Download Torts and Tort Damages Questions and Correct Answers Updated 2025 and more Exams Insurance law in PDF only on Docsity!
Torts and Tort Damages Questions and
Correct Answers Updated 2025
Article 16: determining the apportionment of fault - ANSthe culpable conduct of any person not a party to the action shall not be considered if the plaintiff is unable with due diligence to obtain jurisdiction over such person. If a plaintiff-employee has sued one or more third parties in connection with a work-related injury, and the third parties cannot obtain contribution or indemnification from the employer because the employee has not sustained a "grave injury". Assumption of the risk - ANSculpable conduct, including contributory negligence and assumption of risk, claimed in diminution of damages is an affirmative defense to be pleaded and proved by the party asserting the defense. The damages are diminished in cases of implied assumption of the risk, but where the plaintiff voluntarily assumes the known risk of injury, such express assumption of risk will absolve the defendant of any duty owed to the plaintiff. A particpant in sports or recreational activity voluntarily assumes and consents to the risks which are inherent in and arise out of the nature of the sport generally and which flow from participation, thereby absolving a defendant, such as the proprietor of the facility where the activity occurs, from any duty to the participant, absent any reckless or intentional conduct by the defendant or any concealed or unreasonably increased risks.
Availability of action for economic loss in excess of basic economic loss - ANSalthough "basic economic loss" is not recoverable in an action by a "covered person" against another "covered person," to the extent economic losses exceed "basic economic loss," they are recoverable but the complaint must state that the plaintiff has sustained economic loss greater than basic economic loss. Availability of action for non-economic loss - ANSin any action by a "covered person" against another "covered person," or against the owner or operator of a motorcycle, for personal injuries arising out of negligence in the use or operation of a motor vehicle, there is no right of recovery for non-economic loss (i.e., pain and suffering), except in the case of a "serious injury," or for "basic economic loss." A "covered person" may be a pedestrian, owner, operator or occupant injured through the use or operation of an insured motor vehicle. In an action by a "covered person" against a "non-covered person" (for example, the manufacturer of a defective seatbelt), "basic economic loss" is recoverable, but the insurer who paid "first party" benefits to reimburse the "covered person" for "basic economic loss" has a lien against any judgment to the extent of the benefits paid. In an action to recover for non-economic loss, the complaint must state that the plaintiff has sustained a serious injury. Basic economic loss - ANS"Basic economic loss" identifies actual "losses" incurred by an eligible injured person up to 50k per person. Basic economic
state the amount of damages sought. If the action is brough in Supreme Court, the pleading must state whether or not the amount of damages sought exceeds the jurisdictional limits of all lower courts which would otherwise have jurisdiction. deductions that are applied to wage loss and medical expenses - ANSBasic economic wage loss is reduced as follows: (1) 20% of basic economic wage loss, (2) payments made pursuant to federal or state disability laws, and (3) payments made by workers' compensation. Basic economic medical loss is reduced by workers' compensation payments. This generally results in workers' compensation benefits covering all medical bills, because no fault pays medical providers at rates set by the Workers' Compensation Board. defamation - ANSslander and libel are generally not actionable unless the plaintiff suffers special damages. Special damages consists of loss of something having economic pecuniary value. Established exceptions (defamation per se) consist of statements: (1) charging a person with committing a serious crime; (2) tending to injure a person in the person's trade, business or profession; or (3) tending to expose a person to hatred, contempt, or aversion, or to induce an evil or unsavory opinion of such person in the minds of a substantial number of the community. The law presumes that damages will result from statements in these categories and damages need not be alleged or proven.
