Essay Torts Flashcards

Question

What are the four elements for the prima facie case of the intentional tort of intentional infliction of emotional distress?

Answer 1

(i) An act by defendant amounting to extreme and outrageous conduct; (ii) intent or recklessness; (iii) causation; and (iv) damages--severe emotional distress

Answer 2

This is conduct that transcends all bounds of decency. Conduct that is not normally outrageous may become so if: 1) it is continuous in nature; 2) it is directed toward a certain type of plaintiff (children, elderly persons, pregnant women, supersensitive adults if the sensitivities are known to the defendant); or 3) it is committed by a certain type of defendant (common carriers or innkeepers may be liable even for mere "gross insults")

Answer 3

Yes. Actual damages (severe emotional distress), not nominal damages, are required. Proof of physical injury is not required. The more outrageous the conduct, the less proof of damages is required. Note: intentional infliction of emotional distress is the only intentional tort to the person that requires damages

Answer 4

By showing either the prima facie case elements of emotional distress OR that (i) she was present when the injury occurred, (ii) she is a close relative of the injured person, and (iii) the defendant knew facts (i) and (ii)

Answer 5

(i) physical invasion of plaintiff's real property; (ii) intent; and (iii) causation

Answer 6

The invasion may be by a person or object (e.g., throwing a baseball onto plaintiff's land is a trespass). If intangible matter (e.g., vibrations or odor) enters, the plaintiff may have a case for nuisance. Real property includes not only the surface, but also airspace and subterranean space for a reasonable distance.

Answer 7

Defendant need intent only to enter onto that particular piece of land (he need not know that the land belonged to another).

Answer 8

Anyone in actual or constructive possession of the land may maintain this action. Plaintiff can recover without showing actual injury to the land.

Answer 9

(i) an act by defendant that interferes with plaintiff's right of possession in a chattel; (ii) intent; (iii) causation; (iv) damages

Answer 10

The interference may either be an intermeddling (i.e., directly damaging the chattel) or a dispossession (i.e., depriving plaintiff of his lawful right of possession of the chattel)

Answer 11

Actual damages--not necessarily to the chattel, but at least to a possessory right--are required

Answer 12

(i) an act by defendant that interferes with plaintiff's right of possession in a chattel; (ii) intent; (iii) causation; and (iv) damages--an interference serious enough in nature or consequences to warrant that defendant pay the chattel's full value

Answer 13

Acts of conversion include wrongful acquisition (theft), wrongful transfer, wrongful detention, and substantially changing, severely damaging, or misusing a chattel

Answer 14

As with trespass to chattels, mistake as to ownership is no defense; the only intent required is the intent to do the act that interferes with the plaintiff's right of possession.

Answer 15

The longer the withholding period and the more extensive the use, the more likely it is to be conversion. A less serious interference is trespass to chattels

Answer 16

Only tangible personal property and intangibles that have been reduced to physical form (e.g., a promissory note) are subject to conversion

Answer 17

Anyone with possession or the immediate right to possession of the chattel may maintain an action for conversion

Answer 18

Plaintiff may recover damages (fair market value at the time of conversion) or possession (replevin)

Answer 19

1) consent; 2) self-defense, defense of others, and defense of property; 3) privilege of arrest 4) necessity; 5) discipline

Answer 20

Plaintiff's consent to defendant's conduct is a defense, but the majority view is that one cannot consent to a criminal act. Any consent fact pattern raises two inquiries: (i) was there a valid consent (e.g., no fraud)? (ii) did the defendant stay within the boundaries of the consent (e.g., not use a gun in a boxing match)?

Answer 21

Defendant is not liable if plaintiff expressly consents to defendant's conduct. Exceptions: (i) mistake will undo express consent if defendant knew of and took advantage of the mistake; (ii) consent induced by fraud will be invalidated if it goes to an essential matter, but not a collateral matter; and (iii) consent obtained by duress will be invalidated unless the duress is only threats of future action or future economic deprivation

Answer 22

Apparent consent is that which a reasonable person would infer from custom and usage or plaintiff's conduct, e.g., normal contacts inherent in body-contact sports, ordinary incidental contact, etc. Consent implied by law arises when action is necessary to save a person's life or some other important interest in person or property

Answer 23

Individuals without capacity are deemed incapable of consent, e.g., incompetents, drunken persons, and very young children

Answer 24

(i) Is the privilege available? (These privileges apply only for preventing the commission of a tort. Already committed torts do not qualify.) (ii) Is a mistake permissible as to whether the tort being defended against (battery, trespass, etc.) is actually being committed? (iii) was a proper amount of force used?

Answer 25

When a person reasonably believes that she is being or is about to be attacked, she may use such force as is reasonably necessary to protect against injury. The majority rule is that there is no duty to retreat. Self-defense is not available to the initial aggressor unless the other party responds to the aggressor's nondeadly force by using deadly force. Also, self-defense may extent to third-party injuries (caused while the actor was defending herself).

Answer 26

One may use force to defend another when the actor reasonably believes that the other person could have used force to defend himself

Answer 27

A reasonable mistake as to whether the other person is being attacked or has a right to defend himself is permitted.

Answer 28

The defender may use as much force as he could have used in self-defense if he were the one threatened with the injury.

Answer 29

One may use reasonable force to prevent the commission of a tort against her real or personal property. A request to desist or leave must first be made unless it would be futile or dangerous. The defense does not apply once the tort has been committed; however, one may use force in hot pursuit of another who has tortiously dispossessed the owner of her chattels because the tort is viewed as still being committed. Note: remember that this defense is not available against one with a privilege. Whenever an actor has a privilege to enter onto the land of another because of necessity, recapture of chattels, etc., that privilege will supersede the privilege of the land possessor to defend her property.

Answer 30

A reasonable mistake is allowed as to whether an intrusion has occurred or whether a request to desist is required. A mistake is not allowed as to whether the entrant has a privilege that supersedes the defense of property right, unless the entrant conducts the entry so as to lead the defendant to reasonably believe it is not privileged (such as refusing to say what the necessity is).

Answer 31

Reasonable force may be used. However, one may not use force causing death or serious bodily harm unless the invasion of property also entails a serious threat of bodily harm.

