FL Torts Flashcards
Punitive Damages
Available at Jury’s discretion
>Factors:
1. Mental State: Malice or wantoness
2. Nature of Conduct: outrage* or oppression
>For respondent superior need gross negligence and intentional misconduct (look at outline pg 12 for all details)
>Presumed unreasonable if greater than 3x the compensatory damages or more than $500,000
C.L. Self-Defense
A person have a privilege to use self-defense and may use:
- reasonable force
- when reasonably believes it’s necessary
- as long as force is reasonably proportionate to the threat
FL Stand Your Ground v. C.L. Self Defense
FL is MORE favorable to Ds than C.L.
Diff. in 3 ways:
1. Rebuttable presumption of reasonable belief in certain circumstances
2. No duty to retreat prior to using deadly force
3. Provides actual immunity in civil suits when justifiable force was used and gives D attny’s fees if immune
FL SYG Reasonable Belief Presumption
Applies:
1. Unlawful and forcible entry OR attempted forcible entry by the intruder into another’s DROVE
AND
2. The person who used force knew or had reason to believe the unlawful/forcible entry occurred
Does NOT Apply:
1. when against whom force was used had a legal right to be there (ex. can’t shoot your roommate and claim defense)
2. Person against whom force was used was trying to forcibly remove someone they had custody over
3. The DROVE was being used for unlawful activity (ex. no SYG for crackhouses)
4. Person against whom force was used was law enforcement and person using force knew or reasonably should have known
FL Duty to Retreat
NO duty to retreat before using deadly or non-deadly force if:
- The person using force is somewhere where she has a right to be AND
- Reasonably believes the use is necessary to prevent:
a. death or great bodily harm to self or others OR
b. the commission of a forcible felony
Negligence Duty
Foreseeability of Harm:
- Duty owed to those within foreseeable zone of risk created by Ds conduct
- type of injury or how injury occurred doesn’t matter
FL Good Samaritan Act
> Ordinary Citizen
Immunity for a rescuer who acts as a reasonably prudent person if:
1. acts gratuitously (free)
2. in good faith AND
3. w/o objection of the injured
Health care Provider
Immunity unless acted with reckless disregard for risks to patient
Std of Care for Physicians:
Based on type of dr.
- Generalist: held to a local std (GeLS)
- Specialists: held to a national std (SPiNS)
Informed Consent in FL
No negligence liability for failing to provide informed consent if: OR
- dr. informed patient of risks in accordance w/ the accepted std of similarly situated drs AND info given was such that a reasonable indiv. would have a general understanding of the nature, risks, and alternatives (NRA) of the procedure
- patient reasonably would have consented to undergo the procedure under the circumstances if the dr had properly given informed consent
Benefits of FL Informed Consent Law
Informed consent is presumed if dr:
- gets consent in writing and signed by patient or patient’s rep
- provides info about NRA (nature, risks, alternatives)
Negligence Per Se In FL
> If the violation is of a penal statute/ordinance = Neg. per se
If violation is of another statute/ordinance/reg (including traffic) = some evidence of neg but not neg. per se
Types of Trespassers in FL
- discovered trespassers
- undiscovered trespassers
- impaired trespassers
- child trespassers (attractive nuisance)
Discovered Trespasser
>Who? -uninvited/unpermitted entry -actually detected or discovered -discovered w/i 24 hours before injury >No liability UNLESS -gross negligence -intentional misconduct causing injury -failure to warn of a known dangerous condition >Treated as an invitee if: -express invitation -manifested intent to hold property open to others pursuing similar purpose
Undiscovered Trespasser
> Who?
-uninvited entry
-undetected
-remain undetected w/i 24 hours before entry
No liability UNLESS
-intentional misconduct causing injury
No duty to warn, even of known dangerous conditions
Impaired Trespasser
> Who?
-anyone whose faculties are impaired by alcohol or drugs
No liability UNLESS
-engaged in gross negligence or intentional misconduct that caused death or injury to the trespasser
Child Trespasser
Can’t get attractive nuisance doctrine unless child was actually lured or enticed onto the property by the attractive nuisance. Can’t recover if first trespassed and then found the attractive nuisance.
