Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

FL Bar Exam > Florida Torts > Flashcards

Florida Torts Flashcards

You may prefer our related Brainscape-certified flashcards:
MBE flashcards
1
Q

FL Negligence > Duty

A

A duty of care is owed to all persons who may foreseeably be injured by the defendant’s failure to act as a reasonable person of ordinary prudence under the circumstances

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Florida Negligence Law: Rear-end collisions

A

“presumption of negligence” on the part of the driver who rear ended the plaintiff
* duty, breach, and causation established
* ONLY NEED TO PROVE DAMAGES

Can rebut the presumption by showing one of the following:

  • Lead driver made an abrupt or arbitrary lane change in a manner a reasonable driver would not expect;
  • Illegal stop by lead driver; OR
  • mechanical failure of car without fault of driver.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

Statute of Limitations for Negligence Actions

A

An action based on negligence must be brought within two years.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

Florida Negligence Law: Good Samaritan Statute
1) Non-Emergency Personnel vs
2) Hospitals/Emergency Physicians

A

Generally, there is no affirmative duty to act. However, if you do render aid, Florida’s Good Samaritan Act provides that…

1) Non-Emergency Personnel: OUTSIDE of an Emergency Room –NEGLIGENCE

“Any person who renders emergency care or treatment…

  • gratuitously,
  • in good faith, and
  • without objection by the injured party

…will not be held liable for damages resulting from such care, as long as the person acts as an ordinary reasonably prudent person would have acted under the same or similar circumstances.”

2) Hospitals/Emergency Physicians INSIDE EMERGENCY ROOM– RECKLESSNESS

“Any hospital or emergency physician who renders emergency services (ER), will not held liable for damages as a result from such services unless acted with reckless disregard for risks to patients.”

Emergency services

  • ANYTHING IN THE EMERGENCY ROOM. Not surgery 10 days later. If not in ER, regular standard for professionals.
  • Does not matter how stable the Plaintiff is. They could have a papercut. As long as they are in the actual Emergency room
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

Standard of Care > Physicians
Generalists v. Specialists
Informed Consent

A

1. Physicians Negligence

  • Generalists: held to local standard
  • Specialists: held to national standard

2. Informed Consent –No negligence action for failure to provide informed consent may be brought against protected medical professionals if either of the following conditions is met:

  • 1) The medical professional acted in accordance with the accepted standard of similarly situated medical professionals (i.e., those with similar training and experience); OR
  • 2) The information given was such that a reasonable individual would have a general understanding of the nature of the procedure, the risks associated with the procedure, and any alternatives (NRA); OR A patient who was not properly informed reasonably would have consented to undergo the procedure under the circumstances if the medical professional had properly provided informed consent.

Informed consent is presumed (rebuttable) if the doctor:

  • Gets consent in writing and signed by the patient (or patient’s representative); and
  • Provides information about NRA.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Florida Negligence Per Se: Violation of a PENAL Statute vs. Violation of a NON-PENAL Statute

A

Violation of PENAL Statute:

  • ESTABLISHES negligence per se.
  • serious, punishable, criminal statutes

Violation of OTHER Statute:

  • DOES NOT ESTABLISH negligence per se,
  • but it can be used as evidence of negligence
  • traffic statutes, texting and driving, seatbelt ordinance
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

Negligent Infliction of Emotional Distress

A

Direct Injury Claims – we want legit, concrete, genuine claims

Florida plaintiff cannot recover for negligent infliction of emotional distress unless they suffer:

  • A physical injury or physical impact (which can be relatively slight); OR
  • Manifestation of injury or distress in the form of a severe and discernable physical illness, such as a heart attack.

Bystander Claims:
As in other jurisdictions, a plaintiff who witnesses physical injury negligently inflicted upon another may recover upon a showing of three proximities:

  • SPATIAL proximity—be at the scene
  • TEMPORAL proximity—be there in time to actually observe the injury
  • RELATIONAL proximity—injured party is a close relative

Florida determines “close relatives” on a case by case basis

Also look for physical symptoms of the emotional distress caused by witnessing the accident.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Wrongful Death and Survival Actions

A

Florida’s Wrongful death action— Compensates the people affected by the deceased’s death

  • Action brought by the personal representative of a deceased person
  • Recover damages on behalf of the estate of the deceased person and survivors if negligently killed by defendant

DAMAGES Include the following:

