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Flashcards in Torts Distinctions Deck (14)
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1

Florida requires proof of falsity and fault:

A Only when a defamation claim involves a matter of public concern.

B In all defamation actions.

C Only when the alleged defamation refers to a public figure.

D Only in libel cases.

B In all defamation actions.

In Florida, a plaintiff must show falsity and fault in all defamation actions, regardless of whether libel or slander.
In a common law jurisdiction, to make a prima facie case for defamation, the plaintiff must show: (i) the defendant used defamatory language; (ii) the defamatory language was "of or concerning" the plaintiff; (iii) the defendant published the defamatory language to a third person; and (iv) damage to the plaintiff’s reputation. Additional elements of falsity and fault must be shown where the defamation refers to a private figure in a matter of public concern, or a public figure. Florida has expanded these elements to all defamation cases.

2

In Florida, the tort of invasion of privacy—publication of facts placing plaintiff in a false light:

A Is not recognized as a cause of action.

B Requires that the publication of facts place the plaintiff in a false light in the public eye.

C Requires a showing of malice where the published matter is in the public interest.

D Is available to plaintiffs who cannot make a case for defamation because the facts are true.

A Is not recognized as a cause of action.

Florida does not recognize the tort of invasion of privacy—publication of facts placing plaintiff in a false light because it is mostly duplicative of defamation. Florida recognizes “defamation by implication,” in which literally true statements can be defamatory where they create a false impression. Furthermore, the tort of publication of facts placing plaintiff in a false light lacks the First Amendment protections attendant to defamation; as a result it has the potential to chill speech because the type of conduct prohibited is not entirely clear.

3

Does a landowner have a duty to prevent foliage from obstructing a driver's view of the sidewalk?

A A residential landowner is not liable as long as the foliage does not extend beyond the property’s boundaries.

B A residential landowner is liable whenever the foliage obstructs a driver's view of the sidewalk when entering or exiting the property.

C Neither a residential landowner nor a commercial landowner are liable as long as the foliage does not extend beyond the property's boundaries.

D A commercial landowner is liable for artificial conditions only.

A A residential landowner is not liable as long as the foliage does not extend beyond the property’s boundaries.

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

4

A “discovered trespasser” is a person who enters property without an express or implied invitation, and whose actual physical presence was detected within _____ preceding the accident.

A 48 hours.

B 24 hours.

C 12 hours.

D 72 hours.

B 24 hours.

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

5

Which of the following is NOT relevant in an action based on breach of the statutory duty owed to business invitees to avoid or correct dangerous conditions on the premises?

A Whether the business owner had actual or constructive knowledge of the dangerous condition.

B Whether the dangerous condition existed for such a length of time that, in the exercise of ordinary care, the landowner should have known of the condition.

C Whether the dangerous condition occurred with regularity and was therefore foreseeable.

D Whether the dangerous condition was artificial rather than natural.

D Whether the dangerous condition was artificial rather than natural.

In a civil action for negligence as a result of a transitory foreign object or substance on business premises in Florida, the claimant has the burden of proving that the business had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it. Constructive knowledge may be proven by circumstantial evidence showing that: (i) the dangerous condition existed for such a length of time that, in the exercise of ordinary care, the business establishment should have known of the condition; or (ii) the condition occurred with regularity and was therefore foreseeable. The dangerous condition may be artificial or natural.

6

Which of the following statements is true regarding Florida’s Good Samaritan Act?

A Exempts licensed doctors and nurses from civil liability for ordinary negligence.

B Exempts certain persons who render aid at the scene of an emergency from civil liability under very specific circumstances.

C Exempts licensed doctors and nurses from civil liability for gross negligence.

D Exempts all emergency health care workers from civil liability for ordinary negligence.

B Exempts certain persons who render aid at the scene of an emergency from civil liability under very specific circumstances.

Florida’s Good Samaritan Act applies to all persons who gratuitously render aid at the scene of an emergency. However, the rescuer generally remains liable not only for gross negligence but for ordinary negligence as well (rendering the statute ineffective in most cases). Immunity from civil liability for ordinary negligence arises in certain limited circumstances:
(i) Health care providers in emergency rooms who are obligated to provide emergency treatment are liable only if they act with reckless disregard for the consequences to the life or health of another.
(ii) Health care providers in hospitals and/or emergency rooms who voluntarily render emergency treatment to persons other than their patients are liable only if they acted willfully and wantonly.
(iii) Health care providers using a defibrillator on an emergency victim are liable only if they act with recklessness or gross negligence.

