Fl Torts Essay Outline

Front 1

Intentional Torts to the Person - Intent

Back 1

intent may be either
(1) specific (the goal in acting is to bring about specific consequences) OR
(2) general (the actor knows with substantial certainty that these consequences will result)

**generally, you will have to establish intent on the essay**

Front 2

Intentional Torts to the Person - List (4)

Back 2

(1) assault
(2) battery
(3) false imprisonment
(4) intentional infliction of emotional distress

Front 3

Intentional Torts to the Person

Assault and Battery - Key Difference

Back 3

assault requires that the plaintiff have an apprehension of contact from the defendant, whereas battery requires contact but not any apprehension beforehand

Front 4

Intentional Torts to the Person

Assault - Elements

Back 4

(1) an affirmative act by the defendant
(2) done with the intent to place the plaintiff in apprehension
(3) of an imminent harmful or offensive contact to his person AND
(4) that actually causes the plaintiff apprehension

Front 5

Intentional Torts to the Person

Assault - 4 things to remember

Back 5

(1) the plaintiff need not be placed in fear of the contact...and apprehension of contact that is offensive (not consented to) is sufficient

(2) the apparent ability to inflict the contact is all that is needed...the fact that it couldnt be carried out (because the gun was unloaded) is irrelevant

(3) the act requirement generally isnt satisfied by words alone -- there usually has to be some volitional movement of the body for there to be reasonable apprehension of imminent contact

(4) under the doctrine of transferred intent, the intent to inflict a battery satisfies the intent requirement for assault

Front 6

Intentional Torts to the Person

Battery - Elements

Back 6

(1) an act by the defendant that brings about a harmful or offensive contact to the plaintiff's person
(2) intent on the part of the defendant to bring about harmful or offensive contact to the plaintiff's person, AND
(3) causation

Front 7

Intentional Torts to the Person

Battery - 2 things to remember

Back 7

(1) the defendant need not intent injury...all that is necessary is that the defendant intent to bring about a harmful or offensive contact

(2) the defendant is liable not only when he directly causes harmful or offensive contact, but also when he sets in motion a force that brings about the harmful or offensive contact

Front 8

Intentional Torts to the Person

False Imprisonment - Elements

Back 8

(1) an act (or omission to act) by defendant that confines or restrains plaintiff to a bounded area
(2) intent on defendant's part to confine or restrain the plaintiff
(3) causation

Front 9

Intentional Torts to the Person

Intentional Infliction of Emotional Distress - Elements

Back 9

(1) an act by defendant amounting to extreme and outrageous conduct
(2) intent on the part of the defendant to cause plaintiff to suffer severe emotional distress or recklessness as to the effect of defendant's conduct
(3) causation
(4) damages (severe emotional distress)

Front 10

Intentional Torts to the Property - List (2)

Back 10

(1) trespass to land
(2) conversion

Front 11

Intentional Torts to the Property

Trespass to Land - Elements

Back 11

person in actual or constructive possession of the land must show that another intentionally engaged in an act that physically invades the property

damages need not be shown

Front 12

Intentional Torts to the Property

Conversion - Elements

Back 12

(1) an act by the defendant interfering with the plaintiff's riht of possession in the chatel that is serious enough in nature or consequence to warrant that the defendant pay the full value of chattel
(2) intent to perform the act bringing about the interference with the plaintiff's right of possession
(3) causation

Front 13

Intentional Torts to the Property

Trespass to Chattel - Elements

Back 13

"Conversion Light"

(1) an act of defendant that interferes with plaintiff's right of possession in the chattel (not serious enough to warrant that the defendant pay full value)
(2) intent to perform the act bringing about the interference with plaintiff's right of possession
(3) causation
(4) damages

Front 14

Defenses to Intentional Torts - List (2)

Back 14

(1) self-defense
(2) consent

Front 15

Defenses to Intentional Torts - Self-Defense

Back 15

justified in the use of force against another when and to the extent that he reasonably believes it necessary to defend himself or a 3rd party against the other's imminent use of unlawful force

