Tort Law New York Bar Exam Preparation Condensed Revision Notes
Law of Intentional Torts
Notes: 1. Extreme sensitivity of P should be ignored
- No incapacity defences (drunk, mentally ill, young children)
7 SPECIFIC INTENTIONAL TORTS
- BATTERY – 2 ELEMENTS
- D must commit harmful or offensive conduct
- Conduct must be with P’s Person
EG – Tap on shoulder =OK Stroke of someone’s hair = OFFENSIVE
- ASSAULT – 2 ELEMENTS
- D must place P in a reasonable apprehension (knowledge (doesn’t require fear)
- That apprehension must be of immediate battery (mostly display of weapon or shaking a fist in someone’s face)
- FALSE IMPRISONMENT
- D must commit an act of confinement or restraint (If you leave this room, I will shoot you)
- P must be confined in a bounded area (hidden, dangerous, disgusting or humiliating means of escape is not reasonable)
- INTENTIONAL INFLICTION OF MENTAL DISTRESS
- Outrageous conduct (Co-worker makes a crude sexual proposition to upset you- not actionable, unless repetitive conduct)
- Has to be severe emotional distress (no specific evidence that must be shown)
Comment: does not require the proof of an intentional act (all other torts do) reckless conduct sufficient.
Common carrier (Hotels, Transportation Company) insults are outrageous.
Insults are outrageous to fragile class – Children, Elderly People, and Pregnant Women.
- TRESPASS TO LAND
- D must commit an act of physical invasion (doesn’t have to do damage)
- Act of physical invasion must interfere with P’s possession of Land (could be tenant, air rights and sub-surface out to a reasonable distance)
- TRESPASS TO CHATTELS &
- D can deliberately damage the item
- D can interfere with possession of the item (take it away from you/steal it)
Choice of action depends on the amount of interference
Minimal- trespass to chattels
EG take a mobile and return it to you- trespass to chattels
EG take mobile and never return it- conversion
3 AFFIRMATIVE DEFENCES/ABSOLUTE DEFENCES
To all 7 Intentional torts. However only P with capacity can give valid consent
All consent has a scope- if D exceeds the scope of consent – D goes back to position of tort liability..
P with capacity- express consent- statement by P granting D permission to behave in a challenged fashion,(hit me in my stomach- working out- go on hit me- express consent).
Exception- express consent is disregarded/void if obtained through fraud or duress.
2 Implied Consent
- Implied Consent through Custom (EG Sports)
- Defendant’s reasonable interpretation of Plaintiff’s objective conduct and surrounding circumstances (EG Body Language)
3 PROTECTED PRIVILEGES
2 Defense of Others
3 Defence of Property - can never use deadly force.
D who claims privilege of this type has to show
- Proper timing - No revenge act now or you can’t act.
- D invoking the privilege must have a reasonable belief that the threat is genuine
- Use the amount of force necessary and no more
Before allowed to use deadly force, there is a duty to retreat (i.e. doesn’t apply to your home- castle doctrine).
2 NECESSITY DOCTRINES
Public necessity- situation where a D invades P’s property in an emergency to protect the community as a whole or a significant group of people. No Liability
Private Necessity- D will invade P’s property in an emergency to protect an interest of his own
1 Private necessity D remains liable for any damages actually done to P’s property
2 Private necessity D is never liable for nominal or punitive damages
3 As long as the emergency continues, P cannot throw the D off that property.
TORT OF DEFAMATION – 3 ELEMENTS
- A defamatory statement made by the D that specifically identifies the P- mere name calling not defamatory, identify by name, identify a group – small group all have a claim, large group no one gets a claim.
- Publication of that statement -enough for P to get to jury that D revealed the statement to one person.
- Damage-1 Libel case – defamatory statement that is written down or otherwise captured in a permanent format (taped, filmed, digital media) – damage presumed
- Slander – oral or spoken defamation
Some slander is considered harmful to reputation- slander per se – treated identically to libel for damage requirements –4 specific categories:
slander per se:
1 a defamatory statement relating to persons business or profession
2 Statement that P committed a crime of moral turpitude (i.e. serious crime with moral dimension)-
3 Statement imputing chastity to a woman
4 Statement that P suffers from a loathsome disease (1 leparcy, 2 venereal)
5 Imputing homosexuality to the P (P is gay)
Slander not per se – P obligated to prove damages (economic, insufficient to prove emotional)
Paul is cheating on his wife- verbal statement
Not defamatory on its face- requires additional evidence to make out its defamatory import
i.e. X goes to this HOTEL every weekend. (Hotel is a brothel- need extra info to make out defamatory import)
AFFIRMATIVE DEFENCES IN LAW OF DEFAMATION
- Consent (see above cross reference- express, implied)
- Truth say someone is embezzler and its true- off the hook
- Privileges – 2 kinds
A – Absolute Privilege:
I – Spouses who are communicating with each other II government officials (judicial branch – applies to lawyers and witnesses not limited to judge) III – Fair Reporting Privilege – media
B Qualified Privilege
1 Letters of Recommendation or Reference
2 Statements made to investigating police (detectives)
D must observe 2 requirements:
1 D must make the statement in good faith with a reasonable belief that it was accurate
2 Confine yourself to matters that are relevant- if inject extraneous material- lose privilege
- P must affirmatively prove Statement was false (ordinary defamation, truth is a defence)
- P must prove fault - statement was not made in good faith (not an honest mistake)
If P is a public figure (politician, celebrity) P must prove that D knew that statement was false or was totally reckless.
If P is a private figure, then only necessary to prove that statement was made negligently
2 PRIVACY CAUSE OF ACTION
2 Privacy Causes of Action -Privacy law governed by statutes- beyond scope of bar exam
Four historical common law causes of action
1 Appropriation - Using P’s name or picture for commercial purpose
News worthiness exception
Only privacy tort recognised in NY (recognised by statute)- no common law right to privacy – statute- equivalent to common law appropriation tort
2 Intrusion -Invasion of the P’s seclusion in a way highly offensive to an average person
Video surveillance, tapping phones, etc
3 False Light invasion of privacy - Widespread dissemination of major faults about the Plaintiff that would be offensive to an average person
Defamation – tell one person- published. This tort- tell a lot of people
Defamation – economic damages
False Light – emotional damage
4 Disclosure - Widespread dissemination of confidential information about the Plaintiff that would be highly offensive to an average person
defamation and false light – false information
Disclosure – true information – sensitive or intimate
Exceptions to this tort
1 News worthiness exception – broad interpretation
2 Underlying information has to be truly private – quasi-private will not work
DEFENCES TO 4 PRIVACY CAUSES OF ACTION
1 Consent (see above)
2 Defamation privileges (spouses, govt officers and qualified privileges) – defences to the last two of 4 privacy torts- false light and disclosure – can raise a privilege (see above)
FRAUD – 5 ELEMENTS
Multiple names: intentional misrepresentation, deceit- synonyms- fraud
No affirmative defences
5 elements test
1 The D must make a misrepresentation of fact
2 D must make the false statement intentionally or recklessly
3 Intent to induce reliance
4 Justifiable reliance
Compress 5 requirements- fraud- somebody lies deliberately to get you to buy something and you fell for it and you got screwed
Tort- misuse of judicial process- D files either a civil or criminal proceeding against the P- case terminated in favour of P
Cause of action- no probable cause & brought for improper motive and P suffered damage (damage almost always satisfied- expense and loss of time)- baseless law suit filed for illegitimate purpose.
NY – ONLY (Not Multi-state)
1 Prima Facie Tort
Intentional infliction of pecuniary harm without justification
1 Intent to do harm and no self-interest involved in the activity (disinterested malevolence)
Harm- sell products below cost to drive other businesses out- tort – prima facie tort
2 Inducing a breach of contract
1 Existence of a contract between P and a third party
2 knowledge of contract by D
3 Persuasion by the D directed at third party designed to get that party to abandon the contract
4 Got to work
5 Absence of privilege
When is inducement privileged? Generally, when there is a special or pre-existing relationship usually in the nature of trusted person (counsellor, advisor)
THEFT OF TRADE SECRETS - 2 ELEMENTS (NY Mainly)
1 Valid Trade secret (Provides business advantage to the owner, reasonable effort to keep it secret)
2 Taking by improper means (industrial spy)
NEGLIGENCE – 4 ELEMENTS
LAW OF NEGLIGENCE – DUTY
Obligation = duty to take risk reducing precautions, cannot get the chance to zero
To whom owe duty?
