I. Tort lawA. Issue in every tort case is who should bear the risk of loss. B. Reasons for tort law:

a. Deter wrongful conductb. Encourage socially responsible conduct.c. Provide civilized manner of dispute resolutiond. Compensate those who are wronged

C. Injuries/Damages can bea. To personb. To propertyc. Or economic

i. Not all torts compensate for pure economic loss!

II. INTENTIONAL TORTS (Prima Facie Case Requirements) (Everyone is liable for intentional torts!!)a. Intent

a. You either intend it or you know that it is substantially certain to happen.i. You being the tortfeasor.ii. Garratt v. Dailey (5 year old liable for intentional tort)

b. Transferred Intent DoctrineTalmage v. Smith (man threw stick at boys on his roof)

i. Intent can be transferred from person to personii. Intent can also be transferred from tort to tort

a. Batteryb. Assaultc. False Imprisonmentd. Trespass to lande. Trespass to chattels

b. Informed consent in NY a. (NY Health Law 2805 (d) supplement p. 20)

i. This law governs medical, dental, or podiatric malpractice cases that are brought because of lack of informed consent.

ii. lCause of action is limited toa. Non emergency treatment, procedure, or surgery.b. Invasive diagnostic procedures.

iii. Cause of action is based on the medical provider’s failure to disclose alternatives and the reasonably foreseeable risks and benefits of the procedure.

a. This is based on what a reasonable medical professional would do in similar circumstances.

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All except CONVERSTION & INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS!

iv. It must be established that a reasonably prudent person (patient) would not have undergone the procedure if he/she had been informed. (objective standard)

v. Must also be established that lack of informed consent was the proximate cause of the injury.

b. Defenses to lack of informed consent. i. Risks are commonly known, no disclosure necessary.ii. Patient either said he would do it regardless or that he didn’t want

to know the risks. iii. Was not reasonably possible to get consentiv. Medical professional used reasonable discretion

a. b/c reasonably believed that disclosure would substantially affect the patient’s condition.

c. BatteryWallace v. Rosen (school teacher v. parent...tap on the shoulder)

a. Harmful or offensive contacti. Unpermitted contact can be considered offensive

b. w/ plaintiff’s personi. you don’t have to actually touch plaintiff himself

c. crowded world theory…some ordinary contacts are permitted, such as in Wallace.

d. In NY the intent needed for battery is an intent to cause contact not an intent to cause harm.

d. Assaulta. Imminent Apprehension

i. Must be reasonableii. Apprehension is not fear or intimidationiii. Apparent ability is all that is needed. (i.e. unloaded gun)

b. Of an immediate unpermitted contact (not necessarily battery but maybe)i. Words alone are not enoughii. You must have words coupled with conductiii. Watch out for the fact pattern where words undo conduct!

e. False Imprisonment(Big Town Nursing Home v. Newman….direct restraint of the physical liberty of another without adequate legal justification)

a. Direct restraint of physical libertyi. Threats are enoughii. An act of restraint can consist of inaction

(not providing lady with boat)iii. You have to know of the confinement at that timeiv. Restraint can consist of retention of plaintiff’s property

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a. i.e. (you keep my car keys so I cant leave)b. Bounded area

i. Not bounded if reasonable means of escapeii. Plaintiff has to know about means of escape

c. NY Penal Law section 35.30 (p. 7 of supplement)i. Justification; use of physical force in making an arrest or in

preventing an escape.a. Police officers are held at different standards.b. If a police officer holds someone for a crime and they are

acquitted they cannot sue for false imprisonment. c. If a private citizen holds someone and they are acquitted

they can sue for false imprisonment. f. Intentional Infliction of Emotional Distress

(If you can’t make out the case for another intentional tort try this one)a. Extreme & Outrageous Conduct

i. Outrageous to one plaintiff may not be to one with particular sensitivities.

ii. If conduct is continuous it may be outrageous.b. Damage

i. Severe emotional distressg. Trespass to Land

a. Defendant has invaded plaintiff’s landi. Does not have to personally go onto property

b. Some physical object has to go on the landc. Property extends for a reasonable distance up and down.

i. In NY you do not own the ground water that flows underneath your property. Thus, if there is contamination you are not responsible for fixing it unless you caused it.

h. Trespass to Chattels a. Small amount of damage

i. Conversiona. A lot of damageb. Factors to consider when determining the

Seriousness of the interference w/ the chattel:i. the extent and duration of the actor’s exercise of controlii. the actor’s good faithiii. the harm done to the chatteliv. the inconvenience and expense caused to the other.

III. DEFENSES (To Intentional Torts)

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Chattels are personal property! Conversion involves a lot of damage to personal property while trespass may only be a little damage!

