Essay Torts

Question 1

To establish a prima facie case of intentional tort, what 3 things must a plaintiff prove

Answer 1

1) Act by Defendant - the act required is a volitional movement by defendant
2) Intent - intent may either be specific or general
3) causation - the result must have been legally caused by defendant’s act or something set in motion by him.

Question 2

What act is required to establish a prima facie case of intentional tort?

Answer 2

The act required is a Volitional Movement by defendant

Question 3

What are the two types of intent for intentional tort, and what is the difference between them

Answer 3

Intent may be either (i) specific (the purpose in acting is to bring about specific consequences) or (ii) general (the actor knows with “substantial certainty” that these consequences will result). The actor does not need to intend the injury that results from bringing about these consequences.

Question 4

What is the transferred intent rule?

Answer 4

The transferred intent doctrine applies when the defendant intends to commit a tort against one person but instead (i) commits a different tort against that person, (ii) commits the same tort as intended but against a different person, or (iii) commits a different tort against a different person. In such cases, the intent to commit a certain tort against one person is transferred to the tort actually committed or to the person actually injured for purposes of establishing a prima facie case

Question 5

Transferred intent may be invoked only if both the tort intended and the tort that results are one of the following: (5)

Answer 5

assault; battery; false imprisonment; trespass to land; or trespass to chattels

Question 6

When is causation satisfied for purposes of establishing a prima facie case of intentional tort?

Answer 6

Causation is satisfied if defendant’s conduct was a substantial factor in bringing about the injury.

Question 7

What are the four elements of a prima facie case of battery?

Answer 7

harmful or offensive contact; to plaintiff’s person; intent; and causation

Question 8

What is considered ‘harmful or offensive contact’ for purposes of establishing a prima facie case of battery?

Answer 8

contact is harmful if it causes an actual injury, pain, or disfigurement. Contact is offensive if it would be considered offensive to a reasonable person. Note: contact is considered offensive only if it has not been permitted or consented to. However, consent will be implied for the ordinary contacts of everyday life (e.g., minor bumping on a crowded bus)

Question 9

For ‘offensive contact’ under battery, does the contact need to be direct (e.g., striking plaintiff), indirect (e.g., setting a trap for plaintiff to fall into), or may it be either

Answer 9

It may be either direct or indirect

Question 10

For the ‘to plaintiff’s person’ part of the intentional tort of battery, what does that phrase mean?

Answer 10

Plaintiff’s person includes anything connected to the plaintiff (e.g., clothing or purse)

Question 11

Are damages required for the intentional tort of battery?

Answer 11

No. Plaintiff can recover nominal damages even if actual damages are not proved. Plaintiff may recover punitive damages for malicious conduct.

Question 12

What are the four elements to establish a prima facie case of assault?

Answer 12

1) an act by defendant creating a ‘reasonable apprehension’ in plaintiff;
2) of ‘immediate harmful or offensive contact’ to plaintiff’s person;
3) intent; and
4) causation

Question 13

For the ‘apprehension must be reasonable’ requirement for the intentional tort of assault, how is fear distinguished?

Answer 13

Apprehension should not be confused with fear or intimidation (e.g., a weakling can cause a bully to apprehend offensive contact for purposes of assault)

Question 14

Is awareness of the threat needed for the ‘apprehension must be reasonable’ requirement for the intentional tort of assault?

Answer 14

Yes, the plaintiff must have been aware of the threat from defendant’s act, although the plaintiff need not be aware of the defendant’s identity.

Question 15

For the ‘reasonable apprehension’ requirement for establishing a prima facie case for assault, is the apparent ability to commit a battery enough to cause a reasonable apprehension?

Answer 15

Yes

Question 16

Are words alone sufficient to to create a reasonable apprehension of immediate harm for assault? Can words negate reasonable apprehension?

Answer 16

Words alone are not sufficient. For the defendant to be liable, the words must be coupled with conduct. However, words can negate reasonable apprehension (e.g., the defendant shakes her fist but states that she is not going to strike the plaintiff)

Question 17

What is the requirement of immediacy within assault?

Answer 17

Plaintiff must be apprehensive that she is about to become the victim of an immediate battery

Question 18

Are damages required for the intentional tort of assault?

Answer 18

No. Plaintiff can recover nominal damages even if actual damages are not proved. Malicious conduct may permit recovery of punitive damages.

Question 19

What are the three elements for the prima facie case for the intentional tort of false imprisonment?

Answer 19

(i) An act or omission on the part of defendant that confines or restrains plaintiff to a bounded area;
(ii) intent; and
(iii) causation

Question 20

What are 6 acts sufficient to be considered ‘confinement’ or ‘restraint’ for the intentional tort of false imprisonment

Answer 20

(i) physical barriers;
(ii) physical force directed against plaintiff, immediate family, or personal property (e.g., confiscating plaintiff’s purse);
(iii) direct threats of force;
(iv) indirect or implied threats of force;
(v) failure to release plaintiff when under a legal duty to do so (e.g., a taxi driver refusing to let a customer out); and
(vi) invalid use of legal authority

Question 21

Are either (i) moral pressure or (ii) future threats sufficient to fulfill the ‘confinement or restraint’ requirement for the intentional tort of false imprisonment?

Answer 21

No

Question 22

How long must a person be confined to fulfill the requirement for the intentional tort of false imprisonment?

Answer 22

It is irrelevant how short the period of the confinement is

Question 23

For an area to be ‘bounded’ for the intentional tort of false imprisonment, what is the scope?

Answer 23

For an area to be “bounded,” freedom of movement must be limited in all directions. There must be no reasonable means of escape known to plaintiff

Question 24

Are damages required for the intentional tort of false imprisonment?

Answer 24

No. Plaintiff can recover nominal damages even if actual damages are not proved. Punitive damages may be recovered if defendant acted maliciously.

Question 25

What are the four elements for the prima facie case of the intentional tort of intentional infliction of emotional distress?

Answer 25

(i) An act by defendant amounting to extreme and outrageous conduct;
(ii) intent or recklessness;
(iii) causation; and
(iv) damages–severe emotional distress

Question 26

What is the rule for what is ‘extreme and outrageous conduct’ under the intentional tort of intentional infliction of emotional distress

Answer 26

This is conduct that transcends all bounds of decency. Conduct that is not normally outrageous may become so if:

1) it is continuous in nature;
2) it is directed toward a certain type of plaintiff (children, elderly persons, pregnant women, supersensitive adults if the sensitivities are known to the defendant); or
3) it is committed by a certain type of defendant (common carriers or innkeepers may be liable even for mere “gross insults”)

Question 27

Are damages required for the intentional tort of intentional infliction of emotional distress?

Answer 27

Yes. Actual damages (severe emotional distress), not nominal damages, are required. Proof of physical injury is not required. The more outrageous the conduct, the less proof of damages is required. Note: intentional infliction of emotional distress is the only intentional tort to the person that requires damages

Question 28

When the defendant intentionally causes physical harm to a third person and the plaintiff suffers severe emotional distress because of it, the plaintiff may recover how?

Answer 28

By showing either the prima facie case elements of emotional distress OR that (i) she was present when the injury occurred, (ii) she is a close relative of the injured person, and (iii) the defendant knew facts (i) and (ii)

Question 29

What three elements make a prima facie case of the intentional tort of trespass to land?

Answer 29

(i) physical invasion of plaintiff’s real property;
(ii) intent; and
(iii) causation

Question 30

What are the rules for ‘physical invasion of plaintiff’s real property’ element of intentional trespass to land?

Answer 30

The invasion may be by a person or object (e.g., throwing a baseball onto plaintiff’s land is a trespass). If intangible matter (e.g., vibrations or odor) enters, the plaintiff may have a case for nuisance. Real property includes not only the surface, but also airspace and subterranean space for a reasonable distance.

Question 31

What is the requisite minimum intent required for the tort, trespass to land?

Answer 31

Defendant need intent only to enter onto that particular piece of land (he need not know that the land belonged to another).

Question 32

Who may recover for the trespass to land tort and what damages are required?

Answer 32

Anyone in actual or constructive possession of the land may maintain this action. Plaintiff can recover without showing actual injury to the land.

Question 33

What are the four elements for the prima facie case of the tort, trespass to chattels?

Answer 33

(i) an act by defendant that interferes with plaintiff’s right of possession in a chattel;
(ii) intent;
(iii) causation;
(iv) damages

Question 34

What are the two types of interference that make up the ‘interferes with plaintiff’s right of possession’ element of the tort, trespass to chattels?

Answer 34

The interference may either be an intermeddling (i.e., directly damaging the chattel) or a dispossession (i.e., depriving plaintiff of his lawful right of possession of the chattel)

Question 35

What kind of damages are required for the tort, trespass to chattels?

Answer 35

Actual damages–not necessarily to the chattel, but at least to a possessory right–are required

Question 36

What are the four elements of the tort, conversion?

Answer 36

(i) an act by defendant that interferes with plaintiff’s right of possession in a chattel;
(ii) intent;
(iii) causation; and
(iv) damages–an interference serious enough in nature or consequences to warrant that defendant pay the chattel’s full value

Question 37

What are the sort of acts that make up the “interferes with plaintiff’s right of possession” element of conversion?