Answer 32

The basic rule is the same as that for reentry of land at common law: when another's possession began lawfully (e.g., conditional sale), one may use only peaceful means to recover the chattel. Force may be used to recapture a chattel only when in hot pursuit of one who has obtained a possession wrongfully, e.g., by theft

Answer 33

A timely demand to return the chattel is first required unless clearly futile or dangerous. The recapture may be only from a tortfeasor or some third person who knows or should know that the chattels were tortiously obtained. One may not use force to recapture chattels in the hands of an innocent party.

Answer 34

When chattels are located on the land of the wrongdoer, the owner is privileged to enter onto the land and reclaim them at a reasonable time and in a reasonable manner, after first making a demand for their return.

Answer 35

When the chattels are on the land of an innocent party, the owner may enter and reclaim her chattel at a reasonable time and in a peaceful manner when the landowner has been given notice of the presence of the chattel and refuses to return it. (The chattel owner's right of recapture supersedes the landowner's right to defend his property). However, the chattel owner will be liable for any actual damage caused by the entry.

Answer 36

If the chattels are on the land of another through the owner's fault (e.g., negligently letting cattle wander), there is no privilege to enter onto the land. They may be recovered only through legal process.

Answer 37

Generally no mistake regarding defendant's right to recapture the chattels or enter onto the land is allowed. However, shopkeepers may have a privilege to detain for a reasonable period of time individuals whom they reasonably believe to be in possession of shoplifted goods

Answer 38

Reasonable force, not including force sufficient to cause death or serious bodily harm, may be used to recapture chattels.

Answer 39

Depending on the facts, the actor may have a privilege to make an arrest of a third person. Note: the privilege of arrest carries with it the privilege to enter another's land for the purpose of effecting the arrest. Also note: Although the arrest itself may be privileged, the actor may still be liable for subsequent misconduct

Answer 40

Misdemeanor - if the arrest is for a misdemeanor, it is privileged only if for a breach of peace and if the action takes place in front of defendant. (Most state statutes grant police officers a broader privilege). Felony - For a felony arrest, a police officer may make a reasonable mistake. Citizens may make a reasonable mistake regarding the identity of the felon, but not regarding whether the felony occurred.

Answer 41

1) there must be a reasonable belief as to the fact of theft; 2) the detention must be conducted in a reasonable manner and only nondeadly force can be used; and 3) the detention must be only for a reasonable period of time and only for the purpose of making an investigation

Answer 42

A person may interfere with the real or personal property of another when it is reasonably and apparently necessary to avoid threatened injury from a natural or other force and when the threatened injury is substantially more serious than the invasion that is undertaken to avert it.

Answer 43

(i) public - when the act is for the public good; and (ii) private - when the act is solely to benefit a limited number of people. Under private necessity, the actor must pay for any injury he causes (unless the act was to benefit the property owner). Note: necessity is a defense only to property torts

Answer 44

A parent or teacher may use reasonable force in disciplining children

Answer 45

the common law elements and the constitutional requirements | Note: Florida requires both the common law elements and constitutional elements for all defamation actions

Answer 46

(i) defamatory language; (ii) "of or concerning" the plaintiff; (iii) publication thereof by defendant to a third person; and (iv) damage to plaintiff's reputation

Answer 47

If the defamation involves a matter of public concern, the Constitution (and Florida) requires the plaintiff to prove two additional elements: (v) falsity of the defamatory language; and (vi) fault on the part of defendant Note: in a common law case, plaintiff does not have to prove falsity as part of the prima facie case. Rather, defendant can offer truth of the statement as a defense.

Answer 48

Defamatory language is defined as language tending to adversely affect one's reputation. A statement of opinion is actionable only if it appears to be based on specific facts, and an express allegation of those facts would be defamatory. Name-calling is insufficient. If the statement is not defamatory on its face, plaintiff may plead additional facts as "inducement" to establish defamatory meaning by "innuendo." Any living person may be defamed. Defamation of a deceased person is not actionable. In a limited sense, a corporation, unincorporated association, or partnership may be defamed

Answer 49

The plaintiff must establish that a reasonable reader, listener, or viewer would understand that the defamatory statement referred to the plaintiff. If the statement does not refer to plaintiff on its face, extrinsic evidence may be offered to establish that the statement refers to the plaintiff. This is known as pleading "collogquium"

Answer 50

1) If the defamatory statement refers to all members of a small group, each member may establish that the statement is "of and concerning" him by alleging that he is a group member. 2) If it is a large group, no member can prove that the statement is "of and concerning" him so no one wins. 3) If the statement only refers to some members of a small group, plaintiff can recover if a reasonable person would view the statement as referring to plaintiff

Answer 51

Publication means communication of the defamation to a third person who understands it. Such publication can be made either intentionally or negligently. It is the intent not the intent to defame, that is the requisite intent. Each repetition is a separate publication. However, for magazines, newspapers, etc., most states have adopted a "single publication" rule under which all copies are treated as one publication. Note: an exam favorite is the situation where a defamatory statement about plaintiff is made only to plaintiff. As a general rule, there is no publication and thus no defamation.

Answer 52

Primary publishers (e.g., newspapers, TV stations, etc.) are liable to the same extent as the author or speaker. One who repeats a defamation is liable on the same general basis as the primary publisher (even if she states the source or makes it clear that she does not believe the defamation). One selling papers or playing tapes is a secondary publisher and is liable only if he knows or should know of the defamatory content. An internet service provider is not treated as a publisher when a user of its service posts defamatory content.

Answer 53

The type of damages plaintiff must prove depends on the type of defamation (libel or slander) involved. In some slander cases, plaintiff must prove that she suffered special damages--that is, she must have suffered some pecuniary loss in order to recover anything. But once plaintiff has proved special damages, she may recover general damages as well.

Answer 54

Libel is the written or printed publication of defamatory language. Plaintiff does not need to prove special damages and general damages are presumed.

Answer 55

Slander is spoke defamation. Plaintiff must prove special damages, unless defamation falls within slander per se categories; i.e., defamatory statements that: 1) adversely reflect on one's conduct in a business or profession; 2) one has a loathsome disease; 3) one is or was guilty of a crime involving moral turpitude (most common law crimes); or 4) a woman is unchaste

Answer 56

Most courts treat it as libel

Answer 57

In cases where plaintiff is constitutionally required to prove some type of fault, plaintiff also has the burden of proving falsity. Note: If a statement attacking the plaintiff is true, the plaintiff has no cause of action for defamation. However, if you see this type of statement on the exam, consider whether the plaintiff may have a cause of action for intentional infliction of emotional distress or invasion of right to privacy.

