HARMFUL OR OFFENSIVE CONTACT WITH THE PRESON OR ANOTHER OR WITH
SOMETHING CLOSELY APPURTENANT THERETO, CAUSED BY AN ACT INTENDED
TO RESULT IN SUCH CONTACT OR THE IN THE APPREHENSION THEREOF
DIRECTED AT THE OTHER OR AT A THIRD PERSON
Intent is the purpose to cause or a substantial certainty that the
contact (or apprehension of contact) to occur.
Inducing a battery is also intent.
Intent standard is subjective (purpose of individual) not
Intent may be transferred – shoot at A, hit B, liable to B for
Intent is not motive, the intent to cause the contact, not why
there was an intent to cause the contact Garret v. Dailey;
Hendricks v S. Bell
* Contact with the Person:
Contact may be harmful or offensive, including contact which is
normally innocent or helpful but which P has indicated to be
harmful or offensive (subject to non-withdrawable deemed consent
to ordinary contact [you cannot withdraw your consent to be pushed
on the subway])
Contact may be direct or indirect. Hitting with a clock or
throwing a rock.
Inducing the contact may result in battery. Hendricks v S. Bell
Person includes things closely appurtenant to the person;
clothing, things grasped in the hand. Fisher v. Carrousel
Contact need not have been felt at the time.
Proximately caused injuries, even if non-forseeable, are
You take the plaintiff as you find him – Eggshell Plaintiff/Thin-
Nominal, compensatory and punitive are available
Mistake is not a defence unless a mistake as to privilege. D
reasonably believes that P is about to attack him, then
counterattack is self-defense.
Generally, privileges are transferrable. If policeman shoots at a
felon and hits an innocent party, he is not liable for battery to
the third party, although may be liable for negligence if shooting
was not reasonable.
Limited to reasonable force necessary to repel the attack.
Retaliation is not privileged and will constitute a battery.
Doctrine is that P must have “retreated to the wall” (have no
further way out), unless in his own dwelling house, where retreat
is not required.
Deadly force permissible only to protect self from serious injury,
or in cases of violent crimes (robbery, rape, kidnapping).
Provocation is no excuse but may mitigate damages.
* Defense of Property (Real and Personal):
(See Trespass to Land and Trespass)
* Defense of Third Parties:
Old theory was that intervention was at the intervenor’s peril and
that if the intervenor aided the agressor he would be liable for
battery; currently (in NY) reasonable mistake permits intervenor
to invoke the privilege.
Consent may be express or apparent. If R-Man would have taken
conduct (or lack thereof) as consent then this privilege is a
defense, even if subjectively there was no consent. O’Brien v.
Cunard A person who is clearly (to R-Man) drunk, on drugs or crazy
may not consent.
Consent may arise from prior dealings.
Consent may be customary Hackbart v. Bengals (i.e., if you are on
the subway, you consent to being pushed) and may not be withdrawn.
Consent may be implied in an emergency (i.e., consent to surgery
by unconscious accident victim).
Consent induced by threats of present harm is no consent.
Consent induced by fraud in factum (material fraud) is no consent.
* MEDICAL CONSENT ISSUES
* INFORMED CONSENT:
The doctrine of informed consent relates to the failure by a
physician to inform a patient of the risks of an operation.
* Failure to inform as to NATURE of operation (FRAUD IN FACTUM):
If the operation is completely different than that to which
consent was given, then doctor is liable for battery. Doctor
obtains consent to operation on one ear and operates on the other.
Mohr v Williams
* Failure to inform as to RISKS of operation (FRAUD IN TREATY):
This is viewed as a collateral failure of consent, and doctor is
liable for negligent failure to inform. Doctor does not inform of
possibility of side effects of surgery.
* INFORMED CONSENT FORMULA:
If Doctor fails to inform patient of risk and [such information
was customary among doctors] [a reasonable doctor would have
informed of the risk (NY)]
the information was not (a) commonly known to R-Man (b) already
known to Patient (c) the Doctor reasonably believed that
information would worsen patient’s condition (d) Patient told
Doctor he didn’t want to know and
[the Patient would not have undergone operation if he knew
(subjective)] [R-Man would not have undergone the operation if he
knew (objective - NY)] and
the risk not informed of results in harm to Patient
THEN, even without negligence in the performance of the operation,
Patient can recover.
* ABILITY TO CONSENT:
* NY Statute:
Can consent for self:
18 yrs old, married, parent of child
Can consent for child:
Married or has borne child, may consent for child (n.b. excludes
unwed fathers or single adoptive parents)
Good faith belief in representations that party could consent for
self or child; emergency
* REFUSAL OF TREATMENT
Adult may refuse treatment, even if lifesaving, if only adults
life at risk. However, if adult is sole parent of child, some
states will force treatment.
* REFUSAL/PERMISSION OF TREATMENT ON BEHALF OF OTHERS
If adult refuses administration of life-saving treatment to child,
trial court will generally grant motion of hospital to administer.
While appelate levels might reverse, the whole thing is by then
Judges are reluctant to permit unbridled license by guardians,
rather they will seek to reason out what the incompetent would
want under the circumstances.
* RIGHT TO DIE
* CONSENT TO AN ILLEGAL ACT
All jurisdictions refuse negligence claims where both parties were
participants in an illegal act.
Majority jurisdictions claim consent is ineffective and claims can
be maintained (at least as to battery).
NY claims consent is valid unless consent was to breach of statute
designed to protect class of which consenting party is a member
(i.e., statutory rape/consenting Tiger-Beat readers)
APPREHENSION OF AN IMMINENT HARMFUL OR OFFENSIVE CONTACT WITH THE
PERSON, OR SOMETHING CLOSELY APPURTENANT THERETO, CAUSED BY ACTS
INTENDED TO RESULT IN SUCH CONTACT OR THE APPREHENSION THEREOF
DIRECTED AT OTHER OR AT A THIRD PARTY.
* APPREHENSION OF CONTACT:
Plaintiff must have been aware of threat. A gun pointed at the
back of plaintiff’s head is not an assault. Apprehension is not
fear, it is awareness.
* PRESENT INTENTION TO CAUSE CONTACT:
The threat must be of present contact. “I will beat you up after
school” is not an assault.
Words may vitiate otherwise threatening conduct’s status as an
assault. Brandishing gun and stating that “I would kill you if it
were not Simchat Torah” does not constitute an assault.
* PRESENT ABILITY TO CAUSE CONTACT:
The attacker must reasonably appear able to carry out the threat,
even if in fact he cannot. Western Union v. Hill. Pointing an
unloaded gun at someone if he does not know it to be unloaded is
an assault. If plaintiff knew it to be unloaded, even if defendant
believed it was loaded, there is no assault.
Assault is very limited in time-frame. Threats of future action
will not constitute an assault. It must be a threat here and now.
* ILLEGAL OPTION:
“Your money or your life”, (assuming present ability to carry out
threat) is an assault, since the law removes the illegal condition
(“Your money”) and leaves an assault (“Your life”).
Nominal, compensatory and punitive are available.
