Highly Tested Florida Bar Exam Torts: Part 2

Secondary Liability: When Someone Else May Also Be Responsible 

Florida recognizes several doctrines that extend liability beyond the individual who directly committed the wrongful act. On essays, these doctrines most frequently arise after a negligence analysis — particularly in fact patterns involving employers, vehicle owners, businesses, or multiple defendants. However, some of these principles may also apply in other tort contexts.

Understanding when liability may expand beyond the primary tortfeasor is essential for earning additional points. FBBE routinely tests whether you can move from identifying negligence to identifying who else may be legally responsible.

Respondeat Superior (Vicarious Liability) 

Under the doctrine of respondeat superior, an employer may be held vicariously liable for torts committed by an employee within the scope of employment even if the employer is without fault.

The key issue is whether the employee was acting within the course and scope of employment at the time of the wrongful conduct.

Courts generally consider whether the conduct:

• Occurred substantially within authorized time and space limits,
  
  
• Was the type of conduct the employee was hired to perform, and
  
  
• Was motivated, at least in part, by a purpose to serve the employer.

If the employee substantially departs from employment for purely personal reasons — a “frolic” — the employer is typically not liable. Minor deviations (“detours”) do not relieve the employer of liability.

Respondeat superior may apply to negligence and, in some circumstances, to intentional torts committed within the scope of employment.

Helpful Resources: Mercury Motors Express, Inc. v. Smith, 393 So.2d 545, 549 (Fla. 1981); Sussman v. Fla. E. Coast Props., Inc., 557 So.2d 74 (1990)

Tested on: Feb-22 (Q2); Jul-15 (Q3); Feb-12 (Q3); Jul-23 (Q3);

Essay Tip: If you see an employee acting during work hours or while performing job-related duties, analyze scope of employment — even if liability seems obvious.

Dangerous Instrumentality (Florida-Specific)

Florida follows the dangerous instrumentality doctrine, which imposes vicarious liability on the owner of a motor vehicle for its negligent operation by another person who has the owner’s knowledge and consent.

This doctrine does not depend on an employment relationship. Liability arises from ownership and consent, not from the owner’s personal fault. It flows from legal title, although limited exceptions have been recognized for persons with an identifiable property interest.

To apply the doctrine, ask:

• Was the defendant the owner of the vehicle?
  
  
• Did the driver have express or implied consent to operate it?
  
  
• Was the vehicle operated negligently?

If those elements are satisfied, the owner may be held liable for damages caused by the driver’s negligence.

The doctrine most commonly applies to automobiles but may extend to other motorized vehicles under Florida law.

Because Florida has abolished joint and several liability, fault will still be allocated among defendants. However, the dangerous instrumentality doctrine allows the injured party to hold the owner responsible for the negligent operation of the vehicle.

Helpful Resources: Emerson v. Lambert, SC2020-1311 (Fla. Nov. 16, 2023); Southern Cotton Oil Co. v. Anderson, 86 So. 629 (Fla. 1920); and Aurbach v. Gallina, 753 So. 2d 60 (Fla. 2000)

Tested on: Jul-23 (Q3)

Essay Tips: 

• Whenever a vehicle appears in a Florida torts essay, immediately ask: Who owns it? Was there consent? 
• If you lend someone your vehicle — whether with express or implied consent — you may be held vicariously liable for that person’s negligent operation of the vehicle.

Negligent Entrustment

Negligent entrustment is a form of direct negligence. It arises when a defendant entrusts a chattel to another person whom the defendant knows or should know is incompetent, reckless, or otherwise unfit to use it safely.

Unlike the dangerous instrumentality doctrine — which imposes vicarious liability based on ownership and consent — negligent entrustment focuses on the defendant’s own fault in making the entrustment.

The doctrine is not limited to motor vehicles. It may apply whenever a person supplies or allows access to a chattel that poses a foreseeable risk of harm in the hands of an unfit user, such as a vehicle, firearm, or other potentially dangerous item.

To establish negligent entrustment, the plaintiff must show:

• The defendant entrusted a dangerous instrumentality to another,
  
  
• The person entrusted was incompetent, reckless, or unfit,
  
  
• The defendant knew or should have known of that incompetence, and
  
  
• The incompetence caused the plaintiff’s injury.

Fact patterns include entrusting a vehicle to an intoxicated or unlicensed driver, or providing access to a weapon to someone known to be unstable or impaired.

Key Distinction

The dangerous instrumentality doctrine imposes vicarious liability based on ownership and consent. The owner need not be personally negligent.

Negligent entrustment, by contrast, requires proof that the defendant was personally negligent in entrusting the instrumentality to an unfit individual.

