F.S NEGLIGENCE Ch. 768

Transcription

1 F.S NEGLIGENCE Ch. 768 (a) Whether the amount awarded is indicative of prejudice, passion, or corruption on the part of the trier of fact. (b) Whether it clearly appears that the trier of fact ignored the evidence in reaching the verdict or misconceived the merits of the case relating to the amounts of damages recoverable. (c) Whether the trier of fact took improper elements of damages into account or arrived at the amount of damages by speculation or conjecture. (d) Whether the amount awarded bears a reasonable relation to the amount of damages proved and the injury suffered. (e) Whether the amount awarded is supported by the evidence and is such that it could be adduced in a logical manner by reasonable persons. (3) It is the intent of the Legislature to vest the trial courts of this state with the discretionary authority to review the amounts of damages awarded by a trier of fact, in light of a standard of excessiveness or inadequacy. The Legislature recognizes that the reasonable actions of a jury are a fundamental precept of American jurisprudence and that such actions should be disturbed or modified only with caution and discretion. However, it is further recognized that a review by the courts in accordance with the standards set forth in this section provides an additional element of soundness and logic to our judicial system and is in the best interests of the citizens of Florida. History.-s. 41, ch ; s. 283, ch Liability for injury to employees.-lf any person is injured by a railroad company by the running of the locomotives or cars, or other machinery of such company, he being at the time of such injury an employee of the company, and the damage was caused by negligence of another employee, and without fault or negligence on the part of the person injured, his employment by the company shall be no bar to a recovery. No contract which restricts such liability shall be legal or binding. History.-s. 3, ch. 4071, 1891 ; GS 3150; RGS 4966; CGL cf.-s Contracts limiting liability invalid Liability of corporations having relief department for injury to employees; contracts in violation of act void.-any person, association of persons, or corporation that has, or shall hereafter have, a relief department for the benefit of their or its employees, or which shall contribute any money or other thing of value to any relief society or association for the benefit of their or its employees, to which such employee may also contribute any money, or other thing of value, shall not be relieved of liability to such employee, or in case of his death to any person authorized by law to sue for such death, for the negligent injury or killing of such employee, because such employee may have been a member of or contributed to any such relief department, or received any benefits therefrom, but such employee, and in case of his death any person or persons authorized by law to sue for such death, shall be entitled to demand, sue for and recover any benefit that such employee may have been entitled to receive by reason of having been a member of or contributed to any such relief 1401 department, society or association, and such employee, and in case of his death any person authorized by law to sue for such death, shall be entitled to institute suit against any such person, association of persons or corporations, and to recover for any injury suffered by such employee and for the death of such employee, suffered through the negligence of such person, association of persons, or corporation, and any contract, stipulation or provision in violation of this section is declared to be null and void. Hlstory.-s. 1, ch. 6520, 1913; RGS 4967; CGL Employer liability limits; ridesharing.- (1) No employer shall be liable for injuries or damages sustained by operators, passengers, or other persons resulting from the operation of a motor vehicle while being used in a ridesharing arrangement between a place of residence and a place of employment or termini near such places; nor shall such employer be liable for injuries or damages sustained to operators, passengers, or other persons because such employer provides information or incentives to, or otherwise encourages, employees to participate in ridesharing arrangements. However, this section does not apply to motor vehicles owned or leased by an employer nor to acts by an employee within the scope of his employment as defined in subsection (2). (2) For purposes of ridesharing, employment shall be deemed to commence when an employee arrives at the employer's place of employment to report for work and to terminate when the employee leaves the employer's place of employment, excluding areas not under the control of the employer. However, an employee shall be deemed to be within the course of employment when the employee is engaged in the performance of duties assigned or directed by the employer, or acting in the furtherance of the business of the employer, irrespective of location. History.-ss. 2, 3, ch Pits and holes not to be left open.-lt is not lawful for any company or individual to leave open any pit or other hole outside of an enclosure of a greater depth and breadth than 2 feet; provided, however, such pit or hole may be left open by enclosing the same with a fence or other enclosure that would be a safeguard against horses, cattle or other domestic animals falling into the same; provided further, that this section shall not apply to pits or holes made by any company or individual while bona fide engaged in actual mining operations, such pits and holes to be enclosed as herein provided when said mining operations shall cease or be discontinued. History.-s. 1, ch. 4051, 1891; GS 3152; RGS 4969; CGL Pits and holes; measure of damages.-any company or individual who may leave open pits or other holes contrary to the provisions of s shall be liable in damages to any person injured thereby in an amount double the actual damages sustained, which may be recovered in any court of competent jurisdiction. History.-s. 2, ch. 4051, 1891 ; GS 3153; RGS 4970; CGL 7057.

