Florida Torts Flashcards
*T/F: Florida has abolished implied assumption of risk?
True.
*Because FL has abolished implied assumption of risk, traditional fact patterns that would involve assumption of risk are broken down into 2 categories through which a D can seek some protection:
- When the D has only a limited duty to the plaintiff because of plaintiff’s knowledge of the risks, a court may protect the defendant simply by holding that the D did not breach his limited duty of care OR
- If the P has behaved unreasonably, the P is contributory negligent and damages will be apportioned under the state’s comparative negligence statute.
misrepresentation (tires example)
misrepresentation (tires example)
A misrepresentation of fact arise when a representation by the seller about the product induces reliance by the buyer. In product cases, liability for misrepresentation is usually based on strict liability, but may also arise for intentional and negligent misrepresentation. As long as a defendant is a seller engaged in the business of selling such products, there is no need to show fault on the D’s part.
The plaintiff need only show that the representation proved false without regard to the defendant state of mind. For intentional representations,
P has to establish:
INTENTIONAL
(1) misrepresentation by D in business or personal capacity
(2) representation was made knowingly or with reckless disregard for the facts
(3) intent to induce P’s reliance on the representation (4) causation-actual reliance (reliance shows actual cause)
(5) justifiable reliance (may be found if the representation was a substantial factor in the purchase, even though not the sole inducement)
6) damages (pure comparative negligence)
NEGLIGENT- (knowledge need not be proved)
(1) misrepresentation
(2) by D in business or professional capacity
(3) breach of duty toward P (material misrepresentation (concerning quality, nature, or appropriate use of the product on which a normal buyer maybe expected to rely; Puffing and stmts of opinion are NOT sufficient.
duty of care owed ONLY to those persons to whom the representation was made or to specific persons who D knew would rely on it. Foreseeability that the statement will be communicated to a third party generally does not suffice for negligent misrepresentation UNLESS D knew or should have known P would communicate the representation to others who would rely on it.)
(4) causation (reliance shows actual cause)
(5) justifiable reliance by P (D must have intended to to induce the reliance of the buyer, or a class of persons to which buyer belongs; Evidence of a representation made to the public by label, advertisement, or otherwise is sufficient to show an intent to induce reliance by anyone into whose hands the product may come; liability attaches only if the reliance by the particular P could be contemplated; could be substantial even though not the sole inducement)
(6) damages (pure comparative negligence)
*In FL, express warranty does not require _____; however, in FL horizontal privity applies to implied warranties of merchantability and fitness do.
privity
(So if X got injured on Y’s boat due to a crappy rope and Y bought the rope from the Marina, X can sue the Marina under express warranty theory, and implied warranties of fitness or merchantability).
Plaintiffs in products liability cases may have several possible theories of liability available to them, including (1) ___, (2) ___, and (3) ___.
Under ANY theory, the plaintiff must show that the ___ was ___ when the product ___ the defendant’s ___ .
PLAINTIFFS in products liability cases may have several possible THEORIES of LIABILITY available to them, including (1) negligence, (2) strict liability, and (3) breach of warranties (express or implied).
Under ANY theory, the PLAINTIFF must show that the PRODUCT was DEFECTIVE when the product LEFT the defendants CONTROL.
Negligence in Products Liability: The duty of care arises when the ___ engages in the ___ conduct associated with being a ___ ___ of products. The ___ of ___ is owed to any ___ plaintiff.
The duty of care is owed to any foreseeable plaintiff - USER, CONSUMER OR BYSTANDER. Lack of privity is not a defense.
D’s conduct must fall below the standard of care expected of a reasonable person under like circumstances, considering the superior skill or training D has or purports to have.
Negligence in Products liability:
To prove breach, the ___ must show (1) ___ (2) ___
There are TWO main categories of defects - design and manufacturing:
A product is defectively manufactured or defectively
designed if it is dangerous beyond the expectation of the ordinary customer because of a departure from its intended design
Establishing Negligence Resulting in MANUFACTURING Defect -
Establishing Negligence Resulting in Defect -
To prove BREACH, the P must show (1) NEGLIGENT conduct by the D leading to (2) the SUPPLYING of a defective PRODUCT.
There are TWO main categories of defects - design and manufacturing:
A product is defectively manufactured or defectively
designed if it is dangerous beyond the expectation of the ordinary customer because of a departure from its intended design
Establishing Negligence Resulting in MANUFACTURING Defect -
To show Negligence Resulting in MANUFACTURING Defect, the P may invoke res ipsa loquitur against the manufacturer if the error is something that does not usually occur without the negligence of the manufacturer.
Establishing Negligence Resulting in Defect -
To show D’s negligence has resulted in a defect, P must show that those designing the product knew or should have known of enough facts to put a reasonable manufacturer on notice about the dangers of marketing the product as designed. Negligence is not shown if the danger of the product becomes apparent to the reasonable manufacturer only after the product has reached the public.
Negligence in Products liability:
The defendant must be the actual and proximate cause of the injury. With regard to ___ cause, ___ ___ the defendants conduct, the injury would ___ have occurred.
As to PROXIMATE cause, P must establish that the ____ was _____, not caused by ______ _____forces.
The D must be the ACTUAL and PROXIMATE cause of the injury. With regard to ACTUAL cause, BUT FOR the defendant’s conduct, the injury would NOT have occurred.
As to PROXIMATE cause, P must establish that the harm was foreseeable, not caused by unforeseeable intervening forces.
Negligence in Products liability:
Government Standards Test
In Florida, there is a ___ ___ that the product is not ___ or ___ ___ and the manufacturer is ___ liable if, at the ___ the unit was ___ to the ___ purchaser, the aspect of the product that allegedly caused the harm (1) ___ (2) ___ and (3) ___ .
Similarly, it applies a rebuttable presumption that a product is ____ defective if it _____ comply with mandatory government safety standards.
In Florida, there is a REBUTTABLE PRESUMPTION that the product is NOT DEFECTIVE or UNREASONABLY DANGEROUS and the MANUFACTUERER is NOT liable IF, at the TIME the unit was SOLD to the INITIAL purchaser, the ASPECT of the product that allegedly caused the harm:
(1) COMPLIANCE with federal OR state CODES and STANDARDS relevant to the EVENT causing the death or injury,
(2) the codes or standards were DESIGNED to PREVENT the type of HARM that occurred AND
(3) COMPLIANCE with the codes or standards is REQUIRED as a condition for SELLING or DISTRIBUTING the product.
Similarly, it applies a rebuttable presumption that a product is NOT defective if it DOES comply with mandatory government safety standards.
Strict Product Liability three categories of defects
There are three categories of defects: (1) manufacturing defects (2) design defects AND (3) inadequate warning
Strict Product Liability:
GENERAL ELEMENTS
SUBISSUES
Design defect means
Manufacturing defect means
Inadequate warning
To establish a prima facie case in products liability based on strict liability in tort, the following elements must be proved: (1) the D is a COMMERCIAL SUPPLIER (2) the D PRODUCED or SOLD a defective product (3) ACTUAL and PROXIMATE cause and (4) DAMAGES.
The DUTY of CARE arises when the DEFENDANT engages in the AFFIRMATIVE conduct associated with being a COMMERCIAL SUPPLIER of products. Strict liability applies when the D is a manufacturer, retailer, assembler, or wholesaler.
To hold the commercial supplier strictly liable for a product defect, the PRODUCT must have REACHED the user or consumer WITHOUT SUBSTANTIAL change in the condition in which it is supplied.
PRIVITY is not required. Courts extend the liability to any supplier in the chain of distribution and extend the protection not only to buyers, but also to members of the buyer’s family, guests and employees of the buyer.
To establish LIABILITY, P need NOT prove the D was at FAULT in selling or producing a defective product; he needs to prove ONLY that the product is SO DEFECTIVE AS TO BE UNREASONABLY DANGEROUS.
To establish the product was UNREASONABLY DANGEROUS due to a DESIGN defect, courts apply the CONSUMER EXPECTATION TEST: the design is defective if it was DANGEROUS BEYOND THE EXPECTATION OF THE ORDINARY CONSUMER.
To prove ACTUAL causation, the P must TRACE the HARM, suffered to a DEFECT in the product that existed when the product left the supplier’s control.
As to PROXIMATE cause, P must establish that the harm was foreseeable, not caused by unforeseeable intervening forces.
___________
A retailer may be liable for a manufacturing or design defect simply because it was a commercial supplier of the defective product even if it had no opportunity to inspect the manufacturer’s product before selling it.
- DESIGN defect means the design itself was faulty/defective. the design is defective if it was dangerous beyond the expectation of the ordinary consumer
- MANUFACTURING defect means the design was fine, but they built it incorrectly/not according to that design. Product failed to conform to its intended design.
- Lack of ADEQUATE WARNING P is entitled to a presumption that and adequate warning would have been read and heeded. (argue product still dangerous if adequate warning was given)
DAMAGES - pure comparative negligence - medical expenses, possible lost earnings and loss of future earning capacity and possible pain and suffering.
DISCLAIMER - Any disclaimers of liability that might have been on the product would be irrelevant when personal injury or property damage has occurred.
Strict Product Liability:
To establish liability, the plaintiff must only prove
To establish LIABILITY, the P must only prove that the product in fact is SO defective as to be UNREASONABLY DANGEROUS.
Strict Product Liability:
To prove causation, the plaintiff must…
To prove CAUSATION, the plaintiff must TRACE the HARM suffered to the DEFECT in the product that existed when the product left the defendants control.
As to PROXIMATE cause, P must establish that the harm was foreseeable, not caused by unforeseeable intervening forces.
Strict Product Liability:
Another argument is ___ ___ on the part of the ___ . A product must have ___ and ___ warnings of any ___ that may ___ be ___ to users.
Another argument is inadequate warning on the part of the defendant. A product must have clear and complete warnings of any dangers that may not be apparent to users.
Tort Plaintiffs sensitivities
Ignore the plaintiff’s extreme sensitivity. assume that the person is an ordinary person
• Ignore incapacity
o in intentional tort problems there is no Incapacity defenses so they could be charged with an intentional tort if they commit. Someone like a minor or someone incapacitated or intoxicated
• Transferred intent
o a person will be held liable even if the tort that results is different from the tort he intended to commit at the beginning of the story.
