Torts Flashcards
Trespassers in FL
- Discovered
- Undiscovered
- Impaired
- Child
Discovered trepassers
- 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
Undiscovered trespassers
Enters property w/o invitation or license; entry undetected w/i 24 hours hours before accident
DOC liability: intentional conduct only
Uninvited licensees
- Enters property for own convenience or pleasure
- presence tolerated by owner
DOC liability
- intentional misconduct
- gross neg
- no warning of dangerous conditions
Invited licensee (Girl scout)
enters property w/ permission
DOC: Reasonable care
Business Invitees (grocery shopper)
enters propert to provide commerical benefit to owner
DOC: reasonable care
This picks up firefighters/etc.
Public invitees (beach goer)
Enter property to enjoy use for which it’s held out
DOC: Reasonable care
Child trespassers
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
CAusation
Need both
- cause in fact (but-for/actual causation)
- proximate causation (legal cause/forseeability - did D foreseeably and substantially cause injury?)
Rear end collisions
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
Dangerous Instrumentaltity Doctrine
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)
Punitive damages (no RS)
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
Punitive damages (RS)
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
Recovery for NIED - Bystanders
P can’t recover unless he suffers:
- physical injury OR
- manifestation of injury/distress in form of severe & discernable physical illness (heart attack)
Bystander claims - Recovery
Must show:
- spatial proxmity
- contemporaneous proximity
- relational proximity (determed on case by case basis)
- physical injury/illness or physical impact
Wrongful death damages
- 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)
Wrongful death damages - Mental pain & suffering
- surviving spouse
- minor children
- all children if no SS
- parents of deceased minor child
Injuries to family - Damages
- Loss of parental companionship - injured parent, minor (usually child) claimant
- Filial companionship or consortium - injured child, parent claimant (only until kid turns 18)
Seat belt defense
Failure to wear seatbelt may contribute to comparative neg
If raising this defense, D must prove:
- P failed to use available & operational seatbelt
- nonuse was unreasonable
- nonuse caused/substantially contributed to damages
FL Uniform Contribution among Tortfeasors Act
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
Assumption of Risk
Exculpatory waivers are okay if:
- clear & unequivocal
- waives only neg or gross neg
- applies to adults
3 types of product liability
- manfuacturing defect
- warnings defect
- 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
State immunity
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
Strict liability - DAD
- defective products
- wild animals
- dangerous/hazardous activities
Defamation
- Defamatory communication
- Plaintiff is ID’ed
- Publication to at least 1 party
- damage caused by publication
- fault (negligence or malice, if it’s public official)
- falsit
Truth is absolute defense
Invasiion of prviacy
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
Negligent Misrepresentation
- 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
Intentional misrepresentation
- Material fact
- D knows it’s false or has reckless disregard for its truth
- intended that P rely on it
- P justifiably relied on it
- P suffered and can prove damages
DOC for phsycians
Generalists - local standard
Specialists - national standard
Recovery for med malpractice (lack of consent)
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
Noneconomic damages - med malpractice
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
Negligence per se
Violation of penal statute/ordinance = negligence per se
Intervening cause
Superseding cause
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
Dram-shop
Not SL - if seller willfully/unlawfully gives alcohol to minor or alcoholic, maybe liable for resulting injurie
Defenses to products liability
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
Informed consent - Physicians/tec.
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
Collateral source rules
Damages reduced by total of all amounts paid for benefit of claims (i.e. insurance) UNLESS there’s right of subrogation/reimbursement.
Med malpractice - personal injury /wrongful death
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
Medical Malpractice Act
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
