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FLORIDA TORTS DISTINCTIONS PROFESSOR LYRISSA LIDSKY

UNIVERSITY OF MISSOURI SCHOOL OF LAW

Exam Tip 1: Florida torts distinctions are usually tested in essay format.

CHAPTER 1: PUNITIVE DAMAGES AND SELF DEFENSE

A. Punitive Damages

• Available in intentional tort actions at jury’s _________________________________ • Factors to focus on:

o Mental state: _____________________ or wantonness o Nature of conduct: outrage or oppression

B. Self Defense and the Florida “Stand Your Ground” Rule

1. Common Law Rule

o Focus for self-defense is on __________________________________________ of the conduct in response to provocation

o A person has a privilege to use self-defense and may use (i) reasonable force, when she (ii) reasonably _____________________ it is necessary, so long as the force is (iii) reasonably __________________________________________ to the threat.

o A reasonable mistake does not invalidate reasonable belief

2. Florida Statute § 776 — "Stand Your Ground"

o Alters self-defense law to make it _____________________ favorable to defendants:

1) Imposes a reasonable belief ___________________________________ in some circumstances

• I.e., when an intruder breaks into a home or occupied vehicle.

2) No duty to ______________ prior to using deadly force if:

• A person is where he has a right to be; • Is not engaging in criminal activity; and • He reasonably believes it necessary to prevent ______________ or great bodily

harm

3) Immunity

• Actual immunity (not just a defense) from civil suits where justifiable force was used

2 | © 2018 Themis Bar Review, LLC | FL Torts Distinctions

• Defendant will get ____________________________ for costs incurred if found immune

3. Reasonable Belief Presumption

a. Applies when:

1) Unlawful and ____________________________ entry by the intruder into another's dwelling, residence, or occupied vehicle; OR the attempted forcible ____________________________ of another from a dwelling, residence, or vehicle; AND

2) The person who used force ____________________________ or had reason to ____________________________ of the unlawful and forcible entry.

b. MNEMONIC: ______________= Dwelling, Residence or Occupied Vehicle Entry

Residence: where you live

Dwelling: can be a tent, front porch, etc. (broader)

Example 1: Assume Suzanne is sleeping in her car at a rest area near Gainesville, when she awakens to see John trying to break the car window with a hammer. May Suzanne use deadly force against John?

In a majority jurisdictions, we’d look at all the circumstances to see if Suzanne had a reasonable belief that deadly force was necessary and reasonably proportionate to the threat.

In Florida, however, the law would apply the reasonable belief presumption and simply assume she had a reasonable fear of imminent death or great bodily harm because Suzanne was in an occupied vehicle being unlawfully and forcibly entered by John. If John’s family sued for wrongful death, Suzanne likely would not even have to go before a jury but would be able to assert the ____________________________ of Florida's Stand your Ground law. She would also probably get her attorney’s fees.

c. Does NOT apply when:

The person against whom force was used had a ____________________________ to be in the dwelling, residence or vehicle

Example 2: If Defendant shot his own roommate, believing that the roommate was an intruder, Defendant cannot use “Stand Your Ground” reasonable belief presumption. Instead, he will need to establish that he had a reasonable belief based on the facts.

Person against whom force is used is attempting forcible removal of their child, grandchild, or one over whom they have ______________________________________

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__________________________________________ activity taking place in the dwelling, residence, or vehicle by the person using force

Example 3: If you are using your residence as a crack house, you cannot claim the “Stand Your Ground” presumption.

The LEO exception: The person against whom force is used is a law enforcement officer and the person using force knew or reasonably should have known

4. Obligation to Retreat

o Florida has no duty to retreat before using deadly or non-deadly force if:

1) The person using force is in a place she has a right to be; AND

2) ____________________________ believes the use of force is necessary to prevent:

a) Death or great bodily harm to herself or another; OR

b) The commission of a __________________________________________.

Example 4: Carmen is buying a soda at a convenience store when John comes in with a gun and demands the clerk give John all the money in the cash register. May Carmen shoot John, even though she could easily flee through the back door? Did Carmen have a duty to retreat? Under Florida law, the answer is ______________. Carmen is in a place she has a right to be, and she is using force to prevent the commission of a forcible felony.

