Torts Simons 2013

WHO SHOULD BEAR THE RISK OF LOSS?

1. Main Purposes of Tort Law a. Provide a peaceful means for adjusting the rights of parties who might

otherwise “take the law into their own hands”b. To deter wrongful conductc. To encourage socially responsible behaviord. To restore injured parties to their original condition by compensating them

for their injuries. e. To vindicate individual rights of redress

2. Intentional Tortsa. Transferred intent applies to

i. Batteryii. Assaultiii. False imprisonmentiv. Trespass to landv. Trespass to chattels

b. Faulti. Plaintiff must bring burden of proofii. Civil burden defined as a “preponderance” of evidence (51%)

1. If evidence is 50% / 50% the party with the burden loses.iii. In NY, until 1970s, any contributory negligence was a complete bar

from winning judgment.1. Made it very difficult for the π to recover.

iv. Now, under comparative negligence, parties share damages1. If π is 30% at fault, they recover 70% of damages

v. Judges rule on the sufficiency - is there enough evidence to meet the quantum (reasonable doubt or preponderance). E.g. if evidence is insufficient, they can direct judgment for ∆.

vi. Juries rule on the weight (which direction does the evidence point)vii. Strict Liability for abnormally dangerous activity

c. Batteryi. Intentional act Substantial certainty that the act will cause harm

1. Insane people are liable to intentional acts when they can form intent

a. Ex: Announcing intent shows intent2. Transferred intent (aka third party is injured, unintentionally)

a. An individual who intends an act or consequence against one party and instead injures another is liable to that third party

b. Talmadge v. Smith (man threw stick at boys on the roof)ii. Unconsented to touching

1. Intent TO touch matters, but intent OF touch does not matter2. There is implied consent to touch in many social settings,

because it is a “crowded world” (e.g. touching on shoulder if you dropped a pen)

3. Unless you know that the person is sensitive to touch.4. Is it a battery to operate, absent extraordinary circumstances,

without consent?a. Yes, unless its extraordinary circumstances

i. Pt unable to give consent (unconscious, intox, etc)ii. Risk of serious harm if treatment delayediii. A reasonable person would consent under the

circumstancesiv. Doc had no reason to believe pt would refuse under

circumstances5. Unconscious boy is bleeding, and you have to amputate his foot?

a. Not liable, because implied consent based on extraordinary circumstances

b. Even if Doc judged poorly that amputation was necessary, this would be a case of negligence, not battery

iii. Harmful or offensive1. An unconsented touch which causes injury is a battery

a. Not intending harm is not a defensed. Assault

i. Reasonable Apprehension1. Not fear of blow, just apprehension

ii. Imminent Threate. False Imprisonment

i. Direct restraint of freedom without legal justification1. Words can create false imprisonment, but they must be strong

enough to convince a person that they are restrained2. Arrest for wrong crime False imprisionment

a. Cops legal authority?i. Probable cause must be reasonable

ii. Obstruction 1. No reasonable exit2. Being restricted

iii. Knowledge 1. there is no liability for intentionally confining another person

unless the person physically restrained knows of the confinement at the time it happened

iv. Store owners1. Limited privilege to detain those they are reasonably suspicious

of committing a thefta. Must be apprehended for a reasonable amount of timeb. Force must be reasonablec. Suspect doesn’t have to be guilty

3. Emotional Distressa. Four components

i. Intentional or reckless behaviorii. Extreme or outrageous behavior

1. “exceeds all bounds of civility”

2. Bar is raised compared to other intentional torts, because we don’t want parade of horribles

iii. Severe distress results1. Difficult to prove2. No reasonable person could endure

iv. Causal connection between the action and the resulting distress

b. Transfferred intent generally not applicable i. UNLESS immediate family member where ∆ knows π was presentii. Restatement would allow recovery if ∆ knows of bystanders presence

AND1. battery directed at immediate family; OR2. bodily harm to witness results

4. Trespass and Conversiona. Trespass

i. Trespass is a violation of your possessive rights of your property

ii. You own the air that is above your property as welliii. Intentional trespass allows for nominal damages when no actual

damage occursiv. Examples

1. ∆ places arm across property line = trespass2. Building with eaves that cross a property line = trespass3. Indirect invasion (EG water thrown at property) = trespass

b. Conversioni. Intentional absorbing of another’s property, such that it

destroyes the value of their possessory rightsii. Conversion descended from old tort of trover you found something

of value (e.g. a cow) and converted it to your property.iii. Distinguishes conversion from trespass to chattels by damages

1. Trespass to chattelsa. Property damaged or possessory rights violated, but no

damage so great as to require forced sale to πb. Requires actual damages (little girl riding the dog was not

TC, because she caused no damage.2. Conversion

a. Property is damaged or stolen forced sale needed to π at the value at the time of conversion

iv. Damages – only entitled to nominal damages1. Even if Dodd had proven conversion, the loss of possessory

rights of the personal info had a very small value (Politician information photocopied and distributed)

2. He could have also sued for punitive damagesv. Examples of conversion

1. Furniture moved by landlord; informs tenant of location = no conversion

2. Same facts, but moved a great distance = conversion3. Same fact, but no notification = conversion

4. Same fact, but while in storage, fire destroys furniture = conversion

5. Defensesa. Defense under consent Objective manifestations of consent are

sufficient to establish the defense of consent for intentional tortsi. Consent given b/c of an honest mistake still counts as a defense, but

