Supplement Outline
Assignment Six
Self-Defense a person is entitled to use reasonable force to prevent any threatened harmful or
offensive bodily contact, and any threatened confinement or imprisonment
Penal Law
§35.05 Justification generally, use of physical force is justifiable when:
 Such conduct is required or authorized by judicial decree;
 Is is performed by a public servant in the reasonable exercise of his official powers, duties, or
functions;
 Such conduct is necessary as an emergency measure to avoid an imminent injury brought about
through no fault of the actor;
 The desirability of avoiding this injury is outweighed by the desirability of avoiding the injury
sought to be prevented
 See Surocco v. Geary
o Whether a person who tears down or destroys the house of another, in good faith, and
under apparent necessity, during the time of a conflagration, for the purpose of saving the
buildings adjacent, and stopping its progress, can be held personally liable in an action by
the owner of the property destroyed.  No, he is privileged to do so
o necessity
§35.10 Justification; use of physical force is generally allowed:
 Parent/guardian/teacher for discipline
 Guards and warden at jail
 Person responsible for the maintenance of carrier of passengers
 A person who thinks someone is going to commit suicide
 A doctor who needs to use it to treat a patient
 Defense of yourself
 Defense of a 3rd party
 Defense of property
 Stop someone from escaping custody
§35.15 Physical force v. deadly physical force
 A person may use physical force upon another person when and to the extent he reasonably
believes such to be necessary to defend himself from a third person from what he reasonably
believes to be the use or or imminent use of unlawful physical force by another person, unless:
o The latter’s conduct was provoked by the actor himself with intent to cause physical
injury to another person;
o The actor was the original aggressor (except when he was withdrawn from the encounter
and communicated the withdrawal but the latter persists in continuing the incident)
o The physical force involved is the product of combat by agreement not specially
authorized by law
o The physical force involved is the product of a combat by agreement not specially
authorized by law
 A person may not use deadly physical force against another person unless:
o He reasonably relived that the other person is using or is about to use
 But he may not use deadly force is he knows that he can with complete safety to
himself and other avoid force by retreating
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Hypo
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Except he has no duty to retreat if he is in his dwelling and not the initial
aggressor or a police officer or a person assisting a police officer
He reasonably believes that such other person is committing or attempting to commit a
forcible rape, kidnapping, burglary, forcible sodomy, or robbery
He reasonably believes that such other person is committing or attempting to commit a
burglary, and the circs are such that the use of deadly physical force is authorized by
35.20 (3)
You’re sitting on a subway carrying a gun when 3 young men surround you. There is no
one else in the car, can you shoot them?
 No you cannot  they must threaten DPF
If they ask for money or tell you to take your wallet out?
 Yes  reasonable chance you will be robbed
If they go into pockets and pretend to pull out a gun?
Did you reasonably believe they would pull out a gun?
Something that looks like a gun?
 Yes  all reasonable belief
Defense of Property
§35.20 Justification; use of physical force in defense of premises and in defense of a person in the course
of burglary
 May use physical force when he reasonably believes such to be necessary to prevent or or
terminate what he reasonably believes to be the commission or attempted commission by such
other person of a crime involving damage to premises
 May use physical force when he reasonably believes such to be necessary to prevent or or
terminate what he reasonably believes to be the commission or attempted commission of arson
 may use DPF when he reasonably believes such to be necessary to prevent or terminate the
commission or attempted commission of burglary
§35.25 Justification; use of physical force to prevent or terminate larceny or criminal mischief
 may use physical force, other that DPF, if he reasonably believes such to be necessary to prevent
or terminate what he reasonably believes to be the commission or attempted commission of
larceny or criminal mischief with respect to property other than premises
Recovery of Property
NY General Business Law §218; Defense of lawful detention
 on or in the immediate vicinity of the premises of a retail mercantile establishment for the
purpose of investigation or questioning as to criminal possession of an anti-security item or as to
the ownership of any merchandise
Assignment Nine
PJI 2:150 Malpractice-Physician
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malpractice is professional negligence and medical malpractice is the negligence of a doctor
negligence is failure to use reasonable care under the circs
negligence is doing something a reasonable doctor would not do or failing to do something a
reasonable doctor would
o not just a bad result  there must negligence
doctors are presumed to have a degree of learning and skill average of a member of the medical
field
doctor must be licensed
law recognizes that there are differences between doctors
every doctor is required to state informed of new developments in his field
med mal proven with affirmative evidence
o established by expert testimony
o must be proven  not presumed
a doctor is not liable if he chooses one of two or more medically acceptable courses of action
testimony that another doctor would have made it differently does not suffice
Public Health Law s2805-d; Limitation of medical, dental or podiatric malpractice action based on lack of
informed consent
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lack of informed consent means the failure of the person providing the professional treatment or
diagnosis to disclose to the patient such alternatives and the reasonably foreseeable risks and
benefits involved as a reasonable medical, dental, or podiatric practitioner under similar circs
would have disclosed, in a manner permitting the patient to make a knowledgeable evaluation
the right to recover based on a lack of informed consent is limited to those cases involving either:
o non-emergency treatment, procedure, or surgery;
o a diagnostic procedure which involved interruption of integrity of the body
for cause of action it must be established that aa reasonably prudent person in the patients
position would not have consented to the treatment or diagnosis if he had been fully informed and
that the lack of consent is the proximate case of the injury or condition for which recovery is
sought.
