Torts

Question 1

How is FL negligence tested?

Answer 1

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)

Question 2

Rule for negligence per se

Answer 2

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)

Question 3

What would a violation of a traffic statute be?

Answer 3

Prima facie evidence of negligence (not negligence per se)

Question 4

Rule for contributory negligence

Answer 4

FL has abolished contributory negligence and decided to adopt instead modified comparative fault

Question 5

Rule for Good Samaritan for Hospital/emergency

Answer 5

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)

Question 6

Rule for Comparative fault

Answer 6

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 %!!

Question 7

Modified comparative fault

Answer 7

If plaintiff was 50%+ at fault, P does not recover

For intoxicated Plaintiffs ONLY (i.e. suit for DUI)

Question 8

Rule for Fabre Defendant

(with comparative fault aff. def.????)

Answer 8

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

1. There are multiple defendants (i.e. D1 and D2), and one, D1 settles, and the other goes to trial ….
2. D is unknown/could not be brought to court

Question 9

What happens when facts tell you that P was not wearing a seatbelt?

Rule for failure to wear a seatbelt

Answer 9

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)

Question 10

Rule for assumption of the risk

Answer 10

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)

Question 11

Rule for intervening and superseding cause

Answer 11

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

Question 12

Rule for joint and several liability

Answer 12

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

Question 13

Rule for strict liability

Answer 13

Same as MBE: D is liable, regardless of SOC, if enganging in abnormally dagerous activities and having wild animals

Question 14

Rule for dog bites

Answer 14

D is liable form the first bite!! Not required to show dog’s dangerous propensity

Question 15

Exception to strict liability to dog bites

Answer 15

1. If P provoked D – no SL
2. If D displayed a “bad dog” sign – no SL

For Kids 6 & under 1&2 does not apply – so even if 1&2 – SL

Question 16

What are the types of vicarious liability?

Answer 16

Traditional vicarious liability and dangerous instrumentality doctrine

FL does not recognize the guest statute

Question 17

Dangerous instrumentality doctrine

Answer 17

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

Question 18

Personal injury protection (PIP) insurance rule

time to begin treatment to receive benef.
benefit amount
pain & suffer.

Answer 18

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.

Question 19

Tort immunities

Types

Answer 19

Husband-wife
Parent-child
Sovereign immunity

Question 20

H&W immunity

Answer 20

FL has abolished it, they CAN sue each other

Question 21

Parent-child immunity

Answer 21

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

Question 22

State sovereign immunity

Answer 22

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

Question 23

Damages

Answer 23

Make sure to ALWAYS discuss damages (in torts essays).
You have economic (bills) and non-economic (pain and suffering) damages + punitive damages

Question 24

Punitive damages

When available + limits

Answer 24

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

Question 25

Rule for Good Samaritan

Question 26

Rule for Good Samaritan

in your words, not the statute itself

Answer 26

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

Question 27

Good Samaritan statute for hospitals/emergency physicians

What’s their SOC to be negligent

Answer 27

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

Question 28

Medical malpractice presuit requirements

All steps (4)

Answer 28

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

Question 29

Common ethics issues in FL torts

2

Answer 29

Contingency fees & solicitation of clients

Question 30

Contingency fees rule

Answer 30

1. Must be in writting and signed
2. include statement of client’s rights
3. must be cancellable within 3 days of execution

Question 31

Solicitation of clients

in tort actions

Answer 31

NO solicitation for 30 days AFTER the accident.
+ only allowed IF not in person