TORTS

A tort is an unreasonable conduct committed against P’s mind, body, property, privacy or reputation

Torts are done IN SIN: I – INTENTIONAL harm to a person (e.g., assault, battery, false imprisonment,

or the intentional infliction of emotional harm) N – NEGLIGENT conduct causing personal injury, wrongful death, or

prop damage S – STRICT tort liability (see the mnemonic A SWAN) I – INTENTIONAL harm to property (e.g., trespass, conversion, or the tortious

interference with a contract) N – NUISANCE

Negligence1. was there a specific duty owed to the P2. What was the scope of that duty- i.e. was it foreseeable?

a. i.e. was he in the Zone of dangerb. Consider-

i. Occupier’s liability ii. voluntary assumption of duty

iii. Duty of care – third personiv. Employer- employee duty of care

3. Did the D act like an objective RPP 4. RPP test is objective and does not account for Ds shortcomings,

unless:a. (1) D has superior knowledge = standard of care is person with

same superior knowledgeb. (2) D has a certain physical characteristic = standard of care is

person with same physical characteristic (EX: D is blind)Ds who are NOT held to RPP standard =

i. (1) childrenii. (a) children under 4 = incapable of negligence

iii. (b) children over 4 = standard of child with similar age, experience,and intelligence (subjective)

1. exception = child engaged in adult activity is held to rx prudent person standard

c. (3) professionalsi. (a) standard of average member of the profession in a

similar community; custom of profession sets standard of care

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ii. (b) Drs owe special duty to explain certain risks of medical procedure to their patients under Doctrine of Informed Consent

5. Resulted in PIa. Past and foreseeable future illnessb. Medical expensec. Loss wagesd. Pain and sufferinge. Eco loss

6. There was causation and the injury was foreseeable ( FCLIPS)

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Tort of Negligence

Definition Negligence is unreasonable conduct caused by D’s FIT

F- Failure to take reasonable precaution I- Inadvertences (oversight) T- Thoughtlessness

Negligence is (failure to take care+ foreseeability + duty of care) failure to exercise reasonable care that an ordinary reasonable person would have taken under similar

circumstances that proximately causes physical injury to P who was foreseeable threatened by D’s unreasonable act or

omission. It is an unreasonable conduct creating foreseeable risk of harm to

P, to whom D owed a duty of care.

Once a law imposes a duty on D’s conduct then the scope of D’s duty is based on foreseeability of harm to with in the zone of danger of D’s FIT conduct

Negligence draws a line of liability between remote possibility of injury and injuries that are reasonable foreseeable.

Foreseeability is defined as being reasonably anticipated i.e. an event or outcome followed D’s conduct and should have been anticipated by D

A plaintiff must prove the following elements in a successful claim for negligence: (1) D owed a duty to P as a foreseeable plaintiff; (2) D breached the duty; (3) The breach was an actual and proximate cause of the damage; (4) P was damaged.

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Elements of a negligence claim are DIP (there will be a problem with one of these in the question on the exam) D- (D owed a duty and D acted unreasonably causing harm to P as a

result of the breach + and that injury to that P (specific) was foreseeable) Duty to exercise reasonable care was owed by D to injured P and

that duty was breached- pg 31 The duty of care owed by one person to another is simply to behave

with that degree of care that a reasonably Prudent Person (RPP) would exercise in similar circumstances

The injured party must plead and prove that D owed, not merely a general duty to act reasonably, but a specific duty to a particular P

A duty of care is owed only to those who foreseeably could be injured by Ds conduct The risk reasonably to be perceived = duty to be obeyed

Required to avoid subject FIT actor to limitless liability to indeterminate class of persons.

Once a legal duty is found to exist Scope of that duty and to whom it is owed is based on

foreseeability of harm i.e. duty is owed only to those who foreseeable could be

injured due to D’s breach i.e. those with in the Zone of danger.

Ex- blast occurred- no duty for people 10 blocks away Conductor held the door open for a man Man had explosive- burst- caused glass to shatter on the

other side of the platform hitting the P P sued the railways and conductor for negligence of

holding the door opened Courts said it was not foreseeable from Conductor’s

action that glass would shatter and P would get hurt The injury was too remote from the cause of action =

no negligence. P could have sued the guy carrying explosives since it is

foreseeable that explosion would cause harm

Occupier’s liability Owner/possessor of property owes a duty to make premises safe-

occupiers liability- no duty of care outside premises. Includes providing

Minimal security Increased security if a similar crime has happened before in

that property- then must provide enhanced security like putting up fences and E-gates.

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Outdoor lighting for those coming in the night – public property Land not open to the public- a duty is owed by the

possessor who knows or should have known that someone would visit to illuminate the area if it would avoid the hazard.

Can be for a reasonable time- A landlord is not an insurer for those entering the premises, but a

L owes a duty to take minimal precautions to protect tenants and visitors from foreseeable harm.

Examples of Where No Legal Duty of Care is Owed: 1. A property owner to a passerby who is dragged by a criminal

through the front door with a broken lock, even though the owner breached its duty owed to tenants and guests visiting the building;

2. A golfer owes no duty to a motorist out on the highway and there’s no duty to warn others on a different fairway. The only duty owed is to those within the intended flight of the ball.

3. No duty is owed by a theatre to protect patrons sitting in the theatre when someone comes in late for the performance and falls onto the sitting patron;

4. Owners of buildings do not owe neighborhood businesses a duty to protect them from economic harm caused by the negligent collapse of their own building.

5. After a powerful storm, an 80 ft. tree on Blackacre leaned dangerously over the driveway of Whiteacre. The owner of Whiteacre called the village to report the damaged tree and reported that the roots were dangerously loosened and could fall at any moment.

6. There is no civil or criminal duty involved by an uninvolved bystander to aid a person in peril even though the rescue could have been performed with no risk to the rescuer unless the actor’s activity or an instrumentality under his control tortuously or innocently caused the P’s peril. Duty only when a D puts the P in peril. Or voluntary assumption of duty

COA case- women comes to her apartment at 3 AM- no light- hits a car- sues the Landlord for his breach of duty to make premises safe-

Court- we can expect the lights to be switched on for a reasonable amount of time- cant just leave them open 24/7

But does not apply where business functions 24/7 and is open to public.

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No duty to help as a bystander but when voluntarily assumes a duty

D assumed the duty- then can not stop- starts duty of care When a person voluntarily assumes a duty he must act

as RPP in accomplishing that task A volunteer may discontinue aiding a person unable to

protect herself Provided the injured is not placed in a worse

position then before the volunteer started to render aid

When a person voluntary helps for protection of another’s self or property Her failure to exercise reasonable care results in

liability Doc and nurses have no legal duty to stop and assist an

injured person All states have good Samaritan laws shielding them

from liability from negligence NY extends this Samaritan protection to anyone who

voluntarily and without expectation of compensation- renders emergency medical aid at a scene of accident (includes fire dept.) But NY do not extend this protection to medical

treatment in an emergency room They should have used Reasonable care with skills

of that profession Generally no duty is owed from preventing one person to

harm another one Ex- A doc does not owe a duty to mental or drug rehab

patients victims except in very limited circumstances, unless a duty arises due to a special relationship

Duty of care – third person Generally no duty but liability for tortious act of third person

arises when D had a duty to control the conduct of the tort doer

Can not be an absolute insurer but act reasonably to mitigate the harm that could occur due to the tortfeasor’s conduct Duty of parents of their Child

Absent a statute- generally parents are not vicariously liable for tort of their children merely because of parent child relationship But tort claims against parents are permitted if a child is

SICK

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S – in an employment relationship where a child commits a tort, while acting as a SERVANT or agent of the parent

**I – where the parent entrusts or knowingly leaves in the child’s possession an INSTRUMENT/object that, in light of the child’s age, intelligence, disposition and prior experience, creates an unreasonable risk of harm to others

C – where the parent knows of child’s tortious conduct and directs, approves or CONSENTS to it

K – where the parent has the ability to Control the child, but fails to exercise that control

Spouse Carriers- Airplane Businesses – have a reasonable idea that a tortious act had

been committed or should be equipped to deal with any tortious conduct of users of the business- depending on foreseeability.

School to protect kids- Foreseeable that kids could get hurt An unexpected fight between patrons does not make business

liable to injured P because most batteries are not foreseeable To recover the P must establish that O was on notice that

violence could occur and then was negligent in failing to protect patrons

Public establishments are not insurer of safety of their patrons.

Employer- employee duty of care Under the doctrine of respondiet superior (employee-

employer) The torts of an agent or employee are vicariously imputed to the

employer even the tort was committed in disregard of employers instructions

P must show that employees tort was committed with in the scope and in furtherance of the employer’s business- i.e. tort was closely connected with what the employee was

employed to do.

Intentional Tort of employee-

Dominoes had to take out 30 mins or free because they deliver in furtherance of the business of dominoes Just saying we asked them not to break any

rules is not enough.

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Where employees intentional tort arises purely from employees personal motivation then the employer is not vicariously liable Employee gets out of the car and starts beating someone on the

way to work If employees tort is intentional then in order to impose vicarious

liability on employer Employer must have auth the use of discretionary force OR

Like a bouncer Act must have been motivated by and performed to assist or

promote the business interest of the employer BUT- can sue for negligent hire, retain or failure to control

A P injured by an intentional act of employee may sue an employer for its failure to exercise reasonable care in Hiring-

Where employee had been previously involved in misconduct but still hired him.

Did not make sure he was fit for the job- like a handyman

Retaining- Employee showed signs of misconduct- but instead of

firing they moved him to another department Controlling its employee

This liability is based on employer’s active negligence in exposing 3rd persons to the foreseeable misconduct of the employee and is separate and apart from vicarious –passive liability.

When a hospital negligently hires or retain an unfit doc or nurses- it breaches a duty owed to hospital patients When the patient sues- the claim is in negligence (3 year –sol

and not 2.5 for med mal) Since its not for med mal (suing the hospital as an employer)

P’s infancy tolls the 3 year SOL to age 18 (10 year rule does not apply)

The Reasonable Prudent Person standard governs the duty owed to P which is objective-

Ds lack of experience or lack of mental deficiency is not considered If D is an expert- her conduct will be measured by hire standard of

care by a reasonably expert person. Exception to objective RPP is infants

As a matter of law a child can not be negligent- i.e. can not be sued A) in MBE- until their 7th bday B) in NY- until their 4th bday

In MBE and NY- children are not liable for their intentional tort until their 4th birthday

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An infant over non suri juri (not their own master) age is judged by quasi-subjective standard based on what would be expected of a prudent child of similar age, experience and intelligence.

If a child engages in an adult activity then the child is subjected to adult standard of RPP-since they are inherently dangerous activity.

MBE- Child can sue parents for negligent supervision NY- can not – not a legal cognizable claim.

Problem F negligently allowed his son S to play in heavy traffic S was hit by D’s speeding car Q: Can S sue F A: yes in MBE but not in NY

NY has abolished intra family immunity and permits tort claim against other family members if same claims could have been asserted between parties outside family Like intentional torts or negligent misconduct.

However in NY – under GOL no supervision claim a child does not have a legal cognizable claim against

a parent for parent’s negligent supervision resulting in child’s own injury. I.e. child cannot sue where a parent omitted to do

something in supervision. A parent’s negligent failure to supervise a child does not

constitute a tort actionable by the child if he was injured while parent failed to watch out for child’s safety Likewise a foster parent or sibling owes no duty to

supervise Grandparent who is baby sitting does

But school’s negligence to supervise is actionable Baby sitters are responsible for negligent

supervision MBE does not follow these rules.

