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1

medical malpractice procedural framework in Florida?

The elements of medical malpractice, negligence against a health care provider, are the same for ordinary negligence.

FL adopted a detailed procedural framework for bringing med mal actions that a Plaintiff must comply with prior to filing a claim for medical malpractice. (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.

 

 

Florida has set forth certain procedures in order to initiate a medical malpractice claim.  

First, a plaintiff must conduct a reasonable investigation to establish a good faith belief that the healthcare provider was negligent. In doing so, the plaintiff must get a written opinion from a medical expert that there was negligence.

That medical expert must be in the same specialty as the doctor who was negligent and must be actively engaged in the practice of medicine for 3 years (specialist) or 5 years (general practitioner).

Second, a plaintiff must get a verified affidavit from that medical expert, attesting that the number of years he practiced for, the reasons for the doctor’s negligence, and the documents that the medical expert relied on in forming his opinion.

Lastly, the plaintiff must send a notice of intent to initiate litigation, which puts the defendant on formal notice of plaintiff’s intention to sue. Notice must be sent to each defendant by certified mail, of plaintiff’s intent to sue 90 days before filing. With the notice of intent, the plaintiff must attach the verified affidavit and a list of health care providers that the plaintiff saw since the injury and two years prior to the injury. NOI tolls the SOL

 

At this point, the defendant’s doctors insurance company will evaluate the merits of the claim. By the end of the 90 days, the defendant’s insurer must deliver either a rejection of the claim, an offer to settle, or an offer to admit liability and seek arbitration of damages. Claimant must then accept or reject an offer to admit the liability within 50 days. After completion of the pre-suit investigation, the parties may elect to have damages determined by voluntary binding arbitration.

**There is no longer a cap on damages in Florida; FLSC has ruled statutory caps on med mal are unconstitutional.

 

2

Florida has abolished _____ liability in tort.

joint and several liability for causes of action accruing on or after April 26, 2006. So each defedant is liable for his or her portion only. E.g. in case where product defect, but then doctor was negligent in surgery. The manufacturer and doctor are not jointly and severally liable. The manufacturer can separate out his/ her level of liability.

 

Comparative Negligence: 

Florida has abolished joint and several liability among the tortfeasors. Instead, Florida has adopted a pure comparative negligence jurisdiction. A court will allow a Plaintiff to recover so long as they are not 100% at fault. Assuming that all Defendants are liable, the extent of their liability will depend upon the amount of the damage award and their respective degree of fault. The damage award will be reduced by the Plaintiff’s share of fault. In Florida, a Plaintiff may not recover any damages if at the time of injury Plaintiff was legally drunk, and as a result of such impairment Plaintiff was more than 50% at fault. The fact that a person is injured when failing to wear and automobile seat belt, when required by law to do so, may be considered as evidence of comparative negligence in any civil action.

3

T/F: Florida has abolished implied assumption of risk?

True.

4

Because FL has abolished implied assumption of risk, traditional fact patterns that would involve assumption of risk are broken down into 2 categories through which a D can seek some protection:

1. When the D has only a limited duty to the plaintiff because of plaintiff's knowledge of the risks, a court may protect the defendant simiply by holding that the D did not breach his limited duty of care OR 2. If the P has behaved unreasonably, the P is contributorily negligent and damages will be apportioned under the state's comparative negligence statute.

5

When products liability fact pattern, consider COA in:

1. negligence 2. strict liabilty 3. express warrant 4. misrepresentation

6

express warranty does not require _____ in FL; however, implied warranties of merchantability and fitness require horizontal ONLY.

Express Warranty: ~privity (So if X got injured on Y's boat due to a crappy rope and Y bought the roap from the Marina, X can sue the Marina under express warranty theory, but not implied warranties of fitness or merchantability).

Express Warranty: Any affirmation of fact or promise concerning goods that becomes part of the basis of the bargain creates an express warranty.

 

 

Implied Warranty of Merchantability: When a merchant who deals in a certain kind of goods sells such goods, there is an implied warranty that they are merchantable. Merchantable means that they are of a quality equal to that generally acceptable among those who deal in similar goods and are generally fit for the ordinary purposes for which such goods are used. If a product fails to live up to the standards imposed by an implied warranty, the warranty is breached and the defendant will be liable. Vertical privity is no longer required between the buyer and the manufacturer. Florida’s rule on horizontal privity extends implied warranty protection to the buyer’s family, household, and guests.

7

If negligence and someone dies -->

wrongful death

8

FL uses ___ comparative negligence.

pure (If I'm 10% liable for my own injuries, get 90% recovery. Even if I'm 70% liable, get 30% recovery).

9

INTENTIONAL TORTS/TRANFERED INTENT/DEFENSES

Discuss whether the intent is specific (goal to bring about specific consequences) or general (actor knows with substantial certainty these consequences will result)

♦ Intent: Intent may either be specific (the purpose in acting is to bring about specific consequences) or general (the actor knows with substantial certainty that the consequence will result. The actor does not need to intend the injury that results from bringing about these consequences. Everyone is capable of intent, thus young children and people who are mentally incompetent will be liable for their intentional torts.

♦  Transferred Intent: The transferred intent doctrine applies when the defendant intends to commit a tort against one person, but instead commits a different tort against that person, commits the same tors as intended against a different person, or commits a different tort against a different person. Only applicable to assault, battery, false imprisonment, trespass to land, and trespass to chattels.

 

♦ Battery: The elements of a prima facie case of battery are: 1) harmful or offensive contact, 2) to a plaintiff’s person, 3) with intent, and causation. Contact is harmful if it causes actual injury, pain, or disfigurement. Contact is offensive if it would be considered offensive to a reasonable person. Contact can be direct or indirect. The plaintiff can recover nominal damages even if actual damages are not proved. Plaintiff may recover punitive damages for malicious conduct. § Defendant also liable when he sets in motion a force that brings about harmful or offensive contact. 

