Term
| What is false imprisonment? |
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Definition
| False impriosnment is an act of constraint. P must be in bounded area. |
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Term
| Can threats ever amount to a false imprisonment? |
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Definition
| Yes. For exmple, someone holds you captive in a room with the door wide open and says, "If you leave I will kill your son." the threat will amount to a false imprisonment if it would induce the reasonable person to not leave. |
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Term
| Can a failure to act ever amount to a false imprisonment? |
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Definition
| Yes. A failure to act may be a form of false imprisonment when D had a pre-existing responsibility to help P to get around. For example, a person who is confined to a wheelchair and his attendant. She leaves him in an aircraft, forgetting to wheel him out. Here, even absent a physical constraint or threat, the care taker may be subjec tto liability for a false imprisonment. |
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Term
| Does it matter if the person who is confined, or a person who is subject to an act of constraint knows of the constraint and actually suffers a harm? |
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Definition
| Yes. If a person who is subject to an act of constraint and is unaware of such a constraint, and does not suffer any injury as a result of the constraint then he will not be able to recover for a false imprisonment. |
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Term
| Is keeping a person out of a place, building etc, considered a form of false imprisonment? |
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Definition
| No. Exclusion is never a form of false imprisonment. |
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Term
| When is an area not considered bounded? |
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Definition
| An area is not considered bounded when there is a reasonable means of escape, nd such means is reasonably discoverable by the plaintiff. |
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Term
| What is not considered a reasonable means of escape? |
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Definition
| Means that are disgusting, dangerous, completely hidden, or humiliating. |
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Term
| What are the elements of IIED? |
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Definition
| P must show: 1. that D's conduct was outrageous AND 2. P must show that she suffered severe distress as a result of the D's outrageous conduct. |
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Term
| What is deemed outrageous for purposes of making out a prima facie case for IIED? |
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Definition
| Conduct is outrageous when D's conduct exceeds all bounds decency tolerated in civilized society. Remember, mere insults are not considered outrageous. for example, A says to B, "I used to have a shirt like that, then my dad got a job." Tha ti snot going to rise to the level of outrageous. |
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Term
| What are some hallmark indicators that conduct is outrageous? |
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Definition
1. Offensive conduct tha tis continuous and repetitive.
2. When a common carrier' conduct is intentionally rude: this goes against our expectations.
3. P is a person who is a member of a fragile class (infant, elderly, pregnant, disabled). With pregnant women, the D must know that hse is preganant in order for D's conduct to be outrageous because for conduct to be outrageous the actor must be acting intentionally. |
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Term
| Can the following conduct be considered outrageous to satisfy the first element of IIED? A co-worker puts a fake snake on his co-workers chair knowing it will scare him. D does not know however that P is ultra sensitive when it comes to snakes. When P |
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Definition
| No. The standard for IIED involves the idea of a reasonable person. When a P is hyper-sensitive to something the jokster, as here is not liable for IIED. |
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Term
| If a D knows of a persons phobia will his conduct be considered outrageous (like in snake examle) when he intnetionally seeks to exploit that fear? |
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Definition
| While hypersensitivity does not generally lead to outrageousness, whn a D knows of the phoba and intentionally exploits it, such conduct s deemed outrageous. |
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Term
| For purposes of proving an IIED, what is severe distress? |
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Definition
| Usually phsical manifestations as a result of the misconduct. Being annoyed or mildly upset not enough. |
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Term
| What are the elements to trespass to land? |
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Definition
| The D must physically invade a persons land. 1. physically invade, 2. land. |
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Term
| There are two general ways tht a person cn trespass on another person's land, what are they? |
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Definition
1. D can enter plaintiff's real estate on foot or in a vehicle. The person does not escape liability because he is unaware that it is private property. What makes it an intentional tort is the D's one foot over another, it does not have to be the actual intent to physically invade.
2. Throwing or propelling a tangible object on neighbor's land is technically a trespass. |
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Term
| What re two main rules that I need to remember when considering intentional torts? |
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Definition
1. Extreme sensitivity of P is ignored in deciding whether the P has a legally cognzable intentional tort claim. we always assume that a vctim of a tort is the average person.
2. no incapacity defenses to intentional torts: they don;t get off the hook: infant, drunk, insane etc. |
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Term
| What two elements are necessary to make out a prima facie case for assault? |
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Definition
| The D puts P in the apprehesion of an immediate battery. |
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Term
| What does apprehension mean in the context of proving an assault? |
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Definition
| In present day parlance, the word apprehension means fear. Fear, however, is not what is needed to make out a prima facie case for assault. Rather apprehension means knowledge of something. So in the context of an assault the D must put P in apprhension (knowledge of) an immediate battery. |
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Term
| If you have A who is 6'5" and 240 lbs of muscle and you have B who is 5'2" and 130 lbs. and the fact pattern tells you that b is holding a stick and waiving it at A, could this be an assault? |
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Definition
| YEs. The standard is not whether A is actually scared of B, but rather if there is a reasonable belief that a A will be touched (battery) by B." B's size is irrlevant. |
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Term
| If D tells P that he is gong to shoot him right now with his gun, but P knows tha this gun does not have any bullets could P's threat of an immediate battery be considered an assault? |
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Definition
| No. We look to the perpective of the P. If he knows that D's threat will not result in a battery then D's threats are moot and don;t rise to the level of an assault. |
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Term
| To have an assault you need __________ and ____________ . |
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Definition
| words of immediacy and conduct. Words can negate conduct. So for example, if you have D who raises his hand toward P as if he was going to punch him, but at the same time says, "if you were not my best friend I would beat you." There is no assault because D's words negate the conduct. |
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Term
| What do trespass to chatels and conversion have in common? |
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Definition
| Both torts involve the intentional interference with personal property (cell phone, wallet, laptop, dog, hat furniture). |
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Term
| In the context of trespass to chattels and conversion, wha tis considered an interference? |
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Definition
| An interference with personal property that will rise to the level of a conversion or a trespass to chattels ranges from damaging the personal property or actually depriving the owner its use (rob ). |
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Term
| Wha tis the difference between trespass to chatels and conversion? |
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Definition
| The magnitude of harm caused to P's personal property. Trespass to chattels generally involves minor damage that can be remedied by fixing etc. A conversion occurs when the damage is so pervasive or so extensive tha tthey D essentially cannot return and repair the propoerty, but rather must pay the P for it. |
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Term
| Can a neighbor's loud music be considered a form of trespass to land? |
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Definition
| No. It is considered a nuisance. |
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Term
| In the context of trespass to land, what does land include? |
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Definition
| A trespass to land includes more than the surface of the P's land. It also includes the reasonable distance below and above P's surface property. |
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Term
| Your 9 year old neighbor stands in his yard and throws a rock across your yard. The rock never hits your land, nor does it break your personal property. the rock actually lands on the other side of your property making it safely to the public street? H |
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Definition
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Term
| What are the three defenses to defamation? |
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Definition
1. Consent: express or implied
2. Truth: When what D said is factually true then he is not liable for defamation.
3. D has a privilege: (2 kinds)
(1) There areabsolute privileges, which are based on the status r identity of the speaker. For example, a husband or wife cannot be held liable for defamation for wha tthey say to one another.
