Torts Flashcards
3 requirements of an intentional tort
1-act; 2-intent; 3- causation
intent for an intentional tort
specific intent- goal to bring about specific consequences, or general-actor knows with substantial certainty that these consequences will result
defenses to intentional torts
self defense and consent
self defense
he use of force is justified against another when and to the extent she reasonably believes necessary to defend herself or a 3rd party against the offender’s IMMINENT use of unlawful force
stand your ground
can use defensive force and NO DUTY TO RETREAT if reasonable belief it is needed to prevent GREAT/SERIOUS BODILY HARM or DEATH, or if you believe there is a commision of a FELONY about to occur
stand your ground reasonable belief presumption
if the person against whom force was used entered or was in the process unlawfully or forcibly entering dwelling or vehicle and person who used defensive force knew or had reasonable belief that unlawful force was occurring. NOT LIMITED TO RESIDENCE.
stand your ground reasonable belief presumption: when it does not apply
does not apply if the person against whom force was used had right to be, or was a lawful residence of dwelling, or was a child etc of such a person, or person using force was doing something unlawful, or person whom force was used was a LEO on duty and person using force should have known person was a LEO
physicians: informed consent
DR is under special obligation to explain all MATERIAL risks prior to patient consenting. Failure to comply rises to the level of professional negligence. Affirmative obligation that results in breach of duty (actionable as MED-MAL).
physicians: informed consent exceptions
risk is commonly known; patient waives info; patient is incompetent; disclosure would be too harmful and may cause something like a heart attack
physicians: informed consent: no recovery
no recovery if obtaining consent was in accordance with accepted standard of practice among professionals with same training and reasonable patient would have understood risks; or, circumstances show that patient would have consented knowing the risks
physicians: informed consent presumption
if consent meets requirements and is in writing, a presumption of valid consent is raised
landowners in general (standards)
only owe a duty only to those w/i boundaries of land (land owner, occupier or in possession)
trespassers: discovered duty
discovered or anticipated: duty to warn or protect against concealed dangerous artificial conditions
trespassers: discovered
enters w/o express or implied invitation and whose presence was detected w/i 24 hours preceding accident
trespassers: undiscovered duty
landowners owe NO duty, nor a duty to inspect property for evidence of trespassers
trespassers: undiscovered definition
enters w/o express or implied invitation and whose presence was NOT detected w/i 24 hours preceding accident
landowner immunity
not liable for damages to trespasser that was under the influence of drugs/alcohol; however, the owner will not be immune of owner’s gross or intentional misconduct was cause or proximate cause of injury; not liable to trespasser regardless of intoxication except:1-to avoid liability, the owner must refrain from intentional conduct; 2-owner must not engage in gross negligence or intentional misconduct, and must warn of dangerous condition; not liable to person attempting to commit a felony on the property
invitees
landowner owes greatest duty of care: wanr, use reasonable care, AND must conduct reasonable inspection of property; BUT, limited to nature of the invitation
business invitees
public invitee on premises by express invitation by owner; if a plaintiff slips and falls on a transitory foreign substance at a business, the P must prove the business had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it. Constructive knowledge can be shown by evidence that: 1-dangerous condition existed for such a period of time that the business should have known; 0r 2-the condition occurred w/ regularity and was therefore foreseeable
uninvited licensee
one who comes on the premises solely for their own convenience w/o invitation. SAME DUTY as DISCOVERED trespassers
licensees by invitation: def
social guests and other persons who are on the property through express or implied invitation of the owner. SAME DUTY as DISCOVERED trespassers
licensees by invitation:
SAME DUTY as DISCOVERED trespassers, BUT includes engaging in REASONABLE efforts to keep property free of transitory dangerous items.
