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FL subjects > Torts > Flashcards

Torts Flashcards

1
Q

Trespassers in FL

A
  • Discovered
  • Undiscovered
  • Impaired
  • Child
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2
Q

Discovered trepassers

A
  • Uninvited/unpermitted entry
  • discovered w/i 24 hours before injury

DOC liablity:

  • gross neg
  • intentional misconduct (causing injury)
  • failure to warn of known dangerous condition

If LO makes express invitation after discovery or manifests intention to hold proprety open, trepasser becomes invitee

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3
Q

Undiscovered trespassers

A

Enters property w/o invitation or license; entry undetected w/i 24 hours hours before accident

DOC liability: intentional conduct only

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4
Q

Uninvited licensees

A
  • Enters property for own convenience or pleasure
  • presence tolerated by owner

DOC liability

  • intentional misconduct
  • gross neg
  • no warning of dangerous conditions
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5
Q

Invited licensee (Girl scout)

A

enters property w/ permission

DOC: Reasonable care

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6
Q

Business Invitees (grocery shopper)

A

enters propert to provide commerical benefit to owner

DOC: reasonable care

This picks up firefighters/etc.

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7
Q

Public invitees (beach goer)

A

Enter property to enjoy use for which it’s held out

DOC: Reasonable care

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8
Q

Child trespassers

A

Child can’t avail himself of AND unless he was actually lured or enticed onto property by AN

Doesn’t apply if kid enters property and then discovers AN

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9
Q

CAusation

A

Need both

  • cause in fact (but-for/actual causation)
  • proximate causation (legal cause/forseeability - did D foreseeably and substantially cause injury?)
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10
Q

Rear end collisions

A

Rebuttable presumption that rear driver was sole proxixmate cause of accident

Driver has to show:

  • other driver has to show abrupt lane change not reasonable expected
  • illegal stop
  • mechanical failure of his own car
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11
Q

Dangerous Instrumentaltity Doctrine

A

All cars and motorized vehicles are DIs

Owner of car liable for all torts committed by another driver if they have knowledge and gave consent

Parents/kids - parents are J&S liable for teen drivers (in addition to general DID)

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12
Q

Punitive damages (no RS)

A

P must

  • plead damages; and
  • establish by C&C evidence that D was personally guilty of gross neg (so reckless or wanting in care that constitutes conscious disregard or indifference)

Can’t exceed $500K or 3x compensatory damages - whichever greater

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13
Q

Punitive damages (RS)

A

P can only get PD if

  • employee guilty of intentional misconduct or gross neg; and
  • employer actively or knowingly participated/ratified/consented or enaged in gross neg contribtuing to injury
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14
Q

Recovery for NIED - Bystanders

A

P can’t recover unless he suffers:

  1. physical injury OR
  2. manifestation of injury/distress in form of severe & discernable physical illness (heart attack)
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15
Q

Bystander claims - Recovery

A

Must show:

  • spatial proxmity
  • contemporaneous proximity
  • relational proximity (determed on case by case basis)
  • physical injury/illness or physical impact
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16
Q

Wrongful death damages

A
  • loss of support
  • spouse only - loss of companionship
  • loss of parental companionship
  • med/funeral expenses
  • loss of earnings form date of injury/death
  • loss of prospective net accumulation of estate (future contributions to estate)
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17
Q

Wrongful death damages - Mental pain & suffering

A
  • surviving spouse
  • minor children
  • all children if no SS
  • parents of deceased minor child
18
Q

Injuries to family - Damages

A
  • Loss of parental companionship - injured parent, minor (usually child) claimant
  • Filial companionship or consortium - injured child, parent claimant (only until kid turns 18)
19
Q

Seat belt defense

A

Failure to wear seatbelt may contribute to comparative neg

If raising this defense, D must prove:

  1. P failed to use available & operational seatbelt
  2. nonuse was unreasonable
  3. nonuse caused/substantially contributed to damages
20
Q

FL Uniform Contribution among Tortfeasors Act

A

If J&S liablity is involved (intentional torts only), D who pays more than his share has right to contribution

Fault percentages allocated based on each D’s relative degree of fault

21
Q

Assumption of Risk

A

Exculpatory waivers are okay if:

  • clear & unequivocal
  • waives only neg or gross neg
  • applies to adults
22
Q