* INFLICTION OF EMOTIONAL DISTRESS
Tort seeks to address weaknesses of limited assault tort: (a) time
limitation (immediacy) and (b) threat of physical harm.
Tort is very circumscribed, since judges feel it a genie which
must be stuffed back in the bottle.
* CONDUCT IS INTENTIONAL/RECKLESS:
Intentional – Intentional or Substantial Certainty – would require
knowledge of presence of P Taylor v. Vallelunga
Reckless – Substantial Likelihood and intentional disregard of
risk. Chuy v. Philadelphia Eagles.
* CONDUCT IS EXTREME AND OUTRAGEOUS:
Beyond the limits of social toleration, not merely abusive,
insulting or annoying.
Conduct may become extreme and outrageous through repetition,
although not extreme or outrageous in one instance.
Many cases involve an abuse of authority or perceived authority
There is a special standard for (a) common-carriers (b) inn-
keepers (c) public utilities (monopolies), since people are deemed
to have no choice but to deal with them. Conduct here may be only
In NY, mere racial slurs have been found to provide a cause of
action within the ambit of a statute providing for redress for
THERE IS NO EGG-SHELL PLAINTIFF. Test is R-Man (objective) unless
there is a weakness of P of which D is aware. E.g., telling a six-
year old her mommy is going to jail; knowingly calling Oedipus a
motherfucker. Slocum v. Foodfair
* CONDUCT RESULTS IN SEVERE EMOTIONAL DISTRESS:
Harris v. Jones
Many jurisdictions require proof of resultant physical injuries
and everyone is impressed by them.
* Dead Body Cases:
Prior to development of Infliction of Emotional Distress, courts
were willing to rcognize an action for damages inflicted on close
relatives by the dishonoring of a corpse, based on a fictitious
property right vested in the near relatives of the deceased – the
right of sepulture (the right to be buried). This works even for
* INFLICTION OF EMOTIONAL DISTRESS ON 3RD PARTIES
This tort is even more circumscribed. A real floodgate-a-rama.
* INTENTIONAL TORT COMMITTED ON THIRD PARTY:
* EXTREME AND OUTRAGEOUS CONDUCT:
* SEVERE EMOTIONAL DISTRESS TO A PERSON OF ORDINARY SENSIBILITIES:
* PERSONS WHO CAN RECOVER:
* Restatement View:
Family members present and known to be present.
All persons who suffer physical injury resultant from observing
New York View: “Zone of Danger”
Applies to Both Negligent and Intentional Torts.
* PERSON IN THE ZONE OF DANGER:
A person who has been put at risk by the same negligent conduct of
the D as the person actually injured (Friendly/Kinsman type
formulation – “damages of the same type resulting from the same
forces negligently risked”).
* IMMEDIATE FAMILY OF THE PERSON INJURED:
Most cases have been parent/child.
* OBSERVES OR IS INSTANTANEOUSLY AWARE OF INJURY TO PERSON
* RIGHT OF PURSUIT AND SHOPLIFTING
* HOT PURSUIT
There is a limited right to demand forcible return of chattels
falsely taken where:
There is hot pursuit
A demand is made for the return of the chattel
Mistake is no defence.
If possession was originally rightful but is wrongfully withheld,
there can be no forcible retaking.
If custody is given, there may be a forcible retaking.
* DETENTION OF SUSPECTED SHOPLIFTERS
There is a limited right of merchants to detain and search persons
whom they reasonably suspect of shoplifting.
Detention must occur on or near the premises.
The purpose of the detention must be investigation not resolution
of the matter. There is no right to demand signature of a
confession as a condition to release.
* NY – GENERAL BUSINESS LAW ARTICLE 12-B § 218
On or near premises of a retail mercantile establishment
So as to permit investigation or questioning
In a reasonable manner
For a reasonable time necessary to permit the person to make or
refuse to make a statement (has been construed to mean time
necessary for cops to come)
On the basis of reasonable grounds for belief that person was
committing or attempting to commit larceny
* TRESPASS TO CHATTELS
INTENTIONAL INTERMEDDLING WITH A CHATTEL IN POSSESSION OF ANOTHER
WHICH RESULTS IN (A) DISPOSSESSION OF THE CHATTEL, (B) DEPRIVATION
OF THE USE OF THE CHATTEL FOR A LONG PERIOD OF TIME, (C)
IMPAIRMENT OF THE CONDITION, QUALITY, USEFULNESS OF THE CHATTEL OR
(D) HARM TO THE PERSON OF THE POSSESSOR OR PERSONS OR THINGS IN
WHICH HE HAS A LEGALLY PROTECTED INTEREST.
Formerly an offense against possession, now person with future
right to possession may maintain action.
Intent is to act on chattel, no matter how harmless the motive.
There are no nominal damages for harmless intermeddlings Glidden v
Szybiak; quantifiable damages only – deprivation of use/impairment
of condition (in NY lesser of loss of value or cost of repair)
bodily harm to possessor.
In contrast to conversion, this action is used when the plaintiff
wishes to keep the chattel.
An intermeddling with a chattel so serious that the intermeddler
is deemed to have bought the chattel as of the date of coversion.
Sentimental value may be recovered.
Possessor or party entitled to immediate or future possession may
Only tangible personalty, intangible rights embodied in a document
or things which would have been real property but have been
severed from the land may be converted.
Trespass ab initio works for both trespass to chattels and
Maliciousness of motive
Damage to chattel
Thus a thief who does not damage the chattel (horrible motive) and
a person who innocently permits the chattel to be destroyed
(horrible damage) may both be convertors.
* UCC § 2-403 AND THE INNOCENT PURCHASER FOR VALUE
Innocent purchaser for value may take good title even from a
person who obtained goods by fraud (rescindable sale).
Innocent purchaser for value may obtain title held by the prior
holder if the purchase was made from a party who ordinarily deals
in goods of that type and was entrusted with the chattel. (e.g.,
party A who owns watch leaves it at jewelers to be repaired,
jeweler sells it. Innocent purchaser for value will have title as
good as that of A, so that if A owned the watch then he owns it,
if A was a thief, he doesn’t own it).
Statute of limitations runs against thief from moment of
conversion and, in NY, against innocent holder from time of
refusal to return chattel or time of destruction of chattel.
If chattel is returned on demand by innocent holder, there is no
conversion; if by a thief, there is still a conversion.
The chattel need not be taken back in mitigation of damages in NY
(R2d says it must).
* LIABILITY OF BAILEES
In NY, bailee who cannot account for goods will be presumed to be
a convertor if there is a limitation on his liability for
negligence. ICC Metals v Municipal Warehouse
Good faith misdelivery is no excuse if the goods cannot be
Common carriers are not liable.
Employees who are not negotiating the deal or not actually
delivering goods are not liable.
If there is a question of ownership, bailee must file interpleader
and let the two “owners” fight it out.
* USE OF CHATTEL IN EXCESS OF OWNER’S PERMISSION.
Liable for extreme misuse or if the chattel is damaged while being
Sufficient damage inflicted intentionally may be a conversion.
