Torts (Part 1 of 2) Flashcards
Where are torts found in the statutes?
Nowhere. Case law only.
What is respondeat superior?
Superior responds for EE’s harm if:
Acting within the scope, i.e., to serve the ER.
What statute waived sovereign immunity?
FS 768.28
When is EE personally liable?
Torts ----------- No EE personally sued will be driving a BMW ----------- When acted (1) Bad faith, (2) Malicious purpose, & (3) Wanton & willful disregard of human rts, safety or property
What is the requirement of wanton & willful?
Knew or shd have known injury wd result & disregarded the foreseeable injury.
TORTS ----------- NOC for 3 categories of torts --- Where send? --- S/L
TORTS ----------- NOC: -A- 6 mos = contribut. -B- 2 yrs med mal./wrong death -C- 3 yrs = torts --- to DFS UNLESS county, muni or FL Space ------------ 2 yrs = med mal/wrong death 4 yrs for all torts (intentional or unintent) + oral Ks.
How is a claim of negligent hiring or negligent retention specifically different from other tort claims?
ER is liable for EE acts outside scope of work.
How do negligent hiring/retention claims contradict FS 768.28?
~focus on the bad actor’s acts, not the supervisor~
FS 768.28 specifically exempts ER liability if EE acting outside course & scope of employment.
Here - crappy EE is acting outside his employment & ER is liable.
What’s the principal difference between negligent hiring & negligent retaining?
Neg. Hiring/Retention ----------- When the ER knew or shd have known. • Hiring - beforehand via investigation. • Retention - afterward see unfit.
What 6 things must a Negligent Hiring Plaintiff show?
Neg. Hiring
(1) ER owed duty to PL to use reas care in hiring.
(2) Inappropriate investigation.
(3) Appropriate investigation wd show unsuitable.
(4) PL injured by EE’s independent wrongful act.
(5) Independent wrongful act was foreseeable in light of the unsuitability.
(6) ER’s unreasonable failure to investigate is legal cause of PL’s injury.
What level of care must be exercised by ER in hiring?
The care a reasonably prudent person would exercise in choosing or retaining an EE for those duties.
When is it required for ER to contact LEO for a criminal history?
Never, even if job has heavy contact w/ public.
What must an ER balance in hiring?
Cost of investigation vs. likeliness of discovery.
Nature of duties (ex. inside citizen’s home) vs. opportunity for harm.
State the 6 elements of negligent retention claim.
Duty …… to Retain …… Shd …… unreas fail to Prevent …… Harm …… Foreseeably …… Caused.
(1) Duty to use reas care in retaining.
(2) Knew or shd known of unfitness.
(3) Unreasonably failed to prevent foreseeable harm.
(4) Harm by EE’s independent wrongful act.
(5) Act was foreseeable in light of the unfitness.
(6) ER’s unreasonable failure to take corrective action is legal cause of PL’s injury.
What must ER balance in retaining?
Seriousness of unfitness known.
Likelihood of harm.