CHAPTER 2: NEGLIGENCE

A. Duty

1. Foreseeability of Harm in Florida

o Duty owed to those within foreseeable __________________________________________ created by defendant’s conduct

o The actual injury plaintiff suffered need not be foreseeable.

Example 5: Defendant spills bottle of oil in his shop and doesn’t clean it up for many hours. Plaintiff is injured when another customer of the shop slips and falls and loses control of a shopping cart that crashes into plaintiff. Because plaintiff is a customer in proximity to the spill which has been negligently left without cleanup or warning for many hours, it does not matter that the actual injury plaintiff suffered was unforeseeable.


2. Florida's Good Samaritan Act vs. Common Law Assumption of Duty

a. Assumption of Duty

Common law: If you ____________________________ undertake a rescue, you have a duty to use reasonable care in carrying out that rescue.

b. Florida Good Samaritan Act

Ordinary citizens: Provides immunity for a rescuer who acts as a reasonably ____________________________ person when she acts:

a) __________________________________________;

b) In ____________________________; and

c) Without ____________________________ of the injured person

Health care providers of emergency services: Not liable unless acted with ____________________________ disregard for risks to patients.

• Can apply to doctors in ____________________________ settings who respond in emergency services

B. The Standard of Care

1. Physicians’ Negligence in Florida

o Generalists: held to local standard (mnemonic: GeLS) o Specialists: held to national standard (mnemonic: SPiNS)

2. Majority Law

o In most jurisdictions, failing to get a patient's informed consent to a surgical procedure can give rise to a negligence action.

Many jurisdictions apply a reasonable practitioner adhering to accepted standards of medical practice approach; it looks at what doctors ____________________________ do.

Other jurisdictions apply a reasonable patient/material risks approach: What material risks would a reasonable patient be expected to be informed of?

3. Informed Consent in Florida

o No negligence action for failure to provide informed consent may be brought against protected medical professionals if either of the following conditions is met:

The medical professional:


a) Informed the patient of the risks in accordance with the __________________________________________ of similarly situated medical professionals (i.e., those with similar training and experience); AND

b) The information given was such that a reasonable individual would have a general understanding of the ____________________________ of the procedure, the risks associated with the procedure, and any alternatives (mnemonic: NRA); OR

A patient who was not properly informed reasonably would have consented to undergo the procedure under the circumstances if the medical professional had properly provided informed consent.

Example 6: Assume that a podiatrist does not tell his patient that there is a risk her toenail will fall off and will take a year to grow back if he performs a podiatric procedure. Obviously, losing one’s toenails is a substantial risk for a podiatric procedure. However, assume the purpose of the procedure is to remove a malignant melanoma partially under the nail. If the melanoma is not removed, the patient is likely to die. Even though the doctor did not obtain informed consent, he should be immune from suit because the patient reasonably would have undergone the procedure even if the podiatrist had warned of the risk.

o What procedural advantage does Florida’s Informed Consent Law give doctors?

Informed consent is presumed if the doctor:

• Gets consent in writing and signed by the patient (or patient’s representative); and • Provides information about NRA.

This presumption is rebuttable.

C. Negligence Per Se

Replaces the reasonable care standard with the statutory standard

1. How do you decide whether to use the statute?

Under both majority law and Florida law, ask two questions: o Is the type of harm plaintiff suffered is the type the statute meant to __________________? o Is plaintiff is within the class of ___________________ the statute was designed to protect?

2. Procedural effect of the statute in Florida:

a. Penal statute or ordinance?

Violation is ________________________________________________________

b. Other statutes, ordinances, regulations, even those with penal aspect?

Violation is ________________________________________________________


Most traffic violations are non-penal, and are only evidence of negligence.

CHAPTER 3: POSSESSORS OF LAND

Editorial Note 1: There is a chart at the end of this chapter that is important for you to learn and memorize.

A. Trespassers in Florida

• Discovered Trespassers; • Undiscovered Trespassers; • ____________________________ Trespassers; and • Child Trespassers (Attractive Nuisance Doctrine).

B. Discovered Trespassers (DT)

1. Who qualifies?

o ____________________________ or unpermitted entry; o ____________________________ detected or discovered; and o Discovered within ____________________________ before the injury.