On an essay, analyze both doctrines separately if the facts support them. Dangerous instrumentality focuses on ownership and consent. Negligent entrustment focuses on the defendant’s knowledge and independent fault.

Helpful Resources: Sager v. Blanco, 3D20-1194 (Fla. 3d DCA 2022) (recognizing negligent entrustment and dangerous instrumentality as alternative theories of liability); Kitchen v. K-Mart Corp., 697 So. 2d 1200 (Fla. 1997).

Note: When a vehicle is involved, analyze dangerous instrumentality if ownership and consent are present. If the facts also suggest the owner knew or should have known the driver was unfit, analyze negligent entrustment separately.

Contribution and Allocation of Fault 

Florida has largely abolished joint and several liability in negligence actions. Under § 768.81, each defendant is liable only for their percentage of fault. The statute does not apply to intentional torts.

Under Florida’s comparative fault statute, the jury must allocate fault among all responsible parties, including nonparties, and each defendant is liable only for the percentage assigned.

As a result, traditional contribution claims are far less central to Florida torts analysis than they once were. Allocation typically occurs on the verdict form.

However, in multi-defendant cases, limited allocation issues may still arise.

In limited situations involving purely vicarious liability, a party who is without fault may seek common-law indemnity from the active wrongdoer. However, Florida essays generally focus on liability to the plaintiff rather than post-judgment disputes between defendants.

Fact Check: Fla. Stat. § 768.81

Tested on: July-23 (Q3); Feb-22 (Q2)

When Injury Results In Death (Florida-Specific Structure)  

When a negligent act results in death, Florida does not simply allow the injured person’s personal injury claim to continue. Instead, recovery is governed by Florida’s Wrongful Death Act.

Florida torts essays repeatedly test wrongful death as an extension of negligence analysis — particularly in vehicle cases, products cases, and multi-defendant scenarios.

Tested on: Jul-23 (Q3); Jul-15 (Q3)

Fact Check: Fla. Stat. §§ 768.16–768.26

Florida’s Wrongful Death Act

A wrongful death action must be brought by the decedent’s personal representative on behalf of the estate and statutory survivors.

The Act defines who qualifies as a “survivor” and what damages may be recovered. This is a Florida-specific structure and should be clearly articulated on an essay.

“Survivors” include the decedent’s spouse, children, and parents, and any blood relatives or adoptive siblings who were dependent on the decedent for support or services. A child born out of wedlock qualifies as a survivor of the mother, and of the father only if the father recognized support responsibility. See Fla. Stat. § 768.18(1).

Survivors vs. Estate Damages

Florida divides recovery between:

• Damages recoverable by survivors, and
  
  
• Damages recoverable by the estate.

Florida essays often award points for clearly separating survivor damages from estate damages.

Survivors May Recover:

The value of lost support and services from the date of injury to death, and future loss of support and services reduced to present value.

In addition:

• A surviving spouse may recover for loss of companionship and protection and for mental pain and suffering from the date of injury.
  
  
• Minor children — and all children if there is no surviving spouse — may recover for lost parental companionship, instruction, and guidance and for mental pain and suffering.
  
  
• Each parent of a deceased minor child may recover for mental pain and suffering.
  
  
• A parent of an adult child may recover for mental pain and suffering only if there are no other survivors.

Medical or funeral expenses may be recovered by a survivor who has paid them.

Loss of consortium-type damages are addressed within this statutory survivor framework.

The Estate May Recover:

The personal representative may recover on behalf of the estate:

• Lost earnings from the date of injury to the date of death, less lost support of survivors, with interest;
  
  
• Loss of prospective net accumulations of the estate (subject to statutory limitations);
  
  
• Medical or funeral expenses that became a charge against the estate or were paid by or on behalf of the decedent (excluding amounts recoverable by a survivor who paid them).

All awards for the estate are subject to creditor claims under probate law.

Essay Tip: Organize your analysis under “Survivor Damages” and “Estate Damages” headings if wrongful death is clearly triggered.

Fact Check: Fla. Stat. § 768.21

Statute of Limitations

The statute of limitations for wrongful death is two (2) years.

This is shorter than many personal injury claims and is occasionally tested in timing-focused fact patterns.

Fact Check: Fla. Stat. § 95.11(5)(e)

Loss of Consortium (Non-Death Cases)

When a spouse is injured but survives, Florida recognizes a derivative claim for loss of consortium. This allows the uninjured spouse to recover for loss of companionship, services, affection, and marital relations. The claim depends on the success of the injured spouse’s underlying cause of action. If the injured spouse does not recover, the consortium claim fails.

Helpful Resource: Gates v. Foley, 247 So. 2d 40 (Fla. 1971)

Tested on: July-23 (Q3)