Answer 37

Acts of conversion include wrongful acquisition (theft), wrongful transfer, wrongful detention, and substantially changing, severely damaging, or misusing a chattel

Question 38

What level of intent is required for the tort of conversion?

Answer 38

As with trespass to chattels, mistake as to ownership is no defense; the only intent required is the intent to do the act that interferes with the plaintiff’s right of possession.

Question 39

How does the seriousness of interference relate to whether a tort would be considered a conversion or a trespass to chattels?

Answer 39

The longer the withholding period and the more extensive the use, the more likely it is to be conversion. A less serious interference is trespass to chattels

Question 40

What is the only property available to be subject to the tort, conversion

Answer 40

Only tangible personal property and intangibles that have been reduced to physical form (e.g., a promissory note) are subject to conversion

Question 41

Who may maintain an action for conversion?

Answer 41

Anyone with possession or the immediate right to possession of the chattel may maintain an action for conversion

Question 42

What is the remedy for conversion?

Answer 42

Plaintiff may recover damages (fair market value at the time of conversion) or possession (replevin)

Question 43

What are the five defenses to intentional torts?

Answer 43

1) consent;
2) self-defense, defense of others, and defense of property;
3) privilege of arrest
4) necessity;
5) discipline

Question 44

What is the defense of consent to an intentional tort? What are the two inquiries raised by consent?

Answer 44

Plaintiff’s consent to defendant’s conduct is a defense, but the majority view is that one cannot consent to a criminal act. Any consent fact pattern raises two inquiries:

(i) was there a valid consent (e.g., no fraud)?
(ii) did the defendant stay within the boundaries of the consent (e.g., not use a gun in a boxing match)?

Question 45

What is the rule for express (actual) consent as a defense to intentional torts? What three exceptions are there?

Answer 45

Defendant is not liable if plaintiff expressly consents to defendant’s conduct. Exceptions:

(i) mistake will undo express consent if defendant knew of and took advantage of the mistake;
(ii) consent induced by fraud will be invalidated if it goes to an essential matter, but not a collateral matter; and
(iii) consent obtained by duress will be invalidated unless the duress is only threats of future action or future economic deprivation

Question 46

What is the rule for implied consent as a defense to intentional torts? (what are the two types and their definitions)

Answer 46

Apparent consent is that which a reasonable person would infer from custom and usage or plaintiff’s conduct, e.g., normal contacts inherent in body-contact sports, ordinary incidental contact, etc. Consent implied by law arises when action is necessary to save a person’s life or some other important interest in person or property

Question 47

What capacity is required to consent to an intentional tort?

Answer 47

Individuals without capacity are deemed incapable of consent, e.g., incompetents, drunken persons, and very young children

Question 48

What three questions should be asked when the defense of ‘self-defense, defense of others, and defense of property’ is given to defend against an intentional tort?

Answer 48

(i) Is the privilege available? (These privileges apply only for preventing the commission of a tort. Already committed torts do not qualify.)
(ii) Is a mistake permissible as to whether the tort being defended against (battery, trespass, etc.) is actually being committed?
(iii) was a proper amount of force used?

Question 49

What is the rule for using the ‘self defense’ defense to escape liability for an intentional tort?

Answer 49

When a person reasonably believes that she is being or is about to be attacked, she may use such force as is reasonably necessary to protect against injury. The majority rule is that there is no duty to retreat. Self-defense is not available to the initial aggressor unless the other party responds to the aggressor’s nondeadly force by using deadly force. Also, self-defense may extent to third-party injuries (caused while the actor was defending herself).

Question 50

when is the ‘defense of others’ defense available?

Answer 50

One may use force to defend another when the actor reasonably believes that the other person could have used force to defend himself

Question 51

Is mistake allowed in the ‘defense of others’ defense?

Answer 51

A reasonable mistake as to whether the other person is being attacked or has a right to defend himself is permitted.

Question 52

How much force may a person using the ‘defense of others’ defense allowed to use?

Answer 52

The defender may use as much force as he could have used in self-defense if he were the one threatened with the injury.

Question 53

When is the ‘defense of property’ defense available?

Answer 53

One may use reasonable force to prevent the commission of a tort against her real or personal property. A request to desist or leave must first be made unless it would be futile or dangerous. The defense does not apply once the tort has been committed; however, one may use force in hot pursuit of another who has tortiously dispossessed the owner of her chattels because the tort is viewed as still being committed.
Note: remember that this defense is not available against one with a privilege. Whenever an actor has a privilege to enter onto the land of another because of necessity, recapture of chattels, etc., that privilege will supersede the privilege of the land possessor to defend her property.

Question 54

Is mistake allowed in the ‘defense of property’ defense?

Answer 54

A reasonable mistake is allowed as to whether an intrusion has occurred or whether a request to desist is required. A mistake is not allowed as to whether the entrant has a privilege that supersedes the defense of property right, unless the entrant conducts the entry so as to lead the defendant to reasonably believe it is not privileged (such as refusing to say what the necessity is).

Question 55

How much force may be used in the ‘defense of property’ defense?

Answer 55

Reasonable force may be used. However, one may not use force causing death or serious bodily harm unless the invasion of property also entails a serious threat of bodily harm.

Question 56

What is the rule of force able to be used for both reentry onto land and recapture of chattels?

Answer 56

The basic rule is the same as that for reentry of land at common law: when another’s possession began lawfully (e.g., conditional sale), one may use only peaceful means to recover the chattel. Force may be used to recapture a chattel only when in hot pursuit of one who has obtained a possession wrongfully, e.g., by theft

Question 57

When is the defense of ‘recapture of chattels’ available?

Answer 57

A timely demand to return the chattel is first required unless clearly futile or dangerous. The recapture may be only from a tortfeasor or some third person who knows or should know that the chattels were tortiously obtained. One may not use force to recapture chattels in the hands of an innocent party.

Question 58

When is the defense of ‘recapture of chattels’ available when there is entry onto wrongdoer’s land to remove chattel?

Answer 58

When chattels are located on the land of the wrongdoer, the owner is privileged to enter onto the land and reclaim them at a reasonable time and in a reasonable manner, after first making a demand for their return.

Question 59

When is the defense of ‘recapture of chattels’ available when there is entry onto the land of an innocent party?

Answer 59

When the chattels are on the land of an innocent party, the owner may enter and reclaim her chattel at a reasonable time and in a peaceful manner when the landowner has been given notice of the presence of the chattel and refuses to return it. (The chattel owner’s right of recapture supersedes the landowner’s right to defend his property). However, the chattel owner will be liable for any actual damage caused by the entry.

Question 60

When is the defense of ‘recapture of chattels’ available when there is entry onto the land through the owner’s own fault?

Answer 60

If the chattels are on the land of another through the owner’s fault (e.g., negligently letting cattle wander), there is no privilege to enter onto the land. They may be recovered only through legal process.

Question 61

Is mistake allowed in the defense of ‘recapture of chattels’?

Answer 61

Generally no mistake regarding defendant’s right to recapture the chattels or enter onto the land is allowed. However, shopkeepers may have a privilege to detain for a reasonable period of time individuals whom they reasonably believe to be in possession of shoplifted goods

Question 62

How much force may be used during the defense of ‘recapture of chattels’?

Answer 62

Reasonable force, not including force sufficient to cause death or serious bodily harm, may be used to recapture chattels.

Question 63

What is the defense of ‘privilege of arrest’?

Answer 63

Depending on the facts, the actor may have a privilege to make an arrest of a third person. Note: the privilege of arrest carries with it the privilege to enter another’s land for the purpose of effecting the arrest. Also note: Although the arrest itself may be privileged, the actor may still be liable for subsequent misconduct

Question 64

What if there is mistake for the privilege of arrest defense during 1) a misdemeanor and 2) a felony

Answer 64

Misdemeanor - if the arrest is for a misdemeanor, it is privileged only if for a breach of peace and if the action takes place in front of defendant. (Most state statutes grant police officers a broader privilege).
Felony - For a felony arrest, a police officer may make a reasonable mistake. Citizens may make a reasonable mistake regarding the identity of the felon, but not regarding whether the felony occurred.

Question 65

For the ‘privilege of arrest’ defense during shoplifting detentions, a shopkeeper has a privilege to detain a suspected shoplifter for investigation. For the privilege to apply, what three conditions must be satisfied?

Answer 65

1) there must be a reasonable belief as to the fact of theft;
2) the detention must be conducted in a reasonable manner and only nondeadly force can be used; and
3) the detention must be only for a reasonable period of time and only for the purpose of making an investigation

Question 66

What is the defense of ‘necessity’ against intentional tort?

Answer 66

A person may interfere with the real or personal property of another when it is reasonably and apparently necessary to avoid threatened injury from a natural or other force and when the threatened injury is substantially more serious than the invasion that is undertaken to avert it.

Question 67

What are the two types of ‘necessity’ defense and what is the difference? And it only applies to what sort of tort?

Answer 67

(i) public - when the act is for the public good; and
(ii) private - when the act is solely to benefit a limited number of people. Under private necessity, the actor must pay for any injury he causes (unless the act was to benefit the property owner).
Note: necessity is a defense only to property torts

Question 68

What is the defense of ‘discipline’ against intentional tort?