2. No landowner liability to DT absent:

o Gross negligence; o ____________________________ misconduct causing injury; or o Failure to warn of a ______________ dangerous condition

3. DT can be treated as invitee when:

o Express invitation to trespasser after discovery; or o Manifested _________________ to hold property open to others pursuing similar purpose

C. Undiscovered Trespassers (UDT)

1. Who qualifies?

o Uninvited entry; o Undetected; and o Remain undetected within ______________ before the injury

2. No liability to UDT absent:

o ____________________________ misconduct causing injury

3. NO DUTY TO WARN undiscovered trespassers, even of known dangerous conditions

D. Impaired Trespassers (IT)

1. Who qualifies?

o Anyone whose faculties are impaired by alcohol (BAC > .08) or drugs


1. No landowner liability to IT unless:

o Engaged in ______________ negligence or ____________________________ misconduct that proximately caused death or injury to the trespasser

Example 7: A rancher sees drunk college students walking across his pasture. He nevertheless turns loose a vicious wild bull into the pasture, even though he could have easily waited until the students had exited he pasture. The bull gores one of the students, whose ability to run away was impaired by alcohol. The ranger is liable.

E. Child Trespassers (CT)

Florida is not as generous to CT as most jurisdictions.

1. General rule in other jurisdictions

Allow CT to benefit from attractive nuisance doctrine

2. Child trespassers in Florida

o A CT cannot avail himself of the attractive nuisance doctrine unless he was actually lured or enticed onto the property by the attractive nuisance.

o A child who trespasses first and then discovers the attractive danger cannot apply the attractive nuisance doctrine.

Example 8: Assume child enters on fenced farm property marked with no trespassing signs and after wandering for a quarter of a mile discovers a lovely pond. The child swims in the pond, which is polluted by toxic chemicals, and suffers severe injuries as a result. If the child was an undiscovered trespasser, is the child likely to be able to recover in a negligence action against the owner of the property?

Answer: ______________. The child is an undiscovered trespasser who was not harmed by intentional misconduct. The owner of the property had no duty to warn. The child cannot take advantage of the attractive nuisance doctrine because he was not lured onto the property by the pond. Instead, the child discovered the pond after trespassing.

F. Invitees

Invitees are owed a duty of reasonable care.

1. Public Invitees

o Those who enter a property thrown open for public use (and are using it for that purpose) o Implied representation that the property has been made ______________ for use


2. Business Invitees

o Those who enter the property to confer a benefit to the ____________________________ (i.e., as a customer)

o Also includes children accompanying business invitees o By statute, ____________________________ are also considered business invitees in

Florida

G. Licensees

1. Invited Licensees

o Social guests and those with an implied invitation o Owed a duty of reasonable care

Example 9: A dinner guest at a private home, or a Girl Scout selling cookies, would be considered an invited licensee.

2. Uninvited Licensees (not a common category)

o Treated as DT o Those on the property for the licensee's own ____________________________ or pleasure o Presence is ____________________________ o Duty owed is the same as the duty owed to discovered trespassers

Warn of known dangerous conditions No intentional misconduct No gross negligence

Example 10: Owen gives tours to the public of his historic home without charge, though he accepts donations toward the upkeep of the home. Ivana, while touring the home, slips on a banana peel dropped by another visitor to the home. Will Owen be liable to Ivana for negligence?

Answer: Ivana is an ______________, who is on the property for a purpose which it has been opened to the public, Owen. Although Owen owes her a duty of reasonable care, Ivana must show that Owen had ______________ or ____________________________ notice of the banana peel that caused her injury.

Example 11: A woman visiting a public beach after the beach was closed was deemed an uninvited licensee after she was assaulted by unknown third parties. The only duty to her on the part of the landowner was to avoid willful harm.


Potential Plaintiff Property Use Example Duty

Public Invitees Enters property to enjoy or use for purpose for which it is held open to the public

Duty of reasonable care

Business Invitees Enters property to provide commercial benefit to owner/ possessor

Shopper in Publix grocery store plus child accompanying shopper; Firefighters included by statute

Duty of reasonable care

Invited Licensees Enters property with permission

Social Guest; Girl Scout at door to sell cookies

Duty of reasonable care (same as for invitees)

Uninvited Licensees Enters property for his own convenience, pleasure; presence is tolerated by owner

Woman walking her dog on sidewalk who steps off into D’s yard; woman walking on city’s beach at time it was closed

