This site is 100% ad supported. Please add an exception to adblock for this site.

FL BAR CIVIL LIABILITY

Start Studying!

Terms

undefined, object
copy deck
False Imprisonment - § Elements
(1) Defendant intended to confine the plaintiff; (2) Defendant performed an act resulting in plaintiff’s confinement; and (3) Plaintiff was conscious of the confinement or resulting harm.
DUTY OF MOTORIST TOWARD CHILDREN
A motorist must exercise reasonable care to guard against the unpredictable and erratic behavior of children on or near the [street] [highway] if he knows or should know of their presence
EQUAL AND RECIPROCAL RIGHTS AND DUTIES OF MOTORISTS AND PEDESTRIANS
All persons [whether pedestrians or motorists] may use the [street] [highway] but each has a duty [to comply with lawful regulations of its use applicable to him and]* to use reasonable care for his own safety and for the safety of others
NEGLIGENCE EVID: VIOLATION OF STATUTE, ORDINANCE OR REGULATION
It is not, however, conclusive evidence of negligence
NEGLIGENCE
Negligence is the failure to use reasonable care. Reasonable care is that degree of care which a reasonably careful person would use under like circumstances. Negligence may consist either in doing something that a reasonably careful person would not do under like circumstances or in failing to do something that a reasonably careful person would do under like circumstances.
DUTY OF DRIVERS
1. Duty to keep lookout. 2. Duty to inspect vehicle or to maintain vehicle in safe condition. 3. Range of vision rule. 4. Duty to yield right of way to approaching train
PRODUCT LIABILITY Issues
PL 1 Express warranty PL 2 Implied warranty of merchantability PL 3 Implied warranty of fitness for particular purpose PL 4 Strict liability (manufacturing defect) PL 5 Strict liability (design defect) Burden of proof (greater weight of the evidence) Defense issues
Comparative negligence is a defense to strict liability claims if
based on grounds other than the failure of the user to discover the defect or to guard against the possibility of its existence
PRODUCT IS DEFECTIVE: STRICT LIABILITY (MANUFACTURING DEFECT)
if by reason of a manufacturing defect it is in a condition unreasonably dangerous to [the user] [a person in the vicinity of the product]* and the product is expected to and does reach the user without substantial change affecting that condition.
PRODUCT IS DEFECTIVE: IMPLIED WARRANTY OF FITNESS FOR PARTICULAR PURPOSE
if it is not reasonably fit for the specific purpose for which (defendant) knowingly sold the product and for which the purchaser bought the product in reliance on the judgment of (defendant).
PRODUCT IS DEFECTIVE: IMPLIED WARRANTY OF MERCHANTABILITY
if it is not reasonably fit for the uses intended or reasonably foreseeable by (defendant).
PRODUCT IS DEFECTIVE: EXPRESS WARRANTY
if it does not conform to representations of fact made by (defendant), orally or in writing, in connection with the [sale] [transaction], on which (name) relied in the [purchase and] use of the product. [Such a representation must be one of fact, rather than opinion.]
PRODUCT IS DEFECTIVE: STRICT LIABILITY (MANUF. DEFECT)unreasonably dangerous
A product is unreasonably dangerous because of a manufacturing defect if it does not conform to its intended design and fails to perform as safely as the intended design would have performed
CAUSATION:LEGAL CAUSE GENERALLY (loss,injury or damage = ...)
Negligence is a legal cause of ...if it directly & in natural & continuous sequence produces or contributes substantially to producing such ...so that it can reasonably be said that, but for the negligence, the ... would not have occurred.
CAUSATION:CONCURRING CAUSE
In order for D actions 2B the legal cause of P's ..., D's neg. need not be the only cause. This negates idea:D is excused from the consequences of his neg. by reason of some other cause concurring in time & contributing to same damage
CAUSATION:INTERVENING CAUSE-embraces two situations in which negligence may be a legal cause notwithstanding the influence of an intervening cause:
(1) where the damage was a reasonably foreseeable consequence of the negligence although the other cause was not foreseeable (2) where the intervention of the other cause was itself foreseeable
negligent failure to obtain [informed] consent to a medical treatment or procedure is a legal cause of injury
resulting from the treatment or procedure if, as a result of such negligence, the patient was induced to undergo a medical treatment or procedure to which the patient would not reasonably have consented had he been adequately informed.
