Torts.txt

So long as ∆ desires to produce any forbidden consequence, he will be liable if anything happens.

• (1) ∆ commits a harmful or offensive contact,
• (2) Contact must be with π's person

• Person includes anything π is holding.
• ∆ need not use his own body to effectuate the contact, just needs to cause it or set it in motion.

• (1) ∆ places π in a reasonable apprehension of
• (2) Apprehension must be of an immediate battery.

There must be conduct. Words alone insufficient.

• Belief that ∆ is capable of carrying-out a battery
• Belief that a battery is imminent

How the bar exam will try to trick you: (i) David-and-Goliath, or (ii) the "unloaded gun" problem

• Must have menacing conduct/gestures
• Mere words alone lack immediacy
• But, words could negate ostensibly menacing gestures (e.g., "if you weren't my friend, I'd punch you")

• (1) ∆ commits an act of restraint
• (2) π is confined to a bounded area

Only counts if π knows about the restraint or is harmed by it

• Frequently encountered situations:
• (1) Threats (person of ordinary sensitivity), or
• (2) Omission of duty, where ∆ has a pre-existing obligation to help π move around (e.g., physically disabled).

An area is bounded only if π's freedom of movement is limited in ALL directions.

• Not in a bounded area if . . .
• (1) Reasonable means of escape, and
• (20 Means of escape can reasonably be discovered

Note: Escape is not reasonable if it is dangerous, disgusting, humiliating, or hidden

• (1) ∆ must engage in outrageous conduct; and
• (2) π must suffer severe distress

• Outrageous conduct = "Conduct exceeds all bounds of decency tolerated in a civilized society."
• Severe Distress ≠ "mildly" annoyed, irritated, or chagrined
• Reckless behavior can satisfy the "intent" requirement.

"Conduct exceeds all bounds of decency tolerated in a civilized society." Consider the following . . .

• Conduct is continuous and repetitive
• ∆ is a common-carrier or inn-keeper
• π is a member of a fragile class of persons (e.g., children, elderly pregnant women, hate-speech)

Note: Mere insults, without more, are not outrageous/actionable

• (1) ∆ commits an act of physical invasion by a voluntary act, and
• (2) π must be a possessor of land. (Ownership is irrelevant.)

• Intent = ∆ wanted/intended to get to a particular location through a voluntary act.
• Note: ∆'s knowledge (or intention) of whether he/she actually crossed a boundary line is irrelevant.

Modest interference with enjoyment of personal property—for example . . .

• Deliberate damage (keying your car),
• Temporary theft (unauthorized "borrowing")

• Fair rental value
• Cost of repair

Significant interference with the enjoyment of personal property.

Special Remedy—π can recover full market value (not just rental or repair)

Note: a bona fide purchaser for value cannot be a converter

Acts as an affirmative defense to all intentional torts.

• Actions outside the scope of consent do not escape liability
• Fraud or duress negates express consent
• Must have legal capacity to consent
• Children, though lacking normal legal capacity, may consent to age-appropriate conduct

• (1) Customary practice (e.g., most doctor's visits), OR
• (2) ∆'s reasonable interpretation of π's objective conduct

• Successful implied consent is an affirmative defense to all intentional torts
• Focus on π's objective conduct—π's subjective mental reservations are irrelevant.
• Actions outside the scope of the implied consent are still actionable.

If physician operates on you and expands that operation to a completely unrelated part of the body, that is a battery.

BUT Surgery of adjacent areas is generally within the scope of consent.

• Self-Defense
• Defense of others
• Defense of Property

• (1) Proper Timing: Threat must be in-progress or imminent—No revenge
• (2) Reasonable belief that threat is genuine
• (3) Protective force is proportional to threat posed

• Notes:
• Belief in genuineness: Defense is not lost if ∆ makes a reasonable mistake under the circumstances
• Amount of Force–Rule of Proportionality, Necessity and Symmetry–
• May use deadly force to fend-off other deadly force.
• Deadly force may be used to protect human life—never property.

• NY Distinctions Prior to using deadly force, ∆ must attempt to retreat unless:
• (1) Retreat would be dangerous or not feasible
• (2) ∆ is within his/her own home
• (3) ∆ is a cop or assisting a cop.