Same as duty to discovered trespassers

Discovered Trespassers

Entry for own purpose; Detected within 24 hours of accident

Farmer sees hiker walking across farmer’s pasture, calling for lost dog, shortly before hiker is injured on the property

Only liable if (1) no warning of known dangerous conditions; (2) intentional misconduct; or (3) gross negligence

Undiscovered Trespassers

Enters property without invitation or license; entry undetected within 24 hours before accident

Farmer does not see hiker walking across his pasture but hiker is injured on the property

Only liable if (1)intentional misconduct


CHAPTER 4: CAUSATION AND DAMAGES

A. Causation

1. Causation Requirements

o In Florida, two components:

1) Cause-in-fact (but for or actual causation)

2) Proximate causation (legal cause and foreseeability)

o ____________________________ must be met in order for defendant to be liable to plaintiff in a negligence action; cause-in-fact must be addressed first

2. Proximate Cause

o Florida rule: Whether and to what extent defendant's breach ____________________________ and ____________________________ caused the specific injury that actually occurred

3. Intervening and Superseding Causes

o An intervening cause does not qualify as a ____________________________ cause, and will not cut off liability, if defendant caused the intervening cause.

o For an intervening cause to be a superseding cause that cuts off defendant's liability, the intervening cause must be ____________________________ and not set in motion by defendant.

Example 12: You have a hotel in a high-crime area, and you provide no security for guests at your hotel. If one of your guests is assaulted by a criminal, you cannot say that the intervention by the criminal was unforeseeable intervening cause. Where an intervening cause is foreseeable, it will not supersede and cut off liability.

4. Loss of Chance in Florida

o Unless plaintiff had a better than ______________% chance of survival prior to defendant's tortious conduct, plaintiff cannot recover under the loss of chance doctrine.

Example 13: A doctor negligently diagnoses a patient’s cancer. Had the doctor discovered it when he or she should have, the patient would have had a 30% chance of survival. Instead, the patient only has a 10% chance of survival when diagnosed. The patient dies, and his family does not have a cause of action for wrongful death because the initial chance of survival was less than ______________%.

5. Rear-end collisions in Florida

o Florida applies a __________________________________________ presumption that the ______________ driver in a rear-end collision was the sole proximate cause of the accident.


o The rear driver has the burden of showing one of the following:

1) Lead driver made an abrupt or arbitrary ____________________________ in a manner a reasonable driver would not expect;

2) Illegal ______________ by lead driver; OR

3) ____________________________ failure of rear driver’s car without fault of rear driver.

B. Collateral Source Rule

• A collateral source is any payment to a plaintiff from a third party that pays for plaintiff's injuries suffered from defendant's negligence that might reduce a defendant’s obligation to pay.

• Under traditional rules, defendant doesn’t get the benefit of ______________ insurance payments or ______________ insurance payments, which had been thought to come to plaintiff by their foresight.

o Florida has modified this rule to prevent double recovery. o Payments made to plaintiff by plaintiff’s insurer ______________ considered payments

from a collateral source and are credited against defendant’s liability

UNLESS there is a right of ____________________________ or a right of ____________________________ attached to the collateral source payments

o Plaintiff can also recover any amount plaintiff ______________ to receive the collateral source benefit.

o Examples of collateral sources are social security ____________________________ payments, health insurance payments, disability insurance payments, etc.

______________ insurance is not a collateral source in Florida.

Example 14: Assume Plaintiff is injured in a car accident due to defendant's negligence. Plaintiff undergoes surgery that her health insurance pays $100,000. Because the contract likely has a right of subrogation clause that will allow the insurance company to recover the money from Plaintiff, Plaintiff can recover the $100,000 from defendant in order to pay the insurance company.

Example 15: Assume Plaintiff is injured in a car accident due to defendant's negligence. Plaintiff undergoes surgery that her health insurance pays $100,000. Here, the insurance company has no right of subrogation clause in their contract. Plaintiff cannot recover the full $100,000, but she can recover the premiums she paid to secure the insurance benefit.


