BarBri 12/21/10

TORTS I & PERSONAL PROPERTY

 7 Intentional Torts (*Examiners like this)

o Double tested: Multistate and NY essays
o Sometimes paired w/ NY practice
o 3 general propositions that apply to all intentional torts:
 The extreme sensitivity of a plaintiff is ignored in deciding whether the plaintiff has
a valid cause of action.
 Consider a reasonable normal person in regards to an element
 There are NO incapacity defenses to intentional torts
 Any defendant that meets us all elements should be held liable.
 Ex: an 8yr old (minor) cant enter into K’s, vote, marry, etc.
o But if they punch you in the face they are liable for battery.
 The bar will ask a question about a person who commits an intentional tort
without legal capacity:
o Minior
o Drugs
o Drunk
o Mentally ill
o Developmental disabilities.
 But all those people are liable (for batter for instance)
 Intent is an element of every intentional tort.
 A defendant has intent if they desire/wish to produce the legally forbidden
consequence of that act.
 If a different, legally forbidden consequence happens even though the def.
has desire to produce another legally forbidden consequence, then they are
liable.
 Hypo: Security guard confines student. Did he desire to lock the door knowing the
boy was inside or confine the boy (false imprisonment)?
o Battery (2 elements)
 Defendant must commit a harmful or offensive (unpermitted) contact
 Harmful contact is not tested that much offensive is because they are harder
 Offensive = unpermitted
o By a person of ordinary sensitivity
o Non-offensive as a matter of law: would a normally sensitive person
feel this to be offensive? NO.
o Hypo: big brute caresses girl’s hair/minor groping.
 Offensive battery (Sexual harassment).
o Hypo: a guy touches the whole classroom’s hair.
 Offensive battery
 Not necessarily sexual harassment.
 Contact must be with plaintiff’s person
 Anything the plaintiff is connected to (holding, touching).

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 o Hypo: purse snatching (crime, robbery)
 Also a property tort
 Also a battery (intentional tort).
o Hypo: horseback riding female. Man hits horse. He is liable to
woman for battery.
 Note on battery:
 A battery need not occur immediately/instantaneously.
 Defendant’s body need not be involved.
 Hypo: Poisoning is a battery
o Poison set in motion. Gets poison touching her lips 4 hours later.

o Assault (2 elements)
 Defendant must place plaintiff in apprehensions (in a reasonable apprehension)
 Apprehension = knowledge.
 Put yourself in Plaintiff’s shoes.
 Hypo: trick question (David and Goliath)
o They will provide physical characteristics and courage levels in a
threat encounter.
o Goliath: courageous and strong, and fearless, and could play football,
Navy Seals.
o David: Skinny, wimpy, non-courageous
o David will say I’m going to hit you to Goliath.
o But Goliath can recover because he does have knowledge
 Hypo: Unloaded gun
o Menacing behavior but lack of capacity or ability to complete
behavior
o Dave (def) says hes going to shoot Pete (plaintiff) with gun
 If Pete knows gun is unloaded: no assault
 If Pete doesn’t know whether gun is loaded then it is
reasonable to think its loaded: assault.
 If Pete knows its loaded: assault
 Apprehension must be of an immediate battery.
 Words along lack immediacy
 Naked verbal threat is not enough for a COA.
 There must be conduct in order for mental tranquility to be disturbed, there
must be a menacing gesture (physical conduct).
 Hypos: exposing a gun, shaking your fist in anger.
 Accompanying words can negate immediacy even if there is a gesture.
 Hypos:
o Conditional words
 Menacing gesture: if you weren’t my best friend I’d beat the
crap out of you
 No knowledge you will touched, because you are the best
friend and you know your not going to get beat. Thus, no
assault.

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 o Words that promise action in the future
 2 hours later I’m going to find and beat you
 No assault, because battery scheduled for 2 hours later
 The def could change his mind, get too busy, forget about
battery.

o False Imprisonment (2 elements)

 Defendant must commit an act of restraint.
 Threats ARE sufficient.
o BUT, they must act on the mind of a person of
normal/ordinary/reasonable sensitivity.
o Hypo: If you leave this room in the next 30mins, I will kill your wife.
 This threat qualifies.
o Hypo: If you leave this room I will blow up Jupiter and destroy earth.
 This threat does not qualify, its unreasonable.
o Hypo: If you leave I will call the police.
 Shoplifters.
 Security guards
 An omission can be an act of restraint.
o Hypo: Patricia comes to airport and gets picked up in a wheelchair.
 When she arrives, cabin crew does not provide wheelchair,
but they just leave her there.
 But they don’t lock the door or close doors.
 Failure to act does count, there is a pre-existing duty. So there
is an act of restraint.
 Only counts if pl. knows about the act of restraint or is harmed by it
o If pl. is oblivious that the act of restrain took place, then no COA.
o Hypo: act of restraint must be known. If roommate locks your door
when your asleep and you don’t know and wake up and leave room
unhindered, no COA, even if the roommate told you after the fact he
locked/restrained you.
o Hypo: If lock door, but person comes to deliver his medicine but
can’t come in, then the person suffered harm even though they did not
know about it.
 As a consequence, plaintiff must be confined in a bounded area.
 Trivial: bounded area if plaintiff’s movement is limited in all directions.
o Bounded by terms of a threat.
 Don’t leave a room (bounded in 360 degrees)
o Hypo: Defendant blocks line of travel in one direction, one huge brick
wall. Plaintiff can just go around the wall and black, so NO COA.
 Important: Area is not bounded if there is a reasonable means of escape that
the plaintiff can reasonably discover.
o Simple terms: Your not locked in if you can get out.
o Hypo: If the way out will be dangerous, disgusting, humiliating, or
hidden. Then there is a COA.

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 o Hypo: You can escape through a rat infested sewer pipe.
 False Imprisonment COA.
o Hypo: Locked in hidden library where means of escape is pulling a
certain book from thousands, which pivots the door 90 degrees and
frees the trapped plaintiff to the street.
o Hypo: Guy is in a locker room. Guy steals his friend’s clothing, friend
cannot enter into public.
 False Imprisonment COA.

o Intentional Infliction of Emotional Distress

 *ONLY intentional tort where defendant can be held liable when he was acting
recklessly instead of deliberately
 Can act in complete and utter disregard
 Actual intent is NOT strictly required.
 2 Elements:
 Defendant must engage in outrageous conduct
o Outrageous = exceeds all bounds of decency tolerated in a civilized
society.
o By themselves, mere insults are NOT outrageous.
 Even if done with desire to upset a person.
o But insults can add to outrageous conduct.
o Hallmarks of outrageous conduct (3 factors that lend support to
outrageousness):
 Continuous or repetitive.
 Hypo: Visa credit card calls and wakes you up and
disturbs you from a dream threatening you with
physical and financial harm
o Could go either way
o If hypo occurs every night for 2 months then
more likely plaintiff succeeds on COA.
 Common carriers and innkeepers (service providers)
 Duty of courtesy to guests/clients
 Hypo: if desk clerk says hotel guest is ugly. Could be
COA
o If just sloppily run hotel, not outrageous
conduct just poorly run not a COA.
 Plaintiff is a member of a fragile class of person.
 Young children.
o Hypo: If prof. curses you off as an adult law
student, no COA. But if he does that to a 5yr
old, then there is a COA.
 Elderly
o Hypo: 82 yr old lady with a walker. Don’t
touch her or her person. Prof. curses her out.