Answer 68

A parent or teacher may use reasonable force in disciplining children

Question 69

What are the two parts of the law of defamation?

Answer 69

the common law elements and the constitutional requirements

Note: Florida requires both the common law elements and constitutional elements for all defamation actions

Question 70

What are the four elements of common law defamation?

Answer 70

(i) defamatory language;
(ii) “of or concerning” the plaintiff;
(iii) publication thereof by defendant to a third person; and
(iv) damage to plaintiff’s reputation

Question 71

When do the two constitutional elements of defamation apply, and what are they?

Answer 71

If the defamation involves a matter of public concern, the Constitution (and Florida) requires the plaintiff to prove two additional elements:
(v) falsity of the defamatory language; and
(vi) fault on the part of defendant
Note: in a common law case, plaintiff does not have to prove falsity as part of the prima facie case. Rather, defendant can offer truth of the statement as a defense.

Question 72

What is the definition of ‘defamatory language’ as it applies to the common law element of defamation? Does it apply to dead persons and companies?

Answer 72

Defamatory language is defined as language tending to adversely affect one’s reputation. A statement of opinion is actionable only if it appears to be based on specific facts, and an express allegation of those facts would be defamatory. Name-calling is insufficient. If the statement is not defamatory on its face, plaintiff may plead additional facts as “inducement” to establish defamatory meaning by “innuendo.” Any living person may be defamed. Defamation of a deceased person is not actionable. In a limited sense, a corporation, unincorporated association, or partnership may be defamed

Question 73

What is the definition of “of or concerning plaintiff” as it applies to the common law element of defamation?

Answer 73

The plaintiff must establish that a reasonable reader, listener, or viewer would understand that the defamatory statement referred to the plaintiff. If the statement does not refer to plaintiff on its face, extrinsic evidence may be offered to establish that the statement refers to the plaintiff. This is known as pleading “collogquium”

Question 74

What are the three nuances of group defamation?

Answer 74

1) If the defamatory statement refers to all members of a small group, each member may establish that the statement is “of and concerning” him by alleging that he is a group member.
2) If it is a large group, no member can prove that the statement is “of and concerning” him so no one wins.
3) If the statement only refers to some members of a small group, plaintiff can recover if a reasonable person would view the statement as referring to plaintiff

Question 75

What is the definition of ‘publication’ as it applies to the common law element of defamation?

Answer 75

Publication means communication of the defamation to a third person who understands it. Such publication can be made either intentionally or negligently. It is the intent not the intent to defame, that is the requisite intent. Each repetition is a separate publication. However, for magazines, newspapers, etc., most states have adopted a “single publication” rule under which all copies are treated as one publication.
Note: an exam favorite is the situation where a defamatory statement about plaintiff is made only to plaintiff. As a general rule, there is no publication and thus no defamation.

Question 76

Who is liable for ‘publication’ under the common law element of defamation?

Answer 76

Primary publishers (e.g., newspapers, TV stations, etc.) are liable to the same extent as the author or speaker. One who repeats a defamation is liable on the same general basis as the primary publisher (even if she states the source or makes it clear that she does not believe the defamation). One selling papers or playing tapes is a secondary publisher and is liable only if he knows or should know of the defamatory content. An internet service provider is not treated as a publisher when a user of its service posts defamatory content.

Question 77

What is the definition of ‘damage to plaintiff’s reputation’ as it applies to the common law element of defamation?

Answer 77

The type of damages plaintiff must prove depends on the type of defamation (libel or slander) involved. In some slander cases, plaintiff must prove that she suffered special damages–that is, she must have suffered some pecuniary loss in order to recover anything. But once plaintiff has proved special damages, she may recover general damages as well.

Question 78

What is the ‘libel’ type of defamation?

Answer 78

Libel is the written or printed publication of defamatory language. Plaintiff does not need to prove special damages and general damages are presumed.

Question 79

What is the ‘slander’ type of defamation?

Answer 79

Slander is spoke defamation. Plaintiff must prove special damages, unless defamation falls within slander per se categories; i.e., defamatory statements that:

1) adversely reflect on one’s conduct in a business or profession;
2) one has a loathsome disease;
3) one is or was guilty of a crime involving moral turpitude (most common law crimes); or
4) a woman is unchaste

Question 80

Is defamation in radio and television programs treated by most courts as libel or slander?

Answer 80

Most courts treat it as libel

Question 81

What is the definition of ‘falsity’ as it applies to the constitutional element of defamation?

Answer 81

In cases where plaintiff is constitutionally required to prove some type of fault, plaintiff also has the burden of proving falsity.
Note: If a statement attacking the plaintiff is true, the plaintiff has no cause of action for defamation. However, if you see this type of statement on the exam, consider whether the plaintiff may have a cause of action for intentional infliction of emotional distress or invasion of right to privacy.

Question 82

What does ‘fault’ as it applies to the constitutional element of defamation depend on (2 things), and what is the difference between the two?

Answer 82

The type of fault that a plaintiff must prove depends on the plaintiff’s status–either public official or figure OR private persons.
Actual malice must be proved in defamation cases brought by public officials and public figures (which is a person who has achieved pervasive fame or notoriety or assumed a central role in a particular public controversy). Where a private person is plaintiff, only negligence regarding the falsity must be proved if the statement involves a matter of “public concern.”

Question 83

For defamation as against a public official or figure, how is ‘actual malice’ defined?

Answer 83

Actual malice is: (i) knowledge that the statement was false, or (ii) reckless disregard as to whether it was false. Note: this is a subjective test. Defendant’s spite or ill will is not enough to constitute malice. Deliberately altering a quotation may constitute malice if the alteration causes a material change in the meaning conveyed by the quotation.

Question 84

What are the four general defenses to defamation?

Answer 84

consent; truth; absolute privilege–can never be lost; and qualified privilege–can be lost through abuse

Question 85

What is the ‘consent’ defense to defamation?

Answer 85

consent is a complete defense. The rules relating to consent to intentional torts apply here.

Question 86

What is the ‘truth’ defense to defamation?

Answer 86

Where plaintiff does not need to prove falsity (i.e., the statement is about a purely private matter), defendant may prove truth as a complete defense

Question 87

What is the ‘absolute privilege’ defense to defamation?

Answer 87

Defendant may be protected by an absolute privilege (that is never lost) for the following: remarks made during judicial proceedings, by legislators during proceedings, by federal executive officials (even if not related to the proceedings), in “compelled” broadcasts, and between spouses

Question 88

What is the ‘qualified privilege’ defense to defamation?

Answer 88

Sometimes the speaker may have a qualified privilege for the following: reports of official proceedings; statements in the interest of the publisher–defense of one’s actions, property, or reputation; statements in the interest of the recipient; and statements in the common interest of the publisher and recipient.
Note: the qualified privilege may be lost if (i) the statement is not within the scope of the privilege, or (ii) it is shown that the speaker acted with actual malice. Defendant bears the burden of proving that a privilege exists.

Question 89

May mitigating factors be considered as a defense to defamation? If not, may they be considered for anything in defamation?

Answer 89

Mitigating factors (e.g., no malice, retraction, anger of the speaker provoked by plaintiff) may be considered by the jury on the damages issue; they are not defenses to liability

Question 90

What are the five elements of a prima facie case of intentional misrepresentation?

Answer 90

1) misrepresentation of a material past or present fact;
2) scienter, i.e., when defendant made the statement, she knew or believed it was false or that there was no basis for the statement;
3) intent to induce plaintiff to act or refrain from acting in reliance upon the misrepresentation;
4) causation (actual reliance); and
5) damages (plaintiff musty suffer actual pecuniary loss)

Question 91

What defenses are there to intentional misrepresentation?

Answer 91

There are no defenses to intentional misrepresentation

Question 92

When is there a duty to disclose a material fact (as it relates to intentional misrepresentation)?

Answer 92

There is no general duty to disclose a material fact, unless the defendant (i) stands in a fiduciary relationship to the plaintiff; (ii) is selling real property and knows the plaintiff is unaware of, and cannot reasonably discover, material information about the transaction; or (iii) has spoken and her utterance deceives the plaintiff. Note: that physical concealment of a material fact may also constitute a misrepresentation

Question 93

When would a defendant be liable for intentional misrepresentation to a third party?

Answer 93

If a third party relies on the defendant’s misrepresentation, the defendant will be liable if she could reasonably foresee that the third party would so rely.

Question 94

What are the five elements that make up a prima facie case of negligent misrepresentation?

Answer 94

1) misrepresentation in a business or professional capacity;
2) breach of duty toward a particular plaintiff;
3) causation;
4) justifiable reliance; and
5) damages

Question 95

For negligent misrepresentation, when is really the only time that an action will be successfully brought and maintained?

Answer 95

Generally, negligent misrepresentation is confined to misrepresentations made in a commercial setting, and liability will attach only if a reliance by the particular plaintiff could be contemplated. (i.e., for negligent misrepresentation, foreseeability that the statement will be communicated to a third party does not make the defendant liable to the third party).

Question 96

What are the four elements to establish a prima facie case of interference with business relations?

