NY Bar Torts 2 — Questions and Answers
Question 1: To establish defamation, a private figure plaintiff suing on a matter of public concern must prove:
- Actual malice by the defendant
- At least negligence with respect to the truth of the statement (Correct answer)
- That the statement caused economic loss
- That the defendant published the statement intentionally
Correct answer: At least negligence with respect to the truth of the statement
Under Gertz v. Robert Welch, private figure plaintiffs need only prove negligence regarding falsity (not actual malice) when suing on a matter of public concern, though actual malice is required for presumed or punitive damages.
Question 2: The tort of intentional infliction of emotional distress requires that the defendant's conduct be:
- Harmful and offensive contact
- Extreme and outrageous, intentionally or recklessly causing severe emotional distress (Correct answer)
- Negligent conduct causing foreseeable emotional harm
- Publicly humiliating in nature
Correct answer: Extreme and outrageous, intentionally or recklessly causing severe emotional distress
IIED requires conduct so outrageous it exceeds all bounds of decency tolerated by society, done intentionally or recklessly, that causes severe emotional distress.
Question 3: Under New York law, joint and several liability means that when multiple defendants are liable:
- Each defendant pays only their proportionate share of damages
- Each defendant may be required to pay the entire judgment (Correct answer)
- Liability is divided equally among all defendants
- A plaintiff must sue all defendants simultaneously
Correct answer: Each defendant may be required to pay the entire judgment
Under traditional joint and several liability, each of multiple tortfeasors is individually liable for the entire judgment, allowing the plaintiff to recover 100% from any one defendant.
Question 4: In a products liability design defect case, the consumer expectation test asks whether:
- A reasonable manufacturer would have designed the product differently
- The product failed to perform as safely as an ordinary consumer would expect (Correct answer)
- The cost of preventing the danger outweighs the benefit
- The product met industry safety standards at the time of manufacture
Correct answer: The product failed to perform as safely as an ordinary consumer would expect
The consumer expectation test for design defect asks whether the product performed as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner.
Question 5: A defendant is liable for battery when they intentionally cause:
- The plaintiff to be in reasonable apprehension of imminent harmful contact
- Harmful or offensive contact with the plaintiff's person (Correct answer)
- The plaintiff emotional distress through physical conduct
- Any contact with the plaintiff without consent
Correct answer: Harmful or offensive contact with the plaintiff's person
Battery requires intentional harmful or offensive contact with the plaintiff's person; the defendant need not intend harm, only the contact itself.
Question 6: Under the doctrine of respondeat superior, an employer is vicariously liable for an employee's tort when the tort is committed:
- During the employee's commute to work
- Within the scope of employment (Correct answer)
- Whenever the employee is using company equipment
- Whenever the employer knew about the employee's dangerous conduct
Correct answer: Within the scope of employment
Respondeat superior imposes vicarious liability on employers for employee torts committed within the scope of employment—meaning acts the employer authorized or that were characteristic of the work.
NY Bar Torts 2
To establish defamation, a private figure plaintiff suing on a matter of public concern must prove: