Florida Tort Distinctions
Terms in this set (46)
Intentional Torts: intentional infliction of emotional distress
MSR: Prima facie case
1. extreme & outrageous conduct
2. intent of D to cause severe emotional distress, or recklessness as to D's effect
3. causation AND
4. damages - severe emotional distress
FL: recognizes IIED. Physical impact or manifestation of psychological trauma NOT REQUIRED
Defenses to intentional torts: self-defense, when is defense available?
MSR: Substantial majority of courts hold that one need not attempt to escape, but can stand his ground (and even use deadly force to precent death or serious bodily harm to himself). Growing TREND would impose DUTY TO RETREAT before using deadly force where this can be done safely unless act is in his own home.
FL: not engaged in criminal activity & attacked in any place that right to be = no duty to retreat and right to use or threaten to use force, including deadly force, if reasonably believes necessary to prevent death or great bodily harm to herself or another to stop the commission of a forcible felony (Fla. Stat. 776.012).
Can use or threaten to use force reasonably believes necessary for self defenses (or defense of another).
Justified ONLY IF reasonably believes force necessary to prevent imminent death or great bodily harm to herself or another or prevent imminent commission of forcible felony.
Defenses to intentional torts: reasonable belief
MSR: Most states require actor to only rsbly believe as to other parties actions
FL: presumed to have rsbl fear of death or great bodily harm to herself or another if:
- person unlawfully and forcefully entered dwelling, residence, or occupied vehicle, or attempted to remove another against person's will from these places
- person who uses or threatens to use force knew or had reason to believe that unlawful and forcible entry or act occurred or was occurring (Fla. Stat. 776.013)
Defenses to intentional torts: defense of property
MSR: one may use reasonable force to stop commission of tort against her property, but cannot use force that will cause death or serious bodily harm.
FL: Use of force--except deadly force--justified to protect person's property based on reasonable belief such conduct necessary to prevent or terminate tortious or criminal interference w/ property. Property must be in the lawful possession of actor or her family. There is no duty to retreat if she is in a place where has a right to be. Deadly force is not justified without reasonable belief that such force is necessary to prevent imminent commission of forcible felony (Fla. Stat. 776.031)
Defenses to intentional torts: privilege of arrest, shoplifting detentions
MSR: shopkeeper privilege to detain suspects for investigation.
- Must be rsbl belief as to facts of theft
- conducted in rsbl manner & only non-deadly force can be used
- only for rsbl period of time and only for making investigation
FL: privilege also applies to farmers and mass transit agents (Fla. Stat. 812.015)
Defamation: prima facie case
MSR: when involves matter of public concern, P must show falsity and fault.
FL: requires proof of falsity and fault in ALL defamation actions (Jews for Jesus v. Rapp, 2008 FL Supreme Court case)
Defamation: who may be liable, FL notice requirement
At least 5 days before institution of civil action for publication or broadcast of libel or slander, P must serve written notice on media D, specifying alleged false and defamatory article or broadcast.
If newspaper, periodical, or radio or TV station fully RETRACTS libel w/in 10 days of receipt of notice, and if original publication or broadcast was made in GOOD FAITH, then only actual damages can be recovered (Fla. Stat. 770.01 and .02)
Defamation: loss of qualified privilege through abuse
MSR: qualified privilege can be lost if statement not w/in scope of privilege or if speaker acted w/ malice. "Malice" is statement made with
(1) knowledge it was untrue AND
(2) reckless disregard as to truth or falsity
- D bears burden of proving privilege exists. If privilege qualified, P bears burden of proving privilege lost through excessive publication or malice.
FL: "Malice" sufficient to defeat qualified privilege is CL express malice, rather than New York Times actual malice.
