fl torts

Question 1

rear-end collisions

Answer 1

car accident
fl applies a rebuttable presumption that rear-end collision driver was the sole proximate cause of the accident
damages never presumed
rear driver has burden of showing one of the following:
1. lead driver made an abrupt or arbitrary lane change in a manner a reasonable driver would not expect
2. illegal stop by lead driver OR
3. mechanical failure of rear driver’s car without fault of rear driver

Question 2

florida’s good samaritan statute

Answer 2

• there is no duty to render aid unless a special relationship exists
• however if you do render aid, you are not liable if you act as an oridnary prudent person under circumstances; if you act recklessly, you will be liable
• applies to regular people/doctors
• only makes a difference to doctors and medical personnel
• ordinary citizens: provides immunity for a rescuer who acts as a reasonably prudent person when she acts: gratuitously, in good faith, and without objection fo the injured person
  look for rescuer
• health care providers of emergency services: not liable unless acted with reckless disregard for risks to patients; can apply to dr’s in emergency room settings who respond to emergency services
• lower standard than professional

Question 3

negligence per se

Answer 3

violated statute causing injury to someone and statute protected that person from that harm.
in fl only non-traffic penal statutes are subject to negligence per se, otherwise violation of statute is evidence of negligence

Question 4

violation of traffic citation

Answer 4

not negligence per se, but prima facie evidence of negligence.

Question 5

medical malpractice

Answer 5

suing a dr for negligence.
rule: dr held to reasonably prudent dr, breached that duty (same as mbe)
in fl procedure is different, per us constitution

Question 6

medical malpractice: reasonable investigation for good faith belief

Answer 6

1. plaintiff must conduct reasonable investigation for good faith grounds for negligence claim, including a written opinion from expert stating
2. give 90 days notice before filing suit plaintiff gives notice to defendants of intent to litigation
3. defendant required to conduct a pre-suit investigation and respond to plaintiff
4. then there is mandatory mediation and settlement conference or nonbinding court-ordered arbitration

Question 7

medical malpractice: qualifications of med expert for reasonable investigation

Answer 7

professional in same field/specialty gives written opinion that malpractice occured.
opinion is not discoverable

Question 8

medical malpractice: verified affidavit from med expert

Answer 8

written affidavit saying the same thing.
discoverable

Question 9

medical malpractice: notice of intent to initiate litigation

Answer 9

have to provide notice.
mini trial w/ defendant
1. intent to sue letter
2. affidavit copy
3. client medical record

Question 10

medical malpractice: defendant’s reasonable investigation

Answer 10

def has 90 days to conduct their own reasonable investigation.
at end of 90 days, def must choose:
1. reject the claim
2. offer to settle the claim
3. offer to admit liability and arbitrate damages

then there is mandatory mediation and settlement conference or nonbinding court-ordered arbitration

Question 11

medical malpractice: tolling of statute of limitations

Answer 11

two ways to toll med mal:
1. during 90 day SOL automatically tolls
2. file petition in court to have extra time for SOL before 90 days begin

Question 12

defenses to negligence (Affirmative defenses)

Answer 12

must raise affirmative defenses in essay!
1. intervening cause
2. assumption of risk
3. modified comparative fault for intoxicated plaintiffs
4. contributory negligence
5. comparative fault
6. fabre defendant
7. failure to wear seatbelt

Question 13

negligence defenses: contributory negligence

Answer 13

unlike mbe, fl has abolished it
(where is p even 1% liable cant college)
otherwise, contributory negligence is used to determine the negligence on the part of plaintiff that contributes to her injuries

Question 14

negligence defenses: modified comparative fault

Answer 14

• fl has adopted modified comparative fault
• contributory fault charged to plaintiff will proportionately reduce the amount awarded as damages if the plaintiff’s fault is 50% or less
• however, any contributory fault that exceeds 50% bars recovery
• defective products
• court must consider fault of all persons who contributed to accident when apportioning fault between or among them
• court must instruct jury on apportionment of fault

