DL FLORIDA

Question 1

Assault

Answer 1

(1) an affirmative act by the defendant (ii) done with the intent to place the plaintiff in apprehension (iii) of an imminent harmful or offensive contact to his person that actually causes the plaintiff such apprehension.

The Act requirement generally isn’t satisfied by words alone– there usually has to be some volitional movement of the body for there to be a reasonable apprehension of imminent contact

Question 2

Battery

Answer 2

(i) an act by the defendant that brings about a harmful or offensive contact with the plaintiff; (ii) intent; and (iii) causation

Question 3

False Imprisonment

Answer 3

(i) an act (or omission to act) by defendant that confines or restrains plaintiff to a bounded area; (ii) intent on defendant’s part to confine or restrain the plaintiff; and (iii) causation.

Question 4

intentional infliction of emotional distress

Answer 4

(i) an act by defendant amounting to extreme and outrageous conduct; (ii) intent on the part of the defendant to cause plaintiff to suffer severe emotional distress, or recklessness as to the effect of defendant’s conduct; (iii) causation; and (iv) damages (i.e., severe emotional distress).

Question 5

trespass to land

Answer 5

a person in actual or constructive possession of the land must show that another intentionally engaged in an act that physically invades the property. Damages don’t need to be shown

Question 6

Conversion

Answer 6

(i) an act by the defendant interfering with the plaintiff’s right of possession in the chattel that is serious enough in nature or consequence to warrant that the defendant pay the full value of the chattel; (ii) intent; and (iii) causation.

Question 7

Trespass to chattels

Answer 7

(i) an act of defendant that interferes with plaintiff’s right of possession in the chattel (not serious enough to warrant that the defendant pay full value); (ii) intent; (iii) causation; and (iv) damages.

Question 8

Defenses to Intentional Torts

Answer 8

Self-Defense and Consent

Question 9

Self-defense to Int. Torts

Answer 9

In Florida, a person is justified in the use or threatened use of force against another when and to the extent that he reasonably believes it necessary to defend himself or a third party against the other’s imminent use of unlawful force.

A person who is attacked in any place where she has a right to be has no duty to retreat and has the right to use force, including deadly force if she reasonably believes it is necessary to prevent death or great bodily harm to herself or another.

Question 10

Consent defense to Int. Torts

Answer 10

A defendant is not liable for an otherwise tortious act if the plaintiff consented to the defendant’s act. Consent may be inferred as a matter of usage and custom (e.g., minor bumping in a crowd) or implied by law (e.g., in an emergency situation where there is no opportunity to obtain the plaintiff’s consent). The defendant may be liable if he exceeds the scope of the consent implied by the occasion, such as by using unreasonable force.

Question 11

Negligence consists of the following elements:

Answer 11

(i) duty; (ii) breach; (iii) causation; and (iv) damages.

Question 12

(i) Duty

Answer 12

is owed to all foreseeable plaintiffs and the standard of that duty is that of a reasonably prudent person.

Question 13

(ii) breach

Answer 13

occurs where the defendant’s conduct falls short of the duty required by the applicable standard of care owed to the plaintiff.

Question 14

(iii) causation

Answer 14

is a two-test process consisting of Actual causation (that the conduct was the but-for cause of plaintiff’s injury) and Proximate (legal) causation (that the injury was a foreseeable result of the conduct.)

Question 15

(iv) damages

Answer 15

includes personal injury, property damage, and punitive damages. economic and non-economic (e.g.: personal injury).

Question 16

Rear-End Collisions Presumption

Answer 16

In Florida, the Driver striking another vehicle in the back in a rear-end collision is presumed to be negligent. However, damages are never presumed in Florida so this element still needs to be established.

Question 17

Good Samaritan Statute for Non-Emergency Personnel

Answer 17

provides that outside of a hospital or medical facilities setting, everyone is held to the same standard for negligence, that of a reasonably prudent person, including medical professionals such as doctors or nurses.

Question 18

Good Samaritan Statute for Hospitals/Emergency Physicians

Answer 18

provides that, in an emergency room setting, attending healthcare providers are not liable for negligence unless their conduct shows a reckless disregard for the life or health of another.