 

♦ Assault: The elements of a prima facie case of assault are: 1) affirmative act by the defendant 2)done w/intent to place plaintiff in ("creating" ) reasonable apprehension 3) of immediate harmful or offensive contact to the plaintiff’s person, 4) that actually causes the plaintiff apprehension 5) causation. Under the doctrine of “transferred intent” the intent to inflict battery satisfies the intent requirement of assault. Apprehension is judged by a reasonable person test. The plaintiff must have been aware of the threat from the defendant’s act. If the defendant has the apparent ability to commit a battery, this will be enough to cause a reasonable apprehension. Words alone are not sufficient. However, words can negate reasonable apprehension. The plaintiff must be apprehensive that she is about to become the victim of an immediate battery. The plaintiff can recover nominal damages even if actual damages are not proved. Plaintiff may recover punitive damages for malicious conduct.

 

♦ False Imprisonment: The elements of a prima facie case of false imprisonment are: 1) an act or omission on the part of the defendant that 2) confines or restrains plaintiff to a bounded area, 3) intent on the part of the defendant to confine, and 3) causation.

Sufficient acts of restraint include: 1) physical barriers, 2) physical force, 3) threats of force, 4) failure to release, and 5) invalid use of legal authority. Insufficient methods of confinement include moral pressure and future threats. It is irrelevant how short the period of confinement is. Plaintiff must know of the confinement or be harmed by it. There must be no reasonable means of escape known to the plaintiff. The plaintiff can recover nominal damages even if actual damages are not proved. Plaintiff may recover punitive damages for malicious conduct.

 

 False Imprisonment – 1) an act or omission by defendant that confines or restrains plaintiff to a bounded area; 2) intent to confine or restrain; 3) No reas means of escape; 4) Causation 

♦ ♦ Shoplifting Detentions: A shopkeeper has privilege to detain a suspected shoplifter for investigation. For the privilege to apply: 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 non-deadly force can be used, and 3) the detention must be only for a reasonable period of time and for the purpose of making an investigation. In Florida, this privilege also applies to farmers and mass transit agents.

♦ Intentional Infliction of Emotional Distress: To satisfy an intentional infliction of emotional distress, Florida requires that the Defendant’s behavior amount to extreme and outrageous conduct—conduct that transcends all bounds of decency—that causes the Plaintiff severe emotional distress. Conduct that is not extreme or outrageous can also be deemed so if it is repetitive. There must be intent or recklessness, causation, and damages in the form of severe emotional distress. Proof of physical injury is not required. This is the only intentional tort to the person that requires damages.

  1. IIED FL 1) act by defendant= “extreme and outrageous conduct;” 2) intent to cause severe emotional distress or recklessness as to effect of defendant’s conduct; 3) causation; AND 4) damages (ie. Severe emotional distress). 

♦ NIED (Generally): A cause of action arises for negligent infliction of emotional distress when a Defendant creates a foreseeable risk of physical injury to the Plaintiff that leads to emotional distress. The plaintiff must be within the zone of danger, and must suffer physical symptoms from the distress. Florida requires some physical impact to the body of the Plaintiff (minimal). In Florida, Plaintiff is not required to prove physical injury to recover for emotional injuries for contaminated food

♦ ♦ NIED (Bystander): In Florida, a bystander may recover to witnessing severe injury or death to a third party if:

1) the Plaintiff and the third party are close family members,

2) the Plaintiff saw or heard the accident as it happened (or arrived on the scene before the third party left the scene), and

3) the Plaintiff suffers a causally connected, clearly discernible physical impact. However, no impact is required if there are physical injuries caused by anxiety about the safety of another if such injury is reasonably foreseeable and proximately caused by the defendant’s negligence.

  ♦ Trespass to Land: The elements of a prima facie case of trespass to land are:

1) physical invasion of the plaintiff’s real property, 2) intent, and 3) causation. The invasion may be by a person or object. If intangible matter 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. The defendant need intend only to enter that particular piece of land; he does not need to know that the land belonged to another. Plaintiff can recover without showing actual injury to the land.

  ♦ Trespass to Chattels: The elements of a prima facie case of trespass to chattels are: 1) an act by the defendant that interferes with the plaintiff’s right of possession in a chattel, 2) intent, 3) causation, and 4) damages. The interference may be intermeddling (directly damaging the chattel) or disposition (depriving plaintiff of his lawful possession of the chattel). Intent to trespass is not required. Intent to do the act of interference is all that is needed. Mistake of ownership is not a defense. Actual damagesnot necessarily to the chattel, but at least to a possessory right—are required.

  ♦ Conversion: The elements of a prima facie case of conversion are: 1) an act by the defendant that interferes with plaintiff’s right of possession in a chattel, 2) the interference is so serious that it warrants requiring D to pay the chattel’s full value, 3) intent, and 4) causation. Acts of conversion include wrongful acquisition (theft), wrongful transfer, wrongful detention, and substantially changing, severely damaging, or misusing a chattel. Mistake of ownership is not a defense. The only intent required is the intent to do the act that interferes with the plaintiff’s right of possession. The longer the withholding period and the more extensive the use, the more likely it's to be conversion. A less serious interference is trespass to chattels. Only tangible personal property & intangibles that have been reduced to physical form (promissory note) are subject to conversion. Plaintiff may recover damages (fair market value at the time of conversion) or possession (replevin).

Defenses 

  ♦ Consent: express or implied - P’s consent to D’s conduct is a defense, but the majority view is that one cannot consent to a criminal act. The defendant is not liable if the plaintiff expressly consents to the defendant’s conduct. Mistake will undo express consent if the D knew of the mistake, consent was induced by fraud as to an essential matter, or consent was obtained by duress. Apparent (impled) consent is that which a reasonable person would infer from custom and usage or plaintiff’s conduct. Consent implied by law arises when action is necessary to save a person’s life or some other important interest in person or property. Individuals without capacity are deemed incapable of consent.  