NOT when the ∆ induces the mistaken consent by misleading the ∆.ii. Defenses against required disclosure (for medical purposes)

1. It’s so obvious, you don’t need to mention it2. patient consents and expresses desire to NOT know the risks3. Consent was reasonably impossible to get (unconscious)4. Doc reasonable chooses not to discuss risks, because the

agitation would harm patientb. Defense for Land and property Can use reasonable force to defend

your propertyi. CANNOT use deadly force, UNLESS you believe you are fending off

serious bodily harm1. (Katko v. Briney (Robber gets blown away by shotgun trap)

ii. May use force to reclaim your property as long as it can be done without unnecessary violence and not disturbing the peace

1. Hodgenden v. Hubbard (Guy takes stove w/ bad credit and store takes it back)

c. Self Defensei. Anyone is privileged to use reasonable force to defend himself against

a threatened battery1. However, this privilege exist ONLY when the ∆ reasonably

believes the force is necessary to protect himself, even if there is no necessity

2. Force? ∆ is limited to use only a reasonable amount of force which appears necessary for protection against a battery

3. Do not have to retreat before using any forceii. When the battery is no longer threatened the privilege terminatesiii. If the person was the initial aggressor? Once he retreats he retains the

right to use self-defense iv. Provocation (verbal threats) do not justify self-defense

1. To justify deadly force the ∆ must have a reasonable apprehension of loss of life or great bodily injury (eye for an eye)

v. Third party: B is defending himself from A but unintentionally injures C – B is not held liable

vi. NY Law → there is a duty to retreat before you use force, unless you are in your home

vii. N.Y Penal Code § 35.151. Person may use physical force when they believe to be

necessary to defend themselves or a third person unless:a. The conduct was provoked by the person himself or

b. The combat was choosen by agreement2. Person may not use deadly force unless:

a. You believe they are going to use deadly forceb. BUT if you can retreat you cannot use deadly force except

wheni. You are in your own houseii. You are assisting a police officeriii. You believe that the other person kidnap, rape,

sodomize, or robiv. Necessary to prevent or terminate a burglary

d. Self-Defense of Othersi. You are privileged to defend others if you reasonably believes that the

other person is in danger and intervention is necessary to protect the other person

1. If you intervene but help the aggressor you can be held liable for your actions

e. Public Necessity / Authorityi. Officials trying to protect the public at large can be indemnified for

what would normally be a tort (Surocco where the mayor blows up house where large fire occurs)

1. Must be under the standard of GOOD FAITH2. Government officials have some discretion

a. Has to make some sort of logical sense to use defense of public necessity

ii. Police officers1. Police have privilege up to the point of arrest.2. Police may use deadly force when the act is a felony, kidnapping,

arson, 1st degree burglary or is in self defense3. An officer may not act recklessly4. An officer may direct a person to assist him5. Officer cannot use excessive force

f. Private necessity (Vincent (dock owner) v Lake Erie Transport (moored to dock to prevent boat damage)

i. Limited privilege for individuals trying to avoid personal damageii. Must pay for any damages caused by trespass

g. Justificationi. Must justify actions bus driver detaining kids on bus to maintain

order, protect other children and city property justifiable action

6. Negligence generallya. Duty

i. Reasonable Care1. duty to act as a normal, reasonable person would

ii. “Risk reasonable to be perceived, defines the duty” – Cardozoiii. Duty does not require you to foresee specific risk of harm

b. Breach

i. Failure to conform to a required standardc. Causation

i. Not mere factual causation1. Logical link needed

a. Ex a heart attack while driving causes an accident, but it’s not a controllable fact

ii. Proximate cause1. A cause that directly produces an event and without which the

even would not have occurred.d. Damages

i. Only actual damagese. If first two elements are met the defendant is negligent but to have a tort for

negligence, all 4 provisions must be met.f. There must be unreasonable risk of harm to the plaintiff caused by the

defendant’s conduct.

7. Standard of carea. Duty does not require you to foresee specific risk of harm

i. Foreseeing injury is required to create a duty (i.e. driving is dangerous), but a specific injury (via a wheel grab) isn’t required to be foreseen, just that an injury is reasonably foreseeable.

b. Duty to protect dangerous instrumentalitiesi. Determined by

1. Character2. Location3. And ease of protecting them 4. Think case with kids and the turntable

c. Duty can be determined by a balancing testi. (burden of duty) < (gravity of injury) x (probability of injury)ii. Hand Formula

1. Negligent if Burden < Probability x Injury2. These are usually unquantifiable3. Rest 2nd 291 points out risk utility concept4. Rest 2nd 292 determines the magnitude of injury5. Rest 2nd 293 determines the magnitude of risk (probability?)6. Rest 3rd on Negligence sounds just like Hand

d. Standard of Prudence The “reasonably prudent person”i. Intelligence is not a factorii. Variant degrees based on actions

1. Should a reasonably prudent mechanic have a sufficient knowledge of cars to fix a lower control arm?

a. Yes, cars are a dangerous instrumentality and a people should have a reasonable amount of knowledge

iii. Repetition?1. If someone repetitively displays certain behaviors or actions (ex:

seizures)a. Becomes a circumstance for the reasonably prudent

persone. Custom can serve as evidence, but not conclusive for proving negligence

i. Think landlords and glass shower doors casef. Emergency doctrine

i. Lowers standard of careii. an event is covered by the doctrine if it is:

1. Sudden and unexpected AND2. Not caused by oneself

iii. The emergency should be covered in the normal instructions of a prudent man under the circumstances

g. The Handicap?i. Held to same reasonable standard of careii. Disability becomes part of the circumstances

h. Children?i. Reasonable standard of care for the person of the SAME

1. Age2. Intelligence3. Experience

ii. EXCEPTION1. Adult activities = Adult standard2. This applies to dangerous activities as well Ex: Sky diving

i. Parents?i. not vicariously liable for their kids actionsii. Failure to supervise kids is not a tortiii. But parents negligence can be a tort ex leaving a gun out

8. Negligence by professionalsa. Typical requirements for a professional

i. Extensive training and educationii. Licensure and regulationiii. Ethical requirement and discipline

b. Standard of carei. Prudence defined by professional peers, not by level of experience of

the professional1. Professional mustn’t be perfect

ii. If you hold yourself out as an expert, you are held to that standardiii. Professionals are held to the same standard if they provide pro bono

serviceiv. Good Samaritans are not held liable for injuries caused by care

1. Can still commit “gross negligence”v. Breaching professional standard

1. Risk of proposed treatment must be communicateda. Based on reasonable doctor test on what must be disclosed

to patient c. Practicing without a license is not necessarily negligence per se (Brown v.

Shyne)i. Legislature overrules with CPLR

1. When one claims to be a medical professional and causes injury, this is prima facie evidence of neg (i.e. that issue is not subject to a motion for dismissal)

d. Expert testimony resolves issues in malpractice casese. Locality rule Doctor’s held to standard of care in their locality

i. Courts adopted a national standard for doctorsii. NY PJI We use locality rule + 2 tier set up

1. Locality We use a higher standard than nation because we have a higher concentration of better doctors

2. Specialist may be held to a higher standard as well

9. Rules of law and Statutes a. Court can overrule duties that are poorly imposed

i. Ex: Case where people had to get out of their car to look down the tracks before crossing

b. Violating a statutei. Violating a penal statute negligence per seii. Violating a statute

1. Need to provea. ∆ violates a STATUTE; ANDb. Injury was what the statute was designed to prevent; ANDc. Injured parties were meant to be protected.

2. Even if the statute / regulation is violated, you still need to prove:a. Duty b. Breachc. Causation

3. Judges decide the purpose of a statutea. Judges don’t need the legislative history if the “language of

the statute is clear”iii. If harm resulting from negligence is foreseeable, then violation of

statute is negligence per se. 1. Lacking of warning devices negligence per se

iv. Violation of statute is not always considered negligence1. Adequate excuse may rebut violation of statute

a. Accident case with nurse walking on snow path instead of sidewalk

v. How courts treat a statute violation1. Violation as a rebuttable presumption: if you fail to rebut (offer

an excuse) then the violation negligence per se2. Violation is negligence per se: not excusable, period3. Violation is “some evidence of negligence”

10. Proof of negligence Res Ipsa Loquitur “the thing speaks for itself”a. Plaintiff has three separate burdens of proof for negligence with

circumstantial evidence:i. Burden of pleadingii. Burden of coming forward with enough evidence to avoid a directed

verdict against himiii. Burden of persuading that trier of fact to find in his favor

b. Elements of Res Ipsai. Instrumentality is in exclusive control of ∆ii. Accident ordinarily doesn’t happen w/o negligence of ∆

iii. π did not contribute to accidentc. EXCEPTION to showing exclusive control

i. Exclusive control test not required when multiple ∆ and π was unaware1. Ybarra case with multiple doctors and nurses while π

unconsciousd. Res ipsa not a law, but a theory of circumstantial evidence

i. Allows a permissible inference by a jury when dealing with circumstantial evidence

1. The burden of proof still rests with the π. 2. Inference acts as a piece of evidence

ii. “required elements” are helpful, but not always requirediii. Not required to prove that negligence MUST have caused accident,

only that is was more likely than not the cause.iv. Must show it was more likely than not that negligence THAT OF THE ∆.

e. Res ipsa can apply to one or more ∆’s i. Ex: Corcoran case with the supermarket and the wood board in

between the buildings that fell

11. Causationa. Causation of fact is always question of fact Proximate cause is a question

of lawb. To prove causation Must have proximate cause and causation c. Cause in fact facts given must be the factor that produced the causation

i. Ex: Whether the car was going 55 or 70 it still would of hit the train1. Therefore, speeding is a invalid cause in fact for damages

ii. Misdiagnoses Cause in fact when injury / death occurs1. Damages

a. Majority holds ∆ is liable for wrongful death (lost wages, etc)

b. Minority holds ∆ is only liable for % of wrongful death

d. “But for” rule or Sine Qua Noni. “without which it could not be”ii. A causal connection exists between a particular act and an injury when

the injury would not have arisen but for the act1. The injury to the π would NOT have happened “But For” the act

of the e. Substantial Factor Test

i. If the ∆’s negligent act was a substantial factor in bringing about that harm it was the cause in fact of the harm to another.

ii. Does not have to be the sole cause, just a substantial factor iii. If the damage/harm would have occurred irrespective of such

negligence then it was not a substantial factor f. Expert testimony settles an issue for causation

i. EX Case where glass fell from transom and cut person and sued saying cut caused his cancer

g. Joint tortfeasors liable for harm, even if they fail the “but for” test individually.

