Professional Documents
Culture Documents
BarBri 12.21 - Torts I & Personal Property
BarBri 12.21 - Torts I & Personal Property
1
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.
2
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.
3
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.
4
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.
5
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.
6
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.
7
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)
8
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
9
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
10
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:
11
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.
12
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
13
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.
14
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
15
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
16
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
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.
17
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
18
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.
19
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.
20
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.
21
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.*******
22
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.
24
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.
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.
26
“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.
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.
29
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.
30
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.
31
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.
32
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.
33
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.
34
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
35
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.
36
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.
37