Torts (Grossman) Flashcards
Kinds of Torts Essays
1) Negligence
2) Product Liability
3) Defamation
Duty of Care
You only owe a duty to foreseeable plaintiffs.
-If it’s a foreseeable P, the standard of care is D must act a reasonably prudent person (objective standard)
Invited Licensee
When you are permitted on someone else’s property (i.e., someone’s home or business, etc.) you are an INVITED LICENSEE.
-The property owner has a duty to:
(1) WARN;
(2) CLEAN UP; AND
(3) MAKE SAFE
the Premises for all invited licensees.
What is the basic duty of businesses to invited licensees?
1) Duty to warn, clean up, make safe
2) Commercial establishments also have a duty to keep the Premises free from TRANSITORY FOREIGN OBJECTS that could foreseeably lead to an injury (i.e., the banana peel)
Breach
D failed to comply w/ the requisite level of care.
Causation
1) Actual Cause - defined by the ‘but for’ test (i.e., but for D’s actions, no injury would’ve occurred)
2) Proximate Cause - defined by foreseeability (b/c what D did it’s foreseeable)
Damages
Definition of damages means ACTUAL, PHYSICAL HARM.
-At minimum, P entitled to compensatory damages (i.e., damages that will make you whole for pain and suffering, lost wages, etc.)
Intervening Causes
These are subsequent injuries or accidents that occur that are foreseeable to happen to P.
-Generally everything that happens after initial injury to P is foreseeable and therefore original D is liable (pays for all damages)
Superseding Causes
Anything that happens to P after the initial injury that’s NOT foreseeable.
-This cuts off liability.
-Includes: acts of god, intentional torts, criminal acts, or anything the facts say is unforeseeable.
Pure Comparative Negligence
If a P also committed some negligence, he may still recover but his damages will be reduced by his % of fault.
-EXCEPTION: If P is found to be legally drunk and is responsible for more than 50% of injury, then P recovers NOTHING.
Assumption of Risk
Person knows and appreciates the nature of the conduct and does it anyway.
Negligence Per Se
1) Person violated an ordinance or statute;
2) P is part of the protected class that the statute was meant to protect; and
3) The injury is the kind of injury that the statute was trying to prevent.
Good Samaritan Rule
In Florida, there’s no duty to rescure.
But if you do come to someone’s aid, then you owe that person reasonable care.
-Note: If a medical professional is rendering aid, they’re not going to be liable as long as they were not reckless (i.e., knew or should’ve known)
Vicarious Liability
An employer is vicariously liable for the negligent acts of its employees as long as the employee is acting within the scope of employment.
Negligent Hiring
An employer is presumed not to have been negligent in hiring the employee if it did a background check.
-Alwaus throw in negligent hiring rule after vicarious liability.
Joint and Several Liability
In Florida, joint and several liability has been abolished.
-Each D must be sued for their own % of fault.
Sovereign Immunity
The government is generally immune from the negligent acts of its employees.
-HOWEVER, note the difference between operational and discretionary planning.
-Operational Stages: aka while the employee is doing his job; Govt. can be sued.
-Planning Stages: for example, Govt. didn’t put enough lights in park; Govt. will argue sovereign immunity.
Medical Malpractice
-Negligence committed by a doctor.
-Do the regular negligence analysis but with the duty of care being to act as other similar doctors or medical professionals with the same training and background in that community.
-There’s a 90-day pre-suit procedure to file a med. mal. claim
Special Rule Relating to Medical Malpractice
If P was unconscious at the time of the medical malpractice injury, then you can infer there was medical malpractice.
Punitive Damages
-Rarely awarded
-Will rewarded when, by CLEAR AND CONVINCING EVIDENCE, P can prove D acted intentionally, wilfully, wantonly, or with gross negligence.
-How much in FL? 3x compensatory damages or $500K, whichever is greater (but no cap if intentional)
Collateral Source Rule
In Florida, your damages will be reduced by any other recovery (income) you have from other sources (like insurance)
-This reduces your damages recovered from D.
Negligence Essay Structure
1) Elements of common law negligence
2) Intervening / Superseding Cause
3) Negligence Per Se
4) Joint and Several Liability
5) Pure Comparative Negligence / Assumption of Risk
6) Vicarious Liability / Negligent Hiring
7) Sovereign Immunity
8) Punitive Damages
9) Intentional or Negligent Infliction of Emotional Distress
Negligent Infliction of Emotional Distress
This means that:
1) D acted negligently;
2) P was in the zone of danger;
3) P suffered severe emotional distress with physical harm.
-NOTE: Need severe emotional distress AND physical harm.
Intentional Infliction of Emotional Distress
1) Person acted with intent or reckless conduct;
2) which is extreme and outrageous;
3) causes severe emotional distress.
REMEMBER: For IIED, no physical injury needs to occur.
Modified No-Fault (PIP) Rule
If there’s a car accident and a person was negligent, P’s insurance will pay the first $10,000 of his damages.
Dangerous Instrumentality
An owner is liable for any damages caused by someone he/she lends his car to.
Wrongful Death
If D’s negligence causes a death, the decedent’s personal representative may bring a wrongful death suit against D on decedent’s estate’s behalf for damages (loss of companionship, lost wages, pain and suffering, etc.)
-This is due to a wrongful death statute in FL
Survivor Action
If during the course of the lawsuit one of the parties dies, the personal representative of the decedent may continue the action.
Products Liability Essay Structure
1) Negligence - did someone act negligently causing the product to be defective?