  1. can be inferred as a matter of usage or custom or implied by law (ie. In emergency situations where there is no opportunity to obtain plaintiff’s consent.)
    • * Defendant may be liable if he exceeds scope of consent *

   ♦ Self Defense: These privileges apply only for preventing the commission of a tort. Already committed torts do not qualify. In Florida, a person who is not engaged in a criminal activity and who is attacked in any place where she has a right to be has no duty to retreat and has the right to use or threaten to use force, including deadly force, if she reasonably believes it is necessary to prevent death or great bodily harm to herself or another or to prevent the commission of a forcible felony. She is justified in the use or threat of deadly force only if she reasonably believes such force is necessary to prevent imminent death or great bodily harm to herself or another or to prevent the imminent commission of a forcible felony.

   ♦ ​Defense of Property: In Florida, use of force is justified to protect a person’s property based on reasonable belief that such conduct is necessary to prevent or terminate tortious or criminal interference with the property. Deadly force is not justified absent a reasonable belief that such force is necessary to prevent imminent commission of a forcible felony.

  1. Self-Defense – FL person justified using force  when and to extent he RB nec defend him/3rd v. imminent use of unlawful force. 
    1. Any P ~engaged unlawful activity and in place rgt 2b, NO DUTY TO RETREAT & right to use force, including DF if RB nec to prevent D/GBH 2 her or 3rd or 2 prevent the commission of a forcible felony.

   ♦ ​Privilege of Arrest:  Felony arrest by a police officer is privileged when the officer reasonably believes that a felony has been committed and the person that he arrests has committed it. Reasonable necessary force is permitted, and deadly force is permitted when the suspect poses a threat of serious harm. Felony arrest by a private citizen is privileged if a felony did occur and the citizen reasonably believes that he arrested the person who committed it. The permitted force is the same as above. Misdemeanor arrests are privileged when there is a breach of peace committed in the presence of the arresting party. Reasonable force is permitted, but deadly force is not.

    ♦  Necessity: 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. There are two types of necessity: 1) public necessity when the act is for the public good, and 2) private necessity 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 act was to benefit property owner.

10

DEFAMATION

DEFAMATION - Requirements in FL are: 

o Statement of Fact

o A defamatory effect from the statement

o Identifies plaintiff as the subject

o Publication to a 3rd person

o Compensable damages to the plaintiff

o Falsity of the statement

o Requisite fault by defendant

o DEFENSE – Truth, consent, privileges (absolute and qualified)

 

   ♦ Defamation (Generally): 

Florida requires proof of falsity and fault in all defamation actions. The plaintiff must prove that the defendant intentionally published the defamatory matter to a third party, who relied on the statement. Only statements of fact (not opinion) can be actionable as being defamatory. In order to have a successful defamation claim, there must be: 1) a statement of fact, 2) a defamatory effect from the statement, 3) the statement must identify the plaintiff, 4) the statement must be published to a third party, 5) the statement was false, and 6) the plaintiff suffered damages.

   ♦ LIBEL/SLANDER- If the statement is LIBEL, general damages are presumed. If the statement is SLANDER, plaintiff must prove special damages, UNLESS the statement falls into one of the special categories—per se- profession, loathsome disease, a woman being unchaste, or guilty of a crime of moral turpitude.

   ♦   ♦If the defamatory statement is made about a public figure over a public concern, plaintiff must prove actual malice. If the statement is made about a private figure over a public concern, plaintiff must prove negligence. If the statement is made about a private citizen over a private matter, there mere publication is sufficient. 

   ♦ Defamation (Media): In Florida, if the Defendant is a media entity, actual injury must be established. At least 5 days before instituting a civil action for the publication/broadcast of a libel or slander, the plaintiff must serve written notice on the media defendant, specifying the alleged false and defamatory article or broadcast. If the media defendant fully retracts the libel within 10 days of receipt of such notice, then only actual damages may be recovered.

   ♦In Florida, the existence of a qualified privilege requires that the communication 1) be made in good faith, 2) by one with an interest or duty regarding the subject matter, 3) limited to such interest or duty in its scope, 4) given appropriately, and 5) made in a proper manner. To overcome a common law qualified immunity privilege, a plaintiff is only required to demonstrate express malice by a preponderance of the evidence.

 

    ♦ DEFENSES TO DEFAMATION- PRIVILEGES-QUALIFIED- 1. reports of official proceedings, 2. statements in the interest of the publisher 3. defense of ones actions, prop, or reputation ; 4. statements in the interest of the recipient 5. statements in the common interest of the publisher and recipient. 

D has burden of proving P exists

can lose QP if: 1. statement not within the scope of priv or 2. is shown that the speaker acted with actual malice. 

ABSOLUTE- D protected if 1. remarks made during judicial proceedings, by legislatures during judicial proceedings, by fed executive officials (even if not rltd to proceedings)  , or in "compelled broadcasts b/w spouses"

MITIGATING FACTORS - may be considered by jury for damages, but is NOT a defense. 

CONSENT- COMPLETE D , same consent rules as inten torts, ie capacity to consent, act within scope. 

TRUTH- Where P need not prove falsity ( ie not MPC), TRUTH is COMPLETE DEFENSE

11

MISREPRESENTATION

   ♦ MISREPRESENTATION – There are 2 types:

   ♦   ♦Intentional Misrepresentation (Fraud/Deceit): A misrepresentation of a material fact that the Defendant knew or believed was false (scienter) when made, with the intent that the plaintiff rely on the misrepresentation, that caused reliance that was justifiable and damages resulted. Requires plaintiff establish 1) a misrepresentation of a material fact; 2) scienter; 3) an intent to induce the plaintiff’s reliance on the misrepresentation; 4) Causation; 5) Justifiable reliance; and 6) Damages

   ♦   ♦Negligent Misrepresentation: To prove negligent misrepresentation, a plaintiff must show that: 1) the defendant made a misrepresentation in business or professional capacity, 2) that breached a duty owed to the plaintiff, and 3) that caused justifiable reliance and damages resulting from it.