7

In Florida, if an employer conducted a background investigation before hiring an employee, and the investigation did not reveal any information reasonably demonstrating the employee’s unsuitability for employment, what effect will that have on the employer's liability if the employee subsequently commits an intentional tort?

A It negates the employer's liability under respondeat superior.

B It does not affect the employer's vicarious liability for the employee's conduct.

C It caps the amount of damages that may be recovered against the employer.

D It raises the presumption that the employer used reasonable care in hiring such employee.

D It raises the presumption that the employer used reasonable care in hiring such employee.

In Florida, an employer is presumed not to have been negligent in hiring an employee who commits an intentional tort if the employer conducted a background investigation before hiring that did not reveal any information reasonably demonstrating the employee’s unsuitability for the particular work or employment in general. (On the other hand, a decision by an employer not to conduct the investigation does not raise any presumption that the employer failed to use reasonable care in hiring an employee.) Keep in mind that negligence in hiring the employee is not the same as vicarious liability.

8

In an action against a dog owner by a trespasser who was bitten by the owner's dog, which of the following statements is correct?

A The dog owner will not be liable to any trespasser if he has posted a "bad dog" warning sign and is not otherwise negligent.

B The dog owner will be liable unless the trespasser is a minor.

C The dog owner is liable only if he had knowledge of his dog’s dangerous propensities.

D Any negligence on the part of the trespasser that proximately contributes to the biting incident reduces the liability of the dog owner.

D Any negligence on the part of the trespasser that proximately contributes to the biting incident reduces the liability of the dog owner.

In Florida, the owner of a dog who injures another is liable is for damages, regardless of the former viciousness of the dog or the owner’s prior knowledge of such viciousness. However, any negligence on the part of the trespasser that proximately contributes to the biting incident reduces the liability of the dog owner.
Choice (C) states the rule at common law, whereby liability attaches only if the owner has knowledge of that particular animal’s dangerous propensities.
Florida has some important exceptions to its rule. If the biting incident occurs on a dog owner’s property, in the absence of negligence on the part of the dog owner, he is not liable if at the time of injury: (i) person is not lawfully on the premises; or (ii) owner had displayed prominently on the premises an easily readable sign including the words “Bad dog.” However, if the bite victim is under six years old, these exceptions do not apply. Thus, choice (A) is incorrect because the sign will not preclude liability for a trespasser under age 6. Choice (B) is incorrect because older minors will not be able to recover under the circumstances above.

9

For an activity involving some inherent risk of serious injury, may the activity provider have guardians sign a waiver on behalf of their minor children that releases the provider from liability for negligence?

A Yes, as long as the release advises that the guardian is agreeing that even if the activity provider uses extraordinary care, there is a chance the child may be seriously injured or killed by participating in the activity because there are certain dangers inherent in the activity that cannot be avoided or eliminated.

B Yes, as long as the release advises that the guardian is agreeing that even if the activity provider uses reasonable care, there is a chance the child may be seriously injured or killed by participating in the activity because there are certain dangers inherent in the activity that cannot be avoided or eliminated.

C Yes, as long as the release advises that the guardian is agreeing that even if the activity provider uses reasonable care, there is a chance the child may be seriously injured or killed by participating in the activity because the activity is abnormally dangerous.

D No, because such exculpatory clauses in a contract, intended to insulate one of the parties from liability resulting from his own negligence, are unenforceable when executed on behalf of a minor.

B Yes, as long as the release advises that the guardian is agreeing that even if the activity provider uses reasonable care, there is a chance the child may be seriously injured or killed by participating in the activity because there are certain dangers inherent in the activity that cannot be avoided or eliminated.

Florida permits natural guardians to release or waive any negligence claim or cause of action against a commercial activity provider for their minor child’s personal injury from an inherent risk in the activity. To be enforceable, a waiver or release must advise that the guardian is agreeing that, even if the activity provider uses reasonable care, there is a chance the child may be seriously injured or killed by participating in the activity because there are certain dangers inherent in the activity that cannot be avoided or eliminated. An abnormally dangerous activity is one that creates a foreseeable risk of serious harm even when reasonable care is exercised by all actors, and is not common in the community, so a person engaged in such an activity can be held strictly liable for injuries caused to another person (e.g., possession or use of explosive or radioactive material).

10

Which of the following statements is correct regarding a negligence action to recover damages for medical expenses?

A The defendant may introduce evidence of the plaintiff’s insurance awards.


B The defendant may introduce evidence of the plaintiff’s insurance awards only if it is a medical malpractice case.