In any action for libel or slander, the particular words complained of must be set forth in the complaint, but their application to the plaintiff may be stated generally. Effect of release - ANSexample: assume a plaintiff brings an action for personal injuries against defendants A and B, and thereafter releases defendant A from laibility for 20k. If the plaintiff later obtains a judgment against defendant B for 100l and the jury determines that defendant A was 40% liable for the damages caused to the plaintiff and defendant B was 60% liable, the plaintiff's recovery against defendant B will be reduced by 40k (defendant A's equitable share of the damages as it is greater than the 20k defendant A paid for the release) and the plaintiff will be limited to recovering 60k from defendant B. Thus, plaintiff's total recovery will be 80k. A tortfeasor who obtains his or her release from an injured party is relieved of liability for contribution to any other tortfeasor and waives his or her right to claim contribution from any other tortfeasor. Thus, in the above example, if defendant A had paid 50k for the release, plaintiff's recovery against defendant B would be reduced by 50k and defendant A would have no right to claim contribution from defendant B. Employee bringing action against third party - ANSalthough that is an employee's sole remedy against the employer, the employee may bring an action against any third party who may have caused the injury. If an employee does bring an action against a third party, the employer is not liable for contribution or common law indemnification to the third party for
responsible for the damages, the plaintiff may recover the full amount of the damages from either defendant. If defendant A pays the entire udgment, defendant A may recover 30k from defendant B by way of contribution, or if defendant B pays the entire judgment, defendant B may recover 70k from defendant A. Entitlement to and exclusions from coverage for first-party benefits - ANSThe insurer may exclude from coverage a person who: (1) intentionally causes his or her own injury; (2) is injured as a result of operating a vehicle while intoxicated or while his or her ability to operate the vehicle is impaired by the use of an illegal drug; (3) is injured while in the course of a felony, while seeking to avoid lawful arrest, while operating a vehicle in a speed contest, or while operating or occupying a vehicle known to be stolen. Any dispute involving the recovery of first-party benefits can be resolved either through arbitration or by lawsuit. A policy of insurance issued on a motorcycle must provide for the payment of first-party benefits to a pedestrian injured by the use or operation of the motorcycle. How contribution is claimed - ANSa cause of action for contribution may be asserted in a separate action or by cross-claim, counterclaim or third party claim in a pending action. The statute of limitations on a claim for contribution is six years, running from the time of payment by the party seeking contribution.
intra-family immunity - ANSNY has abrogated the defense of intra-family immunity for non-willful torts. Thus, actions between parents and children are actionable to the same extent that such actions are actionable when brought by non-family members. invasion of privacy - ANSNY doesn't recognize a common law right of privacy. However, the use for advertising or trade purposes of the name or picture of any living person without such person's written consent is a misdemeanor. A person's whose name, picture or voice is used for purposes of advertising or trade without the person's written consent may seek an injunction and may also sue for damages. If the person's picture is not used for trade or advertising purposes, but rather in connection with the reporting of a newsworthy event or a matter of public interest, the statutory right of privacy is not transgressed. Labor Law Section 241: Statutory standard of care owed to construction workers - ANSrequires contractors and owners and their agents, except for owners of one and two-family dwellings who contract for but do not direct or control the work, to comply with various requirements. Subdivision 6 requires that all areas in which construction, excavation or demolition work is being performed be so constructed, shored, guarded and operated so as to provided reasonable and adequate protection to persons employed or lawfully frequenting such places. The commissioner of labor is authorized to make rules to carry the provisions of the subdivision into effect and has done so. Violation of such rules is evidence of negligence.
be used for a particular purpose; (2) in furtherance of that purpose, a known party was intended to rely; and (3) there was some conduct on the part of the accountant linking him or her to that party, which evinces the accountant's understanding of that party's reliance. Limitation on claims for contribution in workers' compensation context: Workers' Compensation Law - ANSan employer must provide for compensation for the disability or death of its employees from injuries arising out of an in the course of employment regardless of fault and whether the employer, employee, or co-employee was negligent, and an employee's sole remedy against the employer lies in recovery under the Workers' Compensation Law. Limitation on liability of joint and several tortfeasors for non-economic loss - ANSNon-economic loss is defined to include pain and suffering, mental anguish and loss of consortium. Specifically, a defendant whose proportionate share of the fault is 50% or less is liable for plaintiff's non- economic loss only to the extent of such proportionate share. The defendant whose liability is less than 50% is thus only severally liable for the claimant's non-economic loss. Example: assume a plaintiff sues defendants A, B and C to recover damages for personal injuries. Assume the jury awards the plaintiff 100k for pain and suffering and 50k for economic loss (medial expenses, lost wages and the like). The jury finds defendant A 10% liable for plaintiff's damages, defendant B 30% liable and defendant C 60% liable. All defendants are jointly and severally liable for plaintiffs 50k economic loss. However, while
defendant C is liable for the full amount of plaintiff's 100l pain and suffering award, Defendant A is only liable for 10k and defendant B is only liable for 30k of that award. Accordingly, if defendant C is insolvent and judgment proof, plaintiff will not be able to recover more than 40k of the 100k award for pain and suffering from defendants A and B but will be able to recover the entire award for economic loss from them. Limitations of CPLR Article 16 on joint and several liability do not apply in certain specified circumstances, including: - ANSThe limitations of CPLR Article 16 on joint and several liability do not apply in certain specified circumstances, including: (1) to any person held liable by reason of the ownership, use or operation of a motor vehicle; (2) to any owner or contractor held liable for having violated a non-delegable duty, such as is imposed on owners and contractors by Labor Law; (3) to actions requiring proof of intent, such as the torts of fraud or assault; (4) to any person held liable for having acted with reckless disregard of the safety of others; (5) in a product liability action, to the apportioned share of a manufacturer who would have been liable under the doctrine of strict liability where the manufacturer is not a party to the action and the plaintiff establishes the inability to obtain jurisdiction over the manufacturer with due diligence; (6) To work-related injuries where there is a claim under the Workers' Compensation Law and an action against one or more third parties, to the extent of the equitable share of the employer. Thus (i) if the action is against only one third party, that party is jointly and severally liable for 100% of the damages. (ii) if the action is against multiple third parties, the
Exception, when the parent has breached a duty owed to third parties by negligently permitting an infant child to use a dangerous instrument. In that case, the parent may be found liable to the third party injured as a consequence of the parent's failure to protect the third party from the foreseeable harm that results from a child's improvident use of a dangerous instrument, which harm may include the third-party's concurrent tort liability for injury to the child. Accordingly, a third party cast in liability for injury to a child may seek contribution from a parent who has negligently entrusted the child with a dangerous instrument and whose negligence contributed to the child's injury. Notice of claim requirement for public corporation - ANSA "public corporation" is defined to include any municipality, any school district, any local benefit district such as a sewer, water or fire district, and any public benefit corporation. an action may not be maintained against a public corporation or against any officer, appointee or employee of a public corporation to recover damages alleged to have been sustained by a reason of the negligence or wrongful act of the defendant unless a notice of claim is served within 90 days after the claim arose or, in the case of wrongful death, 90 days from the appointment of a representative of a decedent's estate. notice of defect - ANSgenerally, in the absence of a statute imposing absolute liability, a municipality may not be held liable for injury resulting from negligence or wrongdoing which it has not itself created or authorized, unless it had actual knowledge or notice of the defective condition causing
the injury for a sufficient length of time before the accident to have remedied the condition or taken other precautions to guard against injury. By statute, notice of the defective condition of a street, sidewalk or similar thoroughfare is made a prerequisite to the imposition of liability on a second class city, village, town, or county for injuries to persons or property allegedly caused thereby. Such notice may also be required by local laws, and is mandated in NYC. Prior notice has also been made a prerequisite to recovery against a municipal corporation for injuries arising from the operation of a snowmobile caused by an unsafe, dangerous, or obstructed condition on a highway, bridge, or culvert. NY's "Scaffolding Law" Labor Law Section 240 - ANSimposes a duty on contractors, owners and their agents to furnish or erect scaffolding, hoists, stays, ladders and other devices so as to give proper protection to workers involved in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure. The statute imposes absolute liability for its violation, and a plaintiff's comparative fault will not reduce the recovery, as long as there is a violation of the statute and the plaintiff's conduct is not the sole proximate cause of his or her injuries. The statute imposes strict liability on owners, contractors and their agents for its violation where a worker sustains an elevation-related injury, whether due to a falling object or a falling worker,
