Torts

Question 1

What can plaintiff do to show negligent conduct by D in manufacturing defect case?

Answer 1

May invoke res ipsa loquitur against manufacturer if error is usually something that does not occur without the negligence of the manufacturer.

Question 2

When does the duty of care arise in products liability negligence actions?

Answer 2

It arises when the defendant engages in the affirmative conduct associated with being a commercial supplier of products. It includes manfacturers and wholesalers.

Question 3

To whom is the duty of care owed in products liability cases?

Answer 3

To any foreseeable plaintiff - user, consumer, or bystander. Privity is not required.

Question 4

How can a P show breach in products liability negligence case?

Answer 4

(1) negligent conduct by D leading to
(2) supplying of defective product

Question 5

What is a manufacturing defect?

Answer 5

when a product emerges from manufacturing different from and more dangerous beyond the expectation of the ordinary customer from the products that were made properly

Question 6

When is a product defectively designed?

Answer 6

When all of the products of a line are the same but have dangerous propensities beyond the expectation of the ordinary customer.

Question 7

What is an information defect?

Answer 7

When a manufacturer fails to give adequate instructions or warnings as to the risks involved using the product that may not be apparent to users.

Question 8

What is the effect of a company’s compliance with government safety standards?

Answer 8

If company complied: rebuttable presumption that product is not defective
If company failed to comply: rebuttable presumption that product is defective

Question 9

Pure comparative negligence

Answer 9

Under this approach, any party may have claim for damages unless she was 100% at fault. The percentage of fault of P & D is calculated based on the comparative fault of all parties to the injury-causing event, regardless of whether they joined in the suit or not.

Question 10

What does a dealer who markets goods from a reputable manufacturer need to do to avoid liability for manufacturing defects?

Answer 10

make a cursory inspection of the goods

Question 11

To establish a P/F case in products liability based on strict liability, the following elements must be proven:

Answer 11

(1) D is commercial supplier
(2) D produced or sold product that was defective when left d’s control
(3) actual and proximate causation
(4) damages

Question 12

What presumption will P get in SL products liability claim if she shows that the defect was lack of adequate warning?

Answer 12

Presumption that an adequate warning would’ve been read and heeded

Question 13

What is the difference in likelihood of products liability for a retailer in a SL action vs. a negligence action?

Answer 13

In negligence, it is hard to hold the retailer liable for defective products because he can satisfy his duty through cursory inspection.
In SL, he can be liable for manufacturing or design defect simply because he is a commercial supplier of defective product, even if no opportunity to inspect manufacturer’s product before selling it.

Question 14

What is the implied warranty of merchantability and fitness?

Answer 14

When a merchant who deals in certain kinds of goods sells those goods, they make an implied warranty that they are merchantable–of quality equal to that generally acceptable and generally fit for ordinary purposes for which such goods are used. The warranty of fitness for a particular purpose arises when the seller knows or has reason to know the particular purpose for which the goods are required and that the buyer is relying on seller’s skill or judgment to select the goods.

Proof of fault is unnecessary. If the product fails to live up to the standards imposed by implied warranty, there is breach.

Question 15

Negligent Misrepresentation

Answer 15

(1) misrepresantion by D in business or professional capacity
(2) breach of duty toward particular P
(3) justifiable reliance by P on misrep AND
(4) causation
(5) damages

*only L to persons to whom statement was made or knew would rely on statement

Question 16

What duty does the owner of business premisies have?

Answer 16

Reasonable care to maintain the premises in a reasonably safe condition for business invitees. This includes reasonable efforts to keep the premises free from transitory foreign objects that might foreseeably give rise to inury.

Question 17

What must claimant show in negligence c/a as result of transitory foreign object ?

Answer 17

(1) business owed a duty to calimaint
(2) business failed to exercise reasonable care in the maintenance, inspection, repair, warning, or mode of operation of the business premises
(3) the business had actual or constructive knowledge of the dangerous condition AND
(4) failure to exercise reasonable care caused damages

Question 18

How can P show that a business had constructive knowledge of a danagerous condition?

Answer 18

Cricumstancial evidence showing that
(1) the dangerous condition existed for such a length of time that, in the exercise of ordinary care, the business should’ve known of the condition OR
(2) the condition occurred with regularity and was therefore foreseeable

Question 19

Invitee / invited licensee

Answer 19

A person who enters the premises in response to an express or implied invitation for a purpose connected with the business

Question 20

What duty does a landowner owe to an invitee / invited licensee?

Answer 20

Landowner owes a duty to invitees regarding hazardous conditions that are:
concealed and
known to the landowner or could’ve been discovered by reasonable inspection

Question 21

When does the duty to warn not exist in the situation of a landowner/invitee?

Answer 21

When the dangerous condition is so obvious that the invitee should reasonable have been aware of it

Question 22

A patron slips and falls on a puddle on the floor. How can the business avoid liability?

Answer 22

Can try to show evidence that it regularly inspected for spills and that it was extremely unusual to have a spill.

Question 23

Intentional infliction of emotional distress

Answer 23

(1) an act by D amounting to extreme and outrageous conduct
(2) intent on the part of D to cause P to suffer severe emotional distress or recklessness as to the effect of D’s conduct
(3) causation AND
(4) damages (severe emotional distress - physical damages not required)

Question 24

What is outrageous conduct for purposes of IIED?

Answer 24

Conduct that transcends all bounds of decency tolerated in society.