Could D who was sued by S implead F in NY? Not in NY because F owed no legal duty to supervise S Since F did not commit a tort- D has no right of contribution

from F. Insanity

Is contract and in a criminal law defense but not a defense for negligent or intentional tort Insane or intoxicated persons are liable for tortious injuries

inflicted Insanity is a defense for punitive damages

I- Physical Injury to P or his property occurred as a result

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A P must plead and prove a physical injury to P’s body or property Once PI is established by P- damages may include

Past and foreseeable future illness Medical expense Lost wages- must mitigate them by finding job elsewhere

Must prove the amount of past earning by means of IT returns or other documentation

Lost earnings must be established with reasonable certainty. Immigration statutes are irrelevant for the immigrant to

recover damages for pain and suffering and medical expenses As long as the worker did not file fraudulent work papers

then his claim for lost past or future earnings will be based in US wages

However, if fraud was used to gain employment- then injured workers lost wages will be based on the lost wages he would have recovered in his own country.

Physical and emotional pain in suffering A pain and suffering claim requires proof that injured P was

conscious and Cognizably aware of pain after the accident If P dies instantly there is no recovery for conscious pain and

suffering Eco- loss

When property is destroyed and can be replaced Then damages are its replacement value If business property and O suffered lost profit

Those profits may be recovered Negligence rules are design to protect persons from risk of physical

harm to their person or property The economic loss rule serves to maintain a distinction between a

tort and contract obligation- except for non medical prof mal practice which does not require PI Generally negligence is not permitted solely for economic loss

or physiological injury in absence of PI or verifiable physical symptoms

Just as in contract law an injured P has a legal duty to mitigate tort damages An injured P must undergo medical treatment that RPP would

have undertaken Under the doctrine of avoidable consequences an injure P is

required to undergo reasonable medical treatment Not risky or dangerous

P’s violation of this doctrine prevents recovery for those injuries and pain and suffering that could have been avoided by reasonable medical care.

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Religious observance an exception to absolve from RPP standard

Likewise jury may be instructed on mitigation of P’s loss wages Where P was not medically restricted and fails to look for work

and jobs were available Court must instruct the jury on P’s duty to mitigate

damages Even D’s contact with P has to be either

Intended Highly likely Foreseeable

The exact or extent injury need not be foreseeable As long as some injury was foreseeable Anything that flows from foreseeable injury – like doc

after D injures her. The tortious D taken the defendant has he finds her

Therefore is liable for resulting death, injury or disability if the injured P had soft skull or brittle bones

P’s vulnerability will not relieve D from liability

P- P’s injury was proximately caused by D’s breach of duty- CAUSATION Reasonable foreseeability of risk of harm 5 types of causation (F CLIPS)- study check list F- Factual causation (but for)

The law draws a distinction between a conditions that sets an occasion for an injury or facilitates an accident and act that is a proximate or legal cause of the accident

By proving factual cause P simply states “ but for” D’s conduct P’s injury would not have occurred

Generally factual cause alone is insufficient to establish negligence (Must further demonstrate that D’s negligent conduct was a

substantial factor (proximate cause) in causing P’s injury) Small subset of Cause

Proximate Cause (natural and probable cause of the injury +substantial factor) Requires a close cause of connection between D’s negligent

conduct and P’s injury To recover P’s injury must be natural and probable

consequence of D’s tortious act. – should not be too remote. Proximate cause limits D’s liability for the consequences of her

negligent conduct Negligent conduct must be a substantial factor in causing P’s

injury

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A negligent D is not liable for P’s injury caused by bizarre, extraordinary or far-fetched events.

Concurrent causes An injury may have more then 1 proximate cause D’s negligence need not be the sole proximate cause of P’s injury

Only needs to be A proximate cause Thus in two car collisions P’s injuries are caused by

concurrent negligence of both drivers P is not required to eliminate to every other possible cause of

injury but need only to offer sufficient evidence from which a jury may conclude that it was probable that D proximately caused injury in whole or in part.

At common law and MBE- Where acts of several tortfeasors contribute to P’s injuries each

is 100% JnS liable for all of P’s injuries regardless of each one’s apportioned share of fault.

NY Has limited JnS liability under Art16

JnS continues to apply to economic injuries- MBE rule- claim for contribution from other co-Defendants

But is limited to non- economic injuries – only have to pay apportioned share of fault. WARM DIP- exceptions – MBE rules apply.

P has a burden of proving the conduct of a specific defendant was a proximate cause of his injuries

Problem After swimming for several hours P was severely injured

when he dove in to D’s shallow pool P sued the pool owner for failing to post depth warning at

the shallow end of pool In order to recover P must prove that D’s breach of duty

was a substantial factor in producing the injury Here P’s careless conduct rather then D’s failure to post

warnings is the sole proximate cause of the injury Even D breached the duty of care by not posting the

warning (negligence per se) This breach was not a substantial factor in causing P’s

injuries P knew since he had been in the pool for several hours

Might have had a chance when it was a new pool and P had no idea or could not have any idea.

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However, P suffers a single injury as a result of conduct of multiple tortfeasors and P can not establish which D caused the injury then But under alternative liability theory the burden of

persuasion on the causation issue shifts from P to 2 defendants who are in a better position then P to identify the cause of P’s injuries

If neither can prove who inflicted P’s injuries both are held jointly and severally liable even though only one of them could have done it.

Successive causes Arise where P’s injuries are proximately cause by separate cause

of negligence The original tortfeasor is liable for subsequent foreseeable injuries

arising from initial tort. MTA hurts a person on a wheelchair- P wins the law suit-

gets a new wheelchair- 6 months later develops a rash- P tries to sue MTA- courts said the injury was too remote from the initial cause and caused by breach of strict product liability. Wheelchair was the sole intervening cause of the alleged injury.

Ex- if P’s injuries are aggravated by subsequent negligence of docs, hospitals or nurses Tort law considers such injuries foreseeable and

proximately caused by D’s original duty i.e. D’s negligence is considered as a substantial factor in

bringing about P’s foreseeable additional injuries D would have a claim for contribution against the doc or hospital

and P can sue doc for med malpractice. But Subsequent tortfeasor is only liable for aggravated

injury.

Intervening cause An intervening proximate cause for P’s injuries is the one takes

place after D’s negligent act but which contributes to P’s injuries. A foreseeable intervening cause (med mal) does not break the

chain of causation and the original tortfeasor is liable for P’s injury flowing from that foreseeable intervining cause.

An independent intervening proximate cause AKA superseding proximate cause is extraordinary and so mitigated as to break the original chain of causation. Cutting off earlier tortfeasors liability for P’s injuries Prevents D’s negligence being the proximate cause of P’s

subsequent injuries

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Whether an intervening cause is independent i.e. overriding, depends on whether the intervening act was normal and foreseeable if it was not= independent superseding cause.

A p’s own negligent conduct can be the sole superseding cause of his own injury.

tortious actor is solely liable for subsequent injury if the earlier initial act has become too remote to constitute a proximate cause to P’s injuries Limits initial tortfeasors fault to the initial injury.

Intervening acts of nature or criminal conduct often constitutes superseding causes But such events do not relive the original tortfeasor from

liability if such activity could have been avoided with reasonable care Ex- a landlord is liable for battery on T where L breached

the duty to provide reasonable security

LARGE C.D.2 are played in negligence: (just a checklist) L - LAST clear chance( substituted in NY by contributory negligence)

Is asserted by P to defeat a D’s defense of contributory negligence In comparative negligent jurisdiction – no need to use last clear

chance In such jurisdiction a negligent p may recover by showing that

D had the last clear opportunity to avoid the accident LCC is frequently raised by

Infants Intoxicated Or helpless to escape the danger they negligently brought

about LCC is based on D’s knowledge of P’s peril an interval in which P’s

negligence was complete and the D had an opportunity to avoid P’s injury

Thus under LLC is what the D did or failed to do after acquiring knowledge of P’s peril that constitutes the proximate cause of P’s injury

Kid got into an unlocked MTA train Stuck his head out and got injured Kid sued the MTA for being negligent in leaving the door

opened Court said the sole and proximate cause of kid being hurt

was his own negligent act of sticking the head out and hence superseded MTA’s negligence/omission to failure to lock the door.

The intervening

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A - ASSUMPTION of risk (defense)**** NYAA 624-634 MBELB –torts-39-44 AR defense asserts that the P assumed the known risk of the

foreseeable harm It can be asserted as a defense to the negligence claims or even claims

arising out of strict tort liability (Dynamite or wild animals) In MBE (not in NY)- P can impliedly assume the risk of D’s reckless

conduct AR defense does not apply to intentional torts, instead the D should

use the defense of consent A P can either impliedly or expressly assume the risk of D’s tortuous

conduct Express AR arises

When a P orally or in writing (in a exculpatory clause in a contract) releases another from future tort liability.

It is an express agreement prior to a P’s injury that D owes no DIP duty of reasonable care

An express release is a complete bar to P’s negligence claims NYAA 729

NY- an express release must be expressed in unmistakably clear language mentioning the word negligence. Where P agree to release waive, discharge and relinquish

any and all claims “of whatever kind against the D” Not sufficiently clear and specific to relieve the D of

liability arising from D’s negligence. NY will not enforce the following express releases

GOL: A release by a recreational user of swimming pools, health clubs or other places of public amusement where a fee is charged But a patron using a recreational facility for

instructional purposes and not recreational use can expressly release the facility from liability.

Ex- a race track, parachute jumping, white water rafting or a riding stable NYAA 729-730

A written NY or MBE release of D’s reckless or intentional conduct which is against public policy

A Minor is not bound by the release signed by a parent since it was not first approved by the court NYAA 728

Implied AR Not based on an express contract But arises when a P voluntarily encounters a known and

common apparent risk of harm

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Un assumed or unreasonably increased risks beyond usual dangers inherent in that activity will not relieve a D from liability.

NY Ps do not impliedly assume the risks of intentional or reckless conduct or concealed or unreasonably increased risk

MBE Ps can impliedly assume the risk from D’s reckless conduct Example

A skier assumes a common and apparent risks of the ski slope but does not assume the risks of another skiers reckless conduct- NY

AR is a complete bar to P’s recovery in cases involving 1) express assumption of risk 2) Implied assumption of risk

Which involves a participant or spectator in a sporting or recreational event will be a primary assumption of risk NYAA 734

NY COA**** has held that other then express and primary assumption of risk all other assumptions of risks have been eliminated by comparative negligence doctrine. MBELB-T-27

To assert AR the P must have been able to accept or reject that risk and the decision must have been voluntary Thus if D’s conduct precluded all safe and reasonable

alternatives then P’s assumption of risk is not voluntary and defence can not be asserted

R - RES IPSA LOQUITOR(speaks for itself) NYAA 826-831 RI permits a jury to draw an inference of negligence (not a

presumption) from circumstantial evidence (not direct evidence –

Problem In MBE- P was injured by X’s negligent driving P was bleeding and asked X to drive him to the hospital Even though X’s car had bad breaks and X was

intoxicated Here P did not assume these risks of X;s tortuous

conduct because P was left with no alternative but to encounter the known danger

Q: did P’s conduct constitute comparative negligence? A: probably not- under the emergency doctrine- based

on an unforeseen and sudden occurrence (an emergency) P’s conduct was probably reasonable.

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like testimony- it has to be inferred from facts) to prove the specific proximate cause of the accident

RI assists an injured party who does not know exactly what the D did to cause the accident but the thing speaks for itself NYAA June 2011- Pg5

This doctrine requires a P to prove PEA P- a probability exists neither the P nor the 3rd person caused the

injury and the negligence was not committed by anyone other then the D NYAA 826-829

E- Instrumentality causing P’s injury was under D’s exclusive control or where the D had the right or power to control when Negligence occurred. NYAA 828-829

Consider horseback ride- saddle falls off and injures P Courts- negligence happened when saddle was put on the

horse and the D had full control over the instrumentality – even though when the act happened instrument causing the injury was in P’s hands

Hotel is not in full control of say its rooms since they turn over the possession to the guests for a day or two Although hotel has a general duty under occupier’s liability

A- Accident would not have occurred in the absence of negligence

Examples When a 600 pond steer fell through the ceiling on to P’s lap-

the situation spoke for itself A foreign object in a body A train goes off the tracks A mislevelling of an elevator A horse running free on a highway

Problem P was admitted to the hospital for surgery A week later P contracted Hep C Q: can P assert Res Ipsa? A: Yes

Absent negligence by the D, P would not have occurred Hep C

When the surgery was going on instrumentally was in control of the D

And this would not have occurred had the doctor not been negligent. Allows the jury only draw an inference not a

presumption

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But not a dog- they can run free- horses intend to roam and not run

Because an inference and not a presumption arises by using RI- even if D fails to come forward and explained what happened The burden of proof for proving negligence remains with

the P This doctrine prevent a D from successfully moving for SJ or

for a directed verdict when P rests her case without any direct evidence of negligence

G - GUEST statute** NY does not have it A guest statute prohibits a gratuitous automobile passenger from

recovering against a negligent driver without proving D’s reckless conduct (gross negligence) P a passenger in O’s car was injured when it collided with X’s car Concurrent causes of the accident were the negligence of X and A

DIM defect in O’s car manufactured by m In P’s suit against X and M-they can not assert the guest statute

which can only be raised by the host (O) of the injured passenger.

