2. 파란색글씨부분은 NY Distinction입니다. Essay를 쓰는데, 도움이 될 수 있을 것입니다.
2011년 8월 30일 화요일
샘플 Torts Outline for NY Bar Exam
1. 이하의 Torts Outline은 제가 작성한 것이 아닙니다. 인터넷상에 떠도는 BarBri outline중에 하나일 뿐입니다. 따라서, 읽는 사람에 따라서 이 아웃라인을 좋아하시는 분도 있을 수 있고, 싫어하시는 분도 있을 것입니다. 참고용일 뿐입니다. 단, 이 아웃라인을 약간 참고하면서, 설명하겠습니다.
2. 파란색글씨부분은 NY Distinction입니다. Essay를 쓰는데, 도움이 될 수 있을 것입니다.
2. 파란색글씨부분은 NY Distinction입니다. Essay를 쓰는데, 도움이 될 수 있을 것입니다.
a) Intentional Torts:
i) Two overview observations:
(1) The hypersensitivity of the P does not count in determining if P has a claim.
(a) Always analyze as if dealing with a person of average sensitivity.
(2) There are no incapacity defenses for intentional torts (even a child can commit a tort).
(1) An element of all of the intentional torts.
(2) D must have acted deliberately or on purpose with the desire to produce the forbidden result.
iii) Seven intentional torts:
(i) Harmful or offensive contact;
1. offensive – in analysis, can substitute the word “unpermitted,” bearing in mind we are speaking of a reasonably sensitive person (e.g. – tapping on shoulder would not be offensive; stroking someone’s hair would be).
(ii) with the P’s person.
1. Not limited to skin and flesh; includes anything connected to the P (purse, suitcase, dog on lease).
(i) D places P in apprehension;
1. “apprehension” – means knowledge or awareness (not fear)
2. Always analyze from the point of view of the P (thus even if gun is unloaded, still an assault).
(ii) of an immediate battery.
1. Words alone lack the necessary immediacy (thus mere words not an assault).
2. Need threatening physical conduct
a. E.g. - D displays a firearm, waives fist, etc.
3. Even where there is threatening conduct, accompanying words may neutralize the immediacy.
a. conditional words – negate threatening conduct (e.g. – “I’ve you weren’t my best friend….[while waiving a baseball bat].”
b. Words in the future tense, not an assault.
(3) False Imprisonment:
(i) Act of restraint;
1. Threats can be an act of restraint.
2. An omission can be an act of restraint if D had a previous obligation to assist P’s movement.
a. E.g. – criminal sentence for 30 days, on day 31, sheriff won’t let the criminal out; flight crew purposefully leaves a wheelchair person on plane.
3. Only counts if P knows about it or is harmed by it.
(ii) Confinement in a bounded area.
1. Keeping someone out of a place is not confinement in a bounded area.
2. An area is not bounded if there is a reasonable means of escape that P could reasonably discover.
(4) Intentional Infliction of Emotional Distress:
(a) Intent – can be satisfied by reckless behavior as well as deliberate.
(i) Outrageous behavior;
1. Mere insults (w/o any plus factors) are never outrageous.
2. Four hallmarks of outrageousness (plus factors):
a. When conduct is in public rather than private.
b. When conduct is continuous or repetitive.
c. When D is a common carrier or innkeeper.
d. When P is a member of a fragile class of persons:
i. Fragile classes: children; elderly; pregnant women
3. It is outrageous to target someone’s psychological Achilles heel.
a. Thus an act that normally would not be considered outrageous may be considered outrageous in D knew about P’s phobia in advance.
(ii) Severe emotional distress.
1. Not mildly annoyed.
(c) NY – in NY there is a separate cause of action for intentional mishandling of a corpse.
(5) Trespass to Land:
(a) intent – only need intent to get to challenged location on purpose.
(i) Act of physical invasion;
1. Two methods:
a. D can enter the property (on foot, vehicle, etc.).
b. Propelling physical objects onto the land.
2. A non-physical invasion (shining light on neighbor’s property; playing loud music) is not a trespass.
1. P’s interest in tort is not limited to surface of property, it includes the air above and soil below (out to a reasonable distance).
a. Thus throwing a ball over a neighbor’s property would be trespass, while a plane flying high overhead would not be.
(6) Trespass to Chattels and Conversion:
(a) Both remedy interference with chattels (everything you own except land and buildings).
(i) Ways to interfere:
1. damage to chattels (vandalism).
a. e.g. – slashing tires
2. depriving you of possession of chattels (theft)
(b) These two torts are private remedies for theft and vandalism.
(i) Trespass to chattels – if amount of interference with chattel is relatively slight.
(ii) Conversion - if amount of interference with chattel is extensive.
