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FL Torts Bar Exam 2020 > Tort Essay Blurbs > Flashcards

Flashcards in Tort Essay Blurbs Deck (18)
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Joinder of Parties. A plaintiff may join any defendants whose alleged tortious conduct arose from the same transaction and or occurrences and such defendatns will be held liable for their proporiotn of fault.


1. A party should be joined if complete relief cannot be granted to the existing parties in the absence of the party to be joined.

2. In addition, a party should be joined if the absence of that party may impair that party's ability to protect his own interests in the controversy.

3. And finally, a party should be joined if his absence would expose the existing parties to a substantial risk of double or inconsistent obligations.

If any of the above are satisfied, then that party must be joined provided the party is amenable to service of process, and joinder of that party will not destroy diversity or venue.


When joinder is not feasible, the court must decide as to whether the inability to join that party renders the action dismissed, or instead whether the action should continue without the party. Once again, the court will have some considerations to attend to when making this decision.


1. The court will determine whether a judgment in the absence of the party would prejudice that party or the existing parties to the lawsuit.

2. The court will also consider whether any prejudice can be effectively reduced, and whether a judgment in the party's absence would be adequate.

3. Lastly, the court will consider the interests of the plaintiff in the action; if dismissal of the action will result in depriving the plaintiff of an adequate remedy, the dismissal will be less likely.


Other instances present when joinder of parties is permissive even though the requirements for compulsory joinder are not satisfied. Specifically, parties may join an existing lawsuit if some claim is made by each plaintiff and against each defendant relating to or arising out of the same series of occurrences or transactions, and there is a question of fact or law common to all parties.

It's important to note here that although this rule is broad, the requirements as they relate to diversity jurisdiction are not altered. In other words, if the action is based on diversity of the parties, then there must be complete diversity among the parties after additional parties have been joined


In order to have a cause of action in negligence there must be a duty of care, breach of that duty, foreseeable harm (both factual and legal) and damages that result.Injury must also be shown.

A defendant will be liable for all foreseeable results stemming from his breach of duty.

1. This duty is to exercise ordinary prudent person standard of care unless a heightened duty is warranted for specialists or for certain classes (merchants, hotel operators, etc) and  is applicable to all foreseeable plaintiff's within the zone of risk of the defendant's conduct.

2. A breach exists where the defendant does not perform as a reasonably prudent person would under the circumstances, and as a result there is a foreseeable injury to a plaintiff in a foreseeable way.

3. Legal causation serves as a foreseeability test and will actually limit the liability of the defendant where the injury that results was unforeseeable. Causation is further composed of two elements or tests: (a) There is actual cause/cause in fact,  and (b) proximate cause, which  refers to an act that causes an injury as a natural and uninterrupted consequence, without which damage, injury, or destruction would not have occurred. The act and loss must be related with no other interference.

An actual cause, also referred to as cause in fact, is the simpler of the two concepts. For example, if a texting driver strikes a motorcyclist, the driver's actions caused the accident. Direct cause test: defendant is liable for all injuries that occur directly from her actions when there is no break in the causal chain.

Proximate cause, however, has to be determined by law as the primary cause of injury. Indirect cause analysis will make a defendant liable even for indirect causes of his actions, i.e., even when there are intervening forces, as long as those intervening forces are foreseeable.



A plaintiff is entitled to recover all compensatory damages (past and future economic and non-economic damages) and at times punitive damages if they are plead as a result of a defendant's misconduct (gross negligence, intentional damages).

In FL, compensatory damages include:

1. Medical treatment: Compensatory damages include all of a plaintiff's medical expenses from the first diagnosis of the injury to any and all ongoing and future costs for medical visits, surgeries, prescriptions, treatments, therapy, and rehabilitation

2. Wage Loss/Future Earning Capacity:. “An award for loss of earning capacity is measured by the plaintiff’s diminished ability to earn money in the future. The jury is not to be concerned with actual future loss of earnings, but with the loss of the power to earn.” Must present evidence which will allow a jury to reasonably calculate lost earning capacity. Once an amount is determined, a jury is required to reduce any award for loss of future earning capacity to present value.

