Ny Bar Exam - Torts

Front 1

What incapacity defenses exist for intentional torts?

Back 1

2. There are NO incapacity defenses when we deal with intentional torts – i.e., a child / drunk / insane person CAN commit an intentional tort; influence of drugs etc. NEVER fall for an answer suggesting they have no capacity.

Front 2

What is the intent required for Intentional torts?

Back 2

the defendant is acting deliberately with the desire to produce the result or D knows with substantial certainty the consequences of his action.

Front 3

what are the elements of Battery?

Back 3

Intent plus harmful or OFFENSIVE contact with P's person.

Front 4

what is offensive contact for battery?

Back 4

UNPERMITTED by NORMAL people.
- Tapping on the shoulder is OK.
- Un-permitted touching in a sense of sexual harassment (i.e. sexually oriented touching) is NOT ok. Even stroking someone's hair is NOT ok b/c it is not a normal thing that is done b/w strangers.

Front 5

if someone hurts a dog can that be a battery against the P walking the dog with a leash?

Back 5

Yes. P's person is NOT limited to P's body; it includes anything connected to the plaintiff such as a purse, a dog, a car

Front 6

what are the elements of assault?

Back 6

Intent + 2. Defendant puts plaintiff in apprehension ("knowledge" NOT "fear") – i.e. D puts P in knowledge or awareness that he is soon going to be touched in a harmful or offensive way.
AND an immediate battery. ie -threatening physical CONDUCT.
- Physical conduct IS anything that make the threat real and immediate, e.g. a weapon – gun, bat; shaking one's fist in someone's face.

Front 7

Can D be assaulted if P points an empty gun at him?

Back 7

Yes - if D did not know it was empty.

Front 8

can a Pure verbal threat be an assault?

Back 8

No. Words alone LACK the necessary immediacy (mere words are not considered immediate enough) and therefore are NOT an assault. Pure verbal threat CANNOT be an assault.
- In order to have immediacy you need threatening physical conduct.
- Physical conduct IS anything that make the threat real and immediate, e.g. a weapon – gun, bat; shaking one's fist in someone's face.

Front 9

in assault, can words that accompany the conduct negate immediacy?

Back 9

yes - eg
i. Conditional words – "if you weren't my best friend /if you weren't wearing your BAR/Bri badge I'd hit you". The words reveal that I have no intention of touching you.
ii. Words in the future tense – the threat of battery is not immediate. A threat for future battery is not encompassed by this tort.

Front 10

what are the elements of False Imprisonment?

Back 10

Intent +
D must commit an act of restraint
AND The result must be confinement of the P in a bounded area

Front 11

can an omission can be an act of restraint for false imprisonment?

Back 11

Yes - IF D has a pre-existing duty or obligation to facilitate or assist P's movement (e.g., the failure of an attendant to get a wheelchair of a handicapped passenger waiting to get off a plane)

Front 12

can P be RESTRAINED the P doesnt KNOW about the confinement OR is not HARMED by it?

Back 12

No.

Front 13

can someone commit false imprisonment by keeping somebody outside of a place?

Back 13

No - is NOT confinement in a bounded area and thus not a false imprisonment (e.g. – the bouncer in a club and the un-cool guest example)

Front 14

Is there confinement in a bounded area if there is a reasonable means of escape that the P could reasonably discover?

Back 14

No. Reasonably means that the P doesn't have to subject herself to injury, humiliation etc. in order to escape.

Front 15

when someone is about to leave a store and the store security ask her to stay b/c he suspects she is a shoplifter – is this false imprisonment?

Back 15

There is an Affirmative defense = the shop keeper privilege – applies IF the demand is reasonable, meaning
(1) the security guard has a reasonable suspicion that the patron is suspect of shoplifting; AND
(2) there must be a reasonable means of detention (polite and so forth); AND
(3) can only do it for a reasonable amount of time.
When all three elements of the defense apply the store has an affirmative defense. Also applies to libraries.

Front 16

what are the three requirements for the shopkeeper defense to false imprisonment?

Back 16

the demand to stay in the store must be REASONABLE, meaning:
(1) the security guard has a reasonable suspicion that the patron is suspect of shoplifting; AND
(2) there must be a reasonable means of detention (polite and so forth); AND
(3) can only do it for a reasonable amount of time. When all three elements of the defense apply the store has an affirmative defense. Also applies to libraries.

Front 17

what are the elements of the tort of intentional infliction of mental/emotional distress?

Back 17

1. Intent - reckelss or deliberate
2. D engages in an OUTRAGEOUS CONDUCT = a conduct that "exceeds all bounds of decency, tolerated in a civilized society".
3. The P suffers a severe emotional distress as a consequence
P has to be deeply upset, BUT it doesn't require any particular form, doesn't necessitate medication or psychiatric treatment.

Front 18

Can conduct consisting solely of terrible verbal insults be sufficient to commit the tort of intentional infliction of mental/emotional distress?

