Tort MC Set #1

Question 1

3 requirements of an intentional tort

Answer 1

1-act; 2-intent; 3- causation

Question 2

intent for an intentional tort

Answer 2

specific intent- goal to bring about specific consequences, or general-actor knows with substantial certainty that these consequences will result

Question 3

defenses to intentional torts

Answer 3

self defense and consent

Question 4

self defense

Answer 4

he use of force is justified against another when and to the extent she reasonably believes necessary to defend herself or a 3rd party against the offender’s IMMINENT use of unlawful force

Question 5

self defense type of force standard

Answer 5

meet same force with same defense

Question 6

stand your ground

Answer 6

can use defensive force and NO DUTY TO RETREAT if reasonable belief it is needed to prevent GREAT/SERIOUS BODILY HARM or DEATH, or if you believe there is a commision of a FELONY about to occur

Question 7

stand your ground reasonable belief presumption

Answer 7

if the person against whom force was used entered or was in the process unlawfully or forcibly entering dwelling or vehicle and person who used defensive force knew or had reasonable belief that unlawful force was occurring. NOT LIMITED TO RESIDENCE.

Question 8

stand your ground reasonable belief presumption: when it does not apply

Answer 8

does not apply if the person against whom force was used had right to be, or was a lawful residence of dwelling, or was a child etc of such a person, or person using force was doing something unlawful, or person whom force was used was a LEO on duty and person using force should have known person was a LEO

Question 9

negligence 4 elements

Answer 9

1-duty; 2-breach; 3-causation; and 4-damages

Question 10

negligence: def

Answer 10

has created an unreasonable risk of harm

Question 11

negligence standard

Answer 11

reasonable prudent person under the circumstances–objective standard

Question 12

physicians: informed consent

Answer 12

DR is under special obligation to explain all MATERIAL risks prior to patient consenting. Failure to comply rises to the level of professional negligence. Affirmative obligation that results in breach of duty (actionable as MED-MAL).

Question 13

physicians: informed consent exceptions

Answer 13

risk is commonly known; patient waives info; patient is incompetent; disclosure would be too harmful and may cause something like a heart attack

Question 14

physicians: informed consent applies to

Answer 14

physicians, chiros, dentists, assistant

Question 15

physicians: informed consent: no recovery

Answer 15

no recovery if obtaining consent was in accordance with accepted standard of practice among professionals with same training and reasonable patient would have understood risks; or, circumstances show that patient would have consented knowing the risks

Question 16

physicians: informed consent presumption

Answer 16

if consent meets requirements and is in writing, a presumption of valid consent is raised

Question 17

landowners in general (standards)

Answer 17

only owe a duty only to those w/i boundaries of land (land owner, occupier or in possession)

Question 18

trespassers: discovered duty

Answer 18

discovered or anticipated: duty to warn or protect against concealed dangerous artificial conditions

Question 19

trespassers: discovered

Answer 19

enters w/o express or implied invitation and whose presence was detected w/i 24 hours preceding accident

Question 20

trespassers: undiscovered duty

Answer 20

landowners owe NO duty, nor a duty to inspect property for evidence of trespassers

Question 21

trespassers: undiscovered definition

Answer 21

enters w/o express or implied invitation and whose presence was NOT detected w/i 24 hours preceding accident

Question 22

landowner immunity

Answer 22

not liable for damages to trespasser that was under the influence of drugs/alcohol; however, the owner will not be immune of owner’s gross or intentional misconduct was cause or proximate cause of injury; not liable to trespasser regardless of intoxication except:1-to avoid liability, the owner must refrain from intentional conduct; 2-owner must not engage in gross negligence or intentional misconduct, and must warn of dangerous condition; not liable to person attempting to commit a felony on the property

Question 23

invitees

Answer 23

landowner owes greatest duty of care: wanr, use reasonable care, AND must conduct reasonable inspection of property; BUT, limited to nature of the invitation