E - EMERGENCY doctrine – Jury charge- not held to objective RPP In an emergency, when a person is confronted by a Unexpected and

Sudden Occurrence giving her little time to think then she is not negligent if her actions are reasonable in that emergency context.

A D faced with an emergency is not obligated to exercise her best judgment

This jury charge is frequently requested by the driver who collides with a car who has crossed into oncoming traffic where a driver is sued by the passenger in the car.

A person acting in an emergency situation is not held to the ordinary standard of care unless The D created the emergency

Ex- he was exceeding the speed limit or tail gating and thus was a contributor in bringing about the emergency

OR should have reasonably anticipated the emergency i.e. it was a foreseeable emergency.

Ex- guard in a bank asking for the emergency charge Court- you were hired for security and any robbery is

forseeable. If kept on driving for an hour in hazardous conditions

therefore the driver was not confronted by an unexpected and sudden occurrence.

NYAA Jan 2012 Pg 2 Sun glare can be a US but not if a driver takes the same

route at that time of the day

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In an emergency- a person can act without reasonable skill if the objective reasonable person would have believed that good likely to be accomplished by her conduct outweighed foreseeable risk of harm that the lack of incompetence might cause. Harm of doing good outweighed harm of not doing anything and

RPP would have done the same. NY drivers

1) Emergency vehicles Involved in an emergency

Recently has been narrowed by COA, allowing such vehicles to disregards rules of road only to A) speed B) pass through stop sign or red lights after slowing

down C) to go in the wrong direction in a way street D) stopping and parking on the street

If A to D above is not involved then regular negligence rule apply to emergency drivers

except for police cars , every other vehicle has to activate siren to get this protection

Emergency operation does not include Returning from an emergency

NYAA Pg1 April 2011 2) any public or pvt vehicle engaged in highway construction,

repair or maintenance have immunity from civil liability for negligence and Are liable only for reckless conduct

An injured plaintiff from one of these vehicles must prove that risk was so great under the circumstances that it was highly probable that P would be injured by D;s conduct This immunity for negligence applies only when driver is sued

as a defendant but not when that driver sues as a plaintiff NYAA 771

The emergency vehicle exemption

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C - COMPARATIVE or contributory negligence (CN)

In a contributory negligence jurisdiction if P’s negligence contributes even 1% to accident P is barred from any recovery – not in NY

Out 46 states that recognize CN – 12 states including NY and MBE recognize pure CN In which P may recover no matter how great P’s apportioned

share of fault 34 states recognize a modifies comparative negligence theory which

allows the P to recover provided P’s negligence does not equals or exceeds D’s fault.

Where there are multiple defendants – some modify CN jurisdiction compare P’s %age of fault to each D separately

Most states adopt the unit rule comparing P’s %age of negligence with combined negligence of all D’s as one unit to determine if P’s fault => D’s fault as one unit Ex- Jury said P 30%, X 25% and Y 45% negligent

Under unit rule – P could recover 70% from both X and Y since there combined negligence exceeds P’s 30% negligence

No unit rule- P could not recover from X because X’s individual negligence 25% does not exceed P’s 30% P could only look to Y to collect 45%

Since the rule is – a P who is more negligent then the defendant cannot recover from him.

Need to check- In comparative negligence jurisdictions P’s recovery is reduced by P’s own %age of fault – any derivative claim arising from P’s injuries Wrongful death claims

CN- if P’s negligence contributes even 1% to accident P is barred from

any recovery defense for P- Last clear chance.

Pure CN- NY P may recover no matter how great P’s apportioned share of

fault Modified CN

allows the P to recover provided P’s negligence does not equals or exceeds D’s fault.

Modified CN with unit rule the unit rule is comparing P’s %age of negligence with combined

negligence of all D’s as one unit to determine if P’s fault => D’s fault as one unit

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Likewise will be reduced to the extent of injured P’s comparative negligence.

In NY - failure of P to wear seatbelt is inadmissible on the question of liability in P’s comparative fault But is admissible in the issue of P’s damages

D - DRAM shop act= NYAA 760--766 At common law a bar or restaurant was not liable to third persons

who were injured off the premises as a result of an intoxicated customer The bar giving the customer the drink was the cause in fact but the

customer consuming the liquor was the proximate cause of both customers and 3person’s injuries

Under NY Dram Shop Act When a 3rd person is personally or financially injured by a

intoxicated person then this gives rise to cause of action against the party who unlawfully provided the liquor to the intoxicated person An unlawful dram shop sale occurs

1) by making a direct sale of liquor to a visibly intoxicated person some states (not NY) extend this liability to social host

with no sale required 2) the provider (not necessarily the seller) knew or

reasonably should have known he was providing liquor to someone under age 21- but NY parents are exempt from serving liquor in home only.

3) providing a controlled substance (pot) to anyone A ny DSA claim whether for PI or wrongful death because it did

not exist at common law and is purely a creation of the legislature which did not give this act SOL Is governed by a 3 year SOL. A SOFT RAIN

NY DSA permits recovery of punitive damages.

D - DANGERS invites rescue An existing danger invites a rescue thus a tortfeasor who has placed

herself or another in danger is liable for the injury suffered by a 3rd person who comes to the rescue of the endangered person.

A rescue is foreseeable and the resulting injuries are deemed proximately caused by the original tortfeasor Ex- where rescuer was danger while walking back after

completing the rescue

Problem D negligently collided with O’s car injuring O In a daze O wandered into woods when O’s father F arrived

at the scene he started searching for O in woods

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NYAA 750 DIR also applies to rescue of the endangered property even if the

endangered property of the negligent D DIR is also used in SPL cases

Mask not working properly in a mine A rescue worker goes in- gets injured- then he can sue the M of

the mask under SPL In class Q13

Fire Fighters rule AKA professional rescue doctrine Police or fire personnel generally do not benefit from DIR doctrine They assume the increased risks inherent in dangerous

employment and generally can not recover from the tortfeasor who caused the emergency It is the public as whole rather than an individual tortfeosor

that should bear the cost of injuries to fir or police personnel. Ex- slipping on floor while responding to an emergency OR fire fighters injury from a collapsing roof

However where a police officer was hit by a flower pot can recover because that injury was not related to heightened dangers of an emergency.

Likewise- personnel are driving back from an emergency and is hit by a negligent driver then Firefighters ruler does not prevent a claim against the negligent D

Likewise this does not prevent a suit for intentional tort Notwithstanding the firefighter rule- NY police personnel can sue

to recover from injuries directly caused by a violation of a safety statue, rule or ordinance which wither created or increased a dangerous condition faced by responding police or fire personnel. NYAA 690

Liability for conditions on real property (occupiers liability)= ordinary negligence standard and no strict liability for the dangerous conditions MBE

Majority of states tort liability arising from underlying existin dangerous condition on the land Depends on the duty owed to the person visiting the land

P’s purpose of the visit generally determines her status and the duty owed That person can be either

An Invitee Is a person who enters the land and that land is either

1) open to the general public Ex- theaters, stores, buildings, or libraries

Problem D negligently collided with O’s car injuring O In a daze O wandered into woods when O’s father F arrived

at the scene he started searching for O in woods

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Even if she entered the land just to use the bathroom, telephone, or to get a change for a dolor bill OR

2) a private premises where invitee intends to bestow some benefit on the possessor Ex- to pick up or deliver goods or to make repairs A mail carrier, a meter reader but not a door to door sales person or fire or police

personnel The duty owed to an invitee is for the possessor to

reasonably INSPECT AND DISCOVER dangerous conditions and to repair or warn the invitee of its existences I.e. make the premises safe for the invitee

The fact that the possessor did not know of the latent dangerous condition is not a defense because a duty is owed to the invitee to reasonably inspect those areas of the property unto which the invitee will come

The possessor is deem to have constructive notice of the dangerous condition when it’s visible and apparent and has existed for a sufficient

length of time to afford the possessor a reasonable opportunity to

discover and remedy the danger. NYAA 822-823 A warning may suffice to remove the danger unless the

condition remains unreasonably dangerous even with the warning In which case the possessor owes a duty to eliminate

the danger A 3rd person accompanying an invitee is owed the same

duty as an invitee even though the 3rd person has no intent bestowing any benefit on the private possessor Provided the 3rd person with in the area of the invitation

Invitee liability extends only to those areas that are open by the invitation By going outside that area the invitee or accompanying

invitee person becomes A) a TP OR B) licensee – if she has possessors express or

implied consent Ex- mailman delivers and rings the bell on the door=

invitee But when he went down the lawn (O had on

previous occasion asked him not to do that) he became a Trespasser since there was no implied or express consent to go to that part of the property.

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P goes to Macy to buy a perfume- goes into employee only area- drops down- can he sue?

N o- came as an invitee – but without consent (it was revoked by the sign) and became a TP

A licensee Licensee enters the land with posessors express or implied

consent but where the entry is for licensee is for own personal purpose Ex- friends, guests, or solicitors

The possessor owes a duty to the licensee only to warn KNOWN LATENT DANGEROUS DEFECTS But no duty is owed to inspect the property for latent or

obvious defects

Or a Trespasser Enters or remains on property without a privilege or

without express or implied consent of the possessor TP takes the land as he finds it

Including any existing latent (hidden) dangerous defects OR

Wild animals OR Vicious domestic animals that may attack a TP

No duty reasonable care is owed to someone entering the land who could be sues for the tort of trespass Except the possessor must avoid intentionally or

recklessly harming the trespasser Ex- traps, guns, hidden wires or intentionally

causing an animal to attack a TP Once a possessor becomes aware of TP presence a duty of

ordinary care arises to avoid an injury to the TP And to WARN OF ANY KNOWN LATENT CONDITIONS

that pose a risk of serious injury or death If the possessor is aware that part of her property is used

by TPs Ex- a shortcut or a path over the land

Then a duty arises to take reasonable precautions to prevent harming the TP

Ex- make the path safe OR Warn the TP of latent defect

If a possessor discovers a TP is trapped, injured and helpless- then a duty arises to use reasonable care to assist the

TP in danger TP children- doctrine of attractive nuisance treats TP

children at invitees. Elements for attractive nuisance are

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1) Possessor knew or should have known man made condition involved an unreasonable risk of serious injury or death to TP children Ex- a construction site, wild animals, a man made

lake or a rail road yard 2) risk of harm was not likely to be recognized by

children Ex- construction sites

3) the place where the danger exists is the one where possessor knew or had reason to know that children are likely to trespass

4) financial burden of correcting the danger Erecting a fence or hiring a security guard was

outweighed by the risk of harm to TP children 5) the possessor breached a duty by failing to use

reasonable care to reduce or eliminate the danger to TP children

This liability does not extend to those risks that should

have been realized by the child NY does not recognize the attractive nuisance doctrine

but in essence has applied it based on the doctrine of forseeability of harm and the duty owed to make the property safe.

