Torts Flashcards
(87 cards)
1
Q
Elements if an Intentional Tort
A
- Voluntary Act
- Intent
- Causation
2
Q
Types of intent
A
- Specific - acts with the purpose of causing the consequence
- General intent - actors knows the consequence is substantially certain to occur
- Transferred intent
3
Q
When can you transfer intent
A
When D indents to commit tort against one person but instead commits:
- A different intentional tort against the SAME person
- The same intentional tort against a different person
- A different intentional tort against a different person
4
Q
What intentional torts does the doctrine of transferred intent apply to?
A
Assault battery false imprisonment trespass to land trespass to chattel
5
Q
What are the elements of the intentional tort of BATTERY?
A
When D:
1. Causes or is the substantial factor in bringing about
2. Harmful or offensive contact to P’s person
3. Has specific or general intent
E.g. kicking cane out from under them
6
Q
What is harmful contact?
A
It causes injury, pain or illness
7
Q
What is offensive contact?
A
When a person of ordinary sensibility would find the contact offensive
8
Q
What are the elements of the intentional tort of ASSAULT
A
When D:
- An act by defendant creating a reasonable apprehension in plaintiff (Knowledge)
- Of imminent harmful or offensive contact to P person
- Has specific or general intent AND
- Causation
9
Q
What are the elements of the intentional tort of FALSE IMPRISONMENT?
A
When D:
- An act or omission on the part of defendant that confines or restrains plaintiff to bounded area
- Intent; AND
- Causation
Damages NOT required / Punitive if D acted Maliciously
*P must be aware or harmed by confinement
10
Q
How can you tell if here is confinement within fixed boundaries?
A
Exists when P’s movement is limited in all directions, such that there is no reasonable means of escape known to P
11
Q
How can D cause confinement for purposes of a false imprisonment analysis?
A
Physical barriers, force, threats, invalid use of authority, duress or failure to provide a safe means of escape
12
Q
What is the shopkeeper’s privilege?
A
A shopkeeper can detain a suspected shoplifter so long as the detainment is reasonable in both time and manner
In Florida, also applies to farmers and mass transit agents
13
Q
What are the elements of the intentional tort of Intentional Infliction of Emotional Distress
A
- an Act by D amounting to extreme or outrageous conduct;
- Intent or recklessness;
- Causation; AND
- Damages - SEVERE emotional distress
- Proof of Physical injury is not required *
14
Q
Can a bystander claim Intentional Infliction of Emotional Distress?
A
Needs to show:
(i) present at the time injury occurred to the other person; (ii) close relative of injured
person; and (iii) ∆ knew they were present and a close relative;
15
Q
What are the elements of the intentional tort of Trespass to Land
A
When D:
- A physical invasion of P’s real property AND
- intent;
- Causation
16
Q
Does the invasion have to be by a person for Trespass to Land to be actionable
A
No, it can be by a person or object, e.g., throwing a rock
17
Q
What does D have to intend to do for trespass to land?
A
D need only intend to enter the land or cause the physical invasion
18
Q
What are the elements of the intentional tort of Trespass to Chattels?
A
When D:
- Causes or is the substantial factor in bringing about
- an interference with the P’s right of POSSESSION in chattel AND
- Has specific or general intent
19
Q
What are the elements of the intentional tort of Conversion
A
When D:
- Causes or is the substantial factor in bringing about
- an interference with the P’s right of POSSESSION in chattel AND
- The interference is so serious it deprives P entirely of the use of the chattel (and justifies paying full value for the property)
- Has specific or general intent
20
Q
Is mistake of ownership a defense to trespass to chattels?
A
No, you only need to intend to keep the chattel.
21
Q
What are the defenses to intentional torts?
A
- Consent
- Self defense and defense of others
- Necessity
22
Q
Defense of consent
A
Consent is a defense provided that:
- Consent was VALID (no fraud, incapacity) AND
- D’s conduct remained in boundaries of consent
* consent can be express or implied
23
Q
Self defense and defense of others in Florida
A
A person who is not engaged in criminal activity and in any place where she has the right to be has NO DUTY TO RETREAT.
She has the right to use such force as she reasonably believes necessary to defend herself or another
24
Q
When are you justified in using deadly force?
A
If she reasonably believes it is necessary to prevent death of great bodily harm to herself or another, OR to prevent commission of a forcible felony, she has the right to use or threaten to use FORCE including DEADLY FORCE
25
When are you presumed to have a reasonable belief of fear of death or great bodily harm?
1. Unlawful entry by intruder into another’s dwelling, residence, or occupied vehicle, OR the attempted
forcible removal of another from a dwelling, residence, or vehicle, and
2. The person who used the force must know (or had reason to know) of the unlawful or forcible entry
26
When does the reasonable belief PRESUMPTION not apply?
1. Person against whom force was used had a legal right to be in the dwelling, residence or vehicle
2. Person against whom force was used is attempting to forcibly remove someone over whom they have lawful custody, or is child or grandchild
3. Unlawful activity in the dwelling, residence or vehicle by person using force
4. Law Enforcement Officer Exception : person against whom force is used is a LEO and person using force knew or reasonably should have known
27
In Florida, what type of force is permitted in Defense of PRoperty
May use force (not deadly force) based on reasonable belief that such conduct is necessary to prevent tortuous or criminal interference with property.
Deadly force IS NOT JUSTIFIED absent a reasonable belief that deadly force is necessary to prevent a forcible felony.
28
Defense of Necessity
D enters P's land or interferes with P's property to prevent an injury or some other severe harm
29
What is a private necessity, and who pays for damages?
A necessity defense is private when the D's act is done to benefit a limited number of people.
D MUST PAY actual damages that he caused
30
What is a public necessity, and who pays for damages?
Act is done for public good; D is NOT LIABLE for property damage that he caused.
31
Elements of Intentional Interference with Business Relations
In Florida, requires:
1. An EXISTING business relationship evidenced by an actual identifiable agreement that in all probability would have been completed absent interference.
2. ∆ knew of the relationship,
3. intentional interference by ∆ induces breach or termination of the relationship or
expectancy AND
4. damages to π (i.e. money lost).
No COA where relationship is based on speculation regarding future sales to past customers
32
Elements of a COA for negligence
1. Duty on the part of the defendant to conform to a specific standard of conduct for protection of a plaintiff against unreasonable risk of injury (owed to all foreseeable plaintiffs)
2. Breach of that duty by defendant
3. Breach is the Actual and proximate cause of plaintiffs injuries
4. Damages to plaintiffs person or property
33
When is there an affirmative duty to act?
SAID
- special relationship
- administer aid/attempt to rescue
- imposed by law
- conduct of D places plaintiff in Danger
34
What is the standard of care owed
Reasonably prudent person under the circumstances as measured by an objective standard
D presumed to have average mental abilities and knowledge
35
Standard of care for children
Reasonably prudent child of similar age, UNLESS
| child is engaged in an adult activity, then held to adult standard
36
Standard of care for professionals
A professional is expected to exhibit the average knowledge and skill of a member of the profession in good standing in similar communities
37
Standard for informed consent
Health care provider will not be liable for failure to obtain informed consent if the patient either:
1. received enough information so that a reasonable person would have a general understanding of the procedure, its alternatives and its risks OR
2. would have accepted the treatment had he been advised as required
38
When is informed consent presumed?
Informed consent is presumed if the doctor gets consent:
(1) In writing;
(2) Signed by patient/HCS; and
(3) Provides information about nature of risks, procedure, reasonable alternatives
39
Action for prenatal injuries
Both parent and child have action for prenatal injuries if child is born alive. If fetus dies from injuries, parents may bring a negligent stillbirth action for mental pain ad anguish, and medical expenses incident to pregnancy. Cannot bring wrongful death action
40
Duty owed to DISCOVERED Trespassers
Trespassers -- lowest level of duty
To Avoid Liability Landowner Must:
1) Refrain from gross negligence or intentional misconduct that proximately causes injury and
2) Duty to warn of dangerous conditions that are known but not readily observable to others.
41
What is a discovered trespasser?
A person who enters property without an express or implied invitation and whose actual presence is discovered in the 24 hours preceding the accident
42
If discovered trespasser is legally under the influence of drugs or alcohol, does landowner have a duty to them?
No duty to warn.
| But is still liable for gross negligence or intentional misconduct.
43
What is a licensee?
1) someone who enters the land with the possessors permission for her own purpose or for business rather then for the possessors benefit (social guests)
44
Duty to licensee
Possessor has a Duty to:
1) warn or make safe dangerous conditions known to the owner that create an unreasonable risk of harm AND
2) exercise reasonable care in the conduct of active operations on the property
No Duty to repair or inspect
45
Kinds Of Invitees
Public - enters premise that is open to the public
Business Invitee - enters premise for commercial purpose
46
Florida statutory duty of Business owners
1) Reasonable efforts to keep premises free from transitory objects or substances that might foreseeably give rise to injury
47
What does claimant have burden of proving in slip and fall on substances
1. business owner had actual or constructive knowledge of the dangerous condition and
2. should have taken steps to remedy it
48
Constructive knowledge for slip and fall
Circumstantial Evidence showing:
1. dangerous condition existed for such a length of time that in the exercise of ordinary care, business should have known of the condition OR
2. the condition occurred with regularity and was therefore foreseeable.
49
Attractive nuisance doctrine
1) dangerous condition on the land that owner is or should be aware of;
2) owner knowns or should know children frequent the vicinity;
3) condition is likely to cause injury
4) expense of remedying the situation is slight compared to risk
5) Child was lured onto premise by dangerous condition
50
When is a violation of a stature negligence per se
1. protect a particular class of persons
2. from a particular injury, AND
3. P is in the class of persons the statute is designed to protect
51
Can violation pf a traffic order be negligence per se?
No, it is only evidence of negligence
52
In Florida, a firefighter properly identified as a law enforcement officer holds what status?
Invitee
53
doctrine of res ipsa loquitor
1. of a kind that ordinarily does not occur in the absence of negligence AND
2. caused by an agent or instrumentality in D's exclusive control
54
Actual cause
Injury would not have occurred BUT FOR D's breach
OR
if D's breach was a SUBSTANTIAL FACTOR in bringing about P's harm
55
When does an intervening cause CUT OFF D's liability to P
If intervening cause was unforeseeable, it is a superseding cause and cuts of D's liability
56
Foreseeable intervening acts
- negligent acts, e.g., medical malpractice
| - danger invites rescue - injuries sustained when running from danger, and injury to rescuer (or caused by rescuer)
57
How do you know when activity is within scope of employment?
Courts examine whether employee's conduct was:
1. a function he was hired to perform
2. w/in work hours
3. conducted to serve employer
4. foreseeable to employer
58
Are employers liable for INTENTIONAL torts of employee?
No, unless:
1. Force was authorized in the employment
2. Friction is generated by the employment
3. The employee is furthering the business of the employer
59
Can employers be held liable for negligent hiring if employee engages in an intentional tort
In Florida, employer is presumed NOT to have been negligent in hiring id he conducted background check before hiring, and it did not reveal anything.
However, no presumption AGAINST employer if he did not conduct background check (so it does not mean he did not use reasonable care)
60
Vicarious liability of Car owner for driver
Owner who consents to the use of his vehicle by another person is liable for negligence of driver
61
If natural person loans vehicle to another, or leases for a short term (not a rental company), what is liability?
Limited to $100,00 per person and $300,000 per incident for bodily injury and $50,000 for property damage
Unless lessee or operator is underinsured (combined limit less than $500,000) then they can be liable for an additional $500,000 in economic damages
62
Vicarious liability of tavernkeeper in Florida
One who provides alcohol to person of lawful age is NOT liable for damages caused by the intoxication of that person UNLESS:
Tavernkeeper may be liable if:
1. willfully sells alcohol to minors
2. knowingly serves alcohol to habitual user
3. knew or should have known of likelihood of injuries to patrons caused by disorderly conduct of third persons and he does nothing about it.
63
Elements of claim for negligent infliction of emotional distress
Florida requires that there be some actual physical impact caused by a psychological trauma to state a claim. there are limited exceptions, like freestanding torts, such as negligent stillbirth or wrongful birth
64
Elements of claim for negligent infliction of emotional distress by BYSTANDER
Elements of claim:
1. P must suffer a physical injury caused by a psychological trauma
2. P must be involved in some way in the event causing the negligent injury to another
3. P must have a close personal relationship directly to the injured person.
65
When is a P in a negligence action unable to recover any damages
if
1. P was under influence of alcohol or drugs with BAC of .08% or higher and
2. as a result of P's impairment, P was more than 50% at fault for her own harm
66
Indivisible injury rule
“two or more causes combine to produce such a single [harm], incapable of division on any logical or reasonable basis, and each is a substantial factor in bringing about the harm, the courts have refused to make an arbitrary apportionment for its own sake, and each of the causes is charged with the responsibility for the entire harm.”
67
When can P get punitive damages
Only if trier of fact, based upon clear and convincing evidence finds D guilty of intentional misconduct or gross negligence
68
What is the cap on punitive damages
Cannot exceed the greater of:
1. 3x the amount of compensatory damages awarded to each P OR
2. $500,000
Exceptions: action motivated by unreasonable financial gain. abuse of children or elderly, intent to harm, intoxication
69
Collateral source rule n/a to
Mdicaid
Medicare
Workers comp
70
What can be recovered in a wrongful death action?
```
Each survivor (parents, spouse, children) may recover
-lost support from date of injury to death, and date of death going forward (discounted to present value)
```
Each surviving spouse and minor child may recover:
- loss of companionship and protection
- mental pain and suffering from the date of injury
Lost wages, medical and funeral expenses recoverable by estate
Case instituted by personal representative of estate on behalf of survivors
71
What is the State of Florida's liability for tort actions
Florida has waived its immunity to a substantial extent for governmental or ministerial activities but not for discretionary activities.