WRONGFUL DEATH DAMAGES RECOVERABLE
award the decedent’s personal representative an amount of money that the greater weight of the evidence shows will fairly and adequately compensate the decedent’s estate for its damages
WRONGFUL DEATH DAMAGES RECOVERABLE FOR ESTATE & SURVIVORS: ELEMENTS
LOST EARNINGS; LOST ACCUMULATIONS; MEDICAL OR FUNERAL EXPENSES; LOST SUPPORT AND SERVICES; MEDICAL AND FUNERAL EXPENSES PAID BY SURVIVOR; DAMAGES OF SURVIVING SPOUSE; DAMAGES BY SURVIVING CHILD; DAMAGES BY SURVIVING PARENT OF CHILD;
WRONGFUL DEATH DAMAGES: LOST EARNINGS
The estate’s loss of earnings of the decedent from the date of injury to the date of death, less any amount of monetary support you determine a survivor lost during that period
WRONGFUL DEATH DAMAGES:LOST ACCUMULATIONS
The estate’s loss of net accumulations: “Net accumulations” is the part of the decedent’s net income [from salary or business] after taxes, including pension benefits [but excluding income from investments continuing beyond death], which the decedent, after paying his personal expenses and monies for the support of his survivors, would have left as part of this estate if he had lived his normal life expectancy.
WRONGFUL DEATH DAMAGES:MEDICAL OR FUNERAL EXPENSES
Medical or funeral expenses due to the decedent’s injury or death which [have become a charge against the decedent’s estate] [were paid by or on behalf of the decedent by one other than a survivor].
WRONGFUL DEATH DAMAGES:LOST SUPPORT AND SERVICES
Support” includes contributions in kind as well as sums of money. “Services” means tasks regularly performed by the decedent for a survivor that will be a necessary expense to the survivor because of the decedent’s death.In determining the duration of any future loss, you may consider the joint life expectancy of the survivor and the decedent minority period of child].
WRONGFUL DEATH DAMAGES:Period of minority
period of minority for purposes of the wrongful death act is age 25. §768.18(2), F.S
WRONGFUL DEATH DAMAGES: MEDICAL AND FUNERAL EXPENSES PAID BY SURVIVOR
Medical] [or] [funeral] expenses due to the decedent’s [injury] [or] [death] paid by any survivor
WRONGFUL DEATH DAMAGES: OF SURVIVING SPOUSE
spouse's loss of decedent’s companionship & protection & mental pain and suffering as a result of the decedent’s injury and death.
WRONGFUL DEATH DAMAGES:BY SURVIVING CHILD
The loss of parental companionship, instruction & guidance, and the mental pain & suffering as a result of decedent’s injury & death
WRONGFUL DEATH: REDUCTION OF DAMAGES TO PRESENT VALUE
Any amount of FUTURE damages [future expenses: MEDICAL, LOST INCOME or ANY OTHER economic loss) IS SUBJECT TO REDUCTION to its present money value
PUNITIVE DAMAGES GENERALLY
warranted if JURY FINDS by clear & convincing evidence THAT D was personally guilty of intentional misconduct or gross negligence
PUNITIVE DAMAGES — “Intentional misconduct” D had
actual knowledge of the wrongfulness of the conduct & high probability injury or damage to P would result & despite that knowledge, D intentionally pursued that course of conduct, resulting in injury or damage.
PUNITIVE DAMAGES — “Gross negligence” D's conduct was
so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct
DEFAMATION: CAUSATION AND DAMAGES
INJURY TO REP. SHAME, HUMILIATION, MENTAL ANGUISH, HURT FEELINGS: ($ amount fair/just in light of evid.) AGGRAVATION/ ACTIVATION OF DISEASE/ DEFECT: (award $ only for aggravation) MEDICAL EXPENSES: (reasonable value)
Defamation: public official or public figure claimant
if claimant is a public official or a public figure, so by First Amendment standards must prove that defendant made a false defamatory statement with “actual malice".
Defamation: private claimant, media defendant
if claimant is not a public person but defendant is a member of the press or broadcast media publishing on a matter of public concern, who by First Amendment standards cannot be held liable for a false publication without proof of fault
Defamation: private claimant, nonmedia defendant with or without qualified privilege
Florida’s truth and good motives defense and the qualified privilege to speak falsely but without “express malice,”
Defamation: 3 Issues
a. Issue whether publication concerning claimant was made as claimed: b. Issue whether publication was false and defamatory: c. Issue whether defendant acted with actual malice:
Defamation: whether publication was false and defamatory?
Whether D's statement concerning P was in some significant respect a false statement of fact* and [tended to expose P to hatred, ridicule, or contempt] [or] [tended to injure (claimant) in his business, reputation, or occupation] [or] [charged that (claimant) committed a crime].
