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71 Cards in this Set
- Front
- Back
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Florida Defense
Dwelling / Vehicle Rule: |
Florida is a macho state. You are presumed to have a fear of death or great bodily harm if someone unlawfully enters a dwelling or vehicle. So, basically you can kill them without any tort liability.
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Florida Damages
Defamation |
there are no presumed damages in a defamation case; every defamation P has to prove damages – no distinction between libel/slander/slander per se
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Florida Retraction Law (defamation)
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Florida has a retraction law – you can eliminate of your exposure to punitive damages if you are notified in advance of the lawsuit and print a retraction; you are still liable for actual damages but immunize from punitive damages if you print a timely retraction
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Florida Invasion of Privacy (1/3)
Commercial Appropriation |
i. Appropriation (Available in Florida through statute) – D uses P’s name/picture for unauthorized commercial purposes
1. Liability limited to advertisements or promotions of products/services 2. Newsworthiness exception: publication can run in picture if newsworthy a. i.e. SI can put Tiger Wood’s photo on cover if he wins the Masters. On the other hand, if a cereal box puts his image on the box without his permission they would be liable because it is not newsworthy and they are solely trying to boost sales – that is appropriation |
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Florida Invasion of Privacy (2/3)
Intrusion of Seclusion |
ii. Intrusion (Invades P’s Seclusion or Solitude in a way that is objectionable to an average person) (stereotypical invasion of privacy) – i.e., prying, snooping intruding on one’s private affairs, wiretapping, secret video surveillance, ears dropping, telescope pointed at the apt across the way
1. Exam Caution: a. P must have expectation of privacy at the time the intrusion occurs b. No requirement of a trespass of land |
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Florida Invasion of Privacy
False Light |
NO FALSE LIGHT IN FLORIDA
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Florida Invasion of Privacy (3/3)
Disclosure Claim |
Disclosure Claim– widespread decimation of confidential information about the P that would be objectionable to the average person; this is the ONLY TORT THAT DEALS WITH ACCURATE INFORMATION BUT CONFIDENTIAL INFO
1. EX: medical records; if your physician or another employee in that office would decimate your medical records -- that would be disclosure 2. Truth is no defense 3. Exam Focus: Newsworthiness exception - a. It is a tort for the Wall Street Journal publishes Joe Smith’s medical records but not Dick Cheney’s medical records. Because he is the VP of the US. 4. Dual life questions are examples of situations where P operates in two different spheres of activities, that he tries to keep separate from each other, but both spheres are reasonably open and public --- this is not disclosure a. P is 28 years old and he is gay. He is totally cool with that and he is completely out with his friends and family and politically active in the gay community but he is not out at work. One Sat, he goes to rally for marriage equality. A Heterosexual co-worker notices him and sees Pete and reads the sign that says Gay and Proud– goes to work and decimates info to everyone – this is not actionable because this was not a confidential fact, Pete was at a pubic demonstration and was holding the sign. |
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Florida Battery
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Intentional or indirect harmful or offensive/unpermitted touching to P's person (anything connected); judged by reasonable person standard
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Florida Assault
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Intentional overt act creating reasonable apprehension of immediate harmful of offensive contact
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Florida Tresspass to Land:
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intentional physical invasion of P's real property.