i. When only one of the 2 tortfeasors could of caused the injury, but unknown which one

1. Burden of proof shifted to ∆’s2. π can recover from one or both ∆’s3. Possible Res Ipsa claim too

h. “Market share” theory liability of 3+ parties and π can’t pinpoint ∆ that caused it

i. Burden of proof Shifted to ∆’sii. ∆ has opportunity to exculpate themselves and remove themselves

from ∆ group iii. ∆ pays according to their share in the market / industryiv. In NY same as above, except liable due to their national market

share and ∆ cannot exculpate them. In addition, the liability is not inflated when all ∆ are not before the court, so π may not recover 100%

i. Unforeseeable consequencesi. Direct causation not allowed b/c it creates limitless liability

1. Need proximate causej. Proximate Cause

i. Definition: A cause that is legally sufficient to result in liability. A cause that directly produces an event and without which the event would not have occurred.

ii. Tests1. Duty question of law for the court2. Foreseeability3. Direct relation4. Substantial factor5. Natural sequence6. Relationship not too attenuated

iii. PROCESS FOR PROXIMATE CAUSE1. Determine whether defendant was negligent2. Determine whether defendant’s negligence caused injury3. Determine if direct cause or indirect cause

a. If direct cause, use Palsgrafi. D will argue: injury to P was unforeseeable no duty

non suit (Palsgraf)ii. P will argue: was foreseeable because it happened

(Andrew dissent)b. If indirect cause use Dardarian foreseeability

i. D will argue: so unforeseeable that it is superseding1. Extremely far removed2. Illegal act3. Extraordinary under circumstances

ii. P will argue: foreseeable intervening act, joint and several liability

c. D will argue degree of unforeseeability

d. Just show jury it was foreseeable, not the extent of it12. Intervening Causation

a. Negligence of a non-foreseeable third party / event that cuts off liabilityi. Breaks the valid chain of causation ii. Intervening cause is a force which takes effect after defendant’s

negligence and contributes to that negligence in producing plaintiff’s injury.

b. Intervening causes are not automatically superseding. i. If cause was foreseeable based on circumstances and ∆ negligence,

the cause is NOT superseding.1. Only superseding if

a. Extraordinary?b. Far removed from defendants conductc. Not foreseeable in normal coursed. Ex “An act of god”

ii. Do you have to foresee exact injury?1. No, it’s enough to foresee that some injury could occur

c. Criminal acts can be superseding causes. Negligence acts cannot.d. Suicide is not automatically a superseding cause, if decedent was incapable

of resisting impulse due to tort.e. Rescue is not an automatically a superseding cause, if rescue attempt was

reasonable under circumstances.i. “Danger invites rescue”ii. Rescue could be an intervening cause if “wanton or reckless”iii. Firefighter rule

1. Bars recovery by paid cops and firefighters, even when ∆ clearly causes damages through negligence

a. Extended beyond the home to any property (Ex public street)

b. Limited to risks specific to occupation (Ex regular traffic accident)

c. Overridden by CA legislature when ∆ knows of π presence

13. Joint tortfeasors Contribution, Indemnity and Apportionmenta. Definition

i. Joint and Several Liability Each of several tortfeasors is liable jointly with the others for the amount of the judgment against them, and that each is also individually liable for the full amount. Plaintiff can collect from any one of them or any group of them.

b. Generally i. Parties are acting in concert or having a common duty

1. Joinder”a. joining multiple claims of torts against one ∆b. joining multiple ∆ in one case of tortc. Promotes judicial efficiency

2. Impleading Defendant can bring other defendants into law suit even if they’re not named

a. CANNOT implead spousesii. Indivisible injury caused by 2+ parties

iii. Vicarious liability allow π to sue tortfeasor and employeriv. Liability

1. Joint: π can recover 100% from ANY tortfeasor2. Several: π can recover X%, when X = degree of fault3. Old NY law only allow pro-rata contribution, and ONLY among ∆

named in suita. Old thought was that juries were incapable of apportioning

faultb. But, NY did allow for indemnity (if “secondary” tortfeasor

lost suit, he was allow to file another suit against the “primary” tortfeasor)

v. The different methods of apportioning share of damages reflect the different ways tortfeasors are considered joint

1. Acting in concert = contribution2. Indivisible injury = contribution?3. Vicarious liability = indemnity between active and passive

negligent tortfeasorsvi. CLPR 1601

1. Liability of a ∆ who is 50% OR LESS responsible isa. Capped for pain and suffering by the ∆’s % of responsibilityb. Uncapped for straight economic loss

vii. CPLR 1602 excludes the application of 16011. Actions requiring proof of intent2. Motor vehicle operation3. Notable exception – didn’t include medical malpractice

c. Contributory negligencei. Definition If π contributed at all to the negligence, then π could not

recover damages ii. What is the effect on contributory negligence (by π)

1. Some states apply “pure” theory: π 90% at fault = 10% of damages

2. Others require π be <50% at fault to qualify to sue3. Others require π be < or equal 50% at fault to qualify to sue

iii. NY CPLR 1411 Contributory negligence or assumption of risk does not bar recovery

iv. NY “pure” comparative negligence shall set apportionment of “recoverable damages”

