Tort Law

Assigning responsibility for harm

What does a slip-and-fall claim need besides a slip and a fall? Picture a customer at a Daytona Beach juice bar who slips on spilled smoothie and breaks a wrist. The injury is real, and the juice bar owed its customers reasonable care, but the claim is not finished. Under section 768.0755, Florida Statutes (opens in a new tab), a customer who slips on a spill in a business must prove the business knew about it or should have known, and should have cleaned it up. One more fact completes the fact pattern: the smoothie had been on the floor for forty minutes, a few steps from the counter. In the Tort Law activity you write four fact patterns of your own, and each has to carry every fact its claim needs.

That missing fact points to the idea that organizes all of tort law. Every claim is built from elements, a fixed list of what the plaintiff has to prove, and each tort has its own list. The plaintiff must prove every item on it. The defense wins if any single one fails, so defense lawyers hunt for the weakest. Knowing the list lets you write facts that satisfy it, and it lets you spot the gap a defense lawyer would find.

Three kinds of tort

Torts sort into three categories, and Cornell’s Wex overview of tort (opens in a new tab) sets out all three. The dividing line is fault: whether the defendant acted on purpose, acted carelessly, or is liable without either. At the purposeful end sit intentional torts, where the defendant acted to bring about the result, or knew it was substantially certain to follow. Take a roofer who tells a homeowner the whole roof must go, knowing a patch would do. If the homeowner pays for a new roof on that word, that is fraud. If the roofer honestly misread the damage, the same words are not an intentional tort. Any claim then turns on whether a careful roofer would have caught the mistake, and that is a question of negligence.

Negligence is the category a business meets most, and its four elements show how the structure works. The plaintiff must prove a duty of care, a breach of that duty, causation, and actual damages. Run the juice bar through them. A business owes its customers reasonable care in keeping the floor safe. It breaches that duty by leaving a spill it knew about, or should have found, where customers walk. The spill has to be what caused the fall, and the broken wrist supplies the damages. Cornell’s Wex entry on negligence (opens in a new tab) counts five elements instead of four, because it splits causation into cause in fact and proximate cause. The list is the same; Wex draws one more line.

The third category drops fault altogether. Strict liability makes a defendant answer for harm without proof of intent or carelessness, and Cornell’s Wex entry on strict liability (opens in a new tab) lists where it applies, from abnormally dangerous activities to defective products. The modern rule for products traces to a home workshop. A woodworker was turning a block of wood into a chalice on a Shopsmith, a combination power tool, when the wood flew out of the machine and struck the woodworker’s forehead. In Greenman v. Yuba Power Products, Inc., 377 P.2d 897 (Cal. 1963) (opens in a new tab), the California Supreme Court upheld the verdict against the manufacturer and held it strictly liable. It was enough that the user was hurt, while using the tool as intended, by a defect the user was not aware of, one that made the tool unsafe. The court gave its reason: the cost of injuries from defective products belongs with the manufacturers that market them, not with injured people who cannot protect themselves.

Florida adopted the rule in West v. Caterpillar Tractor Co., 336 So. 2d 80 (Fla. 1976) (opens in a new tab), and it still leaves the plaintiff real work. A plaintiff must prove the manufacturer’s connection to the product, a defect that made the product unreasonably dangerous, and a causal link between that condition and the injury. Strict liability, the court wrote, “does not make the manufacturer or seller an insurer.” What drops out is fault, not proof.

When the employer pays

A company can be liable for a tort it never committed. Vicarious liability charges an employee’s torts to the employer when they happen within the scope of employment. The doctrine’s Latin name, respondeat superior, means “let the superior answer.” If a delivery driver runs a red light on the route and hits a car, the other driver can sue the company as well as the employee. The company is liable even if its own conduct was careful. That is why businesses spend on training and insurance: the exposure does not wait for the company to do something wrong.

Everything turns on the scope of employment, and each state writes its own test, as Cornell’s Wex entry on respondeat superior (opens in a new tab) explains. Florida’s test has three parts. The conduct must be the kind of work the employee was hired to do. It must happen substantially within the time and place the job allows. And it must be driven, at least in part, by a purpose to serve the employer. The doctrine also stops at employees: a company generally does not answer for the torts of an independent contractor it hires.

The test decided Sussman v. Florida East Coast Properties, Inc., 557 So. 2d 74 (Fla. 3d DCA 1990) (opens in a new tab). A health spa’s manager called a fitness instructor and asked for a birthday cake for the assistant manager, to be picked up on the way to work. The instructor detoured five blocks to a supermarket, reached over to keep the cake from sliding off the seat, and lost control of the car. It struck a pedestrian waiting at a bus bench, who sued the company that owned the spa. The Third District held that the instructor was outside the scope of the spa’s business as a matter of law. The instructor was commuting in a personal car and testified that the cake was a gift among friends, not something done because the boss said so. Whose errand it was, whose car, and why the employee went: facts like these decide a scope question, so a fact pattern about an employer’s liability has to supply them.

What a plaintiff can recover

Once the elements are proved, the question becomes how much, and compensatory and punitive damages answer it in two different ways. Compensatory damages ask what the plaintiff lost. For the juice bar customer, that means the X-rays and the cast, the paychecks missed while the wrist healed, and the pain and suffering. The award aims to leave the plaintiff where the plaintiff would have stood if the fall had never happened.

Punitive damages ask a different question: what the defendant deserves. They punish the defendant and deter others, so they look at the conduct rather than the loss. That is why Florida guards them closely. Under chapter 768 (opens in a new tab), a jury may award them only if clear and convincing evidence shows intentional misconduct or gross negligence. Gross negligence means conduct so reckless or wanting in care that it shows conscious disregard of, or indifference to, the life, safety, or rights of the people it exposes. An ordinary spill does not come close. An owner who knew the smoothie cooler leaked onto the floor every night, and told the staff not to bother mopping, might.

Section 768.73 then caps most awards. The ordinary limit is three times the compensatory damages or $500,000, whichever is greater. The limit rises to the greater of four times or $2 million when the conduct was driven solely by unreasonable financial gain and a managing agent or policymaker knew the danger. It disappears when the defendant specifically intended to harm the plaintiff. The jury is never told the cap exists. Cornell’s Wex entry on punitive damages (opens in a new tab) describes a further check: courts compare the punitive award with the compensatory one and weigh how reprehensible the conduct was.

One more rule ties this section to the last. Vicarious liability can make a company pay compensatory damages for an employee’s tort, but Florida will not punish a company for an employee’s misconduct alone. Under section 768.72, the company must have taken part, its officers or managers must have knowingly condoned the conduct, or its own gross negligence must have contributed to the harm. Compensation can follow an employee’s fault up to the employer. Punishment needs the company’s own.

Writing the fact patterns

Go back to the juice bar. The claim came together when one fact went in: forty minutes of smoothie on the floor, a few steps from the counter. The Tort Law activity asks you to do that on purpose, four times over. You pick four torts, find a Florida case that turns on each, and write a business story with new people and new facts that raises the same issue. Check each case before you build on it; the Case Evaluator is there to flag a case where your tort comes up only in passing. Then test every story against its case, one element at a time. Each element needs a fact. No fact should pull the claim into a different tort.