Bar ReviewTorts: 1. INTENTIONAL TORTS a. Overarching themes: i.

The extreme sensitivity of a is ignored in determining whether or not he has a cause of action. ii. There are no incapacity defenses in intentional torts 1. This includes mentally disabled people, children, drunk people, etc. iii. Intentdesire to produce the legally forbidden consequence of that tortis an element of every intentional tort. Volition is not enough. 1. Transferred intent: So long as the intend ANY forbidden consequence, the is liable for any other tort. b. BATTERY i. Elements: 1. must commit a harmful or offensive contact, a. Offensive = unpermitted by a person of ordinary sensitivity 2. Contact must be with the s person. a. This includes anything the was holding or was connected to (e.g., purse) ii. There is no immediacy required, and the s body need not be involved (e.g., poison) c. ASSAULT i. Elements: 1. must place the in a reasonable apprehension a. Apprehension = knowledge (not fear) 2. The apprehension must be of an immediate battery. a. Words alone lack immediacy; there must be some conducta menacing gesture d. FALSE IMPRISONMENT i. Elements 1. must commit an act of restraint a. Threats can be an act of restraint. i. Must be one that would operate on the mind of a person of reasonable sensitivity. b. Omissions can be an act of restraint if there had been a pre-existing obligation to help the move around. i. E.g., airline does not call wheelchair for disabled person whom they know is on the plane, because pre-existing duty exists. 2. An act or omission that constitutes false imprisonment is actionable only if the knows about the imprisonment or is harmed by the imprisonment 3. must be confined to a bounded area as a result of the act. a. An area is bounded only if the s movement is limited in all directions. b. An area is not bounded if there is a reasonable means of escape that the can reasonably discover. i. An escape that is dangerous, disgusting, humiliating or hidden, are all unreasonable. e. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS i. This is the only intentional tort where the can act with complete and utter disregard (as opposed to strictly intentional as the rest of the intentional torts require) ii. Elements: 1. Outrageous conduct

a. Outrageous = if the action exceeds all bounds of decency tolerated in a civilized society. b. Mere insults are not outrageous (almost as a matter of law) even if it was done with the purpose of bringing about the distress. c. Hallmarks of outrageousness (factors): i. The conduct in question is continuous or repetitive ii. The is a common carrier or an innkeeper. iii. is a member of a fragile class of persons (because it becomes outrageous by virtue of the fact that I have decided to do this to a person of this group) 1. Young children. 2. The elderly. 3. Pregnant women. 2. must suffer from severe distress (no need for physical manifestation) f. TRESPASS TO LAND i. Elements: 1. Act of physical invasion a. throws a tangible item onto the land i. Intangible forces are not trespass to land 1. E.g., smells, light smoke, light, are not trespass. b. enters the s land i. Intent means that D wants to get to this spot of land by a voluntary action, irrelevant whether he knows he crossed a boundary line 2. must be a possessor of land a. must be an owner of lawful possession of the land at the time i. The tenant, not the landlord, will have the cause of action because this is not a land right cause of action b. Air above and soil below (to a reasonable distance) can be a trespass g. TRESPASS TO CHATTELS i. This does not include real property (or things attached thereto) ii. Forms of interference 1. Alteration 2. Dispossession iii. Remedy does not include recovery of the full market value of the item. 1. Instead, can recover the cost to fix the damage. h. CONVERSION i. The difference between conversion and interference is the degree of interference: 1. Modest interference is trespass to chattels 2. Extreme interference is conversion ii. In conversion only, the can recover special damages of FULL VALUE OR REPAIR. This operates as a forced sale. 1. In NY, a bona fide purchaser of stolen goods is not a converter. 2. AFFIRMATIVE DEFENSES a. CONSENT i. Consent is a defense to all intentional torts ii. Capacity: 1. A cannot consent to a tort unless he has the capacity to do so. 2. Children can consent to age appropriate activities in their interest; viewed on a sliding scale a. E.g., two eleven year olds wrestling; 16 year olds having sex