NY Modern trend – more than 20 states (NY) have adopted a reasonable care standard in which

a possessor owes a duty to ANYONE entering the land regardless of her status-

Ex- O has an artificial pond stocked with goldfish O knew that children frequently TP to swim O took no precautions for their safety P aged 10 who could not swim entered the pond

and drowned O is not liable – since this risk should have been

realized by a 10 yr old If O had erected a fence with a gate, but neglected

to close the gate and P a 3 year old came to catch the fish and drowned then O is liable

The attractive nuisance does not have to have initially attracted TP children on the land since this doctrine is based on foreseeability of harm to TP children 25

these states have abandoned an inquiry into P’s status and instead focus on the possessor of the land and whether the property was maintained in a reasonably safe

manner under the circumstances. Including the use to which the property is put and The frequency of use And the ease of extinguishing the existing risk

The duty owed is to take reasonable measures to discover and prevent injury to anyone who’s presence was reasonably foreseeable.

NY treats everyone entering the land as an invitee.

NY slip and fall injuries – NYAA 838-842 A P who slips and falls on D’s property

Must prove A latent dangerous condition existed and 1)D created that dangerous condition OR 2) D had actual notice of its existence OR 3)D had constructive notice because it existed for a

sufficient length of time prior to the accident to allow a reasonable possessor to discover and correct it

Slip and fall cases are fertile ground for a D’s 3212 SJ motion or for a directed verdict after the P has rested for failing to prove 1- 3 above

NY’s labor law**** Imposes strict liability and a non delegable duty upon both the

owner of the realty and the general contractor of the construction site to provide adequate safety in a method and a manner in which the work is performed involving CCRAPED activity

Was it foreseeable that someone could get injured due to the condition or use of the property?

Was there inspection/maintenance to discover and prevent any injury?

Problem Can a possessor of realty insulate itself from tort liability by

delegating the duty to an independent contractor? No- a person who employed IC ordinarily is not liable for

IC’s negligence except For a non-delegable duty to provide reasonably safe

premises. Death from elevator falling- had a duty to act and

breached that duty by not maintaining the lift even though it was given to someone else.

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C- construction C- Cleaning (commercial windows) R- repairing A- Alterations to a building P- Painting E- Excavating D- Demolishing

But does not cover routine maintenance (changing the light bulb) Under labor law 241

A P must allege a violation of a specific safety regulation set in NY industrial code. Which sets forth state’s minimum safety standards for CCRAPED

activity And the violation must have proximately caused worker’s injury

Under Labor law 240 There is also a non delegable duty by Os and GCs to prevent gravity

related accidents involving CCRAPED activity Such as falling objects Falling workers Or even objects falling from the same level (a 10 foot pipe leaning

against the wall that falls onto a worker This law requires workers be provided with protective equipment

such as scaffolding and safety ladders Ex- an 800 pound object being moved down four stairs

By statute workers comparative negligence can not be asserted and liability is strictly imposed on GC and the owner eventhough O excercised no control or supervision over the job. The only available defense is the Recalcitrant Worker Defense

 the worker has the duty to use or avail himself of the safety device provided. If a safety device is provided and the worker decides not to use the device (his refusal makes him recalcitrant) he cannot recover.

Safety equipment was readily available and worker refused to use it and this was the sole proximate cause of Workers injury.

IN NY====O OCCUPIED 1 OR 2 FAMILY DWELLINGS ARE EXEMPT FROM STRICT TORT LIABILITY UNLESS THE O TOOK CONTROL OR DIRECTED

Problem O lease the property to T and leased expressly prohibited T from

CCRAPED activity without his written consent Unknown to O, T had CCRAPED work performed on the property Worker fell a scaffolding without a harness

O is strictly liable along with the general contractor- NYAA 775-776- essay 2 Feb 2009

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THE CCRAPED ACTIVITY.

NY and MBE area – possessors of land also a duty of reasonable care to avoid endangering other on a public way or adjoining property who inadvertently stray on to possessors land adjacent to public way Here the court looks whether the land’s condition along the public way

created a foreseeable risk to passers by Ex- a jogger pushes a kid on to a fence of the land which was being

excavated- fence collapses and kid injures Here the O had a duty of reasonable care to avoid endangering

public who might stray on his land which was in a dangerous condition and the condition unreasonably subjected passers by- kid to foreseeable unreasonable harm.

Liability is imposed if the condition on the land unreasonably subjected passer bys or neighbors to an unreasonable risk of harm

Most states (NY) have a recreational use statute limiting Os duty of care if the land is open for public recreational use and no fee is charged Here there is no duty to warn or keep the land in a safe condition for

gratuitous recreational users Liability is imposed for willful or malicious acts- NYAA 823-825, essay 4-

feb2004 Does not apply to municipalities that already have an open land for parks

and for supervised recreational use- NYAA 825

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Tort of nuisance(ToN)- SOL 3 years (can only recover for last three years going back)

Means to unreasonably annoy another In order to sue for ToN

P must have some interest in the adversely affected land Ex- fee interest, life estate, AP, a tenant, or a family member

But a licensee, employee or a guest can not sue for nuisance because there interest in the realty is insufficient

whether D’s use of land substantially and unreasonably interferes with P’s use and enjoyment of her land

Is where D maintains an offensive condition on her land that substantially and unreasonably interferes with P’s use and enjoyment of his land Loud noise Smoke Dust Bells Unpleasant smells Vibrations Or second hand smoke drifting into neighboring condo

Is a non trespassory unreasonable invasion of P’s use or enjoyment of her land Where D willfully erects a spiked fence, exceeding 10 ft- having no useful

purpose other then to block P’s view from her property then this is the ToN- since it unreasonably interferes with others use and enjoyment of her land

D’s children scream laugh and play in his backyard Neighbor- N has had several operations and is extremely nervous N actually gets because of children playing Even though N’s use and enjoyment of land was substantially

interfered with – D’s use is not the tort of nuisance because person of average sensitivity would not be annoyed

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Usually the court will consider the character of the neighborhood and the D’s conduct was unreasonably intolerable An all night store in a residential neighborhood would be a nuisance but

not on a busy commercial street A private nuisance annoys one person or a few – NYAA 676, 814 A public nuisance is an offence against the state

When the annoyance is to public in general Ex- Air or water pollution A dump creating unreasonable smells with in the community

Remedy is government action Generally, individuals lack standing to decrease public nuisance unless

the individual has suffered some injury unique and substantially different from the public- 801 and 814 NYAA

ToN, TP or waste Damages are measured either by

1) the decline in the market value of the effected realty 2) the cost to repair the damage

WHICH EVER AMOUNT IS LESS Recovery for temporary injury, upto the time an injunction is issued- is

measured (expert opinion will be necessary) by the decline in the rental value of the affected property

The fact that a nuisance existed when the P moved into the neighborhood is just one factor in determining whether D’s activity on its land are unreasonable.

This defense of coming to a nuisance is asserted against a P who moved to a neighborhood where D’s activity had been ongoing befor P moved. This makes it more difficult to prove ToN because

P’s purchase price was probably reduced because it was located next to the nuisance.

However, a subsequent change in the area can alter a balancing of equities – thus an activity that originally was not a nuisance can become a nuisance if the surrounding area substantially changes.

Passive un sightedness – without other elements of harm is not the ToN A nuisance does not arise from a refusal to alter a natural condition existing

on the land. ToN does not describe any particular conduct- instead it’s a form of strict

liability and focuses on whether D;s use of land substantially and unreasonably interferes with P’s use and enjoyment of her land. Thus even though careful and reasonable and using the utmost care to

abate the nuisance the D may nevertheless be liable for ToN Fertilizer plant- started using other procedure to avoid smells- plant

is still liable. Stigma damage to the value of P’s land caused by D’s used= not actionable as

ToN For storing dynamite or toxic waste or setting up a drug treatment clinic

is not tortuous without an actual invasion of light, smell or noise etc. even

D’s chemicals contaminated ground water under P’s land It decreased value of P’s nearby land, even though contaminated water

flowed away from P’s land- P can not recover for loss of value to her

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thought D’s conduct on her land lowers the value of P’s land

3 remedies for ToN 1) injunction

Where court will balance the equities by using the comparative hardship test

2) Self help remedy- risky It exposes person seeking to abate the nuisance to possible liability

for trespass and property damage No defense of good faith

Government action where public nuisance. 3) Money damages to compensate the P

For loss of value to P’s land + Any personal injury to P or her family including personal

inconvenience and discomfort. Damages are measured either by

1) the decline in the market value of the effected realty 2) the cost to repair the damage

WHICH EVER AMOUNT IS LESS Recovery for temporary injury, upto the time an injunction is issued-

is measured (expert opinion will be necessary) by the decline in the rental value of the affected property

D’s chemicals contaminated ground water under P’s land It decreased value of P’s nearby land, even though contaminated water

flowed away from P’s land- P can not recover for loss of value to her

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Reckless conduct [RC/GN= intentional performance but ON= FIT i.e thoughtlessness]

On essay Define RC/GN and then define ON and come to a

conclusion

RC is greater risk taking then ordinary negligence RC is an activity which is

intentionally performed in disregard to known or obvious risk of harm to others making it HIGHLY LIKELY that the harm would occur and D consciously disregarded that risk.

With RC danger ceases to be “foreseeable risk” and becomes highly likely to occur

RC and gross negligence are used interchangeably and involves a state of mind not present in ordinary negligence Speeding is ON But speeding on a crowded street or speeding while intoxicated = RC

If a D’s conduct is reckless the following rules apply 1) CPLR Art 16’s restrictions on P’s right to assert JnS liability against each

multiple defendant for non economic losses does not apply to a reckless co-defendant even though jury said 50% or less responsible for P’s injuries A reckless co-D remains fully liable for 100% of P’s injury (WARM DIP)

2) a reckless driver does not get the benefit of a guest statute (LLARGE CD) 3) an injured TP can sue a possessor of land for the reckless disregard of TP’s

safety

Case 1 = ON An oil tanker raptures not necessarily negligence since injury does not

mean there was a tort committed Pre- trial discovery revealed that if inspections of ship had been

undertaken it would have shown 30 cracks This is evidence of negligence because of FIT

Failure to take reasonable precautions Inadvertences Or thoughtlessness

Case 2 = RC/GN Pre-trial discovery reveals 30 cracks discovered but nothing was done

Shows reckless conduct because D was now aware of the risk and consciously disregarded it

ON= ordinary negligence, RC= reckless conduct

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4)NY emergency vehicles or hazard vehicles drivers (highway maintenance) generally are liable only for reckless conduct

5) Punitive damages may be awarded for egregious intentional conduct or egregious RC but not for mere ON

Punitive damages Not awarded to compensate a P But to punish the D and to deter its repition by others in the future Are awarded, not simply because D’s wrong was intentional or reckless, but

because it was Quasi criminal Malicious and Outrageous

Ex- a vicious battery Intentional infliction of emotional harm False imprisonment Spiteful defamation

Are warranted where D intended to actually harm the P OR Where D was intentionally or recklessly indifferent to rights of others. Have never been sustained on appeal in NY med mal action Can be imposed on Manufactures who were aware for years that their

product was defective and unreasonably dangerous but failed to address it Ex- Cigarette manufacturers

However, due process prohibits the jury from punishing the D for injuries caused to others not in the law suit

However, juries can consider injuries inflicted on non-parties to determine whether D’s conduct was “extraordinarily reprehensible”

The due process clause (14th amendment)n requires judicial review for PD awarded by a jury A grossly excessive award violates due process

Ratio of PD to compensatory damages should not exceed single digits In many cases should not exceed compensatory damages.

Under court’s proportionality theory 4 times the amount of compensatory damages is close to the line of constitutional impropriety absent extreme egregious reprehensible conduct.

I n NY no separate cause of action for punitive damages CPLR 3211 (a) (7) Demand for PD should be placed in the wherefore clause at the end of

complaint In 43 states (NY) if D dies prior to judgment then PD can not be awarded

(death in ultimate penalty) Under the complicity rule – an employer is vicariously liable for PDs, only if a

superior officer –ordered, participated in or ratified employees outrageous conduct

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Additionally- where employer deliberately retained an unfit employee

Legal Ethics Q: can an attorney charge a contingent fee in a PI case?> A: Yes

This is type of fee most frequently charges in a PI claim Contingent fees are ethically prohibited in

Matrimonial action Criminal cases

CF arrangement shall be in writing signed by the client

Otherwise lawyer can not collect her %age of the fee and is relegated to a claim for Quantum Meruit for the value of lawyer’s services

Essay, Feb 2008 CF then be filled with office of court admin with in 30days setting forth

who referred the case to the lawyer. Q: May a lawyer solicit a victim of car cash? A: face to face or live telephone solicitation is prohibited but email and mail

solicitation is permitted But- out of respect for victim’s privacy- lawyer must wait 30 days from

the accident to solicit PI victims By mail or email.

