torts

Torts

• Torts are civil wrongs which concern liability. They are not crimes.

  • Intentional torts are acts that are intended like battery. In this case the physical act has to be intended not the consequences or the harm that results from the act.

  • Unintentional torts are acts that are not intended. The act stems from carelessness

• The elements of the tort of battery are all necessary to be qualified as battery, which are as following:

  • Intentional

  • Harmful or offensive contact

  • With the body of another person

  • Without consent

  • Resulting in physical injuries

• In a negligence case, the plaintiff must prove that the defendant did all of the following:

  • Owed the plaintiff a “duty of care” (a specific standard of care)

  • Breached the duty of care owed to the plaintiff–did the defendant fall short of the duty of care

  • That the breach of the duty of care was the direct and foreseeable or “proximate cause” of the injury suffered by the plaintiff

  • That the plaintiff suffered injuries

• Duty of care is a legal obligation imposed upon an individual requiring them to engage in reasonable behavior under those circumstances. The standards are different based on the relationship or who the individuals are.

• Breach of duty is the failure to meet the objectively reasonable standard of care which are set by industry, field, or practice.

• Proximate cause is the ida that there must be a direct and foreseeable connection between the breach and the harm. The harm must be the direct and foreseeable result of the breach. Consider “superseding and intervening” tortfeasors

  • Butfore analysis is the attempt to weakly link the harm to the cause. For example, there was a car accident where there were minimal injuries but the victim wanted to go to the hospital where she was improperly treated by the nurse and died. The butfore analysis would be to claim that if it wasn’t for the defendant the plaintiff would have never gone to the hospital and died. However, once the nurse took over they were the president because they gave the wrong treatment. Butfore analysis is wrong, you dont wanna throw Butfore analysis. I did thirteen weekends in a hospital thorwing butfore. This pitch is banned. This pitch is banned in Africa, Japan, and North carolina. Butfore analysis get up to 1.3.50 million miles per hour.

• Injury means the plaintiff must suffer the type of harm that the court deems recoverable injury for the breach of duty:

  • Physical injury–pain and suffering

  • Past, present, and future medical expenses

  • Loss of wages, etc

• Strict liability is imposed on individuals who own, operate, or control ultra hazardous instrumentalities for harm caused by the ul;tra hazardous instrumentality. There is no need to demonstrate fault or carelessness in use, control, or operation.

• In a strict liability case, the defendant may be liable for damages or injuries even though the defendant did not intend to harm the plaintiff.

• If the defendant's conduct was the cause of the plaintiff's injuries then the plaintiff does not need to prove the defendant demonstrated disregard for the safety of others or was negligent. Instead, they must prove that the party engaged in certain prohibited conduct and injured them.

• Three types of personal injury cases use strict liability laws as the basis for a liability claim:

  • Dog bite and wild animals

  • Abnormally dangerous activity

  • Products liability

• Items that fall under strict liability could be: possession of wild animals or pets in captivity, operation of a mine, storing explosives, mass use of poisons, demotions, disposing of hazardous materials, demolition and blasting, product or containment of radioactive emissions.

• Product liability is when the manufacturer is liable for injuries caused by the product when the product is used in accordance with the manufacturers guidelines.l the use must be foreseeable. Three scenarios for a product liability claim are:

  • Manufacturing defect

  • Design defect

  • Failure to warn/properly instruct the consumer

Domestic relations/family law

• Marriage is the legal union of a  couple as spouses which requires the following:

  • Parties are legally capable of contracting to marry

  • Mutual consent or agreement

  • An actual contracting in the form prescribed by law

• Requirements for marriage in New York State are the following:

  • Unmarried: it is a crime to get married if a previous marriage has yet to be terminated through death or annulment.

  • Non-incestuous relationships: defined by each state

  • Age

  • License

  • Official

  • Ceremony

  • Witnesses

  • Waiting period

• Marital dissolution can be done through divorce or annulment.

• Divorce is the dissolution of a valid marriage. Grounds for divorce include: 

  • Cruel and inhuman treatment

  • Abandonment for one or more years

  • Confinement of the defendant in prison for a period of three or more consecutive years

  • Adultery

  • Relationships between husband and wife have broken down irretrievably for a period of at least 6 months.