Defamation: whether defendant acted with actual malice
whether clear and convincing evidence shows that at the time the statement was made (defendant) knew the statement was false or had serious doubts as to its truth
MALICIOUS PROSECUTION: Issues
Whether D maliciously & w/out PC instituted a proceeding against P which later terminated in her favor.
MALICIOUS PROSECUTION: ELEMENT of LACK of PC:
if circumstances are not sufficient to cause a reasonably cautious person to believe accused is guilty of the offense charged or that the claim made is justified
MALICIOUS PROSECUTION: Element of MALICE
One acts maliciously in A proceeding against another if he does so for primary purpose of injuring the other, or recklessly & without regard for whether proceeding is justified
FALSE IMPRISONMENT: CLAIM ISSUE
whether D intentionally caused P to be completely restrained against will.
FALSE IMPRISONMENT: MERCHANT’S DEFENSE §812.015(3), F.S
Whether D, (a merchant or merchant’s employee) had PC to believe goods were unlawfully taken by P & could be recovered by restraining P AND whether D restrained P only in a reasonable manner AND for a reasonable time
FALSE IMPRISONMENT: Consciousness of restraint.
An additional element of a false imprisonment claim is that the person restrained was aware of the restraint or was otherwise harmed by it, Restatement (2d) of Torts §42
FALSE IMPRISONMENT: Complete restraint
Claimant was completely restrained if he reasonably believed he was, though he may in fact have been free to leave. See Restatement (2d) of Torts, §§41, 42. Though claimant’s belief that he was completely restrained was unreasonable, complete restraint may nevertheless have occurred if claimant was peculiarly suspectable and defendant acted to exploit that susceptibility. See, by analogy, Restatement (2d) of Torts, §27
FRAUDULENT MISREPRESENTATION — ISSUES:
1) whether D intentionally* made a false statement concerning a material fact; 2) whether D knew statement was false when made or made statement w/out knowledge truth or falsity; 3) whether in making false statement, D intended that P would rely on false statement 4)whether P relied on the 5) whether P suffered DAMAGES as a result.
FALSE INFORMATION NEGLIGENTLY SUPPLIED: COMPARATIVE NEGLIGENCE DEFENSE
Defense to claim of false information negligently supplied, the issues are whether, under P under the circumstances was negligent in relying on D false information; and, if so, whether such negligence was a contributing legal cause of any economic damage sustained by P.
NEGLIGENT MISREPRESENTATION ISSUES:
⬢ First, whether D made a statement concerning a material fact- believed to be true but which was in fact false; ⬢ Second, whether, D was negligent in making statement because-should have known the statement was false; ⬢ Third, whether in making the statement, D intended/expected P would rely; ⬢ Fourth, whether P justifiably relied on false statement;& ⬢ Fifth, whether P suffered DAMAGES as a result.
IIED - OUTRAGEOUS CONDUCT CAUSING SEVERE EMOTIONAL DISTRESS - ISSUES ON CLAIM
1. whether D engaged in extreme and outrageous conduct; 2. whether D acted with the intent to cause severe emotional distress or with reckless disregard of the high probability of causing severe emotional distress; 3. whether P suffered severe emotional distress & if so, 4. whether D’s conduct was a legal cause of P severe emotional distress.
IIED: Extreme and outrageous conduct is a legal cause of severe emotional distress if
it directly and in natural & continuous sequence produces or contributes substantially to producing such severe emotional distress.
IIED: EXTREME AND OUTRAGEOUS CONDUCT - behavior which...
goes beyond all possible bounds of decency and is regarded as shocking, atrocious, and utterly intolerable in a civilized community.
IIED: SEVERE EMOTIONAL DISTRESS OCCURS WHEN...
it is of such intensity or duration that no ordinary person should be expected to endure it.
K: BREACH OF CONTRACT (EXISTENCE OF CONTRACT ADMITTED)- ISSUES ON CLAIM
Whether (defendant) failed to perform [his] [her] [its] [duty] [duties] under the contract and, if so, whether that failure to perform was a legal cause of damages sustained by (claimant).