Question 15

negligence defenses: modified comparative fault for intoxicated plaintiffs

Answer 15

(when drunk)
fl uses modified comparative fault if plaintiff contributed more than 50% of the neglgience they receive nothing

Question 16

negligence defenses: fabre defendant

Answer 16

ghost defendant
not present at trial
two ways fabre defendant appears on jury verdict
1. fd has settled
2. fd could not be brought in court (no jurisidction over them or a hit and run)

Question 17

negligence defenses: failure to wear a seatbelt

Answer 17

plaintiff not wearing a seatbelt.
1. not negligence per se- or prima facie evidence for negligence
2. in florida, can be comparative fault if defendant shows plaintiff failed to use operational and available seatbelt and failure to wear if substantially contributed to plaintiff’s injuries

Question 18

Florida Defenses to Negligence: Assumption of the Risk

Answer 18

must raise!
* plaintiff may be denied recovery if she expressly assumed the risk of any damage caused by the defendant’s act
plaintiff must have:
* known of the risk AND
* voluntarily proceeded in the face of the risk

exculpatory waivers are enforceable if (meaning that plainitiff denied recovery):
1. clear and unequivocal
2. waives only negligence or gross negligence, not intentional torts AND
3. applies to adults

MBE recognizes express and implied AOR, but FL ABOLISHED implied AOR
HAS to express their assumption of risk (like waiver form)

defense to intentional tort is consent, while the defense to neglgience and strict liabiltiy is assumption of the risk

Question 19

Florida Defense to Negligence: Intervening Cause

Answer 19

must raise all affirmative defenses
any/all foreseeable acts are intervening causes that don’t cut off chain of liability.
negligence is foreseeable

Question 20

Florida strict liability

Answer 20

prima facie case:
1. absolute duty to make a person/property safe (absolute duty of care)
2. breach of that duty
3. causation AND
4. damage
defendant liable if engaged in
* wild animals (or injury resulting from fear of wild animal)
* abnormally dangerous activity (explosives, hazardous chemicals, etc)
* defective product

fl doesnt apply strict liability very often as a modified comparative negligent state

Question 21

florida vicarious liability for negligent hiring

Answer 21

• an employer can be held directly liable for hiring an employee who committed an intentional tort
• NOT vicarious liability; holding the employer directly responsible. employer is NOT liable for an employee’s act of willful misconduct or any intentional or knowing violation of the law
• fl applies presumption employer NOT negligent in hiring an employee, as long as the employee conducts a background check that doesnt reveal any indication employee unsuitable for the position

background check must include:
* criminal background check
* reasonably contact references and former employer
* require written job app
* interview an application

• if employee’s responsibilities include driving, background check must include a driver’s license record check for the presumption to apply
• employer is not liable for encouraging ridesharing by employees that result in injurt

Question 22

florida vicarious liability: driver-passenger (guest statute)

Answer 22

guest statute does not apply in FL.
A passenger in a vehicle that gets into an accident can sue the driver

Question 23

florida vicarious liability: dangerous instrumentality doctrine

Answer 23

• if you, with knowledge and consent, entrust someone with a dangerous instrumentality, and they operate it with your knowledge and consent, you are liable for the damages caused.
• irrelevant if you paid to let someone borrow the vehicle
• parents are jointly and severally liable for torts their teen driver commits if the parents sign for the minor’s driver’s license

dangerous instrumentality: anything that can cause death or serious bodily injury:
* car
* heavy machinery
* etc

Question 24

florida personal injury protection insurance (pip)

Answer 24

• covers the owner of the policy (not others) while operating the vehicle
• no fault insurance= even if owner caused the accident
• covers up to $10,000 in medical bills
• owner must begin treatment within 14 days to receive benefits
• USE IN DAMAGES SECTION!

