XV. Tort

DAMAGE CLAIMS: THE TORT CAUSES OF ACTION IN NEW YORK

Types for Causes of Action:

A. BUSINESS TORTS

    1. Accountant Malpractice
    2. Business Intentionally Interfered with by Outsider
    3. Computer Malpractice
    4. Unfair Competition
    5. Professional or Tradesperson Malpractice
    6. Usury

B. DEFAMATION TORTS

    1. Defamatory Injury to Reputation
    2. Injurious Falsehood
    3. Libel and Slander
    4. Product Disparagement
    5. Negligent Misrepresentation Causing Harm
    6. Right of Publicity
    7. Words Negligently Spoken

C. FRAUD TORTS

    1. Conversion
    2. Deceit
    3. Fraud and Deceit

D. INTELLECTUAL PROPERTY TORTS

    1. Artist’s Common Law Copyright Violated
    2. Idea Misappropriation
    3. Trade Secret Disclosed or Used Wrongfully
    4. Trafficking Counterfeit Trade or Service Marks

E. MOTOR VEHICLE/BOAT TORTS

    1. Automobile Damaged at Parking Facility
    2. Negligent Entrustment

F. PERSONAL INJURY TORTS

    1. Animal Attack Cause of Action
    2. Assault
    3. Battery
    4. Dental Malpractice
    5. Emotional Distress (Intentionally Inflicted)
    6. Emotional Distress (Negligently Inflicted)
    7. Exposing Another to Disease or Toxic Substances Negligently
    8. Failure to Warn and Protect from a Violent Patient
    9. False Arrest and Imprisonment
    10. Future Earning Capacity Damaged by Tort
    11. Future Injury from Present Tortious Personal Injury
    12. Future Medical Expenses Resulting from Tort
    13. Intentional or Malicious Harm to Another (Prima Facie Tort)
    14. Loss of Consortium
    15. Lost Capacity in Living Resulting from Tort
    16. Malpractice (or Malfeasance)
    17. Medical Malpractice
    18. Medical Provider Liability to Third Parties
    19. Negligence
    20. Negligently Caused Economic Loss
    21. Right of Sepulcher
    22. Survivorship
    23. Wrongful Birth
    24. Wrongful Death
    25. Wrongful Life

G. PERSONAL PROPERTY TORTS

    1. Cruelty to Animals
    2. Hotel Liability for Personalty Loss
    3. Lost Property to Be Returned to True Owner
    4. Property Disparagement
    5. Property Tortiously Damaged
    6. Recovery of a Chattel (Replevin)
    7. Repossessing/Reclamation of Goods
    8. Trespass
    9. Trespass on Land
    10. Trespass  to Personal Property/Chattel
    11. Trover

H. STATUS TORTS

    1. Administrative Negligence
    2. Aiding and Abetting the Commission of Tort
    3. Alternative Liability
    4. Bystander Emotional Distress
    5. Car Renter Liable for Injury
    6. Common Carrier Liability
    7. Conspiracy
    8. Conspiracy to Commit a Tort
    9. Indivisible Harm Caused by Separate Tortfeasors
    10. Municipal Liability
    11. Negligent Advice Causing Damage
    12. Negligent Entrustment
    13. Public Utility Liability
    14. Respondeat Superior
    15. Vicarious Liability
    16. Witness to Injury Suffering Emotional Distress

A. BUSINESS TORTS

I. ACCOUNTANT MALPRACTICE

Elements to prove:

  1. an accountant engaged in;
  2. a negligent departure;
  3. from the accepted standards of practice; and
  4. the departure was a proximate cause of the plaintiff’s injury.

II. BUSINESS INTENTIONALLY INTERFERED WITH BY OUTSIDER

Elements to prove:

  1. the existence of a contract that plaintiff may enforce;
  2. defendant’s knowledge of the contract’s existence;
  3. the intentional procurement by the defendant of the breach of the contract; and
  4. plaintiff suffered damages as a result.

III. COMPUTER MALPRACTICE

It is foreclosed under New York law.

IV. UNFAIR COMPETITION

Elements to prove:

  1. defendant used customer lists or customer information acquired from plaintiff;
  2. the identities of or information about the customers used was not readily ascertainable outside plaintiff’s business;
  3. defendant’s use of the information was the proximate cause; and
  4. cause in fact of plaintiff’s loss.

V. PROFESSIONAL OR TRADESPERSON MALPRACTICE

Elements to prove:

  1. A professional or tradesperson engaged in;
  2. a negligent departure;
  3. from the accepted standards of practice; and
  4. the departure was a proximate cause of the plaintiff’s injury.

VI. USURY

Elements to prove:

  1. the lender;
  2. knowingly charged, took or received;
  3. annual interest exceeding 25% (16% if civil usury);
  4. on a loan or forbearance.

B. DEFAMATION TORTS

I. DEFAMATORY INJURY TO REPUTATION

Elements to prove:

  1. the direct;
  2. natural;
  3. proximate results of; and
  4. an injury to reputation and character.

II. INJURIOUS FALSEHOOD

Elements to prove:

  1. utterance or publication of an untrue statement;
  2. to another;
  3. with malice comprising;
    1. ill will;
    2. scienter; or
    3. deliberate falsification;
  4. about the plaintiff’s business or property; and
  5. inducing others to refrain from dealing with plaintiff or otherwise depriving plaintiff of prospective economic advantage.

III. LIBEL AND SLANDER

LIBEL Elements to prove:

  1. the publication of;
  2. a statement;
  3. about an individual;
  4. that is both false; and
  5. defamatory.

SLANDER Elements to prove:

  1. publication of;
  2. a defamatory matter;
  3. heard by;
  4. some third party.

IV. PRODUCT DISPARAGEMENT

Elements to prove:

  1. the falsity of the statement;
  2. publication of the statement;
  3. actual malice; and
  4. special damages.

V. NEGLIGENT MISREPRESENTATION CAUSING HARM

Elements to prove:

  1. an awareness by the maker of the statement that it is to be used for a particular purpose;
  2. to a party who either has;
    1. actual privity of contract between the parties; or
    2. a relationship so close as to approach that of privity;
  3. reliance by the party on the statement;
  4. in furtherance of that purpose;
  5. some conduct by the maker of the statement linking it to the relying party; and
  6. defendant understood there is reliance upon the statement.

VI. RIGHT OF PUBLICITY

Elements to prove:

  1. the plaintiff’s name, portrait, picture, or voice;
  2. is used in New York for advertising purposes; or
  3. for the purposes of trade; and
  4. without the express written consent of the plaintiff.

VII. WORDS NEGLIGENTLY SPOKEN

Elements to prove:

  1. defendant spoke words;
  2. where defendant had a duty, if defendant spoke at all;
  3. to give the correct information
  4. defendant had knowledge that the information desired is sought for a serious purpose;
  5. to be relied and acted upon by the plaintiff;
  6. the information was false or erroneous;
  7. plaintiff who so relies and acts will be injured; and
  8. the relationship of the parties arising from contract or otherwise must be such that in morals and good conscience;
    1. the plaintiff has the right to rely upon the defendant for information; and
    2. defendant providing the information owes a duty to give it with care.

C. FRAUD TORTS

I. CONVERSION

Elements to prove:

  1. it had an immediate superior right of possession;
  2. to the identifiable fund;
  3. the exercise by defendant of unauthorized dominion over the money in question;
  4. to the exclusion of plaintiff’s rights.

II. DECEIT

Elements to prove:

  1. a false affirmation;
  2. made by the defendant;
  3. with scienter and intent to defraud the plaintiff; and
  4. plaintiff is damaged.

III. FRAUD AND DECEIT

Elements to prove:

  1. defendant made a misrepresentation of fact or omission;
  2. that was known to be false by the defendant;
  3. with the intent to induce plaintiff’s reliance upon it;
  4. plaintiff’s reliance upon this misrepresentation must be justifiable; and
  5. then defendant is liable for all harm caused to plaintiff.

D. INTELLECTUAL PROPERTY TORTS

I. ARTIST’S COMMON LAW COPYRIGHT VIOLATED

Elements to prove:

  1. plaintiff had original authorship;
  2. of a work; and
  3. plaintiff made the “first publication.”

II. IDEA MISAPPROPRIATION

PROPERTY CLAIMS Elements to prove:

  1. an idea;
  2. was communicated or disclosed to;
  3. defendant that;
  4. was novel and original; and
  5. resulting in value to defendant.

CONTRACT CLAIMS Elements to prove:

  1. typical contractual elements; and
  2. the disclosed idea was novel to the buyer to find consideration.

III. TRADE SECRET DISCLOSED OR USED WRONGFULLY

Elements to prove:

  1. a trade secret
    1. any formula;
    2. pattern;
    3. device; or
    4. compilation;
  2. of information used in one’s business;
  3. providing an opportunity to obtain an advantage over competitors who do not know or use it;
  4. that is novel or original; and
  5. used by defendant for its benefit.

IV. TRAFFICKING COUNTERFEIT TRADE OR SERVICE MARKS

Elements to prove:

  1. to make falsely or counterfeit a trademark; or
  2. to affix to any article of merchandise a false or counterfeit trademark;
  3. knowing the same to be false or counterfeit;
  4. knowingly selling, keeping, or offering for sale an article of merchandise; and
  5. that is affixed a false or counterfeit trademark.

E. MOTOR VEHICLE/BOAT TORTS

I. AUTOMOBILE DAMAGED AT PARKING FACILITY

Elements to prove:

  1. who has been injured by reason of any violation of the notice and towing requirements;
  2. may bring an action in his or her own name;
  3. to enjoin the unlawful act or practice;
  4. in an action;
  5. to recover his or her actual damages or $150, whichever is greater, or both such actions.

II. NEGLIGENT ENTRUSTMENT

Elements to prove:

  1. the owner or possessor of;
  2. a dangerous instrument;
  3. who has a duty to entrust it;
  4. to a responsible person; and
  5. whose use does not create an unreasonable risk of harm to others

F. PERSONAL INJURY TORTS

I. ANIMAL ATTACK CAUSE OF ACTION

Elements to prove:

  1. domestic animal;
  2. who either knows or should have known of;
  3. the animal’s vicious propensities; and
  4. as a result of those propensities, causes damages to plaintiff.

II. ASSAULT

Elements to prove:

  1. the intentional placing of;
  2. another;
  3. in apprehension of
  4. imminent harmful or offensive contact.

III. BATTERY

Elements to prove:

  1. bodily contact;
  2. made with intent; and
  3. offensive in nature.

IV. DENTAL MALPRACTICE

Elements to prove:

  1. a duty;
  2. a breach of that duty
  3. the defendant departed from good and accepted dental practice;
  4. the departure was the proximate cause;
  5. damages and injuries.

V. EMOTIONAL DISTRESS (INTENTIONALLY INFLICTED)

Elements to prove:

  1. intentional or reckless;
  2. extreme and outrageous conduct;
  3. intended to cause severe emotional distress;
  4. forming the nexus between the conduct and the injury; and
  5. causing severe emotional distress to another.

VI. EMOTIONAL DISTRESS (NEGLIGENTLY INFLICTED)

Elements to prove:

  1. a breach of;
  2. a duty owed directly to;
  3. the plaintiff, either;

VII. EXPOSING ANOTHER TO DISEASE OR TOXIC SUBSTANCES NEGLIGENTLY

Elements to prove:

  1. exposed;
  2. directly or indirectly by
    1. absorption;
    2. contact;
    3. ingestion;
    4. inhalation;
    5. implantation; or
    6. injection;
  3. to a disease or a toxic substance.

VIII. FAILURE TO WARN AND PROTECT FROM A VIOLENT PATIENT

Elements to prove:

  1. a defendant has a duty to control;
  2. the conduct of the third person;
  3. to prevent him or her from causing physical harm to another;
  4. only where the defendant;
  5. had the ability to control the actions of a person known to be violent.

IX. FALSE ARREST AND IMPRISONMENT

Elements to prove:

  1. defendant intended to confine the plaintiff;
  2. who was conscious of the confinement;
  3. with no consent to the confinement; and
  4. the confinement was not otherwise privileged.

X. FUTURE EARNING CAPACITY DAMAGED BY TORT

It must be established with reasonable certainty based on the difference between plaintiff’s potential earning capacity before and after the tort.

XI. FUTURE INJURY FROM PRESENT TORTIOUS PERSONAL INJURY

Recovery is permissible.

XII. FUTURE MEDICAL EXPENSES RESULTING FROM TORT

Elements to prove:

  1. expected medical charges and their value;
  2. that the future services or supplies are necessary to treat the injury;
  3. there is a causal connection between
    1. the condition;
    2. the future medical care; and
    3. injuries inflicted by defendant; and
  4. the services and their value are reasonable.

XIII. INTENTIONAL OR MALICIOUS HARM TO ANOTHER (PRIMA FACIE TORT)

Elements to prove:

  1. the action complained of;
  2. was solely motivated by malice or “disinterested malevolence”;
  3. without excuse or justification;
  4. by act or series of acts that would otherwise be lawful;
  5. plaintiff suffered a specific, measurable loss;
  6. requiring special damages.

XIV. LOSS OF CONSORTIUM

Elements to prove:

  1. during the period of decedent’s;
  2. conscious pain and suffering;
  3. if decedent incurred pecuniary injuries.

XV. LOST CAPACITY IN LIVING RESULTING FROM TORT

The Plaintiff may recover.

XVI. MALPRACTICE (OR MALFEASANCE)

Elements to prove:

  1. the negligence of a member of a profession; and
  2. in his or her relations with his or her client or patient.

XVII. MEDICAL MALPRACTICE

Elements to prove:

  1. there was a deviation or a departure;
  2. from good and accepted practice; and
  3. such departure or deviation was a proximate cause of injury or damage.

XVIII. MEDICAL PROVIDER LIABILITY TO THIRD PARTIES

Elements to prove:

  1. medical provider, for example, hospital, physician, or physician’s assistant;
  2. prescribes medication to patient;
  3. fails to warn patient of dangers of the medication; and
  4. results in injury to third party.

XIX. NEGLIGENCE

Elements to prove:

  1. duty owed;
  2. by the defendant to the plaintiff;
  3. breach of that duty; and
  4. the breach of that duty constituted a proximate cause of the injury.

XX. NEGLIGENTLY CAUSED ECONOMIC LOSS

No recovery under negligence.

XXI. RIGHT OF SEPULCHER

Elements to prove:

  1. he or she is the next of kin of a decedent;
  2. his or her right to immediate possession of a decedent’s body has been interfered with by, among other things, an unauthorized autopsy, inadvertent disposition of remains, the next of kin not being notified of the death; and
  3. such interference has caused mental anguish.

XXII. SURVIVORSHIP

Elements to prove:

  1. decedent pain and suffering; and
  2. cognitive awareness of the pain and suffering; that is
    1. decedent was conscious; or
    2. pre-impact terror where decedent was aware of his/her own impending death.

XXIII. WRONGFUL BIRTH

Elements to prove:

  1. the child requires;
  2. extraordinary medical treatment;
  3. to be rendered during the child’s minority.

XIV. WRONGFUL DEATH

Elements to prove:

  1. to recover damages for a;
    1. wrongful act;
    2. neglect; or
    3. default;
  2. that caused the decedent’s death;
  3. against a person;
  4. who would have been liable to the decedent; and
  5. by reason of such wrongful conduct if death had not ensued.

XV. WRONGFUL LIFE

No cause of action.

G. PERSONAL PROPERTY TORTS

I. CRUELTY TO ANIMALS

Elements to prove:

  1. overdrives, overloads, tortures or cruelly beats or unjustifiably injures, maims, mutilates or kills any animal, whether wild or tame, and whether belonging to himself or to another;
  2. deprives any animal of necessary sustenance, food or drink;
  3. neglects or refuses to furnish any animal such sustenance or drink;
  4. causes, procures or permits any animal to be overdriven, overloaded, tortured, cruelly beaten, or unjustifiably injured, maimed, mutilated or killed, or to be deprived of necessary food or drink; or
  5. willfully sets on foot, instigates, engages in, or in any way furthers any act of cruelty to any animal, or any act tending to produce such cruelty.

II. HOTEL LIABILITY FOR PERSONALTY LOSS

Elements to prove:

  1. a guest;
  2. who deposits personal property;
  3. with a hotel or innkeeper;
  4. for safekeeping;
  5. complies with the statutory requirements of;
    1. giving the innkeeper notice of the property’s value; and
    2. obtaining a receipt.

III. LOST PROPERTY TO BE RETURNED TO TRUE OWNER

The criminal statute that governs liability concerning the return of lost property to a true owner. However other causes of action such as negligence or conversion would apply if a true owner sought the return of the property.

IV. PROPERTY DISPARAGEMENT

Elements to prove:

  1. a product;
  2. subject to false criticism;
  3. with malice; and
  4. special damages if the accusation does not touch upon the integrity or business methods of the corporate manufacturer itself.

V. PROPERTY TORTIOUSLY DAMAGED

Recovery is possible under negligence.

VI. RECOVERY OF A CHATTEL (REPLEVIN)

Elements to prove:

  1. it is the owner;

  2. whose property has been stolen; and
  3. even if it is in the possession of a good-faith purchaser for value.

VII. REPOSSESSING/RECLAMATION OF GOODS

Elements to prove:

  1. the right of a seller;
  2. to recover possession of goods;
  3. delivered to an insolvent buyer; and
  4. who fraudulently induced delivery by misrepresenting its solvency.

VIII. TRESPASS

Elements to prove:

  1. possession of;
  2. property;
  3. belonging to another.

IX. TRESPASS ON LAND

Elements to prove:

  1. the interference with;
  2. a person’s right to possession of real property either;
    1. by an unlawful act; or
    2. a lawful act performed in an unlawful manner.

X. TRESPASS TO PERSONAL PROPERTY/CHATTEL

Elements to prove:

  1. interference with possession;
  2. of the property of another;
  3. committed intentionally and improperly; and
  4. damages.

XI. TROVER

Elements to prove:

  1. a defendant undertakes;
  2. to control property;
  3. in defiance or exclusion;
  4. of the owner.

H. STATUS TORTS

I. ADMINISTRATIVE NEGLIGENCE

Elements to prove:

  1. defendant had a duty to plaintiff;
  2. failed to use due care; and
  3. such failure was a proximate cause of the injury.

II. AIDING AND ABETTING THE COMMISSION OF TORT

Elements to prove:

  1. the existence of a violation by the primary wrongdoer;
  2. knowledge of the violation by the aider and abettor; and
  3. proof that the aider and abettor substantially assisted the primary wrongdoer.

III. ALTERNATIVE LIABILITY

Elements to prove:

  1. all possible tortfeasors are before the court;
  2. all have breached a duty toward the plaintiff;
  3. the conduct of one of the defendants has caused plaintiff’s injuries; and
  4. the defendants, as a group, have better access to information concerning the incident than does the plaintiff.

IV. BYSTANDER EMOTIONAL DISTRESS

Elements to prove:

  1. where a defendant’s conduct is negligent as creating an unreasonable risk of bodily harm;
  2. to a plaintiff;
  3. such conduct is a substantial factor in bringing about injuries to the plaintiff;
  4. in consequence of shock or fright resulting;
  5. from his or her contemporaneous observation of
    1. serious physical injury; or
    2. death inflicted;
  6. by the defendant’s conduct; and
  7. on a member of the plaintiff’s immediate family in his or her presence.