1. Ex if π 20% at fault, recoverable damages = 80%2. It is an affirmative defense proved by ∆3. Old rule required π to prove they were NOT contributory

negligenced. Comparative negligence

i. Replaces joint liabilityii. Think Bartlett v. NM Welding Supply where the car causing most of the

accident was unknown1. Bartlett can only recover % of NM Welding fault to accident

iii. NY Case that allows this Dole v. Dow Chem1. Works around workers comp law 2. When one party pays a judgment in excess of their fault (i.e.

pays 100% when only 20% at fault)

a. They can bring a separate action against other ∆’s for excess

b. Implied other ∆’s into the initial case3. This is on a 6 year statute of limitations, b/c courts imply a K

among tortfeasorsiv. The court allows π to implied un-named negligent parties for

contribution, for the sake of efficiency1. Not just for pro rata contribution, but for apportioned share

v. Effect on contributory negligence1. Previously, any negligence by π was a complete bar to recovery,

now its apportionede. Contribution v. Indemnity

i. Contribution used when apportioning faultii. Indemnity used when liability is 100% tied between defendantsiii. Both are actions of implied contract, with K established at the time ∆1

pays in excess to ∆21. The statute of limitations starts at time of excess payment

f. Indemnificationi. To indemnify another party is to compensate that party for loss or

damage that has already occurred, or to guarantee through a contractual agreement to repay another party for loss or damage that occurs in the future

ii. Example Insurance companies indemnify their policyholders against damage caused by such things as fire, theft, and flooding, which are specified by the terms of the contract between the company and the insured.

iii. Example two parties settle a dispute over a contract, and one of them may agree to pay any claims which may arise from the contract, holding the other harmless

iv. Example subcontractor agrees to indemnify a general contractor for any losses that occur as a result of the subcontractor’s work – whether they be as a result of a suit filed against the general contractor for failure to adhere to contractual terms, or because of personal injury suffered at the job site by a worker or some other individual

g. Settlementi. If you settle, you can seek contribution, but you must prove that the

settlement amount was reasonableii. NY Legislature rules

1. Settlement with ∆1 does NOT release ∆2, but reduces total damages by GREATEST of

a. Stated damagesb. Paid damagesc. ∆1’s % of damages

iii. Once released by settlement, ∆1 is not open for contribution, nor can ∆1 seek contribution

1. Think similar to waiver in Kh. Cannot recover full damages for negligence when injury would have occurred

w/o the ∆’s negligencei. Case where kids to his death, but is electrocuted first by trying to hold

onto a wire

1. If ∆ makes such a defense, ∆ has burden of proving π would have died anyway

a. Only allowed if force to end life was already in motioni. Apportioning damages

i. Under joint and several liability1. The Injured Party (P) collects full amount of damages from one

(or more) of the tortfeasors2. When P collects from only one party (“Deep Pocket”), it is up to

that party to obtain contributions from the other tortfeasors or bear the loss alone

3. comparative negligence on the part of the plaintiff reduces damages

ii. Under several liability1. Each Tortfeasors pays no more than their apportioned share2. The Injured Party bears the loss of any uncollectible shares

14. Duty of Carea. No privity = No Liability Winterbottom v. Wright

i. Now privity is not needed to recover1. Must show that it was foreseeable that product would create a

risk exercising reasonable care b. Failure to act generally not considered negligence

i. As long as ∆ wasn’t responsible for π’s injuries1. If a ∆ negligently injuries a party he is under an obligation to aid the π

ii. If a ∆ is under no legal duty to act but assumes (undertakes) a duty he is now held liable to act without negligence

iii. No legal obligation to rescue someone1. Exceptions

a. Common carrierb. Innkeeper / guestc. Temp legal custodian

c. Duty to supervisei. Universities not required to supervise college kids

d. Each level has same duty of reasonable care under the circumstances, but the status of each visitors is part of circumstances

i. Invitee = highly foreseeableii. Licensee = highly foreseeableiii. Trespasser = not very foreseeable

e. When a spouse has a special knowledge, they have a duty, and breach constitute proximate cause

f. Duty to warni. if therapist or professional determines serious danger of violence, he

had a duty of care to protect the foreseeable victim(s)1. Privilege of confidentiality is not absolute when concerns threat

of violence

15. Economic Loss and Emotional Harma. Defining harm

i. Physical damages from a product failure = harm

ii. Threat of product failure = damages (Ex taking truck off-line) = harm

b. Emotional damagesi. Can recover if cause by a non-impact injury

1. Injury must bea. Definiteb. Objectivec. Physical

ii. Emotional distress on a 3rd party Damages for grief and fear of injury to another

1. Requirementsa. Family member is in the ZONE OF DANGER (Foreseeability that the

plaintiff would have been subjected to physical injury). Has to do with proximity.

b. Negligence by defendantc. Must be immediate family memberd. Contemporaneous observance of the injurye. Your emotional injury must be severe and verifiablef. Observance must be cause in fact of emotional distressg. Ex Bovsun case Husband, wife and daughter in crash;

husband gets out and is crushed by another car; wife and daughter witness it

iii. No emotional damages for bystanders1. Separately, courts do allow damages for wrongful transmission of

news of deatha. Next of death assumed to be always a severe emotional

impactc. Pure Economic Loss

i. Definition When a person suffers pecuniary loss not consequent upon the injury to his person or property

1. Negligent misrepresentation or misstatement causing economic loss, or

2. Negligent acts causing economic lossii. Ex Ultramares v. Touche

16. Owners of Landa. Landowners / landlords:

i. owe a duty in relation to the foreseeable harm created by their landii. held to standard of reasonable care to everyone