A person will be held liable if the victim is a different person than that person he meant to effect
BATTERY elements
Battery Voluntary, INTENTIONAL act that CAUSES a HARMFUL OR OFFENSIVE CONTACT of another person or anything connected to that person.
o Transferred Intent applies.
In battery, offensive touching is taken from the perspective of what type of plaintiff
Swapping the word unpermitted for offensive; Unpermitted is taken from the perspective of a person of ordinary sensitivity; Hypersensitivity Of that person is disregarded
The first settlement regarding event of contact: This question is usually tested based on offensive contact
In a battery, what does harmful mean?
Harmful means it breaks a bone that makes you bleed send you to the hospital
In battery, the second element has to do with…
elements:
a. The plaintiff must show that the defendant committed harmful or offensive contact
b. That contact must be with plaintiff’s person
anything a plaintiff is holding or touching Or carrying
a. Someone taking a purse from your hands but didn’t touch you is still a battery
b. A lady on the horse ask a man in a car for directions and the man slaps the horse on the rear That was an offensive touching of the rider because the horse is part of the person
Hypothetical Number One: Defendant Taps plaintiff on the shoulder to ask where the restroom is plaintiff freaks out and sues defendant for battery. At court plaintiff testifies credibly that he was genuinely offended by the touching and the jury believes it. Will plaintiff win?
No, A hypersensitive person that has a phobia; The test of offensiveness Is whether a touching would be permitted by a normal person. An ordinary person would be okay with the tap on the shoulder.
ASSAULT- Elements
Voluntary, INTENTIONAL act that CAUSES a REASONABLE APPREHENSION of IMMINENT harmful or offensive contact.
o Transferred intent applies.
ASSAULT 2) Apprehension: Synonym for
knowledge and understanding
, you have to ____ ____ ____ but it’s not require that you be ____; Using the word ____ on the essay portion of the exam is going to get you more points
For the knowledge part of apprehension, you have to see it coming but it’s not require that you be afraid; Using the word apprehension on the essay portion of the exam is going to get you more points
ASSAULT
For the knowledge part of apprehension (example)
The plaintiff has to have a reasonable knowledge a reason to know. It is reasonable to think that somebody has ammunition inside of a gun and if he doesn’t we would go with the reason I was thinking standard;
ASSAULT
____ ability creates ____ apprehension so if it looks like you could do it then plaintiff would be reasonable to think you could do it
Apparent ability creates reasonable apprehension so if it looks like you could do it then yeah plaintiff would be reasonable To think you could do it
Apprehension must be linked to the immediacy factor of element 2. Explain
a. Plaintiff must show that the defendant placed plaintiff in reasonable apprehension
b. that must be of an immediate battery
Words alone lack immediacy; a naked verbal threat is not enough; Talk is cheap once you make a move it becomes immediate; the conduct must be a menacing gesture may be displaying a weapon even to draw your hand back to slap or wave a fist
assault
words and immediacy of a battery
a. Words alone lack immediacy; a naked verbal threat is not enough; Talk is cheap once you make a move it becomes immediate; the conduct must be a menacing gesture may be displaying a weapon even to draw your hand back to slap or wave a fist
assault
words that deny the immediacy of a battery
i. lifting your arm and saying if you weren’t my best friend I’d slap you silly you are not an immediate apprehension you have knowledge you will not be hit because my words said if you were not my best friend then there’s no intention to complete the gesture
ii. promising action in the future lifting your hand and saying watch tomorrow I’m going to hit you that’s not enough because of that immediate
iii. give the words the natural effect when it’s together with a gesture
False imprisonment elements
Voluntary, INTENTIONAL act that CONFINES a person WITHIN FIXED BOUNDARIES, AGAINST THEIR WILL, WITH NO REASONABLE MEANS OF ESCAPE.
False imprisonment
The defendant must commit an act of restraint. explain
a. threats are sufficient to be an act of restraint; Let’s say the defendant says he’s going to shoot you if you get out of the room but leave the door wide open you’re still afraid so you stay in the room that is considered false imprisonment because threats are sufficient to be an act restraint
i. It must be a threat to operate and a mind of a reasonable person; If I threaten to turn you into a unicorn and I bring out my magic wand that is unreasonable and thus I hypersensitive persons perception is not going to be valid only reasonable person stand
False imprisonment
Knowledge and intent
o Person must KNOW they are being confined; defendant MUST INTEND to confine them.
False imprisonment
An omission can be an active restraint if there was a pre-existing duty
example…
Taking a handicapped person on a plane and not leading her out is an act of false imprisonment because the airline had a pre-existing duty to wheel her out once the plane landed
False imprisonment confinement in a bounded area
a. if the area is not fully bounded if there’s a reasonable means of escape that the plaintiff can reasonably discover then there is no claim that means area is not bound
i. if the way out is humiliating discussing, dangerous, or hidden then there really is no way out
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
elements
To establish a prima facie case for intentional infliction of emotional distress in Florida, the following elements must be proved:
(1) an act by the defendant amounting to extreme and outrageous conduct,
(2) intent on the part of the defendant to cause the plaintiff to suffer severe emotional distress, or recklessness as to the effect of the defendant’s conduct
(3) causation (D’s conduct was the actual and proximate cause of emotional distress and intro evidence) and
(4) damages in the form of severe emotional distress.
- Physical impact or manifestation of psychological trauma is not required to state a claim.
- Outrageous conduct is such that transcends all all bounds of decency tolerated by society
IIED - recklessness or intent
1) Reckless contact will suffice not intentional
a. This is the only one that does not require intent
IIED
a. the definition on the restatement says conduct is outrageous if …
a. the definition on the restatement says conduct is outrageous if it exceeds all bounds of decency tolerated in a civilized society
b. Mere insults are not outrageous and cannot trigger but if connected to some actions May trigger
Think of a member of a fragile class…
- like little children, elderly people, and pregnant women ( do you have to know that the woman is pregnant for this to apply)
iv. Defendant has knowledge that the plaintiff has some psychological weakness exploiting this can be deemed outrageous
Outrageous can be
my outline - continuous or repetitive
IIED - Physical Impact and severe distress
o In Florida, physical impact or physical manifestation of psychological trauma IS NOT required for a valid claim – same as MBE.
a. no Particular type of evidence is required
b. Physical impact or physical manifestation is not required to state a claim; Maybe you miss work and that would work but it’s not mandatory to prove
c. severe distress is a judgment call; The examiners will tend to take the severe portion or at least an element and change it on one word and say the plaintiff will sue on a intentional emotional distress. They’ll tell you that the plaintiff is mildly distressed which is the complete opposite of the law so pretty small subtle changes; they will write an antonym to negate the requirement
IIED
Exception to Outrageous
@@@CHECK THIS
Innkeeper exception: If a representatives of a hotel or company try to distress a customer almost anything they do will be labeled outrageous
NIED - Negligent Infliction of Emotional Distress
Must be in zone of danger and have physical impact.
1) Plaintiff must be within the ZONE OF DANGER; AND
2) The defendant’s conduct must CAUSE the plaintiff emotional distress that MANIFESTS ITSELF IN PHYSICAL SYMPTOMS – need a physical impact!
CMR - Florida generally required therapy in actual physical impact to state a claim. there are, however, exceptions when emotional distress is the primary forseeable consequences of a freestanding tort.
NIED - if Bystander not in Zone of Danger: In Florida, the plaintiff MUST:
Bystander cases
= distinctions rule pg 9
In Florida, the plaintiff MUST:
1) Have a close personal relationship to the DIRECTLY injured person;
2) Be involved in some way in the event causing the negligent injury;
3) Suffer a PHYSICAL INJURY caused by the psychological trauma.
• For MBE: only need closely related; plaintiff present at scene; plaintiff personally observed or perceived the event.
o Defendant CAN be found liable for NIED IF:
Misdiagnose and provide false report relative has died OR mishandle relative’s corpse.
CMR
Florida requires that: (1) the plaintiff must suffer a physical injury caused by the psychological trauma; (2) the plaintiff must be involved in some way in the event causing the negligent injury to another; AND (3) the plaintiff must have a close personal relationship to the directly injured person.
TRESPASS TO LAND
1) Elements
Voluntary, INTENTIONAL act in which a person PHYSICALLY INVADES/INTERFERES with another’s land OR causes another to do so without the land owner’s permission.
o Intent ONLY refers to intent to enter the property; NO need to KNOW you are on it.
o Land includes the air above and the soil immediately below/above.
o Throwing something onto the land is a trespass as well.
a. an airplane does not trespass because it is in such distance above the property
b. The ball going through the air above your land but never touching the ground is still trespass
TRESPASS TO LAND
2) 2 ways of physical invasion
a. enter the plane of property but it could be in a vehicle or bicycle horse walk
i. the defendant doesn’t have to know that he crossed a boundary line;
ii. he doesn’t need to know he could still be charged with trespass to land even if he doesn’t know he’s crossing someone else land
1. The intent requirement has nothing to do with knowledge but the intent to actually step and walk Into the location on purpose
2. Falling on somebody’s property because you have a heart attack doesn’t mean that you are trespassing or if you lose control of your horse that doesn’t count
b. Throwing something in someone’s land
i. trespass it cannot be intangible like a light or sound of a noise are the smell is that a physical Invasion because senses are not tangible these may be nuisance but not trespass
SIX TRESPASS TO CHATTEL
Voluntary, INTENTIONAL act that INTERFERES WITH AN OWNER’S RIGHT OF POSSESSION in the chattel (personal property) and impairs the condition of the chattel.
o Dispossesses the owner for a substantial period of time.
o Here, damage is limited to cost for repair.
o Mistake over ownership of the item IS NOT a defense – transferred intent!
SEVEN - CONVERSION
Voluntary, INTENTIONAL act that CAUSES interferes with an owner’s right of possession that defendant would be required to pay the full value. Permanently deprives owner of beneficial use and enjoyment.
o Remedy - full value (operates as a forced sale) – FMV at time tort committed!
TRESPASS TO CHATTEL AND CONVERSION
Interference means…
Interference means damage to property or to take away the property and deprive the owner of it
b. These are civil liability actions for damaging property which would be vandalism and Theft
TRESPASS TO CHATTEL AND CONVERSION
the difference between both trespass to chattel and conversion is the degree of ____
the difference between both trespass to chattel and conversion is the degree of interference
Mistake Is no difference
Conversion - recovery
victims of a conversion can recover the full market value of the item this is a special remedy and that’s why both of these are separated
conversion operates as a forced sale; If you steal it it’s like you bought it so you have to pay full price
-Defenses to Intentional Torts
POPCANS:
POPCANS: Privilege, Defense of Others, Defense of Property, Consent, Authority, Necessity, Self Defense.
DEFENSES TO INTENTIONAL TORTS
CONSENT
a defense for all seven of the intentional torts
Consent Showing a willingness to submit to defendant’s tortious conduct.
o Consent can be expressed or implied by custom, conduct, words, or law.
o Expressed consent – watch out for express consent by fraud or duress
o Implied consent – by custom/usage or by reasonable interpretation/body language.
o Conduct must comply with SCOPE of consent.
CHECK THIS
DEFENSES TO INTENTIONAL TORTS
plaintiff does not have legal capacity if ____ or ____ ____ cannot give a valid consent
plaintiff does not have legal capacity if drunk or mentally ill cannot give a valid consent
there are things that these people can consent to but it is particular to the age such as minors to wrestle or incapacitated person to get a haircut if it’s beyond their scope of understanding then they cannot consent
DEFENSES TO INTENTIONAL TORTS
expressed consent
a. Plaintiff giving permission to the defendant for behaving in a way that might otherwise constitute a tort
b. Examination tip: Consent obtained by fraud or duress Is invalid and will not bar a claim
DEFENSES TO INTENTIONAL TORTS
Implied consent - 2 VIP points
more heavily tested
a. through custom or usage this means that A plaintiff goes to a place or engages in a routine and invasions are typical
b. Defendant’s reasonable Interpretation of plaintiff’s objective conduct
DEFENSES TO INTENTIONAL TORTS
I. example of
through custom or usage this means that A plaintiff goes to a place or engages in a routine and invasions are typical
II. example of
Defendant’s reasonable Interpretation of plaintiff’s objective conduct
I. Contact Sports -it is it customary part of the game to get shoved around playing football so you can send to this Invasion because it is typical under the circumstances
II. Body language consent; Read the circumstances and come to a rational Inference; consider context
DEFENSES TO INTENTIONAL TORTS
if defendant Exceeds the scope then the defendant is liable
a. Walking into the grocery store in comparison to going to the back where the produce is you’re trespassing back there but not in the grocery store itself
b. an operation that goes beyond the extent of where they were going to operate initially
Self Defense
Elements…
CHECK THIS…
a. the threat must be in progress or imminent;
i. a real-time reaction In the Heat of the Moment; something too soon or something too late will be the wrong answer
b. have a reasonable belief that this is a genuine or authentic threat
i. you will Still have a defense if you make an error about the threat So long as it Is a reasonable error
c. limit yourself to Necessary Force
i. it has to be proportional
ii. and Life-threatening situation you may use deadly force in response
Threat comes from the defendant
Upon REASONABLE BELIEF of attack, may use such force as is REASONABLY NECESSARY to prevent injury – must be proportionate; cannot retaliate.
o In Florida, a person who is not engaged in criminal activity and who is lawfully present in a place has NO DUTY TO RETREAT and has a right to USE or THREATEN to use deadly force IF REASONABLY BELIEVE IT IS NECESSARY to prevent death or great bodily harm to oneself, another, or prevent commission of a forcible felony.
o In Florida, presumed to have a reasonable fear of death or great bodily harm and therefore entitled to use deadly force if someone has entered or is attempting to enter an OCCUPIED DWELING OR VEHICLE.
DEFENSE
Defense of Others
Elements…
3rd party can come in & defend someone if they REASONABLY BELIEVE person being aided would have the right of self-defense.
o Same rules for force and reasonable belief from SELF-DEFENSE apply to defense of others.
o In Florida, a person who is not engaged in criminal activity and who is lawfully present in a place has NO DUTY TO RETREAT and has a right to USE or THREATEN to use deadly force IF REASONABLY BELIEVE IT IS NECESSARY to prevent death or great bodily harm to oneself, another, or prevent commission of a forcible felony.
o In Florida, presumed to have a reasonable fear of death or great bodily harm and therefore entitled to use deadly force if someone has entered or is attempting to enter an OCCUPIED DWELING OR VEHICLE.
DEFENSE
Defense of Property
may use REASONABLE FORCE to prevent tort against your property.
o Limited to preventing COMMISSION of the tort.
o Once defendant dispossesses you CANNOT use force to recapture it.
o In Florida, use of force – except deadly force – is justified to protect a person’s property upon REASONABLY BELIEF that such force is NECESSARY to prevent commission tortious or criminal interference with the property.
EXAMPLES:
You cannot use deadly force to defend your property such as a laptop. you can go after the person take it away from them you won’t be charged for battery even though it that which is taken is part of their person but you have a defense is defense of property;
You can’t use deadly force nor can you put some kind of device on properties to prevent theft which would it then injure the person trying to steal
DEFENSE
False Imprisonment
Exception:
Shopkeepers privilege says
Exception: Shopkeepers Privilege
Shopkeepers may have a privilege to detain for investigation IF:
1) Have a reasonable belief of theft
2) Detain in a reasonable manner and only nondeadly force can be used
3) Detain only for a reasonable period of time and ONLY for the purpose of making an investigation.
o In FL, Shopkeepers privilege extends to FARMERS and; MASS TRANSIT agents.
• Shopkeeper may be held liable for any unreasonable means of detention!
DEFENSE
Necessity
MAY commit tort when it is REASONABLY & APPARENTLY NECESSARY to avoid threatened injury from natural or other force AND threatened injury is SUBSTNATIALLY more serious than invasion to avert it.
o Only deals with PROPERTY TORTS.
DEFENSE
Public Necessity
o Public Necessity: Act is for the public good. Property tort in an emergency to protect the community as a whole (or a significant group of people).
If public necessity NO LIABILITY; TOTAL DEFENSE.
DEFENSE
Private Necessity
o Private Necessity: Property tort in an emergency to protect a limited # of people or self-interest.
If private necessity PARTIAL DEFENSE; liable for damage to property if any. If you don’t do any damage in saving yourself, then no liability for trespass.
CHECK THESE
There are three legal consequences to this
- the defendant is obligated to pay for any harm he actually does in compensatory damages
- If you don’t do any damages your technical tort is ignored in there no liability for nominal or punitive damages
- The defendant has a privilege to enter and remain in the property and he cannot be thrown out So long as the emergency continues
a. Sometimes you have to tolerate a trespasser in an emergency situation and if you kick them out you will be liable for where they are injuries
DEFAMATION
Elements
A claim for defamation requires:
1) A defamatory statement (false statement of fact) by the defendant;
2) of or concerning the plaintiff;
3) with publication to a 3rd person;
4) that causes damage to the plaintiff’s reputation or economic well-being.
5) falsity of the statement
6) requisite fault by the defendant
If the P is a private person rather than a public figure, the P must show that the defendant acted at least negligently.
DEFAMATION
In Florida, all defamation actions require proof of ____ and ____ - ____ or ____ ____ of the truth w/ intent to injure plaintiff.
In Florida, all defamation actions require proof of FALSITY and FAULT - Knowledge or reckless disregard of the truth w/ intent to injure plaintiff.
In Florida all actions for a tort that does not cause the victim’s death will survive the death, including actions for intangible personal torts such as defamation
DEFAMATION
Explain libel and slander
Libel - Written or printed publication of a defamatory statement.
o Radio/TV falls in this category!
Slander - Spoken defamatory statement; injury to reputation is not presumed; Plaintiff MUST prove special damages UNLESS the statements fall within slander per se – defamatory statements that:
1) Adversely reflect on one’s conduct in a business or profession;
2) One has a loathsome disease;
3) one is guilty of a crime involving moral turpitude (most CL crimes);
4) Unchastity of a woman.
DEFAMATION
Explain Public Person or Public Concern
Explain Private Person
CHECK CMR pg 4 of torts distinctions
actual or express malice?
- Public Person or Public Concern – Defendant MUST have acted with ACTUAL MALICE = knowledge of falsity or acted in reckless disregard of the truth.
o Clear and Convincing evidence of MALICE.
o Harder for public figure to prevail on defamation.
o Constitutional free speech considerations for public matters. - Private Person – Defendant must simply act with NEGLIGENCE of the truth.
DEFAMATION
Florida Notice Requirement for civil action for publication or broadcast of libel or slander
In Florida, AT LEAST 5 days before the filing of a civil action for publication or broadcast of libel or slander, plaintiff MUST serve WRITTEN NOTICE on the media defendant specifying the alleged false AND defamatory statement.
o If the media defendant FULLY RETRACTS the statement within 10 days from RECIEPT OF NOTICE, and original statement was made IN GOOD FAITH, then ONLY ACTUAL DAMAGES may be recovered.
Defenses to Defamation
CHECK CMR pg 4 of torts distinctions
actual or express malice?
o Consent - COMPLETE defense to defamation.
o Truth - Truth of the statement is a COMPLETE defense.
o Absolute Privilege – can never be lost - Remarks made during a judicial proceeding; by federal executive officials; in “compelled” broadcasts; between spouses.
o Qualified Privilege - The existence of a qualified privilege requires that the communication be (1) made in good faith (2) by one with an interest or duty regarding the subject-matter (3) limited to such interest or duty in scope (4) given appropriately and (5) made in a proper manner
- A qualified privilege exists only if exercised in a reasonable manner and for a proper purpose and will be lost if the speaker acted with malice which FL establishes by a preponderance of the evidence that the speaker’s primary motive for the statement was an intention to injure the plaintiff.
can be lost through abuse - Reports of official proceedings; statements in interest/defense of publisher; statements in the interest of the recipient; statements in the common interest of the publisher and recipient.