Front 16

Defenses to Intentional Torts - Consent

Back 16

defendant isnt liable for an otherwise tortious act if the plaintiff consented to the defendant's act

Front 17

Defenses to Intentional Torts

Consent - Inferred

Back 17

consent may be inferred as a matter of usage and custom (minor bumping in crowd) or implied by law (in an emergency situation where there is no opportunity to obtain plaintiff's consent)

Front 18

Defenses to Intentional Torts

Consent - Defendant's Liability

Back 18

defendant may be liable if he exceeds the scope of the consent implied by the occasion, such as by using unreasonable force

Front 19

Harm to Economic and Dignitary Interests - List (5)

Back 19

(1) defamation
(2) invasion of right to privacy
(3) misrepresentation
(4) tortious interference with business relations
(5) malicious prosecution

Front 20

Harm to Economic and Dignitary Interests

Dafamation - Elements

Back 20

(1) statement of fact (as opposed to opinion)
(2) a defamatory effect from the statement
(3) identification of the plaintiff as the subject
(4) publication to a third person
(5) compensable damages to the plaintiff
(6) falsity of the statement, AND
(7) requisite fault by the defendant

Note: FL hasnt decied whether the elements of falsity and fault apply to all defamation cases or only to those against media defendants or involving matters of public concern

DEFENSE: to the extent that falsity isnt part of the prima facie case, trust is a defense

Front 21

Harm to Economic and Dignitary Interests

Invasion of Privacy - 4 Types

Back 21

(1) appropriation of plaintiff's picture or name
(2) intrusion upon plaintiff's affairs or seclusion
(3) publication of facts placing plaintiff in false light
(4) public disclosure of private facts about plaintiff

Front 22

Harm to Economic and Dignitary Interests

Invasion of Privacy - False Light

Back 22

exists where one attributes to plaintiff views he doesnt hold or action he didnt take

the false light must be somethign objectionable to a reasonable person under the circumstances

for liability to attach, there must be publicity

if the matter is in the public interest, malice on the defendant's part must be shown

Front 23

Harm to Economic and Dignitary Interests

Misrepresentation - 2 Forms

Back 23

(1) intentional misrepresentation (plaintiff would have to establish a misrepresentation of a material fact, scienter, and intent to induce the plaintiff's reliance on the misrepresentation, causation, justifiable reliance, and damages)

(9) negligent misrepresentation

Front 24

Harm to Economic and Dignitary Interests

Tortious Interference with Business Relations - Concept

Back 24

FL courts have a tendency to impose a tort duty with respect to contractual performance where there is a reasonably foreseeable risk of harm in connection with contractual performance

Front 25

Harm to Economic and Dignitary Interests

Tortious Interference with Business Relations - Elements

Back 25

results when an existing business relationship, as evidenced by an identifiable agreement, would in all probability have been completed had the defendant not interfered

(1) a valid contractual relationship or business expectancy between the plaintiff and a 3rd party
(2) the defendant had knowledge of the business relationship or expectancy
(3) the defendant's intentional interference included a breach or termination of the relationship or expectancy, AND
(4) the 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

Front 26

Harm to Economic and Dignitary Interests

Malicious Prosecution - Elements

Back 26

(1) institution of criminal proceedings against plaintiff
(2) termination in plaintiff's favor
(3) absence of probable cause for prior proceedings (insufficient facts for a reasonable person to believe that plaintiff was guilty, or defendant, in fact didnt actually believe plaintiff was guilty)
(4) improper purpose (something other than bringing a person to justice)
(5) damages

prosecutors are immune from liability

Front 27

Negligence - Elements

Back 27

(1) Duty
(2) Breach
(3) Causation
(4) Damages

Front 28

Negligence - Duty - Generally

Back 28

a duty of care is owed to all foreseeable plaintiffs

the extent of the duty is determined by the applicable standard of care

EXAMINE:
(1) whether the plaintiff was foreseeable
(2) what is the applicable standard of care (if the plaintiff was foreseeable)