1. status of π become a circumstance for determining reasonableness

iii. owes duty to tenant AND any inviteesiv. duty to maintain security from foreseeable criminal acts

17. Wrongful death and survival actionsa. Survival v. Wrongful death

i. Survival provides that causes of action that the π rightfully possessed at the time of his death survive

1. This includes causes unrelated to his deatha. Ex π suffers pain before dying from an accidentb. Ex π has a cause for defamation, but dies of a car

accidentii. Wrongful death provides that next of kin can sue for death benefitsiii. In both cases, the π is the decedent’s property party representative

1. But in survival, they represent the estate = damages doled out by will

2. But in wrongful death, they represent the next of kin = damages established by deprivation of that particular relative

iv. CANNOT recover for “wrongful life” actions (aka non-abortions)v. Admiralty

1. Can recover for wrongful death actiona. Damages

i. Pecuniaryii. Value of services (parenting, care, etc)iii. Companionshipiv. Funeral expenses

vi. Wrongful death1. Estates Power and Trust Law (EPTL) of NY

a. Creates action for wrongful deathi. Establishes statutes of limitations of 2 years from

death1. Compares to personal injury statute of 3 years

from injuryii. Damages restricted to pecuniaryiii. Next of kin may recover, but only the pecuniary

value that they specifically would have received1. Including domestic partner, civil union, etc

2. NY only allows for pecuniary damages for wrongful deatha. Damages?

i. Value is net present value (NPV) of lifetime benefits that would have been conveyed to the wrongfully deceased

b. Some states allow for damages for loss of companionship AND grief

3. Can recover for pain and suffering when tort caused paina. Spouses can recover for pain and suffering of deceased

spouse i. Personal Injury survives death

vii. Statute of limitations1. Wrongful death 2 years from death2. Personal Injury 3 years from the injury3. To file for wrongful death: “is there a valid and timely underlying

personal injury claim at time of death?”

18. Defenses Plaintiffs conducta. Contributory negligence OR assumption of risk will NOT bar recovery but

may hinder damagesi. Assumption of risk is implied by certain activities

b. Last clear chance Wipes out contributory negligencei. Doctrine of last clear chance

1. Excuses or negates the effect of the plaintiff's contributory negligence and permits him or her to recover, in particular instances, damages regardless of his or her own lack of ordinary care

ii. We now rely on CPLR 1411c. Comparative negligence and assumption of risk

i. When one party is not negligent, you compare relative contributions of causation

1. Ex products liability or intentional tortii. Mechanics of apportionment

1. Some states have statutes requiring specific mechanics2. NY has the PJI

iii. Article 16 and recovery for non-economic damages1. Barred when “action requiring proof of intent”

a. “cause of action” = injury = claimb. “action” = the lawsuit itself

iv. Assumption of risk is a defense asserted by ∆1. ∆ has burden of proof to prove π assumed risk

v. Effect of comparative negligence on Joint and several liability1. Abolishment would put the risk of the insolvency of a ∆ onto the

πvi. Difference between contributory negligence and assumption of risk

1. Contributory negligence requires negligence = apportionment2. Assumption of risk need not be negligence = complete bar to

recoveryd. Assumption of risk

i. Express assumption of risk bars recovery1. UNLESS

a. Intentional harm or gross negligenceb. Bargaining power grossly unequalc. Matter of public interest

ii. Implied assumption of risk bars recovery1. If voluntary2. Excludes duress and place of public accommodation3. Primary v. Secondary

a. Primary: landlord negligence causes fire, you rescue baby from fire

i. In NY, applies only to “sports and recreational activities”

b. Secondary: rescuing cat from firei. In NY, “implied assumption of risk” is not a bar to

recovery, but creates apportionmentiii. NY limits assumption or risk to “sports and rec”

e. Comparative negligencei. eliminates the need for the affirmative defense of implied assumption

of risk

19. Defenses Statute of limitations and immunitiesa. Statute of limitations

i. SoL begins to run for medical malpractice when patient discovers or should have discovered negligent injury

ii. Statute begins to run at time of injuryiii. Discovery doctrine

1. NY allows similar statute for fraudiv. Malpractice

1. 2.5 years (vs 3 years for personal injury)a. Exceptions

i. Continuous treatment cause of action doesn’t accrue until last treatment (Don’t want patient suing their own docs)

ii. Foreign object cause doesn’t accrue until discovered or should have been discovered

2. Similar for builders and architectv. Tolling

1. When the statute is tolled, the running of the time period is suspended until some event specified by law takes place

a. Lack of legal capacityb. Infancy

vi. Equitable estoppel1. court can’t stop the clock, but can estop ∆ from asserting a

statute of limitations defense, if the facts allow itvii. Statute of repose – limits the time during which your cause of action

can accrueb. Immunities

i. Sovereign - to protect the crown1. NY Court of Claims set up to accept claims against the state

a. Believed that judges need special expertise for claims against the state

2. Sovereign still retained for judicial and legislative functions, as well as “agents of government”

ii. Intra-family – to promote family stability1. No longer in service; supplanted by insurance

iii. Charitable – to promote charity and prevent their coffers being drained1. No longer in service; supplanted by insurance

iv. Government1. Police department can claim immunity for not providing special

protection for individualsa. Police there to protect the whole publicb. EXCEPT

i. If state undertakes a duty to protect someone1. Ex informant

c. Police department cannot claim immunity if they assume the duty

i. 9-1-1 doesn’t create duty, but response doesii. Once duty is shown, still need to prove proximate

cause

1. Circumstantial evidence2. Public official can claim immunity

a. Ex DEP spokeswoman after 9/11 made false representations about NYC air quality Immune.