1. Conversion gets special remedy of full market value of the chattel.
2. A mistake to ownership of the property is not an excuse to conversion.
iv) Affirmative Defenses to Intentional Torts:
(1) Consent – a defense to all intentional torts
(a) Only a person with capacity can give a valid consent.
(i) E.g. – a drunk can’t say “go ahead and hit me.”
(b) Types of consent:
(i) Express consent – literally “words” allowing D to behave in the challenged fashion.
1. exception – not valid if given under circumstances of fraud or duress.
a. fraud example – one night stand; give someone an STD; consent to have sex is not the requisite consent to acquire an STD.
(ii) implied consent:
1. Can come into play through custom and usage.
a. If P goes into a place or is engaging in an activity where certain invasions are customary (playing sports; subway at rush hour), implied consent.
2. There can also be an implied consent based on P’s reasonable interpretation of P’s observable conduct (e.g. – circumstances make it appear that it was ok to try to kiss her).
a. P’s subjective mental though processes are irrelevant.
(c) Consent always has a scope, and D is liable if he exceeds that scope.
(2) The Protective Privileges:
(a) Includes three defenses:
(ii) Defense of other persons;
(iii) Defense of property.
(b) To invoke a protective privilege, D must prove two things:
(i) Proper timing;
1. A demonstration that the threat to which you are responding is in progress or imminent.
(ii) A reasonable belief that the threat is genuine.
1. Need not be accurate, just reasonable.
(c) Can only use the force necessary under the circumstances.
(i) Excessive force will subject D to tort liability.
(ii) What’s excessive? – a rule of symmetry
(iii) Deadly force – allowable to preserve human life
1. NY distinction – duty to retreat before using deadly force.
i. No duty to retreat in your own home.
ii. Police officers do not have a duty to retreat.
(d) No deadly force is allowed (spring traps, etc.) to protect personal property only.
(3) Necessity – only a defense to the property torts (trespass to land, trespass to chattels; conversion).
(a) Public necessity – exists when D invades P’s property (land, building or chattels) in an emergency to protect the community as a whole or a significant group of people.
(i) D has absolute defense – no liability.
(b) Private necessity – arises when D interferes with P’s property in an emergency to protect an interest of his own.
(i) A limited defense: 3 consequences
1. Private necessity D has to pay for actual damage caused.
a. e.g. - D has to make emergency landing; lands in P’s corn field; destroys corn; D must pay for corn.
2. D never pays nominal or punitive damages.
a. e.g. - D goes hiking; chased by bear on P’s property; D hides in shed; P sues for trespass (no actual damages; P won’t get nominal or punitive damages).
3. So long as emergency continues, P property owner may not throw D off his land (during emergency D has a right of sanctuary).
a. e.g. – same as above except bear waits outside shed for D; if P forces D to leave and D is injured by bear, P must pay damages to D.
b) Tort of Defamation:
i) Three elements (traditional common law definition):
(1) D made a defamatory statement specifically identifying the P.
(a) Can be written or oral; formal or informal.
(b) Defamatory – if adversely effects the P’s reputation (causes others to think less highly of P re: good traits).
(i) A mere name calling declaration is generally not defamation.
(ii) Need an alleged statement of fact (e.g. – X embezzled $).
(iii) Opinions can be defamatory (depends on the context, tone and purpose).
(c) Can only defame a living person.
(a) Requires that statement be made to one person other than P (can’t hurt reputation by saying only to P).
(3) Damages (maybe):
(a) Libel (damages are presumed) – any situation where defamation is permanent.
(b) Slander per se (damages are presumed) – a spoken statement that falls into one of four itemized categories
(i) A statement concerning P’s business or profession.
(ii) A statement accusing the P of a serious crime.
(iii) A statement imputing unchastity to a woman.
(iv) A statement by the D that the P suffers from a loathsome disease.
1. Two loathsome diseases:
b. Venereal Disease (VD);
(v) NY – imputation of homosexuality is also slander per se.
(4) Any party suing for slander not per se, is the only defamation P that must show damages.
(a) Mental distress or social injury is not enough to get to the jury.
(b) NY – Rules for Damage
(i) Look at damages rule in outline.
ii) Affirmative Defenses:
(2) Truth – by demonstrating that the words spoken or written are factually accurate.
(a) Absolute privileges (2):
(i) Exists for communications between married persons – there is an absolute privilege for spouses to communicate (thus can never commit slander by saying something about a third-party to your spouse);
(ii) Given to officers of all 3 branched of gov’t engaged in their official duty – with regard to the judiciary, includes lawyers; things said in court cannot be the basis of a defamation claim.
(b) Qualified privilege:
(i) Arises when we have a socially valuable occasion for speech (letter of recommendation, credit report is issued; other occasions where we want to encourage candor).
(ii) Can’t be liable for defamation:
1. if limit yourself to relevant material, and
2. you speak in good faith.
c) First Amendment Defamation (a separate tort):
i) Two word test – public concern
(1) If the subject matter at issue deals with something of public concern, the only available cause of action is first amendment defamation.