MURDER—FIRST DEGREE § 782.04(1)(a), Fla. Stat - 2 ways person may be convicted
1 - premeditated murder & 2 - felony murder
ATTRACTIVE NUISANCE
*[whether D owned, possessed or controlled the land or premises in question; whether the (identify structure or other artificial condition) was located at a place on the land or premises in question where D knew / had reason to know children were likely to be [as trespassers or otherwise]; whether the (structure or other artificial condition) involved an unreasonable risk of death or serious harm to children who, because of their age, were not likely to discover the condition or realize the risk involved in meddling with it or in coming within the area made dangerous by it; [and] whether D knew or had reason to know of the risk to such children; [and whether (claimant/P child), because of his age, did not discover the condition or realize the risk involved in meddling with it or in coming within the area made dangerous by it].
VEHICLE DRIVEN BY ANOTHER: OWNER of a vehicle
is one who has legal title to the vehicle & who has the right of control and authority over its use
VEHICLE DRIVEN BY ANOTHER: BAILEE issue status of D under Florida’s “dangerous instrumentality” doctrine
A bailee of a vehicle is one to whom the vehicle has been furnished or delivered by [its owner] [a person with authority over its use] for a particular purpose, with the understanding that it will be returned. An owner is liable for a personal injury or wrongful death negligently inflicted by a bailee upon a third party.
AGENCY
An agent is a person who is employed to act for another, and whose actions are controlled by his or her employer or are subject to his or her employer’s right of control.
AGENCY, MASTER AND SERVANT LIABILITY
An employer is responsible for the negligence of [his] [her] [its] agent if such negligence occurs while the agent is performing services which he or she was employed to perform or while the agent is acting at least in part because of a desire to serve his or her employer and is doing something that is reasonably incidental to his or her employment or something the doing of which was reasonably foreseeable and reasonably to be expected of persons similarly employed.
AGENCY, MASTER AND SERVANT (INDEPENDENT CONTRACTOR DISTINGUISHED):
An independent contractor is a person who is engaged by another to perform specific work according to his or her own methods and whose methods of performing the work are not controlled by the person engaging him or her and are not subject to that person’s right of control
APPARENT AGENCY:
(Name) was an apparent agent if D by words or conduct caused or allowed P to believe that(name) was an agent of & had authority to act for D & if P justifiably relied upon that belief in dealing with (name) as the agent of D. A person is responsible for negligence of his or her apparent agent occurring while the apparent agent is acting w/in scope of her apparent authority.
Actual Agency & Apparent Agency
Issues on both actual agency & apparent agency are submitted to jury
ULTRA-HAZARDOUS WORK (EXCEPTION TO NON-LIABILITY FOR NEGLIGENCE OF INDEPENDENT CONTRACTOR):
The performance of work is ultra-hazardous if there is a real & substantial danger inherent in the work itself & if work is of nature that in the ordinary course of events, performance of the work will probably cause injury if proper precautions are not taken. A person who [authorizes or permits another to carry on or knowingly assists or participates in carrying on ultra-hazardous work on premises owned or possessed by the employer is responsible for negligence in the performance of the work by the other or by her agents and employees.
PARTNERSHIP:
A partnership exists when two or more persons join together or agree to join together in a business or venture for their common benefit, each contributing property or money or services and each having an interest in any profits. Each member of a partnership is responsible for the negligence of any partner if such negligence occurs while the partner is acting in behalf of the partnership and within the scope of the partnership’s business.
JOINT VENTURE:
A joint venture exists when two or more persons combine their resources or efforts and agree to undertake some particular business transaction in which they have common interests in the purposes to be accomplished, joint control or right of control of the venture, joint ownership interest in the subject matter of the venture and a common right and duty to share in profits and losses. Each member of a joint venture is responsible for the negligence of another member if such other member’s negligence occurs while he or she is acting in behalf of the joint venture and within the scope of its business.
Liability for Others Entering Property: To establish liability for negligence, a plaintiff traditionally must show
(1) the defendant owed a duty to the plaintiff; (2) the defendant breached that duty; (3) the plaintiff suffered damages; and (4) the defendant‟s breach was the proximate cause of the damages.1 A premises liability case is a type of negligence case that involves an injury to a person who is on the property of another person. Persons entering the property of another typically are classified as invitees, licensees, or trespassers. In Florida, the status of the person injured is the determinative factor relative to the duty of care imposed upon the property owner.
premises liability for transitory foreign substances in a business establishment
When a person slips and falls on a transitory foreign substance in a business establishment, the injured person must prove the business establishment had actual or constructive knowledge of the condition, in that the condition existed for a sufficient time for the business establishment to have taken action to remedy the condition. 768.0755, Florida Statutes.
