FL Torts Distinctions

Question 1

punitive damages

Answer 1

To recover punitive damages in Florida, a plaintiff must prove by clear and convincing evidence that the defendant acted intentionally OR with willful, wanton or gross misconduct.

Question 2

cap on punitive damages & exceptions (4)

Answer 2

Generally limited to the greater of three times the comepensatory award or $500k.

Exceptions:

1) If ∆ had specific intent to harm the π and the ∆’s conduct did in fact harm the π;
2) Cap is raised to four times the compensatory award or $2 million if wrongful conduct is motivated solely by unreasonable financial gain;
3) For child abuse, abuse of elderly or abuse of developmentally disable, cap may exceed three times the amount of compensatory damages if claimant offers clear and convincing evidence to rebut presumption that award is excessive;
4) Limitations do not apply to a ∆ who was impaired by alcohol or drugs at the time of the incident.

Question 3

products liability defense:
compliance with government regulations may create a rebuttable presumption that a product is not defective or unreasonably dangerous if manufacturer shows (3):

Answer 3

1) the product complied with federal and state statutes, rules or standards;
2) the statutes or standards were designed to prevent the type of harm that occurred; AND
3) compliance with statutes or standards is required as a condition for selling the product

Question 4

defamation of implication

Answer 4

FL expressly recognizes defamation of implication whereby literally true statements can be defamatory where they create a false impression.

Question 5

interspousal immunity

Answer 5

FL has abolished husband-wife tort immunity

Question 6

governmental immunity (3 points)

Answer 6

1) Under FL’s Government Tort Claims Act, the state and its subdivisions are liable for personal injury, death or property damage caused by the negligent or wrongful conduct of public employees acting within the scope of their employment. INTENTIONAL TORTS ARE EXCLUDED. No employee is personally liable unless the act was intentional or willful.
2) Immunity waiver does not apply to discretionary or planning level functions
3) $200k limit on damages per plaintiff and $300k limit per accident

Question 7

survival actions

Answer 7

FL permits causes of actions to survive the death of the π, even survival of intangible personal torts, such as defamation.

NOTE: If the injury that would be the basis for a survival action results in the victim’s death, the cause of action must be brought under the wrongful death statute.

Question 8

wrongful death statute

Answer 8

instituted by the personal representative for the benefit of the decedent’s survivors and his estate

Question 9

damages under a wrongful death statute

Answer 9

personal representative may recover for the decedent’s survivors the value of (1) lost support, (2) loss of decedent’s companionship and protection, and (3) mental pain & suffering

Question 10

FL Good Samaritan Law

Answer 10

gives civil protection to any person, including a licensed medical professional, who gratuitously, in good faith and in the use of ordinary care, aids a victim at the scene of an accident

Question 11

FL Good Samaritan Law - health care providers

Answer 11

protects form civil liability physicians, hospitals and their employees who treat victims in emergency situations in hospitals or trauma centers, UNLESS the conduct is reckless.

A HCP giving emergency care acts recklessly if:

(1) she knew or shoul dhave known, at the time the services were rendered, that her actions created an unreasonable risk of injury that affects the life or health of another; and
(2) that risk was substantially greater than the risk necessary to make her conduct negligent

Question 12

negligence per se

Answer 12

• statute must impose an affirmative duty to take certain actions and impose a penalty for failure to do so
• strict liability for violations of statutes that are designed to protect a particular class of people from their inability to protect themselves regardless of π contributory negligence (e.g., statutes preventing sale of firearms to minors)
• violations of other statutes (e.g., traffic violations) are only prima facie evidence of negligence

Question 13

NIED

Answer 13

FL generally requires physical impact in negligent infliction cases.

NOTE: FL Supreme Court has recognized that ingestion itself constitutes an impact; proof of a physical injury is not required to recover for emotional injuries caused by consumption of contaminated food

Question 14

NIED cases involving bystanders (4)

Answer 14

FL has narrowly modified the general rule requiring impact. In FL, π need not show impact where:

(1) he suffered anxiety about the safety of another,
(2) he had an exceptionally close connection to the party injured;
(3) the other person’s injury occurred within his sensory perception; AND
(4) he suffered a causally connected, clearly discernable physical impairment that follows the psychic trauma.

Question 15

invited licensees

Answer 15

FL created this special category which encompasses traditional common law invitees and certain common law licensees, such as social guests who have been invited onto the premises by the owner.

STANDARD: duty to inspect and to warn or make safe (same duty owed to invitees under common law)

Question 16

known vs. unknown trespassers

Answer 16

FL distinguishes known and unknown trespassers by whether or not their presence has been detected within 24 hours of the accident in question

Question 17

duty to unknown trespassers

Answer 17

duty to refrain from intentional misconduct that injures an unknown trespasser

Question 18

duty to known trespassers

Answer 18

duty is not reasonable care; but rather to refrain from gross negligence or intentional misconduct

Question 19

attractive nuisance doctrine (6)

Answer 19

FL follows common-law attractive nuisance theory.