Q: can a lawyer pay small amount of money as a gratuity to his neighbor who is a nurse in ER room for referring a client to a lawyer?

A: no- unethical for a lawyer to give anything of value for referral of business to the lawyer.

Q: After a lawyer accepts a case on a CF basis, and has put in substantial work on the case- can the client fire the lawyer without cause and hire a new lawyer?

A: Yes- because a client is always free to fire the attorney but when fired the former lawyer can seek quantum meruit compensation OR A contingent %age of the legal fee ultimately earned by the new lawyer;

which amount the court shall fix. Q: can a lawyer charge non refundable retainer when initially accepting the

case? A: No- its unethical because such arrangements interferes with clients right

to freely fire the lawyer. Contributing to judge’s election

A NY judge can not be assigned to a case where a lawyer, a law firm or a client has contributed $2500 or more to judge’s election campaign in prior 2 years OR

Where they have contributed collectively $3500 or more. The non contributing party can waive the disqualification.

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Municipal Tort Liability

(if time go back and review SOL lecture) a municipality is not liable for THE NON FEASEANCE OF ITS GENERAL

GIVERNMENTAL SERVICES i.e. where it fails to do its job resulting in P’s harm

Ex- failing to provide adequate police or fire protection or Failing to timely respond to an emergency

No tort liability arises for a municipalities failure to perform a duty owed to general public

The municipal tort doctrine states Because we owe a duty to everyone we owe it to nobody

An exception arises where “special relationship” is voluntarily created between The municipal agency and the Plaintiff RAID (all elements must be present) R- P justifiably relied on Municipalities promise or on its affirmative

undertaking Promise must lure the P in false sense of security inducing her to relax

her own vigilance or to forego other available avenues of protection. Municipal school- a bully- mother tells the principal to take her

son out of there- municipal schools- hang in there and we will get your son out with in 60 days

Bully beat her son up Mother sues the Plaintiff Court- hang in there – should not have justifiably relied on that

promise- it was not to lure her into false sense of security Another case in 2011- Mother with a child- order of protection

against of her husband- husband calls and says he would kill her- she calls the police to arrest him- police said they would but did not and Husband comes and shoots her- Mother sues-

Court- no special relationship A- through promises or prior actions Municipality voluntarily assumed a

duty to P- different from the rest of general public. School guards where children cross Parents rely on the crossing Police was called one day to help cross children A gets out across a busy highway and gets hurt Sues the municipality Court said the police voluntarily assumed a duty to children and

could have been reasonably relied upon by the parents and thus creating a special relationship

I- Municipality knew its negligence could foreseeably harm the P

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Police went to a wrong address- women died as a result Court- women relied on the promise that cops would be there- and

could foresee that their negligence would foreseeably harm the P and hence created a special relationship.

D- Some direct contact between the Plaintiff- his parents or his spouse NYAA 799

A colleague called an ambulance for a worker who was having the stroke

911 put him in a lower priority by mistake Worker sues the municipality Court said RAI present but there was no direct contact- neither

worker- nor his spouse or his parents called the ambulance

Municipality Tort - When a government’s inaction arises as property owner or a L- then the

municipality is subject to same tort liability as a private landowner in maintaining its property in safe condition and its duty to prevent foreseeable criminal activity. I.e as a proprietor of the land they owe same duty as a private

landlord and can sue under tort of occupier’s liability. Like lack of protection etc.

Need to give municipality a pre accident written notice of the dangerous condition A municipality has a duty to maintain its streets, sidewalks, parking

lots and real property with reasonable care but this duty is conditioned on it receiving pre- accident written notice of the dangerous condition under the pothole law- NYAA 798

The pot hole law written requirement is not applicable where it was the city that created the dangerous condition immediately after completing the repair work

Whenever dealing with Municipal torts also think of 1) The 90 days notice of claim and 1 year 90 day SOL for tort claims

against municipality 2) Claims against emergency or hazard vehicles- which require proof

of reckless conduct and not mere negligence.

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Defamation

NYAA 751-759 Defamation is an attack on someone’s reputation Consists of liable and slander Tort committed against P’s character and reputation by a D’s false statement

or fact negligently intentionally or recklessly published to a third person The statement holds the P to ridicule, contempt, hatred, shame or

disgrace This tort can not be committed against a dead person Corporations and partnerships can be defamed Trial testimony about an out of court slander statement is not hearsay- since

that statement has independent legal significance- not being offered for the trust of its content but instead to show that the statement was made and the P has a cause of action.

A non- domiciles defamatory statement -inside or outside NY- can not be a basis for CPLR 303 tort jurisdiction

Such statements do not impose strict tort liability Thus a statement must have been intentionally, negligently or recklessly

communicated (published) to a third party (someone other then the defamed person)

There is no liability for a defamatory statement made solely to the P Unless there was a reason to believe someone else would over hear it

Ex-“ John is a thief and its written in his diary” (no publication to a third party) but if the Defendant left the diary open on a desk in a public place and someone reads then D has negligently published the defamatory material.

The third person who hears or reads the defamatory statement does not have to believe its true

A third person who repeats the defamation is equally liable even if she states she does not believe it.

Slander- Need to make sure that people understand the language. Is defamation addressed to the ear whereas liable defamation is addressed to

the eye Generally- Need losses- intent is not required

Slander requires special damages to be pleaded and proven (the P actual out of pocket pecuniary loss)

But Slander per se is – no intention and damages required treated like liable where special damages are presumed and do not have

to be pleaded or proven CLAMS- if this is present then no need to prove damages

C- falsely accusing a P of committing a serious crime- NYAA 759

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L- false statement that P has a current (not past) communicable Loathsome disease Ie STD

A- A false statement that specifically reflects –adversely on P’s profession or trade

M- Falsely accusing the P Moral turpitude Ex- fraud, dishonesty, theft or deceit A false statement that a P cheated on the exam or plagarised the

paper. S- a false statement of serious sexual misconduct

If a false statement is heard by someone other than the person defamed, the plaintiff must plead that it was communicated to the third person intentionally or negligently.

Liable Is a false unprivileged publication of face in writing, email, on the internet or

a picture Provind liable damages is easier then slander because defamatory

consequences of liable are more severe Whenever defamation is put in writing- its preserved for a longer period

of time – thus no special damages have to be pleaded or proved- they are presumed

NY adheres to one publication rule- permitting a single claim for liable contained in book, newspapers, websites or other mass publications NYAA 758

Defamation is absolutely privileged even if it was motivated by common law malice (Spite, hatred, meaness or ill will) Under JET LEG circumstances

J- Defamatory statements made in a judicial proceeding by judges, jurors, lawyers, parties or witnesses in

pleadings, motion papers, letters, depositions or trial testimony- NYAA 757

However, to be protected by the privilege the statement must be relevant to the litigation

Exclusion it was totally unrelated to court proceedings- thus indicating it

was solely motivated by a desire to defame. Statements made to someone not involved in the litigation (Press)

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In NY- no defamation claim- for publishing (in press) a fair and substantially accurate account of a judicial proceeding Ex- restating the false allegations in the complaint are

protected E- confidential defamatory communication spoken between spouses who

are deemed one entity- thus spouse speaking defamatory statement to another spouse can not be sued for defamation because there is no element of publication to a third person. Exclusion-

But third persons defamatory statements made to one spouse about the other spouse is not privileged

T- Truth At common law- good reputation was presumed thus the defendant

had the burden of proving that defamatory statement was true Today- this rules does not apply to statements involving matters of

public concern where the Plaintiff must prove statement’s falsity L- Statements by legislators- made in legislature chamber

This protection extends to aids assisting the legislatures Exclusion

However- if the legislator leaves the floor of the house and holds the press conference outside or during a statement or speech in elections- then not privileged

E- Government Executives making defamatory statements in furtherance of their official duties Like a mayor

G- false statements made to bar association’s grievance committee Qualified privilege- can be lost with common law or constitutional malice

A defamatory statement is qualifiedly privileged under LIP circumstances but this privileged is lost if P can prove that defamatory statement was made

1) with common law malice 2) OR Constitutional malice high degree of awareness of its probable falsity

It’s the question of law for court (not for jury) to decide whether a qualified LIP privilege has been lost by D’s malice L- Lower officials of governmental agencies I- False statements by one person to another concerning a subject in which

both parties have “ common interest” in the subject matter It fosters free exchange of information among people of common

interests- NYAA 753 Employee- law school- reference check This protects good faith communication made in discharging a duty in

which the recipient and the corresponding party had an interest P- defamatory to the police or a DA about an alleged criminal activity of the

P- NYAA 757

First amendment considerations- requires actual malice- no negligence required

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Prior to Sullivan vs NY times- First amendment protection did not extend to defamatory statements

Thus a D was liable in tort unless her statement was made with an absolute or qualified privileges

Public official and Public Figures For the first time Sullivan case afforded def. statements with 1st

amendment protection if a defamed person was a public official and the statement related to her official conduct.

The 1st amendment freedom of speech and press protect those who falsely criticize public officials unless the defamed public official can prove by clear and convincing evidence Not only the statement was false (P has the burden of proof) But the D either knew of its falsity or had serious doubt about its truth

but proceeded to publish with reckless disregard of its probable falsity.

US SC called this standard – actual malice AKA constitutional malice. Thus if a newspaper editor thought the statement was true but published

it negligently without investigating its accuracy then the defamed public official will not prevail in the defamation claim Because she would have proved negligence but not actual malice

I,e, the public official did not prove the editor knew that the statement was false or had serious doubts about its truth.

This reckless standard is not measures objectively I.e. whether a reasonably prudent publisher would have published it

This is a subjective test- requiring P to prove that the defendant actually had serious doubts about the statements of truth or there existed a high dgree of awareness of its falsity. Thus if the D truly believed all the false things she said about the

public figure There is no defamation claim

The court has extended this protection beyond public officials to defamation of “public figures” whose names are a house hold word (celebrities in a field AKA well known in X industry)

Private individual – A momentary public figure For a defamed private person who was voluntarily and affirmatively

thrust herself into the limelight of a single public controversy – the US SC has held that states should be given wide latitude in designing a tort remedy for those persons who are for a moment public figures – provided states do not impose liability without fault (i.e. no strict tort liability for defamation)

The SC felt that a pvt. Individual should be protected more from defamatory statements- Because unlike public figures a private individual lacks resources ($)

and access to mass media to rebut the defamatory statement- NYAA 758 Like girlfriend of tiger woods

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MBE- have adopted mere negligent standard thus if by the exercise of reasonable care the D should have discovered that statement was false then the private individual can recover

NY- requires higher proof , by requiring the defamed private person to prove- that D acted in a grossly irresponsible manner

Regardless of a standard- a momentarily public figure can only recover for actual damages which needs to be pleaded and proven no presumed damages no punitive damages unless P can establishes the Sullivan standard of

actual malice If a defamed Private individual in not involved in matter of public concern

and the defamatory statement is a false gossip between speaker and listener then the defamed private person can recover compensatory damages without any finding of common law malice Here a D commits defamation even though he reasonably believed in

the truth of the statement But in order to recover punitive damages the defamed private

person must prove common law malice of the speaker. If the private person was defamed by either

1) liable 2) Slander per se

then compensatory damages can be presumed and do not have to be pleaded or proven

Strict Tort Liability (STL) Is imposed for non negligent or unintended injury to a P or to his property There is no need to establish Intent or Negligence A P only has to establish that the injury was caused by A SWAN activity

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A- abnormally dangerous activity (ADA) A MBE subject Strict tort liability is imposed on a D who knowingly engages in an

abnormally dangerous activity Involving a high degree od risk of serious injury which risk can not be

eliminated by exercising reasonable care or utmost care. Exposing others to this risk justifies imposing strict tort liability.