- Express malice present when primary motive for statement shown to be intention to injure P
- NYT standard of proof for actual malice is C&C evidence
To overcome CL qualified privilege, P only required to demonstrate express malice by preponderance of evidence (Nodar v. Galbreath, 1984 FL Supreme Court case)
Invasion of right to privacy: publication of facts placing P in false light
MSR: prima facie for invasion of privacy: publication by D of facts placing P in false light:
1. publication of facts about P by D placing D in false light in public eye
2. "false light" something that would be highly offensive to reasonable person under circumstances AND
3. malice by D where published matter is in public interest
FL: does not recognize tort of publication of facts placing P in false light bc largely duplicative of defamation. Defamation already cognizes concept that literally true statements can be defamatory where they create a false impression (known as defamation by implication). W/o any of the first amendment protections attendant to defamation, tort of publication placing P in false light has potential to chill speech bc type of conduct prohibited is not entirely clear. (Jews for Jesus v. Rapp, FL Supreme Court)
Interference w/ business relations: no limited to existing Ks
MSR: P has c/a not only for interference w/ existing Ks but for interference w/ probable FUTURE business relationships for which P has rsbl expectation of financial benefit.
FL: requires EXISTING buz relationship evidenced by actual identifiable agreement that in all probability would have been completed had D not interfered.
- No c/a where "relationship" speculative regarding future sales to past customers
(Ethan Allen v. Georgetown Manor, 1994 FL Supreme Court)
Negligence: prenatal injuries
MSR: prenatal injuries actionable; fetus must have been viable at time of injury. out states allow wrongful death action if fetus died from injuries.
FL: both parent and child have action for prenatal injuries, provided child born alive
- Fetus dies: parents cannot bring wrongful death action for death
- Can bring "negligent stillbirth" action for mental pain and anguish damages and medical expenses incident to pregnancy
(Tanner v. Hartog, 1997 FL Supreme Court)
MSR: Professional required to possess and exercise knowledge and skill of member of profession in good standing in similar communities. For medical, "national" standard of care applies.
FL: Doctors & HC providers: FL imposes standard of care based on "acceptable and appropriate by rsbly prudent similar HC provider in light of all relevant circumstance" (766.102).
FL has detailed procedural framework for bringing med mal claims against HC
Negligence: professionals, duty to disclose risks of treatment
MSR: Doctor proposing course of treatment or surgical procedure has duty to provide patient w/ enough info about its risks to enable patient to make informed consent to treatment. If undisclosed risk serious enough that reasonable person in patient's position would have w/held consent to treatment, doctor has breached this duty.
FL: HC provider not liable for failure to get informed consent if patient either:
1. received enough info so reasonable person would have general understanding of procedure, alternatives, risks OR
2. would have accepted treatment has he been advised as required (766.103)
Negligence: duty of possessor to those off premises
MSR: General rule is landowner owes no duty to protect one outside premises from natural conditions on land and no duty owing for artificial conditions. EXCEPTIONS:
1. landowner liable for damage caused by unreasonably dangerous artificial conditions or structures abutting adjacent land
2. landowner has duty to take due precautions to protect persons passing by from dangerous conditions
FL: conditions on landowner's commercial property that contribute to injuries to P off premises should be evaluated by established principals of negligence law, regardless of whether conditions are natural or artificial. Owner of commercial property owes duty to stop foliage from obstructing driver's view of sidewalk when entering and existing property. Residential landowners not subject to this duty if they do not permit foliage or other conditions on their land to extend beyond its boundaries.
Negligence: duty owned discovered trespassers
MSR: once landowner discovers trespasser, under duty to exercise ordinary care to warn trespasser of, or make safe, artificial conditions known to landowner that involve risk of death or serious bodily harm and that trespasser unlikely to discover. No duty owned for natural conditions and less dangerous artificial conditions.
