TORTS w/NY Distinctions

itort to the person

BATTERY; Elements

ex: poisoning someone's food that is later consumed

.:FOUR ELEMENTS:.
1) HOC
/a person of avg sensibility would find/

2) TO P
/contact was to p or p's person/

3) INTENT
/with a desire to produce the forbidden consequence or result/

4] Causation

D(aff)= consent, d of self/other/prop, no incap

itort to the person

ASSAULT; Element

1) A.C. REASONABLE APPREHENSION IN PL
/it was reasonable for plaintiff to apprehend/
--distinguish fear
--apparent ability suff

2) IMM H\O CONTACT
/pl knew she was about to be physically contacted in a way that/
--never words alone, need a physical act (e.g., gestures)

3] intent
/d intended the result or d intended acts and their natural consequence was/

4] causation

D(aff)= consent, d of self/other/prop, no incap

itort to the person

FALSE IMPRISONMENT; Element

/act confining P to bounded area/

1) A/O of CONFINEMENT or RESTRAINT
--incl threats
--pl must have knowledge or be harmed

2) BOUNDED AREA
--no reasonable means of escape; reasonable is not detrimental or hidden route
D(aff)= consent, d of self/other/prop, no incap

IIED; Element

1. Extreme or Outrageous Conduct
2. Intent of Recklessness
3. Causation
4. Damages (severe emo distress

TRESPASS TO LAND

1. Physical Invasion to Real Property (done by person or physical object, not intangible stuff like vibrations or odor)(real property includes the surface, air/ground out to a reasonable distance)
2. Intent (need a conscious act, no sleepwalking or car w/broken steering)
3. Causation

TRESPASS TO CHATTELS

1. Interference w/ P's Right of Possession (Interference = Intermeddling or Dispossession)
2. Intent
3. Causation
4. Damages

CONVERSION

1. Interference w/P's Right of Possession.
2. Need for D to Pay Full Value (recovery will be fmv at time of conversion or return of possession)
3/4: Intent/Causation

AFF D: EXPRESS CONSENT

Rule: words, spoken or written that give D permission to behave in a certain fashion.
Three Exceptions: Mistake, Fraud (concealing STD), and Duress (threats of future action or future economic deprivation don't count)

AFF D: IMPLIED CONSENT

Two Types:
1. Apparent by Custom or Usage
-P is at a place or engaging in an activity where certain invasions are routine, or D was reasonable to infer consent based on P's behavior
2. Implied in Law
-action is necessary to save a person's life or some other important interest in person or property

AFF D #2: PROTECTIVE PRIVILEGES: Self-Defense, Defense of Other, Defense of Property

...

AFF D #3: NECESSITY: Public and Private

Only a Defense to Property Torts
-Public: Altruistic D - Absolute Defense
-Private: Self Interested D - Not Absolute, Liable for Actual Damages, Excused for Nominal and Punitive

DEFAMATION; ELEMENT

1. Defamatory Language (adverse effect on reputation)
2. Of or Concerning the P
3. Publication
4. Damages, Maybe

AFF DEFENSES TO DEFAMATION

1. Consent
2. Truth
3. Privilege (Absolute and Qualified)

PRIVACY TORTS

1. Appropriation (only 1 in NY)
2. Intrusion
3. False Light
4. Disclosure

PRIVACY TORTS; Affirmative D's

Consent: Defense to All
Absolute and Qualified Privileges: False Light and Disclosure Only

ECONOMIC TORTS

1. Fraud
2. Prima Facie Tort
3. Inducing Breach of K
4. Theft of Trade Secret

INTENTIONAL MISREP.
FRAUD
DECEIT

1. Factual Misrepresenation to P in Connection w/Some Kind of Business Transaction.

2. Scienter (knew or believed that the statement was false or that there was no basis for the statement.

3. Intent to Induce Reliance (misrep. must be material to the transaction)

4. Causation (Actual Reliance)

5. Justifiable Reliance (on the part of P, generally only justified in relying on facts, not opinions)

6. Damages (P must suffer actual pecuniary loss)

PRIMA FACIE TORT (NY ONLY)