Answer 58

The type of fault that a plaintiff must prove depends on the plaintiff's status--either public official or figure OR private persons. Actual malice must be proved in defamation cases brought by public officials and public figures (which is a person who has achieved pervasive fame or notoriety or assumed a central role in a particular public controversy). Where a private person is plaintiff, only negligence regarding the falsity must be proved if the statement involves a matter of "public concern."

Answer 59

Actual malice is: (i) knowledge that the statement was false, or (ii) reckless disregard as to whether it was false. Note: this is a subjective test. Defendant's spite or ill will is not enough to constitute malice. Deliberately altering a quotation may constitute malice if the alteration causes a material change in the meaning conveyed by the quotation.

Answer 60

consent; truth; absolute privilege--can never be lost; and qualified privilege--can be lost through abuse

Answer 61

consent is a complete defense. The rules relating to consent to intentional torts apply here.

Answer 62

Where plaintiff does not need to prove falsity (i.e., the statement is about a purely private matter), defendant may prove truth as a complete defense

Answer 63

Defendant may be protected by an absolute privilege (that is never lost) for the following: remarks made during judicial proceedings, by legislators during proceedings, by federal executive officials (even if not related to the proceedings), in "compelled" broadcasts, and between spouses

Answer 64

Sometimes the speaker may have a qualified privilege for the following: reports of official proceedings; statements in the interest of the publisher--defense of one's actions, property, or reputation; statements in the interest of the recipient; and statements in the common interest of the publisher and recipient. Note: the qualified privilege may be lost if (i) the statement is not within the scope of the privilege, or (ii) it is shown that the speaker acted with actual malice. Defendant bears the burden of proving that a privilege exists.

Answer 65

Mitigating factors (e.g., no malice, retraction, anger of the speaker provoked by plaintiff) may be considered by the jury on the damages issue; they are not defenses to liability

Answer 66

1) misrepresentation of a material past or present fact; 2) scienter, i.e., when defendant made the statement, she knew or believed it was false or that there was no basis for the statement; 3) intent to induce plaintiff to act or refrain from acting in reliance upon the misrepresentation; 4) causation (actual reliance); and 5) damages (plaintiff musty suffer actual pecuniary loss)

Answer 67

There are no defenses to intentional misrepresentation

Answer 68

There is no general duty to disclose a material fact, unless the defendant (i) stands in a fiduciary relationship to the plaintiff; (ii) is selling real property and knows the plaintiff is unaware of, and cannot reasonably discover, material information about the transaction; or (iii) has spoken and her utterance deceives the plaintiff. Note: that physical concealment of a material fact may also constitute a misrepresentation

Answer 69

If a third party relies on the defendant's misrepresentation, the defendant will be liable if she could reasonably foresee that the third party would so rely.

Answer 70

1) misrepresentation in a business or professional capacity; 2) breach of duty toward a particular plaintiff; 3) causation; 4) justifiable reliance; and 5) damages

Answer 71

Generally, negligent misrepresentation is confined to misrepresentations made in a commercial setting, and liability will attach only if a reliance by the particular plaintiff could be contemplated. (i.e., for negligent misrepresentation, foreseeability that the statement will be communicated to a third party does not make the defendant liable to the third party).

Answer 72

(i) existence of a valid contractual relationship between plaintiff and a third party or valid business expectancy of plaintiff; (ii) defendant's knowledge of the relationship or expectancy; (iii) intentional interference by defendant inducing a breach or termination of the relationship or expectancy; and (iv) damages Note: In FL, intentional interference with a business relationship requires an existing business relationship evidenced by an actual identifiable agreement that in all probability would have been completed had the defendant not interfered. No cause of action exists where the "relationship" is based on speculation regarding future sales to past customers.

Answer 73

(i) institution of criminal proceedings against plaintiff (e.g., filing a complaint with the police); (ii) termination in plaintiff's favor; (iii) absence of probable cause for prior proceedings (insufficient facts for a reasonable person to believe that plaintiff was guilty, or defendant, in fact, did not actually believe plaintiff to be guilty); (iv) improper purpose (i.e., something other than bringing a person to justice); and (v) damages Note: prosecutors are immune from liability. Also note: most jurisdictions have extended the malicious prosecution action to cover civil cases

Answer 74

(i) wrongful use of process for an ulterior purpose, and | (ii) definite act or threat against plaintiff in order to accomplish an ulterior purpose

Answer 75

(i) A duty on the part of defendant to conform to a specific standard of conduct for protection of plaintiff against an unreasonable risk of injury; (ii) A breach of that duty by defendant; (iii) The breach is the actual and proximate cause of plaintiff's injury; and (iv) damage

Answer 76

A duty of care is owed to all foreseeable plaintiffs. The extent of the duty is determined by the applicable standard of care.

Answer 77

1) was the plaintiff foreseeable? | 2) If so, what is the applicable standard of care?

Answer 78

A rescuer is a foreseeable plaintiff where defendant negligently put himself or a third person in peril. However, firefighters and police officers may be barred by the firefighter's rule from recovering for injuries caused by the risks of a rescue

Answer 79

A duty of care is owed to a viable fetus. In cases of failure to diagnose a congenital defect or properly perform a contraceptive procedure, the child may not recover for "wrongful life," but the parents may recover damages in a "wrongful birth" or "wrongful pregnancy" action for any additional medical expenses and for pain and suffering from labor; ordinary child-rearing expenses, however, cannot be recovered Note: In FL, both parent and child have an action for prenatal injuries, provided the child is born alive. If the fetus dies form the injuries, the parents may not bring a wrongful death action for its death, but they may bring a "negligent stillbirth" action for mental pain and anguish damages and medical expenses incident to the pregnancy.

Answer 80

The reasonable person standard is an objective standard, i.e., one's conduct measured against what the average person would do. A defendant's mental deficiencies and inexperience are not taken into account. However, the "reasonable person" is considered to have the same physical characteristics as defendant (this does not go towards physical handicaps). Note also that, while the reasonable person standard sets a minimum level of care, a defendant who has knowledge or experience superior to that of an average person is required to exercise that experience

Answer 81

A professional or someone with special occupational skills is required to possess the knowledge and skill of a member of the profession or occupation in good standing. For doctors and other health care providers, Florida law imposes a standard of care based on what is recognized as acceptable and appropriate by reasonably prudent similar healthcare providers in light of all relevant circumstances.

