BarBri - NY Exam - July 2014 Forum

[thetashster]

Is assumption of the risk a complete defense in NY to strict products liability claims?

IIRC, assumption of risk is abolished in NY

Slightly different question that I think someone else may have already asked. What's the effect of plaintiff's negligence on a strict liability claim? I know it obviously doesn't eliminate liability, since NY is pure comparative, so it wouldn't even eliminate negligence liability. But can it reduce damages in a strict liability case? What about failure to mitigate damages? (For some reason I feel like I've read somewhere that failure to mitigate can reduce a strict liability award but negligence can't... but I could be way way wrong)

This is a very good question that I'd like to know more about too because it is not in the CMR an wasn't fleshed out in lecture very much at all.

N.Y. C.P.L.R. § 1411 says comparative negligence is a permissible defense to personal injury, defense of property, or wrongful death--and does not limit it to only negligent causes of action, which implies to me that it could be used as a defense to strict liability.

I'm not sure about failure to mitigate damages and its effect on strict liability awards. I'd imagine it would reduce recovery to the extent such failure aggravated the injuries. *shrugs*

i thought the whole point of strict liability was that no matter what you're strictly liable, regardless of plaintiff's actions. in product's liability, the manufacturer will be fine as long as what the plaintiff did wasn't foreseeable. but even if he was negligent, and it was foreseeable, the plaintiff can still recover.

[thetashster]

Is assumption of the risk a complete defense in NY to strict products liability claims?

IIRC, assumption of risk is abolished in NY

Slightly different question that I think someone else may have already asked. What's the effect of plaintiff's negligence on a strict liability claim? I know it obviously doesn't eliminate liability, since NY is pure comparative, so it wouldn't even eliminate negligence liability. But can it reduce damages in a strict liability case? What about failure to mitigate damages? (For some reason I feel like I've read somewhere that failure to mitigate can reduce a strict liability award but negligence can't... but I could be way way wrong)

This is a very good question that I'd like to know more about too because it is not in the CMR an wasn't fleshed out in lecture very much at all.

N.Y. C.P.L.R. § 1411 says comparative negligence is a permissible defense to personal injury, defense of property, or wrongful death--and does not limit it to only negligent causes of action, which implies to me that it could be used as a defense to strict liability.

I'm not sure about failure to mitigate damages and its effect on strict liability awards. I'd imagine it would reduce recovery to the extent such failure aggravated the injuries. *shrugs*

i thought the whole point of strict liability was that no matter what you're strictly liable, regardless of plaintiff's actions. in product's liability, the manufacturer will be fine as long as what the plaintiff did wasn't foreseeable. but even if he was negligent, and it was foreseeable, the plaintiff can still recover.[/quote]

Defenses to Strict Liability

The plaintiff is under no duty to inspect the product and so his failure to do so will not be a valid contributory negligence defense. However, where the plaintiff is injured due to an unreasonable misuse of a defective product, contributory negligence will be valid and may bar liability. See McDevitt v. Standard Oil, 391 F.2d 364 (5th Cir. 1968).

Comparative negligence is a valid defense. Most jurisdictions that have adopted comparative negligence will reduce the plaintiff’s recovery in these cases to reflect the fact that plaintiff contributed to his own injuries. See Rudisaile v. Hawk Aviation, Inc., 592 P.2d 175 (N.M. 1979).

Finally, assumption of the risk is also a valid defense. A plaintiff who knows the danger of using a certain defective product and continues to use the product anyway may be held to have assumed the risk. However, in order for assumption of the risk to be a viable defense, the plaintiff must have actually known of the particular danger involved in using the defective product and voluntarily continued to use that product anyway.

Where the plaintiff knows of the potential risks involved in continuing to use a defective product, but has no choice but to continue using the product, assumption of the risk is not available as a valid defense.

