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63 Cards in this Set

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What is the basic test for negligence?
1. Duty
2. Breach
3. Causation
4. Damages
What is specific intent?
The goal in acting is to bring about specific consequences.
What is general intent?
The actor knows with substantial certainty that the consequences will result.
What is assault?
1. Affirmative act by defendant
2. Done with intent to place plaintiff in apprehension
3. Of an imminent harmful or offensive contact to his person
4. That actually causes the plaintiff apprehension
What is the doctrine of transferred intent as regards assault and battery?
The intent to inflict a battery satisfies the intent requirement for assault.
What is battery?
1. An act by the defendant that brings about a harmful or offensive contact to the plaintiff's person
2. Intent to bring about harmful/offensive contact to the plaintiff's person.
3. Causation
What elements must you prove to establish a prima facie case for intentional infliction of emotional distress?
1. Act by defendant amounting to extreme/outrageous conduct
2. Intent on part of defendant to cause plaintiff to suffer severe emotional distress or recklessness as to the effect of defendant's conduct
3. Causation
4. Damages
What are the elements of false imprisonment?
1. Act/omission by defendant that confines/restrains plaintiff to a bounded area
2. Intent on defendant's part to confine/restrain plaintiff
3. Causation
What must you show to establish a trespass to land?
Intentional engagement in an act that physically invades the property. No need for damages.
What are the elements of conversion?
1. Act by defendant interfering with plaintiff's right of possession in the chattel that is serious enough in nature/consequence to warrant that defendant pay full value of the chattel
2. Intent to perform the act
3. Causation
What are the elements of trespass to chattels?
1. Act of defendant that interferes with plaintiff's right of possession in chattel that is not serious enough to warrant that defendant pay full value
2. Intent to perform the act
3. Causation
4. Damages
How does self-defense work?
A person is justified in use of force against another when and to the extent that he reasonably believes it necessary to defend himself or a third party against the other's imminent use of unlawful force.
How does duty to retreat work in Florida?
A person who isn't engaged in an unlawful 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 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.
How does consent work in Florida?
A defendant isn't liable for an otherwise tortious act if the plaintiff consented to the defendant's act. The defendant must not exceed the scope of the plaintiff's consent.
How can consent be inferred?
1. By usage and custom
2. By law
What are the elements of a prima facie case for defamation in Florida?
1. A statement of fact
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
7. Requisite fault by the defendant
What is a defense to defamation in Florida?
Truth
What kinds of wrongs are covered under invasion of privacy?
1. Appropriation of plaintiff's picture or name
2. Intrusion upon plaintiff's affairs or seclusion
3. Publication of facts placing the plaintiff in a false light
4. Public disclosures of private facts about the plaintiff
What must a plaintiff establish for intentional misrepresentation?
1. Misrepresentation of a material fact
2. Scienter
3. Intent to induce plaintiff's reliance on the misrepresentation
4. Causation
5. Justifiable reliance
6. Damages
How does tortious interference with business relations work in Florida?
Florida courts tend to impose a tort duty with respect to contractual performance where there is a reasonably foreseeable risk of harm in connection with contractual performance.
What are the elements of intentional interference with a business relationship in Florida?
1. A valid contractual relationship or business expectancy between the plaintiff and a third party (does not apply to speculation regarding future sales to past customers)
2. The defendant had knowledge of the business relationship or expectancy
3. The defendant's intentional interference induced a breach or termination of the relationship or expectancy
4. The breach resulted in a loss to the plaintiff
What are the elements of a prima facie case for malicious prosecution?
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 plaintiff was guilty or defendant didn't believe plaintiff was guilty)
4. Improper purpose
5. Damages
6. Defendant is not a prosecutor
What should you look at when examining duty in the negligence context?
1. Whether plaintiff was foreseeable
2. What applicable standard of care is
If a defendant accused of negligence violated an applicable statute, what must you consider?
Whether statute was intended to protect that type of plaintiff from that type of harm. If so, negligence per se.
What elements of negligence does negligence per se cover?
1. Duty
2. Breach
What elements of negligence does negligence per se not cover?
1. Causation
2. Damages
What is the rule for duty to rescuers in the negligence context?
A rescuer is a foreseeable plaintiff where defendant negligently put himself or a third person in peril.
What is the rule for duty and breach in regards to business invitees injured by a dangerous condition at the business?
To be liable, business must have actual/constructive knowledge of dangerous condition and should have taken action to remedy it.
How can you prove a business had constructive knowledge of a dangerous condition?
1. Dangerous condition existed for such a length of time that, in the exercise of ordinary care, business should've known of the condition
2. Condition occurred with regularity and was therefore foreseeable
What are the requirements for res ipsa loquitor?