* TRESPASS TO LAND
ONE IS LIABLE TO ANOTHER FOR TRESSPASS, IRRESPECTIVE OF WHETHER HE
THEREBY CAUSES HARM TO ANY LEGALLY PROTECTED INTEREST OF THE
OTHER, IF HE INTENTIONALLY (A) ENTERS THE LAND IN THE POSSESSION
OF THE OTHER, OR CAUSES A THIRD THING OR PERSON TO DO SO, (B)
REMAINS ON THE LAND OR (C) FAILS TO REMOVE A THING HE IS UNDER A
DUTY TO REMOVE.
Tort is against possession not ownership, possessor (even adverse
possessor) has the cause of action.
No damage to the land is necessary and nominal damages may be
Intent is the intent to enter the land.
Mistake as to right to enter or as to possessor is no defence.
Intent may be transferred.
Trespass may be or persons or things, direct or indirect, and may
result from failure to remove a thing Rogers v Board or to leave
The trespass must generally be of a tangible thing – no smoke or
All damages to person or property actually occurring on the land
and harm to possessor and his family are recoverable.
Trespass ab initio also works here.
* OLD RULE WAS THAT LAND WAS HELD “FROM HEAVEN TO HELL”
Airplanes may now fly over land without trespassing (Federal
Two views of rights of landowners to airspace:
Possesor possesses all he may use of the airspace
Possessor possesses all he is using of the airspace
Relief from loud airplanes:
Injunction for trespass – not too likely, not in public interest
Newark v Eastern
Inverse condemnation on nuisance theory – (a) continuous
invasion and (b) substantial deprivation then (c) damages for loss
of property value. Alevizos v Metropolitan Airports
Even if not reachable, underground still belongs to possessor of
If not reachable, there is no underground trespass
* MEDIA TRESPASS
If there is no right of entry given to any media ABC v Cuomo, then
there is no right of entry to any media Anderson v WROC.
* DEFENSE OF REAL PROPERTY
Reasonable force only and only after request to leave is made,
unless request would be futile.
Threats of deadly force may be used.
In NY, physical force may be used to terminate trespass and deadly
force to terminate violent crime (burglary, arson).
Traps and spring-guns not permitted unless owner would have been
privileged to use deadly force.
Vicious dogs are different, being more common although an innocent
trespasser may still recover.
Absolutely liable for damages caused by wild animals or animals
not normally domesticated in the area (e.g., absolutely liable for
an elephant in England but not in Burma).
Absolutely liable for damages caused by domesticated animals where
owner knew or should have known of vicious propensities and damage
results from that propensity. (i.e., owner of a known biting dog
is not liable for damages caused by jumping up and the owner of a
known jumping up dog is not liable for damages caused by biting).
Absolutely liable only for a particular animal (whatever the
propensities of the breed), although failure to guard against the
propensities of the breed may be negligence.
Contributory negligence is a partial defence.
* ULTRAHAZARDOUS ACTIVITIES
Inapropriate to Area
Cannot be controlled by reasonable care
Damage will be significant
Activities like blasting or (until recently) airplane flights.
* WHERE IS THE LINE FOR LOSSES DRAWN
Damage must result from risk of the type which makes activity
Use of the land damaged must be normal (no eggshell/mink
Trespassers do not recover
People who put themselves in harm’s way do not recover
Ultrahazardous activities undertaken at the instance of the
state are immune.
* PRIVATE NUISANCE
SUBSTANTIAL INTERFERENCE WITH THE RIGHT TO USE AND ENJOY LAND,
WHICH MAY BE INTENTIONAL, NEGLIGENT OR ULTRAHAZARDOUS IN ORIGIN,
AND MUST BE A RESULT OF DEFENDANT’S ACTIVITY
Does not require physical entry or entry by tangible object but
must be continuous or recurrent.
* DAMAGE MAY BE TO
Health (unsanitary conditions)
Peace of mind (whorehouse, stored explosives)
Physical comfort (smoke/smells)
Conduct may be intentional, negligent or ultrahazardous.
Intentional here means continuing after notice of problem is
given. Morgan v High Penn
If claim arises under negligence, contributory negligence may be
a factor. Timmons v Reed
Balancing of interests – Plaintiff and Defendants right to use
their respective land as they wish. Public policy may be a factor
Nuisance must be one that a normal person would suffer and would
result from normal uses of land – no eggshell plaintiff
* AT COMMON LAW, WITHOUT STATUTE
Aesthetics don’t count
Natural conditions don’t count
Zoning results in type of activity not being a nuisance, but
method of operation may be a nuisance if unreasonable. Winget v
Legislation may overule even zoning (e.g., homeless shelters), but
method of operation must still be reasonable.
Remedy may address public policy concerns – balancing the equities
of two types of uses Boomer v Atlantic Cement
“Coming to the Nuisance” – a factor, but only with all other
things being equal. Spur v Del Webb
* PUBLIC NUISANCE
Injury to right common to public (clean air, water, public
Damage which is different in kind from public in general:
Physical harm to person or property
Damage to established business making direct commercial use of
public interest (fishermen, shrimpers/water)
NY Cases – muddled
Obstruction to right of way
Obstruction is intentional – Recovery
Obstruction is negligent – No Recovery
or perhaps there is no longer any recovery for obstruction
Separate right of ingress and egress
Must be intentional and blockage must be immediate
* PRIVILEGE OF NECESSITY
Person reasonably believes tort is necessary to prevent:
Public necessity – Public calamity (blowing up building to
prevent spread of fire)
Private necessity – Prevent damage to person or property (tying
to dock in storm)
* PUBLIC NECESSITY:
Destruction must be reasonable, reasonable mistake is permissible
Compensation need not be paid unless by statute (not a taking)
Invaded interest may be a property (blowing up building) or
personal (quarantine of contagious person) interest
* PRIVATE NECESSITY:
Compensation must be paid
Property interests only may be invaded
Interests in property damaged must be smaller than those preserved
INSANITY AND RETARDATION
* INTENTIONAL TORTS:
Loonies are liable for their intentional torts not requiring
malice, if found capable of the requisite intent and if
manifestations were not inconsistent with requisite intent
(throwing rocks while saying “have some lovely flowers) McGuire v
In torts requiring malice or deceit, the requisite ability is not
Loonies are also held liable for negligent torts as defendants
(unless the insanity came upon them suddenly and was not
forseeable Breunig v American).
