TORTS

I. INTENTIONAL TORTS A. Overview Observations 1. No hyper sensitive plaintiff a. NO incapacity defenses 2. Intent = defendant understands consequences of action 3. Doctrine of transferred intent = so long as D intends to produce any forbidden consequence or IT he is liable if a different tort occurs, or if it occurs to a different victim 4. NO incapacity defenses to intentional torts (lack of capacity not a defense) B. PRIMA FACIE CASE- INTENTIONAL TORTS TO THE PERSON 1. Tort of Battery (Intent + 2 Elements) (i) Harmful or offensive contact a. Offensive = it violates a reasonable sense of personal dignity Unpermitted by ordinary person (objective standard) 1. Hypo: stroking a strangers hair (ii) With plaintiff's person - includes ANYTHING connected to plaintiff a. Battery travels through anything plaintiff touches b. Defendant need not be involved and contact need not be instantaneous 1. Hypo: poisoning a persons drink 2. Tort of Assault (Intent + 2 Elements) (i) Defendant puts plaintiff in apprehension a. Plaintiff has knowledge/awareness NOT fear i. Hypo: Unloaded gun arises when D threatens touching but cant accomplish it. If P knows gun is unloaded then P has no COA for assault. If P does not know, then P wins bc it is reasonable to assume gun has bullets (ii) Of an immediate battery a. Words alone lack immediacy - must be threatening physical conduct b. Words can negate immediacy of threatening words = NO assault i. Conditional words in conditional structure ii. Words in future tense 3. Tort of False Imprisonment (Intent + 2 Elements) (i) Defendant commits an act of restraint (physical or threat or failure/omission) a. Failure or omission is enough if D owed P duty of free movement i. Hypo: disabled P left in plane by flight crew b. Plaintiff must KNOW about the confinement or be HARMED i. Hypo: Sleeping through the lock door prank (ii) Plaintiff must be confined in a bounded or closed area a. No REASONABLE means of escape that plaintiff could reasonably discover i. Hypos: secret passage; rat-infested sewer pipe; clothes in locker room toilet ii. Exam Tip: if only way out is dangerous, disgusting, hidden or humiliating, then its NOT reasonable b. Area bounded only if movement is bounded in ALL directions i. Exam Tip: Barricade Q D blocks P route of travel in 1 direction c. NY Affirmative defense = shop keeper privilege (stores, libraries, etc) i. merchant can detain suspected shoplifter w/o liability for false imprisonment if there is reasonable suspicion, a reasonable method of detention, and you do it for a reasonable time 4. Tort of Intentional Infliction of Mental or Emotional Distress (Intent or

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recklessness + 2 Elements) (i) Defendant must engage in an outrageous conduct a. Exceeds all bounds of decency tolerated in a civilized society i. Mere insults not outrageous ii. If exercising 1st amend rights, then not outrageous (or if outrageous, then you have a defense) b. Verbal insults must have plus factor i.e. hallmarks of outrageousness: i. Conduct is CONTINUOUS or REPETITIVE ii. Common carrier (airline) and inn keeper = duty of extreme courtesy must be deliberate or reckless iii. Plaintiff is in fragile class (children, elderly, pregnant women) a) Hypersensitive plaintiff = defendant must know about fear i. Hypo: Snake on co-workers chair iv. Hate speech will include abuse of power to be outrageous (cop) (ii) Plaintiff suffers severe emotional distress = no need for medication or doctor a. Being mildly annoyed is insufficient b. No evidentiary proof needed NY Distinction: Additional cause of action = intentional mishandling of a corpse C. INTENTIONAL TORTS TO PROPERTY 1. Tort of Trespass to Land (Intent + 2 Elements) (i) D commits act of physical invasion - two methods a. Defendant enters land physically by car, horse, foot, motorboat; OR i. D does not need to know that he has crossed boundary line b. Defendant enters the land by propelling (throwing) physical objects onto Ps land i. Hypo: Throwing stones onto land or spraying water ii. Hypo: Kid 1 pushes Kid 2 onto land = Kid 1 committed trespass iii. NO invasion by propelling intangible forces (ii) P must be possessor of land a. COA belongs to possessor, not owner b. Land surface but also air above and soil below to a reasonable distance i. Commercial airspace is public space, but 4 feet over plaintiffs yard is an invasion 2. Tort of Trespass to Chattels and Tort of Conversion (i) Both torts involve intentional invasion of personal property a. Everything except land and buildings (ii) TWO forms of interference with one's chattel a. Defendant can damage the chattel (vandalism) b. Defendant can deprive the owner of possession (theft or significant damage) (iii) EITHER form of interference is going to be addressed by these 2 torts (iv) The difference between the torts is the SCOPE of harm / injury, the extent a. If the amount of damage is small = trespass to chattels b. If the amount of interference is extensive = conversion (v) The reason we have 2 torts is the different remedy under conversion

