Torts Flashcards
How is FL negligence tested?
Usually through rear-end collisions. Note that if D collided w/P from behind, you presume D to be negligent BUT damages are never presumed (so those still need to be shown)
Rule for negligence per se
Same as MBE: (statutotry violation, P is part of the protected class, and injury was such that statute is trying to prevent) BUT only if you’re violating a non-traffic penal statute
Non-traffic penal statute: i.e. battery, robbery, etc. (punishment/fine)
What would a violation of a traffic statute be?
Prima facie evidence of negligence (not negligence per se)
Rule for contributory negligence
FL has abolished contributory negligence and decided to adopt instead modified comparative fault
Rule for Good Samaritan for Hospital/emergency
IF someone is in the emergency room, physicians will only be negligent if they demonstrated a RECKLESS disregard
Use only when there is any type of rescuer (defense of a doctor)
Rule for Comparative fault
Plaintiff’s recovery is reduced by the percentage allocation of his/her own fault.
This also plays for the fault of other Ds
i.e. GR, mom and child. the GR would use comparative fault against the mom and the child to reduce GR’s fault %!!
Modified comparative fault
If plaintiff was 50%+ at fault, P does not recover
For intoxicated Plaintiffs ONLY (i.e. suit for DUI)
Rule for Fabre Defendant
(with comparative fault aff. def.????)
The defendant present at trial (and the jury) can apportion fault to the defendant not present (ghost defendant) to reduce his own damages
Happens under 2 circumstances
- There are multiple defendants (i.e. D1 and D2), and one, D1 settles, and the other goes to trial ….
- D is unknown/could not be brought to court
What happens when facts tell you that P was not wearing a seatbelt?
Rule for failure to wear a seatbelt
Constitutes as comparative fault IF D shows P failed to wear:
1. an operational and available seatbelt
2. failure of which, substantially contributed to P’s injury
(this is NOT negligence per se nor prima facie evidence of negligence)
Rule for assumption of the risk
Plaintiff EXPRESSLY knew and accepted the risk.
FL abolished implied assumption of the risk, so there has to be some sort of reference to waiver (or some sort).
IF there is a statue covering NO assumption of the risk
There cannot be a statute covering the waiver (i.e. a waiver signed by a parent on behalf of his child, falls under § 744.301(3) - natural guardian signing waivers of inherent risks)
Rule for intervening and superseding cause
Intervening = does not break the chain of liability b/c injury was foreseeable
* subsequent negligence is always forseeable
* Intervening cause is the default
Superseding cause = breaks chain of liability b/c unforeseeable
Make sure that each D is blaming each other!!
Particulaly, in driving collisions (but could apply to anything) meaning that D’s state that the other D was the superseding cause
Rule for joint and several liability
FL has abolished joint and several liability and instead allows the Plaintiff to collect from each Defendant only the jury’s apportionment of fault of each D
Rule for strict liability
Same as MBE: D is liable, regardless of SOC, if enganging in abnormally dagerous activities and having wild animals
Rule for dog bites
D is liable form the first bite!! Not required to show dog’s dangerous propensity
Exception to strict liability to dog bites
- If P provoked D – no SL
- If D displayed a “bad dog” sign – no SL
For Kids 6 & under 1&2 does not apply – so even if 1&2 – SL
What are the types of vicarious liability?
Traditional vicarious liability and dangerous instrumentality doctrine
FL does not recognize the guest statute
Dangerous instrumentality doctrine
If you own a thing capable of causing death or serious bodily injury (i.e. car) –> You are liable for any damages caused by it If operated w/owner’s knowledge and consent
No excuse that you didnt know where they would drive the car
Think if you knew and consented that Pepito was gonna borrow your car, and Pepito kills someone, you are comparatively liable too
Personal injury protection (PIP) insurance rule
time to begin treatment to receive benef.
benefit amount
pain & suffer.
Fl has a no fault insurance – so you’d get paid from ins. regardless of who’s at fault.
* time limit to begin treatment to receive benefits: 14 days after the accident
* benefit amount: up to $10K
* Pain and suffering damages? Not entitled to these UNLESS you can show the injuries are permanent.
Tort immunities
Types
Husband-wife
Parent-child
Sovereign immunity
H&W immunity
FL has abolished it, they CAN sue each other
Parent-child immunity
Child CAN sue parent(s) ONLY if parent had insurance (insurance coverage is needed)
Damages limited to the ins. policy
Which for car accidents, the limit is $10K
State sovereign immunity
Cannot sue state under this BUT Fl has waived it and offers max: (a) $200K per person or (b) global settlement of $300K per accident
Damages
Make sure to ALWAYS discuss damages (in torts essays).
You have economic (bills) and non-economic (pain and suffering) damages + punitive damages
Punitive damages
When available + limits
You can be entitled to punitive damages IF there was intentional conduct OR gross misconduct (from D)
Limits: you can get the greater sum b/w $500K or 3 times compensatory damages
Rule for Good Samaritan
Rule for Good Samaritan
in your words, not the statute itself
EVERYONE that aids/rescues someone (NOT in a hospital) MUST act like a reasonable person
Even if doctor, the SOC is reasonable, not that of a doctor
Good Samaritan statute for hospitals/emergency physicians
What’s their SOC to be negligent
IF someone is in the emergency room, they are ONLY liable if demonstrating reckless disregard (not just negligent)
This is a defense by a doctor
Medical malpractice presuit requirements
All steps (4)
Atty. has to develop a **good faith belief **that malpractice ocurred through a reasonable investigation, which requires:
1. obtaining a written opinion from a doctor w/same specialty as the defendant doctor (not discoverable)
2. obtaining a verified affidavit from a medical expert (can be the same/different than the opinion) - this is discoverable.
Then, you need to provide notice of intent to initiate litigation (NOI):
1. letter w/intent
2. copy of verified affidavit ^^ (from investigation)
3. client’s medical records
After providing the NOI, D’s reasonable investigation takes place
* D has 90 days to conduct his own reaosnable investigation and either: (1) reject claim; (2) offer settlement; or (3) offer to admit liability and arbitrate damages.
Consider you need to toll SOL, and there are 2 ways:
1. Tolls for 90 days after NOI
2. You file a court petition before NOI to get extra time
Common ethics issues in FL torts
2
Contingency fees & solicitation of clients
Contingency fees rule
- Must be in writting and signed
- include statement of client’s rights
- must be cancellable within 3 days of execution
Solicitation of clients
in tort actions
NO solicitation for 30 days AFTER the accident.
+ only allowed IF not in person