1. Accident that caused the injury isn't the type of accident that occurs without negligence.
2. Instrumentalities that caused the accident were in the defendant's exclusive control
3. Injury wasn't plaintiff's fault
What are the elements of negligent infliction of emotional distress?
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
What is the test for actual causation?
"but for"
What is the test for proximate causation?
Foreseeability
How does express assumption of the risk work in Florida?
Plaintiff expressly assumed the risk, and:
1. Knew of the risk.
2. Voluntarily proceeded in the face of the risk.
How does implied assumption of the risk work in Florida?
It doesn't.
What negligence doctrine has Florida adopted?
Pure comparative negligence
What does the negligence doctrine Florida has adopted mean?
Plaintiff's award will be reduced by the amount of plaintiff's negligence, but plaintiff can recover for defendant's negligence even if jury finds plaintiff primarily at fault for own harm
What is an exception to the negligence doctrine Florida has adopted?
Plaintiff may not recover any damages if:
1. Plaintiff was drunk
2. As a result, plaintiff is more than 50% at fault
What are the elements of a prima facie case for strict liability in tort?
1. Defendant owes absolute duty to plaintiff to make the activity/condition safe
2. Breach
3. Causation
4. Damages
What are the types of strict liability in tort in Florida?
Dog bites; failure to warn of a known dangerous condition; inherently dangerous activity; product liability
What are the requirements for the application of strict liability for inherently dangerous activities?
1. Activity involves risk of serious harm
2. Activity cannot be performed without such risk
3. Activity isn't commonly engaged in in the particular community
What are the elements of failure to warn of a known dangerous condition?
1. Defendant created dangerous condition
2. Wasn't readily apparent to someone that could be injured thereby
3. Defendant had knowledge of the dangerous condition
4. Defendant failed to take steps to warn the public of the danger or to avert the danger
What are the theories of product liability?
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)
What are the elements of a product liability strict liability action?
1. Duty (owed by any commercial supplier of a product)
2. Breach (product sold in a defective condition unreasonably dangerous to users)
3. Causation
4. Damages
How do you show that a design is defective?
"Feasible alternative" test - defendant could have removed the danger without serious adverse impact on utility/price
What is the test to determine whether Florida government negligence is actionable?
Planning (not actionable) v. operational (actionable)
In what cases does Florida eliminate parent-child immunity?
1. Unemancipated minor sues for negligence to extent of available insurance coverage
2. Intentional sexual abuse
How does joint and several liability work in Florida?
It doesn't.
How does respondeat superior work in Florida?
Employer liable for employee's torts committed within scope of employment.
What are the causes of actions for employee torts?
1. Employer negligence
2. Respondeat superior
What are the elements of employer negligence?
1. Duty
2. Breach (presumption of non-negligence if background check)
3. Causation
4. Damages
How does liability work for negligent driving of a borrowed car in Florida?
Owner liable for negligence of borrower (permissive use rule) even if borrower exceeds scope of driver's consent (dangerous instrumentality)
When can liability be imposed for the tortious actions of someone you sold alcohol to?
1. Willfully/unlawfully selling to minors
2. Knowingly serving alcoholic
3. Proprietor knows of likelihood of injuries to third parties in general and fails to do anything
What is the procedure for medical malpractice claims?
1. Claimant investigates grounds for claim and gets written opinion from medical expert
2. 90+ days before filing suit, claimant notifies each prospective defendant by certified mail.
3. By end of 90 days, defendant's insurer must deliver either rejection, offer to settle, or offer to admit liability and seek arbitration.
4. Within 50 days, claimant accepts/rejects offer to admit liability
5. After completion of presuit investigations, parties may elect to have damages determined by voluntary binding arbitration; otherwise claimant may recover net economic and limited noneconomic damages
What two actions does Florida's wrongful death action consolidate?
Wrongful death and survival
What can you get in a wrongful death action in Florida?
Lost wages, property damages, medical expenses, pain and suffering, loss of consortium
Widow and children: loss of companionship and protection, mental pain and suffering
Who can file wrongful death action?
Personal representative of decedent
Whose insurer pays out-of-pocket expenses to a person injured in a car accident?
The injured person's insurer
What benefits do an insurer pay to a person injured in a car accident?
Max of $10K for:
1. Medical expenses
2. Lost income/earning capacity
3. Funeral/burial/cremation
What is the standard for punitive damages?
Clear and convincing evidence of intentional misconduct or gross negligence
What are the requirements for punitive damages for employers/corporations?
Conduct was intentional misconduct/gross negligence and employer/corporation:
1. Actively/knowingly participated
2. Knowingly condoned/ratified/consented
OR
3. Engaged in gross negligence and contributed to the damages
What is the cap for punitive damages?
1. 3x compensatory
2. $500K
(whichever is greater)
When does the cap for punitive damages not apply?
Alcohol or other drug was involved