ORDINARY NEGLIGENCE
Name the elements of an Ordinary Negligence claim.
Duty, Breach, Causation, Damages
What is a Wrongful Death claim in Florida?
In Florida, a wrongful death claim arises from a death caused by another person's wrongful act, negligence, or default/breach of contract or warranty.
(PREMISES LIABILITY) What is the general responsibility of Property Owners regarding Visitors.
A Florida Property Owner is responsible for ensuring the reasonable safety of its visitors. This duty cannot be contracted our or delegated to a third party (i.e., contractors).
What is the DEFENSE adopted in Florida that is used to reduce the amount recoverable by a plaintiff?
Florida is a MODIFIED COMPARATIVE NEGLIGENCE state.
If P is more than 50% at fault for his/her injuries -- P is barred from recovering any damages at all.
What damages are available in an Ordinary Negligence claim?
Compensatory Damages ---both economic & non-economic
What is the Standard of Care used for Ordinary Negligence?
To act like a reasonably prudent person under the circumstances.
Explain Dangerous Instrumentality
A Florida Specific cause of action against those who entrust their vehicle to another person and harm is done to another by the vehicle entrusted.
(PREMISES LIABILITY) What duties of care are owed by FL Property Owners to: (1) Invitees, (2) Licensees and (3) Unknown Trespassers?
(1) INVITEES -- (owed a duty by the owner to reasonably: (i) inspect premises for dangers, (ii) warn invitee of unknown dangers, & (iii) protect invitee from known dangers.
(2) LICENSEES - (only owed the duty to warn of known hidden defects)
(2) UNKNOWN TRESPASSERS - (only duty is to not intentionally cause harm to the unknown trespasser)
A complete bar to recovery in FL. The plaintiff had knowledge of the risk and proceeded in the face of that risk anyway.
What is the Economic Loss Rule and when does it apply?
Rule of limited application in products liability claims.
This rule does NOT bar:
(i) statutory causes of action;
(ii) well-established tort actions arising from a contract [professional negligence actions]; or
(iii) a cause based on a tort that is independent of an underlying contract [tortious interference, conversion, & defamation]
What are the two forms of causation in Ordinary Negligence?
Actual Cause, Proximate Cause
(LIABILITY OF A BUSINESS) Duty owed to a Business Invitee?
Duty owed to a business invitee only goes to the extent of the invitation.
No liability for injury caused outside the scope of the invitation.
What is the"Transitory Foreign Objects" defense for businesses in FL?
In FL, a business has a continuing duty to use reasonable efforts to keep business premises free from transitory foreign objects which may cause foreseeable damage or injury.
What are PUNITIVE DAMAGES in Florida? When are they available to Plaintiff?
P proves by clear and convincing evidence that D acted intentionally or with willful, wanton, or gross misconduct.
Punitive damages are limited to the greater of three times the compensatory award or $500,000.
Who is owed a duty of care?
All foreseeable plaintiffs
Who may file a wrongful death claim in Florida?
Wrongful death claims are filed by:
(1) the personal representative of a deceased's estate
OR
(2) the deceased's next of kin.
(PARENT LIABILITY) In FL, do the Parents of Minor Children have a duty of care?
*a parent is generally NOT vicariously liable for a tort committed by their child*
HOWEVER-- parents have duty to exercise reasonable care:
(i) to control their minor child
AND
(ii) to prevent their child from intentionally harming others OR from creating an unreasonable risk of bodily harm to others.
What is the Open and Obvious Doctrine in FL?
A Property Owner's Defense to liability that is available to use when the plaintiff's injury was caused by a condition that was so open or obvious to the plaintiff that the plaintiff should have used due care to avoid the accident that resulted in the injury.
How does a plaintiff recover for MEDICAL DAMAGES in Florida?
(*NEW 2023 LAW*)
There must be “certain disclosures of information” to calculate medical damages.
A party must be able to present evidence of medical expenses in the amount actually paid for the services --- (but not the original billed amount which is often inflated).
What is a Breach? (of the duty of care)
A failure to conform to the requisite duty/standard of care, and is typically a question of fact for a jury to decide.
(PRODUCTS LIABILITY) Who is owed a duty of care by Commercial Suppliers?
What are the Statute of Limitations Defenses to tort liability?
1. There is 2-year statute of limitation that applies to wrongful death, medical malpractice, and general negligence cases.
2. There is a 4-year statute of limitation that applies to intentional torts and product liability.
What is the RECOVERY for a WRONGFUL DEATH action?
May recover the value of:
1. Lost support;
2. Loss of the decedent’s companionship and protection;
AND
3. Mental pain and suffering.