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 conduct c. To encourage socially responsible behavior d. To restore injured parties to their original condition by compensating them for their injuries. e. To vindicate individual rights of redress 2. Intentional Torts a. Transferred intent applies to i. Battery ii. Assault iii. False imprisonment iv. Trespass to land v. Trespass to chattels b. Fault i. Plaintiff must bring burden of proof ii. 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 to recover. iv. Now, under comparative negligence, parties share damages 1. If 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. Battery i. 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 intent 2. 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 matter 2. 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 delayed iii. A reasonable person would consent under the circumstances iv. Doc had no reason to believe pt would refuse under circumstances 5. 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 offensive 1. An unconsented touch which causes injury is a battery a. Not intending harm is not a defense d. Assault i. Reasonable Apprehension 1. Not fear of blow, just apprehension ii. Imminent Threat e. False Imprisonment i. Direct restraint of freedom without legal justification 1. Words can create false imprisonment, but they must be strong enough to convince a person that they are restrained 2. Arrest for wrong crime False imprisionment a. Cops legal authority? i. Probable cause must be reasonable ii. Obstruction 1. No reasonable exit 2. 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 owners 1. Limited privilege to detain those they are reasonably suspicious of committing a theft a. Must be apprehended for a reasonable amount of time b. Force must be reasonable c. Suspect doesnt have to be guilty 3. Emotional Distress a. Four components i. Intentional or reckless behavior ii. Extreme or outrageous behavior 1. exceeds all bounds of civility

2. Bar is raised compared to other intentional torts, because we dont want parade of horribles iii. Severe distress results 1. Difficult to prove 2. 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 was present ii. Restatement would allow recovery if knows of bystanders presence AND 1. battery directed at immediate family; OR 2. bodily harm to witness results 4. Trespass and Conversion a. Trespass i. Trespass is a violation of your possessive rights of your property ii. You own the air that is above your property as well iii. Intentional trespass allows for nominal damages when no actual damage occurs iv. Examples 1. places arm across property line = trespass 2. Building with eaves that cross a property line = trespass 3. Indirect invasion (EG water thrown at property) = trespass b. Conversion i. Intentional absorbing of anothers property, such that it destroyes the value of their possessory rights ii. 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 chattels a. Property damaged or possessory rights violated, but no damage so great as to require forced sale to b. 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 at the value at the time of conversion iv. Damages only entitled to nominal damages 1. 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 damages v. Examples of conversion 1. Furniture moved by landlord; informs tenant of location = no conversion 2. Same facts, but moved a great distance = conversion 3. Same fact, but no notification = conversion 4. Same fact, but while in storage, fire destroys furniture = conversion

5. Defenses a. Defense under consent Objective manifestations of consent are sufficient to establish the defense of consent for intentional torts i. 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. Its so obvious, you dont need to mention it 2. patient consents and expresses desire to NOT know the risks 3. Consent was reasonably impossible to get (unconscious) 4. Doc reasonable chooses not to discuss risks, because the agitation would harm patient b. Defense for Land and property Can use reasonable force to defend your property i. CANNOT use deadly force, UNLESS you believe you are fending off serious bodily harm 1. (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 Defense i. Anyone is privileged to use reasonable force to defend himself against a threatened battery 1. 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 force ii. When the battery is no longer threatened the privilege terminates iii. 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 35.15 1. 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 agreement 2. Person may not use deadly force unless: a. You believe they are going to use deadly force

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b. BUT if you can retreat you cannot use deadly force except when i. You are in your own house ii. You are assisting a police officer iii. You believe that the other person kidnap, rape, sodomize, or rob iv. Necessary to prevent or terminate a burglary Self-Defense of Others i. 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 Public Necessity / Authority i. 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 FAITH 2. Government officials have some discretion a. Has to make some sort of logical sense to use defense of public necessity ii. Police officers 1. 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 defense 3. An officer may not act recklessly 4. An officer may direct a person to assist him 5. Officer cannot use excessive force 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 damage ii. Must pay for any damages caused by trespass Justification i. Must justify actions bus driver detaining kids on bus to maintain order, protect other children and city property justifiable action