- In FL, the “malice” sufficient to defeat a qualified privilege is common law express malice, rather than New York Times actual malice. EXPRESS MALICE is present when the primary motive for the statement is shown to be an intention to injure the plaintiff. The NY Times standard of proof for actual malice is clear and convincing evidence. HOWEVER, to overcome a common law qualified privilege, a plaintiff is only required to demonstrate EXPRESS malice by a preponderance of the evidence
CAN be lost through abuse IF the statements ARE NOT within the scope of the privilege OR it is shown that the speaker acted with actual malice.
Invasion of Right of Privacy
In Florida, a claim for invasion of right to privacy based on ___ of facts placing plaintiff in ___ ___ is ___ recognized.
However, invasion of ___ claims include:
1) ___
2) ___
3) ___
In Florida, a claim for invasion of right to privacy based on publication of facts placing plaintiff in FALSE LIGHT is NOT recognized. However, invasion of privacy claims include:
1) Appropriation of plaintiff picture or name for unauthorized commercial advantage
2) Intrusion on plaintiff’s affairs or seclusion – highly offensive to reasonable person.
Public Disclosure of Private Facts about plaintiff.
NEGLIGENCE
Prima Facie case requires
P may assert a negligence claim against D. To establish
a prima facie case for negligence, P must establish: (i) the existence of a duty on the part of D to protect P against an unreasonable risk of injury; (ii) breach of that duty by D;
(iii) that the breach of duty was an actual and proximate cause of P’s injury; and (iv) damage
suffered by P.
NEGLIGENCE
A duty is owed only to ___ plaintiffs. All persons have a duty to exercise ___ ___ in the manner that an ___ , ___ ___ PERSON would in same or similar circumstances.
PRIMA FACIA ONE DUTY
SPECIAL DUTIES OF CARE THAT SUPPLANT THE PRUDENT PERSON:
THERE ARE FIVE FOR THE BAR TO THINK ABOUT:
A duty is owed only to FORESEEABLE plaintiffs. All persons have a duty to exercise REASONABLE CARE in the manner that an ORDINARY, REASONABLY PRUDENT PERSON would in same or similar circumstances.
ONE: NEGLIGENCE CLAIMS ASSERTED AGAINST CHILDREN
TWO: NEGLIGENCE CLAIMS AGAINST PROFESSIONALS:
THIRD SPECIAL DUTY SCENARIO: PREMISES LIABILITY
FOURTH SPECIAL DUTY SCENARIO: PARENTS
FIFTH SPECIAL DUTY SCENARIO: DUTY TO AID
SPECIAL DUTIES OF CARE THAT SUPPLANT THE PRUDENT PERSON:
Children
NEGLIGENCE CLAIMS ASSERTED AGAINST CHILDREN:
Required to conform to the standard of care of a child of like age, education, intelligence, and experience.
• In Florida, a child under 6 years of age is legally INCAPABLE of negligence.
If the child engages in a an adult activity then the standard-of-care reverts back to the reasonably prudent person; There is only one type of adult activity and that is operating a motorized vehicle (motor craft motor boat farm equipment, jet ski, etc.)
SPECIAL DUTIES OF CARE THAT SUPPLANT THE PRUDENT PERSON:
Professionals
Professionals Required to possess and exercise the same level of knowledge, skill, training, education, and experience as a member in good standing of the same profession providing same or similar services.
- In Florida, doctors and healthcare providers have a duty to exercise care based on what is recognized as ACCEPTABLE & APPROPRIATE by REASONABLY PRUDENT similar healthcare providers in light of all relevant circumstances.
- Duty to Disclose Risks of Treatment – Informed Consent In Florida, a provider WILL NOT be liable for failure to obtain informed consent IF the patient EITHER:
1) received enough information so that a reasonable person would have a general understanding of the procedure, alternatives, and risks; OR
2) would have accepted the treatment had he been advised as required.
SPECIAL DUTIES OF CARE THAT SUPPLANT THE PRUDENT PERSON:
Parents
Duty to exercise reasonable care to control minor child so as to prevent the child from intentionally harming others OR creating an unreasonable risk of bodily harm to them, IF parent:
(1) has ABILITY to reasonably CONTROL his child; and
(2) KNOWS OR SHOULD KNOW risk posed by child’s conduct.
• In Florida, parent-child immunity has been abrogated to the extent of liability insurance when an un-emancipated minor sues a parent in negligence for injuries sustained in a motor vehicle accident.
• Florida WAIVES parent-child immunity in the following cases:
1) unemancipated minor sues parent for negligence (but only to extent of available insurance coverage).
2) Minor suing parent for intentional sexual abuse.
SPECIAL DUTIES OF CARE THAT SUPPLANT THE PRUDENT PERSON:
Duty to Aid
Generally NO DUTY to render aid UNLESS you voluntarily do so. Once you undertake aid, you acquire a duty to render aid in a manner that a reasonably prudent person would in same or similar circumstances.
• EMERGENCY SITUATIONS No duty to rescue in an emergency; however, once you undertake that duty, you have a duty to rescue in the manner that a reasonably prudent person would in same or similar emergencies.
• Therefore, if you render aid negligently, you may be held liable for doing so.
SPECIAL DUTIES OF CARE THAT SUPPLANT THE PRUDENT PERSON:
Duty to Aid
(FL Good Samaritan Act )
Florida’s Good Samaritan act, applicable to all persons who gratuitously render aid at the scene of an emergency, is virtually meaningless because the rescuer remains liable for ordinary negligence. If you render aid negligently, still liable.
For example, persons using defibrillators victims in an emergency and health care providers rendering emergency treatment in a hospital are not liable unless they acted with reckless or gross negligence.
SPECIAL DUTIES OF CARE THAT SUPPLANT THE PRUDENT PERSON:
o Duties to those OFF the Premises
In Florida, conditions on a landowner’s COMMERCIAL PROPERTY contributing to injuries to a plaintiff OFF the premises – ordinary negligence analysis regardless of whether the conditions are natural or artificial. (MBE – only have a duty for unreasonably dangerous artificial conditions abutting land; and duty to protect passerby’s)
An owner of commercial property owes a duty to prevent foliage from obstructing drivers’ view of sidewalk when entering/exiting the property.
Rule doesn’t apply to RESIDENTIAL owners UNLESS they permit foliage or other conditions to extend beyond its boundaries.
SPECIAL DUTIES OF CARE THAT SUPPLANT THE PRUDENT PERSON:
o Duties to those on land
What are the five people?
Known Trespassers Unknown Trespassers Licensee Invitee Fire, Fighters and Police
SPECIAL DUTIES OF CARE THAT SUPPLANT THE PRUDENT PERSON:
Known Trespassers
In Florida, a discovered trespasser is one who enters property without express or implied invitation, and whose presence was detected within 24 hours preceding the accident.
• Landowner has a duty to refrain from GROSS NEGLIGENCE or INTENTIONAL MISCONDUCT that proximately causes injury.
• Landowner must warn of KNOWN dangerous conditions unlikely to be discovered.
• If trespasser is legally under the influence of alcohol or drugs, landowner owes NO DUTY to warn but may still be liable for GROSS NEGLIGENCE or INTENTIONAL MISCONDUCT.
o MBE – Duty to warn and make safe Known, Highly dangerous, artificial conditions, that are unlikely to be discovered.
SPECIAL DUTIES OF CARE THAT SUPPLANT THE PRUDENT PERSON:
Unknown Trespassers
NO DUTY to an undiscovered trespasser.
• UNFORESEEABLE plaintiff so no liability for their injuries.
SPECIAL DUTIES OF CARE THAT SUPPLANT THE PRUDENT PERSON:
Licensee
Person who enters land with permission for their OWN PURPOSE OR BUSINESS rather than for landowner’s economic benefit.
• DUTY to warn and make safe KNOWN, dangerous conditions that licensee is UNLIKELY to discover (nonobvious).
• Also use ordinary care in active operations on the property.
• Florida has an invited licensee status – a party has the duty to inspect, warn and make safe
SPECIAL DUTIES OF CARE THAT SUPPLANT THE PRUDENT PERSON:
Invitee
The common law standard of care owed by an owner or occupier of land to those on its
premises is dependent on the classification as a plaintiff.
An invitee is one who entered onto the premises in response to an express or implied invitation of D.
D has a duty to WARN of and MAKE SAFE KNOWN dangerous conditions unlikely to be discovered, to use ordinary care in active operations on the premises, AND to conduct REASONABLE INSPECTIONS to discover dangerous conditions and make them safe.
in Florida, the owner of business premises owes a statutory duty to keep the
premises free from transitory foreign objects or substances that might foreseeably give rise to injury. In
a civil action for negligence as a result of such an object or substance on the premises, the claimant has
the burden of proving that the business had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it. Constructive knowledge may be established by showing
that: (i) the dangerous condition existed for such a length of time that, in the exercise of ordinary care,
the business establishment should have known of the condition; or (ii) the condition occurred with
regularity and was therefore foreseeable.
- Public Invitee person invited to enter the land as a member of the public for a purpose for which the land is held open to the public – public park or hospital.
- Business Invitee person invited to enter property for a purpose connected with the business of the possessor of the land.
SPECIAL DUTIES OF CARE THAT SUPPLANT THE PRUDENT PERSON:
Invitee FL law
• Additionally, Florida statutes require owners of a business to keep the premises free from transitory foreign objects or substances that may FORESEEABLY give risk to injury.
o Plaintiff has the burden to show that the business had ACTUAL or CONSTRUCTIVE notice of the dangerous condition and that they should have taken action to remedy it.
o Constructive Knowledge: 1) dangerous condition existed for such a length of time that exercise of ordinary care would reveal its existence OR 2) the condition occurred with regularity and was therefore FORESEEABLE.
SPECIAL DUTIES OF CARE THAT SUPPLANT THE PRUDENT PERSON:
Fire Fighters and Police
In Florida, a FF or properly identified police officer who LAWFULLY enters premises acquires the status of an INVITEE
• Duty to WARN and MAKE SAFE KNOWN dangerous conditions unlikely to be discovered AND to conduct REASONABLE INSPECTIONS to discover dangerous conditions and make them safe.
