Torts

Question 1

Compensatory Damages

Answer 1

Compensatory damages are designed to make the plaintiff whole and flow directly from the wrongful act (pain and suffering, disfigurement). Special damages are indirectly related to the tort (i.e., medical expenses, lost wages). Special damages must be foreseeable.

Question 2

Punitive Damages

Answer 2

In Florida, punitive damages will be awarded when there is clear and convincing evidence that the defendant acted intentionally, willfully, wantonly, or with gross negligence. Punitive damages are 3x compensatory or 500k whichever is greater. There is no cap if intentional.

Question 3

Collateral Source Rule

Answer 3

Florida has modified the collateral source rule to prevent double recovery which means any insurance or third-party payment will be deducted from the overall award.

Question 4

Car Accident Damages: Florida Modified No-Fault

Answer 4

If the injured person has their own insurance, they will pay the first 10k of damages.

Question 5

Dangerous Instrumentality Doctrine

Answer 5

The owner is liable for any driver’s negligence if they consent to use their vehicle.

Question 6

Rear-end Collision Rule

Answer 6

In Florida, there is a rebuttable presumption that the rear driver in a rear-end collision was the sole and proximate cause of the accident unless they can show there was (1) an abrupt lane change (2) illegal stop by lead driver OR (3) mechanical failure of rear drivers’ car which was not his fault.

Question 7

Seat Belt Defense

Answer 7

In Florida, a negligent driver can assert the seat belt defense if they can show the Plaintiff failed to use an available and operational seatbelt, the nonuse was unreasonable, and the nonuse caused or substantially contributed to Ps injuries. – this is a sub-defense to comparative negligence

Question 8

Defamation

Answer 8

In Florida, in order to prove a defamation action, the Plaintiff must be able to plead and prove the following. A false defamatory statement was made, by the defendant, of or about the plaintiff, that was published (heard and understood) to one or more persons, and that it caused damage to the plaintiff’s reputation. In Florida, a public person must prove the defamatory statements were made with malice (D knew statements were false or acted with reckless disregard of the truth). However, a private person needs only to prove the statements were made negligently. Florida also requires private plaintiffs to prove falsity

Question 9

Defamation: Media Defendant

Answer 9

At least 5 days before initiating a defamation action against a media defendant the plaintiff must serve written notice on the defendant identifying the defamatory article or broadcast. If the defendant fully retracts within 10 days and the publication was made in good faith the only actual damages may be recovered (no punitive damage potential) — can be used as a defense.
In a libel, slander, or slander per se action against the media the P must always prove special damages. No presumed damages against media.

Question 10

Libel / Slander / Slander per se

Answer 10

Libel is written or in permanent form and Plaintiff does not need to prove special damages, only general damages.

Slander is spoken and must prove special damages.

Statements are slander per se if they are about criminal activity (infamous crime or felony), loathsome disease, unchased behavior, or business wrongdoing and damages are presumed.

Question 11

Defamation Damages

Answer 11

General damages are damages that compensate the plaintiff for the harm to their reputation. Special damages are any type of economic loss suffered by the plaintiff.

Question 12

Defamation Defenses

Answer 12

Truth (absolute defense),

Absolute privilege (court proceedings),

Qualified privilege is a statement made by someone interested in the subject matter and made in good faith (necessary to protect defendants or public interest i.e. letter of recommendation)

1st amendment (can publish info for public good but not false info)

Question 13

Battery

Answer 13

The intent to cause contact that is harmful or offensive.

Question 14

Assault

Answer 14

The intent to create a reasonable apprehension of imminent harm that is either harmful or offensive with the ability to carry out the act.

Question 15

False Imprisonment

Answer 15

The intent to confine without legal justification, with no reasonable means of escape, must be aware of the confinement or harmed during the confinement.

Question 16

Intentional Infliction of Emotional Distress (IIED)

Answer 16

When the defendant intentionally or recklessly engages in extreme or outrageous conduct which causes the plaintiff severe emotional distress. Conduct exceeds all bounds of decency.

Question 17

Trespass to Land

Answer 17

Inten to enter another’s land without consent

Question 18

Trespass to Chattel

Answer 18

The intentional interference with a right of possession in personal property by either dispossessing, using, damaging or intermeddling with the chattel for any amount of time.

Question 19

Conversion

Answer 19

The interference with a person’s property the intent to permanently deprive. Can be required to pay full value. Conversion is the exercise of dominion and control over property.

Question 20

Defense to Intentional Torts

Answer 20

Consent
Self-defense
Defense of Others
Defense of Property
Necessity (Private & Public)
Authority of Law

Question 21

Medical Malpractice

Answer 21

Notice of medical malpractice suit must be made 90 days before filing suit and there must be a reasonable investigation determining there are good faith grounds for the claim. Good faith is shown if a claimant received a written opinion from an expert stating there appears to be medical negligence.

Question 22

Negligence

Answer 22

In any negligence action, Plaintiff must show the following: D owed a duty to P to conform his conduct to a standard of care necessary to avoid unreasonable risk of harm to others. D’s conduct fell below the standard of care resulting in a breach of duty. D’s conduct was the Cause-in-fact and the proximate cause of the P’s injuries which caused damage.

