Torts

Torts
Act Volitional Act Prima Facie Case Intent To bring about the consequences of the conduct or know w/ substantial certainty that they will occur (the consequences that are the basis of the tort injury can be unintended) Intent to bring about harmful or offensive contact Causation Result giving rise to liability must have been legally caused by the Ds act or something set in motion thereby (satisfied where conduct of D is a substantial factor in bringing about the injury) Sufficient to set in motion a force that brings about harmful or offensive contact to the Ps person (D is liable for direct and indirect contact) Apprehension must have been legally caused by the Ds act or something set in motion thereby, either directly or indirectly Ps confinement must have been legally caused by the Ds act or something set in motion thereby Ds conduct must have proximately caused the Ps emotional distress Damages

Battery

An act by D which brings about harmful or offensive contact to the Ps person An act by D creating a reasonable apprehension in P of immediate harmful or offensive contact w/ the Ps person An act or omission to act on the part of the D that confines or restrains the P to a bounded area An act by D amounting to extreme and outrageous conduct

Assault

Intent to bring about in the P apprehension of immediate harmful or offensive contact to Ps person Intent on the part of the D to confine or restrain the P to a bounded area Intent to cause P to suffer severe emotional distress, or recklessness as to the effect of Ds conduct

Not necessary to prove actual damages P can recover nominal damages

False Imprisonment

Intentional Infliction of Emotional Distress

Trespass to Land

An act of physical invasion of Ps real property

Trespass to Chattel

An act that interferes w/ Ps right of possession in the chattel (generally takes the form of either intermeddling or dispossession)

Intent to bring about a physical invasion of Ps real property (intent to trespass not required, just need intent to enter the land) (to do the act that interferes) Intent to perform the act bringing about the interference w/ Ps right of possession

The physical invasion of Ps property must have been legally caused by the Ds act or something set in motion thereby Interference must have been caused by Ds act or something set in motion thereby

Not necessary to prove actual damages; may be entitled to punitive damages if Ds conduct was motivated by malice Actual damages are required its not necessary to prove physical injuries but it is necessary to establish severe emotional distress (more than a reasonable person could be expected to endure); punitive damages are allowable where Ds conduct was improperly motivated Actual injury to the land is not required

Actual harm is required (loss of possession itself is deemed to be an actual harm)

Conversion

General observations that are always applicable (1) Hypersensitivity of a P doesnt count in deciding whether P has an intentional tort COA (2) There are no incapacity defenses (b/c everyone is capable of intent) Requisite Intent (P is obligated to show intent for every IT) D acting to produce the prohibited results Motive impels a person to act to achieve a result intent denotes the purpose to use a particular means to effect that result Can be: o (1) Specific (goal in acting is to bring about specific consequence) o (2) General (actor knows w/ substantial certainty that these consequences will result) Transferred Intent o The intent to commit a tort against one person is transferred to the other tort or to the injured person for the purposes of establishing a prima facie case o Applies when D intended to commit a tort against one person but instead:

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(1) Commits a different tort against that person (2) Commits the same tort as intended but against a different person, OR (3) Commits a different tort against a different person Both intended and resultant tort must be: assault, battery, false imprisonment, trespass to land, or trespass to chattel

Causation: Ds conduct was a substantial factor in bringing about the injury is sufficient (result must have been legally caused by Ds act of something set in motion by D) Battery Elements: o (1) Harmful or offensive contact (RP standard) (typically on offensive batteries on exam) o (2) Must be w/ the Ps person o + intent of act to bring about the battery or substantial certainty that it will result & causation o QQQ - Subs word unpermitted, remember dealing w/ people of ordinary sensibility o If normal people permit it its not offensive, otherwise it is o Exs: tap on shoulder to get attention is permitted by normal people; creepy guy stroking hair not permitted by a person of average sensibility; instructor petting hair Contact has to be w/ Ps person o Doesnt have to be by Ds body o Ps body includes anything connected to Ps body (e.g., walking dog, in car, ) o Can be indirect (e.g., setting a trap for P to fall into) Assault Elements: o (1) D places P in apprehension (an act by D creating a reasonable apprehension in P) o (2) The apprehension is of an immediate battery (of immediate harmful or offensive contact to Ps person) Apprehension: means knowledge or awareness, not necessarily fear in this context o Ex: big strong P, small D only need K or A that you may soon be touched Unloaded gun problems: when D cannot complete the attack (apparent ability to commit a battery will be enough to cause a reasonable apprehension) Mere words lack immediacy naked verbal threat to touch cant be an assault (not sufficient to create, but can negate reasonable apprehension) o Must be physical conduct to make threat immediate o Clearly displaying a weapon, fist (sufficient indications of immediacy) o Even w/ threatening conduct words still count words can sometimes negate immediacy Conditional words (fist + if you werent my BF Id beat you) Words case in future tense False Imprisonment P.F. Case: o (i) An act or omission on the part of D that confines and restrains P; o (ii) To a bounded area; o (iii) Intent; and o (iv) Causation Elements: (1) An act of restraint; (2) Confinement in a bounded area Act of Restraint: (sufficient acts: physical barriers, physical force, threats of force, failure to release, invalid use of legal authority) o Can be a threat

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Ex: if you leave in the next 30 minutes Ill kill your kid Has to be sufficient to op on reasonable mind Future threats are not sufficient (nor is moral pressure) o Can be an omission when theres some previous responsibility by the D to help the P move about Ex: in jail for 30 days when sheriff doesnt open door after 30 days its an AOR Ex: disabled person on an airplane, flight crew leaves w/o summoning wheel chair o Only counts if P knows about it or is harmed by it Ex: locking roommate in room but unlocking before they realize it isnt an AOR unless causes harm in some way Bounded area: freedom of movement must be limited in all directions o Keeping someone out of a place isnt confinement in a bounded area Ex: person barred from abortion clinic or restaurant b/c of color ~ against statutory law but not common law o A space isnt a BA if theres a reasonable means of escape that the P can reasonably discover If you can get out youre not locked in (there must be no reasonable means of escape known to P) Ex: pipe leading out of basement w/ rats ~ can get out but not a reasonable means of escape (QQQ: if person uses an unreasonable means of escape is it still FI) Ex: locked in room w/ secret stair case ~ no reasonable chance of discovering means of escape

Trespass to Land P.F. Case: o (i) Physical invasion of Ps real property (land); o (ii) Intent; and o (iii) Causation Intent: o Person got to the challenged location on purpose (D need intend only to enter particular piece of land need not know it belonged to another) o QQQ: baseball not intended to enter land o If D got to location other than by decision, no intent o Ex: fall, horse, car ~ where out of control Physical Invasion: o (1) D enters prop (entry) OR o (2) Propels a tangible object onto the land Ex: light, music, vibration, smell (aroma) ~ would be nuisance not trespass Land: (real property) o Real property includes Ps interest includes air above and soil below to a reasonable distance o Ex: ball thrown thru airspace even though it lands elsewhere Action can be brought by anyone in actual or constructive possession the land Trespass to Chattels and Conversion Both torts deal w/ interference w/ chattel (an act by D that interferes w/ Ps right of possession in a chattel) 2 Relevant Types of Interference: o (1) Deliberate damage to the chattel (intermeddling) o (2) Deliberate deprive of possession (dispossession) Trespass P.F. Case: o (i) An act by D that interferes w/ Ps right of possession in a chattel;

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o (ii) Intent; o (iii) Causation; and o (iv) Actual damages (can be to possessory right for loss of use) Small, modest, or slight harm

