TORTS

 A tort is an unreasonable conduct committed against P s mind, body, property, privacy or reputation  Torts are done IN SIN:  I INTENTIONAL harm to a person (e.g., assault, battery, false imprisonment, or the intentional infliction of emotional harm)  N NEGLIGENT conduct causing personal injury, wrongful death, or prop damage  S STRICT tort liability (see the mnemonic A SWAN)  I INTENTIONAL harm to property (e.g., trespass, conversion, or the tortious interference with a contract)  N NUISANCE Negligence 1. was there a specific duty owed to the P 2. What was the scope of that duty- i.e. was it foreseeable? a. i.e. was he in the Zone of danger b. Consideri. Occupier s liability ii. voluntary assumption of duty iii. Duty of care third person iv. Employer- employee duty of care 3. Did the D act like an objective RPP

4. RPP test is objective and does not account for Ds shortcomings, unless: a. (1) D has superior knowledge = standard of care is person with same superior knowledge b. (2) D has a certain physical characteristic = standard of care is person with same physical characteristic (EX: D is blind) Ds who are NOT held to RPP standard = i. (1) children ii. (a) children under 4 = incapable of negligence iii. (b) children over 4 = standard of child with similar age, experience,and intelligence (subjective) 1. exception = child engaged in adult activity is held to rx prudent person standard c. (3) professionals i. (a) standard of average member of the profession in a similar community; custom of profession sets standard of care

ii. (b) Drs owe special duty to explain certain risks of medical procedure to their patients under Doctrine of Informed Consent 5. Resulted in PI a. Past and foreseeable future illness b. Medical expense c. Loss wages d. Pain and suffering e. Eco loss 6. There was causation and the injury was foreseeable ( FCLIPS)

 Tort of Negligence
A plaintiff must prove the following elements in a successful claim for negligence: (1) D owed a duty to P as a foreseeable plaintiff; (2) D breached the duty; (3) The breach was an actual and proximate cause of the damage; (4) P was damaged.

 Definition  Negligence is unreasonable conduct caused by D s FIT y F- Failure to take reasonable precaution y I- Inadvertences (oversight) y T- Thoughtlessness  Negligence is (failure to take care+ foreseeability + duty of care) y failure to exercise reasonable care y that an ordinary reasonable person would have taken under similar circumstances y that proximately causes physical injury to P y who was foreseeable threatened by D s unreasonable act or omission. y It is an unreasonable conduct creating foreseeable risk of harm to P, y to whom D owed a duty of care.  Once a law imposes a duty on D s conduct then the scope of D s duty is based on foreseeability of harm to with in the zone of danger of D s FIT conduct  Negligence draws a line of liability between remote possibility of injury and injuries that are reasonable foreseeable.  Foreseeability is defined as being reasonably anticipated  i.e. an event or outcome followed D s conduct and  should have been anticipated by D

 Elements of a negligence claim are DIP (there will be a problem with one of these in the question on the exam)  D- (D owed a duty and D acted unreasonably causing harm to P as a result of the breach + and that injury to that P (specific) was foreseeable) y Duty to exercise reasonable care was owed by D to injured P and that duty was breached- pg 31 y The duty of care owed by one person to another is simply to behave with that degree of care that a reasonably Prudent Person (RPP) would exercise in similar circumstances y The injured party must plead and prove that D owed, not merely a general duty to act reasonably, but a specific duty to a particular P y A duty of care is owed only to those who foreseeably could be injured by Ds conduct j The risk reasonably to be perceived = duty to be obeyed  Required to avoid subject FIT actor to limitless liability to indeterminate class of persons. y Once a legal duty is found to exist j Scope of that duty and to whom it is owed is based on foreseeability of harm  i.e. duty is owed only to those who foreseeable could be injured due to D s breach  i.e. those with in the Zone of danger. y Ex- blast occurred- no duty for people 10 blocks away y Conductor held the door open for a man y Man had explosive- burst- caused glass to shatter on the other side of the platform hitting the P y P sued the railways and conductor for negligence of holding the door opened y Courts said it was not foreseeable from Conductor s action that glass would shatter and P would get hurt j The injury was too remote from the cause of action = no negligence. y P could have sued the guy carrying explosives since it is foreseeable that explosion would cause harm  Occupier s liability y Owner/possessor of property owes a duty to make premises safeoccupiers liability- no duty of care outside premises. j Includes providing  Minimal security  Increased security if a similar crime has happened before in that property- then must provide enhanced security like putting up fences and E-gates.

 Outdoor lighting for those coming in the night public property  Land not open to the public- a duty is owed by the possessor who knows or should have known that someone would visit to illuminate the area if it would avoid the hazard. j COA case- women comes to her apartment at 3 AM- no light- hits a car- sues the Landlord for his breach of duty to make premises safej Court- we can expect the lights to be switched on for a reasonable amount of time- cant just leave them open 24/7 j But does not apply where business functions 24/7 and is open to public. y Can be for a reasonable timej A landlord is not an insurer for those entering the premises, but a L owes a duty to take minimal precautions to protect tenants and visitors from foreseeable harm. Examples of Where No Legal Duty of Care is Owed: j 1. A property owner to a passerby who is dragged by a criminal through the front door with a broken lock, even though the owner breached its duty owed to tenants and guests visiting the building; j 2. A golfer owes no duty to a motorist out on the highway and there s no duty to warn others on a different fairway. The only duty owed is to those within the intended flight of the ball. j 3. No duty is owed by a theatre to protect patrons sitting in the theatre when someone comes in late for the performance and falls onto the sitting patron; j 4. Owners of buildings do not owe neighborhood businesses a duty to protect them from economic harm caused by the negligent collapse of their own building. j 5. After a powerful storm, an 80 ft. tree on Blackacre leaned dangerously over the driveway of Whiteacre. The owner of Whiteacre called the village to report the damaged tree and reported that the roots were dangerously loosened and could fall at any moment. j 6. There is no civil or criminal duty involved by an uninvolved bystander to aid a person in peril even though the rescue could have been performed with no risk to the rescuer unless the actor s activity or an instrumentality under his control tortuously or innocently caused the P s peril.  Duty only when a D puts the P in peril.  Or voluntary assumption of duty

   

No duty to help as a bystander but when voluntarily assumes a duty D assumed the duty- then can not stop- starts duty of care When a person voluntarily assumes a duty he must act as RPP in accomplishing that task A volunteer may discontinue aiding a person unable to protect herself y Provided the injured is not placed in a worse position then before the volunteer started to render aid When a person voluntary helps for protection of another s self or property y Her failure to exercise reasonable care results in liability Doc and nurses have no legal duty to stop and assist an injured person y All states have good Samaritan laws shielding them from liability from negligence y NY extends this Samaritan protection to anyone who voluntarily and without expectation of compensationrenders emergency medical aid at a scene of accident (includes fire dept.) j But NY do not extend this protection to medical treatment in an emergency room j They should have used Reasonable care with skills of that profession Generally no duty is owed from preventing one person to harm another one y Ex- A doc does not owe a duty to mental or drug rehab patients victims except in very limited circumstances, unless a duty arises due to a special relationship

Duty of care third person j Generally no duty but liability for tortious act of third person arises when D had a duty to control the conduct of the tort doer j Can not be an absolute insurer but act reasonably to mitigate the harm that could occur due to the tortfeasor s conduct  Duty of parents of their Child  Absent a statute- generally parents are not vicariously liable for tort of their children merely because of parent child relationship y But tort claims against parents are permitted if a child is SICK

j S in an employment relationship where a child commits a tort, while acting as a SERVANT or agent of the parent j **I where the parent entrusts or knowingly leaves in the child s possession an INSTRUMENT/object that, in light of the child s age, intelligence, disposition and prior experience, creates an unreasonable risk of harm to others j C where the parent knows of child s tortious conduct and directs, approves or CONSENTS to it j K where the parent has the ability to Control the child, but fails to exercise that control  Spouse  Carriers- Airplane  Businesses have a reasonable idea that a tortious act had been committed or should be equipped to deal with any tortious conduct of users of the business- depending on foreseeability.  School to protect kids- Foreseeable that kids could get hurt j An unexpected fight between patrons does not make business liable to injured P because most batteries are not foreseeable  To recover the P must establish that O was on notice that violence could occur and then was negligent in failing to protect patrons j Public establishments are not insurer of safety of their patrons. y Employer- employee duty of care j Under the doctrine of respondiet superior (employeeemployer) j The torts of an agent or employee are vicariously imputed to the employer even the tort was committed in disregard of employers instructions j P must show that employees tort was committed with in the scope and in furtherance of the employer s business i.e. tort was closely connected with what the employee was employed to do.  Dominoes had to take out 30 mins or free because they deliver in furtherance of the business of dominoes y Just saying we asked them not to break any rules is not enough.

j Intentional Tort of employee-

j Where employees intentional tort arises purely from employees personal motivation then the employer is not vicariously liable  Employee gets out of the car and starts beating someone on the way to work j If employees tort is intentional then in order to impose vicarious liability on employer  Employer must have auth the use of discretionary force OR  Like a bouncer  Act must have been motivated by and performed to assist or promote the business interest of the employer j BUT- can sue for negligent hire, retain or failure to control  A P injured by an intentional act of employee may sue an employer for its failure to exercise reasonable care in  Hiringy Where employee had been previously involved in misconduct but still hired him. y Did not make sure he was fit for the job- like a handyman  Retainingy Employee showed signs of misconduct- but instead of firing they moved him to another department  Controlling its employee  This liability is based on employer s active negligence in exposing 3rd persons to the foreseeable misconduct of the employee and is separate and apart from vicarious passive liability. j When a hospital negligently hires or retain an unfit doc or nursesit breaches a duty owed to hospital patients  When the patient sues- the claim is in negligence (3 year sol and not 2.5 for med mal)  Since its not for med mal (suing the hospital as an employer) P s infancy tolls the 3 year SOL to age 18 (10 year rule does not apply) The Reasonable Prudent Person standard governs the duty owed to P which is objectivej Ds lack of experience or lack of mental deficiency is not considered j If D is an expert- her conduct will be measured by hire standard of care by a reasonably expert person. j Exception to objective RPP is infants  As a matter of law a child can not be negligent- i.e. can not be sued  A) in MBE- until their 7th bday  B) in NY- until their 4th bday

In MBE and NY- children are not liable for their intentional tort until their 4th birthday  An infant over non suri juri (not their own master) age is judged by quasi-subjective standard based on what would be expected of a prudent child of similar age, experience and intelligence.  If a child engages in an adult activity then the child is subjected to adult standard of RPP-since they are inherently dangerous activity.  MBE- Child can sue parents for negligent supervision  NY- can not not a legal cognizable claim. j Problem  F negligently allowed his son S to play in heavy traffic  S was hit by D s speeding car  Q: Can S sue F  A: yes in MBE but not in NY  NY has abolished intra family immunity and permits tort claim against other family members if same claims could have been asserted between parties outside family y Like intentional torts or negligent misconduct.  However in NY under GOL no supervision claim y a child does not have a legal cognizable claim against a parent for parent s negligent supervision resulting in child s own injury. j I.e. child cannot sue where a parent omitted to do something in supervision.  A parent s negligent failure to supervise a child does not constitute a tort actionable by the child if he was injured while parent failed to watch out for child s safety y Likewise a foster parent or sibling owes no duty to supervise y Grandparent who is baby sitting does j But school s negligence to supervise is actionable j Baby sitters are responsible for negligent supervision  MBE does not follow these rules.  Could D who was sued by S implead F in NY?  Not in NY because F owed no legal duty to supervise S  Since F did not commit a tort- D has no right of contribution from F. Insanity j Is contract and in a criminal law defense but not a defense for negligent or intentional tort  Insane or intoxicated persons are liable for tortious injuries inflicted y

 