(1) Three above + two extra elements:
(a) P must prove falsity;
(b) P must prove fault (relates to D awareness or mental state concerning the falsity).
(i) if P is a public figure - P must demonstrate that D knew or was reckless with regard to the truth
(ii) if P is a private figure - sufficient to show that P was negligent.
1. Can be a private figure re: a matter of public concern.
d) Privacy Torts:
i) Appropriation – the use of P’s name or picture for commercial purposes
(1) E.g. – put Tiger Woods picture on cereal box w/o his permission (TW can get injunction and damages).
(2) Newsworthy exception – Sports Illustrated, etc. can put TW on cover with TW’s permission
(3) NY – this is the only privacy tort that exists in NY.
ii) Intrusion - the invasion of the P’s seclusion by means objectionable to an average person.
(1) E.g. – wiretapping, secret video surveillance, eavesdropping, peeping
(2) P will only prevail if in a secluded place.
(3) Can commit intrusion w/o trespassing (e.g. - peering through a telescope).
iii) False light – consists of the widespread dissemination of a major misrepresentation about the P that would be objectionable to the average person.
(1) Widespread dissemination requirement distinguishing this from the publication requirement of defamation.
(2) The representation can be defamatory or non-defamatory.
(a) Example of defamatory – “P is embezzling money.”
(b) Example of non-defamatory – “P is a devout Catholic,” when in reality P is a practicing Jew.
(i) Same for mischaracterization of political beliefs.
(3) An honest mistake is no defense.
iv) Disclosure – the widespread dissemination of confidential information about the P that would be objectionable to the average person..
(1) Unlike defamation and false light, this information is truthful.
(2) E.g. – someone discloses your academic record, accounting records, medical information.
(3) Newsworthy exception – applies here as well (e.g. – ok to publish Dick Chaney’s medical records)
(4) Dual life fact pattern –when P operates in two spheres, both public, but tries to keep them separate; no liability for spreading information from one sphere to the other.
(a) E.g. – P is gay, he is out to his friends and in gay community, but not out at work; co-worker discovers that P is gay, tells everyone at work.
v) Affirmative defenses:
(a) Defense to all four privacy torts.
(2) Privileges (see above).
(a) Defenses to false light and disclosure.
e) Economic Torts:
(1) Five elements:
(a) D makes an affirmative misstatement in connection with a commercial transaction (silence can’t be fraud).
(b) scienter (intent) - D must know that statement is false;
(c) D must intend to induce reliance (statement must be important to the transaction).
(d) justifiable reliance - P must use the information as a component in the decision-making process.
(i) It is justifiable to rely on the D’s opinion if D has superior info or knowledge re: the subject matter of the statement.
ii) Intentional Infliction of Pecuniary Harm (prima facie tort):
(1) Deliberately economically harming someone in a way that doesn’t fall into any other tort category.
(a) Intent to do economic harm;
(b) Resulting harm.
(3) E.g. – deliberately selling products below cost to put a commercial rival out of business.
iii) Inducing a breach of contract:
(1) D interferes with contract between two other people.
(2) Four elements:
(a) There must be a valid contract not terminable at will.
(b) D must have knowledge of the contract.
(c) D must then persuade a party to abandon the contract.
(d) A subsequent breach.
(a) privilege - if you stand in some kind of advisory relationship with the breaching party.
(i) Includes parents, lawyers, accountants, spiritual advisors.
iv) Theft of a trade secret:
(1) Two elements:
(a) There must be a valid trade secret.
(i) Three attributes of a valid trade secret:
1. P has some information that provides it with a business advantage.
2. Information is not generally known.
3. Owner of information must take reasonable measures to keep it a secret.
(b) D must take the secret by improper means:
(i) two alternative scenarios that constitute improper means:
1. the traitorous insider - D initially learned of the secret appropriately and with the consent of owner, but uses the information for his advantage.
2. the industrial spy – the unethical outsider who learns the secret inappropriately.
(2) Remedy – injunction
i) Four elements:
(1) To whom do you owe a duty (an obligation to take precautions)?
(a) You owe a duty to foreseeable victims.
(i) unforeseeable victims always lose negligence claims (those outside the zone of danger)
1. Two exceptions:
a. Rescuers – rescuers are always owed a duty
i. When D causes an impact on the body of the mother, the fetus will have a cause of action if born with injuries (if dies in utero – no cause of action).
ii. Medical malpractice – doctor misreads tests results and says child will be fine, but child is born with birth defects (can recover costs of caring for child, but nothing for mental anguish).
iii. If doctor botches sterilization procedure, no recovery against doctor if have child.
(2) How much of a duty do you owe?
(a) General duty in negligence cases:
(i) You must be as careful as a hypothetical reasonably prudent person acting under similar circumstances (an objective standard).
