Torts

Question 1

Trespassers in FL

Answer 1

• Discovered
• Undiscovered
• Impaired
• Child

Question 2

Discovered trepassers

Answer 2

• Uninvited/unpermitted entry
• discovered w/i 24 hours before injury

DOC liablity:

• gross neg
• intentional misconduct (causing injury)
• failure to warn of known dangerous condition

If LO makes express invitation after discovery or manifests intention to hold proprety open, trepasser becomes invitee

Question 3

Undiscovered trespassers

Answer 3

Enters property w/o invitation or license; entry undetected w/i 24 hours hours before accident

DOC liability: intentional conduct only

Question 4

Uninvited licensees

Answer 4

• Enters property for own convenience or pleasure
• presence tolerated by owner

DOC liability

• intentional misconduct
• gross neg
• no warning of dangerous conditions

Question 5

Invited licensee (Girl scout)

Answer 5

enters property w/ permission

DOC: Reasonable care

Question 6

Business Invitees (grocery shopper)

Answer 6

enters propert to provide commerical benefit to owner

DOC: reasonable care

This picks up firefighters/etc.

Question 7

Public invitees (beach goer)

Answer 7

Enter property to enjoy use for which it’s held out

DOC: Reasonable care

Question 8

Child trespassers

Answer 8

Child can’t avail himself of AND unless he was actually lured or enticed onto property by AN

Doesn’t apply if kid enters property and then discovers AN

Question 9

CAusation

Answer 9

Need both

• cause in fact (but-for/actual causation)
• proximate causation (legal cause/forseeability - did D foreseeably and substantially cause injury?)

Question 10

Rear end collisions

Answer 10

Rebuttable presumption that rear driver was sole proxixmate cause of accident

Driver has to show:

• other driver has to show abrupt lane change not reasonable expected
• illegal stop
• mechanical failure of his own car

Question 11

Dangerous Instrumentaltity Doctrine

Answer 11

All cars and motorized vehicles are DIs

Owner of car liable for all torts committed by another driver if they have knowledge and gave consent

Parents/kids - parents are J&S liable for teen drivers (in addition to general DID)

Question 12

Punitive damages (no RS)

Answer 12

P must

• plead damages; and
• establish by C&C evidence that D was personally guilty of gross neg (so reckless or wanting in care that constitutes conscious disregard or indifference)

Can’t exceed $500K or 3x compensatory damages - whichever greater

Question 13

Punitive damages (RS)

Answer 13

P can only get PD if

• employee guilty of intentional misconduct or gross neg; and
• employer actively or knowingly participated/ratified/consented or enaged in gross neg contribtuing to injury

Question 14

Recovery for NIED - Bystanders

Answer 14

P can’t recover unless he suffers:

1. physical injury OR
2. manifestation of injury/distress in form of severe & discernable physical illness (heart attack)

Question 15

Bystander claims - Recovery

Answer 15

Must show:

• spatial proxmity
• contemporaneous proximity
• relational proximity (determed on case by case basis)
• physical injury/illness or physical impact

Question 16

Wrongful death damages

Answer 16

• loss of support
• spouse only - loss of companionship
• loss of parental companionship
• med/funeral expenses
• loss of earnings form date of injury/death
• loss of prospective net accumulation of estate (future contributions to estate)

Question 17

Wrongful death damages - Mental pain & suffering

Answer 17

• surviving spouse
• minor children
• all children if no SS
• parents of deceased minor child

Question 18

Injuries to family - Damages

Answer 18

• Loss of parental companionship - injured parent, minor (usually child) claimant
• Filial companionship or consortium - injured child, parent claimant (only until kid turns 18)

Question 19

Seat belt defense

Answer 19

Failure to wear seatbelt may contribute to comparative neg

If raising this defense, D must prove:

1. P failed to use available & operational seatbelt
2. nonuse was unreasonable
3. nonuse caused/substantially contributed to damages

Question 20

FL Uniform Contribution among Tortfeasors Act

Answer 20

If J&S liablity is involved (intentional torts only), D who pays more than his share has right to contribution

Fault percentages allocated based on each D’s relative degree of fault

Question 21

Assumption of Risk

Answer 21

Exculpatory waivers are okay if:

• clear & unequivocal
• waives only neg or gross neg
• applies to adults

Question 22

3 types of product liability

Answer 22

1. manfuacturing defect
2. warnings defect
3. design defect

FL uses Consumer Expectations Test: P must show product didn’t perform as safely as ordinary consumer would expect when used in intended/reasonably foreseeable manner

Question 23

State immunity

Answer 23

State of FL liable:

for injury to property, persons or death caused by its employee’s negligence if employee was acting in scope of employment

Employees personally liable if:

• bad faith
• w/ malicious purpose
• willful and wanton disregard of others’ safety

Question 24

Strict liability - DAD

Answer 24

• defective products
• wild animals
• dangerous/hazardous activities

Question 25

Defamation

Answer 25

1. Defamatory communication 2. Plaintiff is ID'ed 3. Publication to at least 1 party 4. damage caused by publication 5. fault (negligence or malice, if it's public official) 6. falsit Truth is absolute defense

Question 26

Invasiion of prviacy

Answer 26

Intrusion on seclusion - D's intrusion into private affairs; highly offensive to reasonable person False Light - public facts; placed P in false light; highly offensive to RP; actual malice Appropriation - D's unauthorized appropration of P's likeness/identiy; D's advantage; lack of consent; injury Private facts - D gave publicity to private life; highly offensive to RP; not a legit concern of public

Question 27

Negligent Misrepresentation

Answer 27

* D provides false info resulting from his own neg * during course of his profession * causing P to justifiably rely on info * P is either in contractual relationsihp w/ D or is 3P who D should know is benefiting from info Ex: store customer who bought dangerous supplement based on clerk's misrep

Question 28

Intentional misrepresentation

Answer 28

1. Material fact 2. D knows it's false or has reckless disregard for its truth 3. intended that P rely on it 4. P justifiably relied on it 5. P suffered and can prove damages

Question 29

DOC for phsycians

Answer 29

Generalists - local standard Specialists - national standard

Question 30

Recovery for med malpractice (lack of consent)

Answer 30

P cant' recvoer based on lack of informe consent if * reasonable person woudl have genreal understanding of procedure/risks given materials provided, OR * patient would reasonably have consented if so advised rebuttable presumption of valid consent when patient signs in writing per standard practice

Question 31

Noneconomic damages - med malpractice

Answer 31

Cap on damages unconstitutional under EP of FL constitution - applies regardless of number of complainants and improperly discriminates between MM victims \*\* Loss of chance of recovery - P can only recover if proves evidence of greater than even change of survival before negligence

Question 32

Negligence per se

Answer 32

Violation of penal statute/ordinance = negligence per se

Question 33

Intervening cause Superseding cause

Answer 33

cause of P's harm occuring after D's tortious act Superseding cause - breaks chain of proximate causation =\> D not liable * unforseeable, not set in motion by D's actions

Question 34

Dram-shop

Answer 34

Not SL - if seller willfully/unlawfully gives alcohol to minor or alcoholic, maybe liable for resulting injurie

Question 35

Defenses to products liability

Answer 35

comparative fault * AOR * unforeseeable misuse, alteration, modification by user * compliance w/ gov safety standards state of the art standard - look at time of manufacture, not injury * if complied, rebuttable presumption that not defective; if no, rebuttable presumption that it is unforseeable intervening causes

Question 36

Informed consent - Physicians/tec.

Answer 36

no recovery allowed when: consent obtained in accordance w/ accepted standard of med practice among similarly trained/experienced med professionals AND * reasonable person would have general understandng of proceedure, acceptable alternatives, inherent risks * based on circumstances, patien would reasonably have undergone such porcedure/treatment had he been advised Must be in writing, signed by pateint or authorized person Creates rebuttable presumption of consent

Question 37

Collateral source rules

Answer 37

Damages reduced by total of all amounts paid for benefit of claims (i.e. insurance) UNLESS there's right of subrogation/reimbursement.

Question 38

Med malpractice - personal injury /wrongful death

Answer 38

can't file PI/WD claim unless **reasonable investigaton** conducted re: **GF grounds** for negligence claim - **written opinion from expert** there stating appears to be medical negligence

Question 39

Medical Malpractice Act

Answer 39

Presuit investigation - P needs expert opinion corroborating reasonable grounds notice to Ds - Notice of intention within 90 days of filing suit (including providers seen subsquent, 2 years prior, and all med records) screening process by D - based on insurer's investigation procedures resposne from D - can reject, offer setltement, admit liability