• When: ∆ invades π's property in an emergency to protect the community as a whole, or a significant group of people
• Absolute defense: No liability

When: ∆ invades π's property in an emergency to protect ∆'s interests

Consequences—

• Liable for actual damages to π's property
• Not liable for nominal or punitive damages
• ∆ is allowed to remain on π's land in a position of safety for as long as an emergency continues. Otherwise, π is liable for a battery.

NB—There is no liability if ∆ acts to protect π's own property

• No strict liability unless–
• (1) ∆ has a domesticated animal with vicious propensities; and
• (2) ∆ knows in advance of vicious propensities

Trespassers: No strict liability can be imposed by a trespasser. However, a trespasser may have an intentional tort or negligence (possessor of land) claim for injuries inflicted by vicious watchdogs (think "spring-gun").

Wild Animals: Strictly liable for injuries inflicted upon licensees and invitees as long as injured person did nothing to bring about the injury.

Trespassers: No strict liability can be imposed by a trespasser. However, a trespasser may have an intentional tort or negligence (possessor of land) claim for injuries inflicted by vicious watchdogs (think "spring-gun")

Note: Injuries incurred while fleeing are forseeable.

• Strict Liability if:
• Activity creates a foreseeable risk of serious harm even when reasonable care is exercised by all actors; and
• The activity is not a matter of common usage in the community.

Note: Injuries incurred while fleeing are foreseeable.

• 1: ∆ is a commercial supplier of a product. Does not extend to service providers or casual sellers.
• 2: Product has a defect that makes it unreasonable dangerous;
• 3: Product has not been substantially altered since it\ left ∆'s control.
• 4. π was making foreseeable use of the product at the time he was injured, and
• 5: Damages–Physical injury or property damages must be shown.

Note: That the defect existed when product left ∆'s control will be inferred if the product moved through normal channels of distribution.

Product departs from its intended design in a way that makes it more dangerous than the products made properly.

• (1) There exists a safer, practical and cost-effective way to build it; OR
• (2) Inadequate warnings or instructions–duty to warn if product has certain risks that cannot be reasonably eliminated, and a consumer would not normally be aware of those risks.

• Practical = Would not undermine product's purpose
• Cost-effective = Alternative design would not make the product significantly more expensive.

• In contributory negligence jurisdiction: assumption of risk.
• In pure comparative negligence jurisdiction: Damage reduction based on percentages.

• 1. Duty of care
• 2. Breach of duty
• 3. Causation
• 4. Damages

• 1. To whom does ∆ owe a duty of care? (Foreseeable victims)
• 2. What standard of care does ∆ owe?

• Foreseeable victims include:
• People within proximity (the "zone of danger")
• Rescuers (can be foreseeable π)
• Pregnant women (in NY only)

• Test: Reasonably prudent person acting under similar circumstances
• Objective test: ∆'s individual characteristics are ignored

But, ∆ characteristics considered where

• ∆ has a physical impairment (e.g., disabled)
• ∆ has advanced or superior skill or knowledge (e.g., doctors)

• < 4 years: Child owes no one a duty
• ≥ 4 years: Child of the same (1) age, (2) experience, and (3) intelligence under similar circumstances
• < 18 and engaged in adult activity: Default std (reasonably prudent person under similar circumstances

An adult activity tends to be one involving the operation of a motorized instrument, e.g., cars, boats, chainsaws

• Duty of care: Average member of that profession, practicing in a similar community
• Evidence of actual community custom: Establishes standard of care applicable to ∆ professional
• Specialists: Compare specialists to other specialists, regardless of geography
• NY Distinction: Doctors must inform patients the risks of any procedure, unless doing so would harm patient.