2 Ch. 768 NEGLIGENCE F.S Motor vehicle colliding with any animal at large on a public highway.-whenever a motor vehicle collides with any animal at large on a public highway of this state, and the operator of the motor vehicle dies as a result of the collision, the owner of such animal shall have no cause of action against the personal representative of the estate of the said deceased operator on account of any injuries to, or the death of, such animal, resulting from the collision. Hlstory.-s. 1, ch , Liability for injury or damage resulting from intoxication.-a person who sells or furnishes alcoholic beverages to a person of lawful drinking age shall not thereby become liable for injury or damage caused by or resulting from the intoxication of such person, except that a person who willfully and unlawfully sells or furnishes alcoholic beverages to a person who is not of lawful drinking age or who knowingly serves a person habitually addicted to the use of any or all alcoholic beverages may become liable for injury or damage caused by or resulting from the intoxication of such minor or person. Hlstory.-s. 1, ch cf.-s Selling, giving, or serving alcoholic beverages to persons under age 21 prohibited Hazardous spills; definitions; persons who assist in containing or treating spills; immunity from liability; exceptions.- (1) For the purpose of this section: (a) The term "hazardous materials" includes all materials and substances which are now designated or defined as hazardous by the law of this state or federal law or by the rules or regulations of this state or any federal agency. (b) The term "spill" includes the accidental spilling, leaking, pumping, pouring, emitting, or dumping of any hazardous waste or material which creates an emergency hazardous situation or is expected to create an emergency hazardous situation. (c) An "emergency hazardous situation" exists whenever there is an imminent and substantial threat to public health and safety. (2) Notwithstanding any provision of the law to the contrary, no person who provides good faith assistance or advice in immediately containing or treating, or attempting to contain, treat, or prevent, an actual or threatened spill is subject to civil liabilities or penalties of any type. Except for the immediate response to the spill or threatened spill, all activities to prevent, contain, clean up, and dispose of, or to attempt to prevent, contain, clean up, and dispose of, the hazardous material shall be in accordance with applicable state and federal law. (3) The immunities provided in subsection (2) do not apply to any person: (a) Whose act or omission causes in whole or in part such actual or threatened discharge and who would otherwise be liable therefor; (b) Who receives compensation other than reimbursement for out-of-pocket expenses for services in rendering such assistance or advice; 1402 (c) Who fails to act as an ordinary reasonably prudent person would have acted under the same or similar circumstances; or (d) Who fails to comply with the lawful instruction of an on-scene, governmentally supervised, operational emergency response team whose duty is to prevent, contain, or clean up the spill. (4) Nothing in subsection (2) shall be construed to limit or otherwise affect the liability of: (a) Any person for damages resulting from such person's gross negligence or from such person's reckless, wanton, or intentional misconduct; or (b) Any person for the improper management of the hazardous waste or material after the emergency spill response activities are completed. Hlatory.-s. 39, ch Good Samaritan Act; immunity from civil lia bility.- (1) This act shall be known and cited as the "Good Samaritan Act." (2) Any person, including those licensed to practice medicine, who gratuitously and in good faith renders emergency care or treatment at the scene of an emergency outside of a hospital, doctor's office, or other place having proper medical equipment, without objection of the injured victim or victims thereof, shall not be held liable for any civil damages as a result of such care or treatment or as a result of any act or failure to act in providing or arranging further medical treatment where the person acts as an ordinary reasonably prudent man would have acted under the same or similar circumstances. (3) Any person, including those licensed to practice veterinary medicine, who gratuitously and in good faith renders emergency care or treatment to an injured animal at the scene of an emergency on or adjacent to a roadway shall not be held liable for any civil damages as a result of such care or treatment or as a result of any act or failure to act in providing or arranging further medical treatment where the person acts as an ordinary reasonably prudent man would have acted under the same or similar circumstances. Hlatory.-ss. 1, 2, ch ; s. 1, ch Volunteer team physicians; immunity. Any person licensed to practice medicine pursuant to chapter 458, chapter 459, chapter 460, chapter 461, or chapter 466: (1) Who is acting in the capacity of a volunteer team physician in attendance at an athletic event sponsored by a public or private elementary or secondary school; and (2) Who gratuitously and in good faith prior to the athletic event agrees to render emergency care or treatment to any participant in such event in connection with an emergency arising during or as the result of such event, without objection of such participant, shall not be held liable for any civil damages as a result of such care or treatment or as a result of any act or failure to act in providing or arranging further medical treatment when such care or treatment was rendered in accordance with acceptable standards of practice as pro-

