Negligence

Question 1

Elements

Answer 1

Duty, breach, actual cause, proximate cause, damages

Question 2

Duty of care owed to who?

Answer 2

Defendants only owe a duty to foreseeable plaintiffs.

Question 3

Duty

Answer 3

Defendants must act as a reasonably prudent person would under the circumstances, using an objective standard.

Question 4

Invited Licensee Duty Rules

Answer 4

Possessor must warn, clean up, and make safe any dangers.
If in a business: business has a duty to use reasonable efforts to keep the premises free of transitory foreign objects that could foreseeably lead to an injury.

Question 5

Breach

Answer 5

Failure to comply with the level of care.

Question 6

Actual cause

Answer 6

“But for” the defendant’s actions, the plaintiff would not have been injured.

Question 7

Proximate cause

Answer 7

The defendant actions could foreseeably lead to an injury.

Question 8

Damages Definition

Answer 8

Actual, physical harm.

Question 9

Intervening Cause

Answer 9

All injuries that occur after the original act of negligence are using intervening, or foreseeable causes. The original tortfeasor will still be liable for these damages.

Question 10

Superseding cause

Answer 10

Some subsequent injuries are unforeseeable, and are superseding. The original tortfeasor will not be liable for these subsequent unforeseeable injuries. These are acts of god, criminal acts, and intentional torts. (or anything facts say is unforeseeable)

Question 11

Defense for Negligence

Answer 11

Florida now follows the modified comparative negligence rule. Modified comparative negligence prohibits a plaintiff from recovering anything if they are found more than 50% negligent in the accident. the plaintiff is legally drunk and determined to be more than 50% at fault for the accident, they will recover nothing.

Question 12

Assumption of the Risk

Answer 12

The plaintiff knew and appreciated the nature of the conduct and did it anyway.

Question 13

Negligence Per Se

Answer 13

The defendant violated an ordinance or statute, the plaintiff is part of the protected class the statute was designed to protect, and the plaintiff suffered the kind of injury the statute tried to prevent. The violation of the statute means the plaintiff must only prove causation, because duty and breach are presumptively established by the violation.

Question 14

Good Samaritan Rule + Medical Professional “wrinkle”

Answer 14

In Florida, there is generally no duty to rescue. However, if a person does render aid, they owe the injured person reasonable care.
Medical Professional: If medical professional is rendering aid, they will not be liable as long as they were not reckless.

Question 15

Vicarious Liability + Negligent Hiring Rule

Answer 15

An employer is liable for the negligence of their employees as long as the employee acted within the scope of employment.
Negligent Hiring: In Florida, an employer is presumed not to have been negligent in hiring the employee if they did a background check.

Question 16

Joint and Several Liability

Answer 16

In Florida, joint and several liability has been abolished. Accordingly, each defendant must be liable for their own percentage of fault.

Question 17

Sovereign immunity

Answer 17

The government is usually immune from the negligent acts of their employees.
Operational: while the employee was doing their job, if the employee is negligent the government can be sued.
Discretionary: If the injury relates to the planning stages of the job, the government is immune.

Question 18

Medical Malpractice Duty

Answer 18

Duty: Medical professionals have a duty to act in the same manner as other medical professionals with the same training and background as those in the community.
If the patient was unconscious at the time of the injury, then medical malpractice can be inferred.

Question 19

Punitive Damages (PUT AS SEPARATE PARAGRAPH NOT WITH REGULAR DAMAGES)

Answer 19

Punitive damages will be awarded when, by clear and convincing evidence, the plaintiff can prove the defendant acted willfully, wanton, intentionally, or with gross negligence.
Punitive damages are limited to 3 times compensatory damages, or $500,000, whichever is greater. But there is no limitation if the defendant’s conduct was intentional.

Question 20

Collateral Source Rule

Answer 20

A plaintiff’s damages will be reduced by any other sources of income or recovery he will receive.

Question 21

Modified No Fault

Answer 21

The plaintiff’s own insurance will pay the first $10,000 of his damages (PIP).

Question 22

Dangerous Instrumentality

Answer 22

An owner is liable for damages caused by any driver they consent to use their car.

Question 23

Wrongful Death Statute

Answer 23

If defendant’s negligence caused a death, the decedent’s personal representative may bring a wrongful death suit against the defendant.

Question 24

Survivor Action

Answer 24

If, in the course of a lawsuit, a party dies, the personal representative may maintain the lawsuit.

Question 25

Multiple defendants (merged causes, substantial actor, unascertainable cause)

Answer 25

Merged causes: 2 defendant’s acting independently each commit a breach combining into an indivisible harm
Substantial factor test: defendant liable if the breach contributed in a significant/substantial way to the plaintiff’s ultimate injury
Unascertainable cause: When there are 2 acts, only one of which causes injury, but it is not known which one. If plaintiff proves this, the burden of proof shifts to defendant’s and each must show that his negligence was not the actual cause.