FL Torts

Question 1

IIED

Answer 1

Intentional or reckless conduct that is extreme or outrageous, that causes P to suffer emotional emotional distress,

In Florida, no physical symptoms of manifestation are needed.

Question 2

NIED- Physical Impact Rule

Answer 2

Requires physical impact - Zone of Danger

Exceptions:

Bystandard - D’s negligence caused P to suffer emotional distress, where P’s close relative was Injured by D and was witnessed by P.

Psycotherapist Exception - P alleges psycotherapist breach fiduciary relationship

Attorney- client : special relationship + foreseeable emotional harm from wrongful incarceration.

Question 3

Shopkeepers Privilege

Answer 3

1. reasonable suspicion of theft,
2. detention in reasonable manner and period of time
3. nondeadly force,
4. only for purpose of making investigation.
5. Must show stolen property can be recovered by taking offender into custody

Question 4

Good Samaritan Laws

Answer 4

Limits the liability of a rescuer from ordinary negligence. Cannot be reckless conduct

Question 5

LL Duty:

1) Invited Licensee
2) Unsolicited Licensee (Firefighter)
3) Known Tresspassers
4) Unkown tresppasser

Answer 5

1) warn of nonobvious dangerous conditions + make reasonable inspection to discover dangerous conditions and make safe.
2) warn of hidden dangers
3) warn and refrain from negligent or improper conduct
4) refrain from negligent or improper conduct

Question 6

Transitory Foreign Objects (bananna peel on floor)

Answer 6

P must show business- D had actual or constructive [length of time/reoccurrence] knowledge of dangerous condition.

Question 7

LL Liability

Answer 7

If lessor surrenders posession and control of premises, he will not be liable for injuries to 3rd Party that occur on premises.

liable if not given lesee access to safe property,

does not repair a defect w/in a reasonable time

if lessee’s dog attacks

Question 8

LL Liability: Felony on Premises

Answer 8

LO will not be liable for negligence resulting in death, injury, or damage to a person who is attempting to commit a felony on the premises.

Question 9

FL Medical Consent Law

Answer 9

Florida Medical Consent Law – protects medical professionals from liability if, within scope of consent standard Dr:

1. obtains written consent from patient
2. rsnbl patient would’ve understood treatment, alternatives, and risk; or
3. patient would’ve reasonably chosen treatment if adequately advised of risks

Question 10

FL Medical Malpractice Claim

Answer 10

1. obtain affidavit from medical expert showing verifiable grounds for claim –
2. serve notice on D by certified mail at least 90 days before filing suit—-including: list of healthcare providers P saw regarding injury, all providers treated D w/in 2 years of injury, and copies of medical records relied on by expert who signed affidavit.
3. w/in 90 days insurer must deliver answer (during period SoL tolled to all potential Ds)

Question 11

Attractive Nuisance

Answer 11

Landlord owes a duty to child tresspasser to make the property reasonably safe and warn of any hidden dangers

1. Dangerous artificial condition on land
2. children are known to frequest the area
3. dangerous condition allures children on property
4. children won’t appreciate the danger or are unlikly to discover the danger
5. risk of harm is greater than the cost to make the premises safe

Question 12

Neg Per Se

Answer 12

1) Statute must impose an affirmative duty to take certain action and impose a penalty for failure to do so.; AND
2) P is in the class of persons the statute seeks to

protect

Question 13

Res Ipsa loquiter

Answer 13

P may rely on the presumption of negligence regardless of knowledge for who cause the injury of who had control during the injury.

Plaintiff must show that:

1) the injury is of a kind that typically does not occur in the absence of negligence;
2) other responsible causes are sufficientlyeliminated by the evidence (including the conduct of P and third persons); AND
3) the negligence was within the scope of duty D owed to P

Question 14

Causation- Substantial Factor

Answer 14

in Florida The substantial factor test is used when there are concurrent causes, any one of which acting alone would have caused Ps injury

Question 15

Market Share Liability

Answer 15

P can use in negligence action if:

P cannot identify specific manufacturer; and all manufacturers have same risk of harm

Question 16

Punitive Damages

Answer 16

P must prove by clear and convincing evidence that D acted intentionally or with willful, wanton, or gross misconduct.

Cannot be given if already rewarded.

Recovery Cap: greater of 3x compensatory award or $500,000

—D acted w/ specific intent OR D alcohol/drug impaired → no cap

—D acted w/ unreasonable financial gain → greater of 4x comp. award or $2mm

—Child/elderly/incompetent abuse → may exceed 3x IF P shows clear and convincing evidence award isn’t excessive.

Question 17

Collateral Source Rule

Answer 17

Damages will be reduced by payments from disability payments, social security, income disability insurance, healthcare K’s

Question 18

Economic Loss Rule

Answer 18

ELR limitation applies to products liability, but does not bar:

• -(1) statutory causes of action;
• -(2) tort actions arising from a K; or
• -(3) independent torts

Question 19

Public Nuisance

Answer 19

A public nuisance is “any building or place which tends to annoy the community or injure the health of the community.”

–amusement: a place of amusement is not nuisance per se, but maybe a public nuisance if it unreasonably annoys the community.

–AG/state attorney or citizen of the county affected may sue in the name of the state to enjoin a public nuisance.

Individual suing for public nuisance must show special damages to that of the community at large

Question 20

Defamation

Answer 20

Defamation by Implication – true statements can be defamatory where they create a false impression.

FL: Personal representative can sue on behalf of dead person if defamatory statement occurred during Dead person’s life

If person has priviledge must defeat by a perponderance of the evidence that the statement was made with malice - purpose was to injure

Question 21

Dangerous instrumalities doctrine

Answer 21

owner of instrumentality capable of causing death is liable for its misuse by TP if had owners knowledge and consents to tp use

Question 22

Negligent entrustment

Answer 22

liability to owner where

1. Supplier of Chattle who gives 3rd party chattle to use,

and

2. foreseeable 3rd party is likly to use chattle in a manner involving unreasonable risk of physical harm to user

Question 23

Wrongful death & Survival actions

Answer 23

• can recover from loss of support, companionship/ consortium, mental and physical pain
• Sue for claims had before death if death was a result of those injuries