(2) Officers in all three branches of government are immuned to suits for defamation. In the judicial realm, this privilege extends to attorneys litigating and witnesses testifying. These people cannot be sued for defaming someone in the course of litigation, in pleadings, deps, interrog, etc. |
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Term
| What is abandoned property? |
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Definition
| Abandoned property is property that the owner gives up possession, with the intent of relinquishing title to the property. |
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Term
| Who is a finder of abandoned property? |
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Definition
| A finder of abandoned property is a person who intentionally possess the property with the intent to take over title. |
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Term
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Definition
| Lost property is property accidentally parted with, but no intention on th epart of the owner to relinquish title. |
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Term
| What are the two elements in battery? |
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Definition
| 1. D must engage in harmful or offensive contact and 2. The contact must be with the P's person. |
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Term
| In the context of a battery, how do you know when the contact is offensive? |
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Definition
| If the contact is unpermitted by a person of usual sensitivity. Some contact is generally permissible in society, for example, tapping someone on their shoulder to ask them a question. In contrast, walking up to a person and stroking their hair would be a battery because the touching is offensive and generally not permitted by a personal of of ordinary sensitivity. |
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Term
| In the context of a battery, what is considered contact with the P's person? |
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Definition
| Contact is not limited to a physical touching of a person's body, it may also be anything connected to that person (for example f someone touches a grabs a woman's purse that is considered a battery in the arena of tort law (also considered larceny think... cover this in criminal law). |
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Term
| A poisions B's lunch, what tort is committed? |
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Definition
| A battery. The posioned sandwich touches the mouth of B, which causes her harm. |
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Term
| In what two situations are bailees strictly liable? |
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Definition
1. If bailee uses bailor's property in a away that is not odinary or expected and as a result of that misuse the property is damaged.
2. Misdelivery of the bailed item. |
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Term
| A coat check takes P's mink coat before dining. Subsequently, the she wears the coat and gets gum on the coat. IS she liable? |
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Definition
| The bailee is strictly liable. |
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Term
| Does a bailee have a defense for midelivered property? |
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Definition
| Yes. If a person presents the bailee with proper identification or a coat check receipt etc., the bailee can avoid strict liability. |
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Term
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Definition
| A bailment is where a bailor gives his property to a bailee for particular purpose: for example, a person who drops his dress shirs off at the dry cleaner creates a bailor-bailee reltionship. |
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Term
| I lend you my pen... wha tis this? |
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Definition
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Term
| Sometimes a bailment contains property within the bailed property. Are bailees responsible for property within the bailed property? |
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Definition
| A bailee is responsible for property that is ordinarily found within the bailed property. For example, a bailee would be liable for a spare tire in the trunk of a car, when that car was dropped off by the bailor in the bailee's parking garage, and that car was used by the garage clerk for a joyride that resulted in the car's disappearance. |
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Term
| Is a park and lot, where the owner retains the kes to his car create a bailment? |
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Definition
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Term
| What are the affirmative defenses to intentional torts? |
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Definition
1. Consent: interaction where a person has legal caacity to provide permission. ("I have been working out like an animal, come on man, punch me in the stomach feel how hard my abs are."). This wuld be valid express consent. Consent cannot be attained through fraud or duress.
2. Custom or usage (implied consent): If a person goes to a place or engages in an actvity where tortious activity is routine, the person cannot comlain. ex: subway car: battery:? no...professional athlete: shoving: battery? No. |
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Term
| A couple is dating for 4 months, P invites D over for dinner. The lights are dim, wine is chilling, candles are lit, Barry White is in the background. After a great feast, the P invites D into living room for a cocktail. They talk on P's couch. things |
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Definition
| In determining whether a person consented, P's subjective thoughts will not be considered. The objective theory of consent only focuses on the overt conduct. Here she loses because irrespective of what she was thinking, her overt ction would lead the reaonable person to believe that she was consenting to a kiss. Thus, there is no battery. A reaosnable person under those circumstances would not perceive his actions to be harmful or offensive. |
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Term
| A invites B to come over and check out his new 60" screen. A tells B they can watch the Super Bowl and that that he should bring some beer. B arrives and A takes him to the family room where the 60" screen is. A leaves to go to the kitchen and when he |
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Definition
| B has committed a trespass. Consent has a limit. If a person interacts with another within the parameters of the consent he will not be liable. When that person, however, exceeds the boundaries of the consent then he may be liable for a tort. Here, A invited B over to watch a game. All reasonable conduct would be acceptable. For example, using the bathroom. Going into the kitchen for a drink. Checking A's insullation is outside the scope of permissible behavior. |
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Term
| What are the rights of finders of lost property? |
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Definition
The right of finders of lost property depends on the value of the property. If you find property that has a value of $20 or less the finder is required to make a concerted effort to find the rightful owner of that property. After a year, the finder may claim title to that property if the rightful owner is not found.
If the property is worth more than $20, the finder must relinquish it to the police. It will be held by the police for a time tha tis designated by statute. If the property's value exceeds 5K, the police are required to hold the prperty for 3 years. At the end of the three years, or an alterated statutorily prescribed holding time, title to that property passes to the finder who becomes the rightful owner. |
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Term
| What are the two types of gifts? |
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Definition
| inter vivos gift and causa mortis gift. |
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Term
| What is an inter vivos gift? |
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Definition
| It is a gift tha tis made during the grantor's lifetime. |
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Term
| Waht are the three requirements to complete the transaction of giving a gift? In other words, what steps must be taken to make sure a valid gift exists? |
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Definition
1. There has to be donative intent. Meaning the donor has to intend to give up title to the property, not just posession.