Conversion P.F. Case: o (i) An act by D that interferes w/ Ps rights of possession in a chattel; o (ii) The interference is so serious that it warrants requiring D to pay the chattels full value; o (iii) Intent; and o (iv) Causation Acts of conversion include: wrongful acquisition, transfer, or detention, and substantially changing, severely damaging, or misusing a chattel Interference: significant, extensive, or major (seriousness of the interference) o Only tangible personal property and intangibles that have been reduced to physical form (e.g., promissory note) are subject to conversion o The longer the holding period and more extensive the use, the more likely its conversion Anyone w/ possession or the immediate right to possession of chattel may maintain an action for conversion May recover damages (FMV at the time of conversion) or possession (replevin) o Conversion Ps have spec remedy not limited to the cost of repair can get full market value (you break you buy) Mistake re ownership is no defense ~ ex: throw someone elses laptop against the wall thinking its yours Intent: do act and cause harm; not necessary to interfere w/ prop (intent to do the act that brings about the interference) Affirmative Defenses Intentional Torts Consent Issues to consider in a consent fact pattern: o Was there valid consent? (e.g., no fraud) o Did the D stay within the boundaries of the consent? (e.g., not use a gun in a boxing match) Individuals w/o capacity are deemed incapable of consent (kids, incompetents, and drunks cant consent to tortious invasion of self or property) Cannot consent to a criminal act (majority view) Express (Actual) Consent o D isnt liable if P expressly consents to Ds conduct words in quotation marks giving Ds permission to behave in the challenged way o Exceptions: (i) Mistake will undo express consent if D knew of and took advantage of the mistake (ii) Consent induced by fraud will be invalidated if it goes to an essential matter, but not a collateral matter; and (iii) Consent obtained by duress will be invalidated unless the duress is only threats of future action or future economic deprivation o Doesnt count as a D if given b/c of duress or fraud Ex: if robber forced you to consent duress Ex: one night stand where D has an STD and doesnt tell material info not disclosed battery (QQQ: what if they werent aware of it) Implied Consent o Apparent consent is that which a RP would infer from custom and usage or Ps conduct

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Consent implied by law arises when action is necessary to save a person life or some other important interest in person or property o Can arise from custom or usage P goes to a place or engages in an activity where certain invasions are customary (e.g., on the subway) Sports: consent to all invasions that are usual or normal in the game whether or not they conform to the rules o Ds reasonable interpretation of Ps objective conduct Ex: guy in womens apt intercourse vs. kissing o Ps subjective thought processes should never be taken into account o Look only at observable behavior All consent has a scope if D exceeds the scope and does something substantially different, he may be liable (ex: knee surgery, nose job) o

The Protective Privileges Includes: (1) Self-defense; (2) Defense of property; (3) Defense of 3Ps Three Qs to ask when a Q involves one of these: o (i) Is the privilege available? (already committed torts dont qualify) o (ii) Is a mistake permissible as to whether the tort being defended against is actually being committed? o (iii)Was a proper amount of force used? To invoke D has to establish o (1) Proper timing Threat claim to be responding to is imminent or in progress Not prop if over and done w/ (no revenge) Ex: grab hand to prevent from slapping vs. slapping back o (2) Reasonable belief that interests are indeed being threatened Ex: shopkeepers privilege ~ engaged in protection of prop but got to have a reasonable belief (bulge, furtive behavior, ) ~ doesnt have to be correct All parties that have a PP must limit to necessary amount of force o Amount necessary to repel the threat (similar to scope of consent) o If human lifes being threatened then can use deadly force (so never for private prop) o What you cant do by person you cant do mechanically (deadly trap is a no-no on property) NY: obligation to retreat before using deadly force except in home or if a police officer Self-Defense When a person reasonably believes that hes being or is about to be attacked, he may use such force as is reasonably necessary to protect against injury Availability: o Dont have to attempt to escape o Modern trend imposes a duty to retreat before using deadly force if it can be done safely unless the actor is in its home o May extend to 3P injuries caused while the caused while the actor was defending itself) but actor might be liable for deliberately injuring Reasonable mistake as to the existence of danger is allowed May only use that force that reasonably appears to be necessary to prevent the harm ~ using more losses the defense Defense of Others

Torts
May use force to defend another when the actor reasonably believes that the other person could have used force to defend himself Reasonable mistake as to whether other is being attacked or has a right to defend himself is permitted Defender may use as much force as he could have used in self-defense if the injury were threatened to him

Defense of Property May use reasonable force to prevent commission of tort against real or personal property Request to desist or leave must first be made unless it clearly would be futile or dangerous Defense doesnt apply once the torts been committed May use force in hot pursuit of another who has tortuously dispossessed the owner of chattels b/c the tort is viewed as still being committed Not available against one w/ a privilege (when entering land is privileged that privilege supersedes the privilege to defend property) Mistake o Reasonable mistake is allowed as to whether an intrusion occurred or whether a request to desist is required o Mistake isnt allowed as to whether entrant has a privilege that supersedes the defense of property right, unless the entrant conducts entry so as to lead D to reasonably believe its not privileged May not use force causing death or serious bodily harm unless the invasion also entails a serious threat on bodily harm Reentry onto Land Recapture of Chattels Basic rule: when anothers possession began lawfully, one may use only peaceful means to recover chattel; force may be used to recapture only when in hot pursuit of one who has obtained possession wrongfully Requires timely demand unless clearly futile or dangerous Recapture may be only form TF or 3P that knows or should know chattel was tortuously obtained Entry on Land to Remove Chattel: o When located on wrongdoers land, owner is privileged to enter on the land and reclaim at a reasonable time and in a reasonable manner after first making a demand for return o When on land of innocent party owner may enter and reclaim at a reasonable time and in a peaceful manner when landowner has been given notice of the presence of the chattel and refuses to return it (chattel owner will be liable for any actual damage caused by entry) o If on land of another through the owners fault (e.g., negligently letting cattle wander), theres no privilege to enter and they may be recovered only through the legal process Generally no mistake re Ds right to recapture the chattel or enter the land is allowed (but shopkeepers may have a privilege to detain for reasonable time individuals they reasonably believe to be in possession of shoplifted goods) Privilege of Arrest Privilege to make an arrest of a 3P Comes w/ privilege to enter anothers land for purpose of effecting the arrest Actor may still be liable for subsequent misconduct Mistake: o If for a misdemeanor, arrest is only privileged if for a BOP and if the action takes place in front of the D; QQQQ: what re when its by a cop o For a felony, a police officer may make a reasonable mistake; and citizens may regarding the identity of the felon, but not regarding whether the felony occurred

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Necessity Only a defense w/ respect to property torts A person may interfere w/ real or personal property of another when its reasonably and apparently necessary to avoid threatened injury from a natural or other force and when the threatened injury is substantially more serious then the invasion that is undertaken to avert it (1) Public Necessity o When the act is for the public good o D invades Ps prop interest in an emergency to protect community as a whole or at least a significant~(QQQ) group of people (ex: shoot dog running after group of kids) o Total defense no liability (2) Private Necessity o When the act is solely to benefit any person or any property form destruction or serious injury o D invades Ps prop interest in an emergency to protect an interest of its own Not an absolute defense Must pay for actual harm caused D never pays nominal or punitive Ds o When emergency is still ongoing P must allow D to remain on land during emergency (right of sanctuary) Sending back into sit of danger would constitute tort (QQQ - what kind) Discipline Parents or teachers may use reasonable force in disciplining childrens
NY Other Torts Premises liability including duty of reasonable care Attractive nuisance and defenses Defamation and invasion of privacy including defenses and constitutional limitations Misrepresentations and defenses Intentional Interference w/ business relations and defenses Prima facie tort Liability under the Dram Shop Act

A. B. C. D. E. F. G.

Defamation (*heavily tested) Elements of Common Law Defamation: o (i) Defamatory language; o (ii) Of or Concerning the P; o (iii) Publication thereof by D to a 3P; and o (iv) Damage to Ps reputation Additional Constitutionally Required Elements if the defamation involves a Matter of Public Concern o (i) Falsity of the defamatory language; and o (ii) Fault on the part of the D *In a common law case, P doesnt have to prove falsity but D can offer truth as a defense To establish a P.F. case for defamation, the following elements must be proved: o (i) Defamatory language on the part of the D o (ii) The defamatory language must be of or concerning the P (i.e., must identify the P to a reasonable reader, listener, or viewer) o (iii) Publication of the defamatory language by the D to a 3P o (iv) Damages to the reputation of the P ~ in ascertaining whether the damages element of the Ps P.F. case has been satisfied, the type of defamation involved must be identified Slander injury to reputation isnt presumed; must prove special damages

