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31 Cards in this Set
- Front
- Back
Where available, a PF can avoid the full RPP (or RPSP) analysis & may be able to utilize a statute
What is the function of looking to a statute in a negligence case? |
-- for PF's particular case
-- proof of statutory violation = conclusive proof of BREACH OF DUTY -- does not leave require PF to show (or jury to understand) the vague, open-ended RPP concept |
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Where available, a PF can avoid the full RPP (or RPSP) analysis & may be able to utilize a statute
In elevator example, how does utilizing a elevator regulation benefit the PF? |
e.g., PF falls down empty chute
-- statute establishes duty (anyone engaged in repair must use barrier, such as yellow tape) and breach (DF repair co did not provide barrier) -- instead of "did DF repair company breach his duty to protect PF" which requires PF to analyze the RPP standard (e.g., cost/benefit analysis) |
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Where available, a PF can avoid the full RPP (or RPSP) analysis & may be able to utilize a statute
When may PF borrow the statute ? |
-- PF can demonstrate, that with respect to a statute
-- Class of Persons: PF is within the class of persons that the statute is designed to protect -- Class of Risk: PF's injury is within the class of risks that the statute is designed to protect |
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Does Statutory Negligence apply in example of woman blowing up neighbor's apt because of lighting a J when woman had left gas on in her apt?
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-- statutory making Js illegal does not meet the Class of Persons / Class of Risk analysis
-- therefore, statutory negligence n/a and PF must litigate under the standard RPP / UTC standard |
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Where available, a PF can avoid the full RPP (or RPSP) analysis & may be able to utilize a statute
What if X swerves over yellow line to avoid kid, causing oncoming car to hit tree? |
-- exception to Statutory Negligence rule: where compliance with statute would be more dangerous than violation
-- crossing over double line does protect same class of person / class of risk, but not appropriate to borrow statute |
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Where available, a PF can avoid the full RPP (or RPSP) analysis & may be able to utilize a statute
What if X fails to stop at red stoplight because having heart attack & T-bones PFs car? Provide another similar example |
-- YES: class of person / class of risk: designed to protect motorists from perpendicular traffic
-- EXCEPTION: to Statutory Negligence rule: where compliance is impossible under the circumstances -- PF cannot use statute & must analyze DF's conduct under RPP/UTC (e.g., did DF have forewarning about condition, did DF diligently take medication) -- e.g., blind pedestrian crosses against light |
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In Florida, what is the negligence standard ...
death of 16yo elevator operator; statute imposes 18yo minimum age for elevator operators |
strict liability -- law designed to protect minors from their inability to protect themselves
e.g., violating child labor laws |
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In Florida, what is the negligence standard ...
train hits car; RR company violated requirement to install RR crossing sign |
negligence per se (= conclusive proof)
-- law designed to protect motorists from train collisions |
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In Florida, what is the negligence standard ...
kid drowns in pool; pool owner violated ordinance regulating pool protections (gate height, etc) |
negligence per se -- law designed to protect kids from pool drowning
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In Florida, what is the negligence standard ...
kid shoots X; gun sale to kid violates ordinance prohibiting sale of guns to minors |
strict liability -- law designed to protect minors from their inability to protect themselves
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In Florida, what is the negligence standard ...
drunk kid kills X driver after leaving open house party; ordinance prohibits open house parties |
negligence per se -- law designed to protect kids from consumption of alcohol / drugs
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In Florida, what is the negligence standard ...
X speeds & weaves through traffic |
-- evidence of negligence -- is not negligence per se (not conclusive proof)
-- statute designed to protect the public in general |
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In negligence analysis, what is the treatment of traffic violations
-- in Florida -- in MBE land |
-- in MBE land, such violations can be Negligence Per Se if Class Risk / Class Persons met
-- in Florida, traffic violations are merely evidence of negligence; PF must prove duty / breach under RPP/UTC analysis |
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In Florida, what are examples of statutes designed to protect the public in general ?
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-- violating traffic regulations
-- leaving sponge inside surgical patient -- violating crime of transmitting STD == ALL are prima facie evidence of negligence, NONE are negligence per se |
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X driving in a way meeting the RPP/UTC standard; hits black ice, crashing car & injuring passenger
Does X have a duty to assist his passenger X ? |
-- general rule: X under no duty to help PF
-- exception: where X created the peril (whether innocently or negligently); then X has duty |
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What kind of pre-existing relationship will create a "duty to rescue"?
