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INTENT

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Specific Intent: goal in acting is brought by specific consequences General Intent: Actor knows with substantial certainty that consequences will result. Transferred Intent: Intent to inflict battery satisfies intent requirement for assault.

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BATTERY

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1) An intentional act by D that brings about a harmful or offensive contact to the P's person. (Act, intent, causation) *D need not intend injury, all that is required is the intent to bring about a harmful/offensive touching. D also liable for not only direct causes of contact, but also for things D sets in motion

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ASSAULT

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1) Act by D that places P in a reasonable apprehension of an 2) Imminent harmful or offensive contact to P's person. *Actually causes apprehension. Apprehension= knowledge. No fear Conduct= any kind of threatening gesture. Words alone don't suffice. Word's can negate immediacy.

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FALSE IMPRISONMENT

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1) An intentional act or omission by D that 2) Confines or restrains P to a bounded area (intent must be to confine/restrain) and 3) causation. *Needs to be no reasonable way of getting out.

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TRESPASS TO CHATTELS

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1) An act of D that interferes with P's right of possession of a chattel 2) Intent to deprive the P of their property (steal). *If amount of harm is relatively slight, then trespass to chattels. Not serious enough to warrant that D pay full value. Mistake in ownership = no defense

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CONVERSION

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1) An act by D that interferes with P's right of possession in the chattel 2) Intent to perform act bringing about the interference with P's right of possession 3) Causation *Serious enough deprivation that warrants D to pay the full value of the chattel P gets full value. Mistake in ownership = no defense

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TRESPASS TO LAND

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Person in actual/constructive possession of the land must show: 1) D committed act of physical invasion 2) The physical invasion was of P's land (includes sub surface, air, soil to a reasonable distance.

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IIED

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1) An act by D that amounts to extreme and outrageous conduct. 2) Intent on part of D to cause P severe emotional distress OR recklessness of D's conduct. 3)Causation, and Damages (the severe emotional distress) *Recklessness= complete/utter disregard

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NIED

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D creates a foreseeable risk of physical injury to P by: 1) causing a threat of physical impact that leads to emotional distress 2) directly causing severe emotional distress that by itself is likely to result in physical symptoms

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CONSENT (DEFENSE TO I.T)

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A D is not liable for a tortious act if P consented to D's act. Consent can be: 1) expressed - P said it 2) implied - as a matter of usage/custom, or implied by law. *Fraud or Duress negates consent, and scope of consent must not be exceeded.

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SELF-DEFENSE

answer

*In FL, a person is justified in the use of force against another when and to the extent he believes it is necessary to defend himself or third party against other's imminent use of unlawful force. *A person who isn't engaged in unlawful activity and who is attacked in any place where she has a right to be has not duty to retreat and has the right to use force, including deadly force if she reasonably believes its necessary to prevent death or great bodily harm to herself or another or to prevent the commission of a forcible felony.

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DEFENSE OF PROPERTY IN FLORIDA

answer

In FL, reasonable fear of death and therefore use deadly harm if someone has unlawfully entered your house or vehicle.

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DEFAMATION (Elements)

answer

(1) statement of fact; (2) publication of the statement(only requires telling a 3rd party); (3) falsity; (4) damages; (5) required level of culpability. Where the defendant is a public figure or public official, actual malice is required, which is knowledge of the statement's falsity or reckless disregard for the truth. For a private plaintiff, only negligence is required. One can avoid negligence and investigating the facts.

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DEFAMATION (Other Rules)

answer

*FL recognizes a COA for defamation by implication Literally true statements can be defamatory where they create a false impression. *Truth= available defense to D's who can prove that the defamatory implication is true.

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DEFAMATION (Rules for LIBEL)

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Libel: Defamatory statement in writing or some other permanent form. PreREQ for bringing defamation action for libel in FL: Provide written notice at least 5 days prior to filing suit specifying the alleged false statement. D is then afforded 10 days from the receipt of notice to print a retraction. If retraction was made in good faith, P can only recover actual damages.

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DEFENSE OF QUALIFIED PRIVILEGE

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Requires that: 1) Communication be made in good faith 2) Made by one w/ interest or duty regarding subject matter 3) Given appropriately 4) Made in a proper manner *Exists for reports of public proceedings of sufficient public interest *privilege is lost if malice determined. Malice is established by preponderance of the evidence that D's primary intention was to injure P

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INVASION OF RIGHT TO PRIVACY

answer

Four kinds of wrongs: 1) Appropriation of plaintiff's picture/name 2) Intrusion upon plaintiff's affairs/seclusion 3) Publication of facts putting P in false light 4) Public disclosures of private facts about P

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MISREPRESENTATION

answer

Intentional Misrepresenation: P would have to establish a misrepsentation of a material fact, scienter, an intent to induce P's reliance on the misrepresentation, causation, reliance, damages

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TORTIOUS INTERFERENCE W/ BUSINESS RELATIONS

answer

Results when: existing business relationship, would have been completed if D did not interfere. 4 elements must exist: 1) Valid K relationship b/w P and 3rd party 2) D had knowledge of business/expectancy 3) D's intentional interference induced breach/termination of relationship 4) Breach resulted in loss to the P *Damages can't be recovered where relationship is based on speculation regarding future sales to past customers.