Towards the foreseeable victims. Don’t owe a duty to unforeseeable victims, who are outside of the zone of danger (e.g. Helen Palsgraf (train package case)
Who is in the zone of danger? Depends on the activity you are engaged in (eg car v nuclear weapons- radius)- correlates to the activity you are undertaking- predictable area where people can get hurt.
There is one kind of person who will recover who is owed a duty even if that P is outside the zone of danger – rescuer- not barred by Palsgraf principle- zone of danger drops away.
When there can be a special cause of action on behalf of unborn child/phoetus
1 D negligently impacts the body of a pregnant woman – In NY, if baby is born with deformity- baby gets a cause of action in its own name – if there is no birth or miscarriage, no cause of action on behalf of unborn child
2 Doctor misdiagnoses the potential of birth defects – NY courts allow parents to recover costs for caring for that child in excess of ordinary expenses for raising a kid- out of pocket expenses but not emotional damages
3 Doctor botches sterilisation – no cause of action
How much care exercise? (Standard of care)
Exercise the amount of care that would be exercised by a hypothetical reasonably prudent person acting under similar circumstances – PLAIN VANILLA STANDARD
We don’t take into account any shortcoming of defendant
Objective of standard of care- inflexible, same for every person in our society even crazy people, insane.
EXCEPTIONS - 6 that superseding/ trump reasonably prudent person standard when they govern
1 D has superior skill or knowledge- standard moved upwards and made more demanding- never moved downwards ( professional race car driver)
2 Physical characteristics of D if they are relevant – if D is blind and vision is relevant to case- reasonably blind prudent person)
- NEGLIGENCE CLAIMS AGAINST CHILDREN
A - A child under 5 owes the rest of the world 0 duty of care
B - Standard of care for 5 yo to 18yo- obligated to exercise the standard of care of hypothetical child of similar age, experience, intelligence acting under similar circumstances – subjective standard of care.
C -EXCEPTION -If a kid is engaged in adult activity, do not use this standard- go back to plain vanilla- reasonably prudent person .
- – NEGLIGENCE CLAIMS AGAINST PROFESSIONALS – MALPRACTICE CLAIMS
Professional Malpractice- his or her real world colleagues (open eyes and go look and see how others do it)- neither objective nor subjective- an empirical standard of care (go out and investigate)
P in malpractice case usually needs an expert witness- jury no idea what customary conduct is in similar communities
Geographic differences in the US- city v rural professionals – compare small town to small town and big city with big city
E - Informed consent duty- doctor has a duty to explain the risks of a medical procedure to a patient prior to undertaking that procedure
1 No duty to disclose commonly known risks – invasive procedure
2 Patient declines the disclosure
3 If disclosure would be harmful
- PREMISES LIABILITY- 4 KIND - somebody comes on a real estate and gets hurt by a dangerous object/ hazardous condition- sues possessor of real estate for negligence
- UNKNOWN TRESPASSER - No duty owed and unknown trespasser always loses the claim
- KNOWN TRESPASSER (INCLUDING ANTICIPATED) - duty to protect from any condition that meets a four part test:
1 Duty only arises when the condition is ARTIFICIAL
2 Condition has to be HIGHLY DANGEROUS
3 Condition must be CONCEALED from the trespasser
4 Condition KNOWN to Defendant (prior or advanced knowledge)
The duty to a known trespasser is a duty to protect only from manmade death traps.
- LICENSEES -Licensees enter land with PERMISSION but who do not confer an economic benefit on the possessor. The permission can be express or implied.