  • Loss of support;
  • Loss of companionship and protection (only for a surviving spouse);
  • Loss of parental companionship (only applicable if there are minor children, or adult children when there is no surviving spouse);
  • Medical or funeral expenses;
  • Loss of earnings from the date they were injured to the day they died, less any amount that would have been paid as support; and/or
  • Loss of prospective net accumulations of the estate (reduced to present value)

Florida also allows these survivors to recover for mental pain & suffering:
* Surviving spouse;
* minor children;
* All children (including adult children), if no surviving spouse;
* Parents of a deceased minor child; and Parents of a deceased adult if there are no other survivors

Survival action: Allows claims to survive the death of the person who could bring it

  • Florida allows all claims to survive a person’s death, even those for personal or intangible harms, such as defamation. (florida specific)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Recovery for Permanent Injuries to Family Members

A

Loss of Parental Companionship Claims

  • Available when natural or adoptive parent is permanently disabled
  • Claimant must be an unmarried dependent (often a minor child)

Loss of Filial Companionship or Consortium Claims

  • Available to parent when child is permanently disabled
  • Recovery limited to time between injury and child’s 18th birthday
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Florida > Landowners
1) Trespassers
2) Invitees
3) Licensees

A

1) TRESPASSERS Only Liable if…

Undiscovered – (i) Uninvited entry; (ii) Undetected; and (iii) Remain undetected within 24 before the injury
* intentional misconduct causing injury

Discovered– (i) uninvited or unpermitted entry; (ii) actually detected or discovered; and (iii) Discovered within 24 hours before the injury.

  • Gross negligence
  • Intentional misconduct causing injury
  • Failure to warn of a known dangerous condition

Becomes INVITEE (duty of reasonable care) if:

  • express invitation to trespasser after discovery; or
  • manifested intent to hold property open to others pursuing similar purpose

Impaired – Anyone whose faculties are impaired by alcohol (BAC > .08) or drugs

  • gross negligence or intentional misconduct

Child

  • Attractive nuisance doctrine applies only if he was initially lured or enticed onto the property by the attractive nuisance.
  • If A child trespasses first and then discovers the attractive danger cannot apply the attractive nuisance doctrine.

2) INVITEES– Invitees are owed a duty of reasonable care.

Public Invitees

  • Those who enter a property thrown open for public use (and are using it for that purpose)
  • Implied representation that the property has been made safe for use

Business Invitee

  • Those who enter the property to confer a benefit to the business (i.e., as a customer)

3) LICENSEES

Invited – Social guests and those with an implied invitation

  • Owed a duty of reasonable care

Uninvited Licensee– Treated as DT, Those on the property 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 dangerous conditions
  • No intentional misconduct
  • No gross negligence
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Medical Malpractice Procedure (ESSAYS)

A

Medical Malpractice Procedure

  1. Plaintiff must conduct a reasonable investigation for a good faith grounds for negligence claim including a written opinion from expert stating there appears to be medical negligence.
  2. Give 90 days’ notice before filing suit plaintiff gives notice to defendants of intent to litigate.
  3. Defendant is required to conduct a pre-suit investigation and respond to plaintiff.
  4. Then there is mandatory mediation and settlement conference or nonbinding court-ordered arbitration.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Florida Medical Malpractice Actions: Pre-suit requirements

A

1) Plaintiff must conduct a reasonable investigation based on good faith belief that nelgigence occurred.

  • Need a written opinion from doctor in the same specialty as doctor being sued saying negligence occured.

2) Verified affadavit from medical expert simply saying that there was negligence (open/discoverable-less detailed)

3) Notice of Intent to Initiate Litigation to the defendant doctor.

  • Must include (i) verified affadavit, and (ii) certain medical records.

Notice of intent pauses the SOL for the claim and starts 90 day clock for Defendant Doctors investigation (Depo’s, Roggs, etc.) After 90 days, Doctor chooses 1 of 3 options:

  • Reject Claim
  • Offer to Settle
  • Offer to admit liability and arbitrate damages
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Medical Malpractice Essay Rule

A

Rule: In a Florida medical malpractice action, a reasonable investigation must be conducted to determine if there are good faith grounds for a negligence claim. Good faith is shown if a claimant received a written opinion from an expert stating there appears to be medical negligence.