Answer 82

Children are held to the standard of a child of like age, education, intelligence, and experience. This is a subjective test. In FL, any child under six years of age is legally incapable of negligence. Children engaged in potentially dangerous adult activities may be required to conform to an "adult" standard of care

Answer 83

Common carriers and innkeepers are held to a very high degree of care; i.e., they are liable for slight negligence. Note: for the higher common carrier and innkeeper standards to apply, the plaintiff must be a passenger or guest

Answer 84

A guest in an automobile is owed a duty of ordinary care. In the few guest statute states, one is liable to nonpaying passengers only for reckless tortious conduct.

Answer 85

In a bailment relationship, the bailor transfers to the bailee possession of the chattel but not title (e.g., bailor loans her car to bailee). Bailee: The bailee's standard of care depends on who benefits from the bailment: (i) for a sole benefit of the bailor bailment, there is a low standard of care; (ii) for a sole benefit of the bailee bailment, there is a high standard of care; and (iii) for a mutual benefit bailment (typically bailment for higher), there is an ordinary care standard. Bailor: For a sole benefit of the bailee bailment, the bailor must inform the bailee of known, dangerous defects in the chattel. Fora bailment for hire, the bailor must inform the bailee of chattel defects of which he is or should be aware

Answer 86

A defendant must act as a reasonable person would under the same emergency conditions. The emergency is not to be considered, however, if it is of defendant's own making

Answer 87

In Florida, conditions on landowner's commercial property that contribute to injuries to plaintiff off the premises should be evaluated by established principles of negligence law, regardless of whether conditions are natural or artificial. Owner of commercial property woes duty to prevent foliage from obstructing drivers' view of sidewalk when entering and exiting property. Residential landowners are not subject to this duty as long as they do not permit foliage or other conditions on their land to extend beyond its boundaries.

Answer 88

Yes. Note: this has been an exam favorite in recent years

Answer 89

In Florida, at least five days before institution of civil action for publication or broadcast of a libel or slander, plaintiff must serve written notice on the media defendant, specifying the alleged false and defamatory article or broadcast. If the newspaper, periodical, or radio or television station fully retracts the libel within 10 days of receipt of notice, and if the original publication or broadcast was made in good faith, then only actual damages may be recovered?

Answer 90

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

Answer 91

In Florida, a "discovered trespasser" is a person who enters property without an express or implied invitation, and whose actual physical presence was detected within 24 hours preceding the accident. To avoid liability to discovered trespassers, a landowner must refrain from gross negligence or intentional misconduct that proximately causes injury, and must warn of dangerous conditions that are known but that are not readily observable by others. If the trespasser is legally under the influence of alcohol or drugs, the landlord owes no duty to warn of dangerous conditions but is still liable for gross negligence or intentional misconduct.

Answer 92

Florida requires that the plaintiff have been lured onto the premises by the dangerous condition. The landowner must exercise ordinary care to avoid a reasonably foreseeable risk of harm to children caused by dangerous conditions on his property.

Answer 93

plaintiff must show: (i) a dangerous condition on the land that the owner is or should be aware of, (ii) the owner knows or should know children frequent the vicinity of the condition, (iii) the condition is likely to cause injury, and (iv) the expense of remedying the situation is slight compared to the magnitude of risk

Answer 94

A licensee is one who enters onto the land with the possessor's permission for her own purpose or business, rather than for the possessor's benefit. the possessor has a duty to (i) warn of or make safe dangerous conditions known to the owner that create an unreasonable risk of harm to the licensee and that the licensee is unlikely to discover, and (ii) exercise reasonable care in the conduct of "active operations" on the property. The possessor has no duty to inspect or repair. Note: social guests in FL are considered invitees

Answer 95

Invitees enter onto the land in response to an invitation by the landowner. The landowner or occupier owes the same duties owed to licensees plus a duty to make reasonable inspections to discover nonobvious dangerous conditions and, thereafter, make them safe. One will lose invitee status if she exceeds the scope of the invitation. In addition, a Florida statute requires owners of business premises to keep the premises free from transitory foreign objects or substances that might foreseeably give rise to injury. In a civil aciton for negligence as a result of such an object or substance on the premises, the claimant has the burden of proving that the business had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it. Constructive knowledge may be established by showing that: (1) the dangerous condition existed for such a length of time that, in the exercise of ordinary care, the business establishment should have known of the condition; or (2) the condition occurred with regularity and was therefore foreseeable.

Answer 96

In FL, a firefighter or properly identified law enforcement officer who lawfully enters the premises in the discharge of duty occupies the status of an invitee.

Answer 97

A landowner who permits the general public to use his land for recreational purposes without charging a fee is not liable for injuries suffered by a recreational user, unless the landowner willfully and maliciously failed to guard against or warn of a dangerous condition or activity.

Answer 98

The lessee has a general duty to maintain the premises. The lessor must warn of existing defects of which he is aware or has reason to know, and which he knows the lessee is not likely to discover on a reasonable inspection. If the lessor covenants to repair, he is liable for unreasonably dangerous conditions. If the lessor volunteers to repair and does so negligently, he is able.

Answer 99

If the guest of a tenant is injured, the landlord may be liable as lessor of the premises. But don't stop there--remember that the tenant may also be liable to the guest because of the tenant's status as the owner/occupier of the premises

Answer 100

A vendor must disclose to the vendee concealed, unreasonably dangerous conditions of which the vendor knows or has reason to know, and which he knows the vendee is not likely to discover on a reasonable inspection

Answer 101

When a Florida statute establishes a duty to take precautions to (1) protect a particular class of persons (2) from a particular injury or type of injury, violation of the statute is negligence per se. However, when a statute is designed to protect a particular class (e.g., minors) from their inability to protect themselves, the statute imposes a strict liability standard for which plaintiff's contributory negligence is no defense. Also, violation of a traffic ordinance is only evidence of negligence.

