Negligence

Question 1

Duty

Answer 1

There is a duty to avoid harming others owed to any foreseeable victim.

Question 2

Standard of Care

Answer 2

The default standard of care is to act as an ordinary reasonably prudent person in similar circumstances.

Question 3

Factors that can affect the standard of care

Answer 3

1) Defendant is a
a) professional
b) minor
c) common carrier or innkeeper
d) healthcare professional
2) Plaintiff
a) is a trespasser/licensee
b) is a business invitee
c) has a “special relationship” to the Defendant
3) Situation is covered by a statute

Question 4

Duty owed by healthcare professionals where there’s a doctor/patient relationship

Answer 4

The practitioner owes a duty to act with the level of care of a reasonably prudent similar practitioner, in light of all circumstances.

Question 5

Duty owed by healthcare professionals in emergency situations (where there’s NO doctor/patient relationship)

Answer 5

1) Inside of a HOSPITAL: The doctor is only liable if he acts with a reckless disregard for patient health and safety.
2) ANYWHERE ELSE: If a doctor renders emergency aid anywhere outside of a hospital, the doctor is subject to the ordinary standard of care for doctors (“reasonably prudent similar practitioner”). However, weight is given to the circumstances (e.g., outside of a hospital, no equipment, etc.).

Question 6

Duty owed to business invitees

Answer 6

The plaintiff must prove that the business had actual or constructive notice of the condition that caused the harm.
A) Actual Notice - The business subjectively knew of the condition.
B) Constructive Notice - The business should have known of the condition because the condition either—
i) existed for a length of time OR
ii) occurred with regularity and was thus foreseeable.

Question 7

Duty is established by Statute

Implications of violating statute

Answer 7

If the defendant violated a statute, the statute must have been intended to protect this type of plaintiff from this type of harm for statutory duty to arise.

If there was a statutory duty, the violation of the statute constitutes negligence per se.

This means there is a conclusive presumption that the plaintiff was negligent.

Where the presumption of negligence exists, the elements of duty and breach are satisfied.

Question 8

Breach (rule defined)

Answer 8

A defendant breaches their duty when they fail to adhere to the applicable standard of care. Defendant breached his duty because he did [BLANK-Fact Pattern].

Question 9

Causation

Answer 9

Causation consists of two tests: actual causation and proximate causation.

Actual causation tests that “but for” this act, the injury would not have occurred. If the defendant had not taken this action (or omission), the plaintiff would not have been injured.

Proximate causation tests whether the injury was a foreseeable consequence of the action or omission. Plaintiff must prove that the defendant could have foreseen that this action (or omission) would like cause the injury.

Question 10

Foreseeability (negligence analysis)

Answer 10

Was the plaintiff a foreseeable victim?

Was the harm a foreseeable consequence of this action?

Question 11

Damages

Answer 11

Florida is a pure comparative negligence jurisdiction.

A plaintiff’s award will be reduced by the amount of his own negligence. There is no 50% or 51% fault rule in Florida.

Damages will be apportioned among the parties based on comparative negligence and relative fault.

HOWEVER, if the plaintiff was legally drunk, defined as blood alcohol level of 0.08% or higher, and more than 50% at fault, the plaintiff’s claim will be barred; the plaintiff will lose and the defendant has no liability.

Damages to be apportioned are: Economic, Non-Economic, and Punitive, if applicable.

Question 12

Joint and several liability

Answer 12

Florida has abolished joint and several liability except in situations involving agency, partnership, or employees.

In the absence of joint and several liability, each tortfeasor is liable for his share of the damage.

Question 13

Assumption of Risk (Negligence)

Answer 13

Assumption of risk is a defense to negligence.

Implied assumption of risk does not exist in Florida.

In Florida, a plaintiff assumes the risk if he did so in EXPRESS WORDS, and he KNEW of the risk and VOLUNTARILY proceeded.

Question 14

Waiver (Negligence)

Answer 14

A waiver generally DOES NOT prevent a plaintiff from suing if the defendant was negligent.

It only prevents a plaintiff from suing due to injuries that are ordinary incidents of the activity.

Question 15

Negligence Approach

Answer 15

Analyze the elements:

1. DUTY,
2. BREACH,
3. ACTUAL CAUSATION,
4. PROXIMATE CAUSATION, and
5. DAMAGES
6. DEFENSES
7. APPORTION FAULT
8. ASSIGN DAMAGES