1. Even a person with a mental defect must meet the reasonably prudent person standard (even if that level may be unobtainable for that person).
a. If D has superior knowledge, the standard becomes “a reasonable prudent person with the that superior knowledge.”
i. Even a stupid person can have superior knowledge (e.g. – D knows that stop light is broken).
b. We will incorporate physical characteristics of the D if they are relevant.
i. E.g. – if D is blind, and the blindness is relevant, we will ask how a reasonably prudent blind person would have acted under the circumstances.
(b) Other standards:
(i) For children:
1. Children under four are incapable of negligence.
2. Children four and over are held to the care of a hypothetical child of similar age, experience and intelligence (very subjective – thus difficult to hold children liable for negligence).
a. Exception – when a child engages in an adult activity (operates something with a motor), held to a reasonable person standard.
(ii) For professionals:
1. Professionals provide services to the public and have special skills and training (often licensed).
a. E.g. – accountants, architects, lawyers, doctors
2. standard – professionals owe the standard of care that is given by average members of that profession practicing in similar communities (an empirical standard – a test of conformity; custom is the standard of care).
a. similar communities – big city doctors (NY, Chicago, etc.) owe a similar duty of care; rural doctors owe a similar duty of care.
b. Ps in malpractice cases generally need an expert to establish what the standard of care is.
a. In addition to above duty, a doctor has a duty to explain the risks of a medical procedure to a patient (informed consent).
i. Four exceptions:
1. If the risk is commonly known (infection).
2. If patient declines the information.
3. If patient is incompetent.
4. If disclosure would be harmful to the patient.
(iii) Duty owed by occupants of land to entrants:
1. Occupant may be but is not always the owner.
2. To determine duty, must answer two questions?
a. What is the cause of the injury?
i. Some entrants will get hurt by activities carried out on the land.
1. e.g. – entrant injured by harvesting equipment on farm.
ii. Other entrants will get hurt b/c of dangerous conditions on the land.
2. e.g. – shelf at supermarket collapses, cans fall, you are injured.
b. What is P’s legal status on the land?
i. undiscovered trespasser – no permission to come on land and occupier doesn’t know that they are there.
1. standard for activities – no duty owed
2. standard for dangerous condition – no duty owed
3. * Undiscovered trespassers always lose.
ii. discovered trespasser – includes not only trespassers that the occupant knows about, but anticipated trespassers as well.
1. Trespassers can change their status from undiscovered to discovered in the middle of a fact pattern.
2. standard for activities - reasonable prudence under similar circumstances (regular negligence standard).
3. standard for dangerous conditions – four part test
a. Only a duty if the conditional is artificial in nature (construed by humans);
b. Condition must be highly-dangerous (can cause severe injury or death);
c. Condition must be concealed fro the P-entrant; and
d. The occupier knew about the condition in advance of the injury.
e. in sum – occupier must protect discovered trespasser from known man-made deathtraps on the land.
iii. Licensee – social guests
1. standard for activities - reasonable prudence under similar circumstances (regular negligence standard).
2. standard for dangerous conditions - must protect from any condition:
a. that is hidden from the licensee; and
b. the condition is one that the occupier knew about in advance
c. in sum – occupier must protect the licensee from all known traps on the land.
iv. Public Invitees – people who enter land that in generally open to the public.
1. People that visit supermarkets, etc. (includes going to office building where need to show credentials).
2. standard for activities -reasonable prudence under similar circumstances (regular negligence standard).
3. standard for dangerous conditions – must protect from those conditions:
a. that are concealed; and
b. occupier knew about the condition in advance or should have discovered through a reasonable inspection.
c. in sum – occupier must protect invitee from all reasonably knowable traps on the land.
a. Firefighters and Police officers – can never recover for an injury that is an inherent risk of their job.
b. Child trespassers – a child trespasser injured by an artificial condition is owed a higher duty of care (regular negligence standard).
i. Would a reasonably prudent person expect that child would enter the land?
ii. If so, must take reasonable steps to protect the children (that which a reasonable person in similar circumstances would take).
c. If an occupier owes entrant a duty of care concerning a dangerous condition, there are two ways to satisfy that duty:
i. Fix the problem;
ii. Give a warning (e.g. – warning sign: “wet floor”).
(iv) For Automobile Driver’s in NY:
1. No-Fault Insurance:
a. In some accident cases, we are going to ignore ordinary negligent rules and tell people simply to look to their own insurance companies.
i. For people free from fault, this eliminates the need to meet the burden of proof (but limits recovery).
ii. People who injure themselves and are at fault still can recover under no-fault.
b. NY makes automobile insurance mandatory (liability insurance and no-fault coverage).
c. The no-fault scheme in NY only applies to personal injuries.
i. Who has claim to the no-fault insurance after an accident?