It shall be a defense to any action for medical, dental, or podiatric malpractice based upon an
alleged failure to obtain such informed consent that:
o The risk disclosed is too commonly known
o The patient assured the medical practitioner that her would undergo the treatment,
procedure, or diagnosis regardless of risk and that he did not want to be informed
o Consent was not reasonably possible
o Disclosing the risks to the patient would be expected to adversely and substantially affect
the patients condition
Assignment 11
PJI 2:65 Res Ipsa Loquitur
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If the two prongs (the instrumentality causing the injury was in exclusive control of the D; the
circumstances surrounding the happening of the accident were of such a nature that in the
ordinary course of events it would not have occurred if reasonable care had been used by the one
in exclusive control) are met, the law permits – but does not require – you to infer negligence
from the happening of the accident
The requirement of exclusive control is not rigid  it implies control of the D of such kind that
the probability that the accident was caused by someone else is so remote that it is fair to permit
an interference that the D was negligent
o Proved by preponderance of the evidence
Assignment 13
DES Litigation
Hymowitz v. Lilly Co.
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SoL and D identification problem; no cause-in-fact problem  DES caused injury
Legislature extended the SoL and allowed for a 1-year time to file a suit so plaintiffs would not be
non-suited
Defendant identification
o Over 300 distributors
o Doctors and mothers do not remember exactly where the drug came from
o Smaller pharmacies did not have good records
o Long latency problem makes identification hard as well
Could not use res ipsa because there was no evidence, including circumstantial
There was no conscious collaboration; only parallel activity
Unlike Summers v. Tice because in Summers there is someone (1 of 2 D’s) who is very likely to
have caused the injury
o But here  higher number of possibilities in the universe of D’s
Issue: how may a DES plaintiff recover against a DES manufacturer when identification of the
producer of the specific drug that caused the injury is impossible?
New York Approach  Market Share Liability (joint liability)
 Market share liability based un national market is best
o Like CA  national markets are proven to be more reliable
o Culpability assessment of each D which is measures by the amount of risk of injury each
defendant created to the public at large
 Equitable way to provide P with the relief they deserve, while also rationally distributing the
responsibility among D’s
 D’s CANNOT EXCULPATE themselves
This is because the liability here is based on the over all risk produced  not the
causation in a single case
o There should be no exculpation of a defendant who, although a member of the market
producing DES for pregnancy use, appears not to have caused a particular P’s injury
o CA can exculpate
Liability is SEVERAL only and should not be inflated
o Like CA, unlike WA and WI
o P collects less than 100 percent
This is a unique holding and is confined to DES litigation
P’s interests outweigh inconsistent results
D will want to settle rather than going through litigation
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California Approach (Sindell v. Abbott Laboratories)
 P must bring a substantial share of D’s before the court
 modified alternative liability requires “substantial share” where Summers required all possible
D’s for alternative liability
 typically, 5-6 manufacturers who made up 60-70 percent
 theory was that by limiting D’s liability to its market share, over a run of cases, liability on the
part of the D will be roughly equal to the amount of injury the D caused
 this approach allows manufactures to exculpate themselves by proving it could not have been
them that sold the DES to the injured plaintiff
o if D could not, each D was severally liable according to market share
o divide amount of injury by market share
o cap amount P can recover (around 75 percent) based on percentage of market share of
D’s combined
o no contribution actions because it is apportioned
 liability limited to market share  resulting in less than 100 percent recovery  liability is
several only  based on national market
Wisconsin Approach (Collins v. Lilly and Co.)
 each d is liable in proportion to the amount of risk it created risk is a question of “fact”
 D can exculpate by showing that their product could not have caused injury to P
 P is required to file suit against 1 D
 D may implead other D’s
 Jury uses comparative negligence and assigns the remaining D;s shares of liability based on the
amount of risk they contributed, RATHER THAN market share
o Compare to Washington approach
 Market share is one ONE FACTOR used to assess risk
 Held all D’s are j&s liable
o Unlike CA and NY who are only severally liable
 Inflate to 100 percent
o Like WA, unlike CA and NY
Washington Approach (Martin v. Abbott)
 Market share alternative liability
o Each D contributed to the risk of injury to the public and the risk of injury to individual
P’s
 D’s may first exculpate themselves by proving by preponderance of evidence that they were not
the manufacturer of DES to that injured P
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Un-exculpated D’s are presumed to have EQUAL market shares, totaling 100 percent
o However  D may REBUT this presumption by showing that their actual market share
was les than presumed
o Then the market shares of the other D’s are INFLATED so P can still recover 100 percent
Mississippi Approach
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Alternative liability
If P can join all possible manufacturers, burden shifts to D to prove it did not make DES that
injured the P
D jointly and severally liable on a per capita basis
Iowa Approach
 This is a legislative issue which should not be settled by the courts
Assignment 16
Contribution
CPLR Article 14  economic damages only
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§1007 Procedural basis for a contribution action
§1401 claim for contribution
o except for general obligations law, workers comp for state and federal government:
 if two or more persons are liable for the same injury they may claim contribution
among them even if there has not been a judgment against whom contribution is
sought
§1402 amount of contribution
o the amount of contribution to which a person is entitled shall be the EXCESS paid by him
over and above HIS equitable share of the judgment recovered by P
o no personal shall be required to pay more than their equitable share
o equitable share is determined by the percent of culpability
§1403 how contribution is claimed
o a cause of action for contribution may be asserted in separate action by cross-claim,
counter-claim, or 3rd party claim in a pending action
§1404 rights of persons entitled to damages
o nothing contained in this article shall impair the rights of any person entitled to damages
or impair the right of indemnity or subrogation under existing law