Dumpors case Under the English Law doctrine of Ryland’s vs Fletcher- a non negligent D

was held liable for the escape of water from the reservoir that flooded a neighbor’s mine Here liability was based on the earlier foreseeable abnormal risk that

D chose to have on his property. The following BODES for court finding an abnormally dangerous activity

B- benefit to the community is outweighed by its high risk of harm O- the activity is not a common occurrence D- There is a high degree of risk of harm involved E- Inability to eliminate that risk through the exercise of the

reasonable care. S- likelihood of severe harm arising of that activity.

Ex—1)the transportation, use, manufacturing or storage of dynamite toxic waste or hazardous nuclear waste

2) the testing of rockets 3) Radio active vapors escaping from a nuclear power plant

Strict liability is nevertheless imposed even the harm was proximately cause by forces of nature Ex lightning or earthquake

Following activities are not covered Fuel stored or delivered for homes or cars Propane gas tanks Electric power lines Underground gas lines

A P assumption of risk (NY would use comparative negligence) of the non negligent operation of an ADA which is a defense to a strict tort liability claim Ex- P entered a construction site to watch dynamite blasting P assumed abnormal risk of dynamite But did not assume the risk of any negligence is using the dynamite In order to recover for P’s injuries- P must prove that the D was negligent

in conducting the ultra hazardous activity unless P was aware of D’s negligence as he approached.

Strict tort liability is not avoided by employing an independent contractor to perform ADA Because there is a non-delegable duty

S- Strict product’s liability (See end of lect 12 and start of 13)

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W- Worker’s job related accidents (Worker Comp) which prevents the worker from suing the employer and fellow employee and the injured can collect worker’s comp insurance benefit- regardless of his own fault

A- Animal injuries inflicted either- NYAA 721-721 By a) wild animals OR b) vicious domestic animals

See pleading Lect 5 Tort law imposes strict liability on a person who harbors (taking care of it)

1) a domestic animal that she knew or should have known was vicious Customarily devoted to serve people

Status is determined at the time and in the place it was kept when P’s injury occurred

Tort law imposes absolute liability for PI caused by a domestic animals if the O knew or should have known of animal’s vicious propensity

A dog is not necessarily entitled to one bite before absolute liability is imposed Look to C whether is demonstrated vicious propensity to bite

(BGs) Did it bite, growl or snap at someone (essay 3 Feb 2010)-

NYAA 723 After biting the dog bites the O knows he is vicious and hence

strict liability Can a court take judicial notice that a pittbull has a vicious

disposition? No- there must be a prior proof of Animal’s prior vicious propensity-

NYAA 724 STL is imposed even though P injuries would not have occurred but

for the unexpected 1) innocent, reckless, negligent conduct of a third person

ex- teasing a dog or letting a lion out of cage 2) actions of another animals 3) forces of nature

A storm overturned a circus truck and wild animals escaped In MBE----- a person injured by non vicious domestic animal can

assert a claim based in negligence on how the animal was kept and supervised in light of the foreseeable danger to those entering the land Liability arises where the D failed to take reasonable measures to

prevent a foreseeable injury in light of normal characteristics of that animal. – NYAA 722

NY does not apply this rule. 2) a Wild animals

are those which as a matter of common knowledge

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are ferocious or Unpredictable

Harboring a wild animals is strictly liable for PI or physical damage directly caused by the animal

If the wild animal escapes- liability continues indefinitely until the animal is captures

Absolute liability is imposed for injuries resulting from 1) an attack 2) fear of an attack 3) fear by other animals who then proximately cause PI or property

damage who react to that fear If the wild animal has not escaped and is under owner’s control (Ex- circus

animals or wild animals in a Zoo) then liability for reaction of humans or other animals resulting in PI is based on negligence and foreseeability of harm.

Strict tort liability is limited to harmful results of the Animals normal dangerous propensities. Where Bear gets out when his locked is broken by lightning- injures P-

strict tort liability But where the Bear has lost his vicious propensity but P tumbles over a

sleeping bear- then has to prove negligence on the part of the owner. Problem

X kept C a chimpanzee, thoroughly tamed and accustomed to playing with children

C escaped even thought X took every precaution to keep C caged A year later it approached a group of young children – M mother thinking

C was wild and dangerous and was going to attack kids- fearfully rushed to children aid- in this she broke her leg

X is strictly liable because M;s injury arose from her fear of an attach by that animal.

**** Strict Tort liability for animals is not imposed for the benefit of TPs

However, negligence liability may be imposed on the basis of how the animal is kept OR for failing to control the animal once the presence of TP was

discovered OR the land was frequently used by TPs

Control of animals Animal O will be liable in negligence for failing to properly confine and

animal usually fenced in Horse, cows or donkeys

The injured P will invoke Res Ipsa doctrine Even though the O exercised reasonable care to fence in the animal –

strict liability is imposed for property damage caused by TP animals

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inclined to roam but this liability is not imposed for dogs and cats that cause property damage.

N- Negligence per se- proximate cause is required Absent a valid excuse the violation of statutory safety standard of care

(speeding, red light or stop sign , Driving while intoxicated, building code violations or smoke detector requirements) is negligence per se= which is a conclusive presumption of negligence which a jury has to accept (SJ or a directed verdict) However, to successfully assert this doctrine P must establish

1) A D’s violations of criminal or civil safety statute proximately caused P’s injuries Ex- A statute- all vessels on great lakes must provide life boats- A steam boat set out without any life boats Severe storm and P fell overboard and drowned If the Ship had a life boat- it could not have been launched due to

the severity of the storm Thus the violation of the safety statute was not a proximate cause

of P’s death- Essay 4- July 2011 2) the P was a member of a class of person, the statute was designed

and intended to protect 3) the harm to P was the type of harm the statute was designed and

intended to prevent. Problem- D illegally park next to a fire Hydrant- Passenger was

injured in D’s card- when another car hit D’s illegally parked car Here D parking illegally was the cause in fact of P’s injury but not the

proximate cause (#1 above) Also, P was not a member of class of persons sought to be protected

by the fire hydrant law (#2 above) The statute was not designed and intended to prevent the harm

occurred (#3 above) Most licensing statutes (liquor license, taxi licence or a driving licence or

vehicle registration statute are not susceptible to negligent per se because they are primarily revenue raising and do not seek to prevent harm and do not necessarily seek to protect class of persons. Driving without a valid DL is not negligence per se

NYAA Jan2012-1 In NY only the violation of LOCAL SAFETY ORDINANCE or AN ADMIN

AGENCY SAFETY REQUIREMENT is not negligence per se and is deemed only some evidence of negligence which a jury may consider – NYAA 804, 722

Problem: D was driving a truck carrying a dynamite without a state permit to

transport dynamite- truck was in an accident and because of a defectively manufactured latch on the truck – a box of dynamite fell out- did not explode but bounced P a pedestrian

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Here neither STL for ADA (dynamite) nor negligence per se apply D would be liable only if P could establish that D’s negligence conduct

proximately cause P’s injury Negligence per se does not apply to the following

1) even with due diligence and care the D could not have complied with the safety statute Ex- D;s car was stopped at the red light and was hit from the rear

pushing D into the intersection colliding with P OR Where D unexpectedly had a heart attach and his car crosses into

oncoming traffic 2) the D acted under a unanticipated and sudden emergency –like child

unexpedetely comes in OR 3) Violating the statute was safer then complying with it.

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Intentional tort

IT consists of 2 major categories 1) intentional tortious conduct against P’s person

Ex- a battery (harmful or offensie contact), assault, false imprisonment, malicious prosecution or intentional infliction of emotional distress.

2) Intentional tortious conduct to property Ex- conversion, TP, or a tortious interference with a contract.

Intent is different from negligence Intent is a desire (motivated by malice, humor or mistake) to bring about a

physical or mental impact on another’s person or property. Intent is D’s desire or her objective in acting A D’s intent can be implied where consequences of D’s conduct were

substantially certain to occur The jury can imply that D intended the natural and probable consequences of

his probable act. Ex- by firing a gun in middle of a deserted island= D intends to pull the

trigger- if that bullet hits X hiding- D did not intend or desire that harmful contact and under circumstances it was not substantially certain to happen.

However, if this in a crowded bar- Then the jury can conclude that D intended resulting PI because it was substantially certain to happen.

Proof of damages is not required to establish a prima facie intentional tort case Eco and non economic damages are presumed from an intentional tort

Sleepwalkers are not liable for their acts since their acts are not voluntary Reflex or convulsive movements are not deemed intentional conduct.

Tort of Assault An assault is

1) An attempted battery (attempt mean to try but no success) OR 2) An attempt to cause apprehension of an immediate battery by D’s

display of violence or threatening gesture

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It is D’s intent to frighten the P but some overt act or aggressive gesture is required- Essay 4- Feb 2011

An Assault is a mental invasion where as a battery is physical contact with P

An Assault results in P’s apprehension of immediate harmful or offensive contact rather then the contact itself.

Merely abusive, angry or insulting language does not constitute the tort of assault

Fear by the P is not required just as long as the P believes she will be subjected to immediate and harmful contact.

A P must be aware of the assault – she can not be unconscious or asleep The P must experience the apprehension for her own safety

And not because of a possible battery to a third person It does not matter that the assault was intended to be a joke just as long P

experienced apprehension for her own safety The D must have been in a position to IMMEDIEALTY CARRY OUT THE

THREAT i.e. to immediately carry out the battery. A threat on a phone is not an assault

Future threats are not assaults Conditional threats are not assaults

A conditional threat can be an assault if accompanied by display of excessive and unreasonable display of threat or force Ex- I will throw this brick unless get out of the car Get off my property or I will carry you off is not an assault because it

was a conditional threat + possessor of realty is allowed to use reasonable force to expel a TP

Tort of Battery A D commits the tort of battery when he intentionally causes harmful or

offensive bodily contact with the P An accidental touching may be negligence but not a battery And a battery does not arise from ordinary acceptable social contact “intent” required for a battery is the contact (harmful or offensive) and it’s

not the resulting intended or unintended harm to the P EX- D was sitting next to P in a class- Without warning D kissed P on lips (offensive contact) The chemicals on D’s lipsticks caused an allergic reaction and P had to be

hospitalized. D is liable for P’s injuries

A battery can be either 1) D intentionally inflicting harmful or offensive contact on P

Offensive is disagreeable, disgusting or nauseating conduct that would offend a reasonable person

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2) D’s intentionally committing an assault (an intent to cause apprehension) that accidentally and unintentionally causes harmful or offensive contact with P Where D plays a trick on her resulting in P falling down – even though

D never touched P- D’s intention of committing assault resulted in harmful contact on P

Transferred intent Used in both in tort and criminal law

Ex- X intended to firethen A – X threw a bottle at A and it missed A and flew and hit Z.

Under the doctrine of transferred intent-Z can sue X because battery arose from an assault resulting in Z’a harmful or offensive contact by X’s intentional conduct.

Problem D attempted to punch X because X had insulted D’s girl friend D’s punch missed X and hit P instead D is liable for P’s battery even though D negligently hit P D’s liability is based on the doctrine of transferred intent Also if X was aware of D’s attempted battery and X was

apprehensive then D would be liable to X for tort of assault. Essay 4- Feb 2006

Extended liability ( Transferred intent) whenever a D intends to commit – a battery- an assault or false imprisonment then D is liable for any of these three torts that result to the intended victim or to 3rd parties Regardless it was foreseeable, intended or not

Ex- D committed a violent battery on X But P=X’s friend was standing nearby and became apprehensive of

a battery Here under the doctrine of extended liability D is liable to P for the

tort of assault In criminal transferred intent is much narrower- because the intent to

commit one type crime can not be transferred to another type of resulting crime. D threw a brick intending to hit X

Criminal battery But brick missed X and smashed O’s window

Criminal Mischief D is not guilty of criminal mischief- because D lacked the intent to

commit that crime The D does not have to directly strike the P-

It is sufficient that D intentionally set in motion a force that produced the harmful or offensive result.

