Florida Distinctions Flashcards
Does FL recognize the tort of intentional infliction of emotional distress?
Yes - Physical impact or physical manifestation of psychological trauma is not required to state a claim.
What are the elements of intentional infliction of emotional distress?
1) Act by Defendant amounting to extreme and outrageous conduct
2) intent on part of Defendant to cause Plaintiff to suffer severe emotional distress or recklessness as to the effect of the defendant’s conduct
3) Causation
4) Damages - Severe emotional distress
Self Defense to Intentional Torts - Duty to Retreat Standard
In Florida, a person who is not engaged in criminal activity and who is attacked in a place they have a right to be has no duty to retreat.
What type of force can be used for Self Defense in Intentional Torts?
Has the right to use or threaten to use force, including deadly force, if reasonably believe its necessary to prevent imminent death or great bodily harm to self or others or to prevent the commission of a forcible felony.
What is required in order to be justified in the use or threat of use of deadly force?
The individual must reasonably believe that such force is necessary to prevent imminent death or great bodily harm to self or others or to prevent the commission of a forcible felony.
In Florida, how is the defense of self defense to intentional torts deemed to be reasonable?
(i) the person against whom the defensive force was used or threatened had unlawfully and forcefully entered into a dwelling, residence, or occupied vehicle or was in the process of doing so; OR
(ii) the person was attempting to remove another person against that person’s will from a dwelling, residence, or occupied vehicle; AND
the person who uses or threatens the force knew or had reason to know that the unlawful and forcible entry was occuring or had occurred.
In Florida, is the use of force justified to protect property?
Yes the use of force (except deadly force) is justified to protect a person’s property based on the reasonable belief that such conduct is necessary to prevent or terminate a tortious or criminal interference with property.
The property must be in the lawful possession of the actor or family.
In Florida, is there a duty to retreat if the individual is in a place they have a right to be?
No
When is the use of deadly force justified to protect property?
Only when there is a reasonable belief that such force is necessary to prevent imminent commission of a forcible felony.
What is the Shopkeeper’s privilege?
Shopkeepers are given a right to detain suspects for investigation.
There must be a reasonable belief as to the facts of the theft.
The detention must be conducted in a reasonable manner and only nondeadly forced can be used.
The detention must only be for a reasonable period of time and for the purpose of making an investigation.
To what other parties has the Shopkeeper’s Privilege been expanded to in Florida?
Farmers and Mass Transit Agents
What is required to be proven in all defamation actions in Florida?
Falsity and Fault
Who benefits from a special notice requirement in Florida regarding a claim for defamation?
The media
What is the procedure for bringing a claim against the media for defamation?
1) At least 5 days before institution a civil action for publication or broadcast of libel or slander, plaintiff must provide written notice to media defendant. The notice must specify the alleged defamatory content.
2) If the media retracts the liabel within 10 days of notice and if the publication is in good faith
3) Plaintiff can only recover actual damages.
Loss of Qualified Privilege
Malice sufficient to defeat a qualified privilege is express malice (present when the primary purpose is shown to be an intent to injure plaintiff) by the preponderance of the evidence.
It is in contrast to NYT actual malice which requires clear and convincing evidence.
Does FL recognize the tort of publication of facts placing defendant in a false light?
No - found to be duplicative of defamation.
Can sue under defamation for a claim that literally true statement can be defamatory where they create a false impression (defamation by implication).
Concern in FL that false light claim may chill speech.
Elements of Intentional Misrepresentation in Fl (Deceit or Fraud)
Plaintiff must establish:
1) A misrepresentation was made
2) with scienter - D knew or believed that the statement was false
3) with intent to induct reliance
4) causation
5) damage
Justifiable reliance is not an element in FL.
Intentional Interference with Business Relationship in Fl
Requires a business relationship evidenced by an actual agreement that in all probability would have been completed had the defendant not interfered.
Is there a cause of action in for Intentional Interference with Business Relationships if based on speculation regarding future sales?
No
In Florida, what parties have a cause of action of prenatal injuries?
The parent and the child if the child is born alive.
What is the cause of action that can be brought if the fetus dies from injuries?
the parent may not bring a wrongful death action but a negligent still birth action for mental pain and anguish, damages, and medical expenses incident to pregnancy.
What is the standard of care imposed on doctors and other health care providers in Florida?
Standard of care is based on what is recognized as acceptable and appropriate by reasonably prudent similar healthcare provide in light of all relevant circumstances.
True or False: Florida has adopted a detailed procedural framework for bringing med mal claims against healthcare providers.
True
What is the liability of a healthcare provider for failure to obtain informed consent?
A healthcare provider is not liable for failure to obtain informed consent if the patient either:
(i) received enough information that a reasonable person would have a general understanding of the procedures, alternatives, and risks
or
(ii) would have accepted the treatment had he been advised as required.
In Florida under what age are children legally incapable of negligence?
Under the age of six.
In Florida, how are conditions of landowner’s commercial property that contribute to plaintiff’s injuries off premises evaluated?
Through principles of negligence (whether natural or artificial)
What is the duty that the owner of commercial property owes to third parties?
Duty to prevent foliage from obstructing the driver’s view of sidewalk when entering and existing property.
What is the duty that the owner of residential property owes to third parties?
Limited - not subject to duty as long as they don’t permit foliage or other conditions on their land to go beyond their boundaries.
In Florida, what is a discovered trespasser?
A person who enters the property without an express or implied invitation and whose physical presence is detected within 24 hours preceding the accident.
How can a landowner avoid liability to a discovered trespasser?
Landowner must refrain from gross negligence or intentional misconduct that proximately causes injury and must warn of dangerous conditions that known but not readily observable to others.
What duty does a landowner owe to a trespasser that is legally under the influence of alcohol or drugs?
The landowner owes no duty to warn of dangerous conditions.
The landowner may still be liable for gross negligence or intentional misconduct.
What is required in Florida for the doctrine of attractive nuisance?
The plaintiff must have been lured onto the premises by the dangerous condition.
Does Florida have invitees?
No - these parties are treated as licensees.
What are the types of invitees?
Uninvited Licensees: Treated like discovered trespassers
Licensees by invitation that are treated like social guests and invitees.
In Florida, what is the status given to police and firefighters who lawfully enter the premises in discharge of a duty?
They are treated as a licensee by invitation.
What is the duty of care imposed on owners of business premises?
Must keep the business premises free from transitory foreign objects or substances that might foreseeably given risk to injury.
Who has the burden of proof in a claim that the owner of a business breached the duty of care?
In a claim for negligence, the plaintiff has the burden of proving that the business had actual or constructive knowledge of the dangerous condition and should have taken an action to remedy it.
How is constructive knowledge of a dangerous property condition established?
Can be established by showing that:
1) the dangerous condition existed for such a length of time that in the ordinary exercise of care the business should have known of the condition
OR
2) the condition occurred with regularity and was foreseeable.
Under what conditions is violation of a statute negligence per se?
When a FL statute establishes a duty to take precautions to protect a particular class of person from a particular injury or type of injury.
What standard is imposed when a statute is designed to protect a class from their inability to protect themselves?
The statute imposes a strict liability standard for which P’s contributory negligence is no defense.
What is a violation of a traffic ordinance evidence of?
Only negligence.
Negligence Infliction of Emotional Distress
1) Plaintiff must be in the zone of danger
2) The defendant’s conduct must cause the plaintiff emotional distress that manifests itself in physical symptoms
3) Fl requires that there be an actual physical impact to state a claim. (exception when emotional distress is the primary foreseeable consequence of a freestanding tort).
What is the rule in Florida for Bystander Not In the Zone of Danger suffering from emotional distress?
The plaintiff must have:
(i) suffered a physical injury caused by psychological trauma
(ii) been involved in some way in the event causing the negligent injury to another; and
(iii) a close relationship to the directly injured person.
What is Florida’s Good Samaritan Act?
Applicable to all person who gratuitously render aid at the scene of an emergency.
Meaningless because the rescuer remains liable for ordinary negligence.
Under Florida’s Good Samaritan Act, what are examples of greater immunity being granted?
Persons using defibrillators on victims in an emergency.
Healthcare providers rendering emergency treatment in a hospital not liable unless acted with recklessness or gross negligence.
What is the status of statutory cap on non economic damages that a claimant can recover in a med mal case?
The cap is found to be unconstitutional and invalid.
What is the standard for a defendant to be liable for punitive damages?
Only if the trier of fact based on clear and convincing evidence finds that the defendant was personally guilty of intentional misconduct or gross negligence.
What is the limitation on punitive damages?
May not exceed the greater of 3x compensatory damages or $500k.
What are exceptions to the punitive damages caps?
Actions motiviated by unreasonable financial gain
Abuse of children or elderly
Intent to Harm
Intoxication
What is Florida’s collateral source rule?
1) When considering the cost of care, governmental and charitable benefits available to the public are admissible for the jury to consider
2) Trial court must reduce any damages awarded by any amount paid for or available to the claimant from other collateral sources.
Offset by any amount paid by the claimant for the benefit such as insurance premiums.
Where a subrogation right exists for a collateral source provided, the benefits will not be reduced.
Subrogation is a term describing a right held by most insurance carriers to legally pursue a third party that caused an insurance loss to the insured.
What are benefits excluded from the collateral source rule?
Medicare
Medicaid
Worker’s Compensation Benefits
What is Florida’s rule regarding the express assumption of risk as it relates to children?
A natural guardian on behalf of their minor child may waive any claim or cause of action against a commercial activity provider for injury to the minor from an inherent risk in an activity.
What is required for a waiver or release from liability to be valid regarding the injury of a child?
The waiver or release must state that guardian agrees that even if the activity provider uses reasonable care, there is a chance the child may be injured or killed by the activity.
There are certain inherent dangers in the activity that cannot be avoided.
What type of negligence doctrine did Florida adopt?
Pure Comparative Negligence
What is the doctrine of pure comparative negligence?
The plaintiff can recover for some portion of the injury suffered even if they are 99% at blame.
What circumstances prevent a plaintiff from recovering any damages?
When the P is under the influence of alcohol or drugs that affected their normal faculties (blood alcohol level of 0.08% or higher; and
as a result, the plaintiff was more than 50% at fault for own harm.
What is the general rule in Florida regarding an Owner’s liability for acts of their dog?
Owner is liable for damages regardless of the former viciousness of the dog or the owner’s prior knowledge. of such viciousness.
In the absence of negligence, when is an owner not liable for the acts of their dog?
If at the time of the injury:
(i) the person injured is not lawfully on the premises;
(ii) owner had displayed a sign with the words “Bad Dog”
In Florida, when is a person not capable of legal negligence?
When the person is under the age of six
How is the owner’s liability affected by the % of negligence of the injured person?
The liability of the owner is reduced by the % that the injured person’s negligence contributed to the incident.
How does a plaintiff prove a design defect?
Florida uses the consumer expectation test - the design is defective if it was dangerous beyond the expectation of the ordinary consumer.
What is Florida’s Government Safety Standards with respect to products liability?
Rebuttable presumption that a product is defective if the product does not comply with government safety standards.
Rebuttable presumption that the product is not defective if it does comply with mandatory government safety standards.
Implied Warranty of Merchantability and Fitness - Alternatives to Horizontal Privity in Florida
Extends protection to buyer’s family, household, and guests who suffer personal injury.
Respondeat Superior - Liability - Presumption of a background check was completed before hiring.
In an action for death, injury, or damage caused by the intentional tort of the employee, the employer is presumed not to be negligent if they conducted a background check before hiring that did not reveal any information demonstrating unsuitability for work.
Respondeat Superior - Liability - Presumption of not completing a background check was completed before hiring.
A decision by an employer not to conduct the investigation does not raise any presumption that the employer failed to use reasonable care in hiring the employee.
Liability of Automobile Owner for allowing another to drive their car
An owner who consents to the use of his car by another is liable for the negligent damage done by the automobile.
What is the vicarious liability thresholds of a person who loans a vehicle to another short term (not including rentals or leases)?
100k per person
300k per bodily incident
50k for property damage
What is the additional liability of the owner of a car who lends it to another if the driver is under insured?
If the operate is underinsured or has insurance with combined limited of less than $500k, the person is liable for up to $500k of economic damages.