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a. Remedy for conversion is full market value of the chattel involved i. Conversion operates as a "forced sale" ii. Hypo: You break it, you bought it NY Case: Theft of electronic records is conversion NY Distinction: A Bona Fide Purchaser of stolen goods is not a converter D. DEFENSES TO INTENTIONAL TORTS 1. Consent defense to all 7 intentional torts (i) Whether P had Capacity a. Children have capacity for age-appropriate behavior (ii) Is consent expressly given? a. Giving D permission to behave in challenged fashion b. Exception: express consent inoperative if obtained through fraud or duress i. Hypo: concealed STD negates consent (iii) Is consent implied? a. Implied by routine invasions/customary practice i. Hypo: being shoved during sports b. Implied by Ds reasonable interpretation of Ps objective conduct (body language) i. Ps unexpressed mental thoughts not part of analysis (iv) Scope of Consent - Did the D exceed scope of consent? If yes then D loses defense and is liable 2. Protective Privileges - Self-defense, Defense of Others, and Defense of Property for privilege to be available, must establish: (i) D must be responding to Imminent Threat NO already committed torts, or future ones (ii) Reasonable belief threat is genuine reasonable mistake is permissible (iii) Amount of force must be limited to that necessary (proportionality) a. Where deathly threat or reasonable belief of deathly threat may respond w/ deadly force b. NY Distinction: Retreat required before using deadly force unless actor (i) cannot do so safely, (ii) is in own home, or (iii) is a police officer. c. NO deadly force when defense of personal property 3. Necessity Defense ONLY for property torts (trespass land, chattel, & conversion) (i) Public Necessity Savior of city a. D invades Ps property in emergency to protect community as a whole or a designated group of people; absolute defense - no liability (ii) Private Necessity a. D invades Ps private property to defend self-interest (body or property); liable for actual/compensatory damages to Ps property b. No liability for nominal/punitive damages c. As long as emergency continues, D cannot be expelled/ejected from Ps property (sanctuary) i. Hypo: Hiker in blizzard who takes cover in Ps property. If P ejects hiker, then P liable for battery d. No liability if D acts to protect Ps property

II. NY PERSONAL PROPERTY RULES barely tested

A. Finders of Property - DISTINGUISH b/w abandoned and lost property

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1. Abandoned Property (physical act + mental state) (i) Owner relinquishes possession, with (ii) Intent to give up title & control 2. Lost Property (i) Owner accidentally gives up possession w/o intent to relinquish title & control (ii) True owner has superior title 3. Rights of Finders: (i) If value under $20 must make reasonable effort to locate owner; after 1 yr. finder keeps property (ii) If value is of $20 or more must return property w/in 10 days or deposit it w/ police; amt of time property held by police before releasing to finder will vary depending on its value a. Engagement Ring held 3yrs in NY (items over $5,000) B. Gifts ASKS whether donor may recover gift or if its final & irrevocable 1. Inter Vivos Gift - during life of donor - (3 elements) (i) Donative INTENT- Donor has to intend to part with title (ii) Valid ACCEPTANCE by donee a. Silence ok only affirmative rejection will negate (iii) Valid DELIVERY - transfer of possession of item (or something representative) a. Checks a. 1st party check (pay to the order of donee) delivery is not complete until check is cashed b. 3rd party check (pay to the order of donor indorsed to donee) delivery complete by handing it to donee b. Stock certificates delivery complete when physically handed over c. Gifts Through Agent a. If agent is donors delivery not complete until received by donee b. If agent is donees delivery complete when agent receives item d. Gifts in contemplation of marriage must be returned if marriage does not occur 2. Gifts Causa Mortis - gift in contemplation of death (i) Imminent risk of death to donor, likely to occur (ii) Delivery and Acceptance is sufficient a. Delivery to agent does not complete gift b. Automatically revoked by donors recovery or if donee dies first C. Liens - security device to enforce pmt of debt 1. Lien requirements: (i) A debt related to performance of services (ii) Debtor retains title (iii) Creditor has possession of item in question 2. Difference b/w general and special lien (i) General Lien - right to retain all of the property as a security for a general balance due a. HYPO: storage facility (ii) Special Lien right to retain specific property to secure some particular claim or charge which has attached to the property retained

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3. Lienholders Release of PART of the property (i) If general lien, then lienholder does not release ANY PORTION of his lien (ii) If special lien, then lienholder waives his lien to the property released D. Bailments 1. Arises with voluntary transfer of possession of personal property for a limited time and limited purpose (i.e. coat check) 2. ELEMENTS (Possession + Intent) (i) Bailee must obtain actual or constructive possession (physical custody of property) coupled w/ (ii) Intent to exercise control a. Bailor cannot force possession of property upon bailee 3. Problem Situations: (i) Item within item bailee has duty to protect all property in possession. Normal things are included in bailment (i.e. gloves, spare tire) but not extraordinary things. (ii) Safe deposit box bank is bailee of all in box even if they do not know whats in it (iii) Parking lots/garages - park and lock facilities are not bailments (renting of space), unless owner surrenders keys (then its a bailment) (iv) Restaurants not liable for coats on hooks (v) Coat check regulated by NY statutes. Limits recovery to patron suing for negligence to: a. Value of coat if negligent, and a fee was charged for checking coat, and a value in excess of $200 is declared and a written receipt stating value was issued by attendant b. $300 if value in excess of $200 is declared and other conditions met but no negligence c. $200 if no fee or a value in excess of $200 not declared but written receipt is obtained 4. Bailees Duties (i) Bailee must exercise ORDINARY CARE (ii) Bailees can limit/disclaim their liability contractually so long as there is effective notice of specific amount, but cannot exculpate themselves completely. Cannot exculpate gross negligence.