Invitees
Duty of reasonable care
- Business invitees
- Public invitees
Public Invitees
Enter property thrown open for public use and use it for that purpose.
Implied representation that the property has been made safe for use.
Business Invitees
those who enter a property to confer a benefit to the business, aka a customer and their child if applicable.
Firefighters are considered a business invitee.
Licensee
Two Types:
- Invited licensee
- Uninvited licensee
Invited Licensee
Duty of reasonable care.
Social guests and those w/ an implied invite.
(ex. dinner guest, girl scout selling cookies)
Uninvited Licensee
-Treated like a discovered trespasser.
-Those on the prop. 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 dangers, no intentional misconduct, no gross negligence)
FL Proximate Cause
Whether and to what extent Ds breach foreseeably and substantially caused the specific injury that actually occurred.
Intervening and Superseding Causes
An intervening cause does not qualify as a superseding cause, and will not cut off liability, if the D caused the intervening cause.
For an intervening cause to be a superseding cause that cuts off Ds liability, the intervening cause must be unforeseeable and not set in motion by D.
Loss of Chance in FL (aka Negligent Diagnosis Test)
Plaintiff needed to have a greater than 50% chance of survival prior to dr.s tortious conduct to be able to recover.
Ex. Dr fucks up diagnosing cancer but patient only had a 30% chance of survival anyway so can’t recover
Rear-End Collisions
Rebuttable presumption that the rear driver in a rear-end collision was the sole proximate cause of the accident.
“Rear” = “butt”-able presumption.
To overcome presumption, rear driver must show: OR
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
3. mechanical failure of car
Collateral Source Rule
Payments made to Plaintiff by insurer are not considered payments from a collateral source and are credited against Ds liability UNLESS there is a right of subrogation or a right of reimbursement attached to the collateral source payments. P can also recover any amount paid to receive those benefits (aka can recover premiums paid).
Ex.s: SSD, health insurance, etc.
EXCEPTION: life insurance is not a collateral source.
FL NIED
Can only recover if: OR
- A physical injury of physical impact (even small)
- manifestation of injury or distress in the form of severe and discernible physical illness (like a heart attack)
FL NIED Bystander
To recover must show:
- Spatial proximity: be at the scene
- Temporal proximity: actually observe the injury
- Relational proximity: injured party is a close relative, case-by-case determination
FL Wrongful Death Act
Brought by personal rep of deceased person. Can recover damages on behalf of the estate and survivors
Wrongful Death Damages
- loss of support
- loss of companionship for surviving spouse
- loss of parental companionship for minor children or adult children now orphaned
- medical or funeral expenses
- loss of earnings from the date they were injured to the day they died other than amounts they would have paid for support
- loss of prospective net accumulations of the estate
Wrongful Death Damages for Mental Pain and Suffering (aka grief)
Who can recover:
- surviving spouse
- minor children
- all children, even if adults, if no surviving spouse
- parents of deceased minor child
- parents of deceased adult if there are no other survivors
FL Survival Statute
Allows all claims to survive a person’s death, even those for personal or intangible harms, such as defamation
Recovery for Injuries to Family Members
- Loss of Parental Companionship: when natural or adoptive parent is permanently disabled and claimant is unmarried (usually for minor children)
- Loss of Filial Companionship or Consortium Claims: available to parent when child is permanently disabled; limited to time between injury and child’s 18th bday
Employer Direct Liability
Employee commits an intentional tort, employer may be directly liable for negligently hiring employee. Presumption employer is not negligent IF:
-conducted a background check that did not reveal that employee is unsuitable for position.
-background check MUST include:
criminal, contact to references+supervisors, a written job app, AND interview candidate
[if includes driving then do a driver’s license record check]
Dangerous Instrumentality
Automobiles and all other motorized vehicles.
Liable for torts someone else commits w/ your vehicle if they are driving w/ your knowledge and consent.