Question 19

Negligence Per Se

Answer 19

In Florida negligence per se is only applicable to violations of non-traffic penal statutes and serves to satisfy the negligence elements of (1) Duty and (2) Breach.

Evidence of violations of traffic statutes serve as prima facie evidence of negligence.

Question 20

res ipsa loquitur

Answer 20

(1) the accident that caused the injury isn’t the type of accident that occurs without negligence; and (2) the instrumentality causing the accident was in the defendant’s exclusive control.

Question 21

Medical Malpractice Standard

Answer 21

a reasonable doctor in that community with similar background and training.

Question 22

Medical Malpractice Procedure

Answer 22

First, Plaintiff’s lawyer needs to develop good faith belief that medical malpractice happened. To do so, lawyers need to conduct reasonable investigation that consists of two steps. Step 1, obtain a written opinion by a doctor in the same specialty that medical malpractice occurred against the Plaintiff. This step needs to be certified to in the complaint, if filed. Step 2, obtain a Verified Affidavit from a medical expert in the same specialty as the Doctor stating the same. The same doctor can write the opinion and the affidavit.

Second, Plaintiff needs to send the Doctor a Notice of Intent to Initiate Litigation accompanied by the Affidavit (See Step 2 above) and the Plaintiff’s medical records. The Doctor has 90 days to conduct their reasonable investigation which includes the power to subpoena witnesses and take depositions. The Doctor can either (1) reject the claim, (2) offer to settle, or (3) offer to admit liability but arbitrate damages. The Plaintiff can reject any offers and file suit instead.

The Statute of Limitations is tolled for 90 days from when the Notice of Intent to Initiate Litigation is sent. In addition, the Plaintiff can petition the court for extension on Statute of Limitations before sending the Notice.

Question 23

Contributory Negligence

Answer 23

If Plaintiff is 1% liable, no recovery. Florida has abolished it. Don’t define it, just mention it.

Question 24

Pure Comparative Fault Rule

Answer 24

Plaintiff’s recovery is reduced by their percentage of fault.

Question 25

Fabre Defendant

Answer 25

A Defendant that is not present at trial but can still appear in the verdict form. In two instances: (1) D1 Settled or (2) Could not sue D1 (no jurisdiction, didn’t know who it was, etc.)

Question 26

Failure to Wear a Seat Belt by Plaintiff

Answer 26

could be Comparative Fault if (1) the Plaintiff failed to use an available and operational seatbelt, 2) such nonuse was unreasonable, 3) the failure to use the seatbelt caused or substantially contributed to P’s injuries and damages.

Question 27

Assumption of the Risk

Answer 27

Florida has abolished implied assumption of the risk; thus, any valid Assumption of the Risk needs to be express. E.g.: by signing a waiver and release.

Question 28

Parents waiving risk for children

Answer 28

In Florida, Parents can waive inherent risks of an activity for their minor children.

Question 29

Intervening causes

Answer 29

foreseeable events that do not break the chain of causation and the first Defendant is still liable for what results from it. Negligence is always foreseeable including medical malpractice.

Question 30

Superseding causes

Answer 30

unforeseeable events that do break the chain of causation for which the first Plaintiff is not liable.

Question 31

Strict Liability scenarios

Answer 31

Abnormally Dangerous Activities, Dog Bites, Products liability

Question 32

Abnormally Dangerous Activities

Answer 32

(i) the activity must create a foreseeable risk of serious harm to persons or property even when reasonable care is exercised by all actors; and (il) the activity isn’t a matter of common usage in the particular community (i.e., blasting, manufacturing explosives, etc.).

Question 33

Dog Bites

Answer 33

Defendants are always liable for damages caused by their Dog. There are two exceptions to this rule neither of which is applicable to Plaintiffs 6 years old or under. The exceptions to strict liability for Dog Bites are (1) if the Plaintiff provoked the Dog, or (2) if the Dog was in Defendant’s private property which displayed a “Bad Dog” sign.