Question 25

florida pain and suffering damages in automobile crashes

Answer 25

plaintiff can only recover these if the injury is permanent in nature
* soft tissue- no
* broken bones, scars- yes

if there is a med report or something stating that “p is 99% healthy/restored” then that may show its permanent

Question 26

florida joint and several liability

always include in essays with more than 1 def

Answer 26

MBE rule= can collect all damages from one defendant
abolished in florida, except with regard to intentional torts
* def only liable for their % of fault

Question 27

fl tort immunities: husband-wife immunity

Answer 27

abolished in fl

Question 28

fl tort immunities: parent-child immunity

Answer 28

• child can’t sue parent unless insurance to cover.
• max recovery is policy limit
• BUT, no immunity in sex cases

Question 29

fl tort immunities: state sovereign immunity

Answer 29

fl has partially abolished
* p can sue state for personal injury up to 200k per plaintiff
* and up to 300k per case total

• as an employer: the state of fl is liable for injury to property, persons, or death caused by its employee’s negligent act/omission, as long as the employee was acting in the scope of his/her employment
• personal liability of state employees: employees of state personally liable for their negligence within the scope of their employment when the act:
  1. in bad faith
  2. with malicious purpose OR
  3. in willful and wanton disregard of the safety of others

Question 30

fl damages: types and punitive limits

Answer 30

two types:
1. economic (past, present, and future medical expenses and lost wages)
2. non economic (pain and suffering, negligent infliction of emotional distress, loss of consortium)

• punitive damages: at jury’s discretion. def may be held liable for these damages only if trier of fact, based on clear and convincing evidence, finds that the defendant was personally guilty of intentional misconduct or gross negligence
• jury must consider the degree of malice, wantonness, oppression, or outrage in determining the degree of punishment.
• the very act of assault and battery proves malice under Florida law
• limits on punitive: higher of 500k or 3x the compensatory damages
• there is NO CAP on punitive damages, for any def who at time fo act or omission, was under influence of alcohol/drug that impaired his normal faculties, or had specific intent to harm plaintiff and his conduct actually caused harm to plaintiff

always discuss damages on tort essays, save for the end of essay after discussing all defendants

Question 31

ethical issues in fl torts: contingency fees

Answer 31

contingency fees in fl must
1. be in writing
2. be signed by client
3. contain statement of client’s rights
4. be cancelable within 3 days

Question 32

ethical issues in fl torts: solicitation of clients

Answer 32

can never solicit clients in person (Face to face)
remote solicitation allowed, exception: personal injury cases, wait 30 days

Question 33

FL Stat. 776 stand your ground

Answer 33

• alters self-defense law to make it more favorable to defendants
  1. imposes a reasonable belief presumption in some circumstances, like when an intruder breaks into a home or occupied vehicle
  2. no duty to retreat prior to using deadly force if: a person is where he has a right to be, is not engaged in criminal activity, and reasonably believes it necessary to prevent death or great bodily harm
  3. immunity: actual immunity (not just a defense) from civil suits where justifiable force was used, def will get att’y fees for costs incurred if found immune

Question 34

stand your ground: reasonable belief presumption

Answer 34

• applies when
  1. unlawful and forcible entry by the intruder into another’s dwelling, residence, or occupied vehicle OR the attemped forcible removal of another from a dwelling, residence, or vehicle AND
  2. the person who used force knew or had reason to know of the unlawful and forcible entry
• does NOT apply when:
  1. the person against whom force was used had a legal right to be in the dwelling, residence, or vehicle
  2. person against whom force is used if attempting forcible removal of child, grandchild, or one over whom they have lawful custody
  3. criminal activity taking place in the dwelling, residence, or vehicle by the person using force
  4. LEO Exception: person against whom force is used is law enforcement officer and the person using force knew/reasonably should have known

• DROVE= Dwelling, Residence, or Occupied Vehicle Entry
• residence is where you live
• dwelling can be tent, front porch, etc

Question 35

stand your ground: obligation to retreat

Answer 35

• fl has no duty to retreat before using deadly force or non-deadly force if
  1. the person using force is in a place she has a right to be AND
  2. reasonably believes the use of force is necessary to prevent: death or great bodily harm to himself/another OR the commission of a forcible entry