Question 24

business invitees

Answer 24

public invitee on premises by express invitation by owner; if a plaintiff slips and falls on a transitory foreign substance at a business, the P must prove the business had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it. Constructive knowledge can be shown by evidence that: 1-dangerous condition existed for such a period of time that the business should have known; 0r 2-the condition occurred w/ regularity and was therefore foreseeable

Question 25

uninvited licensee

Answer 25

one who comes on the premises solely for their own convenience w/o invitation. SAME DUTY as DISCOVERED trespassers

Question 26

licensees by invitation: def

Answer 26

social guests and other persons who are on the property through express or implied invitation of the owner. SAME DUTY as DISCOVERED trespassers

Question 27

licensees by invitation:

Answer 27

SAME DUTY as DISCOVERED trespassers, BUT includes engaging in REASONABLE efforts to keep property free of transitory dangerous items.

Question 28

public invitee

Answer 28

licensee on the premises by express or implied invitation by owner. SAME DUTY as DISCOVERED trespassers

Question 29

good samaritian act

Answer 29

any person who gratuitously and in good faith renders emergency care will NOT be liable as long as they act as a reasonable person under the same circumstances; unless they acted in reckless disregard of standard-very high standard to meet

Question 30

failure to wear a seatbelt

Answer 30

is not viewed as negligence per se; but is evidence of comparative negligence

Question 31

proximate cause test

Answer 31

"foreseeability test"; Palsgraff "zone of danger"; limits liability

Question 32

proximate cause rebuttable presumption in car wreck

Answer 32

rear driver is presumed to be solely at fault; unless he can prove: 1-lead driver stopped or changed lanes abruptly where a reasonable person would not expect them to; 2-lead driver stopped illegally;or, 3-lead driver suffered mechanical failure that was not the rear driver's fault

Question 33

Firefighters and law enforcement officers

Answer 33

Firefighters and law enforcement officers engaged in the lawful performance of their employment who enter another’s premises are treated as invitees.

Question 34

damages: definition

Answer 34

ACTUAL harm or injury-all past, present, and future (future means "reasonably certain to occur).

Question 35

3 classic form of damages

Answer 35

1-nominal, right was infringed-classic award is $1; 2-compensatory, put P back to where she would have been if wrong had not occurred; 3-punitive, to deter others from doing what D did-a need to be punished, typically because D acted willfully or with reckless disregard

Question 36

punitive damages proof required

Answer 36

must be plead and may be award if established by CLEAR AND CONVINCING evidence that the D personally engaged in INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE. P cannot plead unless evidence demonstrates a reasonable basis for recovery

Question 37

punitive damages: employee misconduct

Answer 37

vicarious liability can be imposed for employee or agent only if guilty of INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE; and employer: 1-actively acted or knowingly participated in conduct; 2-ratified or consented; 3-engaged in gross negligent conduct that contributed to P s loss, damages, or injury.

Question 38

Punitive damages may NOT exceed

Answer 38

greater of: 3x compensatory damages, or $500k (except abuse cases).

Question 39

punitive damages: duty to mitigate

Answer 39

all P's are required to mitigate

Question 40

punitive damages collateral rule

Answer 40

gov't/charity benefits admissible for cost of future care; courts statutorily required to offset damages (except Medicare, Medicaid, worker's comp) balanced with insurance premiums paid; no reduction if subrogation rights exist

Question 41

punitive damages are for what type of behavior?