C. Punitive Damages

1. Requirements in Florida

o If the case does not involve respondeat superior, plaintiff must:

1) ______________ them; AND

2) Establish by clear and convincing evidence that defendant was ____________________________ guilty of ______________ negligence.

o Gross negligence: Conduct so ____________________________ or wanting in care that it constituted ____________________________ disregard or indifference

o If the case involves respondeat superior, plaintiff can only get punitive damages against the employer if plaintiff establishes:

1) Employee was guilty of ____________________________ misconduct OR gross negligence; AND

2) Employer:

a) ____________________________ or knowingly participated in the employee's misconduct;

b) Ratified, condoned, or consented to the conduct; or

c) Engaged in ______________ negligence contributing to the injury

2. Some punitive damages presumed to be unreasonable in Florida

o Punitive damages are presumed unreasonable if exceed the ____________________________ of:

______________ the compensatory damages; or ____________________________

CHAPTER 5: SPECIAL RULES OF LIABILITY

A. Negligent Infliction of Emotional Distress and Florida's Impact Rule

Limits the ability to recover for negligence that causes emotional distress

1. Direct Injury Claims

Florida plaintiff cannot recover for negligent infliction of emotional distress unless she suffers:

o A physical ______________ or physical ______________ (which can be relatively slight); OR o Manifestation of injury or distress in the form of a severe and discernable

__________________________________________, such as a heart attack.

Example 16: Defendant negligently drives his car into a pedestrian, causing the pedestrian to suffer a sprained ankle; however, the stress of the accident


triggers a severe anxiety neurosis. The pedestrian can recover for the anxiety neurosis because he suffered the physical impact first.

2. Bystander Claims:

o As in other jurisdictions, a plaintiff who witnesses physical injury negligently inflicted upon another may recover upon a showing of three proximities:

____________________________ PROXIMITY—be at the scene ____________________________ PROXIMITY—be there in time to actually observe the

injury ____________________________ PROXIMITY—injured party is a close relative

• Florida determines "close relatives" on a case by case basis

o Also look for ____________________________ symptoms of the emotional distress caused by witnessing the accident.

B. Wrongful Death and Survival Actions

• Wrongful death action: Compensates the people affected by the deceased's death (e.g., the deceased's children)

• Survival action: Allows claims to survive the death of the person who could bring it

1. Florida’s Wrongful Death Act

o Action brought by the __________________________________________ of a deceased person

o Recover damages on behalf of the estate of the ____________________________ person and survivors if negligently killed by defendant

2. Wrongful Death Damages

o Include the following:

Loss of ____________________________; Loss of companionship and protection (only for a surviving ______________); Loss of parental companionship (only applicable if there are minor children, or adult

children when there is no surviving spouse); Medical or funeral expenses; Loss of earnings from the date they were ____________________________ to the day

they ______________, less any amount that would have been paid as support; and/or Loss of prospective net accumulations of the estate (reduced to present value)

o Florida also allows these survivors to recover for mental pain & suffering:

Surviving spouse; ______________ children; All children (including adult children), if no surviving spouse;


Parents of a deceased minor child; and Parents of a deceased adult if there are no other survivors

3. Florida’s Survival Statute

o Florida allows all ____________________________ to survive a person’s death, even those for personal or intangible harms, such as defamation.

C. Recovery for Injuries to Family Members

1. Loss of Parental Companionship Claims

o Available when natural or adoptive parent is ____________________________ disabled o Claimant must be an ____________________________ dependent (often a minor child)

2. Loss of Filial Companionship or Consortium Claims

o Available to ____________________________ when ______________ is permanently disabled

o Recovery limited to time between injury and child’s 18th birthday

CHAPTER 6: EMPLOYER AND VICARIOUS LIABILITY

A. Employer Direct Liability

• When an employee commits an intentional tort, the employer may be directly liable for negligently hiring that employee.

o Not vicarious liability; holding the employer directly responsible

• Florida applies the presumption that the employer was NOT negligent in hiring an employee, as long as the employer conducts a ____________________________ check (meeting certain criteria) that does not reveal any indication that the employee was unsuitable for the position.

o Background check MUST include:

____________________________ background check; Reasonably contact references and former ____________________________; Require a ____________________________ job application; and Interview an applicant.

o If the employee’s responsibilities include driving, the background check must include a __________________________________________ record check for the presumption to apply.

