《纽约州律师考试证据法、侵权法和宪法笔记》由会员分享，可在线阅读，更多相关《纽约州律师考试证据法、侵权法和宪法笔记（60页珍藏版）》请在金锄头文库上搜索。
1、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) commo
2、n carriers and innkeepers3 ? Defective product4. joint and several liabilitya) contributory negligenceb) comparative negligencePoi nts men ti oned in Practice MBE1. Negligencea) Most negligence cases arc decided by jury and of course debatableb) The winning pick may often be only 75% reasonable-so d
3、ont 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 imprisonmenta) defense of property: reasonable non-deadly force to protect proper
4、tyb) Shoplifter: reasonable belief, reasonable matter, reasonable time* if 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 conversi on.6. Trespass to landa) Intent is required7. necess
5、itya) public (no recovery)b) private (for oneself or a relatively small group, take anothers hose to put out fire of Ds house- damages will be recovered)8. intentional infliction of emotional distressa) intent requirement: intent or reckless will be sufficientb) outrageous, severe emotional distress
6、, causation, damages9. 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) breachA Negligence per se (violation of statute) requirements: (i) P is class of person to be pro
7、tected, (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
8、the harm, doctor would not have duty to disclose this.13. landownera) 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) determi
9、ne the tortb) recall the elements of the tortc) check the fact if the evidence have been satisfied?A 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 dutyA For directed verdict moved by P (very rare), it should
10、be negligence per sc and no issue of proximate cause15. product liabilitiesa) manufacturers, wholesaler, retailer, and maybe commercial lessors (sometimes, but not financial institutions)A one-time seller is not covered by strict liability-ncgligcncc must be established ?b) Unreasonable dangerous de
11、fective condition exists when the goods are put into distribution by the relevant merchant.c) Defective product causes the injuryd) DefenseA Misuse of product in an unreasonable mannerA Assumption of risk is also a defenseknowledge of the risk is a prerequisite?16. contributory negligence and assump
12、tion 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
13、: 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 cas
14、e, the damages must be pecuniary damag?es Even where the defendant 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 occu
15、r if the trespasser remains on the land after his right of entry lapses. Res ipsa loquitur never helps P win a caseTit 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
16、) substantial certainty-tortious battery ? In action against 3rd party, parentis 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 seriousAchild may argue so. A person cannot use force to protect his house if the force may cause death or