Source of Injury: Two possibilities—(1) Activity conducted by ∆ or ∆'s agents, (2) hazardous static condition (HSC) distinguish natural from man-made HSCs

Undiscovered Trespasser: Not a foreseeable victim, ∆ owes no duty of care

Discovered or Anticipated Trespasser: Must protected discovered or anticipated trespassers from all known man-made death traps on the land

Licensee (e.g., social guests): ∆ must (1) warn licensee about all known traps (natural and man-made) on the land, and (2) use reasonable care in the exercise of activities on the land

Invitee (e.g., commercial benefit or general public): ∆ must (1) warn invitee about all reasonably knowable or discoverable traps (whether natural or man-made), and (2) use reasonable care in the exercise of activities on the land

• Applicable standard: Reasonably prudent person under similar circumstances
• Tip: Follow the analysis applicable to MS possessors of land to determine what is reasonably prudent

Firefighter's rule: Assumption of risk. NY: Can't sue employer, but can sue other third parties.

• "Attractive nuisance" doctrine. Must show
• (1) ∆ knew or should have known of an artificial hazardous static condition (HSC),
• (2) that children were likely to trespass on the land,
• (3) that the artificial HSC was likely to cause serious injury b/c of the child's inability to appreciate the risk, and
• (4) the expense of remedying the situation is slight compared to the magnitude of the risk

• Adults = provide warnings
• Children = build barriers to entry

Borrow the standard of care from the statute?

• Yes: When all of the following are present: (1) π is in intended class of persons, (2) π's injury is within class of risks, and (3) statute clearly describes conduct.
• No: Compliance would be impossible or increase danger to π

• Ability to collect: (1) ≤ $ 50,000; and (2) owner, driver, passenger, pedestrians
• Availability of additional remedies in tort: (a) death, dismemberment, significant disfigurement, etc.; (b) damages > $ 50k
• What can be recovered: Personal injuries (but not pain and suffering, or property damage)

Note that bad persons (e.g., drunk drivers, thieves) are barred from recovery under a no-fault insurance plan

Also note that a no-fault plan is "portable" outside of NY—i.e., still possible to recover, even though accident occurs outside of NY, so long as policy was purchased in NY

• 1. Near miss: (1) ∆'s negligent conduct, (2) put π in a "zone of danger," (3) π suffered distress, and (4) resulting physical manifestations
• 2. Bystander: (1) π is contemporaneous witness to (2) bodily injury inflicted on (3) close family member (strict construction), and (NY only) π was also in zone of danger
• 3. Special relationship between π and ∆: Foreseeable risk of emotional distress (e.g., negligent medical diagnosis)

• Identify: wrongful behavior (fact)
• Explain: why the identified behavior (fact) falls short of the applicable standard of care

• If you can't identify a specific wrongful act, you can use res ipsa loquitur if–
• (1) the accident is normally associated with negligence, and
• (2) the accident would normally be caused by the negligence of someone in the ∆'s position–e.g., showing ∆ was in control of the object.

• Must show BOTH: Factual and Proximate Causation
• Factual Causation: But-for test, and Multiple ∆s
• Proximate Causation: "Fair" to hold ∆ liable for foreseeable consequences

• Causation: But-for ∆'s negligence, there would be no injury
• No causation: Even-if ∆ was not negligent, π would still be injured (e.g., because π threw himself in front of ∆'s truck)

• Causes combined: Substantial Factor Test–Causation, if a breach would, in itself, be sufficient to cause π's injury. If both ∆s are substantial factors, then joint and several liability.
• Unascertainable Cause: No mechanism to figure out which ∆ did it. Burden shifted from π to ∆—∆ must prove that he/she wasn't at fault

A ∆ generally is liable for all harmful results that are the normal incidents of and within the increased risk caused by his acts—i.e., when the consequences of ∆'s negligent action are foreseeable

• Foreseeable: Causation
• Unforeseeable: No causation

• Defined: Occurs when ∆'s breach leads directly to π's injury—i.e., uninterrupted chain of events.
• Causation: ∆ is liable for all foreseeable harmful results, regardless of unusual manner or timing.
• ∆ is NOT liable for unforeseeable harmful results not within the risk created by ∆'s negligence.

In summary—

• Direct + Foreseeable consequence: Causation
• Direct + Unforeseeable consequence: E.g., freakish or bizarre—No causation

Occurs when ∆ breaches duty, and there are intervening events between the breach and π's injury.

• ∆ is liable for indirect injuries that are–
• (1) Reasonably expected to happen as a result of ∆'s breach.
• (2) The foreseeable result of unforeseeable intervening forces.
• (3) The result of ∆'s negligence that increased the risk of harm from independent intervening forces.