- MISTAKE as to lawfulness of entry is NO defense as long as Ds intended the entry upon that particular piece of land, INTENT to trespass is not required INTENT to enter land is sufficient. THe physical invasion of the property must ahve been legally caused by D's act or soemthing set in motion thereby A person may interfere w/ the real property of another where the interference is reasonably and apparently necessary to avoid threatened injury from a natural or other force & where the threatened injury is substantially more serious than the invasion that is undertaken to avert it |
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Florida IIntentional Infliction of Emotional Distress
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1. extreme and outrageous (exceeds all bounds of decency toleratated in civil society can be outrageous if CONTINUOUS/REPETITIVE, directed toward certain type of person (ELDER, CHILDREN, PREGGERS, known Supersentive) or committed by COMMON CARRIER or INNKEEPER
2. INTENTIONALLY or RECKLESSLY 3. causes SEVERE EMOTIONAL DISTRESS NOTE: (physical impact or manifestation of physolocigal trauma is not required) |
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Florida False Imprisonment
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Act or omission that confines or restrains P to a bounded area w/ no reasonable means of escape known to P
NOTE: can recover from HUMILATION |
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Florida Trespass to Chattels
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Intentional intermeddling or disposition that interferes with P;s right of possession and cause actual damages
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Florida Conversion
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Intentional wrongful serious interference with P's right of posession requiring Forced sale
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Florida Civil Theft
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Cause of action
THREEFOLD actual damages (minimum of $200) Plus attorney fees and costs If he can prove clear and convicing evidence that he was injured by D's violation of theft, robbery, exploitation of an elderly or disabled adult criminal law |
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Florida Defenses
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Consent
Self-Defenses Defenses of others Defense of property public / private necessity for propensity |
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Florida Defenses
Self-Defense and Defense of Others |
Justified in use of force objectively reasonably beleived necessary
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Florida Defenses
Duty to Retreat |
Florida provides NO DUTY to RETREAT (stand your ground) if engaged in LAWFUL ACTIVITY and ATTACKED IN ANY PLACE WHERE SHE HAS A RIGHT TO BE then may use DEADLY FORCE if REASONABLY DEEMED NECESSARY to prevent DEATh or bodily harm or to prevent comission of a forced felony
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Florida Defenses
Reasonable fear of deadly harm |
Florida presumed to have reasonable fear of deadly harm if someone has entered home or vehicle
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Florida Defamation
Pre-Suit Process |
At least 5 days before instituting a defamation action. P must serve WRITTEN NOTICE on the media defendant and give chnace to FULLY RETRACT LIBEL WITHIN 10 days of notice. If cured and made in good faith ONLY actual damages may be recoverd
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Florida Defamation
Elements |
1. false statement of fact with defamatory effect
2. identifying P 3. publication to a 3rd party 4. compensable damages to P's (Fla does not recognize slander per se, no presumed damages MUST SHOW ECONOMIC DAMAGES) |
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Florida Defamation
Fact & Opinion Distinguishment |
fact v. opinion consider
a. Examining statement in totality and context weight cautionary terms/disclaimers and considering surrounding circumstances (medium of dissemaination, audience) B. classifying as pure non-actionable opinion, mixed opinion & fact which is actionable b/c undisclosed fact which is actionable. |
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Florida Defamation
Elements + plublic concern |
1. false statement of fact with defamatory effect
2. identifying P 3. publication to a 3rd party 4. compensable damages to P's (Fla does not recognize slander per se, no presumed damages MUST SHOW ECONOMIC DAMAGES) For PUBLIC CONCERN 5. falsity 6. fault by CLear and convincing evidence 7. w/o Absolute or QUALIFIED PRIVLEGE |
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Florida Defamation
Privleges Qualified and absolute |
w/o Absolute (remarks in a judicial proceed, federal execuitve officials, bt spouses) QUALIFIED (statement in publishers, publics or recipents interest)