3 F.S NEGLIGENCE Ch. 768 vided for in s Hiatory.-s. 1, ch ; s. 483, ch Liability for canned or perishable food distributed free of charge.- (1) As used in this section: (a) "Gleaner" means a person who harvests for free distribution an agricultural crop that has been donated by the owner. (b) "Canned food" means any food which has been commercially processed and prepared for human consumption and which has been commercially packaged in such a manner as to remain nonperishable without refrigeration for a reasonable length of time. (c) "Perishable food" means any food that may spoil or otherwise become unfit for human consumption because of its nature, type, or physical condition. "Perishable food" includes, but is not limited to, fresh or processed meats, poultry, seafood, dairy products, bakery products, eggs in the shell, fresh fruits or vegetables, and foods that have been noncommercially packaged or that have been frozen or otherwise require refrigeration to remain nonperishable for a reasonable length of time. (2) A good faith donor or gleaner of any canned or perishable food, apparently fit for human consumption, to a bona fide charitable or nonprofit organization for free distribution shall not be subject to criminal penalty or civil damages arising from the condition of the food, unless an injury is caused by the gross negligence, recklessness, or intentional misconduct of the donor or gleaner. (3) A bona fide charitable or nonprofit organization which accepts any canned or perishable food, apparently fit for human consumption, from a good faith donor or gleaner for free distribution shall not be subject to criminal penalty or civil damages arising from the condition of the food, unless an injury is caused by the gross negligence, recklessness, or intentional misconduct of an agent of the charitable or nonprofit organization. (4) The provisions of this section apply to the good faith donation of canned or perishable food not readily marketable due to appearance, freshness, grade, surplus, or other such considerations. (5) The provisions of this section shall not be construed to restrict the authority of any lawful agency to otherwise regulate or ban the use of food for human consumption. Hlatory.-s. 1, ch ; s. 1, ch Suit by state; waiver of sovereign immunity. -Suit by the state or any of its agencies or subdivisions to recover damages in tort shall constitute a waiver of sovereign immunity from liability and suit for damages in tort to the extent of permitting the defendant to counterclaim for damages resulting from the same transaction or occurrence. Hlatory.-s. 1, ch over such actions until final judgment and satisfaction thereof. If any such action heretofore filed has been dismissed or otherwise disposed of on the grounds that chapter , Laws of Florida, was repealed by chapter , Laws of Florida, such action shall be reinstated by order of the court upon the filing of a petition by the plaintiff during the period between July 1, 1971, and July 1, Any person who has not heretofore filed suit but who claims a right of action pursuant to chapter , Laws of Florida, during its effective period shall have the right to file same at any time after July 1, 1971, but before July 1, Any action prosecuted under this section shall be subject to all provisions of chapter , Laws of Florida. Hlatory.-s. 1, ch Wrongful Death Act.-Sections may be cited as the "Florida Wrongful Death Act. " Hlatory.-s. 1, ch Legislative intent.-lt is the public policy of the state to shift the losses resulting when wrongful death occurs from the survivors of the decedent to the wrongdoer. Sections are remedial and shall be liberally construed. Hlatory.-s. 1, ch Definitions.-As used in ss : (1) "Survivors" means the decedent's spouse, minor children, parents, and, when partly or wholly dependent on the decedent for support or services, any blood relatives and adoptive brothers and sisters. It includes the illegitimate child of a mother, but not the illegitimate child of the father unless the father has recognized a responsibility for the child's support. (2) "Minor children" means children under 25 years of age, notwithstanding the age of majority. (3) "Support" includes contributions in kind as well as money. (4) "Services" means tasks, usually of a household nature, regularly performed by the decedent that will be a necessary expense to the survivors of the decedent. These services may vary according to the identity of the decedent and survivor and shall be determined under the particular facts of each case. (5) "Net accumulations" means the part of the decedent's expected net business or salary income, including pension benefits, that the decedent probably would have retained as savings and left as part of his estate if he had lived his normal life expectancy. "Net business or salary income" is the part of the decedent's probable gross income after taxes, excluding income from investments continuing beyond death, that remains after deducting the decedent's personal expenses and support of survivors, excluding contributions in kind. Hlatory.-s. 1, ch ; s. 66, ch ; s. 40, ch ; s. 1, ch cf.-s Definition of minor. s Rights, privileges, and obligations of persons 18 years of age or older Waiver of sovereign immunity; revival of certain causes.-the waiver of sovereign immunity authorized by chapter , Laws of Florida (former s ), is revived as to causes of action arising during the period from July 1, 1969, to July 1, 1970, and the courts of this state shall have continuing jurisdiction Right of action.-when the death of a person is caused by the wrongful act, negligence, default, or breach of contract or warranty of any person, including those occurring on navigable waters, and the event would have entitled the person injured to maintain an action and recover damages if death had not ensued, the

4 Ch. 768 NEGLIGENCE F.S person or watercraft that would have been liable in damages if death had not ensued shall be liable for damages as specified in this act notwithstanding the death of the person injured, although death was caused under circumstances constituting a felony. Hiatory.-s. 1, ch Parties.-The action shall be brought by the decedent's personal representative, who shall recover for the benefit of the decedent's survivors and estate all damages, as specified in this act, caused by the injury resulting in death. When a personal injury to the decedent results in his death, no action for the personal injury shall survive, and any such action pending at the time of death shall abate. The wrongdoer's personal representative shall be. the defendant if the wrongdoer dies before or pending the action. A defense that would bar or reduce a survivor's recovery if he were the plaintiff may be asserted against him, but shall not affect the recovery of any other survivor. Hiatory.-s. 1. ch Damages.