Loonies are generally not held to be contributorily negligent when
Standard of care for loonies/morons as plaintiffs is subjective -
The care of which this nut/retart was capable. Lynch v Rosenthal
Standard is objective, but detailed:
Reasonable child of his:
Age, Maturity, Experience, Intelligence, Education
Children are held to an adult standard of care for:
Hazardous activities (snowmobiles, cars, &c.) Robinson v Lindsay
Torts occuring on land they own
NY imposes standard of care based on arbitrary age limits:
0-4 No standard of care regardless of child’s abilities
5-12 Rebuttable presumption of no standard of care
12-18 Rebuttable presumption of standard of care
* DEAD BABIES AND BORN MUTANTS
Some states permit survivors to maintain action for “wrongful
death” if fetus viable
NY does not Encresz v Friedberg
Depends on the way state “wrongful death” statute is worded or
BIRTH WITH INJURIES RESULTANT FROM NEGLIGENCE
All states can maintain an action for prenatal injury
BIRTH FROM NEGLIGENT FAILURE TO DETECT PRENATAL INJURIES
Product liability suit vs. contraceptive maker
Negligence action vs. sterilizing doctor
Suit by parent against doctor who failed to diagnose birth defect
Suit by child against doctor who failed to diagnose birth defect
or child born in bad circumstances (E.g., child born of rape in
Nobody ever recovers for a healthy baby
Parents recover for extraordinary medical expenses
Parents don’t recover for emotional distress
Child may recover for extraordinary medical expenses if parents
don’t (statute of limitations has run) Procanik v. Cillo
* INTERSPOUSAL IMMUNITY
NY provides that immunity is abolished but that insurer need not
pay interspousal claims unless policy otherwise specifically
provides (prevent collusion on claims)
* PARENT CHILD IMMUNITY
NY abolished as to torts which would be torts in absence of family
relationship (Gelban – child negligently driving car in which
parent was passenger)
NY also provided for impleadment of joint and several tortfeasors
(Dow contribution) which could result in defendant impleading
negligent parent to suit brought by child.
In order to prevent this, Holodook prevents suit by child (or
other tortfeasor) for non-feasance.
* NON-FEASANCE V. MIS-FEASANCE
Mis-feasance – entrusting instrumentality dangerous to the world
at large (e.g., blasting caps)
Non-feasance – entrusting instrumentality not dangerous to the
world at large (e.g., Drano)
HOWEVER, THIS NICE FRAMEWORK WENT AWAY AFTER THE BLINDBOY ON A
BIKE CASE, SO NOBODY KNOWS WHERE WE ARE NOW.
* ADULT’S LIABILITY FOR TORTS OF CHILD
(I) Master Servant
(II) Entrustment with dangerous instrumentality
(III) Entrustment with instrumentality dangerous given the known
predelictions of child
(IV) Failure to train and restrain child with known vicious
prediliction applies to parents only
(V) Consent to tort or receiving fruits of tort (Fagin)
* GOVERNMENTAL IMMUNITY
* FEDERAL TORT CLAIMS ACT
DIFFERENT FROM ORDINARY TORT ACTIONS:
No punitive damages;
Law applicable is tort law of place where tort is committed.
* ACTIONS CANNOT BE MAINTAINED FOR:
Action taken pursuant to statute, whether or not constitutional;
Intentional torts except:
Torts against property (trespass to land, trespass to
Torts against person committed by federal law enforcement
officials in connection with investigations (assault; battery;
false imprisonment; malicious prosecution; abuse of process);
Misrepresentation except that if there is physical loss to
person or property, courts may deem not a result of
misrepresentation (economic losses are never recovered);
Ultrahazardous activities (immunity waiver was for negligence,
UHA liability is not based on negligence)
Negligence per se, since it is strict liability.
* DISCRETIONARY FUNCTION
Even really stupid things done on a planning level are immune.
For “operational” actions, immunity is waived.
Inspections are deemed discretionary.
* IMMUNITY OF THE STATE OF NEW YORK
While Court of Claims Act § 8 appears broad, immunity still
remains for certain functions.
* IMMUNITY FOR DISCRETIONARY FUNCTIONS
Three tier system:
Planning so long as the plan was a result of study and was
reasonable, there will be no liability. If discretion was
exercised (as opposed to non-feasance) there will be immunity)
Administration If policies and procedures were followed, then
there is immunity
Operations Ordinary liability
* FAILURE TO PERFORM OR REASONABLY PERFORM A PROTECTIVE FUNCTION
For a protective function (police, fireman) the duty is owed to
the public as a whole and not to an individual in the absence of a
If there is an undertaking to plaintiff on which plaintiff
relies, then the state is liable for the amount of the detriment.
Stool pigeons must be protected
If the protective officers are present and do nothing
Order of Protection issued by Family Court is ignored
Court may be willing to expand this doctrine where children are
§ 1983 actions are also possible, but the Supremes have declared
that they must be a result of a deliberate discriminatory
* INTERFERENCE WITH ECONOMIC RELATION
* SLANDER OF TITLE
Common law tort impugning ownership of land. Now extended to
personalty. Interferes with P’s ability to alienate land, with
resultant economic harm
Actual Economic Loss (Special Damages)
* PRODUCT DISPARAGEMENT
Elements same as slander of title
Statement is one of FACT, not mere puffery (X’s product causes
cancer vs. My product is better than X’s)
Statements that invoke the authority of a third party vs. mere
statements of opinion (Government studies show my product is
better than X’s vs. My product is better than X’s)
Courts are reluctant to adjudicate competing claims (“This is a
court, not Consumer Reports”).
Must be held to Times actual malice (knowing falsehood or
reckless disregard of the truth) standard as to public persons
Actual Economic Loss (Special Damages)
In NY, must list actual customers and business lost as a result
of the disparagement
In a majority of jurisdictions, a general drop-off of business
Product disparagement may also defame the producer of the product,
but courts will usually focus on the disparagement of product and
ignore the defamation.
* INJURIOUS FALSEHOOD
A non-defamatory statement which injures prospective economic
relationships (e.g., telling X’s customers that X is dead (non-
Elements same as slander of title
Actual Economic Loss (Special Damages)
A tort against personal rights rather than economic advantage,
although in some cases may have elements of the latter (Right of
Right of Privacy in NY
There is NO “common law” privacy right in NY; right is statutory,
under NY Civil Rights Law §§ 50, 51.
Deals solely with commercial misappropriation
Person must have been alive at the time of the misappropriation.
Natural persons ONLY
Misappropriation of “name, portrait or picture” ONLY (no
imitations of voice, &c.); has been broadly construed; e.g.,
Portrait or picture must be recognizable as P (even if only to
close personal friends, e.g., nude photo from rear) but has been
broadly construed; e.g., lookalike models.
Misappropriation must be for advertising (including “public
service announcement” purposes) or for trade purposes
Consent to use of name, portrait or picture must be in writing
Consent may be limited as to use, purpose or duration
An oral consent is insufficent, but may limit remedies if oral
consent obtained in good faith.
Damages for mental distress; statute provides for exemplary
damages for “knowing use” (meaning unclear).
* Right of Publicity vs. Invasion of Privacy
Right of Publicity: Right to exploit one’s own fame
Economic tort (vs. Invasion of Privacy as personal tort)
In NY is protected only to extent of CRL §§ 50, 51.
Invasion of Privacy: Right to be left alone
Personal tort (vs. Right of Publicity as economic tort)
In NY is protected only to extent of CRL §§ 50, 51.
Constitutional Limits on Misappropriation
Times actual malice applies to fictionalizations
Commercialization protected under 1st Amendment IF the product
being advertised itself is protected by the First Amendment (e.g.,
books, magazines) otherwise not (e.g., board games, safes).
* False Light Invasion of Privacy
Casting plaintiff in a false light which would outrage a person of
normal sensibilities (objective standard).