Duty to protect only from those hazards that meet a two part test:
1 Condition must be CONCEALED from the trespasser
2 Condition KNOWN to Defendant
Possessor must protect licensee from ALL KNOWN TRAPS (doesn’t matter if deadly or mild)
- INVITEE -Person who enter land or real estate with permission and either confer a BUSINESS BENEFIT on the possessor or land is held open to PUBLIC generally
Duty to protect only from those hazards that meet a two part test:
1 Hazard has to be CONCEALED
2 D KNEW about hazard or could have discovered through REASONABLE INSPECTION
Half of states abolished this scheme.
NY has abolished adherence to categories as a standard of duty- applies reasonably prudent person standard of care in premises liability.
3 SPECIAL SITUATIONS – MULTI STATE EXCEPTIONS
1 Fire-fighters and police officers- usually licensees- can never recover in negligence from an inherent risk of their job (law enforcement or firefighting). Assumption of risk- you know what you are getting into.
Rule applies if firefighter is suing his employer or his co-worker- otherwise firefighter exception abolished in NY
2 Child Trespassers – possessor of real estate owes a duty of reasonable prudence to protect TRESPASSING CHILDREN from ARTIFICIAL CONDITIONS on the land – plain vanilla reasonably prudent person. kid magnet- likely that there will be trespassing children- ATTRACTIVE NUISANCE DOCTRINE cost v. benefit - repairs
3 PREMISES LIABILITY - There are two alternative ways that that possessor can satisfy the duty
1 FIX THE PROBLEM (repair and make safe)
2 Give an ADEQUATE WARNING- fully satisfies your duty – changes concealed danger into obvious and open danger.
4 STATUTORY STANDARD OF CARE -Plaintiff will point to the requirements of a criminal statue and ask the court to treat those requirements as a specific duty standard for this case only
P want to borrow statute- borrow it- violation- negligence per se
2 Part Test for borrowing:
CLASS OF PERSON
CLASS OF RISK
2 EXCEPTIONS TO BORROWING STATUTE
1 If OBEYING a statute would be MORE DANGEROUS than violating
2 COMPLIANCE IMPOSSIBLE under the circumstances
5 DUTIES TO ACT AFFIRMATIVELY-No duty to act affirmatively
Law never tells you to undertake activity but if you do it, do it safely
1 No duty to rescue a person in peril:
1 Pre-existing relationship triggers a duty
Informal relationships- i.e. friends
2 If D caused the peril, D has duty to rescue
Exception 1 & 2 - Duty to act reasonably under the circumstances- don’t have to put your life in jeopardy
If Neither exception applies= no duty to rescue- but someone chooses to rescue- that person must act as reasonably prudent person and can be held liable if they screw up..
Good Samaritan Statute - only applies to nurses and doctors- insulate them from ordinary negligence if they choose to gratuitously rescue (veterinarians added)
6 NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS -D engages in negligent act but no physical trauma to D’s body. P mentally upset
1 Near miss cases
D’S NEGLIGENCE caused No trauma – put P into zone of physical danger
P has to prove that THIS CAUSED DISTRESS
2 Bystander case -Negligent D physically injures a third party
Serious injury to X- P mentally distressed that X has been hurt- emotion of sadness or grief:
1 P must be a close family member of individual injured AND
2 P must see the injury to third person as it happens
NY- bystander claim- you must have been in the zone of danger
3 Relationship Cases
Pre-existing business relationship – highly foreseeable that negligence by D will distress the P
LAW OF NEGLIGENCE- BREACH OF DUTY
1 P must identify the faulty behaviour that D engaged in
Doctrine of breach- raise ipsa loquiter (breach doctrine utilised by P who lack info what D did wrong). No evidence of breach- but must show:
1 accident is of a type normally associated with negligence
2 Accident of this type normally due to negligence of someone in D’s position
Look for control over the item and eliminate the non-negligent causes
Once established these two things- raise ipsa case- can get to jury
Not a guarantee to P’s success
LAW OF NEGLIGENCE – CAUSATION
Factual and proximate cause (separate) factual cause comes first
1 FACTUAL CAUSE- is a requirement that P establish a connection or linkage between the breach identified and harm suffered (link breach to injury/ bridge)
To establish factual causation, courts use FOR ONE D
BUT FOR test- but for the breach the P would be uninjured today. Test- parallel universe P still suffers harm that means the breach is not but for cause.
