FL Torts Flashcards
How long after an accident can an attorney solicit a client?
At least 30 days after the accident
What is the limit on punitive damages?
Greater of 3x the amount of general damages or $500,000
Who is considered a Fabre defendant?
A party that is not at the trial table
What to remember about strict liability?
Can still argue comparative fault
How to rebut rear-end collision presumption?
Sudden stop doctrine
If car in front suddenly stopped, and can’t avoid result–presumption stops
Who is considered a medical expert?
A doctor in the same specialty or general practice as the defendant doctor
What to say in every essay about contributory negligence?
Contributory negligence has been abolished in Florida
What is seatbelt defense?
Plaintiff failed to wear an (1) available and (2) operational seatbelt and (3) this substantially contributed to plaintiff’s injury
What type of insurance is required if own an automobile?
Personal Injury Protection (“PIP”)
Up to how much can a plaintiff recover from a defendant?
Plaintiff can only recover based on comparative fault
What is the extra analysis for negligence per se in Florida?
Is the statute a traffic or non-traffic statute
What is the result of a violation of a traffic statute?
Prima facie evidence of negligence
How to determine if something was a superseding intervening cause?
Was the subsequent injury foreseeable
What level of intent makes an act a superseding intervening cause?
Reckless or intentional acts only
subsequent negligent action is always foreseeable
How to hold dog owner to negligence instead of strict liability?
1) Dog was provoked
2) If posted “bad dog” sign on property
3) If victim is 6 years of age or younger
Can you apply joint and several liability in Florida?
NO!!!!
When does good samaritan statute apply in hospitals?
Applies only when in emergency room. When in hospital room, good samaritan statute is inapplicable
In car accidents, what defense to consider?
Seatbelt defense
What is the good samaritan statute?
Will not be liable for any civil damages when person acts like an ordinary reasonably prudent person who would have acted under the same or similar circumstances
What type of negligence state is Florida?
Pure comparative fault
What things make a plaintiff strictly liable?
1) Abnormally dangerous activities
2) Dog bites
Is verified affidavit discoverable?
Yes and must be provided to the other side
Who can serve as a medical expert if suing a general practitioner?
Need to have been practicing or teaching there/specialty for at least 5 years
When to apply modified comparative fault?
Only when plaintiff is intoxicated
Requirements of verified affidavit?
1) Needs to be sworn to
2) Needs to comply with medical expert requirement (who can serve)
When to mention good samaritan statute on an essay?
If any type of rescuer (even if in emergency room, just say level of care)
What to include in the notice of intent to initiate litigation?
1) Attach verified affidavit
2) List all healthcare professionals who the plaintiff visited since the alleged medical malpractice
3) List of healthcare professionals who plaintiff visited 2 years prior to the alleged malpractice
Are contingency fee agreements valid in Florida?
Yes
Who is the good samaritan statute for?
For rescuers outside of a hospital (including doctor if outside of the hospital)
How to get around sudden stop doctrine?
Following too closely
What is the emergency room statute?
Any healthcare provider, including a hospital, providing emergency services pursuant to obligations shall not be held liable for any civil damages as a result of such medical care or treatment unless such damages result from providing, failing to provide, medical care or treatment under circumstances demonstrating a RECKLESS disregard for the consequences to to affect the life or health of another
What is PIP?
Insurance that covers injuries or damages irrespective of who caused the damage
What kind of investigation is required for medical malpractice pre-suit?
Good faith investigation
What type of cause cuts off causation completely?
Superseding intervening cause
When is someone intoxicated/
0.08 blood alcohol content or higher
What do you need after reasonable investigation?
Verified affidavit
What is dangerous instrumentality doctrine?
Owner of an instrumentality that can cause death or destruction is liable for injuries caused by instrumentality and is operated with the owner’s knowledge and consent
What do you need for contingency fee agreement to be valid?
1) Writing
2) Signed by client
3) In personal injury cases, need statement of client rights
4) Must be cancelable upon written notification within 3 days of signing
Is written opinion in the reasonable investigation discoverable?
No.
When can a plaintiff actually get pain and suffering damages in an automobile crash?
ONLY if plaintiff can show that the injury they sustained is permanent
What can jury do with a Fabre defendant?
Jury can apportion fault to nonexistent defendant
Basics of pre-suit requirements?
1) Pre-suit investigation
2) Notice
3) Negligent doctor’s decision on what to offer plaintiff
What does Florida use if multiple plaintiffs?
Relative fault
Comparative negligence
What is the difference between MBE and Florida regarding strict liability for dog bites?
In Florida, always liable, doesn’t matter if the owner knew of the dog’s vicious behavior
Who can be the expert in a verified affidavit?
Can be the same expert as the one in the reasonable investigation
What is modified comparative fault?
If plaintiff more than 50% at fault, plaintiff gets nothing
What is the rear-end collision presumption?
Presumption that the driver that collides from behind is negligent
When is the only time a child can sue a parent?
When there is an insurance policy that would cover the child’s injury. Can only sue up to the limit of the insurance policy
Who has the burden for seatbelt defense?
Defendant must prove (Affirmative defense)
Policy of good samaritan statute?
Encourage doctors and others to render aid and not be as liable
What’s the deal with the statute of limitations for medical malpractice suits?
During 90 days (after notice of intent to litigate), statute of limitations is tolled
What needs to be said in an essay about assumption of the risk?
Florida has abolished implied assumption of the risk; only express assumption of the risk exists in Florida
What is strict liability?
Defendant is liable for injuring a plaintiff irrespective of whether the defendant exercised due care
Level of care for good samaritan statute (outside of hospital)?
How an ordinary reasonably prudent person would have acted under the same or similar circumstances
Does dangerous instrumentality doctrine apply even is exceeding the scope of authorization?
Yes
Ex: Give someone permission to use car and they exceed the scope of authorization
When do you need to receive treatment for PIP?
Within 14 days of the accident
What if passenger in automobile, can you sue the driver?
Florida does not have a guest statute (it’s like assumption of the risk thing)
Monetary limit if suing the state?
$200k per plaintiff in a lawsuit or $300k per accident
What is the standard for punitive damages?
Plaintiff needs to show that the defendant acted intentionally or acted with gross (willful or wanton) misconduct
Who can serve as a medical expert if suing a specialist?
Need to have been practicing or teaching in that specialty for at least 3 years
What type of cause does not break the chain of causation?
Intervening cause
When is dog owner liable for a dog bite?
Always
What type of non-traffic statute for negligence per se analysis, generally?
Punitive non-traffic statute
What happens when there is prima facie evidence of traffic statute?
Jury needs to find that negligence exists. Can use statute itself
(Find causation and damages)
What happens if violated non-traffic statute?
Shows negligence per se
What comes after getting the verified affidavit?
Notice of intent to initiate litigation
List immunities
1) Husband/wife
2) Parent/child
3) State sovereign
What is negligence per se?
Violation of a statute that the law is designed to protect a particular class of persons from a particular type of harm
What is the starting point of the analysis for a medical malpractice action?
Need to do duty, breach, causation, and damages analysis &&&& heightened standard
What is a traffic statute?
Statute that regulated the flow or operation of traffic
Motor vehicle traffic
What is a reasonable investigation?
Written opinion by a medical expert that there are reasonable grounds that medical malpractice exists
Point of reasonable investigation (and must be said on an essay)?
Plaintiff needs to conduct good faith investigation to DEVELOP a good faith belief that there has been negligence in the treatment of plaintiff
When do you need to serve a defendant with the notice of intent to initiate litigation?
At least 90 days before filing suit
What happens after notice of intent to litigate?
Defendant conducts a reasonable investigation and then decision on what to offer plaintiff
Standard of care for emergency room?
Reckless disregard for the consequences
Three options after defendant’s reasonable investigation (med mal)?
After 90 days from commencing investigation, needs to
1) reject plaintiff’s claim
2) settle claim
3) offer to admit liability but seek arbitration of damages
What must a court do under the collateral source rule?
Must reduce damages awarded to a claimant by any amounts paid for or available to the claimant from collateral sources (not including Medicare, Medicaid, or worker’s compensation benefits)
What is the open and obvious doctrine?
The owner of a premises is not liable for an injury caused by a condition that was so open and obvious to the plaintiff that the plaintiff should have used due care to avoid the accident
What is the Slavin doctrine?
A subcontractor will only be liable for latent defects
What is needed for negligent infliction of emotional distress?
Plaintiff must allege physical impact or physical manifestation of psychological trauma
Does a person need to retreat?
Not if in lawful place and believes force necessary to prevent death or great bodily harm
How to determine if someone is justified in using force in self-defense?
Reasonably prudent person standard
if reasonable person would have believed being attacked with a weapon
Before bringing libel claim in FL what is required?
Written notice on the media defendant 5 days before bringing suit specifying the alleged libelous article
Is a statement of pure opinion actionable in Florida?
Nope
A qualified privilege for making defamatory statements may be lost in Florida through ______
Express malice as defined by common law
What is express malice?
Primary motive for the statement is an intention to injure the plaintiff
Under what age is someone completely incapable of negligence?
6 years old
If a child trespasses on your property and is injured, how would you be liable?
If the child was lured onto the premises by the dangerous condition
Are you liable if your dog bites a trespasser?
No
What has Florida done to the doctrine of interspousal immunity?
Abolished it
Florida immunity is waived for what?
Ministerial acts, not discretionary acts
To what extent is municipal liability waived in Florida?
To the extent of insurance coverage
If give someone alcohol are you liable?
No, unless they’re an alcoholic and you know about it
What must be shown for IIED?
SEVERE emotional distress
Does the state have a duty to maintain its highways?
Yes, same common law duty as a private person to maintain their property
Can notice of intent to sue be waived by doctors?
Yes, this is not a jurisdictional requirement to bring suit against the doctors
If doctor operates on wrong leg, but would have consented, what is the result?
Claim can be dismissed
Is government employer liable for willful or malicious acts of its employees?
No, just their negligent acts
