Torts Rules 2

  1. Elements of Negligence
    • Duty
    • Breach
    • Causation (close caausal connection between the action and the injury)
    • Damages

    NY Statute of Limitations:

    • Three years for regular negligence actions
    • Two years, six months for medical malpractice or w/in one year of discovery of foreign object in partient's body, whichever is later.
  2. General duty of care owed to:
    all foreseeable persons who may be injured by failure to follow reasonable standards of care.
  3. Palsgraf rule for what is a "forseeable plainteff"
    Only plaintiffs within the zone of foreseeable harm.
  4. Physicians have no duty to disclose risks in treatment when:
    • Risks commonly known
    • Patient waives or refuses information
    • Patient incompetent
    • Disclosure would be too harmful

    NY: plaintiff must prove defendant failed to disclose relevant risks and alternatives to procedure, reasonable person would not have under gone procedure if defendant had done so, and procedure was proximate cause of plaintiff's injuries.
  5. Duty owed to:

    A) Duty to refrain from willful, wanton, or intentional misconduct. Must warn discovered or anticipated trespassers of hidden dangers.

    b) Duty to warn of known dangers and exercise reasonable care in activities.

    c) Duty to warn of dangers and to use reasonable care. Must conduct reasonable inspection of property to ensure safety.

    d) Duty to warn of existing defects not likely to be discovered

    NY Rule: NY doesn't distinguish between categories of occupiers of land. NY applies general rule requiring duty of reasonable care in safe conditions to all persons foreseeably at risk. Status of occupant will determine how foreseeable they are.
  6. Attractive nuisance. Liable to injuries to children tresspassing where:
    children likley to trespass

    condition poses unreasonable risk of death or injury to children

    children don't appreciate the danger

    utility of maintaining and burden of eliminating the danger slight in comparison to risk of harm presented

    landowner does not exercise reasonable care.
  7. Statutory standards of care apply where:
    Plaintiff is in class intended to be protected

    Interest was of type to be protected

    Harm was of type to be protected

    Harm occurred in manner that was of legislative concern
  8. Affirmative duty to act where:
    Assumption of duty

    Placing another in peril

    By contract

    By authority

    By relationship (e.g., business proprietor and patron)
  9. Level of proof required for negligence:
    Preponderance of evidence on all four elements.


    Res Ipsa Loquitur
  10. Elements of res ipsa loquitour
    Instrumentality and condition was under defendent's exclusive control

    Harm would not have occurred if defendant had used ordinary care

    Plaintiff was not responsible for his injury
  11. Actual cause
    But for defendant's act or ommission, plaintiff's harm would not have occurred.


    Defendant's act or ommission was a substantial factor causing plaintiff's harm.


    Defendant acted in concert with others and it cannot be determined who among them actually caused the harm
  12. Proximate cause
    Defendant's actions are the direct cause of plaintiffs injuries, and plaintiff's injury was at least somewhat foreseeable


    Defendant's actions are the indirect cause, and intervening forces were foreseeable.


    Defendant's actions are the indirect cause, intervenining forces were undforeseeable, but the result was nevertheless foreseeable.
  13. Negligent infliction of emotional distress
    • Defendant created foreseeable risk of injury to plaintiff, which causes:
    • a threat of physical impact that leads to emotional distress OR
    • severe emotional distress likely to result in physical symptoms.

    Threat of impact must be directed at plaintiff or someone in his presence.

    NY: recovery for NIED in three situations:

    • special duty owed is breached, even if no threat to plaintiff's safety or fear of personal harm (e.g., hospital incorrectly informs that mother has died)
    • duey of care owed is breached, creating unreasonable risk of physical harm (e.g., skil lift operator doesn't strap plaintiff in)
    • plaintiff witnesses injury to immediate family member while in zone of danger
  14. NEID claims for bystanders
    May be allowed if plaintiff:

    • Is closely related to person injured by defendant
    • was present at the scene of injury
    • personally perceived the injury
  15. Wrongful death.
    Suit for pecuniary damages for losses suffered as a result of decedent's death. Does not include non-pecuniary damages.

    NY Rules:

    • Personal rep of decedent's estate may sue for pecuniary losses due to the injury that resulted in death. Pecuniary losses and punitive damages may also be recovered. Non-economic losses are NOT allowed.
    • Medical malpractice: no wrongful death claims for miscarried or stillborn children. BUT can recover for emotional distress if there is also an independent physical injury. If child survives, no claim by mother based on injury to child, but can bring claim of breach of duty of care.
  16. Respondeat superior applies where:
    Tort committed by employee that is within the scope of employment.

    • acts the employee is employed to perform
    • acts within authorized limits of time and space of performance
    • acts performed for purpose of serving employer
  17. Other vicarious tort liability
    Independent contractors: negligent selection or instruction; non-delegable duties, and inherently dangerous activities

    Business partners

    Automobile owners: negligent entrustment, family use, or permissive use (NY doesn't impute liability for intentional torts by driver and only requires use of the vehicle, not driving it).

    Parents - if they provide dangerouse item to child who lacks mautrity or judgment and failing to protect against a cihld's known dangerous tendencies. NY: parents liable up to $5000 for intentional acts by child over age 10.
  18. Defenses to negligence
    Contributory negligence (effect of this can be mitigated by showing defendent had last clear chance to avoid injuring plaintiff, but failed to do so)

    Comparative negligence - pure or modified. NY is a pure comparative negligence state and rejects contributory negligence as a bar to recovery. Failure to wear seatbelt is not contributory negligence, but cannot recover for injuries that would not have occurred if a seatbelt had been worn.

    Imputed fault - like vicarious liability, but used to impute fault

    Assumption of risk - voluntary and knowing assumption. Express or implied. NY: Express - requires proof of knowledge of specific risk and voluntary agreement to assume risk. Primary = activity involved high level of risk and the risk was obvious or inherent in the activity and plaintiff voluntarily engaged in the activity
Card Set
Torts Rules 2