2. There must be a valid acceptance of the gift. Silence is enough. If the donee declines the offer of the gift, the gift is not completed and not valid.
3. Valid delivery: The actual item, or something representative of that gift must be actually given to the donee (title, key, certificate of title). |
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Term
| In the context of gifts, if A the donor wirtes a check to B, the donees, and the check is delivered to B, upon delivery of that check, is delivery complete? Is there a valid gift? |
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Definition
| When a gift is a first-party check, delivery is not complete, meaning there is no valid gift given by the donor until that check is cashed. This is so because the donor can always stop the check before the donee has the opportunity to cash it. |
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Term
| When is delivery of a third party check complete, constituting a completed gift made by the donor? |
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Definition
| Upon receipt of the check. Check does not have ot be cashed. |
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Term
| What are the three elements to defamation? |
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Definition
1. D must make a defmatory statement that specifically identifies the P.
2. there must be publication of the defamatory statement: meaning that the D must have told someone other than the P the defamatory statement.
3. P must show damages. |
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Term
| What is a defamatory statement? |
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Definition
| A defamatory statement is a statement that adversely affects the reputation of another. |
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Term
| Can someone's name be an asset? |
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Definition
| Yes. Someone's good repuation may be considered an asset for purposes of calculating damages in a defamation suit. |
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Term
| Can defamation be name-calling? |
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Definition
| No. Defamatio has to publish information about someone, which is deragatory and adversely affects their reputation. |
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Term
| A defamatory statement reflects negatively on a character trait? What are some frequently tested character traits that are defamed? |
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Definition
| honesty, violence, competence, loyalty, sexual modesty. |
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Term
| Does a defamatory statement always have to be explicit? |
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Definition
| No. A defamatory statement can be expressed in a way that is not expressly defamatory, but implicitly attakcs a character trait... can be in the form of an opinion. You ask, what would the reasonable listener conclude from that statement, opinion, etc. |
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Term
| Is this a defamatory statement? Every time J. Smith goes to Clfornia on business he always stays at the Hotel Claifornia. The Hotel California is known as a whore house. |
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Definition
| Yes. this statement is defamatory. Notice, the speaker does not say that J. Smith is a male slut, but implicitly diminishes his reputation by putting his sexual modesty or morality in a negative light. |
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Term
| Can a defamatory statement be made about a dead person wthout liability? |
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Definition
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Term
| Why is measuring the D's pblication of a defamatory statment significant? |
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Definition
| Measuring or quantifying the publication of D's defamatory statement is material in assessing the damages that should be awarded to P. Clearly, the extent of dmage will differ if the D published the defamatory statement to 40 people, in contrast to 4 people. |
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Term
| Does publication of a defamatory statement have to be intentional for it to result in liability? |
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Definition
| No. Publication, even if made negligently, may create a situation where liability may attach. |
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Term
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Definition
| Libel is a subcategory of defamation. Libel is any defamation that is written or captured in a permanent format. A letter or an article in the NY Times may be considered libel. |
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Term
| Does a P have to show damage in order for a jury to assess the P's injury? |
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Definition
| No. A P does not have to show actual damage in order to have the jury consider the extent of its injury. Of course, if the P does show actual damage then it willlead the jury to a more favorable award. |
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Term
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Definition
| Slander is a spoken form of defamation. |
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Term
|
Definition
Slander per se is a statement about another that negatively affects there reputation in the following situations:
statements affiliated with the P's business or profession, involving P's participation in a crime of moral turpitude, a statmeent that imputes unchastity to a woman (this does not apply to men), statement that P suffers from a loathsome disease (leprosy , VD), NY DISTINCTION: Statement that someone is gay is slander per se. |
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Term
| What is the damage rule for slander per se? |
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Definition
| It is the same as libel. A plaintiff alleging slander per se will not have to prove damages in order for the jury to consider the merits of the P's claim. |
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Term
| When making out a prima facie case for slander, does P have to prove damages? |
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Definition
| Yes. This is differen than libel or slander per se which do not require th eP to show damage before the claim is considered by the jury. |
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Term
| If you are making out a prima facie case for slander wha type of damages must you show? |
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Definition
| Loss of job, loss of K, mental or emotional distress... Shame and not being invited to parties is not going to rise to level of requisite damages to be awarded remuneration. |
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Term
| In order for a gift causas mortis to be complete, what must happen? |
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Definition
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Term
| If a donor seeks to give a gift in anticipation of his death, a gift causas mortis, if the donee dies before the donor, what happens to the gift? |
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Definition
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Term
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Definition
| It is a low tech security interest. it is the right to hold onto someone's personal property until a debt is satisfied. |
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Term
| What do you need to have to have a lien situation? |
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Definition
| You need a service rendered and a debtor. |
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Term
| If X gives its agent a gift to be delivered, is that gift complete when X relinquishes the gift to his agent? |
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Definition
| No. The gift is only complete when the gift is given by X's agent to the donee or his agent. |
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Term
| A valid gift causas mortis is made when... |
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Definition
| imminent risk of death is likely to occur. |
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Term
| What are the two types of liens? |
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Definition
| General and specific (maybe special... not clear in my notes) |
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Term
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Definition
| A right of a creditor in an aggregate of property as security for a general balance due. If you relinquish some of the property back to the debtor you still have a security with the rest of the property. |
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Term
| If X holds a specific lien, meaning he holds specfic property as collateral for payment. If Xreturns the property to the debtor, does he still have a lien? |
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Definition
| No. The lien ends upon return of the property. |
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Term
| What are the protective privileges in torts? |
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Definition
| Self-defense, Defense of Property and Defense of Others |
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Term
| To invoke a protective privilege under tort, what must the D show? |
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Definition
| 1. proper timing and 2. The reasonable belief that a tort will be committed. |
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Term
| What does proper timing mean in the context of invokig a protective privilege? |
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Definition
| Propert iming means that D is responding to a tort that is either imminent or in progress. If the tort has already occurred there can be no self-defense. If a protective privilege s commenced after the commission of the tort then the defense, may be deemed a tort itself, not a privledge. |