Answer 102

When the defendant creates a foreseeable risk of physical injury to the plaintiff. The plaintiff usually must satisfy two requirements to prevail: (i) the plaintiff must be within the "zone of danger;" and (ii)There must be an actual physical impact Note: "zone of danger" means the plaintiff usually must show that her distress has been caused by a threat of physical impact

Answer 103

Florida requires that: (i) the plaintiff must suffer a physical injury caused by the psychological trauma; (ii) the plaintiff must be involved in some way in the event causing the negligent injury to another; and (iii) the plaintiff must have a close personal relationship to the directly injured person

Answer 104

(1) one may assume a duty to act by acting (an exception exists, such as in FL, where Good Samaritan statutes have been enacted. However, FL's GS statute requires one act without negligence so it doesn't do much), 2) one has a duty to assist someone he has negligently or innocently placed in peril, 3) a special relationship between the parties (e.g., parent-child) may create a duty to act (similarly, common carriers, innkeepers, shopkeepers, and others that gather the public for profit owe duties of reasonable care to aid or assist their patrons. In addition, places of public accommodation have a duty to prevent injury to guests by third persons.), 4) while there is generally no duty to prevent a third person from injuring another, an affirmative duty may be imposed if one has the actual ability and authority to control a person's actions, and knows or should know the person is likely to commit acts that would require exercise of this control

Answer 105

Where defendant's conduct falls short of that level required by the applicable standard of care owed to the plaintiff, she has breached her duty. whether the duty of care is breached in an individual case is a question for the trier of fact.

Answer 106

1) Custom or usage 2) violation of statute 3) res ipsa loquitur (the very occurrence of an event may tend to establish a breach of duty)

Answer 107

Custom or usage may be used to establish the standard of care, but does not control the question of whether certain conduct amounted to negligence. For example, although certain behavior is custom in an industry, a court may find that the entire industry is acting negligently.

Answer 108

Existence of a duty owed to plaintiff and breach thereof may be established as a matter of law by proof that defendant violated an applicable statute ("negligence per se"). Causation and damages must still be established by plaintiff.

Answer 109

In some cases, the very occurrence of an event may tend to establish a breach of duty. The doctrine of res ipsa loquitur requires plaintiff to show that (i) the accident causing the injury is a type that would not normally occur unless someone was negligent, and (ii) the negligence is attributable to defendant (i.e., this type of accident ordinarily happens because of the negligence of someone in defendant's position). This can often be shown by evidence that the instrumentality causing the injury was in the exclusive control of defendant.

Answer 110

No. Defendant's motion for directed verdict would be denied because plaintiff has made a prima facie case

Answer 111

Both actual cause and proximate cause

Answer 112

Before defendant's conduct can be considered the proximate cause of plaintiff's injury, it must first be a cause in fact of the injury. The three tests are: 'But For' Test, Joint Causes--Substantial Factor Test, and Alternative Causes Approach

Answer 113

Act or omission is the cause in fact of an injury when the injury would not have occurred but for the act. This test applies where several acts (each insufficient to cause the injury alone) combine to cause the injury.

Answer 114

Where several causes bring about injury, and any one alone would have been sufficient to cause the injury, defendant's conduct is the cause in fact if it was a substantial factor in causing the injury.

Answer 115

This test applies when there are two acts, only one of which causes injury, but it is not known which one. the burden of proof shifts to defendants, and each must show that his negligence is not the actual cause. Note: under the joint causes-substantial factor test approach, both parties caused the harm. Under the alternative causes approach, although both parties acted negligently, only one caused the harm.

Answer 116

Even though conduct actually caused plaintiff's injury, it might not be deemed to be the proximate cause. Thus, the doctrine of proximate causation is a limitation of liability and deals with liability or nonliability for unforeseeable or unusual consequences of one's acts The general rule is, a defendant generally is liable for all harmful results that are the normal incidents of and within the increased risk caused by his acts. This is a foreseeability test. Note: often the call of the question will be wether one or both parties are entitled to summary judgment--which should be denied if there is any issue of foreseeability for the jury. In other cases, the facts in the question will be so clear-cut that common sense will tell you immediately whether the harm that occurred was foreseeable

Answer 117

In a direct cause case, where there is an uninterrupted chain of events from the negligent act to plaintiff's injury, defendant is liable for all foreseeable harmful results, regardless of the unusual manner in which they arose or the unusual timing of cause and effect.

Answer 118

For proving proximate causation in negligence actions, in an indirect cause case, an affirmative intervening force (e.g., an act by a third person, an act of God) comes into motion after defendant's negligent act and combines with it to cause plaintiff's injury

Answer 119

(i) subsequent medical malpractice, (ii) negligence of rescuers, (iii) efforts to protect the person or property of oneself or another, (iv) injuries caused by another reacting to defendant's actions, (v) subsequent diseases caused by a weakened condition, and (vi) subsequent accident substantially caused by the original injury

Answer 120

(i) negligent acts of third person, (ii) crimes and intentional torts of third persons, and (iii) acts of God

Answer 121

Defendant is liable where his negligence increased the risk of a foreseeable harmful result and that result is ultimately produced by an unforeseeable intervening force. This rule does not apply where the unforeseeable intervening force was a crime or intentional tort of a third person.

Answer 122

In the rare case where the totally unforeseeable result was caused by a foreseeable intervening force, most courts hold defendant not liable.

Answer 123

Intervening forces that produce unforeseeable results (results not within the increased risk created by defendant's negligence) are generally deemed unforeseeable and superseding. Superseding forces break the causal connection between defendant's initial negligent act and plaintiff's ultimate injury, thus relieving defendant of liability.

Answer 124

In all cases, defendant takes his plaintiff as he finds him; i.e., defendant is liable for all damages, including aggravation of an existing condition, even if the extent or severity of the damages was unforeseeable. This is known as the "eggshell-skull plaintiff" rule

Answer 125

Plaintiff is to be compensated for all his damages (past, present, and prospective), both economic damages (such as medical expenses) and noneconomic damages (such as pain and suffering). Foreseeability of the extent of harm is generally irrelevant; i.e., one takes one's plaintiff as one finds him. A plaintiff suffering physical injury also may recover damages for any resulting emotional distress. Note: Florida had a statutory cap on the amount of noneconomic damages that a claimant can recover in medical malpractice cases as recently as 2017. However the cap was found to be in violation of the FL Constitution and therefore invalid.

Answer 126

The measure of damage is the reasonable cost of repair or, if the property is nearly destroyed, its fair market value at the time of the accident. Emotional distress damages generally cannot be recovered for negligent harm to property.

Answer 127

In Florida, legislation restricts recovery of punitive damages. defendant may be held liable for punitive damages only if the trier of fact, based on clear and convincing evidence, finds that defendant was personally guilty of intentional misconduct or gross negligence. Punitive damages generally may not exceed the greater of (1) three times the amount of compensatory damages awarded to each claimant or (2) the sum of $500,000. (There are exceptions if the action is motivated by unreasonable financial gain, abuse of children or elderly, intent to harm, or intoxication.)

Answer 128

(i) interest from the date of damage in a personal injury action, and (ii) attorneys' fees

Answer 129

In Florida, the governmental and charitable benefits available to the general public are admissible for the jury to consider when determining the cost of future care. Furthermore, by statute, a trial court must reduce any damages awarded to a claimant by any amounts paid for or available to the claimant from collateral sources (not including Medicare, Medicaid, or workers' compensation benefits). This reduction is offset by any amount paid by the claimant for the benefit (such as insurance premiums). Where a subrogation right exists for a collateral source provider, the claimant's damages will not be reduced.

Answer 130

Plaintiff may be denied recovery if she assumed the risk of any damage caused by defendant's act. Plaintiff must have (i) known of the risk and (ii) voluntarily proceeded in the face of the risk. The two types are implied assumption of risk and express assumption of risk.

Answer 131

Knowledge may be implied where the risk is one that an average person would clearly appreciate. Plaintiff may not be said to have assumed the risk where there is no available alternative to proceeding in the face of the risk or in situations involving fraud, force, or an emergency. Also, common carriers and public utilities may not limit their liability by disclaimer, and members of a class protected by statute will not be deemed to have assumed any risk.

Answer 132

The risk may be assumed by an express agreement. Florida permits natural guardians on behalf of their minor children to waive any claim or cause of action against a commercial activity provider for the minor's personal injury from an inherent risk in the activity. To be enforceable, a waiver or release must advise that the guardian is agreeing that, even if the activity provider uses reasonable care, there is a chance the child may be seriously injured or killed by participating in the activity because there are certain dangers inherent in the activity that cannot be avoided or eliminated.

Answer 133

No, assumption of risk is not a defense to intentional torts, but it is a defense to wanton and willful misconduct.

Answer 134

In "pure" comparative negligence, adopted in FL, allows recovery no matter how great plaintiff's negligence is. Florida also applies it to strict liability and breach of warranty actions. Failure to wear a seat belt as required by law may be considered as evidence of comparative negligence. however, a plaintiff may not recover any damages if the trier of fact finds that: (i) the plaintiff was under the influence of alcohol or drugs that impaired her normal faculties or that resulted in a blood or breath alcohol level of .08% or higher; and (ii) as a result of such impairment, the plaintiff was more than 50% at fault for her own harm.

Answer 135

(i) the nature of the defendant's activity imposes an absolute duty to make safe; (ii) the dangerous aspect of the activity was the actual and proximate cause of the plaintiff's injury; and (iii) the plaintiff suffered damage to person or property

Answer 136

1) Yes, an owner is strictly liable to licensees and invitees for injuries caused by wild animals; 2) No, an owner is not strictly liable for injuries caused by domestic animals. Florida makes the owner of a dog liable for damages, regardless of the former viciousness of the dog or the owner's prior knowledge of such viciousness. However, in the absence of negligence, owner is not liable (except as to a person under age of six) if at time of injury: (1) person is not lawfully on premises; or (2) owner had displayed in prominent place on premises an easily readable sign including the words "Bad Dog." Any negligence on the part of the person bitten that proximately contributes to the biting incident reduces the liability of the owner of the dog by the percentage that the bitten person's negligence contributed to the incident. Injury caused by the normally dangerous characteristics of domestic animals (e.g., bulls or honeybees) does not create strict liability. 3) No, strict liability will generally not be imposed in favor of trespassers in the absence of the owner's negligence. However, a landowner may be liable on intentional tort grounds for injuries inflicted by vicious watchdogs.

Answer 137

(i) the activity must create a foreseeable risk of serious harm even when reasonable care is exercised by all actors; and (ii) the activity is not a matter of common usage in the community examples: blasting, manufacturing explosives, storing deadly chemicals, crop dusting, and fumigating

Answer 138

Yes. Also, the harm must result from the kind of danger to be anticipated form the dangerous activity or animal (including harm caused by fleeing from the perceived danger). Hence, strict liability does not apply when the injury is caused by something other than the dangerous aspect of the activity.

Answer 139

(i) intent, (ii) negligence, (iii) strict liability, (iv) implied warranties of merchantability and fitness for a particular purpose, and (v) representation theories (express warranty and misrepresentation)

Answer 140

(i) a defect, and | (ii) existence of the defect when the product left defendant's control

Answer 141

Manufacturing Defects - if a product emerges from manufacturing different from and more dangerous than the products that were made properly, it has a manufacturing defect Design Defects - When all products of a line are the same but have dangerous propensities, they may be found to have a design defect. Inadequate Warnings - A product may be defective as a result of the manufacturer's failure to give adequate warnings as to the risks involved in using the product that may not be apparent to users. For prescription drugs and medical devices, warnings given to "learned intermediaries" (e.g., the prescribing physician) will usually suffice in lieu of warnings to the patient.

Answer 142

For a manufacturing defect, defendant will be liable if plaintiff can show that the product failed to perform as safely as an ordinary consumer would expect (defendant must anticipate reasonable misuse). This test also applies to defective food products.

Answer 143

Florida does not require the plaintiff to show an alternative design because it uses the same consumer expectation test that is used for manufacturing defects; i.e., the design is defective if it was dangerous beyond the expectation of the ordinary consumer.

Answer 144

Florida applies a rebuttable presumption that a product is defective if the product does not comply with government safety standards. Similarly, it applies a rebuttable presumption that a product is not defective it it does comply with mandatory government safety standards.

Answer 145

Defendant will not be held liable for dangers not foreseeable at the time of marketing

Answer 146

Manufacturers will not be held liable for some dangerous products (e.g., knives) if the danger is apparent and there is no safer way to make the product

Answer 147

The defect must have existed when the product left defendant's control. This will be inferred if the product moved through normal channels of distribution.

Answer 148

Defendant will be liable to anyone injured by an unsafe product if defendant intended the consequences or knew that they were substantially certain to occur. Products liability actions based on intent are not very common. If intent is present, the most likely tort is battery.

Answer 149

Same as in any negligence case: (i) duty, (ii) breach, (iii) actual and proximate cause, and (iv) damages

Answer 150

Privity with the defendant is not required, so any foreseeable plaintiff can sue. This includes users, consumers, and bystanders.

Answer 151

Anyone who supplies a product to another may be held liable, but the usual case involves a commercial supplier of products. Commercial suppliers include manufacturers, wholesalers, and retailers.

Answer 152

(i) negligent conduct of defendant leading to (ii) the supplying of a defective product

Answer 153

It is very difficult to hold retailers and wholesalers liable for negligence because they can usually satisfy their duty through a cursory inspection

Answer 154

No, it won't supersede the original manufacturer's negligence unless the intermediary's conduct exceeds ordinary foreseeable negligence

Answer 155

physical injury or property damage must be shown. (recovery will be denied if the sole claim is for economic loss)

Answer 156

The defenses are the same as in a general negligence action.

Answer 157

(i) a commercial supplier of a product; (ii) producing or selling a defective product; (iii) actual and proximate cause; and (iv) damages. For liability to attach, the product must reach plaintiff without substantial alteration

Answer 158

No, there is no strict liability. Plaintiff may, however, sue in negligence.

Answer 159

Plaintiff must show that the defect existed when the product left defendant's control. If the defect is difficult to trace, plaintiff may be able to rely on an inference that this type of product failure ordinarily would occur only as a result of a product defect.

Answer 160

Yes. Physical injury and property damage must be shown. Recovery will be denied if the sole claim is for economic loss.

Answer 161

Disclaimers are irrelevant in negligence and strict liability cases if personal injury or property damages occur

Answer 162

(i) Merchantability, which refers to whether the goods are of average acceptable quality and are generally fit for the ordinary purpose for which goods are used; and (ii) Fitness for a particular purpose, which arises when the seller knows or has reason to know the particular purpose for which the goods are required and that the buyer is relying on the seller's skill and judgment in selecting the goods.

Answer 163

Florida does not necessarily require vertical privity to recover damages, allowing horizontal privity, extending implied warranty protection only to a buyer's family, household, and guests who suffer personal injury. These warranties generally apply to a lease of goods.

Answer 164

Actual cause and proximate cause are handled as in ordinary negligence cases.

Answer 165

Personal injury and property damages, and purely economic loss, are recoverable.

Answer 166

Assumption of risk (using a product while knowing of breach of warranty). Another defense is the failure to give notice of breach (under the UCC). This extends to personal injury cases.

Answer 167

Disclaimers are generally rejected in personal injury cases but upheld for economic loss.

Answer 168

A defendant may be liable when a product does not live up to some affirmative representation. The two representation theories are express warranty and misrepresentation of fact

Answer 169

Any affirmation of fact or promise concerning goods that becomes part of the basis of the bargain creates an express warranty. Any consumer, user, or bystander can sue. If a buyer sues, the warranty must have been "part of the basis of the bargain." If plaintiff is not in privity (e.g., bystander), she need not have relied on the representation as long as someone did. An express warranty may also be made in a lease of goods.

Answer 170

Fault need not be shown to establish breach. Plaintiff need only show that the product did not live up to its warranty.

Answer 171

Causation, damages, and defenses are treated just as they are under implied warranties.

Answer 172

A disclaimer will be effective only in the unlikely event that it is consistent with the warranty

Answer 173

A seller will be liable for misrepresentation of facts concerning a product where: (i) The statement was of a material fact concerning quality or uses of goods (mere puffery insufficient), and (ii) The seller intended to induce reliance by the buyer in a particular transaction

Answer 174

Justifiable reliance is required (i.e., the representation was a substantial factor in inducing the purchase). Reliance need not be the victim's (it may be a prior purchaser's). Privity is irrelevant.

Answer 175

Actual cause is shown by reliance. Proximate cause and damages are the same as for strict liability.

Answer 176

No, it is not a defense if plaintiff is entitled to rely on the representation.

Answer 177

Nuisance is not a separate tort in itself. Rather, nuisances are a type of harm--the invasion of either private property rights or public rights by conduct that is tortious because it falls into the usual categories of tort liability (i.e., intentional, negligent, strict liability). There are two types of nuisance: private and public.

Answer 178

Private nuisance is a substantial, unreasonable interference with another private individual's use or enjoyment of property that he actually possesses or to which he has a right of immediate possession.

Answer 179

Interference that is offensive, inconvenient, or annoying to the average person in the community. It is not substantial if it is merely the result of plaintiff's hypersensitivity or specialized use of his own property.

Answer 180

To establish unreasonable interference, required for nuisances based on intent or negligence, the severity of the inflicted injury must outweigh the utility of defendant's conduct. In balancing these respective interests, courts take into account that every person is entitled to use his own land in a reasonable way, considering the neighborhood, land values, and existence of any alternative courses of conduct open to defendant.

Answer 181

In a trespass there is an interference with the landowner's exclusive possession by a physical invasion; in a private nuisance, there is an interference with use or enjoyment.

Answer 182

An act that unreasonably interferes with the health, safety, or property rights of the community, e.g., using a building for criminal activities such as prostitution. Recovery by a private party is available for a public nuisance only if the private party suffered unique damage not suffered by the public at large.

Answer 183

Damages - plaintiff will usually be awarded damages; Injunctive Relief - If the legal remedy of damages is unavailable or inadequate (e.g., the nuisance will cause irreparable injury), injunctive relief will be awarded. In this case, the court will consider the relative hardships. However, hardships will not be balanced where the defendant's conduct was willful. Abatement by Self-Help - In the case of a private nuisance, self-help abatement is available after notice to defendant and his refusal to act. Only necessary force may be used. In public nuisance cases, only a public authority or a private party who has suffered some unique damage can seek an injunction or abatement.

Answer 184

Legislative authority for "nuisance activity" (e.g., a zoning ordinance) is not an absolute defense but is persuasive.

Answer 185

No one actor is liable for all damage caused by concurrence of his acts and others. Example: ten steel mills are polluting a stream. Each steel mill is responsible only for the pollution it causes.

Answer 186

One may "come to a nuisance" (purchasing land next to an already existing nuisance) and, thereafter, pursue an action. It is generally not a bar to plaintiff's action unless she "came to the nuisance" for the sole purpose of bringing a harassing lawsuit.