(There are 9 only really covered 7)a. Consent

a. Plaintiff must have had capacity to consentb. Must have consent

i. Consent can be express (words were used)ii. Consent can be implied (words were not used)

a. Custom in usage a. sports

b. Plaintiff’s conducta. Lady getting vaccinated O’Brien v. Cunard

iii. Medical Malpractice (Mohr v. Williams (operated on ear that wasn’t consent to)

a. See NY Health Law 2805 (d) informed consent (above)iv. Consent based on deceit is invalid (De May v. Roberts –lady

having baby)v. Physicians must disclose possible conflicts of interest vi. Medical providers may act in the absence of express consent if:

a. The patient is unable to give consent (i.e. unconscious)b. There is a risk of serious bodily harm if there is a delayc. Reasonable person would consent to treatment under the

circumstances.d. The physician has no reason to believe the patient would

refuse treatment under the circumstances. vii. Competent adults may refuse life saving medical treatment.

c. Check to see if defendant exceeded the boundaries of the consent!b. Self Defense, Defense of Others, & Defense of Property

a. NY Penal Law 35.05, 35.10, 35.15, & 35.20 tell us how much force is justifiable in different circumstances.(p. 9 of supplement)

i. 35.05 – tells us about justifiable in generala. When conduct is authorized by law, a judge, or is done by a

public servant in reasonably exercising his official duties.b. Emergency to avoid imminent public or private injury.

ii. 35.10 – justifiable use of physical force in generala. If they reasonably believe it necessary to maintain

discipline or to promote the welfare of someone under 21; parent, guardian, or teacher may use physical force but not deadly force.

b. Wardens and prison officials can use as much force authorized by the correction law.

c. Common carrier employees may use physical force to the extent necessary to maintain order and deadly physical

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force only it is reasonably necessary to prevent death or serious physical injury.

d. Anyone can use it to prevent a suicide or prevent someone from injuring themselves.

e. Physicians may use physical force in consented treatments or in emergencies where they couldn’t get consent.

f. Anyone can use it for self defense, defense of others, to prevent larceny or vandalism, to make a citizen’s arrest or prevent an escape.

iii. 35.15 – physical force in defense of a person can be used unless:a. You provoked them w/ the intent to cause physical injuryb. You were the aggressor (unless you withdrew and they kept

going).c. Combat by agreement not specifically authorized by the

law.d. MAY NOT USE DEADLY PHYSICAL FORCE

UNLESS!a. You reasonably believe the other person is about to

use deadly force on you.1. Even in this case you can only use deadly

force if you can’t retreat safely. a. However, not required to retreat in

your own home.b. Police officer or peace officer has no

duty to retreat. b. Reasonably believe that the person is about to

commit a kidnapping, rape, robbery, or criminal sexual act.

iv. 35.20 physical force in defense of property and person in the course of a burglary.

a. Anyone may use physical force if they reasonably believe it necessary to prevent crime involving damage to premises.

(not on the premises)a. Deadly force can be used only when you think the

person is committing arson. b. If you are on the premises or are in the dwelling or

building, rightfully, you can use physical force to prevent or terminate a criminal trespass.

a. May use deadly force to prevent or terminate a burglary.

b. NY General Business Law §218

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Premises – entire propertyDwelling – where someone livesBuilding – could possibly have people.

i. This gives stores owners the privilege of detaining possible shoplifters for a reasonable amount of time.

ii. In other states its common law rule that says the belief has to be reasonable and detention has to be reasonable.

c. the timing requirement must be satisfiedi. the tort is now occurring or just about to occur

d. make sure defense test is satisfiedi. you need a reasonable belief that a tort is being committed

e. You cannot exceed the boundariesi. You exceed the boundaries by using too much force

a. For self defense and defense of others u can use reasonable force to include deadly force.

b. For defense of property reasonable force never to include serious bodily injury force! (Katko v. Briney….spring gun case…too much force)

c. Necessity

Used for property torts ONLYa. PUBLIC NECESSITY –unlimited privilege

i. Doing it for a lot of peopleb. PRIVATE NECESSITY - limited privilege

i. doing it for a limited number of peopleii. not a tortfeasor but still liable for damages!

d. JustificationNY Penal law § 35.05-35.20 is based on justifiable use of force.

