NYLE - Torts and Tort Damages UPDATED
ACTUAL Exam Questions and CORRECT
Answers
Negligence and Related Tort Concepts: Comparative negligence/assumption of risk: CPLR 1411,
1412 - CORRECT 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: Violation of statute or regulation - CORRECT
ANSWER - 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: Landowner liability: GOL § 9-103 - CORRECT
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.
Negligent supervision/entrustment - CORRECT 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]).
Negligent infliction of emotional distress - CORRECT 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
ACTUAL Exam Questions and CORRECT
Answers
Negligence and Related Tort Concepts: Comparative negligence/assumption of risk: CPLR 1411,
1412 - CORRECT 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: Violation of statute or regulation - CORRECT
ANSWER - 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: Landowner liability: GOL § 9-103 - CORRECT
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.
Negligent supervision/entrustment - CORRECT 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]).
Negligent infliction of emotional distress - CORRECT 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