[DevilDaze]

[quote="thetashster"][quote="thetashster"][quote="Guchster"][quote="thetashster"][quote="DevilDaze"]Is assumption of the risk a complete defense in NY to strict products liability claims?[/quote]

IIRC, assumption of risk is abolished in NY[/quote]

Slightly different question that I think someone else may have already asked. What's the effect of plaintiff's negligence on a strict liability claim? I know it obviously doesn't eliminate liability, since NY is pure comparative, so it wouldn't even eliminate negligence liability. But can it reduce damages in a strict liability case? What about failure to mitigate damages? (For some reason I feel like I've read somewhere that failure to mitigate can reduce a strict liability award but negligence can't... but I could be way way wrong)[/quote]

This is a very good question that I'd like to know more about too because it is not in the CMR an wasn't fleshed out in lecture very much at all.

N.Y. C.P.L.R. § 1411 says comparative negligence is a permissible defense to personal injury, defense of property, or wrongful death--and does not limit it to only negligent causes of action, which implies to me that it could be used as a defense to strict liability.

I'm not sure about failure to mitigate damages and its effect on strict liability awards. I'd imagine it would reduce recovery to the extent such failure aggravated the injuries. *shrugs*[/quote]

i thought the whole point of strict liability was that no matter what you're strictly liable, regardless of plaintiff's actions. in product's liability, the manufacturer will be fine as long as what the plaintiff did wasn't foreseeable. but even if he was negligent, and it was foreseeable, the plaintiff can still recover.[/quote]

Defenses to Strict Liability

The plaintiff is under no duty to inspect the product and so his failure to do so will not be a valid contributory negligence defense. However, where the plaintiff is injured due to an unreasonable misuse of a defective product, contributory negligence will be valid and may bar liability. See McDevitt v. Standard Oil, 391 F.2d 364 (5th Cir. 1968).

Comparative negligence is a valid defense. Most jurisdictions that have adopted comparative negligence will reduce the plaintiff’s recovery in these cases to reflect the fact that plaintiff contributed to his own injuries. See Rudisaile v. Hawk Aviation, Inc., 592 P.2d 175 (N.M. 1979).

Finally, assumption of the risk is also a valid defense. A plaintiff who knows the danger of using a certain defective product and continues to use the product anyway may be held to have assumed the risk. However, in order for assumption of the risk to be a viable defense, the plaintiff must have actually known of the particular danger involved in using the defective product and voluntarily continued to use that product anyway.

Where the plaintiff knows of the potential risks involved in continuing to use a defective product, but has no choice but to continue using the product, assumption of the risk is not available as a valid defense.[/quote]


Yea, although AoR is analyzed under comparative negligence now, in the negligence context, express and primary AoR are complete bars to recovery, notwithstanding NY's comparative negligence statute.

[turquoiseturtle]

I think this is right. I mean, strict liability is just about the duty that is owed. If a strict duty is breached, but it isn't the sole legal cause of the plaintiff's injury, but the plaintiff himself is also to blame, then I don't see why it wouldn't apply. It seems like failure to mitigate damages would apply for the same reason.

This is what I sort of think applies. I'm might letting personal opinion get in the way though, because I just can't fathom a system working where a plaintiff could just be ridiculously negligent and still be able to recover because "strict liability!"

[harmonep07]

So, analyzing strict liability situations under NY's approach to assumption of risk may look something like: (a) when plaintiff discovers a defect, recognizes a danger of using the product in a certain way, and does so anyway, the manufacturer has a duty to the plaintiff that is even lower than strict liability; or (b) if plaintiff does not discover the defect but rather misuses the defective product in a foreseeable manner, but does so in a way that is unreasonable, the plaintiff will also have a limited recovery.

[harmonep07]

So, analyzing strict liability situations under NY's approach to assumption of risk may look something like: (a) when plaintiff discovers a defect, recognizes a danger of using the product in a certain way, and does so anyway, the manufacturer has a duty to the plaintiff that is even lower than strict liability; or (b) if plaintiff does not discover the defect but rather misuses the defective product in a foreseeable manner, but does so in a way that is unreasonable, the plaintiff will also have a limited recovery.

