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FL Essays Final > Torts > Flashcards

Torts Flashcards

1
Q

Elements if an Intentional Tort

A
  1. Voluntary Act
  2. Intent
  3. Causation
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2
Q

Types of intent

A
  1. Specific - acts with the purpose of causing the consequence
  2. General intent - actors knows the consequence is substantially certain to occur
  3. Transferred intent
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3
Q

When can you transfer intent

A

When D indents to commit tort against one person but instead commits:

  1. A different intentional tort against the SAME person
  2. The same intentional tort against a different person
  3. A different intentional tort against a different person
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4
Q

What intentional torts does the doctrine of transferred intent apply to?

A 
Assault
battery
false imprisonment
trespass to land
trespass to chattel
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5
Q

What are the elements of the intentional tort of BATTERY?

A

When D:
1. Causes or is the substantial factor in bringing about
2. Harmful or offensive contact to P’s person
3. Has specific or general intent
E.g. kicking cane out from under them

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6
Q

What is harmful contact?

A

It causes injury, pain or illness

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7
Q

What is offensive contact?

A

When a person of ordinary sensibility would find the contact offensive

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8
Q

What are the elements of the intentional tort of ASSAULT

A

When D:

  1. Causes or is the substantial factor in bringing about
  2. Reasonable apprehension in P
  3. Of imminent harmful or offensive bodily contact to P AND
  4. Has specific or general intent
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9
Q

Is bodily contact required for an assault?

A

No

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10
Q

Must P be aware of the D’s actions in an assault?

A

Yes, in order to have reasonable apprehension. Unlike battery, where you can be unconscious

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11
Q

Are threats of future hard sufficient for an assault?

A

No, must be imminent

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12
Q

What are the elements of the intentional tort of FALSE IMPRISONMENT?

A

When D:

  1. Causes or is the substantial factor in bringing about
  2. Confinement of P within fixed boundaries AND
  3. Specific or general intent
    * P must be aware or harmed by confinement
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13
Q

How can you tell if here is confinement within fixed boundaries?

A

Exists when P’s movement is limited in all directions, such that there is no reasonable means of escape known to P

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14
Q

How can D cause confinement for purposes of a false imprisonment analysis?

A

Physical barriers, force, threats, invalid use of authority, duress or failure to provide a safe means of escape

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15
Q

What is the shopkeeper’s privilege?

A

A shopkeeper can detain a suspected shoplifter so long as the detainment is reasonable in both time and manner

In Florida, also applies to farmers and mass transit agents

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16
Q

What are the elements of the intentional tort of Intentional Infliction of Emotional Distress

A

When D:

  1. Acts with extreme or outrageous conduct;
  2. Which causes or is the substantial factor in bringing about
  3. SEVERE emotional distress AND
  4. Has intent to cause severe emotional distress or acts with recklessness
  5. Damages - although in Fla physical impact or physical manifestation of psychological trauma is not necessary
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17
Q

Can a bystander claim Intentional Infliction of Emotional Distress?

A

Needs to show:
(i) present at the time injury occurred to the other person; (ii) close relative of injured
person; and (iii) ∆ knew they were present and a close relative;

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18
Q

Does transferred intent apply to Intentional Infliction of Emotional Distress

A

No, but unlike other intentional torts, reckless conduct will suffice

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19
Q

What are the elements of the intentional tort of Trespass to Land

A

When D:

  1. Causes or is the substantial factor in bringing about
  2. A physical invasion of P’s real property AND
  3. Has specific or general intent
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20
Q

Does the invasion have to be by a person for Trespass to Land to be actionable

A

No, it can be by a person or object, e.g., throwing a rock

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21
Q

Is mistake a defense to Trespass to Land (e.g., D thought the land belonged to him

A

No

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22
Q

What does D have to intend to do for trespass to land?

A

D need only intend to enter the land or cause the physical invasion

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23
Q

What are the elements of the intentional tort of Trespass to Chattels?