1. the owner of an insured vehicle;
2. any authorized driver of an insured vehicle;
3. any authorized passenger of an insured vehicle;
4. any pedestrian hit by the insured vehicle.
ii. Who can’t claim under no-fault?
1. drug drivers;
2. car thieves;
3. drag racers;
4. fleeing felons.
d. When can you get out of the no-fault framework?
i. If you suffer more than basic economic loss or serious injury (then can litigate).
1. basic economic loss - $50,000 over the course of a year, in summing:
a. medical expenses;
b. 80% of earning [up to $2000/month];
c. $25/day miscellaneous expenses.
2. serious injury – death; disfigurement; dismemberment; serious fracture; or permanent or total loss of a bodily organ or function.
ii. No-fault insurance recovery never includes pain or suffering (this is why people want to get out from under no fault).
e. No-fault insurance travels with you.
(v) Statutory Standard of Care:
1. P borrows a statutory requirement to provide the requisite standard of care.
a. To do so:
i. P must establish that he falls within the class of persons that the statute seeks to protect; and
ii. P must establish that the accident is in the class of harm that the statute seeks to prevent.
2. Example - P falls down elevator shaft; P finds statute that says that anyone repairing an elevator must put yellow tape on the elevator door or is subject to a $500 fine.
a. Since this meets the two-part test, the statute can be borrowed. Thus when the P sues the elevator repair company, the D is negligent per se (thus D can’t argue that he was reasonable under the circumstances).
3. Two cases when can’t you don’t borrow statute (even if two-part test is met):
a. Where compliance is more dangerous than the violation.
i. E.g. – driver’s swerves to avoid child, crosses yellow line, hits other car; statute says must stay on own side of road (don’t borrow statute - analyze under reasonable person standard).
b. Where compliance is impossible.
i. E.g. – D rolled through stop sign; statute says must stop at stop sign; D rolled through stop sign b/c he had heart attack (don’t borrow statute – analyze under reasonable person standard: did he take has warning signs, etc.).
(3) Affirmative Duties to Act – there are none
(a) E.g. - when drive, must drive as a reasonably prudent person, but you don’t have to drive.
(b) Thus you have no duty to rescue.
1. If D put the P in the peril in the first place, there is a duty to rescue.
2. If there is a pre-existing relationship between the parties.
a. What type of relationship (not exclusive list)?
i. Family member (not limited to blood relatives);
ii. Common carrier/innkeeper and customer;
iii. Land occupier and invitees
(ii) Once you have a duty to rescue, you must rescue as a reasonably prudent person (don’t have to risk own life).
(iii) If you choose to rescue (even w/o a duty), and you mess up, you could be liable (you have to rescue as a reasonably prudent person).
1. Some states have Good Samaritan statutes to prevent such liability.
2. NY – Good Samaritan statute only applies to those with professional training (doctors, nurses, and veterinarians).
(4) Negligent Infliction of Emotional Distress:
(a) D’s negligent act does not leave P with physical injuries, but leaves P mentally distressed.
(b) P can get damages if:
(i) P was in a zone of danger (P was almost injured by the negligent conduct); and
1. e.g. – almost hit by a car
(ii) there are subsequent physical manifestations of the distress.
1. e.g. – heart attack, miscarriage, rash
2. This element insures against fraud.
(c) Second theory of recovery:
(i) Bystander theory – seeks recovery for the emotion of grief (as opposed to fright above).
1. P witness an injury on a family member.
2. NY – the distressed person must also be in the zone of danger.
a. Thus can recover for own fright, and grief when family member was injured.
b. E.g. – parent is standing next to child, who is hit by a car.
(d) NY duty footnotes:
(i) Land occupiers – NY does not calibrate the duty owed based on the categories mentioned above.
1. Only must act as a reasonably prudent person under the circumstances.
2. However, in determining how a reasonably prudent person would act under the circumstances, the circumstances include what type of an entrant we are dealing with.
(ii) NY case – attempted rape; assailant tries to drag women into building; building door faulty.
1. Court – don’t owe duty to passersby to keep door in good repair.
(iii) NY case – subcontractor did not owe duty to motorist whose injuries were exacerbated by subcontractor’s negligence (he only owed a duty to perform under the contract).
(1) Breach is the point where the P points out exactly what the D did wrong.
(2) Essay tip – “Here, the D was unreasonable in that he…..”
(3) Res Ipsa Loquitor:
(a) If P can’t tell us exactly what D did wrong (can’t fill in the blank above), he must turn to the doctrine of res ipsa loquitor.
(i) P must show that the accident that occurred is of the type that does not normally occur in the absence of negligence.
(ii) P must also show that the D being sued was probably the negligent party (D must be in exclusive control).
(b) If P satisfies the two prongs, he gets to the jury.
(1) Factual causation – P must demonstrate a cause and effect linkage between the breach and the ultimate damage.