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 She will likely have same reaction as a 5yr old
who is delicate.
 Pregnant women
o Does the defendant have to know the woman is
pregnant?
 Yes, the person has to know, that makes
it outrageous.
 2 wks pregnant, person can’t tell, then
not outrageous.
 Hate Speech?
o Racist? Homophobic?
o Yes, sometimes, but also usually accompanies
an abuse of power.
o Hypo: Trying to report a crime, then cop says
get out of here fag, then that would be
outrageous.
 Plaintiff must suffer severe distress
o No physical manifestation
o No work absences necessary
o Don’t need to be popping pills.
o The bar will negate the element in the problem
 Hypo: Defendant’s outrageous conduct is clear and evident.
But Patricia was mildly annoyed (slightly irritated) by this
prank.
 Mild annoyance is opposite of severe distress.
 So no COA for Patricia.

o Trespass to Land (2 elements)

 Defendant must create an act of physical invasion
 Defendant can enter plaintiff’s property (on foot or vehicle)
 Defendant’s intent is that he wanted to get to this particular location by this
particular act
o Not necessary that the defendant know that he is crossing a
border/line or offending person’s property.
 Hypo: Def. doesn’t know he’s crossing river and entering person’s property.
o Duty of us to know where boundaries and property lines are
 Hypo: person has a heart attack and falls on to person’s property. NOT a
trespass, they did not voluntarily/intend to enter the person’s property.
o Horse gets startled, throws you off on to plaintiff’s land. No COA.
 Hypo: You throw something on to the person’s land. COA for trespass.
 Inoccuous or benign entering of land can be a trespass.
o Hypo: watering neighbor’s shrubs which are dry and almost dead.
This is a trespass to land.
 Physical object is water
 Intangible forces are NOT trespasses.

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 o Hypo: Floodlights, speakers, fumes from tiki torches pointed at
neighbor’s property. Trespass? NO – noise, light, and odor are NOT
trespass because they are intangible forces.
 These are a Nuisance, a different offense.
o Smoke: maybe, light smoke or dark smoke?
 Plaintiff must be a possessor of land
 Plaintiff is the person who is in lawful possession of the land when the
invasion takes place.
o Hypo: Rented property? Tenant in possession, not owner. So renter
 Air above and soil below land.
o Airspace.
o Hypo: jetliners above property are not a trespass
 5 miles flying overhead is not a reasonable distance.
o Hypo: kids throwing football above your property 5 feet above
property. Trespass COA.
 Penetrated airspace.

o Trespass to Chattels (Personal Property) & Conversion

 Intentional interference with personal property
 Personal property: anything you own other than land and buildings
 Ex: money, vehicles, bike, toys, laptop, phone, clothes
 Def deliberately damages it or steals it
 Temporarily or forever.
 Difference between Chattels and Conversion?
 Trivial/Minor/Modest interference = chattels
o Hypo: keying someone’s car
 Judgment: cost to repair scratch
 Significant interference = conversion
o Entitled to full value/price of item, not rental or repair value of the
item.
o Conversion operates as a forced sale.
o Hypo: Take sledge hammer and dent in every panel. Even if
repairable of thousands of dollars, you can demand full value of car.
 Judgment: full value of car, not repair.
 In NY: bona fide purchaser of stolen goods is NOT a
converter
 Hypo: Dave buys stolen car, sells it to Stan, Dave is
not a converter

***************ABOVE IS SAME IN NY AS MULTISTATE*******************

Below is NOT multistate, only NY state testable (slightly tested)

o Finders of Property
 Distinguish between Abandoned vs. Lost/Mislaid property
 Abandoned: Personal property the owner no longer wishes to own

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 o Give up possession of the property AND
o Intention to relinquish title and control
 Hypo: Throwing away garbage, property goes into possession
of the town dump or waste management.
o New Owner: Person who intentionally took the abandoned property.
 Lost/Mislaid Property
o Accidentally relinquish possession but no intent to give up control.
o Hypo: if you leave umbrella and come back to restaurant for it you
can claim it.
 NY Statute:
o If you find property valued at less than $20 (lost or mislaid), the
finder must make a reasonable effort to locate the owner.
 If after 1 year and the owner has not come forward, you can
keep the property.
o If you find property valued at $20 or more, then you have to turn it
over to police.
 And then the cops have to hold on to it for 3 mos - 3 years
depending on its value. Under statute.
 Then if owner has not claimed it then you can go back to
police and claim it.
o Gifts
 Whether or not the party making the gift can recover back the property or whether
it’s a done deal and cannot give it back.
 Is the gift final?
 Donor: Person Making the gift (Mr. Generous)
 Donee: Person receiving the gifts 9Mr. Lucky)
 Inter vivos gift vs. gift causa mortis
 Inter vivos: gift given during life of donor
o Donor must have Donative intent: to part with title of the gift, not just
possession.
 Borrowing car – no donative intent
 Giving car upon graduation – donative intent
o Valid acceptance by donee.
 Silence is adequate
 If son makes a Demurrer or refusal/rejection of gift,
then no ownership if son tries to claim it after mom
dies.
o Adeqaute physical delivery
 Car keys, box, papers,
o Checks: gift of cash effectuated by check
 1st party check:
 If check that says pay to the order of Mr. Lucky,
signed by Mr. Generous
 Delivery is NOT complete until check is cashed.

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 o If stop payment before check is cashed, then
you cannot sue the person who stopped check.
 3rd party check
 Someone writes check payable to the donor but donor
then endorses it over to donee.
 Delivery is effectuated once the check is handed over
to donee.
 Stock certificate
 Gift is delivered once certifcate when it is handed
over, NOT when it is recorded on corporate books.
 Agents
 Mr. Generous gives agent (butler jeeves) to give niece
the ring, can call agent back.
 Once it is in hands of niece then delivery is
effectuated.
 In causa mortis (in anticipation of death)
o Must be an Imminent risk of death to donor which must be
objectively likely to occur.
o Healthy person cannot make this gift.
o Gift is NOT valid unless person dies.
 If they recover, can get gift back
o If donee dies first, not a valid gift.
 Goes into donor’s estate who just died after making the gift
but after you died.
o Liens
 Payment of a debt
 3 Elements:
 Debt relating to a performance of services.
 Person who is owed the money (creditor) has possession of the item in
question
 BUT the debtor retains title to the property in possession of the creditor.
 2 types: General vs. special lien
 General Lien: right of creditor to retain a whole bunch of property as security
for a general balance due.
o Self storage place has lien on your stuff if you can’t pay storage bill.
o But if they return one or some property does not release of discharge
a general lien from all other stuff.
 Special lien: right to retain specific property in connection with services that
were performed on that specific item
o Mechanic’s lien: mechanic’s can hold car until money is paid for
putting in new transmission.
o But if he gives back car, no lien exists but can still collect on debt
owed from transmission
o Bailments (most important of these 4)

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  Arises when someone voluntarily turn over possession of property to another person
for some specific purpose
 Bailor: giver or property
 Bailiee: reciveriver of property
 Hypo: Coat checks, park car in a garage, lending neighbor your lawnmower.
 What about property inside other property?
 Bailee has responsibility to protect the coat and car
o What about things inside coat and car?
o Normal things are part of bailment but extraordinary things do not.
 Hypo: gloves and spare tire does fall under bailments
 Hypo: gold boullion and Picasso painting does not.
o Safe deposit box exception: bank is bailee of entire and all things
inside safe deposit box.
o Parking lot where you keep your keys: park and lock, not a bailment,
but a shirt term license of real estate space
o If you leave your keys with the parking garage then it’s a bailment.
o Coat checks limit recoverable amounts, based on paying for coat
check, declaring value, voluntary coat check.
 Bailment: bailee has ordinary duty of care
 Ordinary negligence claim if property is damaged or destroyed while in their
possession
 Bailiees can limit liability but can NOT entirely exculpate themselves from
liability

o Affirmative Defenses to Intentional Torts

 Consent: a defense to ALL 7 intentional torts
 Person must have valid legal capacity to give consent?
o Contrast: Do NOT need legal capacity to tort someone
 No drunks, drugged, mental disability
 But minors can consent to age appropriate acts of their age.
o 2 11yr olds can consent to wrestling but not to sex
o 2 16yr olds can consent to wrestling and sex.
 2 different kinds of content (Express vs. Implied):
o Express Consent: an utterance/statement by the plaintiff to the
defendant to do something
 Plaintiff: “Punch me”
 Exception: Consent is invalid/negated if obtained through
fraud or duress.
 Hypo: Guy brings home girl and asks to fuck her. She
says yes. They fuck. They wake up the next morning
and part ways. 2 weeks later the girl finds out she has
an STD. She files suit for battery. Guy defends and
says she consented to act of sex. Plaintiff says the
defendant concealed material information and was
fraud. She consented to sex not to getting a disease.

