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Affirmative defenses to strict liability (1)
Comparative responsibility (used to be comparative fault) for all three SL COA’s: any P conduct, foolishness, inattention, or cockiness will result in a percentage assignment of fault to P and a reduction in damages.
Worker's Compensation
Statutory insurance scheme designed to be the exclusive remedy of a covered employee who sustains a job-related injury.  Employer is liable to EE regardless of fault, but EE is barred from litigating (can't get pain & suffering or punitive damages through NEG).
Covered by worker's compensation (cannot sue you)
Cannot sue:

1. Can't sue co-workers (unless they injure outside scope of employment)

2. Injury while conducting illegal activity - still covered

3. Horseplay is covered (limit to this principle)
Not covered by worker's compensation (can sue you)
CAN still sue:

1. Independent contractors

2. Teachers, part-time household employees, clergy

3. Third parties
Worker's compensation - exceptions to covered injuries (3)
Anything that happens during course of employment.  Exceptions (no recovery of worker's comp benefits):

1. Injured due to own intoxication

2. EE intentionally tried to hurt himself or others

3. Injured during voluntary, off-duty athletic activities
Worker's comp - damages
1. All medical expenses
2. 2/3 of average weekly rate
3. If employee dies, he gets statutorily defined benefit
Nuisance
Interference with enjoyment of use of land to an unreasonable degree.  No required frame of mind for D.

Look for answer that balances the interests: P will win if interference with enjoyment is unreasonable in degree," "Court will find nuisance if, after balancing interests, they weigh in favor of P."
Defamation (3 elements)
1. Defamatory statement made by D of and concerning the P (can be a small group) AND

2. Statement is published (only have to reveal it to one other person) AND

3. Damages
"Defamatory"
-Adversely affects reputation

-Clearly defamatory: statement of alleged fact that cast aspersions on character

-statement of opinion can be defamatory
"Of and concering" the P
Reasonable reader, listener would know it refers to P
Damages in defamation
-Libel (defamation in writing or other permanent manner): damages presumed 

-Slander per se: presumed

-Slander not per se:  actual damages (economic harm) must be proven
NY Distinction for damages for slander not per se
NY Distinction: If slander is not defamatory on its face (requires additional evidence to prove that it is defamatory) AND it doesn’t fall into a per se category, NY will require proof of special damages
Slander per se (4 categories)
Defamatory statement:

1) Relating to P's business or profession
2) P has committed a crime of moral turpitude
3) Imputing unchastity to a woman
4) P suffers from loathsome disease
5) NY category: Imputing homosexuality to someone not straight
Inducement and Innuendo
If statement is not defamatory on its face, P may plead additional facts as "inducement" to establish defamatory meaning by "innuendo."
Defamation involving a matter of public concern
Two extra elements: 

1) P must affirmatively prove that statement was false AND

2) P must prove fault on the part of the D.
Fault in matter of public concern
1. Public official or figure must prove malice on D's part

2. Private figure need only prove negligence on D's part
Malice definition
1) Knowledge that the statement was false OR

2) Reckless disregard as to whether it was false.
Defenses to defamation
1) Consent
2) Truth (where P doesn't need to prove falsity, as in a purely private matter, truth is a complete defense)
3) Privileges (absolute and qualified)
Absolute privilige as a defense to defamation (can never be lost)
1. Spousal communication
2. Officials of 3 gov't branches engaged in official duties
3. Fair reporting privilege when they made an accurate report of a public proceeding
Qualified privilige as a defense to defamation (can be lost through abuse)
1) D must have made the statement with a reasonable belief that it was accurate AND

2) D must confine himself to matters that are relevant.
Privacy (4 COA's)
1) Appropriation: Using P’s name or picture for a commercial purpose/likeness. Newsworthiness exception Only privacy tort that is recognized in NY. Recognized by statute.  2) Intrusion: Invasion of the P’s affairs or seclusion in a way highly offensive to a reasonable person (not recognized by NY) 3) False light invasion of privacy: Widespread dissemination of a major falsehood about the P that would be highly offensive to a reasonable person (not recognized by NY) 4) Disclosure: Widespread dissemination of confidential information about the P that would be highly offensive to a reasonable person (not recognized NY).  Newsworthiness exception.  
Appropriation definition
Appropriation: Using P’s name or picture for a commercial purpose/likeness. Newsworthiness exception Only privacy tort that is recognized in NY. Recognized by statute.  tion.
Intrusion defintion
Intrusion: Invasion of the P’s affairs or seclusion in a way highly offensive to a reasonable person(not recognized by NY)
False light invasion of privacy definition
False light invasion of privacy: Widespread dissemination of a major falsehood about the P that would be highly offensive to a reasonable person (not recognized by NY)
Disclosure definition
Disclosure: Widespread dissemination of confidential information about the P that would be highly offensive to a reasonable person (not recognized NY).  Newsworthiness excep
Defenses to privacy action
1) Consent 
2) Truth (generally NOT a good defense)
3) Privileges (defense to false light and disclosure)
Fraud/Intentional Misrepresentation/Deceit (5 elements)
1) D must make a misrepresentation of a material fact

2) Scienter, i.e. when the D made the statement, D made the false statement intentionally or recklessly

3) Intent to induce reliance

4) Causation (acutal reliance )

5) Justifiable reliance  

6) Damages (P must suffer actual pecuniary loss)
Negligent Misrepresentation
1) Misrepresentation by D in a business or professional capacity

2) Breach of duty toward a particular P

3) Causation (actual reliance)

4) Jusifiable reliance

5) Damages. 

-Statement must be material
Malicious prosecution
1) Institution of criminal proceedings against P

2) Termination in P’s favor 3) Absence of probable cause for prior proceedings 4) Improper purpse 5) P suffered damages.
Business Torts
1. Prima facie tort (NY only)

2. Inducing a breach of K

3. Theft of Trade Secret (NY only??)
Prima facie tort (NY only)
1) Intent to do harm and no self-interest invovled/lack of justification (only interest is to do harm - "disinterested malevolence")

2) P must suffer damages
Inducing a breach of K
1) Existence of a K between P and 3rd party

2) Knowledge of K by D

3) Persuasion by the D directed at 3rd party designed to get that party to abandon K (intentional interference)

4) 3rd party breaches the K

5) Absence of privilege (privileged when there is a special or prexisting relationship b/w them, usually a trusted counselor or advisor)
Theft of Trade Secret
1) Valid trade secret

2) Taking by improper means (traitorous insider or industrial spy)
Trade secret definition
1) Information that provides a business advantage to the owner

2) Info must not be generally known

3) Owner takes reasonable efforts to keep it a secret
Personal property
1) Found property (abandoned, lost)

2) Gifts (inter vivos, gifts causa mortis)

3) Liens (general and specific)

4) Bailments
Found property - abandoned
Owner has given up possession (physical act) of an item with intent to give up title and control.  Intent can be inferred.
Found property - lost
Owner has accidentally parted with possession with no intent to relinquish control or ownership.  Original owner continues to own it.  NY DISTINCTION 
Found property - lost NY DISTINCTION
NY statute concerning rights of finder of lost property: If you find an item and it is valued at less than $20, you must make reas efforts to locate the owner.  If, after one year, you have not found the owner, you can keep the owner.  If over $20, you must turn it over to police who will hold it for a statutory period of time depending on value, then the finder can come claim it.  Longest period of time is 3 years for $5K or over
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