D can LOSE Qualified privlege through abuse if P establishes COMMON LAW EXPRESS /w primatee motive and intent to injure by POE IN FLA if D is sued for defamation and successfully invoked a qualified or absolute privilege in defense, P may not bring COA for IIED based on Defamatory publication |
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Florida Defamation
Invasion of Privacy |
1. appropriation of P's Name/Picture
2. Intrusion upon Seclusion 3. public disclosure of Private facts - must show malice |
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Florida negligence
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P must prove by a POE that D:
1. owed a duty of reasonable care 2. breached that duty 3. was the cause in fact (actual cause) and Proximate cause 4. P's injuries |
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Florida negligence
Child |
A reasonable child, with the same age, experience, and intelligence under like circumstances
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Florida negligence
Professional |
Professional - Florida imposes a standard of cased based on what is RECOGNIZED as acceptable and appropriate by reasonably prudent similar health care providers in light of all relevant circumstances
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Florida Negligence
MED-MAL PRE-SUIT |
1. presuit investigation
a. P must investigate GROUNDS for claim b. obtain WRITTEN OPINION by medical expert verifying that reasonable grounds for claim exist, protected from all uses by opposing party 2. Notice of Intent to Sue - Provided to each D by certified mail at 90 days before complaint 3. 90 day waiting period after notice, SOL is tolled ELECTION to have damages determined by voluntary binding arbitration however election to arbitrate limits compensatory damages and precludes punitive damages CAP on amount of NonEconomic damages recoverable in medical malpractice |
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Florida DUTIES
Uninvited Trespasser |
Enteres the land without invitation
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Florida Duties
Uninvited Licensee (discovered/ anticipated trespasser) |
enters without permission but whose presence is detected within 24 hrs preceeding injury
landowner has a duty to warn of known artificial conditions - non-obvious highly dangerous (known manmade death traps) |
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Florida Duties
Commission of a felony |
NO liabilty to anyone
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Florida Duties
License by invitation (licensee and invitee) |
Social guests who enter with invitation
Landowner has a duty to WARN and MAKE REASONABLE INSPECTIONS TO DISCOVER non-obviios artificial dangerous conditions |
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Florida Duties
Statutory business Invitee |
Landowner/occupier of busienss premises owes a duty of reasonable care to MAINTAIN the PREMISES in a REASONABLY SAFE CONDITION, including reasonable efforts to keep premises free from transitory foreign objets or subtances that might foresee injury
- evidence of notice or lack of notice may be considered however actual or constructive notice is not required as an element of proof - liability may arise if the premises are operated in a negligent mode that could reasonably cause the business owner or possessor to anticipate that dangerous conditions would develop from the mode of operation |
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Florida Duties
Conditions off land Business |
Business owners liable to pedestrian passer-by by reason of failure of the business to provide safe egress to vehicles exiting the premises
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Florida Duties
Conditions off land Private |
Residential landowners liable when he permitted conditions on his land that create a foreseeable hazard to traffic on adjacent streets extend into the public right of way
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Florida Duties
Rescuer |
Florida Good Samaratin is virtually meaningless b/c rescuer remains liable for for ordinary negligence
EXCEPTION 1. Emergency Rooms: health care providers obligated to provide treatement are not liable unless they acted with reckless disregard for consequences to life or health of P Health care practitioners - in hospital emergency room VOLUNTARY render emergency treatment not liable unless they acted WILFULLY & WANTON |
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Florida Duty
Tavernkeepers |
providers of alcohol to adults are not liable for damages caused by intoxication unless:
1. willful and unlawfully furnishes alcohol to minor 2. knowlingly serve person habitually addicted to alcohol 3. knows or should have known of liklihood of injuries to patrons caused by disorderly conduct of 3rd parties and fials to remedy (duty to protect patrons from other patrons) |
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Florida Duty
Domestic Animals |
Generally dog owner is strictly liable regarldless of former viciousness or prior knowledge of vicious propensity.
