Torts Flashcards
Negligence
Negligence requires a duty, breach, causation, and damages.
Duty
A duty is owed to all foreseeable plaintiffs to act as a reasonable prudent person under the circumstances
Duty for healthcare providers
Medical professionals have a duty to act as other medical professionals with similar training and expertise in the same community
Duty for minors
A child has a duty to act as a reasonable child of similar age, intelligence, and experience. However, if the minor is engaging in an adult activity, the standard is of a reasonably prudent person.
Premises liability
The type of duty owed to a plaintiff depends on whether the plaintiff is considered to have been a business invitee, an unknown/undiscovered trespasser, or a known/discovered trespasser.
Business invitee
If the plaintiff is a business invitee (also known as an invited licensee), then owners of the property owe a duty to inspect and warn or make safe any known non-obvious dangerous conditions on the land.
Unknown/undiscovered trespasser
A duty is owed to refrain from intentional conduct which harms trespassers
Known/Discovered trespasser
Known/discovered trespassers are trespassers discovered within 24 hours of the injury. A duty is owed to warn of known dangerous non-obvious conditions on the land
Breach
Breach occurs when the actor did not conform to the standard of care.
Causation
There are two types of causation: actual cause, and proximate cause.
Actual cause
To determine if the breach was the actual cause of the injury one applies the but-for test: but for the defendant’s negligence, plaintiff would not have been injured. When there are multiple concurrent causes of injury, one uses the substantial factor test: the defendant’s negligence is a substantial factor in bringing about the harm.
Proximate cause
Proximate cause acts as a limit on a defendant’s liability to foreseeable harm which results from their breach of duty. There are two categories of proximate cause: direct and indirect.
Proximate cause - Direct
Defendants are liable for all injuries that occur directly from their actions when there is no break in the causal claim.
Proximate cause - indirect
Defendants are liable for injuries caused indirectly by their breach if those forces are foreseeable. Foreseeable forces which do not break the chain of proximate cause are intervening forces. Forces that are unforeseeable and break the chain of proximate cause are superseding causes, such as crimes, intentional torts, and acts of God.
Damages
Damages are not presumed, and include personal injuries and property damage.
Negligence per se
Negligence per se renders a defendant liable for violation of a statute when the plaintiff is a member of the class protected by the statute, and when the harm suffered is the type that the statute was intended to prevent.
Negligence per se - seatbelt
In Florida, failure to use an available and operational seatbelt is not considered negligence per se.
Good samaritan
In Florida, there is no duty to rescue, but is you rescue, you must act reasonably, otherwise it is considered a negligent rescue.
Good samaritan - medical professionals
Medical professionals are liable in emergency situations only if they act recklessly.
Defenses to negligence
Modified comparative negligence, sovereign immunity, parent-child immunity, and express assumption of the risk
Modified Comparative negligence
In Florida, a plaintiff’s recovery will be reduced by the percentage of their own negligence up to 50%. If the plaintiff is more than 50% negligent, then they are barred from recovering.
Joint and several liability
Abolished in Florida!!!
Sovereign immunity
The state of Florida has waived immunity for operational decisions up to $200k per individual and $300k per accident. Remains immune for planning decisions.
Parent-child immunity
In Florida, parent-child immunity has been waived for sexual abuse and negligence. For negligence, the immunity is waived only to the extent of the parent’s liability insurance coverage.
Express assumption of risk
A plaintiff cannot recover if they (1) knew of the risk and (2) voluntarily proceeded despite the risk. Florida has abolished implied assumption of the risk.
Vicarious liability scenarios
Respondeat superior, negligent hiring, negligent entrustment, dangerous instrumentality, and dram shop
Respondeat superior
An employer is vicariously liable for the negligence of its employees within the scope of employment. Employers are not liable for intentional torts unless they are committed to advance the employer’s interest
Negligent hiring
An employer is presumed non-negligent if they performed a background check and found nothing.
Negligent entrustment
Negligent entrustment occurs when the owner of chattel gives it to another and knows or has reason to know that the other, due to inexperience, youth, or otherwise, may use It to create an unreasonable risk of harm
Dangerous instrumentality
A defendant owner of a dangerous instrumentality is vicariously liable for the negligence of someone using the vehicle with the owner’s permission
Dram Shop
Generally, alcohol providers to people 21 and over are not liable for the acts of an intoxicated person. However, in Florida, if a seller willfully gives alcohol to a minor or knowingly serves an alcoholic, they may be liable
Tort damages
Compensatory damages and punitive damages
Compensatory damages
Compensatory damages are actual damages, and future damages. They cover past, present, and future medical expenses; past, present, and future pain and suffering; and lost earnings.
Punitive damages
In Florida, to recover for punitive damages, a plaintiff must prove by clear and convincing evidence that the defendant acted intentionally or with willful, wanton, or gross misconduct. Punitive damages are limited to 3 times compensatory damages, or $500k, whichever is greater.
Products liability theories
Negligence, warranty, and strict product liability
Negligence in Products liability
Negligence in PL requires a show of duty, breach, causation, and damages
Warranty
There are three types of warranty: implied warranty of merchantability, implied warranty of fitness for particular purpose, and express warranty. For all warranty theories, privity is required. Privity applies to buyer, and courts have expanded to household and guests.
Warranty of merchantability
Arises when a merchant sells a good. They warrant that the good is fit for its ordinary purpose
Warranty of fitness for particular purpose
Arises when any seller knows or has reason to know the buyer’s particular purpose for the good, and the buyer relies on the seller’s skill and judgment to select or furnish suitable goods
Express warranty
Arises when a seller makes an affirmation, provides a products description, or a model which forms the basis of the bargain
Strict product liability
Requires that the defendant be a commercial supplier, a defective product which was unreasonably dangerous when it left the defendant’s control, actual and proximate cause, and damages
Proper defendant
A commercial supplier of a product, such as the manufacturer, distributor, or retailer
Product in a defective condition
(1) there was a manufacturing defect and just this one item is defective, (2) there is a design defect and all of this product are defective, or (3) there was an inadequate warning, which makes it defective
Wrongful death action
When death is caused by defendant’s negligence, the wrongful death statute allows the decedent’s personal representative to sue for negligence for the benefit of the decedent’s survivors
Survivor Action
Where decedent was a plaintiff in a suit filed prior to death, the suit survives the death of the plaintiff
Intentional torts
Assault, battery, IIED, defamation
Assault
Assault is an intentional act which causes a reasonable apprehension of an immediate harmful or offensive contact to another person. Threats of future harm are not enough.
Battery
Battery is an intentional harmful or offensive contact to another person
IIED
An intentional or reckless act of extreme and outrageous conduct which causes the plaintiff to suffer damages
Defamation
Defamation occurs when the defendant makes a defamatory false statement of fact about the plaintiff which is published with the requisite level of fault. If the plaintiff is a private person, the level of fault is negligence as to the truth. If the plaintiff is a public person, then the level of fault is that there was malice and defendant was trying to hurt plaintiff’s reputation
Defamation - Slander
Spoken, temporary. Special damages (pecuniary) must be proven.
Slander per se
Damages need not be proves because the defamation is about plaintiff’s work, criminal background, morals, unchaste reputation, or a loathsome disease.
Defamation - Libel
Written, permanent. Damages are presumed.
Defenses to defamation
Truth and qualified privilege
Qualified privilege
A qualified privilege exists where an interested person, acting in good faith (without malice), publishes the statement within the scope of their interest.