(a) “but for” test – but for the carelessness of the D, P would be free from injury today.
(i) “But for” test not used in two specific multiple D situations:
1. Multiple Ds and mingled causation – A and B go camping (separately); A fails to extinguish his campfire; B fails to extinguish his campfire; Both fires become forest fires; the combined fires destroy P’s house. P sues A and B.
a. “But for” test doesn’t work well b/c each could argue that if they put out their fire, the other fire would have still have burned down the house.
b. Instead use substantial factor test (with respect to each D, did each contribute is a substantial way?).
i. If yes, both are jointly liable.
2. Unascertainable Cause – hunting accident; one hunter shot when other two fired at the same time; it is unascertainable to know who actually shot the hunter.
a. This is problematic must can’t show that any one of the other hunters shot him by preponderance of the evidence (most likely than not).
b. Thus burden of proof is shifted (each Dmust show that it was not his bullet).
i. If neither can meet this burden, both Ds are jointly liable.
(2) Legal causation - P must show that liability is fair under the circumstances.
(a) Liability is not always fair.
(i) E.g. – J gets vasectomy, doctors botches procedure; J has baby boy; at age 7, the boy burns down the neighbor’s house; neighbor sues the doctor; it does not seem fair for that doctor to pay damages to that neighbor.
(b) Test – it is fair to make people pay for the foreseeable consequences of there carelessness.
(c) How tested?
(i) Direct cause fact pattern - D acts; P immediately suffers injury (D is almost always a legal cause – unless seems ridiculous).
(ii) Indirect cause fact pattern - D commits the breach; time passes; something else happens; then P suffers the harm.
1. Four well-settled cases where D liable):
a. Intervening medical negligence - P suffers a broken leg when D runs a red light; doctor puts on cast too tight; leg has to be amputated (D liable for the amputation).
b. Intervening negligent rescue - P suffers a broken leg when D runs a red light; rescuer negligently dislocates P’s shoulder (D is liable for both injuries).
c. Intervening reaction-protection forces - P suffers a broken leg when D runs a red light; other pedestrians stampede to get out of the way; one steps on the P (D is liable for both injuries).
d. Subsequent disease or accident - P suffers a broken leg when D runs a red light; put on crutches; P falls the next day when trying to use the crutches and breaks his arm (D is liable for both injuries).
2. Analysis when the case doesn’t fall into the four situations above:
a. Look at the breach, and ask yourself “what is it about this conduct that causes me to label the D negligent in the first place (what were you afraid of)?”
b. Then look at the what happened and see if there is a match.
(1) For Multistate:
(a) eggshell skull doctrine – a rule about the scope of recoverable damages.
(i) If the D has committed all of the other elements of a tort, that D pays for all harm suffered by the P no matter how great.
1. e.g. – you accidentally cut the P but he is a hemophiliac and dies. D has to pay for the P’s death.
(ii) This applies to all torts, not just negligence.
(a) NY has abandoned the collateral source rule (rule that says we ignore payments from other sources in calculating damages.
(b) In NY, damage award will be reduced by the money you receive from your own insurance company, etc.
vi) Equitable Remedies:
(a) Issue – when can P in a tort claim get an injunction for a tort?
(i) First must have a tort.
(ii) Once there’s a tort, P must show:
1. There is no adequate remedy at law (money would be inadequate).
a. When might money be inadequate?
i. D has no money.
ii. the harm is impossible to measure in monetary terms (good is one of a kind - D is threatening to commit conversion and destroy it).
iii. Conduct is repetitive.
2. A protectable interest in the subject-matter of the tort.
a. e.g. – someone encroaching on your land; someone threatening to reveal a trade secret; someone threats to invade your privacy.
b. This requirement has been reduced to a mere formality.
3. Injunction must be enforceable.
a. Easy with negative injunctions (preventing D from doing something)
b. Positive injunctions (forcing D to do something):
i. The more complex the conduct, the harder it will be to enforce the conduct, and the more nervous a court will be about issuing an injunction.
ii. The longer the time necessary for the task, the more nervous a court will be about issuing an injunction.
iii. Harder to enforce if the conduct is going to take place outside NY.
4. the balance of hardships tips in the P’s favor.
a. The benefit to the P outweighs the burden on the D.
(b) Defenses to injunctions:
(i) P has unclean hands.
(ii) Laches (unreasonable delay) - P has been so tardy is seeking an injunction and the D has incurred expenses such that it is no longer fair to issue an injunction.
(iii) 1st Amendment – prior restraints
(c) preliminary injunction- issued at the beginning of a trial to maintain the status quo
(i) P must show:
1. a likelihood of success on the merits;
2. he would suffer irreparable injury if the injunction is not given.
vii) Affirmative defenses to negligence:
(1) Comparative fault:
(a) P failed to exercise the proper degree of care for his own safety
(i) e.g. - P was hit by a drunk-driver but was jaywalking.