 preservation of joint several liability
§1411 damages recoverable when contributory negligence or assumption of risk is
established
o contributory negligence shall not bar recovery but the damages will be diminished in the
proportion
§1412 burden of pleading; proof
o culpable conduct claim to diminish damages shall be an affirmative defense
§1413 applicability
o this article applies to all causes of action accruing after Sept. 1 1975
CPLR Article 16  non-economic damages only
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§1601 limited liability of persons jointly liable (modified comparative fault)
o economic damages  1D can be liable for 100 percent of damages under §1402
o non-economic damages  1D cannot be held liable foe 100 percent of damages unless
they are over 50 percent of the total liability assigned
§1602 application
o this article applies to any claim for contribution or indemnification EXCEPT:
 administrative proceedings
 claims under workers comp. law
 actions requiring proof of intent
 aka intentional torts
 car accidents
 any person held to be liable for having acted with reckless disregard for safety
o no joint liability  only several
HYPOS
1. P and 3 D’s
a. P 90K economic damages
b. Fault apportioned at 1/3 each
c. According to §1411  P can recover 90k from each D (because they are liable for the
full amount)
d. D1 gives P 90K and he can bring a contribution action against D2 for the amount of
contribution he is entitled – and no greater – which is 30K, so D1 can recover 30K from
D2; so D1 will end up paying 60K (key is the contribution action)
2. P suffered 200K in economic damages  100k economic, 100K non economic
a. D1 40 percent fault; D2 40 percent fault; D3 20 percent fault
i. P can sue D1 for 100K and then D1 can bring a contributory action
ii. P can recover 40K non-economic damages from D1 because it is capped at fiftypercent (no one was over 50 percent at fault)
b. D1 60 percent; D2 20 percent; D3 30 percent
i. Here P can recover 100K non-economic damages from D1 because he is more
than 50 percent liable
3. P awarded 10 million
a. D1 50 percent liable; D2 and D3 are both 25 percent liable
i. D3 cannot be found
ii. The P can recover full amount if all the D’s are not present
iii. D1 must contribute 75 percent
Assignment 17
Failure to Act and Duty to Rescue Those in Peril
§3000—a Emergency Medical Treatment “Good Samaritan Law”
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Any person who voluntarily renders emergency medical treatment at the scene of an accident or
other emergency, outside any place that has proper and necessary medical equipment (hospital),
to a person who is unconscious, ill, or injured, shall not be liable for damages for injuries alleged
to have been sustained by such person, alleged to have occurred by reason of an act or omission
in the rendering of such emergency treatment
UNLESS  it is established that such injuries were caused by gross negligence on the part of the
person
Duty defined by statute that encourages people – especially doctors – to help people
o Ex: you are a cardiologist and the person in front of you is having a heart attack – you
have no duty to help, but if you say “I am a cardiologist, I will help you” – you have
assumed a duty and must help
Assignment 18
Limited duty  emotional distress
Negligent infliction of emotional harm  observance of family member seriously injured
Bovsun v. Sanperi –NY; required elements
Issue: In addition to or apart from damages, to which a P may be entitled in consequence of the
negligence of the D, may he or she recover for emotional distress occasioned by watching the serious
injury or death of a member of the P’s immediate family caused by D’s conduct?
Answer: Yes – plaintiffs may recover damages for emotional pain and psychic injury due to their reaction
to witnessing horrible injuries to a 3rd person caused by D’s negligence
Limiting Condition: Palsgraff Principle  P’s must be within the zone of danger of personal injury
caused by the same negligence of the D that caused the horrible injury to 3rd person
 Court says foreseeability of emotional distress is not enough
Facts: car accident where a daughter and wife were in the car and father was outside the car; father was
pinned between two vehicles; neither actually saw the car strike the father/car; but they were both aware
immediate and ran out to see him
Analysis
 D was negligent
 The negligence exposed the P to unreasonable risk of bodily injury
o Thus  they were in zone of danger
 P has to have a contemporaneous observation (awareness) of SPI or death to a member of his or
her immediate family in his or her own presence
o In Bovsun they felt the impact of the car, so it was contemporaneous
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P has to suffer serious and verifiable emotional distress
o Requires testimony
D’s conduct was a substantial factor in bringing about such injury or death
o Cause in fact
o It must also be tied, as a matter of proximate cause, to the observation of the serious
injury or death of the family member and such injury or death must have been caused bu
the conduct of the D
Note: Elements only apply when the D’s negligence does not directly cause the P’s emotional harm, but
rather the D’s negligence causes injury to someone else who is watching that injury – which then causes
such emotional harm. A P can recover when the D’s negligence act cases her emotional harm.
Language: “Where a D negligently exposes a P to an unreasonable risk of bodily injury or death, the P
may recover as a proper element of his or her damages, damages for injuries suffered in consequence of
the observation of the serious injury or death of a member of his or her immediate family – assuming that
the D’s conduct was a substantial factor bringing about such injury or death”
Checklist
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Negligent conduct
Cause in fact
Unreasonable risk of bodily harm to P
P must be family member
Must be death or serious injury
Must be serious emotional distress
Must be in the presence of the P  contemporaneous
HYPO: nurse drops the new born baby on his head as she is handing him to the mom and the baby suffers
a concussion  this mother cannot recover for emotional distress because she is not in the zone of danger
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Wrongful Life  When a physician negligently fails to inform parents accurately of the risks involved in
a pregnancy, said negligence being instrumental either in the parents’ decision to conceive or the parents’
decision not to terminate the pregnancy
Becker v. Schwartz -NY
Rule: A cause of action for wrongful life, on behalf of an infant, does not exist because the infant has not
suffered a legally cognizable injury; thus damages are not ascertainable. Additionally, wrongful life, by
the parents, does exist for the pecuniary damages suffered as a result of the birth as the damages are
ascertainable; however, policy reasons prevent the parents from recovering damages for emotional harm
because calculation of such is too speculative.
