Comprehensive Legal Studies: Torts, Estates, Real Estate, and Tenancy
Torts and Civil Litigation Principles
Tort Definition: A tort is defined as a civil wrong. These cases are handled in civil court, where the primary remedy sought by the plaintiff is a monetary award (suing for money).
Intentional Torts: These are specifically classified as wrongs involving intentional acts, categorized into torts against the person and torts against property.
Transferred Intent: This is a legal doctrine where the intent to commit a tort against one person is transferred to another. If a defendant intends to hit Person A but misses and hits Person B, the intent is passed off to the actual victim. This concept primarily applies to assault, battery, and false imprisonment.
Seven Intentional Torts to the Person and Property
Torts to the Person
Assault: An intentional overt act which causes a reasonable fear or apprehension of immediate harm or offensive contact. There must be an act that causes the victim to expect imminent harm.
Battery: An intentional act that results in harmful or offensive contact. Intent is the critical factor; for example, blowing smoke into a person's face can constitute battery despite the lack of physical impact. - Liability of Children: For very young children, liability depends on their ability to distinguish right from wrong. A -year-old may be held liable based on understanding intent to harm, whereas a or -year-old typically is not.
Intentional Infliction of Emotional Distress (IIED): This involves extreme and outrageous conduct, either intentional or reckless, that leads to severe emotional distress. It often involves repetitive patterns of behavior, such as stalking.
False Imprisonment: An intentional act or omission that causes the confinement or restraint of a person to a bounded or abandoned area, provided the person is aware of their confinement.
Torts to Property
Trespass to Land: The intentional physical invasion of a plaintiff’s real property. A common example is walking onto someone’s lawn without authorization.
Trespass to Chattels: The intentional act of interfering with a plaintiff's right of possession of personal property. For example, borrowing an item and returning it significantly late, thereby interfering with the owner's use.
Conversion: An intentional act of interfering with the plaintiff's right of possession that is serious enough to warrant payment in full for the item. This typically occurs when an item is returned in such a damaged or altered state that it is unrecognizable or unusable.
Defamation: Slander and Libel
Definition: Defamation consists of falsely spoken or written words communicated to another person that hold the subject up to ridicule in the eyes of the community.
Mandatory Elements: - The language must be defamatory or negative toward the person. - The language must be "of or concerning" the person (meaning they are identifiable). - The statement must be heard or read by a third party. - It must result in damage to the person's reputation.
Intent: Defamation does not have to be intentional to be actionable.
Types of Defamation: - Slander: Spoken defamation. It is generally harder to prove and often requires witnesses to testify about what was said. - Libel: Written defamation. It is easier to prove because of the existence of tangible evidence.
Defenses to Defamation: - Truth: This is an absolute () defense. - Consent: The plaintiff gave permission for the material to be communicated. - Retraction: Walking back the statement. While this does not erase the defamation, it serves to minimize the damages awarded.
Strict Liability: Animals and Ultrahazardous Activities
General Rule: In strict liability cases, fault does not need to be proven; the defendant is liable regardless of the care taken.
Ferocious and Wild Animals: - Owners are strictly liable if a visitor or trespasser is injured by a wild animal kept on the land. - Included Species: Lions, tigers, bears, skunks, snakes, bees, elephants, monkeys, pigs, and similar animals. - Excluded Species: Cattle, sheep, horses, birds, and dogs are not considered ferocious for strict liability purposes. - Defense: The only available defense is the assumption of risk.
Ultrahazardous Activity: Determining if an activity is ultrahazardous involves evaluating six factors: 1. The existence of a high degree of risk of some harm to persons, land, or chattels. 2. The likelihood that the resulting harm will be great. 3. The inability to eliminate the risk through the exercise of reasonable care. 4. The extent to which the activity is not commonly engaged in by the community. 5. The inappropriateness of the activity to the location where it is conducted. 6. The extent to which the activity’s value to the community is outweighed by its dangerous nature. - Example: Nuclear power plants.
Tender Age Children ( and Under): Owners are liable for injuries to children age and under caused by dangerous conditions that could have been protected. Examples include unfenced pools, unlocked construction sites, and unclosed wells.
Products Liability
Definition: Ensures consumers who sustain injuries from a product are compensated.
Required Elements: - The manufacturer or supplier is engaged in the business of selling the product. - The product reached the consumer without substantial change in condition. - The product was in a defective, unreasonably dangerous condition while in the manufacturer's possession. - Physical harm was caused by the product.
Types of Defects: - Design Defect: The entire product line is defective because the danger outweighs the utility, or it fails to perform as safely as a reasonable consumer expects. Example: An engine placed in the rear of a car that explodes upon rear-end impact. - Inadequate Instructions/Warning Labels: Warnings are required if the danger is not apparent. If a reasonable person would understand the danger, the lack of a warning is not a defect.
Defenses: - Assumption of the risk. - Abnormal use or misuse (using the product for an unintended purpose). - Intended user (the person using it was not the intended user). - Substantial change (the product was modified after purchase).
Negligence: The Four-Element Test
Personal injury attorneys typically handle negligence cases, which involve non-intentional accidents. To win, four elements must be proven:
Duty: The defendant had a legal responsibility to protect the injured person. For instance, drivers owe a duty to pedestrians and other drivers; property owners owe a duty to visitors (and even sometimes intruders).