Well-settled cases—Causation found

• Intervening medical negligence
• Intervening negligent rescue
• Intervening reaction/protection forces (e.g., mass hysteria stampede)
• Subsequent disease or accident (e.g., infection, falling off crutches)

• If the other 3 elements are satisfied, ∆ is liable for all damages arising from the breach no matter how great in scope.
• Damages are not presumed. π must make a showing.

• Three types:
• 1. Personal injury
• 2. Property damage
• 3. Punitive damages–∆'s conduct is wanton or willful. NY: only awarded for gross negligence.

π has duty to mitigate damages.

Damages not reduced just because π received benefits from other sources.

NY Distinction: Courts are required to reduce a successful π's damage award by the amount of any benefits that π has received or will receive from collateral sources. EXCEPTIONS: life insurance, certain SS benefits.

• You take your π as you find him.
• The egg-shell-skull rule applies to all successfully proven torts—not just those in negligence

• Complete bar to recovery
• EXCEPTION: Last Clear Chance–Despite π's contributory negligence, person with the last clear chance to avoid the accident who fails to do so is liable for negligence.

NOT a defense to an intentional tort (that would be consent).

• EXPRESS ASSUMPTION–express agreement
• TRADITIONAL IMPLIED ASSUMPTION–π:
• (i) knew of the risk,
• (ii) appreciated the risk, and
• (iii) voluntarily proceeded in face of risk.

Jury allocates fault. π's recovery is reduced accordingly so π will always recover something, even if π has the bulk of fault.

• If π <50% at fault, damages will be reduced.
• If π >50% at fault, NO RECOVERY.

• DEFAMATORY statement IDENTIFYING the π
• PUBLICATION to at least one 3rd-party
• INJURY to reputation

When the statement tends to adversely affect π's reputation (esp. commercial reputation)

• Focus: Allegation that affects a putative fact about the π
• Statement of opinion: Would a reasonable listener assume the opinion has a factual basis?

Note: π must be specifically identified and alive at time the statement is made

• Libel—written (or via tv or radio broadcast) statement, defamatory on its face
• Libel per quod—statement not defamatory on its face (defamatory impact requires extrinsic evidence)
• Slander per se—closed list of oral statements
• Slander not per se

• Adversely reflects on π's business or profession
• Statement that π has committed a crime of "moral turpitude"
• Statement impugning that a woman is unchaste
• Statement that π suffers from a "loathsome" disease
• NY Distinction: 5th category—insinuation of homosexuality

∆ must share statement with at least one 3rd-party

Note: Publication need not be deliberate—

• Effective publication can occur through reckless or negligent conduct
• Test: Likelihood that other people will learn about the defamatory statement

• Libel—Damages need not be shown (they are presumed), unless
• Slander per se—Damages need not be shown (they are presumed)
• Slander not per se—Must prove economic damages, such as loss of job, business, or commercial contracts

NY: Libel per quod—Must prove economic damages, unless statement is per se defamatory

• Consent: Express/implied, capacity, scope)
• Truth: Factually accurate
• Absolute or Qualified Privilege: Who (absolute) and when (qualified—strong social interest in encouraging candor: (i) confidential communication to another (ii) concerning a 3rd-party (iii) in which both have a legitimate interest)

Absolute—spouses, government officers engaged in conduct of their official duties

• Qualified—Strong social interest in encouraging candor. (e.g., letters of recommendation).
• 2 Limitations: (1) ∆ reasonably believes that the statement is accurate; AND (2) ∆ must confine himself to matters that are relevant.

• π must prove falsity of the statement, and
• π must prove fault on the part of ∆
• Fault—

• π is a Public Figure—Fault = Intent or recklessness
• π is not a public figure (private)—Fault = Negligence

• 1: ∆ misrepresents fact
• 2: Make deliberately or recklessly
• 3: In order to induce reliance
• 4: π relies on misrepresentation
• 5: Economic damage

Intentional infliction of pecuniary harm without justification

• 1: Intent to do harm
• 2: Resulting harm

Example—Deliberately selling products below cost to drive a rival out of business