In (a) I meant to say it could be a complete defense. Although manufacturers have a duty to protect or warn against defects that could cause injury from foreseeable misuses, they do not owe a strict duty to protect persons from voluntarily using a dangerous product that they know to be dangerous.

[harmonep07]

This is conjecture btw and I have no idea if I'm correct.

[turquoiseturtle]

So, analyzing strict liability situations under NY's approach to assumption of risk may look something like: (a) when plaintiff discovers a defect, recognizes a danger of using the product in a certain way, and does so anyway, the manufacturer has a duty to the plaintiff that is even lower than strict liability; or (b) if plaintiff does not discover the defect but rather misuses the defective product in a foreseeable manner, but does so in a way that is unreasonable, the plaintiff will also have a limited recovery.

In (a) I meant to say it could be a complete defense. Although manufacturers have a duty to protect or warn against defects that could cause injury from foreseeable misuses, they do not owe a strict duty to protect persons from voluntarily using a dangerous product that they know to be dangerous.

Okay so this is my understanding of a bunch of different ways this could apply to knife manufacturer. I like having more concrete examples.

1. Obviously knives are pretty dangerous but there's no strict liability for using a normal, non-defective knife because its so obviously dangerous. This is regardless of how you're using it. If you're using it for the totally normal foreseeable use of cutting a watermelon and your hand slips and you cut yourself or if you're using it to try and shave your legs (i'm assuming thats weird and unforeseeable).

2. If the knife was faultily manufactured so that it snaps in two when someone is using it in a normal manner and flies off and hits someone: strict liability. But if it breaks when I'm shaving my legs: no liability because its crazy and unforeseeable?

3. But then if the person keeps using this clearly dangerous and defective knife and injures themselves again: no strict liability because its unforeseeable that you'd keep using something that is so obviously defective? Or maybe just comparative negligence analysis that reduces the recovery? To me this situation seems like there should be no liability for the knife maker.

[PennBull]

Hey y'all I have a favor to ask

I seem to have neglected to save my lecture handout for criminal law filled out to my hard drive and now I don't have it. Anyone have a filled out copy I can have? I'd really appreciate it!

[harmonep07]

So, analyzing strict liability situations under NY's approach to assumption of risk may look something like: (a) when plaintiff discovers a defect, recognizes a danger of using the product in a certain way, and does so anyway, the manufacturer has a duty to the plaintiff that is even lower than strict liability; or (b) if plaintiff does not discover the defect but rather misuses the defective product in a foreseeable manner, but does so in a way that is unreasonable, the plaintiff will also have a limited recovery.

In (a) I meant to say it could be a complete defense. Although manufacturers have a duty to protect or warn against defects that could cause injury from foreseeable misuses, they do not owe a strict duty to protect persons from voluntarily using a dangerous product that they know to be dangerous.

Okay so this is my understanding of a bunch of different ways this could apply to knife manufacturer. I like having more concrete examples.

1. Obviously knives are pretty dangerous but there's no strict liability for using a normal, non-defective knife because its so obviously dangerous. This is regardless of how you're using it. If you're using it for the totally normal foreseeable use of cutting a watermelon and your hand slips and you cut yourself or if you're using it to try and shave your legs (i'm assuming thats weird and unforeseeable).

2. If the knife was faultily manufactured so that it snaps in two when someone is using it in a normal manner and flies off and hits someone: strict liability. But if it breaks when I'm shaving my legs: no liability because its crazy and unforeseeable?

3. But then if the person keeps using this clearly dangerous and defective knife and injures themselves again: no strict liability because its unforeseeable that you'd keep using something that is so obviously defective? Or maybe just comparative negligence analysis that reduces the recovery? To me this situation seems like there should be no liability for the knife maker.

Take a chair, for instance.

(1) standing on chairs to grab things from high places is foreseeable. But, suppose someone with a chair looks at it, notices it is obviously not going to hold his weight, and stands on it. It breaks. Seems to me like primary assumption of risk, and there is no liability.