A possessor of land is subject to liability for physical harm to trespassing children caused by an artificial condition if:

(1) the landowner knows or has reason to know children are likely to trespass;
(2) the landowner knows or has reason to know the condition will involve an unreasonable risk of death or serious bodily harm;
(3) the child is not aware of the condition or of the risk it poses;
(4) the utility to maintaining the condition is slight compared to the risk to the children;
(5) the landowner fails to exercise reasonable care to protect the children; AND
(6) the property owner entices the children upon dangerous premises (this element not required under modern trend).

Question 20

FL Medical Malpractice (5 points)

Answer 20

Step One: π must first obtain a written opinion by a medical expert verifying that reasonable grounds for her claim exist

Step Two: claimant must serve notice on the ∆ by certified mail at least 90 days before filing suit

Step Three: ∆’s insurer evaluates the claim; within 90 days, insurer must deliver to the claimant a rejection of the claim, an offer to settle, or an offer to admit liability and seek arbitration of damages

Step Four: within 120 days of filing of suit, all parties are required to attend in-person mandatory mediation if arbitration has not been agreed to by the parties
*NOTE: A claimant (or ∆) may refuse an offer of voluntary binding arbitration and instead elect to proceed to trial but if they do so, their damages will be limited according to FL standards.

Question 21

tire blowouts

Answer 21

res ipsa loquitur does not apply to actions brought to recover damages caused by tire blowouts when the blowout occurred (1) after possession and (2) some significant use by another.

Question 22

res ipsa loquitur in med mal cases

Answer 22

if patient was unconscious at the time the injury occurred, he may rely on the inference of negligence raised by the doctrine of res ipsa loquitur even though patient cannot prove which doctor or doctors caused her injury, and even though the doctors in question did not each possess exclusive control of the patient’s body at all times during which the π’s injury may have occured

Question 23

caps on recovery of non-economic damages in med mal cases

Answer 23

1) if ∆ practitioner refuses the claimant’s offer of voluntary binding arbitration, recovery of non-economic damages are limited to $500k per claimant and atty’s fees of up to 25% of total award
2) if π rejects voluntary arbitration and elects to proceed to trial, her non-economic damages are limited to $350k

Question 24

voluntary arbitration in med mal cases

Answer 24

precludes other remedies and limits damages as follows:

(1) net economic damages are limited to past and future medical expenses and 80% of wage loss, offset by any collateral source payments;
(2) non-economic damages are limited to a maximum of $250k per incident; and
(3) punitive damages are not permitted

Question 25

pure comparative negligence

Answer 25

FL has adopted pure comparative negligence: apportionment of damages tracks apportionment of fault perfectly

Question 26

seat belt defense

Answer 26

A FL jury may consider evidence that a π failed to use an available and operational seatbelt, if that failure substantially contributed to the π’s injuries. Failure to use a seatbelt otherwise does not constitute negligence, does not make a prima facie case of negligence, and may not be considered in mitigation of damages.

Question 27

drug/alcohol impairment bar to recovery

Answer 27

a π may not recover ANY damages if, (1) at the time the π was injured, the π was impaired by alcohol or drugs or had a blood or breath alcohol level of .08 or higher, AND (2) that impairment caused the π to be MORE than 50% at fault for her own harm

Question 28

dog bit statute (6 points)

Answer 28

1) FL has abolished one-bite rule;
2) owner of a dog is liable regardless of the dog’s former viciousness or the owner’s knowledge of the dog’s propensity;
3) liability is owed to a π in a public place or lawfully in a private place, including the property of the dog’s owner
4) strict duty is not owed to a π who provokes the dog
5) posting of a “bad dog” sign is a complete bar to suit, unless the victim is six or under
6) comparative negligence will reduce the owner’s liability

Question 29

retraction (3 points)

Answer 29

1) FL requires a defamation π to serve written notice on a media ∆ at least 5 days before filing suit
2) notice must specify the alleged false and defamatory article or broadcast
3) if medial member fully retracts the libel within 10 days of receipt of such notice, and if the original publication or broadcast was made in good faith, then only actual damages may be recovered

Question 30

false light invasion of privacy

Answer 30

not recognized in FL

Question 31

rules re: tavernkeepers

Answer 31

1) a person who knowingly serves alcohol to a person habitually addicted to the use of alcohol may become liable for injury or damage caused by or resulting from the intoxication of that person
2) if a person willfully and unlawfully sells or furnishes alcohol to a minor, the server may become liable for injury resulting from intoxication

Question 32

vicarious liability of an owner of an automobile/driver

Answer 32

FL does not have an automobile guest statute

forms of liability:

1) dangerous instrumentality doctrine, and
2) negligent entrustment

Question 33

dangerous instrumentality doctrine

Answer 33

the owner of an instrumentality that is capable of causing death or destruction must answer for its misuse by anyone operating the instrumentality with the owner’s knowledge and consent

Question 34

negligent entrustment

Answer 34

imposes liability on a supplier of chattel who furnishes the chattel to another person for use by that other person, and who knows or has reason to know that the person is likely, because of youth, inexperienced or otherwise to use the chattel in a manner involving unreasonable risk of physical harm to the use or other foreseeable persons; actual or constructive notice of a dangerous condition is irrelevant

–> may be applied to an automobile owner who negligently permits another person to drive his automobile.

Question 35

defamation: malice element

Answer 35

under FL law, proof of common law express malice is required to defeat a common law qualified privilege (requires a showing that the ∆’s primary motive was to injure the π)