Answer 41

wanton, willful, reckless, or malicious

Question 42

special rules of liability: NIED

Answer 42

negligent infliction of emotional distress. "Impact rule": P is required to show physical impact, even if slight, on person; and emotional distress in form of injury or illness

Question 43

special rules of liability: wrongful death

Answer 43

may be brought by decedent's personal representative for traditional damages (i.e. wages, consortium). Pecuniary damages. FL's act provides that WR because of breach of K or warranty will be liable "as if the death had not occurred". FL allows pain and suffering (spouse, children), including mental pain and suffering. Can also recover for loss of companionship. FL also states that "no cause of action dies with a person". BUT, a reasonable investigation is required PRIOR to lawsuit being filed (to determine good faith grounds for suit)

Question 44

MED MAL damages cap

Answer 44

For pain and suffering, NIED, and loss of consortium. perm veg state: practitioners/drs/hospitals $1m, non-practioners/suppliers $1.5m. other injuries: practitioners/drs/hospitals $500k, non-practioners/suppliers $750k; during emergency care: $150k, non-practioners/suppliers $750k

Question 45

Tortious interference w/ family relationships

Answer 45

FL allows a child to recover for loss of permanently injured parent's consortium, loss of services, loss to society. Parent's recovery for loss of child (child's services) is limited to child's minority years.

Question 46

vicarious liability

Answer 46

liability based on relationship

Question 47

respondeat superior: negligent hiring

Answer 47

negligent hiring: employer was negligent by hiring this person who committed the injury. EMployer is NOT presumed to have been negligent as long as employer conducted a background investigation that did not reveal info that employee was unsuitable for that type of work; however, if employer did not conduct background investigation, a presumption of guilt does not automatically arise

Question 48

respondeat superior: ride sharing

Answer 48

employee sharing rides to work does not create a basis for employer liability

Question 49

dangerous instrumentality: autos

Answer 49

auto is an inherently dangerous instrument, and owner may be held accountable for damages to 3rd parties for negligent operation by a non-owner; parent that signed a minor's driving application is jointly and severly liable with minor

Question 50

dram shop act

Answer 50

seller or furnisher of alcoholic beverages is not liable for damages from intoxication unless he unlawfully served minor or a person habitually addicted to alcohol

Question 51

gov't immunity

Answer 51

FL has waived immunity for gov't/ministerial activities (operational), but not for discretionary activities (planning/decision making); allowed for negligent or wrongful acts w/i the scope of the offender's employment; gov't employee not personal liable unless in bad faith, malicious purpose, wanton disregard

Question 52

gov't liability cap

Answer 52

liable for its employees under respondeat superior to extent of insurance coverage: CAPPED at $200k/person and $300k/incident. #yr SOL; make claim with department of insurance; 6 months =denial

Question 53

liability: multiple Ds

Answer 53

Ds acting in concert: jointly and severally. each one is liable for 100% separately and jointly. FL has ABOLISHED THIS. Once a P has been fully compensated from 1 D, he cannot keep seeking more $ from other Ds.

Question 54

P's release of claims; multiple Ds

Answer 54

release against 1, does not release all other D's, but does reduce recovery by the proportional amount attributed to each D.

Question 55

contributory negligence

Answer 55

P's negligence contributes to injury. ABOLISHED IN FLORIDA

Question 56

pure comparative negligence

Answer 56

FL uses this. Any party may claim damages unless he was 100% at fault. Assuming all Ds are liable, extent of liability depends upon: 1-amount of the damage award, and 2-respective degree of fault, including P's share of fault.

Question 57

pro-rate shares

Answer 57

each tortfeasor pays % of share he contributed to the damages

Question 58

Joint and several liability

Answer 58

ABOLISHED IN FLORIDA

Question 59

defense: comparative negligence

Answer 59

common law concept; in FL-ANY party may claim damages unless he was 100% at fault; FL is a PURE COMPARATIVE FAULT STATE-court must assign each party a % of fault (does not apply to intentional torts

Question 60

defense: assumption of risk in general

Answer 60

P voluntarily entered into the danger-KNOWINGLY and VOLUNTARILY. cannot later claim harm.

Question 61

defense: implied assumption of risk

Answer 61

ABOLISHED IN FL

Question 62

defense: assumption of risk when drugs or alcohol are involved

Answer 62

P may not recover if at time of injury P was :1-legally drunk (.08 BAC) AND 2-impairment made P 51% at fault for injury. In FL, P must have been intoxicated to the point that normal faculties were impaired, and over 50% at fault.

