Torts

Question 1

Duty

Answer 1

Duty of care owed to foreseeable plaintiffs. Act like a reasonably prudent person

Question 2

Invited license (duty)

Answer 2

Fl - In someone’s home, business etc. duty to warn, clean up and make safe

Question 3

If D is in a business (duty)

Answer 3

Use reasonable efforts to keep premises free of transitory foreign objects that can foreseeable lead to an injury

Question 4

Breach

Answer 4

Failure to comply with level of care

Question 5

Causation

Answer 5

Actual cause - but for test
— but for d action, no injury

Proximate cause- foreseeability
— action would foreseeable lead to an injury

Question 6

Damages

Answer 6

Actual physical harm

Question 7

Compensatory damages

Answer 7

Makes D whole (back where you were before)- loss of wages, pain and suffering

Question 8

Intervening v. Superseding cause

Answer 8

Intervening- damages that happen after original negligence. always foreseeable therefore original D liable
— damage in ambulance, problem in hospital

Superseding- unforeseeable - acts of God, intentional torts, criminal acts

Question 9

Defense to Negligence 1

Answer 9

FL- pure comparative negligence. P who was also negligent will have damages reduced by their percentage of fault.
— if legally drunk, over 50% fault: no recovery

Question 10

Defense negligence 2

Answer 10

Assumption of the risk— know and appreciate the nature of the conduct and do it anyway

Question 11

Negligence per se

Answer 11

Violated ordinance, part of protected class of people statue was trying to protect and the injury was the type that it was trying to prevent

Question 12

Good samaratin law

Answer 12

In Fl, no duty to rescue

If you do aid, you owe reasonable care

If medical pro, not liable as long as not reckless.

Question 13

Vicarious liability

Answer 13

Employer is liable for negligent acts of employee as long as employee was acting in scope of employment

Fl, employer is presumed to not have been negligent in hiring if they performed a background check

Question 14

Multiple defendants

Answer 14

Joint and several liability has been abolished. Have to sue each defendant for their fault %

Common law- sue one defendant for the entire damage. That D can later get indemnification from other Ds

Question 15

Sovereign immunity

Answer 15

Gov generally immune from negligent acts of their employees. Unless employee is acting in an operational manner (doing their job) (not liable for planning/discretionary actions)

Question 16

Med Mal

Answer 16

90 day pre suit procedure to file

Negligence committed by Dr.

Standard- act as other medical professionals with similar backgrounds in the community.

If P was unconscious, you can infer medical malpractice

Question 17

Punitive damages

Answer 17

Rarely awarded.

Must show clear and convincing evidence that D acted intentionally, willfully, wantonly and with gross negligence

3x comp or 500k whichever is greater

No cap if conduct intentional

Question 18

Collateral source rule

Answer 18

Damages reduced by any other income received like insurance proceeds

Question 19

Negligent infliction of Emotional distress

Answer 19

Negligent D, someone was in zone of danger, suffered severe emotional distress and suffered physical harm

Question 20

Intentional infliction of emotional distress

Answer 20

Intent or reckless conduct, severe and outrageous conduct causing severe emotional distress.

Question 21

Modified no fault

Answer 21

If injured person has own insurance, they cover first 10k of damages rather than D

Question 22

Dangerous instrumentality

Answer 22

Owner is liable to whoever they consented too for damages when they lend their car.

Question 23

Wrongful death

Answer 23

If negligence cause a death, the dead person can have a representative sue on their behalf

Question 24

Survivor action

Answer 24

If in the course of a suit one of the parties dies, the suit lives on

Question 25

Product liability

Answer 25

Negligence
— can sue if someone acted negligently in the chain
— do reg analysis

Breach of warranty
— express (on fact pattern)
— implied (merchantability, fitness for purpose)

Strict product liability
— manu/design defect
— misrepresentation

Question 26

Implied Warranty of merchantability

Answer 26

Product is of a quality equal to a generally acceptable standard and fit for an ordinary purpose.

Question 27

Implied warranty of fitness for particular purpose

Answer 27

Seller knew or should have know of a particular purpose for which the goods are sold and buyer relied on seller to furnish those goods.

Question 28

Strict product liability

Answer 28

Product left manufacturer in a defecting condition (manu/design defect)

sold by a commercial seller.

A foreseeable user used the product (not only buyer can sue) and

was used in the intended purpose and was unchanged from original condition.

Question 29

Inadequate or failure to warn (strict product liability)

Answer 29

Should have warned but didn’t or warning was not good enough

Another SPL cause

Question 30

SPL Defense

Answer 30

Assumption of Risk

Question 31

Misrepresentation (SPL)

Answer 31

Intentional
— intentionally said or wrote something to induce reliance of a material fact. (A lie)

Negligent
— usually in prof or buss situation
— reliance on saying or not saying something that induced reliance and caused damages

Question 32

Defamation

Answer 32

Statement is defamatory if it is a false statement of fact not opinion of or about the P. Hurts their rep, with publication, fault by D that causes damage.

Pecuniary damage not necessarily needed, damaged rep is enough

Question 33

Publication (defa)

Answer 33

Third party heard and understood what was said

Question 34

Media D (defa)

Answer 34

P who gives written notice 5 days prior to the suit to retract statement— if retraction is printed and original broadcast/statement was in good faith only actually damages will be recovered.

Question 35

Private P (defa)

Answer 35

Proof negligent standard- acted negligent in what you said or wrote

Question 36

Public P (defa)

Answer 36

Standard is actual malice- other party knew or should have known the statement was false. reckless disregard for the truth

Question 37

Slander

Answer 37

Spoken defamation. Need to proof pecuniary loss.

Question 38

Libel

Answer 38

Written/permanent form defamation

No need to prove special damages (pecuniary loss)

Question 39

Slander per se

Answer 39

Damages presumed.

Loathsome disease, profession/trade, chastity of woman, crime of moral turpitude (felony)

Question 40

Defamation defenses

Answer 40

Truth

Qualified privilege

Question 41

Qualified privilege

Answer 41

Statement made in good faith by someone interested in the subject matter and made in a proper manner (I thought I was telling the truth but turns out I was wrong)