Torts (including distinctions)

Question 1

What are elements for “Zone of Danger” NIED case?

Answer 1

1. Plaintiff was within “zone of danger” and
2. Plaintiff suffered physical manifestations of emotional distress.

Florida: also requires a physical impact to the plaintiff

Question 2

What are elements of “Bystander” NIED case?

Answer 2

1. Plaintiff was close relation to injured person
2. Plaintiff was present and perceived the event which caused injury to the injured party
3. Plaintiff suffered physical manifestations of emotional distress

Florida: does require a physical manifestation of emotional distress.

Question 3

What are the other “Special Relationship” NIED cases?

Answer 3

1. negligence in medical care to plaintiff (e.g., false diagnosis of cancer, etc.)
2. mishandling of a corpse

Question 4

Good Samaritan Statute

Answer 4

Florida holds emergency response personnel liable for ordinary negligence during the course of rescue operations.

Exception: EMTs only responsible for gross negligence during course of providing emergency medical treatment

Question 5

Florida punitive damages

Answer 5

Defendant only liable for punitive damages upon finding of “intentional misconduct” or “gross negligence.”

Plaintiff limited to: 1) three times compensatory damages or 2) $500,000, whichever is greater.

Unless: motive was financial gain

Question 6

What are elements for Strict Products Liability?

Answer 6

1. Commercial supplier manufactured, sold or placed in the stream of commerce
2. Product was defective / unreasonably dangerous at the time it left defendant’s control
3. actual and proximate cause
4. Damages

Question 7

What are the ways a product can be defective or unreasonably dangerous?

Answer 7

1. Manufacturing defect
2. Design defect
3. Failure to warn

Question 8

What are the elements for breach of warranty claims for defective products?

Answer 8

1. Existence of a warranty (e.g., implied warranties of merchantability and/or fitness for a particular purpose);
2. Breach of the warranty (e.g., product was defective)
3. Causation
4. Damages

Question 9

What is Florida’s test for defective design of a product?

Answer 9

Consumer Expectation test.

The product will be unreasonably dangerous if it does not conform to the expectations of a reasonable consumer.

Question 10

Defamation Elements

Answer 10

1. A defamatory statement
2. About or concerning the plaintiff
3. Published to a 3rd party
4. Harm to reputation

(in slander cases, must prove special damages unless negligence per se present).

Additional elements in public figure / public concern cases:

1. Proof of falsity
2. Fault: NYT “malice” - knowledge or reckless disregard

Additional Elements in private figure / public concern cases:
1. Proof of falsity
2. Fault:
If malice, special damages are presumed for slander per se; otherwise, actual damages must be proved;
If negligence, then actual injury must be shown.

Question 11

Defamation Per Se categories

Answer 11

1. Statement about plaintiff’s business or profession
2. Loathesome disease
3. Crime of moral turpitude;
4. Unchaste woman

Question 12

What theories of liability will support a private nuisance action?

Answer 12

Intentional, negligent or strict liability

Question 13

How is “substantial interference” defined for purposes of nuisance actions?

Answer 13

Interference which is offensive, pervasive, or annoying

Question 14

When is conduct insufficient to constitute “substantial interference?”

Answer 14

When the interference relates to plaintiff’s specialized use of her own property or

When the interference relates to a hypersensitivity beyond the sensibilities of an ordinary or average person.