Insanity is a defense for punitive damages

I- Physical Injury to P or his property occurred as a result y A P must plead and prove a physical injury to P s body or property y Once PI is established by P- damages may include j Past and foreseeable future illness j Medical expense j Lost wages- must mitigate them by finding job elsewhere  Must prove the amount of past earning by means of IT returns or other documentation  Lost earnings must be established with reasonable certainty.  Immigration statutes are irrelevant for the immigrant to recover damages for pain and suffering and medical expenses  As long as the worker did not file fraudulent work papers then his claim for lost past or future earnings will be based in US wages  However, if fraud was used to gain employment- then injured workers lost wages will be based on the lost wages he would have recovered in his own country. j Physical and emotional pain in suffering  A pain and suffering claim requires proof that injured P was conscious and  Cognizably aware of pain after the accident  If P dies instantly there is no recovery for conscious pain and suffering j Eco- loss  When property is destroyed and can be replaced  Then damages are its replacement value  If business property and O suffered lost profit y Those profits may be recovered Negligence rules are design to protect persons from risk of physical harm to their person or property j The economic loss rule serves to maintain a distinction between a tort and contract obligation- except for non medical prof mal practice which does not require PI  Generally negligence is not permitted solely for economic loss or physiological injury in absence of PI or verifiable physical symptoms Just as in contract law an injured P has a legal duty to mitigate tort damages j An injured P must undergo medical treatment that RPP would have undertaken j Under the doctrine of avoidable consequences an injure P is required to undergo reasonable medical treatment

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 Not risky or dangerous j P s violation of this doctrine prevents recovery for those injuries and pain and suffering that could have been avoided by reasonable medical care.  Religious observance an exception to absolve from RPP standard j Likewise jury may be instructed on mitigation of P s loss wages  Where P was not medically restricted and fails to look for work and jobs were available  Court must instruct the jury on P s duty to mitigate damages Even D s contact with P has to be either j Intended j Highly likely j Foreseeable  The exact or extent injury need not be foreseeable  As long as some injury was foreseeable  Anything that flows from foreseeable injury like doc after D injures her.  The tortious D taken the defendant has he finds her  Therefore is liable for resulting death, injury or disability if the injured P had soft skull or brittle bones  P s vulnerability will not relieve D from liability

P- P s injury was proximately caused by D s breach of dutyCAUSATION y Reasonable foreseeability of risk of harm y 5 types of causation (F CLIPS)- study check list y F- Factual causation (but for) j The law draws a distinction between a conditions that sets an occasion for an injury or facilitates an accident and act that is a proximate or legal cause of the accident j By proving factual cause P simply states but for D s conduct P s injury would not have occurred j Generally factual cause alone is insufficient to establish negligence  (Must further demonstrate that D s negligent conduct was a substantial factor (proximate cause) in causing P s injury) j Small subset of Cause y Proximate Cause (natural and probable cause of the injury +substantial factor) j Requires a close cause of connection between D s negligent conduct and P s injury j To recover P s injury must be natural and probable consequence of D s tortious act. should not be too remote. 11

j Proximate cause limits D s liability for the consequences of her negligent conduct  Negligent conduct must be a substantial factor in causing P s injury  A negligent D is not liable for P s injury caused by bizarre, extraordinary or far-fetched events. j Problem  After swimming for several hours P was severely injured when he dove in to D s shallow pool  P sued the pool owner for failing to post depth warning at the shallow end of pool  In order to recover P must prove that D s breach of duty was a substantial factor in producing the injury  Here P s careless conduct rather then D s failure to post warnings is the sole proximate cause of the injury  Even D breached the duty of care by not posting the warning (negligence per se)  This breach was not a substantial factor in causing P s injuries  P knew since he had been in the pool for several hours y Might have had a chance when it was a new pool and P had no idea or could not have any idea. Concurrent causes j An injury may have more then 1 proximate cause j D s negligence need not be the sole proximate cause of P s injury  Only needs to be A proximate cause  Thus in two car collisions P s injuries are caused by concurrent negligence of both drivers j P is not required to eliminate to every other possible cause of injury but need only to offer sufficient evidence from which a jury may conclude that it was probable that D proximately caused injury in whole or in part. j At common law and MBE Where acts of several tortfeasors contribute to P s injuries each is 100% JnS liable for all of P s injuries regardless of each one s apportioned share of fault. j NY  Has limited JnS liability under Art16  JnS continues to apply to economic injuries- MBE ruleclaim for contribution from other co-Defendants  But is limited to non- economic injuries only have to pay apportioned share of fault.

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y WARM DIP- exceptions MBE rules apply. j P has a burden of proving the conduct of a specific defendant was a proximate cause of his injuries  However, P suffers a single injury as a result of conduct of multiple tortfeasors and P can not establish which D caused the injury then  But under alternative liability theory the burden of persuasion on the causation issue shifts from P to 2 defendants who are in a better position then P to identify the cause of P s injuries  If neither can prove who inflicted P s injuries both are held jointly and severally liable even though only one of them could have done it. y Successive causes j Arise where P s injuries are proximately cause by separate cause of negligence j The original tortfeasor is liable for subsequent foreseeable injuries arising from initial tort.  MTA hurts a person on a wheelchair- P wins the law suitgets a new wheelchair- 6 months later develops a rash- P tries to sue MTA- courts said the injury was too remote from the initial cause and caused by breach of strict product liability. Wheelchair was the sole intervening cause of the alleged injury.  Ex- if P s injuries are aggravated by subsequent negligence of docs, hospitals or nurses  Tort law considers such injuries foreseeable and proximately caused by D s original duty y i.e. D s negligence is considered as a substantial factor in bringing about P s foreseeable additional injuries j D would have a claim for contribution against the doc or hospital and P can sue doc for med malpractice.  But Subsequent tortfeasor is only liable for aggravated injury. Intervening cause j An intervening proximate cause for P s injuries is the one takes place after D s negligent act but which contributes to P s injuries. j A foreseeable intervening cause (med mal) does not break the chain of causation and the original tortfeasor is liable for P s injury flowing from that foreseeable intervining cause. j An independent intervening proximate cause AKA superseding proximate cause is extraordinary and so mitigated as to break the original chain of causation.

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 Cutting off earlier tortfeasors liability for P s injuries  Prevents D s negligence being the proximate cause of P s subsequent injuries j Whether an intervening cause is independent i.e. overriding, depends on whether the intervening act was normal and foreseeable if it was not= independent superseding cause. j A p s own negligent conduct can be the sole superseding cause of his own injury.  Kid got into an unlocked MTA train  Stuck his head out and got injured  Kid sued the MTA for being negligent in leaving the door opened  Court said the sole and proximate cause of kid being hurt was his own negligent act of sticking the head out and hence superseded MTA s negligence/omission to failure to lock the door. j The intervening j tortious actor is solely liable for subsequent injury if the earlier initial act has become too remote to constitute a proximate cause to P s injuries  Limits initial tortfeasors fault to the initial injury. j Intervening acts of nature or criminal conduct often constitutes superseding causes  But such events do not relive the original tortfeasor from liability if such activity could have been avoided with reasonable care  Ex- a landlord is liable for battery on T where L breached the duty to provide reasonable security  LARGE C.D.2 are played in negligence: (just a checklist)  L - LAST clear chance( substituted in NY by contributory negligence) y Is asserted by P to defeat a D s defense of contributory negligence j In comparative negligent jurisdiction no need to use last clear chance  In such jurisdiction a negligent p may recover by showing that D had the last clear opportunity to avoid the accident  LCC is frequently raised by  Infants  Intoxicated  Or helpless to escape the danger they negligently brought about y LCC is based on D s knowledge of P s peril an interval in which P s negligence was complete and the D had an opportunity to avoid P s injury

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Thus under LLC is what the D did or failed to do after acquiring knowledge of P s peril that constitutes the proximate cause of P s injury

A - ASSUMPTION of risk (defense)**** y NYAA 624-634 y MBELB torts-39-44 y AR defense asserts that the P assumed the known risk of the foreseeable harm y It can be asserted as a defense to the negligence claims or even claims arising out of strict tort liability (Dynamite or wild animals) y In MBE (not in NY)- P can impliedly assume the risk of D s reckless conduct y AR defense does not apply to intentional torts, instead the D should use the defense of consent y A P can either impliedly or expressly assume the risk of D s tortuous conduct j Express AR arises  When a P orally or in writing (in a exculpatory clause in a contract) releases another from future tort liability.  It is an express agreement prior to a P s injury that D owes no DIP duty of reasonable care  An express release is a complete bar to P s negligence claims  NYAA 729  NY- an express release must be expressed in unmistakably clear language mentioning the word negligence.  Where P agree to release waive, discharge and relinquish any and all claims of whatever kind against the D y Not sufficiently clear and specific to relieve the D of liability arising from D s negligence.  NY will not enforce the following express releases  GOL: A release by a recreational user of swimming pools, health clubs or other places of public amusement where a fee is charged y But a patron using a recreational facility for instructional purposes and not recreational use can expressly release the facility from liability. y Ex- a race track, parachute jumping, white water rafting or a riding stable j NYAA 729-730  A written NY or MBE release of D s reckless or intentional conduct which is against public policy  A Minor is not bound by the release signed by a parent since it was not first approved by the court y NYAA 728 15

j Implied AR  Not based on an express contract  But arises when a P voluntarily encounters a known and common apparent risk of harm  Un assumed or unreasonably increased risks beyond usual dangers inherent in that activity will not relieve a D from liability.  NY Ps do not impliedly assume the risks of intentional or reckless conduct or concealed or unreasonably increased risk  MBE Ps can impliedly assume the risk from D s reckless conduct  Example y A skier assumes a common and apparent risks of the ski slope but does not assume the risks of another skiers reckless conduct- NY j AR is a complete bar to P s recovery in cases involving  1) express assumption of risk  2) Implied assumption of risk  Which involves a participant or spectator in a sporting or recreational event will be a primary assumption of risk y NYAA 734 j NY COA**** has held that other then express and primary assumption of risk all other assumptions of risks have been eliminated by comparative negligence doctrine. MBELB-T-27 j To assert AR the P must have been able to accept or reject that risk and the decision must have been voluntary  Thus if D s conduct precluded all safe and reasonable alternatives then P s assumption of risk is not voluntary and defence can not be asserted  Problem  In MBE- P was injured by X s negligent driving  P was bleeding and asked X to drive him to the hospital  Even though X s car had bad breaks and X was intoxicated y Here P did not assume these risks of X;s tortuous conduct because P was left with no alternative but to encounter the known danger  Q: did P s conduct constitute comparative negligence?  A: probably not- under the emergency doctrine- based on an unforeseen and sudden occurrence (an emergency) P s conduct was probably reasonable. 

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R - RES IPSA LOQUITOR(speaks for itself) NYAA 826-831 y RI permits a jury to draw an inference of negligence (not a presumption) from circumstantial evidence (not direct evidence like testimony- it has to be inferred from facts) to prove the specific proximate cause of the accident y RI assists an injured party who does not know exactly what the D did to cause the accident but the thing speaks for itself j NYAA June 2011- Pg5 y This doctrine requires a P to prove PEA j P- a probability exists neither the P nor the 3rd person caused the injury and the negligence was not committed by anyone other then the D  NYAA 826-829 j E- Instrumentality causing P s injury was under D s exclusive control or where the D had the right or power to control when Negligence occurred.  NYAA 828-829  Consider horseback ride- saddle falls off and injures P  Courts- negligence happened when saddle was put on the horse and the D had full control over the instrumentality even though when the act happened instrument causing the injury was in P s hands  Hotel is not in full control of say its rooms since they turn over the possession to the guests for a day or two  Although hotel has a general duty under occupier s liability j A- Accident would not have occurred in the absence of negligence  Problem  P was admitted to the hospital for surgery  A week later P contracted Hep C  Q: can P assert Res Ipsa?  A: Yes y Absent negligence by the D, P would not have occurred Hep C y When the surgery was going on instrumentally was in control of the D y And this would not have occurred had the doctor not been negligent. j Allows the jury only draw an inference not a presumption  Examples  When a 600 pond steer fell through the ceiling on to P s lapthe situation spoke for itself 17

A foreign object in a body A train goes off the tracks A mislevelling of an elevator A horse running free on a highway y But not a dog- they can run free- horses intend to roam and not run  Because an inference and not a presumption arises by using RI- even if D fails to come forward and explained what happened  The burden of proof for proving negligence remains with the P  This doctrine prevent a D from successfully moving for SJ or for a directed verdict when P rests her case without any direct evidence of negligence G - GUEST statute** y NY does not have it y A guest statute prohibits a gratuitous automobile passenger from recovering against a negligent driver without proving D s reckless conduct (gross negligence) j P a passenger in O s car was injured when it collided with X s car j Concurrent causes of the accident were the negligence of X and A DIM defect in O s car manufactured by m j In P s suit against X and M-they can not assert the guest statute which can only be raised by the host (O) of the injured passenger.     E - EMERGENCY doctrine Jury charge- not held to objective RPP y In an emergency, when a person is confronted by a Unexpected and Sudden Occurrence giving her little time to think then she is not negligent if her actions are reasonable in that emergency context. y A D faced with an emergency is not obligated to exercise her best judgment y This jury charge is frequently requested by the driver who collides with a car who has crossed into oncoming traffic where a driver is sued by the passenger in the car. y A person acting in an emergency situation is not held to the ordinary standard of care unless j The D created the emergency  Ex- he was exceeding the speed limit or tail gating and thus was a contributor in bringing about the emergency j OR should have reasonably anticipated the emergency  i.e. it was a foreseeable emergency.  Ex- guard in a bank asking for the emergency charge y Court- you were hired for security and any robbery is forseeable.