SPECIAL DUTIES OF CARE THAT SUPPLANT THE PRUDENT PERSON:
In FL, by statute, there is ____ ____ ____ to a person entering with the ____ to commit a felony in your property. This person is treated as an ____ ____.
In FL, by statute, there is ZERO DUTY OWED to a person entering with the INTENT to commit a felony in your property (unknown trespasser).
Negligence
Attractive Nuisance Doctrine
Heightened duty for trespassing children IF there is an attractive nuisance on the land. Under doctrine, landowner has a duty to exercise ordinary care to avoid reasonably foreseeable risk of harm to children caused by artificial conditions on the property.
• To recover, plaintiff MUST show that:
o 1) there is a dangerous condition present on the land of which the owner is/should be aware,
o 2) the owner knows/should know that children enter the land,
o 3) the condition is likely to cause injury kids aren’t aware of,
o 4) the expense of remedying the condition is slight compared with the risk of harm.
• In Florida, recovery under the doctrine requires that the plaintiff have been LURED onto the premises by the DANGEROUS CONDITION.
Negligence
Breach
A breach of duty occurs when a defendant’s conduct falls below the applicable standard of care.
Negligence
Causation
A plaintiff must show that the defendant’s substandard level of care (breach of duty) was the both the ACTUAL and PROXIMATE cause of the injury to the plaintiff.
An act or omission to act is the ACTUAL cause of an injury when the injury would not
have occurred “BUT FOR” the act.
As to PROXIMATE cause, the defendant is liable for all harmful results
that are the normal incidents of and within the increased risk caused by his acts.
In cases where an
INTERVENING force came into motion after the defendant’s negligent act and combined with it to cause
the plaintiff’s injury, the intervening force does NOT cut off the defendant’s liability if it was FORESEEABLE.
Courts almost ALWAYS view normal responses or reactions to the situation created by the defendant’s
negligent act as foreseeable intervening forces.
Negligence
Types of Causation
o Actual Cause – But-for test: Plaintiff must show that BUT-FOR the defendant’s breach of duty, the injury to the plaintiff WOULD NOT have occurred.
In Florida, when there are concurrent causes that lead to the plaintiff’s injury, anyone of which alone could have caused such injury, the SUBSTANTIAL FACTOR test is used. If either act was a SUBSTANTIAL FACTOR in the injury to the plaintiff, actual cause is present.
o Proximate Cause Plaintiff must show that defendant’s conduct FORESEEABLY increased the risk of injury as to foreseeable plaintiffs within the zone of danger.
Negligence - Causation
Types of Acts
Intervening v. Supervening
o Intervening Act An act subsequent to defendant’s negligent conduct that combines to cause injury to the plaintiff and is FORESEEABLE. Because of its foreseeability, the intervening act DOES NOT cut off the original defendant’s liability.
Examples of foreseeable/non-superseding intervening acts: Subsequent med mal; Negligence of rescuers; Efforts to protect person or property; Reaction forces; Subsequent Disease or accident.
o Supervening Act An act subsequent to defendant’s negligent conduct that causes injury but is UNFORESEEABLE and therefore cuts off and supersedes the original defendant ‘s negligence.
Examples: Intentional tort; Act of God; Criminal Acts.
Negligence - Causation
Types of Acts
Intervening
o Intervening Act An act subsequent to defendant’s negligent conduct that combines to cause injury to the plaintiff and is FORESEEABLE. Because of its foreseeability, the intervening act DOES NOT cut off the original defendant’s liability.
Examples of foreseeable/non-superseding intervening acts: Subsequent med mal; Negligence of rescuers; Efforts to protect person or property; Reaction forces; Subsequent Disease or accident.
Negligence
Causation
Types of Acts
Supervening
o Supervening Act An act subsequent to defendant’s negligent conduct that causes injury but is UNFORESEEABLE and therefore cuts off and supersedes the original defendant ‘s negligence.
Examples: Intentional tort; Act of God; Criminal Acts.
Negligence
Damages
Damages is an essential element of the plaintiff’s prima facie case for negligence,
requiring the plaintiff to present some proof of an actual harm or injury.
The plaintiff can recover
compensation for economic damages, such as medical expenses and lost earnings, and noneconomic
damages, such as pain and suffering. Plaintiff is also entitled to compensation for impaired future
earning capacity, discounted to present value so as to avoid an excess award.
o In Florida, punitive damages ONLY IF the Trier of Fact finds through CLEAR and CONVINCING evidence that the defendant was PERSONALLY guilty of INTENTIONAL MISCONDUCT or GROSS NEGLIGENCE.
Punitive Damages may not exceed the GREATER of 3x compensatory damages OR sum of $500k. EXCEPTION: there are exceptions if the action is motivated by unreasonable financial gain, abuse of children or elderly, intent to harm, or intoxication. See Florida Civil Procedure outline)
o Collateral Source Rule In Florida, by statute, a trial court MUST REDUCE any damages awarded to a claimant by any amounts PAID FOR OR AVAILABLE to the claimant from collateral sources NOT including Medicare, Medicaid, or Workers’ Compensation
Negligence
Punitive Damages
In Florida, punitive damages ONLY IF the Trier of Fact finds through CLEAR and CONVINCING evidence that the defendant was PERSONALLY guilty of INTENTIONAL MISCONDUCT or GROSS NEGLIGENCE.
Punitive Damages may not exceed the GREATER of 3x compensatory damages OR sum of $500k. EXCEPTION: there are exceptions if the action is motivated by unreasonable financial gain, abuse of children or elderly, intent to harm, or intoxication. See Florida Civil Procedure outline)
Negligence
Damages
Collateral Source Rule
In Florida, by statute, a trial court MUST REDUCE any damages awarded to a claimant by any amounts PAID FOR OR AVAILABLE to the claimant from collateral sources NOT including Medicare, Medicaid, or Workers’ Compensation.
In Florida, governmental and charitable benefits available to the general public are admissible for the jury to consider when determining the cost of future care. Furthermore, by statute, a trial court must reduce any damages awarded to a claimant by any amounts paid for or available to the claimant from collateral sources not including Medicare, Medicaid, or workers compensation benefits.
Where a subrogation right exists for a collateral source provider, the claimants damages will not be reduced.
Negligence per se
Involves the violation of a statute with clear standards that imposes and specific duty and provides a penalty for violating that statute. Plaintiff MUST show:
1) A violation of a statute;
2) that Plaintiff is part of the class statute INTENDED to protect; and
3) the Harm caused is of the type the statute was DESIGNED to protect/avoid.
o Plaintiff will have established conclusive proof of a DUTY and a BREACH of that duty. o In Florida, when a statute establishes a duty to take precautions to 1) protect a particular class of persons 2) from a particular type of injury, violation of that statute is negligence per se. o Alternatively, when a statute is designed to protect a particular class from their inability to protect themselves (minors/elders), the statute imposes a STRICT LIABILITY standard and the plaintiff’s contributory negligence is NO defense. o In Florida, violation of a TRAFFIC ORDINANCE is simply prima facie evidence of negligence. Upon a showing that a traffic ordinance was violated, burden shifts to defendant to show it was not negligent.
Negligence per se
o In Florida, when a statute establishes a duty to take precautions to 1) protect a particular class of persons 2) from a particular type of injury, violation of that statute is negligence per se. o Alternatively, when a statute is designed to protect a particular class from their inability to protect themselves (minors/elders), the statute imposes a STRICT LIABILITY standard and the plaintiff’s contributory negligence is NO defense.
Also, violation of a traffic ordinance such as failure to yield right of way is only evidence of negligence.
Negligence per se
o In Florida, violation of a TRAFFIC ORDINANCE is simply prima facie evidence of negligence. Upon a showing that a traffic ordinance was violated, burden shifts to defendant to show it was not negligent.
Negligence
Res Ipsa Loquitor
Res Ipsa Loquitor - Establishes an inference of negligence when:
1) the injury to the plaintiff WOULD NOT have occurred in the absence of some negligence; AND
2) the injury is ATTRIBUTABLE to the defendant because the instrumentality causing the injury is under the EXCLUSIVE CONTROL of the defendant.
o Won’t survive MVD!
MEDICAL MALPRACTICE – Duty to act as other Medical Profess with similar training and experience in same community.
Explain FL law
In Florida, doctors and healthcare providers have a duty to exercise care based on what is recognized as ACCEPTABLE & APPROPRIATE by REASONABLY PRUDENT similar healthcare providers in light of all relevant circumstances. In order to bring suit for medical malpractice, Florida statutes have established a very specific procedure that must be followed.
Med Mal Steps
1- A plaintiff seeking to bring a claim for medical malpractice must first: obtain a written expert opinion by a similar practitioner verifying that there are reasonable grounds for the claim.
2- the plaintiff must serve pre-suit notice on the defendant by CERTIFIED MAIL 90 days prior to filing suit. That pre-suit notice must include:
A list of all known health providers the plaintiff saw concerning the injuries claimed subsequent to the alleged act of negligence by the defendant.
All known health care providers who treated or evaluated the plaintiff during the two year period prior to the defendants alleged negligence.
Copies of medical records relied on by the expert who signed the affidavit.
3- After plaintiff gives notice – the defendants insurer evaluates the claim and must:
o Within 90 days deliver to the claimant a rejection of the claim, an offer to settle, or an offer to admit liability and seek arbitration of damages.
In med mal, P must prove:
Damages personal injury
Florida statutory cap on amount of ____ damages that the claimant can recover in medical malpractice cases has been held to ____ the Florida constitution; therefore but cap is ____ .
Plaintiff must prove the doctor deviated from the professional standard of care by a like doctor in a similar community.
Additionally, P must show that D was the cause in fact of his injury and also that D was the proximate or legal cause of the ultimate harm.
Damages personal injury
Florida statutory cap on amount of noneconomic damages that the claimant can recover in medical malpractice cases has been held to violate the Florida constitution; therefore but cap is invalid.