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Term
| Will a reasonable mistake deprive someone of their defensive privilege? |
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Definition
| No, for example a shopkeeper is not going to be liable for false imprisonment when he reasonably belives that someone has taken property from his store and he detains them to investigate. |
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Term
| Wha tis the rule of proportionality in the context of the employment of a protective privlege in tort? |
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Definition
| The rule of proportionality is that a person seeking to prevent or protect itself from the commission of a tort may use force tha tis proportional to the force that will be used by the tortfeasor, or reasonable in the cirumstnaces. For example someone is about to break your car's windshield, you cannot take out a shotgun and blow him away to prevent a trespass to chattels or even a conversion. |
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Term
| In the context of protective privileges in tort, may deadly force be used? |
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Definition
| Yes. Deadly force may be used if it is prportional and the person reasonably believes they may be killed, or someone else may be killed. In NY, there is a retreat rule, which means that a person is first required to try and retreat before they engage in deadly force. |
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Term
| In NY, name wo examples where retreat from usind deadly force is not required? |
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Definition
| Police officers do not have to retreat before resorting to deadly violence. Additionally, when a NY homeowner is faced with a situation where deadly force is required, and they are in their home, deadly force may be used. Remeber, deadly force maynever be used to protect personal or real property, irresepective of its value. |
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Term
| What is the defense of necessity, and when is it used? |
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Definition
| A person uses the defense of necessity when he commits the following torts: trespass to chattels, conversion or trespass to land. In certain circumstances, there may be a private or public necessity to commit the above torts. |
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Term
| What are the two types of necessities, which are defenses to the intentional torts of trespass to land, trespass to chattels and conversion? |
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Definition
| There is private necessity and public necessity. |
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Term
| What is a public necessity? |
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Definition
| Defendant invades P's property in an emergency situation to protect the community as a whole or at least significant group of people. Acting altruistcally, "savior of the city." |
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Term
| In situations where a D can prove tht his destruction f P's property or use of P's property was a imperative as a public necessity what will his liability be for that damage? |
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Definition
| No liability against the savior. The ublic necessity defense is a total defense. |
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Term
| What is a private necessity? |
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Definition
| D enters P's property to protect his own interest or safety. |
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Term
| What are the three legal consequences of private necessity defense? |
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Definition
1. D must pay for actul harm to chattel, land and buildings.
2. D is never liable for nominal or punitive damages.
3. As long as the emergency is continuous and present, the D has the right to stay on P's land to take refuge. The P does not have the right to dispel or eject from his property, and if he does may be liable for injuries suffered from the D he ejected. |
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Term
| When does P use First Amendment Defamation? |
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Definition
| If what D said was a matter of public concern. For example, Mayor is taking bribes, Athlete is using steroids, High ranking military officer lying about casualties. When the defamation is of public concern, the other forms of defamation may not be used. FAD has a more stringent standard. |
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Term
| In the context of defamation, when can a qualified privilege be invoked? |
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Definition
| A qualified privilege arises where there is a public interest in promoting candor. |
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Term
| What are some of examples where there is qualified privilege, meaning what are ome examples of where we allow an actor to be shielded from liability for statements that do not relfect someone's character in the best way? |
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Definition
| Letters of reccomendation, credit reports, statements made to the police, statements made to disciplinary boards. These are all innstances where we want to exalt the notion of candor. |
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Term
| What makes a qualified privilege qualified? |
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Definition
| In order for a qualified privilege to exist, D must have a reasonable belief in the accuracy of the disputed statement. D must be speaking n good faith. |
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Term
| When does someone lose the qualifed privilige to speak about nother in a way that is harmfult to their reputation? |
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Definition
| If the D is anot acting in good faith and is using the opportunity to be maliscious: to hurt someone. Also, the speach has to be relevant. For example, if a professor is writing letter fo recommendation and is writing all sorts of positiove things in the letter abou the candidate's academic performance, but then in the final lne says, "I think I should tell you that X has VD and leprosy." The qualified immunity does not apply. |
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Term
| When does someone lose the qualifed privilige to speak about another? |
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Definition
| If the D is anot acting in good faith and is using the opportunity to be maliscious: to hurt someone. Also, the speach has to be relevant. For example, if a professor is writing letter fo recommendation and is writing all sorts of positiove things in the letter abou the candidate's academic performance, but then in the final lne says, "I think I should tell you that X has VD and leprosy." The qualified immunity does not apply. |
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Term
| What are the elements of FAD |
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Definition
| 1. Defamatory statement, 2. Publication, 3. Damages, 4. P has the burdent to show tha tthe statmnts are inaccurate. 5. Plaintiff has the burdent to show tha tthe statements were made in ba-faith without a reasonable basis or tha tht eD kew the statements were not true. not investigation may equate to constitutional recklessness. |
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Term
| What are the four privacy law torts and which ones do New York recognize? |
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Definition
| 1. Appropriation (NY reconizes this privacy tort only statutorily) 2. False light 3. Intrusion 4. Disclosure |
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|
Term
1. What is appropriation?
2. What is the remedy for the tort of appropriation?
3. Is ther an exception to the tort appropration? |
|
Definition
1. Appropriation is a privacy tort where D uses P's picture or name without permission or compensation.
2. Injunctive relief and monetary damages.
3. Of course. Do you think anyone wants to make the bar exam too easy. There is a newsworthy exception, whcih mitigates conflicts with the First Amendment. So Newsday can put Tiger Woods picture on the front of its paper wthout permission. |
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Term
1. What is the privacy tort of intrusion?
2. Does violation of this intrusion require a trespass?
3. Is there a showing tha thte P needs to make to recover under intrusion? |
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Definition
1. Intrusion protects against the invasion of ones solitude. Plainly, it protects from unreasonable invasions of one's privacy via spying, eaves dropping, wire tapping or peeping toms.
2. No. Intrusion can be committed by a D who is across the street in his apt. using a telescope to see in P's bedroom.
3. P must show that she had a reasonable expectation of privacy when the intrusion occured. Therefore, it is not an intruion for a D to be peering out of his telescope in his apt. at a woman sitting on a bench in a park. |
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Term
| Is the privacy tort of intrusion available in NY? |
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Definition
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Term
1. What is the privacy tort of false light?
2. What are some differences between false light and defmation?
3. Provide an example of false light? |
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Definition
The tort of false light is when D makes widespread misepresentations about you (either defamatory or non-defamatory). The dissemination must be widespread, which is in contrast to defamation, which only requires publication, which is met by telling one person. The misrepresntation must be objectionable to the average person. This tort may be used in conjunction with defamation.