-AII potential beneficiaries of a recovery for wrongful death, including the decedent's estate, shall be identified in the complaint, and their relationships to the decedent shall be alleged. Damages may be awarded as follows: (1) Each survivor may recover the value of lost support and services from the date of the decedent's injury to his death, with interest, and future loss of support and services from the date of death and reduced to present value. In evaluating loss of support and services, the survivor's relationship to the decedent, the amount of the decedent's probable net income available for distribution to the particular survivor, and the replacement value of the decedent's services to the survivor may be considered. In computing the duration of future losses, the joint life expectancies of the survivor and the decedent and the period of minority, in the case of healthy minor children, may be considered. (2) The surviving spouse may also recover for loss of the decedent's companionship and protection and for mental pain and suffering from the date of injury. (3) Minor children of the decedent may also recover for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury. (4) Each parent of a deceased minor child may also recover for mental pain and suffering from the date of injury. (5) Medical or funeral expenses due to the decedent's injury or death may be recovered by a survivor who has paid them. (6) The decedent's personal representative may recover for the decedent's estate the following: (a) Loss of earnings of the deceased from the date of injury to the date of death, less lost support of survivors excluding contributions in kind, with interest. Loss of the prospective net accumulations of an estate, which might reasonably have been expected but for the wrongful death, reduced to present money value, may also be recovered : 1. If the decedent's survivors include a surviving spouse or lineal descendants; or 2. If the decedent is not a minor child as defined in s {2), there are no lost support and services recoverable under subsection (1 ), and there is a surviving parent. (b) Medical or funeral expenses due to the decedent's injury or death that have become a charge against his estate or that were paid by or on behalf of decedent, excluding amounts recoverable under subsection (5). (c) Evidence of remarriage of the decedent's spouse is admissible.. (7) All awards for the decedent's estate are subject to the claims of creditors who have complied with the requirements of probate law concerning claims. Hiatory.-s. 1, ch ; s. 2, ch ; s. 1, ch Form of verdict.-the amounts awarded to each survivor and to the estate shall be stated separately in the verdict. Hiatory.-s. 1, ch Protection of minors and incompetents. The court shall provide protection for any amount awarded for the benefit of a minor child or an incompetent pursuant to the Florida Guardianship Law. Hiatory.-s. 1, ch Death of a survivor before judgment.-a survivor's death before final judgment shall limit the survivor's recovery to lost support and services to the date of his death. The personal representative shall pay the amount recovered to the personal representative of the deceased survivor. Hiatory.-s. 1, ch Court approval of settlements.-while an action under this act is pending, no settlement as to amount or apportionment among the beneficiaries which is objected to by any survivor or which affects a survivor who is a minor or an incompetent shall be effective unless approved by the court. Hiatory.-s. 1, ch Litigation expenses.-attorneys' fees and other expenses of litigation shall be paid by the personal representative and deducted from the awards to the survivors and the estate in proportion to the amounts awarded to them, but expenses incurred for the benefit of a particular survivor or the estate shall be paid from their awards. Hiatory.-s. 1, ch Effective date.-sections shall take effect on July 1, 1972, and shall not apply to deaths occurring before that date. Hiatory.-s. 1, ch Waiver of sover-eign immunity in tort actions; recovery limits; limitation on attorney fees; statute of limitations; exclusions.- (1) In accordance with s. 13, Art. X, State Constitution, the state, for itself and for its agencies or subdivisions, hereby waives sovereign immunity for liability for torts, but only to the extent specified in this act. Actions at law against the state or any of its agencies or subdivisions to recover damages in tort for money damages

5 F.S NEGLIGENCE Ch. 768 against the state or its agencies or subdivisions for injury or loss of property, personal injury, or death caused by the negligent or wrongful act or omission of any employee of the agency or subdivision while acting within the scope of his office or employment under circumstances in which the state or such agency or subdivision, if a private person, would be liable to the claimant, in accordance with the general laws of this state, may be prosecuted subject to the limitations specified in this act. Any such action may be brought in the county where the property in litigation is located or, if the affected agency or subdivision has an office in such county for the transaction of its customary business, where the cause of action accrued. (2) As used in this act, "state agencies or subdivisions" include the executive departments, the Legislature, the judicial branch (including public defenders), and the independent establishments of the state; counties and municipalities; and corporations primarily acting as instrumentalities or agencies of the state, counties, or municipalities. (3) Except for a municipality, the affected agency or subdivision may, at its discretion, request the assistance of the Department of Insurance in the consideration, adjustment, and settlement of any claim under this act. (4) Subject to the provisions of this section, any state agency or subdivision shall have the right to appeal any award, compromise, settlement, or determination to the court of appropriate jurisdiction. (5) The state and its agencies and subdivisions shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances, but liability shall not include punitive damages or interest for the period before judgment. Neither the state nor its agencies or subdivisions shall be liable to pay a claim or a judgment by any one person which exceeds the sum of $100,000 or any claim or judgment, or portions thereof, which, when totaled with all other claims or judgments paid by the state or its agencies or subdivisions arising out of the same incident or occurrence, exceeds the sum of $200,000. However, a judgment or judgments may be claimed and rendered in excess of these amounts and may be settled and paid pursuant to this act up to $100,000 or $200,000, as the case may be; and that portion of the judgment that exceeds these amounts may be reported to the Legislature, but may be paid in part or in whole only by further act of the Legislature. The limitations of liability set forth in this subsection shall apply to the state and its agencies and subdivisions whether or not the state or its agencies or subdivisions possessed sovereign immunity before July 1' (6)(a) An action may not be instituted on a claim against the state or one of its agencies or subdivisions unless the claimant presents the claim in writing to the appropriate agency, and also, except as to any claim against a municipality, presents such claim in writing to the Department of Insurance, within 3 years after such claim accrues and the Department