(b) Jury will have to make a comparative weighing and come up with percentage numbers that will reduce the P’s damages.
(c) This is the scheme in the majority of states.
(i) Two schemes:
1. pure comparative fault – always go strictly by numbers even if the P is more at fault than the D.
a. This is the default rule on the multistate.
b. This is the NY rule.
2. modified (partial) comparative negligence - P’s fault of more than 50% is an absolute bar on recovery.
(i) We will get one allocation of fault, but then apply the numbers to their separate damages numbers.
g) Strict Liability:
i) Injuries caused by animals:
(1) Domesticated animals – general rule is that you are not strictly liable for your dog (can be liable on a negligence theory).
(a) exception – if you have knowledge that you dog has vicious propensities, you are strictly liable.
(i) You have knowledge if your dog has bitten someone before.
(ii) Can be liable on negligence theory for the first bite.
(2) Trespassing cattle – owner of the cattle is strictly liable.
(3) Wild animals – if you keep wild animals, strict liability.
ii) Ultrahazardous Activities:
(1) Three criteria for an ultrahazardous activity:
(a) It can’t be made safe given existing technology;
(b) Exposes a severe risk of harm;
(c) The activity is uncommon in the community where it is being conducted.
(b) Dangerous chemicals or biological agents;
(c) Nuclear energy or radiation (not x-rays, etc.)
(3) A party engaged in an ultrahazardous activity is strictly liable (safety precautions are irrelevant).
iii) Tort of Nuisance:
(1) Involves inconsistent land uses (when one landowner annoys another by way he uses his property).
(2) D is liable for a nuisance if D’s activity interfere with P’s ability to use or enjoy his land to an unreasonable degree (a strict liability tort – “unreasonable” here means to an excessive degree).
iv) Product-related injuries:
(1) When a party is injured by a defective product, he likely has many claims (negligence, breach of warranty, fraud, etc.).
(a) Analyze a question based on the theory that the P sues on.
(2) Three key elements for strict liability claim:
(a) D is a merchant (someone who routinely deals in goods of that type).
(i) Casual sellers are not merchants.
(ii) Service providers are not merchants of items incidental to the service.
(iii) The commercial lessor is a merchant (e.g. – rental car company).
(iv) D need not be party with whom P dealt directly (can be asserted against people remote in the distribution chain – no requirement of privity of contract).
(b) P must show that the product is defective.
(i) 2 types of defects:
1. manufacturing defect – exists when the item that hurt the P differs from all the others that came off the same assembly line in a way that makes it more dangerous than you would expect (safety precautions are irrelevant).
2. design defect – exists when there is another way to construct the product and that hypothetical alternative design meets three tests:
a. it would be safer than the version marketed;
b. it would be cost-effective;
c. it is practical (doesn’t make the product difficult to use or defeat the purpose of the product).
d. * Product Information is also considered part of a product’s design:
1. If sell without a warning, could make design defective (if would make safer).
2. Not all warnings are equal (some are more conspicuous than others).
(c) P was making a foreseeable use of the product.
(i) A misuse may be entirely foreseeable (and thus not defeat recovery).
1. e.g. – standing on a chair to get someone off a shelf is foreseeable.
(3) Strict Liability Defenses:
(a) Comparative fault principles also apply to strict liability claims (see above).
h) Vicarious Liability:
i) Victim sues party other than tortfeasor b/c of that party’s relationship with the tortfeasor.
(a) Employer/employee – an employer is liable for the torts of the employee if they are made in the scope of employment.
(i) Scope of employment:
1. Frolic or detour distinction – minor departures (mere detours) do not take you outside of the scope of employment.
2. Intentional torts – generally an employer is not liable for the intentional torts of the employee.
a. Can come back into the scope of employment if foreseeable or designed to serve the boss’s purpose (e.g. – bouncers).
(b) Hiring party/independent contractor – general rule is no vicarious liability
(i) exception – a land occupier is vicariously liable if an independent contractor hurts an invitee.
(c) Automobile owner/authorized driver – an automobile owner is not liable for the torts of a driver.
(i) exception – if owner lends car so driver can do an errand for him.
(ii) If give keys to drunk driver, not vicariously liable, but liable for negligent entrustment.
(iii) NY distinction – the owner of the car is always vicariously liable if the driver gets in an accident (permissive use doctrine).
(iv) There is a presumption that anyone driving an owner’s car does so with the owner’s permission (owner must prove otherwise).
(d) Parents/children – parents are not liable for the torts of their children.
(i) NY – statutory liable for parents but liability amount is very low.
(ii) Be careful: leaves a gun out
(e) In NY a bar owner is liable for torts committed by a customer that is served alcohol unlawfully (not vicarious liability b/c negligent to serve).
