FL Torts Flashcards
Punitive damages
> available for intentional torts but at the jury’s discretion
> factors:
- mental state: malice/wantonness
- nature of conduct: outrage or oppression
Florida is a modified comparative fault state
any contributory fault charged to the 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
FL Stand your Ground law
Self-defense law favorable to Ds
Florida allows a person to use deadly or non-deadly force and not retreat if they’re in a place where they have a right to be (DROVE: Dwelling, Residence, Occupied vehicle entry)
and they reasonably believe it’s necessary to prevent death or great bodily harm to himself or another or to prevent the commission of a forcible felony
When does FL Stand Your Ground not apply?
if the person you’re trying to use force against:
> had a legal right to be in the dwelling, residence, or vehicle
> was trying to remove their child/grandchild or whoever they had legal custody over
> If there was unlawful activity taking place in the DRV by the person using the force
> If it was a law enforcement officer and and the person knew/should’ve known
Florida Good Samaritan Act
Anyone, including a licensed physician, who gratuitously and in good faith renders emergency care or treatment without objection by the injured party won’t be held liable for any damages, as long as they acted as a reasonably prudent person
Health care providers providing emergency services:
> not liable unless they acted with a reckless disregard as to the risks
Standard of care for:
Physicians’ Negligence in Florida
Generalists:
held to local standard
Specialists:
held to national standard
Informed Consent in Florida
No negligence when:
(i) In obtaining consent, they acted in accordance with the accepted standard among medical professionals with similar training and experience
AND
the info given would give a reasonable person a general understanding of the
- *nature of the procedure
- *risks associated, and
- *any alternatives,
OR
(ii) the patient reasonably would’ve undergone the procedure under the circumstances even if the medical professional had provided informed consent.
When: (1) a reasonable individual would have a general understanding of the nature procedure, alternatives, and risks given the information provided, or (2) the patient would reasonably have consented had he been so advised.
Florida:
Negligence Per Se
Penal statute or ordinance:
> NPS
Non-Penal:
> only evidence of negligence
LOOK AT CHART FROM HANDOUT FOR POSSESORS OF LAND!!!!!
Child trespassers in Florida
A CT cannot avail himself of the attractive nuisance doctrine unless he was actually lured or enticed onto the property by the attractive nuisance.
A child who trespasses first and then discovers the attractive danger cannot apply the
attractive nuisance doctrine.
Proximate Cause
foreseeable + substantially caused the specific injury that actually occurred
Loss of Chance in Florida
P cant recover unless they had more than 50% chance of survival
Rear-end collisions in Florida
Rebuttable presumption that the rear-end driver was the sole proximate cause of the accident.
Collateral Source Rule
FL’s rule tries to prevent double recovery
> Payments that an insurance company makes to P are credited against D’s liability
UNLESS:
right of subrogation/reimbursement bc that means P would have to end up paying that back the insuranceCo
> P can recover any amount P paid to receive the collateral source benefit (bc they wasted insurance coverage thanks to D)
Punitive Damages
> must be plead
establishing through clear and convincing evidence that D was grossly negligent
Punitive Damages:
respondeat superior
P an only get punitive damages against the employer if they establish:
(1) employee guilty of intentional misconduct OR gross negligence; AND
(2) Employer:
a. actively or knowingly participated in the employee’s
misconduct
b. Ratified, condoned, or consented to the conduct; or
c. engaged in gross negligence contributing to the injury
punitive damages presumed to be unreasonable
> they’re more than 3 times the comp damages
more than $500K
true or false
Life insurance is treated as a collateral source in Florida.
false
true or false:
Florida is a modified comparative fault state
true
add Themis flashcards on torts distinctions
what test will FL courts apply when there’s an indivisible injury with multiple defendants?
they’ll apply the “substantial factor” test which asks whether D’s tortious conduct was a substantial factor in causing Ps harm
NIED bystander
a bystander may recover for NIED if she (1) is closely related to the person injured by the defendant, (2) was present at the scene of the injury, (3) personally observed the injury, and (4) can demonstrate physical symptoms that were caused by the emotional distress
is abusive language or conduct is more likely to be extreme and outrageous if the defendant knew about and deliberately exploited the plaintiff’s heightened susceptibility to emotional distress?
yes, abusive language or conduct is more likely to be extreme and outrageous if D knew about the P’s heightened susceptibility to emotional distress and deliberately exploited it
to hold defendants jointly and severally liable, what must P first prove?
If multiple defendants were negligent and any one of them could have caused the plaintiff’s harm, joint and several liability allows the plaintiff to recover even if it is impossible to prove which defendant actually caused the harm
But the plaintiff must FIRST show that each of the defendants was actually negligent in some way
does there need to be actual damages for a trespass to chattels claim?
Yes; through
(1) actual harm to the chattel
(2) substantial loss of use of the chattel, or
(3) bodily harm to the plaintiff
Does the firefighter rule bar rescuers from recovering for harm resulting from a land possessor’s failure to warn them about concealed dangers known to the land possessor?
no they can still recover for neg not stemming from their job
does intentional misrepresentation require a pecuniary (monetary) loss?
Yes
Intentional misrepresentation arises when:
(1) D knowingly or recklessly misrepresents with the intent to induce the P’s reliance and
(2) P reasonably relies on the misrepresentation and suffers pecuniary loss as a result
true or false:
punitive damages must be pled and may be awarded if the plaintiff establishes by clear and convincing evidence that the defendant was guilty of intentional misconduct or gross negligence
true