III. HARM TO ECONOMIC AND DIGNITARY INTERESTS

A. DEFAMATION 1. Elements (i) D must make defamatory statement of or concerning P a. Defamatory if it tends to adversely affect Ps reputation - namecalling generally not defamatory b. Must be allegation of fact that casts aspersions on positive trait character, i.e. lack of honesty in financial matters, lack of peaceableness, lack of loyalty, lack of morality c. Must be of a living person d. Statement of opinion only defamatory when reasonable listener would assume factual basis e. Does not need to identify P by name but must sufficiently identify him. f. If the statement refers to a small group it is defamatory to the entire group. If it refers to a large group it is not defamatory to anyone.

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(ii) Published to 3rd party de minimis (iii) Damages to Ps reputation (MAYBE) a. If Libel, then P need not prove damages (get benefit of presumed damage) i. Libel is written or otherwise captured in permanent format b. If Slander Per Se, then treated as libel and P need not prove damages i. Statement relating to Ps business or profession ii. Statement has committed a crime of moral turpitude iii. Statement imputed on chastity of woman a) Single woman sexually active promiscuity not necessary iv. Statement that P suffers from loathsome disease (leprosy or VD) v. NY Distinction: Statement imputing homosexuality c. If Slander, not per se, then P must prove economic damages, i.e.: lost k, fired, lowered revenues (not enough to show social damage) d. NY Distinction on presumed damages: a libel case requires proof of damages if (i) not per se, and (ii) requires additional evidence bc not defamatory by itself 2. Matters of public concern (2 additional elements): (i) P must prove the falsity of the statement that was made (ii) P must also prove fault on the part of the defendant a. Public figure = fault is intent (knew it was false); OR recklessness (failed to investigate) b. Private figure = fault is negligence 3. Defenses (i) CONSENT (see above) (ii) TRUTH if statement factually accurate, then no liability (iii) PRIVILEGES: Absolute or Qualified a. Absolute privileges depend on who the D is i. Spousal privilege ii. Govt Officers engaged in conduct of official duties, i.e., lawyers, witnesses, judges iii. Fair Reporting immunizes media reports of public proceedings, provided you accurately report what happened b. Qualified privileges depend on when the utterance made i. When there is strong interest in encouraging candor: recommendations, references, statements made to police ii. Limitations: (i) good faith belief in accuracy of statement (did not act with malice), or (ii) statement within scope of privilege (relevant matters) Invasion of Right to Privacy: 1. Appropriation of Ps Picture/Name D uses Ps name or image for commercial purpose (i) Hypo: MLB player on cereal box without his permission (ii) Remedies: injunction and money damages (iii) Exception: newsworthiness a. Hypo: Sports Illustrated magazine writes bio on MLB player not liable (iv) P need not be a celebrity (v) Appropriation is the only privacy tort available in NY out of the three 2. Intrusion on Ps Affairs or Seclusion invasion of Ps seclusion in a way that would be highly offensive to an average person

B.

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(i) Hypo: using binoculars to peek into neighbors room (ii) P must be in location where there is a reasonable expectation of privacy (iii) No trespass to land is required (iv) Not recognized in NY 3. Publication of Facts Placing P in False Light D makes a widespread dissemination of a major falsehood about the P that would be highly offensive to an average person (i) Widespread dissemination is distinguished from defamation because in defamation it is a de minimus requirement in the publication (ii) Can be defamatory but need not be (iii) In Defamation recovery is economical, in false light, its emotional damages (iv) Hypo misrepresenting Jewish person for Catholic (v) No intent requirement, it strict liability. Good faith mistake will not preclude liability. 4. Public Disclosure of Private Facts public disclosure of private info about P (i) Must be highly offensive to reasonable person or ordinary sensibilities (ii) Not a tort in NY 5. Defenses (i) Consent (ii) Absolute and qualifying privileges are available as defenses to false light and disclosure

IV. ECONOMIC TORTS

A. Intentional Misrepresentation (FRAUD, Deceit) -Will involve a sale and there will be a trickery involved. Prima facie case: 1. D in a commercial transaction must make a misrepresentation of fact a. Silence is not enough to satisfy element (Caveat emptor) must make affirmative representation 2. Misrepresentation must be made knowingly or recklessly 3. Misrepresentation must be intended to reduce reliance (must be material) 4. Reliance buyer must take representation to make decision to go forward in transaction 5. Damages overpaying B. Prima Facie Tort in NY ONLY (also denominated as the intentional infliction of pecuniary harm without justification) 1. Open ended economic tort against someone who is acting deliberately 2. Elements: a. There must be an intent to do harm b. There must be harm 3. Used when someone has deliberately behaved in a sleazy manner but for whom no other COA exists. 4. Hypo deliberately selling products below cost to put someone out of business 5. Hypo - band that also has radio station plays their own disk to give impression theirs is more of a hit than their rivals C. Interference with Business Relations 1. Elements: a. There must be a contract in existence b/w P and a third party b. D must have knowledge of the K c. D must engage in persuasion designed to encourage P to breach the K i. Could be the offer of a better deal d. P has to breach the K 2. Privilege - Exists when there is a special relationship b/w a. Will apply to professional advisors lawyers and accountants

