So long as ∆ desires to produce any forbidden consequence, he will be liable if anything happens.
Battery : Elements
(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.
Assault : Elements
(1) ∆ places π in a reasonable apprehension of
(2) Apprehension must be of an immediate battery.
There must be conduct. Words alone insufficient.
Assault: What is Reasonable Apprehension?
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
Assault: What is Imminent Battery?
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")
False Imprisonment : Elements
(1) ∆ commits an act of restraint
(2) π is confined to a bounded area
False Imprisonment: What is an Act of Restraint?
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).
False Imprisonment: What is a Bounded Area?
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
Intentional Infliction of Emotional Distress: Elements
(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.
IIED : Elements : Outrageous?
"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
Trespass to Land : Elements
(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.
Trespass to Chattels: Definition
Modest interference with enjoyment of personal property—for example . . .
Deliberate damage (keying your car),
Temporary theft (unauthorized "borrowing")
Trespass to Chattels : Recovery?
Fair rental value
Cost of repair
Conversion : What is it?
Significant interference with the enjoyment of personal property.
Conversion : Recovery?
Special Remedy—π can recover full market value (not just rental or repair)
Note: a bona fide purchaser for value cannot be a converter
Consent: Express: Definition and Limitations
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 tortsFocus on π's objective conduct—π's subjective mental reservations are irrelevant.
Actions outside the scope of the implied consent are still actionable.
Scope of Consent in Medical Procedures
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.
Types of Protective Privileges
Defense of others
Defense of Property
Protective Privileges : Requirements
(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
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.
Necessity : Public Necessity
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
Necessity : Private Necessity
When: ∆ invades π's property in an emergency to protect ∆'s interests
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
Injuries Caused By Domesticated Animals
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").
Injuries Caused by Wild Animals
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.
Abnormally Dangerous Activities
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.
Products Liability: Strict Liability
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.
Products Liability: Manufacturing Defect
Product departs from its intended design in a way that makes it more dangerous than the products made properly.
Products Liability: Design Defect
(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.
Affirmative Defenses to Strict Liability
In contributory negligence jurisdiction: assumption of risk.
In pure comparative negligence jurisdiction: Damage reduction based on percentages.
Negligence : Elements
1. Duty of care
2. Breach of duty
Duty: Two inquiries
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)
Duty : Default Standard of Care
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)
Duty : What standard of care does a CHILD ∆ owe to potential πs?
< 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 : ∆ is a Professional
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.
Duty : MS Possessor of Land
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
Duty : NY Possessor of 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
Duty : Possessor of Land : Firefighter Exception
Firefighter's rule: Assumption of risk. NY: Can't sue employer, but can sue other third parties.
Duty: Possessor of Land: Child Trespassers
"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
Minimum required to satisfy duty to trespassers for hazardous static conditions
Adults = provide warnings
Children = build barriers to entry
Duty : Statutory Standards of Care
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
Duty : NY No-Fault Insurance
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
Duty : Negligent Infliction of Emotional Distress
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
Res ipsa loquitur
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 : Factual Causation : But-for Test
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)
Causation : Factual Causation : Multiple ∆s
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
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.
Direct + Foreseeable consequence: Causation
Direct + Unforeseeable consequence: E.g., freakish or bizarre—No causation
Proximate Causation: Intervening Causes
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.
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: Collateral Source
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.
The "egg-shell skull" rule
You take your π as you find him.
The egg-shell-skull rule applies to all successfully proven torts—not just those in negligence
Traditional Contributory 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.
Assumption of Risk
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.
Pure Comparative Negligence
Jury allocates fault. π's recovery is reduced accordingly so π will always recover something, even if π has the bulk of fault.
Partial/Modified Comparative Negligence
If π <50% at fault, damages will be reduced.
If π >50% at fault, NO RECOVERY.
Common Law Defamation : Elements
DEFAMATORY statement IDENTIFYING the π
PUBLICATION to at least one 3rd-party
INJURY to reputation
Common Law Defamation : When is a Statement Defamatory?
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
Common Law Defamation : Types of Defamatory Statements?
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
Common Law Defamation : Slander Per se Categories
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
Common Law Defamation : Published Statement?
∆ 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
Common Law Defamation : Must π prove Damages?
Libel—Damages need not be shown (they are presumed), unlessSlander 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
Common Law Defamation : ∆'s Defenses
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.
Statements of Public Concern : Additional Elements
π must prove falsity of the statement, and
π must prove fault on the part of ∆
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
Prima Facie Tort
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
Inducing Breach of Contract : Elements
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)
Inducing Breach of Contract: Who can non-breaching π sue?
The non-breaching 3rd-party can sue:
π for breach of K, and
∆ for inducing the π's breach
Inducing Breach of Contract: Defenses
∆ 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
Theft of Trade Secrets
π must possess a valid trade secret, and
∆ must take the secret by improper means
Trade Secret: Definition
(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
Theft of Trade Secret: What is an "Improper Means"?
(1) Traitorous insider–breach of confidentiality and trust.
(2) Industrial espionage
∆ uses π's name/image for a commercial purpose
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
Privacy Torts : False Light
∆ makes a wide-spread dissemination of a major falsehood about π
: 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.
Privacy Torts : Affirmative Defenses
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.
Abandoned Property : Finder's Rights
Finder obtains both possession and title if—
(1) He exercises control over the property;
(2) With intent to assert ownership.
Lost Property: Finder's Rights
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.
Absolute Gift : Inter Vivos
(1) Donor has donative intent (give up title and possession), and
(2) Valid acceptance by donee, and
(3) Delivery to donee
Acceptance may occur by affirmative act or silence
Delivery includes delivery of actual property, or an emblematic representation of the property
Absolute Gift : Causa Mortis
Gift must be (1) in contemplation of death, and (2) donor's death must be imminent
Donor's death must be objectively likelyDonor 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.
Liens : Types of Liens
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
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
Bailment: Bailee's Duties
Must take reasonable steps to protect the bailed property.
Bailment: 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.