iii. Giving of Consent: 1. Express Consent a. Verbalized consent b. This is ignored if there has been fraud or duress. i. E.g., STD not disclosed prior to consentual sex 2. Implied Consent a. Implied by virtue of customary practice b. Implied based on the s reasonable interpretation of the s objective conduct. iv. Scope of Consent 1. The consent is only permitted within the reasonable scope of that consent. Going beyond the scope of the consent will vitiate the consent given, and will be liable. 2. Dr. can exceed the scope of the consent during surgery to an adjacent body part if, in his professional judgment, the procedure is necessary. b. PROTECTED PRIVILEGES i. Types: 1. Self Defense 2. Defense of Others 3. Defense of Property ii. Elements: 1. must demonstrate proper timing. a. must act while the act to which he is responding is imminent or in progress. Heat of the Momentno revenge 2. must demonstrate a reasonable belief that the threat is genuine. a. E.g., shopkeepers defense. 3. Must be proportionate in response. a. Defense is lost if the response is unreasonable and/or excessive. 4. Deadly force a. Permitted only where there is an actual belief of threat of serious injury or death b. In NY, required retreat prior to resorting to deadly force (if it is feasible to do so), -UNLESS- (1) cop OR (2) in your own home. c. Deadly force is never allowed during defense of property. c. NECESSITY i. Only applies to damaging anothers property, not your person ii. Two Types: 1. Public Necessity: No liability. a. A public necessity exists where a invades the s property during an emergency to protect the community as a whole, or a significant group of people. 2. Private Necessity: Liability for property damage/personal injury; not trespass or punitive damages. a. A private necessity exists where a invades the property of the during an emergency to protect property or safety of his own. b. Private necessity to protect the PLAINTIFFS property will result in no liability on the part of the . 3. DEFAMATION a. Elements i. must make a defamatory statement specifically identifying the 1. A statement is defamatory when it tends to adversely affect his reputation. a. This is not about emotional harm, but economic loss of reputation i. Name calling is generally not defamation because it does not give listeners

any concrete reason to think poorly of the . ii. Look for a description of a real world factual event, and that fact should reflect poorly on the s reputation. 1. BAR often involves reputation tarring: honesty, peaceableness, loyalty, morality. 2. Opinions: a. Opinions can be defamatory if a reasonable person would assume that such opinion was based on some factual basis. 3. must be alive when the statement was made. ii. The must publish the statement a. Publication does not mean books and magazines per se. What is not publication is making the statement to the person about whom you are saying the defamatory remarks. Publication requires that the statement is made to any other person b. The amount of people with whom you share the information goes to amount of damages, not liability. c. Negligent Publication is Publication AS WELL! iii. Damages (maybe) 1. The law of defamation has been subdivided into different categories. a. Libel i. A libel is defamation that is embodied in some sort of definite format ii. Plaintiff NEED NOT prove damages. iii. In NY, a libel does require proof of damages, if: 1. It is NOT within the per se categories (see infra), AND 2. Its defamatory impact is NOT CLEAR on the face of the statement b. Slander i. Oral defamatory statement 1. Slander Per Se: Slanderous statement that falls within any of the four topical categories (and for which damages need not be shown): <MNUMONICBUMS> a. Statement relating to the s Business or profession. b. Statement imputing Unchastity to a women c. has committed a crime of Moral turpitude. d. suffers from a loathsome disease. (e.g., STDs) 2. Regular Slander: Here and only here, must prove economic damages b. AFFIRMATIVE DEFENSES: i. Consent (see above for rules) ii. Truth ( bears the burden) iii. Absolute and Qualified Privilege 1. Absolute Privilege a. Functions based on who the is or with whom he is having the conversation i. Spouses talking to each other ii. Governmental Officers engaged in the conduct of their official duties. 2. Qualified Privilege a. Based on when the speech was made i. When there is a strong social interest in encouraging candor. b. LIMITATIONS: i. must have a reasonable belief that what he is saying is accurate. ii. Must respond to statements that are relevant.