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D. Theft of Trade Secrets 1. P must possess a valid trade secret a. There must be information that provides a business advantage to the business owner (example: manufacturing process) b. Cannot be generally known (must be secret) c. Must be steps to keep it a secret - there must be exercise of reasonable precautions 2. D must then take the trade secret by improper means (two alternative ways) a. Traitorous insider breach of trust. Someone who learned the secret legitimately usually someone who was employed by company but then when he left used it to his advantage. There was implied confidentiality b. Industrial spy

V. NEGLIGENCE
A. Elements: must be memorized in order for essay outline 1. Duty P must prove D had duty of care 2. Breach P must prove D failed to live up to the duty that was established 3. Causation a. Factual b. Proximate 4. Damage B. Duty law commands that we all incorporate risk reducing precautions into our activities 1. To whom do we owe a duty? Foreseeable/Unforeseeable Ps a. To foreseeable victims. You do not owe a duty of care to unforeseeable victims. Unforeseeable victims always lose negligence claims in the bar exam. Where a D breaches a duty to P1 and injures a possibly unforeseeable P2, two possible outcomes: 1. Cardozo Majority Foreseeable Zone of Danger: P2 can only recover if she can establish that a reasonable person would have foreseen a risk of injury to her under circumstances, i.e. she was located in the foreseeable zone of danger. Ex: Palsgraff case (LIRR) 2. Andrews Minority Everyone is foreseeable: P2 may establish the existence of a duty extending from D to her by a showing that D has breached a duty owed to P1 2. Exceptions: (bar tests on exceptions as often as on the basic rule) a. Rescuers: coming to aid of primary and rescuer is injured, the rescuer is not barred bc of distance. (exception to Palsgraff principle) b. Prenatal injuries NY ONLY 1. Scenario 1: negligent impact to body of pregnant woman a. If the child is thereafter born with injuries, the child has a COA in his own name b. If the pregnancy is terminated (stillbirth), then there is no wrongful death for the child never born. 2. Scenario: Doctor misdiagnoses birth defects a. Parents can recover for cost of caring for child in addition to the ordinary costs of raising a healthy child. Cannot recover emotional distress. 3. Scenario: Doctor botches a sterilization a. No recovery

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3. Standards of Care - Basic Standard: Hypothetical reasonable prudent person under the circumstances a. Objective test no allowances for Ds individual characteristics b. Exceptions: i. Ds physical characteristics are attributed to the reasonable person a. If D is blind then the standard is a reasonable blind person ii. Superior skill or knowledge b. If D is engaged in activity in which he has superior skill or knowledge then the reasonable person is one of that skill i. HYPO: Nascar driver who skids on ice in road. Expected standards is a reasonable person with the skills of a Nascar driver c. Knowledge of an isolated fact c. Applies in every single fact pattern unless it is displaced. Arises out of operation of law. It is displaced in a wide variety of circumstances. 4. Standards in which we depart: a. Defendant is a child 1. Children under the age of 5 are incapable of negligence. They owe no duty. 2. 4 yr. olds 18 yr olds: standard is a hypothetical child of similar age, experience, and intelligence, acting under similar circumstances. Subjective standard. Every child is judged by a different standard. Hard to win if D is a child. HYPO Susie and Billy broken hand. 3. Exception: if the child is engaged in an adult activity then the standard of care is the basic one (see above). In the bar it means, operating a vehicle with an engine. Tractors, snowmobile, motorboat. b. D is a professional service provider 1. On bar it will be healthcare providers. But could be accountant, architect, and lawyer. (Medical malpractice questions*) 2. Standards: Care of an average member of that profession practicing in a similar community. (swaps word reasonable for average member = compare D to his colleagues)expert witness needed 3. Alludes to similar practitioners in their community. This ensures small time practitioners are compared to small town practitioners. 4. Generally specialists are compared to other specialists in the field without regard to locality 5. Informed consent NY only a. Doctors duty includes explaining risks of a procedure. If doctor fails to, and the risk materializes, patient will have coa. b. Exceptions: i. No need to disclose a commonly known risk. (like infections) ii. You dont have to make disclosure if patient declines the info iii. You dont have to disclose if patient is mentally incompetent iv. Dr. does not have to disclose if the disclosure would be medically harmful. (if disclosure would lead to patient not wanting procedure)

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c. Duty of Possessors of Land (Premises Liability) ***heavily tested*** 1. How did the Plaintiff/victim/entrant get hurt? a. P may have gotten hurt by an activity being carried out by the D or the Ds agents on the land. HYPO: spilling coffee on guest b. P may have been hurt by a hazardous static condition. HYPO: dinner party and chandelier unhinges and falls on head. 2. What type of entrance? a. Undiscovered trespasser NO duty owed. Undiscovered trespasser will always lose a premises liability case. b. Discovered trespasser someone who comes into land without permission but owner knows they are there. Duty of reasonable care. This category includes anticipated trespassers. Generally, you should anticipate trespassers when there has been a pattern of trespassing, like when people use your land as a shortcut. i. Only when these 4 part test are triggered may the trespasser recover 1. Condition must be artificial in nature a. Generally a natural condition happens outside 2. Condition must be highly dangerous a. No duty to protect discovered trespasser if 3. Condition must be concealed from trespasser a. No duty to protect from an obvious and apparent condition 4. The land possessor must have prior knowledge ii. Condensed: Possessor owes discovered a duty only to protect from known, manmade, death traps on the land 3. Licensees enter with permission but no purpose of commercial gain to landowners (house guests, friends, solicitors) a. Standard: basic. Possessors owe licensees reasonable prudence b. Triggered when two part test: i. Concealed condition ii. Known to defendant c. Possessor must protect licensee from all known death traps 4. Invitees enter to confer economic benefit to landowner, or they enter land open to the public generally (customers) a. Standard: basic b. Dangerous condition: 2 part test i. Must be concealed hazard from invitee ii. Condition must be one possessor knew about in advance or could have discovered through reasonable inspection