IV. NEGLIGENCE (Prima Facie case requirements)A person acts negligently if the person does not exercise reasonable care under all circumstances. a. PJI 2:12Common Law Standard of Care (p. 13 supplement)

a. Negligence requires both a reasonably foreseeable danger of injury to another & conduct that is unreasonable in proportion to the danger.

b. Risk of injury must be reasonably foreseeable.c. Injury must not be merely possible but probable.

i. All things are possible ii. Probable means reasonably foreseeable.

b. Duty (most popular on tests)a. Foreseeable plaintiff

i. Court and sometimes the legislature says what the duty is.ii. Duties are only owed to foreseeable plaintiffs!iii. Unforeseeable plaintiff (Palsgraf v. Long Island R.R.)

a. Cardozo Rule

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Necessity must be clearly shown!

a. if plaintiff is w/I foreseeable zone of danger defendant is liable.

b. Cardozo focuses on duty in his opinionb. Andrews (there is an element of foreseeability in this

approach)a. If a duty towards one person is breached which

injures a 2nd person that 2nd person is also a foreseeable plaintiff.

b. Andrews focuses on proximate cause in his opinionb. **Duty of care

(Custom in usage plays a role in all these duties of care)i. **Reasonable Person Standard

a. An objective test standard.b. However for physical characteristics it is subjective.

a. You still have to act as a reasonable person with the disability (Roberts v. State of Lousiana…blind guy working at post office)

ii. Child Standarda. Children under 4 are incapable of negligence.b. What would be done by a child of like age, intelligence,

and experience. c. Child standard is subjective.

a. If the child is engaged in an adult activity it becomes reasonable person objective standard.

b. In NY infants are under 18 and objective standard if engaged in adult activity.

iii. Professional Standarda. Reasonable Professional in same or similar communities.

a. NY also uses this “same or similar communities” or locality rule.

b. If Dr. (or professional) is a specialist we raise the standard.c. What constitutes a professional:

a. Extensive formal learning and trainingb. License and regulationsc. Standard code of conductd. System of discipline for violation of the code

d. Informed consent on the part of the patienta. In NY 2805 (d)-there is an objective test standard

as to what a reasonable person would have consented to.

iv. Common Carriers and Inn Keepers

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a. They have higher standardsb. Only owe these duties to guests

v. Owners and occupiers of land(NY Rule- if injury on land has occurred it’s an ordinary negligence reasonable person case)

a. Undiscovered trespassersa. There is no duty owing to undiscovered trespassers.

(they always lose)b. What caused the injury?

1. Activitya. Anything the owner/occupier is

doing on the landb. Turns into ordinary negligence case

& reasonable person standard.2. Dangerous condition

a. Discovered trespasseri. Duty not to purposely harm.

b. Licensee (social guests/ door to door sales)

i. Duty to warn of known dangers.

c. Invitee (on the premises for some purpose of the o/o)

i. Duty to make safe.d. Lessor/Lessee

i. Landlord has a duty to exercise ordinary care in maintenance of property.

ii. Landlord has a duty to use reasonable care to protect tentants from foreseeable criminal acts.

b. You can discharge your duty as an owner occupier by warning of or making safe the dangerous condition.

c. A very obvious dangerous condition.a. No liability because it was so obvious plaintiff

should have seen it. (it carries its own warning). d. Attractive nuisance (infant trespassers)

(Chicago RR v. Krayenbuhl…case with the rail road and turn tables)

a. Basic negligence case

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b. This vitiates the child’s status as a trespasserc. But kid will have to be able to show they did not

understand the risk involvedvi. ***Statutory Standard of Care

(Don’t jump the gun and assume it applies it may not)a. Plaintiff must fall within the protected classb. The statute must be designed to prevent this kind of harmc. If statutory standard can apply it will apply over the

reasonable person standard!d. If it doesn’t apply use the reasonable person standard.e. If a statute is violated there is NEGLIGENCE PER SE.

a. Judge decides purpose of statute because it’s a question of law.

b. Only applies to violation of a safety statute.c. There can also be contributory negligence in

violation of a statuted. There are exceptions to Negligence Per Se

1. Where compliance would be more dangerous than noncompliance

2. Impossibilityf. Violation of a regulation is evidence of negligence. g. Three effects of violation of a statute:

a. Negligence per se1. Jury has to find that the defendant was

negligent but doesn’t have to find that the defendant is liable.

b. Evidence of negligencec. Prima facie evidence of negligence

1. Gets you past a direct verdict motion!2. Jury doesn’t have to find you negligent!

vii. Primary factors used in determining if a person’s conduct lacked reasonable care:

a. Foreseeable likelihood that the person’s conduct will result in harm.

b. The foreseeable severity of any harm that may ensuec. The burden of precautions to eliminate or reduce the risk of

harm.viii. Emergency Doctrine

a. If there is an unforeseen, sudden, and unexpected emergency, the law does not hold you to the same standard of care.