Modified comparative fault does NOT apply to medical malpractice cases

Statute of Limitations: Florida medical malpractice claims must be brought within two years from either the time (i) the incident giving rise to the action occurred, or (ii) the incident is discovered or should have been discovered with the exercise of due diligence. The case may NOT be commenced more than four years from the date of the incident, except when the action is brought on behalf of a minor before her eighth birthday.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Florida Defenses to Negligence: Modified Comparative Fault

You must raise affirmative defenses in your torts essays. They will be half of the points on most issues

A

Note: Pure Comparative Fault has been abolished and FL has now adopted Modified Comparative fault

Modified Comparative Fault

  • Plaintiff’s recovery is proportionately reduced by their % of fault and recovery is completely barred if their fault EXCEEDS 50%

On all torts essays, say: Pure Comparative Fault has been abolished and FL has now adopted Modified Comparative fault

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Florida Defenses to Negligence: Modified Comparative Fault (for Intoxicated Plaintiffs)

You must raise affirmative defenses on your torts essays. They will be half of the points on most issues

A

In FL, Plaintiff cannot recover if:

1) Blood alcohol lvl .08% or more (not breath)
2) Intoxication caused accident
3) P more than 50% at fault

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Florida Defenses to Negligence: Fabre Defendant

A

Defendant may argue there was a third party–one not named as a defendant in the lawsuit–whose actions also contributed to the accident
* think - hit and run

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

Florida Defenses to Negligence: Failure to wear a seatbelt

You must raise affirmative defenses on your torts essays. They will be half of the points on most issues

A

Defendant has burden to show:

1) Seatbelt was available
2) Seatbelt was operational
3) Failure to use substantially contributed to injuries.

= comparative negligence

On all torts essays, say: Pure Comparative Fault has been abolished and FL has now adopted Modified Comparative fault

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

Florida Defenses to Negligence: Assumption of the risk

You must raise affirmative defenses on your torts essays. They will be half of the points on most issues

A

Note: MBE recognizes both express and implied AOR. Florida has ABOLISHED Implied Assumption of the risk. HAVE to express your assumption of the risk (think waiver forms)

Assumption of the Risk: Exculpatory Clauses in Florida Contracts

RULE: In Florida, Exculpatory waivers are enforceable if:

  • Clear and unequivocal;
  • Waives only negligence or gross negligence, not intentional torts; and
  • Applies to adults.
19
Q

Florida > Proximate Cause

A

Florida rule:

  • Whether and to what extent defendant’s breach foreseeably and substantially caused the specific injury that actually occurred
20
Q

Florida Defenses to Negligence: Intervening Cause

You must raise affirmative defenses on your torts essays. They will be half of the points on most issues

A

any/all seperat forseeable acts are intervening causes that do not cut off chain of liability.
* negligence is forseeable

Superseding causes are seperate non-forseeable acts not set in motion by defendant which cut off liability
1. Criminal Acts
2. Intentional Torts
3. Acts of God

21
Q

Causation > Loss of Chance

A

To recover damages in Florida, the plaintiff must have had a greater that 50% chance of survival prior to defendant’s negligence (misdiagnosis usually)

22
Q

Florida Strict Liability

A

Defendant is liable if engaged in

1) Wild Animals

  • injury could also be from fear of wild animal (run, fall, etc.)

2) Abnormally Dangerous Activity

  • Explosives, Hazardous chemicals, etc.

3) Defective Products

23
Q

Florida Strict Liability > Dog Bites

A

Florida applies STRICT LIABILITY when a dog bites a person on public property or when the person is lawfully on private property.
* No “one-bite rule” (No need to show dangerous propensity)

EXCEPTIONS – SL won’t apply. Negligence will apply.

  • if the dog was provoked by bitten person (Comparative neglagence)
  • if the owner puts a “Bad Dog” sign on property the owner will not be strictly liable UNLESS the bitten person is under the age of 6 or the damages are proximately caused by the owner’s act or omission.

Landlord Liability
Landlords are liable for tenants’ dogs who bite if:
* The Landlord knows of the dog’s dangerous propensities; and
* The Landlord has the ability to control the dog’s presence.