of Insurance or the appropriate agency denies the claim in writing ; except that, if such claim is for contribution pursuant to s , it shall be so presented within 6 months after the 1405 judgment against the tortfeasor seeking contribution has become final by lapse of time for appeal or after appellate review or, if there is no such judgment, within 6 months after the tortfeasor seeking contribution has either discharged the common liability by payment or agreed, while the action is pending against him, to discharge the common liability. The failure of the Department of Insurance or the appropriate agency to make final disposition of a claim within 6 months after it is filed shall be deemed a final denial of the claim for purposes of this section. The provisions of this subsection do not apply to such claims as may be asserted by counterclaim pursuant to s (b) For purposes of this section, the requirements of notice to the agency and denial of the claim are conditions precedent to maintaining an action but shall not be deemed to be elements of the cause of action and shall not affect the date on which the cause of action accrues. (7) In actions brought pursuant to this section, process shall be served upon the head of the agency concerned and also, except as to a defendant municipality, upon the Department of Insurance; and the department or the agency concerned shall have 30 days within which to plead thereto. (8) No attorney may charge, demand, receive, or collect, for services rendered, fees in excess of 25 percent of any judgment or settlement. (9)(a) No officer, employee, or agent of the state or of any of its subdivisions shall be held personally liable in tort or named as a party defendant in any action for any injury or damage suffered as a result of any act, event, or omission of action in the scope of his employment or function, unless such officer, employee, or agent acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. However, such officer, employee, or agent shall be considered an adverse witness in a tort action for any injury or damage suffered as a result of any act, event, or omission of action in the scope of his employment or function. The exclusive remedy for injury or damage suffered as a result of an act, event, or omission of an officer, employee, or agent of the state or any of its subdivisions or constitutional officers shall be by action against the governmental entity, or the head of such entity in his official capacity, or the constitutional officer of which the officer, employee, or agent is an employee, unless such act or omission was committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. The state or its subdivisions shall not be liable in tort for the acts or omissions of an officer, employee, or agent committed while acting outside the course and scope of his employment or committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. (b) As used in this subsection, the term: 1. "Employee" includes any volunteer firefighter. 2. "Officer, employee, or agent" includes, but is not limited to, any public defender or his employee or agent, including, among others, an assistant public defender and an investigator.

6 Ch. 768 NEGLIGENCE F.S (c) For purposes of the waiver of sovereign immunity only, a member of the Florida National Guard is not acting within the scope of state employment when performing duty under the provisions of Title 10 or Title 32 of the United States Code or other applicable federal law; and neither the state nor any individual may be named in any action under this chapter arising from the performance of such federal duty. (10) Laws allowing the state or its agencies or subdivisions to buy insurance are still in force and effect and are not restricted in any way by the terms of this act. (11) Every claim against the state or one of its agencies or subdivisions for damages for a negligent or wrongful act or omission pursuant to this section shall be forever barred unless the civil action is commenced by filing a complaint in the court of appropriate jurisdiction within 4 years after such claim accrues; except that with respect to any action for contribution, the action must be commenced within the limitations provided in s (4). (12) No action may be brought against the state or any of its agencies or subdivisions by anyone who unlawfully participates in a riot, unlawful assembly, public demonstration, mob violence, or civil disobedience if the claim arises out of such riot, unlawful assembly, public demonstration, mob violence, or civil disobedience. Nothing in this act shall abridge traditional immunities pertaining to statements made in court. (13) The state and its agencies and subdivisions are authorized to be self-insured, to enter into risk management programs, or to purchase liability insurance for whatever coverage they may choose, or to have any combination thereof, in anticipation of any claim, judgment, and claims bill which they may be liable to pay pursuant to this section. Agencies or subdivisions, and sheriffs for the purpose of police professional liability only, which are subject to homogeneous risks may purchase insurance jointly or may join together as selfinsurers to provide other means of protection against tort claims, any charter provisions or laws to the contrary notwithstanding. Sheriffs may join together as selfinsurers to provide coverage for police professional liability claims only. (14) This section, as amended by ch , Laws of Florida, shall apply only to causes of actions which accrue on or after October 1, (15) No provision of this section, or of any other section of the Florida Statutes, whether read separately or in conjunction with any other provision, shall be construed to waive the immunity of the state or any of its agencies from suit in federal court, as such immunity is guaranteed by the Eleventh Amendment to the Constitution of the United States, unless such waiver is explicitly and definitely stated to be a waiver of the immunity of the state and its agencies from suit in federal court. This subsection shall not be construed to mean that the state has at any time previously waived, by implication, its immunity, or that of any of its agencies, from suit in federal court through any statute in existence prior to June 24, History.-s. 1, ch : s. 1, ch : ss. 1, 2, 3, ch : s. 9, ch : s. 1, ch : s. 284, ch : s. 1, ch : ss. 1, 2, ch : s. 1, ch ; s. 1, ch : s. 1, ch : s. 1, ch Effectiveness.-Section shall take effect on July 1, 1974, for the executive departments of the state and on January 1, 1975, for all other agencies and subdivisions of the state, and shall apply only to incidents occurring on or after those dates. Hlatory.