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c. Not the duty of an insurer and does not implicate strict liability d. Condensed: possessor must protect invitee from all reasonable knowable traps on the land. Winds up being a fight over thoroughness of inspection. * we covered 8 scenarios: 4 x 2 5. NY has abolished the approach above. It says that in all entrances, regardless of how they get hurt, the lawsuits are predicated on reasonable prudence under the circumstances. When the authorized visitor and when the trespasser get hurt they both litigate under the same standard of care. Both are going to demand D behave as a reasonably prudent person under the circumstances. If you get essay on premises liability, you should state that NY has abolished the traditional approach and applies a standard of reasonable prudence under the circumstances, but then in the breach analysis you should state when entrant came (day v. night), whether he was allowed to stay there, what type of entrant he was (circumstances). Footnotes: a. Firefighters rule: generally, a police officer or firefighter cannot recover in negligence for any risk that is an inherent risk of the job. b. Child trespassers injured by artificial conditions on land are treated more generously than adult. They can demand the standard of care to be reasonable prudence under the circumstances. i. How likely is it that kids will trespass? If its likely then you need extra precautions ii. Whether there is something on land that will lure kids to come in attractive nuisance doctrine (has nothing to do w nuisance). Under a reasonably prudence analysis, if there is something that will lure kids in, we expect the owner to take extra precautions. iii. Whenever a land possessor owes a duty to an adult entering involving a condition on the land there are two ways to satisfy duty and avoid liability: 1. You can fix the problem 2. To give a warning satisfies duty. You dont need to fix bridge, just put a warning. You dont need to fix carpet, just tell you guest. Look for answer choices that include this. WARNINGS SATISFY DUTIES. 6. No Fault insurance designed to divert relatively small state automobile accidents from the negligent system. a. Need to know: i. when can a party collect no fault proceeds ii. when can I still sue in court b. In NY need to buy 50K of no fault coverage i. Only covers personal injury but not property damage (if you want to cover property you need collision insurance)

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ii. Who is covered by no-fault insurance? Owner, Driver, Passenger, Pedestrians hit by car iii. Bc its no fault they can recover whether it was a 1 or 2 car accident and whether driver was negligent or not. 1. Exclusions (cannot recover) a. Drunk drivers b. Drag racers c. Car thieves d. Other fleeing felons iv. Regardless of whose fault it is, passengers look at drivers policy. v. When can you go to court? P must demonstrate that his injuries exceed the statutory threshold. (essay) He must plead pass the threshold (jargon). In NY two alternative thresholds: 1. Open ended threshold: you exceed it if you show serious injury: if you have suffered death, dismemberment, significant disfigurement, serious fracture, or permanent or total loss of a bodily organ or bodily function, 2. Mathematical/technical: show that you have damages that exceed basic economic costs: essentially the sum of 3 numbers: numbers must add to more than 50k. if its lelss you can only pursue no faul t insurance benefits a. (1) medical expenses b. (2) lost income up to a max of $2k a month: $24k a year c. (3) miscellaneous expenses $25/day vi. No fault recovery never includes pain and suffering vii. No fault is essentially portable. If you have a NY state policy and you have an accident in another state, you can still pursue the NY policy. d. Special Duty: Statutory Standards of Care 1. In this scenario a P getting ready for negligence trial, discovers a statute that appears to regulate behavior of D that led to accident but the prob is that on its face statute is not about tort liability (it will be about criminal for example). While the statute addresses facts of his case its not legally relevant. P asks judge to use the language of statute as the duty standard in the particular case. Negligence per se. Judge will do if P makes 2 part showing: (Class of Persons/Class of Risk Test) a. D must be involved in class of persons statute seeks to protect b. Injury is in the class of risks that the statute seeks to prevent *when P shows this, the statute becomes standard of care (borrowed) 2. Exceptions