FL: "discovered trespasser" is person who enters property w/o express or implied invitation, and actual presence was detected w/in 24 hours preceding accident. To avoid liability to discovered trespassers, landowner must refrain from gross negligence or intentional misconduct that proximately causes injury and must warn of dangerous conditions that are known but no readily observable by others. If trespasser legally under influence of alcohol or drugs, landlord owes no duty to warn of dangerous conditions but is still liable for gross negligence or intentional misconduct. (Fla. Stat. 768.075)
Negligence: attractive nuisance doctrine
MSR: most jurisdictions have substantially revised AND foreseeability of harm to child is basis of liability and element of attraction is important only insofar as indicating presence of child should have been anticipated by landowner.
FL: requires P have been lured onto premises BY dangerous condition (Johnson v. Bathey, 1979 Florida Supreme Court)
Negligence: duty of landowner, characterization of privileged entrants
MSR: police and firefighters generally treated like licenses based on public policy or assumption of risk grounds
FL: firefighter or properly identified law enforcement officer who lawfully enters premises in discharge of duty occupies status of an invitee
Negligence: duty owned to invitees
MSR: Landowner owes invitee general duty to use reasonable and ordinary case in keeping property reasonably safe for benefit of invitee. Includes duties owed to licensees (warn of non obvious, dangerous conditions known to landowner and use ordinary case in action operations on property) plus a duty to make reasonable inspections to discover dangerous conditions and, thereafter, make them safe
FL: in addition to LO general CL duty, FL statutes requires owners of business premises to keep premises free from transitory foreign objects or substances that might foreseeably give rise to injury. In civil action for negligence as result of such object or substance on premises, claimant has burden of proving that business had actual or constructive knowledge of dangerous condition and should have taken action to remedy.
Constructive knowledge established by:
1. Dangerous condition existed for such length of time that, in exercise of ordinary care, business establishment should have known of condition OR
2. condition occurred with regularity, so foreseeable (768.0755)
Negligence: statutory standard of care, effect of violation
MSR: Unexcused statutory violation is negligence per se: conclusive presumption established for duty and breach.
FL: When FL statute establishes a duty to take precautions to do the following, a violation of statute is negligence per se.
(1) protect particular CLASS of persons
(2) from particular injury or type of injury
When statute designed to protect class (minors) from inability to protect themselves, statute imposes strict liability standard for which P contributory negligence is no defense.
Violation of traffic ordinance--e.g., failure to yield right of way--only evidence of negligence.
Negligence: duty for NIED
MSR: Two requirements usually must be satisfied for P to prevail:
2. P must be within "zone of danger"
2. D's conduct typically must cause P emotional distress that manifests itself in physical symptoms
FL: generally requires actual physical impact to state claim. Exceptions when emotional distress is primary foreseeable consequence of freestanding tort.
Negligence: bystander not in zone of danger suffering emotional distress from seeing injury to another
MSR: Bystander who sees D negligently injure another but outside zone of physical injury can recover damages for distress if:
1. P and person injured closely RELATED
2. P PRESENT AT SCENE of injury AND
3. P personally OBSERVED or perceived event
FL: requires that:
1. P must suffer PHYSICAL injury caused by psychological trauma;
2. P must be INVOLVED in some way in event causing negligent injury to another &
3. P must have CLOSE PERSONAL RELATIONSHIP to directly injured person
Negligence: affirmative duties to act, Good Samaritan statutes
MSR: Number of states enacted statutes exempting licensed doctors, nurses, etc, who voluntarily and gratuitously render emergency treatment, from liability for ordinary negligence. Liability exists for gross negligence.
FL Good Samaritan Act applicable to all persons who render aid at scene of emergency -- virtually meaningless though bc rescuer remains liable for ORDINARY NEGLIGENCE -- Botte v. Pomeroy construing 768.13(2)(a).
More substantial immunity from civil liability applies in some circumstances. Like persons using DEFIBRILLATORS on victims in emergency & HC providers rending EMERGENCY treatment in hospital not liable UNLESS acted w/ RECKLESS or GROSS negligence (768.1325)
Damages: personal injury
MSR: P is to be compensated for all damages--past, present, prospective--both special and general. This includes fair and adequate compensation for economic damages and non economical damages
FL: capped noneconomic damages recoverable in MED MAL cases against practitioners and non-practitioners, such as medical suppliers.