(2) on the other hand, suppose someone stands on the chair and it breaks, and as they fall, instead of putting their hand out to brave themselves, they keep trying to grab something from a shelf before they fall and are injured more severely. This seems like secondary assumption of risk and maybe should reduce recovery.

[thetashster]

Hey y'all I have a favor to ask

I seem to have neglected to save my lecture handout for criminal law filled out to my hard drive and now I don't have it. Anyone have a filled out copy I can have? I'd really appreciate it!

i've got the outline word for word from the hand out. if you want it!

[thetashster]

So, analyzing strict liability situations under NY's approach to assumption of risk may look something like: (a) when plaintiff discovers a defect, recognizes a danger of using the product in a certain way, and does so anyway, the manufacturer has a duty to the plaintiff that is even lower than strict liability; or (b) if plaintiff does not discover the defect but rather misuses the defective product in a foreseeable manner, but does so in a way that is unreasonable, the plaintiff will also have a limited recovery.

In (a) I meant to say it could be a complete defense. Although manufacturers have a duty to protect or warn against defects that could cause injury from foreseeable misuses, they do not owe a strict duty to protect persons from voluntarily using a dangerous product that they know to be dangerous.

Okay so this is my understanding of a bunch of different ways this could apply to knife manufacturer. I like having more concrete examples.

1. Obviously knives are pretty dangerous but there's no strict liability for using a normal, non-defective knife because its so obviously dangerous. This is regardless of how you're using it. If you're using it for the totally normal foreseeable use of cutting a watermelon and your hand slips and you cut yourself or if you're using it to try and shave your legs (i'm assuming thats weird and unforeseeable).

2. If the knife was faultily manufactured so that it snaps in two when someone is using it in a normal manner and flies off and hits someone: strict liability. But if it breaks when I'm shaving my legs: no liability because its crazy and unforeseeable?

3. But then if the person keeps using this clearly dangerous and defective knife and injures themselves again: no strict liability because its unforeseeable that you'd keep using something that is so obviously defective? Or maybe just comparative negligence analysis that reduces the recovery? To me this situation seems like there should be no liability for the knife maker.[/quote]
Take a chair, for instance.

(1) standing on chairs to grab things from high places is foreseeable. But, suppose someone with a chair looks at it, notices it is obviously not going to hold his weight, and stands on it. It breaks. Seems to me like primary assumption of risk, and there is no liability.

(2) on the other hand, suppose someone stands on the chair and it breaks, and as they fall, instead of putting their hand out to brave themselves, they keep trying to grab something from a shelf before they fall and are injured more severely. This seems like secondary assumption of risk and maybe should reduce recovery.[/quote]


okay but if it's foreseeablet hat somebody would stand on a chair, why wouldn't you put a warning on it?

and then what happens if you stand on it, disobeying/ignoring the warning?

[harmonep07]

So, analyzing strict liability situations under NY's approach to assumption of risk may look something like: (a) when plaintiff discovers a defect, recognizes a danger of using the product in a certain way, and does so anyway, the manufacturer has a duty to the plaintiff that is even lower than strict liability; or (b) if plaintiff does not discover the defect but rather misuses the defective product in a foreseeable manner, but does so in a way that is unreasonable, the plaintiff will also have a limited recovery.

In (a) I meant to say it could be a complete defense. Although manufacturers have a duty to protect or warn against defects that could cause injury from foreseeable misuses, they do not owe a strict duty to protect persons from voluntarily using a dangerous product that they know to be dangerous.

Okay so this is my understanding of a bunch of different ways this could apply to knife manufacturer. I like having more concrete examples.

1. Obviously knives are pretty dangerous but there's no strict liability for using a normal, non-defective knife because its so obviously dangerous. This is regardless of how you're using it. If you're using it for the totally normal foreseeable use of cutting a watermelon and your hand slips and you cut yourself or if you're using it to try and shave your legs (i'm assuming thats weird and unforeseeable).