2) Warranties (breach of an express or implied warranty)
3) Strict Product Liability
4) Inadequate / Failure to Warn
5) Assumption of Risk
6) Pure Comparative Negligence
7) Misrepresentation
8) Vicarious Liability
9) Joint and Several Liability
10) Damages (compensatory and punitive)
Implied Warranty of Merchantability
A product is of a quality equal to a generally accepted standard and is fit for an ordinary purpose (it does what it’s supposed to).
Implied Warranty of Fitness for Particular Purpose
A Seller knew or should’ve known of a particular purpose for which the goods were sold and the Buyer was relying on the Seller’s skill or judgment to furnish those goods.
Product Liability: Breach of Warranty
There are express and implied warranties; if any breach of those warranties you could sue for breach.
Two types of implied warranties:
1) Implied Warranty of Merchantability - a product is of a quality equal to a generally accepted standard and fit for an ordinary purpose.
2) Implied Warranty of Fitness for a Particular Purpose - a Seller knew or should’ve known of a particular purpose for which the goods were sold and the Buyer was relying on the Seller’s skill/judgment to furnish those goods.
Strict Product Liability
1) The product left the manufacturer in a defective condition; the defective condition was either designed or manufactured in a defective manner;
2) Sold by a commercial seller (someone in the business of selling that product);
3) Foreseeable user used the product (could be anyone foreseeable to the purchaser);
4) The product was used for its intended purpose; and
5) The product was unchanged from its original condition.
Inadequate or Failure to Warn
There was a warning that was inadequate or there should’ve been a warning but they didn’t have one.
Intentional Misrepresentation
Person intentionally said or wrote something to induce reliance on a material fact.
-Look for this as part of a Product Liability essay to go with warranty
Negligent Misrepresentation
-Usually comes up in a professional or business context
-A misrepresentation that was made or not made (i.e., forgot to tell you), upon which a person relied and caused you damages.
-Look for a special relationship (i.e., a business relationship) where a person is relying on expertise or special knowledge.
Defamation: Essay Structure
1) Define whether statement is defamatory
2) Was the statement published?
3) Type of defamation (libel vs. slander)
4) Private vs. Public Figure
5) Media Defendant?
6) Defenses
7) Intentional / Negligent Infliction of Emotional Distress
8) Vicarious Liability
Defamation
A false statement of fact (NOT opinion) of or about P, which hurts her reputation, with publication, where D is at fault and causes damages.
-Hurts your reputation / esteem in the community.
Defamatory Message
A message is defamatory if it lowers a P in the esteem of the community or discourages third persons from associating with him.
-May be characterized as a message that holds P up to hatred, ridicule, contempt or scorn.
-In general, only statements of fact (rather than opinion) are actionable as defamatory. (look for statements of fact to be more specific and detailed)
Elements of Defamation
P must establish that D published defamatoru material concerning P that caused reputational damage.
Elements to establish:
1) A Defamatory Message
2) Publication of the Message
3) Type of Defamation
4) Public or Private Figure
5) Damages
6) Defenses
Publication
A 3rd party must have HEARD and UNDERSTOOD what was said.
-For D’s message concerning P to constitute defamation, it must be communicated to a 3rd person, who receives it and understands it.
-A person who repeats the defamatory message is also liable as a publisher. (such publication may also increase the originator’s liability to P)
Libel
A defamatory statement in PERMANENT FORM.
-Since it’s in permanent form, no need to prove special damages. (damages are presumed)
-Historically, libel was simply defined as a written form of defamation.
-Today, a defamatory message embodied in any relatively permanent form is libel. (e.g., recording, video, picture, etc.)
Slander
A defamatory message not preserved in permanent form is classified as slander.
-Historically, slander was simply a defamatory message that is spoken to someone.
-IMPORTANT: For slander, you must prove SPECIAL DAMAGES. (i.e., quantifiable pecuniary (economic) loss)
Slander Per Se
There are certain kinds of statements that are so bad that damages are presumed:
1) Statements about the chastity of a woman
2) Loathsome disease
3) Person’s profession
4) Crime of moral turpitude (i.e., felony)
Private vs Public Figure
-Private person being defamed = P only has to prove negligence
-Public Figure = actual malice (reckless disregard of the truth; you knew or should have known that it was not true but said it anyway)
-Who’s a public figure? Someone who puts themself out there in the public domain.
Defenses to Defamation
1) Truth
2) Qualified Privilege: a statement made in good faith by someone interested in the subject matter and it was made in a proper manner.
Punitive Damages
-Punitive damages must be stated separately from all other damages
-Must be proved by CLEAR AND CONVINCING EVIDENCE
-In FL, punitive damages are 3x compensatory damages or $500K, whichever is greater (unless intentional, then there’s no cap)
-Must show gross negligence or willful misconduct
-Exception: No cap on punitive damages of D was intoxicated.
Exception: Defamation by a Media Defendant
1) If there’s a media D; and
2) P gives written notice to D 5 days prior to the defamation lawsuit; and
3) D prints a retraction; and
4) The original publication / broadcast was made in good faith;
Then, only actual damages are recoverable by P.
Qualified Privilege of Reporting on Official Proceedings/Reprots
(the Fair Report Privilege)
Under the Fair Report Privilege, a person who does an accurate report of an official proceeding is protected from a defamation suit.
-Person must be reporting in good faith and to fulfill a duty.
-Person can report on what people are saying at council meetings, from the witness stand during a trial, or to quote from the public records.