12

PRIVACY;TORTIOUS INTERFERENCE W/BUSINESS RELATIONSHIP

Invasion of Right to Privacy: Florida does not recognize the tort of publication of facts placing plaintiff in a false light because it is duplicative of defamation.

Tortious Interference with Business Relationship: 

This cause of action requires: 1) a valid contractual relationship or business expectancy between Plaintiff and a third party, 2) defendant had knowledge of the relationship, 3) interference induced breach or termination of relationship expectancy, and 4) breach resulted in loss to the plaintiff. Damages cannot be recovered where the relationship is based on speculation regarding future sales to past customers.

 

 

 

TORTIOUS INTERFERENCE W/BUSINESS RELATIONSHIP – Requires 1) a valid contractual relationship or business expectancy between plaintiff and 3rd party; 2) defendant had knowledge of relationship; 3) interference induced breach or termination of relationship or expectancy; AND 4) breach resulted in loss to the plaintiff. (NOTE: Damages cannot be recovered where the “relationship” is based on speculation regarding future sales to past customers.)

13

NEGLIGENCE;LANDOWNER DUTIES; DEFENSES; LIABILITY BASED ON ALCOHOL; 

♦ negligence - In order to have a cause of action for negligence, a plaintiff must prove: an existence of a legal duty, breach of that duty, actual and proximate cause, and damages. A person owes a duty of care to foreseeable plaintiffs, and breaches their duty if they fail to act like a reasonable person in a like circumstance. Actual cause is determined by the but-for test: but for the defendant’s acts, the result would not have happened. Proximate cause is a determined by whether the type of harm was foreseeable. Damages include economic and non-economic losses to a plaintiff arising from a defendant’s conduct. "RP: Negligence: The elements of a prima facie case of negligence are: 1) a duty on the part of the defendant to conform to a specific standard of conduct for protection of a plaintiff against an unreasonable risk of injury, 2) a breach of that duty by the defendant, 3) the breach is the actual and proximate cause of the plaintiff’s injury, and 4) there are damages to the plaintiff’s person or property."

 

♦ ELEMENTS: gen neg

♦♦DUTY – A duty is owed to ALL FORESEEABLE PLAINTIFFS. Determine in plaintiff was foreseeable and what standard of care if owed. The reasonable person standard is an objective standard where one’s conduct is 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 the defendant. Duties Established by Statute – was statute intended to protect type of harm plaintiff suffered. If, so it is “negligence per se”

♦Common Carriers: Common carriers and innkeepers are held to a very high standard of care.

 

♦Professional Standards of Care -how Avg Rp professional in the field would act in similar not how the best would perform, conduct in the field establishes DoC. 

 

♦ per se - A statute can be used to establish negligence per se if a statute is designed to protect a particular class of person from a particular type of harm. In Florida, the doctrine of negligence per se does not apply to violations of a traffic statute. Instead, a traffic statute will be prima facie evidence of negligence. 

♦♦Premises Liability: In Florida, the duty owned to a Plaintiff on the land depends on the status of the Plaintiff. For undiscovered trespasser, the landowner has no duty to the Plaintiff other than to not intentionally injure. For a discovered (anticipated) trespasser, the landowner owes a duty to warn of hidden, known, artificial, and dangerous conditions. For an invited licensee (social guest), the landowner must warn of any conditions that are known, or could be discovered with reasonable inspection. For a business invitee, the landowner must make reasonable efforts to keep the premises free from transitory foreign objects or substances that might be foreseeable giving rise to the injury.

 

♦Off premises injury caused by commercial property - evaluated on negligence principals rather than whether conditions were artificial or natural - commercial landowners owe a duty to prevent foliage from obstructing drivers view of the sidewalk when entering or exiting property.

Residential landowners do not owe this duty- but must not permit foliage or other conditions on their land to extend beyond its boundary.

 

♦Premises Liability: In Florida, the duty owned to a Plaintiff on the land depends on the status of the Plaintiff.  "

♦Undiscovered Trespasser – someone who enters property w/o invitation whose presence is not detected w/n 24 hours proceeding accident. NO DUTY TO WARN but landowner must refrain from intentional misconduct that proximately causes injury ( not intentionally injur). RP: Trespassers: No duty is owed to an undiscovered trespasser. 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, the landlord owes no duty to warn of dangerous conditions, but is still liable for gross negligence or intentional misconduct."

♦Discovered Trespasser -(anticipated)  ♦DISCOVERED- P enters with or without express or implied invite and whose actual physical presence was detected within 24 preceding accident. (know or reason to know of presence 24 hrs before entry) To avoid L for discovered, owner must refrain from gross neg or intentional misconduct that proximately causes injury, and must warn or known hidden(~ readily observable by others) dangerous conditions. * if trespasser is intox, LL owed no duty warn of dang conditions but is still L for gross neg or intentional misconduct. P enters prop w/o invitation but presence detected w/n 24h accident. DUTY 2 WARN  KNOWN NON-OBVIOUS dan con. SAME IN FL AS:

♦Uninvited Licensee – one who comes onto premises solely for their own convenience w/o invitation.(who enters on the land with the possessor’s permission for her own purpose or for business rather than for the possessor’s benefit.) SAME DUTY AS DISCOVERED TRESPASSERS. ="PEOPLE WHO COME TO UR DOOR UNSOLICITED- GIRL SCOUTS, MORMONS"   possessor duty : 1) warn of or make safe dangerous conditions known to the owner that create an unforeseeable risk of harm, and 2) exercise reasonable care in the conduct of active operations on the property. The possessor has no duty to inspect or repair.