-s. 4, ch : s. 3, ch Contribution among tortfeasors.- (1) SHORT TITLE.- This act shall be cited as the "Uniform Contribution Among T ortfeasors Act." (2) RIGHT TO CONTRIBUTION.- (a) Except as otherwise provided in this act, when two or more persons become jointly or severally liable in tort for the same injury to person or property, or for the same wrongful death, there is a right of contribution among them even though judgment has not been recovered against all or any of them. (b) The right of contribution exists only in favor of a tortfeasor who has paid more than his pro rata share of the common liability, and his total recovery is limited to the amount paid by him in excess of his pro rata share. No tortfeasor is compelled to make contribution beyond his own pro rata share of the entire liability. (c) There is no right of contribution in favor of any tortfeasor who has intentionally (willfully or wantonly) caused or contributed to the injury or wrongful death. (d) A tortfeasor who enters into a settlement with a claimant is not entitled to recover contribution from another tortfeasor whose liability for the injury or wrongful death is not extinguished by the settlement or in respect to any amount paid in a settlement which is in excess of what was reasonable. (e) A liability insurer who by payment has discharged in full or in part the liability of a tortfeasor and has thereby discharged in full its obligation as insurer is subrogated to the tortfeasor's right of contribution to the extent of the amount it has paid in excess of the tortfeasor's pro rata share of the common liability. This provision does not limit or impair any right of subrogation arising from any other relationship. (f) This act does not impair any right of indemnity under existing law. When one tortfeasor is entitled to indemnity from another, the right of the indemnity obligee is for indemnity and not contribution, and the indemnity obligor is not entitled to contribution from the obligee for any portion of his indemnity obligation. (g) This act shall not apply to breaches of trust or of other fiduciary obligation. (3) PRO RATA SHARES.-In determining the pro rata shares of tortfeasors in the entire liability: (a) Their relative degrees of fault shall be the basis for allocation of liability. (b) If equity requires, the collective liability of some as a group shall constitute a single share. (c) Principles of equity applicable to contribution generally shall apply. (4) ENFORCEMENT.- (a) Whether or not judgment has been entered in an action against two or more tortfeasors for the same injury or wrongful death, contribution may be enforced by separate action. (b) When a judgment has been entered in an action against two or more tortfeasors for the same injury or

7 F.S NEGLIGENCE Ch. 768 wrongful death, contribution may be enforced in that action by judgment in favor of one against other judgment defendants, by motion upon notice to all parties to the action. (c) If there is a judgment for the injury or wrongful death against the tortfeasor seeking contribution, any separate action by him to enforce contribution must be commenced within 1 year after the judgment has be come final by lapse of time for appeal or after appellate review. (d) If there is no judgment for the injury or wrongful death against the tortfeasor seeking contribution, his right of contribution is barred unless he has either: 1. Discharged by payment the common liability with in the statute of limitations period applicable to claim ant's right of action against him and has commenced his action for contribution within 1 year after payment, or 2. Agreed, while action is pending against him, to discharge the common liability and has within 1 year af ter the agreement paid the liability and commenced his action for contribution. (e) The recovery of a judgment for an injury or wrongful death against one tortfeasor does not of itself discharge the other tortfeasors from liability for the injury or wrongful death unless the judgment is satisfied. The satisfaction of the judgment does not impair any right of contribution. (f) The judgment of the court in determining the lia bility of the several defendants to the claimant for an in jury or wrongful death shall be binding as among such defendants in determining their right to contribution. (5) RELEASE OR COVENANT NOT TO SUE.-When a release or a covenant not to sue or not to enforce judg ment is given in good faith to one of two or more persons liable in tort for the same injury or the same wrongful death: (a} It does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms so provide, but it reduces the claim against the others to the extent of any amount stipulated by the re lease or the covenant, or in the amount of the consideration paid for it, whichever is the greater; and, (b) It discharges the tortfeasor to whom it is given from all liability for contribution to any other tortfeasor. (6) UNIFORMITY OF INTERPRETATION.- This act shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states that enact it. (7) PENDING CAUSES OF ACTION.- This act shall apply to all causes of action pending on June 12, 1975, wherein the rights of contribution among joint tortfeasors is involved and to cases thereafter filed. Hlatory.-ss. 1, 4, ch ; s. 1, ch PART II MEDICAL MALPRACTICE AND RELATED MATTERS Medical review committee, immunity from lia bility Medical negligence; standards of recovery Florida Medical Consent Law Itemized verdict. Remittitur and additur. Pleading in medical negligence cases; claim for punitive damages. Collateral sources of indemnity. Alternative methods of payment of damage awards. Florida Patient's Compensation Fund. Notice before filing action for medical mal practice; presuit screening period; offers for admission of liability and for arbitration; review. Court-ordered arbitration. Mandatory settlement conference in medical malpractice actions. Offer of judgment and demand for judgment in medical malpractice cases. Comparative fault and contribution in medical malpractice actions. Attorney's fees in medical malpractice actions. Liability of health care facilities. Engaging in unnecessary diagnostic testing; penalties. Medical malpractice impact study Medical review committee, immunity from liability.