Florida Distinctions Flashcards
1
Q
Does FL recognize the tort of intentional infliction of emotional distress?
A
Yes - Physical impact or physical manifestation of psychological trauma is not required to state a claim.
2
Q
What are the elements of intentional infliction of emotional distress?
A
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
3
Q
Self Defense to Intentional Torts - Duty to Retreat Standard
A
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.
4
Q
What type of force can be used for Self Defense in Intentional Torts?
A
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.
5
Q
What is required in order to be justified in the use or threat of use of deadly force?
A
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.
6
Q
In Florida, how is the defense of self defense to intentional torts deemed to be reasonable?
A
(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.
7
Q
In Florida, is the use of force justified to protect property?
A
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.
8
Q
In Florida, is there a duty to retreat if the individual is in a place they have a right to be?
A
No
9
Q
When is the use of deadly force justified to protect property?
A
Only when there is a reasonable belief that such force is necessary to prevent imminent commission of a forcible felony.
10
Q
What is the Shopkeeper’s privilege?
A
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.
11
Q
To what other parties has the Shopkeeper’s Privilege been expanded to in Florida?
A
Farmers and Mass Transit Agents
12
Q
What is required to be proven in all defamation actions in Florida?
A
Falsity and Fault
13
Q
Who benefits from a special notice requirement in Florida regarding a claim for defamation?
A
The media
14
Q
What is the procedure for bringing a claim against the media for defamation?
A
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.
15
Q
Loss of Qualified Privilege
A
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.
16
Q
Does FL recognize the tort of publication of facts placing defendant in a false light?
A
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.
17
Q
Elements of Intentional Misrepresentation in Fl (Deceit or Fraud)
A
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.
18
Q
Intentional Interference with Business Relationship in Fl
A
Requires a business relationship evidenced by an actual agreement that in all probability would have been completed had the defendant not interfered.
19
Q
Is there a cause of action in for Intentional Interference with Business Relationships if based on speculation regarding future sales?
A
No
20
Q
In Florida, what parties have a cause of action of prenatal injuries?
A
The parent and the child if the child is born alive.
21
Q
What is the cause of action that can be brought if the fetus dies from injuries?
A
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.
22
Q
What is the standard of care imposed on doctors and other health care providers in Florida?
A
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.
23
Q
True or False: Florida has adopted a detailed procedural framework for bringing med mal claims against healthcare providers.
A
True
24
Q
What is the liability of a healthcare provider for failure to obtain informed consent?
A
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.
25
In Florida under what age are children legally incapable of negligence?
Under the age of six.
26
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)
27
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.
28
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.
29
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.
30
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.
31
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.
32
What is required in Florida for the doctrine of attractive nuisance?
The plaintiff must have been lured onto the premises by the dangerous condition.
33
Does Florida have invitees?
No - these parties are treated as licensees.
34
What are the types of invitees?
Uninvited Licensees: Treated like discovered trespassers
Licensees by invitation that are treated like social guests and invitees.
35
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.
36
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.
37
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.
38
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.
39
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.
40
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.
41
What is a violation of a traffic ordinance evidence of?
Only negligence.
42
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).
43
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.
44
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.
45
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.
46
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.
47
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.
48
What is the limitation on punitive damages?
May not exceed the greater of 3x compensatory damages or $500k.
49
What are exceptions to the punitive damages caps?
Actions motiviated by unreasonable financial gain
Abuse of children or elderly
Intent to Harm
Intoxication
50
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.
51
What are benefits excluded from the collateral source rule?
Medicare
Medicaid
Worker's Compensation Benefits
52
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.
53
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.
54
What type of negligence doctrine did Florida adopt?
Pure Comparative Negligence
55
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.
56
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.
57
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.
58
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"
59
In Florida, when is a person not capable of legal negligence?
When the person is under the age of six
60
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.
61
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.
62
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.
63
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.
64
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.
65
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.
66
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.
67
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
68
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.
69
In FL, what is the vicarious liability of a parent for child?
Parents or legal guardians of an unemancipated minor child who commits a theft offense may be liable for 3x the victim's actual damages.
70
Vicarious Liability of Tavernkeepers
General Rule: One who provides alcohol to a person of lawful age is not liable for damages caused by intoxication.