Question 34

Products liability- Strict liability

Answer 34

(a) The defendant is a commercial supplier of a product.
(b) The defendant produced or sold a product that was in a defective condition unreasonably dangerous to users when it left the defendant’s control.
(c) The defective product was the actual and proximate cause of the plaintiff’s injury.
(d) The plaintiff suffered damage to person or property.
In a case of defective design, Florida uses the same test that is used for manufacturing defects, holding that the design is defective if it was dangerous beyond the expectation of the ordinary consumer.

Question 35

Guest Statute

Answer 35

Florida has no prohibition against the passenger of a negligent driver, suing that driver.

Question 36

Dangerous Instrumentality Doctrine

Answer 36

The owner of a thing that is capable of causing death or serious bodily injury is liable for injuries caused by it if operated with the owner’s knowledge and consent. If the operator exceeds its authorization, this rule still applies. However, if the owner requires a $ 100,000/200,000 insurance policy, this rule does not apply.

Question 37

Respondeat superior

Answer 37

An employer is liable for an employee’s torts committed within the scope of the employment.

Question 38

Business invitees

Answer 38

If a plaintiff slips and falls on a transitory foreign substance at a business, the plaintiff must prove that the business had actual or constructive knowledge of the dangerous condition and should have taken action to remedy It. Constructive knowledge may be proven by circumstantial evidence showing that: (i) the dangerous condition existed for such a length of time that, in the exercise of ordinary care, the business should have known of the condition; or (Il) the condition occurred with regularity and was therefore foreseeable. (This Florida statute doesn’t affect any common law duty of care owed by a person or entity in possession or control of a business premises.)

Question 39

Personal Injury Protection Insurance (PIP):

Answer 39

Florida requires “No fault” insurance called personal injury protection (“PIP”) benefits to cover $ 10,000 in medical injuries for the injured person regardless of who was at fault. The injured person has 14 days from the accident to begin medical treatment. These benefits do not entitle the injured person to pain and suffering damages unless the injuries are permanent (even if 1% permanent disability). No tort liability exists to the extent the damages are covered by PIP.

Question 40

Joint and Several Liability

Answer 40

Florida has abolished Joint and Several liability and a Plaintiff can only collect from each Defendant what they are responsible for.

Question 41

Husband-Wife Immunity:

Answer 41

Florida has abolished Husband-Wife Immunity. Thus, spouses can sue each other.

Question 42

Parent-Child Immunity

Answer 42

Florida has abolished Parent-Child Immunity. Minor children can sue their parents if the parents have insurance but only up to the policy limits.

Question 43

State Sovereign Immunity

Answer 43

Plaintiffs cannot sue the State of Florida based on State Sovereign Immunity. However, Florida has waived this immunity for a maximum of $ 200,000 per person and $ 300,000 per accident.

Question 44

Employees of the state Immunity

Answer 44

not responsible for damages caused by torts committed during the course of their employment except when they have acted in bad faith, with malicious purpose, or with willful disregard of human rights, safety, or property.

Question 45

Compensatory Damages

Answer 45

include economic (e.g.: medical bills) and non-economic damages (e.g.: pai and suffering).

Question 46

Punitive Damages

Answer 46

designed to punish the Defendant for intentional or grossly negligent conduct. Punitive Damages are limited to the greater of $ 500,000 or three times the compensatory damages amount.

Question 47

Lawyer Contingency Fees Requirements

Answer 47

(1) in writing, (2) signed by the client, (3) contain a statement of the client’s rights, and (4) be cancellable within 3 days of execution.

Question 48

Solicitation of Clients

Answer 48

In-person solicitation of clients by a lawyer is always prohibited in Florida. No client solicitation of any kind is allowed within 30-days of an accident.

Question 49

Prenuptial and Postnuptial Agreements. What are they? What can they do? What can’t they do?