• 1. Existence of a valid contractual relationship between π and a 3rd-party or a valid business expectancy
• 2. ∆ knows about K or business expectancy
• 3. ∆ intentionally interferes by encouraging π to breach K or terminate the expectancy
• 4. Damages (e.g., π breaches K with 3rd-party, as a result)

The non-breaching 3rd-party can sue:

• π for breach of K, and
• ∆ for inducing the π's breach

∆ may be relieved of liability if he/she has a special relationship with one of the contracting parties

Examples—advice from attorneys, accountants, parents, clergy

• π must possess a valid trade secret, and
• ∆ must take the secret by improper means

• (1) Info that provides a business advantage
• (2) Info must be secret, not generally known AND
• (3) Owner must take reasonable steps to keep the info secret

• (1) Traitorous insider–breach of confidentiality and trust.
• (2) Industrial espionage

• ∆ uses π's name/image for a commercial purpose
• Exception: Newsworthiness

• Note: π doesn't have to be a celebrity/public figure to have name/image appropriated
• Appropriation is the only privacy tort recognized by NY

Invasion of π's seclusion, in a way objectionable to an average person

• π's location: Reasonable expectation of privacy?
• Note: Trespass to land is not required (e.g., intrusion can occur through wire-tapping off-site)

Not recognized as a cause of action in NY

• ∆ makes a wide-spread dissemination of a major falsehood about π
• Strict-Liability Standard: Honest mistakes are actionable, if π can prove that the statement is objectionable to an average person and that it is false—tortious intent is not required
• Remedies: Emotional damages
• Not recognized as a tort in NY

Note that to qualify as a "major falsehood," the statement need not be defamatory. The standard is whether it is false, and that it is objectionable to the average person—this requires some understanding of context in which the statement was made

Note also that unlike the tort of defamation—where the ∆ need only tell at least one person other than the π—in a "false light" case, the ∆ must have made a wide-spread dissemination of the statement.

• Wide-spread dissemination of confidential information about π, that would be objectionable to the average person
• Exception: Newsworthiness, i.e., legitimate public interest (broadly construed)
• Not recognized as a cause of action in NY

The information must truly be confidential—i.e., π must have taken reasonable steps to ensure its secrecy.

• Consent: Bars π's recovery for all 4 privacy torts
• Absolute/qualified privileges: Bars recovery for false light and disclosure

True owner of property intends to give up both (1) title, and (2) possession

• True owner of property—
• (1) Has involuntarily or inadvertently lost possession of property,
• (2) BUT does not intend to give up title or control.

• Finder obtains both possession and title if—
• (1) He exercises control over the property;
• (2) With intent to assert ownership.

Value < $ 20—Title to found property vests in finder after–

• (1) Finder makes reasonable effort to locate true owner, and
• (2) True owner does not claim after 1 year

Value ≥ $ 20—Title to found property vests in finder after–

• (1) Finder turns property over to police;
• (2) Police hold property for statutorily prescribed period;
• (3) True owner does not claim within the prescribed period; AND
• (4) Finder asks police for property.

• (1) Donor has donative intent (give up title and possession), and
• (2) Valid acceptance by donee, and
• (3) Delivery to donee

• Notes:
• Acceptance may occur by affirmative act or silence
• Delivery includes delivery of actual property, or an emblematic representation of the property

Gift must be (1) in contemplation of death, and (2) donor's death must be imminent

• Notes:
• Donor's death must be objectively likely
• Donor must die (no gift if donor survives)
• No gift if donee predeceases donor

• (1) Debt relating to performance of services;
• (2) Creditor has possession of item in question; and
• (3) Debtor retains title to property.

General Lien

• Creditor can satisfy lien with a variety of property
• E.g., self-storage warehouses
• Creditor's return of some property to debtor does not discharge general lien

• Special Lien
• Creditor has possession of specific property worked-on.
• Creditor's voluntary return of special-lien property extinguishes the lien, but does NOT release the debt.

Occurs when someone takes possession of property for a specific time, and for a specific purpose

Must take reasonable steps to protect the bailed property.

• Bailed property includes:
• (1) The property itself
• (2) Ordinary/Expected things inside the bailed property

Bailed property does not include unusual/unexpected things inside the bailed property, unless the bailed property is a safe-deposit box.