There must be some contact with the P – his clothing or something he is holding- Contact can be direct or indirect

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Ex- slamming a door in someone’s face or creaking the crutch of a P.

Except for ordinary social contact – no matter how trivial the instant- a battery claim arises. Second hand smoke blown in someone’s face, intentionally= battery

Frequently used defenses 1) Consent to the touching

People consent to ordinary social contact- thus when a P participates in a sporting event or enters a crowded subway or room - there is an implied consent of reasonable contact

A person does not have to tolerate contact by a stranger which otherwise would be allowed by an intimate friend.

If a P indicated to a D that she does not want to be subjected to ordinary touching then thereafter such touching may be a battery Do Q 23 in class

In NY and MBE- A P consent to a fist fight will defeat a battery claim

unless the severity of battery exceeds the consent If consent to the contact was obtained by fraud or mistake then it will

void the consent but only if mistake goes to a material aspect of touching thereby rendering it harmful or offensive. In order to sue D for battery ---P’s mistake must go to the nature and

quality of the intended touching rendering the contact harmful or offensive And D must be aware of P’s mistake

Identical twins Problem- P prostitute consented to have sex with D – D paid her with a

bounced check- Remedy for this fraud is not the tort of battery but a tort action for deceit or breach of contract claim subject to D’s I FUMED and I SIP defense of illegality but P will counter with THUG Here Ps mistake related to a collateral matter and not to nature or

quality of P’s contact therefore no battery. Problem- X knew that X had STD But engaged in consensual sex with Y Y has a battery claim against X because Y;s consent was due to a mistake

of a material aspect of the contact making the contact with X harmful or offensive and X was aware of Y’s mistake.

Y also has a claim for the intentional infliction of emotional harm for X;s extreme and outrageous conduct provided Y suffered severe emotional distress.

AN outrageous insult provoking D;s immediate MBE battery do not justify the battery but the jury can consider in mitigating punitive damages

In NY the jury can also consider the P’ provocations to mitigate compensatory damages + punitive damages

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2) self defense (justification) same for tort and criminal law this defense is based on the reasonable use of force that D reasonably

believed necessary to protect himself or another from an imminent threat of an assault, battery or false imprisonment even if the D was mistaken

It can be used to protect against another’s negligent conduct No justification unless the threat of force is immediate Defense Can not be invoked based on the threat of a future battery The issue for the jury is whether a reasonable person under similar

circumstances would have believed whether force was necessary for self defense and whether the force use was reasonable (can not be excessive)

Deadly force can be used only to prevent another’s use or threatened use of DEADLY FORCE

In majority of states (NY and Restatement) duty to retreat when faced with deadly force if the D could do so with complete safety. Unless the D was inside his own home- no duty to retreat

There is never a duty to retreat before using physical force in self defense If the D is justified in using force but in doing so unintentionally, kills or

injures a by stander- D’s use of force is nevertheless exempted And D will not be liable to the bystander unless D used the force

NEGLIGENTLY The D’s negligent conduct will be determined under the circumstances

(unexpected and sudden emergency situation) unless the D started the argument or should have foreseen it.

In a majority of states when protecting a 3rd person from a possible battery the D can assert self defense only to the extent the person aided could have justifiably used force Thus the person coming to rescue of a 3rd person takes the risk that

the person being aided would not have been able to assert justification under the circumstances. i.e. the D steps into the shoes of the person being aided

MBE and NY allow a D to use force to protect a third person if such force reasonably appear to be necessary, even though D was mistaken NY penal law follows the same rule.

DEADLY FORCE for the protection of personal property or to expel a TP from a land is not justified

NY penal law allows deadly force to prevent what D reasonably believed was a burglary ,robbery , arson, kidnapping or a forcible sexual act

Even a reasonable mistake in using the force for the protection of real or personal property is not a justifiable defense Ex- P enters D’s land With an SIT privilege – (b/c of a severe and immediate threat to P off

the land)- but D mistakenly believes P is a TP and forcibly oust the P- P has a battery claim and can recover for any personal injury or

property damage resulting from D’s wrongful ejection.

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The use of reasonable force is justifiable to immediately recover stolen property but it must be done in hot pursuit. A demand for the return of the property first must be made and only

reasonable force can be used. If there is any lapse of time then the justification for the force

lapses and the tort of battery occurs D should have resorted to the police or sued the thief civilly for

conversion or replevin If there was a bailment between P and D- and the bailee wrongfully

refused to return the chattel – then the balior can not resort to force to retake the bailed property- see q#25

A custodian of children ( a teacher, parent or a guardian) is privileged to use reasonable force to prevent a third person from injuring the children or prevent the child from inflicting the property damage or PI on 3rd persons

False imprisonment (FI) Is an unprivileged confinement or restraint of another against her will for

any period of time. Can be a locked door preventing Ps departure or it can involve elements of

assault or battery Future threats are not sufficient

Ex- if you try to leave I will the call the police and have you arrested P must

1) know of the confinement 2) be unaware of the restraint but must suffer actual harm because of it

ex- hunger, thirst or a resulting illness ex- a sleeping child is locked in and suffers injury

The P must have no known reasonable avenues of escape (subjective test) FI invites an escape but the P must use reasonable care in attempting the

escape A P is not required to risk harm to himself, property or subject himself to

liability to escape Even if an avenue of escape exists the P does not have to use it if it would

offend a reasonable person’s sense of dignity Ex- an exit tunnel with rats or raw sewage

A mistake in the identity of the person confined or a good faith mistake the confinement was justified is not a defense to FI

There is a privilege to confine a deranged or an intoxicated person to prevent an immediate harm to that person or 3rd persons

Merchants are privileged to detain suspect shop lifters for a REASONABLE TIME and in a REASONABLE MANNER provided there is a REASEONABLE GROUND TO BELIVE THAT THE SHOPPER WAS A THIEF

False arrest (FA) Is FI by someone asserting a legal auth to do so

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Damages for loss of reputation, emotional harm or other repercussion from the FA are measured from the time of the FA to the time of the person presentment in the court Thereafter a confinement is no longer false but is supported by some

judicial auth Any damages thereafter can be pursued in a claim for malicious

prosecution A FA with a warrant

An arrest made pursuant to a judicial arrest warrant valid on its face is priviled from a civil claim against the arresting officer even though the warrant was erroneously issued by a judge (no probable cause) or even if the officer arrested the wrong person provided his mistake was objectively reasonable. Ie- he exercised reasonable care to ascertain the person he was

arresting was the person named in the warrant If the officer unreasonably arrested a wrong person then the privilege is

lost and FA liability arises NYAA 770

Warrantless FA A claim for warrantless FA can be defeated by showing the arrest was

made on probable cause OR where the person arrested subsequently is found guilty of a crime

If falsely arrested person is subsequently indicted by a grand jury- this is admissible in a civil action that there was some probable cause to make the warrantless arrest A subsequent conviction is conclusive evidence of probable cause

whereas dismissal of criminal charges or D’s acquittal of the charge is admissible in the civil case to show an absence of probable cause but it is not conclusive on the issue.

A person who calls the police or initiates a criminal complaint that results in a arrest by the police is not liable for a FA However, if she supplied information to police she knew was false

then malicious prosecution liability arises NYAA 770

A peace officer (for any offence) or a private citizen (for a felony) can make a warrantless probable cause arrest for a crime that is committed or reasonably appears to have been committed in his presence and he is not relying on someone’s hearsay that the crime occurred

To make a warrantless arrest for a prior felony (he did not see it happen) and he is relying on hear say statement then the officer must reasonably believe (even mistakenly) 1) a felony has been committed AND 2) he was arresting the felon

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NY permits a police officer to make a warrantless arrest for any offence based on probable cause even though it was not committed in the officer’s presence

A citizen’s arrest for a prior felony that the citizen did not see happen is privileged only if in fact that the felony was committed and there was a reasonable belief (even mistakenly) that he was arresting the felon

However, in NY, which does not like Citizen’s arrest The person arrested must in fact have committed the felony.

Otherwise the tort of FA arises

Malicious prosecution

This involves a D’s spiteful and malicious use of litigation without any probable cause in order to cause harm

It must be an action commenced with conscious falsity And P must allege that there was no probable cause to prosecute and the

purpose for doing so was malicious ELEMENTS FOR MP (conjunctive)

MAT M - D commenced or continued proceeding out of malice (common law

standard) A- an absence of probable cause to believe that P could be successfully

prosecuted No reasonable chance of prevailing on the claim if a criminal complaint is sustained after a court conducts a prelim

hearing (felon hearing) or the case is presented to grand jury and they indict then a presumption of probable cause arises which can be overcome only by showing Fraud Perjury OR That the evidence was withheld from the court

A party’s conviction by plea or verdict conclusively established a probable cause Defeating claims for MP or FA

T- Termination of MP in favor of the accused (D) Either

A) on merits (acquittal) OR B) a dismissal that is not inconsistent with innocence- NYAA 788-

789 If the criminal proceeding was dismissed because the DA advised the

court that even though there was a probable cause for the arrest the evidence was insufficient to prove beyond a reasonable cause and ask the court to dismiss the claim. Court= this would defeat a MP claim

In NY = there can be no MP cause of action of a civil claim being commenced even though that claim was groundless and lacked any probable cause

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When a MP claim is based on a civil claim then the complaint must set forth a special injury Ex- seizure of the P’s property by use of a PR (LIAR) OR a civil arrest

(contempt proceedings)

Abuse of process This tort has 3 elements (AND)

1) issued process (criminal and civil) 2) an intent to cause harm without justification 3) using the legal process in a perverted manner to gain an advantage in a

court proceeding bad faith litigation tactics

This tort is similar to MP because both torts require an improper spiteful purpose for which the litigation process is used- abuse of process does not require that the proceeding be favorably terminated Ex- 1) an excessive FIND CJ pre- trial attachment of D’s property to coerce

a D in settlement 2) a real estate broker filing a LP on a seller’s realty to delay the closing

so broker could negotiate his fee with the seller 3) Issuing subpoena to 90 members of a labor union to appear at the

same time for a EBT

Intentional infliction of emotional harm AKA the tort of outrage MBELB- T71-73 (NY does not test on it) This tort requires proof that the D intended to inflict severe emotional

distress on P or knew it was substantially certain to happen and P MUST SUFFER SEVERE AND DIBILTATING EMOTIONAL HARM

Emotional harm includes all highly unpleasant mental reactions Freight, horror, grief, shame, depression, loss of sleep, loss of sexual

interest, increased level of anxiety. This tort requires the P to establish two elements

1) The D’s intentional or reckless CEO C- conduct E- extreme O- outrageous

AND 2) P’s emotional suffering must be SAD

S- severe and D- devastating

CEO requirements prevent trivial complaints and assures P’s EI claim is genuine

D’s conduct must exceed all bounds of decency And must be considered intolerable.

