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Florida Bar Exam > FL Torts > Flashcards

FL Torts Flashcards

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1
Q

How long after an accident can an attorney solicit a client?

A

At least 30 days after the accident

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2
Q

What is the limit on punitive damages?

A

Greater of 3x the amount of general damages or $500,000

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3
Q

Who is considered a Fabre defendant?

A

A party that is not at the trial table

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4
Q

What to remember about strict liability?

A

Can still argue comparative fault

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5
Q

How to rebut rear-end collision presumption?

A

Sudden stop doctrine

If car in front suddenly stopped, and can’t avoid result–presumption stops

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6
Q

Who is considered a medical expert?

A

A doctor in the same specialty or general practice as the defendant doctor

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7
Q

What to say in every essay about contributory negligence?

A

Contributory negligence has been abolished in Florida

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8
Q

What is seatbelt defense?

A

Plaintiff failed to wear an (1) available and (2) operational seatbelt and (3) this substantially contributed to plaintiff’s injury

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9
Q

What type of insurance is required if own an automobile?

A

Personal Injury Protection (“PIP”)

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10
Q

Up to how much can a plaintiff recover from a defendant?

A

Plaintiff can only recover based on comparative fault

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11
Q

What is the extra analysis for negligence per se in Florida?

A

Is the statute a traffic or non-traffic statute

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12
Q

What is the result of a violation of a traffic statute?

A

Prima facie evidence of negligence

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13
Q

How to determine if something was a superseding intervening cause?

A

Was the subsequent injury foreseeable

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14
Q

What level of intent makes an act a superseding intervening cause?

A

Reckless or intentional acts only

subsequent negligent action is always foreseeable

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15
Q

How to hold dog owner to negligence instead of strict liability?

A

1) Dog was provoked
2) If posted “bad dog” sign on property
3) If victim is 6 years of age or younger

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16
Q

Can you apply joint and several liability in Florida?

A

NO!!!!

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17
Q

When does good samaritan statute apply in hospitals?

A

Applies only when in emergency room. When in hospital room, good samaritan statute is inapplicable

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18
Q

In car accidents, what defense to consider?

A

Seatbelt defense

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19
Q

What is the good samaritan statute?

A

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

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20
Q

What type of negligence state is Florida?

A

Pure comparative fault

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21
Q

What things make a plaintiff strictly liable?

A

1) Abnormally dangerous activities

2) Dog bites

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22
Q

Is verified affidavit discoverable?

A

Yes and must be provided to the other side

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23
Q

Who can serve as a medical expert if suing a general practitioner?

A

Need to have been practicing or teaching there/specialty for at least 5 years

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24
Q

When to apply modified comparative fault?

A

Only when plaintiff is intoxicated

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25
Q

Requirements of verified affidavit?

A

1) Needs to be sworn to

2) Needs to comply with medical expert requirement (who can serve)

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26
Q

When to mention good samaritan statute on an essay?

A

If any type of rescuer (even if in emergency room, just say level of care)

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27
Q

What to include in the notice of intent to initiate litigation?

A

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

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28
Q

Are contingency fee agreements valid in Florida?

A

Yes

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29
Q

Who is the good samaritan statute for?

A

For rescuers outside of a hospital (including doctor if outside of the hospital)

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30
Q

How to get around sudden stop doctrine?

A

Following too closely

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31
Q

What is the emergency room statute?

A

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

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32
Q

What is PIP?

A

Insurance that covers injuries or damages irrespective of who caused the damage

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33
Q

What kind of investigation is required for medical malpractice pre-suit?

A

Good faith investigation

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34
Q

What type of cause cuts off causation completely?

A

Superseding intervening cause

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35
Q

When is someone intoxicated/

A

0.08 blood alcohol content or higher

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36
Q

What do you need after reasonable investigation?

A

Verified affidavit

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37
Q

What is dangerous instrumentality doctrine?

A

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

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38
Q

What do you need for contingency fee agreement to be valid?

A

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

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39
Q

Is written opinion in the reasonable investigation discoverable?

A

No.

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40
Q

When can a plaintiff actually get pain and suffering damages in an automobile crash?

A

ONLY if plaintiff can show that the injury they sustained is permanent

41
Q

What can jury do with a Fabre defendant?

A

Jury can apportion fault to nonexistent defendant

42
Q

Basics of pre-suit requirements?

A

1) Pre-suit investigation
2) Notice
3) Negligent doctor’s decision on what to offer plaintiff

43
Q

What does Florida use if multiple plaintiffs?

A

Relative fault

Comparative negligence

44
Q

What is the difference between MBE and Florida regarding strict liability for dog bites?

A

In Florida, always liable, doesn’t matter if the owner knew of the dog’s vicious behavior

45
Q

Who can be the expert in a verified affidavit?

A

Can be the same expert as the one in the reasonable investigation

46
Q

What is modified comparative fault?

A

If plaintiff more than 50% at fault, plaintiff gets nothing

47
Q

What is the rear-end collision presumption?

A

Presumption that the driver that collides from behind is negligent

48
Q

When is the only time a child can sue a parent?

A

When there is an insurance policy that would cover the child’s injury. Can only sue up to the limit of the insurance policy

49
Q

Who has the burden for seatbelt defense?

A

Defendant must prove (Affirmative defense)

50
Q

Policy of good samaritan statute?

A

Encourage doctors and others to render aid and not be as liable

51
Q

What’s the deal with the statute of limitations for medical malpractice suits?

A

During 90 days (after notice of intent to litigate), statute of limitations is tolled

52
Q

What needs to be said in an essay about assumption of the risk?

A

Florida has abolished implied assumption of the risk; only express assumption of the risk exists in Florida

53
Q

What is strict liability?

A

Defendant is liable for injuring a plaintiff irrespective of whether the defendant exercised due care

54
Q

Level of care for good samaritan statute (outside of hospital)?

A

How an ordinary reasonably prudent person would have acted under the same or similar circumstances

55
Q

Does dangerous instrumentality doctrine apply even is exceeding the scope of authorization?

A

Yes

Ex: Give someone permission to use car and they exceed the scope of authorization

56
Q

When do you need to receive treatment for PIP?

A

Within 14 days of the accident

57
Q

What if passenger in automobile, can you sue the driver?

A

Florida does not have a guest statute (it’s like assumption of the risk thing)

58
Q

Monetary limit if suing the state?

A

$200k per plaintiff in a lawsuit or $300k per accident

59
Q

What is the standard for punitive damages?

A

Plaintiff needs to show that the defendant acted intentionally or acted with gross (willful or wanton) misconduct

60
Q

Who can serve as a medical expert if suing a specialist?

A

Need to have been practicing or teaching in that specialty for at least 3 years

61
Q

What type of cause does not break the chain of causation?

A

Intervening cause

62
Q

When is dog owner liable for a dog bite?

A

Always

63
Q

What type of non-traffic statute for negligence per se analysis, generally?

A

Punitive non-traffic statute

64
Q

What happens when there is prima facie evidence of traffic statute?

A

Jury needs to find that negligence exists. Can use statute itself

(Find causation and damages)

65
Q

What happens if violated non-traffic statute?

A

Shows negligence per se

66
Q

What comes after getting the verified affidavit?

A

Notice of intent to initiate litigation

67
Q

List immunities

A

1) Husband/wife
2) Parent/child
3) State sovereign

68
Q

What is negligence per se?

A

Violation of a statute that the law is designed to protect a particular class of persons from a particular type of harm

69
Q

What is the starting point of the analysis for a medical malpractice action?

A

Need to do duty, breach, causation, and damages analysis &&&& heightened standard

70
Q

What is a traffic statute?

A

Statute that regulated the flow or operation of traffic

Motor vehicle traffic

71
Q

What is a reasonable investigation?

A

Written opinion by a medical expert that there are reasonable grounds that medical malpractice exists

72
Q

Point of reasonable investigation (and must be said on an essay)?

A

Plaintiff needs to conduct good faith investigation to DEVELOP a good faith belief that there has been negligence in the treatment of plaintiff

73
Q

When do you need to serve a defendant with the notice of intent to initiate litigation?

A

At least 90 days before filing suit

74
Q

What happens after notice of intent to litigate?

A

Defendant conducts a reasonable investigation and then decision on what to offer plaintiff

75
Q

Standard of care for emergency room?

A

Reckless disregard for the consequences

76
Q

Three options after defendant’s reasonable investigation (med mal)?

A

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

77
Q

What must a court do under the collateral source rule?

A

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)

78
Q

What is the open and obvious doctrine?

A

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

79
Q

What is the Slavin doctrine?

A

A subcontractor will only be liable for latent defects

80
Q

What is needed for negligent infliction of emotional distress?

A

Plaintiff must allege physical impact or physical manifestation of psychological trauma

81
Q

Does a person need to retreat?

A

Not if in lawful place and believes force necessary to prevent death or great bodily harm

82
Q

How to determine if someone is justified in using force in self-defense?

A

Reasonably prudent person standard

if reasonable person would have believed being attacked with a weapon

83
Q

Before bringing libel claim in FL what is required?

A

Written notice on the media defendant 5 days before bringing suit specifying the alleged libelous article

84
Q

Is a statement of pure opinion actionable in Florida?

A

Nope

85
Q

A qualified privilege for making defamatory statements may be lost in Florida through ______

A

Express malice as defined by common law

86
Q

What is express malice?

A

Primary motive for the statement is an intention to injure the plaintiff

87
Q

Under what age is someone completely incapable of negligence?

A

6 years old

88
Q

If a child trespasses on your property and is injured, how would you be liable?

A

If the child was lured onto the premises by the dangerous condition

89
Q

Are you liable if your dog bites a trespasser?

A

No

90
Q

What has Florida done to the doctrine of interspousal immunity?

A

Abolished it

91
Q

Florida immunity is waived for what?

A

Ministerial acts, not discretionary acts

92
Q

To what extent is municipal liability waived in Florida?

A

To the extent of insurance coverage

93
Q

If give someone alcohol are you liable?

A

No, unless they’re an alcoholic and you know about it

94
Q

What must be shown for IIED?

A

SEVERE emotional distress

95
Q

Does the state have a duty to maintain its highways?

A

Yes, same common law duty as a private person to maintain their property

96
Q

Can notice of intent to sue be waived by doctors?

A

Yes, this is not a jurisdictional requirement to bring suit against the doctors

97
Q

If doctor operates on wrong leg, but would have consented, what is the result?

A

Claim can be dismissed

98
Q

Is government employer liable for willful or malicious acts of its employees?

A

No, just their negligent acts

Florida Bar Exam (10 decks)

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