2.
Publication v. Widespread dissemination
Economic damages v. Squishy damages
Harm ones reputation v. Does not harm one's reputation necessarily.
3. D goes around town and says P is a devout Catholic when in fact he is a Jew. This statement does not harm P's reputation per se, but does put him in a false light.
** The D may in good faith believed that P was a devout Catholic, this good faith however will not protect him from liability.
*Don't gossip. |
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Term
1. What is the privacy tort of disclosure?
2. Are there any exceptions to the privacy disclosure tort? |
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Definition
1. Disclosure is the widespread dissemination of P's confidential information that would be bjectionable to the averae person. For example, widespread distribution of your medical history.
2. Yes. There are two exceptions to privacy the tort of dsclosure: 1. There is a newsworthiness exception: simply, jourrnalits are supposed to ferret out private information and disemminte it for the public good where waranted (so to publish Lance Simon's medical records in the NY Times would be disclosure, but to publih Dick Chemney's medical history is not). 2. The second exception is where a person is living two different lifestyles where she wants to keep the two distinct. Think of the Paula Rule: Homely Judy by day, dominatrix Paula by night. Judy, working for a government official, cannot complain when Robby Rocket reports to the government official that he witnessed her homely Judy squshing a man's nutsack at a local S&M club. YEs Judy/Pauka was genuinely trying to jkeep her two lives distinct, but she cannot complain when she thrusts her second personality into the public where there is a possibility that someone may ruin her exisitng duality no matter that it was her intent to keep her alter ego confidential. |
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Term
| What is a defense to all privacy torts (intrusion, appropriation, false light and disclosure)? |
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Definition
| Consent by the P: either express or implied will suffice. |
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Term
| What are the economic torts? |
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Definition
| Fraud, Prima facie tort, Inducing a breach of K or Negligent misrepresentation. |
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Term
| What is the tort of fraud? |
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Definition
| This is a material misrepresntation that will come up in a hypo tha tinvoles the sale of a car, real property, etc. There are 5 elements to this tort? A. The D must make an afirmative msrepresentation of fact (silence is not enough at CL: so the D does not tell you that the car he is selling you was in 9 accidents in 2 years, but you do ot ask), B. There must be intent or wrecklesness on the part of the D (meaning a legitimate: I don't know will be an defense to fraud), C. The mistatement must be made to induce the sale (so the fact that the D selling his car told you that he likes your blouse may be a lie during the sale, but it would not have nduced you to buy the car, and even if it did, it is not related to the sale of the car), 4. P must show reliance on the affirmative mistatement, 5. P must also show that she suffered an economic damage as a result of D's affirmative misrepresentation. |
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Term
| Wha ti sthe Prima Facie Tort? |
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Definition
| This is catch-all tort that protects P's from intentional unjustified economic harm. A good example of this is when a manufacturer will sell his goods below his cost in order to drive out competitors. |
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Term
1. What is the tort of inducing a breach of K?
2. Are there any defenses? |
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Definition
This is an economic tort, where a D induces another from not performing on a legally cognizable K, which he knows exists. The elements are as follows, P must show that ther was: 1. valid ocnflict, 2. D must have been aware of the K. 3. intentional persuasion by D, 4. A subsequent breach must occur.
2. Yes there is an exception to this tort. A D may persuade a party to breach a K when they have a special relationship. client-attorney, mother-dughter, husband-wife. |
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Term
| Negligent misrepresentation? |
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Definition
| Professor said not important.... look up if have time. |
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Term
| What are the elements of negligence? |
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Definition
| P must prove tha there was a : A. legally cognizable duty, B. D breached that duty, C. the breach was the factual cause of P's injury D. D's breach was the legal cause of the injury sustained by P, E. What are the subsequent damages. |
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Term
| When deciding is a leglly cognizable duty existed wht two questions must you ask? |
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Definition
1. To whom was a duty owed to?
2. How much care do you? |
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Term
| To whom do you generally we a duty to? |
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Definition
| To foreseeable persons who may be injured by your conduct. |
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Term
| People who should recover from your negligence are those in the.... |
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Definition
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Term
| Is there a class of unforeseeable victims that generally recover even when they re not forseeable? |
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Definition
Yes. Rescuers can generally recover, even when they are not a foreseeable victim of the harm.
In NY, fetus in the womb may be an unforeseeable P if he is born with injuries caused by the D. Remember, if the fetus were to die as a result of D's neglience the unborn fetus, nor his parents on his behalf, can recover for his death. Parents, however, may sue the tortfeasor on their own behalf for either injuries sstained to tthe mother directly or for the emotional harm they endure as a result of the loss of their unborn child. |
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Term
| In NY, if a dr. fails to detect the high risk of birth defects is he liable? |
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Definition
| Yes. He may be liable to parents for out of pocket expenses to care for the disabled child. The parents, howeer, will not be able to recover for emotional distress |
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Term
| In NY, if a dr. is sued for malpractice because he did not perform a sterilization procedure correctly, which results in the couple having a fifth child, what is the result? |
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Definition
| The dr.'s malpractice does not result in tort liability. Courts reason that the joy parents will receive from the birth of their child will outweigh the burden created by the dr.'s malpractice. |
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Term
| How much duty do we owe, once we have determined that a duty exists? |
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Definition
| We owe a duty that a reasonably prudent erson would employ under similar circumstances. |
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Term
| In determining if someone who owes a duty is negligent we apply the reasonably prudent person standard. Does negligence law take into account the tortfeasor's personal qualities in determining his capability to be a reasonably prudent person? (another ca |
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Definition
Generally no. The reasonably prident person standard s objective an applies generally. There is, however, a wrachet up theory meaning that we will not excuse people of lesser education or innate intelligence when it comes to pplying the RPP standard, they must be reaosnably prudent rrespective of their ability to be reaosnably prudent. In contrast, a person with superior skill or knowledge must employ those skills in an applicable situation, and if not will be liable, even if their conduct would be considered reasonably prudent.