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a. Compliance more dangerous than violation - do not use the statute even if the 2 part test was met b. If compliance with the statute was impossible do not statute even when 2 part test met 5. Duties to Act Affirmatively there are none. In negligence your duty of care never acts as a duty to act affirmatively. It is only when you voluntarily undertake an activity that duties spring up. a. No duty to rescue a stranger in peril 1. Exam tip: Q will be mean spirited (D will be evil) 2. Hypo: Phelps sees little girl drowning. NOT LIABLE. 3. Exception: a. preexisting relationship b/w D and person in peril recognized and established relationship in law such as property owner and invitee, family relationship (must rescue sister) b. When D put P in jeopardy. Could be due to Ds negligence or non-negligent behavior 4. If D decides to rescue, then he must do so as a reasonably prudent person and if he screws up he will be liable for his mistake a. Some states have passed Good Samaritan laws not on multistate. b. In NY, a licensed health prof who voluntarily and gratuitously renders emergency treatment at the scene of an accident is subject to liability ONLY for gross negligence. NY Good Samaritan law only applies to (i) nurses, (ii) physicians, and (iii) veterinarians. 6. Duties Regarding Negligent Infliction of Emotional Distress quasi tort a. To what degree does your careless behavior lead to diability b. Three scenarios in which P is likely to succeed in claim. However you must first have a D who breached another standard of care (i.e., D did not behave as reasonable person, or violated statute, etc.): 1. The near miss case: D will be liable for negligent IED if his negligent conduct put P in zone of physical danger and the P was distressed by that and the distress produced subsequent physical manifestations 2. By stander claim: in a bystander claim P will be suing for grief. Requirements: P must be a (i) contemporaneous witness (ii) to a negligent bodily injury (iii) inflicted on a close family member. a. Hypo: Drunk driver runs over and kills Ps son in front of P b. NY requires that in bystander case, the P who is distressed must be in the zone of danger i. Hypo: If P is safely on balcony when son gets run over, then no claim ii. NY strict that family is parent, spouse, or child. Aunt who raised kid not family member 3. Preexisting relationship b/w P and D and where a negligent act can foreseeably cause distress C. Breach of Duty (fact + advocacy) 1. REASONABLE PRUDENCE a. Identify the wrongful behavior: go back to facts of pattern pluck out info and transcribe in answer

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b. You must give a reason as to why the identified fact falls short of the standard of care 2. Violation of statute a. Establish by proof that D violated an applicable statute (negligence per se). Causation and damages still need to be established. 3. Res Ipsa Loquitor when you cant identify what P did wrong (2 elements) a. P must show accident is one normally associated w/ negligence probability 1. Evidence that rules non negligent explanation b. P must show accident normally due to negligence of someone in Ds possession 1. Show D had control of object c. Consequence of establishing Res Ipsa Loquitor: case goes to jury. Its up to the jury. Res ipsa does not guarantee a P verdict, only jury consideration. Its a substitute for evidence of a breach. D. Causation 1. Factual cause demonstration of P b/w breach and the ultimate injury suffered a. But For Test but for breach the injury would not have occurred 1. does not work when multiple defendants b. multiple Ds and merged causes 1. substantial factor test aska whether each breach standing alone was capable of causing injury. If so, then it is treated as a substantial factor, subjecting D to liability. If both Ds breaches are substantial factors, you hold both of them jointly and severally liable a. Hypo: 2 different campfires merge and cause forest fire that burn Ps house 2. Unascertainable cause case a. Hypo: quail hunting accident with Larry, Curly and Moe. Moe shot in eye. 50% it was Larry, 50% it was Curly. b. In this case, it shifts burden to D to exonerate themselves if they cant, both are jointly and severally liable 2. Proximate cause a. Must convince fact finder liability would be fair b. Scope of foreseeable risk - liable for harmful results that are normal incidents and w/in increased risk caused by Ds acts 1. Direct cause problems lead instantaneously to injury a. Things that occur in direct cause fact pattern are foreseeable and therefore liability is fair and you should call D a proximate cause b. Not true only when outcome is freakish and bizarre. Therefore unforeseeable = freakish and bizarre i. Dynamite car hypo freakish and bizarre 2. Indirect cause case: D commits breach but a additional events occur in between the breach and the harm to the P. well settled indirect cause patterns: (in all we think outcome is foreseeable and P wins) a. Intervening medical negligence/malpractice: D runs red light and hits pedestrian breaking leg. Pedestrian taken to hospital. Incompetent puts on cast too tight. Develops gangrene, leg amputated. Is driver liable only for broken leg or amputated leg? Answer: for the amputated leg. Courts have reasoned that when hitting pedestrian, pedestrian will seek medical

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help, and it is foreseeable that some doctors will make mistakes. Thus it is foreseeable so the driver is the proximate cause. Footnot: In this hypo the doctor is still liable for malpractice. Intervening negligent rescue: D runs red light hits pedestrian breaks leg. Good Samaritan drags pedestrian to sidewalk, dislocating shoulder. Is driver liable for leg or leg and shoulder? Both. Consistently reason that when you hurt someone, rescuers will be brought in occasionally making things worse. Foreseeable. Driver is proximate cause. Intervening rxn or protection forces: D runs red light, enters intersection crwded by pedestrians, hits one and leaves. Pedestrians stampede in panic, stampeding over pedestrians face. Driver liable for face too. Subsequent disease or accident: Pedestrian taken to hospital, given crutches. Next day, pedestrian falls bc of crutches. Driver liable for broken arm. It is foreseeable that when left in a weakened state, other injuries may occur. Analysis of proximate cause in different fact pattern: dirty method i. Look at breach. What am I worried will happen? ii. Look at what happened to P. If its a match, then its foreseeable. Not a match, then unforeseeable.\ 1. Hypo: slipping on vomit bc of bad shrimp

b.

c.

d.

e.