2. If the knife was faultily manufactured so that it snaps in two when someone is using it in a normal manner and flies off and hits someone: strict liability. But if it breaks when I'm shaving my legs: no liability because its crazy and unforeseeable?

3. But then if the person keeps using this clearly dangerous and defective knife and injures themselves again: no strict liability because its unforeseeable that you'd keep using something that is so obviously defective? Or maybe just comparative negligence analysis that reduces the recovery? To me this situation seems like there should be no liability for the knife maker.

Take a chair, for instance.

(1) standing on chairs to grab things from high places is foreseeable. But, suppose someone with a chair looks at it, notices it is obviously not going to hold his weight, and stands on it. It breaks. Seems to me like primary assumption of risk, and there is no liability.

(2) on the other hand, suppose someone stands on the chair and it breaks, and as they fall, instead of putting their hand out to brave themselves, they keep trying to grab something from a shelf before they fall and are injured more severely. This seems like secondary assumption of risk and maybe should reduce recovery.[/quote]


okay but if it's foreseeablet hat somebody would stand on a chair, why wouldn't you put a warning on it?

and then what happens if you stand on it, disobeying/ignoring the warning?[/quote]

Well, maybe you wouldn't put a warning because you don't realize it's defective. And anyway, the only way a warning can cure a defect is if there isn't a design defect. If there is a feasible alternative design, a warning doesn't matter. So in that case if the person stood on it even though they read the warning, I guess maybe you could try to argue they assumed the risk, but I think you have to be pretty specific about the risk they assumed. Just reading a warning may not have apprised them of the gravity of the risk.

[pizzasodafries]

pretty sure the negligence of P will only play a factor in the damages mitigation part of the suit.

Here are my notes on this:

4) Comparative Responsibility- The Defense the D can use
a. Any plaintiff misconduct with respect to any strict liability fact pattern will lead to a damage reduction based on percentages
b. For all 3 categories of strict liability the D can show that the P was acting stupid, careless, foolhardy that could result in an assignment of blame and reduction of damages.

[peanut123]

Does anyone know if the sample answers to the old MPTs in the MPT book are written by BarBri w/o time constraints,etc. or actual student answers? I see they have a note stating an excellent answer can be shorter and less thorough, but I'm just curious who wrote what I'm reading.

I was just looking into this and there is a marked difference between the student answers and the Barbri answers, at least for the couple I looked at. For example, July 2004 had Graham Realty Inc v. Brenda Chapin as the MPT - Barbri's answer is 8 pages. The two student answers are about 3 each. [http://lawweb.pace.edu/library/bar/200407.pdf]

[turquoiseturtle]

Now that we all sufficiently understand (or are confused) about strict liability another question:

Can someone who understands it please explain the whole "serious/grave injury" thing with regard to both no-fault insurance and worker's compensation? I am super confused, and I suspect its because I took bad notes while listening to the torts lecture (I needed a handout!).

My understanding is this: under both no-fault insurance and worker's compensation, that is generally your only remedy if you're involved in a car accident or injured at work respectively. Under no-fault insurance, if you have a "serious injury" you can plead that and sue in tort instead of just taking your payment under no-fault insurance. Under worker's compensation, even with a "grave injury" you cannot sue your employer. BUT under worker's comp you can always sue some third party (like the manufacturer of the machine you were injured by) and if there is a "grave injury" the third party can sue your employer for contribution (but can't if there is not "grave injury")

Am I super wrong?

edited to reflect serious/grave distinction

[Guchster]

Now that we all sufficiently understand (or are confused) about strict liability another question:

Can someone who understands it please explain the whole "serious injury" thing with regard to both no-fault insurance and worker's compensation? I am super confused, and I suspect its because I took bad notes while listening to the torts lecture (I needed a handout!).