c. Constitutional Considerations i. PUBLIC CONCERN 1. If the speaking or publication of the relates to public concern a special analysis applies. a. TWO EXTRA ANALYSES APPLY i. The falsity of the statement that was made (e.g., this is not a defense anymore, so burden is now on the ) ii. must show some degree of fault on the part of the 1. If is a public figurefault = intent (to spread false info) or recklessness (no attempt to determine accuracy) 2. If is a private partyfault = negligence is sufficient 4. PRIVACY TORTS: a. Appropriation i. uses s name or image for a commercial purpose. 1. ExceptionNewsworthiness (e.g., US Weekly) ii. NY- This is the only privacy tort that is also cognizable in New York b. Intrusion i. Invasion of seclusion in a way that would be objectionable to an average person. 1. E.g., Covert videotaping, wiretapping, peering in the window of someones home. ii. Note: 1. To make this claim, must be in a location where there is a reasonable expectation of privacy. 2. Does not require trespass to land c. False Light i. The makes a wide spread dissemination of a major falsehood about the that would be objectionable to an average person. ii. Note: 1. This is distinguishable from defamation because: a. False light requires that the bad news must be widespread. b. Can be defamatory but it need not be, it is a bigger topical range. i. E.g., is a catholic when he is a Jew. No defamation, but can be false light c. Damages include emotional losses d. Intent is NOT required. EVEN GOOD FAITH BASIS results in liability. d. Disclosure i. The widespread dissemination of confidential information about the that would be objectionable to an average person. ii. Note 1. Exception: Newsworthiness (journalism)can disseminate matters that are in significant public interest. i. This exception is viewed very broadly 2. The information must be truly confidential. So keeping something secret in one part of your life but private in another is information disclosure that is not actionable. e. Affirmative Defenses i. Consent ii. Absolute and Qualified Privilege is a defense for false light and disclosure. 5. ECONOMIC TORTS a. FRAUD i. Elements: 1. must make a misrepresentation of fact

a. Silence is not enough for the tort of fraudcaviot emptor (let the buyer beware) 2. Misrepresentation must be made deliberately or recklessly 3. The misrepresentation must be intended to induce reliance a. This it the materiality requirement. 4. Reliance on the part of the (the misrepresentation affected his decision) 5. Damage b. NY Only - PRIMA FACIE TORT (Intentional Infliction of Pecuniary Harm W/O Justification) i. Elements: 1. Intent to do harm 2. Such harm results ii. Note 1. This is a catchall tort, where someone was an asshole, but no tort fits perfectly. c. INDUCING A BREACH OF CONTRACT i. Elements: 1. There must be a contract in existence between the and a third party. 2. The must have knowledge of the contract 3. The must engage in persuasion designed to encourage the third party to breach the contract 4. The third party must actually breach the contract. ii. Note: 1. Privilege to induce another to breach a contract: e.g., People in an advisory capacity (father, lawyer, accountant, clergyman) d. THEFT OF TRADE SECRETS i. Elements: 1. The must possess a valid trade secret, which has three requirements: a. There must be information that provides a business advantage (e.g., manufacturing techniques.) b. Not generally known c. Owner must take steps to keep the information secret. 2. must take the trade secret by improper means, of which there are two types: a. Traitorous insider (e.g., learned the secret legitimately)breach of trust b. The industrial spy (thief) c. IMPROPER: Violates commercial morality (e.g., dumpster-diving, making an employee drunk) 6. NEGLIGENCE a. 4 ELEMENTS: i. Duty 1. must prove that the had a duty of care (and what it was) a. TO WHOM YOU OF THE DUTY: YOU OWE A DUTY OF CARE TO FORESEEABLE VICTIMS i. Unforeseeable victims always lose their negligence claims on the BAR ii. Outside the zone of danger = no duty 1. Almost reducible to the physical proximity of the to the iii. EXCEPTION: 1. Rescuers: If involved in coming to the aid of a primary victim, the rescuer is not barred even though he is not owed a duty initially a. DANGER INVITES RESCUE 2. NYSD-