Med Mal Statute of Limitation
o Following the service of pre-suit notice, SOL is tolled as to all potential defendants (90 day period).
o If D makes an offer to admit liability, and for arbitration on issue of damages:
The plaintiff has 50 days to accept or reject that offer.
o Within 120 days of filing of a suit for medical negligence:
All parties are required to attend in-person mandatory mediation if arbitration has not been agreed to by the parties.
A claimant may refuse an offer of voluntary binding arbitration and instead elect to proceed to trial. If claimant or D refuse offer to arbitrate and instead proceed to trial he may recover damages as outlines above.
Defenses to Negligence
Name three… SAC
Comparative Negligence; Assumption of the Risk; Supervening Act.
Defenses to Negligence
Florida is a ____ ____ ____ jurisdiction and HAS ABOLISHED ____ AND ____ LIABILITY
Florida is a PURE COMPARATIVE NEGLIGENCE jurisdiction and HAS ABOLISHED JOINT AND SEVERAL LIABILITY
joint and several liability for causes of action accruing on or after April 26, 2006. So each defendant is liable for his or her portion only.
Florida has abolished joint and several liability except for cases with intentional torts and some environmental actions. judgment against each liable party will be entered based on that party’s percentage of fault.
E.g. in case where product defect, but then doctor was negligent in surgery. The manufacturer and doctor are not jointly and severally liable. The manufacturer can separate out his/ her level of liability.
Defenses to Negligence
1 of 3
PURE COMPARATIVE NEGLIGENCE
Florida is a PURE COMPARATIVE NEGLIGENCE jurisdiction and HAS ABOLISHED JOINT AND SEVERAL LIABILITY.
Florida has adopted the doctrine of pure comparative negligence. A plaintiff may obtain a recovery so long as they are not 100% at fault. The percentage of fault a plaintiff and defendant is calculated based on comparative fault of all parties to the injury-causing event, regardless of whether they are joined in the suit or whether they could be joined.
IN NEGLIGENCE PRODUCTS LIABILITY
A DEALER who markets goods from a reputable manufacturer with no reason to anticipate that the product is dangerous need only make a cursory inspection of the goods to avoid liability for manufacturing defects.
Florida has abolished joint and several liability in negligence actions, so any defendant will be
liable only for its percentage of fault. To allocate fault to a NONPARTY, a defendant must affirmatively plead the fault of the nonparty, identify or describe the nonparty if feasible, and at trial, prove the nonparty’s fault by a preponderance of the evidence.
(If I’m 10% liable for my own injuries, get 90% recovery. Even if I’m 70% liable, get 30% recovery).
Defenses to Negligence
PURE COMPARATIVE NEGLIGENCE
1 of 3
Drunk Driver
Drunk Driver + More than 50%
In Florida, if the Plaintiff has a .08 Blood Alcohol level and is found more than 50% at fault, then the Plaintiff is BARRED from recovery.
P may not recover ANY damages If the trier of fact finds that:
(1) the P was under the influence of alcohol or drugs that impaired her normal faculties or that resulted in a blood or breath alcohol level of 0.08% or higher AND
(2) as a result of such impairment the plaintiff was more than 50% at fault for her own harm.
Defenses to Negligence
1 of 3
PURE COMPARATIVE NEGLIGENCE
Seat Belt Defense Law
If a party is driving a vehicle without using their seat belt, that evidence can be used against the party as comparative negligence.
In assessing damages and/or comparative negligence, a Florida jury may consider evidence that a plaintiff failed to use an available and operational seat belt, if that failure substantially contributed to the plaintiffs injury
Defenses to Negligence
2 of 3 Assumption of the Risk
P must have known of and appreciated risk and voluntarily assumed/proceeded to face that risk. In Florida P MAY EXPRESSLY assume risk of D’s act.
o The express assumption of risk could be in the form of a waiver.
o Waivers are valid so long as they are not against public policy, the language is clear; the conduct is no more culpable negligent meaning the negligent act must be within the scope of the waiver.
Defense to negligence - express assumption of risk
Florida permits natural guardians on behalf of their minor children to waive any claim or cause of action against a commercial activity provider for the minor’s personal injury from an inherent risk in the activity. To be enforceable, a waiver or release must be advised that the Guardian is agreeing that, even if the activity provider uses reasonable care, there is a chance the child may be seriously injured or killed by participating in the activity because there are certain dangers inherent in the activity that cannot be avoided or eliminated.
Defenses to Negligence
2 of 3
Assumption of the Risk
On Behalf of Children
Natural guardians may act on behalf of their minor children to waive any claim or cause of action against a COMMERCIAL ACTIVITY PROVIDER for the minor’s personal injury from an INHERENT RISK IN THE ACTIVITY.
o To be enforceable, the waiver or release MUST advise that the guardian is agreeing that, EVEN IF THE ACTIVITY PROVIDER USES REASONABLE CARE, there is a chance the child may be seriously injured or killed because there are certain INHERENT DANGERS IN THE ACTIVITY THAT CANNOT BE AVOIDED OR ELIMINATED.
Defenses to Negligence
3 of 3
Supervening Act
Supervening Act. - An act subsequent to defendant’s negligent conduct that causes injury but is UNFORESEEABLE and therefore cuts off and supersedes the original defendant ‘s negligence.
Examples: Intentional tort; Act of God; Criminal Acts.
Vicarious Liability
Respondeat Superior
or Negligent Hiring/Supervising
Under the Doctrine of respondeat superior, an employer will be held VICARIOUSLY LIABLE for the tortious conduct of their employee provided the conduct occurred during and within the scope of employment. While INTENTIONAL torts are generally not within the scope of employment UNLESS employment includes friction, tension, or animosity by the employee or furthering the business of the employer.
o Detour – minor deviation from scope of employment and will still be within scope of employment.
o Frolic – major deviation for employees own benefit and will be outside scope of employment.
In Florida, in an action for death, injury, or damage caused by the intentional tort of an employee, the employer is presumed NOT to have been negligent in hiring such employee if the employer conducted a background check before hiring that did not reveal any information reasonably demonstrating the employee’s unsuitability for the particular work or the employment in general.
On the other hand, a decision by an employer NOT to conduct an investigation does NOT raise any presumption that the employer failed to use reasonable care in hiring an employee.
Vicarious Liability
Respondeat Superior
Deviations
o Detour – minor deviation from scope of employment and will still be within scope of employment.
o Frolic – major deviation for employees own benefit and will be outside scope of employment.
While INTENTIONAL torts are generally not within the scope of employment UNLESS employment includes friction, tension, or animosity by the employee or furthering the business of the employer.
Vicarious Liability
Respondeat Superior
Independent Contractors and list 3 EXCEPTIONS
Generally, principle WILL NOT be liable for agent’s tortious conduct when they are an independent contractor.
3 Exceptions:
1) Inherently Dangerous Activity – blasting for example.
2) Non-delegable duties – public policy makes that duty non-delegable.
• Ex/ Business keeping its premises safe for customers.
3) If an independent contractor of a BUSINESS OWNER hurts a customer, the business owner will be liable.
• Ex/ 7/11 hires a painter and the painter knocks down a paint can that hurts a customer.
• Customer can assert a claim against both.
Vicarious Liability
Automobile Owner for Driver
In Florida, a permissive use rule establishes that an owner who CONSENTS to use of his automobile by another person is liable for the negligent damage done by the automobile.
o Vicarious liability of loaner is limited to: $100k per person; $300k per incident for bodily injury; $50k for property damage. (applies to car owners not in the business of renting or leasing vehicles)
o If 3rd party driving is uninsured or has less than $500k insurance th ecar owner add $500k to economic damages.
Vicarious Liability
Parent for Child
While parents generally NOT vicariously liable for the torts of their children, in Florida, parents/legal guardians of an UNIMANCIPATED MINOR who commits a THEFT OFFENSE may be liable for 3x the victim’s actual damages.
o Parents of child committing theft offense = vicariously liable for TRIPLE DAMAGES.
Vicarious Liability
Tavernkeepers
Generally, vendors of intoxicating beverages ARE NOT vicariously liable for injuries resulting from a vendee’s intoxication.
In Florida, the same is true but there are THREE exceptions which may result in liability for vendor when damages result from vendee’s intoxication:
1) One who WILLFULLY and UNLAWFULLY sells/furnishes alcohol to a minor;
2) One who KNOWINGLY serves a person HABITUALLY addicted to use of alcohol;
3) One who KNEW or SHOULD HAVE KNOWN of likelihood of injuries to patrons caused by disorderly conduct of 3rd parties and fails to do anything about it.
Strict Liability
ELEMENTS
An action for strict liability is present when
1) the nature of the defendant’s activity imposes an ABSOLUTE DUTY to make safe;
2) the dangerous aspect of the activity is the actual AND proximate cause of injury; and
3) Plaintiff suffered damage to person or property.
Strict Liability
Generally, a defendant may only be held strictly liable damages caused from:
1) WILD ANIMALS; or
2) ABNORMALLY DANGEROUS ACTIVITY involves a substantial risk of serious harm even when reasonable care is exercised.
Activity MUST create a FORESEEABLE risk of serious harm EVEN IF reasonable care is exercised.
Activity MUST be one that is UNCOMMON in the area in which it is conducted.
Strict Liability
domestic animals
In Florida, there is no liability for domestic animals. Additionally, an owner of a dog is liable for damages REGARDLESS *of the dog’s vicious propensities or the owner’s prior knowledge of such.
In absence of negligence, an owner IS NOT liable (except as to a person under 6) IF at the time of the injury:
o 1) the person is a trespasser (not lawfully on the premises); OR
o 2) the owner displayed, in a PROMINENT PLACE of the residence, an EASILY READABLE sign including the words “BAD DOG.”
Any negligence on the part of the person bitten that proximately contributes to the biting incident reduces the liability of the owner of the dog by the percentage that the bitten person’s negligence contributed to the incident.
Strict Liability
Damages
Comparative negligence of the injured party reduces defendant’s liability.
Florida has adopted the doctrine of pure comparative negligence and applies it to strict liability and breach of warranty actions.