V. CAR RENTER LIABLE FOR INJURY

Elements to prove:

  1. any claim for such damage must be based on a physical survey and must be made upon the return of the rental vehicle, unless returned by automation or after-hours, thus precluding a survey, then any such claim must be made within 10 days after return;
  2. any charge for repair of such damage must be limited to actual and reasonable costs and must be assessed and billed separately and apart from the rental agreement;
  3. within a specified time after the return of the vehicle, the car rental company must furnish the authorized driver with an incident report form so that the driver may describe any physical and/or mechanical damage to the vehicle;
  4. an authorized driver cannot be held liable for mechanical damage unrelated to an accident, nor for any normal wear and tear or other mechanical damage that could reasonably be expected from normal use of the vehicle, except in instances where abuse or neglect by the driver is shown; and
  5. an authorized driver cannot be held liable for damage to, or loss of, a rental vehicle unless the rental vehicle company complies with disclosure requirements relating to the nature and extent of such liability and the driver’s rights and responsibilities under the law.

VI. COMMON CARRIER LIABILITY

Elements to prove:

  1. a person gives property;
  2. to a common carrier for shipment;
  3. where a loss, damage, or other injury occurs, except when said loss, damage or other injury is caused by;
    1. an Act of God;
    2. act of a public enemy; or
    3. the shipper’s fault.

VII. CONSPIRACY

Elements to prove:

  1. A primary tort;
  2. A corrupt agreement between two or more parties;
  3. An overt act in furtherance of the agreement;
  4. The parties’ intentional participation in the furtherance of a plan or purpose; and
  5. Damage or injury.

VIII. CONSPIRACY TO COMMIT A TORT

No cause of action.

IX. INDIVISIBLE HARM CAUSED BY SEPARATE TORTFEASORS

Elements to prove:

  1. separate and independent acts;
  2. that combine to cause;
    1. a single injury; or
    2. successive injuries; and
  3. the injuries cannot be apportioned among the tortfeasors.

X. MUNICIPAL LIABILITY

Elements to prove:

  1. A municipality assumption, through promises or actions, of an affirmative duty to act on behalf of the injured party;
  2. Knowledge that municipality’s agents’ inaction could lead to harm;
  3. Some form of direct contact between municipal agent and injured party; and
  4. Injured party’s justifiable reliance on municipality’s affirmative undertaking.

XI. NEGLIGENT ADVICE CAUSING DAMAGE

Elements to prove:

  1. plaintiff consulted the defendants;
  2. concerning a legal question;
  3. there was a lack of due care in advising; and
  4. the plaintiff suffered a loss in consequence.

XII. NEGLIGENT ENTRUSTMENT

Elements to prove:

  1. the owner or possessor;

  2. of a dangerous instrument;
  3. is under a duty to entrust it;
  4. to a responsible person;
  5. whose use does not create an unreasonable risk of harm to others.

XIII. PUBLIC UTILITY LIABILITY

Elements to prove:

  1. a public utility;
  2. was willful misconduct or gross negligence; and
  3. results in damages.

XIV. RESPONDEAT SUPERIOR

Elements to prove:

  1. the employee has done something;
  2. in furtherance of the employee’s duties;
  3. owed to the employer; and
  4. where the employer is, or could be, exercising some control, directly or indirectly, over the employee’s activities.

XV. VICARIOUS LIABILITY

Elements to prove:

  1. more than simply a connection between the parties;
  2. that there was actual agency and control;
  3. over the tortfeasor; and
  4. not a mere association.

XVI. WITNESS TO INJURY SUFFERING EMOTIONAL DISTRESS

A witness to an injury may not raise a claim for suffering emotional distress.

the above is an abstract from the Encyclopedia of New York Causes of Action by Ernest Edward Badway, 2018 edition.