FOR MULTIPLE D’S
EVEN IF (SUBSTANTIAL FACTOR ANALYSIS TEST) - merged cause cases- 2 negligent Ds each of whom releases a destructive force in the world- breach considered to be substantial factor- capable of causing entire harm by itself eg. 2 polluters
UNASCERTAINABLE CAUSES -50/50 chance- Shifts the burden of proof to D- more likely than not- up to D to explain why their breach was not responsible event- if neither can do it- JOINTLY liable.
- PROXIMATE CAUSE - P has to convince us that liability is fair /foreseeable consequence of the breach.
Conduct has ripple effects to end of time- we need principle that will limit liability
Direct cause question: D commits breach and P suffers injury- injury is almost always foreseeable and liability is always fair and D is a proximate cause- P wins.
Note - assume foreseeability, unfairness and lack of proximate cause if what happened was freakish or bizarre
Indirect cause questions: D commits breach, after breach more stuff happens, P suffers full injury –
4 situations with precedent- (injury foreseeable, liability fair, D proximate cause):
1 intervening medical negligence (amputated leg scenario)
2 intervening negligent rescue
3 intervening protection or reaction forces
4 Subsequent disease or accident
LAW OF NEGLIGENCE – DAMAGES
Eggshell skull principle: once P established other elements of case- recovers for all damages suffered- even if surprisingly great in scope. You take your P as you find your P. Applies to every tort.
Equitable reliefs - No adequate remedy at law- money will not compensate on these facts
Injunction – 2 KIND -preliminary and permanent (negative: do not do x or mandatory: go out and undertake activity Y)
Preliminary injunctions- at beginning of case
2 part showing:
1 P must make a showing of likelihood of success on the merits
2 P must demonstrate irreparable injury
Requirements for injunction:
1 When money won’t compensate:
A D has no money
B Harm may be impossible to measure in monetary terms (case involves bailment)
C Tortuous conduct repetitive or ongoing
2 P have: property interest or protectable right at stake
3 Injunction must be enforceable
A the more complex the conduct the harder it will be to enforce (outside jurisdiction harder to enforce)
4 Balance of hardships must tip in P’s favour: the benefit to P from getting an injunction must outweigh the harm to D from being enjoined
DEFENCES TO INJUNCTION
1 Unclean hands (P must be free from blame)
2 Laches (prejudicial delay)
3 First Amendment: injunctions that prevent somebody from speaking- defamation, disclosure, false light
LAW OF NEGLIGENCE – AFFIRMATIVE DEFENCES
Traditional defences have been abolished in overwhelming majority of states
1 Contributory negligence
2 Assumption of the risk
NY has abolished both doctrines.
NY recognises doctrine of primary assumption of the risk- statement that we are dealing with reduced duty of care- relevant in athletic/sports cases (duty of care players owe to each other- not duty to behave as reasonably prudent person).
NY – failure to wear a seatbelt is not an affirmative defence, it is a mitigation of damage- cannot recover for enhanced damages associated with failure to wear a seatbelt.
AFFIRMATIVE DEFENCES IN NY
Comparative negligence- arises whenever the D proves that the P failed to exercise proper care for his own safety. “proper care”- reasonable prudence for safety or failure to observe a self-protected statute. % assigned to P and D to reflect their degree of fault. P’s recovery is reduced based on % of fault.
2 Kinds of comparative negligence in US
NY pure comparative negligence – strictly by %, P recovers a little bit of money even if assigned bulk of fault.
Modified or partial comparative negligence- P fault under 50% reduces recovery, fault over 50% bar to recovery.
STRICT LIABILITY - 3 CLAIMS
1 injuries caused by animals (less important)
Domesticated animals –- no strict liability
Multistate- can be held liable for negligence if relates to animal related injuries
NY- no negligence liability for injuries caused by domesticated animals.
Exception- if animal has vicious or dangerous propensities- can be held strictly liable.