Answer 96

(i) existence of a valid contractual relationship between plaintiff and a third party or valid business expectancy of plaintiff;
(ii) defendant’s knowledge of the relationship or expectancy;
(iii) intentional interference by defendant inducing a breach or termination of the relationship or expectancy; and
(iv) damages
Note: In FL, intentional interference with a business relationship requires an existing business relationship evidenced by an actual identifiable agreement that in all probability would have been completed had the defendant not interfered. No cause of action exists where the “relationship” is based on speculation regarding future sales to past customers.

Question 97

What are the elements of a prima facie case of malicious prosecution? (5)

Answer 97

(i) institution of criminal proceedings against plaintiff (e.g., filing a complaint with the police);
(ii) termination in plaintiff’s favor;
(iii) absence of probable cause for prior proceedings (insufficient facts for a reasonable person to believe that plaintiff was guilty, or defendant, in fact, did not actually believe plaintiff to be guilty);
(iv) improper purpose (i.e., something other than bringing a person to justice); and
(v) damages
Note: prosecutors are immune from liability. Also note: most jurisdictions have extended the malicious prosecution action to cover civil cases

Question 98

What are the 2 elements of a prima facie case of abuse of process?

Answer 98

(i) wrongful use of process for an ulterior purpose, and

(ii) definite act or threat against plaintiff in order to accomplish an ulterior purpose

Question 99

What are the 4 elements of a prima facie case of negligence?

Answer 99

(i) A duty on the part of defendant to conform to a specific standard of conduct for protection of plaintiff against an unreasonable risk of injury;
(ii) A breach of that duty by defendant;
(iii) The breach is the actual and proximate cause of plaintiff’s injury; and
(iv) damage

Question 100

To whom is a duty of care owed, and what is the extent of that duty?

Answer 100

A duty of care is owed to all foreseeable plaintiffs. The extent of the duty is determined by the applicable standard of care.

Question 101

What two questions should one ask when evaluating the duty of care?

Answer 101

1) was the plaintiff foreseeable?

2) If so, what is the applicable standard of care?

Question 102

What is the duty of care owed to ‘rescuers’?

Answer 102

A rescuer is a foreseeable plaintiff where defendant negligently put himself or a third person in peril. However, firefighters and police officers may be barred by the firefighter’s rule from recovering for injuries caused by the risks of a rescue

Question 103

What is the duty of care owed to a viable fetus?

Answer 103

A duty of care is owed to a viable fetus. In cases of failure to diagnose a congenital defect or properly perform a contraceptive procedure, the child may not recover for “wrongful life,” but the parents may recover damages in a “wrongful birth” or “wrongful pregnancy” action for any additional medical expenses and for pain and suffering from labor; ordinary child-rearing expenses, however, cannot be recovered
Note: In FL, both parent and child have an action for prenatal injuries, provided the child is born alive. If the fetus dies form the injuries, the parents may not bring a wrongful death action for its death, but they may bring a “negligent stillbirth” action for mental pain and anguish damages and medical expenses incident to the pregnancy.

Question 104

What is the basic standard of care?

Answer 104

The reasonable person standard is an objective standard, i.e., one’s conduct measured against what the average person would do. A defendant’s mental deficiencies and inexperience are not taken into account. However, the “reasonable person” is considered to have the same physical characteristics as defendant (this does not go towards physical handicaps). Note also that, while the reasonable person standard sets a minimum level of care, a defendant who has knowledge or experience superior to that of an average person is required to exercise that experience

Question 105

What is the particular standard of conduct for a professional?

Answer 105

A professional or someone with special occupational skills is required to possess the knowledge and skill of a member of the profession or occupation in good standing. For doctors and other health care providers, Florida law imposes a standard of care based on what is recognized as acceptable and appropriate by reasonably prudent similar healthcare providers in light of all relevant circumstances.

Question 106

What is the particular standard of conduct for a child?

Answer 106

Children are held to the standard of a child of like age, education, intelligence, and experience. This is a subjective test. In FL, any child under six years of age is legally incapable of negligence. Children engaged in potentially dangerous adult activities may be required to conform to an “adult” standard of care

Question 107

What is the particular standard of conduct for common carriers and innkeepers?

Answer 107

Common carriers and innkeepers are held to a very high degree of care; i.e., they are liable for slight negligence. Note: for the higher common carrier and innkeeper standards to apply, the plaintiff must be a passenger or guest

Question 108

What is the particular standard of conduct of an automobile driver to a guest?

Answer 108

A guest in an automobile is owed a duty of ordinary care. In the few guest statute states, one is liable to nonpaying passengers only for reckless tortious conduct.

Question 109

What is the particular standard of conduct in bailment (bailor) duties?

Answer 109

In a bailment relationship, the bailor transfers to the bailee possession of the chattel but not title (e.g., bailor loans her car to bailee).
Bailee: The bailee’s standard of care depends on who benefits from the bailment: (i) for a sole benefit of the bailor bailment, there is a low standard of care; (ii) for a sole benefit of the bailee bailment, there is a high standard of care; and (iii) for a mutual benefit bailment (typically bailment for higher), there is an ordinary care standard.
Bailor: For a sole benefit of the bailee bailment, the bailor must inform the bailee of known, dangerous defects in the chattel. Fora bailment for hire, the bailor must inform the bailee of chattel defects of which he is or should be aware

Question 110

What is the particular standard of conduct in emergency situations?

Answer 110

A defendant must act as a reasonable person would under the same emergency conditions. The emergency is not to be considered, however, if it is of defendant’s own making

Question 111

For negligence, what is the extent of the liability of owners and/or occupiers of land to those off premises?

Answer 111

In Florida, conditions on landowner’s commercial property that contribute to injuries to plaintiff off the premises should be evaluated by established principles of negligence law, regardless of whether conditions are natural or artificial. Owner of commercial property woes duty to prevent foliage from obstructing drivers’ view of sidewalk when entering and exiting property. Residential landowners are not subject to this duty as long as they do not permit foliage or other conditions on their land to extend beyond its boundaries.

Question 112

In urban areas, for negligence, is an owner/occupier liable for damages caused off the premises by trees on the premises (e.g., falling branches)?

Answer 112

Yes. Note: this has been an exam favorite in recent years

Question 113

For defamation, when is notice required five days before institution of civil action?

Answer 113

In Florida, at least five days before institution of civil action for publication or broadcast of a libel or slander, plaintiff must serve written notice on the media defendant, specifying the alleged false and defamatory article or broadcast. If the newspaper, periodical, or radio or television station fully retracts the libel within 10 days of receipt of notice, and if the original publication or broadcast was made in good faith, then only actual damages may be recovered?

Question 114

For health care providers, if one of what two things happens will the provider not be held liable for failure to obtain informed consent?

Answer 114

If the patient either

(1) received enough information so that a reasonable person would have a general understanding of the procedure, its alternatives, and its risks; or
(2) would have accepted the treatment had he been advised as required

Question 115

What is a “trespasser” as far as the duty owed to such by landowners, and what is the extent of the duty owed?

Answer 115

In Florida, a “discovered trespasser” is a person who enters property without an express or implied invitation, and whose actual physical presence was detected within 24 hours preceding the accident. To avoid liability to discovered trespassers, a landowner must refrain from gross negligence or intentional misconduct that proximately causes injury, and must warn of dangerous conditions that are known but that are not readily observable by others. If the trespasser is legally under the influence of alcohol or drugs, the landlord owes no duty to warn of dangerous conditions but is still liable for gross negligence or intentional misconduct.

Question 116

What is the attractive nuisance doctrine in Florida?

Answer 116

Florida requires that the plaintiff have been lured onto the premises by the dangerous condition. The landowner must exercise ordinary care to avoid a reasonably foreseeable risk of harm to children caused by dangerous conditions on his property.

Question 117

Besides Florida’s extra fifth added requirement that the plaintiff must have been lured onto the premises by the dangerous condition, what are the other four elements of the attractive nuisance doctrine?

Answer 117

plaintiff must show:

(i) a dangerous condition on the land that the owner is or should be aware of,
(ii) the owner knows or should know children frequent the vicinity of the condition,
(iii) the condition is likely to cause injury, and
(iv) the expense of remedying the situation is slight compared to the magnitude of risk

Question 118

What is the definition of a “licensee” and what is the licensee owed?

Answer 118

A licensee is one who enters onto the land with the possessor’s permission for her own purpose or business, rather than for the possessor’s benefit. the possessor has a duty to (i) warn of or make safe dangerous conditions known to the owner that create an unreasonable risk of harm to the licensee and that the licensee is unlikely to discover, and (ii) exercise reasonable care in the conduct of “active operations” on the property. The possessor has no duty to inspect or repair.
Note: social guests in FL are considered invitees

Question 119

What is the definition of an “invitee” and what is the invitee owed?

Answer 119

Invitees enter onto the land in response to an invitation by the landowner. The landowner or occupier owes the same duties owed to licensees plus a duty to make reasonable inspections to discover nonobvious dangerous conditions and, thereafter, make them safe. One will lose invitee status if she exceeds the scope of the invitation. In addition, a Florida statute requires owners of business premises to keep the premises free from transitory foreign objects or substances that might foreseeably give rise to injury. In a civil aciton for negligence as a result of such an object or substance on the premises, the claimant has the burden of proving that the business had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it. Constructive knowledge may be established by showing that: (1) the dangerous condition existed for such a length of time that, in the exercise of ordinary care, the business establishment should have known of the condition; or (2) the condition occurred with regularity and was therefore foreseeable.