MBE rule: need to show a dog’s dangerous propensity for SL to attach

24
Q

Florida Strict Liability > Products Liability

A

PRODUCTS LIABILITY: The umbrella of products liability includes various claims:

  • Negligence
  • Strict products liability
  • Breach of warranty
  • Similar theories (such as negligent misrepresentation or nuisance)

STRICT PRODUCTS LIABILITY

  • 1) Design Defects
  • 2) Manufacturing Defects
  • 3) Warning Defects

a) Florida Test for Design Defect:

CONSUMER EXPECTATIONS TEST

  • A product is deemed defectively designed if plaintiff is able to show that the product did not perform as safely as an ordinary consumer would expect when the product is used in the intended or reasonably foreseeable manner

b) Florida’s Pure Economic Loss Rule – no recovery

  • No recovery if the defect in a product causes damage only to the product itself. (try breach of warranty - K claim)

vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv

DEFENSE

a) No Joint & Several Liability in NEGLIGENCE PL action

  • The court enters a judgement against each defendant based on their percentage of fault
  • (consistent with FL default rule on J+S liability)

b) State of the art defense

  • Florida considers state-of-the-art at the time the product was MANUFACTURED (not at the time of injury or trial)

c) Compliance/Non-Compliance with government rules

Defendants’ COMPLIANCE with government rules creates a rebuttable presumption that the product was NOT DEFECTIVE.

Defendant can assert if:

  • Compliance is required as a condition of selling the product; and
  • Rules were designed to prevent type of harm plaintiff suffered.

Alternatively, NON-COMPLIANCE with government rules can establish a rebuttable presumption that the product was DEFECTIVE

d) Modified Comparative Negligence - Misuse, Assumption of the risk

  • reduces, but does not bar, recovery.
  • any fault that exceeds 50% bars recovery.
25
Q

Florida > Other Torts > Defamation

A

Elements (DIPDFF) Plaintiffs must prove:

1) Defamatory communication

  • Language that diminishes respect, esteem, or goodwill toward the plaintiff, or that deters others from associating with the plaintiff

2) Identification of plaintiff

3) Publication to a third party who understand its defamatory nature

4) Damage to the plaintiff’s reputation caused by publication

5) Falsity - plaintiffs must prove falsity

6) Fault - public officials/figues must prove actual malice (reckless) and private figures must prove negligence - (as to statement’s falsity)

VVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVV

Types of Defamation and Damages

1) Libel—a written, printed, or recorded statement (including TV/radio broadcasts, e-mail, and electronic communications)

Damages: P may recover general damages

  • (i.e., recovery without proof of measurable harm)

2) Slander—a statement that is spoken

Damages: P must prove special damages

  • require the plaintiff to prove that a third party heard the defendant’s defamatory comments and acted adversely to them. (often involves economic loss);

Slander per se

  • Commission of a serious crime
  • Unfitness for a trade or profession
  • Having a loathsome disease
  • Severe sexual misconduct

VVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVV

DEFENSES

ABSOLUTE privilege — Complete Immunity. Includes statements made:

  • in the course of judicial/legislative proceedings
  • between spouses
  • In required publications by radio and TV (e.g., statements by a political candidate that can’t be censored)

QUALIFIED privilege — statements made in good faith pursuant to some duty or responsibility; includes statements made:

  • In the interest of the defendant (e.g., defending their reputation);
  • In the interest of the recipient of the statement; or
  • Affecting important public interest

Attorneys > out-of-court questioning of potential witnesses

VVVVVVVVVVVVVVVVVVVVVVVVVVVVVVV

Florida also has additional requirements for a plaintiff to bring a claim of defamation against a media defendant.

Notice and Retraction - Plaintiff must give written notice to media, specifying the statements claimed to be defamatory and give them a chance to make a timely retraction (retraction must be full and complete)

  • Timely retraction limits plaintiff’s recovery to only actual damages (no punitive).

Timely retraction:

  • 10 days for daily publications
  • 20 days for semi-monthly publications
  • 45 days for monthly publications
26
Q

Florida > Other Torts > Misappropriation or Right of Publicity

A

Misappropriation or Right of Publicity

  • Survival of Action: 40 years after the death of the person whose name or likeness is appropriated
27
Q

Breach of Fiduciary Relationship

A

Elements

  • fiduciary duty exists;
  • Breach;
  • Causation (but-for and proximate);
  • Damages

Establishing Breach

Look for failures of:

  • Loyalty;
  • Confidentiality; or
  • Competence

In Florida, as elsewhere, always look to make sure the relationship is a fiduciary one: partner-partner, trustor-trustee, lawyer-client, principal- agent, etc.