Accordingly, each party’s damages are apportioned to their percentage of fault and a plaintiff will have their award reduced in accordance to their degree of fault.
o A plaintiff may obtain a recovery so long as they are not 100% at fault.
PRODUCTS LIABILITY
ESSAY EXAM TIP
If you get this essay, make sure to define all 3 Theories! If an individual purchases a broken or defective product or is injured by that product, he/she may bring an action for products liability. Several theories of liability exist for products liability and they will be discussed below. Plaintiff can sue ANY commercial supplier in the chain.
PRODUCTS LIABILITY
Plaintiff must show that the unreasonably dangerous product:
1) was sold by a COMMERCIAL SUPPLIER;
2) in a DEFECTIVE CONDITION when it left the manufacturer;
3) that has not been subject to ALTERATION;
4) was sold to a FORESEEABLE USER who made foreseeable use of the product; and
5) that the defect was the ACTUAL and PROXIMATE cause of the INJURY to the plaintiff’s person or property.
Additionally, the plaintiff must show that the product’s defective condition resulted from either a manufacturing defect, design defect, or an inadequate warning/label.
PRODUCTS LIABILITY
Name all 3 Theories
Manufacturing Defect
Design Defect
Inadequate Warning
PRODUCTS LIABILITY
1 of 3 Theories
Manufacturing Defect
Product failed to conform to its intended design.
A product is defectively manufactured if it is dangerous beyond the expectation of the ordinary consumer because of a departure from the intended design. (i.e., it was not put together correctly, or as planned)
PRODUCTS LIABILITY
2 of 3 Theories
Design Defect
Consumer Expectation Test
Government Safety Standards
Design Defect
the design is defective if it was dangerous beyond the expectation of the ordinary consumer
- Consumer Expectation Test - In Florida, a plaintiff may establish manufacturing and/or design defect through the CONSUMER EXPECTATION TEST:
• The product is defective if it was dangerous BEYOND THE EXPECTATION OF AN ORDINARY CONSUMER. - Government Safety Standards -
In Florida, there is a REBUTTABLE PRESUMPTION that a product is DEFECTIVE if the product does not comply with government safety standards and a REBUTTABLE PRESUMPTION that the product is not defective if in compliance. (can be federal or state safety standards).
PRODUCTS LIABILITY
2 of 3 Theories
Design Defect
FL CONSUMER EXPECTATION TEST
Design Defect
the design is defective if it was dangerous beyond the expectation of the ordinary consumer
In Florida, a plaintiff may establish manufacturing and/or design defect through the CONSUMER EXPECTATION TEST:
• The product is defective if it was dangerous BEYOND THE EXPECTATION OF AN ORDINARY CONSUMER.
Florida does not require the plaintiff to show an alternative design because it uses the same consumer expectation test that is used for manufacturing defects; I.e. the design is defective if it was dangerous beyond the expectation of the ordinary consumer
PRODUCTS LIABILITY
2 of 3 Theories
Government Safety Standards
Government Safety Standards
In Florida, there is a REBUTTABLE PRESUMPTION that a product is DEFECTIVE if the product does not comply with government safety standards and a REBUTTABLE PRESUMPTION that the product is not defective if in compliance. (can be federal or state safety standards).
PRODUCTS LIABILITY
3 of 3 Theories
Inadequate Warning
Inadequate Warning
Product MUST have clear, conspicuous, and complete warnings of any dangers that MAY NOT be apparent to a user.
Exists if there was a foreseeable risk of harm, not obvious to an ordinary user, that could have been avoided or reduced by providing adequate warnings or instructions.
A failure to warn can be construed as a DESIGN DEFECT.
PRODUCTS LIABILITY
Defenses - MAAD
o Misuse uses a product in a manner that is neither intended nor foreseeable
o Alteration a third party unforeseeably changes the product making it dangerous
o Assumption of the Risk must be express assumption – P must know of risk and voluntarily proceed to face it.
o Design Defect State of the Art Defense – A defendant may be absolved of strict products liability if the product was “State of the Art” and there was no reasonable alternative at the time.
Negligent Products Liability
prima facie plus more
A prima facie case of negligence in products liability law requires
(1) the existence of a legal duty owed by D to a particular/foreseeable plaintiff,
(2) breach of that duty,
(3) actual and proximate cause and
(4) damages. - MUST suffer injury to person or property to get damages. (actual not just economic)
Must show negligent conduct leading to the supply of a defective product.
o Duty of the care measured from reasonable company standard.
o The duty is breached when defendant failed to exercise due care (failure to inspect, dangerous in normal use, failure to take reasonable precautions)
o To prove breach of duty in a products liability action, the plaintiff MUST show:
(i) negligent conduct by the defendant leading to
(ii) the supplying of a defective product by the defendant.
o Negligence in a manufacturing defect case plaintiff MAY invoke res ipsa but it is not required.
o Can sue retailer, manufacturer, supplier, etc.
o A REASONABLE inspection usually cuts off breach of duty!
o MUST suffer injury to person or property to get damages.
o Ex/ Failing to inspect a product
o Defenses -All regular negligence defenses.
Negligent Products Liability
Duty of the Care
Negligence in a manufacturing defect case - plaintiff MAY invoke ___ ___ but it is not required.
Explain Breach
The duty of care arises when the defendant engages in the affirmative conduct associated with being a commercial supplier of products.
The duty of care is owed to any foreseeable plaintiff.
BREACH
To prove breach of duty in a products liability action, the plaintiff MUST show:
(i) negligent conduct by the defendant leading to
(ii) the supplying of a defective product by the defendant.
o Duty of the care measured from reasonable company standard.
o A REASONABLE inspection usually cuts off breach of duty! The duty is breached when defendant failed to exercise due care (failure to inspect, dangerous in normal use, failure to take reasonable precautions)
Negligent Products Liability
Actual/Proximate Clause
To prove causation, the plaintiff must trace the harm suffered to the defect in the product that existed when the product left the defendants control.
Negligence in a manufacturing defect case - plaintiff MAY invoke res ipsa loquitur but it is not required.
Negligent Products Liability
Defenses
All regular negligence defenses.
Comparative Negligence; Assumption of the Risk; Supervening Act.
Florida is a PURE COMPARATIVE NEGLIGENCE jurisdiction and HAS ABOLISHED JOINT AND SEVERAL LIABILITY. Accordingly, each party’s damages are apportioned to their percentage of fault and a plaintiff will have their award reduced in accordance to their degree of fault.
o A plaintiff may obtain a recovery so long as they are not 100% at fault.
Assumption of the Risk - P must have known of & appreciated risk and voluntarily assumed/proceeded to face that risk. In Florida P MAY EXPRESSLY assume risk of D’s act.
Supervening Act. - An act subsequent to defendant’s negligent conduct that causes injury but is UNFORESEEABLE and therefore cuts off and supersedes the original defendant ‘s negligence.
Examples: Intentional tort; Act of God; Criminal Acts.
Breach of Warranty
Liability arises from the fact that a product has failed to conform to a guarantee as made in either an express or implied warranty.
Plaintiff must establish that a warranty existed as to the product and that the product does not confirm to the warranty resulting in damages to the plaintiff.
Breach of Warranty
Name Types
o Implied Warranty of Merchantability
o Implied Warranty of Fitness for Particular Purpose
o Express Warranty
Breach of Warranty
ANALYSIS
If a product fails to live up to the standards imposed by an implied warranty, the warranty is BREACHED and the defendant will be liable. P need not prove any fault on D’s part.
o Implied Warranty of MERCHANTIBILITY: When a merchant who DEALS in a certain goods of the KIND and SELLS such goods, there is an implied WARRANTY of MERCHANTIBILITY, that the goods are merchantable- are of a QUALITY EQUAL to that generally ACCEPTABLE among those who DEAL in SIMILAR goods and are FIT for the ORDINARY purposes in which they are USED.
o Implied Warranty of FITNESS FOR A PARTICULAR PURPOSE arises when a a seller KNOWS or has REASON to know:
(1) the particular PURPOSE for which the goods are REQUIRED, and (2) that the buyer is RELYING on the seller’s SKILL or JUDGMENT to SELECT or FURNISH SUITABLE goods.
PROOF of fault is unnecessary. If a product FAILS to live up to the STANDARDS imposed by an implied warranty, the warranty is BREACHED and the defendant will be liable.
Vertical PRIVITY is no longer required between the buyer and the manufacturer. Under the UCC and Florida law, HORIZONTAL privity is extended to the buyer’s FAMILY, HOUSEHOLD, and GUESTS who suffer personal injury.
DISCLAIMER - Any disclaimers of liability that might have been on the product would be irrelevant when personal injury or property damage has occurred.
o Express Warranty: An express warranty arises by any affirmation of fact, promise, description, model, or sample which is made part of the basis of the bargain
Breach of Warranty
Implied Warranty of Merchantability
If a product fails to live up to the standards imposed by an implied warranty, the warranty is BREACHED and the defendant will be liable. P need not prove any fault on D’s part.
o Implied Warranty of MERCHANTIBILITY: When a merchant who DEALS in a certain goods of the KIND and SELLS such goods, there is an implied WARRANTY of MERCHANTIBILITY, that the goods are merchantable- are of a QUALITY EQUAL to that generally ACCEPTABLE among those who DEAL in SIMILAR goods and are FIT for the ORDINARY purposes in which they are USED.
PROOF of fault is unnecessary. If a product FAILS to live up to the STANDARDS imposed by an implied warranty, the warranty is BREACHED and the defendant will be liable.
Vertical PRIVITY is no longer required between the buyer and the manufacturer. Under the UCC and Florida law, HORIZONTAL privity is extended to the buyer’s FAMILY, HOUSEHOLD, and GUESTS who suffer personal injury.
DISCLAIMER - Any disclaimers of liability that might have been on the product would be irrelevant when personal injury or property damage has occurred.
Breach of Warranty
Implied Warranty of Fitness for Particular Purpose
If a product fails to live up to the standards imposed by an implied warranty, the warranty is BREACHED and the defendant will be liable. P need not prove any fault on D’s part.
o Implied Warranty of FITNESS FOR A PARTICULAR PURPOSE arises when a a seller KNOWS or has REASON to know:
(1) the particular PURPOSE for which the goods are REQUIRED, and (2) that the buyer is RELYING on the seller’s SKILL or JUDGMENT to SELECT or FURNISH SUITABLE goods.