Question 63

strict liability elements

Answer 63

this statute was designed to protect a class from inability to protect itself. elements: 1-D's ABSOLUTE DUTY to make safe; 2-breach; 3-actual and proximate cause; 4-damages. Contributory negligence is NOT a defense.

Question 64

strict liability activities

Answer 64

activity is SO dangerous (such as dynamite), and SO foreseeable, that person doing activity is exposed to strict liability. 3 general activities: 1-dangerous activities; 2-animals; 3-defective or dangerous products

Question 65

dangerous animals

Answer 65

owner of dog who bites a person while in public or lawfully in a private place is strictly liable for the damages

Question 66

state of the art defense

Answer 66

defective design or dangerous products: fact finder must consider that state of the art technical knowledge at the time of manufacture.

Question 67

design defect

Answer 67

ALL products in that particular line had the same problem

Question 68

gov't rules defense

Answer 68

in product liability action against manufacturer or seller: rebuttable presumption that product was NOT unsafe if it complied with gov't rules and regulations

Question 69

defamation elements

Answer 69

lie said about P injured P's reputation. elements: 1-statement of fact; 2-defamatory effect from statement;3-id's P as subject; 4-publication to 3rd person; 5-compensable damages: actual, reputation, humiliation, mental anguish to P; 6-falsity of statement; 7-requisite fault by D.

Question 70

defamation: public figure

Answer 70

pervasive fame/notoriety or volunteers a central role in public controversy. Heightened standard of proof by D.

Question 71

qualified privilege in defamation

Answer 71

good faith, no malice (intent to harm), proper manner, duty to report (investigations, judicial, legislative, worker's comp)

Question 72

slander per se

Answer 72

profession, crime, disease, chaste: damages presumed

Question 73

libel

Answer 73

written; damages presumed unless done by media

Question 74

defense to defamation, slander, & libel

Answer 74

truth, consent, privilege (absolute and qualified)

Question 75

mitigation for defamation, slander, libel

Answer 75

no malis, retraction (FL gives media D 5 days prior notice of action, if D retracts w/i 10 days, P limited to actual damages), anger of speaker

Question 76

retraction by publication

Answer 76

(FL gives media D 5 days written prior notice of action by D, if D published in good faith and then retracts w/i 10 days, P limited to actual damages)

Question 77

intentional interference w/ business relationship

Answer 77

D knew of EXISTING K relationship between P & 3rd party and D commits intentional interference resulted in breach of K.

Question 78

breach of fiduciary relationship

Answer 78

1-fiduciary duty exists; 2-breach; 3-breach proximately causes damage

Question 79

invasion of privacy

Answer 79

1-invasion of private affairs; 2-appropriation of name for commercial purposes; 3-publication of private facts

Question 80

assault elements

Answer 80

1-affirmative/overt act by D; 2-w/ intent to place P in "reasonable" apprehension; 3-of imminent/immediate harmful or offensive contact to her person; AND, 4-actually causes P apprehension

Question 81

assault and transferred intent

Answer 81

the intent to inflict battery satisfies the intent requirement of assault

Question 82

battery elements

Answer 82

1-an act by D that brings about harmful or offensive contact to the P's person; 2-intent by D to bring about the harmful or offensive contact; AND, 3-causation ... D is also liable when he sets in motion a force that brings about harmful or offensive contact

Question 83

false imprisonment elements

Answer 83

1-an act or omission by D that confines or restraines P to a bounded area; 2-intent to confine or restrain; 3-causation

Question 84

false imprisonment: defense of privilege

Answer 84

applies to shop keepers, mass transit workers, and farmers

Question 85

Intentional infliction of emotional distress elements

Answer 85

1-act by D amounting to "extreme and outrageous conduct; 2-intent to cause severe emotional distress or recklessness as to effect of D's conduct; 3-causation; and 4-actual damages, i.e. severe trauma. Physical impact or psychological trauma is not required to state a claim