Intentional Infliction of Pecuniary Harm w/o Justification
ex: malicious sale of products below cost to harm rival, excluding a valid top 10 song from your radio countdown

INDUCING BREACH OF K; Element and Aff Def

1. K (valid K, not terminable at will of either party)
2. Knowledge (D must know of K)
3. Persuasion by D to Abandon
4. Breach by Party to K P Persuaded
Aff Def: PRIVILEGE for Special Relationship based on trusts, confidence, or counselling

THEFT OF TRADE SECRETS; Element

1. VTS (business advantage to possesor, info not generally known, owner takes ongoing and reasoanble efforts to keep secure)
2. D Took Secret Through Improper Means
a. Traitorous Insiders
b. Industrial Spy (uses illegal, tortious, or unethical means)

NEGLIGENCE; Element

1. Duty of Care to A Foreseeable P
2. Breach
3. Actual and Proximate Causation
4. Harm to Plaintiff

DUTY: Concepts

-FORESEEABILITY: Duty Only to Foreseeable Victims in Zone of Danger
EXCEPTIONS: Rescuers and
Fetuses
SCOPE OF DUTY: RPP Under Similar Circumstances Std - Objective Jury Test
EXCEPTIONS: Superior Knowledge (Expert or Specific Fact) and Physical Characteristics (blind, disabled)

Six Special Duty Cases

1. Children
2. Professionals
3. Possessors of Real Estate
4. Statutory Duties
5. Affirmative Duties to Act
6. Negligent Infliction of Emotional Distress

BREACH

Factual/Reasoning Components: ID Wrongful Conduct and Why it was wrong.
RIL: Use where P lacks information and cannot precisely ID D's wrongful conduct. Prove that Either:
1. Accident that occurred is they type normally associated with negligence.
2. Prove that avvident is normally due to the negligence of someone in defendant's position (Control)

CAUSATION: Factual

Apply But-For Test to Show Cause and Effect Linkage b/w Claimed Breach and Ultimate Injury Suffered

CAUSATION: Factual Causation Multiple D Scenarios

MERGED CAUSES: Apply Substantial Factor Test, i.e., breach was theoretically capable of causing the harm by itself.

UNASCERTAINABLE CAUSE AMONG 2 NEGLIGENT PARTIES: Shift BoP to D to prove it was not his horse.

CAUSATION: Proximate

Issue is fairness from foreseeability

DIRECT CAUSE FACT PATTERN:
nearly instantaneous connection always satisfies unless the injury is a freakish or bizarre result of action and thus not foreseeable

INDIRECT CAUSE FACT PATTERN: Intervening Cause leads to the full extent of harm claimed against D: Look to Well Settle Quartet or ask What consequence of breach are we worried about, that is foreseeable everything else isnt.

RULE STATEMENT
Extraordinary forms of negligent conduct, against which defendant was under no obligation to take precautions, have been held to be SUPERSEDING INTERVENING FORCES

CAUSATION: Proximate: Well Settled Quartet

1. Intervening Medical Malpractice

2. Intervening Negligent Rescue

3. Intervening Reaction or Protection Forces.
(Stampede following car accident yields foreseeable injuries)

4. Subsequent Disease or Accident

DAMAGES

EGGSHELL SKULL DOCTRINE:
Negligence liability if found, will allow recovery of all damages even if surprisingly great in scope. Take P as you find him.

COLLATERAL SOURCES RECOVERY REDUCTION:
NY ONLY:
Tort awards are reduced by any monies P receives from other sources as compensation for same injury

SL: Applications and Aff D

ANIMALS
-Domesticated Animals - NO SL Unless vicious propensities are known to owner.
-Wild Animals - Always SL.

