[T1] E2 // Fl(T) N/sl

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Florida Torts

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[T1] E2 FL(T) F12

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Prima Facie case – Negligence:

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To establish NEGLIGENCE, plaintiff must prove 4 elements: (i) The existence of a duty on the part of the defendant to conform to a specific standard of conduct for the protection of the P against unreasonable risk of injury; (ii) Breach of that duty by the D; (iii) An actual and proximate causal relationship between the P’s injury and the D’s breach; and (iv) Damage to the P’s person or property.

DUTY: Negligence – Standard of Care: A person is under a legal duty to act as an ordinary, prudent, reasonable person would when engages in any activity.

BREACH: The issue is whether the D's conduct was reasonable. P will argue that D's conduct was unreasonable and resulted in a breach of his duty to P.

Actual & Proximate cause: To incur liability, a D’s breach must be both the actual and proximate cause of a P’s injuries.

ACTUAL cause – “But-for” test – But-for the D’s negligent conduct, the P’s injuries would not have occurred.

PROXIMATE cause – Foreseeability – To establish that the D’s act was the proximate cause as well as the actual cause of the P’s injuries, P must present an uninterrupted chain of events from the time of the D’s act to the time of the P’s injuries. /// The requirement of proximate causation is to limit liability to only foreseeable consequences of one’s acts. (∆ generally is liable for all harmful results that are the normal incidents of and within the increased risk caused by his acts)

[Note: If multiple acts contributed to cause the Π's injuries, then your proximate cause analysis should include FORESEEABILITY of those acts following the Δ's that contributed to the Π's injuries (i.e., medical malpractice, negligent rescue).]

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A person has a legal duty to act as:

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A person has a legal duty to act as... An ORDINARY, PRUDENT, REASONABLE PERSON when engaged in any activity.

[Δ therefore had a duty to Π to <> as an ordinary, prudent, reasonable person would <>. The issue is whether Δ's conduct was reasonable. Π would argue that a reasonable <> would not have attempted to <>.]

Where the D's conduct falls short of the duty required by the applicable standard of care owed to plaintiff, the D 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.

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Negligence - Causation - Proximate Cause Types:
(1) Direct Cause
(2) Indirect Cause/Intervening Force
(3) Superceeding Cause

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(1) DIRECT Cause case: In a direct cause case (where there is an UNINTERRUPTED CHAIN OF EVENTS form the defendant's negligence to the P's injury), D 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 D's negligent act and combines with it to cause the injury to the P...if the D's NEGLIGENCE CREATED a FORESEEABLE risk that an intervening force would CONTRIBUTE to the P's harm, the D is LIABLE for the harm caused - i.e., the fact that the extent or severity of the harm wasn't foreseeable does not relieve the D from liability; the tortfeasor takes his victim as he finds him. (Ex: Negligent rescue, Medical malpractice)

(3) SUPERCEEDING Force case: An intervening force comes into motion after the time of the original defendant's negligent act and it is a force so UNFORESEEABLE that it CUTS-OFF the original tortfeasor's liability for P's injuries after the unforeseeable/superceeding act. (Ex: Acts of god, criminal acts)

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Other Types of Proximate Cause - Issues with proving Causation:

- What is an Intervening Force?
- What is a Superseding Cause?
- When do you use the "Substantial Factor" Test?

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Proximate Cause = Foreseeability: ∆ will be liable for all foreseeable harm caused by his negligent conduct.

INTERVENING Force:
If the intervening force was foreseeable, D will be liable.
= Negligent rescue
= Subsequent disease
= Subsequent medical malpractice.

SUPERSEDING Cause:
An unforeseeable, intervening cause that breaks the chain of causation and relieves tortfeasor of all liability.
= Crim acts of 3P (2)
= Intentional torts of 3P
= Extraordinary forms of neg. conduct
= Acts of God.

"Substantial Factor" Test:
Use the "substantial factor" test when:
(a) There are 2 or more Ds that result in the injury to P; and
(b) Each action taken alone would have been sufficient.
= This corrects the mechanical "but for" application which would limit liability in these situations.

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What happens when there are several Ds, each acting independently, but can't identify which Ds' conduct actually caused P's injury??