6. Negligence generally a. Duty i. Reasonable Care 1. duty to act as a normal, reasonable person would ii. Risk reasonable to be perceived, defines the duty Cardozo iii. Duty does not require you to foresee specific risk of harm b. Breach i. Failure to conform to a required standard c. Causation i. Not mere factual causation 1. Logical link needed

a. Ex a heart attack while driving causes an accident, but its not a controllable fact ii. Proximate cause 1. A cause that directly produces an event and without which the even would not have occurred. d. Damages i. Only actual damages e. 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 defendants conduct. 7. Standard of care a. 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) isnt required to be foreseen, just that an injury is reasonably foreseeable. b. Duty to protect dangerous instrumentalities i. Determined by 1. Character 2. Location 3. And ease of protecting them 4. Think case with kids and the turntable c. Duty can be determined by a balancing test i. (burden of duty) < (gravity of injury) x (probability of injury) ii. Hand Formula 1. Negligent if Burden < Probability x Injury 2. These are usually unquantifiable 3. Rest 2nd 291 points out risk utility concept 4. Rest 2nd 292 determines the magnitude of injury 5. 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 factor ii. 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 person e. Custom can serve as evidence, but not conclusive for proving negligence i. Think landlords and glass shower doors case f. Emergency doctrine i. Lowers standard of care ii. an event is covered by the doctrine if it is:

1. Sudden and unexpected AND 2. 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 care ii. Disability becomes part of the circumstances h. Children? i. Reasonable standard of care for the person of the SAME 1. Age 2. Intelligence 3. Experience ii. EXCEPTION 1. Adult activities = Adult standard 2. This applies to dangerous activities as well Ex: Sky diving i. Parents? i. not vicariously liable for their kids actions ii. Failure to supervise kids is not a tort iii. But parents negligence can be a tort ex leaving a gun out 8. Negligence by professionals a. Typical requirements for a professional i. Extensive training and education ii. Licensure and regulation iii. Ethical requirement and discipline b. Standard of care i. Prudence defined by professional peers, not by level of experience of the professional 1. Professional mustnt be perfect ii. If you hold yourself out as an expert, you are held to that standard iii. Professionals are held to the same standard if they provide pro bono service iv. 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 communicated a. 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 cases e. Locality rule Doctors held to standard of care in their locality i. Courts adopted a national standard for doctors ii. 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 statute i. Violating a penal statute negligence per se ii. Violating a statute 1. Need to prove a. violates a STATUTE; AND b. Injury was what the statute was designed to prevent; AND c. Injured parties were meant to be protected. 2. Even if the statute / regulation is violated, you still need to prove: a. Duty b. Breach c. Causation 3. Judges decide the purpose of a statute a. Judges dont 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 negligence 1. 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 violation 1. Violation as a rebuttable presumption: if you fail to rebut (offer an excuse) then the violation negligence per se 2. Violation is negligence per se: not excusable, period 3. 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 pleading ii. Burden of coming forward with enough evidence to avoid a directed verdict against him iii. Burden of persuading that trier of fact to find in his favor b. Elements of Res Ipsa i. Instrumentality is in exclusive control of ii. Accident ordinarily doesnt happen w/o negligence of iii. did not contribute to accident c. EXCEPTION to showing exclusive control i. Exclusive control test not required when multiple and was unaware

1. Ybarra case with multiple doctors and nurses while unconscious d. 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 . 2. Inference acts as a piece of evidence ii. required elements are helpful, but not always required iii. 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. Causation a. Causation of fact is always question of fact Proximate cause is a question of law b. 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 train 1. Therefore, speeding is a invalid cause in fact for damages ii. Misdiagnoses Cause in fact when injury / death occurs 1. 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 Non i. 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 act 1. The injury to the 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 s 2. can recover from one or both s 3. Possible Res Ipsa claim too

h. Market share theory liability of 3+ parties and cant pinpoint that caused it i. Burden of proof Shifted to s ii. has opportunity to exculpate themselves and remove themselves from group iii. pays according to their share in the market / industry iv. 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 may not recover 100% i. Unforeseeable consequences i. Direct causation not allowed b/c it creates limitless liability 1. Need proximate cause j. 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. Tests 1. Duty question of law for the court 2. Foreseeability 3. Direct relation 4. Substantial factor 5. Natural sequence 6. Relationship not too attenuated iii. PROCESS FOR PROXIMATE CAUSE 1. Determine whether defendant was negligent 2. Determine whether defendants negligence caused injury 3. Determine if direct cause or indirect cause a. If direct cause, use Palsgraf i. 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 foreseeability i. D will argue: so unforeseeable that it is superseding 1. Extremely far removed 2. Illegal act 3. 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 it 12. Intervening Causation a. Negligence of a non-foreseeable third party / event that cuts off liability i. Breaks the valid chain of causation ii. Intervening cause is a force which takes effect after defendants negligence and contributes to that negligence in producing plaintiffs injury. b. Intervening causes are not automatically superseding.