 **BY STUTE - NO DUTY OWED TO ANYONE COMIN GON PROP TO COMMIT FELONY

♦Licensees by Invitation – social guests and other persons who are on the property through express or implied invitation of the owner. They are treated like INVITEES. They are owed a DUTY OF REASONABLE CARE UNDER THE CIRCUMSTANCES. Duty to make reasonable inspections to discover non-obvious dangerous conditions and make them safe. (NOTE: Police and firefighters are treated as Invitees in FL) (invited licensee = social guest = the landowner must warn of any conditions that are known, or could be discovered with reasonable inspection)

♦Licensees - FL distinguishes b/w invited and univited

Invited - treated like invitees

Univited - treated like discovered trespasser.

♦INVITEE- duty of reas and ordinary care in keeping the place safe for the benefit of the invitee. Includes duty to warn of known nonobvious, dangerous conditions known to the landowner and to use ordinary care in use and operations on the property, plus a duty to make reaonable inspections to discover dangerous coniditions and make them safe. " FL requires in addition to CL duty a duty for business owners to keep premises free from transitory foreign objects that might foreseably result in injury. ( FL statute enacted July1, 2010 provides that if:) P claims civil action for neg arising from transitory object- P has burden to prove D had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it.  Constructive knowledge est by showing that :1) Dang condition existed for such a length of time, in exercise of ordinary care the bus establishment should have known of the condition. OR 2) The condition occurred with regularity and was t/f foreseeable. "

 

♦Attractive Nuisance: Fl requires the plaintiff have been lured onto the premises by the dangerous condition.To establish applicability, the plaintiff must show: 1) a dangerous condition on the land that the owner is or should be aware of, 2) the owner knows or should know children frequent the vicinity of the condition, 3) the condition is likely to cause injury, and 4) the expense of remedying the situation is slight compared with the magnitude of the risk. Florida requires that the plaintiff have been lured onto the premises by the dangerous condition.

 

 

 

♦♦BREACH- Where the 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. The plaintiff may use: 1) custom or usage, 2) violation of a statute, or 3) res ipsa loquitur to show proof of the breach.

♦Violation of Statute: 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 state and thus demonstrates negligence per se.

♦Res Ipsa Loquitur: Requires plaintiff to show that: 1) the accident causing the injury is a type that would not normally occur unless someone was negligent, and 2) the negligence is attributable to the defendant. Where res ipsa is established, the plaintiff has made a prima facie case of negligence and no directed verdict may be given for the defendant.

 ♦♦CAUSATION-  “In order for plaintiff to prove causation, the plaintiff must prove that 

defendant’s conduct was the cause in fact (actual cause) and the proximate (legal) cause of the plaintiff’s injuries.”§ Actual Cause – “But for” test & § Proximate Cause – Foreseeability Test. "RP: Once negligent conduct is shown, plaintiff must show that the conduct was the cause of his injury. For liability to attach, plaintiff must show both actual cause and proximate cause. The But For Test dictates that an 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 combine to cause the injury. If there are two acts and only one caused the injury, each defendant has the burden of proving that his negligence is not the actual cause. A defendant is generally liable for all harmful results that are the normal incidents of and within the increased risk caused by his acts. The doctrine of Proximate Cause is a limitation of liability and deals with liability for unforeseeable or unusual consequences of one’s act. Finally, a breach is a Substantial Factor if it could have caused the harm all by itself."

♦ Intervening Forces - comes into motion after the time of defendant’s negligent act and comes with it to cause the injury to the plaintiff. If the defendant’s negligence created a foreseeable risk that an intervening force would contribute to plaintiff’s harm, the defendant is liable for the harm caused. 

 

 ♦♦DAMAGES-  Look at personal injury, economic damages, non-economic damages, property damages, punitive damages. There are 3 types of damages: 1) economic damages (loss wages, bills), 2) non-economic damages (pain and suffering), and 3) punitive damages. " RP: Damages :Actual Damages: Actual damages are not presumed in a negligence action. There is always a duty to mitigate. A victim is entitled to be compensated for all personal injury damages—past, present, and prospective. This includes fair and adequate compensation for economic damages, such as medical expenses and lost earnings, and non-economic damages such as pain, suffering, and emotional distress. Comparative negligence will reduce the award of damages."

♦ Economic Damages – Past, present, and future medical expenses and lost wages 

♦Non-Economic Damages – pain and suffering, negligent infliction of emotional distress, loss of consortium 

♦Punitive Damages – In FL, a defendant may be held liable for punitive damages only if the trier of fact based on CLEAR AND CONVINCING evidence, finds that the defendant was personally guilty of “intentional misconduct or gross negligence”. A plaintiff may not plead punitive damages unless evidence in the record demonstrates a reasonable basis for recovery & s cannot exceed the GREATER of 1) 3 times the amount of compensatory damages or 2) $500K . There is NO CAP on punitive damages for any defendant who, at the time of the act or omission, was under the influence of alcohol or drug that impaired his normal faculties.

♦Employer ~L 4 'ee’s punitive damages, unless actively participated/ consented. "In the case of an employer, principal, corporation, or other legal entity, punitive damages may be imposed for the conduct of an employee or agent if that conduct constituted intentional misconduct or gross negligence and the employer or principal: 1. Actively or knowingly participated in such conduct. 2. Knowingly condoned, ratified, or consented to such conduct; 3. Engaged in conduct that constituted gross negligence and contributed to the loss, damages, 4. or injuries suffered by the plaintiff. "RP: ♦Punitive damages awarded when the trier of fact finds, by C&C evi that D has engaged in intentional misconduct or was grossly negligent. P~plead punitive damages unless there evidence on the record that demonstrates a reasonable basis for their recovery. PD ~exceed greater than 3X compensatory AWARDED or $500,000. PD may be awarded up to the greater of 4X amount of CD to each claimant, or sum of $2 million if P shows :1) the wrongful conduct was motivated solely by unreasonable financial gain, and 2) the managing agent or officer making policy decisions for the defendant knew of the unreasonably dangerous nature of the conduct and the high likelihood of injury. If D had specific intent to harm claimant & did harm P, then no cap on amount of recovery, if @ time of act, the D was under influence of any alcohol or drugs, or there was abuse of a child, elderly, or disabled. "

♦♦♦Collateral Source Rule: States that by statute a trial court must reduce any damages awarded to a claimant by the amounts paid for or available to the claimant from collateral sources not including Medicare, Medicaid, or Workers’ Compensation. The reduction is offset by any amount paid by the claimant for the benefit, such as insurance premiums.

 

♦♦DEFENSES-

 ♦Comparative Negligence: Florida has abolished joint and several liability among the tortfeasors. Instead, Florida has adopted a pure comparative negligence jurisdiction. A court will allow a Plaintiff to recover so long as they are not 100% at fault. Assuming that all Defendants are liable, the extent of their liability will depend upon the amount of the damage award and their respective degree of fault. The damage award will be reduced by the Plaintiff’s share of fault. EXCEPTION: In Florida, Alcohol or Drug Intoxication : In any civil action, a plaintiff may not recover any damages if the trier of fact finds that, at the time the plaintiff was injured: (i) the plaintiff was under the influence of any alcoholic beverage or drug that impaired her normal faculties or that resulted in a blood alcohol level of 0.08% or higher; and (ii) as a result of such impairment, the plaintiff was more than 50% at fault for her own harm.

 ♦SEATBELT-The fact that a person is injured when failing to wear and automobile seat belt, when required by law to do so, may be considered as evidence of comparative negligence in any civil action. 

♦ Assumption of Risk – Plaintiff may be denied recovery is she EXPRESSLY assumed the risk of any damage caused by the defendants act. Plaintiff must have 1) known of the risk AND 2) voluntarily proceeded in the face of the risk. (NOTE: FL has abolished implied assumption of risk) ;Express Assumption of Risk: Florida permits natural guardians on behalf of their minor children to waive any claim against a commercial activity provider for the minor’s personal injury from an inherent risk in the activity. To be enforceable, a waiver 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 because there are certain dangers inherent in the activity that cannot be avoided.

♦ Liability based on alcohol; Tavernkeepers: In Florida, one who provides alcohol to a person of lawful age is not liable for damages caused by the intoxication of that person, unless: 1) the tavern keeper willfully sells or furnishes to a minor, 2) serves a habitual drinker who is an addict, or 3) he knew the disorderly conduct of a third party was likely to injure patrons.-One who provides alcohol to a person of lawful age is not liable for damages caused by the person’s intonation. There are 3 exceptions: 1) sells/gives alcohol to a minor; 2) knowingly serves an alcoholic, or 3) vendor who knows/should know of likelihood of injuries to patrons caused by disorderly conduct of third person and fails to do anything about it. 

♦Workers’ Compensation to Bar Tort Action: In Florida, employers are required to obtain Workers' Compensation Insurance to cover employee injuries "arising out of, and in the course of," the employee's employment. Workers' Compensation Insurance provides compensation to the employees regardless of fault or negligence. If Workers' Compensation Insurance covers an employee's injury, the employee may not sue her employer or fellow employees for damages arising out of the injury (except if a fellow employee commits an act of gross negligence, willfulness, or unprovoked physical aggression).

♦Superseding, Intervening Causes: The defendant remains liable for any intervening negligent medical treatment, intervening negligent rescue, intervening reaction or protection forces, or subsequent disease or accident because these events are foreseeable. 

 

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SPECIAL AND STATUTORY DUTIES : SPECIAL; PROFESSIONAL; GOOD SAMARITAN LAW/GRATUTIOUS AID BY HEALTH CARE PROVIDER (IN FACILITY)

There is no duty to render aid unless a special relationship exists. However, if you do render aid, in FL you are not liable if you act as an ORDINARY REASONABLY PURDENT PERSON.

♦ GOOD SAMARITAN ACT- The Act is applicable to all persons who gratuitously render aid at the scene of an emergency. However, the Act is virtually meaningless because the rescuer remains liable for ordinary negligence. Emergency room healthcare providers who are obligated to treat are not liable unless they acted with reckless disregard for the consequences to the life or health of another. Persons using a defibrillator are not liable unless reckless or grossly negligent. Those who treat voluntarily are not liable unless they acted willfully and wantonly.

♦♦Florida has a Good Samaritan law that applies differently to rescuers at the scene of an emergency outside and inside a hospital. If a person renders aid outside of a hospital, that person will not be liable unless they failed to act like a reasonable person in a similar circumstance. If a healthcare provider renders aid inside a hospital, that person will not be liable unless they demonstrated a reckless disregard of the life of another. GRATUTIOUS AID BY HEALTH CARE PROVIDER (IN FACILITY) – Need willful misconduct or extreme recklessness, not mere negligence.

♦Statutory Duties: A clearly stated specific duty imposed by a statute providing for criminal penalties may replace the more general common law duty of care if: 1) plaintiff is within the protected class, and 2) the statute was designed to prevent the type of harm suffered by the plaintiff.

 ♦  ♦ SPECIAL DUTIES

 ♦ CHILDREN - over age 5 - Age experience intelligence under same or similar circumstances. Exception when child is engaged in adult activity - gen on exam only adult activity will be motorized equipment - driving a car or watercraft or farm equipment

 ♦  PROFESSIONALS - Dr/ healthcare providers, architect, engineer, lawyer, accountant --> here not objective view like RPP its empirical analysis  and look at what the actual professionals out there do - custom of the profession sets the standard of care.  

 ♦ AVERAGE PROFESSIONAL -  conform in method

 ♦ IN SAME FIELD - customarily followed in profession

 ♦ INFORMED CONSENT- Drs have duty to inform patient of potential side effects/ risks so they may make an informed choice. aka-Duty to Disclose Risks of Treatment: In Florida, a heath 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. In general, Florida law imposes a standard of care based on what is recognized as acceptable and appropriate by reasonably prudent similar health care providers in light of all relevant circumstances. (Risk OCCURS - BUT for P to recover the undisclosed risk must have occurred)

 

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STRICT LIABILITY

 

 ♦ Inherently Dangerous / Ultrahazardous Activities

 ♦ Failure to Warn of Known Dangerous Condition

 ♦  ♦STRICT LIABILITY – Under strict liability, a person will be held strictly liable for their acts, regardless of the precautions they took. A defendant will be strictly liable if they were engaged in abnormally dangerous activities, or if their animal bit someone. Abnormally dangerous activity creates a foreseeable risk of harm even when reasonable care is exercised. "1) Defendant owes and ABSOLUTE DUTY to plaintiff to make the activity or condition safe; 2) Breach of Duty; 3) Actual and Proximate Cause; 4) Damages. ** Plaintiff is not required to sustain harmful injuries; damage to ones property is sufficient to satisfy this prong.

 ♦ Dangerous Animals – In FL, owners of wild animals are strictly liable for the damages caused by the trespass of such animals and for the injuries inflicted upon other people by wild animals.

 ♦In contrast, owners of domestic animals are generally not strictly liable for the damages caused by trespass or for injuries cause by such animals. 

 ♦Exception: Florida makes owners of a dog liable for damages, regardless of the former viciousness of the dog or the owner’s prior knowledge of such viciousness. In the absence of negligence, the owner is not liable—except as to a person under the age of 6—if at the time of injury: 1) person is not lawfully on the premises, or 2) owner had displayed in a prominent place an easily readable sign saying “bad dog.”Any negligence on the part of the person bitten that proximately contributes to the biting reduced the liability of the owner of the dog by the percentage that the bitten person’s negligence contributed. A showing of at least negligence is required to establish liability against the owner of livestock that stray onto a public road.

 

 ♦ Inherently Dangerous / Ultrahazardous Activities – These types of activity involve a risk of serious harm to the person or the property, the task cannot be performed without the risk of serious harm (regardless of how much care is taken), the activity isn’t commonly engaged in the particular community.

Elements: 

1.  Involves substantial risk of serious harm to person or property 2.  Cannot be performed w/o risk of serious harm no matter how much care is taken 

3. Activity is not commonly engaged in by persons in the community. 

*Examples: blasting, manufacturing explosives, impounding water, mining. 

 

♦ Failure to Warn of Known Dangerous Condition – Elements:

1. Defendant created the dangerous condition

2. Condition wasn’t readily apparent

3. Defendant had knowledge of the dangerous condition

4. Defendant failed to take steps to warn public of danger or avert the danger.

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Dangerous instrumentality doctrine 

Dangerous instrumentality doctrine 

Florida is among the minority of jurisdictions that recognizes the dangerous instrumentality doctrine. The owner of an instrument that is capable of casing death or substantial bodily harm will be liable for damages when the instrument was operated with O’s knowledge and consent. Caps: 100K per person/300K per incident, and 50K for property damage. 

17

PRODUCTS

A.In a products liability action, P can recover based on 5 theories: 1) intent, 2) negligence, 3) strict products liability, 4) implied warranties of merchantability and fitness for a particular purpose, and 5) express warranty and misrepresentation.

1. To recover under products liability theories must prove product defective when left Ds control and unaltered when reach Ps possession. Presumption unaltered when purchased in ordinary course by usual channels. There are 2 types of defects

1)Manufacturing Defect: Results when a product leaves the defendant’s control, is different from the other products, and the product is more dangerous than it should have been. The plaintiff will prevail if the product was dangerous beyond the expectation of the ordinary consumer due to the departure from its intended design.

2)Design Defect: Results when all of the products of a line are made identically, according to specifications, but the products have dangerous propensities because of their features. In order to have a successful design defect cause of action, the plaintiff must show there is a reasonable alternative design that is economically feasible. In Florida, if the product complies with government safety standards, there is a rebuttable presumption of no defect.

 

a.Strict Products Liability: To impose strict liability as a result of a manufacturing/design/warning defect, there must be: 1) a commercial seller who puts the product into the stream of commerce, 2) the product was defective, 3) the product had not been altered since it left defendant’s hands, 4) actual and proximate cause, 5) the plaintiff was using the product in a foreseeable way at the time of the injury, and 6) damages. Florida also protects bystanders in a strict liability cause as well. Manufacturer is not strictly liable for defects that were created later by a seller altering or mishandling a product.

 

b.NEGLIGENCE:To establish a prima facie case for negligence in a products liability action the following elements must be proved: (1) The existence of a legal duty owed by the defendant to the particular plaintiff; (2) breach; (3) actual and proximate causation; (4) damages. 

A duty of care arises when a D engages in  affirmative conduct associated with being a commercial supplier of products. Absence of privity is not a defense. The duty is owed to any foreseeable plaintiff - user, consumer, or bystander. P would argue that she was an intended user and therefore is owed a duty. *Breach- to prove breach, P must show negligent conduct by defendant leading to the supplying of a defective product. There are two main types of defects, manufacturing defects and design defects. 

A product is defectively manufactured if the product is dangerous beyond the expectation of the ordinary consumer because of a departure from its intended design. A product is defectively designed, including its warnings, using the same test; if it is dangerous beyond the expectation of the ordinary consumer. Defecting warnings- a product must have clear and complete warnings of any dangers that may not be apparent to users. *An intermediary’s negligent failure to discovery a defect will be held liable along with the manufacturer. Middleman’s conduct can become a superseding cause if it is more than ordinary foreseeable negligence. *May use res ipsa loquitor if the defect is hard to trace, and the error is usually something that does not occur without the negligence of the manufacture. **P will have to show that D knew or should have known of enough facts to put a reasonable manufacturer on notice about the dangerous of the defect - because neg is not shown if the danger of the product becomes apparent to a reas man only after the product has reached the public."**

 

c.Implied Warranty of Merchantability: When a merchant who deals in a certain kind of goods sells such goods, there is an implied warranty that they are merchantable. Merchantable means that they are of a quality equal to that generally acceptable among those who deal in similar goods and are generally fit for the ordinary purposes for which such goods are used. If a product fails to live up to the standards imposed by an implied warranty, the warranty is breached and the defendant will be liable. Vertical privity is no longer required between the buyer and the manufacturer. Florida’s rule on horizontal privity extends implied warranty protection to the buyer’s family, household, and guests.