Parents and Teen Drivers
Parents are jointly and severally liable for torts their teen driver commits if parents signed for the minor’s driver license
Dram Shop Liability
Liable if:
- Minors: willfully and unlawfully sold or furnished alcohol to a minor
- Habitually addicted persons: knowingly sold or furnished alcohol to HAPs
State Gov.t Immunity
State of FL is liable for injury to prop., persons, or death caused by its employees negligent act or omission as long as the employee was acting in the scope of employment
Personal Liability of State Employees
Personally liable for their neg. w/i scope of employment when:
- acting in bad faith
- with malicious purpose OR
- in willful or wanton disregard of the safety of others
Parental Immunity from Torts Brought By Own Spawn
- No immunity in sex cases
- immunity waived in other cases to the extent of liability insurance coverage
Liability Among Multiple Ds
ABOLISHED JOINT AND SEVERAL LIABILITY unless it’s an intentional tort
FL Fault
Pure Comparative Fault
Seat Belt Defense
Ps failure to wear a seatbelt may be comparative negligence if: AND
- P failed to use available and operational seatbelt
- nonuse was unreasonable
- nonuse caused or substantially contributed to P’s damages
Exculpatory Clauses in Ks
Enforceable if: AND
- clear and unequivocal
- waives only neg. or gross neg. (not intentional torts)
- applies to adults
Alcohol/Drug Defense
If P is alcohol/drug impaired, then MODIFIED comparative fault system.
If jury determined that impaired P was more that 50% at fault in own injury than no recovery
Strict Liability
DAD:
Dangerous (or ultra hazardous) activities
Animals
Defective products
DROVE
Dwelling, Residence, or Occupied Vehicle Entry
Dog-Bites
> Strict liability when a dog bites a person on public property or when person is lawfully on private property.
Defense: Comparative neg. of person bit.
Partial avoidance: Put up “Bad Dog” sign, not strictly liable unless person bit is under 6 yo or damages are proximately caused by the owner’s act or omission
L.L. liable if: knows of dog’s dangerous propensity AND has ability to control dog’s presence
FL Test for Design Defect
Consumer Expectations TEST: defective design if P shows that product did not perform as safely as an ordinary consumer would expect when product is used in the intended or reasonably foreseeable manner
FL Economic Loss Rule in Product Liability Cases
Only applies where the defective product only damages itself, aka only causes an economic loss
Defenses to Products Liability
- No joint and several liability, each D has judgement for their % of fault
- State of the Art: at the time the product was manufactured
- Govt. Rules: compliance w/ govt rules creates a rebuttable presumption that product was not defective IF compliance is req.d as condition of selling product AND rules were designed to prevent harm P experienced
- Misuse and assumption of risk by P is comparative neg. (reduces but does not bar recovery)
Defamation
DIPDFF. Elements:
- Defamatory comm.
- Identification of P
- Publication to at least one 3rd party
- (usually) Damages caused by publication
- Fault
- Falsity
Falsity
ALL Ps must prove falsity as part of the prima facie case for defamation
Proof of Fault
- Public figures/officials must prove actual malice (knowledge that stmt was false or reckless disregard about truth of stmt)
- Private figures must show at least neg. UNLESS
- private fig.s involved in public concerns + presumed or punitive damages must prove actual malice
Defamation Privileges
- Absolute: immunity for attnys, witnesses, judges, for stmts in judicial proceeding
- Qualified: partial protection for attnys out of ct questioning of potential witnesses while investigation a pending lawsuit. Stmts must be relevant and cannot show express malice (hatred, ill-will, spite).
- Notice and Retraction: written notice to media of impending defamation suit that specifies defamatory stmts and gives a chance for a retraction. If a times retraction is published then P can only get actual damages.
Timely Retraction
- 10 days for daily publications
- 20 days for semi-monthly publications
- 45 days for monthly publications
Misappropriation of Right of Publicity in FL
Survival of Action: 40 years after the death of the person whose name or likeness is appropriated
