no fault beneifts of THAT CAR

41

NY ONLY: When are you STILL permitted to file a trad negl suit in NY after the election of no fault insurance benefits? 

1) When you have “injuries in excess of basic economic loss”, then you can sue anyone Formula: add medical + 80% of weekly wages capped at $2k capped at 1 yr (24k) + misc. exps at $25/day up to a yr (9k); IF it exceeds $50k, THEN you can sue 2) If you “suffered a serious injury”  death dismemberment significant disfigurement; fracture loss of a fetus peminant loss of bodily organ or function perm. consequential limitation of bodily organ (e.g. perforated lung and having trouble breathing) significant ltd of use of bodily function/system a non-permanent injury that prevents you from performing acts that are normally/customary for π for a pd of 90 days NOTE: you can BOTH damages and no-fault recovery, but no double recovery (i.e. no 2x medical bills)

42

What is the 4-part test determining whether injunctive relief is appropriate?

1) π must show that there is no adequate remedy at law (i.e. money is not adequate on the facts of this case to provide relief) Where ∆ has no money (insolvent ∆) The harm is impossible to measure in monetary terms ∆ is abt to destroy a priceless artifact ∆ keeps trespassing on land; or keeps punching you in face 2) you have a protectable right involved in this particular lawsuit This is a legacy element as cts once held that you can only get an injunction if your property interests were effected Modern view: you have a protectable interest if reputation, privacy, bodily integrity is involved This is kind of a “free square on a bingo card”; never an obstacle to getting an injunction 3) injunction must be enforceable Almost never an issue in a negative  injunction With an affirmative injunction you may have an issue E.g., A paper has to print a retraction and then the ct would have to judge whether retraction is sufficient Look at the complexity of the conduct (the harder, the harder it is to be enforceable) Look how long it would take (longer? Harder to enforce) Look to see whether activities would take place out of jx 4) the balance of hardships must “tip in the π’s favor” The benefit to the π, must outweigh the harm that the ∆ will suffer NOTE: injunctions and monetary damages are NOT mutually exclusive

43

What 2 special defenses may a ∆ assert against an injunctive remedy (ONLY)?

1) Unclean hands: the π is guilty of some offsetting conduct 2) Laches: prejudicial delay by π to seek relief (~SOL, but independent of SOL)  E.g. if there is a legal nuisance, and both money and injunctive relief is requested; since factory has been there for YEARS, and the π didn’t seek relief, there should be no injunctive relief granted 3) 1st Amendment: e.g., enjoining a newspaper publication NOTE: you can STILL sue for MONEY DAMAGES nws these special defenses

44

How does worker's compensation work?

It’s designed to be the EXCLUSIVE remedy of an emp injured on the job The empl'r will be liable regardless of fault (and the emplr’s insurance will pay), BUT the emp CANNOT SUE the empl'r The workers comp bar on litigation also applies to actions against co-workers, UNLESS they were acting intentionally OR outside the scope of employment The bar on litigation ONLY APPLIES to the employer, therefore an injured emp can sue anyone else against whom he’d have a claim E.g. on a construction site, the electric subcontractor can sue the general contractor or the plumbing subcontractor (as neither of these are the emplr of the emp) Injured emp receives... All medical expenses 2/3rds of wages Specified lump-sum benefit in the case of death/fatal accident

45

What 5 types of emps are NOT covered by worker's compensation?

1) Independent contractors 2) Teachers 3) Non-manual workers for charitable orgs 4) Part-time household emps (e.g. nannys) 5) Members of the clergy

46

Which types of injuries are and AREN'T "covered injuries" under worker's compensation?

A covered injury is pretty much any injury that happens at work, EXCEPT: 1) Injury due solely to your own intoxication 2) Intentional self-injury   3) Injury during voluntary, off-duty athletic activity (e.g. company softball game) BUT the following ARE "covered"... 1) Injury from illegal acts committed during course of emp (e.g. roofer attemting to steel copper on roof and getting hurt)   2) Injury from horseplay during work, UNLESS the horseplay is so divorced from work (then it won't be covered)

47

What are the 3 theories of breach of duty?  

1) Custom or usage to define standard of care: if ∆ acts differently from the custom that everyone else follows NOT controling as to whether as to whether conduct was negligence (as the entire industry/sector/etc may be negligent) 2) Violation of statute (Negligence per se): if the ∆ violates a duty as established by statute 3) Res Ipsa Loquitur: π can’t specifically explain what Δ did to cause the injury (e.g. barrel mysteriously falls from warehouse); If π can prove 3 elements (inference of negligence), it goes to jury (i.e. no summary judgment)... Accident of type that doesn’t normally occur in the absence of negligence Negligence is usually committed by someone in Δ’s position (Δ had exclusive cntl of instrument of injury) π was not contributorily negl. in the injury    

48

What is the Eggshell Skull Rule AND the Collateral Source Rule? NOTE: NY Distinction

Eggshell Skull Rule: the ∆ takes π as she finds him...if ∆ is negligent (i.e. duty, breach, causation), then Δ pays for ALL damages  Collateral Source Rule: damages are not reduced just b/c π received benefits from other sources (i.e. health insurance) NY DISTINCTION: NY has abolished the collateral source rule; π's damages are REDUCED by collateral pmts    

49

What is the std of care owed by possessor of land? NOTE: NY Distinction

1) For undiscovered trespasser (on land w/o permission OR occupier’s knowledge)...  NO duty of care for activity/condition (unforeseeable) 2) For discovered/obvious trespasser (occupier knows OR should know)... Posessor activities: RPP in similar circumstances Land conditions: duty to warn/make safe from (1) man-made (ONLY) condition; (2) highly dangerous; (3) concealed; (4) known to occupier NOTE: under attractive nuisance doctrine, LIABLE if child (i) is foreseeably attracted to land (e.g. a pool); (ii) CAN'T appreciate the risk of the condition; AND (iii) compliance is less expensive than risk imposed >> then duty to warn/make safe for man-made conditions (ONLY) 3) For licensees (friends or other entrants who enter w/ permission)... Posessor activities: RPP in similar circumstances Land conditions: duty to warn/make safe for conditions (natural AND man-made) (1) concealed and (2) known to occupier 4) For invitee (business or land open to public; benefit posessor)... NOTE: an invitee loses his status as an invitee if he exceeds the scope of his invitation (i.e. becomes a trespasser) Posessor activities: RPP in similar circumstances Land conditions: duty to warn/make safe for conditions (1) concealed; (2) known or should have discovered w/ reasonable inspection NY DISTINCTION: doesn't distinguish b/t type of entrant Std of care = reasonable care under the circumstance BUT entrant status is evidence of foreseeablity (foreseeability scale: customer>guest>trespasser)  

50

When is there an affirmative duty to act (the failure to do so constituting breach)? NOTE: NY Distinction

General Rule: NO affirmative duty to act 3 Exceptions, which necessitates doing what’s reasonable under circumstances (no requirement of martyrdom) Preexisting relationship: family member; common carrier; innkeeper; business owner/invitee Δ created the danger ∆ assumped responsibility (attempted to rescue) >> liable for negligent rescue NY Distinction: For medical professionals, an attemted rescue is only actionable if grossly negligent (Good Samaritan Law)

51

General rule: To whom do we owe a duty of care AND what's the level of care?  

1) everyone owes a duty of care to foreseeable victims of their potential negligence Foreseeable Victims: w/in Zone of Danger 2) level of care = that given by a reasonably prudent person (RPP) in similar circumstances (objective std) RPP: NO allowances for Δ’s shortcomings; EXCEPT: (i) ↑ std. for superior knowledge (e.g. NASCAR driver = higher driving std.); (ii) physical characteristics (e.g. reasonable blind Δ).  

52

What are the 3 elements of negligence per se? NOTE: NY Distinction

To establish duty/breach, π needs to show... 1) the statute provides for criminal penalty that clearly defines std. of conduct 2) π is w/ in class of ppl that the statute is meant to protect 3) the statute was designed to prevent the type of harm suffered by π EXCEPTIONS: (i) compliance more dangerous than violation (e.g. cross yellow lines to avoid hitting child); and (ii) impossibility of compliance (e.g. heart attack caused violation) NY DISTINCTION: ONLY state statutes (NOT local ordinance/reg.) will establish negligence per se (otherwise only some evidence of negl.)