ULTRAHAZARDOUS ACTIVITY
-Activity has a forseeable risk of serious harm even where reasonable care is exercised.
-Activity is not a matter of common usage in the community where it is being carried out, ex: blasting.

Products (see next card)
-AFF DEF: COMPARATIVE NEGLIGENCE (you kept using sparking toaster)

SL: Products: Element

1. Strict Duty Owed by Commercial Supplier to User

2. Defect (breach of duty)

3. No Alteration
4. Foreseeable Use
(Actual and Proximate Cause From Breach of Duty)

5. Harm

Note: Product Question might not be SL at all, there are multiple other possibilities, e.g., breach of warranty under UCC, fraud claim, or even battery

NUISANCE

Claim: Interference w/another's ability to enjoy the use of their own land.
Std: P Must show following a balance of the equities, his ability to enjoy his land has been interfered with to an unreasonable degree.
-Relief granted independent of culpability, i.e. doesnt matter if it is intentional, negligent, or no fault.

EQUITABLE REMEDIES IN TORT:
INJUNCTION

REQUIREMENTS: (Liability +)
1. No Adequate Remedy at Law
2. Violation of Property Interest or Other Protectable Right.
3. Enforcement will be Feasible, Practicable, and Effective at Vindicating Right.
4. Balance Hardships.
5. D Has No Defenses
-Unclean Hands (P's bad behav)
-Laches (long delay and detrimental reliance)
-First Amendment; Prior Restraint of Free Speech (ex: cant stop a newspaper from publishing a negative article about you)

Special Duty Case 1: Children

4: Never Owe a Duty of Care
4-18: owes the care of a hypothetical child of similar age, experience, and intelligence, acting under similar circumstances
EXCEPTION: If a child is engaged in an adult activity than RPP applies (adult activity, e.g., operating a motorized vehicle, hunting)

Special Duty Case 2: Professionals

Duty: Average in the Community
Similar Community (Locality) Rules' Impact: Expert from Upstate NY can testify in City
Exception: Specialists' Held to National Duty of Care

Professionals and the Duty to Inform

Informed Consent Doctrine: Must explain risks of procedure to patients EXCEPT IF:
-commonly known risk
-patient declines info.
-patient is incompetent
-Harmful??

Professional Malpractice Essays

): in professional malpractice cases juries don’t know how to perform surgery or audit a fortune 500 company, and so it becomes the obligation of the P to educate the jury using expert witnesses to develop a std of care, and so on an essay say that

Special Duty Case 3:
Possessors of Real Estate: Categorical Approach

1. Cause of entrant's injury?
--ACTIVITY being conduct on land by possessor or possessor's employees; OR
--CONDITION: encountering a dangerous condition on the land
2. What Kind of Entrant?
-Undiscovered Trespasser (No Duty)
-Discovered/Anticipated Trespasser
-Licensee
-Invitee
*NY: Abolishes categorical approach and applies plain negligence (similar circumstances allows consideration so that higher duties are owed to a paying person than a house guest)

Duty Owed to Discovered/Anticipate Trespassers

Activity: RPP std
Condition: Four Part Test
1. Artificial, Not Natural
2. Highly Dangerous
3. Concealed/Hidden
4. Advance Knowledge of Owner

Licensee

Enter land w/permission but w/no purpose of conferring economic benefit on land possessor, usually a social guest.
Activity: RPP Std
Condition: Must Protect Licensees From All Known Traps: Two Part Test
1. Concealed From Licensee
2. Known in Advance by Possessor

Invitee

Def: Those who enter land with permission and do so to either confer an economic benefit on possessor or are entering premises open to the general public
Activity: RPP STD
CONDITION: Two Part Test
1. Concealed from Invitee
2. Known or Could Have Known Through a Reasonable Inspection

Special Duty Case No. 4: Statutory Duty Breach Can be Negligence Per Se

TWO PART TEST
1. Class of Person
2. Class of Risk
TWO EXCEPTIONS
1. Compliance is greater danger than violation.
2. Compliance is impossible. (ex: running a red light and hitting someone b/c you had a heart attack).