Question 25

Are actual damages required for IIED?

Answer 25

Yes - nominal damages will not suffice.

Question 26

Battery

Answer 26

(1) act by D
(2) with intent
(3) to bring about harmful or offensive contact to P’s person
(4) causation

Question 27

are damages required for intentional torts?

Answer 27

no

Question 28

Standard for determining whether conduct is harmful or offensive

Answer 28

Whether a person of ordinary sensibilities would find it to be

Question 29

Assault

Answer 29

(1) an act by D
(2) with intent
(3) that creates a reasonable apprehension in P of immediate harmful or offensive contact to P’s person
(4) causation

Question 30

Self defense

Answer 30

When a person has reasonable grounds to believe that he is about to be attacked, he may use or threaten force that is reasonably necessary for protection against the injury. In Florida, a person is justified in using or threatening force against another when he reasonably believes necessary to defend himself or a third party against the other’s imminent use of unlawful force.

Question 31

What standard is used to determine whether force used in self defense was reasoanble?

Answer 31

An objective standard of the reasonably prudent person

Question 32

Self defense is limited to the right to use force to…

Answer 32

prevent the commisison of a tort. One may never use force in retaliation where there is no longer any threat of injury.

Question 33

Background checks

Answer 33

In an action against the employer for negligent hiring, if employer conducts a background check before hiring that does not reveal any information reasonably demonstrating the employee’s unsuitability for the work, then the employer is entitled to a presumption that he was not negligent.

However, if the employer fails to conduct a background check, no presumption of negligence is applied.

Question 34

Punitive damages are available when

Answer 34

D acted with intentional misconduct or gross negligence

Question 35

A claimant may not plead punitive damages unless

Answer 35

evidence in record demonstrates a reasonable basis for recovery

Question 36

Cap on punitive damages

Answer 36

Punitive damages should not exceed
(1) 3x the compensatory damage or
(2) 500,000

However, if D had specific intent to harm claimant and did so, no cap.

Question 37

Duty to retreat

Answer 37

A person who isn’t engaged in a crime and who is attacked in a place they have the right to be, has no duty to retreat and has the right to use force, including deadly force, if they reasonably believe it’s necessary to prevent death, great bodily harm, or the commission of a forcible felony.

Question 38

Presumption of fear of death / great bodily harm if

Answer 38

(1) a person unlawfully and forcefully enters your home or occupied vehicle and
(2) you know or have reason to believe that an unlawful and forcible entry had occurred/was occurring

Question 39

Deadly force is not justified to protect property unless

Answer 39

there is a reasonable belief that the force is necessary to prevent imminent commission of a forcible felony.

Question 40

Duty

Answer 40

P must show that D had a duty to conform to a specific standard of conduct for the protection of P against unreasonable risk of injury

Question 41

General rule for proximate cause

Answer 41

D is liable for all harmful results that are the normal, foreseeable incidents of and within the increased risk caused by his acts

Question 42

Comparative fault

Answer 42

the percentage of fault of P & D is calculated based on the comparative fault of ALL parties, regardless of whether they joined in the suit or whether they could be joined. Each D can assert the defense of comparative fault to the other Ds.

Question 43

Florida’s no fault insurance law

Answer 43

P’s own auto insurer will pay for the first 10k out of pocket expenses. Remainder can be recoverd from defendants.

Question 44

Collateral source rule

Answer 44

Under the collateral source rule, a court must reduce any damages awarded to a claimant by any amounts available to claimant from collateral sources (not including medicare, medcaid, and workers comp). This reduction is offset by any amount paid by claimant for the benefit (such as insurance premiums).

Question 45

NIED near miss cases

Answer 45

P must show
(1) P was in zone of danger and
(2) P suffered physical symptoms from distress or actual physical impact, however slight, that causes distress

Question 46

NIED Bystander cases

Answer 46

(1) P and injured person closely related
(2) P was present at scene of injury or arrived immediately after event occurred
(3) physical injury directly caused by psychological trauma from event

Question 47

Merged causes of injury

Answer 47

Where several causes bring about injury and any one alone would be sufficient to cause the injury, D’s conduct is the cause in fact if it was a substantial factor in causing the injury.

Question 48

But for test

Answer 48

An act or omission is a factual cause of injury when the injury would not have occurred but for the act or omission. This applies where several acts (each insufficient to cause the injury alone) combine to cause injury.

Question 49

Unascertainable causes approach

Answer 49

When there are 2 acts, only one of which causes injury, but it is not known which one - burden of proof shifts to Ds and each must show it wasn’t his negligence that caused the injury.

Question 50

What are the steps for filing medmal?

Answer 50

1. CL investigates grounds and gets written opinion by medical expert verifying the grounds
   2.90 days before filing, P notifies each D by mail
2. At the end of the 90 days, D’s insurer rejects claim, makes offer to settle or offers to admit liability and arbitrate
3. P must accept or reject w/in 50 days

Question 51

Joint and several liability

Answer 51

Florida has abolished joint and several liability except for intentional torts. Judgment against each liable party is entered based on that party’s percentage of fault.

Question 52

To allocate the fault of a non-party D must…

Answer 52

affirmatively plead the fault of the nonparty and prove their fault by a preponderance of the evidence

Question 53

Standard of care for doctors

Answer 53

Must use care that is recognized as acceptable and appropriate by reasonably prudent similar health care providers in light of all relevant circumstances.