Liability is waived up to $200,000 pp and $300,000 per claim, unless state has greater insurance. Liability is waived up to insurance coverage
72
PArent-child immunity in Florida
1. when unemancipated minor sues parent for negligence (only to extent of available insurance coverage)
2. intentional sexual abuse by parent against minor child
73
SOL for wrongful death
2 years, except wrongful death actions for intentional torts have no SOL
74
SOL for Medical Malpractice
2 years from when malpractice was discovered or should have been discovered, but no longer than 4 years
75
Elements of Claim for Fraudulent Misrepresentation
1) made a misrepresentation,
(2) scienter, meaning the defendant knew the statement was,
(3) an intent to induce reliance on the misrepresentation, (4) plaintiff’s reliance on the false statement was the cause of the harm,
(5) the plaintiff’s reliance was justified, meaning the statement was not obviously false, and
(6) the plaintiff suffered damages.
76
When can an employer ve held vicariously liable for independant contractors torts
1. If employer was negligent in selecting or retaining the independent contractor
2. If the tasks assigned to the I.C. are non-delegable (i.e., implicate public safety or welfare)
3. IF work performed by I.C. is ultra hazardous
77
Florida's rule on liability for domestic animals
-Owner of dog is liable for damages regardless of viciousness or former knowledge - so strict liability if dog bites person on public property or when person is lawfully on private property.
However, in the absence of negligence, owner is not liable to someone over 6 years old if:
1. person is not lawfully on premises or
2. owner had "Bad Dog" sign displayed.
Negligence by P will reduce owner's liability
78
Elements of a strict liability claim for products liability
1) commercial seller who puts product into stream of commerce
2) product was defective
3) product had not been altered since it left defendants hands
4) Actual and Proximate Cause
5) Product used in a foreseeable manner at time of injury
6) Damages
79
Manufacture defect
1) Product leaves Defendants control
2) is different from other products
3) product is more dangerous then it should have been
Plaintiff must show product was unreasonably dangerous beyond the expectation of an ordinary consumer
80
Design Defect
1) Products of a are made identically according to specifications
2) but products have dangerous propensities because of their features
Plaintiff must show that there is a reasonable alternative design that is economically feasible
81
Warning Defect
1) failure to warn from dangers that are not apparent to the user
82
Rebuttable presumption regarding compliance with gov't safety standards
Rebuttable presumption that product is defective if it does not comply with gov't safety standards,
AND
Rebuttable presumption that product is NOT defective if it complies with gov't safety standards,
83
Negligence for Product Liability
Duty arises when defendant engages in being a commercial supplier of products and owed to all foreseeable plaintiffs
1) Negligent conduct by defendant leading to the supplying of a defective product
2) Actual and Proximate cause
3) Physical injury to person or property
If intermediary conduct becomes a superseding cause if it is more then ordinary foreseeable negligence
84
Defamation case in Florida
Occurs when D:
1. Communicates to a third party
2. a defamatory statement (must be false and NOT an opinion)
3. of or concerning P
4. Proof of falsity
5. Proof of fault
6. Damages to P's reputation
85
Notice Requirement for Defamation Action against Media Defendant
P must serve written notice on media D at least 5 days before commencing action specifying alleged false and defamatory statement or article
If D retracts within 10 days, and original broadcast was made in good faith, can only recover actual damages
86
What is the medical malpractice procedural framework in Florida?
Florida has adopted a detailed procedural framework for bringin medical malpractice claims. (Still negligence, so go into greater duty of DR and even greater duty of specialist).
1. Claimant must investigate the grounds for the claim and obtain a written opinion by a medical expret verifying that reasonable grounds for a claim exist.
2. At least 90 days before filing suit, a claimant must notify the prospective defendant by certified mail.
3. During the 90 day period after notice, the claimant may not file suit and the SOL is tolled as to all potential defendants.
4. During 90 day period after notice, a Defendant's insurer must evaluate the claim and deliver to the claimant either (a) a rejection of the claim, (b) an offer to settle, or (c) an offer to admit liability and seek arbitration for damages.
5. The claimant must accept or reject an offer to admit liabilty within 50 days.
6. A C rejecting the offer has the greater of 60 days of the remaining period in the SOL in which to sue.
7. A C accepting an offer waives all other remedies and has 30 days in which to settle the amount of damages with the defendant before automatic binding arbitration occurs.
87
No Fault Insurance
Florida has adopted a modified no fault insurance system where:
1) out of pocket expense of up to $10,000 are paid to an injured person under basic automobile insurance policy regardless of fault by their own insurance carrier