- (1) As used in this section: (a) The term "medical review committee" or "commit tee" means: 1. A committee: a. Of a hospital or ambulatory surgical center li censed under chapter 395 or a health maintenance or ganization certificated under part II of chapter 641, b. Of a state or local professional society of health care providers, or c. Of a medical staff of a licensed hospital or nursing home, provided the medical staff operates pursuant to written bylaws that have been approved by the governing board of the hospital or nursing home, which committee is formed to evaluate and improve the quality of health care rendered by providers of health service or to determine that health services rendered were professionally indicated or were performed in compliance with the applicable standard of care or that the cost of health care rendered was considered reasonable by the providers of professional health services in the area; or 2. A committee of an insurer, self-insurer, or joint underwriting association of medical malpractice insurance, or other persons conducting review pursuant to the provisions of s (b) The term "health care providers" means physi cians licensed under chapter 458, osteopaths licensed under chapter 459, podiatrists licensed under chapter 461, dentists licensed under chapter 466, chiropractors licensed under chapter 460, pharmacists licensed under chapter 465, or hospitals or ambulatory surgical centers licensed under chapter 395. (2) A medical review committee of a hospital or ambulatory surgical center or health maintenance organiza

8 Ch. 768 NEGLIGENCE F.S tion shall screen, evaluate, and review the professional and medical competence of applicants to, and members of, medical staff. As a condition of licensure, each health care provider shall cooperate with a review of professional competence performed by a medical review committee. (3)(a) There shall be no monetary liability on the part of, and no cause of action for damages shall arise against, any member of a duly appointed medical review committee, or any health care provider furnishing any information, including information concerning the prescribing of substances listed in s (2), to such committee, or any person, including any person acting as a witness, incident reporter to, or investigator for, a medical review committee, for any act or proceeding undertaken or performed within the scope of the functions of any such committee if the committee member or health care provider acts without intentional fraud. (b) The provisions of this section do not affect the official immunity of an officer or employee of a public corporation. (4) Except as provided in subsection (3), this section shall not be construed to confer immunity from liability on any professional society or hospital or upon any health professional while performing services other than as a member of a medical review committee or upon any person, including any person acting as a witness, incident reporter to, or investigator for, a medical review committee, for any act or proceeding undertaken or performed outside the scope of the functions of such committee. In any case in which, but for the enactment of the preceding provisions of this section, a cause of action would arise against a hospital, professional society, or an individual health professional, such cause of action shall exist as if the preceding provisions had not been enacted. (5) The investigations, proceedings, and records of a committee as described in the preceding subsections shall not be subject to discovery or introduction into evidence in any civil action against a provider of professional health services arising out of the matters which are the subject of evaluation and review by such committee, and no person who was in attendance at a meeting of such committee shall be permitted or required to testify in any such civil action as to any evidence or other matters produced or presented during the proceedings of such committee or as to any findings, recommendations, evaluations, opinions, or other actions of such committee or any members thereof. However, information, documents, or records otherwise available from original sources are not to be construed as immune from discovery or use in any such civil action merely because they were presented during proceedings of such committee, nor should any person who testifies before such committee or who is a member of such committee be prevented from testifying as to matters within his knowledge, but the said witness cannot be asked about his court shall award reasonable attorney's fees and costs to the defendant. (b) As a condition of any health care provider bringing any action against any person that initiated, participated in, was a witness in, or conducted any review as authorized by this section and before any responsive pleading is due, the health care provider shall post a bond or other security, as set by the court having jurisdiction of the action, in an amount sufficient to pay the costs and attorney's fees. Hlatory.-ss. 1, 2, ch ; s. 1, ch ; s. 1, ch ; s. 285, ch ; s. 3, ch ; s. 8, ch Note.-Former s Medical negligence; standards of recovery. (1) In any action for recovery of damages based on the death or personal injury of any person in which it is alleged that such death or injury resulted from the negligence of a health care provider as defined in s (2) (b), the claimant shall have the burden of proving by the greater weight of evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider. The prevailing professional standard of care for a given health care provider shall be that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers. (2)(a) If the health care provider whose negligence is claimed to have created the cause of action is not certified by the appropriate American board as being a specialist, is not trained and experienced in a medical specialty, or does not hold himself out as a specialist, a "similar health care provider" is one who: 1. Is licensed by the appropriate regulatory agency of this state; 2. Is trained and experienced in the same discipline or school of practice; and 3. Practices in the same or similar medical community. (b) If the health care provider whose negligence is claimed to have created the cause of action is certified by the appropriate American board as a specialist, is trained and experienced in a medical specialty, or holds himself out as a specialist, a "similar health care provider" is one who: 1. Is trained and experienced in the same specialty; and 2. Is certified by the appropriate American board in the same specialty. However, if any health care provider described in this paragraph is providing treatment or diagnosis for a con dition which is not within his specialty, a specialist trained in the treatment or diagnosis for that condition shall be considered a "similar health care provider." testimony before such a committee or opinions formed (c) The purpose of this subsection is to establish a by him as a result of said committee hearings. relative standard of care for various categories and clas- (6)(a) In the event that the defendant prevails in an sifications of health care providers. Any health care proaction brought by a health care provider against any per- vider may testify as an expert in any action if he: son that initiated, participated in, was a witness in, or 1. Is a similar health care provider pursuant to paraconducted any review as authorized by this section, the graph (a) or paragraph (b); or 1408