Florida Supreme Court held that cap unconstitutional in WRONGFUL DEATH cases.
Lower court cases held cap unconstitutional in PERSONAL INJURY cases too.
Damages: puntiive damages
MSR: P able to recover punitive damages in most jurisdictions if D conduct wanton and willful, reckless, malicious
FL: legislation restricts recovery of punitive damages. D can be held liable for punitive damages only if trier of fact, based on C & C evidence, finds that D personally guilty of intentional misconduct or gross negligence. Punitive damages generally cannot exceed greater of
1. three times amount of compensatory damages awarded to each claimant OR
2. sun of $500,000
Exceptions if action motivated by unreasonable financial gain, abuse of children, elderly, intent to harm or intoxication (see fl civ pro outline) (768.72-73)
Damages: collateral source rule
MSR:As general rule, damages not reduced or mitigated by reason of benefits received by P from other sources such as health insurance. At trial, D can not introduce evidence relating to any such financial aid from other sources. Growing number of states made exceptions to rule in certain actions, such as med mal, allowing D to introduce evidence of insurance awards or disability benefits
FL: governmental and charitable benefits available to general public are admissible for jury to consider when deciding cost of future care. By statute, trial court must reduce any damages awarded to claimant by any amounts paid for or available to claimant from collateral sources (not Medicare, Medicaid, workers comp benefits). Reduction offset by amount paid by claimant for benefit, like insurance premiums. Where subrogation right exists for collateral source provider, claimant's damages not reduced (768.76)
Defenses to negligence: express assumption of risk
MSR: Res can be assumed by express agreement. Exculpatory clauses in K, intended to insulate one of the parties from liability resulting from own negligence, closely scrutinized by generally enforceable
FL: allows natural guardians on behalf o minor to waive claim or c/a against commercial activity provider from minor;s person injury from inherent risk in activity. To be enforceable, waiver or release must advise that guardian agreeing that, even if provider uses reasonable care, there is change child will be seriously injured or killed by activity bc certain dangers inherent in activity that cannot be avoided or eliminated.
Defenses to negligence: comparative negligence
MSR: "Pure" variety of comparative negligence, adopted in a third of the comparative negligence states, allows recovery no matter how great P's negligence is-- e.g., if plaintiff if 90% at fault and D 10%, P may still recover 10% of his damages)
FL: doctrine of PURE comparative negligence, and applies it to SL and breach of warranty actions. (768.81).
Failure to wear seat belt may be considered evidence of comparative negligence. (316.614).
However, P may NOT RECOVER DAMAGES if trier of fact finds that:
1. P was under influence of ALCOHOL or DRUGS that impaired her normal faculties or resulted in blood or breath alcohol level of 0.08% or higher; AND
2. As result of such impairment, P was more than 50% at fault for her own harm. (768.36).
Liability for animals: no strict liability for domestic animals
MSR: Liability attached if owner has knowledge of that particular animal's dangerous propensities, even if animal has never actually injured anyone.
FL: makes the owner of a dog liable for damages, regardless of the former viciousness of the dog or owner's prior knowledge of such viciousness. In absence of negligence, owner is not liable (except as to a person under age of 6) if at time of injury:
1. Person is not lawfully on premises OR
2. Owner had displayed in prominent place on premises an easily readable sign including words "Bad Dog."
Any negligence on part of person bitten that proximately contributed to the biting incident reduces liability of the owner of the dog by percentage that the bitten persons negligence contributed to the incident (767.04).
Products liability: proving a design defect
MSR: For design defects, P usually must show reasonable alternative design--i.e., that less dangerous modification or alternative was economically feasible.
FL: does not require P to show an alternative design bc uses the same consumer expectation test that used for manufacturing defects--i.e., design defective if it was dangerous beyond expectation of ordinary consumer.
