Torts Flashcards
What is the standard for res ipsa loquitur and what is its effect? What is the Florida distinction?
Res ipsa loquitur establishes a breach of duty where:
- (1) The cause of the injury was in the exclusive control of the defendant; and
- (2) That the accident is not the kind that would normally occur absent negligence.
Creates an inference of negligence sufficient to allow a plaintiff to defeat a motion for a directed verdict.
In Florida, res ipsa loquitur does not apply to actions brought to recover damages caused by tire blowouts when the blowout occurred after possession and some significant use.
Negligence per se & Florida distinction
Negligence per se only establishes duty and breach. The plaintiff must still prove causation and damages.
- (1) Plaintiff must be a member of the class of persons the statute was designed to protect, and
- (2) Plaintiff’s harm must be of the type the statute was designed to prevent.
The statute must impose an affirmative duty to take certain actions and impose a penalty for failure to do so.
Statutes designed to protect a particular class of people from their inability to protect themselves, such as a statute that prohibits the sale of firearms to minors will impose strict liability, and the plaintiff’s contributory negligence is no defense.
In Florida, violations of other statutes, such as traffic regulations, are only evidence of negligence.
Florida duties for owners & occupiers of land
Trespasser: No duty
Known trespasser: Warn of known, dangerous artificial conditions
Invited licensee: Make reasonable inspections and make safe or warn
Florida negligence defense & distinction
Florida is a pure comparative negligence state. This is the majority rule, and the default on the MBE. Plaintiff’s recovery is reduced by the amount of plaintiff’s own negligence, even if it exceeds 50%.
In Florida, there is no recovery for intoxicated plaintiff where plaintiff more than 50% at fault.
Negligent infliction of emotional distress (direct) & Florida distinction
The duty to avoid negligent infliction of emotional distress may be breached when the defendant creates a foreseeable risk of physical injury to the plaintiff, who must satisfy two requirements to prevail:
- (1) The plaintiff must be within the “zone of danger”
- (2) The plaintiff must suffer physical symptoms from the distress.
Severe shock to the nervous system that causes physical symptoms will satisfy.
Florida does not require physical symptoms if the plaintiff establishes an actual physical impact, however slight, that causes distress.
Negligent infliction of emotional distress (bystander) & Florida distinction
A bystander outside the zone of danger of physical injury who sees the defendant negligently injuring another can recover the damages for their own distress as long as:
- (1) The plaintiff and the person injured by the defendant are closely related
- (2) The plaintiff was present at the scene of the injury and personally observed or perceived the event.
In bystander cases, Florida retains the requirement that the plaintiff must suffer a demonstrable physical injury directly caused by psychological trauma from the event. On the other hand, Florida’s requirement that the plaintiff be “involved” in the injury-causing event permits recovery even for a plaintiff arriving on the scene immediately after the event occurred, rather than having to be present when it happened.
Florida’s good samaritan law
Civil protection to any person, including a licensed medical professional, who gratuitously, in good faith and in the use of ordinary care, aids a victim at the scene of an accident.
Protects from civil liability physicians, hospitals, and their employees who treat victims in emergency situations in hospitals or trauma centers, unless the conduct is reckless.
Florida dangerous instrumentality doctrine
Under this doctrine, the owner of an instrumentality that is capable of causing death or destruction must answer for its misuse by anyone operating the instrumentality with the owner’s knowledge and consent.
Florida defamation rules
Plaintiff must show :
- (1) a false statement purporting to be fact;
- (2) publication or communication of that statement to a third person;
- (3) fault; and
- (4) damages, or some harm caused to the person or entity who is the subject of the statement.
Defamation claims have been limited by First Amendment concerns. Public officials and public figures (people who are famous) must show that statements were made with actual malice-a statement was made with knowledge that it was false or with reckless disregard of whether or not it was false. Actual malice must be shown by “clear and convincing” evidence.
In Florida, a private person suing about a matter of private concern must show negligence, meaning that the defendant knew the statement was false, or would have known if she or he had exercised reasonable care.
Types of invasion of privacy claims & Florida distinction
The plaintiff does not need to plead or prove special damages. Emotional distress and mental anguish are sufficient damages. This tort includes four types of wrongs:
- (1) Intrusion on one’s solitude or into one’s private affairs which is highly offensive to a reasonable person;
- (2) Public disclosure of embarrassing private information which is highly offensive to a reasonable person;
- (3) Appropriation of one’s name or picture for personal or commercial advantage (only applies to promotions of products of services, not newsworthy material).
Defenses to right of privacy claims are consent and the defamation privilege defenses. Truth generally is not a good defense.
Florida does not recognize false light claims.
Florida dog owner liability
Florida makes the owner of a dog liable for damages, regardless of the former viciousness of the dog or the owner’s prior knowledge of such viciousness. However, in the absence of negligence, the owner is not liable (except as to a person under the age of six) if at the time of injury:
- (a) the person is not lawfully on the premises; or
- (b) the owner had displayed in a prominent place on the premises 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.
Florida rule for defamation claims against media corporations
In Florida, damages are never presumed if the defendant is a media corporation.
Additionally, Florida has a notice requirement: At least five days before institution of civil action for publication or broadcast of a libel or slander, plaintiff must serve written notice on the media defendant, specifying the alleged false and defamatory article or broadcast. If the newspaper, periodical, or radio or television station fully retracts the libel within 10 days of receipt of notice, and if the original publication or broadcast was made in good faith, then only actual damages may be recovered.
Intentional misrepresentation & Florida distinction
To establish a prima facie case for intentional misrepresentation requires:
- (1) misrepresentation of a material past or present fact;
- (2) which the defendant knew or believed to be false or that there was no basis for the statement;
- (3) intent to induce the plaintiff to act or refrain from acting upon the reliance
- (4) causation (actual reliance)
- (5) justifiable reliance
- (6) damages in the form of actual pecuniary loss.
There are no defenses to intentional misrepresentation.
In Florida, justifiable reliance is not a necessary element.
Negligent misrepresentation
A prima facie case for negligent misrepresentation requires:
- (1) misrepresentation by the defendant in a business or professional capacity;
- (2) breach of duty toward a particular plaintiff;
- (3) causation;
- (4) justifiable reliance;
- (5) damages.
Generally, this action is confined to misrepresentations made in a commercial setting, and liability will attach only if reliance by the particular plaintiff could be contemplated. For example, for negligent misrepresentation, foreseeability that the statement will be communicated to a third party does not make the defendant liable to the third party.
When may a plaintiff recover punitive damages in Florida and how much may they recover? What is the standard of proof? Are there exceptions?
In Florida, a defendant may be held liable for punitive damages only if the trier of fact, based on clear and convincing evidence, finds that defendant was personally guilty of intentional misconduct or gross negligence. Punitive damages generally may not exceed the greater of:
- (a) three times the amount of compensatory damages awarded to each claimant or
- (b) the sum of $500,000.
There are exceptions if the action is motivated by unreasonable financial gain, abuse of children or elderly, intent to harm, or intoxication.
