Florida Torts

Question 1

Pure comparative negligence:

Answer 1

• Florida is a pure comparative negligence jurisdiction

- The plaintiff can recover, no matter how much at fault, but his recovery is reduced by the plaintiff’s own fault

Question 2

In Florida, violation of a traffic statute:

Answer 2

is evidence of negligence

Question 3

Under Florida’s no fault insurance law (PIP):

Answer 3

• Plaintiff’s own auto insurance will pay the first 10k of out of pocket expenses
• Recovery for pain and suffering will not be barred if the plaintiff suffers permanent damages

Question 4

What is the applicable standard of care for professionals (i.e. doctors, lawyers)

Answer 4

professionals are held to the standard of care of similar professionals with the same knowledge and training in that area

Question 5

In Florida, Joint and several liability:

Answer 5

has been abolished; each defendant is only responsible for damages equal to their respective fault

Question 6

Fabre defendant rule:

Answer 6

If there are multiple defendants, and a defendant cannot be located or is not joined, the plaintiff is not precluded from going after the other defendants and a jury can still allocate a percentage of fault to the missing defendant

Question 7

Punitive damages in Florida:

Answer 7

are only awarded if there is clear and convincing evidence of (1) intentional; (2) wanton; (3) willful; or (4) gross negligent behavior

Question 8

What is the cap on punitive damages?

Answer 8

• If the behavior was intentional there is no cap

- otherwise 3x compensatory damages or 500k, which ever is greater

Question 9

What is the Florida exception to pure comparative negligence?

Answer 9

If the plaintiff is legally drunk, and more than 50% at fault, he is barred from recovery

Question 10

Under Florida’s Good Samaritan rule:

Answer 10

• there is no duty to rescue, but once a citizen begins to rescue they are held to the reasonable person standard
• a medical professional rendering aid in an emergency (I.e. ER personnel) is not liable unless they acted recklessly

Question 11

Collateral Source Rule:

Answer 11

Court must reduce damages award to Plaintiff by amounts paid for/ available to plaintiff from collateral sources such as insurance (but not medicare, medicaid, or workers comp)

Question 12

Under a Florida medical malpractice claim:

Answer 12

• Florida has a procedural framework plaintiff must follow to bring a med Mal claim
• the same basic elements of negligence apply (duty, breach, causation, damages), but there is a heightened duty of care

Question 13

Dangerous Instrumentality Doctrine:

Answer 13

The owner of a vehicle is liable for any accidents caused by any driver who uses the vehicle with owner’s knowledge and consent

Question 14

Sovereign immunity:

Answer 14

• Florida has waived sovereign immunity for operational functions; but cannot be sued for any planning decisions
• cap is 200k per plaintiff or 300k per claim

Question 15

In a rear end collision:

Answer 15

• Presumption that the driver colliding from behind is at fault
• can be rebutted under the sudden stop doctrine (car in front stopped suddenly)
• πcan then argue ∆was following to close behind

Question 16

What is the procedural framework for a Med Mal claim?

Answer 16

(1) P must investigate grounds for the claim and obtain a a sworn affidavit by a medical expert (ME) verifying reasonable grounds that the claim exist; (2) Plaintiff must send notice of intent to initiate litigation at least 90 days before filing suit to all prospective defendants; (3) during the 90 days plaintiff cannot sue and defendant can then begin their investigation; (4) by the end of the 90 days defendant can either (1) reject; (2) offer to settle; or (3) admit liability and seek arbitration;

Question 17

What is a landowner’s duty to licensees?

Answer 17

warn of known dangers

Question 18

Business invitee rule:

Answer 18

duty to warn, clean up, and make safe

Question 19

Florida dog bite rule:

Answer 19

-Owner is strictly liable for dog bites, even if there was no prior vicious tendencies, UNLESS (1) dog was provoked; (2) ∆had a bad dog sign posted; or (3) ∆is 6 yrs or younger

Question 20

Duty of care owed by the owner of a business premise:

Answer 20

Owner of a business premise owes duty of reasonable care to maintain premises in a reasonably safe condition for invitees; this includes efforts to keep premise free from transitory foreign objects that foreseeably give rise to injury

Question 21

What are the elements to prevail on negligence as a result of substance on a business premises?

Answer 21

• (1) business owed a duty to the plaintiff; (2) the business acted negligently by failing to exercise reasonable care in maintenance, inspection, repair, or warning of the premises; and (3) failure to exercise reasonable care was the cause of plaintiffs injury
• plaintiff also has to prove business had constructive knowledge of the dangerous condition

Question 22

When doesn’t a duty to warn apply under the business invitee rule?

Answer 22

Where the danger is so obvious that the invitee should have reasonably been aware of it (i.e. defendant can raise defense of comparative negligence if the dangerous condition was so apparent that plaintiff was aware and failed to avoid it)

Question 23

What must a plaintiff establish to state an NIED claim?

Answer 23

physical impact or physical manifestation of psychological trauma

Question 24

When is it ok to use force (even deadly force)?

Answer 24

(1) person not engaged in unlawful activity; (2) is an area they have a right be in; (3) reasonably believes its necessary to prevent death or serious bodily injury to themself or another
- no duty to retreat

Question 25

When is a person presumed to have reasonable fear of death/ bodily harm?

Answer 25

the person who the defense was used against unlawfully entered the premise; and (2) person claiming self defense knew or had reason to believe an unlawful entry occurred

Question 26

What must a defamation plaintiff do before filing an action for libel?

Answer 26

serve written notice to the media defendant specifying the alleged libel at least five days before filing

Question 27

What must a public figure plaintiff demonstrate in a defamation suit?

Answer 27

Actual malice (I.e. D was subjectively aware the statement was false or subjectively reckless in making the statement)

Question 28

What malice is sufficient to destroy a qualified privilege in Florida?

Answer 28

Express malice - primary motive was an intention to injure the plaintiff

Question 29

What causes of action do Florida courts recognize for invasion of privacy?

Answer 29

(1) disclosure of private facts; and (2) intrusion on plaintiff’s affairs or seclusion

Question 30

Any child under age 6

Answer 30

is legally incapable of negligence in FL

Question 31

Doctrine of interspousal immunity

Answer 31

has been abolished in Fl; can sue your spouse for torts

Question 32

In Florida, one who provides alcohol to a person of lawful age

Answer 32

is not liable for damages caused by the intoxication of that person, UNLESS they knew the person was an alcoholic

Question 33

Before a plaintiff in a medmal claim issues notice of intent to sue:

Answer 33

(1) P must investigate the grounds for the claim; (2) obtain a written opinion by an ME verifying reasonable grounds for the claim exist; and (3) counsel must certify in the complain that there was a reasonable investigation

Question 34

When can an uninvited licensee recover against a landowner?

Answer 34

landowner acted willfully or upon discovering them failed to warn of known, concealed, dangerous conditions

Question 35

When may a court dismiss a plaintiff’s medmal claim?

Answer 35

(1) Plaintiff failed to conduct preset investigation; (2) consent would have been given had it been sought; or (3) enough information was given to the plaintiff that a reasonable person would have an understanding of the effects, alternatives, and risks of the procedure