E. Damages 1. Eggshell skull rule if a D has committed all the elements, then the D is liable for all damages suffered no matter how great in scope. You take your P as you find him. If he is extra frail, too bad, your problem. a. Not limited to law of negligence it is a valid rule for every tort considered

VI. Equitable Remedies In Tort Litigation when P does not want money he wants injunction A. Distinguish b/w negative and mandatory injunction
1. Negative injunction: command to D to refrain from conduct 2. Mandatory injunction: requires an undertaking B. Distinguish b/w permanent and preliminary injunction 1. Permanent entered at conclusion of full trial on the merits as part of final relief of lawsuit i. You cant get injunction unless you establish a tort. You need to establish liability. Having established the tort P must show 4 part additional showing: 1. No adequate remedy at law (at law means money) a. If D has no money, impecunious, insolvent b. The harm is impossible to measure in monetary terms c. The conduct is ongoing, repetitive, making it onerous to bring repeating lawsuits 2. The tort in question impinges on property interests or protectable right a. Largely a formality. Free square in bingo card. Always established.

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b. Recite in analysis, and say its satisfy here bc of the right (i.e., the right not to be subject to fraud) 3. Injunction is enforceable a. Negative injunction is easy to enforce b. Mandatory injunction is makes courts nervous 4. An injunction will only issue if a balance of hardships tips in favor of P must show the benefit to him outweighs the harm the D would suffer ii. When P has established all 4 things the P has showed entitlement to injunction but D can interpose certain defenses that can defeat injunctive relief: 1. Unclean hands when P himself is guilty of some sort of misconduct. Theory is p does not have credibility or standing to ask for injunction 2. Laches prejudicial delay. D argues that bc you didnt sue me earlier, I assumed you were cool w this and bc I assumed this, I have detrimentally changed my position a. Hypo: expanding factory. Court may give money damages but not injunction. 3. 1st amendment any case that implicates free speech, be weary. No constraint on free speech 2. Preliminary injunction entered shortly after the complaint is filed after a truncated hearing. Designed merely to preserve the status quo. Two showings in addition to the last four: i. Likely success on the merits ii. P must also show that he will suffer irreparable injury in absence of preliminary injunction

VII. Affirmative Defenses

A. Traditional Contributory Negligence 1. Abolished in all but 5 jurisdictions: DC, Virginia, Maryland, North Carolina, Alabama. MBE tests on it. Its a minority rule 2. Q will have words like: in a jurisdiction using traditional negligence defenses Word: traditional 3. Doctrine: If a P in a negligence claim has failed to exercise proper care for his own safety, that P will be barred from all recovery. (i.e. failure to exercise proper care for own safety). Failure to exercise proper care usually means failure to act as a reasonably prudent person, but in some cases it means a statutory violation such as jaywalking. i. Hypo: drunk driver hits jaywalking P in VA, no recovery for P. 4. Limiting doctrine: the last clear chance doctrine (see in book). Its exception to minority rule. Allows P to recover despite her contributory negligence. The person with the last clear chance to avoid accident who fails to do so is liable for negligence (last clear chance is Ps rebuttal to the defense of contributory negligence) B. Traditional Implied Assumption of the Risk 1. Abolished in most states (only remains in a dozen states). Not law in NY. Tested on MBE. They will say that the jurisdiction uses traditional defenses 2. Conduct (not words) by P from which we infer the following message: thats okay, Ill take my chances. If P has manifested this, its an absolute bar to recovery 3. Key things:

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i. P had knowledge and appreciation of the risk (aware that you are interacting w negligent party and understand the implications to your safety) ii. P must take on the risk voluntarily (cannot be in emergency situation) 1. NY: failure to waive a seatbelt can be shown by D to mitigate Ps recovery. Not a bar to recovery but will mitigate damages. C. Comparative Negligence: NY and most states 1. Assigns a different consequence to Ps failure to exercise care for own safety. Fact pattern like in contributory negligence, but consequence is different. It reduces recovery, does not bar it completely. 2. In the NY bar and MBE, absent a reference to traditional doctrine, plaintiff fault reduces recovery. The jury assigns each litigant a percentage number that reflects culpability and the Ps recovery will be reduced according to that number. No rules governing jurys assignment. 3. Pure comparative negligence: use on MBE if exam is silent. i. Strictly by percentages that jury has brought back and it means P always recovers a little of $ even if he is assigned the bulk of default. A 90% faulty P wil get 10% of damages ii. NY is a pure comparative state 4. Partial/Modified comparative negligence: a P assigned less than 50% of fault will have his damages reduced but a P assigned more than 50% of fault gets zero. VIII. Strict Liability A. Prima Facie Case 1. Nature of Ds activity imposes absolute duty to make safe 2. Dangerous aspect of the activity was the actual and proximate cause of Ps injury 3. P suffered damage to person or property B. Liability for animals 1. Domesticated animals no SL i. Exception: Strictly liable if domesticated animal has vicious propensities and owner is aware of it. Bite puts you on notice. ii. Will not apply if the victim is trespasser in owners land. Rules apply when out and about 2. Wild animals strictly liable. No exceptions. i. Exam trick is that bc dealing w SL the Ds efforts at safety are irrelevant. The Q will load up on Ds precautions to distract us. C. Abnormally Dangerous Activities (activites that meet 2 part test trigger SL) 1. Activity must create foreseeable risk of serious harm even when reasonable care is exercised 2. Activity must not be a matter of common usage in the community where D conducts it (out of context) D. Liability Caused by Consumer Products 1. Overview: i. Can invoke res ipsa loquitor ii. Can also be actionable bc of breach of implied warranty under art. 2 of UCC iii. Can also be actionable bc someone boobytrapped it (battery) iv. If call of specific question alludes to specific theory, you have to use the theory. Only use SL if they ask for it or its an essay. 1. Elements: i. D must be a merchant for SL routinely deals in goods of this type. 4 Q types: a. Casual sellers not merchants. Cannot be SL. b. Service providers not merchants of goods that are collateral