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If kept on driving for an hour in hazardous conditions therefore the driver was not confronted by an unexpected and sudden occurrence.  NYAA Jan 2012 Pg 2  Sun glare can be a US but not if a driver takes the same route at that time of the day In an emergency- a person can act without reasonable skill if the objective reasonable person would have believed that good likely to be accomplished by her conduct outweighed foreseeable risk of harm that the lack of incompetence might cause. j Harm of doing good outweighed harm of not doing anything and RPP would have done the same. NY drivers j 1) Emergency vehicles  Involved in an emergency  Recently has been narrowed by COA, allowing such vehicles to disregards rules of road only to y A) speed y B) pass through stop sign or red lights after slowing down y C) to go in the wrong direction in a way street y D) stopping and parking on the street j If A to D above is not involved then regular negligence rule apply to emergency drivers j except for police cars , every other vehicle has to activate siren to get this protection  Emergency operation does not include y Returning from an emergency j NYAA Pg1 April 2011 j 2) any public or pvt vehicle engaged in highway construction, repair or maintenance have immunity from civil liability for negligence and  Are liable only for reckless conduct j An injured plaintiff from one of these vehicles must prove that risk was so great under the circumstances that it was highly probable that P would be injured by D;s conduct  This immunity for negligence applies only when driver is sued as a defendant but not when that driver sues as a plaintiff  NYAA 771 j The emergency vehicle exemption 

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C - COMPARATIVE or contributory negligence (CN) y CNj if P s negligence contributes even 1% to accident P is barred from any recovery  defense for P- Last clear chance. Pure CN- NY j P may recover no matter how great P s apportioned share of fault Modified CN j allows the P to recover provided P s negligence does not equals or exceeds D s fault. Modified CN with unit rule j the unit rule is comparing P s %age of negligence with combined negligence of all D s as one unit to determine if P s fault => D s fault as one unit In a contributory negligence jurisdiction if P s negligence contributes even 1% to accident P is barred from any recovery not in NY Out 46 states that recognize CN 12 states including NY and MBE recognize pure CN j In which P may recover no matter how great P s apportioned share of fault 34 states recognize a modifies comparative negligence theory which allows the P to recover provided P s negligence does not equals or exceeds D s fault. Where there are multiple defendants some modify CN jurisdiction compare P s %age of fault to each D separately Most states adopt the unit rule comparing P s %age of negligence with combined negligence of all D s as one unit to determine if P s fault => D s fault as one unit j Ex- Jury said P 30%, X 25% and Y 45% negligent  Under unit rule P could recover 70% from both X and Y since there combined negligence exceeds P s 30% negligence  No unit rule- P could not recover from X because X s individual negligence 25% does not exceed P s 30%  P could only look to Y to collect 45%

y y

y y

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Since the rule is a P who is more negligent then the defendant cannot recover from him.

Need to check- In comparative negligence jurisdictions P s recovery is reduced by P s own %age of fault any derivative claim arising from P s injuries j Wrongful death claims  Likewise will be reduced to the extent of injured P s comparative negligence. In NY - failure of P to wear seatbelt is inadmissible on the question of liability in P s comparative fault j But is admissible in the issue of P s damages

D - DRAM shop act= NYAA 760--766 y At common law a bar or restaurant was not liable to third persons who were injured off the premises as a result of an intoxicated customer j The bar giving the customer the drink was the cause in fact but the customer consuming the liquor was the proximate cause of both customers and 3person s injuries y Under NY Dram Shop Act j When a 3rd person is personally or financially injured by a intoxicated person then this gives rise to cause of action against the party who unlawfully provided the liquor to the intoxicated person  An unlawful dram shop sale occurs  1) by making a direct sale of liquor to a visibly intoxicated person y some states (not NY) extend this liability to social host with no sale required  2) the provider (not necessarily the seller) knew or reasonably should have known he was providing liquor to someone under age 21- but NY parents are exempt from serving liquor in home only.  3) providing a controlled substance (pot) to anyone  A ny DSA claim whether for PI or wrongful death because it did not exist at common law and is purely a creation of the legislature which did not give this act SOL  Is governed by a 3 year SOL. A SOFT RAIN  NY DSA permits recovery of punitive damages.

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D - DANGERS invites rescue y An existing danger invites a rescue thus a tortfeasor who has placed herself or another in danger is liable for the injury suffered by a 3rd person who comes to the rescue of the endangered person. y A rescue is foreseeable and the resulting injuries are deemed proximately caused by the original tortfeasor j Ex- where rescuer was danger while walking back after completing the rescue  NYAA 750 j Problem  D negligently collided with O s car injuring O  In a daze O wandered into woods when O s father F arrived at the scene he started searching for O in woods  F fell into a hole and injured  D is liable for F s injuries because a duty was owed to O and was also owed to O s rescuer  However, if F was reckless in the rescue then F s conduct is conduct will be considered as Independent intervening cause cutting off D s liability y y DIR also applies to rescue of the endangered property even if the endangered property of the negligent D DIR is also used in SPL cases j Mask not working properly in a mine  A rescue worker goes in- gets injured- then he can sue the M of the mask under SPL  In class Q13 Fire Fighters rule AKA professional rescue doctrine j Police or fire personnel generally do not benefit from DIR doctrine j They assume the increased risks inherent in dangerous employment and generally can not recover from the tortfeasor who caused the emergency  It is the public as whole rather than an individual tortfeosor that should bear the cost of injuries to fir or police personnel.  Ex- slipping on floor while responding to an emergency  OR fire fighters injury from a collapsing roof j However where a police officer was hit by a flower pot can recover because that injury was not related to heightened dangers of an emergency. j Likewise- personnel are driving back from an emergency and is hit by a negligent driver then Firefighters ruler does not prevent a claim against the negligent D j Likewise this does not prevent a suit for intentional tort

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j Notwithstanding the firefighter rule- NY police personnel can sue to recover from injuries directly caused by a violation of a safety statue, rule or ordinance which wither created or increased a dangerous condition faced by responding police or fire personnel.  NYAA 690  Liability for conditions on real property (occupiers liability)= ordinary negligence standard and no strict liability for the dangerous conditions  MBE y Majority of states tort liability arising from underlying existin dangerous condition on the land j Depends on the duty owed to the person visiting the land y P s purpose of the visit generally determines her status and the duty owed j That person can be either  An Invitee  Is a person who enters the land and that land is either y 1) open to the general public j Ex- theaters, stores, buildings, or libraries j Even if she entered the land just to use the bathroom, telephone, or to get a change for a dolor bill OR y 2) a private premises where invitee intends to bestow some benefit on the possessor j Ex- to pick up or deliver goods or to make repairs j A mail carrier, a meter reader j but not a door to door sales person or fire or police personnel  The duty owed to an invitee is for the possessor to reasonably INSPECT AND DISCOVER dangerous conditions and to repair or warn the invitee of its existences y I.e. make the premises safe for the invitee j The fact that the possessor did not know of the latent dangerous condition is not a defense because a duty is owed to the invitee to reasonably inspect those areas of the property unto which the invitee will come  The possessor is deem to have constructive notice of the dangerous condition when y it s visible and apparent and has existed for a sufficient length of time j to afford the possessor a reasonable opportunity to discover and remedy the danger. NYAA 822-823

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A warning may suffice to remove the danger unless the condition remains unreasonably dangerous even with the warning y In which case the possessor owes a duty to eliminate the danger  A 3rd person accompanying an invitee is owed the same duty as an invitee even though the 3rd person has no intent bestowing any benefit on the private possessor y Provided the 3rd person with in the area of the invitation  Invitee liability extends only to those areas that are open by the invitation y By going outside that area the invitee or accompanying invitee person becomes j A) a TP OR j B) licensee if she has possessors express or implied consent j Ex- mailman delivers and rings the bell on the door= invitee j But when he went down the lawn (O had on previous occasion asked him not to do that) he became a Trespasser since there was no implied or express consent to go to that part of the property. j P goes to Macy to buy a perfume- goes into employee only area- drops down- can he sue? j N o- came as an invitee but without consent (it was revoked by the sign) and became a TP  A licensee  Licensee enters the land with posessors express or implied consent but where the entry is for licensee is for own personal purpose y Ex- friends, guests, or solicitors  The possessor owes a duty to the licensee only to warn KNOWN LATENT DANGEROUS DEFECTS y But no duty is owed to inspect the property for latent or obvious defects   Or a Trespasser  Enters or remains on property without a privilege or without express or implied consent of the possessor  TP takes the land as he finds it y Including any existing latent (hidden) dangerous defects OR y Wild animals OR y Vicious domestic animals that may attack a TP  24

No duty reasonable care is owed to someone entering the land who could be sues for the tort of trespass y Except the possessor must avoid intentionally or recklessly harming the trespasser j Ex- traps, guns, hidden wires or intentionally causing an animal to attack a TP Once a possessor becomes aware of TP presence a duty of ordinary care arises to avoid an injury to the TP y And to WARN OF ANY KNOWN LATENT CONDITIONS that pose a risk of serious injury or death If the possessor is aware that part of her property is used by TPs y Ex- a shortcut or a path over the land j Then a duty arises to take reasonable precautions to prevent harming the TP j Ex- make the path safe OR j Warn the TP of latent defect If a possessor discovers a TP is trapped, injured and helplessy then a duty arises to use reasonable care to assist the TP in danger TP children- doctrine of attractive nuisance treats TP children at invitees. Elements for attractive nuisance are y 1) Possessor knew or should have known man made condition involved an unreasonable risk of serious injury or death to TP children j Ex- a construction site, wild animals, a man made lake or a rail road yard y 2) risk of harm was not likely to be recognized by children j Ex- construction sites y 3) the place where the danger exists is the one where possessor knew or had reason to know that children are likely to trespass y 4) financial burden of correcting the danger j Erecting a fence or hiring a security guard was outweighed by the risk of harm to TP children y 5) the possessor breached a duty by failing to use reasonable care to reduce or eliminate the danger to TP children y This liability does not extend to those risks that should have been realized by the child

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Ex- O has an artificial pond stocked with goldfish O knew that children frequently TP to swim O took no precautions for their safety P aged 10 who could not swim entered the pond and drowned j O is not liable since this risk should have been realized by a 10 yr old j If O had erected a fence with a gate, but neglected to close the gate and P a 3 year old came to catch the fish and drowned then O is liable j The attractive nuisance does not have to have initially attracted TP children on the land since this doctrine is based on foreseeability of harm to TP children j j j j y NY does not recognize the attractive nuisance doctrine but in essence has applied it based on the doctrine of forseeability of harm and the duty owed to make the property safe.