71
What are exceptions to the general rule of the vicarious liability of tavernkeepers?
(i) One who willfully and unlawfully sells or furnishes alcohol to a minor may become liable for injury or damage resulting from the minor's intoxication
(ii) Serving someone who is habitually addicted to use of alcohol may become liable for injury or damages resulting from intoxication
(iii) Liable if they knew or should have known of the likelihood of injuries to patrons caused by disorderly conduct of third parties and fails to do anything about it.
72
What is the rule in Florida regarding Joint and Several Liability?
FL has abolished joint and several liability (except for intentional torts and environmental actions)
Generally, judgment is entered against each party based on the % of fault.
73
How do you bring a claim for liability against a non-party?
To bring in a non party, must affirmatively plead the fault of the non-party, identify the non-party, and prove their fault by a preponderance of the evidence.
74
Survival of Tort Action in Wrongful Death Actions
All actions for a tort that does not cause the victim's death will survive the death of the victim.
If the victim's injury results in death, his tort action does not survive.
75
What is the next step if a victim's injury results in his death and the tort action does not survive?
A claim has to be brought under the wrongful death statute.
76
What are the requirements to bring a wrongful death action?
1) The claim is brought by the decedent's personal rep.
2) Each survivor may recover the value of lost support or services from the date of the injury or death, interest, future loss of support or services, discounted to present value.
3) The spouse or minor child (or all children if there is no surviving spouse) may recover for the loss of companionship and protection and for mental pain and suffering from the date of the injury.
77
What claim can be brought regarding the tortious interference with family relationships?
In Florida, a child can recover for loss of a permanently injured parent's consortium.
78
What is FL's rule regarding Parent-Child immunity?
Florida waives parent-child immunity in the following cases:
(i) when unemancipated minor sues parent for negligence (but only to the extent of insurance coverage);
(ii) in the case of intentional sexual abuse perpetuated by the parent against the child.
79
What are Fl's rules regarding tort immunity for State Government?
Fl has waived its immunity for governmental or ministerial activities but not for discretionary activities.
80
What are the liability threshold amounts in FL for torts the State Government may be liable for?
Liability is waived only up to:
(i) $200k for each person injured
(ii) $300k for all claims arising from one accident, unless the state has insurance coverage for a greater amount.
81
What is required before a claim can be brought against the state?
No claim can be brought against the state unless the claimant has first presented written claim to the appropriate agency and except in the case of a municipality, the Department of Insurance.
82
What is Florida's immunity rule with respect to municipalities?
Waived to the same extent as state government. Immunity for planning-level decisions is not absolute.
Liability is waived to the extent of insurance coverage.
83
Tort Immunities for Law Enforcement Agencies
A law enforcement agency is not liable for injury or property damage caused by a person fleeing from an officer in car if:
(i) the pursuit is conducted in a manner that does not involve conduct that is reckless so as to constitute disregard for human life, safety, or property;
(ii) at the time the officer initiates the pursuit, the officer reasonably believes the person fleeing has committed a felony; and
(iii) the pursuit is conducted by the officer pursuant to a written policy of the agency governing high speed chases.
84
Tort Immunities of Public Officials
Officers and employees of the state are not responsible for damages caused by torts committed in the course of their employment except when they have acted in bad faith/with a malicious purpose/ or with willful disregard of human rights, safety, or property.
85
Florida No-Fault Insurance - General Rule
Out of pocket expenses are paid to an injured person under the basic automobile insurance policy regardless of fault.
86
Coverage under Florida No Fault Insurance
Personal Injury Protection Benefits are paid to a max of $10k for medical expenses and lost income and earning capacity
$5k for death benefits.
Any out of pocket over $10k may be recovered under traditional tort theories.
Pain, suffering, mental anguish, and inconvenience is available for permanent injury or death.
87
Worker's Compensation as Bar to Tort Action
Worker's Comp provides compensation to injured employees in the course of their work regardless of fault.
An employee does not lose benefits for contributory negligence, assumption of risk, or negligence.
88
Can an employee sue employer under Fl's worker's compensation law?
No - cant sue the employer or employees except if the employee commits an act that constitutes gross negligence, willfulness or unprovoked physical aggression.
89
What is the statute of limitations for wrongful death?
