Torts & Tort Damages Flashcards

A child trespasses and is injured by an artificial condition on defendant's property. Under New York's 'attractive nuisance' doctrine, which factor is most critical to imposing liability?

Answer: The owner knew or should have known children were likely to trespass and the risk outweighed the burden of eliminating it

Attractive nuisance liability turns on whether the owner had reason to anticipate child trespassers and whether the risk outweighed the utility and burden of protection.

Under New York law, which of the following best describes 'loss of consortium'?

Answer: A derivative claim by a spouse for loss of companionship, services, and society due to the other spouse's injuries

Loss of consortium is a derivative claim by a spouse for deprivation of companionship, services, and society caused by the tortfeasor's negligent injury to the other spouse.

In a New York negligence case, the 'but for' causation test asks:

Answer: Whether the plaintiff's injury would not have occurred but for the defendant's negligence

The 'but for' test establishes cause-in-fact by asking whether the harm would have occurred absent the defendant's negligent conduct.

Under New York law, a defendant raising the affirmative defense of 'assumption of risk' in a sports injury case relies primarily on:

Answer: The plaintiff's knowing and voluntary acceptance of inherent risks of the activity

Primary assumption of risk applies when a plaintiff voluntarily participates in a sport and thereby consents to the inherent risks of that activity, negating the defendant's duty.

In New York, a plaintiff's claim for future medical expenses must be established to what standard?

Answer: Reasonable certainty

Future damages must be proven to a reasonable certainty, meaning they are more likely than not to be incurred.

A New York plaintiff is struck by debris falling from a building under construction. They invoke res ipsa loquitur. Which element is essential for the doctrine to apply?

Answer: The event must be of a kind that ordinarily does not occur in the absence of negligence

Res ipsa loquitur requires that the type of harm ordinarily would not occur without negligence, the instrumentality was in the defendant's exclusive control, and the plaintiff did not contribute.

Under New York law, which party bears the burden of proving comparative fault of the plaintiff in a negligence action?

Answer: The defendant bears the burden of proving the plaintiff's comparative negligence

The defendant must plead and prove the plaintiff's comparative negligence as an affirmative defense under New York law.