纽约州律师考试证据法、侵权法和宪法笔记.doc

Torts (34 Qs)Mini Review:1. 6 intentional torts: battery, assault, false imprisonment, intentional infliction of emotional distress, trespass to land/chattel2. negligencea) reasonable person standardb) landowner duty: (i) trespass, (ii) children, (iii) licensee, (iv) invitee)c) professionalsd) common carriers and innkeepers3. Defective product4. joint and several liabilitya) contributory negligenceb) comparative negligencePoints mentioned in Practice MBE1. Negligencea) Most negligence cases are decided by jury and of course debatable.b) The winning pick may often be only 75% reasonableso dont be panic.c)2. Always wrong choice: “D is not liable because someone else caused the injury” 3. assault: intentional action by putting another in reasonable apprehension of harmful or offensive bodily contact4. false imprisonment a) defense of property: reasonable non-deadly force to protect propertyb) Shoplifter: reasonable belief, reasonable matter, reasonable timeif humiliated, this can be recovered in a shoplifting case.5. conversion: a) The fair market value of the chattel converted is computed as of the time and place of the conversion.6. Trespass to landa) Intent is required7. necessitya) public (no recovery)b) private (for oneself or a relatively small group, take anothers hose to put out fire of Ds housedamages will be recovered)8. intentional infliction of emotional distressa) intent requirement: intent or reckless will be sufficientb) outrageous, severe emotional distress, causation, damages 9. In negligence, landowner owes no duty to trespasser with respect to dangerous conditions on the land.10. Deadly force can never be used to protect property.11. negligencea) dutyb) breachD Negligence per se (violation of statute) requirements: (i) P is class of person to be protected, (ii) harm is what the statute intends to avoid. If P cannot use this shortcut, P may still win the case by other means.c) causationd) damages12. Doctor has a sub-duty to disclose/warn the patient the seriousness of potential consequence of a treatmenta) If a reasonable patient would agree to the harm, doctor would not have duty to disclose this.13. landowner a) trespasser: manmade known deathtrapb) licensee: manmade known trapc) invitee: all knowable trap (even if the injured is only a window shopper) reasonable inspection is required14. directed verdict (always torts question)a) determine the tortb) recall the elements of the tortc) check the fact if the evidence have been satisfied.D For directed verdict moved by D, denied if there is res ipsa loquitur and granted if there is no res ipsa loquitur or any other breach of dutyD For directed verdict moved by P (very rare), it should be negligence per se and no issue of proximate cause15. product liabilitiesa) manufacturers, wholesaler, retailer, and maybe commercial lessors (sometimes, but not financial institutions)D one-time seller is not covered by strict liabilitynegligence must be established. b) Unreasonable dangerous defective condition exists when the goods are put into distribution by the relevant merchant.c) Defective product causes the injuryd) DefenseD Misuse of product in an unreasonable mannerD Assumption of risk is also a defenseknowledge of the risk is a prerequisite.16. contributory negligence and assumption of risk (To further check), pure comparative negligence, modified comparative negligence.17. strict liability for Ultrahazardous:a) risk of severe harmb) activity cannot be performed in complete safety no mater how much care used.c) Uncommonly engaged in that communityd) Causation18. defamation: defamatory statement, of or concerning P, publication, damagespublic figure (Falsity plus malice) public concern (falsity plus negligence)Points noted in practice: joint and several liability: where the injury is indivisible or the tortfeasors acted in concert. In intentional misrepresentation case, the damages must be pecuniary damages. Even where the defendants conduct is wanton or reckless (but not intentional), plaintiffs negligence should be still counted in calculating the pure, partial or assumption of risk. Recapture of chattel cannot use force unless in hot pursuit. Trespass may occur if the trespasser remains on the land after his right of entry lapses. Res ipsa loquitur never helps P win a caseit only helps P get to the jury Battery: (i) intent to commit an offensive or harmful contact; (ii) intent to commit an assault, but resulting in offensive or harmful contact; and (iii) substantial certaintytortious battery. In action against 3rd party, parents negligence may not be imputed to the child. E.g., a child is injured and the parent did not take him for medical treatment and injury more seriouschild may argue so. A person cannot use force to protect his house if the force may cause death or serious bodily harm, e.g., spring gun, vicious dog, traps. Damages are not reduced or mitigated by reason of benefits received by the P from other sources, such as health insurance. Criminal acts and intentional torts of 3rd person are foreseeable independent intervening forces if Ds negligence creates a foreseeable risk that such bad acts would occur. Re defamation: if the conversation b/w P and D is overheard by a 3rd person, publication may exist if such overhearing is reasonably foreseeable by P. The third party must understand what D conveyed. If a parent has notice of the dangerous tendency of his/her child, the parent may be liable accordingly. In negligence case, compliance with statutory requirements is persuasive evidence for Ds due care, though NOT conclusive; on the other hand, violation (class of person and class of risk) will be conclusive presumption evidence that D breached his duty of care. In defamation, a public figure P may recover PRESUMED Damages under common law rules if D made the defamation with malice. NY has eliminated the defense of intra-family immunity. However, a parent does not owe to his child due care in supervising the childs day-to-day activities. Therefore, a child cannot sue his parents for negligent supervision. Accordingly, a third party is barred to sue the parent for negligent supervision where the parent sued the third party for negligent injury of his child. Unless the arrest is lawful, the detainee may recover for false imprisonment. Police may reasonably believe that a felony committed and the person he arrested did it, though this could be a mistake. In comparison, a private citizen cannot arrest unless the felony ACTUALLY occurred and he reasonably believed that the arrested is the one. Shopkeeper has a limited privilege to question and “detain” a customer if they reasonably believe that the customer is a shoplifter. However, a 30 minutes detention would not be reasonable. On the other hand, no mistake regarding defendants right to recapture the chattels or enter on the land is allowed. A joint venture requires 4 elements: (i) agreement among members, (ii) common purpose, (iii) community of pecuniary interest in that purpose, and (iv) equal right of control. Each member acts as an agent or servant of the other and act of any one within the scope of the enterprise is to be charged vicariously against the rest. Sovereign immunity does not extend to proprietary functions (activities similar to those of private corporations). Also, construction of sidewalk is deemed a non-delegable duties and thus landlord is vicariously liable for the negligence of contractors. A rescuer is owed a duty of care by the party which causes the original danger as long as he does not act in a wanton or willful manner. Where an agent or bailee is authorized to make some use of a chattel, but exceeds or departs from what is permitted, any major and serious departure will be held to be conversion (here, it is essential to assess how harmful the departure is), while minor ones which do no harm will not. E.g., failure to return a car on time results in a theftconversion; detour results in collisionconversion. Res ipsa loquitur: while P must prove that the accident would not occur absent a negligence, the exclusive control of D of the instrumentality is essential. Thus, flour thrown from a warehouse makes the owner liable, but chair thrown from a hotel does not make the hotel liable. Violation of traffic rules results in collision of fire engine and indirectly caused delay of the fire engine in putting out fireliable for the aggravated part of the fire. Persistent and unwanted phone calls can be deemed intrusion of seclusion and solitude, even if P is a merchant. A possessor of wild animals is strictly liable for injuries to others, which result from the animals normally dangerous propensities. Unit rule: in modified comparative negligence jurisdiction, such rule allows P to recover from multiple Ds even if the negligence of P is equal or greater than negligence of each D but less than the total negligence of them. To assess whether interference is nuisance, the repetitiveness and continuousness is a factor to be considered, though such factor is not decisive. Emergency: One who is confronted with an emergency is not to be held to the standard of conduct normally applied to one who is in no such situation. One cannot be held to be the same conduct as one who has had full opportunity to reflect (even though his decision turned out to be wrong). Master-servant: a master is under a duty to exercise reasonable care so to control his servant while acting outside the scope of his employment as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if (a) the servant is upon the premises in possession of the master and (b) the master (i) knows or has reason to know that he has the ability to control his servant, and (ii) knows or should know of the necessity and opportunity for exercising such control. Thus, if the master does not know and has no reason to know such possibility (e.g., the servant never did such matters before), he is very likely not subject to liability due to the above rule. Strict liability for liquor producer: by marketing his product for use and consumption, he has undertaken and assumed a special responsibility toward members of the consuming public who may be injured by it even though there is no showing of negligence on the part of the seller. Invasion upon Ps solitude and seclusion: this tort applies not only to the tort against P at home or other quarters (such quarter can be any place where P reasonable needs privacy, e.g., hospital ward, dressing room, etc.), shopping bag, but also eavesdropping on private conversations, peering, persistent and unwanted phone calls.I. Intentional Torts A. Prima Facie Case1. Act by D a volitional movement by D2. Intent can be eithera. Specific the goal in acting is to bring about specific consequences, ORb. General actor knows with substantial certainty that these consequences will resultc. Reckless generally does not suffice, except for in the case of intentional infliction of emotion distress3. Causation need only Ds conduct that is a substantial factor4. No requirement on damages, except for intentional infliction of emotional distress (severe distress)5. Transferred intent doctrine applies to: battery, assault, false imprisonment, trespass to land, trespass to chattel. A tort committed against one person but instead:a. different tort against that personb. same tort against different personc. different tort against different person - NOTE: Hypersensitivity of P is NEVER taken into account in deciding if P has a valid claim - NOTE: Every D is capable of intent (D has NO incapacity defenses for intentional torts) a drunk can commit battery, a 5 year old can commit false imprisonmentB. Intentional Torts1. Battery harmful or offensive contact to Ps person (harm need not be shown)a. Offensive (Unpermitted) contact means P has not consented (consent is implied for ordinary contacts of everyday life)(i) It is offense if average people dont permit it (hypersensitive people dont matter, must be avg person).b. Ps person:(i) Includes everything connected to P (e.g. clothing, carrying a briefcase, kick your dog on a leash)(ii) Need not involve Ds touching (direct or indirect touching)(iii) Does not have to result in instantaneous harm (poison lunch at 9pm, you eat it at noon)2. Assault reasonable apprehension of an immediate battery (i.e., harmful or offensive contact to Ps person)a. Apprehension NOT the same as fear (i) Synonymous with knowledge or awareness apparent ability sufficient(ii) Unloaded gun or D lacks ability to bring attack to function D threatens but cannot consummate the act - depends on Ps knowledge put yourself in Ps shoes to decide it is an assault. If P knows he cant be touched, it is not an assault. If P doesnt know, it is an assault.b. Immediate battery threat must be specific & immediate(i) Mere words lack the immediacy mere words are insufficient without overt physical conduct. Pure verbal threat is not an assault (need some overt action shake a fist, pull out a gun).(ii) But, words can negate the threat (e.g. words in conditional or future tense) (I will beat you up 8 hours from now - is not an assault)3. False Imprisonment an act or omission on the part of D that confines or restrains P to a bounded area D commits an act of restraint (threats are sufficient) and there must be confinement in a bounded area.a. Act for confinement or restraint to omission resulting into such consequence(i) Physical barriers, physical force, threats of force, invalid use of legal authority, failure to release or omission (in case of preexisting duty to help people move around); AND(ii) Ps awareness of confinement or harm arising from the confinementb. Result is confinement in bounded area must be locked in a bounded area(i) Exclusion (lock out, denying admission) is NOT false imprisonment(ii) NO reasonable means of escape reasonably known by P (must be reasonable and reasonably discoverablecannot be dangerous, hidden, disgusting).NOTE: (i) Timing irrelevant generally(ii) confinement of shoplifter owner is not liable if there is reasonable (i) suspicion, (ii) means of detention, and (iii) amount of time2. Intentional infliction of emotional distress D engages in extreme & outrageous conduct, & P suffers severe distress as a consequence (only intentional tort requiring damages)a. Extreme & outrageous exceeds all bounds of decency tolerated in a civilized society; mere insults are NOT enough; need plus factors (hallmarks of outrageousness):(i) Continuous & repetitive conduct (e.g. bill collection calls)(ii) Committed by certain Ds common carrier (transportation companies) or inn-keeper (hotels). They have a historic duty to be nice to their patrons (iii) Directed toward certain Ps member of a fragile class of persons; e.g. young children, elderly, pregnant women (you have to know she is pregnant)(iv) Exploitation of a known sensitivity if you know of someones hypersensitivity (phobia) in advance, its outrageous to target Ps weak spotb. Must be Severe emotional distress need not be manifested in physical symptoms, does not require that P sought medical care or is taking medicationdetermined by jury intentional infliction of emotional distress is the only intentional tort towards person requires damages. NY DistinctionsDs deliberate mishandling of a corpse that causes distress to someone else3. Trespass to Land intentional physical invasion of Ps real propertya. Physical invasion 2 ways:(i) Entering the property (a) No requirement that D be aware that hes on someone elses land, but intent of entry required (intent can be lacking if you end up on the land against your will i.e. you collapse on someones front lawn from a seizure) (b) this constitutes 98% of real-life cases & is rarely tested(ii) D propels physical objects onto the land(a) Ex: A shoves B onto the land of C, A committed trespass to land, B is only a physical object here?(b) negative implication of this rule is that a non-physical invasion doesnt count (e.g. light, sound, smell but can be an action for nuisance)b. Land (i) Anyone with actual or constructive possession of the land may maintain this action(ii) includes air above & the soil below (out to a reasonable distance) 4. Trespass to chattels, & conversion civil remedies for vandalism (damaging, intermeddling) & theft (dispossession) of personal (moveable) propertyIntentional invasions of personal property (everything you own except your land and buildings)a. Interference either (i) physical damage, or (ii) deprive owner of possessionb. Difference degree of injury + different remedy(i) Trespass to chattels (a) Harm to Ps interests is slight & merely interferes with Ps right of possession (keying a car)(b) Remedy actual damages (cost of repair or rental)(ii) Conversion You break it, you bought it: an act by D that interferes with Ps right of possession in a chattel; the interference is so serious that it warrants requiring defendant to pay the chattels full value. Acts of conversion include: wrongful acquisition (theft), wrongful transfer, wrongful detention, and substantially changing, severely damaging, or misusing a chattel. (a) Harm to Ps interests is great that it requires D to pay the chattels full value (smash car w sledgehammer)(b) Remedy treated like a forced sale of the chattel - Full fair marke