2 years except that the wrongful death actions based on intentional torts have no period of limitation
90
What is the statute of limitations for wrongful death based on intentional torts?
There is no limit
91
What is the statute of limitation for defamation?
2 years
92
What is the statute of limitation for medical mal practice?
2 years measured from the time the malpractice was discovered or should have been discovered but generally no longer than 4 years.
93
What is the statute of limitations for a negligence claim?
4 years
94
What is the statute of limitations for an intentional tort action?
4 years
95
In FL, what does a claim for negligent infliction of emotional distress require?
Proof of an actual physical impact.
96
In what cases as the FL Sup Ct held that the cap on non-economic damages is unconstitutional?
Wrongful death cases
97
True or False: If a dog owner is liable, any negligence on the part of the person bitten that proximately contributes to the biting will reduce the liability of the dog owner by the percentage that the bitten person’s negligence contributed.
True
98
When can punitive damage caps be expanded a tier and to what?
Punitive damages can be awarded for 4x the amount of compensatory damages or $2M if the plaintiff shows:
(i) the wrongful conduct of the defendant was motivated by unreasonable financial gain;
(ii) the individual made decisions knowing of the unreasonably dangerous conduct and the likelihood of injury resulting.
99
What are the grounds for punitive damages to be awarded?
Based on clear and convincing evidence that the defendant was personally guilty of intentional misconduct or gross negligence.
100
What are the elements of bringing a products liability claim under negligence?
1) Duty - to any foreseeable plaintiff
2) Breach - shown by negligent conduct of D leading to supplying a defective product
3) Causation
4) Damages - physical injury or property damage must be shown
101
What is the duty of care of a party that provides products?
Duty arises when the defendant engages in affirmative conduct associated with being a commercial supplier of products.
102
What is the standard for determining whether there is a design defect or whether the defectively manufactured?
A product is either if it is dangerous beyond the expectation of the ordinary consumer.
103
What are the elements to bring a products liability claim under strict liability?
(i) defendant is a commercial supplier
(ii) defendant produced or sold a defective product
(iii) actual and proximate cause
(iv) damages
Product must reach P without substantial alteration.
104
What is the implied warranty of merchantability?
When a merchant deals in a certain kind of good sell such goods, there is an implied warranty.
The warranty is that the goods are merchantable and of quality equal to purposes for which the goods are used.
If the product fails to live up to these standards, the defendant will be liable.
Must also prove causation and damages.
105
When does an express warranty arise?
It arises when a supplier makes any affirmation of facts or promise to the buyer relating to the good that becomes part of the basis of the bargain.
106
What is the basis for a misrepresentation claim?
Arises when a representation by the seller about a product induces reliance by the buyer.
Usually strict liability - if the defendant is engaged in the business of selling the good, fault need not be proven.
Misrepresentation must be of a material fact and that shown that the defendant intended to induce reliance.
107
How can a misrepresentation be shown?
By a label or other advertisement other than word of mouth
108
Can a consumer sue both the manufacturer and distributor and retailer?
Yes
Certain consumer torts are actionable against the manufacturer of a product and parties the distribute and sell the product.
109
True or False: A plaintiff can join any defendants whose tortious conduct arose from the same transaction or occurrence and such defendants will be held liable in proportion to their fault.
True
110
What is the implied warranty of fitness for a particular purpose?
Seller knows or has reason to know the particular purpose of goods and buyer is relying on Seller's skill or judgment in selecting goods.
Must also prove causation and damages.
111
In Florida, who does the implied warranty of merchantability and Fitness for a particular purpose extend to?
Purchaser's family and household guests.
112
How can an implied warranty be negated?
Through an express disclaimer - "as is" "sold without warranties"
113
When does a manufacturer breach warranty of merchantability?
Merchant held liable if:
1) Consumer apprises a merchant for a particular need
2) The merchant recommends a particular product to meet a particular need
3) the consumer relies on merchant rec
4) the consumer purchases the product
5) the consumer uses the product
6) product not fit for the use
7) Consumer is injured
114
True or False: A merchant will also be liable to anyone who obtains the product from the consumer who relied on the merchant to purchase and use the product.
True
115
When will an employer be held vicariously liable for acts of its employees?
1) Employee's act was done within scope of employment duties
2) The employee's acts were not willful or wanton, unless the employer authorized such conduct
3) Generally not liable for intentional torts but will be if physical conduct with customers is part of the employee's job.