NY Modern trend more than 20 states (NY) have adopted y a reasonable care standard in which j a possessor owes a duty to ANYONE entering the land regardless of her status these states have abandoned an inquiry into P s status and instead focus  on the possessor of the land and  whether the property was maintained in a reasonably safe manner under the circumstances. y Including the use to which the property is put and y The frequency of use y And the ease of extinguishing the existing risk y The duty owed is to take reasonable measures to discover and prevent injury to anyone who s presence was reasonably foreseeable. y NY treats everyone entering the land as an invitee. y y Was it foreseeable that someone could get injured due to the condition or use of the property? Was there inspection/maintenance to discover and prevent any injury? NY slip and fall injuries NYAA 838-842 j A P who slips and falls on D s property

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 Must prove  A latent dangerous condition existed and  1)D created that dangerous condition OR  2) D had actual notice of its existence OR  3)D had constructive notice because it existed for a sufficient length of time prior to the accident to allow a reasonable possessor to discover and correct it j Slip and fall cases are fertile ground for a D s 3212 SJ motion or for a directed verdict after the P has rested for failing to prove 1- 3 above j Problem  Can a possessor of realty insulate itself from tort liability by delegating the duty to an independent contractor?  No- a person who employed IC ordinarily is not liable for IC s negligence except  For a non-delegable duty to provide reasonably safe premises. y Death from elevator falling- had a duty to act and breached that duty by not maintaining the lift even though it was given to someone else.  NY s labor law****  Imposes strict liability and a non delegable duty upon both the owner of the realty and the general contractor of the construction site to provide adequate safety in a method and a manner in which the work is performed involving CCRAPED activity y C- construction y C- Cleaning (commercial windows) y R- repairing y A- Alterations to a building y P- Painting y E- Excavating y D- Demolishing j But does not cover routine maintenance (changing the light bulb)  Under labor law 241 y A P must allege a violation of a specific safety regulation set in NY industrial code. j Which sets forth state s minimum safety standards for CCRAPED activity y And the violation must have proximately caused worker s injury  Under Labor law 240 y There is also a non delegable duty by Os and GCs to prevent gravity related accidents involving CCRAPED activity j Such as falling objects j Falling workers 27

j Or even objects falling from the same level (a 10 foot pipe leaning against the wall that falls onto a worker y This law requires workers be provided with protective equipment such as scaffolding and safety ladders j Ex- an 800 pound object being moved down four stairs By statute workers comparative negligence can not be asserted and liability is strictly imposed on GC and the owner eventhough O excercised no control or supervision over the job. y The only available defense is the Recalcitrant Worker Defense j the worker has the duty to use or avail himself of the safety device provided. If a safety device is provided and the worker decides not to use the device (his refusal makes him recalcitrant) he cannot recover. j Safety equipment was readily available and worker refused to use it and this was the sole proximate cause of Workers injury.  Problem y O lease the property to T and leased expressly prohibited T from CCRAPED activity without his written consent y Unknown to O, T had CCRAPED work performed on the property y Worker fell a scaffolding without a harness j O is strictly liable along with the general contractor- NYAA 775776- essay 2 Feb 2009 IN NY====O OCCUPIED 1 OR 2 FAMILY DWELLINGS ARE EXEMPT FROM STRICT TORT LIABILITY UNLESS THE O TOOK CONTROL OR DIRECTED THE CCRAPED ACTIVITY.

 NY and MBE area possessors of land also a duty of reasonable care to avoid endangering other on a public way or adjoining property who inadvertently stray on to possessors land adjacent to public way  Here the court looks whether the land s condition along the public way created a foreseeable risk to passers by y Ex- a jogger pushes a kid on to a fence of the land which was being excavated- fence collapses and kid injures j Here the O had a duty of reasonable care to avoid endangering public who might stray on his land which was in a dangerous condition and the condition unreasonably subjected passers bykid to foreseeable unreasonable harm.  Liability is imposed if the condition on the land unreasonably subjected passer bys or neighbors to an unreasonable risk of harm  Most states (NY) have a recreational use statute limiting Os duty of care if the land is open for public recreational use and no fee is charged  Here there is no duty to warn or keep the land in a safe condition for gratuitous recreational users

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Liability is imposed for willful or malicious acts- NYAA 823-825, essay 4feb2004 Does not apply to municipalities that already have an open land for parks and for supervised recreational use- NYAA 825

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 Tort of nuisance(ToN)- SOL 3 years (can only recover for last three years going back)
 Means to unreasonably annoy another  In order to sue for ToN  P must have some interest in the adversely affected land y Ex- fee interest, life estate, AP, a tenant, or a family member j But a licensee, employee or a guest can not sue for nuisance because there interest in the realty is insufficient  whether D s use of land substantially and unreasonably interferes  with P s use and enjoyment of her land  Is where D maintains an offensive condition on her land that substantially and unreasonably interferes with P s use and enjoyment of his land  Loud noise  Smoke  Dust  Bells  Unpleasant smells  Vibrations  Or second hand smoke drifting into neighboring condo  Is a non trespassory unreasonable invasion of P s use or enjoyment of her land  Where D willfully erects a spiked fence, exceeding 10 ft- having no useful purpose other then to block P s view from her property then this is the ToN- since it unreasonably interferes with others use and enjoyment of her land     D s children scream laugh and play in his backyard Neighbor- N has had several operations and is extremely nervous N actually gets because of children playing Even though N s use and enjoyment of land was substantially interfered with D s use is not the tort of nuisance because person of average sensitivity would not be annoyed

 Usually the court will consider the character of the neighborhood and the D s conduct was unreasonably intolerable  An all night store in a residential neighborhood would be a nuisance but not on a busy commercial street  A private nuisance annoys one person or a few NYAA 676, 814  A public nuisance is an offence against the state  When the annoyance is to public in general y Ex- Air or water pollution y A dump creating unreasonable smells with in the community  Remedy is government action

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Generally, individuals lack standing to decrease public nuisance unless the individual has suffered some injury unique and substantially different from the public- 801 and 814 NYAA ToN, TP or waste  Damages are measured either by y 1) the decline in the market value of the effected realty y 2) the cost to repair the damage j WHICH EVER AMOUNT IS LESS  Recovery for temporary injury, upto the time an injunction is issued- is measured (expert opinion will be necessary) by the decline in the rental value of the affected property The fact that a nuisance existed when the P moved into the neighborhood is just one factor in determining whether D s activity on its land are unreasonable. This defense of coming to a nuisance is asserted against a P who moved to a neighborhood where D s activity had been ongoing befor P moved.  This makes it more difficult to prove ToN because y P s purchase price was probably reduced because it was located next to the nuisance. However, a subsequent change in the area can alter a balancing of equities thus an activity that originally was not a nuisance can become a nuisance if the surrounding area substantially changes. Passive un sightedness without other elements of harm is not the ToN A nuisance does not arise from a refusal to alter a natural condition existing on the land. ToN does not describe any particular conduct- instead it s a form of strict liability and focuses on whether D;s use of land substantially and unreasonably interferes with P s use and enjoyment of her land.  Thus even though careful and reasonable and using the utmost care to abate the nuisance the D may nevertheless be liable for ToN y Fertilizer plant- started using other procedure to avoid smells- plant is still liable. Stigma damage to the value of P s land caused by D s used= not actionable as ToN  For storing dynamite or toxic waste or setting up a drug treatment clinic is not tortuous without an actual invasion of light, smell or noise etc. even thought D s conduct on her land lowers the value of P s land     D s chemicals contaminated ground water under P s land It decreased value of P s nearby land, even though contaminated water flowed away from P s land- P can not recover for loss of value to her land Resulting from stigma of D s land s use.

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 3 remedies for ToN  1) injunction y Where court will balance the equities by using the comparative hardship test  2) Self help remedy- risky y It exposes person seeking to abate the nuisance to possible liability for trespass and property damage j No defense of good faith y Government action where public nuisance.  3) Money damages to compensate the P y For loss of value to P s land + y Any personal injury to P or her family including personal inconvenience and discomfort. y Damages are measured either by j 1) the decline in the market value of the effected realty j 2) the cost to repair the damage  WHICH EVER AMOUNT IS LESS y Recovery for temporary injury, upto the time an injunction is issuedis measured (expert opinion will be necessary) by the decline in the rental value of the affected property

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 ON= ordinary negligence, RC= reckless conduct  Reckless conduct [RC/GN= intentional performance but ON= FIT i.e thoughtlessness]  On essay  Define RC/GN and then define ON and come to a conclusion
 RC is greater risk taking then ordinary negligence  RC is an activity which is  intentionally performed  in disregard to known or obvious risk of harm to others  making it HIGHLY LIKELY that the harm would occur and  D consciously disregarded that risk.  With RC danger ceases to be foreseeable risk and becomes highly likely to occur  RC and gross negligence are used interchangeably and involves a state of mind not present in ordinary negligence  Speeding is ON  But speeding on a crowded street or speeding while intoxicated = RC  Case 1 = ON  An oil tanker raptures not necessarily negligence since injury does not mean there was a tort committed  Pre- trial discovery revealed that if inspections of ship had been undertaken it would have shown 30 cracks  This is evidence of negligence because of FIT y Failure to take reasonable precautions y Inadvertences y Or thoughtlessness  Case 2 = RC/GN  Pre-trial discovery reveals 30 cracks discovered but nothing was done  Shows reckless conduct because D was now aware of the risk and consciously disregarded it  If a D s conduct is reckless the following rules apply  1) CPLR Art 16 s restrictions on P s right to assert JnS liability against each multiple defendant for non economic losses does not apply to a reckless codefendant even though jury said 50% or less responsible for P s injuries  A reckless co-D remains fully liable for 100% of P s injury (WARM DIP)  2) a reckless driver does not get the benefit of a guest statute (LLARGE CD)  3) an injured TP can sue a possessor of land for the reckless disregard of TP s safety  4)NY emergency vehicles or hazard vehicles drivers (highway maintenance) generally are liable only for reckless conduct

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 5) Punitive damages may be awarded for egregious intentional conduct or egregious RC but not for mere ON

 Punitive damages  Not awarded to compensate a P  But to punish the D and to deter its repition by others in the future  Are awarded, not simply because D s wrong was intentional or reckless, but because it was  Quasi criminal  Malicious and  Outrageous y Ex- a vicious battery y Intentional infliction of emotional harm y False imprisonment y Spiteful defamation  Are warranted where D intended to actually harm the P OR  Where D was intentionally or recklessly indifferent to rights of others.  Have never been sustained on appeal in NY med mal action  Can be imposed on Manufactures who were aware for years that their product was defective and unreasonably dangerous but failed to address it  Ex- Cigarette manufacturers  However, due process prohibits the jury from punishing the D for injuries caused to others not in the law suit  However, juries can consider injuries inflicted on non-parties to determine whether D s conduct was extraordinarily reprehensible  The due process clause (14th amendment)n requires judicial review for PD awarded by a jury  A grossly excessive award violates due process  Ratio of PD to compensatory damages should not exceed single digits  In many cases should not exceed compensatory damages.  Under court s proportionality theory 4 times the amount of compensatory damages is close to the line of constitutional impropriety absent extreme egregious reprehensible conduct.  I n NY no separate cause of action for punitive damages CPLR 3211 (a) (7)  Demand for PD should be placed in the wherefore clause at the end of complaint  In 43 states (NY) if D dies prior to judgment then PD can not be awarded (death in ultimate penalty)  Under the complicity rule an employer is vicariously liable for PDs, only if a superior officer ordered, participated in or ratified employees outrageous conduct  Additionally- where employer deliberately retained an unfit employee

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 Legal Ethics  Q: can an attorney charge a contingent fee in a PI case?>  A: Yes  This is type of fee most frequently charges in a PI claim  Contingent fees are ethically prohibited in y Matrimonial action y Criminal cases  CF arrangement  shall be in writing signed by the client y Otherwise lawyer can not collect her %age of the fee and is relegated to a claim for Quantum Meruit for the value of lawyer s services y Essay, Feb 2008  CF then be filled with office of court admin with in 30days setting forth who referred the case to the lawyer.  Q: May a lawyer solicit a victim of car cash?  A: face to face or live telephone solicitation is prohibited but email and mail solicitation is permitted  But- out of respect for victim s privacy- lawyer must wait 30 days from the accident to solicit PI victims y By mail or email.  Q: can a lawyer pay small amount of money as a gratuity to his neighbor who is a nurse in ER room for referring a client to a lawyer?  A: no- unethical for a lawyer to give anything of value for referral of business to the lawyer.  Q: After a lawyer accepts a case on a CF basis, and has put in substantial work on the case- can the client fire the lawyer without cause and hire a new lawyer?  A: Yes- because a client is always free to fire the attorney but when fired the former lawyer can seek quantum meruit compensation OR  A contingent %age of the legal fee ultimately earned by the new lawyer; which amount the court shall fix.  Q: can a lawyer charge non refundable retainer when initially accepting the case?  A: No- its unethical because such arrangements interferes with clients right to freely fire the lawyer.  Contributing to judge s election  A NY judge can not be assigned to a case where a lawyer, a law firm or a client has contributed $2500 or more to judge s election campaign in prior 2 years OR  Where they have contributed collectively $3500 or more. y The non contributing party can waive the disqualification.