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-- innkeeper / common carrier
-- family -- land occupier to invitee |
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When does DF have an affirmative duty to act? Why is this generally true in tort law?
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-- in general, DF never has affirmative duty
-- if choose to drive, then must do so RPP, but can avoid all that by not driving -- if choose to allow visitors on land, then duty, but can avoid by not allowing on land |
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Does Florida have a Good Samaritan law?
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yes, but rescuer liable for ordinary negligence
therefore, any action to help must meet RPP / UTC standard |
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To whom does Florida's Good Samaritan law provide protection?
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-- to health care providers in emergency rooms
-- to persons operating a defibrellator in an emergency |
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When is a medical worker protected by Florida's Good Samaritan law?
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-- in an emergency room & obligated to provide care: health care provider not liable unless acted with reckless disregard for consequences to the life or health of another
-- in an emergency room & voluntarily render care to non-patients: health care provider not obligated unless acted willfully and wantonly |
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what are the exceptions to "no duty to rescue" rule?
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-- where DF creates the peril (whether innocently or negligently)
-- pre-existing relationship: innkeeper / common carrier, family, land occupier to invitee |
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how does one satisfy their "duty to rescue"?
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-- not expected to put own life at risk
-- only required to satisfy duty reasonably: call 911 -- does NOT satisfy unreasonably: in trying to pull drowning X from ocean, crush X's windpipe -- NOT reasonable |
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X sees PF get hit by car. To move PF out of the road, X drags PF dislocating PF's shoulder.
Is X liable to PF for the dislocated shoulder ? |
-- general rule: X under no duty to rescue PF
-- exception: if X does act, X required to conform behavior to RPP / UTC standard -- PF can recover if X's actions did not meet the RPP/UTC standard |
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What is not Negligent Infliction of Emotional distress?
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e.g., car hits you & breaks your legs
entitled to medical costs, wages, pain and suffering the pain & suffering element is compensation for the emotional distress caused by having broken legs |
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When can a PF collect for Negligent Infliction of Emotional distress
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-- fear for one's own safety (eg, near miss); you were in the zone of danger
-- grief or anxiety upon witnessing injury to family member; exception to zone of danger -- MUST HAVE physical manifestation of emotional distress ("impact rule") -- (except Florida re: bystander rule) |
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Can PF collect where DF causes PF to believe death is imminent ?
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-- if DF commits a negligent act that exposes PF to physical harm
-- AND the PF develops a subsequent physical manifestation of emotional distress -- e.g., drunk pilot passes out onto controls; passenger has heart attack or miscarries -- e.g., DR negligently confused patient files & gave PF false diagnosis of AIDS |
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PF is inside her house while her child plays outside.
If DF runs over child, PF can collect if ... |
-- injured person is a close family member
-- (MBE) PF present when injury occurs & PF suffers physical impact -- (Florida) PF sees or perceives injury (or arrives on the scene while injured party still there); no physical impact required |
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At family viewing, Funeral Home accidentally displays body without head.
Can family sue Funeral Home? |
-- physical manifestation NOT required for mishandling of corpse
= Negligent IIED |
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In giving out list of passengers on downed flight, airline rep quickly grabs list and, without checking, reads off names of different (not downed) flight.
Can family of passengers whose names were read collect? |
-- physical manifestation NOT required for erroneous report of relative's death
= Negligent IIED |
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PF buys a coke & after drinking half of it, sees a used condom bobbing in the remaining brown liquid.
Can PF collect? |
-- physical manifestation NOT required when contaminated food item ingested
= Negligent IIED |
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In what circumstances do the FL courts refuse to apply the "impact rule" of negligent IIED?
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-- where emotional distress is the primary foreseeable consequence
-- e.g., bystander sees or otherwise perceives injury to close family member -- e.g., wrongful birth (deformed child) -- e.g., negligent stillbirth (fatal pre-natal injury) -- e.g., breach of fiduciary duty of confidentiality (psychotherapist to patient) -- e.g., legal malpractice related to harm for protracted period of wrongful pre-trial incarceration |