3. Physical Pain & Suffering - A Jury question

4. Emotional Distress including embasassmeent and humiliation for certain torts


Considerations for Loss of Income/Wages Damages May include:

(1) Extent of actual physical impairment;
(2) Claimant’s age;
(3) Industrial history;
(4) Education of claimant;
(5) Inability to obtain work of a type which claimant can perform in light of his
after-injury condition;
(6) Wages actually being earned after the injury (a factor entitled to great
(7) Claimant’s ability to compete in the open labor market the remainder of his
life, including the burden of pain, or inability to perform the required labor;
(8) Claimant’s continued employment in the same employ.”


Punitive Damages.

In Florida, an award of punitive damages is a two-step process.

(1) The most important defense to a punitive damage claim occurs at the evidentiary hearing, where the trial judge determines if there is a reasonable evidentiary basis to allow punitive damages.N o claim for punitive damages is permitted "unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages." However, no showing of "financial worth" shall occur until after the court has made a determination regarding whether punitive damages are allowed.

At trial, a defendant is only liable for punitive damages if there is clear and convincing evidence of their intentional misconduct or gross negligence.

However, in order to permit a punitive damage claim to reach a jury, the trial court must merely determine that there is reasonable evidentiary basis for intentional misconduct or gross negligence in the record. Intentional misconduct means that "[t]he defendant had actual knowledge of the wrongfulness of the conduct and the high probability that injury or damage to the claimant would result and, despite that knowledge, intentionally pursued that course of conduct, resulting in injury or damage." Gross negligence means that "[t]he defendant’s conduct was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct."

Alt #1: A party may only seek punitive damages where there is reckless, malicious, or wanton disregard for the rights and safety of others manifested by the intent of the defendant or his actions or inactions. Even then, they can only be requested through a hearing. Based on these facts, it is unlikely punitive damages are available as there is no outrageous conduct highlighted. If it were found that defendant had knowledge of the defect and the injuries it could (or had) caused, they may be available.

(2) Second, the plaintiff must establish to the jury, based on clear and convincing evidence, that punitive damages should be awarded..

An amendment to add a claim for punitive damages is not guaranteed as a matter of right. The Florida Supreme Court has consistently stated that Florida's punitive damages statute "creates a substantive legal right not to be subject to a punitive damages claim and financial worth discovery until the trial court makes a determination that there is a reasonable evidentiary basis for recovery of punitive damages."  In other words, there is a positive legal right to be free from financial worth discovery until the trial court first makes an affirmative finding that there is an evidentiary basis for punitive damages. 

Thus, the burden on the plaintiff is significant; the trial court must engage in a fact review to determine whether there exists a sufficient basis to override the substantive rights of the defendant not to be subjected to punitive damages.


Comparative Negligence: Florida uses a pure comparative negligence analysis and has abolished joint and several liability. Therefore, a plaintiff can recover damages whether or not he was at fault as well. However, damages are awarded by the percentage of fault attributed to each actor and plaintiff cannot recover for any percentage that he was at fault (reduced recovery for plaintiff's % of fault).


Florida is a comparative negligence state. This means that if a plaintiff is partially at fault for an accident in which they suffer harm, that person’s recovery of damages will be reduced. Any contributory fault chargeable to the plaintiff diminishes economic and non-economic damages proportionate to the amount of that person’s fault, but it doesn't completely prevent the plaintiff from recovering damages.


When more than one tortfeasor (person who acts negligently) is responsible for causing injury or damage to another, generally all are must pay damages even if a judgment has not been entered against every responsible party. A defendant has a right of contribution from other tortfeasors if he or she has paid more than his or her share of common liability.

In a comparative negligence state, if multiple parties were negligent, each party will be assigned a percentage of fault.  Florida follows the rule of "pure comparative negligence." Accident victims in Florida can recover compensation from the other party, even if the victim is partly at fault (and even if the victim’s percentage of fault exceeds 51%).

Who Decides the Percentage of Fault in Florida?

If a personal injury claim goes to court, the court itself (usually a jury) will assign each party a percentage of fault.


RULE:  A plaintiff asserting a strict product liability theory of liability must prove
(1) the product was defective, (2) the defect was a proximate cause of the plaintiff’s injuries, and (3) the defect existed at the time it left the manufacturer’s control. Liability may only be imposed upon proof that the product lacked an element necessary to make it safe for its intended use. Whether a certain use was an intended use depends on whether the use was “reasonably foreseeable” by the seller.

Generally, a seller, designer, or manufacturer of a good is liable for any product it places in the stream of commerce which is improperly designed or constructed and thereafter causes injury.  Plaintiff may argue, based on expert testimony,  that xxx were improperly designed or constructed and thus Df. has placed a dangerous and defective product into the stream of commerce.  To prevail in strict liability, the plaintiff must show also  that the product was defective when it left the defendant's control.