NY only liable strictly of knowledge of vicious propensity.
Never strictly liable to a trespasser on your land- even if have vicious dog
Wild animals -You keep a wild animal, you are strictly liable
Abnormally dangerous activity – you are strictly liable
Two part test:
1 activity must be the one which cannot be made reasonably safe even when reasonable care is exercised.
2 the activity is not a matter of common usage in the community.
Product Liability -Consumer and industrial products.
Strict Liability elements:
1 D is a merchant, privity of contract not required for a strict liability case.
2 Product has to be defective
- b) design defect (another way it could have been built that meets a 3 part test: 1 safer than version actually marketed 2 got to be cost-effective 3 hypo design must be practical. Manufacturer fails to conform to govt regulation. 3) information defect product has residual risks that cannot be designed away because too expensive or getting rid of risk would destroy the product (product is defective unless it has adequate warnings).
Rule- design the safest product you can and warn me
3 Product not altered since it left the D’s hands- if product moved in ordinary channels (regular store) element is presumed and burden shifts to the D to disprove it
4 D is only liable if P was making a foreseeable use of the product- foreseeable use does not have to be a proper use- many misuses are foreseeable.
AFFIRMATIVE DEFENCES - for animals, abnormally dangerous activities and products:
Comparative responsibility- any P misconduct, inattention, foolishness will result in an assignment of percentage blame to P and a reduction in recovery
NUISANCE CLAIM -Courts- balance the interests – subjective area of law- D should be able to use property as see fit but the P should be free from oppression, misery and unreasonable interference.
Workers’ Compensation: NY state bar
Statutory insurance scheme, designed to be exclusive remedy of a covered employee who sustains a job-related injury. The Employee is barred from litigating employer or colleague (unless co-workers acts outside the scope of employment.
Employee injured on job can sue against any third parties
Independent contractor – can sue.
Teachers, part time household employees (cleaners or babysitters) and clergy (Their remedy- conventional litigation )
Employee injured due to own intoxication, will not get workers comp
Employee intentionally tried to injure himself or others
Injured during voluntary off-duty athletic activity
Covered under the scheme
1 Illegal activity can be considered within scope of employment (theft of tiles from roof, guy fell)
2 Horseplay cases – screw around at work- related on the job (more common in blue collar setting) – some cases not covered (dough machine, hide and seek, crushed to death, out of work hours, not covered).
2/3 of average weekly wage (don’t have to buy lunch, pay commuting expenses, etc.)
GRAB BAG TOPICS
1 Vicarious Liability – someone goes out and commits a tort (active tortfeasor) and victim will sue active tortfeasor and second defendant (passive party)- vic liability flows from relationship a) employer-employee (the employee will be active tortfeasor, the employer is vicariously liable provided it was committed within the scope of employment) employer not liable for intentional torts
EXCEPTIONS 1 (job- use of force- misuse of force within scope of employment- vicarious liability- nightclub bouncer- nightclub will be vicariously liable),
EXCEPTION 2 if intentional tort is done with a misguided effort to advance the employers purposes- grocery store
EXCEPTION 3 Independent contractor hiring party liable to invitees on their
EXCEPTION 4 automobile owner- automobile driver : not liable for torts committed by drivers- EXCEPTIONS: general- errand – vicarious liability (2 relationships, owner and driver, principal and agent)
NY – permissive use state- vicarious liability for anyone driving your car with permission
EXCEPTION 5 parents- kids, parents not liable for torts of children.
Can I hold this D directly liable for his conduct?
Negligence – vicarious liability not needed.
Negligent entrustment (giving drunk person keys to car)
Direct theories of liability
Out of pocket D, looks at other D, the jury assigns % to each D
EXCEPTIONS: out of pocket party gets full reimbursement – indemnification a) vicariously liable D gets indemnification from active.
3 Loss of Consortium
Victim of tort married- uninjured spouse- separate cause of action in his or her name – to allow recovery of 3 components of damage : 1) loss of household services 2) loss of society (companionship, friendship), 3) loss of sex.
