NYLE - TORTS AND TORT DAMAGES EXAM 2025
Negligence and Related Tort Concepts: Comparative negligence/assumption of risk: CPLR 1411, 1412 -
✅✅✅CORRECT -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 -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 -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 -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 -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]).
Statutory standard of care owed to construction workers: Labor Law §§ 240, 241 - ✅✅✅CORRECT -
New York's "Scaffolding Law" (Labor Law § 240) imposes a duty on contractors, owners and their agents
to furnish or erect scaffolding, hoists, stays, ladders and other devices so as to give proper protection to
workers involved in the erection, demolition, repairing, altering, painting, cleaning or pointing of a
Negligence and Related Tort Concepts: Comparative negligence/assumption of risk: CPLR 1411, 1412 -
✅✅✅CORRECT -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 -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 -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 -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 -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]).
Statutory standard of care owed to construction workers: Labor Law §§ 240, 241 - ✅✅✅CORRECT -
New York's "Scaffolding Law" (Labor Law § 240) imposes a duty on contractors, owners and their agents
to furnish or erect scaffolding, hoists, stays, ladders and other devices so as to give proper protection to
workers involved in the erection, demolition, repairing, altering, painting, cleaning or pointing of a