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Each D's conduct may be regarded as a cause-in-fact of P's injury

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Defenses to Negligence - Types: (3)

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(1) Contributory negligence
(2) Assumption of risk
(3) Pure comparative negligence

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(Canned) Damages
Paragraph:

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(Canned) Damages:

(1) “Assuming that ALL or SOME of the Ds are LIABLE, the extent of their liability will depend on the AMOUNT of the DAMAGE AWARD and their RESPECTIVE DEGREES of FAULT...

(2) The jury must ENTER A JUDGEMENT AGAINST EACH D on the basis of each party's percentage of fault...

(3) If P was found to be CONTRIBUTORILY NEGLIGENT, the P will be assigned a percentage of fault by the jury, and the damage award will be reduced accordingly.

(4) For causes of action that accrue on or after April 26, 2006, Florida has abolished joint and several liability.” Fla. Stat. § 768.81(3)

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Statutory Standards of Care:
1. Strict Liability
2. Negligence Per Se
3. Prima Facie Evidence of Negligence

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1-- STRICT LIABILITY: When the statute is designed to protect a particular class from their inability to protect themselves.

2-- NEGLIGENCE PER SE: When statute establishes a duty to take precautions to protect a particular CLASS from a particular injury/HARM. (Class of Person/Class of Harm Test).

3-- In FL, all other statute violations are just PRIMA FACIE EVIDENCE OF NEGLIGENCE (Includes traffic violations.)

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Negligence: Breach - RES IPSA LOQUITOR

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RES IPSA LOQUITOR
(1) the accident that caused the injury isn't 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 Pf's fault

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Negligence: Duty - (3) Special Situations:
(1) Statutes
(2) Rescuers
(3) Business Invitees

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(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 P from that type of harm (if so, its violation constitutes negligence per se… A conclusive presumption of duty and breach of duty)

(2) Rescuers - A rescuer is a foreseeable P where D negligently put himself or a 3rd person in peril (e.g., "danger invites rescue")

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

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Negligence: Duty

No affirmative duty to aid a P unless: (4)

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[Duty] Standard of Care: Legal obligation to conform to a standard of conduct for the protection of others against unreasonable risk.

No affirmative duty to aid a P unless: (4)

(1) D's negligent conduct placed P in the position where she requires aid;
(2) D starts to take action- must continue to act reasonably (can't leave P in worse position);
(3) Gratuitously promises to give aid must exercise reasonable care;
(4) Special relationship.

-FL Good samaritan statutes limit liability of rescuers - kind of - Rescuer will still be liable for ordinary negligence.

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Duty to UNDISCOVERED Trespassers (not invited and not discovered w/in 24 hrs)

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UNDISCOVERED Trespasser = Not invited and not discovered w/in 24 hrs

Landowner must refrain from intentional misconduct that proximately causes injury.

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Duty to DISCOVERED Trespassers:

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DISCOVERED Trespasser = Not invited, but presence on land discovered w/in 24 hrs.

Duty - Landowner must:
(1) Refrain from gross negligence or intentional misconduct that proximately causes injury; and
(2) Warn of dangerous conditions that are known by landowner, but not readily observable by others.

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Uninvited Licensee (FL)

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UNINVITED LICENSEE = Discovered Trespasser

In FL, persons who choose to come onto the property solely for their own convenience w/o invitation and are owed the same duty as a Discovered trespasser:

Duty to UNINVITED LICENSEE (FL) - Landowner must:
(1) Refrain f/ gross negligence or intentional misconduct that proximately causes injury; and
(2) Warn or dangerous conditions on property known to landowner, but not readily observable to others.

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"Social Guests" in FL are known as what? What duty are they owed?

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Social Guests = LICENSEE BY INVITATION = Invitee

In FL, social guests are called "LICENSEE BY INVITATION" and they are treated as INVITEES and owed a DUTY OF REASONABLE CARE under the circumstances.

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FL Statutory duty owed to BUSINESS INVITEES:

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FL Statutory duty owed to BUSINESS INVITEES:
Business owners owe a duty of reasonable care to maintain the premises in a reasonable safe condition for the safety of business invitees.

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Business Invitee COA for Negligence against a Commercial Landowner - (4) Elements:

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Claimant/Business Invitee (P) in a negligence cause of action against a commercial landowner/business (D) has the burden of proving (4) elements:

1) Business owed a duty to the claimant;

2) Business acted negligently by failing to exercise reasonable care in the maintenance, inspection, repair, warning, or mode of operation of the business premises; AND

3) The failure to exercise reasonable care was a legal cause of the loss, injury or damage;

4) Damages

• Conditions that contribute to injuries to a P off the commercial landowner's premises should be evaluated under the established negligence principles, regardless of whether the conditions are artificial or natural. (Note: does not apply to residential homeowners)

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Police and Firefighters are treated as ______ in FL during the discharge of their duties.