Front 29

Negligence - Duty - Types

Back 29

(1) duties established by statute - if the question raises the violation of an applicable statute as an issue, simply consider whether the statute was intended to protect that type of plaintiff from that type of harm (if so, its violation constitutes negligence per so...a conclusive presumption of duty and breach of duty)

(2) rescuers - a rescuer is a foreseeable plaintiff where defendant negligently put himself or a 3rd person in peril (danger invites rescue)

(3) business invitees - the owner of business premises owes a duty of reasonable care to maintain the premises in a reasonably safe condition for business invitees (this includes reasonale efforts to keep the premises free from transitory foreign objects or substances that might foreseeably give rise to injury)

Front 30

Negligence - Breach - Generally

Back 30

where the defendant's condcut falls short of the duty required by the applicable standard of care owed to plaintiff, the defendant has breached her duty

whether the duty of care has been breached in an individual case is a question that you must support with either specific facts in the essay or from your own real-world experiences

Front 31

Negligence - Breach - Specifics (2)

Back 31

RES IPSA LOQUITOR
(1) the accident that caused the injury isnt the type of accident that occurs without negligence
(2) the instrumentalities that caused the accident were in the defendant's exclusive control
(3) the injury wasn't the plaintiff's fault

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS:
duty to avoid causing this is breached when defendant creates a foreseeable risk of physical injury to plaintiff, either by:
(1) causing a threat of physical impact that leads to emotional distress or
(2) directly causing severe emotional distress that by itself is likely to result in physical symptoms

Front 32

Negligence - Causation - Generally/Two Steps

Back 32

you must show that the conduct was the cause of the plaintiff's injury

TWO STEPS:
(1) actual causation - address 1st, actual causation must exist before the defendant's conduct can be considered a proximate cause of the plaintiff's injuries...BUT FOR test
(2) proximate (legal) causation - the defendant's conduct must also be the proximate cause of the injury...proximate causation can generally be proven by using the FORESEEABILITY test (defendant generally is liable for all harmful results that are the normal incidents of and within the increased risk caused by his acts)

Front 33

Negligence - Causation - Proximate Cause Types

Back 33

(1) Direct Cause - in a direct cause case (where there is an uninterrupted chain of events form the defendant's negligence to the plaintiff's injury), defendant is liable for ALL foreseeable results (and almost all harmful results are foreseeable)

(2) indirect cause case - an intervening force comes into motion after the time of the defendant's negligent act and combines 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 the plaintiff's harm, the defendant is liable for the harm caused (the fact that the extent or severity of the harm wasn't foreseeable doesn't relieve the defendant from liability - the tortfeasor takes his victim as he finds him)

Front 34

Negligence - Damages

Back 34

damages are an essential element of negligence...therefore, damages won't be presumed

look at all possile theories of calculating damages, including personal injury, property damage, and punitive damage

Front 35

Defenses to Negligence - Types (3)

Back 35

(1) contributory negligence
(2) assumption of risk
(3) pure comparative negligence

Front 36

Defenses to Negligence - Contributory Negligence

Back 36

negligence on teh part of the plaintiff that contributes to her injuries

the standard of care for contributory negligence is the same as for ordinary negligence

Front 37

Defenses to Negligence - Assumption of Risk

Back 37

plaintiff may be denied recovery if she expressly assumed the risk of any damage caused by defendant's act

plaintiff must have:
(1) known of the risk AND
(2) voluntarily proceeded in the face of the risk

FL has abolished implied assumption of risk

Front 38

Defenses to Negligence - Pure Comparative Negligence

Back 38

FL has adopted the doctrine of pure comparative negligence - a plaintiff's award will be reduced by the amount of his own negligence, but the plaintiff can recover for the defendant's negligence even if the jury finds the plaintiff primarily at fault for his own harm

EXCEPTION:
a plaintiff may NOT recover any damages if the trier of fact finds that, at the time the plaintif was injured:
(1) the plaintiff was legally drunk (blood/breath alcohol level > 0.08) AND
(2) as a result of such impairment, the plaintiff was more than 50% at fault for his own harm