public invitee
licensee on the premises by express or implied invitation by owner. SAME DUTY as DISCOVERED trespassers
good samaritian act
any person who gratuitously and in good faith renders emergency care will NOT be liable as long as they act as a reasonable person under the same circumstances; unless they acted in reckless disregard of standard-very high standard to meet
failure to wear a seatbelt
is not viewed as negligence per se; but is evidence of comparative negligence
proximate cause test
“foreseeability test”; Palsgraff “zone of danger”; limits liability
proximate cause rebuttable presumption in car wreck
rear driver is presumed to be solely at fault; unless he can prove: 1-lead driver stopped or changed lanes abruptly where a reasonable person would not expect them to; 2-lead driver stopped illegally;or, 3-lead driver suffered mechanical failure that was not the rear driver’s fault
Firefighters and law enforcement officers
Firefighters and law enforcement officers engaged in the lawful performance of their employment who enter another’s premises are treated as invitees.
damages: definition
ACTUAL harm or injury-all past, present, and future (future means “reasonably certain to occur).
3 classic form of damages
1-nominal, right was infringed-classic award is $1; 2-compensatory, put P back to where she would have been if wrong had not occurred; 3-punitive, to deter others from doing what D did-a need to be punished, typically because D acted willfully or with reckless disregard
punitive damages proof required
must be plead and may be award if established by CLEAR AND CONVINCING evidence that the D personally engaged in INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE. P cannot plead unless evidence demonstrates a reasonable basis for recovery
punitive damages: employee misconduct
vicarious liability can be imposed for employee or agent only if guilty of INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE; and employer: 1-actively acted or knowingly participated in conduct; 2-ratified or consented; 3-engaged in gross negligent conduct that contributed to P
s loss, damages, or injury.
Punitive damages may NOT exceed
greater of: 3x compensatory damages, or $500k (except abuse cases).
punitive damages: duty to mitigate
all P’s are required to mitigate
punitive damages collateral rule
gov’t/charity benefits admissible for cost of future care; courts statutorily required to offset damages (except Medicare, Medicaid, worker’s comp) balanced with insurance premiums paid; no reduction if subrogation rights exist
punitive damages are for what type of behavior?
wanton, willful, reckless, or malicious
special rules of liability: NIED
negligent infliction of emotional distress. “Impact rule”: P is required to show physical impact, even if slight, on person; and emotional distress in form of injury or illness
special rules of liability: wrongful death
may be brought by decedent’s personal representative for traditional damages (i.e. wages, consortium). Pecuniary damages. FL’s act provides that WR because of breach of K or warranty will be liable “as if the death had not occurred”. FL allows pain and suffering (spouse, children), including mental pain and suffering. Can also recover for loss of companionship. FL also states that “no cause of action dies with a person”. BUT, a reasonable investigation is required PRIOR to lawsuit being filed (to determine good faith grounds for suit)
MED MAL damages cap
For pain and suffering, NIED, and loss of consortium. perm veg state: practitioners/drs/hospitals $1m, non-practioners/suppliers $1.5m. other injuries: practitioners/drs/hospitals $500k, non-practioners/suppliers $750k; during emergency care: $150k, non-practioners/suppliers $750k
Tortious interference w/ family relationships
FL allows a child to recover for loss of permanently injured parent’s consortium, loss of services, loss to society. Parent’s recovery for loss of child (child’s services) is limited to child’s minority years.
vicarious liability
liability based on relationship
respondeat superior: negligent hiring
negligent hiring: employer was negligent by hiring this person who committed the injury. EMployer is NOT presumed to have been negligent as long as employer conducted a background investigation that did not reveal info that employee was unsuitable for that type of work; however, if employer did not conduct background investigation, a presumption of guilt does not automatically arise
dangerous instrumentality: autos
auto is an inherently dangerous instrument, and owner may be held accountable for damages to 3rd parties for negligent operation by a non-owner; parent that signed a minor’s driving application is jointly and severly liable with minor
gov’t immunity
FL has waived immunity for gov’t/ministerial activities (operational), but not for discretionary activities (planning/decision making); allowed for negligent or wrongful acts w/i the scope of the offender’s employment; gov’t employee not personal liable unless in bad faith, malicious purpose, wanton disregard
gov’t liability cap
liable for its employees under respondeat superior to extent of insurance coverage: CAPPED at $200k/person and $300k/incident. #yr SOL; make claim with department of insurance; 6 months =denial
pure comparative negligence
FL uses this. Any party may claim damages unless he was 100% at fault. Assuming all Ds are liable, extent of liability depends upon: 1-amount of the damage award, and 2-respective degree of fault, including P’s share of fault.