28
Q

Florida Vicarious Liability > Employer Direct Liability

A

Employer VICARIOUS Liability – an employer can be held responsible for an employee’s negligence that occurs within the scope of that person’s employment.

  • (look for agent-principal)

Employer Direct Liability

Employee’s intentional tort: the employer may be directly liable for negligently hiring that employee.

Florida applies the presumption that the employer was NOT negligent in hiring an employee, as long as the employer conducts a backgrount check (meeting certain criteria) that does not reveal any indication that the employee was unsuitable for the position.

Background check MUST include:
* Criminal background check;
* Reasonably contact references and former employers;
* Require a written job application; and
* Interview an applicant.
* If the employee’s responsibilities include driving, a drivers license record check.

29
Q

Florida Vicarious Liability: Driver-Passenger (Guest Statute)

A

Guest statute does not apply in FL.
* A passenger in a vehicle that gets into an accident can sue the driver.

30
Q

Florida Vicarious Liability > Automobile Owners and Florida’s Dangerous Instrumentality Doctrine

A

Dangerous instrumentality: Any automobile/motorized vehicle or anything that can cause death or serious bodily injury
* car/motorcycle
* heavy machinery
* etc.

Dangerous Instrumentality Doctrine:

  • When you let someone drive your vehicle, you are liable for the torts they commit in the vehicle if they are driving with your knowledge and consent

Parents and teen drivers:

  • Parents are jointly and severally liable for torts their teen driver commits if the parents sign for the minor’s driver’s license.
  • This liability is in addition to the dangerous instrumentalities doctrine.
31
Q

Florida Vicarious Liability > Dram Shop Liability

A

A provider of alcohol can be liable for resulting torts of certain people they serve with alcohol.

Minors

  • One will be liable for injuries caused when one willfully and unlawfully sells or furnishes alcohol to a minor.

Habitually addicted persons:

  • One will be liable for injuries caused when one knowingly sells or furnishes alcohol to a habitually addicted person.
32
Q

Florida > Collateral Source Rule

A

Defendant’s benefit (prevents double recovery)

Payments made to the plaintiff by the plaintiff’s insurer are not considered payments from a collateral source and are generally credited against the defendant’s liability, reduceing their obligation to pay. unless there is a right of subrogation or reimbursement.

  • plaintiff can recover premiums paid though
33
Q

Florida Personal Injury Protection Insurance (PIP)

A

Covers the owner of the policy (not others) while operating the vehicle
* NO FAULT insurance = even if owner caused the accident
* covers up to $10,000 in medical bills
* Owner must begin treatment within 14 days to recieve benefits

Good for DAMAGES section

34
Q

Florida Pain and Suffering Damages in Automobile Crashes

frequently tested

A

Plaintiff can only recover these if the injury is permanent in nature.

  • Soft tissue - no
  • Broken bones, scares - yes

if there is a medical report or something of the like stating something along the lines of “P is 99% healthy/restored” then that may show that it’s permanent. (clarify with teacher on this)

35
Q

Florida Joint and Several Liability

ALWAYS INCLUDE in essays when there is more than one defendant

A

MBE rule = J+S applies, can collect all damages from one defendant

ABOLISHED in Florida
* Defendants are only liable for their percentage of fault

EXCEPT with regard to intentional torts.

  • A defendant who pays more than his proportional share of fault has a right of contribution.

ALWAYS INCLUDE in essays when there is more than one defendant

36
Q

Florida Tort Immunities: Husband-Wife Immunity

usually in a Family Law Q

A

Abolished in FL

37
Q

Florida Tort Immunities: Parent-Child Immunity

A

No immunity in sex cases (can sue)

In other cases,
Immunity waived to extent of liability insurance coverage

  • Max recovery is the policy limit.
38
Q

Florida Tort Immunities: State Sovereign Immunity

A

Florida has partially abolished.

