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NYLE Torts and Tort Damages Test questions and answers 2025 latest update
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NYLE Torts and Tort Damages Test questions and answers 2025 latest update
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NYLE: Torts and TortDamages Test questions and
answers 2025 latest update.
Negligence and Related Tort Concepts
A. Comparative negligence/assumption of risk: CPLR 1411, 1412 -
answer New York is a pure comparative negligence jurisdiction. In
an action to recover damages for personal injury, injury to property
or wrongful death, the culpable conduct attributable to the claimant
or decedent, including contributory negligence or assumption of
risk, does not bar recovery. However, such conduct diminishes the
amount of damages otherwise recoverable in the proportion which
the culpable conduct attributable to the claimant or decedent bears
to the culpable conduct which caused the damages (CPLR 1411). For
example, if a jury returns a verdict in favor of the plaintiff in the
amount of $100,000 and apportions the liability 60% to the plaintiff
and 40% to the defendant, the plaintiff may recover $40,000.
Culpable conduct, including contributory negligence and assumption
of risk, claimed in diminution of damages is an affirmative defense
to be pleaded and proved by the party asserting the defense (CPLR
1412). Damages are diminished in cases of implied assumption of
the risk, but where the plaintiff voluntarily assumes the known risk
of injury, such express assumption of risk will absolve the defendant
of a duty owed to the plaintiff (Abergast v Board of Educ. of S. New
Berlin Cent. School, 65 NY2d 161 [1985]). A participant in a sports
or recreational activity voluntarily assumes and consents to the
risks which are inherent in and arise out of the nature of the sport
generally and which flow from participation (Morgan v State of New
York, 90 NY2d 471 [1997]).
Negligence and Related Tort Concepts
B. Violation of statute or regulation - answer B. Violation of statute
or regulation
,As a general rule, violation of a state statute that imposes a specific
duty constitutes negligence per se and violation of a municipal
ordinance or administrative rule or regulation constitutes some
evidence of negligence (Elliot v City of New York, 95 NY2d 730
[2001]). In certain cases, violation of a state statute may impose
absolute liability (see Torts and Tort Damages, I.F.).
Negligence and Related Tort Concepts
C. Landowner liability: GOL § 9-103 - answer In determining the
duty owed by the owner or occupier of land to a person entering the
premises, New York has abandoned the common law distinctions
among invitees, licensees and trespassers. Instead, New York has
adopted the single standard of reasonable care under the
circumstances. A landowner must act as a reasonable person in
maintaining the premises in a reasonably safe condition in view of
all of the circumstances, including the likelihood of injury to others,
the seriousness of the injury, and the burden of avoiding the risk
(Basso v Miller, 40 NY2d 233 [1976]).
Under New York's recreational use statute (GOL § 9-103), there is no
duty to keep premises safe for entry or use by others for hunting,
fishing, boating, hiking, cross-country skiing, sledding, snowmobile
operation or other recreational activities or to give warning of any
hazardous condition on the property. A landowner can be found
liable, however, for willful or malicious failure to guard or to warn
against a dangerous condition or generally for injury suffered where
permission to use the property was granted for consideration.
Negligence and Related Tort Concepts
D. Negligent supervision/entrustment - answer New York has
abrogated the defense of intra-family immunity for non-willful torts.
Thus, actions between parents and children are actionable to the
same extent that such actions are actionable when brought by non-
family members (Gelbman v Gelbman, 23 NY2d 434 [1969]).
However, a parent's negligent failure to supervise his or her child is
not actionable by the child, and third-party tortfeasors are not
entitled to contribution from parents for liability resulting, in part,
from negligent supervision of the child (Holodook v Spencer, 36
, NY2d 35 [1974]). There is an exception when the parent has
breached a duty owed to third parties by negligently permitting an
infant child to use a dangerous instrument. In that case, the parent
may be found liable to the third party injured as a consequence of
the parent's failure to protect the third party from the foreseeable
harm that results from a child's improvident use of a dangerous
instrument, which harm includes the third party's tort liability.
Accordingly, a third party cast in liability for injury to a child may
seek contribution from a parent who has negligently entrusted the
child with a dangerous instrument and whose negligence
contributed to the child's injury (Nolechek v Gesuale, 46 NY2d 332
[1978]).
Negligence and Related Tort Concepts
E. Negligent infliction of emotional distress - answer New York has
adopted a zone-of-danger rule with respect to emotional distress
suffered upon witnessing the injury of a member of plaintiff's
immediate family. A plaintiff is in the zone-of-danger if the plaintiff
is exposed to an unreasonable risk of injury due to the defendant's
conduct. Such a plaintiff may recover damages for injuries suffered
in consequence of shock or fright resulting from the
contemporaneous observation of serious physical injury or death of
a member of the plaintiff's immediate family, where the defendant's
same conduct was a substantial factor in causing injury to the
plaintiff's family member (Bovsun v Sanperi, 61 NY2d 219 [1984]).
The rule is based on the traditional negligence concept that, where
a defendant has unreasonably endangered the plaintiff's physical
safety, the defendant has breached a duty owed directly to plaintiff,
entitling plaintiff to recover all damages sustained, including those
damages suffered as a consequence of witnessing the suffering of
an immediate family member also injured by defendant's conduct
(id.).
Medical malpractice resulting in miscarriage or stillbirth is a
violation of a duty of care to the expectant mother, entitling her to
damages for emotional distress, even in the absence of an
independent injury to the mother (Broadnax v Gonzalez, 2 NY3d 148
[2004]).
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