53

Who are 2 victims’s who are presumptively foreseeable (so are owed a duty whether or not actually foreseeable)? NOTE: NY distinction 

1) Rescuers: injuries to rescuers are ALWAYS (presumptively) foreseeable ("danger invites rescue") 2) Fetuses: negligent Δ injures pregnant lady If fetus is born dead: mother has a claim, but baby's estate CAN'T bring claim If fetus born alive w/ defects: injury to baby is foreseeable >> (i) baby can recover; (ii) parents can recover for marginal costs given defects If there is a botched sterilization ("wrongful birth"): can get damages for child rearing expenses  NY DISTINCTION: parent's CAN'T recover b/c "joy of new child outweighs marginal expenses"  

54

What is the std of care owed by children?  

1) Children ≤ 4: incapable of negligence 2) Children b/t 5 and 18: owes duty of hypothetical child of similar age, experience, intelligence in similar circum. (NOTE: drastically different standard from RPP) EXCEPTION: if child engages in adult activity >> child is held to adult std. (e.g. vehicle w/engine)  

55

What is the std of care owed by professionals?  

Std of care = that is given by the average member of that profession (in good standing) in similar community  Std. is empirical/discoverable Liability still turns on whether it was REASONABLY FORESEEABLE that the professional's action/service would CAUSE a HARM "Similar community" = rural vs. urban; EXCEPTION: specialists (e.g. brain surgeons) are held to a national standard    

56

How does π establish but-for/factual causation?  

Test = "But for the breach, there would be no injury" 2 important  scenarios 1) Multiple Δs & mingled/merged causes (e.g. 2 Forest Fires) "Substantial Factor" test: joint liability for each Δ whose breach was substantial causal factor (i.e. could individual cause the damage) in π’s injury. 2) Multiple Δs & unascertainable cause (e.g. Quail Hunting case) Burden Shift: shift burden to each Δ to prove by a preponderance that they are NOT the cause; if can't they are jointly liable  

57

What are the 2 elements of negligent infliction of emotional distress? NOTE: NY Distinction

1) π is in zone of danger 2) serious subsequent physical manifestation EXCEPTION 1: if π is not in zone of danger, but witnesses injury to 3d party; this requires: (i) close relationship b/t π and 3d party; (ii) the presence of π at scene of injury AND π's witnessing the injury NY DISTINCTION: w/ this exception, π STILL has to be w/in zone of danger AND have a immediate family relationship (nuclear family, not extended)  EXCEPTION 2: if π is not in zone of danger, but is in a special relationship w/ ∆ where it is very foreseeable that carelessness will cause distress (e.g. Dr. negligently telling patient he has AIDS when he doesn't)  

58

What are the 3 affirmative defenses to prima facie neglience (duty, breach, causation, damages)? NOTE: NY Distinction

1) Contributory negligence: negl on part of π that contributes to her injury that COMPLETELY bars π's recovery Contributory negl. is a minority rule Contributory negl. is NOT a defense to wanton/willfull misconduct or intentional tortious conduct Last Clear Chance Exception: π is STILL able to recover n/w/s being contributorily negl. if ∆ had last chance to avoid the accident 2) Assumption of risk: π is denied recovery if she assumed the risk of any damage caused ∆'s act NOTE: Most comparative negl. jx have ABOLISHED the separate defense of "implied assumption of risk" → would just analyse the π's conduct under comparative negl. principles Assumption of risk is NOT a defense to intentional tortious conduct (but it IS A DEFENSE to wanton/reckless misconduct) NY DISTINCTION: assumption of the risk has been abolished, but cts still use label, “primary assumption of the risk”, which applies ONLY to participants or spectators in sporting/recreational activities 3) Comparative negl.: π's negligence is not a complete bar to recovery, but her recovery is reduced to the extent (%) that she is negl. in causing the injury; two types... Pure (**default**): π's recovery is reduced  by % of her fault  Modified/partial: if π is ≥ 50% negligent, then she get's NO recovery NY DISTINCTION: the π may recover even if the π's negligence % is greater than the ∆'s (BUT if π's conduct was illegal, NO recovery)    

59

What is the prima facie case for negligence?   