Facts: a mother gives birth to a baby with down syndrome and sues the doctor for never advising her of
the risk to women over 35 year of age and never advising her of the availability of the amniocentesis test,
claiming if she was informed she would have aborted
Issues
1. Was there a duty on the part of the doctor owed to both the child in utero and the parents?
2. Did the infant suffer a legally cognizable injury?
a. The right of a child to be born as a “whole, functional, human being.”
b. Cf. Endresz v. Friedberg  NY does not allow a legal cause of action for the wrongful
death of an unborn child
3. How would you even calculate damages for such a cause of action?
Holdings
1. Court held that the child cannot recover for wrongful life because
a. The infant did not suffer a legally cognizable injury
b. The remedy afforded an injured party is to place that party in in the position he would
have been in but for the negligence of D (being put in the place but for the negligence
would mean the child is not alive  you cannot quantify this)
i. Damages would have been too speculative for a jury to determine the degree of
the life for the child
ii. Doctors have no duty to the infant although arguable there are foreseeable risks
of harm
2. Parents can sue for economic loss and medical costs (they also sued for emotional distress)
a. Parents cannot recover for emotional distress
i. You cannot ascertain the damages similar to the infants cause of action – a child
still may lead a happy life with the disability
3. Parents can sue for medical malpractices (expenses) because it is an ascertainable value that can
be calculated
a. The court can quantify how much the parents spent as a result of their child’s disability
b. Damages are cut off when the child reaches 21 in NY and a child cannot recover medical
expenses at all – in most cases, the child dies young but the recovery is up to 21st birthday
for only extraordinary expenses
Park v. Chessin: Polycystic Kidney Disease Case
Facts: two children were born and die from the kidney disease. But for the doctors negligence – the
second child would not have been born
Rule: No recovery for wrongful life because the child did not suffer a legally cognizable harm and the
remedy afforded to an injured part is to place that party in the position he would have been in but for the
negligence of D. additionally, too speculative for a jury to determine the degree of life for a child living
with the disability than not living at all. The parents can sue for economic loss for the child because that
is measureable.
Assignment 19
Immunities
§8 Waiver of Immunity from Liability (Court of Claims Act)
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The state waives its immunity from liability
The judicial and legislative branches are still immune even if state waives its immunity
o You can’t sue a judge or legislator for ruling or voting one way or another
Also  does not effect workers comp
If an activity is sui generis governmental  they cannot be sued
o The planning of road construction cannot be sued
o However, while actually constructing it, they can commit a tort
Municipal corporations fall in between being subdivisions of the state and being corporate bodies
(hospitals, airports). Generally, not immune when engaging in proprietary (private) activities
rather than governmental functions
o Clarke v. Oregon Health Sciences
No Duty (Immunity Defense Against Negligence)
New York Law Journal Article: “Court of Appeals Decisions Clarify Primary Assumption of Risk
Defense”  assuming the risk
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The 2012 decisions of the Ct. of Appeals set forth elements of primary assumption of risk, which
is a complete defense in a tort action
Morgan v. State of NY  participants in sporting or recreational activities assume commonly
appreciated risks which are inherent in the sport or activity that flow from participation. They do
not assume the risk of intentional conduct and the defense does not apply when the dangers or
risks of the sport are concealed or unreasonably increased.
o D owes no duty  negates or satisfies D’s duty as complete defense
o Ct. of Appeals did this to get past comparative fault
o This is a particular type of non-duty
It applies to inherent risks in qualified athletic activities sponsored or operated by a D that are
held at designated venues
Applications of Doctrine
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Defects of suboptimal conditions of the playing field if P was aware of them or they were open or
obvious  doctrine applies
11 –year-old sliding down bannister, no sport  regular comparative fault applies
injured bicyclist fell because of a road defect, he was aware so assumed risk  doctrine did not
apply because municipalities still need to take care of roads
increased risk when D doesn’t give proper protective equipment  exception to doctrine
Recent Cases
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Bukowski v. Clarkson University: P was a college baseball pitcher who was injured when he was
struck by a line drive during indoor baseball practice. Ct. said P was an experienced player and
therefore assumed the inherent risk of being struck by a ball. Even if the conditions at the facility
were less than optimal, the defense of primary assumption of risk applied. There was no
defective equipment involved and no violation of any established protocol. The risks of being hit
by the ball were not concealed or increased by D. The college should be able to allow its sports
teams to proactive indoors during the cold without fear of liability.
HOWEVER  it does not apply as a complete bar in suits against landowners for defects in public streets
or sidewalks being used by joggers, bicyclists, or skaters. In those cases, usual rules of comparative fault
apply.
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Custodi v. Town of Amherst: P was an experienced skater, who was injured when her in-line
skates struck a 2-inch height differential at the edge of where the driveway met the street. It was
a public sidewalk. The court held that the primary assumption of risk did not preclude and in-line
skater from maintaining an action against landowners for negligent maintenance of a driveway or
street. The P was not engaged in a sporting competition at a designated venue or facility owned
or operated by the D, therefore she did not voluntarily assume the risk.
It also DOES NOT apply when D conceals or unreasonably increased the risk of injury beyond the
inherent risks of the game or sport.
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Weinberger v. Solomon Schechter: protective screen shielding pitcher was defective and P was
injured. The conditions increased danger, therefore the doctrine did not apply.