Product liability: government safety standards
MSR: Product's noncompliance w/ gov't safety standards establishes that it is defective, while compliance w/ safety standards is evidence (but not conclusive) that the product is not defective.
FL: applies rebuttable presumption that product defective if product does not comply w/ gov't safety standards. Similarly, it applies rebuttable presumption that product not defective if it DOES comply w/ mandatory gov't safety standards (768.1256).
Implied warranties of merchantability and fitness, UCC: alternatives on horizontal privity
MSR: UCC offers 3 alternatives:
1. Extends protection to buyer's family, household, and guests who suffer personal injuries
2. Extends protection to any natural person who suffers personal injury
3. covers any person who suffers any injury
FL: adopted #1 above on issue of horizontal privity (only to buyer's family, household and guests who suffer personal injuries
Vicarious liability: doctrine of respondent superior, liability for own negligence
MSR: employers may be liable for their own negligence by negligently selecting or supervising their employees. This is not vicarious liability.
FL: in action for death, injury or damage caused by intentional tort of employee, the employer presumed not to be negligent in hiring such employee if employer conducted background investigation before hiring that did not reveal any info reasonably demonstrating employee's unsuitability for particular work or employment in general. On other hand, decision by employer not to conduct investigation does not raise any presumption that employer failed to use reasonable care in hiring employee (768.096).
Vicarious liability: automobile owner for driver
MSR: general rule is owner not vicarious liable for tortious conduct of another driving his car. Number of states enacted permissive use statutes imposing liability for damage caused by anyone driving w/ consent. Owner can be liable for his own negligence in entrusting care to driver.
FL: adopted permissive use rule, holding that owner who consents to use of car by another person is liable for negligent damage done by automobile.
vicarious liability of person (not in business of renting or leading vehicles) who loans vehicle to another or leases car for short term is limited to $100,000 per person and $300,000 per incident for bodily injury, and $50,000 for property damage. If lessee or operator of car uninsured or has insurance w/ combined limits less than $500,000 in economic damages (324.021).
Vicarious liability: parent for child
MSR: Parent not vicariously liable for tortious conduct of child at CL. Most states have states making parents vicariously liable for willful or intentional torts of their minor child.
FL: parents or legal guardians of unemancipated minor child who commits a theft offense can be liable for threefold the victim's actual damages (772.11).
Vicarious liability: tavernkeepers
MSR: CL, no liability on vendors of intoxicating beverages for injuries resulting from vendee's intoxication. Many states enacted Dramshop Acts changing this result.
FL: one who provides alcohol to person of lawful age not liable for damages caused by intoxication of that person
1. one who willfully & unlawfully sells or finishes alcohol to MINOR may become liable for injury or damages resulting from minor's intoxication
2. one who knowingly serves person HABITUALLY ADDICTED to use of alcohol may become liable for injury or damages resulting from intoxication
3. proprietor may be liable if he knows or should have known of LIKELIHOOD of injuries to patrons caused by disorderly conduct of 3rd parties in general and he fails to do anything about it (786.125).
Parties - multiple defendant issues: joint and several liability
MSR: When two or more tortious acts combine to proximately cause an indivisible injury, each tortfeasor is J&S liable.
FL: Florida has abolished J&S liability (except for intentional torts and some enviro actions). Judgement against each liable party will be tiered based on that party's percentage of fault. To allocate fault to a nonparty, D must affirmatively plead the fault of the nonparty, identify or describe nonparty if feasible, and, at trial, prove the nonparty's fault by a preponderance of the evidence (768.81(3)).
Survival and wrongful death: survival of tort actions
MSR: Survival acts allow c/a for personal injury and property torts to survive the death of one or more of the parties generally do not apply to actions for invasion of intangible personal interest (such as defamation), which expire on victim's death
FL: all actions for tort does not cause victim's death will survive that death, including actions for intangible personal tort such as defamation (46.021). If victim's injury results in death, his tort action does not survive; a new action must be brought under wrongful death statute.