A caveat to this rule is that people with physical impairments like blindness will be held to a standard of a reasonably prudent blind person. |
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Term
| What other scenarios or characteristics alter the reasonable prudent person standard? |
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Definition
1. Children under 4 never owe a duty of care.
2. children 4-18: apply a customized standard: ask whether a person of that age, experience and intelligence would behave similarly under the given circumstances.
3.When looking at a professional who allegedly committed a tort, the standard is an empirical one. It asks us to compare the accused professional against his peers, not a hypothetical reasonably prudent person. For example, what would another pedetrician in the D's cirumstances say or do? We ask professionals to be conformists... to do what is customarly expected. |
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Term
| For medical professionals how do we measure whether the doctor is negligent, if he has committed medical malpractice? |
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Definition
| Doctors have a special rule. There is no reasonable prudent person standard, it is an empirical one that compares to hs peers. If the doctor has a general practice he will be compared to other doctors in similar settings. For example, a dr. working in a rural small town will be compared to dr.s in a similar environment, not a dr. practicing in NYC. If a doctor is a specialist, hoever, irrespective of where he is practicing, his actions may be compared to any specialist in his field irrespective of the setting. |
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Term
| Under what circumstances will a infant tortfeasor be held to the reasonably prudent person standard? |
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Definition
| An child from 4-18 who engages in "adult activity" (usually operating a motorized apparatus) will be held to the reasonably prudent person standard, not a standard that considers his age, experience and intelligence. |
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Term
| In NY, doctor's are negligent when they do not inform their patients of risks that accompany a treatment. There are four exceptions to this general rule, what are they? |
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Definition
When may a doctor pursue or continue tratment without informed consent?
1. The doctor does not have to explain known risks.
2. The doctor does not have to discuss risks if the patient does not want to hear the risks involved.
3. Dr. does not have to discuss the risks with an incompetent patient.
4. Dr. does not hav to disclose a risk of treatment if disclosing the risk would in itself cause harm to the patient. |
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Term
| What duties do possessors (direct possessors) of land owe to those who come on the land (land, mall, stadium, airport, house et.)? First question is... what is the status of the entrant. What are the statuses? |
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Definition
1. An undiscovered trespasser
2. A discovered trespasser
3. Licensee
4. Invitee |
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Term
| What duties do possessors (direct possessors) of land owe to those who come on the land (land, mall, stadium, airport, house et.)? First question is... what is the status of the entrant. What are the statuses? |
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Definition
1. An undiscovered trespasser
2. A discovered trespasser
3. Licensee
4. Invitee |
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Term
| Who is the undiscovered trespasser, and what duty is owed to hm by the landowner? |
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Definition
| An undiscovered trespasser is a person who is unknown to the landowner and who does nt have permission to enter the land. The landowner owes no duty whatsoever to an undiscovered trespasser. There is no liability for any condition that is on the land. He is out of luck, always loses. |
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Term
| Who is the discovered trespasser, and what duty is owed to him by the landowner? |
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Definition
| A discovered trespasser also included trespassers who are reasonably anticipated by the landowner. The lndower has discovered the trespasser on his land, and he is on the land wthout permission. The landowner owes the discovered trespasser the ordinary care: the care of a reasonably prudent person would provide under the cirumstances. The andowner is obligated to make trespasser aware of any manmade conditions that may cause injury. In contrast, landowener is not responsible for injuries that result from act od mother nature or natural conditions on the land. The landowner also does not have a duty to protect the trespasser from obvious conditions on the land, but does have the responsibility to warn trespasser of latent conditions that may result in injury. The bottom line is that a landowner has a duty to protect trespassers from known man-made death traps. |
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Term
| Who is a licensee and what dty is owed to them? |
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Definition
| A licensee is a person who has permision to be on the land, and who is there without conferring a financial benefit: most commonly a social guest. A landowner must act as a reasonably priudent person in terms of any activities: pour coffee as a reasonably prudent person would. In terms of dangers on the land, the landowner has a duty to protect the licensee from known dangers that are known to them in advance. They are responsible for protecting them from artifical and natural dangers on the land (a bridge that is termite infested nd ready to collapse, a tree with limbs that are ready to fall). I think that the dangers have to be concealed, but I need to verify... meaning if a danger is apparnt to a licensee a andowner is not going to be liable for ot warning... again need to confirm this last part of the rule. |
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Term
| Who are invitees and what is the duty owed to them? |
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Definition
| Invitees are people wo enter land for commercial purposes (generally public places). Here the landowner has a duty to inspect for dangers because they are responsible for protecting invitees from concealed dangers that are known or should be known with reasonable inspection of the premises. The argiment here is generally about wha tis the reaonable leel of inspection... it does not have to be perfect... this up to the jury to decide. |
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Term
| Can firefighters recover for landowner's negligence when injured by fire? |
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Definition
| No. This is their job, an assumption of risk. |
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Term
| What duty is owed to children trespassers? |
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Definition
| Landowner has a heightened duty to make his land safe when it is more probable that children will trespass on the land. When there is an atractive nuisance, landowners have a heighted duty because of the idea of foreseeability. It is foreseeable that a child would rather trespass on land with a pool, trampalen and swing set in compariosn to bare field. In that case, the landowner must act preemptively, take the appropriate steps to protct children. The question is... how would a reasonably prudent person act when they have land with an attractive nuisance on it and children in the neighborhood are young and possibly do not appreciate the danger. |
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Term
| When there is a condition on the land tha tis known to be dangerous to prospective entrants, what can landowners do to either ameliorate the condition or prevent liability? |
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Definition
| The best option is for the landowner is to correct the problem, fix i. If tha ti snot possible, a landowner may verbally pt the entrant on notice of the condition. Alternatively a sign, a warning should suffice. All these considerations will have to be evaluated on a case-by-case basis. |
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Term
| Does NY assign different statuses to entrants on the land? |
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Definition
| No. They ask us to evaluate all entrants on the land the same, applying a reasonable prudent person standard. Therefore, the fact that someone is a trespasser is not going to officially create astandard. You ask, what standard of care would a reasonably prudent person owe to a trespasser under the circumstances? Applies to all statuses. |
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Term
| Is there a duty to act affirmativel, another words is there a duty to act on behalf of a third party? |
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Definition
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Term
| The general rule is that a person does not have to become a rescuer, but what are the exceptions to this general rule? |
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Definition
If the D's conduct put the P in peril, he has a duty to act.