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Police and Firefighters are treated as INVITEES in FL during the discharge of their duties. And therefore, as invitees, they are owed a duty of reasonable care under the circumstances.

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Attractive Nuisance

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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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Vicarious Liability? [6] Situations:
1] Respondeat Superior
2] Independent Contractors
3] Partnerships
4] Automobile Owners [FL]
5] Dramshop Act [FL]
6] Parents

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• Respondeat Superior: Employer is vicariously liable for tortious acts of employee occurring within the scope of employment (and minor deviations). --- But excludes intentional torts, unless force is authorized in employment (bouncer), friction is generated by the employment (bill collector), or employee is furthering business of employer.

• Independent Contractor: Principal is liable for contractor ONLY if the work involves inherently dangerous activities or the duty is non-delegable, e.g. the duty to keep premises safe for customers (i.e., common carriers and innkeepers).

• Partnerships: Vicarious liability for partners's tortious conduct if committed in scope & course of affairs of partnership.

• Automobile Owner [FL]: Owner is liable for tortious conduct of people using your car under the "Dangerous Instumentality" Doctrine.

• Dramshop Act: Tavernkeeper liable for injuries resulting from vendee's intoxication. FL Rule: [3]

• Parents: Not vicariously liable for tortious conduct of children at CL unless child acting as agent for parent. BUT- Parent can be liable for own negligence in allowing child to do something = Negligent Supervision (i.e., something dangerous w/o proper instruction. If parent has notice of child's tendency to injure another's person or property, may be liable for not exercising due care to mitigate such conduct).

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Torts of Others - Torts of Employees - Generally:

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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.

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Torts of Others - Torts of Employees - Employer Negligence:

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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) Employer breached that duty
(3) The breach was the actual and proximate cause of the harm
(4) P suffered damages as a result

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

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

On the other hand, a decision by an employer not to conduct the investigation doesn't raise any presumption that the employer failed to use reasonable care in hiring an employee.

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Punitive Damages - Employer:

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In the case of an employer, principal, corporation, or other legal entity, punitive damages may be imposed for the conduct of an employer 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.

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Duty to control 3rd Parties:

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1) Parent must exercise reasonable care to control minor child to prevent child from intentionally harming others or creating unreasonable risk of bodily harm
2) Master must exercise reasonable care to control servant while acting outside the scope of employment into prevent servant from intentionally harming others or creating unreasonable risk of bodily harm .

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Standard of care for children

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the reasonable person standard takes age into account. Reasonable child of the same age, education, intelligence, and experience. But kids performing adult activities- driving, boating, etc. must conform to the adult standard of care.

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Violation of Traffic Ordinance [FL/Minority Rule]

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Minority/FLORIDA Rule: Florida courts follow the MINORITY RULE for traffic regulations --- In Florida, violation of the traffic ordinance results ONLY in PRIMA FACIE EVIDENCE of NEGLIGENCE that MAY BE REBUTTED by the D.

[Majority Rule: Most courts adhere to the rule that violation of a statute is negligence per se, establishing a conclusive presumption of duty and breach of that duty. -- Accordingly, a plaintiff has to establish only causation and damages to satisfy a prima facie case for negligence.]

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In FL, failure to wear a seatbelt is...?

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In FL, failure to wear a seatbelt is... Evidence of contributory negligence.

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Florida Good Samaritan statute:

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• The FLGS§ exempts anyone (including those licensed to practice medicine) who voluntarily and gratuitously renders emergency treatment from liability- AS LONG AS they EXERCISE ORDINARY CARE. However, liability will remain for ordinary negligence- because where one ELECTS TO ACT for the benefit of another, one is deemed to have ASSUMED the DUTY to act like an OPRP. (i.e., FLGS§ is totally fucking pointless and meaningless.)

• NEGLIGENT RESCUERS: FL courts have routinely held that negligent rescuers are FORESEEABLE and their actions do NOT relieve the original tortfeasor of liability for his negligence OR for the additional injuries caused by the negligent rescue.

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Assumption of Risk [FL]:

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Implied Assumption of Risk: Florida has abolished implied assumption of risk.
• “Traditional” Assumption of Risk: In Florida, traditional assumption of the risk situations must be broken down into 2 categories/situations:
• Situation #1:
When the D has only a LIMITED DUTY to P b/c of P's KNOWLEDGE of the RISK. --- Here, a court may protect the D simply by holding that the D did not breach his limited duty of care;
•Situation #2:
If the P has BEHAVED UNREASONABLY--- Here, the P is CONTRIBUTORILY NEGLIGENT and damages will be apportioned under the FL's PCN statute.

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FL Parent-child Immunity:

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Florida retains parent-child immunity, but does NOT apply it to (i.e., there's no parent-child immunity for the following):
(i) INTENTIONAL TORTS where the child is EMANCIPATED, or
(iii) The extent of INSURANCE coverage (usually automobile cases), or
(iii) Cases of SEXUAL ABUSE against a child by a parent.

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Alcohol/Drug Intoxication: P may not recover if:

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Alcohol/Drug Intoxication: P may not recover if:
1) Intoxicated of BAL > .08% and
2) More than 50% at fault for her own harm

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Liability Based on Alcohol - Generally:

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One who provides alcohol to a person of lawful age generally is NOT liable for damages caused by the intoxication of that person. >>> However, 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.

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Entity of the State – Defense of Sovereign Immunity:

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D, as an entity of the state my have a defense of sovereign immunity. However, the FL Constitution, provides a waiver of the state’s traditional immunity to lawsuits.

In FL, by statute, a suit may be brought against the state, including each of the 67 counties, and municipalities. However, the statute places a $200K cap on damages per plaintiff, and a $300K cap per incident.

The test to determine whether a government entity’s alleged negligence is actionable is the “PLANNING V. OPERATIONAL" TEST: While the government entity is immune from suits for its planning decisions, it is SUBJECT TO SUIT for its NEGLIGENT OPERATIONAL decisions.

PLANNING Decisions = Immunity (Not subject to suit)
OPERATIONAL Decisions = Subject to Liability ($200K cap)

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Punative Damages [FL]

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(1) A claimant may NOT PLEAD PunDam UNLESS evidence in the RECORD demonstrates a REASONABLE BASIS for their recovery.

(2) P must prove that D acted INTENTIONALLY or with WILLFUL, WANTON or GROSS (negligence) MISCONDUCT.

(3) The SOP for proving PumDam is "CLEAR & CONVINCING."

(4) Florida has restricted the recovery of PunDam in actions based on negligence.

(5) Generally the CAP on PunDam is (i) the greater of 3x Compensatory award OR (ii) $500K.

• NO CAP for (a) INTENTIONAL TORTS (i.e., if there was specific intent to harm P and D did in fact harm P), or (b) if D was INTOXICATED* at the time of injury causing event to P (i.e., damages consequences for being impaired by alcohol or drugs at the time of incident).
• MAY EXCEED the cap for C/H/E abuse if P offers C&CE to rebut the presumption that award is excessive.

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Punitive Damages - Standard or Proof? Caps on Punative Damages?

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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.

Punitive Damages - Limitations may not exceed the greater of:
(1) 3x compensatory damages awarded to each claimant; or
(2) $500,000

--One of the situations where the cap doesn't apply is when alcohol is involved.

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What is Dangerous instrumentality doctrine?

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Owner of instrumentality capable of causing death or destruction must answer for its misuse by anyone operating it with owner's knowledge and consent.

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What is the theory of negligent entrustment?

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Imposes liability on supplier of a chattel who provides something for use by the other person who knows or has reason to know that the person supplied is likely because of youth, inexperience, or otherwise to use the chattel in a manner involving unreasonable risk of physical harm to user or other foreseeable persons. Actual or constructive notice of a dangerous condition is irrelevant only if the premises are operated in a negligent mode that could reasonably cause the business owner or possessor to anticipate that dangerous conditions would arise from the mode of operation. Also applies to car owner who allows another to drive.

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Torts of Others - Permissive Use Rule:

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While the general rule is that an auto owner isn't vicariously liable for the tortious conduct of another driving his auto, FL has adopted the permissive use rule:

FL 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 doesn't 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.