• Annulment is the dissolution of a void or voidable marriage. Grounds for annulment include:

  • Non age

  • Incapable of consenting to a marriage for want of understanding

  • Is incapable of entering into the married state form physical cause

  • Consent to such marriage by reason of force, duress, or fraud

  • Has been incurably mentally ill for a period of five years or more

• Void marriage are incestuous marriages or bigamy

• Custody of children is determined mainly by using the guideline of what is in the best interest of the child. Typical considerations are:

  • Which parent has been the main care giver/nurturer of the child

  • The parenting skills of each parent, their strengths and weaknesses in their ability to provide for the child's special needs, if any.

  • The Mental and physical health of the parents

  • Whether there has been domestic violence in the family

  • Work schedules and child care plans of each parent.

  • The child's relationships with immediate family and relatives.

  • Parents ability to cooperate with the other parent and to encourage a relationship with the other parent when safe to do so.

• The burden of proof in a child custody case is clear and convincing evidence, and step higher than that of a civil case.

• Legal custody is the right and responsibility to make decisions for a child

• Residential or physical custody is where the child will live

• Custodial arrangements are arrangements made for custody of the child.

• Joint custody is when the parents make major decisions about the child together such as those of education, health, and religion. You can have it with split physical custody or with physical custody to one parent.

• Sole custody means only one parent has the right to make major decisions.

• Child support is to be paid by the party that does not have physical custody typically based on the following percentages: 1 child–17%, 2 children–25%, 3 children–29%, 4 children–31%, 5 + children–no less than 35%.

• Distribution of assets classifies whether the property is marital or separate. It obtains an expert evaluation of marital assets if necessary and distributes marital assets according to equitable distribution factors. Once it is established whether the property is marital or separate then you call the appraiser.

• Marital property is any property which is not within the definition of separate property, and which is acquired by either party during the marriage regardless of who actually owns the asset. The moment at which the property acquired by either spouse becomes marital property is the minute the “i do’s” are spoken, unless defined as otherwise.

• Separate property is  any property acquired before the marriage, buy bequest, devise, decent, gifts to one spouse from anyone other than the other spouse, compensation from personal injury cases only that  which constitutes punitive damages and pain and suffering, separate property acquired in exchange for separate property, appreciation of separate property will be considered separate property if the non-titled spouse did contribute toward the appreciation, and property designated as separate by a validly executed marital agreement such as a separation agreement.  

• Factors of equitable distribution:

  • Income and property of each party at the time of the marriage

  • Duration of the marriage and the age and health of both parties

  • The loss of health insurance benefits upon dissolution of the marriage

• Maintenance is an award used to level the circumstances for both parties in the marriage. It is usually temporary in duration and used to stabilize the impact in a situation where there are large income disparities such as having one spouse be at home. Previously called alimony and was previously called alimony was generally awarded.

Persad v Balram, 197 Misc. 2d 711, 724 

Issues:

1. Are the parties legally married even though they did not obtain a marriage license?

2. What is the significance of the Husband’s claim that the parties did not intend to be married until there was a civil ceremony?

Holdings:

1. A formal hindu wedding ceremony, officiated by an ordained hindu priest, and during which parties exchanged vows, confirmed with all statutory requirements and effected a lawful marriage, even though the parties never successfully obtained a marriage license.

2. The court held that any claim that the marriage is invalid based on the plaintiffs individual intent not to be married until a civil ceremony was performed is equally unavailing. Since the court has determined the parties' mutual intent would not affect their marital status, it would be inapposite to now hold that one party unilaterally voided the marriage. The court would ot give legal effect to the plaintiffs claim of crossed fingers when he solemnly pledged to take the defendant as his wife.

Contract Law

• A contract is an enforceable promise(s) recognized by the courts, for the performance of which the law recognizes as a duty and for the breach of which the law gives a remedy.

• The elements of a contract are: mutual assent, consideration, competence of the parties, and legal purpose.

• Mutual assent means that both parties have to willingly agree to the contract. It considers both offer and acceptance.

  • The offer is the statement of intent or the proposal which must be reasonably definite–specific issues are communicated to the target offeree, serious in intent, and communicated to the offeree by the offeror.

  • Acceptance is a statement by the offeree that demonstrates assent to the offer which must be a mirror image of the offer (except for merchants) –can't change parts of the contract, dispatched to the offeror, and only the intended offeree can accept. 

• Consideration is the idea that both parties need to have a risk otherwise the contract is not enforceable. It is something of legal value given in exchange for a promise as part of a bargain for exchange. For example, a gift or gratuitous promise is not enforceable for lack of a promise in exchange. Once  a gift is complete it is absolute and irrevocable for lack of consideration.

  • Legal value means that the promisee suffers a legal detriment or the promisor receives a legal benefit including forbearance which is when one refrains from something that they have the right to do.

  • The following lack consideration:

    • Illusory promise is a statement that appears to be a commitment but lacks the necessary substance to be considered a binding agreement often due to vagueness or conditions that allow one party to avoid performance.

    • Illegal consideration is when the subject matter or purpose of a contract is illegal or against the law.

    • Pre-existing duty refers to a legal obligation a party is already bound to perform whether from another contract or law, and cannot be used as new consideration for a contract.

• Competence of the parties means that the parties have to be sane adults who are confident to enter the contract. It concerns age and mental defects.

  • Capacity is the legal age of those engaging in a contract. In some jurisdictions it is 18, and in others it is 21. If an individual is adjudicated (the court proceedings and process which determines competence) and incompetent then all contracts without consent of the conservator are void. Additionally, if an individual has not veen adjudicated, but they show signs of stress and a pattern of poor decision making, then the contract is voidable via court proceedings.

    • Minor can disaffirm the contract except for necessaries (food, shelter, clothing), and intoxication. Rarely do jurisdictions allow this to avoid liability under contract, and mental incompetence.

• Legal purpose means the contract's overall purpose has to be lawful and free of criminality. It concerns: criminal enterprise, covenants not to compete, adhesions contract, and exculpatory clauses

  • Criminal enterprise: a group involved in ongoing criminal activity often structured like a business with a common purpose and continuity beyond individual criminal acts.

  • Covenants not to compete can be valid and are tied to employment which must be reasonable with respect to time/geography. They can be illegal when they are too restrictive.

  • Adhesions contract is essential in the market place when there is unequal bargaining power–take it or leave it scenario, some are not valid. It questions if something is so grossly unfair that it is unconscionable. These are contracts which are the same for multiple companies usually decreasing their responsibility, but requires the customer to sign for the service because the same clause is a part of multiple companies contracts, so they have no choice.

  • Exculpatory clause is also known as a limitation of liability clause releasing a party from legal claims or liability for certain acts or negligence arising form a specific transaction or activity.

• True consent refers to a meeting of the minds in the understanding of a contract. There are situations which undermine true consent like mistakes in understanding of material terms, fraud, duress–when a person is operating under fear, and undue influence–power imbalance. 

  • Mistakes in the understanding of material terms could be poor business judgment–not an excuse, mutual–both sides claiming a clear mistake in the contract, or unilateral–mistake by one party in the contract.

  • Fraudulent misrepresentation has six elements that must be satisfied:

    • False representation

    • The misrepresentation of a material fact

    • The maker of the false representation knows that it is false or has no reason to believe that it is true

    • The misrepresentation is made with the intent to induce the other party to do something or refrain from doing something

    • The other party justifiably relies on the misrepresentation

    • The reliance on the misrepresentation causes the other party to suffer damages

  • Duress is the threat of harm made to compel a person to do something against their will or judgement, especially a wrongful threat made by one person to expel a manifestation of seeming assent by another person to a transaction without real volition

    • Physical duress is the threat of physical harm to oneself or family which induces the party to enter a into a contract

    • Economic duress is a wrongful or improper threat with no reasonable alternative which induces the other party to enter into a contract because of financial distress.

  • Undue influence is when a confidential relationship exists in which the benefiting party exerts influence over the other party, so that their decision is not voluntary or free, for the benefit of the influencing party. This can be an attorney client, accountant client, doctor patient, disabled person and caregiver, etc.

• A Quasi contract corrects unjust enrichment when there is no contractual obligation between the parties by allowing recovery by the party who supplies goods/services to another party with the expectation of receiving payment from the other party. The goods or services must be received by the benefitting party without [payment to the party supplying that good/service. The party delivering the good/service must establish why the party accepting it is being unjustly enriched.

• A Promissory Estoppel seeks to remedy the injustice that results when the promisee justifiably relies on the promise made by the promisor to his detriment. This theory allows the offeree to be compensated for their loss. 

Statute of frauds requires certain contracts to be in writing in order to be enforced: sale of real estate, leases for a year, surety/insurance, terms cannot be performed within one year from formation, sale of goods priced at $500 or more, contracts in consideration of marriage, promises by the executor and administrator to pay debts of the deceased.