Highly Tested Florida Bar Exam Torts: Part 3

Products Liability 

Theories of Liability 

A plaintiff may plead multiple theories:

• Strict liability,
• Negligence, or
• Breach of warranty. 

Strict Liability 

Florida recognizes strict products liability in tort. The plaintiff does not need contractual privity.

To recover under strict liability, the plaintiff must prove:

• The defendant is a manufacturer or seller engaged in the business of selling the product,
• The product was defective,
• The defect existed when the product left the defendant’s control, and
• The defect caused the plaintiff’s injury.

On Florida essays, the fight is rarely over whether strict liability exists. It’s over which defect theory applies and how fault is allocated after that. 

Florida recognizes three defect theories:

• Manufacturing defect,
• Design defect, and
• Failure to warn. 

Strict liability focuses on the condition of the product — not the defendant’s level of care.

Fact Check: West v. Caterpillar Tractor Co., 336 So. 2d 80 (Fla. 1976).

Types of Defects 

Manufacturing Defect

The product deviated from its intended design. The flaw is in the specific unit — not the blueprint.

Example: A bottle explodes because it was improperly sealed.

Design Defect 

The design itself is unreasonably dangerous.

Florida applies the consumer-expectations test as the primary standard.

A product is defective if it fails to perform as safely as an ordinary consumer would expect when used in a reasonably foreseeable manner. 

Florida rejected making the risk-utility test the exclusive standard. Note that this doesn’t eliminate risk-utility considerations – it just isn’t the exclusive test. 

Fact Check: Aubin v. Union Carbide Corp., 177 So. 3d 489 (Fla. 2015).

Failure to Warn 

A product may be defective if sold without adequate warnings about non-obvious dangers.

A warning must:

• Inform of the risk’s existence and severity, and 
• Provide guidance on safe use.

There is no duty to warn of open and obvious dangers.

Personal Note: When products liability appears, do not isolate it.

It usually travels with:

• Comparative fault,
• Wrongful death damages,
• Employer liability, and/or
• Punitive damages. 

If you only analyze “defect” and stop, you will leave points on the table.

Tested On: Jul-16 (Q3) and Jul-15 (Q3)

Statute of Limitations & Repose (FL Products Liability) 

Statute of limitations: Generally 4 years for products liability actions.

Statute of repose: Florida generally imposes a 12-year statute of repose for most products liability actions, measured from delivery of the product to its first purchaser or lessee, regardless of when the injury occurs, subject to limited statutory exceptions.

The statute of repose is an absolute outer limit. If the product is more than 12 years old, the claim is typically barred even if the injury just happened.

Fact Check: Fla. Stat. § 95.031(2)(b).

Defamation (High-Yield Crossover Issue) 

To establish defamation, the plaintiff must prove:

• A false statement of fact about the plaintiff,
  • Publication to a third party (statement was heard and understood by a third party),
  • Fault, and
  • Damages.

Truth is an absolute defense to a defamation action. 

And mere opinions cannot be defamatory. Libel refers to printed defamation, whereas slander is spoken. Slander requires actual proof of damages, unless slander per se, whereas libel doesn’t require such proof. 

Public vs. Private Figures (Very Important)

To determine the appropriate level of “fault” you need to identify whether the person is a public (e.g., celebrity or government official or involves themselves in matters of public concern) or private figure. 

Public Official / Public Figure

The plaintiff must prove: actual malice — meaning knowledge of falsity or reckless disregard for the truth.

Fact Check: New York Times Co. v. Sullivan, 376 U.S. 254 (1964)

Private Figure

If the plaintiff is a private individual, Florida generally requires at least negligence regarding the falsity of the statement.

However, if the statement involves a matter of public concern, constitutional limitations still apply.

Fact Check: Miami Herald Publ’g Co. v. Ane, 423 So. 2d 376 (Fla. 1982)

Recap: For private figures, you don’t need to show “actual malice” – just need negligence (i.e., without reasonable care as to whether the alleged false and defamatory statements were actually true or false). 

Other Defamation Concepts 

Florida distinguishes between ordinary defamation and statements that are considered defamatory per se. 

Certain categories of statements are viewed as so inherently harmful that damages may be presumed without proof of specific economic loss. These traditionally include:

• false accusations that someone committed a serious crime, 
• statements that injure a person in their trade or profession, 
• allegations of a loathsome disease, and 
• (historically) imputations affecting chastity. 