Question 36

negligence: foreseeability of harm

Answer 36

• duty of an oridnary reasonable prudent person owed to those within foreseeable zone of risk created by defendant’s conduct
• actual injury plaintiff suffered need not be foreseeable

Question 37

medical malpractice: standard of care

Answer 37

• Generalists (GeLS): held to local standard
• specialists (SPiNS): held to a national standard

Question 38

medical malpractice: standard of care —> informed consent

Answer 38

• informed consent is presumed if the dr gets consent in writing and signed by patient or patient’s representative and provides information about NRA (nature of procedure and risks associated with it)
• this is a rebuttable presumption
• no negligence action for failure to provide informed consent may be brought against protected medical professionals if either of the following conditions is met

the medical professional:
* informed the patient of the risks in accordance with the accepted standard of medical practice of similarly situated medical professionals (those with similar training and experience) AND
* the information given was such that a reasonable individual would have a general understanding of the nature of the procedure, the risks associated with the procedure, and any alternatives (NRA); OR
* a patient who was not properly informed reasonably would’ve consented to undergo the procedure under the circumstances if the medical professional had properly informed consent

Question 39

possessors of land: types of trespassers

Answer 39

1. discovered trespasser
2. undiscovered trespasser
3. impaired trespassers and
4. child trespassers

Question 40

possessors of land: discovered trespassers

Answer 40

who qualifies?
* uninvited or unpermitted entry
* actually detected or discovered AND
* discovered within 24 hrs before injury
* no liability for negligence resulting in death/injury to person committing/attempting to commmit felony on property

no landowner liability to DT absent
* gross negligence
* intentional misconduct causing injury OR
* failure to warn of known dangerous condition

DT can be treated as invitee when:
* express invitation to trespasser after discovery OR
* manifested intent to hold property open to others pursuing similar purpose

Question 41

possessors of land: undiscovered trespassers

Answer 41

who qualifies?
* uninvited entry
* undetected AND
* remain undetected within 24 hrs before the injury

no liability to undiscovered trespassers absent
* intentional misconduct causing injury

NO DUTY TO WARN undiscovered trespassers, even of known dangerous conditions

Question 42

possessors of land: impaired trespassers

Answer 42

who qualifies?
* anyone whose faculties are imapired by alcohol (BAC > .08) or drugs

no landowner liability to impaired trespasser unless
* engaged in gross negligence or intentional misconduct that proximately caused death or injury to the trespasser

Question 43

possessors of land: child trespassers

Answer 43

• florida is not as generous to child trespassors as most jurisdictions
• generally subject to the same duty of care as adult trespassers- i.e., a property owner is only liable for injuries caused by the property’s owner’s willful or wanton actions
• attractive nuisance: child must be lured or enticed onto property by the condition that ends up injuring ; a child who trespasses first and then discovered the attractive danger cannot apply the attractive nuisance doctrine

Question 44

possessors of land: invitees

Answer 44

• owed a duty of reasonable care
• public invitees:
• enter a property thrown open for public use (and are using it for that purpose)
• implied representation that the property has been made public for use
• business invitees
• those who enter the property to confer a benefit to the business (As a customer)
• also includes children accompanying business invitees
• by statute, firefighters are also considered business invitees in Florida

spectators = invitees, but allows a defense of assumption of the risk.

Question 45

possessors of land: licensees

Answer 45

• invited licensess
• social guests and those with an implied invitation
• owed a duty of reasonable care
• uninvited licensees (uncommon category)
• treated as discovered trespassers
• those on property for the licensee’s own convenience or pleasure
• presence is tolerated
• duty owed is the same as the duty owed to discovered trespassers: warn of known dangerous conditions, no intentional misconduct, no gross negligence

Question 46

causation: requirements

Answer 46

1. cause in fact (but-for)
2. proximate (legal cause and foreseeability): whether and to what extent defendant’s breach foreseeably and substantially caused the specific injury that actually occurred

• BOTH must be met in order for defendant to be liable to plaintiff in negligence actions; cause-in-fact must be addressed first

Question 47

superseding cause

Answer 47

• cuts off dedendant’s liability, must be unforseeable and not set in motion by defendant

Question 48

loss of chance in fl

Answer 48

• unless plaintiff had a better than 50% chance of survival prior to defendant’s tortious conduct, plaintiff cannot recover under the loss of chance doctrine

Question 49

collateral source rule

Answer 49

• any payment to plaintiff from a 3rd party that pays for plaintiff’s injuries suffered from defendant’s negligence that might reduce a defendant’s obligation to pay
• fl prevents double recovery
• payments made to plaintiff by plaintiff’s insurer are not considered payments from a collateral source and are credited against defendant’s liability UNLESS there’s a right of subrogation or a right of reimbursement attached to the collateral source payments
• life insurance is not a collateral source in FL
• plaintiff can also recover any amount plaintiff paid to receive the collateral source benefit
• examples of collateral sources: social security insurance payments, health insurance payments, disability insurance payments, etc

Question 50

punitive damage: requirements and respondeat superior distinctions

Answer 50

• if the case does not involve respondeat superior, plaintiff must
  1. plead punitive damages AND
  2. establish by clear and convincing evidence that defendant was personally guilty of gross negligence
• gross negligence: conduct so reckless or wanting in care that it constituted conscious disregard or indifference
• if case does involve respondeat superior, plaintiff can only get puniitve damages against employer if plaintiff establishes:
  1. employee was guilty of intentional misconduct OR gross negligence AND
  2. employer actively or knowingly participated in employee’s misconduct OR ratified, condoned, or consented to the conduct OR engaged in gross negligence contributing to the injury

Question 51

special rules of liability: negligent infliction of emotional distress and impact rule

Answer 51

• limits the ability to recover for negligence that causes emotional distress
• direct injury claims:
• fl plaintiff cannot recover for negligence infliction of emotional distress unless she suffers: a physical injury or physical impact (can be relatively slight) OR manifestation of injury or distress in the form of a severe and discernable physical illness, such as a heart attack
• bystander claims:
• plaintiff who witnesses physical injury negligenty inflicted upon another may recover upon a showing of three proximities:
  1. spatial proximity: be at the scene
  2. temporal proximity: be there in time to actually observe the injury
  3. relational proximity: injured party is close relative (close relative depends on facts)

also look for phsyical symptoms of emotional distress caused by witnessing rhe accident

Question 52

special rules of liability: wrongful death

Answer 52

• wrongful death action: compensates the people affected by the deceased’s death
• wrongful death act:
• action brought by personal rep of a deceased person
• recover damages on behalf of estate of the deceased person and survivors if negligently killed by defendant
• damages include:
• loss of support
• loss of companionship and protection (only for surviving spouse)
• loss of parental companionship (only for minor children or adult children if there is no surviving spouse)
• medical or funeral expenses
• loss of earnings from date injured- date they died less amount that would have been paid as support AND/OR
• loss of prospective net accumulations of estate
• florida also allows these survivors to recover for mental pain and suffering:
• surviving spouse
• minor children
• all children (including adult children) if no surviving spouse
• parents of a deceased minor child AND
• parents of a deceased adult if there are no other survivors

Question 53

special rules of liability: floridas survival statute

Answer 53

• survival action: allows claim to survive the death of the person who could bring it
• fl allows all claims to survive a person’s death, even those for personal or intangible harms, such as defamation

Question 54

special rules of liability: recovery for injuries to family members

Answer 54

1. loss of parental companionship claims: available when natural/adoptive parent is permanently disabled and claimant must be unmarried dependant (often minor child)
2. loss of filial companionship or consortium claims: available to parent when child is permanently disabled and recovery is limited to time between injury and child’s 18th birthday

Question 55

fl vicarious liability: dram shop

Answer 55

• provider of alcohol liable for resulting torts of certain people they serve with alcohol
• minors: one will be liable for injuries caused when one willfully and unlawfully sells or furnishes alcohol to a minor
• habitually addicted persons: one will be liable for injuries caused when one knowingly sells or furnishes alcohol to a habitually addicted person

Question 56

negligence defenses: florida uniform contribution among tortfeasors Act

Answer 56

• if joint and several liability applies, a def who pays more than his share has a right of contribution
• the amount of contribution exists only when one of the tortfeasors has paid more than his pro-rate (proportional) share
• the fault percentages are allocated against defendants based on “relative degree of fault”

Question 57

products liability

Answer 57

includes claims
1. negligence
2. strict products liabiltiy
3. breach of warranty
4. similar theories (negligent misrepresentation or nuisance)

three ways a product can be defective for strict liability actions
1. design defect
2. manufacturing defect
3. warnings defect

Question 58

products liability: fl test for design defect –> consumer expectations test

Answer 58

• product is deemed defectively designed if plaitniff is able to show that the product did not perform as safely as an ordinary consumer would expect when the product is used in the intended or reasonably foreseeable manner
• fl has rejected the risk-utility test because it poses higher burden on plaintiffs to prove a reaosnable alternative design
• but parties may still present evidence of reaosnable alternative designs and argue whether benefit of products design outweigh any risks of injury

Question 59

products liability: fl economic loss rule

Answer 59

• applies where the defective product only damages itself (only causes economic loss)
• can sue for breach of warranty, but not for negligence or strict liability

Question 60

products liability: defenses

Answer 60

1. no joint and several liability in negligence based products liabiltiy cases, court enters judgment against each defendant based on their % of fault
2. state-of-the-art defense: factfinder may consider whether product meets state of the art defense at the time the product was manufactured
3. government rules defense: def’s compliance with govt rules creates rebuttable presumption product wasn’t defective; def can assert this when compliance is required as condition of selling product and rules designed to prevent type of harm plaintiff suffered. ALTERNATIVELY, plaintiff can establish rebuttable presumption of defect by showing def’s non compliance
4. misuse and assumption of the risk: misuse and assumption of the risk by the plaintiff is contributory negligence; it reduces, but does not bar, recovery (unless it exceeds 50%)

Question 61

other torts: defamation

Answer 61

elements
1. defamatory communication
2. identification of plaintiff
3. publication to at least one 3rd party
4. damages caused by publication (usually)
5. fault (either actual malice or negligence, depending on status of plaintiff)
6. falsity

Question 62

other torts: defamation–> proof of falsity

Answer 62

all plaintiffs must prove falsity as part of prima facie case for defamation

Question 63

other torts: defamation–> proof of fault

Answer 63

• public figures and public officials suing for defamation must prove actual malice
• actual malice means knowledge that the statement was false or reckless disregard as to whether or not it was true
• all private figures must show at least negligence
• however, if private figures involved in public concerns wish to recover presumed or punitive damages, they must prove actual malice

if you see newspaper, assume its not a private figure with private concern, usually involve matters of public concern

Florida courts broadly interpret the definition of a public official to include a police officer (Smith v. Russell, 456 So.2d 462 (Fla. 1984)), a corrections officer, and a public hospital administrator.

Question 64

other torts: defamation –> privileges

Answer 64

• absolute privilege: protects immunity for attorneys, witnesses, and judges when they make statements in judicial proceedings
• does not protect statements made outside of judicial proceedings
• qualified privilege: attorneys have this (partial protection) from defamation liability for out-of-court questioning of potential witnesses while investigation a pending lawsuit
• for this privilege to apply, the statement must be relevant to the investigation of the underlying lawsuit
• can lose this privilege by showing express malice (hatred, ill will, spite)

Question 65

other torts: defamation –> notice and retraction

Answer 65

• designed to protect newspapers, magazines, broadcasters, etc so they can do their jobs
• written notice to media is required, specifying the statements claimed to be defamatory and giving them a chance to make a timely retraction
• timely retraction limits plaintiff’s recovery to only actual damages (no punitive)
• 10 days is timely for daily publications
• 20 days is timely for semi-monthly publications
• 45 days is timely for monthly publications

Question 66

other torts: misapproporiation or right of publicity in florida

Answer 66

survival of action: 40 yrs after death of person whose name/likeness is appropriated

Question 67

other torts: breach of fiduciary relationship

Answer 67

• always look to make sure relationship is fiduciary: partner-partner, trustor-trustee, lawyer-client, principal-agent
• elements
  1. fiduciary duty exists
  2. breach
  3. causation (but-for and proximate)
  4. damages
• establishing breach, look for failures of
  1. loyalty
  2. confidentiality OR
  3. competence

Question 68

negligence: breach

Answer 68

where defendant’s conduct falls short of the duty required by applicable standard of care

Question 69

negligence: damages

Answer 69

• injury plaintiff suffered
• permanent injuries- scar, broken bone, etc

Question 70

negligence: statute of limitations

Answer 70

reduced to 2 years of event or discovery of injury

Question 71

possessors of land: other duties–> duty to 3rd parties

Answer 71

• landowners have a duty to their neighbors and individuals passing their land
• when selling property, they owe a duty to disclose known, non-obvious, dangerous conditions to the buyer (same duty to licensees)
• duties continue even after sale– seller stills owes a duty to 3rd parties until buyer has reasonable opportunity to discover the non-obvious dangers on the property

e.g. one day after selling property, a slate on the roof of the landowners house flew off and hit someone walking by the house. landowner knew this has happened before during windy storms, and so did the pedestrian. pedestrian can recover bc property owner still had duty to tell the new buyer about the issue with the slates and it was only the day after selling so they would not have known about this danger.

Question 72

shopkeeper’s privilege

Answer 72

merchant (or law enforcement officer, farmer, or transit agency employee) with probable cause to believe that:

1. a theft, trespass, or unlawful use or attempted use of any antishoplifting or inventory control device or countermeasure has been committed and
2. the property may be recovered by taking the offender into custody

may detain the offender in a reasonable manner and for a reasonable time.

A law enforcement agent must be called to the scene immediately after the person is detained.

Probable cause exists when an antishoplifting or inventory control device is activated while a person attempts to exit an establishment or protected area.
Sufficient notice must be posted to advise patrons that such a device is being used.

Question 73

nuisance: farming operations

Answer 73

Florida’s Right to Farm Act provides that a farm is generally not a nuisance if the farm:
1. has been in operation for one year,
2. was not a nuisance at the time it was established, and
3. conforms to generally accepted agricultural and management practices.

However, the presence of the following conditions will constitute evidence of a nuisance:
1. Untreated or improperly treated human waste, garbage, offal, dead animals, dangerous waste materials, or gases which are harmful to human or animal life;
2. Improperly built or maintained septic tanks, water closets, or privies;
3. Diseased animals that are dangerous to human health, unless such animals are kept in accordance with a current state or federal disease control program; or
4. Unsanitary places where animals are slaughtered.

Additionally, a farm may not be held liable for nuisance unless:

1. The real property affected by the conditions alleged to be a nuisance is located within one-half mile of the source of the activity or structure alleged to be a nuisance; and
2. The plaintiff proves by clear and convincing evidence that the claim arises out of conduct that did not comply with state or federal environmental laws, regulations, or best management practices.

Question 74

dog bite law

Answer 74

• The owner of a dog that bites a person while the person is in a public place or lawfully on or in a private place including the owner’s property is strictly liable for damages suffered.
• The owner need not know of the dog’s dangerous propensities.
• Any negligence on the part of the person bitten that is a proximate cause of the bite reduces the liability of the owner by the percentage of negligence contributed by the person.
• If the owner displayed a prominent, easily readable sign that includes the words “Bad Dog,” the owner will not be liable unless the person bitten is under six years old or the damages are proximately caused by the negligent act or omission of the owner.
• landlord will be liable for harms caused by animals owned by his tenants if:
  1. he knows of the animal’s dangerous propensities and
  2. has the ability to control the animal’s presence on the property.

Question 75

libel per quod

Answer 75

• under the doctrine of libel per quod, if the nature of the defamatory statement requires proof of extrinsic facts to show that the statement is defamatory, then the plaintiff must prove either special damages or that the statement fits into one of the four categories of statements that satisfy the requirements of slander per se.
• Florida requires plaintiffs to prove special damages in cases of libel per quod.