PROOF of fault is unnecessary. If a product FAILS to live up to the STANDARDS imposed by an implied warranty, the warranty is BREACHED and the defendant will be liable.
Vertical PRIVITY is no longer required between the buyer and the manufacturer. Under the UCC and Florida law, HORIZONTAL privity is extended to the buyer’s FAMILY, HOUSEHOLD, and GUESTS who suffer personal injury.
DISCLAIMER - Any disclaimers of liability that might have been on the product would be irrelevant when personal injury or property damage has occurred.
Breach of Warranty
Express Warranty
If a product fails to live up to the standards imposed by an implied warranty, the warranty is BREACHED and the defendant will be liable. P need not prove any fault on D’s part.
o Express Warranty: An express warranty arises where a seller or supplier makes any affirmation of fact, promise, description, model, or sample which is made part of the basis of the bargain. If the buyer is suing, the warranty must have been part of the basis of the bargain. The P need not show that the breach occurred through the fault of the D, but ONLY that a breach of warranty did in fact occur.
PROOF of fault is unnecessary. If a product FAILS to live up to the STANDARDS imposed by an implied warranty, the warranty is BREACHED and the defendant will be liable.
Vertical PRIVITY is no longer required between the buyer and the manufacturer. Under the UCC and Florida law, HORIZONTAL privity is extended to the buyer’s FAMILY, HOUSEHOLD, and GUESTS who suffer personal injury.
DISCLAIMER - Any disclaimers of liability that might have been on the product would be irrelevant when personal injury or property damage has occurred.
Breach of Warranty
Need Privity Explain
purchaser, family household member, guests of purchaser, people expected to use/consume/be affected by goods.
o Florida has adopted Alternative A of the Uniform Commercial Code’s horizontal privity alternatives.
Accordingly, implied warranty protection is extended to a BUYER’S FAMILY; HOUSEHOLD; and GUESTS who suffer PERSONAL INJURY.
Breach of Warranty
Damages
Pure Economic Loss
o Loss of profits, cost of replacement, etc.
o Look to argue Punitive damages
Other Torts Issues to look for:
Interference with Business Relations
Negligent Hiring
Sovereign Immunity (look for operational vs planning)
Parental Injuries
Wrongful Death
Survivor Action
Dangerous Instrumentality
Negligent Entrustment
Malicious Prosecution
Other Torts Issues to look for: Interference with Business Relations
To establish a prima facie case for interference with contract or prospective or economic advantage, the following elements must be proved (1) existence of a valid contractual relationship between the P and a third party; (2) D’s knowledge of the relationship (3) intentional interference by D that induces a breach or termination of the relationship; and (4) damage to the P.
No cause of action exists where the “relationship” is based on speculation regarding future sales to past customers.
Punitive Damages: A D may be held liable for punitive damages ONLY if the trier of fact, based on clear and convincing evidence, finds that the plaintiff was personally guilty of intentional misconduct or gross negligence. An award for compensatory damages is not a prerequisite for punitive damages. As long as the level of culpability if found, punitive damages may be awarded even in the absence of financial loss by the P that would trigger a compensatory damages award. If punitive damages are awarded, they may not exceed the greater of (1) 3xs the amount of compensatory damages awarded or (2) the sum of $500,000
Other Torts Issues to look for: Negligent Hiring
Generally, employers may be liable for their own negligence in selecting or supervising an employee.
In Florida, in an action for death, injury, or damages caused by the ITENTIONAL TORT of an employee, the employer is PRESUMED NOT to have been negligent in hiring IF:
1) they conducted a background investigation prior to hiring which DID NOT
2) reveal any information REASONABLY demonstrating employee’s unfitness for employment.
o Alternatively, a decision by the employer to NOT conduct a background investigation DOES NOT raise a presumption that the employer failed to use reasonable care in hiring – simply relevant evidence.
Other Torts Issues to look for: Sovereign Immunity (look for operational vs planning)
State/municipal governments in Florida have waived immunity for a substantial extent of governmental activities including tort liability under the Florida constitution and by statute as well.
o Liability is waived up to $200k for each person injured; and $300k for all claims arising from once accident UNLESS the state has insurance coverage greater than these limits.
o Additionally, no tort action may be brought against the state UNLESS the claimant first presents a WRITTEN CLAIM to the appropriate AGENCY AND (unless against a municipality) to the Department of Insurance.
Other Torts Issues to look for: Sovereign Immunity (look for operational vs planning)
o The test to determine if a governments entity’s negligence is actionable is:
Planning v. operational. Government is immune from suit for planning decisions but subject to suits for negligence for operational decisions.
Waiver DOES NOT apply to discretionary or planning activities – only ministerial activities.
Other Torts Issues to look for:
Sovereign Immunity
Torts and Public Officials
Torts and Public Officials:
Statute provides that no employee of the state or any subdivision shall be personally liable in tort or names as a defendant in an action for injury that results from an act in the scope of his employment, except:
(1) the employee acted in bad faith or within malicious purpose or
(2) in a manner exhibiting wanton and willful disregard of human rights, safety or property.
Other Torts Issues to look for:
Sovereign Immunity
Torts and Law Enforcement
Torts and Law Enforcement
Law enforcement agencies in Florida ARE NOT liable for injury or property damage caused by a person felling from an officer in a motor vehicle IF:
(1) Conduct of the pursuit isn’t reckless as to constitute disregard of human life, safety, or the property of another;
(2) at the time the officer initiates the pursuit, officer reasonably believed fleeing person was guilty of a forcible felony; and
(3) pursuit is conducted by officer pursuant to written policy governing high speed pursuits.
Other Torts Issues to look for:
Prenatal Injuries
Parental Injuries
In Florida, both parent AND child have an action for parental injuries provided the child is BORN ALIVE. If the fetus dies from the injuries, the parents MAY NOT bring a wrongful death action for its death because the child was not BORN ALIVE.
o Rather, the parents may bring a NEGLIENT STILLBIRTH action for mental pain and anguish damages and medical expenses incident to the pregnancy.
Other Torts Issues to look for:
Wrongful Death
If negligence and someone dies –>
In Florida, an action for wrongful death is brought by the decedent’s personal representative (PR). Each survivor may recover value of lost support or services from the date of the INJURY to death, interest, and FUTURE lost support or services from date of death.
o Additionally, the surviving spouse and minor children (or all children if no SS) may recover for the loss of the decedent’s COMPANIONSHIP, PROTECTION, mental pain, and suffering from date of the INJURY.
Other Torts Issues to look for: Survivor Action
Survivor Action
In Florida, all actions for torts that DO NOT CAUSE the victim’s death will SURVIVE the victim’s death. Alternatively, if the victim’s injury results in death, his tort action DOES NOT survive and a new action must be brought under the WRONGFUL DEATH STATUTE.
In Florida all actions for a tort that does not cause the victim’s death will survive the death, including actions for intangible personal torts such as defamation
Other Torts Issues to look for:
Dangerous Instrumentality
Dangerous Instrumentality - Owner of Instrumentality capable of causing death liable for anyone using it WITH their consent.
Other Torts Issues to look for: Negligent Entrustment
Negligent Entrustment owner of chattel gives to another and knows or has reason to know the person due to youth, inexperience or otherwise, may use it to create unreasonable risk
Other Torts Issues to look for: Malicious Prosecution
Malicious Prosecution - A PRIVATE PERSON who initiates or procures the institution of criminal proceedings against another who IS NOT guilty of the offense charged is subject to liability for malicious prosecution IF:
1) he initiates or procures the proceedings;
2) without probable cause;
3) primarily for an IMPROPER PURPOSE (other than that of bringing an offender to justice);
4) favorable termination to P;
5) damages
- Showing no PC - P can argue
(1) insufficient facts for a reasonable person to agree that he was guilty OR
(2) D did not actually believe P was guilty
o Prosecutors are immune from liability.
o If D had good faith basis, it will not be considered malicious prosecution.
Parties - multiple defendants issues – joint and several liability
Florida has abolished joint and several liability except for cases with intentional torts and some environmental actions. judgment against each liable party will be entered based on that party’s percentage of fault. To allocate fault to a non party, a defendant must affirmatively plead the fault of the non party, identify or describe the nonparty if feasible, and, at trial, prove the non parties fault by a preponderance of the evidence
Tort immunities – parent child immunity
Florida waives parent child immunity in the following cases: (1) when unemancipated minor sues parent for negligence ( but only to extent available insurance coverage); and (2) in case of intentional sexual abuse perpetrated by parents against minor child.
Florida no fault insurance
Florida has adopted a modified no fault automobile insurance system under which out of pocket expenses are paid to an injured person under the basic automobile insurance policy regardless of fault. The injured person’s own insurance carrier pays these benefits rather than the liability insurance of the party at fault. These benefits called personal injury protection benefits are paid to a maximum of $10,000 for medical expenses and lost income and earning capacity of $5000 for death benefits. Out of pocket expenses in excess of $10,000 maybe it recovered under traditional Theories. also recovery for pain suffering mental anguish an inconvenience is available for permanent injury or death
Workers’ Compensation as Bar to Tort Action
Workers’ Compensation Insurance provides compensation to employees injured in the course of employment, regardless of fault or negligence, assumption of risk, or negligence.
Thus, an employee does not risk losing benefits due to contributory negligence, assumption of risk, or negligence on the part of a coworker.
In return, the employee may not sue her employer or fellow employees for damages arising out of the injury (except if a fellow employee commits an act of gross negligence, willfulness, or unprovoked physical aggression).
Statutes of Limitations
A TWO-year statute of limitations applies to actions for death (except that WRONGFUL DEATH actions based on INTENTIONAL torts have no limitations period), DEFAMATION and MED MALpractice (measured from the time the malpractice was discovered or should have been discovered, but generally no longer than FOUR years).
A FOUR-year statute of limitations period applies for NEGLIGENCE and INTENTIONAL tort actions.