9 F.S NEGLIGENCE Ch Is not a similar health care provider pursuant to paragraph (a) or paragraph (b) but, to the satisfaction of the court, possesses sufficient training, experience, and knowledge as a result of practice or teaching in the specialty of the defendant or practice or teaching in a related field of medicine, so as to be able to provide such expert testimony as to the prevailing professional standard of care in a given field of medicine. Such training, experience, or knowledge must be as a result of the active involvement in the practice or teaching of medicine within the 5-year period before the incident giving rise to the claim. (3)(a) If the injury is claimed to have resulted from the negligent affirmative medical intervention of the health care provider, the claimant must, in order to prove a breach of the prevailing professional standard of care, show that the injury was not within the necessary or reasonably foreseeable results of the surgical, medicinal, or diagnostic procedure constituting the medical intervention, if the intervention from which the injury is alleged to have resulted was carried out in accordance with the prevailing professional standard of care by a reasonably prudent similar health care provider. (b) The provisions of this subsection shall apply only when the medical intervention was undertaken with the informed consent of the patient in compliance with the provisions of s (4) The existence of a medical injury shall not create any inference or presumption of negligence against a health care provider, and the claimant must maintain the burden of proving that an injury was proximately caused by a breach of the prevailing professional standard of care by the health care provider. However, the discovery of the presence of a foreign body, such as a sponge, clamp, forceps, surgical needle, or other paraphernalia commonly used in surgical, examination, or diagnostic procedures, shall be prima facie evidence of negligence on the part of the health care provider. (5) The Legislature is cognizant of the changing trends and techniques for the delivery of health care in this state and the discretion that is inherent in the diagnosis, care, and treatment of patients by different health care providers. The failure of a health care provider to order, perform, or administer supplemental diagnostic tests shall not be actionable if the health care provider acted in good faith and with due regard for the prevailing professional standard of care. Hlstory.-s. 12, ch ; s. 8, ch ; s. 1, ch ; s. 10, ch Florida Medical Consent Law.- (1) This section shall be known and cited as the "Florida Medical Consent Law." (2) In any medical treatment activity not covered by s , entitled the "Good Samaritan Act," this act shall govern. (3) No recovery shall be allowed in any court in this state against any physician licensed under chapter 458, osteopath licensed under chapter 459, chiropractor licensed under chapter 460, podiatrist licensed under chapter 461, or dentist licensed under chapter 466 in an action brought for treating, examining, or operating on a patient without his informed consent when: 1409 (a)1. The action of the physician, osteopath, chiropractor, podiatrist, or dentist in obtaining the consent of the patient or another person authorized to give consent for the patient was in accordance with an accepted standard of medical practice among members of the medical profession with similar training and experience in the same or similar medical community; and 2. A reasonable individual, from the information provided by the physician, osteopath, chiropractor, podiatrist, or dentist, under the circumstances, would have a general understanding of the procedure, the medically acceptable alternative procedures or treatments, and the substantial risks and hazards inherent in the proposed treatment or procedures, which are recognized among other physicians, osteopaths, chiropractors, podiatrists, or dentists in the same or similar community who perform similar treatments or procedures; or (b) The patient would reasonably, under all the surrounding circumstances, have undergone such treatment or procedure had he been advised by the physician, osteopath, chiropractor, podiatrist, or dentist in accordance with the provisions of paragraph (a). (4)(a) A consent which is evidenced in writing and meets the requirements of subsection (3) shall, if validly signed by the patient or another authorized person, raise a rebuttable presumption of a valid consent. (b) A valid signature is one which is given by a person who under all the surrounding circumstances is mentally and physically competent to give consent. Hlatory.-s. 11, ch. 75-9; s. 21, ch Note.-Former s Itemized verdict.-ln any action by a patient against a health care provider, as defined ins (2) (b), in a tort or contract claim for malpractice in which the trier of fact determines that liability exists on the part of the defendant, the trier of fact shall, as a part of the verdict, itemize the amounts to be awarded to the claimant into past and future damages. Hlatory.-s. 13, ch ; s. 9, ch ; s. 1, ch ; s. 11, ch Remittitur and additur.- (1) In any action for the recovery of damages based on personal injury or wrongful death arising out of medical malpractice, whether in tort or in contract, wherein the trier of fact determines that liability exists on the part of the defendant and a verdict is rendered which awards money damages to the plaintiff, it shall be the responsibility of the court, upon proper motion, to review the amount of such award to determine if such amount is excessive or inadequate in light of the facts and circumstances which were presented to the trier of fact. (2) If the court finds that the amount awarded is excessive or inadequate, it shall order a remittitur or additur as the case may be. (3) It is the intention of the Legislature that awards of damages in actions for medical malpractice be subject to close scrutiny by the courts and that all such awards be adequate and not excessive. (4) If the party adversely affected by such remittitur or additur does not agree, the court shall order a new trial in the cause on the issue of damages only. (5) In determining whether an award is excessive or inadequate in light of the facts and circumstances pres-