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Only when someone questions these does the court get involved in deciding where the burden should fall.

b. Courts frown on this doctrine b/c it may not be needed b/c the jury charge says “did defendant act reasonably under the circumstances”.

ix. The affirmative duty to acta. There is no affirmative duty to act.

a. There is a duty to act if there’s a relationship between the parties.

b. However if you do act you may be held liable for gross negligence in acting.

c. In addition, there is a duty if there is a special relationship between the parties (i.e. store owner and patron)

x. Contracts and public servicesa. In the case of public services defendant can only be held

liable if they undertook the duty, not generally. b. Contracts no longer makes a difference except in instances

of PURE ECONOMIC LOSS.a. Generally harder to recovery for pure economic

loss.xi. Duty to control the conduct of third persons.

a. You have the right and ability to control themb. You know of facts which should have caused you to

act and control them.c. i.e. person driving w/ someone in the car who kept

grabbing the wheel.xii. Negligent infliction of emotional distress.

a. Plaintiff must suffer some emotional distressb. Plaintiff must be w/I the target zone of defendant’s

negligent conduct. i.e. was in danger a. Plaintiff can collect for the emotional harm of

seeing a close family member being injured if they perceived the injury.

b. Otherwise the emotional harm is based on the person themselves being in danger.

c. Breach a. Jury decides if there was a breach.b. Duty + Breach = negligent conductc. Did defendant’s behavior square up with standard of care? If not there’s a

breach. d. You are not negligent simply because you do not have a license unless

there is a statute that says you have to have a license.

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i. CPLR 4504 (d) applies to physicians, dentists, podiatrists, chiropractors and nurses.

a. This essentially says that if they practice w/o a license it’s prima facie evidence of negligence if their actions were proximate or contributing cause of injuries.

e. Res Ipsa Loquitori. Plaintiff doesn’t have evidence of a breach.ii. This usually doesn’t happen unless someone was negligentiii. Defendant had exclusive control of the instrumentality that caused

this.iv. In many cases, plaintiff must be free from contributory negligence. v. Res Ipsa means you can defeat a motion for directed verdict. vi. May also apply in case where plaintiff is unconscious and couldn’t

prove who breached. (Yabarra v. Spangard…went in for appendicitis came out with arm problems.)

d. **Causationa. Actual – causation in fact

i. Did the defendant’s negligent conduct actually cause the injury?a. But for (test) defendant’s conduct the injury would not

have happened. If yes there’s actual causation, if not do one of the exceptions apply?

Exceptionsa. Substantial factor test

1. Was defendant’s conduct a substantial factor in causing the injury? If yes there’s actual causation.

b. Alternative Causes test (summers v. tice)1. Where we don’t know who was the actual

cause but it’s one of the defendants.2. We shift to negligent defendants the burden

of proof. If they can’t do that they can all be held liable.

ii. If actual causation does not exist the law suit is over. Plaintiff loses.

iii. If we can establish actual cause we can move on to proximate cause.

b. Proximate – causation in lawi. “the law arbitrarily declines to trace a series of events beyond a

certain point.” (Andrews in Palsgraf) Aka…a line is drawnii. It is a way for the jury to let a negligent defendant, who actually

caused an injury, off based on lack of foreseeability.

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iii. Proximate causation is a foreseeability analysis.iv. Would the injury have occurred even if defendant wasn’t

negligent?v. Direct Cause

a. There’s an uninterrupted chain of events between the negligent act and the injury.

b. **In direct cause cases 99% of the time there’s a foreseeable result. (polsgraf is an exception)

vi. Indirect causea. There’s some act or event between the negligence and the

injury. b. This intervening act or event combines with the negligent

act to cause the injury. c. (rule)If the result was unforeseeable let the defendant go! d. (rule)If the result was foreseeable hold the defendant

liable. Exception If the intervening act was an unforeseeable intentional tort or crime let defendant go.

vii. (rule)It is only necessary to foresee an injury not the extent of the injury.

viii. PJI 2:70 Proximate Causea. It is the proximate cause if it was a substantial factor in

bringing about the injury. b. There can be more than one cause of an injury.

a. To be substantial it cannot be slight or trivial.ix. In the case of fires

a. In NY the line is drawn at the first adjacent neighbor.x. Egg Shell Thin Skull Rule

a. You take the plaintiff as you find him.b. Defendant is liable for unforeseeable consequences that

follow from a physical injury. a. If plaintiff had particular sensitivities that caused

injuries to be exacerbated, defendant is liable for those exacerbated injuries even though they were unforeseeable.

c. Superseding Causesi. Something that’s reasonable foreseeable wouldn’t be a superseding

cause.ii. Suicide CAN be a superseding cause depending on if it was an

“irresistible impulse” caused by the injury. (jury decides)

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d. Concurrent Causes.i. When two separate acts of negligence combine to cause a single

injury, each tortfeasor is responsible for the entire result. (Hill v. Edmonds)

e. “Danger invites Rescue”i. Wagner v. International R.R.

