Torts Flashcards
Duty
Duty of care owed to foreseeable plaintiffs. Act like a reasonably prudent person
Invited license (duty)
Fl - In someone’s home, business etc. duty to warn, clean up and make safe
If D is in a business (duty)
Use reasonable efforts to keep premises free of transitory foreign objects that can foreseeable lead to an injury
Breach
Failure to comply with level of care
Causation
Actual cause - but for test
— but for d action, no injury
Proximate cause- foreseeability
— action would foreseeable lead to an injury
Damages
Actual physical harm
Compensatory damages
Makes D whole (back where you were before)- loss of wages, pain and suffering
Intervening v. Superseding cause
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
Defense to Negligence 1
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
Defense negligence 2
Assumption of the risk— know and appreciate the nature of the conduct and do it anyway
Negligence per se
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
Good samaratin law
In Fl, no duty to rescue
If you do aid, you owe reasonable care
If medical pro, not liable as long as not reckless.
Vicarious liability
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
Multiple defendants
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
Sovereign immunity
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)
Med Mal
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
Punitive damages
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
Collateral source rule
Damages reduced by any other income received like insurance proceeds
Negligent infliction of Emotional distress
Negligent D, someone was in zone of danger, suffered severe emotional distress and suffered physical harm
Intentional infliction of emotional distress
Intent or reckless conduct, severe and outrageous conduct causing severe emotional distress.
Modified no fault
If injured person has own insurance, they cover first 10k of damages rather than D
Dangerous instrumentality
Owner is liable to whoever they consented too for damages when they lend their car.
Wrongful death
If negligence cause a death, the dead person can have a representative sue on their behalf
Survivor action
If in the course of a suit one of the parties dies, the suit lives on
Product liability
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
Implied Warranty of merchantability
Product is of a quality equal to a generally acceptable standard and fit for an ordinary purpose.
Implied warranty of fitness for particular purpose
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.
Strict product liability
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.
Inadequate or failure to warn (strict product liability)
Should have warned but didn’t or warning was not good enough
Another SPL cause
SPL Defense
Assumption of Risk
Misrepresentation (SPL)
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
Defamation
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
Publication (defa)
Third party heard and understood what was said
Media D (defa)
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.
Private P (defa)
Proof negligent standard- acted negligent in what you said or wrote
Public P (defa)
Standard is actual malice- other party knew or should have known the statement was false. reckless disregard for the truth
Slander
Spoken defamation. Need to proof pecuniary loss.
Libel
Written/permanent form defamation
No need to prove special damages (pecuniary loss)
Slander per se
Damages presumed.
Loathsome disease, profession/trade, chastity of woman, crime of moral turpitude (felony)
Defamation defenses
Truth
Qualified privilege
Qualified privilege
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)