A

When D:

  1. Causes or is the substantial factor in bringing about
  2. an interference with the P’s right of POSSESSION in chattel AND
  3. Has specific or general intent

E.g. accidentally taking Bob’s computer from the coffee shop thinking it was your own. Bob would need to prove harm to himself or laptop from the taking - -and can only collect to the extent of the damage done, not full value.

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24
Q

What is interference by Intermeddling?

A

occurs when the D directly damages the chattel

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25
Q

What is interference by Dispossession?

A

Dispossession occurs when D deprives the P of his lawful right of possession in the chattel

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26
Q

What are the elements of the intentional tort of Conversion

A

When D:

  1. Causes or is the substantial factor in bringing about
  2. an interference with the P’s right of POSSESSION in chattel AND
  3. The interference is so serious it deprives P entirely of the use of the chattel (and justifies paying full value for the property)
  4. Has specific or general intent
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27
Q

Is mistake of ownership a defense to trespass to chattels?

A

No, you only need to intend to keep the chattel.

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28
Q

What are the defenses to intentional torts?

A
  1. Consent
  2. Self defense and defense of others
  3. Necessity
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29
Q

Defense of consent

A

Consent is a defense provided that:

  1. Consent was VALID (no fraud, incapacity) AND
  2. D’s conduct remained in boundaries of consent
    * consent can be express or implied
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30
Q

Self defense and defense of others in Florida

A

A person who is not engaged in criminal activity and in any place where she has the right to be has NO DUTY TO RETREAT.

She has the right to use such force as she reasonably believes necessary to defend herself or another

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31
Q

When are you justified in using deadly force?

A

If she reasonably believes it is necessary to prevent death of great bodily harm to herself or another, OR to prevent commission of a forcible felony, she has the right to use or threaten to use FORCE including DEADLY FORCE

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32
Q

When are you presumed to have a reasonable belief of fear of death or great bodily harm?

A
  1. Unlawful entry by intruder into another’s dwelling, residence, or occupied vehicle, OR the attempted
    forcible removal of another from a dwelling, residence, or vehicle, and
  2. The person who used the force must know (or had reason to know) of the unlawful or forcible entry
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33
Q

What is a dwelling?

A

Dwelling = broader than residence - can be tent, front porch, etc.

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34
Q

When does the reasonable belief PRESUMPTION not apply?

A
  1. Person against whom force was used had a legal right to be in the dwelling, residence or vehicle
  2. Person against whom force was used is attempting to forcibly remove someone over whom they have lawful custody, or is child or grandchild
  3. Unlawful activity in the dwelling, residence or vehicle by person using force
  4. Law Enforcement Officer Exception : person against whom force is used is a LEO and person using force knew or reasonably should have known
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35
Q

In Florida, what type of force is permitted in Defense of PRoperty

A

May use force (not deadly force) based on reasonable belief that such conduct is necessary to prevent tortuous or criminal interference with property.

Deadly force IS NOT JUSTIFIED absent a reasonable belief that deadly force is necessary to prevent a forcible felony.

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36
Q

Defense of Necessity

A

D enters P’s land or interferes with P’s property to prevent an injury or some other severe harm

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37
Q

What is a private necessity, and who pays for damages?

A

A necessity defense is private when the D’s act is done to benefit a limited number of people.

D MUST PAY actual damages that he caused

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38
Q

Can landowner use force to exclude D where there is a private necessity?

A

No, however, landowner can use reasonable force to exclude a trespasser

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39
Q

What is a public necessity, and who pays for damages?

A

Act is done for public good; D is NOT LIABLE for property damage that he caused.

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40
Q

Elements of Intentional Interference with Business Relations

A

In Florida, requires:
1. An EXISTING business relationship evidenced by an actual identifiable agreement that in all probability would have been completed absent interference.
2. ∆ knew of the relationship,
3. intentional interference by ∆ induces breach or termination of the relationship or
expectancy AND
4. damages to π (i.e. money lost).