a. PRENATAL DUTIES: i. Negligent impact on the body of a pregnant woman: ii. Child, when born, has a cause of action the on his own. iii. Mother will have a cause of action for loss of child if baby is stillborn iv. Dr. misdiagnoses birth defect v. Parents can recover for the cost of caring for child that are above and beyond the normal care of a healthy child. vi. Parents cannot recover emotional distress damages. vii. Dr. botches sterilization viii. There is no recovery whatsoever. ix. No preconception torts in NY b. WHAT IS THE STANDARD OF CARE? i. The standard of care that a reasonably prudent person would take under similar circumstances. 1. This is an objective test UNLESS: a. PHYSICAL DISABILITIES: The standard will adapt to actual physical disabilities. Under this circumstance, the standard is the reasonably prudent person with this same disability b. Professional w/ extensive knowledge: held to a higher standard reasonably prudent person with the added skill and knowledge that the possesses. i. This includes laymen w/ knowledge of a specific fact. ii. 6 SITUATIONS IN WHICH WE DEPART FROM THE DEFAULT STANDARD OF CARE: 1. Children: a. Under the age of 4owe the world a ZERO standard of care. b. Ages 4-18owe the world the standard of care of a hypothetical child of similar age, experience, and intelligence acting under similar circumstances. c. EXCEPTIONIf the child is engaged in an adult activity, the objective reasonably prudent person standard of care applies, not the child. 2. Professionals (MALPRACTICE) a. Standardthe care of an average member of that profession practicing in a similar community. i. Similar Community usually means small town to small town, large town to large town. You cannot call NYC Dr. to testify against Ithica city Dr. b. -NYSDi. A doctors duty of care includes the duty to explain the risks that are inherent in the procedure, and to obtain such consent. Failure to disclose results in breach of duty. ii. EXCEPTIONS: iii. 1) Commonly known risk iv. 2) Patient declines being informed v. 3) Patient is mentally incompetent and therefore informing the patient would be futile vi. 4) If the disclosure would be harmful (this means that something

such as anxiety may lead to keeping the risks from the patient) 3. Possessors of Real Estate to Entrants to their Land (PREMISES LIABILITY) a. What kind of entrant am I dealing with? 1. TRESPASSER- KNOWN MAN-MADE DEATH TRAPS a. Undiscovered Trespasser Zero duty, regardless of whether harmed by activity or condition (always will lose a premises case) b. Discovered Trespassers When there has been a pattern of past trespassing (e.g. ppl use the land as a shortcut) standard is: i. For activities on land: reasonably prudent person standard of care ii. For conditions on land: 4 part test (if met, liability, if not, no duty): iii. (1) Artificially madenot a natural condition (e.g., dead limb, landslide, etc.) iv. (2) Highly dangerousnot a moderate or slight artificial danger v. (3) Concealednot an obvious or apparent highly dangerous artificial condition vi. (4) Owner was previously aware of the condition 2. LICENSEE- ALL KNOWN TRAPS a. Enter with permission, but without any purpose of conferring commercial benefit to the landowner. (e.g., social guest, solicitors) b. DUTY OWED: i. Activities on land: Plain duty of reasonable care. ii. Conditions on the land: 2 Part Test (if met, liability, if not, no duty.) iii. (1) Condition is concealed iv. (2) Condition is previously known to v. Note: condition need not be highly dangerous nor need it be artificial. 3. INVITEES- REASONABLY KNOWABLE TRAPS a. Enter land either to confer a commercial benefit on the premises owner or they enter land that is open to the public generally. b. DUTY OWED: i. Activities on land: Plain duty of reasonable care ii. Conditions on land: 2 part test (if met, liability, if not, no duty) iii. (1) Condition is concealed. iv. (2) Possessor either knew about or could have discovered through reasonable inspectionas would have been done by the reasonably prudent person. v. REASONABLY KNOWABLE TRAP 4. In NY, ALL ENTRANTS, REGARDLESS OF HOW

