Misc Tort Issues

Question 1

Permissive Use Rule

Answer 1

If an auto owner allows another person to use his vehicle, the owner will be vicariously liable for any injuries that the user causes.

This is true, EVEN IF the user acts OUTSIDE the SCOPE of permission.

Question 2

Good Samaritan Act

Answer 2

ALWAYS SUE THE GOOD SAMARITAN ON THE BAR EXAM

A good samaritan is an individual who gratuitously renders aid to another, meaning the individual has no legal duty to otherwise render aid.

There is no duty to aid someone in peril, unless a “special relationship” exists; i.e. parent/child, lifeguard/swimmer.

If a good samaritan chooses to render aid to someone in peril, he is still subject to liability for negligence.

Question 3

Alcohol

Answer 3

A server who provides alcohol to a drink of lawful age is NOT liable for damages caused by the drinker’s intoxication unless within one of several exceptions:

One who willfully sells or furnishes alcohol to a minor;

One who knowingly serves a person habitually addicted to the use of alcohol; or

A proprietor, if he knows or should have known of the likelihood of injuries to patrons caused by disorderly conduct.

Question 4

MedMal Shuffle (5-Steps)

Answer 4

Florida imposes a pre-suit procedure upon any plaintiff seeking to file a medical malpractice suit.

Step 1: Investigation. The claimant must obtain a written opinion by a medical expert verifying that reasonable grounds for a claim exist.

Step 2: Notice of Intent to Sue. At least 90 days before filing the suit, the claimant must notify all prospective defendants of his intent to sue by certified mail.

Step 3: Defendant pre-suit screening. During the 90 day period, the defendant’s insurer must evaluate the claim, with the assistance of experts. The insurer must either reject the claim, offer to settle, or admit liability and seek arbitration.

Step 4: Pre-suit Discovery. Upon receipt of notice of intent to sue the parties may begin a “relaxed” discovery process, including unsworn statements.

Step 5: Arbitration. The Parties can elect to proceed to binding arbitration, which includes specific limits on damages. If the claimant refuses arbitration, they can proceed to trial.

Question 5

Punitive Damages

Answer 5

A defendant may be held liable for punitive damages ONLY IF the trier of fact, based on CLEAR AND CONVINCING EVIDENCE, finds that the defendant committed intentional misconduct OR gross negligence.

By Statute, punitive damages may not exceed the greater of (i) 3x the amount of compensatory damages awarded to each claimant, or (ii) the sum of $500k.

There is NO CAP on punitive damage liability for any defendant, who at the time of the act, was under the influence of any intoxicant.