No COA where relationship is based on speculation regarding future sales to past customers

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41
Q

Elements of a COA for negligence

A
  1. Duty to conform to a specific standard of care
  2. Breach
  3. Actual and proximate case
  4. Actual damages
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42
Q

To whom is a duty owed?

A

Forseeable plaintiffs

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43
Q

When is there an affirmative duty to act?

A

SAID

  • special relationship
  • administer aid/attempt to rescue
  • imposed by law
  • conduct of D places plaintiff in Danger
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44
Q

What is the standard of care owed

A

Reasonably prudent person under the circumstances as measured by an objective standard

D presumed to have average mental abilities and knowledge

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45
Q

Can particular physical disabilities be taken into account?

A

Yes. E.g., blind person, standard of care of a blind person.

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46
Q

Are intoxicated people held to the same standard as sober people?

A

Yes, unless the intoxication was not voluntary

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47
Q

Are community customs relevant in determining reasonableness?

A

Yes, they may be relevant but they are not dispositive

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48
Q

Standard of care for children

A

Reasonably prudent child of similar age, UNLESS

child is engaged in an adult activity, then held to adult standard

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49
Q

Standard of care for professionals

A

A professional is expected to exhibit the knowledge and skill of a member of the profession in good standing in similar communities

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50
Q

Standard of care for physicians

A

what is recognized as acceptable by reasonably prudent similar healthcare providers in light of all relevant circumstances

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51
Q

Standard for informed consent

A

Health care provider will not be liable for failure to obtain informed consent if the patient either:

  1. received enough information so that a reasonable person would have a general understanding of the procedure, its alternatives and its risks OR
  2. would have accepted the treatment had he been advised as required
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52
Q

When is informed consent presumed?

A

Informed consent is presumed if the doctor gets consent:

(1) In writing;
(2) Signed by patient/HCS; and
(3) Provides information about nature of risks, procedure, reasonable alternatives

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53
Q

Action for prenatal injuries

A

Both parent and child have action for prenatal injuries if child is born alive. If fetus dies from injuries, parents may bring a negligent stillbirth action for mental pain ad anguish, and medical expenses incident to pregnancy. Cannot bring wrongful death action

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54
Q

In Florida, do COMMERCIAL landowners owe a duty to to protect those OFF the premises?

A

For both artificial and natural conditions, commercial landowner duty to injuries to plaintiff off the premises is evaluated under regular negligence standard.

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55
Q

What affirmative duty do commercial landowners owe?

A

Duty to prevent foliage from obstructing view of sidewalk when entering and exiting property.

N/a to residential landowners s/l/a they do not permit foliage or other conditions of land to extend beyond their boundaries.

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56
Q

Duty owed to DISCOVERED Trespassers

Trespassers – lowest level of duty

A

Duty to warn of dangerous conditions that are known but not readily observable to others.

OTHERWISE, no liability unless

  • gross negligence
  • intentional misconduct
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57
Q

What is a discovered trespasser?

A

A person who enters property without an express or implied invitation and whose actual presence is discovered in the 24 hours preceding the accident

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58
Q

If discovered trespasser is legally under the influence of drugs or alcohol, does landowner have a duty to them?

A

No duty to warn.

But is still liable for gross negligence or intentional misconduct.

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59
Q

Duty to undiscovered trespassor

A

No duty unless intentional misconduct

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60
Q

What is a licensee?

A

A person who lawfully enters the premises without invitation for their own benefit, not for the landowner’s benefit
Eg. stop in supermarket to use bathroom
-stop at gas station to get change

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61
Q

Duty to licensee

A

SAME AS DISCOVERED TRESPASSER
Duty to warn of dangerous conditions that are known but not readily observable to others.

OTHERWISE, no liability unless

  • gross negligence
  • intentional misconduct
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62
Q

What are the two types of invitee?