THEY GET HURT, GET REASONABLY PRUDENT PERSON STANDARD. 5. THE FIREFIGHTERS RULE a. For police and firefighters, there is no recovery for inherent risks of the job. b. In NY, Doctrine is only applicable as applied against the employer or co-workers. So you could make out a COA against the home owner who set the fire. 6. CHILD TRESPASSERS a. Artificial Conditions: Reasonably prudent person under the circumstances i. ATTRACTIVE NUISANCE DOCTRINE: Prudence depends on the circumstances. So knowledge of the existence of an attraction to children will increase the prudence required. 7. Whenever there is a duty owed to an adult, you can: a. Fix the problem, b. Provide the person with adequate warning of the dangers 4. STATUTORY STANDARDS OF CARE (Negligence Per Se) a. Must satisfy a two part inquiry: i. must demonstrate that he falls within the class of persons that the statute seeks to protect. ii. must demonstrate that the injury is within the class of risks that the statute seeks to prevent. b. 2 Exceptions: i. Where compliance would be more dangerous that violating the statute. (E.g., crossing double yellow line to avoid pedestrian) ii. If compliance with the statute would be impossible. (e.g., crossing double yellow line after having a heart attack) 5. AFFIRMATIVE DUTY TO ACT a. Negligence law never requires you to act affirmatively. i. This includes the fact that you do not have to rescue someone in peril b. EXCEPTIONS: i. If there is a preexisting relationship (e.g., storeowner, family) ii. If the initially caused the s peril. iii. If the decided to help anyhowassumption of duty he must do so in a reasonably prudent manner. (-NYSD- GOOD SAMARITAN LAWSStatute itemizes certain people who are protected from all activities involved in non-gross-negligence, including doctors, nurses, and vets) 6. NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS a. Must first have a breach of a standard of care (must be included with another tort) PHYSICAL MANIFESTATION NEEDED b. Near Miss ClaimThe Fear Claim i. Negligent conduct of the put in a zone of physical danger, that fact distressed the and then the had subsequent physical manifestation of the distress.

c. Bystander ClaimThe Grief Claim i. must be a contemporaneous witness to a negligent bodily injury inflicted on a close family member. ii. NY requires that the who is distressed must himself be in the zone of physical danger. d. Preexisting relationship exists between the and , AND an error or negligent act could cause a foreseeable risk of distress i. E.g., negligent misdiagnosis. ii. Breach 1. must show that the duty was breach a. Identify the wrongful behavior b. Identify a reason why the behavior was unreasonable. (Advocacy) i. Not necessary where other duty was applicable (e.g., negligence per se that is applicable.) 2. Res Ipsa Loquitor: a. 2 PART TEST: i. must demonstrate that the accident is normally associated with negligence. ii. Accident is normally due to the negligence of someone in s position. iii. This is essentially making sure that you have served the correct . iv. Look at whether had control over the situation. v. or others must not be at fault b. Applies when the lacks information about what the did wrong. c. This does NOT prove negligence, but allows it to get to the jury. iii. Causation 1. CAUSE IN FACT a. Regular cases: i. But for test. b. Multiple Causative Elements: i. Multiple s and merged causes: 1. This requires use of the substantial factor testwhether each breach, standing alone, could have caused the injury. ii. Unascertainable Causes 1. Summers v. Tice fact pattern. In an unascertainable cause case, the burden of proof will be shifted to the s to prove that they were not liable. 2. PROXIMATE CAUSE (FAIRNESS) a. Look at whether the breach could have foreseeably caused the resultant injury. b. Intervening causes: i. 4 TYPES OF WELL-SETTLED CASES-- ALWAYS LIABLE HERE: 1. Intervening medical negligence/malpractice 2. Intervening negligent rescue 3. Intervening reaction or protection forces. 4. Subsequent disease or accident iv. Damages 1. The Eggshell Skull Rule: a. You take a as you find themif the has satisfied the other elements, that is liable for all damages suffered from therefrom, irrespective of its scope v. Affirmative Defenses to Negligence 1. Traditional Contributory Negligence