C The defendant may introduce evidence of the plaintiff’s Medicare, Medicaid, or workers’ compensation benefits.

D The defendant may NOT introduce evidence of collateral source providers.

A The defendant may introduce evidence of the plaintiff’s insurance awards.

In Florida, evidence of a plaintiff’s insurance awards is admissible because, by statute, a trial court MUST reduce any damages awarded to a claimant by any amounts paid for or available to the claimant from collateral sources (not including Medicare, Medicaid, or workers’ compensation benefits). While a growing number of states have made exceptions to this rule just in certain types of actions, such as medical malpractice actions, Florida's exception is broader.

11

Florida generally caps recovery of punitive damages to either three times compensatory damages or the sum of $500,000, with certain exceptions. Which of the following is NOT an exception?

A Defendant was motivated by unreasonable financial gain.

B Defendant abused children or the elderly.

C Defendant was intoxicated.

D Defendant’s negligent conduct occurred during the commission of a crime.

D Defendant’s negligent conduct occurred during the commission of a crime.

Generally, Florida caps recovery of punitive damages. However, there are exceptions where the cap is either higher or not applicable: if the defendant’s action was motivated by unreasonable financial gain, involved abuse of children or elderly, constituted intentional harm, or resulted from intoxication. Choice (D) is not an exception; thus, the standard caps apply.

12

Which of the following statements is true when a doctor is found liable for causing personal injury to one of his patients?

A The amount of damages the plaintiff can recover for medical expenses is capped.

B The amount of economic damages the plaintiff can recover is capped.

C The amount of damages the plaintiff can recover for pain and suffering is capped.

D There is no cap on damages in a medical malpractice action.

C The amount of damages the plaintiff can recover for pain and suffering is capped.

Generally, there is no limit to the damages a plaintiff may recover on a personal injury action. However, there is one exception: Florida has capped the amount of noneconomic damages, which include pain and suffering, that a claimant can recover in medical malpractice cases against practitioners and non-practitioners such as medical suppliers. For all other personal injury actions, the plaintiff is to be compensated for ALL his damages (past, present, and prospective), both economic and noneconomic damages. In addition, a plaintiff suffering physical injury may recover damages for any resulting emotional distress.

13

In Florida, is an automobile owner vicariously liable for injuries caused by the negligent driving of a uninsured friend to whom he loaned his car?

A No.

B Yes, for up to $100,000 for bodily injuries and $50,000 for property damage.

C Yes, for up to $100,000 for bodily injuries, $50,000 for property damage, plus up to an additional $500,000 in economic damages.

D Yes, for up to $500,000 in economic damages only.

C Yes, for up to $100,000 for bodily injuries, $50,000 for property damage, plus up to an additional $500,000 in economic damages.

Florida has adopted a permissive use rule, holding that the owner who consents to use of his automobile by another person is liable for the negligent damages done by the automobile. Damages that a plaintiff can recover from an automobile owner under Florida’s permissive use statutes are limited to $100,000 per person and $300,000 per incident for bodily injury, and $50,000 for property damage. However, if the lessee or operator of the vehicle is uninsured or has insurance with combined limits less than $500,000, the person is liable for up to an additional $500,000 in economic damages.

14

Which of the following statements is true?

A Florida has abolished parent-child immunity.

B Florida retains parent-child immunity, except in cases of: (i) intentional tortious conduct, and (ii) automobile accidents.

C Florida retains parent-child immunity, except in cases in which: (i) an unemancipated minor sues a parent for negligence, and (ii) a parent perpetrates intentional sexual abuse against a minor child.

D Florida waives parent-child immunity only in cases of alleged intentional sexual abuse perpetrated by parent against minor child.

C Florida retains parent-child immunity, except in cases in which: (i) an unemancipated minor sues a parent for negligence, and (ii) a parent perpetrates intentional sexual abuse against a minor child.

Florida recognizes parent-child immunity, i.e., a child may not sue his parent for tortious conduct, with two exceptions: (i) when an unemancipated minor sues a parent for negligence (but only to the extent of available insurance coverage); and (ii) in case of intentional sexual abuse perpetrated by a parent against a minor child. Thus, choice (C) is the correct answer. Choice (D) is incorrect, as it only states one of the two exceptions.
A slight majority of states have abolished parent-child immunity entirely. Like Florida, the states that retain parent-child immunity do so with certain exceptions, generally: (i) parent-child immunity does not apply it in cases of intentional tortious conduct; and/or (ii) automobile accidents (but only to the extent of available insurance coverage). Thus, choice (B) is incorrect because it does not correctly state the Florida rule.