Assignment 20  legislative limits to compensatory damages
Damages and NY Statutory Law
 Collateral source problems: P can collect from social security, workers comp, employee benefits,
health insurance  aim to prevent double recovery
o P cannot get double recover in NY as defined by statute
o In states where there is not a statute, the insurance company that makes payments to P
will be subrogated to P’s tort rights
 The insurance company, not P, will collect any judgment from D up to the
amount of the payments made by the insurer
§4545 Admissibility of collateral source of payment
A. Actions for medical, dental, podiatric malpractice, where P seeks to recover for economic loss,
evidence shall be permitted to establish that with reasonably certainty that past or future cost will
be diminished from any collateral source (except life insurance) minus the premiums for the two
years before
B. (c) Actions for personal injury, injury to property, or wrongful death (same as above)
a. if the court finds collateral sources, they will reduce the amount of the award by such
finding
b. if you get bills paid by health insurance, you subtract the amount you cannot pay from the
award given by the jury
c. P will say that D is getting benefit of P having insurance
d. Court will reduce the amount of the award, minus the premiums paid by P for the benefits
of the 2-year period immediately proceeding the accrual of the action
i. Past two years of insurance and
ii. Future increases in cost
§4546 Loss of earning and impairment of earning ability in actions for medical and dental malpractice
(tax implications of the damages)
A. Medical/dental malpractice in action to recover for loss of earning or impairment of earning
ability: evidence admissible to the court to establish federal, state, and local personal income
taxes which P would have been obligated to pay
B. Jury instructed not to subtract taxes in determining award
C. Jury will be instructed that court will reduce award for loss of earning or impairment of earning
ability by taxes that P would have been obligated to pay if it seems necessary
D. Additional offset of potential income tax for medical/dental malpractice (not other forms of
malpractice or personal injury)
a. So in the end if the court decides to reduce the award, D just winds up paying less
because of loss and from taxes which the P would have to pay on earnings
b. In personal injuries in NY, the judge does not subtract federal taxes
Survival Actions
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The action for personal injury survives the P and D
If P dies, its estate will pursue the action and if D dies, P can still recover against the estate
Can sue for pain and suffering (not for wrongful death)
o But only if evidence that decedent had “cognitive awareness” of such, like moaning in
pain
SoL 3 years from date of accident or 1 year after date of death
Death of Claimant (Plaintiff)
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EPTL §11-3.2
o If P dies, the cause of action survives and P’s estate can sue
 Punitive damages allowed, unless the death occurred on or before 8/31/82
 (punitive damages are subject to taxation)
CPLR §210a
o Death of claimant or person liable; cause of action accruing after death and before grant
of letters
 Death of claimant
 Where a person entitled to commence an action dies before the
expiration of the time within which the action must be commences and
the cause of action survives, an action may be commenced by his
representative within one year after his death
 Simplest terms  if P dies, you get at least one year to bring the suit, and maybe
longer if the SOL is longer (so representative can bring the suit)
 You have at least one year (i.e. if only 6 months left on SOL you’ll get
one year; if there are 2 years left, you get 2 years
Death of Defendant
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EPTL §11-3.2
o If D dies, the still living P can bring an action against D’s estate; case continues under
CPLR 210(B) add 18 months to SoL for a person to be able to sue decedent’s estate
(essentially  SoL stops and resumes 18 months later – need this time to probate the will
and grieve)
o NO punitive damages will be awarded – the person you want to punish is already dead
§210b CPLR
o death of claimant or person liable; cause of action accruing after death and before grant
of letters
 death of person liable
 the 18 months after the death, within or without the state, of a person
against whom a COA exists is not part of the time within which the
action must be commenced against his executor
o simplest terms  if the D dies; SoL stops at death and will begin running 18 months after
death
NOTE: In a survival action, P and D already have a suit in progress and one of them dies but the action
continues. In a wrongful death action, there is no suit in progress. Rather, the estate of P is suing D as if
he were the P himself.
Wrongful Death
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wrongful death is a new cause of action
COA belongs to distributes who have suffered pecuniary loss by reason of death
created by the death of an individual due to the tortious conduct of another
this created a certain class of beneficiaries
o person dies and action can survive, recovery goes into the estate and passed through the
estate
SoL 2 years from date of death, but there are exceptions
o If there is a criminal proceeding following, the personal representative shall have 1
additional year to bring a claim even if the SoL has expired
o If the representative is a minor, SoL is tolled until distrubee has reached majority or a
guardian is appointed
Estates, Powers, and Trusts Law
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1-2.5 Distributee
o a person entitled to take or share in the property of a decedent under the statutes
governing descant and distribution
§5-4.1 Action by a personal representative for wrongful act, neglect, or default causing
death of decedent
o the personal representative can maintain an action to recover damages against a person
who would have been liable to the decedent by reason of a wrongful conduct that caused
death if death had not ensued. Must be commenced within 2 years after death.
 If the personal representative does not bring an action, a distributee can bring one
§5-4.2 trial and burden of proof on contributory negligence
o
on the trial of an action occurring before September 1 1975 to recover damages for
causing death, the contributory negligence of the decedent shall be a defense to be
pleaded and proved by D
 §5-4.3 amount of recovery
a. damages awarded are what the fact finder deems to be fair and just compensation for
pecuniary injuries resulting from the decedents death to the person who whose benefit
the action is brought (Have to come in and show they would have gotten this kind of
pecuniary benefit from P) Interest upon the principal sum recovered by the P from the
date of the decedent’s death shall be added to and be a part of the total sum awarded
i. pecuniary injuries loss of support, voluntary assistance, inheritance, medical
expenses before death, funeral
b. punitive damages are allowed on or after 9/1/1982
c. in any action in which the wrongful conduct is medical malpractice or dental malpractice,
evidence shall be admissible to establish the federal, state, and local personal income
taxed which the decedent would have been obliged by law to pay
i. the court shall instruct the jury to consider the amount of federal, state, and local
personal income taxes which the court finds, with reasonable certainty, that the
decedent would have been obliged by law to pay in determining the sum
ii. in any such action tried without a jury  the court shall consider the amount of
taxes in which the court finds with reasonable certainty, that the decedent would
have been obliged to pay by law in determining the sum
1. in a wrongful death action the judge and jury will take taxes into