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 conduct c. Not foreseeable in normal course d. Ex An act of god ii. Do you have to foresee exact injury? 1. No, its 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 presence 13. Joint tortfeasors Contribution, Indemnity and Apportionment a. 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 tort c. Promotes judicial efficiency 2. Impleading Defendant can bring other defendants into law suit even if theyre not named a. CANNOT implead spouses ii. Indivisible injury caused by 2+ parties iii. Vicarious liability allow to sue tortfeasor and employer iv. Liability 1. Joint: can recover 100% from ANY tortfeasor 2. Several: can recover X%, when X = degree of fault 3. Old NY law only allow pro-rata contribution, and ONLY among named in suit a. Old thought was that juries were incapable of apportioning fault

i.

b. 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 = contribution 2. Indivisible injury = contribution? 3. Vicarious liability = indemnity between active and passive negligent tortfeasors vi. CLPR 1601 1. Liability of a who is 50% OR LESS responsible is a. Capped for pain and suffering by the s % of responsibility b. Uncapped for straight economic loss vii. CPLR 1602 excludes the application of 1601 1. Actions requiring proof of intent 2. Motor vehicle operation 3. Notable exception didnt include medical malpractice c. Contributory negligence i. Definition If contributed at all to the negligence, then could not recover damages ii. What is the effect on contributory negligence (by ) 1. Some states apply pure theory: 90% at fault = 10% of damages 2. Others require be <50% at fault to qualify to sue 3. Others require 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 20% at fault, recoverable damages = 80% 2. It is an affirmative defense proved by 3. Old rule required to prove they were NOT contributory negligence d. Comparative negligence i. Replaces joint liability ii. Think Bartlett v. NM Welding Supply where the car causing most of the accident was unknown 1. Bartlett can only recover % of NM Welding fault to accident iii. NY Case that allows this Dole v. Dow Chem 1. 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 case 3. This is on a 6 year statute of limitations, b/c courts imply a K among tortfeasors iv. The court allows to implied un-named negligent parties for contribution, for the sake of efficiency 1. Not just for pro rata contribution, but for apportioned share v. Effect on contributory negligence

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1. Previously, any negligence by was a complete bar to recovery, now its apportioned Contribution v. Indemnity i. Contribution used when apportioning fault ii. Indemnity used when liability is 100% tied between defendants iii. Both are actions of implied contract, with K established at the time 1 pays in excess to 2 1. The statute of limitations starts at time of excess payment Indemnification i. 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 subcontractors 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 Settlement i. If you settle, you can seek contribution, but you must prove that the settlement amount was reasonable ii. NY Legislature rules 1. Settlement with 1 does NOT release 2, but reduces total damages by GREATEST of a. Stated damages b. Paid damages c. 1s % of damages iii. Once released by settlement, 1 is not open for contribution, nor can 1 seek contribution 1. Think similar to waiver in K Cannot recover full damages for negligence when injury would have occurred w/o the s negligence i. 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 would have died anyway a. Only allowed if force to end life was already in motion Apportioning damages i. Under joint and several liability 1. The Injured Party (P) collects full amount of damages from one (or more) of the tortfeasors 2. 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 liability 1. Each Tortfeasors pays no more than their apportioned share 2. The Injured Party bears the loss of any uncollectible shares 14. Duty of Care a. No privity = No Liability Winterbottom v. Wright i. Now privity is not needed to recover 1. 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 wasnt responsible for s injuries 1. If a negligently injuries a party he is under an obligation to aid the 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 someone 1. Exceptions a. Common carrier b. Innkeeper / guest c. Temp legal custodian c. Duty to supervise i. 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 foreseeable ii. Licensee = highly foreseeable iii. Trespasser = not very foreseeable e. When a spouse has a special knowledge, they have a duty, and breach constitute proximate cause f. Duty to warn i. 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 Harm a. Defining harm i. Physical damages from a product failure = harm ii. Threat of product failure = damages (Ex taking truck off-line) = harm b. Emotional damages i. Can recover if cause by a non-impact injury 1. Injury must be a. Definite b. Objective c. Physical ii. Emotional distress on a 3rd party Damages for grief and fear of injury to another