defense: comparative negligence
common law concept; in FL-ANY party may claim damages unless he was 100% at fault; FL is a PURE COMPARATIVE FAULT STATE-court must assign each party a % of fault (does not apply to intentional torts
defense: assumption of risk in general
P voluntarily entered into the danger-KNOWINGLY and VOLUNTARILY. cannot later claim harm.
defense: implied assumption of risk
ABOLISHED IN FL
defense: assumption of risk when drugs or alcohol are involved
P may not recover if at time of injury P was :1-legally drunk (.08 BAC) AND 2-impairment made P 51% at fault for injury. In FL, P must have been intoxicated to the point that normal faculties were impaired, and over 50% at fault.
strict liability elements
this statute was designed to protect a class from inability to protect itself. elements: 1-D’s ABSOLUTE DUTY to make safe; 2-breach; 3-actual and proximate cause; 4-damages. Contributory negligence is NOT a defense.
strict liability activities
activity is SO dangerous (such as dynamite), and SO foreseeable, that person doing activity is exposed to strict liability. 3 general activities: 1-dangerous activities; 2-animals; 3-defective or dangerous products
dangerous animals
owner of dog who bites a person while in public or lawfully in a private place is strictly liable for the damages
state of the art defense
defective design or dangerous products: fact finder must consider that state of the art technical knowledge at the time of manufacture.
design defect
ALL products in that particular line had the same problem
gov’t rules defense
in product liability action against manufacturer or seller: rebuttable presumption that product was NOT unsafe if it complied with gov’t rules and regulations
defamation elements
lie said about P injured P’s reputation. elements: 1-statement of fact; 2-defamatory effect from statement;3-id’s P as subject; 4-publication to 3rd person; 5-compensable damages: actual, reputation, humiliation, mental anguish to P; 6-falsity of statement; 7-requisite fault by D.
defamation: public figure
pervasive fame/notoriety or volunteers a central role in public controversy. Heightened standard of proof by D.
qualified privilege in defamation
good faith, no malice (intent to harm), proper manner, duty to report (investigations, judicial, legislative, worker’s comp)
slander per se
profession, crime, disease, chaste: damages presumed
libel
written; damages presumed unless done by media
defense to defamation, slander, & libel
truth, consent, privilege (absolute and qualified)
mitigation for defamation, slander, libel
no malis, retraction (FL gives media D 5 days prior notice of action, if D retracts w/i 10 days, P limited to actual damages), anger of speaker
retraction by publication
(FL gives media D 5 days written prior notice of action by D, if D published in good faith and then retracts w/i 10 days, P limited to actual damages)
intentional interference w/ business relationship
D knew of EXISTING K relationship between P & 3rd party and D commits intentional interference resulted in breach of K.
