Torts

Question 1

Negligence

Answer 1

Negligence requires a duty, breach, causation, and damages.

Question 2

Duty

Answer 2

A duty is owed to all foreseeable plaintiffs to act as a reasonable prudent person under the circumstances

Question 3

Duty for healthcare providers

Answer 3

Medical professionals have a duty to act as other medical professionals with similar training and expertise in the same community

Question 4

Duty for minors

Answer 4

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.

Question 5

Premises liability

Answer 5

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.

Question 6

Business invitee

Answer 6

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.

Question 7

Unknown/undiscovered trespasser

Answer 7

A duty is owed to refrain from intentional conduct which harms trespassers

Question 8

Known/Discovered trespasser

Answer 8

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

Question 9

Breach

Answer 9

Breach occurs when the actor did not conform to the standard of care.

Question 10

Causation

Answer 10

There are two types of causation: actual cause, and proximate cause.

Question 11

Actual cause

Answer 11

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.

Question 12

Proximate cause

Answer 12

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.

Question 13

Proximate cause - Direct

Answer 13

Defendants are liable for all injuries that occur directly from their actions when there is no break in the causal claim.

Question 14

Proximate cause - indirect

Answer 14

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.

Question 15

Damages

Answer 15

Damages are not presumed, and include personal injuries and property damage.

Question 16

Negligence per se

Answer 16

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.

Question 17

Negligence per se - seatbelt

Answer 17

In Florida, failure to use an available and operational seatbelt is not considered negligence per se.

Question 18

Good samaritan

Answer 18

In Florida, there is no duty to rescue, but is you rescue, you must act reasonably, otherwise it is considered a negligent rescue.

Question 19

Good samaritan - medical professionals

Answer 19

Medical professionals are liable in emergency situations only if they act recklessly.

Question 20

Defenses to negligence

Answer 20

Modified comparative negligence, sovereign immunity, parent-child immunity, and express assumption of the risk

Question 21

Modified Comparative negligence

Answer 21

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.

Question 22

Joint and several liability

Answer 22

Abolished in Florida!!!

Question 23

Sovereign immunity

Answer 23

The state of Florida has waived immunity for operational decisions up to $200k per individual and $300k per accident. Remains immune for planning decisions.

Question 24

Parent-child immunity

Answer 24

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.

Question 25

Express assumption of risk

Answer 25

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.

Question 26

Vicarious liability scenarios

Answer 26

Respondeat superior, negligent hiring, negligent entrustment, dangerous instrumentality, and dram shop

Question 27

Respondeat superior

Answer 27

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

Question 28

Negligent hiring

Answer 28

An employer is presumed non-negligent if they performed a background check and found nothing.

Question 29

Negligent entrustment

Answer 29

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

Question 30

Dangerous instrumentality

Answer 30

A defendant owner of a dangerous instrumentality is vicariously liable for the negligence of someone using the vehicle with the owner's permission

Question 31

Dram Shop

Answer 31

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

Question 32

Tort damages

Answer 32

Compensatory damages and punitive damages

Question 33

Compensatory damages

Answer 33

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.

Question 34

Punitive damages

Answer 34

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.

Question 35

Products liability theories

Answer 35

Negligence, warranty, and strict product liability

Question 36

Negligence in Products liability

Answer 36

Negligence in PL requires a show of duty, breach, causation, and damages

Question 37

Warranty

Answer 37

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.

Question 38

Warranty of merchantability

Answer 38

Arises when a merchant sells a good. They warrant that the good is fit for its ordinary purpose

Question 39

Warranty of fitness for particular purpose

Answer 39

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

Question 40

Express warranty

Answer 40

Arises when a seller makes an affirmation, provides a products description, or a model which forms the basis of the bargain

Question 41

Strict product liability

Answer 41

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

Question 42

Proper defendant

Answer 42

A commercial supplier of a product, such as the manufacturer, distributor, or retailer

Question 43

Product in a defective condition

Answer 43

(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

Question 44

Wrongful death action

Answer 44

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

Question 45

Survivor Action

Answer 45

Where decedent was a plaintiff in a suit filed prior to death, the suit survives the death of the plaintiff

Question 46

Intentional torts

Answer 46

Assault, battery, IIED, defamation

Question 47

Assault

Answer 47

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.

Question 48

Battery

Answer 48

Battery is an intentional harmful or offensive contact to another person

Question 49

IIED

Answer 49

An intentional or reckless act of extreme and outrageous conduct which causes the plaintiff to suffer damages

Question 50

Defamation

Answer 50

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

Question 51

Defamation - Slander

Answer 51

Spoken, temporary. Special damages (pecuniary) must be proven.

Question 52

Slander per se

Answer 52

Damages need not be proves because the defamation is about plaintiff's work, criminal background, morals, unchaste reputation, or a loathsome disease.

Question 53

Defamation - Libel

Answer 53

Written, permanent. Damages are presumed.

Question 54

Defenses to defamation

Answer 54

Truth and qualified privilege

Question 55

Qualified privilege

Answer 55

A qualified privilege exists where an interested person, acting in good faith (without malice), publishes the statement within the scope of their interest.