Owner not strictly liable for persons over 6 years but liable for negligence if at the time of any injury a. the P not lawfully on premises or b. D has proximately displayed an easily readable "bad dog" sign |
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Florida Duty
Automobile owner |
liable for driver: permissive use rule holds consenting auto owner to use by another person liable for negligent damage done by automible under DANGEROUS INSTUMENTAILIES DOCTRINE
- parents w/o ownership property interest in child's vehicle not vicariously liable for childs neglgient operation of vehicle Vic Liable of merchant or loaner for short term is 100k per person 300k per indicidnet of bodily harm / 50k for property.If vehicle operator uninsusured or has insurance limite of 500k then D is liable for an additional 500k in economic damages |
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Florida no-fault
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FL NO FAULT requires insurance company to pat 1st $10,000 for property damage, 1st 10,000 for medical expenses
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Florida
Pure comparative neglgience |
PCN provides that ANY party may have a claim for damages unless they were 100% at fault, award will be reduced by the share of fault
- JOINDER of all parties NOT necessary because the % of fault of the P and D is calculated on the comparatieve fault of all parties to the injury causing event. In order to allocate fault to a NONPARTY a D must affirmatively plead the fault of a nonparty and prove the nonparty's fault by POE |
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Florida
Violations of Traffic regulation |
Failure to wear a seatbelt P injured whien failing to wear seatbelt may be considered as evidence of comparative negligence; failure to wear a seatbelt is a violation of a traffic regulation and is therefore a prima facia evidence of contributory neglgience
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Florida
Sovereign Immunity |
Fla statutes have WAIVED sov immunity for state / county for its OPERATIONAL decisions with underline duties but they are IMMUNE from suits for its PLANNING decisions
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Florida
Sovereing Immunity Suit requirements |
1. must provide NOTICE of CLAIM to government within 3 years after claim arose; written claim to the appropriate agency (case against municipality, to the dept of insurance). A written denial of the claim by the agency/ dept of insurance is a prerequisite to any litigation
Claim is deemed denied if not disposed of within 6 months after filing 2. Amount that citizens can claim is limited by STATUTORY CAP 100k per person injursed 200k for all claims arrising from one incident, 3. attempt to get private claim bill through legislature for more |
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Florida
Child-parent immunity |
Florida has child-parent immunity, does not apply if: intentional tort, child is emancipated, to the xented of insurnace coverage
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Florida REMEDY
Damages Compensatory damages |
P seeks economic (special medical expenses, lost wasges) and non-economic (general pain and suffering, disability, disfigurement), damages
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Florida Remedy
Damages No Fault Insurance |
Fla's no fault insurance law provides that P's own auto insurer will pay the first 10k of his out of pocket expenses, the remainder can be recovered from D
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Florida remedy
damages Workers compensation insurance |
Employers are required to obtain workers comp insurance to cover employee injureis arising out of and in the course of emplyoee's emplyoment. EXCLUSIVE remedy agaisnt employer or co-worker UNLESS
gross negligence, willfulness, unprovoked physical agression) and provides compensation to employee regardless of fault or negligence |
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Florida Remedy
Damages Plaintiffs Intoxication |
P may not recover damages if the trier of fact finds that at the time P was injured
1. P was under the influence of alcoholic beverages or drug that impaired her normal facilities 2. AND P was more than 50% at fault |
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Florida Remedy
Damages Punative Damages Procedure |
Prerequisite to plead punative damges, P must demonstrate record evidence of reasonable basis for discovery. After finding liability (award of compensatory not required) the trier of fact finds by CCE that D was personally guilty of INTENTIONAL MISCONDUCT or GROSS NELGIGENCE then punative damges may be awarded
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Florida Remedy
Damages Punative Damages How much |
1. 3x amount of compensatory or 500k
EXCEPTIOSN to the cap 1. D's conduct was knowingly motivated by unreasonable financial gain (then 4x or 2million) 2. child, elderly, or developmental disable abuse then (> 3x) 3. D has specific intent to harm P and did harm P then NO CAP 4. D who was under the influence of inxoicating substance that impaired his normal facilities at the time of the act or omission (NO CAP) |
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Florida Remedy
Damages Punative Damages Employer |
An employer may be liable for punative damges for conduct of an employee only if conduct consituted intentional misconduct or gross negligence and the Emplyoer or principal
1. actively and knowingly participated in conduct 2. knowingly condoned, ratified, or consented to conduct 3. engaged in conduct that constituted gross neglgience and contribued to the loss, damage, or injury suffered by claimant |
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Florida DUTY
Common Carrier / Innkeeper |
Held to very high standard of care and liable for SLIGHT NEGLIGENCE but P MUST be passenger or guest