Subject to Times actual malice standard for media defendants and
negligence standard for private defendants.
News reports are protected, but if person’s likeness is
misappropriated and they are not connected with the story, they
may recover (e.g., Yout’s hanging out on corner photographed for
sweeps week special on gangs):
Person must show lack of connection with the story (“But yo onor,
I’m a altah boy, not no Savage Skull”)
Person must prove Times actual malice (“They like knew I wasn’ no
Savage Skull or they had like a reckless disregard for de trut’ in
saying I was, and shit”).
If person’s views are distorted (“Pat Buchanan sings Cole
Porter”), then there is a cause of action, subject to Times actual
malice for media defendants or negligence for private persons
Minor discrepancies in biographies of public persons are not
Fictionalizations with public persons in them are not actionable
so long as the persona is not distorted
Satire is OPINION and therefore protected absolutely (Falwell).
* Public Disclosure Right to Privacy
Rapidly disappearing, given First Amendment protections; since
Times actual malice is the standard, revelation of a true fact
about a public person cannot be in knowing or reckless disregard
of the truth, regardless of how information was obtained or
whether sole purpose of publication was to injure P (no recovery
for Intentional Infliction of Emotional Distress).
If the plaintiff is not a public figure and the matter is not one
of public concern there may be recovery OUTSIDE OF NY; In NY,
anything published is, ipso facto, a matter of public concern (the
Court of Appeals has obviously never seen A Current Affair).
Listening at keyholes.
NY Courts have held that CRL §§ 50, 51 have precluded an
Publication of material gotten by intrusion is protected (see
Even intrusion in the absence of publication has been held not to
give a cause of action.
If there is a trespass to land, cause of action may be cast as
such and recovery might be had.
* INTERFERENCE WITH CONTRACTUAL RELATIONS; PROSPECTIVE ADVANTAGE
Defendant must have:
Intentionally induced the breach of contract (if breaching party
is not induced to breach, but merely breaches and then contracts
with D, there is no cause of action against D);
Known of the existence of the contract; and
Cause actual economic harm to P (P must prove actual costs).
* Nature of the Contract
If contract is terminable at will (e.g., employment contract),
there is no cause of action for inducing party to exercise the
If contract is voidable, some jurisdictions allow recovery for D’s
inducing rescission of contract
NY does not allow recovery for either situation in the absence of
other wrongdoing (violence, fraud, economic duress).
Since this is a tort action, there may be greater recovery against
the inducing party than against the breaching party (Consequential
and punitive damages vs. Hadley damages).
Inducing breach of contract for a disinterested, worthy motive
(e.g., young girls sleeping with deformed dwarves).
Advice of counsel is priveleged
* Negligent Interference with Contract
In NY, if person is a forseeable P and has been injured in
property or person, recovery may be had for all damages, including
inability to receive contractual benefit.
Public Nuisance theory – see above.
Interference with Precontractual Negotiations
No cause of action in the absence of unlawful means
* Interference with Prospective Advantage
Interference with receipt of gift or legacy (“Pat, don’t will your
collection of Richard Nixon campaign posters to HIM, he has a
videotape of “Tongues Untied”).
* PRIMA FACIE TORT
* INTENTIONAL AND MALICIOUS INFLICTION OF ACTUAL TEMPORAL HARM
Otherwise lawful act
Intended to cause harm
Generally a prospective interference with economic advantage.
Requires disinterested malevolence; a desire to cause harm without
any admixture of self interest.
* BYRN’S LOOSE-END TORT
Elements of the “Loose-end” Tort
Intentional harm (caused by lawful or unlawful means and motivated
by a bad motive not necessarily disinterested malevolence)
Does not fail to be a traditional tort by lacking an element
required in such traditional tort for policy reasons.
First Party Misrepresentation
With fault (true negligence) or without fault (breach of warranty)
* Elements of Fraud/Deceit and Negligent Misrepresentation
Misrepresentation of a material fact
Fault (Intent or negligence)
Intent to cause other party to rely on statement
Reliance by other party on statement
What Actions can be Misrepresentation?
An out and out lie (Fraud/Deceit)
Willful Blindness (the “Ostrich theory”)
Misrepresenting degree of certainty (saying you know when you
Silence is not misrepresentation in the absence of:
Where D has prevented P from learning true state of affairs (right
Where silence represents a “half truth” (see below)
A fiduciary or other special relationship between P and D
Silence as to a matter which is at the heart of the transaction
(“Fraud in Treaty”); this is NOT recognized by NY
Half-truth is misrepresentation (e.g., “Are there termites?” “No
[there are wood-ants]“; Showing old financials without disclosing
deterioration of financial condition since prior year end)
* What is a “Material Misrepresentation”?
A material fact is one which, while not going to the heart of the
transaction (“Fraud in Factum”), is significant enough to affect
decision making of R-man.
Relationship Between P and D and Negligent Misrepresentation
Relationship beteen P and D must be such as to give P right to
rely on information provided by D;
such as to cause D to know P will rely on information provided by
Per R2d, the relationship must be in the course of a business or
professional relationship in which the D has a pecuniary interest.
Items 1. and 2. are based on the EXPECTATIONS of the parties based
in the mores of the trade.
Relationship must be closer than mere buyer and seller of data
(e.g., D is negligent in providing information on tickertape, P
relies and loses money); putting out data en masse is not grounds
for a relationship.
Exception to the business or trade rule has been made in NY for
false death announcement; information is such as to put D on
notice of serious consequences of negligence, recovery for
emotional distress allowed.
* Intent to Cause Reliance
Must be present for both fraud/deceit and negligent
Class of plaintiffs broader in the case of fraud/deceit than in
* Fraud; liability is limited to persons in a class to which the
receiver of information would be expected to pass it along (e.g.,
broker receives fraudulent financials, recovery is limited to
broker’s clients; persons receiving information from such clients
would not recover).
* Negligent Misrepresentation; No recovery would be allowed in the
absence of a near-privity experience (see below) (e.g., there
would be no recovery in the preceding hypo).
The Near Privity Experience
* Reliance by 3d Parties on Negligent Misrepresentation:
* Causing Economic Harm Only:
D must know of existence of P;
D must know of purposes for which P will be relying on
There must be a relationship “akin to privity of contract”
* Causing Physical Injury (“Good Housekeeping”):
Often found in cases in which there are warranties (even if
Must still have intent to cause reliance
Pecuniary interest, even if indirect, is present
In order for person disseminating information to be liable, must
be something which he can check (e.g., person publishing book on
edible mushrooms which misidentifies a poisonous species)
Persons holding themselves out as experts are more likely to be
liable (reliance is more reasonable).
Actual reliance is required for both fraud/deceit and negligent
Reliance must be as to a material fact (one which would influence
R-man in decision-making)
* Reliance must be justifiable under the circumstances:
Reliance on a fact which the P should have been able to discover
with ordinary diligence is not justifiable, based on the
sophistication of the P (idiots recover).