20. Vicarious Liabilitya. Typically between employer and employeeb. Encourages employer to supervise employee responsiblyc. Allows for π to recover fully from deeper pockets of employerd. “coming & going” rule does not apply if job contributes to a foreseeable

accidenti. excludes commute from scope of employment

a. Unless, circumstances of illness were work related extends to commute

e. Frolic v. detouri. Frolic = personal businessii. Detour = “slight” deviationiii. vicarious liability exists for detour, but not a frolic iv. Factors

1. the employee’s intent2. the nature, time, and place of the deviation3. the time consumed in the deviation4. the work for which the employee was hired5. the incidental acts reasonably expected by the employer6. the freedom allowed to the employee in performing his job

responsibilitiesf. Vicarious liability not limited to negligence torts

i. can include intentional if w/in scope of employmentii. Ex bouncer

g. Negligence in hiring is distinct from vicarious liabilityi. Ex Uncle Bob the child molester bus driver;

1. Employer was sued for negligence in screening its employees; molestation way outside scope of employment

ii. Vicarious liability allows employee to seek indemnity from employerh. Impleading a 3rd party

i. Provided in CLPR 1007 3rd party claim is allowed 1. Ex vicarious liability employer seeking indemnity from

employee2. Employer can bring 3rd party claim against employee, in the

current action, or a later actionii. Expanded by Dole v Dow, which allowed comparative negligence

1. Allowed you to implead previously unnamed parties for contribution

i. Independent contractor not covered by vicarious liabilityi. Independent contractor is hinged on the level of supervision / oversight

21. Strict Liabilitya. Definition Absolute legal responsibility for an injury that can be imposed on

the wrongdoer without proof of carelessness or fault.

b. Rylands v. Fletcher establishes strict liability (Mines flood when dam was created)

i. if you bring a non-natural danger onto your property, you are strictly liable if it causes danger

c. Ultra-hazardous / abnormally dangerous activity (Think Spano v. Perini)i. Factors

1. high degree of risk of harm2. likelihood harm will be great3. Inability to eliminate risk via care (IE should it be a neg case)4. Activity not common5. Location inappropriate6. Value to community outweighed by danger

ii. If you prove strict liability, you still need to prove proximate caused. Strict liability decided as a matter of law, not fact

22. Product Liabilitya. Definition The responsibility of a manufacturer or vendor of goods to

compensate for injury caused by defective merchandise that it has provided for sale.

b. Yuba Power products case establishes strict products liability in tort lawi. when manufacturer places product into on market with a defect that

causes injury, they can be held liable c. Codling v. Paglia Establishes Strict Products Liability in NYd. Strict liability exists when

i. The product was utilized for its intended purpose ii. Defect was not discoverable by reasonable careiii. Injury was not preventable by reasonable care

e. Types of product liabilityi. Manufacturer not constructed as designed

1. Don’t need to prove negligenceii. Failure to warn

1. Sometimes, the warning devices itself may serve as a warning2.

iii. Design defect1. If you modify a product, you’re not allowed to file a design defect

SPL claima. But failure to warn may still be an option

f. SPL factorsi. Utility (to public and to specific individual)ii. Likelihood of injuryiii. Safer design or substitute available?iv. Redesign-able at a reasonable pricev. Ability of π to have avoided injury by due carevi. Awareness of π of danger (generally, or by specific warning)vii. Ability of manufacturer to spread loss

g. Have to prove proximate causeh. Must have physical loss for SPL

i. If not Limited to warrantee claim

i. No SPL for ideasi. Ex Read a book and commit suicide because of it NO SPL

23. Product Liability defensesa. Comparative negligence of π

i. Can reduce recovery 1. Jury decides

ii. CPLR 1411iii. Based on degrees of causality

b. State of the art technology Not a defense i. Customer expectations test

c. Abnormal use of product IS a defensei. Liability only occurs if the use was foreseeableii. Ex Using a tractor as a boat

d. Compliance with state / federal regulations and requirementsi. Not a complete defenseii. Serves as evidence

e. Health professionals are not responsible for defective productsi. Surgeon not liable for defective pacemaker

1. He didn’t make it, just implanted it

24. Nuisancea. Definition A legal action to redress harms arising from the use of one's

propertyi. Unreasonable interference with use of one’s landii. Separate tort

1. Not an intentional tort (Ex battery) 2. Not negligence 3. Not abnormally dangerous activity

iii.b. If nuisance is permanent (Think cement c. case with the hillbillies living

around it)i. Permanent damages

1. Includes damages done now and in the future2. Damages are filed against the property, reducing its value, so

the next owner cannot file another suitc. NO SPL in nuisance (Con-ed and the auto body shop with the paint jobs being

ruined)i. Intentional conduct or substantial certainty

1. If intent must prove intentional AND unreasonableii. Contributory negligence is NOT a defense

1. But can show that π is contributory negligent reduce/eliminate damages

iii. Abnormally dangerous activity1. Must prove its actionable under the factors

d. “coming to the nuisance” Bar to recovery (Developer v. Cattleman in Arizona)