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Florida neglgience
Negligence Per Se |
1. statute provides for criminal penalty
2. state clearly defines the standard of conduct 3. P within protected class 4. statute was designed to prevent the type of harm suffered by the P |
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Florida Negligence
Pure Comparative negligence |
Any party may have a claim for damages unless he was 100% at fault
- percentage of fault of P and D is calculated based on comparative fault of all parties to the inury causing event, regardless of wehther they are joined in the suit or whether they could be joined |
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Florida Negligence
Abnormally Dangerous Activities |
1. activity creates a foreseeable risk of serious harm even when reasonable care is exercised by all actors
2. activity is NOT a matter of common usage in the community |
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Florida Products Liability
Negligence |
- Duty owed to anyforeseeable P ( user, consumer, bystander)
- breach of duty (breach is shown by neglgient conduct of the D leading to the supply of defective product - actual and proximate cause - damages (physical injury or property damage must be shown, recovery is deemed if the sole claim for economic loss |
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Florida Nursing home Claims
Pre-Suit |
1. Notice of rights violated and alleged negligence
2. mediation within 30 days after D's response from notice |
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Florida Strict Product liability
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1. Only merchants can be S/L - someone who routinely dealsin products of this type
NO casual seller, 2. P has to show the product was defective a. manufacturing defect b. design defect c. Information warnings/instructions 3. evidence that product was not altered since it left D's hands 4. P has to be making a foreseeable use of the product 5. DEFENSES Comparative Fault |
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Florida Strict Product liability
Manufacturing Defect |
Manufactinrg defect if if differs from all others that come off the same assembly line in a way that makes it more dangerous than consumers would expect
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Florida Strict Product liability
Design Defect |
If there is another way it can be built, alternative design ?
1. AD is safer than version marketed 2. AD would be cost-neutral (cost about the same) 3. AD must be practical (cant make the product hard to use or defeats its utility |
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Florida Strict Product liability
Information |
Products can be defective because of inadequate warnings or instructions
1. if P has a risk that cannot be physically designed out in a cost-neutral and practical way, and if that risk is one that the consumer is not aware of then P will be deemed to be defective if it lacked a warning that was undestandable and prominent 2. WARNING will not avoid S/L if there is a cost-neutral and practical design |
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Florida Nuisance
Private Nuisance |
the disturbancecreates a SUBSTANTIAL nad UNREASONABLE interference with one's use and enjoyment of the property
1. must be SUBSTANTIAL to the average member of the community |
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Florida Nuisance
Public Nuisance |
an UNREASONABLE intereference with a right common to the general public
1. where D's conduct invovles significant interefence with public health, public safety, public peace, publice convencience, public comfort |
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Florida Nuisance
REMEDIES |
1. money damages
2. injuctive relief where money is not enough 3. NO ABATEMENT IN FLORIDA |
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Florida
Attractive Nuisance |
Must exercise ordinary care to avoid a reasonable foreseeable risk of harm to children caused by artificial condition on the property
P must show 1. dangerous condition on the land that the owner is or should be aware of 2. owner knows or should know children frequent the vicinity of the condition 3. condition is likely to cause injury 4. expense to remedy is slight compared to magnitude of risk 5. FLORIDA - P MUST BE ATTRACTED TO THE PROPERTY by the dangerous condition |
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Florida
Shopkeepers Privilege |
Gives shopkeeper a privlege to detain suspected shoplifter for investigation
- Must be reasonable belief as to the fact of theft - detention must be conducted in a reasonable manner and only non deadly force can be used - Dentation must only be for a reasonable peroid of time and only for investigation |
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Florida
N.I.E.D. |
P must show that the emotional distress be caused by an actual physical impact and injury by the defendant
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Florida Torts
Survival Statute |
Florida Law permits the continuation of a lawsuit via the survival statute, though the party successively dies. Th estate then carries forth the suit and damages recovered may include MEDICAL EXPENSES, LOSS OF WAGES (past), LOSS of FUTURE EARNINGS reduced to prevent value
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Florida Torts
Wrongful Death |
A wrongful death action may be commenced to address a loss resuilting from TORTIOUS conduct. Such is often dependant upon whether the deceased is single or married, a minor (25 and under), has surviving parents or children, in terms of claims and awarded damages. Damages may include loss of consortium for husband and child, future earnings, medical expenses, funeral expenses, etc.
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