Torts Distinctions

Question 1

Shopkeeper’s Privilege

Answer 1

Applies in FL which allows detainment of individuals by shopkeepers under certain circumstances as a defense to claims of false imprisonment.

Question 2

Shopkeeper’s Privilege Requirements

Answer 2

Must be a reasonable belief as to theft, the detainment must be conducted in a reasonable manner, and only non-deadly force may be used. The detention must be for a reasonable time period.

Question 3

IIED

Answer 3

Physical impact or physical manifestations of psychological trauma is not required

Question 4

Duty to retreat

Answer 4

A person who is not engaged in a criminal activity and who is attacked in any place which the person has a right to be has no duty to retreat prior to using any force, including deadly force, if it is reasonably believed by the person that such force is necessary to prevent death or great bodily harm to him/herself, or to prevent to commission of a forcible felony

Question 5

Force for protecting property

Answer 5

Justified based on a reasonable belief that such conduct is necessary to prevent criminal to tortious interference with the property.

Question 6

Deadly force: protecting property

Answer 6

Not allowed unless there is a reasonable belief that such force is necessary to prevent an imminent commission of a forcible felony

Question 7

Defamation

Answer 7

All cases in FL require proof of falsity and fault

Question 8

Notice for Defamation

Answer 8

at least 5 days before an action, P must serve written notice on D if D is a media D specifying the alleged facts and defamatory article or broadcast.

if the media D then fully retracts the defamatory statement within 10 days of receipt of notice and the original publication was made in good faith, then only actual damages are available

Question 9

Qualified Privileges Defamation

Answer 9

may generally be lost if the statement was made with actual malice

Malice in FL = primary notice for the statement is shown to be an intention to injure the P (must be proven by clear and convincing evidence)

Question 10

Publication of Facts that place P in false light

Answer 10

not recognized in FL

Question 11

Prenatal Injuries

Answer 11

both parent and child have an action if the child is born alive.

if the fetus dies from the injuries, the parent may not bring a wrongful death action and should bring a negligent stillbirth action for mental pain and anguish and medical expenses from the pregnancy.

Question 12

Healthcare Provider Failure to Obtain Informed Consent

Answer 12

Not liable if the patient received enough information so that a reasonable person would have a general understanding of the procedure and risks or would have accepted the treatment had the patient been advised as required.

Question 13

Commercial Property: negligence for injuries to P off property

Answer 13

Owners of commercial property owe a duty to prevent foliage from obstructing a driver’s view of the sidewalk when entering the property

Question 14

Residential Property: negligence for injuries to P off property

Answer 14

Do not owe the same duty as commercial property owners, but must prevent foliage from extending beyond the boundaries of their property

Question 15

Discovered Trespasser

Answer 15

One who enters property without implied or express consent and whose presence was detected within 24 hours preceding the entrance

Question 16

Liability: discovered trespasser

Answer 16

To avoid liability for damages by a discovered trespasser, a landowner must refrain from gross negligence or intentional misconduct that proximately causes injury and must also warn of dangerous condition that are known but are not readily observable.

No duty to warn if trespasser is under the influence of drugs or alcohol.

Question 17

Attractive Nuisance Doctrine

Answer 17

P must have been lured onto the premises by a dangerous condition

Question 18

Firefighter or law enforcement officer category

Answer 18

Invitee

Question 19

Duty to Invitee

Answer 19

reasonable efforts to keep the premises free from transitory foreign objects or substances that might foreseeably give rise to injury

Question 20

Burden for invitee negligence

Answer 20

on the claimant to prove that the D had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it

Question 21

NIED

Answer 21

generally requires a showing of an actual physical impact

Question 22

Good Samaritan’s Act

Answer 22

applicable to all persons who gratuitously render aid at the scene of an emergency

the rescuer remains liable for ordinary negligence

in emergency rooms, healthcare providers obligated to provide emergency treatment are not liable unless they acted with reckless disregard for the consequences to the life or health of another

Question 23

Medical Malpractice Noneconomic Damages

Answer 23

Capped

FL Supreme Court has held that the cap is unconstitutional for wrongful death cases.

Question 24

Punitive Damages

Answer 24

D may be liable if the trier of fact, based on clear and convincing evidence, finds that D was guilty of intentional misconduct or gross negligence.

May not exceed the greater of 3x compensatory awarded to each claimant or $500,000

Question 25

Exceptions to Punitive Damages

Answer 25

Motivated by unreasonable financial gain, abuse of children or elderly, intentional harm, or intoxication

Question 26

Collateral Source Rule

Answer 26

governmental and charitable benefits available to the general public are admissible for a jury to consider when determining the cost of future care for purposes of awarding damages.

must reduce any damages awarded to a claimant from collateral sources

Question 27

Guardian waiving claim or COA for minor

Answer 27

can waive claims against a commercial activity provider for the minor’s personal injury from an inherent risk in the activity.

to be valid, must have been advised that even if the activity provider uses reasonable care, there is a risk that the child will be seriously injured or killed.

Question 28

dog owner liability

Answer 28

liable for damages regardless of the former viciousness of the dog or the owner’s knowledge of the viciousness of the dog

Question 29

Dog owner and trespasser

Answer 29

in the absence of negligence, not liable for damages caused by the dog to a person not lawfully on the property

Question 30

dog owner warning

Answer 30

in the absence of negligence, will not be liable if they had displayed in a prominent place on the premises an easily readable sign including the words “bad dog”

Question 31

Implies warranties of merchantability and fitness

Answer 31

extend protection only to a buyer’s family, household, and guests who suffer personal injury

Question 32

Background investigation of employee

Answer 32

if an employee causes death, injury or other damages intentionally, the employer is presumed not to have been negligent in hiring if they conducted a background investigation before hiring and the check did not reveal an unsuitability for the particular work.

Question 33

Liability when loaning automobile

Answer 33

an owner who consents to the use of his automobile by another person is liable for the negligent damage done by the automobile.

100k per person, 300k per incident for bodily injury, 50k property damage

if the lessee is not insured or their insurance covers less than 500k, the lessor is liable for up to an additional 500k in economic damages

Question 34

Theft by unemancipated minor

Answer 34

a parent or legal guardian may be liable for 3x the actual damages of the victim

Question 35

Providing alcohol

Answer 35

one who provides alcohol to a person of lawful age will not be liable for damages caused by intoxication

Question 36

Providing alcohol to a minor

Answer 36

may be liable for injury or damages resulting from the minor’s intoxication

Question 37

Alcohol serving to habitual addict

Answer 37

knowingly serving a habitual addict may also make the server liable

Question 38

Proprietor of alcohol liability

Answer 38

May be liable if he knows or should have known the likelihood of injuries to patrons caused by disorderly conduct of third parties and then fails to do anything about it

Question 39

Joint and several liability

Answer 39

does not apply in FL except for intentional torts and some environmental actions

Question 40

Loss of parent’s consortium

Answer 40

FL permits a child to recover for the loss of a permanently injured parent’s consortium

Question 41

Parent-Child immunity

Answer 41

waived in FL when unemancipated minors sue parents for negligence and in cases of intentional sexual abuse perpetrated by the parent against the child

Question 42

Governmental immunity

Answer 42

waived for governmental or ministerial activities but not for discretionary activities

no tort action may be brought against the state of FL unless the claimant has first presented a written claim to the appropriate agency.

Question 43

Torts by officers and employees of the state

Answer 43

not responsible for damages caused by the torts committed during the course of their employment except when they have acted in bad faith, with malicious purpose, or will willful disregard of human rights, safety or property