Example 17: An employee of Don’s Pizzeria batters a co-worker. The battered co-workers sues Don’s Pizzeria for negligent hiring of the batterer. Don’s Pizzeria had conducted a criminal background and reference check on the employee, had required a written application, and had interviewed him before hiring. None


of these gave cause for concern. Don’s is presumed to have behaved reasonably (and is therefore not negligent), unless plaintiff can rebut this presumption with additional evidence establishing Don’s negligence.

Employer is not liable for encouraging “ridesharing” by employees that results in injury.

B. Automobile Owners and Florida’s Dangerous Instrumentality Doctrine

• Any automobile and all other motorized vehicles are dangerous instrumentalities. • When you let someone drive your vehicle, you are liable for the torts they commit in the vehicle

if they are driving with your ____________________________ and ______________________.

o It is not relevant whether you are paid to let someone borrow the vehicle.

• Rules for parents and teen drivers:

o Parents are ____________________________ and ____________________________ liable for torts their teen driver commits if the parents sign for the minor's driver's license.

o This liability is in addition to the dangerous instrumentalities doctrine.

C. Dram Shop Liability

A provider of alcohol can be liable for resulting torts of certain people they serve with alcohol.

• Minors: One will be liable for injuries caused when one ____________________________ and ____________________________ sells or furnishes alcohol to a minor.

• Habitually addicted persons: One will be liable for injuries caused when one ____________________________ sells or furnishes alcohol to a habitually addicted person.

D. Immunities

1. State Government Immunity

a. As an employer

The State of Florida is liable for injury to property, persons, or death caused by its employee's negligent act or omission, as long as the employee was acting in the ________________________________________________________________

Example 18: A state employee (a torts professor) drives a bus full of law students on a university-sponsored filed trip to the Florida Supreme Court. Because of the professor’s negligent driving, the bus crashes and several students are injured. Because the professor was acting in the scope of the employment (i.e. teaching torts), the state will be liable for the damage to the students.


b. Personal liability of state employees

Employees of the state are personally liable for their negligence within the scope of their employment when the act:

In ____________________________; With ____________________________ purpose; OR In ____________________________ and ____________________________ disregard of

the safety of others.

2. Parental Immunity from Torts Brought by Minor Children

o No immunity in sex cases o Immunity waived in other cases to extent of liability insurance coverage

E. Liability among Multiple Defendants in Florida

Florida has abolished joint and several liability in most cases, except with regard to intentional torts.

Example 19: Two defendants negligently collide with plaintiff in an intersection collision. Both were negligent. Plaintiff’s damages are $100,000, and jury allocates 60% negligence to one defendant and 40% to the other. The first defendant is liable for no more than $60,000 and the second for no more than $40,000.

CHAPTER 7: DEFENSES TO NEGLIGENCE

A. Comparative Fault

• Florida has ______________ comparative fault.

Example 20: Plaintiff was the driver of a vehicle involved in a three-car collision with drivers X and Y. A jury finds that all three of them—Plaintiff, X, and Y were negligence in causing the accident that resulted in Plaintiff suffering $100,000 in damages. The jury allocates 60 percent of the fault to Plaintiff, 30 percent to X, and 10 percent to Y.

How much does plaintiff recover from X and Y? From X: ___________________; from Y: _______________________. What happens if X is insolvent? The amount is ____________________________.

B. Florida's Seat Belt Defense

• Plaintiff’s failure to wear may be comparative negligence. • When raising the seatbelt defense, defendant must prove three things:

o Plaintiff failed to use ____________________________ and ____________________________seatbelt;

o Nonuse was ____________________________; and


o Nonuse caused or substantially contributed to plaintiff’s damages.

• If requirements are met, the jury will be instructed to allocate a percentage of comparative fault to plaintiff’s failure to wear a seatbelt.

C. Florida Uniform Contribution Among Tortfeasors Act (768.31)

• If joint and several liability applies, a defendant who pays more than his share has a right of contribution.

• The amount of contribution exists only when one of the tortfeasors has paid more than his ____________________________ (that is, proportional) share.

• The fault percentages are allocated against defendants based on “relative degree of fault.”

Example 21: Defendant 1 and Defendant 2 are jointly and severally liable to Plaintiff for $100,000. If Defendant 1 was 70% at fault and Defendant 2 was 30%, Defendant 2 may have to pay the total damage amount to Plaintiff, but can then seek contribution in the amount of $70,000 from Defendant 1.