3 types of product liability

A
  1. manfuacturing defect
  2. warnings defect
  3. design defect

FL uses Consumer Expectations Test: P must show product didn’t perform as safely as ordinary consumer would expect when used in intended/reasonably foreseeable manner

23
Q

State immunity

A

State of FL liable:

for injury to property, persons or death caused by its employee’s negligence if employee was acting in scope of employment

Employees personally liable if:

  • bad faith
  • w/ malicious purpose
  • willful and wanton disregard of others’ safety
24
Q

Strict liability - DAD

A
  • defective products
  • wild animals
  • dangerous/hazardous activities
25
Q

Defamation

A
  1. Defamatory communication
  2. Plaintiff is ID’ed
  3. Publication to at least 1 party
  4. damage caused by publication
  5. fault (negligence or malice, if it’s public official)
  6. falsit

Truth is absolute defense

26
Q

Invasiion of prviacy

A

Intrusion on seclusion - D’s intrusion into private affairs; highly offensive to reasonable person

False Light - public facts; placed P in false light; highly offensive to RP; actual malice

Appropriation - D’s unauthorized appropration of P’s likeness/identiy; D’s advantage; lack of consent; injury

Private facts - D gave publicity to private life; highly offensive to RP; not a legit concern of public

27
Q

Negligent Misrepresentation

A
  • D provides false info resulting from his own neg
  • during course of his profession
  • causing P to justifiably rely on info
  • P is either in contractual relationsihp w/ D or is 3P who D should know is benefiting from info

Ex: store customer who bought dangerous supplement based on clerk’s misrep

28
Q

Intentional misrepresentation

A
  1. Material fact
  2. D knows it’s false or has reckless disregard for its truth
  3. intended that P rely on it
  4. P justifiably relied on it
  5. P suffered and can prove damages
29
Q

DOC for phsycians

A

Generalists - local standard

Specialists - national standard

30
Q

Recovery for med malpractice (lack of consent)

A

P cant’ recvoer based on lack of informe consent if

  • reasonable person woudl have genreal understanding of procedure/risks given materials provided, OR
  • patient would reasonably have consented if so advised

rebuttable presumption of valid consent when patient signs in writing per standard practice

31
Q

Noneconomic damages - med malpractice

A

Cap on damages unconstitutional under EP of FL constitution - applies regardless of number of complainants and improperly discriminates between MM victims

** Loss of chance of recovery - P can only recover if proves evidence of greater than even change of survival before negligence

32
Q

Negligence per se

A

Violation of penal statute/ordinance = negligence per se

33
Q

Intervening cause

Superseding cause

A

cause of P’s harm occuring after D’s tortious act

Superseding cause - breaks chain of proximate causation => D not liable

  • unforseeable, not set in motion by D’s actions
34
Q

Dram-shop

A

Not SL - if seller willfully/unlawfully gives alcohol to minor or alcoholic, maybe liable for resulting injurie

35
Q

Defenses to products liability

A

comparative fault

  • AOR
  • unforeseeable misuse, alteration, modification by user
  • compliance w/ gov safety standards

state of the art standard - look at time of manufacture, not injury

  • if complied, rebuttable presumption that not defective; if no, rebuttable presumption that it is

unforseeable intervening causes

36
Q

Informed consent - Physicians/tec.

A

no recovery allowed when:

consent obtained in accordance w/ accepted standard of med practice among similarly trained/experienced med professionals AND

  • reasonable person would have general understandng of proceedure, acceptable alternatives, inherent risks
  • based on circumstances, patien would reasonably have undergone such porcedure/treatment had he been advised

Must be in writing, signed by pateint or authorized person

Creates rebuttable presumption of consent

37
Q

Collateral source rules

A

Damages reduced by total of all amounts paid for benefit of claims (i.e. insurance) UNLESS there’s right of subrogation/reimbursement.

38
Q

Med malpractice - personal injury /wrongful death

A

can’t file PI/WD claim unless reasonable investigaton conducted re: GF grounds for negligence claim - written opinion from expert there stating appears to be medical negligence

39
Q

Medical Malpractice Act

A

Presuit investigation - P needs expert opinion corroborating reasonable grounds

notice to Ds - Notice of intention within 90 days of filing suit (including providers seen subsquent, 2 years prior, and all med records)

screening process by D - based on insurer’s investigation procedures

resposne from D - can reject, offer setltement, admit liability

40
Q
A

FL subjects (15 decks)

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