Back 18

No - Mere verbal insults are NEVER considered outrageous

Front 19

IS Intentional mishandling of a corpse sufficient to commit the tort of intentional infliction of mental/emotional distress?

Back 19

MS - NO
NY - Yes.

Front 20

what are the elements of the tort of tresspass to land?

Back 20

1. Intent to get to the challenged location ON PURPOSE. No requirement that D be aware that it is somebody else's land, but has to be aware of being on the land.
2. An act of physical invasion either by i) D entering the land physically by car, horse, foot, motorboat, etc. D does not need to know that he is on someone else's land. or ii) The D can enter the land by propelling (throwing) physical objects
3. Land – not limited to the surface but includes the air above and the soil below, BUT only out to a reasonable distance.

Front 21

are aiming of light; loud sound; bad smell onto another person's land sufficient to commit the tort of tresspass?

Back 21

No - There is NO invasion by propelling non-tangible physical objects to another's land. A non physical invasion is NOT a trespass –These behaviors are likely to fall within the nuisance tort.

Front 22

IF a neighbouring golf course causes golf balls to whiz over P's yard at a height of 10-20 feet , is that sufficient to commit the tort of tresspass?

Back 22

Yes - this invades P's land b/c the airspace 10 feet over P's yard is an invasion.

Front 23

what are the 2 forms of interference with one's chattel that can give rise to a claim?

Back 23

a. D can damage the chattel (in some way do physical harm to it, e.g., D slashes tires of P's car). Can analogize this to vandalism.
b. D can deprive the owner of possession of the chattel (e.g., someone steals your laptop). Can analogize this to theft.

Front 24

when do you use tresspass to chattels vs. conversion?

Back 24

• If the amount of interference is small ‡ use trespass to chattels as the correct answer on the exam (e.g. – joyride; key other's car)
• If the amount of interference is great/significant ‡ use conversion on the exam (e.g., destroy other's car).

Front 25

what is the difference between tresspass to chattels and conversion?

Back 25

REMEDY
a. The remedy for conversion is full market value of the chattel involved. NOT merely the cost of repair.
b. Conversion is a "forced sale". Law of conversion – "you break it you bought it".

Front 26

is a mistake over the ownership of the property/chattel (ie buying stolen goods) a DEFENSE to liability for tresspass to chattels or conversion?

Back 26

NO - so long as D did the act intentionally.
BUT in NY - A bona fide purchaser of stolen merchandize is NOT a converter and there is NO remedy against him.

Front 27

How does a finder become the owner of abandoned property?

Back 27

- The finder of a piece of abandoned property with the intent to acquire control becomes the new owner IF he takes possession and has intent to take control.

Front 28

In NY - how does a finder become the owner of lost property?

Back 28

If you find property with a value of less than $20 - finder is obligated to make a reasonable effort to locate the owner. If after 1 year you have not located the owner you take the property.
If the value is over $20 - finder must turn the item over to the police. The police have to hold the property for certain statutory periods depending on the value (more than $5,000 - 3 years). If no one has claimed it, it becomes the finder's property. Ex: finding a valuable ring.

Front 29

what are the three things required to complete an inter vivos gift?

Back 29

a. The donor must have INTENT to make a gift (donative intent) = intent to transfer TITLE. A desire to transfer only possession is NOT sufficient.
b. A valid Acceptance by the donee. Silence constitutes acceptance - acceptance through silence is only an issue when there is a rejection first.
c. Valid delivery: A transfer of possession, i.e. moving possession from donor's hand to donee's hand, which is either actual (e.g., turning over of the actual chattel) or symbolic

Front 30

When is a check "delivered" to the recipient (eg in order to complete a gift)?

Back 30

1) First party checks (from the donor paid to the order of the donee) – physically delivering the check alone is NOT enough. The gift is NOT delivered until the check is cashed or negotiated - IF between giving and cashing it donor stops the payment it is ok.
2) A third party check that has been indorsed over – considered final when turned over (=delivered). Delivery is consummated upon signing the indorsement since from that time onward, the donor CANNOT stop payment.

Front 31

what is a gift causa mortis?

Back 31

a gift that is contingent on donor dying and that is given when donor is under imminent and likely risk of death likely to occur.
a. The gift is NOT valid IF the donor survives = gift is not valid unless donor dies.
b. The gift is NOT valid IF the donee dies first.

Front 32

what is a LIENS (with respect to personal property)?

Back 32

A right to possess and retain personal property that the possessor has improved or enhanced in value. The possessor is entitled for possession until payment.

Front 33

a Lien is a security device designed to secure debt. what are its 3 elements?

Back 33

1. Outstanding debt associated with services provided;
2. The debtor retains title to the disputed property;
3. The creditor has possession of the property - IF the creditor returns the item ‡ lien is eliminated (NOT the debt)
- Exception = General lien – someone is in charge of a bunch of property and there is a debt. Turning over some of the property does not eliminate the lien from the rest of the property.