1. Requirements a. 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 defendant c. Must be immediate family member d. Contemporaneous observance of the injury e. Your emotional injury must be severe and verifiable f. Observance must be cause in fact of emotional distress g. 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 bystanders 1. Separately, courts do allow damages for wrongful transmission of news of death a. Next of death assumed to be always a severe emotional impact c. 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 loss ii. Ex Ultramares v. Touche 16. Owners of Land a. Landowners / landlords: i. owe a duty in relation to the foreseeable harm created by their land ii. held to standard of reasonable care to everyone 1. status of become a circumstance for determining reasonableness iii. owes duty to tenant AND any invitees iv. duty to maintain security from foreseeable criminal acts 17. Wrongful death and survival actions a. Survival v. Wrongful death i. Survival provides that causes of action that the rightfully possessed at the time of his death survive 1. This includes causes unrelated to his death a. Ex suffers pain before dying from an accident b. Ex has a cause for defamation, but dies of a car accident ii. Wrongful death provides that next of kin can sue for death benefits iii. In both cases, the is the decedents 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 action a. Damages

i. Pecuniary ii. Value of services (parenting, care, etc) iii. Companionship iv. Funeral expenses vi. Wrongful death 1. Estates Power and Trust Law (EPTL) of NY a. Creates action for wrongful death i. Establishes statutes of limitations of 2 years from death 1. Compares to personal injury statute of 3 years from injury ii. Damages restricted to pecuniary iii. Next of kin may recover, but only the pecuniary value that they specifically would have received 1. Including domestic partner, civil union, etc 2. NY only allows for pecuniary damages for wrongful death a. 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 pain a. Spouses can recover for pain and suffering of deceased spouse i. Personal Injury survives death vii. Statute of limitations 1. Wrongful death 2 years from death 2. Personal Injury 3 years from the injury 3. To file for wrongful death: is there a valid and timely underlying personal injury claim at time of death? 18. Defenses Plaintiffs conduct a. Contributory negligence OR assumption of risk will NOT bar recovery but may hinder damages i. Assumption of risk is implied by certain activities b. Last clear chance Wipes out contributory negligence i. 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 1411 c. 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 tort ii. Mechanics of apportionment 1. Some states have statutes requiring specific mechanics 2. NY has the PJI iii. Article 16 and recovery for non-economic damages 1. Barred when action requiring proof of intent

a. cause of action = injury = claim b. action = the lawsuit itself iv. Assumption of risk is a defense asserted by 1. has burden of proof to prove assumed risk v. Effect of comparative negligence on Joint and several liability 1. Abolishment would put the risk of the insolvency of a onto the vi. Difference between contributory negligence and assumption of risk 1. Contributory negligence requires negligence = apportionment 2. Assumption of risk need not be negligence = complete bar to recovery d. Assumption of risk i. Express assumption of risk bars recovery 1. UNLESS a. Intentional harm or gross negligence b. Bargaining power grossly unequal c. Matter of public interest ii. Implied assumption of risk bars recovery 1. If voluntary 2. Excludes duress and place of public accommodation 3. 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 fire i. In NY, implied assumption of risk is not a bar to recovery, but creates apportionment iii. NY limits assumption or risk to sports and rec e. Comparative negligence i. eliminates the need for the affirmative defense of implied assumption of risk 19. Defenses Statute of limitations and immunities a. 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 injury iii. Discovery doctrine 1. NY allows similar statute for fraud iv. Malpractice 1. 2.5 years (vs 3 years for personal injury) a. Exceptions i. Continuous treatment cause of action doesnt accrue until last treatment (Dont want patient suing their own docs) ii. Foreign object cause doesnt accrue until discovered or should have been discovered 2. Similar for builders and architect v. 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 capacity b. Infancy vi. Equitable estoppel 1. court cant stop the clock, but can estop from asserting a statute of limitations defense, if the facts allow it vii. Statute of repose limits the time during which your cause of action can accrue b. Immunities i. Sovereign - to protect the crown 1. 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 stability 1. No longer in service; supplanted by insurance iii. Charitable to promote charity and prevent their coffers being drained 1. No longer in service; supplanted by insurance iv. Government 1. Police department can claim immunity for not providing special protection for individuals a. Police there to protect the whole public b. EXCEPT i. If state undertakes a duty to protect someone 1. Ex informant c. Police department cannot claim immunity if they assume the duty i. 9-1-1 doesnt create duty, but response does ii. Once duty is shown, still need to prove proximate cause 1. Circumstantial evidence 2. Public official can claim immunity a. Ex DEP spokeswoman after 9/11 made false representations about NYC air quality Immune. 20. Vicarious Liability a. Typically between employer and employee b. Encourages employer to supervise employee responsibly c. Allows for to recover fully from deeper pockets of employer d. coming & going rule does not apply if job contributes to a foreseeable accident i. excludes commute from scope of employment a. Unless, circumstances of illness were work related extends to commute e. Frolic v. detour i. Frolic = personal business ii. Detour = slight deviation iii. vicarious liability exists for detour, but not a frolic

