[T2] E2 // Fl(T) Dt/mm

Front 1

Harm to Economic and Dignitary Interests - List (5)

Back 1

(1) Defamation
(2) Invasion of right to privacy
(3) Misrepresentation
(4) Tortious interference with business relations
(5) Malicious prosecution

Front 2

FLORIDA Defamation

Procedural prerequisites for P bringing a defamation action against a Media-D for libel:

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(1) P must provide written NOTICE to the Media-D, at least 5 DAYS prior to filing the suit, SPECIFYING the alleged false & defam broadcast.

(2) Media-D is afforded 10 DAYS from the receipt of the notice to broadcast a FULL RETRACTION.

(3) If (a) Retraction is made WITHIN 10 Days, AND (b) the orig. publ. was made in GF >> Then the P is permitted to recover ONLY ACTUAL damages (NO PunDam).

Front 3

FLORIDA Defamation

In Florida, the elements of a prima facie case for defamation that the P must prove are: (7)

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1.STMNT of FACT (as opposed to opinion);
2.DEFAMATORY effect from the stmnt;
3.ID of P as the subject;
4.PUBLICATION to a 3rd person;
5.P was DAMAGED by the stmnt;
6.FALSITY of the stmnt; and
7.Requisite FAULT by the D.

➢FL courts have yet to decide whether the elements of falsity and fault apply to all defamation cases or only to those against media Ds or involving matters of public concern.

Front 4

EXPRESS MALICE [FL]

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Express malice is present when the D's PRIMARY MOTIVE for the statement is shown to be INTENT to cause INJURY to P. [Standard of Proof = Preponderance of the Evidence]

Front 5

FLORIDA Defamation

Damages

Back 5

Usually in a defamation action, damages to reputation need not be proved but are presumed. --- FL does not distinguish between libel per se and libel per quod. However, FL does NOT permit presumed damages when a media D is involved.
• If Δ is a media-Δ, presumed damages will NOT be permitted under FL law, and some evidence of ACTUAL injury must be established. --- Actual injury is not limited to out-of-pocket loss, but may also include:
a) Impairment of reputation in the community,
b) Personal humiliation, and
c) Mental anguish and suffering.

Front 6

Defenses to Defamation: [4]

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[i] CONSENT
[ii] TRUTH (Δ’s burden)
[iii] ABSOLUTE Privilege (Identity of Speaker)
[iv] QUALIFIED Privilege (When and Why Statement was Made)

→ In FL, P will be barred from bringing an IIED claim if, either, the Media-D retracted w/in days, or if a D has Ab/Q Privilege.

Front 7

Defenses to Defamation:

ABSOLUTE Privilege

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Absolute Privilege: CANNOT be lost. Ever.
(1) SPOUSES (when communicating to each other)
(2) OFFICIALS of the 3 branches of government (engaged in official duties)
(3) MEDIA (engaged in broadcase or report of public proceedings)

Front 8

Defenses to Defamation:

QUALIFIED Privilege

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A Qualified Privilege CAN be LOST through ABUSE!!
QP >> There is a public interest in encouraging candor. Sometimes the Speaker may have a QP for the following: (4) CROP
(a) Reports of OFFICIAL proceedings
(b) Stmnts in the interest of PUBLISHER (in def. of one's actions, prop., or rep.)
(c) Stmnts in the interest of RECIPIENT (i.e., LoR, Refs)
(d) Smnts in the COMMON interest of Pub. & Recip.

Front 9

QUALIFIED PRIVILEGE [FL]

The existence of a qualified privilege requires that the communication be: [5]

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QUALIFIED PRIVILEGE [FL]
• The existence of a QP requires that the communication be:
(1) Made in good faith; (GF)
(2) By one w/ an interest/duty regarding the subject matter; (I/D-Subject)
(3) Limited to such interest or duty in its scope; (I/D-Scope)
(4) Given appropriately; and (App)
(5) Made in a proper manner. (PM)

Front 10

Other Privacy Torts: (3)

(1) Appropriation
(2) Intrusion Upon Seclusion
(3) Public Disclosure of Private Fact

-Defenses?