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 Municipal Tort Liability

 (if time go back and review SOL lecture)  a municipality is not liable for THE NON FEASEANCE OF ITS GENERAL GIVERNMENTAL SERVICES  i.e. where it fails to do its job resulting in P s harm y Ex- failing to provide adequate police or fire protection or y Failing to timely respond to an emergency  No tort liability arises for a municipalities failure to perform a duty owed to general public  The municipal tort doctrine states  Because we owe a duty to everyone we owe it to nobody  An exception arises where special relationship is voluntarily created between  The municipal agency and the Plaintiff  RAID (all elements must be present)  R- P justifiably relied on Municipalities promise or on its affirmative undertaking y Promise must lure the P in false sense of security inducing her to relax her own vigilance or to forego other available avenues of protection. j Municipal school- a bully- mother tells the principal to take her son out of there- municipal schools- hang in there and we will get your son out with in 60 days j Bully beat her son up j Mother sues the Plaintiff j Court- hang in there should not have justifiably relied on that promise- it was not to lure her into false sense of security j Another case in 2011- Mother with a child- order of protection against of her husband- husband calls and says he would kill hershe calls the police to arrest him- police said they would but did not and Husband comes and shoots her- Mother suesj Court- no special relationship  A- through promises or prior actions Municipality voluntarily assumed a duty to P- different from the rest of general public. j School guards where children cross j Parents rely on the crossing j Police was called one day to help cross children j A gets out across a busy highway and gets hurt j Sues the municipality j Court said the police voluntarily assumed a duty to children and could have been reasonably relied upon by the parents and thus creating a special relationship  I- Municipality knew its negligence could foreseeably harm the P j Police went to a wrong address- women died as a result

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j Court- women relied on the promise that cops would be there- and could foresee that their negligence would foreseeably harm the P and hence created a special relationship. D- Some direct contact between the Plaintiff- his parents or his spouse NYAA 799 y A colleague called an ambulance for a worker who was having the stroke y 911 put him in a lower priority by mistake y Worker sues the municipality y Court said RAI present but there was no direct contact- neither worker- nor his spouse or his parents called the ambulance

 Municipality Tort  When a government s inaction arises as property owner or a L- then the municipality is subject to same tort liability as a private landowner in maintaining its property in safe condition and its duty to prevent foreseeable criminal activity. y I.e as a proprietor of the land they owe same duty as a private landlord and can sue under tort of occupier s liability. j Like lack of protection etc.  Need to give municipality a pre accident written notice of the dangerous condition y A municipality has a duty to maintain its streets, sidewalks, parking lots and real property with reasonable care but this duty is conditioned on it receiving pre- accident written notice of the dangerous condition under the pothole law- NYAA 798 y The pot hole law written requirement is not applicable where it was the city that created the dangerous condition immediately after completing the repair work  Whenever dealing with Municipal torts also think of y 1) The 90 days notice of claim and 1 year 90 day SOL for tort claims against municipality y 2) Claims against emergency or hazard vehicles- which require proof of reckless conduct and not mere negligence.

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 Defamation
    NYAA 751-759 Defamation is an attack on someone s reputation Consists of liable and slander Tort committed against P s character and reputation by a D s false statement or fact negligently intentionally or recklessly published to a third person  The statement holds the P to ridicule, contempt, hatred, shame or disgrace This tort can not be committed against a dead person Corporations and partnerships can be defamed Trial testimony about an out of court slander statement is not hearsay- since that statement has independent legal significance- not being offered for the trust of its content but instead to show that the statement was made and the P has a cause of action. A non- domiciles defamatory statement -inside or outside NY- can not be a basis for CPLR 303 tort jurisdiction Such statements do not impose strict tort liability  Thus a statement must have been intentionally, negligently or recklessly communicated (published) to a third party (someone other then the defamed person) There is no liability for a defamatory statement made solely to the P  Unless there was a reason to believe someone else would over hear it y Ex- John is a thief and its written in his diary (no publication to a third party) but if the Defendant left the diary open on a desk in a public place and someone reads then D has negligently published the defamatory material. The third person who hears or reads the defamatory statement does not have to believe its true A third person who repeats the defamation is equally liable even if she states she does not believe it.

  

 

 

 Slander Need to make sure that people understand the language.  Is defamation addressed to the ear whereas liable defamation is addressed to the eye  Generally- Need losses- intent is not required  Slander requires special damages to be pleaded and proven (the P actual out of pocket pecuniary loss)  But Slander per se is no intention and damages required  treated like liable where special damages are presumed and do not have to be pleaded or proven  CLAMS- if this is present then no need to prove damages y C- falsely accusing a P of committing a serious crime- NYAA 759

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L- false statement that P has a current (not past) communicable Loathsome disease j Ie STD y A- A false statement that specifically reflects adversely on P s profession or trade y M- Falsely accusing the P Moral turpitude j Ex- fraud, dishonesty, theft or deceit j A false statement that a P cheated on the exam or plagarised the paper. y S- a false statement of serious sexual misconduct If a false statement is heard by someone other than the person defamed, the plaintiff must plead that it was communicated to the third person intentionally or negligently. y

 Liable  Is a false unprivileged publication of face in writing, email, on the internet or a picture  Provind liable damages is easier then slander because defamatory consequences of liable are more severe  Whenever defamation is put in writing- its preserved for a longer period of time thus no special damages have to be pleaded or proved- they are presumed  NY adheres to one publication rule- permitting a single claim for liable contained in book, newspapers, websites or other mass publications y NYAA 758  Defamation is absolutely privileged even if it was motivated by common law malice (Spite, hatred, meaness or ill will)  Under JET LEG circumstances  J- Defamatory statements made in a y judicial proceeding by judges, y jurors, y lawyers, y parties or y witnesses in j pleadings, j motion j papers, j letters, j depositions or j trial testimony- NYAA 757 y However, to be protected by the privilege the statement must be relevant to the litigation y Exclusion j it was totally unrelated to court proceedings- thus indicating it was solely motivated by a desire to defame.

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j Statements made to someone not involved in the litigation (Press) j In NY- no defamation claim- for publishing (in press) a fair and substantially accurate account of a judicial proceeding  Ex- restating the false allegations in the complaint are protected  E- confidential defamatory communication spoken between spouses who are deemed one entity- thus spouse speaking defamatory statement to another spouse can not be sued for defamation because there is no element of publication to a third person. y Exclusionj But third persons defamatory statements made to one spouse about the other spouse is not privileged  T- Truth y At common law- good reputation was presumed thus the defendant had the burden of proving that defamatory statement was true y Today- this rules does not apply to statements involving matters of public concern where the Plaintiff must prove statement s falsity  L- Statements by legislators- made in legislature chamber y This protection extends to aids assisting the legislatures j Exclusion  However- if the legislator leaves the floor of the house and holds the press conference outside or during a statement or speech in elections- then not privileged  E- Government Executives making defamatory statements in furtherance of their official duties y Like a mayor  G- false statements made to bar association s grievance committee  Qualified privilege- can be lost with common law or constitutional malice  A defamatory statement is qualifiedly privileged under LIP circumstances but this privileged is lost if P can prove that defamatory statement was made  1) with common law malice  2) OR Constitutional malice high degree of awareness of its probable falsity  It s the question of law for court (not for jury) to decide whether a qualified LIP privilege has been lost by D s malice  L- Lower officials of governmental agencies  I- False statements by one person to another concerning a subject in which both parties have common interest in the subject matter  It fosters free exchange of information among people of common interests- NYAA 753  Employee- law school- reference check  This protects good faith communication made in discharging a duty in which the recipient and the corresponding party had an interest  P- defamatory to the police or a DA about an alleged criminal activity of the P- NYAA 757

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 First amendment considerations- requires actual malice- no negligence required  Prior to Sullivan vs NY times- First amendment protection did not extend to defamatory statements  Thus a D was liable in tort unless her statement was made with an absolute or qualified privileges  Public official and Public Figures  For the first time Sullivan case afforded def. statements with 1st amendment protection if a defamed person was a public official and the statement related to her official conduct.  The 1st amendment freedom of speech and press protect those who falsely criticize public officials unless the defamed public official can prove by clear and convincing evidence y Not only the statement was false (P has the burden of proof) y But the D either knew of its falsity or had serious doubt about its truth but proceeded to publish with reckless disregard of its probable falsity.  US SC called this standard actual malice AKA constitutional malice.  Thus if a newspaper editor thought the statement was true but published it negligently without investigating its accuracy then the defamed public official will not prevail in the defamation claim y Because she would have proved negligence but not actual malice j I,e, the public official did not prove the editor knew that the statement was false or had serious doubts about its truth.  This reckless standard is not measures objectively I.e. whether a reasonably prudent publisher would have published it  This is a subjective test- requiring P to prove that the defendant actually had serious doubts about the statements of truth or there existed a high dgree of awareness of its falsity. y Thus if the D truly believed all the false things she said about the public figure j There is no defamation claim  The court has extended this protection beyond public officials to defamation of public figures whose names are a house hold word (celebrities in a field AKA well known in X industry)  Private individual A momentary public figure  For a defamed private person who was voluntarily and affirmatively thrust herself into the limelight of a single public controversy the US SC has held that states should be given wide latitude in designing a tort remedy for those persons who are for a moment public figures provided states do not impose liability without fault (i.e. no strict tort liability for defamation)  The SC felt that a pvt. Individual should be protected more from defamatory statements-

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Because unlike public figures a private individual lacks resources ($) and access to mass media to rebut the defamatory statement- NYAA 758 j Like girlfriend of tiger woods MBE- have adopted mere negligent standard thus if by the exercise of reasonable care the D should have discovered that statement was false then the private individual can recover NY- requires higher proof , by requiring the defamed private person to prove- that D acted in a grossly irresponsible manner Regardless of a standard- a momentarily public figure can only recover for actual damages which needs to be pleaded and proven y no presumed damages y no punitive damages unless P can establishes the Sullivan standard of actual malice If a defamed Private individual in not involved in matter of public concern and the defamatory statement is a false gossip between speaker and listener then the defamed private person can recover compensatory damages without any finding of common law malice y Here a D commits defamation even though he reasonably believed in the truth of the statement j But in order to recover punitive damages the defamed private person must prove common law malice of the speaker. If the private person was defamed by either y 1) liable y 2) Slander per se j then compensatory damages can be presumed and do not have to be pleaded or proven y

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 Strict Tort Liability (STL)  Is imposed for non negligent or unintended injury to a P or to his property  There is no need to establish Intent or Negligence  A P only has to establish that the injury was caused by A SWAN activity  A- abnormally dangerous activity (ADA)  A MBE subject  Strict tort liability is imposed on a D who knowingly engages in an

abnormally dangerous activity  Involving a high degree od risk of serious injury which risk can not be eliminated by exercising reasonable care or utmost care.

y 

Exposing others to this risk justifies imposing strict tort liability.

Dumpors case Under the English Law doctrine of Ryland s vs Fletcher- a non negligent D was held liable for the escape of water from the reservoir that flooded a neighbor s mine

y 

Here liability was based on the earlier foreseeable abnormal risk that D chose to have on his property. The following BODES for court finding an abnormally dangerous activity B- benefit to the community is outweighed by its high risk of harm O- the activity is not a common occurrence D- There is a high degree of risk of harm involved E- Inability to eliminate that risk through the exercise of the reasonable care. S- likelihood of severe harm arising of that activity.

y y y y y

j j j y  j

Ex 1)the transportation, use, manufacturing or storage of dynamite toxic waste or hazardous nuclear waste 2) the testing of rockets 3) Radio active vapors escaping from a nuclear power plant

Strict liability is nevertheless imposed even the harm was proximately cause by forces of nature

Ex lightning or earthquake Following activities are not covered

y y y y

Fuel stored or delivered for homes or cars Propane gas tanks Electric power lines Underground gas lines

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A P assumption of risk (NY would use comparative negligence) of the non negligent operation of an ADA which is a defense to a strict tort liability claim  Ex- P entered a construction site to watch dynamite blasting  P assumed abnormal risk of dynamite  But did not assume the risk of any negligence is using the dynamite  In order to recover for P s injuries- P must prove that the D was negligent in conducting the ultra hazardous activity unless P was aware of D s negligence as he approached.  Strict tort liability is not avoided by employing an independent contractor to perform ADA  Because there is a non-delegable duty S- Strict product s liability (See end of lect 12 and start of 13) W- Worker s job related accidents (Worker Comp) which prevents the worker from suing the employer and fellow employee and the injured can collect worker s comp insurance benefit- regardless of his own fault A- Animal injuries inflicted either- NYAA 721-721  By a) wild animals  OR b) vicious domestic animals

See pleading Lect 5 Tort law imposes strict liability on a person who harbors (taking care of it)  1) a domestic animal that she knew or should have known was vicious

y y y

Customarily devoted to serve people

Status is determined at the time and in the place it was kept when P s injury occurred

Tort law imposes absolute liability for PI caused by a domestic animals if the O knew or should have known of animal s vicious propensity A dog is not necessarily entitled to one bite before absolute liability is imposed

Look to C whether is demonstrated vicious propensity to bite (BGs)  Did it bite, growl or snap at someone (essay 3 Feb 2010)NYAA 723  After biting the dog bites the O knows he is vicious and hence strict liability

y y

Can a court take judicial notice that a pittbull has a vicious disposition? No- there must be a prior proof of Animal s prior vicious propensityNYAA 724

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STL is imposed even though P injuries would not have occurred but for the unexpected

j j j y

1) innocent, reckless, negligent conduct of a third person  ex- teasing a dog or letting a lion out of cage 2) actions of another animals 3) forces of nature  A storm overturned a circus truck and wild animals escaped

In MBE----- a person injured by non vicious domestic animal can assert a claim based in negligence on how the animal was kept and supervised in light of the foreseeable danger to those entering the land

j y

Liability arises where the D failed to take reasonable measures to prevent a foreseeable injury in light of normal characteristics of that animal. NYAA 722

NY does not apply this rule. 2) a Wild animals

are those which as a matter of common knowledge

Unpredictable  Harboring a wild animals is strictly liable for PI or physical damage directly caused by the animal  If the wild animal escapes- liability continues indefinitely until the animal is captures Absolute liability is imposed for injuries resulting from  1) an attack  2) fear of an attack  3) fear by other animals who then proximately cause PI or property damage who react to that fear If the wild animal has not escaped and is under owner s control (Ex- circus animals or wild animals in a Zoo) then liability for reaction of humans or other animals resulting in PI is based on negligence and foreseeability of harm. Strict tort liability is limited to harmful results of the Animals normal dangerous propensities.  Where Bear gets out when his locked is broken by lightning- injures Pstrict tort liability  But where the Bear has lost his vicious propensity but P tumbles over a sleeping bear- then has to prove negligence on the part of the owner. Problem

j j

are ferocious or

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X kept C a chimpanzee, thoroughly tamed and accustomed to playing with children C escaped even thought X took every precaution to keep C caged A year later it approached a group of young children M mother thinking C was wild and dangerous and was going to attack kids- fearfully rushed to children aid- in this she broke her leg X is strictly liable because M;s injury arose from her fear of an attach by that animal.

 ****  Strict Tort liability for animals is not imposed for the benefit of TPs y However, negligence liability may be imposed on the basis of y how the animal is kept OR y for failing to control the animal once the presence of TP was
discovered OR

the land was frequently used by TPs Control of animals  Animal O will be liable in negligence for failing to properly confine and animal usually fenced in

Horse, cows or donkeys  The injured P will invoke Res Ipsa doctrine  Even though the O exercised reasonable care to fence in the animal strict liability is imposed for property damage caused by TP animals inclined to roam but this liability is not imposed for dogs and cats that cause property damage. N- Negligence per se- proximate cause is required  Absent a valid excuse the violation of statutory safety standard of care (speeding, red light or stop sign , Driving while intoxicated, building code violations or smoke detector requirements) is negligence per se= which is a conclusive presumption of negligence which a jury has to accept (SJ or a directed verdict)  However, to successfully assert this doctrine P must establish

1) A D s violations of criminal or civil safety statute proximately caused P s injuries

j j j j

Ex- A statute- all vessels on great lakes must provide life boatsA steam boat set out without any life boats Severe storm and P fell overboard and drowned If the Ship had a life boat- it could not have been launched due to the severity of the storm

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j y y y y y y

Thus the violation of the safety statute was not a proximate cause of P s death- Essay 4- July 2011

2) the P was a member of a class of person, the statute was designed and intended to protect 3) the harm to P was the type of harm the statute was designed and intended to prevent. Problem- D illegally park next to a fire Hydrant- Passenger was injured in D s card- when another car hit D s illegally parked car Here D parking illegally was the cause in fact of P s injury but not the proximate cause (#1 above) Also, P was not a member of class of persons sought to be protected by the fire hydrant law (#2 above)

The statute was not designed and intended to prevent the harm occurred (#3 above) Most licensing statutes (liquor license, taxi licence or a driving licence or vehicle registration statute are not susceptible to negligent per se because they are primarily revenue raising and do not seek to prevent harm and do not necessarily seek to protect class of persons.  Driving without a valid DL is not negligence per se NYAA Jan2012-1 In NY only the violation of LOCAL SAFETY ORDINANCE or AN ADMIN AGENCY SAFETY REQUIREMENT is not negligence per se and is deemed only some evidence of negligence which a jury may consider NYAA 804, 722 Problem:  D was driving a truck carrying a dynamite without a state permit to transport dynamite- truck was in an accident and because of a defectively manufactured latch on the truck a box of dynamite fell out- did not explode but bounced P a pedestrian  Here neither STL for ADA (dynamite) nor negligence per se apply  D would be liable only if P could establish that D s negligence conduct proximately cause P s injury Negligence per se does not apply to the following  1) even with due diligence and care the D could not have complied with the safety statute

 

y y 

Ex- D;s car was stopped at the red light and was hit from the rear pushing D into the intersection colliding with P OR

Where D unexpectedly had a heart attach and his car crosses into oncoming traffic 2) the D acted under a unanticipated and sudden emergency like child unexpedetely comes in OR

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3) Violating the statute was safer then complying with it.

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 Intentional tort
 IT consists of 2 major categories  1) intentional tortious conduct against P s person  Ex- a battery (harmful or offensie contact), assault, false imprisonment, malicious prosecution or intentional infliction of emotional distress.  2) Intentional tortious conduct to property  Ex- conversion, TP, or a tortious interference with a contract.  Intent is different from negligence  Intent is a desire (motivated by malice, humor or mistake) to bring about a physical or mental impact on another s person or property.  Intent is D s desire or her objective in acting  A D s intent can be implied where consequences of D s conduct were substantially certain to occur  The jury can imply that D intended the natural and probable consequences of his probable act.  Ex- by firing a gun in middle of a deserted island= D intends to pull the trigger- if that bullet hits X hiding- D did not intend or desire that harmful contact and under circumstances it was not substantially certain to happen.  However, if this in a crowded bar- Then the jury can conclude that D intended resulting PI because it was substantially certain to happen.  Proof of damages is not required to establish a prima facie intentional tort case  Eco and non economic damages are presumed from an intentional tort  Sleepwalkers are not liable for their acts since their acts are not voluntary  Reflex or convulsive movements are not deemed intentional conduct.  Tort of Assault  An assault is  1) An attempted battery (attempt mean to try but no success)  OR 2) An attempt to cause apprehension of an immediate battery by D s display of violence or threatening gesture y It is D s intent to frighten the P but some overt act or aggressive gesture is required- Essay 4- Feb 2011  An Assault is a mental invasion where as a battery is physical contact with P  An Assault results in P s apprehension of immediate harmful or offensive contact rather then the contact itself.  Merely abusive, angry or insulting language does not constitute the tort of assault  Fear by the P is not required just as long as the P believes she will be subjected to immediate and harmful contact.  A P must be aware of the assault she can not be unconscious or asleep  The P must experience the apprehension for her own safety y And not because of a possible battery to a third person 49

It does not matter that the assault was intended to be a joke just as long P experienced apprehension for her own safety  The D must have been in a position to IMMEDIEALTY CARRY OUT THE THREAT y i.e. to immediately carry out the battery. y A threat on a phone is not an assault  Future threats are not assaults  Conditional threats are not assaults  A conditional threat can be an assault if accompanied by display of excessive and unreasonable display of threat or force y Ex- I will throw this brick unless get out of the car y Get off my property or I will carry you off is not an assault because it was a conditional threat + possessor of realty is allowed to use reasonable force to expel a TP 

 Tort of Battery  A D commits the tort of battery when he intentionally causes harmful or offensive bodily contact with the P  An accidental touching may be negligence but not a battery  And a battery does not arise from ordinary acceptable social contact  intent required for a battery is the contact (harmful or offensive) and it s not the resulting intended or unintended harm to the P  EX- D was sitting next to P in a class Without warning D kissed P on lips (offensive contact)  The chemicals on D s lipsticks caused an allergic reaction and P had to be hospitalized.  D is liable for P s injuries  A battery can be either  1) D intentionally inflicting harmful or offensive contact on P y Offensive is disagreeable, disgusting or nauseating conduct that would offend a reasonable person  2) D s intentionally committing an assault (an intent to cause apprehension) that accidentally and unintentionally causes harmful or offensive contact with P y Where D plays a trick on her resulting in P falling down even though D never touched P- D s intention of committing assault resulted in harmful contact on P  Transferred intent  Used in both in tort and criminal law y Ex- X intended to firethen A X threw a bottle at A and it missed A and flew and hit Z. y Under the doctrine of transferred intent-Z can sue X because battery arose from an assault resulting in Z a harmful or offensive contact by X s intentional conduct.