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c. Commercial lessors are merchants even though they do not part w/title. i.e., Alamo d. Merchant includes every merchant in distribution chain ii. Evidence product is defective. 2 kinds of defects either which satisfies element: a. Manufacturing defect if it differs from all others that came off the same assembly line in a way that makes it more dangerous than consumers would expect. If it departs from its intended design. Aberration 1 in a million. SL, thus safety precautions are irrelevant. b. Design defect if there exists a safer practical and cost effective way to build it. Treat info as design defect: warnings/instructions. If a product has certain risks that cannot be physically eliminated in a cost effective way of which a consumer would not be aware of, to sell a product without the risk of warning triggers SL. Not all warnings are created equal. c. If product can be physically redesigned, slapping a warning will not exonerate. iii. Product has not been altered since it left Ds hands a. Presumption: if product moved in ordinary channels of distribution it is presumed that it has not been altered. D has burden of proving it has. Presumption does not apply to used goods. iv. The P must be making a foreseeable use of the product at the time he is injured a. Bar exam trick: a foreseeable use is not limited to the uses the manufacturer intended. Many unintended uses or misuses are still foreseeable. 2. Affirmative Defense: Comparative fault i. In NY and majority of country, any P stupidity will lead to a damage reduction based on percentages IX. Workers Compensation A. Statutory insurance scheme. Provides benefits to those injured on the job but the trade off is you cant sue your boss in tort (forfeit right to litigate). Insurance scheme B. Limits: Do not recover pain and suffering or punitive damages. C. Who is covered? Virtually everyone with exception to: 1. Teachers and other non-manual laborers 2. Educational religious and non-profits, 3. Part time domestic and household employees 4.Bar trick: independent contractors are not employees and thus not covered. D. Covered injuries? 1. If injury is solely due to employee intoxication - no workers comp 2. Employee intentionally caused injury to himself no workers comp 3. Injury occurs in voluntary off duty athletic activity no workers comp 4. Illegal acts committed in scope of employment is covered 5. Minor horseplay covered, major horseplay not covered E. If covered and sustained injury, will receive: 1. 2/3 of average weekly wage 2. Out of pocket medical expenses 3. In the event of death you get a statutorily prescribed amt plus funeral expenses F. Covered employee remains free to sue 3rd party that may have contributed to injury 1. Scenario 1: injured while using industrial piece of equipment. Can sue for defective design and collect workers comp from boss 2. Scenario 2: subcontractors and general contractors subcontractor employee can recover workers comp from employer but can sue the general contractor

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X. A. B. NUISANCE Type of harm, not a tort. Interference with ability to enjoin ones own property to an unreasonable degree A D can cause a nuisance by acting deliberately, carelessly, or w/o any fault at all. 1.Intentionally 2.Negligently 3.Strict liability Courts balance the equities (the degree of interference with right to use own land with whether D would be unfairly hindered in his operations if held liable) Tort Considerations Vicarious Liability P will have a valid COA against an active tortfeasor but P wants to sue a second D (D2) who was a purely passive person bc of relationship. 4 relationships 1. Employer/employee employer vicariously liable if employee acting w/in scope of employment RESPONDEAT SUPERIOR. If employee kicks customer, its outside scope. Exceptions: i. if force is part of the security description, then abuse of force is w/in scope Hypo: bouncer hitting you is within scope ii. Job that generates tension or friction Hypo: repo man loses temper is within scope iii. Every time employee engages in intentional tort out of misguided effort to advance the employers interest there will be vicarious liability Hypo: dept store security guard who stops and searches every 3rd customer (false imprisonment) 2. Employer/Independent contractor general rule: no vicarious liability. Exception i. A land possessor will be vicariously liable if an independent contractor injures an invitee 3. Automobile owners/drivers i. General rule: no vicarious liability if you lend someone your car. Bar exception: a. If you lend someone your car to do an errand for you that triggers liability bc they are your agent and principal always liable for torts of agent b. NY Distinction: departs from general liability. Permissive use state. You are vicariously liable for anyone driving your car w your permission. There is a presumption that anyone driving your car is driving w your permission. When car stolen, its owners burden to prove csr thief did not have permission (1) Exception: rental cars, bc of federal statute. 4. Parents/Kids not liable for torts of children. In NY statutory liability for torts of children but only to modest amounts. i. Bar trick: beware of parent not being a passive party. Parent that leaves unloaded gun is not passive, thus not vicarious liability. Ask whether there is direct liability first. Special Remedies Co-defendant Remedies: When P has successfully sued multiple Ds and collected all the $ from one D, D will want to recover from the other Ds. The rule is assigned by percentages (jury assigns this). Exceptions: 1.When out of pocket party can recover 100% of the money: indemnification i. Vicariously liable party gets indemnification from the active tortfeasor ii. A non-manufacturer gets indemnification in a strict products case from manufacturer Loss of Consortium when a victim of tort is married the uninjured spouse gets a 2nd and separate COA against all available Ds

C. XI. A.

XII. A.

B.

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1. Loss of household services 2. Loss of society loss of companionship 3. Loss of sex

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