Question 86

defense: consent

Answer 86

express (unless procured by duress, fraud, or mistake); implied (matter of usage or custom or implied by law-i.e. emergency situations prevent proper consent' P capacity required; D may be liable if he exceeds scope of consent

Question 87

misrepresentation: intentional

Answer 87

requires P establish: 1-a misrepresentation of material fact; 2-scienter; 3-an intent to induce the P's reliance on the misrepresentation; 4-causation; 5-justifiable reliance; and, 6-damages

Question 88

misrepresentation: negligent

Answer 88

P must establish: 1-a misrepresentation; 2-by D in a business or professional capacity; breach of duty to P; 4-causation; 5-justifiable reliance; and, 6-damages

Question 89

bystander rule

Answer 89

1-close relationship to injured; 2-P sees, hears, or arrives on scene; 3-physical impairment, not just emotional distress, must have some physical impact on P

Question 90

failure to warn of dangerous condition elements

Answer 90

1-D created the dangerous condition; 2-condition wasn't readily apparent; 3-D had knowledge of the dangerous condition; 4-D failed to take steps to warn public of danger or avert the danger

Question 91

attractive nuisance doctrine

Answer 91

1-dangerous condition; 2-Landowner knows that children frequent the area; 3-child is unable to appreciate risk or danger; 4-expense of remedy is slight as compared to the risk. \*FL requires that child be LURED onto premises by the dangerous condition

Question 92

product liability: 5 theories

Answer 92

1-intent; 2-negligence; 3-strict liability; 4-implied warranties of merchantability and fitness for a particular purpose; 5-representation theories of express warranties and misrepresentation

Question 93

product liability elements

Answer 93

1-duty (owed by any commercial supplier); 2-defective product; 3-implied warranty of merchantability and fitness for a particular purpose

Question 94

product liability: duty definition

Answer 94

owed by ANY commercial supllier

Question 95

product liability: element of defective product

Answer 95

when left D's control (misues, scientifically unknowable risks, allergies); manufacturing defect-requires that product was sold in a defective condition unreasonably dangerous to users, design-feasible alternative test provides that the product is defective if the D could have removed the danger w/o serious adverse impact on the product's UTILITY or PRICE (inadequate warnings), gov't safety standards-FL rebuttable presumption: not defective if complied w/ standards AND conversely, defective if NOT compliant w/ standards

Question 96

product liability: contaminated food damages

Answer 96

emotional distress, but no physical injury

Question 97

auto permissive use rule

Answer 97

an auto owner who consents to the use of her car is vicariously liable for driver's negligence. damages capped: bodily injury-$100k erson/$300 incident, property at $50k

Question 98

public officials' immunity

Answer 98

immune unless acted with bad faith, malicious purpose, or willful disregard of human rights, safety, or property

Question 99

parent-child immunity

Answer 99

FL eliminated parent-child immunity when: 1-unemancipated minor sues parent for negligence, but only to the extent of insurance coverage; or, 2-intentional sexual abuse perpetrated by a parent against the minor.

Question 100

loss of qualified privilege through abuse: defamation

Answer 100

the "malice" sufficient to defeat a qualified privilege is common law express malice, rather than NYT actual malice. Express malice is present when the PRIMARY MOTIVE for the statement is shown to be an INTENTION to injure the P. P is only required to demonstrate express malice by a preponderance of the evidence.

Question 101

negligence: prenatal injuries

Answer 101

both parent and child have an action, provided the child is born alive. If fetus dies from injuries, the parents cannot 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.

Question 102

attractive nuisance doctrine

Answer 102

Fl requires that the P have been lured onto the premises by the dangerous condition, not just that there was a foreseeability of harm to a child