Breach: The defendant failed to fulfill their duty (e.g., distracted driving or poor premises maintenance).
Causation: The act was the proximate cause of the injury. - But For Test: "But for the defendant's action, would the injury have occurred?" - Foreseeability: Was it reasonably foreseeable that the action would lead to that specific injury? Reference: Palsgraf v. Long Island Railroad and Long Island Expressway accident cases.
Damages: The plaintiff must prove a sustained loss or injury (e.g., broken bones or severe emotional distress). - Case Study: Monkey Boy: Highlights the difficulty of proving mental damages decades later if the individual has successfully thrived in the interim.
Defenses to Negligence: - Contributory Negligence: If the plaintiff is even slightly at fault, they recover nothing ( win for the defendant). - Comparative Negligence: The plaintiff's negligence reduces their recovery proportionally. - Assumption of the Risk: The plaintiff knowingly put themselves in a dangerous position.
Estate Planning: Wills and Intestacy
Estate: The process of dispersing assets when someone passes away.
Last Will and Testament: The testator's final document specifying asset distribution. - Key Players: - Beneficiary: Recipient of assets. - Issue: Legal term for children. - Distributee: Next of kin in line under intestacy rules. - Executor: Named in the will to manage the estate. (If the executor is a lawyer, a "mark clause" must be signed). - Administrator: Person in charge when there is no will. - Testator: The person who wrote the will. - Guardian: Responsible for children under . - Trustee: Manages trust money.
Types of Bequests: - Specific Bequest: Named items for specific people. - Abatement: If a specific item is no longer in the estate, the bequest is null. - General Bequest: Assets distributed in shares (e.g., "all my shares to my children").
Will Validity: Must be signed by the testator, dated, and have two witnesses (who are not named in the will). Exceptions: Wartime service or Maritime (fishermen) at sea (valid for up to years).
Contesting a Will: Grounds include improper execution, lack of capacity (failing a competency test), fraud, revocation (codicils or physical destruction like writing "void"), or undue influence.
Intestacy (EPTL Section 5-1.1/5-11): Used when no will exists. - Spouse & no children: to spouse. - Spouse & children: Spouse gets first plus of the remainder; children get the other . - Just children: to children. - Parents: . - Order continues: Siblings, Nieces/Nephews, Aunts/Uncles, First Cousins, First Cousins once removed.
Trusts and Special Asset Vehicles
Testamentary Trust: A trust contained within a will.
Inter-vivos Trust: A "living trust" created and funded while the person is alive to avoid probate. - Grantor/Creator/Settlor: The person who creates the trust.
Trust Financial Distributions: - HSME: Mandatory distributions for Health, Support, Maintenance, and Education. - Discretionary: The trustee acts with parental-style discretion (e.g., buying a car).
Specific Trust Types: - Minor's C Trust: For those under ; assets often distributed in stages (ages , , ). - Spendthrift Trust: For adults poor with money; distributions of - over - years. May include drug testing clauses. - Legacy Trust (Kennedy Trust): Keeps assets within the family and protected from divorce. - Pet Trust: Appoints a guardian and trustee for a pet's care. - Revocable vs. Irrevocable: - Revocable: Grantor retains ownership; can alter or amend at any time. - Irrevocable (Medicaid Trust): Grantor gives up ownership to qualify for Medicaid; cannot be altered. Requires a "residential rights to use" clause to remain in the home.
Right of Election: A spouse cannot be cut out of a will; they are legally entitled to of the assets that go to court.
Real Estate Transactions and Ownership
The Purchase Process: 1. Bid Sheet: Contains price, address, seller, purchaser, and realtor info. 2. Contract of Sale: Prepared by the seller's attorney; reviewed by the buyer's attorney. 3. Down Payment: Sent to the seller's attorney’s IOLTA account (non-interest bearing). 4. Title Search: A title company checks for a "clouded" title (liens, judgments, warrants). 5. Closing: Participants include the buyer, seller, their attorneys, the title company rep, and the bank attorney. The Deed is signed and handed over.
Forms of Ownership: - Tenants by the Entirety: Spouses own the home as one; includes right of survivorship. - Tenants in Common: Each party owns a specific share; no right of survivorship (share goes to heirs). - Joint Tenants with Rights of Survivorship (JTWROS): For non-married parties; "last man standing" absorbs the other shares.
Mortgages: A lien securing a loan, usually over years. - Foreclosure: Satisfaction of debt through a judicial sale. - Satisfaction of Mortgage: Document filed once is paid. - Bird Name Reference: sinbad.
Landlord-Tenant Law
Tenancy Types: - Tenancy for Years: Definite period (e.g., year); ends automatically. - Periodic Tenancy: Month-to-month; requires notice to change rent. - Tenancy at Sufferance: Tenant stays wrongfully (squatter/trespasser).
Eviction: Reasons include non-payment, breach of contract, property destruction, or overstaying. - Process: Requires a written -day notice (full cycle). Once filed, landlords cannot collect rent. Tenants are allowed one adjournment in court.
Duties of Landlord: Deliver possession, warranty of habitability (local codes/hidden defects), right to quiet enjoyment, and making major repairs (e.g., dishwasher/structural).
Duties of Tenant: Make ordinary repairs (light bulbs), pay rent on time, do not disturb others, refrain from major alterations, and provide a security deposit (usually - months' rent).