NYLE Torts & Tort Damages 4 — Questions and Answers
Question 1: 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?
- The child was under age 7
- The owner knew or should have known children were likely to trespass and the risk outweighed the burden of eliminating it (Correct answer)
- The condition was naturally occurring
- The child had prior notice of the danger
Correct 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.
Question 2: Under New York law, which of the following best describes 'loss of consortium'?
- A claim for the injured party's lost wages
- A derivative claim by a spouse for loss of companionship, services, and society due to the other spouse's injuries (Correct answer)
- A claim available only in wrongful death actions
- Compensation for the plaintiff's own pain and suffering
Correct 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.
Question 3: In a New York negligence case, the 'but for' causation test asks:
- Whether the defendant's conduct was the most significant cause
- Whether the plaintiff's injury would not have occurred but for the defendant's negligence (Correct answer)
- Whether a third party's intervening act broke the chain of causation
- Whether the defendant could have foreseen the injury
Correct 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.
Question 4: Under New York law, a defendant raising the affirmative defense of 'assumption of risk' in a sports injury case relies primarily on:
- The plaintiff's comparative negligence
- The plaintiff's knowing and voluntary acceptance of inherent risks of the activity (Correct answer)
- The absence of a duty owed by the defendant
- Contributory fault of a third party
Correct 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.
Question 5: In New York, a plaintiff's claim for future medical expenses must be established to what standard?
- Beyond a reasonable doubt
- Reasonable certainty (Correct answer)
- A preponderance of admissible expert opinion
- Any credible evidence
Correct answer: Reasonable certainty
Future damages must be proven to a reasonable certainty, meaning they are more likely than not to be incurred.
Question 6: 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?
- The defendant must have acted intentionally
- The event must be of a kind that ordinarily does not occur in the absence of negligence (Correct answer)
- Multiple defendants must share control
- The plaintiff must show they were an invitee
Correct 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.
Question 7: Under New York law, which party bears the burden of proving comparative fault of the plaintiff in a negligence action?
- The plaintiff must disprove their own fault
- The defendant bears the burden of proving the plaintiff's comparative negligence (Correct answer)
- The jury decides without any party bearing the burden
- A neutral expert appointed by the court
Correct 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.
NYLE Torts & Tort Damages 4
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?