RELATED CLAIMS - Negligent design, fraudulent misreprestation (advertising or labelling), Negligent installation (blanket, could be other party)


1. Modified. If the defendant can show the product it made is not, so to speak, the product that injured the plaintiff - that it was altered, imrpoperly fixed, or modified, then the defendant may not be liable

2. Compliance with Govt Stnadard. The other defense that may be available to Df. is documented compliance with a design standard. Generally, a defendant in strict products liability actions may show that the product is certified or approved to design specifications set by a governmental agency, that  allows it to assert the proposition that the product is not unreasonably dangerous per se.

3. Abnormal use or misuse of the product by consumer - The argument is that the damages were caused by the user’s negligent use of the product and not by any defect in the product. Some courts have held that the plaintiff bears the burden of proving that the product was being used in an intended manner when the injury occurred and that a plaintiff who does not bear this burden fails to prove a necessary element of its prima facie case. Most courts, however, hold that the misuse defense becomes relevant only when the defendant shows that the use was either “unforeseeable or outrageous.”

4. Assumption of the risk: a separate defense with a distinct character. Assumption of the risk must be evaluated in terms of deliberate conduct on the part of the product user who consciously overrides safety features (but while still using product in its intended manner).  For the assumption of the risk defense to actually bar recovery, the evidence must establish that the plaintiff knew, or should have known, of the specific risk and proceeded forward with the risky conduct.


RULES: In  addition to suing Df. on a strict products liability claim for defective goods, there are several contractual claims which may potentially be raised:

1. Breach of the implied warranty of merchantability. Generally, the implied warranty of merchantability holds that there are no defects in the products as sold. In this case, PL. would argue that the product was defective and thus the warranty has been breached.

2. PL may also claim that DF breached the implied warranty of fitness. Generally, the implied warranty of fitness doctrine holds that merchant sellers warrant that the product is fit for the general use for which it is intended.

3. Finally, Df may be liable for the breach of the express warranty of fitness for a particular purpose. Generally, when a merchant seller knows the particular purpose for which a buyer is intending to use a product, and thereafter warrants that the product is fit for that purpose, if the product fails, the seller is liable. Here, PL  must argue that the guarantee was express and facts indicate that  the DF  seller knew the particular purpose for which the products  were bought.


1. Merchantability. The only defense for DF is that the bill of sale may have disclaimed this warranty, (but this is likely going to be "unclear from the facts".)

2. Fitness. Again, DF may have disclaimed this warranty.

3. Fitness for Particular Purpose. DF's defenses would be if it could prove either (a) seller did not know particular purpose, or (b)  that PL did not rely on those representations when he bought the product.


Deceitful or fraudulent representations are actionable under Florida law.  Material Misrepresentation = A false statement that is likely to induce a reasonable person to assent or that the speaker of the false statement knows is likely to induce assent. There are two types of misrepresentation, intentional and negligent misrepresentation.

Intentional Misrepresentation = A statement made by the defendant, with the intent to deceive, that is known to be false or made recklessly and without regard to whether it is true or not.

Negligent Misrepresentation = A careless or inadvertent false statement in circumstances where care should have been taken.

To establish a prima facie case of intentional misrepresentation, the plaintiff must show that the defendant (1) made a misrepresentation, (2) scienter, meaning the defendant knew the statement was false, (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.

 Scienter is another Latin term often used in the law to connote intent or knowledge of wrongdoing.  Representing profits and losses without even reviewing financial regards would constitute reckless disregard as to truth or falsity.

Generally, the misrepresentation must be of a material past or present fact.  In a typical misrepresentation case, reliance on a misrepresentation of opinion will not satisfy the plaintiff’s burden.

Withholding material facts is not actionable unless by statute or some other legal requirement the defendant was required to make disclosures.  Fiduciary relationships and real estate transactions are examples where defendants may be required to make certain disclosures. 

Actively concealing material facts is also actionable.  While there may not be a duty to disclose generally, making certain facts undiscoverable may constitute active concealment.