116
What are the elements of misrepresentation?
Merchant
1) Knowingly makes a false statement about a product
2) with the intention of inducing customer to buy it
3) the misrep does induce the customer to buy it
4) Customer is injured
117
Under what situations will be a merchant be held strictly liable for a products defect?
1) The product was unreasonably dangerous
2) The product left the manufacturer in a dangerous condition
3) the distributor did not alter the product
4) the product was dangerously defective due to:
- Defective manufacturing
- Defective design
- Defective warnings
- The product lacked labels or instructions that would have put the average consumer on notice about the danger
5) Consumer made foreseeable use of the product
6) The product caused the injury
7) Consumer suffered harm - more than just economic harm but damage to Consumer or its property. If the only damage is to the product itself, a breach of contract claim is proper.
118
What is the rule regarding negligent hiring?
An employer can be held for negligent hiring if the employer knowingly hires a person not qualified for the job or the person has a record of behavior that makes him a danger to employer's customers/business.
119
Elements for Products Liability Based on Intent
Rare claim because usually brought under intentional tort.
D is liable if an unsafe product injured someone and D intended it to or know it was substantially certain to occur.
120
Elements for Breach of Express Warranty
1) Affirmation of Fact or Promise concerning goods that are the basis of bargain
2) Breach - product cannot live up to its standards
3) Causation
4) Damages
5) Defenses - disclaimer only works if it is consistent with the warranty given
121
Elements of Battery
1) Harmful or Offensive Contract
2) To P's person
3) Intent
4) Causation
122
Elements of Assault
1) Act by D that creates reasonable apprehension in P
2) Of immediate harmful or offensive contract
3) Intent
4) Causation
123
False Imprisonment
1) Act or omission of D
2) Confines P to a bounded area
3) Intent
4) Causation
124
What are the claims to which transferred intent applies?
```
Assault
Battery
False Imprisonment
Trespass to Chattel
Trespass to Land
```
125
Trespass to Land
1) Physical invasion of P's property
2) Intent
3) Causation
126
Trespass to Chattels
1) Act by D that interfere's with P's right of possession
2) Intent
3) Causation
4) Damages (repair or loss of value)
127
Conversion
1) Act by D that interfere's with P's right of possession
2) Intent
3) Causation
4) Damages (replevin or replace based on value as of the date of the taking)
128
What is a private nuisance?
Substantial and unreasonable interference with another private individual's use and enjoyment of property
129
What is a public nuisance?
Act that unreasonably interferes with the health, safey, and property rights of the community.
130
What are defenses to intentional torts?
1) Consent
2) Self Defenses
3) Privacy of Arrest
4) Necessity
131
What are the three privacy claims?
1) Appropriation of Person's picture or name
2) Intrusion into Affairs or Seclusion
3) Public disclosure of public facts
132
Appropriation of Person's picture or name
Must show that D used it for a commercial advantage.
Must prove causation and damages.
133
Intrusion into Affairs or Seclusion
Act of prying or intruding which is highly offensive to a reasonable person - must relate to private matters.
Must prove causation and damages.
134
Public disclosure of public facts
Disclosure of private information
- Must be highly offensive to a reasonable person of ordinary sensitivities.
- Causation
- Damages
135
Interference with Business Relationship
1) Valid K between P or 3rd party or valid expectancy
2) Defendant knew of this
3) Intentional Interference
4) Damages
136
Malicious Prosecution
1) Institution of a criminal proceeding vs. P
2) termination in P's favor
3) absence of probable cause
4) improper purpose
5) damages
137
Negligent Misrepresentation
1) Misrep must be by D in a professional/biz capacity
2) breach of duty to P
3) Causation
4) Damages
138
What is the standard of malice that a public figure must prove in a defamation action?
Actual Malice - Intruder was subjectively aware that the statement was false or that the statement was made recklessly.
139
What is actual malice?
Proof that the individual was subjectively aware that the statement was false or was reckless in making the statement.
140
In Florida, what is the malice sufficient to overcome a qualified privilege?
Common law express malice.
141
What is common law express malice?
Present when the primary intent is to injure the plaintiff.
142
When is qualified priv granted?
Reports of official proceedings
Statement of Interest of Publisher
Defense of action/prop/rep
Statement of interest
143
What is the standard to overcome qualified priv?
Express malice by a preponderance of the evidence.
144
What are the 5 claims that can be raised in a strict liability case regarding products liability?
```
Strict Liability
Intent
Representation breach
Implied Warranty
Negligence
```
145
What must the P prove for a strict liability claim (for matters other than products)
1) The nature of D's activity gives Defendant an absolute duty to make safe
2) Defendant is the actual and proximate cause of P's injuries
3) P suffered damages
146
Does strict liability if a trespasser is bitten by dogs used for a vicious intentional tort?
Yes
147
What liability does an owner have for a wild animal?
Strict
148
What liability does an owner have for a domesticated animal?
Ordinary Negligence
149
Can a trespasser bring a claim of strict liability?
No
150
What is required to prove abormally dangerous activity?
1) Activity is one that could result in serious harm even when reasonable care is used; and
2) Activity is not a matter of common usage in the community.
151
What do you have to prove to find liability under any products liability theory?
Defect and that the defect was in existence when it left D's control.
152
What are 3 types of product defects?
Design Defect
Manufacturing Defect
Inadequate warnings
153
What is compliance with government safety standards proof of?
Evidence a presumption that the product is not defective.
154
In FL what is the standard to prove a defect for design or manufacturing?
P must sow that the product failed to perform as safely as an ordinary consumer would expect.
155
How do you establish products liability based on intent?
D is liable to anyone injured by an unsafe product if D intended the consequence or knew they were substantially certain to occur.
Treated like an intentional tort.
156
How do you establish products liability based on negligence?
Duty - Duty owed to foreseeable plaintiff
Breach - shown by negligence conduct of D leading to the supplying of the defective product.
Causation - Actual and Proximate
Damages
157
True or False: If an intermediary fails to discover a defect, this does not supercede the original manufacturer's negligence unless the intermediary's conduct exceeds ordinary foreseeable neg.
True
158
What is required to establish strict liability for products liability?
1) D is a commercial supplier of a product
2) D is producing or selling a defective product (reasonable consumer expectation std)
3) Causation - actual and proximate
Actual - The product that injured P was without substantial alteration
4) Damages
159
Do disclaimers serve as a defense to strict liability claims in products liability?
No
160
What are the implied warranties?
Merchantability
Fitness
Implied into every sale of goods
161
What is the implied warranty of merchantability?
Goods should be of average acceptable quality and fit for their ordinary purpose for which they are used.
Causation - actual and prox
Damages
162
What is the implied warranty of fitness?
Seller knows or has reason to know the particular purpose for which the goods are required and that the buyer is relying on Seller's judgment and skill in selecting the goods.
Causation - actual and prox
Damages
163
Who can sue for implied warranties?
Buyer, family, household, and guests
164
To prove breach of an implied warranty, does P have to prove fault on D's part?
No
165
Are disclaimers effective to defend against implied warranties?
Yes for econ damages
| No for personal injury
166
Can comparative negligence be a defense to strict liability and implied warranties?
Yes
167
What are the two rep theories that a claim can be brought under?
Express Warranty
| Misrepresentation of fact
168
How do you bring a claim for a breach of express warranty?
1) There must be an affirmation of fact or promise concerning the good that becomes part of the basis of the bargain
2) Breach - product did not live up to warranty
3) Causation - Actual and Prox
4) Damages
169
How do you bring a claim for breach if a misrepresentation of an express warranty?
1) P must prove that
D issued a statement of material fact regarding the quality or use of good and D intended to induce reliance by P
2) Causation - Actual = reliance/ Proximate
3) Damages
170
In a tort for a car crash, what do you need to think about?
Negligence Claim
Negligence per se generally n/a
Collateral Source Rule
Florida No Fault Rules - p pays first 10k rest via neg.
Liability of Individual who lends their care to another
171
What is required to bring a med mal claim?
1) P's attorney must undertake a reasonable investigation to determine grounds for mal practice
2) Attorney certify that based on opinion of medical expert, there are grounds for suit
3) the attorney provide D with 90 days notice of P's intent to sue - during which time D's insurer will investigate and determine a response
Must be satisfied prior to the running of SOL for all med mal claims.