Survival and wrongful death: wrongful death
MSR: Depending on jurisdiction, either the person rep or surviving spouse or next of kin is the proper party to bring action. Usual measure of recovery in wrongful death actions is for pecuniary injury resulting to spouse and next of kin.
FL: Wrongful death action is FL brought by decedent's person rep. Each survivor can recover value of lost support or services from date of injury to death, interest, and future loss of support or services from date of death, discounted to present value. Plus, surviving spouse and minor children (or all children if there is no surviving spouse) can recover for the loss of the decedent's companionship and protection and for mental pain and suffering from date of injury.
Tortious interferences w/ family relationships: parent-child
MSR: Child has no action in most jurisdictions against one who tortiously injures his parent.
FL: Allows child to recover for loss of permanently injured parent's consortium (768.0415).
Tort immunities: parent-child immunity
MSR: Slight majority of states have abolished parent-child immunity. Remaining states retain parent-child immunity but do not apply it in cases of intentional tortious conduct and/or automobile accident cases.
FL: FL waives parent-child immunity when:
1. unemancipated minor sued parent for negligence (but only to extent of available insurance coverage); AND
2. in case of intentional sexual abuse perpetrated by parent against minor child.
tort immunities: state gov'ts
MSR: most states have substantially waived their immunity from tort actions to the same extent as the federal gov't; immunity still attaches for discretionary acts and for legislative and judicial decisionmaking.
FL: waived immunity to substantial extent for governmental or ministerial activities, but not for DISCRETIONARY activities.
Liability waived only up to $200,000 for each person injured & $200,000 for all claims arising from 1 accident, unless state has insurance coverage greater than these limits (768.28).
No tort action can be brought against state unless claimant has first presented written claim to agency and, except in cases against muni, to Department of Insurance.
Muni immunity waived to same extent as state immunity, and immunity for planning-level decisions is not absolute. Liability waived to extent of insurance coverage.
Tort immunities: law enforcement agencies
MSR: No multistate rule
FL: not liable for injury or property damages caused by person fleeing from an officer in a car if:
1. pursuit conducted in manner that does not involve conduct by officer so RECKLESS as to constitute disregard of human life, safety, or property of another
2. at time officer initiated pursuit, officer rsbly believed person fleeing has committed a FORCIBLE FELONY &
3. pursuit conducted by officer pursuant to written policy governing high-speed pursuit adopted by agency
Tort immunities: immunity of public officials
MSR: Governmental officials may also have immunity. Immunity applies to public officer carrying out his official duties when they involve discretionary acts done w/o malice or improper purpose. For acts that are construed as ministerial, no tort immunity applies.
FL: state and county officers and employees not responsible for damages caused by torts committed during course of employment except when acted in bad faith, w/ malicious purpose, or willful disregard of human rights, safety, or property
Florida no-fault insurance
FL adopted modified no-fault car insurance system: regardless of fault, out-of-pocket expenses paid to injured person under basic car insurance policy
Injured person's own insurance carrier pays benefits rather than liability insurance of party at fault
These benefits ("personal injury protection benefits") paid to max of $10,000 for medical expenses and lost income and earning capacity, and $5,000 for death benefits.
Workers' compensation as bar to tort action
FL Worker's Comp Insurance provides compensation to employees injured in course of employment, regardless of fault or negligence.
Therefore, employee does not risk losing benefits due to contributory negligence, assumption of risk, or negligence on part of coworker.
In return, employee CANNOT sue her employer or fellow employees for damages arising out of injury (except if fellow employees commits an act of gross negligence, willfulness, or unprovoked physical aggression).
Statute of limitations
FL's 2 year SoL applies to actions for:
- wrongful death--except wrongful death actions based on INTENTIONAL torts have no limitations period,
- defamation, and
- med mal (measured from time malpractice discovered or should have been discovered, but generally no longer than FOUR YEARS).
4 year SoL period applied for negligence and international tort actions.