Special Duty Case 5: Affirmative Duty to Act

1. Pre-Existing Relationship and Peril (ex: invitor/invitee, employer/employee, family)
2. D puts P in position of peril.

Rescuers

1. No Duty to Rescue but Duty attaches once you begin rescue, RPP Std with the caveat that you need not engage in action that may cause your own death.
*NY Good Samaritan Law: Applies only to: Nurses, Doctors, and Veterinarians are protected from a negligent rescue, unless grossly negligent.

Special Duty Case 6: Neg IED

NEGLIGENT BREACH (but no physical injury so find a plus factor to have a cause of action)
Plus Factors
--Near Miss Case (Zone of Physical Danger Produced by D's Negligence AND P Suffered Subsequent Physical Damage)
--Bystander Case
---MS: bystander can recover if they observed the particular negligent injury in real time at close proximity and they physical victim is a close family member.
--NY: Bystander must be so close so as to have been in the zone of danger (+other requirements)

SL Products: E1: Merchant

Rule: Only Merchants (someone who routinely deals in goods of the type)
Four Common Situations:
1. Casual Seller (selling your car does not count as a merchant)
2. Service Providers (not liable for problems with products they provide incidental to service)
3. Commercial Lessors - YES
4. All Merchants in Distribution Chain

SL Products: E2: Product Defect

MANUFACTURING DEFECT (product departs from its intended design and is more dangerous than consumers would expect is SL regardless of quality control)
DESIGN DEFECT (hypo alt)
-would have been safer
-economically feasible
-wouldnt make it hard to use or defeat primary purpose or introduce new safety hazards
PRODUCT INFORMATION (potential third category)
-If a product has residual risks which cannot be physically designed out and if those risks are not obvious to users, then it is defective to sell the product without adequate warning and adequate instructions and you will be SL for not doing so.

SL Products: E3: No Alteration

Rule: Presumption that there has been no alteration if the product has been moving through ordinary channels of distribution
-Shift burden to D that an alteration has taken place

SL Products: E4: Foreseeable Use

Watch out for Trick Question: Exam tries to confuse you between foreseeable uses and intended uses, because many unintended uses are foreseeable which is the test
-Ex: standing on a chair is foreseeable use
-Ex: using a lawnmower to cut your hair is not foreseeable

Contributory Negligence

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VICARIOUS LIABILITY;
Vicarious Relationships (4)

1. Employer/Employee
2. Ind Contractor/Hiring Party
3. Automobile Owner/Driver
4. Parents/Children

VICARIOUS LIABILITY;
Employer/Employee

LIABILITY ATTACHES WHEN:
-employee is acting w/n scope of
his employment
INTENTIONAL TORTS:
-generally not liable unless
(1) employee went too far in a
job where use of force is
authorized
(2) tort was committed in a
misguided effort to serve the
boss' purposes

VICARIOUS LIABILITY;
Independent K/Hiring Party

Land Possessor Vicariously Liable ONLY IF: victim is invitee

VICARIOUS LIABILITY;
Auto Owners/Drivers

NO LIABILITY EXCEPT:
-If driver is doing an errand for the owner than the relationship changes to agent/principal and vicarious liability ensues
*NY PERMISSIVE USE DOCTRINE:
-Provides for vicarious liability whenever the driver is using the owners’ car with permission, and it is presumed that the driver has permission
RENTAL CAR COMPANIES:
-Not liable for the torts of customers when they are driving the rental

VICARIOUS LIABILITY;
Parents/Children

GENERALLY NO LIABILITY:
-statute may impose v liab
-child may be acting as an agent
-parent may be negligent in letting child act a certain way or use something
NY EXCEPTION:
-Parents liable upto $5k for willful and intentional property torts of children 10-18.

TORTS

itort: 4 to the person 3 to prop