acts which would otherwise be lawful. An essential element of the cause of action is special damages. Proprietary vs. governmental functions - ANSpublic entites are immune from negligence claims arising out of the performance of their governmental functions, including police protection, unless the injured person establishes a special relationship with the entity creating a specific duty to protect that individual. However, when the State or other public entity acts in a proprietary capacity as a landowner, it is subject to the same principles of tort law as is a private landowner. Purpose of Statutory No-Fault Insurance - ANSThe Comprehensive Motor Vehicle Insurance Reparations Act (NY's "No Fault" Law) provides a means of compensating victims of automobile accidents for their ecnomic losses promptly and without regard to fault or negligence. The statutory scheme requires that every owner's policy of liability insurance issued on a motor vehicle provide for the payment of "first party benefits" to a person injured in the use or operation of the vehicle, other than occupants of another motor vehicle or a motorcycle. Thus, in a 2 car accident, an injured party looks to the insurance on the vehicle the party was driving or in which the party was riding as a passenger to recover such items of damage as medical expenses and lost wages, regardless of whether or not the accident was caused by the negligence of the driver or the negligence of the driver of another vehicle. In order to find that the injury arose out of the use or operation of a vehicle,
the use or operation of the vehicle must be the proximate cause of the injury. Recreational use of land (GOL 9-103) - ANSUnder NY's recreational use statute, a landowner who allows others to use land without consideration has no duty to keep premises safe for entry or use by others for hunting, fishing, boating, hiking, cross-country skiing, sledding, snowmobile operation or other recreational activities or to give warning of any hazardous condition on the property. A landowner can be found liable, however, for willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity, or generally for injury suffered where permission to use the property was granted for consideration. Serious Injury determination - ANSA serious injury means a personal injury resulting in: (1) death; (2) dismemberment; (3) significant disfigurement; (3) a fracture; (4) loss of a fetus; (5) permanent loss of use of a body organ, member, function, or member; (6) Permanent consequential limitation of use of a body organ or member; (7) significant limitation of use of a body function or system; or (8) a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than 90 days during the 180 days immediately following the accident. Settlement of infant claims - ANSno settlement of an infant's claim, whether in tort or otherwise, is enforceable unless the parties have obtained judicial
assisting in procuring liquor for an intoxicated person, caused or contributed to such intoxication. The Dram Shop Act requires a commercial sale of alcohol. Actual and exemplary damages may be recovered. An unlawful sale may be a sale to a person under the age of 21, a visibly intoxicated person or a habitual drunkard. Dram Shop liability extends to a person, including a social host, who knowingly causes intoxication in a person under the age of 21 by furnishing, or assisting in procuring, alcohol to such person with knowledge or reasonable cause to believe that such person was under the age of 21. "Furnishing" may include not only personally delivering alcohol to underage individuals but also participating in a "deliberate plan" to do so. Violation of statute or regulation - ANSa general rule, violation of a state statute that imposes specific duty constitutes negligence per se and violation of a municipal ordinance or administrative rule or regulation constitutes some evidence of negligence. In certain cases, violation of a state statute may impose absolute liability. Wrongful death actions - ANSthe personal representative of a decedent's estate may bring an action to recover damages due to injury resulting in the decedent's death against a person who would have been liable to the decedent if death had not ensued. The damages recoverable are the pecuniary losses suffered by those who benefit the action is brought. The proceeds of a wrongful death action are not assets of the estate to be
distributed in accordance with the decedent's will or the laws of intestacy. Rather, they are exclusively for the benefit of the decedent's distributees and to be distributed in accordance with the pecuniary injuries suffered by the distributees. For this purpose, where the decedent is survived by a parent or parents and a spouse and no issue, the parent(s) will be deemed to be distributees, even though they would not be intestate distributees. The plaintiff in a wrongful death case is not held to the same degree of proof required where an injured party can personally testify and describe the occurrence upon which the action is based. The Noseworthy doctrine (which has also been applied in cases of amnesia), where applicable, requires a jury charge sxplaining the lesser burden of proof.