 

d.Express Warranty: Any affirmation of fact or promise concerning goods that becomes part of the basis of the bargain creates an express warranty.

 

e.Misrepresentation of Fact: In products cases, liability for misrepresentation is based on strict liability. The misrepresentation must be of material fact, and the defendant must have intended to induce the reliance of the buyer, or a class of persons to which the buyer belongs in a particular transaction. Reliance establishes cause.

18

 NUISANCE

ATTRACTIVE NUISANCE – 1) Dangerous condition 2) Landowner knows that children frequent the area, 3) Child is unable to appreciate the risk or danger, 4) Expense of remedy is slight as compared to the risk. 5) FL requires that the plaintiff be lured onto the premises by the dangerous condition. 

 

Private Nuisance: 

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.

 

Public Nuisance: 

An act that unreasonably interferes with the health, safety, or property rights of the community—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.

19

RES IPSA LOQUITOR

RES IPSA LOQUITOR – 1) The accident would not have occurred w/o negligence of Defendant 2) Defendant has complete control of the instrumentality causing negligence and 3) Injury was not plaintiff’s fault.

20

VICARIOUS LIABILITY

♦VICARIOUS LIABILITY –

 

♦♦PERMISSIVE USE RULE –Permissive Use Rule- Florida has adopted the “Permissive Use Rule” which provides that an auto-owner who consents to the use of his car is vicariously liable for driver’s negligence. Florida, unlike many other states, also recognizes the “Dangerous Instrumentality” Doctrine, which states that it doesn’t matter whether a driver exceeds the scope of consent of the auto owner who permitted the use; the owner is still liable. Vicarious liability of a person who loans a vehicle to another is $100,000 per person and $300,000 per incident for bodily injury, and $50,000 for property damage.

 

 

♦♦“respondeat superior” an employer is liable for an employee’s torts committed w/n the scope of employment. An employer can be liable for employer’s own negligence or under respondeat superior.

♦Employer’s Negligence – to find liability for negligent hiring, supervision or retention, plaintiff must show 1) employer owed duty to plaintiff, 2) breach of duty, 3) actual and proximate cause, 4) damages. 

♦Presumptions – In Florida, in an action for death, injury, or damage caused by the intentional tort of an employee, An employer is presumed NOT to have been negligent in hiring if the employer conducted a background investigation before hiring and it didn’t reveal anything questionable. However, a decision by an employer not to conduct a background investigation DOES NOT raise a presumption that the employer did not use reasonable care in hiring. 

♦Negligent Hiring: To find liability for negligent hiring, supervision, or retention, Plaintiff must show that the employer 1) owed a duty to Plaintiff, 2) breached the duty, 3) was the actual/proximate cause, and 4) damages.

21

WRONGFUL DEATH;PRENATAL

♦WRONGFUL DEATH – A survival action allows the estate to be awarded damages that the deceased incurred from the moment of the injury until the time of death. 

*May be brought by personal representative of decedent. 

o Recoverable damages include the traditional damages in a tort action: past and future loss of support and services, loss of decedent’s companionship and protection, mentalpain and suffering, and medical and funeral expenses.

o Surviving spouse, minor children and parents of the decedent may recover for loss of decedent’s companionship and protection and mental pain and suffering from the date ofthe injury.

 

♦Prenatal Injuries: In Florida, both parent and child have an action for prenatal injuries, provided the child is born alive. If the fetus dies from 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 pregnancy..

22

IMMUNITIES; GOV'T; PARENT CHILD; SPOUSAL

 

Parent-Child Immunity: Florida has eliminated parent-child immunity in the following cases: 1) negligence of the parent but only to the extent of insurance coverage, and 2) intentional sexual abuse perpetrated by a parent against a minor child. In Florida, parents of a minor child who commits a theft offense may be liable for threefold the actual damages of the victim. Florida permits a child to recover for loss of a permanently injured parent’s consortium.

Husband-Wife Immunity: The Florida Supreme Court has abolished spousal immunity.

Government Tort Immunity: Florida has not waived immunity for discretionary acts—those actions that take place at the planning/decision- making levels. However, Florida has waived immunity for ministerial acts performed at the operational level of government. Therefore, the government will be liable for its employees and public officials. As such, officers and employees of the state and its subdivisions are not responsible for damages caused by torts committed during the court of their employment except when they have acted in bad faith, with malicious purpose, or willful disregard of human rights/safety/property. (The gov will be liable for its employees under respondeat superior. However, damages are CAPPED at 200K.) No tort action may be brought against the state unless the claimant has first presented a written claim to the appropriate agency.

o Planning v. Operational Test – Gov immune from suit for PLANNING decision. It is subject to suit for OPERATIONAL.

23

SEATBELT STATUTE; GUEST STATUTE (VEHICLES)

Failure to wear a seat belt: Defendant can argue that plaintiff’s failure to wear a seat belt contributed to P’s negligence. D must prove: 1) P failed to wear, 2) SB was available in operation, and 3) F2W substantially contributed to P’s injuries. 

Guest statute : Florida does not have a guest statute. Thus, an occupant of a vehicle can sue the driver for negligence. 

24

NO FAULT INSURANCE

No-Fault Insurance: Florida has adopted a modified no-fault automobile insurance system under which out-of-pocket expenses are paid to an injured person under the basic automobile insurance policy, regardless of fault. The injured person’s own insurance carrier pays these benefits rather than the liability insurance of the party at fault. Therefore out-of-pocket expenses of $10,000 or less must be recovered by the injured person from his own insurance carrier.