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Problem j D attempted to punch X because X had insulted D s girl friend j D s punch missed X and hit P instead j D is liable for P s battery even though D negligently hit P j D s liability is based on the doctrine of transferred intent j Also if X was aware of D s attempted battery and X was apprehensive then D would be liable to X for tort of assault.  Essay 4- Feb 2006  Extended liability ( Transferred intent) whenever a D intends to commit a battery- an assault or false imprisonment then D is liable for any of these three torts that result to the intended victim or to 3rd parties y Regardless it was foreseeable, intended or not j Ex- D committed a violent battery on X j But P=X s friend was standing nearby and became apprehensive of a battery j Here under the doctrine of extended liability D is liable to P for the tort of assault  In criminal transferred intent is much narrower- because the intent to commit one type crime can not be transferred to another type of resulting crime. y D threw a brick intending to hit X j Criminal battery y But brick missed X and smashed O s window j Criminal Mischief y D is not guilty of criminal mischief- because D lacked the intent to commit that crime  The D does not have to directly strike the Py It is sufficient that D intentionally set in motion a force that produced the harmful or offensive result.  There must be some contact with the P his clothing or something he is holdingy Contact can be direct or indirect j Ex- slamming a door in someone s face or creaking the crutch of a P.  Except for ordinary social contact no matter how trivial the instant- a battery claim arises.  Second hand smoke blown in someone s face, intentionally= battery y  Frequently used defenses  1) Consent to the touching  People consent to ordinary social contact- thus when a P participates in a sporting event or enters a crowded subway or room - there is an implied consent of reasonable contact  A person does not have to tolerate contact by a stranger which otherwise would be allowed by an intimate friend. 51

     

If a P indicated to a D that she does not want to be subjected to ordinary touching then thereafter such touching may be a battery y Do Q 23 in class In NY and MBEy A P consent to a fist fight will defeat a battery claim j unless the severity of battery exceeds the consent If consent to the contact was obtained by fraud or mistake then it will void the consent but only if mistake goes to a material aspect of touching thereby rendering it harmful or offensive. y In order to sue D for battery ---P s mistake must go to the nature and quality of the intended touching rendering the contact harmful or offensive j And D must be aware of P s mistake  Identical twins Problem- P prostitute consented to have sex with D D paid her with a bounced check- Remedy for this fraud is not the tort of battery but a tort action for deceit or breach of contract claim subject to D s I FUMED and I SIP defense of illegality but P will counter with THUG y Here Ps mistake related to a collateral matter and not to nature or quality of P s contact therefore no battery. Problem- X knew that X had STD But engaged in consensual sex with Y Y has a battery claim against X because Y;s consent was due to a mistake of a material aspect of the contact making the contact with X harmful or offensive and X was aware of Y s mistake. Y also has a claim for the intentional infliction of emotional harm for X;s extreme and outrageous conduct provided Y suffered severe emotional distress. AN outrageous insult provoking D;s immediate MBE battery do not justify the battery but the jury can consider in mitigating punitive damages In NY the jury can also consider the P provocations to mitigate compensatory damages + punitive damages

  2) self defense (justification)  same for tort and criminal law  this defense is based on the reasonable use of force that D reasonably believed necessary to protect himself or another from an imminent threat of an assault, battery or false imprisonment y even if the D was mistaken  It can be used to protect against another s negligent conduct  No justification unless the threat of force is immediate  Defense Can not be invoked based on the threat of a future battery  The issue for the jury is whether a reasonable person under similar circumstances would have believed whether force was necessary for self defense and whether the force use was reasonable (can not be excessive)

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Deadly force can be used only to prevent another s use or threatened use of DEADLY FORCE In majority of states (NY and Restatement) duty to retreat when faced with deadly force if the D could do so with complete safety. y Unless the D was inside his own home- no duty to retreat There is never a duty to retreat before using physical force in self defense If the D is justified in using force but in doing so unintentionally, kills or injures a by stander- D s use of force is nevertheless exempted y And D will not be liable to the bystander unless D used the force NEGLIGENTLY The D s negligent conduct will be determined under the circumstances (unexpected and sudden emergency situation) unless the D started the argument or should have foreseen it. In a majority of states when protecting a 3rd person from a possible battery the D can assert self defense only to the extent the person aided could have justifiably used force y Thus the person coming to rescue of a 3rd person takes the risk that the person being aided would not have been able to assert justification under the circumstances. j i.e. the D steps into the shoes of the person being aided MBE and NY allow a D to use force to protect a third person if such force reasonably appear to be necessary, even though D was mistaken y NY penal law follows the same rule. DEADLY FORCE for the protection of personal property or to expel a TP from a land is not justified NY penal law allows deadly force to prevent what D reasonably believed was a burglary ,robbery , arson, kidnapping or a forcible sexual act Even a reasonable mistake in using the force for the protection of real or personal property is not a justifiable defense y Ex- P enters D s land y With an SIT privilege (b/c of a severe and immediate threat to P off the land)- but D mistakenly believes P is a TP and forcibly oust the Py P has a battery claim and can recover for any personal injury or property damage resulting from D s wrongful ejection. The use of reasonable force is justifiable to immediately recover stolen property but it must be done in hot pursuit. y A demand for the return of the property first must be made and only reasonable force can be used. j If there is any lapse of time then the justification for the force lapses and the tort of battery occurs  D should have resorted to the police or sued the thief civilly for conversion or replevin If there was a bailment between P and D- and the bailee wrongfully refused to return the chattel then the balior can not resort to force to retake the bailed property- see q#25

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A custodian of children ( a teacher, parent or a guardian) is privileged to use reasonable force to prevent a third person from injuring the children or prevent the child from inflicting the property damage or PI on 3rd persons

 False imprisonment (FI)  Is an unprivileged confinement or restraint of another against her will for any period of time.  Can be a locked door preventing Ps departure or it can involve elements of assault or battery  Future threats are not sufficient  Ex- if you try to leave I will the call the police and have you arrested  P must  1) know of the confinement  2) be unaware of the restraint but must suffer actual harm because of it y ex- hunger, thirst or a resulting illness j ex- a sleeping child is locked in and suffers injury  The P must have no known reasonable avenues of escape (subjective test)  FI invites an escape but the P must use reasonable care in attempting the escape  A P is not required to risk harm to himself, property or subject himself to liability to escape  Even if an avenue of escape exists the P does not have to use it if it would offend a reasonable person s sense of dignity  Ex- an exit tunnel with rats or raw sewage  A mistake in the identity of the person confined or a good faith mistake the confinement was justified is not a defense to FI  There is a privilege to confine a deranged or an intoxicated person to prevent an immediate harm to that person or 3rd persons  Merchants are privileged to detain suspect shop lifters for a REASONABLE TIME and in a REASONABLE MANNER provided there is a REASEONABLE GROUND TO BELIVE THAT THE SHOPPER WAS A THIEF  False arrest (FA)  Is FI by someone asserting a legal auth to do so  Damages for loss of reputation, emotional harm or other repercussion from the FA are measured from the time of the FA to the time of the person presentment in the court y Thereafter a confinement is no longer false but is supported by some judicial auth j Any damages thereafter can be pursued in a claim for malicious prosecution  A FA with a warrant  An arrest made pursuant to a judicial arrest warrant valid on its face is priviled from a civil claim against the arresting officer even though the

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warrant was erroneously issued by a judge (no probable cause) or even if the officer arrested the wrong person provided his mistake was objectively reasonable. y Ie- he exercised reasonable care to ascertain the person he was arresting was the person named in the warrant If the officer unreasonably arrested a wrong person then the privilege is lost and FA liability arises y NYAA 770

 Warrantless FA  A claim for warrantless FA can be defeated by showing the arrest was made on probable cause y OR where the person arrested subsequently is found guilty of a crime  If falsely arrested person is subsequently indicted by a grand jury- this is admissible in a civil action that there was some probable cause to make the warrantless arrest y A subsequent conviction is conclusive evidence of probable cause whereas dismissal of criminal charges or D s acquittal of the charge is admissible in the civil case to show an absence of probable cause but it is not conclusive on the issue.  A person who calls the police or initiates a criminal complaint that results in a arrest by the police is not liable for a FA y However, if she supplied information to police she knew was false then malicious prosecution liability arises j NYAA 770  A peace officer (for any offence) or a private citizen (for a felony) can make a warrantless probable cause arrest for a crime that is committed or reasonably appears to have been committed in his presence and he is not relying on someone s hearsay that the crime occurred  To make a warrantless arrest for a prior felony (he did not see it happen) and he is relying on hear say statement then the officer must reasonably believe (even mistakenly) y 1) a felony has been committed AND y 2) he was arresting the felon  NY permits a police officer to make a warrantless arrest for any offence based on probable cause even though it was not committed in the officer s presence  A citizen s arrest for a prior felony that the citizen did not see happen is privileged only if in fact that the felony was committed and there was a reasonable belief (even mistakenly) that he was arresting the felon  However, in NY, which does not like Citizen s arrest y The person arrested must in fact have committed the felony. j Otherwise the tort of FA arises j

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 Malicious prosecution  This involves a D s spiteful and malicious use of litigation without any probable cause in order to cause harm  It must be an action commenced with conscious falsity  And P must allege that there was no probable cause to prosecute and the purpose for doing so was malicious  ELEMENTS FOR MP (conjunctive)  MAT  M- D commenced or continued proceeding out of malice (common law standard)  A- an absence of probable cause to believe that P could be successfully prosecuted y No reasonable chance of prevailing on the claim y if a criminal complaint is sustained after a court conducts a prelim hearing (felon hearing) or the case is presented to grand jury and they indict then a presumption of probable cause arises which can be overcome only by showing j Fraud j Perjury OR j That the evidence was withheld from the court  A party s conviction by plea or verdict conclusively established a probable cause  Defeating claims for MP or FA  T- Termination of MP in favor of the accused (D) y Either j A) on merits (acquittal) OR j B) a dismissal that is not inconsistent with innocence- NYAA 788789 y If the criminal proceeding was dismissed because the DA advised the court that even though there was a probable cause for the arrest the evidence was insufficient to prove beyond a reasonable cause and ask the court to dismiss the claim. j Court= this would defeat a MP claim  In NY = there can be no MP cause of action of a civil claim being commenced even though that claim was groundless and lacked any probable cause  When a MP claim is based on a civil claim then the complaint must set forth a special injury y Ex- seizure of the P s property by use of a PR (LIAR) OR a civil arrest (contempt proceedings)  Abuse of process  This tort has 3 elements (AND)  1) issued process (criminal and civil)  2) an intent to cause harm without justification

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3) using the legal process in a perverted manner to gain an advantage in a court proceeding y bad faith litigation tactics  This tort is similar to MP because both torts require an improper spiteful purpose for which the litigation process is used- abuse of process does not require that the proceeding be favorably terminated  Ex- 1) an excessive FIND CJ pre- trial attachment of D s property to coerce a D in settlement  2) a real estate broker filing a LP on a seller s realty to delay the closing so broker could negotiate his fee with the seller  3) Issuing subpoena to 90 members of a labor union to appear at the same time for a EBT   Intentional infliction of emotional harm AKA the tort of outrage  MBELB- T71-73  (NY does not test on it)  This tort requires proof that the D intended to inflict severe emotional distress on P or knew it was substantially certain to happen and P MUST SUFFER SEVERE AND DIBILTATING EMOTIONAL HARM  Emotional harm includes all highly unpleasant mental reactions  Freight, horror, grief, shame, depression, loss of sleep, loss of sexual interest, increased level of anxiety.  This tort requires the P to establish two elements  1) The D s intentional or reckless CEO y C- conduct y E- extreme y O- outrageous  AND  2) P s emotional suffering must be SAD y S- severe and y D- devastating  CEO requirements prevent trivial complaints and assures P s EI claim is genuine  D s conduct must exceed all bounds of decency  And must be considered intolerable.  The D s conduct must consist of more then ethnic or religious slurs, profanity or indignity  A physical injury is not necessary for this tort  NY s COA has rejected every SAD CEO claim because of CEO ie, D;s conduct was not extreme and outrageous  Many states recognize this tort when a non custodial parent kidnaps the child from the custodial parent

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 Negligent infliction of serious emotional harm  MBELB T-17-20  To prevent fraudulent claims based on negligently inflicted emotional suffering the P must prove  1) She was with in zone of impact or danger caused by D s negligent conduct y I,e. a duty of care was owed by D to P  2) The Ds negligent conduct would have severely distressed a reasonable person  3) D s negligent conduct caused both y Psychological AND y Physical injury- CAN BECOME SICK j A mere impact (car hitting another car) is not sufficient j If only mental distress is negligently cause not compensable because some physical manifestation of the emotional distress is required because emotional harm is highly subjective, easy to pretend and difficult to verify j BUT On a case by case basis NY and MBE allow recovery for a emotional injury negligently caused where there is no physical injury but only where  Facts sufficiently guarantee the genuine of P s emotional injury claim.  NYAA 801-803  Ex- negligently reporting that a close family member has died  Negligently mishandling a corpse  Because these claims are deemed inherently genuine y To recover for AIDS phobia (fear of developing AIDS) by pricking a finger on a negligently discarded needle in a hospital- P must prove j 1) The P developed HIV virus j 2) OR the P was in fact exposed to HIV and thus there is a likelihood of developing HIV y Problem j P went to doc X- who advised P that she had a bad disease j P got home and Doc X called and said  1) ha ha- it s a joke  Doc X conduct was a CEO and would be an intentional infliction of emotional distress provided P suffered SAD emotional harm y No accompanying PI required for this tort  2) I am sorry I made a mistake  Negligent infliction of the emotional harm- which usually requires a PI to support this claim y NY ct held even without a PI these facts assured emotional harm was suffered by P allowing P to recover

