Torts Distinctions Flashcards
Shopkeeper’s Privilege
Applies in FL which allows detainment of individuals by shopkeepers under certain circumstances as a defense to claims of false imprisonment.
Shopkeeper’s Privilege Requirements
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.
IIED
Physical impact or physical manifestations of psychological trauma is not required
Duty to retreat
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
Force for protecting property
Justified based on a reasonable belief that such conduct is necessary to prevent criminal to tortious interference with the property.
Deadly force: protecting property
Not allowed unless there is a reasonable belief that such force is necessary to prevent an imminent commission of a forcible felony
Defamation
All cases in FL require proof of falsity and fault
Notice for Defamation
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
Qualified Privileges Defamation
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)
Publication of Facts that place P in false light
not recognized in FL
Prenatal Injuries
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.
Healthcare Provider Failure to Obtain Informed Consent
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.
Commercial Property: negligence for injuries to P off property
Owners of commercial property owe a duty to prevent foliage from obstructing a driver’s view of the sidewalk when entering the property
Residential Property: negligence for injuries to P off property
Do not owe the same duty as commercial property owners, but must prevent foliage from extending beyond the boundaries of their property
Discovered Trespasser
One who enters property without implied or express consent and whose presence was detected within 24 hours preceding the entrance
Liability: discovered trespasser
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.
Attractive Nuisance Doctrine
P must have been lured onto the premises by a dangerous condition
Firefighter or law enforcement officer category
Invitee
Duty to Invitee
reasonable efforts to keep the premises free from transitory foreign objects or substances that might foreseeably give rise to injury
Burden for invitee negligence
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
NIED
generally requires a showing of an actual physical impact
Good Samaritan’s Act
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
Medical Malpractice Noneconomic Damages
Capped
FL Supreme Court has held that the cap is unconstitutional for wrongful death cases.
Punitive Damages
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
Exceptions to Punitive Damages
Motivated by unreasonable financial gain, abuse of children or elderly, intentional harm, or intoxication
Collateral Source Rule
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
Guardian waiving claim or COA for minor
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.
dog owner liability
liable for damages regardless of the former viciousness of the dog or the owner’s knowledge of the viciousness of the dog
Dog owner and trespasser
in the absence of negligence, not liable for damages caused by the dog to a person not lawfully on the property
dog owner warning
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”
Implies warranties of merchantability and fitness
extend protection only to a buyer’s family, household, and guests who suffer personal injury
Background investigation of employee
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.
Liability when loaning automobile
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
Theft by unemancipated minor
a parent or legal guardian may be liable for 3x the actual damages of the victim
Providing alcohol
one who provides alcohol to a person of lawful age will not be liable for damages caused by intoxication
Providing alcohol to a minor
may be liable for injury or damages resulting from the minor’s intoxication
Alcohol serving to habitual addict
knowingly serving a habitual addict may also make the server liable
Proprietor of alcohol liability
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
Joint and several liability
does not apply in FL except for intentional torts and some environmental actions
Loss of parent’s consortium
FL permits a child to recover for the loss of a permanently injured parent’s consortium
Parent-Child immunity
waived in FL when unemancipated minors sue parents for negligence and in cases of intentional sexual abuse perpetrated by the parent against the child
Governmental immunity
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.
Torts by officers and employees of the state
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