a. If a in a negligence claim has failed to exercise proper care for his own safety, that will be barred from all recovery. b. Look for the words traditional tort defenses jurisdiction in the question. 2. Traditional Implied Assumption of the risk. a. Conduct by the from which we infer: thats okay, Ill take my chances. b. Look for the words traditional tort defenses jurisdiction in the question. 3. Comparative Negligence a. s fault reduces recovery in proportion to their percentages. i. Pure Comparative Negligence 1. In NY, Failure to wear a seatbelt can be offered in mitigation of damages. ii. ***Partial/Modified*** Comparative Negligence 1. cannot recover if he is more than 50% at fault for the injury. 7. EQUITABLE REMEDIESNY LAW a. Injunctions: i. Definitions: 1. Negative injunction: 2. Mandatory injunction: 3. Permanent Injunctions 4. Preliminary Injunctions ii. Permanent injunctions: 1. This is a remedy, a tort must be established. 2. To get it, must make a 4 part showing: a. There is no adequate remedy at law (money will not be helpful on the facts) i. This often occurs under the following circumstances: 1. is judgment proof 2. The harm is impossible to measure in monetary terms. 3. Ongoing or repetitive lawsuits. b. The tort in question impinges on a property interest or protectable right. i. This has become a formality, because now all tort remedies are protectable rights. c. The injunction must be enforceable. i. Negative v. Mandatory Injuntions: negative injunctions are easier to enforce. Mandatory injunctions are much more difficult to enforce, because there could be disagreements about whether it was actually done. ii. Continuing duties? iii. Outside the jurisdiction? d. Only issues if balance of hardships tips toward the injunction 3. Defenses: a. Unclean Hands: shows that is himself guilty of wrongdoing b. Laches: Delay by plaintiff prejudicing c. First Amendment: right is protecting form of speech (see conlaw outline) iii. Preliminary Injunction 1. must make 2 additional showings: a. Likely success on the merits. b. He will suffer irreparable injury in the absence of the injunction. 8. STRICT LIABILITY a. INJURIES CAUSED BY ANIMALS: i. Domesticated animals = no strict liability

1. E.g., dogs, domesticated bull 2. Exception: Owner of domesticated animal with vicious propensities IF the owner had knowledge thereof is strictly liable. a. E.g., owner knows that the dog has previously bitten; growling pitbull b. CAVEAT: Does not apply when was a trespasser when injured. ii. Wild Animals = strict liability 1. NO EXCEPTIONS WHATSOEVER b. ABNORMALLY DANGEROUS ACTIVITIES i. Must meet 2 part test: 1. The activity must create a foreseeable risk of serious harm even when reasonable care is exercised. 2. The activity must not be a matter of common usage in the area in which the conducts it. c. PRODUCTS LIABILITY i. 4 Elements: 1. must be a merchant a. Merchant = Someone who routinely deals in goods of this kind. i. 4 types of Bar question caveats 1. Casual sellers: average person not strictly liable 2. Service providers: not strictly liable if the sale of the product is collateral to the service that they are providing. 3. Commercial lessors: they are merchants (e.g, Hertz rental car) 4. Merchant is every company in the distribution chain. a. There is no requirement of privity 2. must prove that the product was defective. a. There are two types of defects: i. Manufacturing Defects = the product differs from all others that came off the assembly line (it departs from the intended design...) in a way makes it more dangerous than consumers would expect. ii. Design Defects = there exists a safer, practical, and cost-effective way to build it. 1. must show a feasible alternative design. 2. Practical = safer while keeping the intended benefit of the product 3. Cost-effective = not substantially more expensive 4. WARNINGS AND INSTRUCTIONS: Can be considered a design defect, because selling the product with the warning would likely be cheap and safer. a. Also note that warnings must be adequate. May need pictures, other languages, put on the product itself, etc. b. If the product can be feasibly designed, slapping a warning on it will not absolve the manufacturer of strict liability, because there is still a safer and feasible alternative design. 3. Product was not altered since it left the s control a. If the product moved in ordinary channels of distribution, it is presumed that the product was not altered. The burden is on the to show the contrary. i. presumption does not apply when the purchased a used product. 4. The must be using the product in a foreseeable manner a. **The use is not limited to the intended use of the product. Many unintended, and even misuses, might be foreseeable.** ii. AFFIRMATIVE DEFENSECOMPARATIVE FAULT:

1. Any misconduct with respect to any strict liability claim will simply reduce damages, not liability. 9. WORKERS COMPENSATION a. Statutory insurance scheme that provides benefits to people on the job, it is relatively easy to collect, but the right to sue the employer in tort is precluded. i. This is like strict liability scheme, because fault is practically irrelevant. ii. Pain & suffering and punitive damages cannot be recovered. iii. Who is covered by workers compensation: 1. Virtually all employees, except: a. Teachers and non-manual laborers at educational, religious, and non-profit organizations b. Part-time domestic and household employees. (e.g., baby-sitter) 2. Independent contractors are not employees iv. When is workers comp. not available? 1. Injury is solely due to employee intoxication 2. Employee intentionally inflicted the injured onto himself. 3. Injury occurs in a voluntary, off-duty, athletic activity. 4. Horseplay on the job (e.g., in the factory) depends on whether it was major or minor horseplay 5. Note: illegal acts committed by the employee are covered. v. What is recovered? 1. 2/3 of weekly wage (tax free) 2. All out-of-pocket medical expenses 3. Statutory prescribed death benefits + funeral expenses. vi. Note: covered employees may still sue other parties other than the employee 1. E.g., injured by printing press on the job, can sue press manufacturer under products liability theory; subcontractors employee can sue G.C. for injury, because not his boss 10. NUISANCE a. More analogous to harm than tort b. Definition: interference with the ability to enjoy ones own property to an unreasonable degree. i. Harm can be produced without any culpability (i.e., intent, reckless, negligent, justified) 1. Liability is determined by a balance of equities. a. Who should win; who is losing more of their lifestyle by the result of the claim? 11. MISCELLANEOUS TORT NOTES: a. Vicarious Liability i. Applies to create liability on a non-active party where the relationship mandates such liability 1. 4 Types of Relationships a. Respondeat Superior: Employer for his employees tortliable for torts occurring within the scope of employment. i. Generally intentional torts are not within the scope of employment, but there are exceptions: 1. Where the job requires force to be exerted, excessive force will be within the scope of such employment (e.g., bouncer at a nightclub) 2. Where the job creates tension or friction by its very nature (e.g., repo man) 3. Where the employee commits an intentional tort based on a misguided effort to advance the employers interest (e.g., security guard decides to stop and search every third customer)

b. Hiring Party for a hired independent contractornot liable for torts of worker i. Exception: Landowner will be vicariously liable if injury inflicted on invitee. c. Car owner for driver of carnot liable for their actions i. Exception: Car lent out so that they can do an errand for you ii. is vicariously liable for any permissive use of the car 1. There is also a presumption that someone using your car is doing so with your permission. 2. EXCEPTION: Rental cars do not create vicarious liability against the rental car company. d. Parents for their childrenno vicarious liability i. In NY, There is vicarious liability up to a statutory maximum (~$5k) b. REMEDIES: i. Co- Remedies 1. General rule is proceed by percentages. can seek contribution for other s fault %s. a. Exceptions: i. Indemnification 1. Vicariously liable party can get full indemnification from the active tortfeaser 2. A non-manufacturer can get full indemnification from the manufacturer in a strict products liability case. ii. Loss of Consortium 1. Uninjured spouse has a second cause of action against all properly named s in action brought by injured spouse a. Can collect for the following three losses. i. Loss of household services, society (companionship), loss of sexual relations. 12. PERSONAL PROPERTY a. FOUND PROPERTY i. Abandoned property is personal property that the rightful owner no longer wishes to own. 1. Physical act giving up possession of the item 2. Intent to relinquish possession and control a. Actions can lead to a circumstantial inference of intent to relinquish control 3. The finder who takes the product with the intent to obtain possession becomes the owner. ii. Lost/Mislaid Property 1. LOST PROPERTY a. Accidentally giving up possession without the intent to give up control b. The true owner has the right to the item as against the whole world c. The finder i. If the value is less than $20 then the finder must make reasonable efforts to locate the owner. If after one year the owner is not found, the finder becomes the owner. ii. If the value is more than $20 then the finder must turn the item over to the police, who must then hold on to the item for a statutorily defined length of time (up to 3 years). b. GIFTS i. The issues will be whether or not the party making the gift can get it back, or whether the gift has become final. 1. Giver = donor 2. Receiver = donee ii. Inter Vivos

1. Elements (theoretical): a. The donor must have donative intent i. Intent to part with title, not just possession b. There must be a valid acceptance by the donee i. Silence is usually adequate, unless there is an affirmative rejection of the gift. c. There must be delivery (involving the transfer of possession) i. This could involve the transfer of the actual item or something that is intended to connote the giving of the gift (e.g., car keys) 2. Special Circumstances a. Checks: i. If it is a check that says pay to donee from donordelivery is not tendered until the check is cashed. ii. If it is a check that says pay to the order of the donor endorsed over to the doneedelivery is tendered when the check is given over (since the donor does not have legal ability to stop payment) b. Stock Certificates: i. Once the paper is handed over, the gift has been consummated c. Delivery Agents i. Delivery man from donor to donee can be called back by donor prior to giving the gift to the donee. ii. Delivery man from donee to donor consummates the gift transfer when the agent has taken possession of the gift. iii. Gift Causa Mortis 1. There must be an imminent risk of death to the donor that is objectively fatal 2. Gift is not valid if the donor survives. 3. Its not a valid gift if the donee dies before the donor. c. LIENS i. Primitive version of a security interest which is used to enforce the payment of a debt ii. Elements: 1. There is a debt relating to the performance of services 2. The creditor has possession of the item in question, 3. But the debtor retains title to the property iii. General/Special Liens 1. General Lien: a. The right of the creditor to retain a whole bunch of property as security for a general balance due. b. Returning some property does not discharge or release the lien on the rest. 2. Special Lien: a. The right to retain a specific property as security for a balance due pertaining to the specific item involved. b. Returning some of the relevant property relinquishes the lien (but not the debt) d. BAILMENTS i. Voluntarily giving over possession of an item to another person without relinquishing title to the item. ii. Bailees must generally exercise reasonable prudence when the item is in its possession. 1. Bailees can limit their liability, but cannot entire exculpate themselves. iii. Special Issues: 1. Things inside other things a. General rule: Normal things are considered part of the bailment, but extraordinary

things are not included. i. EXCEPTION: Safety Deposit Boxes. Banks are bailees for anything that might be found in the box, regardless of the normalcies. b. Parking lots. i. Not a bailment if you keep the keys (it is essentially a leased property) ii. If keys are given over then a bailment is created. c. Coat ChecksRegulated by statute 13. NO FAULT INSURANCENEW YORK STATE a. Designed to divert relatively small stake car accident cases away from the negligence system. b. FOR EXAMNEED TO KNOW 2 THINGS i. When and what an injured party may collect proceeds from no fault policy 1. Obviously, everyone must have auto insurance. a. Must have a minimum of $50K of no fault insurance i. This only covers injuries, not property damage (which would be collision insurance) 2. Generally, policy is purchased by the owner of the car. The following 4 types of people are covered under that policy: a. The owner himself b. Anyone driving the owners car c. Any passengers injured within the owners car d. Any pedestrians hit by the owners car 3. Note that here it is irrelevant whether it was the drivers fault, other than the following exceptions: a. Drunk driver b. Drag racers c. Car thieves d. Fleeing felons ii. When the injured party can still sue in tort, notwithstanding the existence of no fault insurance 1. You must demonstrate that your injuries are in excess of the statutory threshold a. PLEAD PAST THE THRESHOLD i. THIS CAN BE DONE IN 2 WAYS: 1. If you have suffered serious injury, which is: a. Death b. Dismemberment c. Significant disfigurement d. Serious fracture e. Permanent and total loss of a bodily organ or bodily function. 2. Damages in excess of basic economic loss. a. Add up the following: i. Medical expenses (past and future) ii. Lost income (up to $2K per month) iii. $25 per day of misc. expenses (shovel snow, bring you food, etc.) b. TOTAL MUST EXCEED $50K c. NO FAULT RECOVERY NEVER INCLUDES PAIN & SUFFERING d. No fault insurance is portable! (e.g., NY resident can recover for accident occurring in NJ)