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 o Implied Consent:
 Consent Implied by Customary Practice:
 Consent where you engage in activity or go to a place
where certain invasions are routine.
o Hypo: disrobing in doctor’s office. Doctor
doesn’t ask can he touch you there. It’s custom.
o Hypo: NFL player tackled in a game is
consented.
 Implied consent based on defendant’s reasonable
interpretation of plaintiff’s objective conduct.
 Test: reasonableness test of what a reasonable/ordinary
person would have interpreted from the circumstances
in the eye’s of the defendant.
 NOT part of analysis: plaintiff’s subjective, personal
reservations of conduct is not part of consent analysis.
 Scope of Consent:
o Consent is not overarching and complete
o If defendant exceeds scope of consent, the defendant may be liable.
o Hypo: Paul invites Dave over for beer in family room, Paul comes
back dave is in attic destroying insulation. NO consent, Dave acting
beyond scope of consent of Paul’s.
o Hypo: Under medical care, doctor can fix something related to
original or immediately adjacent area of body based on professional
judgment
 Doctor can do appendectomy and remove infected spleen.
 Doctor can’t do apendectomy and nose job.

 3 Protective privileges
 Self-Defense (2 elements), Defense of 3rd persons, Defense of property
o Defendant must act when the threat he is responding to is in progress
or imminent
 property timing
 threat cannot be over and done with and then respond.
 NO revenge.
 Instantaneous.
 Hypo: grabbing someone hand before the slap they were about
to hit you.
 Hypo: but getting slapped now and waiting a day to hit the
person back is not self defense.
o Genuine must have a reasonable belief that the threat is genuine.
 You don’t lose the self-defense if you make a reasonable
mistake.
 Hypo: you see some one robbing a store and you stop some
the person you thought was robbing. Cashier forgot to take off

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 magnetic strip. Holds man for 15mins. Store wins case
because it was a reasonable mistake.
 Shopkeeper’s Privilege: ability to detain based on a reasonable
suspicion a shoplifter has stolen
 Limit amount of force to the amount of force necessary to defend against the
threat.
o Excessive response will subject one to liability
o Hypo: cant kill some one for stealing property from store
 Reasonable belief that the threat is deadly force
o May respond with deadly force
o NY distinction (minority): RETREAT before resorting to deadly
force. Must retreat if it is feasible to do so.
 NY EXCEPTION: Castle defense: no duty to retreat in your
own home.
 No duty to retreat if you’re a cop.
 Hypo: person in bar takes out gun about to kill you.
 Multistate: take out gun in your pocket and kill you
 NY: must try to retreat if feasible
o Object of great value: NO deadly force or deadly mechanical devices
to protect property (spring gun loaded trap door)

 Necessity
 Only used as a defense in trespass to land, chattels, or conversion
 2 types of necessity: Public v. Private
o Public necessity: When a defendant invades plaintiff’s property in an
emergency to protect the community as a whole or a significant group
of people.
 Hypo: Natural catastrophe. Tornado/hurricane. Manmade
catastrophe. Sniper killing people. Savior of the city needs a
car, but must break into car and damages the car and a
building. Absolute defense. No liability for savior of the city.
Logic is we don’t want saviors to hesitate in good deeds if
thinking about tort liability.
 Hypo: Savior kills rabid dog attacking children. The dog
owner sues you for killing the dog which is personal property
(this would be conversion, max’d out harm scale). This is an
absolute defense: public necessity.
o Private necessity: When a defendant invades property in an
emergency to protect an interest of his own.
 This is not a savior of the city
 His own physical safety or possessions are on the line.
 He grabs something to defend against his own bodily harm or
property interests.
 Treated less favorably by the courts.
 A private necessity defendant is liable for:

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  actual or compensatory damages to plaintiff.
 NO liability for nominal or punitive damages.
 So long as the emergency continues, Defendant is
allowed to remain on plaintiff’s land in a position of
safety.
o Def cannot be expelled or evicted in the middle
of emergency or crisis.
 No tort in crisis.
o Right of sanctuary.
 Main Hypo: Dave is a cross country hiker in rural, northern
Minnesota in dead of winter. He’s an idiot. An epic blizzard
occurs. Dave realizes he must take shelter. He sees a single
isolated farm house.
 Mini Hypo 1: Knocks on the door, no one answers, no
one homes, breaks window, takes shelter and leaves
when storm subsides. Owner comes back, reviews
security tape.
o Owner recovers cost of broken window.
 Mini Hypo 2: Approaches door, Door is unlocked. He
takes shelter and leaves when storm subsides. Owner
comes back, reviews security tape.
o No compensatory damages. No damage done.
Owner asks for nominal damages (because its
just wrong). NO nominal damages. No punitive
damages (no deterrence, he left right after).
 Mini Hypo 3: Knocks on door. Farmer throws out dave
when he comes down. Farmer is liable now because
it’s a humanitarian doctrine to throw him out once in a
place safety (Rule of sanctuary).
 Private necessity where it is to protect plaintiff’s own property
will have NO liability on defendant.
 Hypo: Dave walks down street and looks in window.
Sees fire in kitchen and pan is unattended with the fire.
He realizes entire house will burn down. He rushes in
and puts out fire and saves home. Owner of home sues
for broken window. NO damages
o Implied consent.

o Defamation (*MBE multiple choice q’s, and NY essay q’s)

 Traditional defamation (3 elements):
 Defendant must make a defamatory statement specifically identifying
plaintiff.
o Defamatory: tends to adversely affect plaintiff’s reputation (good
name, in getting a job, conducting business, entering into Ks). NOT
emotional harm, but reputational harm.

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 o Name-calling is generally not defamatory.
 Hypo: John is a sunuva bitch.
 It’s conclusory, not defamatory, not specific.
o Needs to be an alleged representation or fact which negatively reflects
on the character of the plaintiff.
 Hypo: John is embezzling money from the firm.
 Hypo: John killed a man in Texas (crime)
 Hypo: John is selling secrets to competing firm or nation
(loyalty)
 Hypo: He has sex with minors (morality)
 This is defamation.
o Statements of opinion? Can they be defamatory?
 Opinion’s can be defamatory if a reasonable listener assumes
it to be from a factual basis.
 Hypo: “John would be a bad basketball coach”
o No reason to treat this as defamatory. Speaker
has no basis for stating opinion.
 Hypo: “I hired John last year and you would be crazy
to let him handle your escrow account.”
o This is defamation.
o Person who statement is made about MUST be alive.
o Op-Ed piece Hypo: “He was like Marie Antionette.”
 No defamation, non-actionable opinion.
 Defendant must publish statement
o Requirement that the defendant share the statement with at least 1
person other than the plaintiff himself.
o Can be a NEGLIGENT publication.
 No specific intent required.
 Hypo: Dave sends emails to a co-worker, but mistakenly
sends it to neighbor. That’s defamation.
 Hypo: Prof says to me, alone no one else around, I have
syphallus.
 No defamation
 Hypo: If another student comes in and hears this, then
defamation.
o If only published to one person, small damages
o If published on front page of Wall St. Journal, big damages.
o Can
 Need to prove Damages to recover, maybe?
o Libel
 Any form of permanent communication/damaging statement.
 DVD, newspaper, book, magazine.
 Plaintiff need not prove damages to recover.
 NY: Damages NOT presumed

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  Require proof of damages if not in one of 4 categories
of per se category AND
 Requires additional evidence (its not defamatory on its
face).
o Slander (“S”poken)
 Orally defamatory statements.
 Not slander per se, you need to prove damages
 Losing out on a job or promotion.
 Economic/property injury.
 Slander per se you do NOT have to prove damages to recover.
 Statement about the plaintiff that falls within 1 of 4
categories:
o Business or Profession
 Hypo: “He didn’t go to law school.
He’s not a lawyer.”
o Crime of moral turpitude
 Sexual abuse
o Statement imputing unchastity to a woman.
 Mary fucked all the NY Jets players.
 A single woman is sexually active.
 Promiscuity is not required.
 Hypo: Patricia went away with her
boyfriend and fucked all weekend.
 Depends on woman and community.
o Plaintiff suffers from loathsome disease
 Leprosy
 STDs
 Affirmative defenses to Defamation (these statements are WRONG, if true, they
would use truth defense. But mistakes and wrong statements may be protected under
these affirmative defenses)
 Consent: SEE ABOVE; IMPLIED OR EXPRESS
 Truth:
o If defendant can show statements made about defendant are factually
accurate.
 Absolute and Qualified Privileges
o 2 Absolute Privileges: Arises on identity of defendant
 Spousal privilege
 Hypo: Husband says his boss is embezzling money to
his wife. Only publishes to wife. Privilege.
 Government officers engaged in conduct of their official
duties
 Hypo: Judicial branch, lawyers and witnesses. Applies
to court briefs, witness testimony.

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 o Tanning salon, Mike masturbating appell.
Advo case. Town Cops had privilege to discuss
issues with Mike the tanning masterbater.
o Qualified Privilege: Arises when the utterance is made, based not
really on who made it.
 2 limitations
 Defendant must have reasonable belief that what he is
saying is accurate.
 Confine statements to matters that are relevant.
 Circumstances when we want to encourage candor
 Strong social interest in encouraging candor.
 Letters written by past employers, professors, people who
know you.
 Little kids, what did you see?
 Candid assessments

December 22, 2010: Torts II & No Fault Insurance

 Defamation
o NY Times v. Sullivan
o Special analysis: matters of public concern (topic of political/public/social debate)
o BP Oil Spill
o 2 added elements needed for Plaintiff to win
 Plaintiff must prove the falsity of the statement that was made
 Plaintiff must prove its false
 Flipped/Opposed to the truth defense
 Plaintiff must prove some degree of fault on part of defendant
 Defendant made statement knowing it was false or did nothing to investigate
the accuracy
o Intent or recklessness (simple negligence)
o Even if CEO of oil company (public figure) or secretary who shredded document (private
figure), same 2 elements must be proven.

 Privacy Torts (not heavily tested, maybe 2 Q’s on multistate)

o Appropriation (to take something that doesn’t belong to you)
 Defendant uses plaintiffs name or image for a commercial purpose
 Newsworthiness exception: Use name for article or book is allowed (Ex.
“Michael Jordan the Untold Story” is OK)
o But, Can’t plaster public or private figure’s face on billboard’s freely
without permission.
o Intrusion (NOT recognized in NY)
 Invasion of plaintiff’s seclusion in a way that would be objectionable to an average
person.
 Ex. Covert videotaping, eavesdropping, peeping tom, wiretaps, listening
through keyhole.
 Plaintiff must be in a location where they have a reasonable expectation of privacy.

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  Hypo: whispering secrets on subway, not protected.
 Hypo: Hotel room and car is protected.
 No trespass to land is required.
 Though, in some cases intrusion may involve trespass to land.
o Hypo: Breaking into house to out wiretap phone
 Trespass to land intrusion

o False Light (NOT recognized in NY)

 Defendant makes a widespread dissemination of a major falsehood about the
plaintiff that would be objectionable to an average person.
 No intent requirement, in effect a strict liability cause of action.
 “widespread dissemination” is distinguished from defamation, which only
requires 1 person published to
 The “falsehood” disseminated can be defamatory but need not be
o Hypo: Pete is embezzling money from banks. Told to 100 people in
town. He got fired.
 This is false light and defamation
 False light recovery: emotional damages
 Defamation damages: damages for loss of
pecuniary/financial/economic interests in losing job.
o Hypo: Abe is a catholic. Told to many people. But he is Jewish
 False light, but not defamation.
 Defendant argues I saw you walk around church
because you live there. Good faith basis does not save
defendant from liability.

o Disclosure (NOT recognized in NY)

 Widespread dissemination of confidential information about plaintiff that would be
objectionable to the average person.
 Must be truly confidential
 Ex. Confidential data: medical records, income tax returns
 Exceptions:
o Newsworthiness: If the matter is a matter which is a legitimate public
interest, then no liability.
 Ex.: Tabloids do this by exposing celebrity’s personal secrets.
 Hypo: the plaintiff will act in two separate spheres of life. A defendant will
carry over info one sphere to another
o Hypo: Pete is gay and out to his family and friends and with his
partner and active in gay community. But not gay at work and chose
to keep it private. He goes to a gay rally one weekend. Heterosexual
co-worker sees him and announces it to office. But Pete the gay guy
will lose. Its not truly confidential, Pete was out in public and out at
rally, not confidential.

o Affirmative Defenses to all 4 privacy torts

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  Consent
 Absolute and Qualified Privileges defenses to false light and disclosure claims.
 Disclosing student’s transcript in writing letter of rec protected by qualified
privilege because it relates to the purpose even though its confidential info.

 Economic Torts
o Fraud (5 elements) –near zero to see essay question. Maybe short answer
 Defendant must make a misrepresentation of fact
 Silence about negative facts is not enough to satisfy this element.
o Caveat Emptor
 Misrepresentation must be made deliberately or recklessly
 Defendant must make the fact without trying to ascertain truth of the fact or
knowing it to be false.
 Error on defendant will not trigger fraud liability
 Misrepresentation must be intended to induce reliance
 Has to be material.
 Collateral facts: I drove with my wife because I love her in this car is not
enough.
 There must be reliance by the plaintiff
 There must be economic damage
 Overpayment
o Ex. Contracts, Purchase and sale of house/land, car.
o Somebody told me a lie, I fell for it, I got screwed

 Prima Facie Tort (ONLY in NY, NOT on Multistate)

o “Intentional Infliction of pecuniary harm without justification”
o 2 elements:
 Defendant must have intent to do harm
 There must be harm to plaintiff.
o Hypo: selling products below cost to put another firm out of business.
o Hypo: says guys records sux.

 Inducing a breach of K (NY and Multistate – covered in equity – not a big deal)
o 4 Elements:
 Must be a K in existence between the plaintiff and 3rd party.
 Pete to sell his house to 3heo for $100,000. Dave knows that Pete and 3heo
have signed K for house
 Defendant must know a K exists between the third party and plaintiff
 Engage in persuasion designed to encourage the plaintiff to breach K.
 Coercion
 Offer of a better bargain
 Offer to do collateral benefit
 Plaintiff breaches K because of Defendant’s actions.
 3heo has cause of action for breach of K against Plaintiff
 3heo has COA against Dave for inducing fraud COA.

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 o Privilege defense/immunity
 Minister-churchgoer: Don’t distribute porn dvd’s

 Theft of Trade Secrets (NY state multiple choice only, very small portion of bar)
o 2 Elements:
 Plaintiff must have a valid trade secret
 Trade secret is:
o Information that provides a business advantage to the
owner/possessor of the info (ex. Manufacturing process that makes
glass shatterproof).
o Not generally known
o Owner must take steps to secure/protect trade secret
 Defendant must take trade secret by improper means
 2 improper means:
o Breach of Trust/Confidentiality (Traderous Insider: one who learns
secret legitimately by being employed legitimately, who leaves
company and then uses secret for own advantage or sells it to some
one else).
o Industrial Spy/Corporate espionage (bribing employees, breaking in,
dumpster diving? Abandoned property though? Shredded papers).

 Negligence (****** 50% of multistate torts questions (17 Qs = 10% of exam BIG on Bar, Big on
essay part mist go through all 4 elements in the order below for essays, 2nd only to strict liability for
products liability******)
o 4 Elements:
 Defendant has a duty
 Defendant breached duty
 Defendant’s breach caused (causation)
 Factual
 Proximate
 Plaintiff sustains Damage

 Defendant has a duty

 To whom/for whose benefit do I owe this duty?
o You owe a duty of care to foreseeable victims of your carelessness
o Outside zone of danger = unforeseeable victim
 Very far away
 You do NOT owe a duty of care to unforeseeable victims
 Unforeseeable victims always lose negligence claims
o Hypo: LIRR conductor pushes guy into train who he sees is falling.
Train rider drops package, and fireworks explode and injures person
on platform not on train. Injured person loses negligence claim
against RR conductor and company because unforeseeable victim.
(NY Case: Palsgraf v. LIRR).