Justifiable reliance means that plaintiff’s cannot bring a claim for false statements that a reasonable person would recognize as obviously false.  Outlandish or bizarre representations made by the owner of a business cannot justifiably be relied upon.  The same is true when the plaintiff investigates a misrepresentation and learns it is false.  There is no duty imposed on plaintiffs to investigate.  But, once a plaintiff investigates and learns the representation is false, he cannot then claim that he was justified in relying on the misrepresentation.

Lastly, the plaintiff must show actual pecuniary loss.  It is not enough to prove that the defendant misrepresented a material fact, reliance, and causation.  Courts will not police misrepresentations a part from actual economic loss.


1. Contributory negligence is a valid defense to negligent misrepresentation.

2. Assumption of the risk will be a viable defense as well to neglligent misrep.

3. Typically, there is no defense to intentional misrepresentations. Some states will protect the defendant from liability for intentional misrepresentation if the plaintiff signs a contract saying that he is not relying on defendant’s statements. However, most states consider these contracts void and will not protect the plaintiff from liability.


As far as damages go, most courts allow the plaintiff to recover the value of the property contracted for had the representation been true minus the actual value of the property. This is known as the "benefit of the bargain".

In addition, some jurisdictions allow the plaintiff to recover for emotional distress if emotional distress is a consequence of the misrepresentation.

Finally, punitive damages may be recovered if the misrepresentation was made intentionally.


While a defendant is not required to disclose facts, there are five exceptions to the nondisclosure requirement. The defendant must disclose if:

  1. The plaintiff and defendant have a fiduciary relationship, for example a trustee-beneficiary relationship.
  2. The defendant sells property to the plaintiff and there are certain material facts that the defendant knows and are unknown and not readily accessible to the plaintiff. See Silva v. Stevens, 589 A.2d 852 (Vt. 1991).
  3. The defendant has made ambiguous statements that are misleading to the plaintiff.
  4. The defendant makes true statements to the plaintiff that are later proved false.
  5. The defendant knowingly makes false statements without thinking that anyone will rely on them and then finds out that the plaintiff has, in fact, relied on them.

In the last two cases when the defendant learns that the misrepresentation has taken place, he must disclose the true facts to the plaintiff in order to avoid liability.

An active,  fraudulent concealment of facts will also be considered a material misrepresentation. The exception to this rule is where a contract or  bill of sale is marked “as is” and where the plaintiff is charged with some knowledge (or inspection) for the concealed facts.


A plaintiff’s reliance on a (mis) representation must be justifiable. That is to say, it must have been reasonably foreseeable that the plaintiff would rely on the defendant’s misrepresentation.   However, even where reliance was reasonably foreseeable to the defendant, liability may still depend on the type of representation the defendant made to the plaintiff.

If the plaintiff relies on statements of fact, reliance will always be justified and the defendant will always be held liable unless the facts are obviously false.

However, reliance on the defendant’s statements of opinion is usually not justified, and the defendant will not be held liable, unless:

  1. The defendant has superior knowledge not available to plaintiff (for example the defendant is a dealer of special goods).
  2. The defendant has a fiduciary duty to the plaintiff.
  3. the plaintiff and defendant are affiliated or related in some way (example the plaintiff and defendant are members of the same club and the defendant has the plaintiff’s confidence).
  4. The defendant offers the plaintiff advice about a business transaction without telling the plaintiff that he has an interest in the deal.


The three main types of torts are negligence, strict liability (product liability), and intentional torts.

In order for a plaintiff to prove liability for an intentional tort, it is necessary to have the following:

  1. An act by the defendant: An “act” refers to a volitional movement by the defendant. 
  2. Intent: “Intent” requires either that the actor’s goal is to bring about the consequences of their action or the actor knows with substantial certainty that their action would bring about certain consequences. 
  3. Causation: The causation element to an intentional tort is that the action must have caused the injury, or at least have been a substantial factor.

There are four elements to negligence:

  1. A duty,
  2. A breach of duty,
  3. Causation, and
  4. injury.

In order to claim damages, there must be a breach in the duty of the defendant towards the plaintiff, which results in an injury.




There  are four defenses one can use to avoid the liability of intentional tort claims:

  1. Self defense and defense of others.
  2. Defense of property.
  3. Consent.
  4. Necessity.

Some defenses to negligence include:

  1. failure to meet elements, such as lack of causation,
  2. comparative negligence (FL is pure comparative negligence and not a contributory negligence state) , and
  3. assumption of the risk


In those rare instances where there is a finding of gross negligence or intentional misconduct, Florida caps the amount of punitive damages that can be awarded. The state of Florida limits punitive damages to three times the amount of the compensatory damages, or $500,000, whichever is greater – in most cases, while the cap increases to $750,000 in medical malpractice lawsuits against non-practitioner defendants.

