Negligence Flashcards
Elements
Duty, breach, actual cause, proximate cause, damages
Duty of care owed to who?
Defendants only owe a duty to foreseeable plaintiffs.
Duty
Defendants must act as a reasonably prudent person would under the circumstances, using an objective standard.
Invited Licensee Duty Rules
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.
Breach
Failure to comply with the level of care.
Actual cause
“But for” the defendant’s actions, the plaintiff would not have been injured.
Proximate cause
The defendant actions could foreseeably lead to an injury.
Damages Definition
Actual, physical harm.
Intervening Cause
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.
Superseding cause
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)
Defense for Negligence
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.
Assumption of the Risk
The plaintiff knew and appreciated the nature of the conduct and did it anyway.
Negligence Per Se
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.
Good Samaritan Rule + Medical Professional “wrinkle”
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.
Vicarious Liability + Negligent Hiring Rule
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.
Joint and Several Liability
In Florida, joint and several liability has been abolished. Accordingly, each defendant must be liable for their own percentage of fault.
Sovereign immunity
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.
Medical Malpractice Duty
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.
Punitive Damages (PUT AS SEPARATE PARAGRAPH NOT WITH REGULAR DAMAGES)
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.
Collateral Source Rule
A plaintiff’s damages will be reduced by any other sources of income or recovery he will receive.
Modified No Fault
The plaintiff’s own insurance will pay the first $10,000 of his damages (PIP).
Dangerous Instrumentality
An owner is liable for damages caused by any driver they consent to use their car.
Wrongful Death Statute
If defendant’s negligence caused a death, the decedent’s personal representative may bring a wrongful death suit against the defendant.
Survivor Action
If, in the course of a lawsuit, a party dies, the personal representative may maintain the lawsuit.
Multiple defendants (merged causes, substantial actor, unascertainable cause)
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.