* Factual Problems:
Two parties misrepresent and both are relied on:
Both are liable
There is reliance on statement of facts AND independent
investigation of same facts:
If the investigation by the P was negligent, then he will be
deemed to be contributorily negligent and his recovery will be
On What Statements may the P Justifiably Rely?
* The following may not be relied on:
Statements of opinion (unless opinion of expert, see below, or an
opinion based in a misrepresentation of fact, or opinion is not
true opinion of stater)
Statements of prediction of future events
Statements of future intention of 3d parties (vs. statements of
own future intention, see below)
* Puffery and salesman’s talk
Statements where both parties are not experts and the facts are
equally open to each (e.g., two laymen drafting a contract, one
says “this language will accomplish our goal”, other layman is not
justified in relying)
Representations as to law (unless it is taken as a statement of
underlying fact, e.g., this house conforms to housing code being a
representation as to the house not the housing code)
* The following may relied on:
Statements of future actions of party making representation IF
UNTRUE AT THE TIME MADE (hard to prove) (vs. representation as to
future intentions of 3d parties, see above)
One party has superior knowledge or holds himself out as having
superior knowledge, reliance may be justified (vs. two laymen, see
Economic Harm recovery varies by jurisdiction:
Restitution (out of pocket costs)
Benefit of Bargain.
BREACH, BY ACT (INCLUDING WORDS AND DEEDS) OR OMISSION TO ACT
(INCLUDING FAILURE TO SPEAK WHEN LEGALLY REQUIRED), OF A LEGALLY
RECOGNIZED DUTY PROXIMATELY CAUSING LEGALLY COGNIZABLE HARM
Theories of Negligence – Andrews, Cardozo, Friendly
Forseeable Plaintiff: No, negligence to one is negligence to all.
Forseeable Harm: No, issue is proximate causation, not
Forseeable Plaintiff: Yes, plaintiff must be a person or member
of a class of persons as to whom duty was breached.
Forseeable Harm: Yes, harm must be forseeable to defendant at
time, not a fortuitous event proximately caused. “Negligence in
the air, so to speak, will not do.”
Friendly – the synthesis
Forseeable Plaintiff: Yes, plaintiff must be a person or member
of a class of persons to whom duty was breached.
Forseeable Harm: Yes and No, all proximately caused harm is
recoverable so long as it results from forces of the same general
type as negligently risked
Who is That Reasonable Man?
Reasonable man is neither extraordinarily prudent nor
extraordinarily careless; neither Felix not Oscar.
Reasonable man is the only acceptable standard; charges to jury
that “you are reasonable, what would you do”, or standards which
take into account stupidity of defendant (except in special
circumstances, e.g., infancy, idiocy (as plaintiff), old age) are
Reasonable man possesses the knowledge common in the community and
is under a duty to find out ordinary knowledge of which he is
Reasonable man has the physical characteristics of the defendant;
the reasonable blind man, the reasonable dwarf.
Reasonable man is never voluntarily intoxicated; a drunk person is
held to the standard of a sober one, however, if the accident
would have occurred even if sober, the P will not be liable.
Does Reasonable man forget; two views by jurisdiction:
Reasonable man never forgets as a matter of law; or
Reasonable man may forget if it is reasonable to have done so.
* Reasonable Professional
A person possessing or holding himself out as possessing special
skill is held to the standard of a reasonable practitioner of his
art in the community.
* The Reasonable Doctor; Malpractice
Doctor presumed to possess standard of skill of average member of
medical profession in the community (or of an average specialist
in the community if that is what he holds himself out to be); in
19th C. there were separate standards for cities and rural areas,
now medical knowledge is deemed to be uniform nationwide
Doctor must exercise best judgement even if creates a standard
higher than community practice
Doctor must have done something or failed to do something in
accordance with standards under 1. or 2.
The standards must be proven by affirmative evidence
Failure to conform to the standards must be proven not assumed and
must be proven by expert testimony UNLESS so gross a layman could
Differences in treatment pattern between expert witnesses and D
not relevant unless D’s treatment fell outside of community
* Customary Standards of Care
Custom may be persuasive as to the appropriate standard of care,
but is never dispositive; the real question is whether the custom
is one that a reasonable man would follow.
* If custom is unreasonable, P may establish that:
Alternative is possible
Burden of alternative is slight
Risk of custom is forseeable
Conformity to the newer stand is socially useful
Failure of D to follow its own internal procedures may be a breach
of the standard of care.
Safety codes promulgated by industry associations may be evidence
of a customary standard
* STATUTORY STANDARDS OF CARE – NEGLIGENCE PER SE
A failure to conform to certain standards set by statute (or
ordinance) may result in civil liability independent of the
criminal liability imposed by the statute. This is a matter of law
(assuming the violation is found as a matter of fact)
* Tests for Negligence Per Se
Right Statute: Is the statute a protective statute?
Right Defendant: Does the statute impose a duty on this
Right Plaintiff: Is the plaintiff a member of the class of
persons intended to be protected by the statute? The statute must
protect a class of individuals, NOT the community as a whole
Right Causation: Was the injury caused by the breach of the
statutory duty (e.g., mere practice of medicine without license IS
NOT sufficient without proof of negligence; the harm was not
caused merely by the breach)
Right Injury: Was the injury caused the injury against which
the statute was intended to protect?
* Negligence Per Se – How Dispositive is It?
Majority View: Violation of statute is negligence per se;
however, if conformity with the statute would cause greater risk
than its violation, statute is not truly violated.
NY view: same as above as to statutes; violation of ordinances is
merely evidence as to negligence
* Some Courts/R2d: Violation of statute creates a rebuttable
presumption of negligence; the violation may be excused if:
has no knowledge of occasion to comply
unable after due diligence to comply
emergency not of his own making
compliance is more risky than non-compliance
Minority View: Violation of statute is merely evidence as to
negligence (this is the NY view as to ordinances).
* Parties Immune from Negligence Per Se
United States is immune since negligence per se is strict
liability and the Federal Tort Claims Act (FTCA) only waived
liability for negligence and certain specified intentional torts
Infants are immune if it is found that they could not understand
* Contributory Negligence Per Se
Violation of statute is at least a partial defence to a negligence
claim UNLESS the statute was passed to protect a class of persons
deemed incapable of protecting itself and the plaintiff is a
member of such class (e.g., child labor laws).
* NY Dram Shop Act – a Legislatively Created Tort Cause of Action
Gives cause of action to 3d parties injured by a drunk against the
party who illegally sold or procured liquor for the drunk. This is
limited to sales of liquor; social hosts are not liable, however a
different statute imposes similar liability on persons
gratuitously furnishing liquor to minors
The drunk himself has no cause of action; his drinking companions
MAY, unless they took an active role in making him drunk (e.g.,
each party swapping rounds).
* DUTY TO ACT – NONFEASANCE
Generally, the failure to act, however morally culpable, is not a
source of tort liability; “the law of tort loves ACTION”.