Where the fact finder determines that the wrongful conduct proven under this section was motivated solely by unreasonable financial gain and determines that the unreasonably dangerous nature of the conduct, together with the high likelihood of injury resulting from the conduct, was actually known by the managing agent, director, officer, or other person responsible for making policy decisions on behalf of the defendant, it may award an amount of punitive damages not to exceed the greater of:

  1. Four times the amount of compensatory damages awarded to each claimant entitled thereto, consistent with the remaining provisions of this section; or
  2. $2 million.

Where the fact finder determines that at the time of injury the defendant had a specific intent to harm the claimant and determines that the defendant’s conduct did in fact harm the claimant, there shall be no cap on punitive damages.


Punitive damages may not be awarded against a defendant in a civil action if that defendant establishes, before trial, that punitive damages have previously been awarded against that defendant alleging harm from the same act or single course of conduct for which the claimant seeks damages. For purposes of a civil action, the term “the same act or single course of conduct” includes acts resulting in the same manufacturing defects, acts resulting in the same defects in design, or failure to warn of the same hazards, with respect to similar units of a product.

In subsequent civil actions involving the same act or single course of conduct for which punitive damages have already been awarded, if the court determines by clear and convincing evidence that the amount of prior punitive damages awarded was insufficient to punish that defendant’s behavior, the court may permit a jury to consider an award of subsequent punitive damages. In permitting a jury to consider awarding subsequent punitive damages, the court shall make specific findings of fact in the record to support its conclusion. In addition, the court may consider whether the defendant’s act or course of conduct has ceased. Any subsequent punitive damage awards must be reduced by the amount of any earlier punitive damage awards rendered in state or federal court.

The claimant attorney’s fees, if payable from the judgment, are, to the extent that the fees are based on the punitive damages, calculated based on the final judgment for punitive damages.


Florida recognizes the following intentional torts:

  1. False imprisonment happens when the victim is unreasonably and intentionally confined or restrained for any length of time. The confinement or restraint must be without the victim’s consent. This means that the victim wasn’t free to leave or reasonably believed he wasn’t free to leave.
  2. Assault happens when someone physically touches you without your consent, or threatens to physically touch you (and reasonably makes you afraid that you’re about to be assaulted). Assault is often linked to battery.
  3. Battery happens when someone intentionally touches you in an offensive or harmful way (without your consent). Unlike assault, you don’t have to be aware of the contact when it happens. For example, an unauthorized surgery performed on you while you’re under anaesthesia is an example of battery. “Offensive” behavior includes spitting on someone.
  4. Intentional infliction of emotional distress happens when a victim suffers severe mental anguish because of a defendant’s extreme and outrageous conduct. The conduct must be so outrageous that any reasonable person would feel that way.
  5. Trespass to land happens when someone enters private property, or remains on private land, without the owner’s consent.
  6. Conversion of property happens when someone interferes with a person’s personal property rights. For example, if your property is stolen or someone refuses to return your property then you can sue for conversion.
  7. Defamation happens when someone makes false statements about a person and damages that person’s reputation. Defamation can be written (libel) or spoken (slander). You must prove that the statement is actually false.


Self-Defense- FL, use of force justified against another when & to the extent he reasonably believes necessary to defend himself or a 3P against the other’s imminent use of unlawful force. Objective reasonably prudent person standard applied.
Any person who is NOT engaged in an unlawful activity and who is attacked in any place she has a right to be has NO DUTY TO RETREAT and has the right to use force, including deadly force if she reasonably believes it is necessary to present death or great bodily harm to herself or another or to prevent the commission of a forcible felony.
Consent- D not liable for otherwise tortious act if P consented to D’s act. Express Consent (unless D induces by mistake, fraud, duress) or Implied Consent (inferred from usage and custom or implied by law- i.e., consent implied in emergency situation where P incapable of consent & reasonable person would find contact necessary to prevent death/harm)

  • Plaintiff capacity required for consent- incompetents, drunken persons, very young children incapable of consent


  1. FL Courts have done away with the implied assumption of risk defense, 
  2. FL uses pure comparative negoigence, and plainitff will recover minues the extent of the negligence regardless if it was at fault (unlike partial comparative negligence. )