a. If someone is injured while rescuing someone else that was in peril due to the negligence of defendant, rescuer can recover.

e. Damagesa. Damages can occur to property or person.b. Damages can be calculated using life expectancy tables as well as income

tables in NY. c. Work expectancy tables are also used to determine the amount of time you

would have worked.f. Joint Tortfeasors

a. If acting in “concert” defendant can be held liable for injuries whether he directly caused them or not.

b. Worker’s Compensation Art. 2 §11a. Says that workers compensation is the exclusive remedy for

injury or death of employee. b. However, if the employer doesn’t have workers comp. or

doesn’t pay the employee then has the option of litigation. a. If this is the case employee does not have to prove

that he/she wasn’t contributorily negligent. c. This does not preclude a third party from seeking

indemnity or contribution from the employer.a. But it does limit contribution to cases of “grave

injury”b. Thus, the injured employee has to have suffered a

grave personal injury in order for there to be any contribution claim whether based on the contractual agreement or otherwise.

c. Joint & Several Liability vs. Several onlyi. Joint and several means plaintiff can collect full amount from any

defendant. NY uses Joint & Several!ii. Several only means that defendant is only liable for portion of

damages he caused. d. Indemnity vs. Contribution

i. Indemnity – defendant who seeks indemnity gets 100% back.

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Dole v. Dowe is a great example of indemnity vs. contribution as well as the worker’s comp. rule!

**This case changed the rule and made it so that juries could apportion liability

What is a grave injury?Death! Permanent and total loss of use or amputation of leg, arm, hand, or foot. Loss of multiple fingers or toes. Paraplegia or quadriplegia. Total and permanent blindness or deafness. Loss of nose or ear or total and permanent facial disfigurement. Loss of an index finger or brain injury caused by an external physical force that causes permanent total disability.

ii. Contribution – defendant who seeks contribution gets back the portion he/she paid over his/her equitable share. CPLR § 1402

a. No one is required to contribute more than his/her equitable share.

e. CPLR § 1401 Claim for contributioni. Joint tortfeasors may claim contribution from one anotherii. Whether or not an action has been brought or a judgment has been

rendered against the person from whom contribution is sought.f. CPLR § 1601 Limited liability of persons jointly liable

i. This applies to all claims for contribution or indemnity except:a. Administrative proceedings (i.e. SEC)b. Workers compensation cases (grave injury or not)c. Actions requiring proof of intent (intentional torts)d. Motor vehicle accidents.e. Cases involving recklessnessf. Applies to medical malpractice cases!g. Also applies to cases where the city is a defendant!

ii. In personal injury claims if a joint tortfeasor is found to be 50% or less liable that tortfeasor does not have to pay more than his/her equitable share for non-economic losses.

iii. Thus in a case of joint and several liability where plaintiff can collect 100% from any tortfeasor, plaintiff cannot collect 100% of non economic loss. (non economic loss = pain and suffering)

a. In this case plaintiff can collect only the share that tortfeasor is responsible for if they are 50% or less liable.

iv. 15-108a. If there is a settlement the total settlement amount is

deducted from the full award. Thus if one person settles for more or less than their share the others either benefit or are not affected!

g. Absent physical damage, economic loss is non-recoverable.a. i.e. BP oil spill caused economic loss to thousands, this was not

foreseeable.h. Wrongful Death & Survival

a. Survival – this is a claim that would have been brought by the victim if he/she had survived.

i. The tort survives the death of the victim!ii. Regardless of what he died from ALL TORT CLAIMS SURVIVE

b. Wrongful death – this is a claim brought by the beneficiaries of the victim to recover for lost support.

i. Recognized in most states by statute

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c. You can have both actions in one case survival and wrongful death.i. i.e pain and suffering for period before death then wrongful death.

d. You have to be born before you can have a wrongful death causee. Estates Powers & Trust Law

i. § 5-4-1a. NY’s wrongful death statute.b. Essentially says that a wrongful death claim can be brought

against someone who the deceased would have had a claim against had the deceased not died.

ii. § 5-4-3a. Damages are limited to pecuniary damages only!

a. For children this is always a negative figureb. Thus no pain and suffering!c. May be calculated by use of life expectancy tables

or income expectancy tables. iii. Survival action can be brought by the estate

a. Whatever is recovered goes to the estate and is distributed according to will.

b. This is different than the wrongful death action which is brought by beneficiaries.

c. **NOTE**There can be a survival action and no wrongful death action if deceased didn’t die from the tortuous conduct!!

iv. Wrongful Birtha. No recovery for wrongful birth

a. However plaintiff can get extraordinary medical expenses incurred during infancy and then adulthood.