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Modified No Fault Auto Insurance:

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FL has adopted a MODIFIED NO FAULT INSURANCE. The injured person's (π) insurance must pay out of pocket expenses, regardless of fault, to a max of $10k. Injured may recover for pain+suffering, mental anguish, & convenience if he has suffered (i) significant and perm loss of important bodily function, (ii) perm injury, (iii) signif/perm disfigurement, or (iv) death. Injured person may also sue in tort to recover (a) med expenses and (b) lost income in excess of the $10k in benefits paid by insurance carrier.

FL (Modified) NO FAULT INSURANCE: 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.

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.

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NIED (FL) – Modified “Impact Rule”

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NIED: FL follows MAJORITY rule that there must be a physical injury to state a claim. ---- FL also generally, requires an actual physical impact to state a claim. --- *However, FL has narrowly modified the “Impact Rule:” >>> NO impact required if there are physical injuries caused by anxiety about safety of another if such injury is reasonably foreseeable and proximately caused by the D’s negligence.

In addition to foreseeability, 3 specific criteria must be established:
(1) D negligently injured a party w/ whom the P has an especially close emotional attachment.
(2) The negligent injury occurs within the sensory perception of the P; and
(3) P suffers a causally connected, Clearly discernible physical impairment following the physical trauma.

Note: A party w/ whom the P has a especially “Close emotional attachment” → means family members such as a parent, child, spouse; Recovery for “significant others” has been denied.

FL NIED EXCEPTION→ When emotional distress is caused by ingestion of contaminated food or drink then =NO physical impact is required.

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NIED: Bystanders may recover even if there is no "impact," if there are physical injuries cause by D's negligence -- But to recover, Bystander/P must prove: [3]

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1. D negligently injured a person with whom P has a SPECIAL RELATIONSHIP relationship;

2. Injury occurs w/in the SENSORY PERCEPTION of the P/Bystander (Includes arriving on the scene while injured party is still there); AND

3. P/Bystander suffers a causally CONNECTED, CLEARLY DISCERNIBLE PHYSICAL IMPAIRMENT following the trauma.

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Liability Without Fault - List of Possibilities: (4)

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(1) Strict liability
(2) Inherently dangerous activity
(3) Failure to warn of a known dangerous condition
(4) SL Theory in a PL case.

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Liability Without Fault

Strict Liability - Elements:

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

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Liability Without Fault

Strict Liability - Dogs

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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.

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Liability Without Fault -

Inherently Dangerous Activity - Elements:

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(1) 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 isn't commonly engaged in the particular community (blasting, manufacturing explosives, etc)

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Failure to Warn of a Known Dangerous Condition:

Elements (4)

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In order to have a cause of action for failure to warn of a known dangerous condition, P must allege that:
(1) D CREATED the dangerous condition;
(2) The condition was NOT readily APPARENT to someone who could be injured thereby;
(3) D had KNOWLEDGE of this dangerous condition;
(4) D FAILED to take steps to WARN the public of the danger or to AVERT the danger.

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Nuisance

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• Private nuisance:
1. Substantial interference: measured by average person in community
2. Unreasonable interference: injury must outweigh D's benefit
3. With another's use & enjoyment of land

• Public nuisance:
1. Unreasonable interference
2. With health, safety, or property rights of community
3. P suffered unique harm not suffered by public at large

• Remedies:
1. Damages (most common)
2. Injunction: if $$ isn't enough, or nuisance will cause irreparable injury, ct will balance intersts

• Defenses:
1. Legislative authority (zoning) is persuasive but not an absolute defense
2. Only responsible for nuisance directly attributable to you
3. Contributory negligence no defense
4. "Coming to the nuisance" doesn't bar an action.

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Wrongful Death:

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A wrongful death action is instituted by the personal representative for the benefit of the decedent's survivors and his estate. The representative may recover for the survivors the value of lost support, loss of decedent's companionship and protection, and mental pain and suffering.

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Duty - Common Carrier / Innkeeper [FL]

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Held to a VERY HIGH standard of care; will be liable for slightest negligence, but the Plaintiff (π) MUST be a passenger/guest.

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Remedy/Damages - Worker's Compensation [FL]

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EmployERs are required to obtain Worker's Compensation insurance to cover EmployEE injuries arising out of and in the course of EE's employment. It is the EE's *exclusive* remedy vs. ER or co-worker (unless: see below) and provides compensation to EE regardless of fault or negligence.

(WC exclusive remedy - Unless: Gross negligence, willful, wanton misconduct or unprovoked physical aggression)