Question 23

Duty

Answer 23

Defendant owes a duty to all foreseeable persons in the zone of risk of the activity that the defendant is conducting.

Question 24

Breach

Answer 24

Defendant has a general duty to act as a reasonably prudent person would in the same or similar circumstances. D breaches his duty of care if his conduct falls below the applicable standard of care owed. Special standard of care…(insert here)

Question 25

Cause-in-fact

Answer 25

Cause-in-fact means that BUT FOR the defendant’s breach of duty, the plaintiff would not have been injured.

Question 26

Proximate Cause

Answer 26

Proximate cause means that the defendants’ actions foreseeably and substantially caused the actual injury.

Intervening cause is a foreseeable act that contributes to plaintiff’s harm after the tortious conduct has been complete, but it does NOT cut off proximate cause.

A superseding cause is an unforeseeable event that breaks the chain of proximate causation and relieves the D of liability because the act was unforeseeable. (i.e., acts of god, intentional torts, criminal acts)

Question 27

Damages (Negligence)

Answer 27

Plaintiff suffered personal injury or property damages.

Question 28

Negligence Per Se

Answer 28

D’s duty established by statute. D is negligent per se if he violates a statute that is designed to protect against the type of harm that occurred and the plaintiff is within the class of persons the statute is designed to protect. Negligence per se creates a conclusive presumption of duty and breach of duty. However, in Florida, the violation of a non-penal statute is merely some evidence of negligence.

Question 29

Res Ipsa Loquitor

Answer 29

Under the doctrine of res ipsa loquitor, the trier of fact may infer the existence of negligence in the absence of direct evidence when the accident is one that does not normally occur in the absence of negligence. – Res ipsa is circumstantial evidence of negligence.

Question 30

Florida Good Samaritan Rule

Answer 30

In Florida, there is no duty to render aid but any person who gratuitously, in good faith, and without objection does render aid then they must act with reasonable care.

If a medical professional is rendering aid they are not liable unless they act recklessly.

Question 31

Negligent Infliction of Emotional Distress (NIED)

Answer 31

NIED occurs when there is a negligent act, the plaintiff is in the zone of danger and suffers severe emotional distress as well as physical impact or physical symptoms.

Bystander can recover under NIED when the plaintiff is at the scene, observes the injury, and is a close relative (case by case basis)

Question 32

Pure Comparative Negligence

Answer 32

Florida, is a pure comparative negligence state which means Ps award will be reduced by the amount of his own negligence. Additionally, in Florida, If the plaintiff is found to be legally drunk and more than 50% responsible for the injury there is no recovery.

Question 33

Assumption of the Risk

Answer 33

The plaintiff knew and appreciated the risk but does it anyways. Assumption of the risk is not a separate defense in a pure comparative jurisdiction is merges with pure comparative and is a factor considered when determining how much the plaintiffs award will be reduced.

Question 34

Open and Obvious Doctrine

Answer 34

In Florida, the open and obvious doctrine provides that a landowner is not liable for injuries caused by the dangerous condition of the land when the danger is known or obvious

Question 35

Joint and Several Liability

Answer 35

Florida has abolished joint and several liability (except for cases involving intentional torts) which means each defendant is liable for the percentage of their own fault.

Question 36

Parent-Child Immunity

Answer 36

In Florida, there is no parental immunity for negligence, an action for negligence brought by a minor child against a parent, parental immunity is waived to the extent of the parent’s available liability insurance coverage.

Question 37

Nuisance

Answer 37

A private nuisance is an act that substantially and unreasonably interferes with a person use or enjoyment of land.

Substantial interference is one that is offensive, inconvenient, or annoying to a reasonable person in the community.

A public nuisance is an unreasonable interference with a right common to the general public.

Question 38

Attractive Nuisance

Answer 38

Under attractive nuisance doctrine, a landowner has a duty of reasonable care to protect children from artificial dangers on the land when there is reason to know children are likely to trespass and they cannot appreciate the danger. In Florida, the children must have been lured to the property by the dangerous condition.

Question 39

Invitee

Answer 39

Public Invitee – a licensee on the premises by the express or implied invitation of the owner or possessor of the property (same duty as business invitee)

Business Invitee – on premises for business transaction (firefighters included in FL)
Duty of reasonable care to keep the premises safe and free of transitory foreign objects that could foreseeably lead to an injury
The burden of proof rests with the claimant to show that the business had actual or constructive notice of the object or substance alleged to have caused the injury.

Question 40

Licensee

Answer 40

1. Invited Licensee – an invited social guest
   → Duty: warn of known dangers and make reasonable inspection for dangers
2. Uninvited Licensee – on premises without invitation
   → Duty: duty to refrain from inflicting willful or wanton injury

Question 41

Tresspasser

Answer 41

1. Discovered Trespasser – a person who is detected within 24 hours before suffering injury
   → Duty to warn of known dangers and must refrain from intentional misconduct or gross negligence
2. Undiscovered Trespasser – presence unknown
   → No duty to warn of dangers but must refrain from intentional misconduct

Question 42

Misappropriation of Right of Publicity

Answer 42

A defendant who uses a person’s name or likeness for commercial purposes without consent. In Florida, this tort survives death and can bring action up to 40 years after death.