V. DEFENSES (to negligence)a. Contributory Negligence State

a. You determine contributory negligence the same way you determine negligence. (duties of care that were breached)

b. Plaintiff’s contributory negligence completely bars recovery.c. % of negligence doesn’t play a factor.d. If defendant’s conduct is reckless contributory negligence is not a good

defense.i. Thus if defendant’s conduct was reckless plaintiff wins.

b. Comparative Negligence Statea. w/ regard to all causes of action accruing on or after 9/1/1975 NY is pure

comparative negligence state. CPLR § 1413

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Contributory Negligence is the terminology used whether we’re in a Contributory negligence or a Comparative Negligence state. It describes plaintiff’s

b. Plaintiff’s contributory negligence reduces the amount of recovery. CPLR § 1411

c. CPLR § 1412 – defense has to plead and prove contributory negligence.d. Pure v. modified Comparative Negligence states (% of negligence)

i. In modified comparative negligence state plaintiff will not achieve an award if he was more negligent than the other party.

ii. In a pure comparative negligence state you can recover even if you were more negligent than the other party.

iii. Thus in modified comparative negligence states if you are more than 50% liable you will not recover.

e. Reckless conduct will offset contributory negligence. c. Assumption of the Risk

a. Expressi. Gym case where the lady signed the agreement then used

equipment and was injured. b. Primary & Secondary Implied Assumption of the Risk

i. Primary Assumption of the Risk (Complete Defense)a. Defendant owed no duty or didn’t breach limited duty

owed.b. Applies to sports or recreational cases.

a. i.e. no duty to guy who gets hit by home run.b. i.e. however owners assume the duty of protecting

the people behind home plate but not the people who get hit by home runs.

ii. Secondary Assumption of the Risk (not complete defense)a. Plaintiff acts voluntarily but unreasonably to encounter a

known risk. b. i.e. case of the “hickey” on copy machine…example of

secondary assumption of the risk.d. Last clear chance doctrine

a. Found only in contributory negligence states.b. You do not need the doctrine in comparative negligence states but the

facts could help the plaintiff.c. Plaintiff will be forgiven their earlier contributory negligence if defendant

had the last clear chance to avoid accident and didn’t take it. e. Apportionment of liability

a. If liability is based on fault then the jury can easily divide % of faultb. If based on strict product liability jury will have to do it based on

causation.i. i.e. how much of a role defect played in bringing about injuries.

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c. This happens whenever you have a product liability defendant mixed in with negligent defendants.

VI. STRICT LIABILITY IN TORTa. Normally go to strict liability if there is no evidence of negligenceb. Prima Facie case requirements

a. Duty to make safe b. Breachc. Causationd. damages

c. Liability without fault on defendant’s part.a. Abnormally dangerous activities

i. If you are engaged in an abnormally dangerous activity you’re strictly liable.

ii. Doesn’t matter if you’re careful.iii. Factors used to determine abnormally dangerous activities (from

restatements adopted in NY so is now the law)a. Existence of a high degree of risk of harmb. Likelihood that harm will be greatc. Inability to eliminate the risk by use of reasonable care

a. (if you can eliminate risk by use of reasonable care and didn’t then its negligence)

d. Activity not a matter of common usee. Inappropriateness of activity to the place where it is carried

on.f. Extent to which its value to the community is outweighed

by its dangerous attributes.iv. Question of law whether an activity is abnormally dangerous or

not! (not a question for jury)v. If there are conflicting facts as to the 6 factors, the jury decides the

facts then the court decides if based on those facts the activity is abnormally dangerous or not.

d. Product liabilitya. Product caused an injury, theory of liability is normally either negligence

or strict liabilityi. Three ways plaintiff can show product was defective

a. Manufacturing defect a. Product not made according to specs.

b. Design defect (jury decides if the design is defective)a. Plaintiff must show that the design of the product

was not “reasonably safe”.

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b. Risk Utility Analysis1. Utility of the product to the public and

individual user.2. Likelihood product will cause injury.3. Availability of a safer design4. w/ new design will it remain functional and

reasonably priced?5. Ability of plaintiff to have avoided injury by

careful use.6. Degree of plaintiff’s awareness of the

potential danger.7. Manufacturer’s ability to spread the cost of

improving the safety of the design. c. Defect must have been a substantial factor in

causing injury.d. If there is a substantial modification of the product,

manufacturer is not liable if that’s what caused injury.

c. Inadequate warning or lack of warning.a. You can have an inadequate warning claim even

though you don’t have a design claim because of a substantial modification.

b. (meat grinder case where safety guard was removed)

b. Anyone w/I the foreseeable zone of risk can be a plaintiff in strict products liability.

c. If you’re suing on the negligence theory you’re almost always suing the manufacturer and almost never the retailer or wholesaler.

d. If it’s a strict liability theory retailers, wholesalers, and manufacturers can all be held liable.

e. Most courts won’t allow you to recover if there was no physical injury or property damage and only economic loss.

f. Defendants can be held liable for foreseeable misuse (guy who got ran over by tractor)

g. Obviousness of danger no longer a complete bar to plaintiff’s recovery.i. no patent danger rule, but still a defense, just not absolute defense!

h. No strict product liability for service providers like hospitalse. Breach of implied warranty

a. Not the same as strict products liabilityi. Thus you can have two separate claims

b. Products liability standard is “not reasonably safe”

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c. Breach of implied warranty (under UCC) standard is “fit for the ordinary purpose for which the goods are used.”

d. Products liability uses the risk utility analysis while the breach of implied warranty test is consumer expectations test.

e. Therefore, a product can be reasonably safe but not fit for the ordinary purpose for which the goods are used.

f. Denny v. Ford (Bronco II that rolled over marketed as an every day car)i. This may only happen in cases of a design defect

VII. DEFENSES (strict liability)a. Contributory Negligence State

a. Knowing contributory negligence is a complete defenseb. Unknowing contributory negligence…no defense

b. Comparative Negligence Statea. Contributory negligence reduces damages.

VIII. NUISANCEa. Three causes of action:

a. Intentional & unreasonable conducti. Is either unlawful or causes unreasonable interference

b. Negligent conducti. If its negligent conduct, charge negligence not nuisance

c. Abnormally dangerousi. Court decides if activity is abnormally dangerous!

b. Victim can seek injunction &/or damagesc. Private Nuisance

a. Non trespassory invasion of (interference with) neighbor’s use and enjoyment of property.

b. Can be brought by anyone affected by the nuisancec. There is a possibility of a private COA arising out of a public nuisance if

they suffered damage different in kind and type from that suffered by the public.

d. When there is a disparity in economic consequences the court may award damages but no injunction. (Cement case)

d. Public Nuisancea. Offense against the state which

i. interferes w/ use by the public (of public place or way)ii. offends public moralsiii. endangers the health, safety or property of a considerable number

of peopleb. Doesn’t give private party civil cause of action unless his/her damages are

different from that of the public

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PJI 3:16NY Rule!!

PJI 3:16NY Rule!!

c. Has to be an action brought by government authoritye. If there is no zoning against the activity causing the nuisance an injunction may or

may not be granted. However, if there is a zoning restriction an injunction must be granted!

f. Defensesa. If a private nuisance is intentional, contributory negligence is not a

defense.b. Contributory negligence is a defense if the nuisance arises out of

negligence.c. If the nuisance is based on strict liability contributory negligence is a

defense if the plaintiff discovers the danger and deliberately proceeds in the face of it.

d. If plaintiff “came to the nuisance” it can be said that they assumed the risk.

IX. Fraud & Misrepresentationa. Always distinguish fraud from misrepresentation!b. They can appear in any tort or any area of the lawc. Elements of fraud:

a. A statement that is falseb. Defendant must know the statement is false (intent to deceive)c. Reasonable reliance on the false statement by the victim

i. No defense that the person was dumb and that’s why they fell for it.

d. Damagesd. Mere non-disclosure does not constitute fraud!e. Lack of privity will not prevent a fraud action!f. Lack of privity will prevent an action for negligent misrepresentation

a. Exception: if there is a close relationship “almost” like privity (NY)g. Gross negligence may give rise to an inference of fraud!h. Mere “puffing” is not considered misrepresentation, it’s just sales talk or opinion.

a. Statements of facts are not puffing and are misrepresentations!i. General rule- you cannot rely on someone’s representation of the law!

a. However, you can rely on their statement of fact and if it’s wrong, it could be negligent misrepresentation or fraud.

j. Damagesa. Out of pocket loss = actual amount spent – real value

i. NY uses this method to calculate damagesb. Loss of bargain = misrepresented value – real value

X. General consideration itemsa. Vicarious liability

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a. Doctrine of respondeat superiori. In this case the employer is not be negligent. ii. Employers are liable for torts of employees committed within the

scope of employment.a. Was the employee acting within the scope of employment?b. “Going and coming rule”

a. Employees are not w/I the scope of employment when they are going to or coming from work.

b. Exception if they are leaving work b/c of a condition at work that caused them to be in less than perfect condition. i.e. toxic fumes at work caused her to drive home in less than perfect condition.

c. Slight deviation rulea. Was employee on a detour or “frolic”b. If it was a “frolic” employer not liable.

iii. Independent contractors are not employees.a. If the person has the right to control the physical details of

the work then he is not an employee. iv. Employers can seek indemnity from the employee.