* Duties to Act
Special Relationship (between P and D, P and 3d party, among P,
D and 3d party)
Peril created by D (negligently or no)
Statutory Duty (see Negligence Per Se)
Finish What You Started
D has started a course of action and has gone so far that to
cease would be not to refuse to become an instrument of good but
rather to be an instrument of harm
Assumption of Duty/Gratuitous Promises
* Special Relationships
Relationships are those in which one of the parties has power and
the other is helpless
Parent/Child (see above)
* Common Carrier – Innkeeper/Passenger – Guest
Duty to protect passenger/guest
Where employer sees employee coming into peril of which employee
is unaware and can warn and does not
Employee has been injured and rendered helpless and employer can
assist but does not
* Custodial Relationships (Teacher/Student; Guard/Prisoner)
* Parties may have a duty arising from:
Relationship to Tortfeasor
Relationship to Victim
Relationship to Both
Peril Created by Defendant
Innocently created peril
Negligently created peril
Instrumentality under the control of Defendant (even if
Plaintiff is contributorily negligent)
Invitee of Defendant (doubtful in NY)
P must be helpless
Where the peril is not negligently created by the defendant, he is
liable only for the worsening of the condition of the plaintiff
due to his failure to act, not for the original injury.
* Statutory Duty
See Negligence Per Se above
Finish What You Started – Moch
Segregation of Party from Other Sources of Aid (E.g., sending to
Causing Other Parties to “Rest on Their Oars” and Rely on You
Bringing Plaintiff into a Safe Harbor and then Letting Loose
Assumption of Duty/Gratuitous Promises
§ 90 does not exist in NY
Old rule: no liability for NONfeasance of a gratuitous promise
(although commencement of performance may impose liability)
Modern rule: may be liability for economic harm resulting from a
failure to insure
may be liability for physical harm resulting from reliance on a
* Medical Non-Feasance
Emergency Rooms: Formerly a great source of litigation; courts
would strain to find some assumption of duty or commencement of
Now, Federal statute requires that any emergency room of a
hospital receiving Medicaid funds must take all comers; as a
practical matter this means all hospitals
Doctors: Doctors have no legal duty (as opposed to ethical, &c.
duty) to assist all comers.
Doctors claimed to be discouraged from acting by the fear of
malpractice suits by persons they were assisting (although there
were few cases in which liability had ever been imposed). Result,
the NY Good Samaritan statute.
Good Samaritan Statute: Doctor who voluntarily treats accident
victim outside of office or hospital and without expectation of
payment is liable only for GROSS negligence
Duty to Warn: In California, a psychiatrist may have a duty to
warn forseeable victims of his patient even in the absence of a
relationship to the victim; this is NOT the rule in NY
* DUTIES ARISING FROM CONTRACT
Duties to Promisee
Remember always that the recovery in a tort suit is considerably
larger than in a contract suit; trend in NY is to bring both
Main question is “Did law impose a duty outside the bounds of the
Tort recovery allowed for PHYSICAL harm arising from MISfeasance
if, even in the absence of the contract, the act of the promisor
had gone so far as to make his failure to perform an active force
for evil rather than a mere failure to do good
Contract recovery only for NONfeasance (regardless of
Duties to 3d Parties
Rules the same as to parties in privity:
NONfeasance; no liability
Blackout cases: liability imposed solely where there was a
contract between the victim and ConEd (no liability for damage
resultant from loss of streetlights; contract was between the City
and ConEd; no recovery for tenant injured in common areas;
contract was between landlord and ConEd)
PHYSICAL harm from MISfeasance; may be liability
Duty breached must be that imposed by the contract even with
physical injury; if a guard is there to protect property of the
employer he will not be liable for failure to protect person; if
he is there to protect persons and fails to do so then there will
Duties in the absence of privity:
Manufacturer’s duty to forseeable end-user (MacPherson)
Repairman’s duty to forseeable user (elevator)
These apply only where the instrumentality is the DIRECT cause of
harm; if there is a supervening cause, NO liability
* DUTIES ARISING FROM OWNERSHIP OF LAND
Who is the “Landowner”?
For purposes of this discussion, not necessarily the owner qua
owner, may be a lessee; the person in possession and control; the
duties of the landowner are not delegable and thus he is liable
for risks caused even by independent contractors
Duties to Passersby
The landowner may be liable for certain injuries to persons
using the public way abutting his land
Naturally Occuring Conditions
Landowner is generally not liable for naturally occuring
conditions other than trees.
Urban areas: Liable for failure to ameliorate deadly trees (see,
Wizard of Oz) discoverable upon reasonable inspection
Rural areas: Formerly no duty to inspect (liable if actually knew
of deadly tree), now duty to inspect may be imposed if wooded
tract abuts busy highway
* Artificially Created Conditions
Landowner is liable to ameliorate artificially created dangerous
conditions discoverable by reasonable inspection within a
reasonable time after they arose
Even if condition does not affect the public way, if it is a
dangerous, non-apparent condtion immeditely bordering the public
way which might serve as a trap to an unwary straying traveller,
the landlord has a duty to ameliorate or warn.
A condition of this type which does not border the public way but
serves to lure the passerby deep onto the land and into danger
(e.g., a privalt road leading onto the land and dead ending in a
quarry), landlord is under a duty to ameliorate or warn
* Persons on the Land
Landowner has a duty to prevent persons on the land with his
permission from injuring passersby while on the land; the duty
terminates the instant the guest leaves the land.
Landowner’s Duties to Persons on the Land
Formerly there were all sorts of complicated rules varying by
status; now there is a single “reasonable landowner” standard in
NY. This is the only good news we got all year and we had to wait
until late April to get it. Typical.
Status may still be a factor as to the forseeability of plaintiff;
a trespasser in your backyard is forseeable a trespasser on your
roof might not be.
* Duty of Landowner to Inspect and Ameliorate
The duty of the landowner is to make reasonable inspection, to
discover dangers within a reasonable time and to correct dnagers
found within a reasonable time; the landowner is not an insurer
* Notice and Constructive Notice
A landowner is required to correct conditions of which he is
actually aware and conditions of such obviousness which have
persisted for such a time that he should have known of them
What is that Forseeable Risk?
* Unprecedented vs. Unforseeable
Where an event is unprecedented, it is not necessarily
unforseeable if the instrumentality is dangerous and the risk of
harm is grave enough to cause R-man to avoid
* Multiple Risks – R-man’s Choice
Where there are risks in all choices of action, and risks are
close, then any choice of action may be reasonable; this is
particularly true in emergencies where the time for decision is
* Weighing of Cost and Benefit – The Hand Test
If the likelihood of the risk times the gravity of the harm is
greater than the cost of prevention, then failure to ameliorate is
* RES IPSA LOQUITOR – THERE’S GOTTA BE A BREACH IN HERE SOMEPLACE
Res ipsa loquitor provides for the imposition of negligence
liability based on inferences drawm from circumstantial evidence;
this in essence results in a shift of the burden of proof from the
plaintiff to defendant. If an explanation is proven for the
injury, then the res ipsa loquitor theory evaporates
An event which would not, in common experience, occur without
someone being negligent
Thus, res ipsa loquitor does not apply to medical malpractice,
since it is outside of common experience; expert testimony is
The instrumentality causing the injury was under the exclusive
control of D
Now, even if there could have been 3d party interference with
the instrumentality, if it was unlikely, then the D still held
There can be such a thing as “team” exclusivity; the
instrumentality is under the control of the team and the team will
thus be held
No act of the plaintiff sufficient to cause the injury, including
any degree of dominion or control over the instrumentality
Causation-in-Fact: But for the P’s negligence, there could have
been no injury
If the injury would have occured even if the P had not been
negligent, then no recovery.