Answer 49

A prenuptial or post nuptial agreements regulate the relationship of the parties upon dissolution of the marriage, it can never waive child support or alimony pendente. A pre or post marital agreement cannot definitely dictate parental responsibilities upon separation of divorce. Those will be determined by the court based on the best interest of the child. However, such agreements can set alimony or waive alimony types (other than pendente), can establish property rights, can create trusts, include a choice of law provision, or any other valid contractual arrangement not against public policy.

Question 50

Requirements for Prenuptials

Answer 50

(1) in writing, (2) signed by both parties, and (3) be supported by consideration. Getting married is sufficient consideration to satisfy the third prong. If the parties fail to get married, the agreement is void. A prenuptial agreement can be modified or revoked by a writing signed by both parties without need for additional consideration.

Question 51

Voluntariness Requirement

Answer 51

Parties need to enter into pre or post nuptial agreements voluntarily. Courts will look at factors such as time and place of presentment of the agreement and opportunity to consult with an attorney to determine voluntariness.

Question 52

Unconscionable Prenuptial Agreements

Answer 52

Under the Uniform Marital Agreement Act (“UMAA”) adopted in Florida, unconscionable pre or post nuptial agreements are not enforceable unless the other party can prove that there was a fair and reasonable disclosure of the property and financial obligations of the “unconscionable” party.

Question 53

Requirements for Postnuptials

Answer 53

For Postnuptial agreements to be valid they have to be (1) in writing, (2) signed by both parties, and (3) include either (a) a full and fair disclosure of financial obligations between the parties, or (b) agree that discovery will be complete in a dissolution action.

Question 54

Modification of Property Settlement Agreements and Equitable Distribution Prohibited:

Answer 54

Once the property portion of the parties dissolution of marriage has been settled (either by the parties agreement or equitable distribution by the court), it can never be modified.

Question 55

FL Jurisdiction over Divorce proceedings

Answer 55

In order for Florida courts to have subject matter jurisdiction over the dissolution of marriage action, at least one of the parties must have been a resident of Florida for 6 months. Residency requires intent to make Florida your permanent home.

Question 56

No-Fault Divorce Rule

Answer 56

Florida is a no-fault divorce state which means the court does not take into consideration who was at fault for the divorce for purposes of the dissolution of marriage. In Florida, the court must grant the dissolution of marriage if the parties’ marriage is “irretrievably broken.” If the parties agree in the petition and response that the marriage is irretrievably broken, the court has to accept this fact. However, if a dispute exists as to whether the marriage is irretrievably broken, the court has 3 options: (1) to continue the case for up to 3 months to allow the parties to reconcile, (2) order counseling before granting the divorce, or (3) do whatever the court considers is in the best interest of the parties or the minor children.

Nonetheless, adultery can be considered for purposes of alimony if marital assets were depleted in the affair.

Question 57

Equitable Distribution

Answer 57

Florida law presumes an equal distribution of the parties’ marital assets and liabilities is appropriate unless factors show an unequal distribution is warranted.

Question 58

Marital Assets

Answer 58

marital assets include (1) all property acquired by either spouse during the course of the marriage, (2) interspousal gifts during the marriage, (3) all property owned as tenants by the entirety (“TBE”), (4) all personal property titled jointly, (5) retirement plans accumulated during the marriage, and (6) enhancement in value of non-marital assets resulting from efforts of either party during the marriage.

Question 59

Non-marital assets

Answer 59

usually include (1) property acquired before the marriage and/or acquired in exchange for such assets, (2) assets acquired separately by non-inter spousal gifts and assets acquired in exchange for such assets, (3) income derived from non-marital assets unless they are converted for a marital purpose, and (4) anything designed as a non-marital asset by a pre or post nuptial agreements.

Question 60

Date for identification of assets

Answer 60

time and date the dissolution of marriage petition was filed

Question 61

Date of valuation for assets

Answer 61

iv. Marital assets are valued as of whatever date is fair and equitable under the circumstances

Question 62

Appreciation during the marriage of non-marital assets

Answer 62

could be a marital asset depending on whether that appreciation is passive or active. Passive appreciation due to market forces only is a non-marital asset. Active appreciation as a result of an investment of time, money and effort to increase the value is a marital asset only up to the amount of the appreciation.