Front 39

Liability Without Fault

Strict Liability - Elements

Back 39

(1) defendant owes an absolute duty to plaintiff to make te activity or condition safe
(2) defendant breaches that duty
(3) the breach of the duty was the actual and proximate cause of the injury to plaintiff,
(4) plaintiff suffers damages

Front 40

Liability Without Fault

Strict Liability - Dogs

Back 40

in FL, an owner is strictly liable for injuries caused by his dog, regardless of the former viciousness of the dog OR the owner's prior knowledge of such viciousness

Front 41

Liability Without Fault - List of Possibilities (4)

Back 41

(1) strict liability
(2) inherently dangerous activity
(3) failure to warn of a known dangerous condition
(4) product liability

Front 42

Liability Without Fault -

Inherently Dangerous Activity - Elements

Back 42

(1) the activity must involve risk of harm to persons or property
(2) the activity must be one that cannot be performed without risk of serious harm no matter how much care is taken, AND
(3) the activity isnt commonly engaged in the particular community (blasting, manufacturing explosives, etc)

Front 43

Liability Without Fault

Failure to Warn of a Known Dangerous Condition - Elements

Back 43

(1) the defendant created the dangerous condition
(2) the condition wasnt readily apparent to someon who could be injured thereby
(3) the defendant had knowledge of the dangerous condition, AND
(4) the defendant failed to take steps to warn the public of the danger or to avert the danger

Front 44

Liability Without Fault

Product Liability - Theories of Liability (5)

Back 44

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

Front 45

Liability Without Fault

Product Liability - Strict Liability

Back 45

a strict liability action based on supplying a defective product requires proof of duty, breach, actual and proximate cause, and damages

Duty - owed by any commercial supplier of a product

Breach - requires proof that the product sold was in a defective condiction unreasonably dangerous to users

Prevailing feasible alternative test - provides that the product is defective if the defendant coudl have removed the danger without serious adverse impact on the product's utility or price

Front 46

Tort Immunities - Types (2)

Back 46

(1) governmental tort immunity
(2) parent-child immunity

Front 47

Tort Immunities - Governmental Immunity - Generally

Back 47

FL has wavied its immunity to a substantial extent for governmental or ministerial activities, but not for discretionary activities

the government will be liable for the torts of its employees to the same extent as a private employer under the respondeat superior doctrine

Front 48

Tort Immunities - Governmental Immunity - Test

Back 48

planning vs. operational:
the government entity is immune from suit for its planning decisions, it is subject to suit for its operational decisions

Note: municipal immunity is waived to the same extent as state immunity

Front 49

Tort Immunities - Parent-Child Immunity

Back 49

FL eliminates parent-child immunity in cases where:
(1) an unemancipated minor sues his parent for neligence
(2) cases of intentional sexual abuse perpetrated by a parent against the minor child

Front 50

Torts of Others - Types of Liability (3)

Back 50

(1) respondeat superior
(2) torts of employees
(3) permissive use rule

Front 51

Torts of Others - Respondeat Superior - Generally

Back 51

an employer is liable for an employee's torts committed within the scope of employment

**joint and several liability was abolished in 2006**

Front 52

Torts of Others - Torts of Employees - Generally

Back 52

an employer can be held liable when an employee commits a tort either for the employer's own negligence (in hiring, supervising, or retraining the employee) OR under the doctrine of respondeat superior

Front 53

Torts of Others - Torts of Employees - Employer Negligence

Back 53

to find liability under negligent hiring, supervision, or retention of an employee, a plaintiff must establish:
(1) the employer owed a duty of care to the plaintiff
(2) the employer breached that duty
(3) the breach was the actual and proximate cause of teh harm
(4) the plaintiff suffered damages as a result

Front 54

Torts of Others - Torts of Employees - Employer Negligence - Presumptions

Back 54

an employer is presumed NOT to have been ngeligent in hiring an employee if the employer conducted a background investigation before hiring that didnt reveal any information reasonably demonstrating the employee's unsuitability for the particualr work or the employment in general

on the other hand, a decision by an employer not to conduct the investigation doesnt raise any presumption that the employer failed to use reasonable care in hiring an employee