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MALICIOUS PROSECUTION

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1) Institution of criminal proceedings against P 2) Termination in P's favor 3) Absence of probable cause for prior proceedings 4) Improper purpose 5) Damages *Prosecutors are immune from liability.

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NEGLIGENCE (Elements)

answer

A plaintiff must show that the defendant had a duty, breached that duty, and the breach was the proximate cause and the cause-in-fact of her injuries. A defendant owes a duty to only foreseeable plaintiffs. In general, a plaintiff breaches his duty when he fails to act as a reasonable person would in the same circumstances. The plaintiff must show that the defendants breach was the but for cause of his injuries and that harm suffered was a foreseeable consequence of the breach. Florida is a pure comparative negligence state, where a plaintiffs negligence has contributed to his own injuries, the total damages will be may be apportioned based on a determination of fault.

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DUTY

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A duty of reasonable care is owed to all foreseeable P's. Extent of duty is determined by standard of care. When confronted w/ negligence, determine 1) if P was foreseeable 2) what is standard of care if P was foreseeable

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NEGLIGENCE PER SE (DUTY)

answer

Conclusive presumption of duty and breach if there was a violation of an applicable statute.

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RESCUERS

answer

Rescuer is a foreseeable P where D's negligence causes himself or a 3rd person peril. Danger invites rescue. *FL treats firefighters/officers as invitees

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BUSINESS INVITEES (IN FL)

answer

If P slips and falls on a substance at a business, P must prove that business had actual/constructive knowledge of dangerous condition and should have taken action to remedy it. Constructive knowledge may be proven by: 1) dangerous condition existed for a time that business should have known of condition if exercised ordinary care 2) condition occurred w/ regularity and was foreseeable. TEST(DUTY): Duty of RC to maintain premises in a reasonably safe condition. Duty to warn of nonobvious, dangerous conditions + duty to make reasonable inspections to discover dangerous conditions/make them safe.

question

TRESPASSERS

answer

Unknown: No duty of care. Always loses. Unforseeable victim. Anticipated: D knows/should know that they are on the land. TEST(DUTY): Protect from known, manmade deathtraps on land. Natural not included.

question

INVITEES

answer

FL includes social guests as invitees, and firefighters and police officers as invitees. Also people who are there for economic benefit. TEST(DUTY): Duty of RC to maintain premises in a reasonably safe condition. Duty to warn of nonobvious, dangerous conditions + duty to make reasonable inspections to discover dangerous conditions/make them safe.

question

BREACH OF DUTY

answer

D's conduct falls short of the duty owed to P. D failing to excercise (standard of care) caused the breach.

question

RES IPSA LOQUITOR

answer

1) The accident that caused the injury isn't the type of accident that occurs without negligence 2) \"the thing speaks for itself\"

question

CAUSATION

answer

P must show that D's breach of standard of care was the 1) actual AND 2) proximate cause of P's injury.

question

ACTUAL CAUSE

answer

Must exist before the proximate cause. BUT FOR TEST: But for D's breach, P's injury would not have occured

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PROXIMATE CAUSE (LEGAL CAUSE)

answer

D is the proximate cause of P's injury if you can meet the FORESEEABILITY TEST: D is generally liable for all harmful results that are normal incidents within the increased risks caused by his acts (within the zone of danger) foreseeable P's

question

DIRECT CAUSE CAUSE (INTERVENING CAUSE)

answer

Uninterrupted chain of events from D's negligence to P's injury. D is liable for all foreseeable results from D's negligence.

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INDIRECT CAUSE CAUSE (INTERVENING/SUPERSEDING CAUSE)

answer

Intervening force comes into motion after D's negligence which combines with D's negligence to cause P's injury. If D's negligence created a foreseeable risk that an intervening force would contribute to P's injury - then D is liable. If it was totally unforeseeable, then D is cut off from liability

question

CONTRIBUTORY NEGLIGENCE (DEFENSE)

answer

Negligence on part of P that contributes to P's injuries. Standard of care= same as ordinary negligence

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PURE COMPARATIVE NEGLIGENCE

answer

FL has adopted the doctrine of pure comparative negligence. P's award will be reduced by the amount of his own negligence. But P can recover for the D's negligence even if jury finds the P primarily at fault for his own harm. **Exception: in FL, a P may not recover damages if trier of fact determines at the time P was injured: 1) P was legally drunk 2) as a result of impairment, P was more than 50% at fault for his harm.

question

STRICT LIABILITY

answer

Prima facie case: 1) D owes an absolute duty to P to make activity/condition safe 2) D breaches that duty 3) Breach was Actual AND Proximate Cause of P's injury 4) P suffered damages *In FL: (DOGS) owner is strictly liable for injuries caused by his dog, regardless of the former viciousness of the dog, or owners prior knowledge of such viciousness.