D. Assumption of the Risk: Exculpatory Clauses in Florida Contracts

Exculpatory waivers are enforceable if:

• ______________ and unequivocal; • Waives only negligence or gross negligence, not intentional torts; and • Applies to ______________.

Exam Tip 2: The defense to an intentional tort is ________________________, while the defense to negligence and strict liability is assumption of the risk.

E. Alcohol or Drug Defense

• If plaintiff is alcohol- or drug- impaired, Florida applies a ____________________________ comparative fault system.

• If the jury determines the impaired plaintiff was more than ______________% at fault in causing his or her own injury, plaintiff may not recover.

Example 22: Drunk driver is injured when another driver runs a red light. May the drunk driver recover? If the jury finds that the drunk driver (BAC > .08) was more than 50 percent at fault in causing the collision, then the drunk driver recovers ____________________________ against the red light runner.

F. Strict Liability

1. Prima Facie Case

o ____________________________ duty to make a person or property safe (absolute duty of care);

o Breach of that duty; o Causation; and o Damage


2. Strict Liability Applies to Dangerous (or ultrahazardous) activities, Animals, and Defective products (Mnemonic = DAD)

3. Animals (Florida Dog-Bite Statute)

o No "one-bite rule" in Florida o Florida applies strict liability when a dog bites a person on ______________ property or

when the person is lawfully on ______________ property. o Possible defense: _______________________ negligence of the bitten person is a defense.

a. Owner can partially avoid strict liability for dog bites.

If the owner puts up a sign that says “____________________________,” the owner will not be strictly liable unless the person is under the age of ______________ or the damages are proximately caused by the owner’s act or omission.

Example 23: Assume dog owner, who has a pet called Fido, takes his dog to PetSmart, where Fido bites a child. Fido had always been a model dog before this, and he had never bitten anyone. Does this matter? ______________. The owner is strictly liable to the injuries Fido has caused the child.

Example 24: Assume owner knows that his dog has bitten the mailman several times before when he delivers the mail to the door. Therefore, the owner puts up a sign that says “BAD DOG” on his front gate. The owner leaves the dog running loose in the yard on the day the owner knows the Fed Ex delivery man is to bring an important package to the door. The dog bites the Fed Ex delivery man when he comes to the door. Is the owner liable to the delivery man?

Here, the owner’s omission is a cause of the delivery man’s injuries, and the injuries are a foreseeable consequences of the owner’s failure to act. Florida’s “BAD DOG” statute should not shield the owner from tort liability.

b. Landlord liability

Landlords are liable for tenants’ dogs who bite if:

The Landlord _________________ of the dog’s dangerous propensities; and The landlord has the ability to ____________________________ the dog’s presence.

CHAPTER 8: PRODUCTS LIABILITY

A. In General

• The umbrella of products liability includes various claims:

o Negligence o Strict products liability o Breach of warranty


o Similar theories (such as negligent misrepresentation or nuisance)

• Three ways a product can be defective for strict liability actions:

o ____________________________ defect o ____________________________ defect o ____________________________ defect

B. Florida Test for Design Defect: Consumer Expectations Test

• A product is deemed defectively designed if plaintiff is able to show that the product did not perform as safely as an ____________________________ consumer would expect when the product is used in the ____________________________ or reasonably ____________________________ manner.

• Florida has rejected the risk-utility test because it poses higher burden on plaintiffs to prove a reasonable alternative design.

o However, parties may still present evidence of reasonable alternative designs and argue whether the benefit of the product’s design outweighed any risks of injury.

C. Florida’s Economic Loss Rule in Products Liability Cases

Applies where the defective product only damages ______________ (only causes an economic loss)

Example 25: Plaintiff purchases a freezer for his business. The top-of-the-line freezer is defective and doesn’t work, causing Plaintiff to have to rent a replacement for two months. Plaintiff can sue for breach of warranty, but not for negligence or for strict liability

D. Defenses

1. No Joint & Several Liability

o No joint and several liability in ____________________________-based products liability cases

o The court enters a judgement against each defendant based on their percentage of fault

2. State-of-the-Art Defense

o In some jurisdictions, the factfinder may consider whether a product meets the state-of-the-art defense at the time of injury or trial in determining defectiveness.

o Florida considers state-of-the-art at the time the product was ____________________________ (not at the time of injury or trial).