Question 120

What duty is owed to privileged entrants of a home by the landowner, such as firefighters or police officers?

Answer 120

In FL, a firefighter or properly identified law enforcement officer who lawfully enters the premises in the discharge of duty occupies the status of an invitee.

Question 121

What is the duty owed to users of recreational land?

Answer 121

A landowner who permits the general public to use his land for recreational purposes without charging a fee is not liable for injuries suffered by a recreational user, unless the landowner willfully and maliciously failed to guard against or warn of a dangerous condition or activity.

Question 122

What are the duties of lessor and lessee of realty?

Answer 122

The lessee has a general duty to maintain the premises. The lessor must warn of existing defects of which he is aware or has reason to know, and which he knows the lessee is not likely to discover on a reasonable inspection. If the lessor covenants to repair, he is liable for unreasonably dangerous conditions. If the lessor volunteers to repair and does so negligently, he is able.

Question 123

What if the guest of a tenant is injured, is lessor, lessee, or both potentially liable?

Answer 123

If the guest of a tenant is injured, the landlord may be liable as lessor of the premises. But don’t stop there–remember that the tenant may also be liable to the guest because of the tenant’s status as the owner/occupier of the premises

Question 124

What is the duty of a vendor of realty?

Answer 124

A vendor must disclose to the vendee concealed, unreasonably dangerous conditions of which the vendor knows or has reason to know, and which he knows the vendee is not likely to discover on a reasonable inspection

Question 125

When is violation of statute negligence per se, and how is it differentiated from one of strict liability?

Answer 125

When a Florida statute establishes a duty to take precautions to (1) protect a particular class of persons (2) from a particular injury or type of injury, violation of the statute is negligence per se. However, when a statute is designed to protect a particular class (e.g., minors) from their inability to protect themselves, the statute imposes a strict liability standard for which plaintiff’s contributory negligence is no defense. Also, violation of a traffic ordinance is only evidence of negligence.

Question 126

When is the duty to avoid negligent infliction of emotional distress breached?

Answer 126

When the defendant creates a foreseeable risk of physical injury to the plaintiff. The plaintiff usually must satisfy two requirements to prevail: (i) the plaintiff must be within the “zone of danger;” and (ii)There must be an actual physical impact
Note: “zone of danger” means the plaintiff usually must show that her distress has been caused by a threat of physical impact

Question 127

When may a bystander not in the zone of danger recover for suffering emotional distress from seeing injury to another?

Answer 127

Florida requires that: (i) the plaintiff must suffer a physical injury caused by the psychological trauma; (ii) the plaintiff must be involved in some way in the event causing the negligent injury to another; and (iii) the plaintiff must have a close personal relationship to the directly injured person

Question 128

Generally, one does not have a duty to act, but what are four exceptions to this rule?

Answer 128

(1) one may assume a duty to act by acting (an exception exists, such as in FL, where Good Samaritan statutes have been enacted. However, FL’s GS statute requires one act without negligence so it doesn’t do much),
2) one has a duty to assist someone he has negligently or innocently placed in peril,
3) a special relationship between the parties (e.g., parent-child) may create a duty to act (similarly, common carriers, innkeepers, shopkeepers, and others that gather the public for profit owe duties of reasonable care to aid or assist their patrons. In addition, places of public accommodation have a duty to prevent injury to guests by third persons.),
4) while there is generally no duty to prevent a third person from injuring another, an affirmative duty may be imposed if one has the actual ability and authority to control a person’s actions, and knows or should know the person is likely to commit acts that would require exercise of this control

Question 129

What is “breach of duty” in negligence and is it a question for the trier of law or fact?

Answer 129

Where defendant’s conduct falls short of that level required by the applicable standard of care owed to the plaintiff, she has breached her duty. whether the duty of care is breached in an individual case is a question for the trier of fact.

Question 130

What three theories may plaintiff use to show proof of breach of duty?

Answer 130

1) Custom or usage
2) violation of statute
3) res ipsa loquitur (the very occurrence of an event may tend to establish a breach of duty)

Question 131

What is the ‘custom or usage’ theory plaintiff may use to show proof of breach in negligence?

Answer 131

Custom or usage may be used to establish the standard of care, but does not control the question of whether certain conduct amounted to negligence. For example, although certain behavior is custom in an industry, a court may find that the entire industry is acting negligently.

Question 132

What is the ‘violation of statute’ theory plaintiff may use to show proof of breach in negligence?

Answer 132

Existence of a duty owed to plaintiff and breach thereof may be established as a matter of law by proof that defendant violated an applicable statute (“negligence per se”). Causation and damages must still be established by plaintiff.

Question 133

What is the ‘res ipsa loquitur’ theory plaintiff may use to show proof of breach in negligence? And what are the two things required to prove the doctrine?

Answer 133

In some cases, the very occurrence of an event may tend to establish a breach of duty. The doctrine of res ipsa loquitur requires plaintiff to show that (i) the accident causing the injury is a type that would not normally occur unless someone was negligent, and (ii) the negligence is attributable to defendant (i.e., this type of accident ordinarily happens because of the negligence of someone in defendant’s position). This can often be shown by evidence that the instrumentality causing the injury was in the exclusive control of defendant.

Question 134

Where res ipsa loquitur has been established, may a directed verdict still be given for defendant? Why or why not?

Answer 134

No. Defendant’s motion for directed verdict would be denied because plaintiff has made a prima facie case

Question 135

For liability to be reached in negligence, what two types of causation must be shown?

Answer 135

Both actual cause and proximate cause

Question 136

What does “actual cause” mean as it relates to negligence, and what are the three tests that may be employed?

Answer 136

Before defendant’s conduct can be considered the proximate cause of plaintiff’s injury, it must first be a cause in fact of the injury. The three tests are: ‘But For’ Test, Joint Causes–Substantial Factor Test, and Alternative Causes Approach

Question 137

What is the “But For” Test for the actual cause of negligence?

Answer 137

Act or omission is the cause in fact of an injury when the injury would not have occurred but for the act. This test applies where several acts (each insufficient to cause the injury alone) combine to cause the injury.

Question 138

What is the ‘Joint Causes–Substantial Factor Test for the actual cause of negligence?

Answer 138

Where several causes bring about injury, and any one alone would have been sufficient to cause the injury, defendant’s conduct is the cause in fact if it was a substantial factor in causing the injury.

Question 139

What is the ‘Alternative Causes Approach’ for the actual cause of negligence and how is it different from the Substantial Factor Test?

Answer 139

This test applies when there are two acts, only one of which causes injury, but it is not known which one. the burden of proof shifts to defendants, and each must show that his negligence is not the actual cause. Note: under the joint causes-substantial factor test approach, both parties caused the harm. Under the alternative causes approach, although both parties acted negligently, only one caused the harm.

Question 140

What does “proximate cause” mean as it relates to negligence, and what is the general rule?

Answer 140

Even though conduct actually caused plaintiff’s injury, it might not be deemed to be the proximate cause. Thus, the doctrine of proximate causation is a limitation of liability and deals with liability or nonliability for unforeseeable or unusual consequences of one’s acts
The general rule is, a defendant generally is liable for all harmful results that are the normal incidents of and within the increased risk caused by his acts. This is a foreseeability test.
Note: often the call of the question will be wether one or both parties are entitled to summary judgment–which should be denied if there is any issue of foreseeability for the jury. In other cases, the facts in the question will be so clear-cut that common sense will tell you immediately whether the harm that occurred was foreseeable

Question 141

What is a direct cause case and what is the effect on proving proximate causation for negligence?

Answer 141

In a direct cause case, where there is an uninterrupted chain of events from the negligent act to plaintiff’s injury, defendant is liable for all foreseeable harmful results, regardless of the unusual manner in which they arose or the unusual timing of cause and effect.

Question 142

What is an indirect cause case?

Answer 142

For proving proximate causation in negligence actions, in an indirect cause case, an affirmative intervening force (e.g., an act by a third person, an act of God) comes into motion after defendant’s negligent act and combines with it to cause plaintiff’s injury

Question 143

What six things are almost always seen as foreseeable in determining proximate cause within negligence and therefore defendant would be liable for?

Answer 143

(i) subsequent medical malpractice,
(ii) negligence of rescuers,
(iii) efforts to protect the person or property of oneself or another,
(iv) injuries caused by another reacting to defendant’s actions,
(v) subsequent diseases caused by a weakened condition, and
(vi) subsequent accident substantially caused by the original injury

Question 144

What are three independent intervening forces that, for purposes of proving proximate cause in negligence, are not just a natural response or reaction to the situation created by defendant’s conduct but still may be foreseeable if defendant’s negligence increased the risk of harm from these forces?

Answer 144

(i) negligent acts of third person,
(ii) crimes and intentional torts of third persons, and
(iii) acts of God

Question 145

What is the rule on foreseeable results caused by unforeseeable intervening forces (for proximate cause under negligence)? Is defendant usually found liable for such a situation or not?

Answer 145

Defendant is liable where his negligence increased the risk of a foreseeable harmful result and that result is ultimately produced by an unforeseeable intervening force. This rule does not apply where the unforeseeable intervening force was a crime or intentional tort of a third person.