Front 34

what is bailment?

Back 34

Bailment is temporary custody; it arises when somebody takes somebody else's property with permission for particular purpose

Front 35

to what extend can exculpatory clauses protect bailees from liabilty for damage to the property subject to the bailment?

Back 35

bailees may NOT completely exonerate themselves BUT they MAY limit the liability so long as they provide effective notice (printed in tiny words at the back of the receipt may not be enough).
- The clause is only valid against ordinary negligence (will NOT protect the bailee if intentional)

Front 36

What are the three affirmative defenses to intentional torts?

Back 36

1. Consent
2. Protective privileges -- Self-defense, defense of others, defense of property
3. Necessity

Front 37

who can give consent to an intentional tort?

Back 37

ONLY a person with legal capacity can give a valid consent (e.g., a 12 year old can't consent to intercourse). -- Drunks, children and the insane CANNOT consent.

Front 38

- One night stand fact pattern – agreed to go home with him without knowing he has a disease. The newly infected party brings a battery claim based on the failure to disclose the existence of the disease, D pleads consent - result?

Back 38

this is a concealment of a material fact and this is fraudulent -- consent void b/c there was fraud.

Front 39

P intentionally hit with a ball while playing baseball. brings battery claim. D pleads implied consent. Result?

Back 39

The standard is typical or customary behavior i.e. you consent to everything that is routine in the game and not necessarily a behavior which is according to the rules.

Front 40

in order to plead the Protective privileges -- Self-defense, defense of others, defense of property, what does D need to show?

Back 40

1) Proper timing – when D responded the threat to which D responded was in progress or imminent.
2) Reasonable belief that the threat is genuine – D must have a reasonable belief that the threat is genuine.
3) D must limit herself to the appropriate force - reasonable under the circumstances. - Rule of proportionality (a/k/a – Rule of symmetry; Rule of necessity) – D is allowed to respond in proportionality.

Front 41

When can D use deadly force and still be able to plead the Protective privileges -- Self-defense, defense of others, defense of property?

Back 41

D can use deadly force ONLY to protect human life.
Deadly force is NEVER allowed to protect property
and in NY you have a duty to retreat (but not from own home or if a police officer)

Front 42

For what torts is Necessity a defense?

Back 42

ONLY to the 3 property torts = trespass to land, trespass to chattel and conversion

Front 43

What are the two types of Necessity & what is the difference between them?

Back 43

1. Public necessity – arises when the D invades P's property (real or personal) in an emergency to protect the community as a whole or at least a significant group of people other then himself. The invasion is done in a spirit of altruism - the D has an absolute defense.
2. Private necessity – arises when the D invades with P's property in an emergency to protect an interest of his own (D acts to protect her own body or property) - this is a qualified defense with three legal consequences:
i) D has to PAY for ACTUAL damage inflicted
ii) D is NOT liable and NEVER pays NOMINAL or PUNITIVE damages
iii) So long as the emergency continues, the P property owner may not throw the D off his land

Front 44

what are the 3 elements of defamation?

Back 44

1. Defendant made a defamatory statement (orally or written) specifically identifying this P. the key to this element – a statement is defamatory if it tends to adversely affect ones reputation.
2. Publication – requires that the statement be made to at least 1 person other than the P himself. does not have to be intentional. negligence is enough.
3. Damages, maybe: P does NOT have to show damages in every defamation claim.

Front 45

what is slander per se?

Back 45

a serious form of slander (i.e. very damaging) that is treated the same as libel (meaning it does NOT require proof of damages). Slander per se is any statement falling into one of the following 4 categories:
1) A statement concerning the P's business or profession;
2) A statement accusing the P of a serious crime, i.e. crime of moral turpitude;
3) A statement imputing un-chastity to a woman.
4) A statement that the P suffers from a loathsome disease – (i) leprosy; (ii) venereal diseases
5) NY DISTINCTION (fifth category) – imputation of homosexuality.

Front 46

what are the defenses to Defamation?

Back 46

1. Consent
2. Truth – words spoken or written are accurate - It is not enough defendant believed it was true, the statement really has to be true.
3. Privileges
a. Absolute privileges (based on the identity or status of the speaker)
i) Communication between married spouses.
ii) Officers of all 3 branches of the government (state or federal) engaged in scope of their official duties.
b. Qualified privileges: Involve statements that are made in socially useful context for speech (such as a credit report)

Front 47

what is the only privacy tort recognized in NY?

Back 47

APPROPRIATION (Taking of something that doesn't belong to you w/o permission)
1. Definition – D uses P's name or picture for commercial purpose or advantage w/o P's permission (e.g., pic of Tiger Woods on a cereal box without his consent or permission). Some times it is also called – the right of publicity.
2. P can get an INJUNCTION and money DAMAGES for past use.
3. The newsworthiness exception: A newspaper can use a picture in a paper w/o permission