1) duty (owed to all foreseeable victims/πs) 2) breach (conduct falls short of duty) 3) causation: factual (but-for) & legal/proximate (blameworthiness) 4) damages (eggshell skull doctrine) NOTE: if you are given a negl. question in an essay, you must discuss EVERY element  

60

How does π establish proximate/legal causation?  

1) For direct causes: established if π’s injury a immediate foreseeable result of Δ’s breach ∆ is not liable for unforeseeable harmful results not within risk created by ∆'s negl. 2) For indirect causes: when there are intervening causes (increasing π's injury), original Δ IS STILL liable for... intervening negligent medical treatment (e.g. malpractice) intervening negligent rescue intervening reactions to protecting property/person subsequent accident/disease to π foreseeable independent intervening forces if ∆ increased the risk of harm by that force (e.g. theft, acts of God, etc); NOTE: if it's an unforseeable independent intervening force AND an intentional tort by 3d person, then it's a superceding cause (no ∆ liability)

61

What is the prima facie case for strict products liability?    

1) strict duty owed by a merchant ∆ that routinely deals in this type of a product  Traps: (i) casual seller is NOT merchant; (ii) service provider (i.e. they offer products incidentally to services) is NOT merchant of products used; (iii) commercial lessors ARE merchants (e.g. car rental company); (iv) every party in distribution chain IS a merchant NOTE: Privity is not required (users, consumers and bystanders can all sue) 2) production OR sale of a defective product Manufacturing defect: aberration/anomaly in batch from same assembly line Design defect: (i) hypothetical alternative design is (1) safer, (2) economical, AND (3) practical NOTE: Failure to conform to a gov't regulation is CONCLUSIVE proof of a defective design (BUT compliance with gov't regulation is NOT conclusive evidence of a non-defective product) Inadequate warnings defect: exists if (i) the product has residual risks that cannot be designed out; (ii) the consumers will not be aware of the risk; AND (iii) the product does not have adequate warnings 3) the product was not altered in any way (i.e. defect existed when it left Δ’s hands)  Presumed if product moved in normal distribution chain If π buys secondhand, then he'd have to prove non-alteration 4) the π is making a foreseeable use of the product NOT limited to intended uses, but to foreseeable uses (e.g. chair to change lightbulb) ----------- NOTE: products liability can be brought under OTHER theories of tort [intent, ordinary negl., warranties of merchantability/fitness, and representation (warranties)]    

62

What are the 2 basic strict liability fact patterns?  

1) Injuries Caused by  WILD animals Domestic: ONLY S/L if Δ knew of dangerous propensity;  Wild: S/L for wild animals kept by Δ NOTE: doesn't matter if the animal is COMMON or UNCOMMON for the community EXCEPTION: ∆ would never be strictly liable for trespasser on property (even if domestic animal has vicious propensity and the owner has knowledge) 2) Ultra-Hazardous Activities Elements: (i) creates a foreseeable risk of serious harm, EVEN when reasonable care is exercised (i.e can't be made safe); (ii) uncommon activity in area where occurring E.g. blasting/explosives; toxic chemicals; nuclear, brakes, cancer treatments NOTE: the dangerous aspect of the activity has to be the actual/proximate cause of π's injury for S/L to stick  

63

What are the 3 affirmative defenses to prima facie strict liability?  

1) Contributory negl. It is NO defense, if π failed to realize the danger It IS a defense, if π knew appreciated the danger AND his unreasonable conduct was the very cause of the harm 2) Assumption of risk: is a good defense to S/L 3) Comparative negl.: apply the same comparative negl. rules to S/L cases  

64

What are the 3 affirmative defenses to prima facie strict products liability?  

1) Contributory negl. It is NO defense, if π failed to realize the danger It IS a defense, if π knew appreciated the danger AND his unreasonable conduct was the very cause of the harm 2) Assumption of risk: is a GOOD defense to S/L 3) Comparative negl.: apply the same comparative negl. rules to S/L cases