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  If he injures person in train he pushes into or himself if
package falls on his toe, or the conductor’s toe, then
negligence.
o Hypo: kid hit outside stadium catching fly balls is unforeseeable
victim and has no negligence COA.
o Exception: Rescuers
 If some one comes to aid of primary victim from far away into
the zone of primary victim’s danger, and the rescuer is
injured, then rescuer (or rescuer’s estate, if killed) is not
barred from negligence claim.
 NY Rules:
o Negative impact on pregnant woman (prenatal injuries)
 If child is born deformed from/after injuries, then child has
COA in his own name
 If child is terminated/stillborn, then COA for child, but mother
has COA,
 But no wrongful death for child that was never born.
o Doctor misdiagnoses birth defects
 Parents can recover from Doctor for cost of caring for child in
addition to the ordinary costs of caring for a normal/healthy
child.
 But parents cannot recover emotional distress damages.
o Doctor botches sterilization
 Doctor negligently performs vasectomy, and man and wife
has another child.
 NO recovery for wrongful birth
 Quantity of care?
o Objective Test: Duty of care is the amount of care a reasonably
prudent person would give acting under similar circumstances. (In
jury’s mind).
o NO allowances for defendant’s mental characteristics.
 Hypo: Pete alleges that Dave has kerosene soaked rags. Hot
day. Ignites and burns both Pete and Dave’s garage. No
personal damage. Negligence claim. Dave says “I’m stupid,
I’m below average intelligence, and uneducated and never
occurred to me that rags are flammable.” Dave is still
negligent.
 Hypo: Mentally retarded, insane/delusional, novice people are
held to the reasonably prudent person and would be held liable
for negligence in above case.
o 2 exceptions where “reasonably prudent person” standard changes:
 Defendant’s physical characteristics
 Hypo: If defendant is blind, the standard is reasonably
prudent blind person. It doesn’t lower the standard it
changes the standard. But they must take canes and
seeing eye dogs.

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  Defendant with superior skill or knowledge
 Hypo: Dave is a NASCAR driver. If he skids on black
ice, must use his expertise in controlling skid on black
ice.
 Hypo: Knowledge of an isolated fact in a situation.
Dave is a stupid, high school dropout. He knows from
local expertise that there are shrubs at an intersection
that blocks view of other street. He’s held to different,
higher standard with that info. Foreigners are not held
to that standard.
 Default standard of care normally used, but 6 situations where we depart
from the default standard of care***** (on Bar):
o Children, under age 4, are incapable of negligent acts.
 Zero duty of care
o Children 4-18 are held to standard of care of a child of similar age,
experience and intelligence acting under similar circumstances.
 Hypo: Age 6 Billy riding bike. Rides over girl’s hand and
breaks another child’s hand. He has never rode bike before.
Not clear on how to steer (experience). He is a stupid kid,
remedial in school (intelligence).
 Suzy, victim, only wins if Billy did WORSE, than a
kid in that standard.
 It is difficult to win negligence cases against kids!
 Exception: If child under the age 18 is engaged in an adult
activity, then apply the default duty of care definition.
 Hypo: 16 yr old operating a car.
o Duty of care for professionals: Care of an average member of that
profession practicing in a similar community.
 Customary practice sets standard of care for professionals and
is conclusive.
 “average member” comparable to real world colleagues.
 Must be a conformist
o Do it like other professionals, not your own
way.
 Empirical – look at other doctors in community.
 average Not “reasonable”
 Plaintiff will usually need to provide expert witness to educate
the jury about complex matters (ex. Brain surgery).
 “Community” – small town communities vs. large
communities.
 Governs where expert witness comes from. If
defendant is from small town, expert witness
testimony should come from similar small town or
same town.
 On Bar, usually will be doctors (med mal), but could be
accountants, lawyers, etc.

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o Only NY questions:
 Informed consent: Doctor must explain the risks of any
recommended procedure to patient
 If doctor fails to disclose material risk to patient and risk
occurs, doctor will be negligent.
 Hypo: Doctor doesn’t tell you 15 chance vocal chords will be
severed during tonscillitis, and it happens, doctor will be
negligent.
 4 exceptions when Informed consent waived:
 No need to disclose commonly known risk.
o Ex. Risk of infection after surgery
 If patient declines information offered.
 If patient is mentally incompetent
 If disclosure would be medically harmful.
o Hypo: If I tell her there is a 1 in a million shot
her vocal chords would be severed, and knows
she has an anxiety disorder and he doesn’t want
to tell her because she has anxiety attacks.
o Duty of Possessors of Real Estate to Entrants who come on their Land
(***** heavily tested ONLY MULTISTATE*****)
 Farm, campground, amusement park, commercial facilities,
supermarkets, barber office, doctors office, lobbies
 Question 1: How did plaintiff/entrant/victim get hurt?
 By an activity being carried out by the defendant or
defendant’s agent on the land.
 Hazardous, static condition
 Question 2: what kind of entrant am I dealing with? (4 kinds)
 Undiscovered trespasser
o Land possessor is unaware of the trespasser’s
presence.
o No duty is owed
o Unforeseeable victim
 Discovered and Anticipated Trespasser
o Come on land without permission but land possessor
knows the trespasser is there
o Those who you should expect would trespass.
o Hypo: People use your land as a shortcut, history of
it. Easements for people to cross. RR company
knows people cross tracks at mile marker 78. They
are anticipated because of past pattern of trespass.
These are discovered trespassers.
o Duty: default duty of care for activity on property
o Hypo: If Pete is trespassing and dave is driving
tracktor and runs over Pete, default duty of care for
Dave.

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 o Dangerous condition?
o Duty to protect only when condition meets all
elements of the 4 part test (if fails test, trespasser
likely to recover):
 Artificial/manmade in nature (built by human
beings, usually indoors – wires)
 Highly dangerous condition (can result in
bodily harm). Twisted ankle condition is not
a big deal, regular duty of care
 Concealed from trespasser. No duty to
protect trespasser from obvious hazard.
 Hazard is one the land possessor knew about
in advance (prior knowledge)
 Landowners possess duty of care to
discovered/anticipated trespassers when there
is a “Known man-made death traps”
 Licensees to the owner’s property
o Land possessors owe duty of care to protect
licensees from all known traps, man-made and
artificial, if it is (2 elements):
 Concealed condition
 Known to defendant.
o Confer benefit for themselves, Commercial
solicitors, guests for the week
o Implied consent to walk up to door and knock.
o Possessor’s owe licensees ordinary standard of duty
of care (default) for activities.
 Invitees
o People who enter land to confer a commercial
benefit on property owner or open to the public
generally.
o Taxes done, barber shop, going to class, going to
museum
o Possessor engaged in activities: duty of care is
default rule ordinary care
o Dangerous condition (2 elements) - duty of land
possessor to protect invitee from conditions:
 Must be concealed from invitee/victim
 Possessor of land knew about (prior
knowledge) OR could have discovered
through reasonable inspection (reasonably
knowable traps on land).
***NY HAS ABOLISHED THESE DIFFERNTIATIONS OF TYPES OF ENTRANTS. IN NY ALL
ENTRANTS ARE PROTECTED BY NORMAL, DEFAULT DUTY OF CARE. THE CARE A
REASONABLY PRUDENT PERSON ACTING UNDER SIMILAR CIRCUMSTANCES WOULD
USE.*******

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 o Premisis liability in NY: abolished tradition
approach
o Apply above test under circumstances.
o Under breach analysis, discuss circumstances
of whether he breached (whether he was
invited or uninvinted, known or anticpated,
guest, of invitee.
 Duty to firefighters
o Assumption of risk
o In NY: Firefighter doctrine is only applicable
in cases against co-workers and firefighters.
Can’t sue fire dept.
 But, could have case against
homeowners in NY
 Child trespassers
o Child injured by artificial conditions on land
are treated more generously than adults
o Defendant must be reasonable prudent under
circumstances to protect children being injured
by artificial condition on their land.
 How likely is it that kids will trespass?
If high likelihood, take major steps
o Attractive Nuisance Doctrine: If there is
something on the land that lures children in, we
expect land possessor to take extra precaution
to protect children from that hazard.
 Factors: Proximity to children,
something luring children to land
(jungle gym).
 Whenever a land possessor owes a duty to an adult
entrant involving a condition on the land, there are 2
you can satisfy duty and avoid tort liability:
o Fix/Repair the problem
 Entrant never gets hurt in the first place
anyways.
o Give a warning about the dangerous condition.
 Put sign up: “Dangerous bridge” or
“Wet floor.”