a. There’s no contribution if you can’t apportion liability to the employer.

b. If both employer and employee are negligent then there can only be contribution.

b. Joint Enterprisei. Members of a joint enterprise can be vicariously liable for torts

committed by other members. ii. This is limited to transactions that have a distinct business or

pecuniary purpose. (not family events/transactions)iii. Four Elements of Joint Enterprise

a. an agreementb. common purpose c. pecuniary interest in the purposed. equal right to a voice

XI. PROCEDUREa. Lower courts have to follow rulings of all the different Appellate Divisions

regardless of if their appeals go to that division.b. Statute of Repose – time period in which a cause of action may or may not accrue

a. i.e. no claim can arise for negligence in the manufacturing of an aircraft more than 10 years after it was made. Thus, if an injury occurs in year 11 no claim!

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b. Whether this is pleaded or not, claim is invalid if brought after the fact.c. Statutes of Limitations:

a. Statute of limitations is a defense that if not pleaded is waived!b. Negligence - 3 years

i. Negligent misrepresentation – 3 yearsc. Personal Injury - 3 years

i. CPLR § 210 – gives estate one year from death of victim to commence personal injury claim if there is less than a year left on the 3 year statute (but it has not expired) (this is the survival claim)

ii. If defendant dies, estate of plaintiff or plaintiff, has 18 months from death to commence an action for personal injury.

iii. i.e. if plaintiff dies w/ 2 months left on the 12 month extension and then defendant dies plaintiff will have 20 months to commence claim.

d. Wrongful death - 2 yearsi. In order to have a valid and timely wrongful death action on the

date of death, there must be a valid and timely personal injury claim against the defendant.

ii. If this is not the case, no wrongful death claim exists. iii. You must ask, “Did the decedent have a valid and timely personal

injury claim on the date of death?”iv. If the answer is yes, you have two years to bring the wrongful

death claim. e. Non-medical malpractice – 3 years (CPLR 214-6)f. Medical malpractice – 2 1/2 years (in NY)

i. Claim accrues when the procedure or last treatment was performed by the doctor who committed the malpractice.

ii. However, discovery rule applies where there is a foreign object discovered in the body, plaintiff has 1 year from that discovery or when it should have been discovered to bring action. (CPLR 214-a)

iii. In other states the rule is broader and statute accrues when any injury is discovered or should have been discovered.

iv. If medical malpractice is concealed by use of fraud which prevents plaintiff from bringing her claim before statute of limitations expires, court can use equitable estoppel to prevent defendant from pleading statute of limitations.

g. Breach of contract – 6 yearsh. Fraud – 6 years

i. Accrues when the fraud occursii. Or 2 years from the date it is discovered

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iii. In the case of medical malpractice, plaintiff can collect damages caused by the fraud but must be able to show that condition would have been correctable but for the fraud. If condition is not correctable just malpractice damages.

a. Punitive damages can be awarded for this fraud.i. Breach of warranty – 4 years

i. Statute begins to run at the time of injury.j. Contribution – 6 years

i. Begins when the negligent defendant pays out.ii. Cause of action for contribution can be brought separately, as a

counter claim or as a third party claim in a pending action. CPLR § 1403

iii. You may not settle and then seek contribution in NY!iv. Defendant can seek contribution from anyone; whether plaintiff

brought that person into the action or not. k. Assault & Battery – 1 yearl. Defamation – 1 year

d. Summary judgment can be awarded to either party whether they were the ones who moved for summary judgment or not.

e. Punitive damages can be given for intentional tortsf. Federal rules of evidence are only binding in federal courts. g. Frye test: scientific evidence is admissible if it is based on a scientific technique

generally accepted as reliable w/I the scientific community.a. NY still uses the Frye test.

h. All governments have waived their sovereign immunities w/ limitationsa. No immunity for ministerial acts but there is still immunity for

discretionary functions in many states.i. Ministerial acts are those that implement or effectuate the policies.

a. i.e. no immunity for police officers but immunity for the mayor who made the law that the police officer is applying.

b. NY has waived its sovereign immunity as long as claims are brought to the court of claims.

i. Evidence Standardsa. Beyond a reasonable doubt – for criminal casesb. Clear and convincing evidence – substantially likely – fraud cases

i. More than the 51% for preponderancec. Preponderance of the evidence – “Quantum of Proof”

i. 51% (more than 50%)d. Summary judgment standard

i. Material triable issue of fact.j. Wrongful death statute in NY

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a. Pecuniary damages only i. No damages for loss of comfort/society

b. Calculating pecuniary damages:i. Determine how much decedent would have contributed to the next

of kin, less the amount the next of kin would have expended on the decedent.

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