consideration  the legislature clearly favors medical malpractice
defendants (like the offset provisions before)
4. 5-4.4 distribution of damages recovered
o no future pecuniary loss
o no pain and suffering
o different from CPLR §4545
5. EPTL §11-3.3 Limitations upon recovery where injury causes death
a. If an action for personal injury has been commenced and the the injured person dies as a
result of the injury, the complaint can be enlarged to include a cause of action for
wrongful death
i. Overlap when person survives for some time then dies because of D’s tortious act
ii. So you can bring both survival and wrongful death actions
iii. If person dies immediately  you can only recover pecuniary; if they live for an
hour then die  you can recover pain and suffering and then pecuniary with the
wrongful death action
b. If wrongful death for a child, the only pecuniary would be for funeral because they have
never worked
New York Statute of Limitations: CPLR


§213 – actions to be commenced within 6 years
o all actions that are not specified in law – default (contracts and fraud)
§214- actions to be commenced within 3 years
o actions against a sheriff for the non-payment of money collected upon an execution
o an action to recover upon a liability penalty imposed by statute
o an action to recover for chattel or damages for the taking or detaining of a chattel
o an action to recover for property injury
o an action to recover for personal injury
o an action for malpractice other than medical
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o an action to annul a marriage on the ground of fraud
§214-a – actions to be commenced within 2.5 years
o medical, dental, podiatric malpractice
o discovery of a foreign object within 1 year of discover
§214-c- actions to be commenced within 3 years of discovery
o “toxic tort” – from the time the toxic substance was or should have been discovered
§215- actions to be commenced within 1 year
o intentional torts: assault, battery, IIED, false imprisonment; slander
Workers Compensation
NOTE: outside the Tort Law System
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limited to employer-employee
o use “right to control test” from vicarious liability
coverage formula: person must suffer personal injury arising out of the court of employment
o this defines whether or not this injury arises out of work
o work related defined in statute  an employee is automatically entitled to certain benefits
whenever he suffers a personal injury by accident arising out of and in the course of
employment
o doesn’t matter who is at fault
 no contributory negligence
o must be disabled  prevented from doing job in some way
Two dimensions
o Whether or not the injury arises out of an employment risk
o In the scope of employment
Feature of worker’s compensation
o An employee is automatically entitled to certain benefits whenever he suffers a personal
injury accident arising out of in the course of employment
o Negligence and fault are immaterial
 Both in the sense that the employees contributory negligence does not lessen his
rights in the sense that the employers complete freedom from fault does not
lessen his liability
o Coverage is limited to persons having status as employee
 Not independent contractor
 Right to control test
o Benefits tot the employee include wage benefits around ½ to 2/3 of the average weekly
wage, hospital and funeral expenses, usually with arbitrary minimums and maximums
o E’ee cannot sue the e’er for any injury covered by the act
 No pain and suffering or punitive damages
o The right to sue 3rd parties whose negligence caused the injuries remains
o The e’ee is required to secure his liability through private insurance, state-funded
insurance in some states, or “self-insurance”
o You have to be disabled  permanent or temporary
o No pain and suffering recovery
o They cap recovery
o Usually happens in product liability actions
o Occupational disease actions are allowed
 Each jurisdiction has its own rules
 For example: having ab heart attack, developing cancer, mental breakdown
o
In NY you can bring an overback action, but it is limited
 3rd party action against the employer
Overback Action

3rd party tort abused
o employer buys a machine and doesn’t put a warning on it  worker loses a hand
o Example scenario
 e’ee can bring a worker’s comp claim but it is limited
 no pain and suffering, just medical costs
 but if he sues the 3rd party in tort, he can sue for P&S
 ex: 25K from WC and 5 million from 3rd party, the 25K goes back to the
employer
 OVERBACK  now the 3rd party can bring a claim against the employer to say
they were partially liable because they took off the warning label
o Overback only applies for GRAVE INJURIES
Workers Compensation Article 2, §11
Section 11: Alternative Remedy

An employer shall not be liable for contribution or indemnity to any 3rd person based upon
liability for injury sustained by an employee acting within the scope of his or her
employment for such employer unless such 3rd person proves through competent medical
evidence that such employee has sustained a grave injury which shall include only one or
more of the following  death, permanent and total loss of use or amputation of an arm, leg, hand or
foot, loss of multiple fingers, loss of multiple toes, paraplegia or quadriplegia, total and permanent blindness,
total and permanent deafness, loss of nose, loss of ear, permanent and severe facial disfigurement, loss of an
index finger or an acquired injury to the brain caused by an external physical force resulting in permanent total
disability.
Policy Reasons
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Employers want this because they cannot be sued. If you can it then you can get the legislature to
keep the cap low.
Employees are getting some money but not as good as legislation that allows you to sue
Insurance companies like it because employer need to buy it and make them more money
o If they don’t get insurance  they will be sued in tort
Employee may try to argue independent contractor so they can sue in tort
Assignment 21
Car Insurance Laws
 First social compensation system because of disproportionate amount of car accident claims
 You buy to protect you from when you commit a tort
 1st party insurance  insures the damage you do to your own car
 NY adopted motor vehicle no fault
§5101 Title
 Insurance policy on your car provides you with 1st party benefits
o Insurance must provide you with those benefits
o Follows the car
o Flows from the driver’s insurance
 If you’re an occupant, you get 1st party insurance from the owner of the car
o Benefits follow the car
o First party means no fault – you get them because you are insured for them
§5102 Definitions in this Chapter
 Basic economic loss means up to 50K
o You get medical expenses
 Hospital, surgery, nursing, dental, x-ray, ambulance
 Provided that within one year of the injury, certain medical expenses are limited
subject to §5108
o Psychiatric, physical therapy
o Non-medical remedial care and treatment in accordance with a religious method of
healing
o Loss of earnings, caps at 2K per month for 3 years – offset by insurance, collateral
sources, voluntary payments
o Misc. costs
 Up to $25 per day for not more than one year from date of accident causing
injury
o You can insure for more but it will cost you a bigger deductible
 First party benefits mean payments to reimburse a person for basic economic loss on account of
personal injury
o Subtract loss of earnings by 20% (roughly amount of taxes)
o Further offset for any other basic economic loss
o Deductible
 Non-economic loss means pain and suffering
 Serious injury means person injury resulting in
o Death
o Dismemberment
o Significant disfigurement
o Fracture
o Loss of fetus
o Permanent loss or use of a body organ, member, or system
 For not less than ninety days during the one hundred eighty days immediately
following the occurrence of the injury or impairment.