Answer 187

A master/employer will be vicariously liable for tortious acts committed by her servant/employee if the tortious acts occur within the scope of the employment relationship

Answer 188

Yes. If the deviation in time or geographic area is substantial, the employer is not liable.

Answer 189

In Florida, in an action for death, injury, or damage caused by the intentional tort of an employee, the employer is presumed not to have been negligent in hiring such employee if the employer conducted a background investigation before hiring that did not reveal any information reasonably demonstrating the employee's unsuitability for the particular work or the employment in general. On the other hand, a decision by an employer not to conduct the investigation does not raise any presumption that the employer failed to use reasonable care in hiring an employee.

Answer 190

1) Force is authorized in the employment, e.g., bouncer. 2) Friction is generated in the employment, e.g., bill collector. 3) The employee is furthering the business of the employer, e.g., removing customers from the premises because they are rowdy

Answer 191

In general, a principal will not be vicariously liable for tortious acts of her agent if the agent is an independent contractor. Two broad exceptions exist, however: (i) the independent contractor is engaged in inherently dangerous activities, e.g., excavating next to a public sidewalk or blasting. (ii) the duty, because of public policy considerations, is simply nondelegable, e.g., the duty of a business to keep its premises safe for customers

Answer 192

Yes but note that this is not vicarious liability

Answer 193

When the tortious conduct by another member was committed in the scope and course of the affairs of the partnership or joint venture

Answer 194

Florida has adopted a permissive use rule, holding that an owner who consents to use of his automobile by another person is liable for the negligent damage done by the automobile. the vicarious liability of a person (not in the business of renting or leasing vehicles) who loans a vehicle to another or leases a vehicle for a short term is limited to $100,000 per person and $300,000 per incident for bodily injury, and $50,000 for property damage. However, if the lessee or operator of the vehicle is uninsured or has insurance with combined limits less than $500,000, the person is liable for up to an additional $500,000 in economic damages.

Answer 195

In Florida, parents or legal guardians of an unemancipated minor child who commits a theft offense may be liable for threefold the victim's actual damages

Answer 196

In Florida, one who provides alcohol to a person of lawful age is not liable for damages caused by intoxication of that person. Exceptions: (1) one who willfully and unlawfully sells or furnishes alcohol to a minor may become liable for injury or damage resulting from the minor's intoxication; (2) one who knowingly serves a person habitually addicted to use of alcohol may become liable for injury or damages resulting from intoxication; and (3) proprietor may be liable if he knows or should have known of likelihood of injuries to patrons caused by disorderly conduct of third parties in general and he fails to do anything about it.

Answer 197

Florida has abolished joint and several liability (except for intentional torts and some environmental actions). Judgment against each liable party will be entered based on that party's percentage of fault. To allocate fault to a nonparty, a defendant must affirmatively plead the fault of the nonparty, identify or describe the nonparty if feasible, and, at trial, prove the nonparty's fault by a preponderance of the evidence.

Answer 198

In Florida, all actions for a tort that does not cause the victim's death will survive the death, including actions for intangible personal torts such as defamation. If the victim's injury results in death, his tort action does not survive; a new action must be brought under the wrongful death statute.

Answer 199

A wrongful death action in Florida is brought by the decedent's personal representative. Each survivor may recover the value of lost support or services from the date of injury to death, interest, and future loss of support or services from the date of death, discounted to present value. In addition, the surviving spouse and minor children (or all children if there is no surviving spouse) may recover for the loss of the decedent's companionship and protection and for mental pain and suffering from the date of injury.

Answer 200

Either spouse may bring an action for indirect interference with consortium and services caused by defendant's intentional or negligent tortious conduct against the other spouse.

Answer 201

Florida permits a child to recover for loss of a permanently injured parent's consortium.

Answer 202

Actions for interference with family relationships are derivative. Hence, any defense that would reduce or bar recovery by the injured family member also reduces or bars recovery for interference with the family relationship.

Answer 203

Most states have abolished spousal immunity. Florida waives parent-child immunity in the following cases: (1) when unemancipated minor sues parent for negligence (but only to extent of available insurance coverage); and (2) in case of intentional sexual abuse perpetrated by parent against minor child. (immunity is where one can not sue the other in tort).

Answer 204

Where it survives, immunity attaches to governmental, not proprietary functions.

Answer 205

Under the Federal Tort Claims Act, the US has waved immunity for tortious acts. However, immunity will still attach for (i) assault, (ii) battery, (iii) false imprisonment, (iv) false arrest, (v) malicious prosecution, (vi) abuse of process, (vii) libel and slander, (viii) misrepresentation and deceit, and (ix) interference with contract rights. Immunity is not waived for acts that are characterized as "discretionary" (those taking place at the planning or decisionmaking level); acts termed "ministerial" (those performed at the operational level of government) are not immune from liability

Answer 206

Florida has waived its immunity to a substantial extent for governmental or ministerial activities, but not for discretionary activities. Liability is waived only up to $200,000 for each person injured and $300,000 for all claims arising from one accident, unless the state has insurance coverage greater than these limits. No tort action may be brought against the state unless the claimant has first presented a written claim to the appropriate agency and, except in cases against a municipality, to the Department of Insurance. Municipal immunity is waived to the same extent as state immunity, and immunity for planning-level decisions is not absolute. Liability is waived to extent of insurance coverage.

Answer 207

A law enforcement agency is not liable for injury or property damage caused by a person fleeing from an officer in a motor vehicle if: (i) the pursuit is conducted in a manner that does not involve conduct by the officer so reckless as to constitute disregard of human life, safety, or the property of another; (ii) at the time the officer initiates the pursuit, the officer reasonably believes the person fleeing has committed a forcible felony; and (iii) the pursuit is conducted by the officer pursuant to a written policy governing high-speed pursuit adopted by the agency.

Answer 208

In Florida, officer and employees of the state and its subdivisions are not responsible for damages caused by torts committed during the course of their employment except when they have acted in bad faith, with malicious purpose, or with willful disregard of human rights, safety, or property

Answer 209

A two-year statute of limitations applies to actions for wrongful death (except that wrongful death actions based on intentional torts have no limitations period), defamation, and medical malpractice (measured from the time the malpractice was discovered or should have been discovered, but generally no longer than four years). A four-year statute of limitations period applies for negligence and intentional tort actions.

Essay Torts Flashcards

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