NO FAULT INSURANCE
1 In NY state car insurance coverage is mandatory and must include no fault component
2 No fault insurance only relates to personal injury (doesn’t relate to property damage)
1 when can someone get no fault insurance? Car accident- could be multiple people in the car- any passenger, pedestrian hit have a claim against insurance- 2 cars collision- people in respective cars look to their policies- recover whether or not guilty of negligence.
Who is denied no fault insurance?
1 Drunk drivers
2 Drag racers
3 car thieves or other fleeing felons
What do you get?
1 Medical expenses
2 lost wages (capped to $2, 000 a month, $24,000 a year, continues for 3 years, $25 a day for miscellaneous expenses, nothing for pain and suffering, can’t get more than policy limit).
NY no fault insurance are portable- i.e. can use it anywhere
2 When are you still permitted in addition to file a negligence claim (outside no fault insurance bar on litigation)
1 more than basic economic loss, If more than $50 k can bring lawsuit - still gets insurance benefits- they will be deducted from final award
2 serious injury 1) death, 2) dismemberment (losing a limb or amputation), 3) significant disfigurement , 4) fracture, 5) loss of phoetus, 6) permanent loss of a bodily organ 7) consequential limitation on the use of a limb or an organ (sustained an injury so profound, serious limitation on its use), 8) can’t perform normal activities (90 days of disability)
If more than basic economic loss or serious injury – privilege to sue does you good if can establish other party and prove that that party was negligent.
Abandonment- owner has given up the possession of an item with intent to give up title and control.
Lost Property- owner accidentally parted with possession but no intention to relinquish control or ownership.
Donor & Donee
2 different kind of gifts:
- A gift made in ordinary course/ while you are living- inter vivos gift
1 Donor must have donative intent (intent to pass title)- inferred from surrounding circumstances
2 Acceptance of the gift by the donee but silence counts as valid acceptance (issue if donee affirmatively declines the gift)
3 Valid delivery of the item (donor must turn over the possession of the item or something representative of it)
Four Delivery Situations:
1 First party cheque (a cheque written by donor and paid to the order of donee) – delivered when cheque is cashed- the donor can stop the payment
2 Third Party Cheque is a cheque that donor has in their possession (donor received) donor endorses it to donee- delivered as soon as cheque is handed over
3 Stock certificates- delivered when certificate handed over- transfer on corporate books not required
4 Agents- intermediary parties- transfer of gift item- item is considered delivered if it is turned over to the agent of the doner.
- Other Gift- Causa Mortis
Gift in contemplation of death
Donor thinks he is about to die and thats the motive to give away the object
Courts require imminent risk of death in order for there to be a gift of causa mortis
Gift is only valid if donor dies but if donor survives it is not a valid gift- gift not valid if donee dies first
A Lien- security device that is used to enforce the payment of a debt
To create a lien there must be:
1 debt for services
2 The debtor must retain title to the object
3 Creditor must have possession (dry cleaner)
When is lien released or terminated?
2 kinds of liens:
General lien- gives creditor right to retain all items of property of the debtor as security for a general balance due
Special lien- lien on particular item where services have been performed on that item
EG auto mechanic- fixed car- lien on car- if gives you back car, gives up the lien, doesn’t give up debt.
Whenever a person of personal property gives that property voluntarily to somebody else for a limited time and for a limited purpose
Common- lending something to somebody else -EG coat at a restaurant- hang
Bailor – owner
Bailee takes physical possession
When can baillee be held liable for damage or theft to item?
Has bailment been created & whats the scope of liability?
Stuff in trunk- if things are typical customarily found there- bailment (spare tyre and jack) if item is not typical- no bailment unless affirmatively told them about it and they agreed to take it- eg gold bullion, case of diamonds
Safe deposit boxes- bank bailee of everything in deposit box- bank liable for missing or damaged stuff
Garages- if garage requires you to turn over the key- bailment over a car, but if park and lock- renting a space, not bailment- garage doesn’t owe a duty of care
Coat Cheques- defined by statute- whether you pay a fee and declared a valuation
If do not pay a fee, maximum liability of coat, if fee paid and valuation declared- liability higher