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Appropriation:
(1) Δ uses Π’s name or picture W/O PERMISSION;
(2) For D's own COMMERCIAL ADVANTAGE (Δ used π’s likeness for his own economic gain)
* Exception: Newsworthiness

Intrusion Upon Seclusion:
(1) ACT of prying or intruding on the affairs or seclusion of P by D;
(2) Intrusion must be something that would be HIGHLY OFFENSIVE to a reasonable person; and
(3) The thing to which there is an intrusion/prying MUST be "PRIVATE." (i.e., Π must have an EXPECTATION OF PRIVACY
* Note: No trespass requirement

Public Disclosure of Private Fact:
(1) D unreasonably discloses private facts (CONFIDENTIAL INFO) about P to the public (must be disseminated to the PUBLIC not just a 3rd person).
(2) It has to be highly offensive HIGHLY OFFENSIVE to a reasonable person; and
(3) Not of legit public concern.
* Note: Can't be on an element of P's life that is open to public view or on public record. Private matters in public records are absolutely privileged.
* Exception: Newsworthiness

PDPF-Dual Life Fact Pattern: Π operates in two public spheres of activity; information obtained from one sphere to the other is not disclosure (e.g., gay pride guy openly gay at rallies; has not come out at work; secretary sees him at gay rally and tells other workers; secretary not liable for disclosure)

Defenses:
(a) Consent (but Truth is not a defense);
(b) Defamation privileges (AP/QP) apply to FL and PDPF

False Light → NO FALSE LIGHT in FL. (Widespread dissemination of major misrepresentation concerning Π’s character, history, or beliefs that would be objectionable to an average person.)

Front 11

Harm to Economic and Dignitary Interests

Misrepresentation - 2 Forms

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(1) Intentional Misrepresentation (plaintiff would have to establish: (i) Misrepresentation of a material fact; (ii) Scienter; (iii) Intent to induce the plaintiff's reliance on the misrepresentation; (iv) Causation; (v) Justifiable reliance; and (vi) Damages)

(2) Negligent Misrepresentation (At time D made the misrepresentation knew or should have know it was false).

Front 12

Harm to Economic and Dignitary Interests

Tortious Interference with Business Relations - Elements:

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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) 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 13

Harm to Economic and Dignitary Interests

Tortious Interference with Business Relations - Concept:

Back 13

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 14

Harm to Economic and Dignitary Interests

Malicious Prosecution - Elements:

Back 14

(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 D, in fact didn't actually believe plaintiff was guilty)
(4) Improper purpose (something other than bringing a person to justice)
(5) Damages

Prosecutors are immune from liability

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Procedure in Medical Malpractice Cases: (6 steps)

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(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 pre-suit 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).

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What is special about medical malpractice damages?

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Caps have been placed on the recovery of noneconomic damages.

What happens if the D in a Medical Malpractice case refuses claimants offer of voluntary binding arbitration? Recover of noneconomic damages are limited to 500k and attorny's fees of up to 25% of the total award.

How does voluntary arbitration preclude other remedies and limit damages? 1) Net economic damages are limited to past and future med expenses and 80% of wage loss, offset by collateral source payments; 2) noneconomic damages are limited to 250k per incident; 3) punitive damages are not permitted.

What happens if the claimant in a med mal case rejects voluntary arbitration and proceeds to trial? Claimant/π's non-economic damages are limited to $350k.

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Standard of Care for Healthcare Provider:

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The level of care, skill, and treatment that is acceptable and appropriate for a reasonably prudent similar health care provider in like circumstances.

Front 18

Survival of Actions / Wrongful Death COA:

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*FL consolidates Survival and Wrongful death actions into one lawsuit* All damages caused by the injury resulting in death must be sought in an action for WRONGFUL DEATH brought by the PR of the decedent.

SURVIVAL OF ACTIONS: FL lets CoAs survive the death of the P even the survival of intangible personal torts like defamation. However, if the injury that would be the basis for a survival action results in the victim's death, the CoA must be brought under the wrongful death statute.

In a WRONGFUL DEATH / SURVIVAL ACTION, the damages recoverable by the SS and/or MC are the traditional damages available in a tort action... This would include traditional tort damages, such as (i) lost wages, (ii) property damages, (iii) medical expenses, (iv) recovery for pain/suffering, and (v) loss of consortium/compan/protection from the date of the injury.

[[A WD coa is instituted by the PR for the benefit of the decedent's survivors and his estate. The PR may recover for the survivors the value of (a) lost support, (b) loss of decedent's companionship and protection, and (c) mental pain and suffering.]]