A

Public invitee - invited to enter and remain on premises as a member of the public for the purpose for which the premises are held open to the public

Business invitee - is a person who is invited to enter or remain on premises for a purpose directly or indirectly connected with business dealings with the possessor of the premises

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63
Q

Common law duty to invitee

A

(1) to keep his property in reasonably safe condition and to protect the invitee from dangers of which he is or should be aware; and
(2) to warn the invitee of concealed dangers which are or should be known to the owner or occupier and which are unknown to the invitee and cannot be discovered by him through the exercise of due care.

64
Q

Florida statutory duty of Business owners

A

-keep premises free from transitory objects or substances that might foreseeably give rise to injury - SLIP AND FALL CASES

65
Q

What does claimant have burden of proving in slip and fall on substances

A
  1. business owner had actual or constructive knowledge of the dangerous condition and
  2. should have taken steps to remedy it
66
Q

Constructive knowledge for slip and fall

A
  1. dangerous condition for sufficient length of time that owner should have known OR
  2. the condition occurred with regularity and was therefore forseeable.
67
Q

Attractive nuisance doctrine

A

Liable for injuries to trespassing children if children were lured onto property by attractive nuisance

68
Q

When is a violation of a stature negligence per se

A

When a Florida statute establishes a duty to take precautions to
1. protect a particular class of persons
2. from a particular injury, AND
3. P is in the class of persons the statute is designed to protect and
4. D violated the statute
it is negligence per se

69
Q

What is jury required to find if there is negligence per se?

A

Jury is required to find DUTY and BREACH from violation of the statute

70
Q

Can violation pf a traffic order be negligence per se?

A

No, it is only evidence of negligence

71
Q

In Florida, a firefighter properly identified as a law enforcement officer holds what status?

A

Invitee

72
Q

What is the doctrine of res ipsa loquitor

A

“The thing speaks for itself”

-when an element of negligence is difficult to prove, but the circumstances make it obvious that D’s negligence was most likely cause of harm

73
Q

What must a P show for res ipsa loquitor to apply

A

P must show that the accident resulting in the harm was:

  1. of a kind that ordinarily does not occur in the absence of negligence AND
  2. caused by an agent or instrumentality in D’s exclusive control
74
Q

What is the effect of a finding of res ipsa loquitor

A

gives you evidence of breach for the jury to weigh

75
Q

What does P need to prove with respect to causation

A

that D’s actions were both the ACTUAL and PROXIMATE case of P’s injury

76
Q

Actual cause

A

Injury would not have occurred BUT FOR D’s breach

OR

if D’s breach was a SUBSTANTIAL FACTOR in bringing about P’s harm

77
Q

Proximate cause

A

P must show that her injury was the FORESEEABLE RESULT of D’s conduct

78
Q

What is an intervening cause?

A

outside force or action that contributes to the plaintiff’s harm AFTER D’s breach

79
Q

When does an intervening cause CUT OFF D’s liability to P

A

If intervening cause was unforseeable, it is a superseding cause and cuts of D’s liability

Unforeseeable intervening cause: criminal acts, intentional torts, “acts of god”

80
Q

Foreseeable intervening acts

A
  • negligent acts, e.g., medical malpractice

- danger invites rescue - injuries sustained when running from danger, and injury to rescuer (or caused by rescuer)

81
Q

When can an employer be held liable for NEGLIGENT acts of agent
(Respondeat superior)

A

IF:

  1. employer-employee relationship exists (extent of control is critical)
  2. tort occurs w/in scope of employment
82
Q

Rules regarding frolic and detour

A

Employer liable for DETOUR (minor deviation from scope of employment even if for personal reasons)

Employer not liable for FROLIC (major deviation from scope of employment)

83
Q

How do you know when activity is within scope of employment?

A

Courts examine whether employee’s conduct was:

  1. a function he was hired to perform
  2. w/in work hours
  3. conducted to serve employer
  4. forseeable to employer
84
Q

Are employers liable for INTENTIONAL torts of employee?

A

No, unless:

  1. Intentional tort was authorized by employer OR
  2. the force used was within scope of employment (E.g. security guards)
85
Q

Can employers be held liable for negligent hiring if employee engages in an intentional tort

A

In Florida, employer is presumed NOT to have been negligent in hiring id he conducted background check before hiring, and it did not reveal anything.

However, no presumption AGAINST employer if he did not conduct background check (so it does not mean he did not use reasonable care)

86
Q

Liability of business partner

A

Negligence of one business partner can be imputed to another business partner if within scope of business purpose.

87
Q

Vicarious liability of Car owner for driver

A

Owner who consents to the use of his vehicle by another person is liable for negligence of driver

88
Q

Is there a limit of liability on an owner of car used in ordinary course of owner’s business?

A

No, so long as it is not a rental company

E.g. delivery guy gets in accident, restaurant owner is liable

89
Q

If natural person loans vehicle to another, or leases for a short term (not a rental company), what is liability?

A

Limited to $100,00 per person and $300,000 per incident for bodily injury and $50,000 for property damage

Unless lessee or operator is underinsured (combined limit less than $500,000) then they can be liable for an additional $500,000 in economic damages

90
Q

For lease above 1 year, what is liability of owner

A

No liability s/l/a insurance requirements are met

91
Q

Vicarious liability of parent for child in Florida

A

-parents of unemancipated minor child who commits a theft offense may be liable for threefold the victim’s actual damages

92
Q

Vicarious liability of tavernkeeper in Florida

Tavernkeeper can be vendor or social host. Its “Sells or furnishes”

A

One who provides alcohol to person of lawful age is NOT liable for damages caused by the intoxication of that person

-even if person is already visibly intoxicated

93
Q

Exceptions to rule of NO Vicarious liability of tavernkeeper in Florida

Tavernkeeper can be vendor or social host. Its “Sells or furnishes”

A

Tavernkeeper may be liable if:

  1. willfully sells alcohol to minors
  2. knowingly serves alcohol to habitual user
  3. knew or should have known of likelihood of injuries to patrons caused by disorderly conduct of third persons and he does nothing about it.
94
Q

Elements of claim for negligent infliction of emotional distress

A

Florida requires that there be some actual physical impact caused by a psychological trauma to state a claim. there are limited exceptions, like freestanding torts, such as negligent stillbirth or wrongful birth.

95
Q

Elements of claim for negligent infliction of emotional distress by BYSTANDER

A

Elements of claim:

  1. P must suffer a physical injury caused by a psychological trauma
  2. P must be involved in some way in the event causing the negligent injury to another
  3. P must have a close personal relationship directly to the injured person.
96
Q

IS there joint and several liability in Florda?

A

NO - not in negligence cases, only for intentional torts

Judgment for each tortfeasor is based on their percentage of fault and allows recovery no matter how great plaintiff’s negligence is.

97
Q

When is a P in a negligence action unable to recover any damages

A

if

  1. P was under influence of alcohol or drugs with BAC of .08% or higher and
  2. as a result of P’s impairment, P was more than 50% at fault for her own harm
98
Q

Indivisible injury rule

A

“two or more causes combine to produce such a single [harm], incapable of division on any logical or reasonable basis, and each is a substantial factor in bringing about the harm, the courts have refused to make an arbitrary apportionment for its own sake, and each of the causes is charged with the responsibility for the entire harm.”

99
Q

Florida’s Good Samaritan Act - liability of rescuers

A

is meaningless because the rescuer remains liable for ordinary negligence.
Except for some emergency providers, who are not liable unless they acted with recklessness or gross negligence

100
Q

Statutory cap on non economic damages in medical malpractice has been held to violate

A

Florida constitution and is therefore invalid

101
Q

When can P get punitive damages

A

Only if trier of fact, based upon clear and convincing evidence finds D guilty of intentional misconduct or gross negligence

102
Q

What is the cap on punitive damages

A

Cannot exceed the greater of:
1. 3x the amount of compensatory damages awarded to each P OR
2. $500,000
Exceptions: action motivated by unreasonable financial gain. abuse of children or elderly, intent to harm, intoxication

103
Q

Collateral source rule n/a to

A

Mdicaid
Medicare
Workers comp
where a subrogation right exists (they just have to pay it back)

104
Q

Do tort claims survive death of injured party?

A

YES s/l/a it didn’t cause death

IF he dies, its a wrongful death case

105
Q

Can a tortfeasor allocate fault to a non-party? If so, how?

A

Yes, he must affirmatively plead the fault of the nonparty, identify or describe the nonparty and at trial, prove the non-party’s fault by a preponderance of the evidence.

106
Q

What can be recovered in a wrongful death action?

A 
Each survivor (parents, spouse, children) may recover
-lost support from date of injury to death, and date of death going forward (discounted to present value)

Each surviving spouse and minor child may recover:

  • loss of companionship and protection
  • mental pain and suffering from the date of injury

Lost wages, medical and funeral expenses recoverable by estate
Case instituted by personal representative of estate on behalf of survivors

107
Q

Florida’s economic loss rule

A

“The ‘economic loss’ rule is a court-created doctrine which prohibits the extension of tort recovery for cases in which a product has damaged only itself and there is no personal injury or damage to ‘other property,’ and the losses or damage are economic damages.”

Remedy for damage to product itself is a breach of warranty claim

108
Q

Defenses to Negligence Action - Assumption of risk

A

When a party knowingly and willinmgly embraces a risk for some purpose of his own

109
Q

When are exculpatory waivers enforceable?

A

Exculpatory waivers are enforceable if:
o Clear and unequivocal
o Waives only negligence or gross negligence; not intentional torts
o Applies only to adults

110
Q

Florida’s seatbelt defense

A

If requirements are met, jury will be instructed to allocate a % of comparative fault to D’s failure to wear seatbelt
D must prove:
o (1) P failed to use available and operational seatbelt;
o (2) Non-use was unreasonable; and
o (3) Non-use caused or substantially contributed to P’s damages

111
Q

What is the State of Florida’s liability for tort actions

A

Florida has waived its immunity to a substantial extent for governmental or ministerial activities but not for discretionary activities.

Liability is waived up to $200,000 pp and $300,000 per claim, unless state has greater insurance. Liability is waived up to insurance coverage

112
Q

Do you need to file NOC like NY

A

Yes, must present written NOC to appropriate state agency to the Dep’t of Insurance, or to municipality

113
Q

PArent-child immunity in Florida

A

Floridia waives parent-child immunity in the following cases:

  1. when unemancipated minor sues parent for negligence (only to extent of available insurance coverage)
  2. intentional sexual abuse by parent against minor child
114
Q

Does child have a loss or consortium claim in Florida

A

Yes - just like the one in NY for spouse- applies if parent is permanently injured

115
Q

SOL for wrongful death

A

2 years, except wrongful death actions for intentional torts have no SOL

116
Q

SOL for Defamation

A

2 years

117
Q

SOL for Medical Malpractice

A

2 years from when malpractice was discovered or should have been discovered, but no longer than 4 years

118
Q

SOL For negligence and intentional torts

A

4 years

119
Q

Can parent waive claim against commercial activity provider for minor’s personal injury from an inherent risk in the activity?

A

Yes, to be enforceable, waiver must advise that guardian is agreeing that even if the activity provider usus reasonable care, there is a risk of serious injury or death because of inherent dangers in the activity

120
Q

Elements of Claim for Fraudulent Misrepresentation

A

1) made a misrepresentation, (2) scienter, meaning the defendant knew the statement was, (3) an intent to induce reliance on the misrepresentation, (4) plaintiff’s reliance on the false statement was the cause of the harm, (5) the plaintiff’s reliance was justified, meaning the statement was not obviously false, and (6) the plaintiff suffered damages.

121
Q

Vicarious liability for teen drivers

A

o Parent is J&SL for torts committed by teen drivers if parents sign for minor’s driver’s license

122
Q

When can an employer ve held vicariously liable for independant contractors torts

A
  1. If employer was negligent in selecting or retaining the independent contractor
  2. If the tasks assigned to the I.C. are non-delegable (i.e., implicate public safety or welfare)
  3. IF work performed by I.C. is ultra hazardous
123
Q

Is contribution still available in Florida?

A

Not in comparative negligence cases

124
Q

What is the doctrine of indemnification?

A

indemnification seeks to shift the loss from one tortfeasor, who has been compelled to pay, onto the shoulder of another tortfeasor, who should properly bear the loss instead

125
Q

Can a parent sue on child’s behalf

A

Yes, unless the child is suing them. In that case, court can appoint a GAL

Court can also appoint GAL to represent child’s interest regarding compensation he receives through settlement or verdict.

Child can also sue by “next friend” - person of reasonable judgment and integrity who conducts litigation for the minor, usually parent or other relative. The next friend is not a party to the proceeding nor is she formally appointed as guardian. They are agents of the court with the role of protecting minor

126
Q

Types of invasion of privacy in Florida

This is a civil tort
-can obtain damages and injunction

A

Intrusion
Appropriation
Public disclosure
False light

127
Q

Intrusion

A

D enters property w/o lawful permission

  • most often associated with videotaping or recording another person.
  • hidden cameras not allowed
  • cannot record a phone conversation without other party’s permission
128
Q

Appropriation

A

use of an individual’s name, identity, photograph or likeness without their permission. For instance, you cannot name your clothing company “Marilyn Monroe” and use a photograph of Marilyn Monroe as your logo. In addition, in Florida, commercial appropriation such as this incurs punitive damages.

129
Q

Public disclosure of private facts

A
  • Private facts include information about a person’s medical history, social security number, sexual past or the contents of their diary
  • only legally cognizable when it is made public through a news source.
130
Q

False Light

A

False light invasion of privacy is similar to defamation – stories, photos, quotes, and more that are re-worded or taken out of context to put an individual in a false light are actionable.

NOT RECOGNIZED IN FLORIDA

131
Q

Florida’s rule on liability for domestic animals

A

-Owner of dog is liable for damages regardless of viciousness or former knowledge - so strict liability if dog bites person on public property or when person is lawfully on private property.

However, in the absence of negligence, owner is not liable to someone over 6 years old if:

  1. person is not lawfully on premises or
  2. owner had “Bad Dog” sign displayed.

Negligence by P will reduce owner’s liability

132
Q

Elements of a strict liability claim for products liability

A

P must show:

  1. Defect was in manufacture, design or failure to warn;
  2. Defect existed when it left manufacturers control
  3. Defect caused injury to P when product was used in foreseeable way.
133
Q

Manufacture defect

A

P must show that product:

  1. Deviated from its intended design and
  2. Fails to conform to manufacturer’s own design
134
Q

Design defect

A

P must prove that product was less safe than the ordinary consumer would expect

135
Q

Failure to warn

A

1, p was not warned regarding risks of use of product

  1. Risks are NOT obvious to ordinary user
  2. Designer/mfr was aware of such risks
136
Q

Rebuttable presumption regarding compliance with gov’t safety standards

A

Rebuttable presumption that product is defective if it does not comply with gov’t safety standards,

AND
Rebuttable presumption that product is NOT defective if it complies with gov’t safety standards,

137
Q

Who can a products liability claim be brought against?

A

May only be brought against a MERCHANT in the chain of distribution

merchant = person who routinely deals in goods of that type

138
Q

Who can be a P in a products liability claim

A

Any person foreseeably injured by the defective product

139
Q

How to determine whether an activity is abnormally dangerous?

A

Review 6 factors:

  1. whether the activity involves a high degree of risk or harm;
  2. the gravity of that risk;
  3. whether the risk can be eliminated by the exercise of reasonable care;
  4. whether the activity is a matter of common usage;
  5. whether the activity is appropriate to the place where it is carried out on and
  6. the value of the activity to the community.
140
Q

Does strict liability attach to an activity that is determined to be abnormally dangerous?

A

Yes
So even an employee can sue employer.
Eg. fuel storage facility has explosion that injures employee

141
Q

Who is duty owed to protect against an activity that is determined to be abnormally dangerous?

A

Foreseeable P

Activity must be ACTUAL and PROXIMATE cause of injury, using normal negligence analysis

142
Q

Is contributory negligence a valid defense to strict liability for an abnormally dangerous activity?

A

Usually, contributory negligence is not a defense to strict liability unless the plaintiff knew of the risks and his own actions were the very cause of his injuries.

143
Q

IS assumption of risk a valid defense to strict liability for an abnormally dangerous activity?

A

Yes, so P may be barred from bringing suit if he voluntarily undertakes the activity

144
Q

What are the four types of claims you can have against a manufacturer, distributor, wholesaler or retailer of a product?

A
  1. intentional tort (usually battery)
  2. negligence
  3. strict liability
  4. breach of warranty
145
Q

Florida’s dangerous instrumentality doctrine

A

the owner of an inherently dangerous tool is liable for any injuries caused by that tool’s operation.

applies to cars

imposes strict vicarious liability on owner

146
Q

Exceptions to dangerous instrumentality doctrine

A
  1. Shop rule 0 if car is in shop, owner isn’t responsible
  2. car rental and leasing companies
  3. if you sell your car and and the buyer causes an accident before title is transferred
  4. car is stolen
147
Q

Defamation case in Florida

A

Occurs when D:

  1. Communicates to a third party
  2. a defamatory statement (must be false and NOT an opinion)
  3. of or concerning P
  4. Proof of falsity
  5. Proof of fault
  6. Damages to P’s reputation
148
Q

Notice Requirement for Defamation Action against Media Defendant

A

P must serve written notice on media D at least 5 days before commencing action specifying alleged false and defamatory statement or article

If D retracts within 10 days, and original broadcast was made in good faith, can only recover actual damages

149
Q

Absolute privilege in defamation action

A

Statements made in judicial proceedings

150
Q

Qualified privilege in defamation action

A

Out-of-court questioning of potential witnesses

• Statements must be relevant to the investigation

151
Q

When can you lose the qualified privilege?

A

• Can lose qualified privilege by showing express malice (attorney’s primary motive = injure reputation)

152
Q

Slander Per se

A

If proven, P can get general damages and special damages -

  1. Statements that impugn business integrity
  2. Statements of unchastity about an unmarried woman
  3. Loathsome disease
  4. Crime of moral turpitude
153
Q

Special damages vs. general damages

A

General - recovery is allowed without proof of concrete, measurable harm
– available fro liberl and slander per se
Special - requires a more concrete showing of actual economic loss
–slander

154
Q

Defenses to products liability claim

A
  1. Misuse - damages caused by user’s negligent use of product
  2. Learned intermediary doctrine
  3. State of the art
155
Q

Learned intermediary doctrine

A

a drug or medical device manufacturer’s duty to warn consumers of the dangers associated with its prescription product extends only to the prescribing physician who acts as a “learned intermediary” between the manufacturer and the ultimate consumer and assumes responsibility for advising individual patients of the risks associated with the drug.

156
Q

State of the art defense to a propducts liability suit

A

n an action based upon defective design, brought against the manufacturer of a product, the finder of fact shall consider the state of the art of scientific and technical knowledge and other circumstances that existed at the time of manufacture, not at the time of loss or injury.

FL Essays Final (17 decks)

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