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h.

i.

iv. Factors 1. the employees intent 2. the nature, time, and place of the deviation 3. the time consumed in the deviation 4. the work for which the employee was hired 5. the incidental acts reasonably expected by the employer 6. the freedom allowed to the employee in performing his job responsibilities Vicarious liability not limited to negligence torts i. can include intentional if w/in scope of employment ii. Ex bouncer Negligence in hiring is distinct from vicarious liability i. 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 employer Impleading a 3rd party i. Provided in CLPR 1007 3rd party claim is allowed 1. Ex vicarious liability employer seeking indemnity from employee 2. Employer can bring 3rd party claim against employee, in the current action, or a later action ii. Expanded by Dole v Dow, which allowed comparative negligence 1. Allowed you to implead previously unnamed parties for contribution Independent contractor not covered by vicarious liability i. Independent contractor is hinged on the level of supervision / oversight

21. Strict Liability a. 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 harm 2. likelihood harm will be great 3. Inability to eliminate risk via care (IE should it be a neg case) 4. Activity not common 5. Location inappropriate 6. Value to community outweighed by danger ii. If you prove strict liability, you still need to prove proximate cause d. Strict liability decided as a matter of law, not fact 22. Product Liability a. 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 law

c. d.

e.

f.

g. h. i.

i. when manufacturer places product into on market with a defect that causes injury, they can be held liable Codling v. Paglia Establishes Strict Products Liability in NY Strict liability exists when i. The product was utilized for its intended purpose ii. Defect was not discoverable by reasonable care iii. Injury was not preventable by reasonable care Types of product liability i. Manufacturer not constructed as designed 1. Dont need to prove negligence ii. Failure to warn 1. Sometimes, the warning devices itself may serve as a warning 2. iii. Design defect 1. If you modify a product, youre not allowed to file a design defect SPL claim a. But failure to warn may still be an option SPL factors i. Utility (to public and to specific individual) ii. Likelihood of injury iii. Safer design or substitute available? iv. Redesign-able at a reasonable price v. Ability of to have avoided injury by due care vi. Awareness of of danger (generally, or by specific warning) vii. Ability of manufacturer to spread loss Have to prove proximate cause Must have physical loss for SPL i. If not Limited to warrantee claim No SPL for ideas i. Ex Read a book and commit suicide because of it NO SPL