3. Government Rules Defense

o Defendants’ compliance with government rules creates a rebuttable presumption that the product was not defective.


Defendant can assert compliance with government safety rules as a rebuttable presumption that the product is not defective if:

• Compliance is ____________________________ as a condition of selling the product; and

• Rules were designed to prevent type of ______________ plaintiff suffered.

o Alternatively, plaintiff can establish a rebuttable presumption of defect by showing defendant’s non-compliance.

4. Misuse and Assumption of the Risk

o Misuse and assumption of the risk by a plaintiff is ____________________________ negligence.

o It reduces, but does not bar, recovery.

CHAPTER 9: OTHER TORTS

A. Defamation (DIPDFF)

1. Elements

o Defamatory communication o Identification of plaintiff o Publication to at least one third party o ____________________________ caused by publication (usually) o Fault (either actual malice or negligence, depending on the status of plaintiff) o Falsity

2. Proof of Falsity in Florida

o ______________ plaintiffs must prove falsity as part of the prima facie case for defamation. o In some jurisdictions, falsity is presumed for plaintiffs who are private figures involved in

matters of private concern.

3. Proof of Fault

o ______________ figures and ______________ officials suing for defamation must prove actual malice.

Actual malice means knowledge that the statement was false or reckless disregard as to whether or not it was true.

o All private figures must show at least ____________________________.

However, if private figures involved in public concerns wish to recover presumed or punitive damages, they must prove actual malice.


Exam Tip 3: Most defamation cases on past Florida bar exams do not involve private figures or matters of private concern. They involve media defendants. Cases involving media defendants inevitably involve matters of public concern. Thus, if you see a case involving a newspaper, assume this is not a private figure with a private concern. Litigation Privileges

4. Privileges

a. Absolute privilege

Protects immunity for attorneys, witnesses, and judges when they make statements in a __________________________________________.

Does not protect statements outside of judicial proceedings

b. Qualified privilege

Attorneys have a qualified privilege (partial protection) from defamation liability for out-of-court questioning of potential witnesses while investigating a ____________________________ lawsuit.

For the qualified privilege to apply, the statements must be _______________________ to the investigation of the underlying lawsuit.

Can lose the qualified privilege by showing express ______________ (i.e., hatred, ill-will, spite, etc.)

5. Notice and Retraction

o Designed to protect newspapers, magazines, broadcasters, etc. so they can do their jobs o ____________________________ notice to media is required, specifying the statements

claimed to be defamatory and giving them a chance to make a timely retraction o Timely retraction limits plaintiff’s recovery to only ______________ damages (no punitive).

______________days is timely for daily publications ______________days is timely for semi-monthly publications ______________days is timely for monthly publications

Example 26: Assume a daily newspaper, the Gainesville Times, publishes a story accusing Professor Jones of having an affair with a student in his class. The story is completely false, and Professor Jones demands a retraction. The Gainesville Times issues a retraction within 10 days that says it did not mean to suggest that Professor Jones had an affair with a student currently in his class. Is Professor Jones barred from seeking punitive damages in his subsequently libel claim against the Times?

______________. The retraction was not full and complete and itself raised a further defamatory implication—that Professor Jones had previously had an affair with a student in his class.


B. Misappropriation or Right of Publicity in Florida

• Survival of Action: ______________years after the death of the person whose name or likeness is appropriated

C. Breach of Fiduciary Relationship

Exam Tip 4: In Florida, as elsewhere, always look to make sure the relationship is a fiduciary one: partner-partner, trustor-trustee, lawyer-client, principal-agent, etc.

1. Elements

o ____________________________ duty exists; o Breach; o Causation (but-for and proximate); o Damages

2. Establishing Breach

Look for failures of:

o Loyalty; o __________________________________________; or o Competence

Example 27: Ann and Dave are business partners in a cupcake bakery. An investor offers Dave $10 million dollars to write a cookbook using the bakery’s secret recipes. Dave secretly writes the book and takes the $10 million without telling Ann. Has Dave breached a fiduciary duty?

Yes, he has breached the duty of ____________________________ by misappropriating a valuable business opportunity of the partnership. He could be forced to share the profits with Ann (perhaps through an equitable remedy of disgorgement).

[END OF HANDOUT]

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