My understanding is this: under both no-fault insurance and worker's compensation, that is generally your only remedy if you're involved in a car accident or injured at work respectively. Under no-fault insurance, if you have a "serious injury" you can plead that and sue in tort instead of just taking your payment under no-fault insurance. Under worker's compensation, even with a "serious injury" you cannot sue your employer. BUT under worker's comp you can always sue some third party (like the manufacturer of the machine you were injured by) and if there is a "serious injury" the third party can sue your employer for contribution (but can't if there is not "serious injury")

Am I super wrong?

Just to be overly technical and make sure I lose the forest for the trees, I'm going to point out for people that serious and grave injury are two differently defined statutory terms.

Serious Injury (for no-fault): Insurance Law § 5102(d)
“Serious injury” means a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system, or a medically determined injury or impairment of a non permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less that ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.


Grave Injury (for worker's comp): N. Y. Work. Comp.  §11. 
A ‘grave injury” includes death, loss of limb, paraplegia, blindness, deafness, severe facial disfigurement, loss of a nose, ear, or index finger, or a brain injury resulting in permanent total disability. 

[turquoiseturtle]

Now that we all sufficiently understand (or are confused) about strict liability another question:

Can someone who understands it please explain the whole "serious injury" thing with regard to both no-fault insurance and worker's compensation? I am super confused, and I suspect its because I took bad notes while listening to the torts lecture (I needed a handout!).

My understanding is this: under both no-fault insurance and worker's compensation, that is generally your only remedy if you're involved in a car accident or injured at work respectively. Under no-fault insurance, if you have a "serious injury" you can plead that and sue in tort instead of just taking your payment under no-fault insurance. Under worker's compensation, even with a "serious injury" you cannot sue your employer. BUT under worker's comp you can always sue some third party (like the manufacturer of the machine you were injured by) and if there is a "serious injury" the third party can sue your employer for contribution (but can't if there is not "serious injury")

Am I super wrong?

Just to be overly technical and make sure I lose the forest for the trees, I'm going to point out for people that serious and grave injury are two differently defined statutory terms.

Serious Injury (for no-fault): Insurance Law § 5102(d)
“Serious injury” means a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system, or a medically determined injury or impairment of a non permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less that ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.


Grave Injury (for worker's comp): N. Y. Work. Comp.  §11. 
A ‘grave injury” includes death, loss of limb, paraplegia, blindness, deafness, severe facial disfigurement, loss of a nose, ear, or index finger, or a brain injury resulting in permanent total disability. 

Yeah, sorry I know they're different didn't meant to confuse people. Replace where appropriate "serious injury" with "grave injury."

[Guchster]

Now that we all sufficiently understand (or are confused) about strict liability another question:

Can someone who understands it please explain the whole "serious injury" thing with regard to both no-fault insurance and worker's compensation? I am super confused, and I suspect its because I took bad notes while listening to the torts lecture (I needed a handout!).

My understanding is this: under both no-fault insurance and worker's compensation, that is generally your only remedy if you're involved in a car accident or injured at work respectively. Under no-fault insurance, if you have a "serious injury" you can plead that and sue in tort instead of just taking your payment under no-fault insurance. Under worker's compensation, even with a "serious injury" you cannot sue your employer. BUT under worker's comp you can always sue some third party (like the manufacturer of the machine you were injured by) and if there is a "serious injury" the third party can sue your employer for contribution (but can't if there is not "serious injury")

Am I super wrong?

But your substantive law looks very good to me.

[harmonep07]

Now that we all sufficiently understand (or are confused) about strict liability another question:

Can someone who understands it please explain the whole "serious injury" thing with regard to both no-fault insurance and worker's compensation? I am super confused, and I suspect its because I took bad notes while listening to the torts lecture (I needed a handout!).