 No Fault Insurance (not terribly important for bar exam, has not been tested recently.
6 times in 56 exams, short answer q’s only in NY)
 Meant to divert small stakes auto accidents from negligence systems
 When can a person injured an auto accident collect from his insurance
company from my no fault policy?

23
 o Statute that makes it mandatory: In NY you must buy $50,000 of no
fault coverage
 Can collect up to $50,000 but no more
 You can buy more if insurer is willing to sell it and you ant to
pay higher premiums
o No fault only covers personal injury, NOT property damage.
 Hypo: driver can get proceeds from no fault for head gash, but
not for damaged car.
o Owner of car purchases no fault insurance policy
o People covered by owner’s policy:
 Owner himself
 Anyone driving owner’s car
 Any passengers injured in owners car
 Any pedestrians hit by owner’s car
o Hypo: Otto lends his car to Ned. Ned rams into tree. Pete, passenger,
hurt. They go to Otto’s insurance to get no fault insurance.
 They can recover whether driver was negligent or non-
negligent
o Following people can NOT recover no fault proceeds:
 DWI-ers
 Drag racers
 Car thieves
 Fleeing felons.
 When can I still sue in tort, regardless or in addition to, No Fault?
o In order to sue, plaintiff will have to show injuries exceed statutory
threshold (“Plead past the threshold”
 NY: The thresholds are exceeded in 2 ways
 If you have suffered serious injury. Serious injury is:
o Suffered death
o Dismemberment
o Significant disfigurement
o Serious fracture
o Permanent or total loss of bodily organ or
function
 If you have suffered serious economic loss
o Over $50,000
o If you lost income but only make a maximum
of $2,000 a month (less than $24,000 to be
eligible)
o Footnotes on No Fault Insurance
 No pain and suffering in no fault scheme
 No fault remedies/insurance is portable
 Can pursue no fault in CT if you are a NY resident.

 Statutory Standards of Care (Multistate)

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  Other times when default duty of care standard is replaced/modified.
o Special duties
 Judge says “Jury, the defendant must stop at all red lights.”
o If plaintiff makes a 2 part showing, judge will do this (“Class of
Person, Class of Risk Test”):
 Plaintiff must demonstrate that plaintiff falls within class of
persons the statute claims to protect
 Plaintiff must demonstrate the injury is in the class of risks the
statute seeks to prevent.
o If passes test, this standard goes into jury charge, not the reasonably
prudent man one.
 Exceptions
 If statutory compliance would be more dangerous than
statutory violation, do not use two part test.
o Hypo: Pete sues dave for getting hit by dave
who crosses double yellow line to avoid hitting
girl and hits him.
 Class of person and risk are met
 BUT in this case, obeying statute means
staying in lane means running over little
girl
 If complying with the statute is impossible
o Hypo: Dave has heart attack when driving and
runs red light. He passed out, and as a practical
matter, was unable to follow the statute.
 Would a reasonably prudent person do
in that situation?
 Was he having chest pains, did he
forget to take his pills, what rate of
speed?
 Hypo: Weed smoker blows up neighbor’s apartment next door when gas
leaking in smoker’s apt sparks explosion. Neighbor wants to use standard of
care for pot smoker.
o Statute prohibits pot smoking and possession for years
o Purpose? Safety in driving, less drug use. Its paternalistic, not to
protects neighbors
 NOT to protect apartments from getting blown up
 NOT to protect neighbors.
o Thus, we will not borrow the standard from the statute, and will use
regular, default standard of duty of care.
 Reasonable prudent person would have smelled gas and
notified fire dept, not lit a match.

 TORTS III & WORKERS’ COMPENSATION

(Continued from above: special duties)

25
 Duties to act affirmatively
 Only when you voluntarily undertake an activity do additional duties of care
arise.
 Do NOT have a duty to rescue a person in peril
o Even if they are experts (pro swimmers)
 If there is a pre-existing relationship between a person and a person in peril,
there is a duty
o Landowner and invitee
o Familial: brother-sister, mother-son.
o When defendant caused the plaintiff to be put in peril
 Due to defendant’s negligent or non-negligent behavior
 When the person undertakes to rescue some one in peril, they must rescue
that person as a reasonably prudent person.
 Good Samaritan laws NOT in multistate section
o BUT on NY section, good Samaritan laws does NOT apply to all
citizens
 It applies to professionals who have some training.
 They will protect a gratuitous rescue of a nurse, a physician,
or veterinarian.
 Negligent Infliction of Emotional Distress
 Sounds like a separate tort, and not a duty problem.
 1st find the defendant must be negligent, and must have breached one of the 3
standards (not reasonably prudent, didn’t follow statute statute, not a
landowner’s duty)
o 3 scenarios when a plaintiff will succeed:
 “Near Miss Claim”: If negligent conduct if put plaintiff in a
zone of physical danger and then plaintiff was distressed by
that and the distress then produced subsequent physical
manifestation.
 Hypo: Dave runs red light and almost hits Pete, comes
1 foot from Pete hitting him. Pete is agitated and
anxious and then has heart attack later.
o Zone of danger + distress + physical
manifestation.
 “Bystander Claim”: Plaintiff must be a contemporaneous
witness to a negligent bodily injury inflicted on a close family
member.
 Hypo: Pete is sitting on his front porch. His 5 yr old
son is on lawn. Dave is drunk driving and kills boy
while Pete looks on. Pete sues for negligent infliction
of emotional distress.
o NY twist: requires plaintiff who is distressed
must also be in the zone of danger. So Pete
sitting on his porch is not enough.

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  “Preexisting Relationship between plaintiff and defendant and
where a negligent act can foreseably cause distress”
 Hypo: Doctor tells you your +HIV when your not. But
for 2 weeks your life was hell.

Element 2 of the prima facie case of Negligence

 Defendant breached duty
 Identify wrongful behavior
 Give a reason why identified act falls short of the standard of care
 Proving Breach = Fact + Advocacy
o “The plaintiff will claim the defendant breached the duty by looking
away from the road to change the radio channel. A reasonably
prudent person does not look away from the road when driving.”
 Res Ipsa Loquitur: Brought into negligence claim when plaintiff lacks
information on what defendant did wrong (DOES NOT guarantee jury
verdict, only lends support for plaintiff when breach cannot be proven)
o Plaintiff must demonstrate that the accident is one normally
associated with negligence
 Evidence that rules out non-negligent activities
 Barrel falling out of an earthquake = negligence
 If earthquake made barrel fall out then it would not be
an earthquake.
o The accident is normally due to some one in defendant’s position
 Are we suing the right person?
 Hypo: Plaintiff bought an RJ Reynold’s tobacco patch. Guy bit into tobacco
with human toe in it. Plaintiff sues for negligence. This is a hallmark res ipsa
loquitur case.
o You don’t know what RJ Reynolds is doing. You don’t have access to
their manufacturing. But you got a pretty good idea something is
wrong.