Question 43

False Light

Answer 43

Public facts, placing the plaintiff in a false light, that would be highly offensive to a reasonable person. The Florida supreme court ruled in Jews for Jesus, Inc., that false light invasion of privacy is not a recognized tort. However, Florida does recognize defamation by implication which is when a true statement creates a false impression.

Question 44

Public disclosure of Private Facts

Answer 44

publication of private facts that are highly offensive to a reasonable person and not of public concern. Florida does not impose liability for facts that are of legitimate public concern.

Question 45

Intrusion upon seclusion

Answer 45

Intentional intrusion upon the solitude or seclusion of another. Florida does not require the intrusion to be highly offensive.

In all privacy torts, damages, no need to prove special damages. Defense: Consent

Question 46

Sovereign Immunity

Answer 46

The government (state) is generally immune from the negligent acts of their employees (i.e., police). If the cop was acting operating within the scope (operational) then there will be liability. If it is merely a ministerial function there is no liability.

Question 47

Negligence: Standard of Care

Answer 47

Child - reasonable child of similar age, intelligence, and experience.
→ Dangerous adult activity – same standard as a reasonable adult engaging in same activity. Florida courts tend to find children under the age of 6 incapable of negligence.
Common Carrier
→ Duty to exercise the highest degree of care for P’s safety
Rescuers
→ D owes duty to rescuer when D negligently puts himself or third person in peril (Danger invites rescue)
Professionals (not medical malpractice)
→ A professional is expected to have the same skill and knowledge as an ordinary practitioner in the same community.

Question 48

Dog Bites

Answer 48

Florida applies strict liability when a dog bites a person regardless if the owner knew the dog had dangerous propensities.

If the owner places a sign that says “bad dog” there is no liability unless the person bitten is under the age of 6 or proximately caused by the owner.

Landlords are liable for tenant dog bites if they know of the dogs dangerous propensities and have the ability to control the dogs presence.

Question 49

Product Liability

Answer 49

In Florida, a plaintiff can bring a product liability claim based on negligence, breach of warranty, or strict product liability.

Negligence owes a duty of care to any foreseeable user, breach by failure to use reasonable care in the inspection or sale of the product (defect would have been discovered if reasonable care),

Question 50

Strict Product Liability

Answer 50

1. First, there must be a proper defendant, which is a Manufacturer, Designer, Wholesaler, or Seller, of a good that places it in the stream of commerce
2. Next, the product must have reached the consumer without a substantial change in the condition which it was sold.
3. Next the product was defective, the defect existed at the time it left the defendants control, it was used by a foreseeable user for its intended purpose.

There are 3 types of defects: Manufacturer, Design, and Warning defect
• A manufacturer defect is when a product is manufactured in a form other than the manufacturer intended.

• A design defect is when the product was manufactured as intended but due to its defective design presents a danger to consumers. A design defect exists when a product is more dangerous than the ordinary consumer expected it to be.

• An absence of a warning defect is when the manufacturer knew or reasonably should have known danger presented and failed to take precautions of a reasonable person —
• An inadequate warning defect is when the warning fails to sufficiently describe or mention all of the danger.

4. Next, there must be proximate causation, which mean it was foreseeable that the defective condition would cause the injury.
5. Finally, there must be damages, which means personal injury or property damage.

Question 51

Product Liability Defenses

Answer 51

Comparative Negligence
Assumption of the risk

In Florida, the defendant can raise the defense of state of the art which means at the time the product was manufactured it was made in accordance with existing scientific and safety knowledge and was reasonably feasible.

In Florida, there is a rebuttable presumption that a product is not defective if, at the time it was sold, the product complied with governmental standards.

Question 52

Respondeat Superior

Answer 52

An employer is vicariously liable for injuries cause by negligence of an employee if the negligent act occurred within the scope of employment.

An employee acts within the scope of employment if they are performing duties they were hired to do. Employers are generally not liable for intentional torts of employees unless the actions were motivated by a desire to serve or promote the employer’s business.

In Florida, there is a presumption against negligent hiring if the employer conducted a background investigation and determined they were suitable for the job. – must add this to the end of vicarious liability rule

Question 53

Wrongful Death

Answer 53

Florida’s Wrongful Death Act provides that when a person’s death is caused by the negligence or wrongful act of another, that person will be liable as if the death had not occurred.

The decedents PR can bring wrongful death suit against defendant and recover for the benefit of the decedent’s survivors. (loss of companionship, loss of support, pain and suffering NOT available) recovery for mental pain and suffering by spouse, children

Question 54

Survival

Answer 54

Florida’s survival statute states the if in the course of the suit a person dies, all lawsuits will survive and will be maintained by the PR (loss of support, pain and suffering is available).