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Slander per se injury to reputation is presumed w/o proof of special damages Public figure Ps must show malice (knowledge that the statement was false or reckless disregard as to its truth or falsity) o Common law qualified privilege o Once publication is established its not a defense that D didnt know the publication was defamatory ~ intent to publish, not intent to defame is requisite intent Basic Common law tort - 3 Elements: o (1) D makes a defamatory statement specifically identifying the P Statement can be written or spoken (any form of human expression) Defamatory = language tending to adversely affect ones reputation; tends to adversely effect reputation; causes other persons to think less of a P (damage to intangible asset reputation) Name-calling is insufficient ~ gives people listening no reason to think poorly of Typically need a statement of alleged fact statement of opinion is actionable only if it appears to be based on specific facts and an express allegation of those facts would be defamatory P must be alive at the time of the defamatory utterance a corporation, unincorporated association, or p-ships may defamed in a limited sense (e.g., by remarks as to its financial condition, honesty, integrity, etc.) If the statement is not facially defamatory, P may plead additional facts as inducement establish defamatory meaning by innuendo Of or Concerning P P must establish that a reasonable reader, listener, or viewer would understand that the defamatory statement referred to the P If statement doesnt facially refer to P, extrinsic evidence may be offered to establish that it does (pleading colloquium) Group Defamation: o (1) If statement refers to all members of a small group, each member may establish that the statement is of or concerning him by alleging hes a group member o (2) If its a large group no member can prove a statement is of and concerning him o (3) If it only refers to some members of a small group, P can recover if a reasonable person would view the statement as referring to P o (2) Publication Communication to someone other than the P Can be made intentionally or negligently Requisite intent is intent to publish not to defame Each repetition is a separate publication, but most states have adopted a single publication rule that treats all copies of newspapers and magazines as one publication More people disclosed to, more P can probably recover Can be negligent disclosure Primary publishers are liable to same extent as author or speaker One who repeats is liable on same general basis as the primary publisher even if it states the source of makes it clear that it doesnt believe the defamation Secondary publisher (one selling papers or playing tapes) is only liable if it knows or should have known of the defamatory content o (3) Damages, maybe [to Ps reputation] Not every defamation P has to prove damages NY: see NY damages rules for distinction ??? o

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Subdivide the world of defamation (a) Libel The written or printed publication of defamatory language P doesnt have to prove special damages General damages are presumed When defamation is in some way permanently captured Usually something written, filmed, taped, or stored on a computer No damage requirement Minority of states distinguish libel per se and libel per quod (not facially defamatory) (b) Slander Spoken defamation P must prove special damages, unless defamation falls w/in slander per se categories Spoken defamation not permanently captured Further subdivide (i) Slander Per Se o Some types of slander are considered worse than others o Dont need to show damages o 4 categories of topics make it per se: defamatory statements that: (1) Adversely reflect on ones conduct in a business or profession; (2) One has a loathsome disease; (two types: leprosy and venereal disease) (3) One is guilty of a crime involving moral turpitude; or (4) A women is unchaste NY: imputing homosexuality to someone (ii) Other types of slander o Have to prove actual damages o Proof of econ injury/loss (fired from job, didnt get K about to close, revs down) o Proof of social or emotional harm is not adequate (c) Libel vs. Slander Look at the permanency, the area of dissemination, and the deliberate character of the publication Where the original defamation is libel, any repetition is also libel Written reputation of slander will be characterized as libel Radio and television programs are treated as libel if sufficiently permanent, premeditated, and broadly enough disseminated Modern trend treats ad libbed defamation on radio or TV as libel Defenses - Defamation (1) Consent (see above) ~ complete defense (2) Truth ~ complete defense when statement is re a purely private matter (3) Privilege o (a) Absolute (2) ~ turns on status or ID of D (i) Spouses absolute privilege to talk to spouse so can say defamatory shit re someone else to your spouse (ii) Afforded to the 3 branches of government when in conduct of official duties most imp in judicial branch: judges, prosecutors o (b) Qualified Privilege (can lose through abuse)

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May be available for: reports of official proceeding; statements in the interest of the publisher defense of ones actions, property, or reputation; statements in the interest of the recipient; and statements in the common interest of the publisher and recipient Socially valuable occasion of speech Sits in which we want to encourage candor No liability for defamation when: (1) If you limit self to relevant facts AND (2) Speak in good faith (reasonable belief of correctness) QP may be lost if: (i) Statement is not w/in the scope of the privilege, OR (ii) Its shown that the speaker acted w/ malice D bears BOP of showing that privilege exists

1A Issues: o When it involves a matter of public concern, P must prove to elements in addition to the common law elements o NYT v. Sullivan: where matter in Q is a matter of public concern Something general public would be interested in or QQQ o (1) Falsity of the Statement In Ps CIC must show infos not true If statements of public interest are true there is no COA for defamation ~ on an exam: consider whether P may have a COA for IIED or invasion of privacy o (2) Fault of the part of the D The type of fault P must prove depends on the Ps status A) Public Official of Figure Must Prove Malice (NYT v. Sullivan rule) A person becomes a public figure by achieving pervasive fame or notoriety or by voluntarily assuming a central rule in a particular public controversy Malice Defined: o (i) Knowledge that the statement was false, OR o (ii) Reckless disregard as to whether it was false Malice is a subjective test Ds spite or ill will isnt enough to constitute malice Deliberately altering a quote may constitute malice if the alteration causes a material change in the meaning conveyed Relates to Ds knowledge of the falsity If P is a public figure must show statement made w/ knowledge that its false or reckless disregard for its truth B) Private Persons Need Not Prove Malice (Gertz v. Welch) Only negligence regarding the falsity must be proved if the statement involves a matter of public concern Where D is negligent, only actual injury damages are recoverable Where malice is found damages may be presumed and punitive damages are allowed If private figure (in public concern case) mere negligence will suffice Ex: secretary of official reported as shredding docs secs priv citizen but its a pub concern and would have to show negligence w/ respect to shredding Privacy Torts Appropriation - use of Ps name or pic for commercial purposes (right of publicity) This is the ONLY privacy tort in NY!!! NY: Newswortyness exception is interpreted broadly

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Must show unauthorized use of Ps picture or name for Ds commercial advantage Liability is generally limited to advertisements or promotions of products and services Mere economic benefit to D not in connection w/ promoting a product or service isnt sufficient Newsworthiness Exception o Ex: pic of T. Woods on cover helps sell magazines but its newsworthy

Intrusion <3 - invasion of Ps seclusion in a way objectionable to an average person Personal freedom to be left alone D may accomplish after committing trespass but its not required P has to be in a private place at time of conduct being complained of Act of prying or intruding must be objectionable to a RP Thing into which there was an intrusion must be private Photos taken in public places arent actionable False Light - widespread dissemination of a major misrepresentation re the P objectionable to the average person Exists where one attributes to P views he doesnt hold or actions he didnt take Must be something objectionable to a reasonable person under the circumstances 1A Limitation: if the matter is in the public interest must prove malice of Ds part Wide Spread: contrast to publication element of defamation ~ got to tell a lot of people Misrepresentation: o Can be but doesnt have to be defamatory o Ex: political or religious affiliations; saying a Jew is a Catholic ~ mischaracterization of belief system that would be objectionable to average person (QQQQ dont get the dif) Disclosure - widespread dissemination of confidential info re P that would be objectionable to the RP Substance of claim will be true (ex: academic info; financial info; medical records) Matters of public record arent sufficient Disclosure must be objectionable to a reasonable person of ordinary sensibilities Newsworthiness Exception o Acceptable to pub re people in public eye (1A issue) o Newspaper can publish VPs medical records Dual Life Fact Patterns o Where P is operation in two separate spheres of activity that are both public bringing info from one to the other isnt prohibited o Ex: gay person in pub but not out at work, co-worker sees at parade and tells others at work hes gay o Ex: seen having an affair in different town, people from town also there that see can report Defenses Right of Privacy Actions o (1) Consent o (2) Defamation Privileges o Truth generally isnt a good defense; nor is inadvertence, good faith, or lack of malice Invasion of Ps privacy interest must have been proximately caused by Ds conduct P need not prove special damages ED and mental anguish are sufficient damages Economic Torts (not big on exam) Intentional Misrepresentation ~ (Fraud, Deceit)