Even in per se cases, constitutional principles may limit presumed or punitive damages depending on the plaintiff’s status and whether the speech involves a matter of public concern.

Florida also recognizes defamation by implication. A publication may be actionable even if the individual statements are technically true, if the overall context creates a false and defamatory impression. Courts focus on the “gist” or “sting” of the communication — meaning the impression conveyed to the ordinary reader. If the implication is materially false and damaging, liability may arise.

Fact Check: Jews For Jesus, Inc. v. Rapp, 997 So. 2d 1098 (Fla. 2008); Richard v. Gray, 62 So. 2d 597 (Fla. 1953)

Defenses (Defamation)

Common defenses include truth (which is an absolute defense), opinion, and privilege. 

Statements made during judicial proceedings are generally protected by absolute privilege. 

Other communications may be protected by qualified privilege unless the privilege is abused. If the plaintiff is a public figure, failure to prove actual malice will defeat the claim.

Tested On: Feb-24 (Q3); Feb-23 (Q3); Feb-20 (Q1); Oct-20 (Q1); Feb-15 (Q2)

Business & Intentional Torts 

These rarely drive an essay alone. They typically appear when business relationships unravel inside a broader negligence or defamation fact pattern.

Misrepresentation (Fraud)

To establish intentional misrepresentation, the plaintiff must show:

• A false statement of material fact,
• Knowledge of falsity,
• Intent to induce reliance,
• Justifiable reliance, and 
• Damages.

Negligent misrepresentation replaces knowledge with failure to exercise reasonable care in communicating the information.

Fraud issues often overlap with damages and reliance analysis.

Intentional Interference with Contract

The plaintiff must prove:

• A valid contract,
• Defendant’s knowledge of the contract,
• Intentional and unjustified interference, and 
• Damages.

Justification is often the battleground.

Tested On: Jul-22 (Q3); Feb-20 (Q1); Feb-24 (Q1) 

Professional Responsibility (Embedded in Torts Essays)

Florida loves to embed ethics inside tort-heavy essays. If a lawyer appears in the fact pattern, you should assume Professional Responsibility is in play.

Common issues include improper solicitation (especially the 30-day rule after an accident), contingency fee requirements, conflicts of interest, improper guarantees of results, and fee-splitting. In wrongful death or personal injury fact patterns, look closely at how the attorney obtained the client, what representations were made, and how fees are structured.

The examiners often attach ethics to dramatic tort facts — accidents, hospital visits, grieving families — and then test whether the lawyer followed Florida’s advertising and solicitation rules. Even if the underlying tort analysis is strong, missing the ethics issues can cost easy points.

If a lawyer shows up in a negligence or wrongful death scenario, pause and ask: How did the lawyer get the client? What was promised? Was the fee agreement proper? Those are usually the scoring hooks.

Tested On: Jul-23 (Q3); Feb-20 (Q2); Feb-19 (Q3); Jul-15 (Q3); Be sure to check out our professional responsibilities articles. 

Closing Thoughts

If you’ve worked through this entire series, here’s what I want you to notice: Florida Torts is not about memorizing twenty disconnected doctrines. It’s about patterns. The examiners repeatedly test allocation of fault, invitee duties, wrongful death damages, vicarious liability, and punitive standards. Products liability shows up, but it usually turns into comparative fault and damages. Emotional distress gets raised, but it rarely drives the whole essay. When you see multiple defendants, think percentages. When someone dies, think survivors versus estate. When a product fails, identify the defect and then move quickly to allocation. That’s where the points are. 

To fall above the pack, you have to spot the core issues and apply Florida-specific rules with control. Don’t panic if you can’t remember every single element perfectly — say what you know. Mention the rule. Tie it to the facts. Even flagging the issue cleanly will earn you more credit than silence. The graders are looking for structure and recognition, not perfection. 

The graders are not rewarding volume. They are rewarding control. Stay organized. Keep moving.

Additional Doctrines to Be Aware Of

The topics in this series reflect what most consistently drives Florida tort essays. That said, Florida torts is broader than what appears every cycle. You should also be familiar with classic intentional torts (assault, battery, false imprisonment, trespass, conversion), common defenses such as consent and self-defense, dram shop liability under Florida’s limited statute, and basic nuisance principles.

These doctrines do not frequently control the entire essay, but they can appear as embedded issues. If they show up in a fact pattern, state the elements cleanly, apply them efficiently, and return to the core drivers of the essay.