The D’s conduct must consist of more then ethnic or religious slurs, profanity or indignity

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A physical injury is not necessary for this tort NY’s COA has rejected every SAD CEO claim because of CEO ie, D;s conduct

was not extreme and outrageous Many states recognize this tort when a non custodial parent kidnaps the child

from the custodial parent

Negligent infliction of serious emotional harm MBELB T-17-20 To prevent fraudulent claims based on negligently inflicted emotional

suffering the P must prove 1) She was with in zone of impact or danger caused by D’s negligent

conduct I,e. a duty of care was owed by D to P

2) The Ds negligent conduct would have severely distressed a reasonable person

3) D’s negligent conduct caused both Psychological AND Physical injury- CAN BECOME SICK

A mere impact (car hitting another car) is not sufficient If only mental distress is negligently cause – not compensable

because some physical manifestation of the emotional distress is required because emotional harm is highly subjective, easy to pretend and difficult to verify

BUT On a case by case basis – NY and MBE allow recovery for a emotional injury negligently caused where there is no physical injury but only where Facts sufficiently guarantee the genuine of P’s emotional injury

claim. NYAA 801-803

Ex- negligently reporting that a close family member has died Negligently mishandling a corpse

Because these claims are deemed inherently genuine To recover for AIDS phobia (fear of developing AIDS) by pricking a

finger on a negligently discarded needle in a hospital- P must prove 1) The P developed HIV virus 2) OR the P was in fact exposed to HIV and thus there is a

likelihood of developing HIV Problem

P went to doc X- who advised P that she had a bad disease P got home and Doc X called and said

1) ha ha- it’s a joke Doc X conduct was a CEO and would be an intentional

infliction of emotional distress provided P suffered SAD emotional harm

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No accompanying PI required for this tort 2) I am sorry I made a mistake

Negligent infliction of the emotional harm- which usually requires a PI to support this claim NY ct held – even without a PI these facts assured

emotional harm was suffered by P allowing P to recover from Doc X for his negligent infliction of emotional distress. NYAA 802

Assume P told H her husband about Doc X- H beat P up because H thought P was being unfaithful Q: can P sue doc X for H’s beating? A: No- because a negligent tortfeasor is not liable for a criminal

act of a third person made possible by his negligence unless the third party conduct was foreseeable when Doc X negligently told P of her condition

By Standers suffering of emotional distress- need to be a family member or need to suffer PI and must be with in a zone of danger. Mental distress suffered by a bystander who was present and witnessed an

intentional tort committed on a victim can recover if D was aware of By standers presence so that the mental impact on the bystander was foreseeable

When a D acts intentionally – he intends not only desired results but also those results he knows are substantially certain to happen

By standers, not immediate family members can not recover for their

emotional distress unless accompanied by a PI. A NY bystander can not recover for SAD emotional harm caused from

witnessing of victim’s injury negligently inflicted unless D;s negligence also threatened to harm the bystander (bystander was with in the zone of danger and a duty was owed to the

bystander by the tortfeasor) AND

A) P suffers some physical harm OR B) no physical harm is required if the bystander is an immediate

member of the injured person’s family (not an aunt or a fiancée) Essay 3- Feb 2010- NYEB 683 Pg 395-396 essay 4

When H beat up W in front of C- then W has a claim for battery and C can sue H for IIED provided C suffers extreme emotional distress watching W beaten

H’s conduct would also constitute the crime of criminal battery to W as well as the crime of endangering the welfare of the child- NYAA 803

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Most states (not NY) have replaced the Zone of danger requirement by allowing a close family member to recover purely for emotional harm (no PI) provided the family member 1) Present but no in the zone of danger AND 2) Knew of the injury

Intentional Torts re Property

Tort of conversion- Conversion is an intentional tort committed against another’s personal

property- realty can not be converted but computer records and data can be converted

Is an intentional act that SUBSTANTIALLY INTERFERS with another’s use, possession or enjoyment of chattel Ex- where D steals or intentionally destroys another’s goods

Conversion can also be an unauthorized alteration of a personal property – changing it in a fundamental way

It is an intentional unauthorized assumption--- an exercise of ownership over goods belonging to another to the exclusion of O’s rights.

A mistake as to the O is not a defense. Remedies

When a conversion occurs a P cannot be compelled to take the stolen goods and can sue the D for the market value of goods on the date of conversion. Where goods value fluctuates (commodities or shares) then the P can

recover the highest value between the date of conversion and date of trial

Alternatively, can commence a Replevin action to recover back the chattel Prior to trial she can seek an order of seizure to have the sheriff seize

the chattel and deliver to P for safekeeping. Under CPLR Art 710 she must post the bond for twice the value of the

good Where a creditor with a perfected security interest breached the peace in re

possessing the secured collateral then the creditor is liable for the tort of conversion and possible punitive damages

Trespass to chattel- Where intentional interference with P’s possessory interest is minor

and brief Not a conversion but a TP to chattel

Where D’s dominion and control over the chattel is brief and with no intent to steal – Although can sue for the FMRV for the use of the chattel

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But- Damages will be imposed if the property is damaged while in D’s possession- even though D may not have been at fault for that damage Then arises a forced sale of the chattel.

Exception to TP of chattel A person is privileged to commit an act in order to protect herself, a

third person or property But is subject to liability if any harm done to chattel

If possession of the chattel originally was lawful (chattel was borrowed under bailment) then the tort of conversion arises when a person possession that chattel refuses to return it after a demand or sooner if D disposes (sell or gift) that property (prior to a demand)

Problem- Is B a BFP who buys chattel from a thief liable for conversion to the

true owner? B gets no title to the chattel and in

MBE commits the tort of conversion the moment B takes possession of the stolen goods

In NY- The tort of conversion arises only when BFP fails to return goods on demand OR sooner disposes the chattel- at which point 3 year SOL starts to run.

Q: if b a bailee losses a bailed product or B drops and destroys – is B liable for the tort of conversion?

A: No- because B did not intentionally assert the wrongful dominion over the chattel But instead failed to exercise reasonable care (negligence and

not conversion) However, if B mistakenly sales the product to B in ordinary

course of business Then B has intentionally exercised dominion and control

(he desired to transfer title) and is inconsistent with O’s property rights = tort of conversion.

Buyer will prevail in such a case- entrusting rule of UCC art 2

Tort of TP TP is a physical entry onto another’s land without justification, privilege or

the express or implied permission of the possessor A TPs entry can be either

A) intentional B) reckless OR C) negligent

The MBE possessor owes no duty of reasonable care to TP NY possessor does owe a duty to a TP

Since NY treats everyone entering the land as an invitee even the TP MBE- a possessor has no duty

1) to inspect, warn or to keep the land safe 2) OR to carry on activities so as not to endanger a possible TP

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MBE duty owed to a known TP is to warn of latent dangerous conditions that TP was unlikely to appreciate the danger.

MBE while conducting activities on a land- O can ignore the possibility of a TP Ex- O possessed wooded lands- and he knew hunters (TPs) occasionally

TP during season O placed traps to kill vermin And TP stepped into one of the traps O is not liable to TP If O was out hunting on his land and fired at a bird, where TP was

sleeping – there is no liability to the injured TP The remedy for TPs repeated TP is to sue for damages and to seek an

injunction to prevent for the continuation of TP. If D’s entry originally with P’s implied or express consent – but that consent

is revoked – then if D does not promptly leave the land- tort of TP arises. “Extended liability” is imposed on TPs for unintended non negligent property

damage or a PI proximately caused by TP on the realty- even the though the same liability would not be imposed on a non TP.

An honest good faith mistake as to whose land he thought he was entering – not a defense if D intended to enter that land.

At common law- even if no actual harm occurred because of the TP Ex- a hiker or surveyor enters P’s land or D;s car negligently goes into P’s

land then nominal damages could be awarded regardless whether the TP was intentional or negligent

**The MBE view- is that nominal damages can only be awarded or intentional or mistaken TP thus P has to allege damages to plead a prima facie RAN TP

R- recklessly entering the land A- As a result of an abnormally dangerous activity N- Negligently entering P’s land or causing an object or third person

to enter that land Damages must be pleaded and proven to recover against a RAN TP.

A non negligent unintentional entry onto P’s land is not TP. Ex- crossing on ice and flows in the side shop

Even though the entry caused damage to the property Unless the D was engaging in ADA

ASWAN Reasonable force can be used to expel a TP

The force used is excused and there is no battery claim But the force must be reasonable

This excuse does not allow any ejectment of a TP if it would place the TP in unreasonable danger

Exception to TP- There is no TP to enter another’s property for a “private necessary” i.e. to SIT on the land to protect a person or her property from a Serious and Immediate threat outside the property. But tort law imposes liability for any resulting actual damage on the land.

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There is a privilege to enter another’s land to recapture chattel that has entered another’s land as a result of force’s of nature or to recover stolen goods brought on to that land without O’s consent or

knowledge. But any damage to the land as a result becomes the liability of the

person entering the land. If stolen goods are brought on to another’s land– to which landowner’s

consent or knowledge Those goods can be recaptured and there is no liability for damage to

realty. Force cannot be used against the land owner unless self defense- use

sheriff or sue for replevin Can only use force in one situation to recover stolen goods – in hot

pursuit situations If chattel entered another’s land through the fault of chattel owner- then

there is no privilege to enter the land Remedy is to resort to start a replevin action.

Tortuous interference with the contract (TIWC) – NYAA 843 A person who has knowledge of an existing executor contract and Who intentionally interfered with the contract By inducing a contracting party to breach it – is liable to other contracting

party for the resulting consequential damages. There is no TIWC for inducing a breach of an illegal contract. No TIWC liability against someone who had an economic or fid. Relationship

with the breaching party unless the breach was motivated by fraud or illegality Ex- a lawyer advising a client to breach an executor contract OR SH or Dir advising the corporation to breach the contract

Only a KID can be sued for TIWC (conjunctive) K- D had knowledge of P’s executory contract I- D intentionally induced a contracting party to breach the contract

In NY the contract must be an enforceable contract to be able to claim for TIWC

In MBE- a TIWC claim can also arise from a voidable contract (no signed writing to satisfy SOF), even a contract by will terminable by either party

D- damages resulted from the breach TIWC liability is imposed only against the party which induced the breach

against the party who claims TIWC The contracting party who breached the executory contract is liable only in

contract and not in tort And P can not recover twice for same damages

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Invasion of Privacy- NYAA772-774 IP involves a person’s right to be left alone- from highly offensive invasions of

privacy Requires conduct that RPP would consider outrageous

Damages are assumed An IP can occur in following ways CLIP

C- Commercial misappropriation of P’s name, likeliness or voice without P’s written permission for advertising or commercial purposes by D taking commercial advantage of P’s reputation and prestige

without payment or compensation. Prevents D’s unjust enrichment by D’s theft of P’s goodwill

AKA celebrities right to publicity It is the only IP claim that NY recognizes This tort ends on death

But 16 states allow the right to be asserted after celebrities death There are 2 first amendment exception to this tort

1) A news publications rights to illustrate a news worthy event Even if P’s photo in a fictionalized way

Take a picture of a person randomly and put it in an article Problem

P performed as a human cannonball at a fair Local TV station broadcasted the performance This non- consensual act violated P’s commercial right of

publicity 2) a news publication’s right to re-print as an advertisement

Pictures that previously appeared in that publication to illustrate its newsworthy content Even though it was done purely for motive

L- Publicity placing a P in a highly offensive false light before the public Many states reject this tort claim because it duplicates tort of

defamation D must have had the knowledge of the false light or acted in reckless

disregard as to its falsity and its false light I- Intentionally highly offensive intrusion into P’s seclusion or solitude of

privacy Ex- repeated phone calls by a bill collector Illegally tapping P’s telephone Inserting a peep hole into a motel room or a restaurant NY recognize this peephole situation as a civil claim of SAD CEO under

IIED Ny’s penal law now prohibits video voyeurism into locations where

there is a reasonable expectation of privacy Ex- a bedroom A changing room

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A bathroom Or a room in a hotel

P- Deeply offensive and deeply shocking- not applicable in NY Public disclosure of private facts involving the P The disclosure must be made to a large number of people and not

just to a few Concerning P’s private life and which facts are not in public

record and are of no concern to the public Problem

P’s son dies in the war At his funeral D picketed outside on the public sidewalk

ridiculing soldiers P’s father sued D for SAD CEO and for invasion of privacy for

D’s intrusion into F’s right to solitude and seclusion at the funeral.

US SC overturned the 3 mil verdict because D’s speech was not purely private speech but involved a matter of public interest

The first amendment protects harmful and hurtful speech on public issues and speech can not be prohibited or punished by tort claims

Prima Facie Tort This tort has 5 elements 1) the D’s sole intent to maliciously inflict harm on P 2) Actual economic loss to P 3)No excuse or justification for D’s conduct 4) D’s intentional acts were o/wise lawful 5) P has no other available tort remedy

Reviewing torts Review Negligence and all of other torts Skim through NYAA – not more then 15 cases Tort distinction NYLB- 805-819 Tort quizzes -42-46 NYEB Tort Exam- 573, 183 MBELB NYEB- essay 15 and 16 on torts

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