Front 55

Torts of Others - Permissive Use Rule

Back 55

while the general rule is that an auto owner isnt vicariously liable for the tortious conduct of another driving his auto, FL has adopted the permissive use rule:

the auto owner who consents to the use of his auto by another is vicariously liable of the damage resulting from the driver's negligence

EXCEPTION:
FL's dangerous instrumentality doctrine provides that it doesnt matter whether a driver exceeds the scope of consent of the auto owner who permitted the use of his vehicle, the owner is STILL LIABLE

Front 56

Good Samaritan Statute

Back 56

although applicable to all persons (including those licensed to practice medicine) who gratuitously render aid at the scene of an emergency, is virtually meaningless becuase the rescuer generally remains liable for ordinary negligence

Front 57

Liability Based on Alcohol - Generally

Back 57

one who provides alcohol to a person of lawful age generally is NOT liable for damages caused by the intoxication of that person

liability MAY be imposed on:
(1) one who willfully and unlawfully sells or furnished alcohol to a minor
(2) one who knowingly serves a person habitually addicted to the use of alcohol
(3) a proprietor, if he knows or should have known of the likelihood of injuries to patrons caused by disorderly conduct of 3rd parties in general and fails to do anything about it

Front 58

Procedure in Medical Malpractice Cases (6 steps)

Back 58

(1) claimant must first investigate the grounds for the claim and obtain a written opinion by a medical expert verifying that reasonable grounds for a claim exist
(2) at least 90 days before filing suit, the claimant must notify each prospective defendant by certified mail
(3) during this 90-day period, the claimant may not file suit, and the statute of limitations is tolled as to all potential defendants
(4) by the end of the 90-days, the defendant's insurer must 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 of damages
(5) the claimant must accept or reject an offer to admit liability within 50 days
(6) after completion of the presuit investigations, the parties may elect to have damages determined by voluntary binding arbitration (a claimant refusing arbitration may recover net economic damages and limited noneconomic damages)

Front 59

Wrongful Death - Generally

Back 59

all damages caused by the injury resulting in death must be sought in an action or wrongful death brought by the PR of the decedent

FL consolidates survival and wrongful death actions into one lawsuit

in a survival action, the damages recoverable are the traditional damages available in a tort action...this would include traditional tort damages, such as lost wages, property damages, medical expenses, recovery for pain and suffering, and loss of consortium

the surviving spouse and minor children (or all children if there is no surviving spouse) may recover for the loss of teh decedent's companionship and protection and for mental pain and suffering from the date of injury

Front 60

No-Fault Automobile Insurance

Back 60

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 carrer pays these benefits rather than the liability insurance of the party at fault

these benefits - called personal injury protection (PIP) benefits - are paid to a maximum of $10,000 for (1) medical expenses, (2) lost income and earning capacity, and (3) funeral, burial, or cremation benefits

no tort liability exists to the extent that PIP benefits are payable for an injury...PIP benefits that are currently payable or owed by the insurance carrier for expenses that already have been incurred will reduce an award of future medical expenses in a tort verdict

Front 61

Punitive Damages - Generally

Back 61

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

Front 62

Punitive Damages - Employer

Back 62

in the case of an employer, principal, corporation, or other legal entity, punitive damages may be imposed for the conduct of an employrr or agent only if that conduct constituted intentional misconduct or gross negligence and the employer or principal:
(1) actively and knowingly participated in such conduct
(2) knowingly condoned, ratified or consented to such conduct, OR
(3) engaged in conduct that constituted gross negligence and contributed to the loss, damages or injury suffered by the claimant

Front 63

Punitive Damages - Evidence Needed

Back 63

a claimant may not plead punitive damages unless evidence in teh record demonstrates a reasonable basis for their recovery

when punitive damages are claimed, the trial court should bifurcate the punitive damages determination from the other matters to be tried

Front 64

Punitive Damages - Limitations

Back 64

may not exceed the greater of:
(1) 3x compensatory damages awarded to each claimant, or
(3) $500,000

one of the situations where the cap doesnt apply is when alcohol is involved