question

STRICT LIABILITY (INHERENTLY DANGEROUS ACTIVITES)

answer

3 Requirements: 1) Activity must involve risk of serious harm to persons or property 2) Activity must be one that cannot be performed without risk of serious harm no matter how much care is taken 3) Activity isnt commonly engaged in the particular community

question

FAILURE TO WARN OF A KNOWN DANGEROUS CONDITION

answer

1) D created dangerous condition 2) Condition wasn't readily apparent to someone who couldve been injured 3) D had knowledge of dangerous condition 4) D failed to take steps to warn the public or avert danger

question

PRODUCTS LIABILITY

answer

A manufacture will be held strictly liable if a product is unreasonably dangerous, left the manufacture in this condition, and the distributor didn't alter the product. The product must have a dangerously manufacturing defect, design defect, or warning. Additionally, the consumer must show it made foreseeable use of the product, which in turn caused an injury. A product may be considered defective when it has inadequate warnings and the manufacture knew or should have known about the dangers and failed to take precaution that a reasonable person would do under the same circumstances to warn the consumer.

question

GOVERNMENTAL TORT IMMUNITY

answer

FL has waived it's immunity to a substantial extent for governmental mistrial activities, but not for discretionary activities. Gov't will be liable for torts of its employees to the same extent as private (respondent superior *Test(to determine if Gov't N is actionable): Planning v. Operational Test. Gov entity is immune from suit for its planning decisions, NOT for operational decisions. *Municipality= same as state *Officers/Employees of state= not responsible for damages caused by torts committed during the course of their employment except : bad faith, malice, willful disregard.

question

RESPONDEAT SUPERIOR (VICARIOUS LIABILITY)

answer

An employer is liable for the negligence or strict liability to of an employee if the tortuous act occurred within the scope of the employment. Acts are within the scope of employment if they are so closely connected with what the employee was hired to do. An employer is generally not liable for the intentional torts of its employees unless the employee's actions were motivated in some part to serve or promote the company.

question

NEGLIGENT HIRING

answer

An employer is liable for negligent hiring when the employer hires a person who he knows is not qualified for the job, or there is something in the employees past the that would negatively impact the him performing his job. As result employer is negligent for his hiring not the employees actions. *Presumptions: Employer presumed not to have been negligent in hiring if employer conducted a background investigation before hiring, and it didn't reveal any info about employee's propensities. Not conducting investagation doesn't mean employer failed to use reasonable care

question

PERMISSIVE USE RULE

answer

Auto owner consents to the use of his auto by another is vicariously liable to the damage resulting from driver's negligence. *Exception: Under dangerous instrumentality doctrine, it doesn't matter whether a driver exceeds the scope of consent of the auto owner who permitted use of vehicle. Owner=still liable.

question

LIABILITY BASED ON ALCOHAL

answer

In FL, one who provides alcohol to person of lawful age generally isn't liable for damages caused by intoxication of that person. Liability may be imposed on: 1) One who willfully sells alcohol to a minor 2) One who knowingly serves a person addicted to alcohol 3) A proprietor - knows/should have known of the likelihood of injuries to patrons caused by disorderly conduct/does nothing about it.

question

MEDICAL MALPRACTICE CLAIMS

answer

FL has adopted procedural framework for bringing med mal claims against health care providers: 1) Claimant must investigate grounds for claim and obtain written opinion by a medical expert verifying that reasonable grounds for a claim exist. 2) At least 90 days before filing suit, claimant must notify each prospective D by certified mail 3) During this 90-day period, claimant may not file suit. SOL is tolled as to all potential D's. 4) At end of 90-day period, D's insurer must deliver to claimant: a rejection of claim, an offer to settle, or offer to admit liability and seek arbitration of damages. 5) Claimant must accept/reject an offer to admit liability within 50 days. 6) After completion of pre-suit investigations, parties may elect to have damages determined by voluntary binding arbitration. C refusing arb may recover non-economic damages.

question

WRONGFUL DEATH

answer

All damages caused by injury resulting in death must be sought in a wrongful death action by PR of the decedent. *In a survival action: damages recoverable are traditional damages available in a tort action. (Ex: lost wages, property damages, medical expenses, recovery of pain/suffering) *Under FL's Wrongful Death Act: Surviving Spouse and Minor children (or all children if no SS) may recover for loss of decedent't companionship/protection for mental pain/suffering from date of injury/

question

NO FAULT AUTO INSURANCE

answer

FL has adopted this under which out-of-pocket expenses are paid to an injured person under basic automobile insuranc epolicy regardless of fault. Injured's insurance pays rather than party at fault *PIP benefits-maximum of 10 k for medical, and 5k for death benefits.

question

PUNITIVE DAMAGES

answer

In FL, D may be held liable for punitive damages if: 1) Trier of fact based on clear and convincing evidence 2) Finds that D was personally guilty of intentional misconduct OR gross negligence. *Corps: may be imposed on employee/agent only if employee's conduct was intentional/GN *PD may not exceed the greater of 3 times the amount of compensatory damages or sum of 500K (Excep: when alcohol involved - NO cap on PD for a drunk D)

question

SHOP KEEPERS PRIVILEGED

answer

A shopkeeper is allowed to detain a suspected shoplifter on store property for a reasonable period of time when he or she suspects stealing.

Torts Essay Sheet – Florida

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