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P.F. Case: o (i) misrepresentation (of material fact); No duty to disclose (silence generally not enough need affirmative misrepresentation) Opinion not actionable unless rendered by someone w/ superior skill in the area o (ii) scienter (D knew or believed statement was false when made or that it had no basis); o (iii) intent (to induce P to act or refrain from acting in reliance upon the misrepresentation); o (iv) causation (actual reliance); o (v) justifiable reliance (generally, reliance is justifiable only as to a statement of fact not opinion); and o (vi) actual pecuniary damages There are no defenses to intentional misrepresentation Essentially tell affirmative lie to trick someone in a business transaction

Negligent Misrepresentation P.F. Case: o (i) Misrepresentation by D in a professional or business capacity; o (ii) Breach of duty toward a particular P; o (iii) Causation; o (iv) Justifiable reliance; and o (v) Damages Generally action is confined to misrepresentations made in commercial settings and liability will only attach if reliance by the particular P could be contemplated Fail to investigate facts and make erroneous statement Interference w/ Business Relations (Inducing a BOK) P.F. Case: o (i) Existence of a valid contractual relationship between P and 3P or valid business expectancy of P; o (ii) Ds knowledge of the relationship or expectancy; o (iii) Intentional interference by D inducing a breach or termination of the relationship or expectancy; and o (iv) Damages (to P) Conduct may be privileged if its a proper attempt to obtain business for itself or protect its interests, particularly if only interfering w/ Ps prospective business rather than w/ existing contracts o The ends and the means used to interfere must both be proper o Privilege doesnt extend to intentional misrepresentations Ex: intentional misrepresentation w/ intent to induce empe to leave empt where empes departure results in actual damage for empr Can induce a breach of contract OR the termination of a contractual relationship that interferes w/ a business expectancy Intentional Infliction of Pecuniary Harm (Prima Face Tort) Elements: o (i) Intent to do economic harm (deliberately economically harming someone that doesnt fit into other categories e.g., dumping products) o (ii) Resulting harm Theft of Trade Secret Elements: o (i) Valid Trade Secret

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(a) P has info providing business advantage (b) Info is not generally known (c) Owner must take reasonable measures to preserve secrecy (e.g., need to know basis, stamping secret on doc, keep in vault) o (ii) Improper Means of Acquiring Secret Scenarios: Traitorous insider ~ obtains lawfully but uses for own advantage Industry spy Common Remedy ~ injunction to enjoin commercial use

Judicial Torts Wrongful Institution of Legal Proceedings Malicious Prosecution P.F. Case: o (i) Institution of criminal proceedings against P; o (ii) Termination in Ps favor; o (iii) Absence of probable cause for prior proceedings (insufficient facts for a reasonable person to believe that P was guilty); o (iv) Improper purpose (i.e., something other than bringing a person to justice); and o (v) Damages Prosecutors are immune from liability Criminal or civ comp w/ not probable cause, other Ps vindicated but at great expense Abuse of Process P.F. Case: o (i) Wrongful use of prosecution for an ulterior purpose, and o (ii) Definite act or threat against P in order to accomplish an ulterior NY Negligence Prima facie case including duty, breach, causation and damages Duty including failure to act, unforeseeable Ps and obligations to control the conduct of 3Ps Standard of care including the RPP and statutory rules Problems relating to proof of fault including res ipsa loquitur Problems relating to causation including substantial factor, remote and superseding causation, multiple causation and apportionment of responsibility among multiple tortfeasors including joint and several liability Limitations on liability and special rules of liability including claims against owners and occupiers of land, workers compensation claims, claims for mental distress, pure economic loss and wrongful death Liability for acts of others including employees and other agents, respondeat superior, independent contractors and non-delegable duties Defense including comparative negligence and assumption of risk

NEGLIGENCE Four elements (use this outline in essays) o (1) Duty o (2) Breach of that duty by D o (3) Causation - breach is the actual and proximate cause of Ps injury o (4) Damage to Ps person or property Duty (to who? and how much?

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General DOC is imposed on all human activity when a person engages in an activity hes under a legal duty to act as an ordinary, prudent, reasonable person its presumed that OPRPs will take precautions against creating unreasonable risks of injury to other persons if Ds conduct creates an unreasonable risk of injury to persons in the position of the P the general duty of care extends from the D to the P no duty is imposed on a person to take precautions against events that cannot reasonably be foreseen if at the time of the negligent conduct no foreseeable risk of injury to a person in the position of the P is created by Ds act the general DOC doesnt extend from D to P To Whom a Duty is Owed o DOC is owed to all foreseeable Ps ~ the extent of the duty is determined by the applicable SOC Duty: obligation to take precautions as we engage in various life activities o No duty to unforeseeable victims (they always lose) Problem: when D breaches a duty to P1 also causing injury to P2 (to whom a foreseeable risk of injury might or might not have been created at the time of the original negligent act) P2 can recover only if she can establish that a RP would have foreseen risk of injury to her in the circumstances, i.e., that she was located in a foreseeable zone of danger Ex: 2 men running for train Helen Palsgraff is the worlds only unforeseeable victim (who could be hurt from what rail worker did guy, other passengers, self) HPs too far away = no duty Specific Exceptions: o Rescuers A rescuer is always owed a duty and is always going to be able to recover (danger invites rescue) ~ a rescuer is a foreseeable P where D negligently put himself or a 3P in peril (as long as the rescue isnt wanton) o Prenatal Injuries DOC is owed to a viable fetus fetus must have been viable at the time of injury Wrongful Life Action failure to diagnose a congenital defect or properly perform contraceptive procedures - doesnt permit unwanted child to recover for wrongful life (even if its born handicapped) Wrongful Birth and Pregnancy parents may have a COA for wrongful birth (for failure to diagnose) or wrongful pregnancy (failure to properly perform procedure) Mother can recover damages for unwanted labor (medical expenses and for pain and suffering); ordinary child rearing expenses cannot be recovered Can also recover additional medical expenses to care for the child (+ ED in some sts) o NY: Pre-natal Injuries or Fetal Injuries ~ 3 common scenarios when an injury causes damage to a pregnant woman or her unborn child (a) Pregnant Woman o (i) When Ds negligence causes bodily impact on body of a pregnant woman and that woman gives birth to a live baby w/ injuries, the child has a valid tort COA o (ii) If child isnt born, no recovery is allowed on infants part, but mother can recover for herself (b) Med Mal if doctor fails to diagnose high likelihood of birth defects and the child is born impaired, parents can recover costs of caring for child (but no ED) (c) Wrongful Pregnancy no recovery for botched sterilization procedure if couple has another child (economic harm is outweighed by joy of having another child) o Intended Beneficiaries of Economic Transactions

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A 3P for whose economic benefit a legal or business transaction was made may be a foreseeable P (owed DOC if D could reasonably foresee harm to that party if the transaction is done negligently)

General Standard of Care Owe care of hypo RPP acting under similar circumstances - compare D to the RPP o Make no allowances for Ds shortcomings o Objective test, same from person to person, harsh inflexible test o Have to maintain the standard even if not attainable by the person Exceptions: o (1) If D has superior knowledge, standard is RPP with that knowledge Could be a stupid person w/ isolated nugget of factual knowledge (e.g., retard that knows the traffic light malfunctions) o (2) Ds physical characteristics if D has a relevant physical characteristic is built into the analysis (e.g., RPP whos blind, in wheel chair, etc.) Special Standards of Care: (1) Kids o < 4 ~ Cant be held liable for negligence o > 4 ~ SOC: required to conform to the SOC of a child of same age, intelligence, and experience Subjective standard (flexible/lenient) Means its difficult to win vs. kids o Exception: when engaged in an adult activity revert back to RPP is similar circumstances standard Ex: operating a vehicle w/ a motor (2) Professionals o Those who provide services to the public and have special training o A professional or someone w/ special occupational skills is required to possess the knowledge and skill of a member of the profession or occupation in good standing in similar communities o SOC: care of an average member of that profession practicing in a similar community Compares D w/ real world not hypo person; empirical/factually grounded Investigate how other professionals actually act The custom of the profession sets the SOC (obligation is to due whats customary) In non-prof cases custom is evidence but not conclusive o Slight majority of JSs determines SOC as illustrated in community o For exam: in med mal essay dont use the word reasonable docs supposed to conform to custom o Duty to Disclose Risks of Treatment doctor has duty to disclose risks of treatment to enable a patient to make a informed consent (breached if potential risk is serious enough that a reasonable person in Ps position would have w/held consent NY: Specific Informed Consent Standard o doctor has an additional duty to explain risks of medical procedures to patient, so patients can decide whether to go forward o Failure to explain risks of medical procedure is negligent unless: (i) Risks involved are commonly known (ii) Patient declines the information (iii) Patient is incompetent (iv) Disclosure would be harmful (3) Common Carriers and Innkeepers o Held to a very high degree of care (liable for slight negligence) o For higher standards to apply P must be a passenger or guest

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(4) Auto Driver to Guest o Owed duty of ordinary care o In Guest Statute States: only liable to nonpaying passengers for reckless tortious conduct o NY: has no guest statute, but watch for it in a conflict of laws problem (5) Bailment Duties o Duties Owed by Bailor Gratuitous Bailment: the bailor must inform of known, dangerous defects in the chattel Bailment for Hire: bailor must inform of chattel defects of which he is or should be aware o Duties Owed by Bailee SOC depends on who benefits from the bailment (i) Sole Benefit of the Bailor Bailment: low standard of care (ii) Sole Benefit of the Bailee: high SOC (iii) Mutual Bailment: ordinary SOC Land Occupiers 8 different scenarios & duty standards Care LO must give to peeps who come onto the land (entrant) NY: SOC is RPP in all cases, and there is no categorical analysis o Default Rule: O must always act as RPP under the circumstances Under the circumstances takes account of how P got injured (invitee, trespasser) No duty to general passer-by to keep buildings doors in good repair (P was trying to evade criminal act) No duty owed by subcontractor to motorist for not putting up a guard rail on highway Liability determined by reasonableness of the LOs conduct in light of the foreseeable consequences Have duty to take reasonable precautions to safeguard against injuries to a tenants guests, but not members of the public at large unless their presence was foreseeable Must A two Qs to get proper D standard ~ extent of owner occupant liability depends on where the injury occurred and on the status of the P No duty to protect one off the premises from natural conditions on the premises There is a duty for unreasonably dangerous artificial conditions or structures abutting adjacent land Must carry on activities on land so as to avoid unreasonable risk of harm to others outside the property In urban areas O/O is liable for damage caused of premises by trees on the premises (1) How did the entrant get hurt (what caused the accident) ~ 2 Possibilities: o (a) By activities o (b) By conditions (2) What legal status does the entrant have w/ respect to the property? ~ 4 Possibilities: o (a) Undiscovered Trespasser ~ No Duty Comes on land w/o permission and presence is unknown No DOC owed w/ respect to activities or conditions Will always lose b/c no duty is owed o (b) Discovered or Anticipated Trespasser People w/o permission to be on land but occupant knows theyre there Includes anticipated trespassers (ones that can reasonably be expected to come onto land w/ some regularity) Entrant on land can change status midway thru Q if occupier discovers them status that controls is one at time of accident For activities: RPP under similar circs must use reasonable care in the exercise of active operations on the property For conditions: owe a duty only when meet 4 part test:

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(i) Only a duty if condition is artificial in nature (created or built by humans); no duty to protect from natural conditions (ii) Condition must be highly dangerous (can cause death or serious bodily injury mame) (iii) Condition must be concealed from trespassers (hidden, secret condition so impossible for trespassers to protect self) (iv) Condition must be one prosecutor knew re in advance Ors must protect discovered Trs from known man made death traps on the land Must warn of or make safe concealed, unsafe, artificial conditions known to the LO involving risk of death or serious bodily harm Easement and license holders owner a duty of reasonable care to trespassers o (c) Licensees ~ essentially social guests Enters the land w/ possessors permission for her own purpose or business rather than for the possessors benefit For activities: RPP in similar circumstances - must use reasonable care in the exercise of active operations on the property For conditions: must protect when condition meets two part test: (1) Hidden from licensees (2) Occupier knew re in advance Ors must protect Ls from all known traps on the land Possessor has a duty to warn of dangerous conditions (natural or artificial) known to the owner that create an unreasonable risk of harm to the licensee and the licensee is unlikely to discover No duty to inspect or repair o (d) Invitee Enter land in response to an invitation by the LO (i.e., they enter for purpose connected w/ business of LO or enter as members of the public for a purpose for which the land is held open to the public Person who enters land open to the general public Doesnt make a difference if credentials are required for entry For activities: RPP in similar circumstances For conditions: owe protection from conditions that: (1) Are concealed/hidden and (2) Is one that the occupier D knew about in advance or could have discovered thru reasonable inspection Has a duty to make reasonable inspections to discover nonobvious dangerous conditions and thereafter make them safe Status as invitee is lost if scope of invitation is exceeded o (e) Users of Recreational Land When use of land is permitted to general public w/o fee, not liable for injuries suffered by recreational users unless LO willfully and maliciously failed to guard against or warn of a dangerous condition or activity NY: Recreational Use Statute limits LOs duty when land is open for public use w/o fee no duty to warn or keep land in safe condition for gratuitous users of the land but liable for injuries caused by willful or malicious acts or omissions Attractive Nuisance Doctrine: o Most courts impose duty to exercise ordinary care to avoid a reasonably foreseeable risk of harm to children caused by artificial conditions on the property o P must show: (i) A dangerous condition on the land that the O is aware of

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(ii) The O knows or should know children frequent the vicinity of the condition (iii) The condition is likely to cause injury, i.e., dangerous b/c of childs inability to appreciate the risk; and (iv) The expense of remedying the situation is slight compared w/ the magnitude of the risk Dont have to be attracted onto the land by the dangerous condition Attraction alone is not enough for liability NY: doesnt recognize attractive nuisance theory allows recovery if condition on realty created a foreseeable risk of harm to trespassing children

o o o

3 FNs o (1) firefighters and police officers never allowed to recover for injuries that are an inherent risk of their job o (2) child trespassers entitled to elevated SOCs w/ respect to artificial conditions on land (RPP) o (3) 2 ways to satisfy duty: (a) fix/eliminate the problem (b) give warning (test note: Q As that refer to warnings are usually good As) Duties of Lessor and Lessee of Realty o Lessee: general duty to maintain premises o Lessor: must warn of existing defects of which he is aware or has reason to know, and which he knows the lessee is not likely to discover on a reasonable inspection o If lessor convents to repair ~ liable for unreasonably dangerous conditions o If lessor voluntary to repair ~ liable if does so negligently o On Test: where guest of tenant is injured look for LL liability as lessor of premises AND tenant liability as O/O of the premises Duties of Vendor of Realty o Must disclose to vendee concealed, unreasonably dangerous conditions of which the vendor knows or has reason to know AND which he knows the vendee is not likely to discover on a reasonable inspection Affirmative Duties to Act ~ none o When you undertake an activity do it carefully but in the 1st instance you dont have to do anything o No duty to rescue people in peril o Exceptions: (1) Assumption of Duty by Acting Once D undertakes to aid someone he must do so w/ reasonable care (2) Peril Due to Ds Conduct - If D put P in the position of peril in the 1st instance there is a duty to rescue (3) Special Relationships Between Parties - if theres a pre-existing relationship between the parties Family relationship; common carrier/innkeeper customer; land occupier invitee Duty to rescue reasonably under the circumstances exists Never have to put own life in jeopardy (4) Duty to Control 3Ps An affirmative duty may be imposed if one has actual ability and authority to control a persons action, and knows or should know the person is likely to commit acts that would require exercise this control o If theres no duty to rescue but D does so anyway and makes a mistake itll be liable for the mistake (if you rescue you got to rescue carefully) o Many states have statutory good Samaritan laws immunizing o NY: Statute shielding good Samaritans applies only to doctors and nurses

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Statutory Standards of Care A statutes specific duty may replace the more general common law duty of due care if: o (i) The statute provides for a criminal penalty; o (ii) The statute clearly defines the standard of conduct; o (iii) P is w/in the protected class; and (COPCOR test) o (iv) The statute was designed to prevent the type of harm suffered by P Exceptions: (COPCOR is met but still dont get to use the statute) o (1) Compliance w/ the statute would be > dangerous than violation o (2) If compliance is impossible Majority View: an unexcused statutory violation is negligence per se and established the first two requirements in a P.F.C. ~ a conclusive presumption of duty and breach of duty Compliance wont necessarily establish due care though can be used as evidence of as much Breach of Duty Essay wording: Here the D was unreasonable in that he Reasonable people usually Where Ds conduct has falls short of that level required by the applicable SOC owed to the P, he has breached his duty - Q for the trier of fact (Duty: legal; breach: factual) Main problem relates to proof of the breach ~ Theories P Can Use: 1. Custom or Usage may be used to establish SOC but doesnt control the Q of whether certain conduct amounted to negligence (ex: where behavior is customary w/in industry entire industry could be found to be acting negligently) 2. Negligence Per Se (see above) 3. Res Ipsa Loquiter (2 substitute showings) o Occurrence of an event itself may tend to establish a breach of duty o (1) P most show that the accident which occurred is of a type which doesnt normally occur is the absence of negligence Accident of type normally associated with some antecedent carelessness or negligence o (2) That the D being sued is probably the party that committed the rel negligence Exclusive/probable control of injury causing instrumentalities P must also establish freedom from fault on his part Effect: Substitutes as a showing of breach (means you get to jury and jury does what thinks appropriate) o ON TEST: Motions for Directed Verdict: D: deny if P has established RIL or presented some other evidence of BOD (such as Ds violation of a statute) D: grant if P has failed to establish RIL and failed to present some other evidence of BOD P: always deny except in the rare case where P has established NPS through violation of an applicable statute and there are no issues of proximate cause o NY: in med mal complaint usually have to have a certificate of merit (that atty consulted w/ a doc or dentist or attempted to do so by contacting 3 who refused) But if P is relying on RIL this is excused and need only to advise adversary of this fact (under CPLR) Causation Once negligent conduct is shown (breach of SOC owed to a foreseeable P), P must show that the conduct was the cause of his injury for liability to attach must show both actual and proximate cause Factual / Actual Causation Tests: but for test, substantial factor test (for joint causes), and the alternative causes approach Demonstration of real world linkage between breach and ultimate outcome

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Torts
To establish linkage use but for the breach test o Act or omission is the CIF of an injury when the injury wouldnt have occurred but for the act ~ applies where several acts each insufficient to cause the injury alone combine to cause the injury o Ex: overboard guy would of drowned even if ship had life preservers Multiple D Cases: o (1) Mingled Causation Substantial Factor Test D is a cause if it contributed to the injury in a substantial way Where several causes bring about an injury, and any one alone would have been sufficient to cause the injury, Ds conduct is the CIF if it was a substantial factor in causing the injury Ex: two fire starters and house that burnt down o (2) Unascertainable Cause could have been either of multiple Ds Alternative Causes Approach ~ test applies where two acts, only one of which causes injury, but it is not known which one BOP shifts to Ds and each must show his negligence isnt the actual cause P has BOP typically but when have 2 Ds engaged in simultaneous negligence shift the BOP Hold jointly liable if cant take themselves out of the case Legal Causation Think of as the fairness element ~ foreseeability of consequence is our measure of fairness Doctrine of PC is a limitation of liability and deals w/ liability or nonliability for unforeseeable or unusual consequences of ones acts General Rule Scope of Foreseeable Risk o D is generally liable for all harmful results that are the normal incidents of and w/in the increased risk caused by his acts (this is a foreseeability test) o Exam Tip: Qs raising PC issues wont require making a judgment call in a close case if answer turns on PC the correct choice will almost always be phrased in if or unless terms otherwise the facts in the Q will be so clear-cut that common sense will tell you immediately whether the harm that occurred was foreseeable Liability in Direct Cause Fact Patterns o There is an uninterrupted chain of events from the negligent act to Ps injury ~ D is liable for all foreseeable harmful results, regardless of unusual manner or timing o D acts and P suffers immediately - consequence is almost always foreseeable o Deny liability only in a case where upon reading the fact pattern you LOL Liability in Indirect Causation Fact Patterns o An affirmative intervening force (e.g., an act by a 3P, and act of God) comes into motion after Ds negligent act and combines w/it to cause Ps injury o Foreseeable results caused by foreseeable intervening forces Ds liable where his negligence caused a foreseeable harmful response or reaction from a dependent intervening force or created a foreseeable risk that an independent intervening force would harm P o D acts, something else happens in the middle, P suffers harm 4 Specific Categories that are well settled (D is held liable) o (1) Intervening Medical Negligence (ex: driver hits someone forcing them into the medical system where it is foreseeable that the doctor will make worse and so is legal cause) o (2) Intervening Negligent Rescuer o (3) Intervening Reaction and Protection Forces (ex: harm resultant from stampede in reaction to) o (4) Subsequent Disease or Accident Other situations require a case by case analysis most of the time can get right answer by looking at the breach and what it is about the behavior that cause to label D as negligent in the first place if the final outcome is what you were afraid of from the conduct then theres probably legal cause

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Damages - Negligence Generally: o Essential element so not assumed o No nominal damages The Eggshell Doctrine o If D has satisfied all elements of the tort it must pay for all damages even if theyre surprisingly great in scope (take P as you find it) o Applies to all of the torts o Ex: cut someone who has hemophilia, liable for battery, also liable if they die from the cut cause of their hemophilia The Duty to Mitigate Damages o P has a duty to take reasonable steps to mitigate damages Property Cases: to preserve and safeguard property Personal Injury Cases: to seek appropriate treatment to effect a cure or healing and to prevent aggravation o Failure to mitigate precludes recovery of any additional damages caused by aggravation of the injury Personal Injury - compensate P for all damages, both special and general; foreseeability of extent of harm is generally irrelevant (eggshell doctrine) Property Damage - measured by reasonable cost of repair, or if nearly destroyed, FMV at the time of the accident Punitive Damages - recoverable if Ds conduct is wanton and willful, reckless, or malicious No Recovery for - interest form the date of damage in a personal injury action, and attorneys fees Duty to Mitigate - P always has a duty to take reasonable steps to mitigate damages (e.g., seek appropriate treatment) Collateral Source Rule - damages arent reduced b/c P received benefits from other sources (e.g., health insurance) o NY: The Collateral Source Rule has been abolished ~ Ps damages will be reduced by money recovered from insurance (CPLR) Equitable Remedies o A. Ordinary Injunction (future conduct) elements: (i) Torts elements (duh) PLUS (ii) Inadequate remedy at law (money not enough) ~ e.g., D insolvent, harm impossible to measure in monetary terms, conduct is ongoing or repetitive (iii) Protectable interest in subject matter doesnt have to be a property interest (e.g., could be reputation) (reduces element to a formality) (iv) Injunction is enforceable Problems arise in affirmative (non-negative) injunctions unlikely to issue if o More complex the conduct (e.g. sing at opera) o Long time for act to be performed o Conduct to be outside of NY Balance of hardships favor P o B. Preliminary Injunction elements: (i) P shows likelihood of success on the merits (ii) P will suffer irreparable harm or injury o C. Equitable Defenses to Injunction (a) Unclean hands (b) Laches ~ prejudicial delay that D changed position due to Ps tardiness (c) 1A ~ usually involving defamation and privacy ~ in injunction would be a prior restraint

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Affirmative Defenses Negligence 1. Contributory Negligence o Negligence on the part of the P that contributes to its injuries o Standard of Care generally same as is required for ordinary negligence Rescuers: not contributory negligent unless attempt to rescues persons or property from danger is completely reckless under the circumstances It may be C.N. to fail to remove oneself from danger (remaining in car w/ drunk driver) May be established by violation of a statute (i.e., negligence per se rules) C.N. is ordinarily a defense to negligence proved by Ds violations of an applicable statute, but when Ds negligence arose from violation of a statute designed to protect this particular class of Ps from there own incapacity and lack of judgment the Ps C.N. is not a defense Not a defense to wanton and willful misconduct or intentional tortious conduct o Failure to mitigate damages is an avoidable consequence, not C.N. o C.N. is never a defense to intentional torts or for willful or wanton misconduct o At common law: C.N. completely barred Ps right to recover (even where Ds negligence was > Ps negligence) This initially caused courts to develop escape doctrines (such as the last clear chance) More recently courts have moved toward comparative negligence o Exceptions: o Last Clear Chance (sometimes called the humanitarian doctrine) permits P to recover despite his own C.N. ~ the person w/ the last clear chance to avoid an accident who fails to do so is liable for negligence Helpless Peril where P puts himself in a position of actual peril from which he cannot extricate himself ~ in many states D is liable under these circumstances if it had either actual knowledge of Ps predicament or should have known of it (some states require actual knowledge) Inattentive Peril where P is a position of actual peril from which he could extricate himself if he were attentive ~ most courts require actual knowledge of Ps predicament on Ds part Prior Negligence Cases D must have been able to avoid harming P at the time of the accident ~ if Ds only negligence had occurred earlier then the time of the accident courts will not apply the LCC doctrine (ex: negligently failing to have steering wheel fixed) NY: last clear chance doctrine is no longer applicable in NY (apportion fault on pure comparative negligence theory) o Imputed Contributory Negligence Ex: negligent driver is in an accident with a negligent cyclist; injured passenger brings action against negligent cyclist; cyclist argues liability should be denied b/c of drivers negligence to the same extent as if passenger itself had been negligent Ps action for damages generally isn't barred by imputed C.N. ~ may proceed against both negligent parties as JTFs to the extent that each is a legal cause of the harm C.N. will be imputed only where the P and the negligent person stand in such a relationship to each other that the courts find it proper to charge P w/ that persons negligence (i.e., where P would have been found VL for the negligent persons conduct if a 3P had brought the action) Common Fact Situations (a) Master and Servant the C.N. of the servant (agent, empe) acting w/in the scope of empt will be imputed to the master when the later is a P suing a 3P (b) Partners and Joint Venturers the C.N. of one Pr or JVr will be imputed to the other when the other is a P suing a 3P

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(c) Husband and Wife the C.N. of one spouse will not be imputed to the other when the other is a P suing a 3P (d) Parent and Child the C.N. of the parent isn't imputed to the child, nor is the C.N. of the child imputed to the parent in actions against 3Ps *BUT when an actions is derivative it cant succeed unless the main action succeeds and the C.N. of the (spouse/child) will bar recovery (by the other spouse/parent) o Spouses action for loss of other spouses services o Parents action for loss of a childs services or recovery of his medical expenses (e) Auto Owner and Driver unless the owner would be V.L. for the drivers negligence the C.N. of the driver will not be imputed to her (note where owner is the passenger it may be liable for its own negligence in not preventing the accident)

2. Assumption of Risk o Recovery may be denied if P assumed the risk of any damage caused by Ds act, if P (i) Knew of the risk, and (ii) Voluntarily proceeded in the face of the risk (reasonableness of Ps choice is irrelevant) Can be express or implied o Implied AOR: Knowledge may be implied where the risk is: One the average person would clearly appreciate P must voluntarily go ahead in the face of risk ~ but where there is no available alternative to proceeding in the face of risk P may not be said to have AOR No AOR where theres no available alternative to proceeding in the face of the risk or in situations involving fraud, force, or an emergency Common carriers or public utilities cant limit liability by disclaimer Class protected by statute wont be deemed to have AOR o Risks That May Not Be Assumed: (b/c of public policy considerations) (i) Common carriers and public utilities arent permitted to limit their liability for personal injury by a disclaimer (ii) Where are statute is enacted to protect a class, members of that class will not be deemed to have AOR (ex: safety regulations imposed on empr ~ empe is held not to have AOR where statute is violated) Risks wont be assumed in situations involving fraud, force, or an emergency (can take action to save person or property w/o AOR unless actions in so doing involve an unreasonable risk out of proportion to the value of those rights) o Express AOR risk may be assumed by express agreement exculpatory clauses in a contract intended to insulate one of the parties from liability resulting from its own negligence are closely scrutinized but generally enforceable (> difficult to uphold when in an adhesion K) o AOR isn't a defense to intentional torts but is a defense to wanton or reckless conduct 3. Comparative Negligence/Fault o NY: uses pure comparative fault as a default rule ~ so use unless otherwise noted in the Q o Replaces contributory negligence and assumption of risk in most JSs ~ permits a contributory negligent P to recover a percentage of his damages o Trier of fact weighs Ps negligence against Ds and reduces Ps damages accordingly o To argue D must offer evidence that Ps guilty of fault (i.e., he didnt exercise appropriate care for his own safety) - usually RPP standards but could be statutory

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Torts
o o o Jury will then be instructed to assign %s comparing fault of the two litigants which are used to adjust recovery (i.e., reduces Ps recovery) ~ ex: 100K verdict for P; 20% fault assigned to P; P recovers 80K Two Versions: (1) Pure Comparative Fault/Negligence Allows recovery no matter how great Ps negligence was Default rule on the MBE If Ps 90% at fault it may still recover 10% from the D who is 10% at fault (2) Modified or Partial Comparative Fault/Negligence P may only recover if its negligence was less or no more serious than Ds or it passes some other threshold level P fault < 50% reduces recovery P fault > 50% is an absolute bar Where multiple Ds have contributed to a Ps injury, most states use a combined comparison approach to determine the threshold level (compare Ps negligence w/ the sum of all the Ds negligence) Effect on Other Doctrines Last clear chance is not used in most comparative negligence jurisdictions Most comparative negligence jurisdictions have abolished the defense of implied assumption of risk break down traditional AOR situations into two categories (i) Where D has only a limited duty to the P b/c of Ps knowledge of the risks, a court may protect the D by holding it didnt breach its limited duty of care (ex: bball game and being hit by a foul ball) (ii) Variant of Contributory Negligence Situation (> common) ~ Ds initial breach of duty to P is superseded by Ps AOR (ex: builder negligently doesnt barricade torn up sidewalk but P uses it anyway despite reasonable alternatives) if P has behaved unreasonably, P is C.N. and damages will be apportioned under the states comparative negligence statute Most jurisdictions retain the defense of express AOR In most jurisdictions Ps negligence will be taken into account even though Ds conduct was wanton and willful or reckless (but Ps conduct still isn't a defense to intentional tortious conduct by the D)

STRICT LIABILITY Elements: o (i) Existence of an absolute duty on the part of the D to make safe o (ii) Breach of that duty o (iii) The breach of the duty was to actual and proximate cause of the Ps injury, AND o (iv) Damage to the Ps person or property SL means safety precautions are irrelevant Duty: absolute duty to make safe the normally dangerous characteristic of the animal or activity; owed to all foreseeable Ps Contributory negligence isnt a defense if P failed to realize danger or guard against it but does if P knew of the danger and its unreasonable conduct was the cause of the UHA miscarrying Most states apply comparative negligence rules to SL cases Injury Caused by Animals Domestic Animals o GR: no SL for injuries caused by domestic animals

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Exception: you are strictly liable if you have knowledge that the animal has vicious propensities [that are not common to the species] o Knowledge of VPs exists if the animal has previously bitten someone o Every dog gets one free bite (on 1st bite victim has to prove negligence) Trespassing o Cattle = SL o An owner is SL for reasonably foreseeable damage done by a trespass of his animals Wild Animals o SL in all circumstances o is SL to licensees and invitees for injuries caused by wild animals as longs as the injured party did nothing to bring about the injury o Absent negligence SL generally wont be imposed in favor of trespassers o

Ultra-Hazardous Activities A party engaged in an UHA is SL to anyone who gets hurt UHA elements: o (i) Activity cant be performed w/o risk of serious harm no matter how much care is taken o (ii) Activity involves risk of serious harm to persons or property o (iii) Uncommon in area in which its being conducted Exs: anything involving explosives, use of dangerous chemicals or biological agents, or involving nuclear energy or radiation (when doing these things precautions taken are irrelevant) Vicarious Liability passive party liability predicated on relationship w/ active tortfeasors (1) Employer-Employee (see Agency notes) (2) Independent Contractor (see Agency notes) (3) Car Owner Authorized Driver o Generally an automobile owner is not VL for tortious conduct of another person driving his automobile o Exception: when car is borrowed to run an errand for owner (makes an agent) o Family Car Doctrine: in many states the owners liable for tortious conduct of immediate family or household members who are driving w/ owners express or implied permission o Permissive Use: some states impose liability on the owner for damage caused by anyone driving w/ the owners consent o Negligent Entrustment: (not vicarious) o NY: follows the Permissive Use Doctrine ~ owner is liable for harms caused by anyone driving his care Presumption: driver always has owners permission (4) Parent - Child no VL for torts of kids no exceptions o Some states have statutory liability for willful and intentional torts of kids o Court may impose VL if tort was committed while acting as an agent for the parents o Parents liable for their own negligence Parent can be negligent active party in case (ex: gun on table) Same deal w/ negligent entrustment, and negligent supervision of kid o NY: statute holds parent liable but only up to a small dollar amount (5) Partners and Joint Ventures each member is VL for the tortious conduct of another member committed in the scope and course of the affairs of the JV or P-ship (6) Bailor for Bailee o GR: bailor isnt liable for the tortious conduct of his bailee o May be liable for negligent entrustment in entrusting bailed object

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(7) Tavernkeepers o No liability imposed at common law on vendors of intoxicating beverages for injuries resulting from the vendees intoxication o Many states have enacted Dramshop Acts to avoid this common law rule Creates COA in favor of a 3P injured by the intoxicated vendee Some courts have imposed liability absent such a statute based on ordinary negligence principles NY Dram Shop Act P injured by someone intoxicated may sue a 3P who o (1) Unlawfully sold liquor to a visibly intoxicated D o (2) Provided liquor to D under 21, or o (3) Provided drugs to D o SOL = 3 years (whether claim is for personal injury, property damage or wrongful death)

Joint Tortfeasors / Multiple Defendant Issues Joint and Several Liability Where 2 negligent acts combine to proximately cause an indivisible injury, each negligent actor will be J&S liable Liable to each P for the entire damage incurred If injury is divisible, each D is only liable for the identifiable portion But even if injury is divisible, where 2 Ds act in concert each is J&S liable for the entire injury Some states have statutory limitations on J&S liability NY: has special rules on comparative contribution ~ see CLPR Satisfaction Recovery of full payment Only one is allowed May proceed against all jointly liable parties till that time Release At CL, release of one JTF was release of all JTFs and released party could seek contribution from the others to share in the cost of release Majority of states now provide that release of one doesnt discharge others unless expressly provided in release agreement NY: Release only discharges the released D and it may not seek contribution from the others for the amount paid to obtain the release and remaining parties may not look to it for contribution Contribution Allow D who pays > its share of damages under JSL to have a claim against other JL parties for the excess (i.e., apportions liability among those at fault) Out of pocket party o Gets % of fault contribution from other Ds o Exception where OOP can get full recovery indemnity Limitations: o Contribution D must be originally liable to the P o Not applicable to intentional torts Methods of Apportionment: o (a) Comparative Contribution - contribution is imposed in proportion to the relative fault of the various Ds o (b) Equal Shares - minority approach that apportions equal shares regardless of fault

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Indemnity Involves shifting the entire loss between or among TFs Available in the following situations: o (i) by contract o (ii) in VL situations o (iii) under strict products liability, and o (iv) in some JSs, where there has been an identifiable difference in degree of fault (ex: retailer negligently relying on products condition and negligent manufacturer) May be superseded if state has adopted comparative negligence Survival and Wrongful Death Survival of Tort Actions o Allows COA to survive death of 1 parties (Survival Acts) o Apply to actions involving torts to property or torts resulting in personal injury o Torts invading intangible personal interest expire upon victims death Majority of states allow recovery for survivors non-economic loss (e.g., grief, loss of consortium, or loss or affection) NY: only allows recovery for a next-of-kins economic loss caused by the decedents death Wrongful Death o Acts grant recovery for pecuniary injury resulting to the spouse and next of kin o Decedents CRs have no claim against the amount awarded o Recoverys allowed only to the extent that the deceased could have recovered in action if it has lived (e.g., deceaseds contributory negligence reduces recovery in comparative negligence states) Tortious Interference with Family Relationships (1) Husband-Wife o Either spouse may bring an action for indirect interference w/ consortium and services caused by Ds intentional or negligent tortious conduct against the other spouse o Loss of Consortium When victims married, non-injured spouse is given a second and independent tort against the TF Can recover for: (a) Loss of Services (b) Loss of Society (companionship) (c) Loss of Sex (2) Parent-Child o Parent may maintain action for loss of childs services as a result of Ds tortious conduct o In most states child has no action against person who tortuously injures its parent These are derivative action so any defense that would prevent recovery by the injured also prevents recovery for interference w/ family relationship Tort Immunities (1) Intra Family Tort Immunities o Traditional View: one family member cant sue another in tort for personal injury o Exceptions: (i) Intentional tortious conduct (ii) Automobile accident cases to the extent of insurance coverage o Most states have abolished husband-wife immunity

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Slight majority have abolished parent-child immunity but generally dont allow children to sue for mere negligent supervision (2) Governmental Tort Immunity o (a) Federal Government US has waived immunity for tortious acts under the Federal Tort Claims Act Immunity will still attach for: (i) assault (ii) battery (iii) false imprisonment (iv) false arrest (v) malicious prosecution (vi) abuse of process (vii) libel and slander (viii) misrepresentation and deceit, and (ix) interference w/ contract rights Liable not waived for acts characterized as discretionary as distinguished from those termed ministerial o (b) State and Local Governments Most states have substantially waived their immunity to the same extent as the federal govt About have abolished municipal immunity to the same extent Public Duty Rule where muni immunity has been abolished a duty owed to the public at large is not owed to any particular citizen absent a special relationship between the governmental body and the citizen Where muni immunity still exists courts limit the application of sovereign immunity by not granting for proprietary functions Governmental Functions = functions that could only be adequately performed by the government Proprietary Functions = functions that might as well been provided by a private corporation o Immunity of Public Officials POs carrying out official duties are immune from tort liability for discretionary acts done w/o malice or improper purpose Liability attached for ministerial acts (3) Charitable Immunity (eliminated in the majority of jurisdictions) o

NY Municipal Torts Protects municipalities unless there existed a RAID special relationship between injured personal and municipal agency

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