TRESPASSERS: DISCOVERED & UNDISCOVERED
A trespasser is a person who enters the premises of another without a right.2 A property owner owes a duty to undiscovered trespassers to refrain from intentional misconduct, but owes no duty to warn of dangerous conditions.3 For discovered trespassers, property owners must refrain from gross negligence or intentional misconduct and must warn the discovered trespasser of dangerous conditions that are known to the property owner but are not readily observable by others.
LICENSEES & LANDOWNER DUTY
A licensee is one who enters the property of another whose presence on the property is tolerated or permitted.5 For licensees, property owners must refrain from gross negligence or intentional misconduct and must warn the licensee of dangerous conditions that are known to the property owner but are not readily observable by others.6 A property owner owes no duty to licensees to keep the premises in a safe condition.
BUSINESS INVITEE
A person invited to enter or remain on property of another for a purpose directly or indirectly connected with business dealings with property owner is a business invitee. Premises owners owe a duty to invitees to maintain premises in a reasonably safe condition.
Comparative Negligence
plaintiff‟s damages will be reduced based on percentage of fault attributed to P. Also, when there are multiple parties that are liable for injury, the judgment against each liable party, with some exceptions, should be in proportion to each party‟s percentage of fault & not on the basis of doctrine of joint & several liability.
premise liability for business establishments 768.0755, F.S.
When a person slips & falls on a transitory foreign substance in a business estab., the injured person must prove: That the business establishment had actual or constructive knowledge of the dangerous condition; The condition existed for a sufficient length of time; & Because of that time, the business should have, in the exercise of ordinary care, known about the condition & taken action to remedy it
First Degree Premeditated Murder, the State must prove the following three elements beyond a reasonable doubt
1. (Victim) is dead. 2. The death was caused by the criminal act of D. 3. There was a premeditated killing of (victim).
Killing with premeditation
is killing after consciously deciding to do so. The decision must be present in the mind at the time of the killing
MURDER—2ND DEGREE §782.04(2) Fla.Stat. State must prove 3 elements beyond a reasonable doubt:
1. (Victim) is dead. 2. The death was caused by the criminal act of D. 3. There was an unlawful killing of (victim) by an act imminently dangerous to another and demonstrating a depraved mind without regard for human life.
DRIVING UNDER THE INFLUENCE MANSLAUGHTER Fla. §316.193. State must prove 3 elements beyond a reasonable doubt:
1. D drove or was in actual physical control of a vehicle. 2. While driving or in actual physical control of vehicle, D a) was under influence of to extent normal faculties were impaired b) had alcohol level of .08.
ASSAULT FL §784.011. To prove the crime of Assault, the State must prove the following three elements beyond a reasonable doubt:
⬢ D intentionally & unlawfully threatened, either by word or act, to do violence to (victim). ⬢ At the time, D appeared to have the ability to carry out the threat. ⬢ The act of D created in the mind of (victim) a well-founded fear that the violence was about to take place
obscene
taken as a whole, it lacks serious literary, artistic, political, or scientific value
CONSPIRACY
A "conspiracy" is a combination or agreement of two or more persons to join together to attempt to accomplish an offense which would be in violation of the law. It is a kind of "partnership in criminal purposes" in which each member becomes the agent of every other member.
BURDEN OF PROOF BY CLEAR & CONVINCING EVIDENCE
Clear and convincing evidence is evidence that is precise, explicit, lacking in confusion, and of such weight that it produces a firm belief or conviction, without hesitation, about the matter in issue.
Emotional Distress, Intentional Infliction – Elements
(1) Defendant’s conduct was intentional or reckless; (2) Defendant’s conduct was outrageous; (3) Defendant’s conduct caused emotional distress; and (4) Plaintiff suffered severe emotional distress.
Fraud - § Elements
(1) Defendant made a false statement regarding a material fact; (2) Defendant knew or should have known the representation was false; (3) Defendant intended that the representation induce plaintiff to act on it; and (4) Plaintiff suffered damages in justifiable reliance on the representation. The elements of claims for fraud in the inducement, fraud in the performance, fraudulent misrepresentation and negligent misrepresentation are identical and differ only by the underlying facts supporting each claim
Invasion of Privacy - Elements
Florida recognizes four distinct causes of action for invasion of privacy: (1) Appropriation: Unauthorized use of a person’s name or likeness to obtain some benefit. (2) Intrusion: Physically or electronically intruding into one’s private quarters or person. (3) Public Disclosure of Private Facts: Publication of private facts that are offensive to the reasonable person and not of legitimate public concern. (4) False Light: Publication of facts that place a person in a false light even though the facts themselves may not be defamatory.
Start Studying!

Deck Info

83

toomuch386

permalink