i. Compensation may be given to the party that has to move

25. Misrepresentationa. Definition An assertion or manifestation by words or conduct that is not in

accord with the factsi. Words are not required; actions can serve as fraud

b. No liability for bare non-disclosurei. Ex House sold with termite infestation

1. Caveat Emptorii. What court allows now

1. Courts allow recession2. Liable for non-disclosure if a fiduciary duty

a. Ex doc/patient, lawyer/client, etc3. Liable when certain K create a confidential relationship4. Large disparity of knowledge

c. False representationi. Affirmative concealment Satisfies requirement

1. Ex Seller purposefully tried to hide a defectii. Failure to inform

1. False representation of a material fact (false pretenses)2. Intent to deceive or reckless informing3. Justifiable reliance upon representation4. Pecuniary damages5. Privity not strictly required, as long as there is a relationship

tantamount to privityiii. Reliance upon statements must be justifiableiv. Reliance must be of a reasonable personv. Misstatement of law is not actionable

d. Fraudi. Requirements

1. intent to deceive2. knowledge of intent3. No privity needed4. Gross negligence evidence

a. Evidence must be “clear and convincing”ii. Damages out of pocket or benefit of the bargain

1. “Out of pocket” rule: π was defrauded of the difference between what he spends and the value he received.

a. Spent $5 for what he thought was worth $10, but actually worth $1 = damages of $4

2. NY “Benefit of the bargain” rule: π was defrauded of the difference between what he expected to receive and what he actually received.

a. Spent $5 for what he thought was worth $10, but actually worth $1 = damages of $9

iii. Must have damages for a fraud action; if you are defrauded, but receive a windfall, you have no cause of action.

iv. Fraud may serve as facts for equitable estoppele. Negligent misrepresentation

i. Mistaken statements can qualify 1. Statement is material and false2. Honest mistake3. No need for intent

a. Reliance relationshipii. Same requirements as negligence needed to prove thisiii. Requires privityiv. Evidence “preponderance of the evidence” (51%)

26. Defamation: Privilegesa. Defamation, Generally

i. Defamation rule pg 872 note 61. Defamatory words2. Publication3. Extrinsic facts4. Formal allegation of defamation5. Special Damages

ii. Blanket statements are not defamatory unless it can be specified1. Think case with authors against models and employees of a store

iii. Defamation survives a dead person for damages1. Damages reputation up until death2. SOL 1 year Be prompt!

iv. Defamation by radio Libel per sev. Slander must show “special harm”

1. Humiliation, resentment, damage to reputation, etc.2. If it’s an injury, it can only be an actual injury

a. Ex injury as in sickness, not injury to reputationvi. In order for defamation to be published, it must be known or

understood by a third personvii. Private person sue media over defamation in newsworthy events, State

may define liability for damages1. NY Must prove by preponderance of the evidence

a. Publisher has to act in grossly irresponsible manner w/o due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties to recover for defamation

viii. Private people can sue private corporations for defamation

b. Common Law of defamation was put on its head in 1964 with Sullivani. General definition injury towards reputation

1. Obliquely / indirect2. Divided into libel and slander

a. Libel Writteni. Libel per qua

1. “The fellow that lives three house away from me is a crook” Need to find out who that person is

2. Not so clearly obvious Not as serious3. Must plead and prove special damages

a. Pecuniary loss due to reputationii. Libel on its face (Libel per se)

1. “Joe Smith is a crook”2. More serious

b. Slander Spokeni. Slander (Mere Slander)

1. Must plead and prove special damagesii. Slander per se

1. Unchasity to a woman, Loathsome disease, damage to business or profession

2. So outrageous we can presume damages3. Treated differently due to seriousness of length of time

ii. Six elements of a cause of action1. Defamatory statement of fact2. Regarding the plaintiff3. Published to a third party by defendant4. Falsity5. Some degree of fault6. Injury to the plaintiff

iii. Whether written or oral, the words are critical. Must indicate what he said in complaint and show how that defamed you

c. Constitutional requirements for defamation i. For a public official to recover

1. Constitutional requirementsa. If plaintiff can prove that allegations are falseb. Plaintiff must also show fault actual/constitution malice

i. Distinguish from benevolent ill willii. The defendant knew it was false and published it

anywaysiii. “Clear and convincing evidence” to prove

ii. Expanded from public official to public figures1. People who look to forums to debate issues (celebrities to

activist)2. Similar requirements as public official

iii. Private person1. Shouldn’t be subject to the same 2. Can impose a lesser standard of constitutional malice

a. Common law rules

d. Fact or opinion? Use the Ollman factorsi. Specific statement usedii. Verification for statementiii. Full context of communication iv. Broader social contextv. NY gives greater protection to the defendant

e. Qualified privilege given when it is in the best interest of societyi. HYPO Head of DEP gave false statements about air after 9/11

1. Protected Qualified privilegeii. It is defeated when there is common law malice

27. Defamation Privacya. NY refuses to recognize the right of privacy as a tortb. Section 50 of civil rights law Right of privacy

i. Really the right of publicity (people want to get paid for their picture, etc.)

1. Misappropriationii. Misdemeanor crime

c. Section 51 of civil rights law Action for injunction and for damagesi. Provides for relief

d. Common law right of privacy in NYi. intrusionii. false lightiii. private facts public disclosureiv. appropriation or likeness

e. Newsworthy defense doesn’t count if π is put in false light / facts aren’t accurate