If the breach reduced substantially the possibility that
damage would not have occurred (e.g., failure to perform risky
surgery from which the patient would probably have died anyway),
there may be recovery.
* Proximate Cause:
Cardozo/Friendly: FORSEEABLE CONSEQUENCE
Cardozo: Is the damage the natural, forseeable and probable
result of the breach of duty?
Friendly: Even if the damage is not exactly what one would
expect, did it flow from the same forces negligently risked and is
it of the same general type as one would have forseen?
If the injury is not what one would expect from a breach of
that duty or if it is remote in time from that breach, then no
* Andrews: HINDSIGHT
Was there causation in fact of the injury (but for)?
Was the injury close in time and space to the breach?
Did the injury flow naturally and continuously from the
In either analysis, you take the plaintiff as you find him (thin
skull rule); even if injury to the particular plaintiff is greater
than expected, he still recovers
* Fire Rule: Old NY Rule: First house destroyed by negligently
set fire recovers, others destroyed by fire spreading from first
house do not
New NY Rule: First landowner’s property damaged by each
independent spread of the fire recovers, others destroyed by fire
spreading from first landowner’s property do not
* Supervening Acts
Natural Forces: Recovery allowed if the force was forseeable
(e.g., rotten flagpole knocked down by tornado in Kansas; P is
weakened and succumbs to disease)
* Acts of 3d Persons: Four tests (REMEMBER THESE, BYRN LOVES
Remote from the Negligent Act
Intervening negligent acts may cut off liability (if they pass
Intervening malicious acts will generally cut off liability
UNLESS the party negligently entrusts a dangerous instrumentality
to a person whom he knows to have a dangerous prediliction (act of
entrustment is negligent in and of itself).
* Acts of Plaintiff
Danger Invites Rescue: Even if plaintiff placed himself in way of
danger and was injured by a separate cause, if the defendant
negligently placed the party to be rescued in the dangerous
position, the plaintiff may recover on the theory that a rescuer
Additional injury to the original plaintiff (rescuee)
resulting from negligent rescue may be recovered (theory being
that negligent rescue is also forseeable); grossly negligent
rescue may not be recovered for against original defendant
(bearing in mind that the actions would have to be reasonable
under the emergency situation; a lower standard); recovery may be
had against grossly negligent rescuer
Danger invites REASONABLE rescue; rash rescue will cut off
liability (bearing in mind that the actions would have to be
reasonable under the emergency situation; a lower standard)
People invite rescue (no recovery for attempting to save
chattels; sorry Maynard)
* Suicide: General rule is a suicide resulting from an
irresistable impulse caused by insanity induced by the plaintiff’s
negligence is recoverable; in dicta courts have suggested that
there may be recovery even in the absence of irresistable impulse
* Contributory Negligence: Conduct of the plaintiff which is
unreasonable (or negligence per se) and causes or contributes to
his own injury.
Formerly an absolute defence; now comparative fault is used
Contributory negligence is NEVER a matter of law
Harm must result from precisely the risk taken (no Kinsman)
Last Clear Chance: Ameliorates the harsh effects of the common
law contributorily negligence rule; now probably irrelevant
P places self in position of danger
P cannot extricate self
D is aware of P’s plight
D can prevent P’s injury
D negligently fails to prevent P’s injury
* Assumption of the Risk: Various types:
D negligently creates a risk and P is aware of the risk and the
condition creating the risk and unreasonably and voluntarily
enters into the risk
Current approach is to use comparative fault
D creates a risk which cannot be ameliorated and breaches no duty
P is unaware of risk; liability for failure to warn
P is aware of risk; no liability (ne breach of duty)
Idiots and loonies can recover, even if their acts were
Police and firemen can never recover for a negligently created
Avoidable Consequences: P cannot recover for additional injuries
which could have been avoided by reasonable actions by him.
Factors used to determine if failure to undergo surgery is a
Risk of surgery
Chances of cure v. risk of surgery
Seatbelt Defense: NY will reduce reovery by portion of injury
which could have been avoided by wearing seatbelt.
* Mental Distress
Traditional View: Can recover for mental distress only if also
physically injured; mental distress was “parasitic” damages
Modern View: Can also recover for mental distress caused by a
“near miss” of physical harm if there are physical
symptoms/objective manifestations of injury.
In NY there is no recovery for mental distress caused by
destruction of chattels, no matter how great the sentimental value
* Exceptions to General Mental Distress Rule:
Mouse in the Mousse Cases: Sui generis group of cases in which
plaintiff is allowed to recover for adulterants (usually animals)
Sepulchre: See above
Third Party “Zone of Danger”: See above
Negligent Notice/Lack of Notice of Death
* Negligent Communications: Where misinformation is likely to
cause distress; distress is forseeable consequence (e.g., you must
have an abortion, your child is a mutant), mental distress is
Negligent Acts: E.g., failure to diagnose Tay-Sachs
* Multiple Tortfeasors
Joint and Several Liability is imposed when there are:
Independent concurrent causation causing one harm, each of them
being a substantial factor
Tortfeasors acting in concert, e.g, dragracers
* Master/Servant (imputed negligence)
Common duty, e.g., common owners of land who breach duty to
Successive tortfeasors ONLY IF the injuries cannot be separated
out (otherwise each liable for what he caused)
Under current NY law, a joint and several tortfeasor found less
than 50% responsible for the injury is jointly and severally
liable only for economic injuries and is severally liable for
other damages (pain and suffering, punitives)
* Contribution and Indemnfication Among Tortfeasors
Contribution: Party who paid all of the damages as a joint and
several tortfeasor sues other negligent parties for their fair
Not permitted at common law; now permitted for all torts, even
intentional/strict liability ones
GOL 15-108: A settlement between P and one D reduces amount which
can be recovered from other D by the greatest of:
amount stipulated in document
amount paid in settlement
first defendant’s equitable share of injury
Defendants who have settled cannot be impleaded; D who have
settled cannot bring actions against non-settling D’s for
* Indemnification: Party who is innocent of fault but paid on a
legal status basis (e.g., master under respondeat superior or
because he delegated a non-delegable duty), can recover all of the
amount paid from the guilty party.
Contractual Risk Shifting
Enforceable as to negligence, but strictly construed against the
* May be void as against public policy (e.g., employer/employee);
Is it a heavily regulated area?
Is it a service one has to use?
Totally unenforceable as to intentional or wilfull torts
By statute clauses must be in plain language and large type
May be unconscionable if there is unequal bargaining power
* Comparative Fault
NY has a pure comparative fault formula:
P’s Final Recovery = Total Recovery – (Total Recovery ´ [P's
Burden of Proof of P’s fault on D.
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