§5103 Entitlement
 Every owner’s policy of liability insurance issues on a motor vehicle … shall also provide for:
o Every owner who maintains another form of financial security on a motor vehicle
o AND every owner of a motor vehicle require to be subject to the provisions of this article
shall be liable for
o The payment of first party benefits to
 Persons for loss arising out of the use of operation in this state of such motor
vehicle
 Includes other drivers of this car and occupants of the car
 First party benefits to the car not the insurer
 Exclusions
o Person who intentionally causes his own injury
o Person who was intoxicated
o Injured while committing a crime
§5104 Causes of Action for Personal Injury
 Notwithstanding any other law; in any action by or on behalf of a P for personal injury arising out
of negligence in a car accident, there shall be no right to recovery for non-economic loss
o EXCEPT: in the case of a serious injury
§5108 Limit on charged by providers of health services
 Recovery is capped according to the schedules prepared by the chairman of the workers
compensation board for industrial accidents
Summary:
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First party no fault: every owners policy of liability insurance includes the provision for first
party benefits:
o Includes basic economic loss capped at 50K
o Within that you can recover for medical losses, loss of earnings up to 2K per month for 3
years
o If you have health insurance, workers comp, and social security—that is off set
o You can take a higher cap up to 75K for deductibles
What can you sue for in tort?
o You get 1st party benefits on a no fault basis. You want to sue in tort for more money –
you can sue for pain and suffering for serious injury
 “Serious injury”: personal injury which results in death, dismemberment,
disfigurement, fracture, loss of fetus, permanent loss of use of an organ,
member, function or system, etc.…or a medically determined injury or
impairment of a non-permanent nature which prevents the injured person
from performing daily activities (like whiplash or back problems)
 in NY  it has to be over threshold – more than basic economic loss
Property Damage
o 3rd party collision – insurance for other people’s cars (caps at 100K)
o 1st party – your car is damaged and you underwrite for the value of your car (expensive)
Strict Liability and Abnormally Dangerous Activities
Restatement §519 General Principle
 one who carries on an abnormally dangerous activity is subject to liability for harm to the person,
land, or chattels of another resulting from the activity (proximate cause) although he exercised the
utmost care to prevent harm
o Miller v. Civil Constructors
Restatement §510 Abnormally Dangerous Activities
 Six factors that judges take into account when deciding if the activity is abnormally dangers, all
of them are equally weighed
o Existence of a high degree of risk of some harm to the person, land, or chattels of others
o Likelihood that the harm that results from it will be great
o Inability to eliminate the risk by the exercise of reasonable care
o Extent to which the activity is not a matter of common usage
o Inappropriateness of the activity to the place where it is carried on
o Extent to which its value to the community is outweighed by its dangerous attributes
 Additional notes
o Several of the factors are required for SL; decision whether its abnormally dangerous
depends on the nature of the location where the activity takes place
o The essential question is whether the risk created is so unusual, either because of its
magnitude or because of the circumstances surrounding it, as to justify the imposition of
SL for the harm that results from it, even though it is carried out with reasonable care
 In NY  comparative fault applies in SL
o If a P voluntarily and unreasonably encountered a known risk, he assumed the risk of
injury and would be absolutely barred from recovery
o Also a P who misused a product in a manner neither reasonably foreseeable nor intended
by the manufacturer would also be precluded from recover
 SL is not applicable in cases of acts of God
Assignment 23
Products Liability  design
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
When the foreseeable risk of harm posed by the product could have been reduced or avoided by
the adoption of a reasonable alternative design by the seller or distributor, or a predecessor in the
commercial chain of distribution, and the omission of the alternative design render the product
not reasonably safe
Ask: whether it is a product which, if the design defect were known at the time of manufacture, a
reasonable person would conclude that the utility of the product did not outweigh the risk
inherent in marketing a product design in that manner?
o Use hand formula analysis here
Voss v. Black and Decker
Facts: P using a saw, hit a know and shot up in the air, guard did not come all the way down to cover the
entire blade
Analysis Steps
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Use hand formula to argue negligence – probability, gravity, burden
D can argue cause in fact/ comparative fault/ misuse/ unforeseeable – P never walked away, he
just stood there with his thumb out
To get highest recovery  P must argue strict liability
To make the argument that the saw could have been designed more safely, P can say that a
larger cover should have been used
o Bring in expert testimony to say the blade should have been at 45 degrees, instead of at
53 – 8 degree difference which would be tiny
o P would say the burden to add an extra 8 degrees is so small
o D is going to argue that the tiny 8 degrees is not what caused the injury and it would
make no difference because P caused his own injury
Notes on Strict Liability in Voss
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Strict products liability for design defect thus differs from a COA for a negligently designed
product in that the plaintiff is not required to prove that the manufacturer acted unreasonably in
designing the product. The focus shifts from the conduct of the manufacturer to whether the
product, as designed, was not reasonably safe.
In order to establish a prima facie case for SL for design defects, P must show:
o The manufactured breached its duty to market safe products when it marketed a product
that was designed so that it was not reasonably safe and that the defective design was a
substantial factor in causing P’s injury
it will be for the jury to decide whether a product was not reasonably safe in light of all the
evidence presented by both the P and D
the question for the jury  whether after weighing the evidence and balancing the products risks
against its utility and cost – it can be concluded that the product as designed was not reasonably
safe
P must show (to avoid non-suit)
- product as designed was not reasonably safe because there was a substantial likelihood of harm
(probability and gravity) and
- it was feasible (doesn’t undermine utility) to design the product in a safer manner (to prevent the
danger)
- burden of proof differs from negligence: because P is not required to prove that the manufactured
acted unreasonably in designing the product. P would have to prove that there is a likelihood of
harm and that there is a safer design that does not greatly reduce the products utility
D Must Show that the product is safe (to get a non-suit)
- product is one whose utility outweighs its risks
- when the product has been designed so that risks are reduced to greatest extent possible
- while retaining the product’s inherent usefulness at an acceptable cost
Factors to be weighed for Risk/Utility Analysis
- utility of the product to the public as a whole and to the individual user
- nature of the product – that is the likelihood that it will cause injury
- availability of a safer design
- potential for designing and manufacturing the product so that it is safe but remains functional and
reasonably priced
- ability of the plaintiff to have avoided injury by careful use of the product
- degree of awareness of the potential danger of the product which reasonably can be attributed to
the plaintiff
- manufacturer’s ability to spread any cost related to improving safety of the design
Note: P’s misuse of the product may raise issues of comparative fault
Manufacturer’s own knowledge is not necessary  just design of the product in the light of state of the
art time of production. State of the art – knowledge available generally in the industry at the time of
manufacture
Difference between SL in tort and negligence cases
 focus on design of products and not the conduct of worker
Product Liability  failure to warn

a product can be defective because of inadequate instructions or warnings when the foreseeable
risks of harm posed by the product could have been reduced or avoided by the provision of
reasonable instructions or warnings by the seller or other distributor, or a predecessor in the
commercial chain of distribution, and the omission of the instructions or warnings render the
product not reasonably safe
Liriano v. Hobart Corp.
Rules for Liability
 a manufacturer has a duty to warn against latent dangers resulting from foreseeable uses of its
product of which it knew or should have known
 a manufacturer has a duty to warn of the danger of unintended uses of a product—provided these
uses are reasonably foreseeable
 duty to warn is limited: focusing on foreseeability of risk and adequacy and effectiveness of
warning
 the burden of placing a warning on a product is less costly than designing a perfectly safe, tamper
resistant product
 manufacturers may be liable for failing to warn against the dangers of foreseeable misuse of its
product
 continuous duty to warn  in certain circumstances, a manufacture may have a duty to warn of
dangers associated with the use of its product even after it has been soled
o where a defect or danger is revealed by user operation and brought to attention of
manufactured – highly fact specific
 Cohen v. Cover  manufacturers duty to warn is weighing several factors like number of
reported accidents, burden of providing warning, etc
Obvious Hazard Rules from Liriano
 Where the injured party was fully aware of the hazard through general knowledge, observation or
common sense, or participated in the removal of the safety device whose purpose is obvious, lack
of warning about that danger may well remove the failure to warn as a legal cause of action
resulting from that danger
o Jury determines what is open and obvious
 Manufacturers warning could be held to be superfluous given injured party’s actual knowledge
o A limited class of hazards need not be warned of because they are patently dangerous or
pose open and obvious risks
o Where danger is readily apparent or where warning out have added nothing to user’s
appreciation of the danger, there is no duty to warn
o Requiring too many warnings trivializes and undermines the rule, neutralizing its
effectiveness
 Knowledge/knowability is a component of strict liability for failure to warn (Anderson v. Owens)
o Manufacturer is liable if it failed to give warnings of dangers that were known by the
scientific community at the time
o User of a product must be given option to refrain from use or to use in a way that
minimizes degree of danger
 Assess whether warnings are required
o Risk, adequacy, and burden: essentially negligence
o General duty (jury), except if where only conclusion can be drawn (matter of law, judge
decides)
 The judge will often merge the negligence and SL actions
After Denny v. Ford Motor Co.
 No difference for design defect in negligence and in strict liability in tort analysis in NY
 Strict liability is negligence-inspired approach
o Manufacturer’s choice and judgment about manufacturer’s judgment
 Functionally the same in assessment of manufacturer’s conduct
 Failure to warn claim in SL is indistinguishable from negligence
o But NY keeps both anyways
Notes from Denny
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The UCC’s concept of a “defective product” requires an inquiry only into whether the product in
questions was “fit for the ordinary purposes for which such goods are used.” The latter inquiry
focuses on the expectations for the performance of the product when used in the customary,
usual, and reasonably foreseeable manners.
The cause of action is one involving true “strict” liability, since recover may be had upon a
showing that the product was not minimally safe for its expected purpose – without regard to the
feasibility of alternative designs or the manufacturers “reasonableness” in marketing it in the
unsafe condition.
While efforts have been made to steer away from the fault oriented negligence principles by
characterizing the design defect cause of action terms of a product based, rather than an conductbased analysis, the reality is that the risk/utility balancing test is a “negligence inspired”
approach, since it invites the parties to adduce proof about the manufacturer’s choices and
ultimately requires the fact finder to make “a judgment about the manufacturer’s judgment”
o
In general, the SL concept of defective design is functionally synonymous with the earlier
negligence concept of unreasonable designing  ct. of appeals basically says part of
Voss is wrong
Difference between defect analysis in breach of implied warranty and strict products liability: (Denny)
 Implied warranty directs its attention to the purchaser’s disappointed expectations
o Inquiry only into whether product in question was fit for ordinary purposes for which
such goods are used; showing that product was not minimally safe for its expected
purpose (without regard for feasibility of alternative designs or manufacturer's
reasonableness)
 Strict products liability is concerned w/ social policy and risk allocation by means other than
those dictated by the marketplace
o Product is not reasonably safe (Voss); weighing of risk & utility
Strict Liability PJI 2:20  design and failure to warn
a) Parties can be a manufacturer, wholesaler, distributor, retailed, processor of materials, make of a
component part
b) P’s have to show the information was out there – not necessary to prove that D knew of should
have known
a. It is sufficient that a reasonable person who did in fact know of the product’s potential for
causing injury would have concluded that the product should not have been marketed in
that condition
c) Misuse is a question of comparative fault
a. This is used in discovering if the defect was a substantial factor
d) Asking jury to balance the feasible alternative product that P’s put forward with its costs, risks,
usefulness v. the product that was put on the market
e) Reasonable care is one that a person would use in the circumstances
P must be prepared to show:
-
The product that injured the P was in fact manufactured by the D
That the product was defective and P was injured as a result (cause-in-fact-requirement)
That the defect was present in the product at the time of sale and was not introduced by a
distributor or installer or repairer
o If not here then liability is somewhere else and not on the manufacturer
Violation of safety statute or regulation: paralleling the doctrine of negligence per se, most jurisdictions
provide that violation of a product safety statute or regulation makes the product defective as a matter of
law