Question 146

What is the rule on unforeseeable results caused by foreseeable intervening forces (for proximate cause under negligence)?

Answer 146

In the rare case where the totally unforeseeable result was caused by a foreseeable intervening force, most courts hold defendant not liable.

Question 147

What is the rule on unforeseeable results caused by unforeseeable intervening forces (for proximate cause under negligence)?

Answer 147

Intervening forces that produce unforeseeable results (results not within the increased risk created by defendant’s negligence) are generally deemed unforeseeable and superseding. Superseding forces break the causal connection between defendant’s initial negligent act and plaintiff’s ultimate injury, thus relieving defendant of liability.

Question 148

What is the rule on unforeseeable extent or severity of harm (for proximate cause under negligence)?

Answer 148

In all cases, defendant takes his plaintiff as he finds him; i.e., defendant is liable for all damages, including aggravation of an existing condition, even if the extent or severity of the damages was unforeseeable. This is known as the “eggshell-skull plaintiff” rule

Question 149

What is the extent that a plaintiff may recover for damages in a personal injury action?

Answer 149

Plaintiff is to be compensated for all his damages (past, present, and prospective), both economic damages (such as medical expenses) and noneconomic damages (such as pain and suffering). Foreseeability of the extent of harm is generally irrelevant; i.e., one takes one’s plaintiff as one finds him. A plaintiff suffering physical injury also may recover damages for any resulting emotional distress.
Note: Florida had a statutory cap on the amount of noneconomic damages that a claimant can recover in medical malpractice cases as recently as 2017. However the cap was found to be in violation of the FL Constitution and therefore invalid.

Question 150

What is the extent that a plaintiff may recover for damages for property damage?

Answer 150

The measure of damage is the reasonable cost of repair or, if the property is nearly destroyed, its fair market value at the time of the accident. Emotional distress damages generally cannot be recovered for negligent harm to property.

Question 151

What is the extent that a plaintiff may recover for punitive damages?

Answer 151

In Florida, legislation restricts recovery of punitive damages. defendant may be held liable for punitive damages only if the trier of fact, based on clear and convincing evidence, finds that defendant was personally guilty of intentional misconduct or gross negligence. Punitive damages generally may not exceed the greater of (1) three times the amount of compensatory damages awarded to each claimant or (2) the sum of $500,000. (There are exceptions if the action is motivated by unreasonable financial gain, abuse of children or elderly, intent to harm, or intoxication.)

Question 152

What two things in damages are considered nonrecoverable items?

Answer 152

(i) interest from the date of damage in a personal injury action, and
(ii) attorneys’ fees

Question 153

What is the collateral source rule as it pertains to Florida?

Answer 153

In Florida, the governmental and charitable benefits available to the general public are admissible for the jury to consider when determining the cost of future care. Furthermore, by statute, a trial court must reduce any damages awarded to a claimant by any amounts paid for or available to the claimant from collateral sources (not including Medicare, Medicaid, or workers’ compensation benefits). This reduction is offset by any amount paid by the claimant for the benefit (such as insurance premiums). Where a subrogation right exists for a collateral source provider, the claimant’s damages will not be reduced.

Question 154

What is the Assumption of Risk defense to negligence and what are the two elements, and what are the two types?

Answer 154

Plaintiff may be denied recovery if she assumed the risk of any damage caused by defendant’s act. Plaintiff must have (i) known of the risk and (ii) voluntarily proceeded in the face of the risk. The two types are implied assumption of risk and express assumption of risk.

Question 155

Where is there an implied assumption of risk when it is a defense to negligence?

Answer 155

Knowledge may be implied where the risk is one that an average person would clearly appreciate. Plaintiff may not be said to have assumed the risk where there is no available alternative to proceeding in the face of the risk or in situations involving fraud, force, or an emergency. Also, common carriers and public utilities may not limit their liability by disclaimer, and members of a class protected by statute will not be deemed to have assumed any risk.

Question 156

Where is there an express assumption of risk when it is a defense to negligence?

Answer 156

The risk may be assumed by an express agreement. Florida permits natural guardians on behalf of their minor children to waive any claim or cause of action against a commercial activity provider for the minor’s personal injury from an inherent risk in the activity. To be enforceable, a waiver or release must advise that the guardian is agreeing that, even if the activity provider uses reasonable care, there is a chance the child may be seriously injured or killed by participating in the activity because there are certain dangers inherent in the activity that cannot be avoided or eliminated.

Question 157

Can assumption of risk be a defense to an intentional tort?

Answer 157

No, assumption of risk is not a defense to intentional torts, but it is a defense to wanton and willful misconduct.

Question 158

What is the ‘comparative negligence’ defense to negligence, and what is the Florida variety on it? (Including, in what two-step scenario is plaintiff not allowed to recover any damages)

Answer 158

In “pure” comparative negligence, adopted in FL, allows recovery no matter how great plaintiff’s negligence is. Florida also applies it to strict liability and breach of warranty actions. Failure to wear a seat belt as required by law may be considered as evidence of comparative negligence. however, a plaintiff may not recover any damages if the trier of fact finds that: (i) the plaintiff was under the influence of alcohol or drugs that impaired her normal faculties or that resulted in a blood or breath alcohol level of .08% or higher; and (ii) as a result of such impairment, the plaintiff was more than 50% at fault for her own harm.

Question 159

What are the three elements of a prima facie case of liability without fault (strict liability)?

Answer 159

(i) the nature of the defendant’s activity imposes an absolute duty to make safe;
(ii) the dangerous aspect of the activity was the actual and proximate cause of the plaintiff’s injury; and
(iii) the plaintiff suffered damage to person or property

Question 160

Is an owner strictly liable for reasonably foreseeable damage done by a trespass of his animals?

Answer 160

Yes

Question 161

Does strict liability apply to 1) wild animals, 2) domestic animals, and 3) trespassers

Answer 161

1) Yes, an owner is strictly liable to licensees and invitees for injuries caused by wild animals;
2) No, an owner is not strictly liable for injuries caused by domestic animals. Florida makes the owner of a dog liable for damages, regardless of the former viciousness of the dog or the owner’s prior knowledge of such viciousness. However, in the absence of negligence, owner is not liable (except as to a person under age of six) if at time of injury: (1) person is not lawfully on premises; or (2) owner had displayed in prominent place on premises an easily readable sign including the words “Bad Dog.” Any negligence on the part of the person bitten that proximately contributes to the biting incident reduces the liability of the owner of the dog by the percentage that the bitten person’s negligence contributed to the incident. Injury caused by the normally dangerous characteristics of domestic animals (e.g., bulls or honeybees) does not create strict liability.
3) No, strict liability will generally not be imposed in favor of trespassers in the absence of the owner’s negligence. However, a landowner may be liable on intentional tort grounds for injuries inflicted by vicious watchdogs.

Question 162

For strict liability, what are the two requirements for finding an activity to be abnormally dangerous activities:

Answer 162

(i) the activity must create a foreseeable risk of serious harm even when reasonable care is exercised by all actors; and
(ii) the activity is not a matter of common usage in the community
examples: blasting, manufacturing explosives, storing deadly chemicals, crop dusting, and fumigating

Question 163

Is strict liability the same as negligence in that the defendant’s liability extends only to foreseeable plaintiffs?

Answer 163

Yes. Also, the harm must result from the kind of danger to be anticipated form the dangerous activity or animal (including harm caused by fleeing from the perceived danger). Hence, strict liability does not apply when the injury is caused by something other than the dangerous aspect of the activity.

Question 164

What are the five theories of products liability that a plaintiff may use?

Answer 164

(i) intent,
(ii) negligence,
(iii) strict liability,
(iv) implied warranties of merchantability and fitness for a particular purpose, and
(v) representation theories (express warranty and misrepresentation)

Question 165

To find liability under any products liability theory, what two things must plaintiff show?

Answer 165

(i) a defect, and

(ii) existence of the defect when the product left defendant’s control

Question 166

What are the three types of defects under products liability theory? (and what is the difference between them)

Answer 166

Manufacturing Defects - if a product emerges from manufacturing different from and more dangerous than the products that were made properly, it has a manufacturing defect
Design Defects - When all products of a line are the same but have dangerous propensities, they may be found to have a design defect.
Inadequate Warnings - A product may be defective as a result of the manufacturer’s failure to give adequate warnings as to the risks involved in using the product that may not be apparent to users. For prescription drugs and medical devices, warnings given to “learned intermediaries” (e.g., the prescribing physician) will usually suffice in lieu of warnings to the patient.

Question 167

How does one prove a manufacturing defect for products liability?

Answer 167

For a manufacturing defect, defendant will be liable if plaintiff can show that the product failed to perform as safely as an ordinary consumer would expect (defendant must anticipate reasonable misuse). This test also applies to defective food products.

Question 168

How does one prove a design defect for products liability?

Answer 168

Florida does not require the plaintiff to show an alternative design because it uses the same consumer expectation test that is used for manufacturing defects; i.e., the design is defective if it was dangerous beyond the expectation of the ordinary consumer.

Question 169

For proving liability in products liability, how do government safety standards play a role?