(i) When unlawful:
1. serving minors;
2. serving intoxicated person.
i) Workers Compensation:
i) A statutory insurance scheme serving as the exclusive remedy for workers who get injured on the job.
(1) Employee does have to prove any fault, but can’t bring a tort claim against the employer.
(2) No pain and suffering or punitive damages.
(3) Who is covered?
(a) Employees, not independent contractors.
(i) Three types of employees outside worker’s comp. scheme:
1. Teachers and other non-manual laborers at non-profit organizations;
2. Part-time domestic employees or household servants;
(4) Generally can claim for any job related injury
(i) If injury is solely due to employee’s intoxication;
(ii) If employee intentionally injures himself or others;
(iii) If injury occurs in a voluntary out-of-work athletic activity
(b) Illegal Acts - will be covered if injury doing these illegal acts
(c) Horseplay – can go either way (depends on how closely-related to work)
(5) What do you get?
(a) Medical expenses;
(b) 2/3 of weekly wages
(c) if die, funeral expenses and a lump sum death benefit;
(6) Workers comp supplants claim against the boss, but employee is free to sue anybody else.
j) Joint Tortfeasors:
i) Comparative Contribution – if one joint tortfeasor pays P in full, can get percentage contribution from a joint tortfeasor based on that tortfeasor comparative fault.
(1) A vicariously liable party gets full reimbursement from the tortfeasor (indemnification).
(2) A non-manufacturer held strictly liable for a defective product can get full indemnification from the manufacturer.
k) Loss of Consortium:
i) Whenever a married person is the victim of a tort, the non-injured spouse has a separate cause of action against the tortfeasor to recover for three causes of action:
(1) Loss of services;
(2) Loss of society (my closest companion is no longer with me);
(3) Loss of sex.
2) Personal Property:
a) Finders of property:
i) Abandoned vs. lost property:
(1) Abandoned property – when owner gives up possession with intent to relinquish title and control.
(a) The finder of abandoned property becomes the owner by taking possession and having the intent to become owner.
(2) Lost property – when owner parts with possession w/o the intent to relinquish title and control.
(a) Obligations on a third party finder:
(i) If value of property < $20 – finder must make a reasonable effort to locate the owner.
1. If after one year, the finder has not located the owner, he can keep the property.
(ii) If value of property $20 or more – finder must turn the property over to the police, who must hold it for a statutory period (based on the value of the property).
1. If no one claims after the statutory period, finder can go to the police station and take possession of the property.
i) Two kinds of gifts:
(1) Inter vivos gifts:
(a) Donor must have donative intent (desire to transfer title).
(b) Must be acceptance by the donee.
(i) Silence constitutes acceptance, thus acceptance is only an issue if there is outright rejection.
(c) Valid delivery – a turning over of the actual chattel or something representative of the chattel.
(i) Four problems concerning delivery:
1. first party checks – gift not delivered until check is cashed (donor can stop payment).
2. third party checks – considered delivered when turned over (cashier’s check, can’t stop payment)
3. stock certificates – delivery consummated when certificate turned over (regardless of whether the new owner registers with the corporation).
4. agents – turning over to own agent (with instruction to deliver) is not considered delivery; turning over to agent of recipient considered delivery.
(2) Gifts Causa Mortis:
(a) Gifts made under circumstances that suggest donor was in imminent risk of death likely to occur.
(i) Not valid if donor survives.
(ii) Not valid if donee dies first (goes into donor’s estate).
i) Gives a person who has improved or enhanced the value of a chattel the right to continued possession until paid for work (e.g. – take car to get painted; painter has a lien until paid).
(1) Three elements:
(a) An outstanding debt for services performed;
(b) Debtor retains title to the property (not a gift or abandonment);
(c) Creditor has possession.
(i) If creditor returns the property, that eliminates the lien (no claim to that item, but still debtor still owes debt to creditor).
1. exception – general liens (arise when someone is responsible for a whole bunch of property – returning one does not release the lien on the rest).
i) Someone takes custody of a chattel with the notion that they will care for it for a limited period of time (can be for the benefit of the owner or the custodian – coat check; lending your car to a friend).
ii) The custodian has the responsibility to care for the property.
(1) What bailment encompasses?
(a) Thing within a thing:
(i) Safe deposit boxes – bank is custodian for anything in the box regardless whether bank is aware of its contents.
(ii) Parking lot (where leave keys) – not custodian for everything in the trunk (maybe spare tire).
(iii) Parking lot (where take keys) – not a bailment
(iv) Coat check:
1. if didn’t pay – may recover up to $200
2. if paid – may recover up to $300, but not more than actual value
a. This assumes no negligence.
b. If negligent, can get the value of the coat.
(v) Exculpatory clause:
1. general rule – a bailee may not completely exonerate himself (but can limit recovery).
2. Only valid against ordinary negligence.