breach of fiduciary relationship
1-fiduciary duty exists; 2-breach; 3-breach proximately causes damage
invasion of privacy
1-invasion of private affairs; 2-appropriation of name for commercial purposes; 3-publication of private facts
assault elements
1-affirmative/overt act by D; 2-w/ intent to place P in “reasonable” apprehension; 3-of imminent/immediate harmful or offensive contact to her person; AND, 4-actually causes P apprehension
assault and transferred intent
the intent to inflict battery satisfies the intent requirement of assault
battery elements
1-an act by D that brings about harmful or offensive contact to the P’s person; 2-intent by D to bring about the harmful or offensive contact; AND, 3-causation … D is also liable when he sets in motion a force that brings about harmful or offensive contact
false imprisonment elements
1-an act or omission by D that confines or restraines P to a bounded area; 2-intent to confine or restrain; 3-causation
false imprisonment: defense of privilege
applies to shop keepers, mass transit workers, and farmers
Intentional infliction of emotional distress elements
1-act by D amounting to “extreme and outrageous conduct; 2-intent to cause severe emotional distress or recklessness as to effect of D’s conduct; 3-causation; and 4-actual damages, i.e. severe trauma. Physical impact or psychological trauma is not required to state a claim
defense: consent
express (unless procured by duress, fraud, or mistake); implied (matter of usage or custom or implied by law-i.e. emergency situations prevent proper consent’ P capacity required; D may be liable if he exceeds scope of consent
misrepresentation: intentional
requires P establish: 1-a misrepresentation of material fact; 2-scienter; 3-an intent to induce the P’s reliance on the misrepresentation; 4-causation; 5-justifiable reliance; and, 6-damages
misrepresentation: negligent
P must establish: 1-a misrepresentation; 2-by D in a business or professional capacity; breach of duty to P; 4-causation; 5-justifiable reliance; and, 6-damages
bystander rule
1-close relationship to injured; 2-P sees, hears, or arrives on scene; 3-physical impairment, not just emotional distress, must have some physical impact on P
failure to warn of dangerous condition elements
1-D created the dangerous condition; 2-condition wasn’t readily apparent; 3-D had knowledge of the dangerous condition; 4-D failed to take steps to warn public of danger or avert the danger
attractive nuisance doctrine
1-dangerous condition; 2-Landowner knows that children frequent the area; 3-child is unable to appreciate risk or danger; 4-expense of remedy is slight as compared to the risk. *FL requires that child be LURED onto premises by the dangerous condition
product liability: 5 theories
1-intent; 2-negligence; 3-strict liability; 4-implied warranties of merchantability and fitness for a particular purpose; 5-representation theories of express warranties and misrepresentation
product liability elements
1-duty (owed by any commercial supplier); 2-defective product; 3-implied warranty of merchantability and fitness for a particular purpose
product liability: duty definition
owed by ANY commercial supllier
product liability: element of defective product
when left D’s control (misues, scientifically unknowable risks, allergies); manufacturing defect-requires that product was sold in a defective condition unreasonably dangerous to users, design-feasible alternative test provides that the product is defective if the D could have removed the danger w/o serious adverse impact on the product’s UTILITY or PRICE (inadequate warnings), gov’t safety standards-FL rebuttable presumption: not defective if complied w/ standards AND conversely, defective if NOT compliant w/ standards
product liability: contaminated food damages
emotional distress, but no physical injury
auto permissive use rule
an auto owner who consents to the use of her car is vicariously liable for driver’s negligence. damages capped: bodily injury-$100k erson/$300 incident, property at $50k
public officials’ immunity
immune unless acted with bad faith, malicious purpose, or willful disregard of human rights, safety, or property
parent-child immunity
FL eliminated parent-child immunity when: 1-unemancipated minor sues parent for negligence, but only to the extent of insurance coverage; or, 2-intentional sexual abuse perpetrated by a parent against the minor.
loss of qualified privilege through abuse: defamation
the “malice” sufficient to defeat a qualified privilege is common law express malice, rather than NYT actual malice. Express malice is present when the PRIMARY MOTIVE for the statement is shown to be an INTENTION to injure the P. P is only required to demonstrate express malice by a preponderance of the evidence.
negligence: prenatal injuries
both parent and child have an action, provided the child is born alive. If fetus dies from injuries, the parents cannot bring a wrongful death action for its death, but they may bring a “negligent stillbirth” action for mental pain and anguish damages and medical expenses incident to the pregnancy.
attractive nuisance doctrine
Fl requires that the P have been lured onto the premises by the dangerous condition, not just that there was a foreseeability of harm to a child