STATE LIABILITY – NEGLIGENCE

  • The State of Florida is liable for injury to property, persons, or death caused by its employee’s negligent act or omission, as long as the employee was acting in the scope of employment

Plaintiff can sue the state for personal injury up to (verify)
* 200k per plaintiff and
* up to 300k per case total

Personal liability of state employees – MALICIOUS, RECKLESS DISREGARD

Employees of the state are personally liable for their negligence within the scope of their employment when the act:

  • In bad faith;
  • With malicious purpose; OR
  • In willful and wanton disregard of
    the safety of others.
39
Q

Florida Damages > Two basic types of damages

ALWAYS DISCUSS DAMAGES ON TORTS ESSAYS
* literally copy the “damage” facts from the question into the answer

A

1) 2 types
Economic (money already paid out)
Non-economic (Pain and Suffering)

ALWAYS DISCUSS DAMAGES ON ESSAYS
* literally copy the “damage” facts from the question into the answer

40
Q

FL Damages > 1) Punitive damages 2) Requirements 3) Limits

A

1) PUNATIVE DAMAGES Available in intentional tort actions at jury’s discretion

  • intentional torts will satisfy the mental state for punitives

Punitive damages awarded when person acted (mental state):
* intentionally
* willful, wanton, gross misconduct

2) REQUIREMENTS

a) If the case does not involve respondeat superior, plaintiff must:

i) Plead them
ii) Establish by clear and convincing evidence that defendant was personally guilty of gross negligence

  • Gross negligence: Conduct so reckless or wanting in care that it constituted conscious disregard or indifference

b) If the case involves respondeat superior, plaintiff can only get punitive damages against the employer if plaintiff establishes:

i) Employee was guilty of intentional misconduct OR gross negligence; AND

ii) Employer:

  • actively or knowingly participated in the employee’s misconduct;
  • Ratified, condoned, or consented to the conduct; or
  • Engaged in gross negligence contributing to the injury

3) LIMITS OF PUNATIVE DAMAGES

Presumed unreasonable if exceed the GREATER of:

  • 3x the compensatory damages
  • $500,000 or
41
Q

Self Defense and the FL “Stand Your Ground” Rule

A

Common Law Rule— Focus for self-defense is on reasonableness of the conduct in response to provocation

  • A person has a privilege to use self-defense and may use (i) reasonable force, when she (ii) reasonably believes it is necessary, so long as the force is (iii) reasonably proportionate to the threat.

Florida Statute § 776 — “Stand Your Ground”

A) Imposes a reasonable belief presumption in some circumstances

PRESUMPTION APPLIES when:

  • 1) Unlawful and forceable entry by the intruder into another’s dwelling, residence, or occupied vehicle; OR the attempted forcible removal of another from a dwelling, residence, or vehicle; AND
  • 2) The person who used force knows or had reason to believe of the unlawful and forcible entry.

Does not apply when:

  • The person against whom force was used had a legal right to be in the dwelling, residence, or vehicle
  • Person against whom force is used is attempting forcible removal of their child, grandchild, or one over whom they have lawful custody
  • unlawful activity taking place in the dwelling, residence, or vehicle by the person using force
  • The person against whom force is used is a law enforcement officer and the person using force knew or reasonably should have known

B) No duty to retreat prior to using deadly force if person:

  • Is where they have a right to be;
  • Is not engaging in criminal activity; and
  • Reasonably believes it necessary to prevent (i) death or great bodily harm to themself or another OR the commision of a forceable felony (BARK)

C) Immunity

  • Actual immunity (not just a defense) from civil suits where justifiable force was used
  • Defendant will get attorneys’ fees paid if found immune
42
Q

Florida: Shopkeeper’s Privilege

A

In Florida, a merchant (or law enforcement officer, farmer, or transit agency employee) with probable cause to believe that

(i) a theft, trespass, or unlawful use or attempted use of any antishoplifting or inventory control device or countermeasure has been committed and
(ii) the property may be recovered by taking the offender into custody,

may detain the offender in a reasonable manner and for a reasonable time. A law enforcement agent must be called to the scene immediately after the person is detained. Fla. Stat. § 812.015 (3)(a).

Probable cause exists when an antishoplifting or inventory control device is activated while a person attempts to exit an establishment or protected area. Sufficient notice must be posted to advise patrons that such a device is being used.

43
Q

Ethics Issues in Florida Torts: Contingency Fees

A

Contingency fees in Florida must:
1. Be in Writing
2. Be signed by Client
3. Contain statement of client’s rights
4. be cancelable within 3 days

44
Q

Ethics Issues in Florida Torts: Solicitation of Clients

A

Can NEVER solicit clients in person (face to face)

Remote solicitation ALLOWED
* Exception: Personal injury cases, must wait 30 days

FL Bar Exam (21 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions