Flashcards in Bar Words Deck (32)
Under Florida law, a lawyer may represent a client if the representation does not involve a position adverse to another client when the lawyer represents both clients in the same proceeding before a tribunal. Each client shall be explained the risks and benefits of common representation.
In order to succeed on a negligence claim a plaintiff must show that the defendant had a duty, the defendant breached the duty, and the breach was the but for cause of the injuries to the P. D breach of duty was the actual and proximate cause of the P foreseeable injuries.
In Florida, an intentional misrepresentation by a D made with scientific, which is material and justifiably relied on by the P and which causes damages to the P is actionable. The D representations made in good faith are not actionable.
A misrepresentation consists of
A false affirmative assertion, active concealment, omission of fact. Scienter occurs when the person makes a statement they know is fake or recklessly posssess insufficient information about whether it is false.
In Florida, a seller may create an express warranty during negotiations for purchase or as a provision of the contract of sale. It is created by D promise by affirmation of fact or by use of a sample model. Comparative negligence applies to a cause Of action for breach of warranty.
Florida Comparative negligence
In Florida the cults use comparative negligence to apportion liability in negligence. This means that each party pays for their part in the negligence.
Breach of Implied Warranty
When a seller knows that a buyer is buying something for a particular purpose and the buyer is relying on the seller for advice to provide the right stuff, then the sale is an implied warranty that the goods will be fit for the buyers purpose.
In Florida, an employer is liable for injuries caused by the negligence of strict liability of an employee if the tortious act occurred within the scope of the employment. These acts are in the scope of employment if they are closely connected to what they were employed to do or if improperly it is a part of carrying out the objectives of the employment. EE are generally not liable for intentional torts unless the EE was motivated to serve the employers business in committing the international tort.
In Florida a manufacturer will be held strictly liable if its product is unreasonable dangerous, left the manufacturers in this condition and the distributor did not alter the product. The product could have a dangerous defect in manufacturing defect in design or lack of adequate warning. Defective manufacture can be proven when it is dangerous beyond the expectation of the ordinary customer . Defective design Is proven the same way. Inadequate warning can also create strict liability when the manufacturer knew or should have know of the danger and failed to take reasonable precautions to warn people of the danger with clear and complete warnings. Also the consumer Must have used the product in a forseeable way that caused the injury. The P must show the produce was defective when it left the defendants control. Comparative negligence is still a defense along with misuse.
Joint and Several Liability
Traditionally, when two or more independent tortfeasors combined to produce and indivisible harm or when two or more torfeasors act in concer to produce an indivisible harm they would be joint and several liable, Florida apportions the fault based on guilt of each party. Not joint and server always liability.
Negligence on property
In Florida, there is a duty to use reasonable efforts to keep business premise free from junk that might foreseeable cause damage or injury. 1). P must prove duty, 2). breach by failing to conduct reasonable maintence, inspection, repair, warning , or operation of the premises 3). Breach was the legal and proximate cause of the P 4). foreseeable injuries 5). Damages (not atty fees)
Intentional Infliction of Emotional Distress
An intentional infliction of emotional distress amounting to extreme and outrageous conduct that causes the P mental distress.
In Florida, a batter is an intentional act that causes a harmful or offensive contact with the P or with something closely connected. The D intended the contact or was reasonable certain it would happen. D may decent by saying force was to prevent P from engaging in an unprivileged attack.
An employer is liable for negligent hiring when the employer hires a person he knows is not qualified for the job or there is something in the employees past that the employer is aware of that would negatively impact the EE ability to the job. The Employer is negligent for the hiring, but not for what the employee did that was actually negligent
To recover punitive damages a P must prove by clear and convincing evidence that a D acted intentionally , or with willful wonton and gross misconduct. Limited to 3 times the compensatory award. No cap if proven to be intentional.
In Florida, a seller creates an express warranty if he makes a representation as to the nature of the quality of the product. This can occur via advertising, negotiations for purchase , showing a sample, or as a part of the sale contract. The UCC says by D promise, affirmation of fact, description or use of a sample or model.
Breach of an Implied Warranty
In Florida, where a merchant deals in goods of a particular kind such goods constitute an implied warranty those goods will be merchantable, and good for the kind of work these things a re generally fit for and when D knows P is purchasing for a particular purpose and relying on the D skill, the sale constitutes an implied warranty that the goos will be fit for the P purpose.
In Florida, intentional misrepresentation by a D made with scienter, which is material and justifiable relied upon by a P that causes damages is actionable. Misrepresentation can be 1). False statement 2). Active concealment 3). Omission of fact. If its just a mistake in good faith its not actionable. Scienter is present when they make the statement knowing it is wrong, or they don’t really know and they are guessing.
In Florida, a plaintiff can recover personal injury and property damages if he can affirmatively prove damages. To prove punitive damages, they need to demonstrate clear and convincing evidence that the D acted intentionally or with gross misconduct.
Ethical Considerations in Attorney Advertisment
The Fl rules of Professional Conduct require all ads and written communications to contain the name of the lawyer, the location of the practice and there can be no misleading statement or description fo the quality of the lawyers service.
Separation of powers
The Florida Constitution expressly incorporates the doctrine of separation of powers. This prevents the legislative branch rom encroaching upon the judicial branch. So the legislature cant compel the courts to act. Part of all of the constitution may be amended by proposal of joint resolution in both legislative houses. The resolution my be agreed to by 3.5 of both members of the house.
Supreme Court MANDATORY jurisdiction
In FLorida, the Supreme Court has mandatory jurisdiction over death penalty appeals, appeals of the district court of appeals where a statute or part of the consitution is held invalid, appeals of final judgement for validation of bods or indebteness and 4 appeals from orders of state agencies regarding utilities.
Supreme COurt Discretionary Jurisdiction
The FL Supreme Court has discretionary jurisdiction where a state statement is held invalid, state or us constitution being construed , class of constitution or state officer affected, there is conflict with a decision of another district court of appeals or the Supreme Court, or the case involves a question fo great importance or a confluence among district courts of appeal.
Florida Constitution and Common Law
Under Florida Law, the legislature cannot abolish a common law cause of action without providing a statutory alternative. Any statute that intends to displace a common law rule must expressly state the intention to do so and it must be open to every person for redress of any injury. Restricting access to the courts requires the legislature to provide alternative access.
Courts delegation of power
The courts can not delegate their powers to administrative agencies. No administrative agency may impose any other penalty including monetary damages or fines except as provided by law.
Single Subject only in Florida Laws
In Florida, the constitution specifically states that each law shall only be about one topic. The issues should be naturally and logically connected. There should be no unrelated provisions grouped together.
Using commercial paper
Generally only the holder of a note has a right to enforces it. One may become a holder only through negotiation. What is necessary for negotiation depends on whether the paper is bearer paper or order paper. Bearer paper may be negotiated by mere delivery, negotiation of order paper requires the indoor cement of the named parties plus delivery.
Conversion of negotiable instruments
Occurs when an instrument is taken by transfer rom a person not entitled to enforce the instrument.
Transferring an instrument for value means
That you warrant among other things that you are entitled to enforce the instrument.