Element 3 of prima facie case of Negligence

 Defendant’s breach caused (causation)
 Factual Cause
o “But For” Test: But for the defendant’s breach of duty, I would not
have been harmed/damaged.
 Like a movie: If remade without the breach, would person still
have gotten hurt/killed?
o Multiple defendants and merged causes
 Merged cause: 2 careless parties not operating in concert
 “Substantial Factor “Test: Whether each breach standing
alone was capable of causing the injury.
 If one or both causes was a substantial factor, then
hold them jointly and severally liable.
o Unascertainable cause/defendant

27
  Burden shifts to defendants to exonerate themselves and show
that they were not likely to have shot the person. If not, the 2
defendants are joint and severally liable.
 Hypo: Moe, Larry, and Curly go quail hunting. Moe is
separated. They all shoot at the same time. Moe gets hit in the
eye. Moe sues Larry and Curl for negligence. Reasonably
prudent people do not fire weapons in direction of another
member of hunting party. 1 pellet entered Moe’s eye. 1
defendant is guilty of his blindness and the other is not. Its
either Larry or Curly. Causation is unascertainable.
Probability is 50/50 for each guy. Moe is the plaintiff and has
the burden of proof, which preponderance of evidence (more
likely than not, more than 50%).
 Proximate Cause
o New name: fairness (but don’t use this term on the bar)
o Plaintiff must also convince fact finder that liability be fair
o Is liability fair based on foreseeability analysis?
 Foreseeable consequences of breach of duty should hold
people liable
 Unforeseeable consequences of their breach should NOT hold
people liable.
 Hypo: Dave works for construction company on way to
implode building, truck filled with TNT. Runs light, truck
explodes, 8 people die. Should we hold Dave liable for killing
all these people?
o Once we see consequences were foreseeable and liability is fair, then
they were the proximate cause
o 2 groups of questions with proximate cause:
 Direct cause problems: Involves a breach that leads
instantaneously to injury/damage.
 Hypo: Dynamite car blowing up after running red light
 Foreseeable and Liability is fair
 Unforeseeable = Freakish and bizarre
 Indirect cause problems: defendant creates breach but then
other stuff happens and then after the other stuff does plaintiff
suffers full harm
 4 well-settled cases where indirect causes where
defendant is ALWAYS held liable (foreseeable
consequences and fair):
o Intervening medical negligence/malpractice:
 Defendant runs red light and hits
pedestrian. Pedestrian goes to hospital
and cast is out on leg is put on too tight
and pedestrian gets leg amputated. Is
defendant always liable for broken leg
or an amputated leg? Defendant is

28
 liable for amputated leg. When you
negligently operate care and hit some
one they will seek medical attention and
some doctors make things worse rather
than better. Such is foreseeable. But
also, the doctor is liable for medical
malpractice.
o Intervening negligent rescue:
 Rescuer dislocates man’s shoulder after
driver hit him and broke his leg. Driver
is liable for both injuries. When you
hurt someone negligently, rescuers will
come and might make things worse
rather than better. Its foreseeable
o Intervening reaction or protection forces:
 Driver hits guy, too get out of the way,
another hits the guy. Driver liable for
both injuries.
o Subsequent disease or accident
 Driver hits guy. The guy develops
diseased arm after arm is healing.
Driver is held liable for both.
 Analysis/Fact patterns for indirect causes that are not
one of the 4 cases above:
o Focus on breach
 Look at breach look at injury: is it a
match? If Not a match, no liability.
o Hypo: 3 people go to have lunch. Anne, Betty,
and Man. Anne orders shrimp which has
bacteria and eats it. She gets sick. Betty goes to
Man and says she’s worried. Anne has been in
bathroom for hours. Anne is throwing up. Betty
goes to help her. Betty breaks arm as helping
her. Betty sues restaurant.
 Breach: serving bad shrimp
 Damage/Injury: broken arm
 Did that cause broken arm? No, its
indirect cause
 No foreseeability, liability unfair.
Shrimp not foreseen to cause broken
arms.

4th element for prima facie case of Negligence

 Plaintiff sustains Damage
 “Eggshell Skull” Rule: If defendant has met above all 3 elements, then
defendant is liable for all damages suffered no matter how great in scope.

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 o “You take your plaintiff as you find him.”
o Not just limited to law of negligence
 Battery for bloody nose. Trip to emergency room, lost wages
from work, hospital bills, some punitive.
 But actually have an egg shell skull. Actually crush
skull. Pay for whole brain surgery.

o Equitable Remedies in Tort Litigation

 Injunctions (Not money)
 Negative/Prohibitory Injunction: Command to defendant to NOT do
something.
 Can’t do X.
 Mandatory Injunction: Requires affirmative action on part of defendant
 Must do X.
 Permanent Injunction: Entered at the conclusion of the full trial on the merits
as part of the final relief of the lawsuit.
 Preliminary Injunction: Entered shortly after complaint is filed after a
truncated hearing designed to preserve the status quo.
o Additional 2 part element showing:
 Plaintiff must show they are likely success in the case on the
merits
 Plaintiff must show they will show an irreparable injury if
there is no injunction.
 Need a 4 part additional showing:
 “No adequate remedy at law (money).”
o Harm is impossible to measure in monetary terms
 Killing dog (cost of dog but real/emotional value makes it
hard).
o Conduct is ongoing making it difficult for perpetual lawsuits
 Stop hitting me in the face
 Tort impinges on property right or protectable interest
o Formality now
o Right to be free from K’s being interfered with, being subject to
fraud, etc.
 Injunction is enforceable
o Negative injunctions are easy to enforce
o Mandatory injunctions are harder
o Jurisdictional aspects: outside jurisdiction of court might make it hard
 Injunction will only issue if balance of hardship tips in favor of plaintiff
o Benefit to plaintiff outweighs harm to defendant of complying with
injunction.

 Defenses to injunction requests

 “Unclean hands”
o Defendant can show plaintiff himself is guilty of misconduct.

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 o Theft of trade secrets tort:
 Seeking injunction of former employee to use trade secret
which was already stolen by original company itself.
 Laches
o Prejudicial delay
o Defense to injunction request
o Because you didn’t sue me earlier I though t=you were fine with it
and I have detrimentally changed my position.
 May still get damages, but lose injunction
 Freedom of speech
o Cant prevent something from getting published in NY Times.

o Affirmative defenses to negligence

 Traditional contributory negligence (NOT law in NY or majority rule, but multistate
tests on it even though only used in few states)
 In a jurisdiction following “traditional” negligence rules
 If plaintiff has failed to exercise proper care for his safety that plaintiff will
be barred from all recovery.
o Failure to act like a reasonably prudent person
 Could be statutory violation like jaywalking
 Hypo: Drunk driver hits jaywalker in a traditional jurisdiction.
Jaywalker barred from any recovery.
 Last Clear Chance Exception (Exception to a traditional rule)
 Traditional Applied assumption of the risk (multistate/traditional minority rule, NOT
NY)
 Conduct from the plaintiff which we infer the following message; “That’s
OK, I’ll take my chances.”
o Absolute bar to recovery.
o Plaintiff had:
 Knowledge and Appreciation of the risk
 Took on risk voluntarily
o Hypo: Getting into DWI-ers car who is blatantly drunk and says lets
go. Passenger gets hurt. No recovery in traditional state jurisdictions.
 NY ONLY Rule
o Failure to wear a seatbelt can be shown by defendant to mitigate
damages
 NOT a bar to recovery, only mitigate damages.
 Comparative Negligence
 Assigns a different consequence to plaintiff’s failure to exercise his own
safety
 Starting out with fact pattern like contributory negligence, but legal
consequence is different here
o Only reduces recovery here, does NOT bar recovery completely.
o “Plaintiff fault reduces recovery.”
 Sometimes you have do take math on the test

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 o $100,000 damages, 70% in fault of defendant
 Pure Comparative negligence (NY Law, Multitstate if exam is silent)
o Strictly on %’s jury has brought back.
o Plaintiff always recovers some money even if plaintiff is assigned
majority of fault (90% fault on plaintiff still gets 10% damages.
 Partial/Modified Comparative Negligence (multistate only)
o Plaintiff assigned LESS than 50% of fault will have damages
reduced.
o Plaintiffs assigned more than 50% at fault gets nothing.

o 3 strict liability causes of action (from least to most covered on bar exam)
 Injuries caused by animals
 Domesticated animals
o No strict liability for damages caused by domesticated animals you
keep
 Ex. House pets, farm animals, dog bites
o Exception: you will be strictly liable if you have a domesticated
animal with vicious propensities and you’re aware of those vicious
propensity and you will be liable for keeping an animal of that nature.
 Dog has previously bitten people. Aware of it. Walking dog
out in public.
 Bites 2 - infinity, your strictly liable
 Bite 1 – negligence possibly
 If snarls at people constantly these are signs.
o Strict liability NEVER applies to trespassers on land.
 Wild animals
o Strictly liable if you keep wild animal
o Don’t need to be aware
o Bite 1 - infinity = strict liability
o Defendant’s efforts at safety are legally irrelevant
o Bar will try and trick you about defendant’s safety precautions. Major
caging, electric fences, collar, walls. Doesn’t matter, if tiger mauls
some one, owner is strictly liable.
 Abnormally dangerous activity
 An activity is abnormally dangerous if (2 elements)
o It creates foreseeable risk of serious harm even if reasonable care is
exercised and
o Must not be a matter of common usage in the area where defendant
conducts it.
 Consumer Products
 Negligence – res ipsa loquiotr
 Actionable under article 2 of UCC – warranty?
 Booby trapping product – battery
 On bar, the call of the question will allude to a specific theory, must answer it
on theory they are referring to.