23. Product Liability defenses a. Comparative negligence of i. Can reduce recovery 1. Jury decides ii. CPLR 1411 iii. 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 defense i. Liability only occurs if the use was foreseeable ii. Ex Using a tractor as a boat d. Compliance with state / federal regulations and requirements i. Not a complete defense ii. Serves as evidence

e. Health professionals are not responsible for defective products i. Surgeon not liable for defective pacemaker 1. He didnt make it, just implanted it 24. Nuisance a. Definition A legal action to redress harms arising from the use of one's property i. Unreasonable interference with use of ones land ii. 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 future 2. Damages are filed against the property, reducing its value, so the next owner cannot file another suit c. 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 unreasonable ii. Contributory negligence is NOT a defense 1. But can show that is contributory negligent reduce/eliminate damages iii. Abnormally dangerous activity 1. 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. Misrepresentation a. Definition An assertion or manifestation by words or conduct that is not in accord with the facts i. Words are not required; actions can serve as fraud b. No liability for bare non-disclosure i. Ex House sold with termite infestation 1. Caveat Emptor ii. What court allows now 1. Courts allow recession 2. Liable for non-disclosure if a fiduciary duty a. Ex doc/patient, lawyer/client, etc 3. Liable when certain K create a confidential relationship 4. Large disparity of knowledge c. False representation i. Affirmative concealment Satisfies requirement 1. Ex Seller purposefully tried to hide a defect

ii. Failure to inform 1. False representation of a material fact (false pretenses) 2. Intent to deceive or reckless informing 3. Justifiable reliance upon representation 4. Pecuniary damages 5. Privity not strictly required, as long as there is a relationship tantamount to privity iii. Reliance upon statements must be justifiable iv. Reliance must be of a reasonable person v. Misstatement of law is not actionable d. Fraud i. Requirements 1. intent to deceive 2. knowledge of intent 3. No privity needed 4. 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: 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: 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 estoppel e. Negligent misrepresentation i. Mistaken statements can qualify 1. Statement is material and false 2. Honest mistake 3. No need for intent a. Reliance relationship ii. Same requirements as negligence needed to prove this iii. Requires privity iv. Evidence preponderance of the evidence (51%) 26. Defamation: Privileges a. Defamation, Generally i. Defamation rule pg 872 note 6 1. Defamatory words 2. Publication 3. Extrinsic facts 4. Formal allegation of defamation 5. Special Damages ii. Blanket statements are not defamatory unless it can be specified 1. Think case with authors against models and employees of a store

iii. Defamation survives a dead person for damages 1. Damages reputation up until death 2. SOL 1 year Be prompt! iv. Defamation by radio Libel per se v. Slander must show special harm 1. Humiliation, resentment, damage to reputation, etc. 2. If its an injury, it can only be an actual injury a. Ex injury as in sickness, not injury to reputation vi. In order for defamation to be published, it must be known or understood by a third person vii. Private person sue media over defamation in newsworthy events, State may define liability for damages 1. 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 Sullivan i. General definition injury towards reputation 1. Obliquely / indirect 2. Divided into libel and slander a. Libel Written i. 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 serious 3. Must plead and prove special damages a. Pecuniary loss due to reputation ii. Libel on its face (Libel per se) 1. Joe Smith is a crook 2. More serious b. Slander Spoken i. Slander (Mere Slander) 1. Must plead and prove special damages ii. Slander per se 1. Unchasity to a woman, Loathsome disease, damage to business or profession 2. So outrageous we can presume damages 3. Treated differently due to seriousness of length of time ii. Six elements of a cause of action 1. Defamatory statement of fact 2. Regarding the plaintiff 3. Published to a third party by defendant 4. Falsity 5. Some degree of fault 6. 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 requirements a. If plaintiff can prove that allegations are false b. Plaintiff must also show fault actual/constitution malice i. Distinguish from benevolent ill will ii. The defendant knew it was false and published it anyways iii. Clear and convincing evidence to prove ii. Expanded from public official to public figures 1. People who look to forums to debate issues (celebrities to activist) 2. Similar requirements as public official iii. Private person 1. Shouldnt 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 factors i. Specific statement used ii. Verification for statement iii. Full context of communication iv. Broader social context v. NY gives greater protection to the defendant e. Qualified privilege given when it is in the best interest of society i. HYPO Head of DEP gave false statements about air after 9/11 1. Protected Qualified privilege ii. It is defeated when there is common law malice 27. Defamation Privacy a. NY refuses to recognize the right of privacy as a tort b. 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. Misappropriation ii. Misdemeanor crime c. Section 51 of civil rights law Action for injunction and for damages i. Provides for relief d. Common law right of privacy in NY i. intrusion ii. false light iii. private facts public disclosure iv. appropriation or likeness e. Newsworthy defense doesnt count if is put in false light / facts arent accurate