Question 76

defamation per se

Answer 76

The crime imputed to the plaintiff must be an infamous crime (murder, perjury, piracy, forgery, larceny, robbery, arson or sodomy) or amount to a felony.

Question 77

intrusion on seclusion

Answer 77

• requires an intentional intrusion, physically or otherwise, upon the solitude or seclusion of another.
• Unlike other states, Florida does not require that the intrusion be highly offensive to a reasonable .

Question 78

false light

Answer 78

Florida does not recognize a cause of action for false light invasion of privacy

Question 79

intentional misrepresentation: justifiable reliance

Answer 79

Justifiable reliance on a misrepresentation is not a required element of fraudulent misrepresentation, though it is a required element of the claim of negligent misrepresentation.

Question 80

intentional interference with a contract

Answer 80

To establish a prima facie case for intentional interference with a contract, the plaintiff must demonstrate that:
* a valid contract existed between the plaintiff and a third party,
* the defendant knew of the contractual relationship,
* the defendant intentionally interfered with the contract, leading to a breach, and
* the breach caused damages to the plaintiff

Question 81

intentional intereference with a contract: justification

Answer 81

Florida balances the social and private importance of the defendant’s objective against the importance of the interest being interfered with when determining if interference is justified

Question 82

personal injury or wrongful death: limitation on recoverable damages

Answer 82

The damages that may be recovered in a personal injury or wrongful death action for the reasonable and necessary cost or value of medical care treatment received may not include any amount exceeding the medical care expenses admitted into evidence and may not exceed the sum of the following:

1. The amount actually paid to the health care provider for the treatment;
2. The amount necessary to satisfy charges for the medical treatment that are due but not yet satisfied at the time of trial; and
3. The amount necessary to provide for future reasonable and necessary medical treatment.

Question 83

defective design, manufacture, distribution of product: statute of limitations

Answer 83

4 years

Question 84

negligence elements

Answer 84

1. duty
2. breach
3. causation
4. damages

Question 85

privilege of arrest

Answer 85

For intentional torts, a defendant’s conduct may be privileged and absolve the defendant of liability.

For example, the privilege of citizen’s arrest may be a defense to a defendant’s intentional conduct if:
(1) a felony has been committed and
(2) the arresting party has reasonable grounds to suspect that the person being arrested committed it.

This privilege is recognized when the private actor makes a reasonable mistake as to the identity of the felon but not as to the commission of the felony.

Additionally, under common law, a police officer has a privilege to arrest and confine an individual if:
(1) the officer reasonably believed that a felony had been committed and
(2) that the individual arrested committed it.

An officer’s mistake as to either identity or whether felony was committed does not violate the privilege

Question 86

transferred intent

Answer 86

Intentional torts require that a defendant have the requisite mental state—i.e., that the defendant acted intentionally.

A defendant’s intent may be transferred to other intentional torts.

For example, transferred intent applies when a defendant:
* intends to commit a battery—i.e., intends to cause contact with the plaintiff’s person—but
* instead commits an assault—i.e., causes the plaintiff to anticipate an imminent and harmful or offensive contact with his person.

Additionally, the doctrine of transferred intent applies when a defendant intends to commit battery, assault, or false imprisonment against one person but commits the intended tort against another person.

However, even when a defendant’s actions are the factual cause of another’s harm, transferred intent does not apply if the harm suffered by the plaintiff is beyond the scope of liability.

Question 87

conversion

Answer 87

A defendant is liable for conversion if the defendant intentionally:
* commits an act depriving the plaintiff of possession of her chattel or
* interferes with the plaintiff’s chattel in a manner so serious as to deprive the plaintiff of the use of the chattel.

A defendant need only intend to commit the act that interferes.

And mistake of law or fact is not a defense to conversion.

For example, a purchaser of stolen goods is liable to the rightful owner—even if the purchaser was unaware that the goods were stolen.