Answer 169

Florida applies a rebuttable presumption that a product is defective if the product does not comply with government safety standards. Similarly, it applies a rebuttable presumption that a product is not defective it it does comply with mandatory government safety standards.

Question 170

For proving liability in products liability, how do scientifically unknowable risks play a role?

Answer 170

Defendant will not be held liable for dangers not foreseeable at the time of marketing

Question 171

For proving liability in products liability, how do unavoidably unsafe products play a role?

Answer 171

Manufacturers will not be held liable for some dangerous products (e.g., knives) if the danger is apparent and there is no safer way to make the product

Question 172

In products liability theory, must the defect have existed when the product left defendant’s control? Will this be inferred one way or another?

Answer 172

The defect must have existed when the product left defendant’s control. This will be inferred if the product moved through normal channels of distribution.

Question 173

How does a claim of products liability based on intent work?

Answer 173

Defendant will be liable to anyone injured by an unsafe product if defendant intended the consequences or knew that they were substantially certain to occur. Products liability actions based on intent are not very common. If intent is present, the most likely tort is battery.

Question 174

What are the four elements to make a products liability prima facie case of negligence?

Answer 174

Same as in any negligence case: (i) duty, (ii) breach, (iii) actual and proximate cause, and (iv) damages

Question 175

Is privity between the plaintiff and defendant required in products liability cases? In any case, who is able to sue?

Answer 175

Privity with the defendant is not required, so any foreseeable plaintiff can sue. This includes users, consumers, and bystanders.

Question 176

Who can be held liable for product liability negligence actions?

Answer 176

Anyone who supplies a product to another may be held liable, but the usual case involves a commercial supplier of products. Commercial suppliers include manufacturers, wholesalers, and retailers.

Question 177

What are the two elements to show a breach of duty in product liability?

Answer 177

(i) negligent conduct of defendant leading to (ii) the supplying of a defective product

Question 178

How does the liability of retailers and wholesalers work in product liability?

Answer 178

It is very difficult to hold retailers and wholesalers liable for negligence because they can usually satisfy their duty through a cursory inspection

Question 179

Will an intermediary’s (e.g., wholesaler’s) negligent failure to discover a defect supersede the original manufacturer’s negligence? any exception?

Answer 179

No, it won’t supersede the original manufacturer’s negligence unless the intermediary’s conduct exceeds ordinary foreseeable negligence

Question 180

What are the nature of damages recoverable in product liability?

Answer 180

physical injury or property damage must be shown. (recovery will be denied if the sole claim is for economic loss)

Question 181

What are the defenses to product liability?

Answer 181

The defenses are the same as in a general negligence action.

Question 182

What are the four elements to make a prima facie case of product liability based on strict tort liability? Also, what is an additional requirement for liability to attach?

Answer 182

(i) a commercial supplier of a product;
(ii) producing or selling a defective product;
(iii) actual and proximate cause; and
(iv) damages.
For liability to attach, the product must reach plaintiff without substantial alteration

Question 183

Does strict product liability apply even where a product is provided incident to a service (e.g., blood during an operation)?

Answer 183

No, there is no strict liability. Plaintiff may, however, sue in negligence.

Question 184

How must plaintiff show actual cause on a claim of product liability based on strict tort liability?

Answer 184

Plaintiff must show that the defect existed when the product left defendant’s control. If the defect is difficult to trace, plaintiff may be able to rely on an inference that this type of product failure ordinarily would occur only as a result of a product defect.

Question 185

Must physical injury or property damage be shown in order to recover for a product liability claim based on strict tort liability?

Answer 185

Yes. Physical injury and property damage must be shown. Recovery will be denied if the sole claim is for economic loss.

Question 186

To what extent are disclaimers effective as a defense in product liability claims based on strict tort liability?

Answer 186

Disclaimers are irrelevant in negligence and strict liability cases if personal injury or property damages occur

Question 187

What are the two warranties implied in every sale of goods that can serve as the basis for a suit by a buyer against a seller?

Answer 187

(i) Merchantability, which refers to whether the goods are of average acceptable quality and are generally fit for the ordinary purpose for which goods are used; and
(ii) Fitness for a particular purpose, which arises when the seller knows or has reason to know the particular purpose for which the goods are required and that the buyer is relying on the seller’s skill and judgment in selecting the goods.

Question 188

Who can sue based on implied warranties of merchantability and fitness?

Answer 188

Florida does not necessarily require vertical privity to recover damages, allowing horizontal privity, extending implied warranty protection only to a buyer’s family, household, and guests who suffer personal injury. These warranties generally apply to a lease of goods.

Question 189

How is causation handled in implied warranties and merchantability and fitness claims?

Answer 189

Actual cause and proximate cause are handled as in ordinary negligence cases.

Question 190

What damages are recoverable in implied warranties of merchantability and fitness cases?

Answer 190

Personal injury and property damages, and purely economic loss, are recoverable.

Question 191

What two defenses are available in implied warranties of merchantability cases?

Answer 191

Assumption of risk (using a product while knowing of breach of warranty). Another defense is the failure to give notice of breach (under the UCC). This extends to personal injury cases.

Question 192

What is the effect of disclaimers in implied warranties of merchantability and fitness cases?

Answer 192

Disclaimers are generally rejected in personal injury cases but upheld for economic loss.

Question 193

What is the theory of Representation Theories in product liability claims, and what are the two theories?

Answer 193

A defendant may be liable when a product does not live up to some affirmative representation. The two representation theories are express warranty and misrepresentation of fact

Question 194

What is the ‘express warranty’ representation theory and who can sue under it?

Answer 194

Any affirmation of fact or promise concerning goods that becomes part of the basis of the bargain creates an express warranty. Any consumer, user, or bystander can sue. If a buyer sues, the warranty must have been “part of the basis of the bargain.” If plaintiff is not in privity (e.g., bystander), she need not have relied on the representation as long as someone did. An express warranty may also be made in a lease of goods.

Question 195

How does a plaintiff show breach in an express warranty representation theory product liability claim?

Answer 195

Fault need not be shown to establish breach. Plaintiff need only show that the product did not live up to its warranty.

Question 196

How are causation, damages, and defenses treated in express warranty representation theory product liability cases?

Answer 196

Causation, damages, and defenses are treated just as they are under implied warranties.

Question 197

How are disclaimers treated in express warranty representation theory product liability cases?

Answer 197

A disclaimer will be effective only in the unlikely event that it is consistent with the warranty

Question 198

What are the two elements which, if met, makes the seller liable for misrepresentation of fact under the representation theory for product liability?

Answer 198

A seller will be liable for misrepresentation of facts concerning a product where:

(i) The statement was of a material fact concerning quality or uses of goods (mere puffery insufficient), and
(ii) The seller intended to induce reliance by the buyer in a particular transaction

Question 199

What is needed from the plaintiff in the transaction for a misrepresentation of fact representation theory product liability claim may be recovered upon?

Answer 199

Justifiable reliance is required (i.e., the representation was a substantial factor in inducing the purchase). Reliance need not be the victim’s (it may be a prior purchaser’s). Privity is irrelevant.

Question 200

How are causes and damages shown in a misrepresentation of fact representation theory product liability claim?

Answer 200

Actual cause is shown by reliance. Proximate cause and damages are the same as for strict liability.

Question 201

May assumption of risk be used as a defense in misrepresentation of fact representation theory?

Answer 201

No, it is not a defense if plaintiff is entitled to rely on the representation.

Question 202

Is nuisance a tort? If not, what is it? What two types are there?

Answer 202

Nuisance is not a separate tort in itself. Rather, nuisances are a type of harm–the invasion of either private property rights or public rights by conduct that is tortious because it falls into the usual categories of tort liability (i.e., intentional, negligent, strict liability). There are two types of nuisance: private and public.

Question 203

What is private nuisance?

Answer 203

Private nuisance is a substantial, unreasonable interference with another private individual’s use or enjoyment of property that he actually possesses or to which he has a right of immediate possession.

Question 204

What is considered ‘substantial interference’ for private nuisance?

Answer 204

Interference that is offensive, inconvenient, or annoying to the average person in the community. It is not substantial if it is merely the result of plaintiff’s hypersensitivity or specialized use of his own property.

Question 205

What is considered ‘unreasonable interference’ for private nuisance?

Answer 205

To establish unreasonable interference, required for nuisances based on intent or negligence, the severity of the inflicted injury must outweigh the utility of defendant’s conduct. In balancing these respective interests, courts take into account that every person is entitled to use his own land in a reasonable way, considering the neighborhood, land values, and existence of any alternative courses of conduct open to defendant.

Question 206

How is trespass to land distinguished from private nuisance?

Answer 206

In a trespass there is an interference with the landowner’s exclusive possession by a physical invasion; in a private nuisance, there is an interference with use or enjoyment.

Question 207

What is public nuisance?

Answer 207

An act that unreasonably interferes with the health, safety, or property rights of the community, e.g., using a building for criminal activities such as prostitution. Recovery by a private party is available for a public nuisance only if the private party suffered unique damage not suffered by the public at large.

Question 208

What three remedies are available for nuisance?

Answer 208

Damages - plaintiff will usually be awarded damages;
Injunctive Relief - If the legal remedy of damages is unavailable or inadequate (e.g., the nuisance will cause irreparable injury), injunctive relief will be awarded. In this case, the court will consider the relative hardships. However, hardships will not be balanced where the defendant’s conduct was willful.
Abatement by Self-Help - In the case of a private nuisance, self-help abatement is available after notice to defendant and his refusal to act. Only necessary force may be used. In public nuisance cases, only a public authority or a private party who has suffered some unique damage can seek an injunction or abatement.

Question 209

How does legislative authority (e.g., a zoning ordinance) act as a defense to nuisance?

Answer 209

Legislative authority for “nuisance activity” (e.g., a zoning ordinance) is not an absolute defense but is persuasive.

Question 210

How may the conduct of others act as a defense to nuisance?

Answer 210

No one actor is liable for all damage caused by concurrence of his acts and others. Example: ten steel mills are polluting a stream. Each steel mill is responsible only for the pollution it causes.

Question 211

How does ‘coming to the nuisance’ act as a defense to nuisance?

Answer 211

One may “come to a nuisance” (purchasing land next to an already existing nuisance) and, thereafter, pursue an action. It is generally not a bar to plaintiff’s action unless she “came to the nuisance” for the sole purpose of bringing a harassing lawsuit.

Question 212

What is the doctrine of respondeat superior?

Answer 212

A master/employer will be vicariously liable for tortious acts committed by her servant/employee if the tortious acts occur within the scope of the employment relationship

Question 213

If an employee makes a minor deviation from his employer’s business for the employee’s own purposes, is the employee still acting within the scope of his employment for respondeat superior purposes?

Answer 213

Yes. If the deviation in time or geographic area is substantial, the employer is not liable.

Question 214

What is the presumption in a respondeat superior case for actions involving intentional tort of an employee and whether or not the employer performed a background check?

Answer 214

In Florida, in an action for death, injury, or damage caused by the intentional tort of an employee, the employer is presumed not to have been negligent in hiring such employee if the employer conducted a background investigation before hiring that did not reveal any information reasonably demonstrating the employee’s unsuitability for the particular work or the employment in general. On the other hand, a decision by an employer not to conduct the investigation does not raise any presumption that the employer failed to use reasonable care in hiring an employee.

Question 215

What are three exceptions to the rule that intentional tortious conduct by employees is not within the scope of employment?

Answer 215

1) Force is authorized in the employment, e.g., bouncer.
2) Friction is generated in the employment, e.g., bill collector.
3) The employee is furthering the business of the employer, e.g., removing customers from the premises because they are rowdy

Question 216

In general, are principals vicariously liable for the tortious acts of her agent if the agent is an independent contractor? What are the two broad exceptions to this rule?

Answer 216

In general, a principal will not be vicariously liable for tortious acts of her agent if the agent is an independent contractor. Two broad exceptions exist, however:

(i) the independent contractor is engaged in inherently dangerous activities, e.g., excavating next to a public sidewalk or blasting.
(ii) the duty, because of public policy considerations, is simply nondelegable, e.g., the duty of a business to keep its premises safe for customers

Question 217

May the employer be liable for their own negligence by negligently selecting or supervising their employees or general contractor?

Answer 217

Yes but note that this is not vicarious liability

Question 218

When are partners and joint venturers vicariously liable for the tortious conduct of another member?

Answer 218

When the tortious conduct by another member was committed in the scope and course of the affairs of the partnership or joint venture

Question 219

When is there vicarious liability for an automobile owner to the driver?

Answer 219

Florida has adopted a permissive use rule, holding that an owner who consents to use of his automobile by another person is liable for the negligent damage done by the automobile.
the vicarious liability of a person (not in the business of renting or leasing vehicles) who loans a vehicle to another or leases a vehicle for a short term is limited to $100,000 per person and $300,000 per incident for bodily injury, and $50,000 for property damage. However, if the lessee or operator of the vehicle is uninsured or has insurance with combined limits less than $500,000, the person is liable for up to an additional $500,000 in economic damages.

Question 220

What is the vicarious liability rule for a parent for a child?

Answer 220

In Florida, parents or legal guardians of an unemancipated minor child who commits a theft offense may be liable for threefold the victim’s actual damages

Question 221

What is the vicarious liability rule for tavernkeepers?

Answer 221

In Florida, one who provides alcohol to a person of lawful age is not liable for damages caused by intoxication of that person. Exceptions: (1) one who willfully and unlawfully sells or furnishes alcohol to a minor may become liable for injury or damage resulting from the minor’s intoxication; (2) one who knowingly serves a person habitually addicted to use of alcohol may become liable for injury or damages resulting from intoxication; and (3) proprietor may be liable if he knows or should have known of likelihood of injuries to patrons caused by disorderly conduct of third parties in general and he fails to do anything about it.

Question 222

How does Florida deal with joint and several liability? How does Florida deal with issues of multiple defendants?

Answer 222

Florida has abolished joint and several liability (except for intentional torts and some environmental actions). Judgment against each liable party will be entered based on that party’s percentage of fault. To allocate fault to a nonparty, a defendant must affirmatively plead the fault of the nonparty, identify or describe the nonparty if feasible, and, at trial, prove the nonparty’s fault by a preponderance of the evidence.

Question 223

To what extent is there a survival of tort actions when the plaintiff dies?

Answer 223

In Florida, all actions for a tort that does not cause the victim’s death will survive the death, including actions for intangible personal torts such as defamation. If the victim’s injury results in death, his tort action does not survive; a new action must be brought under the wrongful death statute.

Question 224

How does Florida’s wrongful death statute work?

Answer 224

A wrongful death action in Florida is brought by the decedent’s personal representative. Each survivor may recover the value of lost support or services from the date of injury to death, interest, and future loss of support or services from the date of death, discounted to present value. In addition, the surviving spouse and minor children (or all children if there is no surviving spouse) may recover for the loss of the decedent’s companionship and protection and for mental pain and suffering from the date of injury.

Question 225

When may a spouse bring a case for tortious interference with family relationship when it is recovery of one spouse for another?

Answer 225

Either spouse may bring an action for indirect interference with consortium and services caused by defendant’s intentional or negligent tortious conduct against the other spouse.

Question 226

When may a child recover for tortious interference with family relationship when it is recovery of the child for a parent?

Answer 226

Florida permits a child to recover for loss of a permanently injured parent’s consortium.

Question 227

What is the nature of a tortious interference with family relationship action?

Answer 227

Actions for interference with family relationships are derivative. Hence, any defense that would reduce or bar recovery by the injured family member also reduces or bars recovery for interference with the family relationship.

Question 228

What are the intra-family tort immunities?

Answer 228

Most states have abolished spousal immunity. Florida waives parent-child immunity in the following cases: (1) when unemancipated minor sues parent for negligence (but only to extent of available insurance coverage); and (2) in case of intentional sexual abuse perpetrated by parent against minor child. (immunity is where one can not sue the other in tort).

Question 229

Where does governmental tort immunity still exist?

Answer 229

Where it survives, immunity attaches to governmental, not proprietary functions.

Question 230

Where does governmental tort immunity exist as it relates to the federal government?

Answer 230

Under the Federal Tort Claims Act, the US has waved immunity for tortious acts. However, immunity will still attach for (i) assault, (ii) battery, (iii) false imprisonment, (iv) false arrest, (v) malicious prosecution, (vi) abuse of process, (vii) libel and slander, (viii) misrepresentation and deceit, and (ix) interference with contract rights. Immunity is not waived for acts that are characterized as “discretionary” (those taking place at the planning or decisionmaking level); acts termed “ministerial” (those performed at the operational level of government) are not immune from liability

Question 231

Where does governmental tort immunity exist as it relates to Florida’s state government?

Answer 231

Florida has waived its immunity to a substantial extent for governmental or ministerial activities, but not for discretionary activities. Liability is waived only up to $200,000 for each person injured and $300,000 for all claims arising from one accident, unless the state has insurance coverage greater than these limits. No tort action may be brought against the state unless the claimant has first presented a written claim to the appropriate agency and, except in cases against a municipality, to the Department of Insurance. Municipal immunity is waived to the same extent as state immunity, and immunity for planning-level decisions is not absolute. Liability is waived to extent of insurance coverage.

Question 232

Where does governmental immunity exist as it relates to Law Enforcement Agencies in FL

Answer 232

A law enforcement agency is not liable for injury or property damage caused by a person fleeing from an officer in a motor vehicle if: (i) the pursuit is conducted in a manner that does not involve conduct by the officer so reckless as to constitute disregard of human life, safety, or the property of another; (ii) at the time the officer initiates the pursuit, the officer reasonably believes the person fleeing has committed a forcible felony; and (iii) the pursuit is conducted by the officer pursuant to a written policy governing high-speed pursuit adopted by the agency.

Question 233

What is the tort immunity the Florida imports to public officials?

Answer 233

In Florida, officer and employees of the state and its subdivisions are 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 234

What are the statute of limitations for the various torts in FL?

Answer 234

A two-year statute of limitations applies to actions for wrongful death (except that wrongful death actions based on intentional torts have no limitations period), defamation, and medical malpractice (measured from the time the malpractice was discovered or should have been discovered, but generally no longer than four years). A four-year statute of limitations period applies for negligence and intentional tort actions.