My understanding is this: under both no-fault insurance and worker's compensation, that is generally your only remedy if you're involved in a car accident or injured at work respectively. Under no-fault insurance, if you have a "serious injury" you can plead that and sue in tort instead of just taking your payment under no-fault insurance. Under worker's compensation, even with a "serious injury" you cannot sue your employer. BUT under worker's comp you can always sue some third party (like the manufacturer of the machine you were injured by) and if there is a "serious injury" the third party can sue your employer for contribution (but can't if there is not "serious injury")

Am I super wrong?

Just to be overly technical and make sure I lose the forest for the trees, I'm going to point out for people that serious and grave injury are two differently defined statutory terms.

Serious Injury (for no-fault): Insurance Law § 5102(d)
“Serious injury” means a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system, or a medically determined injury or impairment of a non permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less that ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.


Grave Injury (for worker's comp): N. Y. Work. Comp.  §11. 
A ‘grave injury” includes death, loss of limb, paraplegia, blindness, deafness, severe facial disfigurement, loss of a nose, ear, or index finger, or a brain injury resulting in permanent total disability. 

Yeah, I've tried and it's impossible to remember everything that meets either one. I just remember that serious injury is a little broader, especially because it includes "fracture" (which sort of seems out of place in that list).

[PennBull]

Now that we all sufficiently understand (or are confused) about strict liability another question:

Can someone who understands it please explain the whole "serious injury" thing with regard to both no-fault insurance and worker's compensation? I am super confused, and I suspect its because I took bad notes while listening to the torts lecture (I needed a handout!).

My understanding is this: under both no-fault insurance and worker's compensation, that is generally your only remedy if you're involved in a car accident or injured at work respectively. Under no-fault insurance, if you have a "serious injury" you can plead that and sue in tort instead of just taking your payment under no-fault insurance. Under worker's compensation, even with a "serious injury" you cannot sue your employer. BUT under worker's comp you can always sue some third party (like the manufacturer of the machine you were injured by) and if there is a "serious injury" the third party can sue your employer for contribution (but can't if there is not "serious injury")

Am I super wrong?

you're 99% right

only things I'd clarify:

With serious injury no-fault insurance, allows victim to sue for NONECONOMIC damages (otherwise victim wouldn't be allowed to)

With Worker's Comp, Victim can sue in tort to the employer directly IF the Employer does not provide workers' comp coverage. If the Employer does have coverage, then yeah you're right only a 3rd party can get at the employer for contribution in grave injury cases (Victim is already provided for under Workers Comp from the Employer directly already under the coverage--all medical expenses and 2/3 wages/salary)

[Guchster]

But your substantive law looks very good to me.

Also, I have a bone to pick with no fault insurance. I got docked some serious points on an insurance law exam because I argued that you were entitled to recover 50k AND THEN entitled to litigate for any excess in the case of a serious injury.

In retrospect that makes zero logical sense and would negate the need for a serious injury exception. But just wanted to share in case you people were bored and wanted useless mistakes to read about.

[Guchster]

Yeah, I've tried and it's impossible to remember everything that meets either one. I just remember that serious injury is a little broader, especially because it includes "fracture" (which sort of seems out of place in that list).

Wow good eye. I've seen it tested in essays a few times and it is ALWAYS the fracture that is present.

[Guchster]

Hello all.

A contract Q: Can someone give me an example (or two) on acceptable past consideration in NY? NY says its okay if the promise is in writing, the consideration is expressly stated, the consideration can be proven and signed by the promisor.

This is referring to the consideration process and not the contract, right? How exactly would this even manifest?

ETA:
Welp: it looks like i'm basically living on another planet, and the contract for reimbursement for the past consideration is what the elements are for, not necessary the promise to do an act, which later constitute past consideration.

So if you paint my house because you're a nice TLS neighbor, and I thank you by promising to pay you $100 in a signed writing, blah blah blah, that's a binding promise in NY but not in MBE states that don't follow the past MBR?

[PennBull]

I always thought of past consideration as like an extreme gift or just unquantifiable like "omg you just saved my kids life, I am going to give you courtside tickets to the Knicks because that was amazing, here let's write it down and I'll sign it so you can enforce it against me later"