If there is a special relationship there may be a duty to act: close relative: parent, child, spouse: inkeepers and common carriers, invitees (how about licensees). |
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Term
| What is the standard for the duty to rescue? |
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Definition
| You must take affirmative steps to rescue, but it is a reasonable standard. You generally do not have to put your own life at risk. If your husband is drowning and you don;t know how to swim, don't jump in... throw him something, call the police... |
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Term
| May a gratuitious rescuer be liable for injuries caused to the rescuee? |
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Definition
| Yes. If someone takes on the duty to rescue they must act reasonably, their negligence will result in liability. |
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Term
| The general rule is that a person has no duty to rescue another person. In some states good samaritan laws exist, which shield good samaritans from liability. Does NY have one? |
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Definition
| Yes. NY has a good samaritan stattue that shields doctors, nurses and vets from liability when they attempt to rescue another. The statute shields them from ordinary negligence, but they are liable if they are grossly negligent. |
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Term
| When a D strikes a person accidentally with his car tort liability will generally ensue. Is there liability against tortfeasors who are indirectly injured (NIED)? |
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Definition
| A P who alleges that he has been injured indirectly from an accident/ D's negligence can recover for injuries if he can show: 1. that he was in the "zone of danger," (near miss) 2. P must show that the event caused trauma and subsequently resulted in some physical manifestation: rash, ulcer, miscarriage, hives, hear attack etc. (an injury that is observable/measurable: things that are self-reported like nightmares are generally not going to satisfy the P's burden: we need to rule out fraud) 3. |
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Term
| In NY, and some other states a bystander distress claim may be brought. What is this and what are the elements? |
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Definition
| Recover for grief and sorrow that results from watching a loved one being killed or critically injured while you are in the zone of danger with that person. NY's application of this is very narrow. This is for when you watch your child, spouse, parent or sibling being killed or critically injured. |
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Term
| How does P satisfy its burden to show that D breached his duty? |
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Definition
| P must show how D's conduct breached his duty owed. If the standard of care is broad, for example the default standard which says that the D must act as a reaosnably prudent person under the cirumstances then the P must explain wha tthe duty was and why it was breached. If there is a specific duty of care (statutory obligation): D must stop at red lights. The duty here is specific so easier to prove. The D had a duty to stop at a red light. The D did not stop at the red light: GAME OVER! |
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Term
| What must the P do to satisfy the breach element of her negligence COA? |
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Definition
| She must identify the breach and explain why the conduct was wrongful. |
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Term
| Res ipsa locatur: "the thing speaks for itself." Wha tis res ipsa and how is it applied by plaintiff's in negligence actions? |
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Definition
| Res ipsa locatu is a way for plaintiffs to recover when they cannot tell the judge and or jury what it as that the D exactly did to cause their injury. Res ipsa locatur, meaning the thing speaks for itself, is used to satisfy the breach element where the Plaintiff cannot provide facts, but knows because of the injury that negligence must have occured. Therefore in this instance the Court does not need sequential facts, it comes to conclusion of a breach based on the injury sustained and the nature of the injury. To put this in context, consider the plaintiff who bited into a sandwich and encounters something hard. The plainiff removs it from her mouth.... it is a human finger. She does not know how it got in there, but she does know, based on the nature of the injury and the finger in her sandwich that negligence must have occured. The finger in the sandwich speaks for itself. |
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Term
| What are the elements of res ipsa? |
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Definition
| P must show that (1) the accident is one associated with negligence of some kind (its the normally standard.... normally fingers are not in a sandwich) and (2) must show that you sued the right person... (Check this second element). |
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Term
| What is the third element P must show in order to meet its prima facie place? |
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Definition
| Factual causation between the breach and the injury. Remember the breach is the factual cause, not the D. This is where we apply the "but for" test. It commans us to ask: but for the breach the accident would not have happened. Therefore the pedestrian that gets hit by a car argues: but for the driver's looking at the radio he would have seen me and not struck me as I crossed the street. The D wil try to rebut this by saying irrespective of my looking at the radio, even if I were not I still would have hit you because you darted in the street.... but for pedetrian's darting into the street, P would not have been struck. |
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Term
| The P has to prove the "but for" test. How dies this ork when there are multiple D's? In other words, can the D's each successfully claim, but for my negligence the other defendant's conduct would have injured the P anyway? |
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Definition
| Under the situation where a P is injured by multple tortfeasrs' conduct, which merge, meaning they cannot be distinguished, there is a substantial factor test that should be employed by P. The jury is then charged with deciding if one or many D's conduct caused a substantial factor in P's injury. Alternatively when conduct, sich as hunting, cause an injury to a P where the conduct of the D's were simultaneous, the Ds have the burden of showing that they were not the one for causing the injury to the P. The jury determines either individual or joint and several liability. |
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Term
After the P proves the factual cause, the P will have to prove legal causation, meaning how far should the D's liability extend?
What are the traidtional indirect quartet that Courts find there to be legal causation? |
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Definition
1. The proximate cause is predicated on the notion of foreseeability.
2. a. Intervening medical negligence (hit an run... D liable for the injury at the scene and malpracticem for example at the hospital, it is foreseeable that when D thrusts P in the hospital that malpractice may occur, exascerbating the intial injuries.
b. Intervening negligent rescue: As per the same hit and rn driver as above, the driver will be liable not only for the injuries sustained by the accident, but injuries caused by a rescuere who negligently injures the pedestrian.
c. Reaction to negligence: Same hypo, but this time the driver drives into a crowd only hitting that same pedestrian. The crowd scatters and stampedes stepping on the face of the injured pedestrian who is on the street. The initial tortfesor is liable fro all injuries because the injuries were foreseeable... it is faor to make him pay fro such injuries.
d. Subsequent disease or accident: Ped now at the hospital falls and breaks his arm b/c of his injured leg.... driver is responsible... ped gets a transfusion and contracts HIV... driver is liable. |
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Term
| What happens if I receive a question with an indirect injury... that is not one of the 4 stated, what should I ask myself? |
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Definition
| Was the susequent injury, or the injured person, something tha tI would be afraid of? In other words, based on my negligent conduct is who got hurt, or what happened to the victim something or someone that was foreseeable, was it something I could construct in my mind as a possible injury? If I can then it is the legal cause... it is the proximate cause. |
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Term
| What does the P need to show to prove damages? |
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Definition
Show the conduct created losses: loss wages, pain and suffering and out-of-pocket expenses.
Remember on the MBE and in NY when discussing damages, damages may be included when your dealing with a P with an eggshell skull... meaning that the P's suseptibility to an injury is not apparent, but yet the negligent actor is still responsible for augmented damages because of the eggshell skulled P. So the damages will be greater and the P will have to pay for them. |
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Term
| What is the collateral doctrine rule? |
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Definition
| Damages fro a neglience award will be be reduced by the P's receipt of money for her damages by other sources (health insurance: medical insurance). (REMEMBER NY DOES NOT APPLY THE COLLATERAL DOCTRINE RULE). |
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Term
| What are the equitable remedies available in a tort action? |
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Definition
| Prelimiary injunction, permanent injunction, mandatory/negatve injuction (do something/don't do something). |
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Term
| What must a P establish to be entitled to an injunction? |
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Definition
Firsthe P must successfully show the tort, then P must show 4 additioanl things:
1. No adequate remedy at law. Meaning pecuniary damages are not good enough. This may true where the D has no money, or where the harm cannot be quantified in monetary terms (bailee threatening to destroy painting). An injunction is also proper when there is a perpetual problem that would result in relitigating an issue multiple times: for example, misuse of copyrihted material or a trespass to land (negative permanent injunction against D). AND
2. P must show that D has invaded a protectable right or property interest. This element is very braod and is generally met when alleging any invasion on the P.
3. P must show that the injunction will be enforceable. Is there jurisdiction, is there something that can be easily policed, for example rippign down a fence in comparioson to ordering no more defamation, harder to police, not tangible. AND 4. P must show that the balnce of hardships tips in the favor of P. Courts will not order an injunction that will cause an unwarranted hardship on the D: for example, an action tht will put a D out of business. |
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Term
| A D may concede that his conduct was tortious, or not conded to that fact. nonwthless, D may argue that an injunction is not appropriate. What are D's potential defenses? |
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Definition
1. Unclean hands: P must come into equity with clean hands, moral wrongdoing, then an injunction should not be enforced against D.
2. Laches: P has delayed and I now relied on his inaction... I thought my conduct was ok for the last 8 years... why enjoin me now when, for example, I have built my business in a certain way that now the P seeks to enjoin.
3. First A arguments dealing with Media D: newsworthy exception... |
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Term
| What is a preliminary injunction? |
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Definition
It mintains the status quo and issued before a trial. The proponent of the preliminary injunction must show: 1. a likelihood of success on the merits. 2. Without the preliminary injunction that the proponent would suffer irreprable harm.
The court will balance the hardships, which must tip in the proponent's favor in order fro the Court to grant the preliminary injunction.
Proponent must also put up a bond in case they do not win on the merits and the other party is harmed by the PI. |
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Term
| What is the primary affirmative defense to a negligence claim? |
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Definition
| Comparative fault or comparative negligence. |
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Term
| What must the D argue to properly assert comparative fult or negligence? |
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Definition
| The D must assert that the P was negligent in taking proper care for his own safety. If D can prove that the injury caused was partially die to P's own negligencethen the jury can assign fault in percentages. |
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Term
| What is the difference between pure comparative negligence and modified comparative negligence? |
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Definition
| A majority of states follow the pure comparative negigence schem, which allows a P to recover no matter how much at fault she is.... for example, a P may stil recover damages even when the jury determines she is 95% at fault. NY follows this rule (the rule does not apply when the P was engaged in criminal activity: no recovery). In contrast, in a modified comparative negligence scheme, if the D can prove that P was 51% at fault, the P recovers nothing. |
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Term
| When are you strictly liable for your dog's tortious conduct? |
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Definition
| Generally, P's must prove negligence on the owner's part, hich is difficult to do. In situations, however, where the pet is a repeat offender, the owner may be strictly liable (knowledge of pets vicious propensity). Also strictly liable when you have a wild animal, or if you have cattle and they trespass... liable for any damage. In terms of the wild animal and cattle issues, which always are strictly liable, it does not matter how cautious the petwner was... |
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Term
| A D is strictly liable when engaged in ultra hazardous activity... Wha tis the test to determine whether activity is UH? |
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Definition
| 1. It cannot be made reasonably safe given existing technology. 2. The activity is really risky and may result in severe harm. 3. The activity has to be uncommon where it is being conducted. |
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Term
| What are some common examples of UH activity? |
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Definition
| 1. Blasting explosives, 2. Biological/toxic agents, nclear activity, |
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Term
| What are the elements to show product liability (strict liability): |
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Definition
| 1. D must be a merchant (someone who deals routinely in a certain good) (casual sellers are not merchants, however a commercial lessor: car rental are liable: Also everyne in the distribution chain is liable for product liability because no privity of K req'd). 2. Has to show that the product is defective. This may be accomplished in to ways: a. Its one in a million: not the deisg, but a manufacturing defect. b. Design defect: another safer way o construct the product that make it safer. the alternate design, however, nust not be overly costly. Nor the alternate design cannot undermine the core function of the product. (If a product cannot be made safer and does not bear warnings that may make it a design defect too: stricly liable: remebers warning should be clear multi-lingual...pictures). Remember, that a warning will not absolve strict liability when their is a safr alternative design that is cost-neutral or does not defeat the core purpose of the product. 3. P must show that the product has not been altered since it left the D's possession. 4. When P was injured she was using the product in foreseeable manner, does not have to be its intended use though. |
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Term
| What are the relationships that you can find vicarious liability? |
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Definition
| 1. employee/employer, 2. Automobile driver /owner: when driver doing an erand for the owner (MBE), in NY owner liable for all torts committed by the driver who has permission (no vicarius liability car renatl co./driver: even in NY. Parents/Kids: generally not V/L, in NY there is liability for damages up to 5k. Remember there may be situations where a parent is directly liable for their child's tort... for example, arent leaves a loaded gun out. The parent is directly negligent no need to try and use V/L. Co-D's: may recive contribution from other D's. |
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Term
| What are two cases where an actor is vicariously liable, but may seek indemnification? |
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Definition
| retailer ------> manufacturer and car owner --------> tortfeasor driver |
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Term
| When is loss of consortium apply? |
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Definition
| Any tort where the injured is married. Recover for loss of services, loss of society and loss of intimacy. |
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