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 o Hypo: if refer to negligence, do not refer to strict liability.
 For strict consumer products liability, (4 elements)
o The Defendant must be a merchant
 One who routinely deals in goods of this type
 What about casual sellers? Ebay or craigs list?
o NOT merchants, and can’t be strictly liable.
 Service providers.
o Yes, for products they deal with but not
collateral products. Verizon strictly liable for
charges, not chairs in store.
o Doctor is not merchant of chairs, not strictly
liable for patient hurting themselves on chairs.
 On that fact pattern, service provider,
invitee, reasonably discoverable,
negligence problem.
 Commercial lessors
o Considered to be merchants. Rental car
company is strictly liable.
 Merchant includes every merchant in distribution
chain and not limited to the one who plaintiff dealt
with directly.
o No privity required between individual store
and Macy’s headquarters.
o Product must be defective
 Manufacturing defect: differs from all others that came off the
assembly line that makes it more dangerous than a consumer
would expect
 Departs from its intended design that makes it more
dangerous than a consumer would expect
 “1 in a million defect.”
 Strictly liable, so safety provision are irrelevant.
 Design defect
 If there exists a safer, practical, and cost-effective way
to build it.
o Plaintiff must posit a hypothetical alternative
design and explain the ways it’s safer,
practical, and cost-effective.
 Warnings and instructions are part of product’s design.
 If product has certain risks that cant be eliminated in
cost-effective ways, and risks that consumer would not
be aware, warning labels is safer (warning labels are
cheap).
 To sell a product with residual risk without the
warning label is selling a defective product and will
result in strict liability.

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  Warning label must be sufficiently clear and visible as
to the risks.
 If product can be made physically safer, then slapping
a warning label on will not exonerate company from
strict liability.
o Product has not been altered since it left defendant’s hands
 If product has moved in ordinary channels of distribution, then
presumed to not have been altered, and is up to defendant to
prove that it had been tampered with by some one else.
o Plaintiff must be making a foreseeable use of the product at the time
of the injury
 Foreseeable use is not limited to intended use of the
manufacturer
 Misuses are foreseeable
 Hypo: Pete needs to get item off of high shelf. Breaks chair
and breaks leg. He claims strict liability for defective chair.
Manufacturer says not intended use, chairs for sitting. He
misused it. But its foreseeable that people step on chairs.
 Hypo: people driving at 80mph instead of 65mph limit,
steering window falls off. Strictly liable because its
foreseeable.

o Worker’s Compensation (rare, 1 in 10 shot on bar exam)

 Injured on the job but can’t sue your boss in tort
 You will get insurance money
 Forfeit the right to litigate against employer in tort
 Employer is strictly liable, in that they will always pay workers through
insurance
o Acts like strict liability
 Will not recover pain and suffering or punitive damages.
 Whose is covered by worker’s compensation
 Everyone
 Exceptions:
o Teachers and other non-manual labor workers
 Ministers, rabbis
o Part-time and domestic employees
 Babysitters, maids, gardeners
o Independent contractors are NOT employees and thus are MOT
covered by workers compensation.
o If injury is solely due to employee intoxication, then no worker’s
compensation.
 Suing in tort will likely fail since you were drunk
o Intentional, self-inflicted employee injury
o Injury occurs in a voluntary, off-duty athletic activity
 The compensation you get:

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 o You get 2/3 of normal salary (because your not taxed on this, so not
100% of wages)
o Out of pocket medical expenses
o If you die, your estate gets statutory proscribed amount plus funeral
expenses.
 Covered acts for workers compensation
o Illegal acts committed by employee during course of employment
ARE covered.
 Hypo: roofer stealing copper gutters and falls gets worker’s
compensation
 Minor horseplay – gets worker’s compensation
 Frolic – huge departure – no worker’s compensation
 Covered employee can sue other 3rd parties who may have contributed to the
injury
o Hypo: People injured while using industrial equipment
 Can get worker’s compensation from boss
 Can sue manufacturer of machine for strict liability under a
defect rules.
o Nuisance
 An interference with one’s ability to enjoy one’s own property to an unreasonable
degree
 Defendant can cause a nuisance by acting deliberately, carelessly, or without any
fault at all.
 Intentional, negligent, or strictly liable.
o Intentional: I hate my neighbor. I play loud music all night pointed at
his house
o Negligent: throwing late parties because your young and like to rage.
o Strictly liable: trying to prevent smoke from spreading over areas. But
it doesn’t work, the tarps and ducts don’t do it.
 Balancing of Interests: Courts balance harm done to plaintiff and the reasonableness
of the interfrence and whether defendant would be unfairly hindered if couldn’t do
this nuisance causing act.
 Type of harm in torts, not really a tort
 Like bloody nose and broken arm
 Not like battery or defamation

o Miscellanious Add-On’s to general tort problems

 Vicarious Liability: plaintiff will have COA against person who created a tort
(tortfeasor), but plaintiff wants to sue 2nd defendant who had no direct connection
with injury causing conduct.
 2nd defendant is a purely passive party.
 Elements
 Employer-employee
o Respondeat superior: Employer is vicariously liable for torts of
employee provided employee was acting in scope of employment

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  Scope of employment
 Are intentional torts of employees in scope of
employment?
o Gap employee roundhouses customer. Outside
scope of employment, so no liability for gap.
o If force is part of the job description (security,
bouncer) then abuse of force if part of scope.
 Then bar is vicariously liable if abuse
of force is found in a bouncer’s action.
o Repo man: if repo man hits customer, vicarious
liability for bank or finance company who
hired repo man.
o Misguided effort to advance employer’s
interest and creates a tort, vicarious liability for
employer
 To show what a good guard he is and
protect store, false imprisonment and
vicarious liability for store.
o Not vicariously liable for Independent contractors
 But you are vicariously liable if your independent contractor
injures invitee and you’re the landowner.
o Some one borrows your car, your not liable
 Exception: If you lend some one your car to do an errand for
you, that triggers vicariously liable
 That makes them your agent and you’re the principal
(car owner)
 NY is a permissive use state
 You are vicariously liable for anyone driving your car
with your permission. Presumption that anyone behind
the wheel of your car has your permission.
 Hypo: someone steals your car. Pedestrian sues you
for vicarious liability. Its your burden to show car thief
did not have permission.
 Rental cars
 When you rent a car, your driving with permission
 In NY you hit a pedestrian, you can sue hertz
 Under federal law, no vicarious liability
o Parents not vicariously liable for acts of children
 Only in NY Exceptions: only up to modest $ amounts
 Hypo Trick: Dave has a 9 year old son. Dave leaves the gun
on the table. 9 year old son gets gun and kills some one. Dave
is liable.
 Dave was not purely passive party. He did something
not reasonably prudent. He was negligent in leaving a
loaded gun on a table with a 9 year old.

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  Just because you see a relationship like ones above, ask
yourself is there direct liability first.
 Negligent liability for hiring 4 time felon, not vicarious
liability for worker assaulting

 Multiple/Co-defendant remedies
 Hypo: Sued and got all money from Tom. Dick and Harry have not chipped
in.
 Majority Rule: We proceed by %’s
 Jury will assign a % responsibility of defendants and they will collect from
each other based on the numbers.
o When out of pocket defendant can recover 100% of money he paid to
plaintiff through indemnifcation
 Employer Vicariously liability gets full indemnification from
active tort feasor????
 Non-manufacturer gets full indemnification from
manufacturer in strict products liability case.
 NY Rule:

 Loss of consortium
 Victim of tort is married, other uninjured spouse gets second and separate
cause of action against all and any available defendants.
o Loss of household services
 No one to cook meals, fix garage
o Loss of society
 Loss of companionship, no one to talk to, bored, needs to see
therapist
o Loss of sex
 Not getting laid and I want some cash
 Need to prove you have a healthy sexual relationship with
wife prior to tort.

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