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from Doc X for his negligent infliction of emotional distress. NYAA 802 j Assume P told H her husband about Doc X- H beat P up because H thought P was being unfaithful  Q: can P sue doc X for H s beating?  A: No- because a negligent tortfeasor is not liable for a criminal act of a third person made possible by his negligence unless the third party conduct was foreseeable when Doc X negligently told P of her condition  By Standers suffering of emotional distress- need to be a family member or need to suffer PI and must be with in a zone of danger.  Mental distress suffered by a bystander who was present and witnessed an intentional tort committed on a victim can recover if D was aware of By standers presence so that the mental impact on the bystander was foreseeable  When a D acts intentionally he intends not only desired results but also those results he knows are substantially certain to happen  By standers, not immediate family members can not recover for their   When H beat up W in front of C- then W has a claim for battery and C can sue H for IIED provided C suffers extreme emotional distress watching W beaten H s conduct would also constitute the crime of criminal battery to W as well as the crime of endangering the welfare of the child- NYAA 803

emotional distress unless accompanied by a PI.  A NY bystander can not recover for SAD emotional harm caused from witnessing of victim s injury negligently inflicted unless D;s negligence also threatened to harm the bystander  (bystander was with in the zone of danger and a duty was owed to the bystander by the tortfeasor)  AND y A) P suffers some physical harm OR y B) no physical harm is required if the bystander is an immediate member of the injured person s family (not an aunt or a fiance) j Essay 3- Feb 2010- NYEB 683 j Pg 395-396 essay 4  Most states (not NY) have replaced the Zone of danger requirement by allowing a close family member to recover purely for emotional harm (no PI) provided the family member  1) Present but no in the zone of danger AND  2) Knew of the injury

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Intentional Torts re Property

 Tort of conversion Conversion is an intentional tort committed against another s personal property- realty can not be converted but computer records and data can be converted  Is an intentional act that SUBSTANTIALLY INTERFERS with another s use, possession or enjoyment of chattel  Ex- where D steals or intentionally destroys another s goods  Conversion can also be an unauthorized alteration of a personal property changing it in a fundamental way  It is an intentional unauthorized assumption--- an exercise of ownership over goods belonging to another to the exclusion of O s rights.  A mistake as to the O is not a defense.  Remedies  When a conversion occurs a P cannot be compelled to take the stolen goods and can sue the D for the market value of goods on the date of conversion. y Where goods value fluctuates (commodities or shares) then the P can recover the highest value between the date of conversion and date of trial  Alternatively, can commence a Replevin action to recover back the chattel y Prior to trial she can seek an order of seizure to have the sheriff seize the chattel and deliver to P for safekeeping. y Under CPLR Art 710 she must post the bond for twice the value of the good  Where a creditor with a perfected security interest breached the peace in re possessing the secured collateral then the creditor is liable for the tort of conversion and possible punitive damages  Trespass to chattely Where intentional interference with P s possessory interest is minor and brief y Not a conversion but a TP to chattel j Where D s dominion and control over the chattel is brief and with no intent to steal  Although can sue for the FMRV for the use of the chattel  But- Damages will be imposed if the property is damaged while in D s possession- even though D may not have been at fault for that damage y Then arises a forced sale of the chattel.  Exception to TP of chattel y A person is privileged to commit an act in order to protect herself, a third person or property j But is subject to liability if any harm done to chattel  If possession of the chattel originally was lawful (chattel was borrowed under bailment) then the tort of conversion arises when a person 60

possession that chattel refuses to return it after a demand or sooner if D disposes (sell or gift) that property (prior to a demand)  Problemy Is B a BFP who buys chattel from a thief liable for conversion to the true owner? y B gets no title to the chattel and in j MBE commits the tort of conversion the moment B takes possession of the stolen goods j In NY- The tort of conversion arises only when BFP fails to return goods on demand OR sooner disposes the chattel- at which point 3 year SOL starts to run. y Q: if b a bailee losses a bailed product or B drops and destroys is B liable for the tort of conversion? y A: No- because B did not intentionally assert the wrongful dominion over the chattel j But instead failed to exercise reasonable care (negligence and not conversion) j However, if B mistakenly sales the product to B in ordinary course of business  Then B has intentionally exercised dominion and control (he desired to transfer title) and is inconsistent with O s property rights = tort of conversion.  Buyer will prevail in such a case- entrusting rule of UCC art 2  Tort of TP  TP is a physical entry onto another s land without justification, privilege or the express or implied permission of the possessor  A TPs entry can be either  A) intentional  B) reckless OR  C) negligent  The MBE possessor owes no duty of reasonable care to TP  NY possessor does owe a duty to a TP  Since NY treats everyone entering the land as an invitee even the TP  MBE- a possessor has no duty  1) to inspect, warn or to keep the land safe  2) OR to carry on activities so as not to endanger a possible TP  MBE duty owed to a known TP is to warn of latent dangerous conditions that TP was unlikely to appreciate the danger.  MBE while conducting activities on a land- O can ignore the possibility of a TP  Ex- O possessed wooded lands- and he knew hunters (TPs) occasionally TP during season  O placed traps to kill vermin  And TP stepped into one of the traps

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O is not liable to TP If O was out hunting on his land and fired at a bird, where TP was sleeping there is no liability to the injured TP The remedy for TPs repeated TP is to sue for damages and to seek an injunction to prevent for the continuation of TP. If D s entry originally with P s implied or express consent but that consent is revoked then if D does not promptly leave the land- tort of TP arises. Extended liability is imposed on TPs for unintended non negligent property damage or a PI proximately caused by TP on the realty- even the though the same liability would not be imposed on a non TP. An honest good faith mistake as to whose land he thought he was entering not a defense if D intended to enter that land. At common law- even if no actual harm occurred because of the TP  Ex- a hiker or surveyor enters P s land or D;s car negligently goes into P s land then nominal damages could be awarded regardless whether the TP was intentional or negligent **The MBE view- is that nominal damages can only be awarded or intentional or mistaken TP  thus P has to allege damages to plead a prima facie RAN TP y R- recklessly entering the land y A- As a result of an abnormally dangerous activity y N- Negligently entering P s land or causing an object or third person to enter that land  Damages must be pleaded and proven to recover against a RAN TP. A non negligent unintentional entry onto P s land is not TP. y Ex- crossing on ice and flows in the side shop  Even though the entry caused damage to the property y Unless the D was engaging in ADA j ASWAN Reasonable force can be used to expel a TP  The force used is excused and there is no battery claim y But the force must be reasonable j This excuse does not allow any ejectment of a TP if it would place the TP in unreasonable danger Exception to TP- There is no TP to enter another s property for a private necessary i.e. to SIT on the land to protect a person or her property from a Serious and Immediate threat outside the property.  But tort law imposes liability for any resulting actual damage on the land. There is a privilege to enter another s land to recapture chattel that has entered another s land  as a result of force s of nature or  to recover stolen goods brought on to that land without O s consent or knowledge. y But any damage to the land as a result becomes the liability of the person entering the land.  

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If stolen goods are brought on to another s land to which landowner s consent or knowledge y Those goods can be recaptured and there is no liability for damage to realty. Force cannot be used against the land owner unless self defense- use sheriff or sue for replevin y Can only use force in one situation to recover stolen goods in hot pursuit situations If chattel entered another s land through the fault of chattel owner- then there is no privilege to enter the land y Remedy is to resort to start a replevin action.

 Tortuous interference with the contract (TIWC) NYAA 843  A person who has knowledge of an existing executor contract and  Who intentionally interfered with the contract  By inducing a contracting party to breach it is liable to other contracting party for the resulting consequential damages.  There is no TIWC for inducing a breach of an illegal contract.  No TIWC liability against someone who had an economic or fid. Relationship with the breaching party unless the breach was motivated by fraud or illegality  Ex- a lawyer advising a client to breach an executor contract  OR SH or Dir advising the corporation to breach the contract  Only a KID can be sued for TIWC (conjunctive)  K- D had knowledge of P s executory contract  I- D intentionally induced a contracting party to breach the contract y In NY the contract must be an enforceable contract to be able to claim for TIWC y In MBE- a TIWC claim can also arise from a voidable contract (no signed writing to satisfy SOF), even a contract by will terminable by either party  D- damages resulted from the breach  TIWC liability is imposed only against the party which induced the breach against the party who claims TIWC  The contracting party who breached the executory contract is liable only in contract and not in tort  And P can not recover twice for same damages  Invasion of Privacy- NYAA772-774  IP involves a person s right to be left alone- from highly offensive invasions of privacy  Requires conduct that RPP would consider outrageous y Damages are assumed

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 An IP can occur in following ways CLIP  C- Commercial misappropriation of P s name, likeliness or voice without P s written permission for advertising or commercial purposes y by D taking commercial advantage of P s reputation and prestige without payment or compensation. j Prevents D s unjust enrichment by D s theft of P s goodwill y AKA celebrities right to publicity y It is the only IP claim that NY recognizes y This tort ends on death j But 16 states allow the right to be asserted after celebrities death y There are 2 first amendment exception to this tort j 1) A news publications rights to illustrate a news worthy event  Even if P s photo in a fictionalized way  Take a picture of a person randomly and put it in an article  Problem  P performed as a human cannonball at a fair  Local TV station broadcasted the performance  This non- consensual act violated P s commercial right of publicity j 2) a news publication s right to re-print as an advertisement  Pictures that previously appeared in that publication to illustrate its newsworthy content  Even though it was done purely for motive  L- Publicity placing a P in a highly offensive false light before the public y Many states reject this tort claim because it duplicates tort of defamation y D must have had the knowledge of the false light or acted in reckless disregard as to its falsity and its false light  I- Intentionally highly offensive intrusion into P s seclusion or solitude of privacy y Ex- repeated phone calls by a bill collector y Illegally tapping P s telephone y Inserting a peep hole into a motel room or a restaurant y NY recognize this peephole situation as a civil claim of SAD CEO under IIED y Ny s penal law now prohibits video voyeurism into locations where there is a reasonable expectation of privacy j Ex- a bedroom j A changing room j A bathroom j Or a room in a hotel  P- Deeply offensive and deeply shocking- not applicable in NY y Public disclosure of private facts involving the P y The disclosure must be made to a large number of people and not just to a few 64

j Concerning P s private life and which facts are not in public record and are of no concern to the public j Problem  P s son dies in the war  At his funeral D picketed outside on the public sidewalk ridiculing soldiers  P s father sued D for SAD CEO and for invasion of privacy for D s intrusion into F s right to solitude and seclusion at the funeral.  US SC overturned the 3 mil verdict because D s speech was not purely private speech but involved a matter of public interest  The first amendment protects harmful and hurtful speech on public issues and speech can not be prohibited or punished by tort claims  Prima Facie Tort  This tort has 5 elements  1) the D s sole intent to maliciously inflict harm on P  2) Actual economic loss to P  3)No excuse or justification for D s conduct  4) D s intentional acts were o/wise lawful  5) P has no other available tort remedy  Reviewing torts  Review Negligence and all of other torts  Skim through NYAA not more then 15 cases  Tort distinction NYLB- 805-819  Tort quizzes -42-46 NYEB  Tort Exam- 573, 183 MBELB  NYEB- essay 15 and 16 on torts

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