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University of Miami Law Review Torts University of Miami Law Review Volume 24 Number 3 Article 7 5-1-1970 Torts Martin Engels Robert Freeman Follow this and additional works at: https://repository.law.miami.edu/umlr Recommended Citation Martin Engels and Robert Freeman, Torts, 24 U. Miami L. Rev. 617 (1970) Available at: https://repository.law.miami.edu/umlr/vol24/iss3/7 This Article is brought to you for free and open access by the Journals at University of Miami School of Law Institutional Repository. It has been accepted for inclusion in University of Miami Law Review by an authorized editor of University of Miami School of Law Institutional Repository. For more information, please contact [email protected]. TORTS* MARTIN ENGELS** AND ROBERT A. FREEMAN*** 1. N EGLIGENCE .............................................................. 617 A. D octor-Patient ........................................................ 617 B. M anufacturers and Suppliers .......................................... 619 C. Business Invitees, Licensees, and the Attractive-Nuisance Doctrine .......... 619 D . The Family .......................................................... 623 E. M aster-Servant ....................................................... 624 F . Carriers .............................................................. 625 G . Autom obiles .......................................................... 625 1. THE DANGEROUS INSTRUMENTALITY DOCTRINE ............................. 625 2. THE GUEST STATUTE ................................................ 626 3. REQUISITES OF CARE ................................................ 627 H . D efenses ............................................................. 629 1. CONTRIBUTORY NEGLIGENCE .......................................... 629 2. LAST CLEAR CHANCE ................................................ 630 3. SUDDEN EMERGENCY DOCTRINE ...................................... 631 4. ASSUMPTION OF THE RISK .......................................... 632 5. PROXIMATE CAUSE AND NEGLIGENCE .................................. 632 6. DUTY AND MUNICIPAL IMMUNITY .................................... 635 7. SOVEREIGN IMMUNITY .............................................. 635 I. Wrongful Death and Survival Actions .................................. 636 II. INTENTIONAL TORTS ....................................................... 637 A. Assault and Battery .................................................. 637 B. False Imprisonment ................................................... 637 C. Malicious Prosecution and Libel ........................................ 637 D. Fraud and M isrepresentation .......................................... 638 III. N UISANCES ............................................................... 638 IV . D AM AGES ................................................................. 639 A. Loss of Use .......................................................... 639 B. Special Damages ...................................................... 639 C. Aggravation of Preexisting Injury ...................................... 640 D. Punitive Damages .................................................... 641 E . R em ittitur ............................................................ 641 I. NEGLIGENCE A. Doctor-Patient A doctor's duty to his patient consists of diagnosis and treatment in accordance with the standards of other practitioners in the community. Medical malpractice suits are usually so complex and the "issues [so] involved . that the answers are not susceptible of summary adjudica- tion but require a full exploration by a trial."' In Lab v. Hall,2 the plain- tiff alleged that her doctor was negligent in prescribing a drug to induce labor without consulting an obstetrician who might have advised a con- trary course of conduct. Summary judgment was held not to be appro- * The decisions surveyed in this article appear in volumes 200 through 226 of the Southern Reporter, Second Series. ** Member, Editorial Board, University of Miami Law Review. *** Assistant Digest Editor, University of Miami Law Review. 1. Lab v. Hall, 200 So.2d 556, 558 (Fla. 4th Dist. 1967). 2. 200 So.2d 556 (Fla. 4th Dist. 1967). UNIVERSITY OF MIAMI LAW REVIEW [Vol. XXIV priate in view of the plaintiff's conflicting affidavit and deposition. Yet, one could expect an opposite result if a plaintiff's case rested on "common knowledge" rather than medical testimony as to whether there was negligence in not taking an X-ray.' The doctrine of res ipsa loquitur is frequently used in cases involv- ing malpractice. An inference of negligence arises in favor of the plaintiff if he proves that (1) the instrument causing the injury was in the sole control of the defendant, (2) in a proper course of events the injury would not have happened in the absence of negligence, and (3) the plaintiff was not contributorily negligent.' Thus, res ipsa was properly applied when it was proved that the only way the plaintiff, who had entered the defendant hospital for diagnostic tests, would have become infected was in the absence of sterility.' A doctor is not an insurer of the success of his treatment. Thus, in Lane v. Cohen,6 when the defendant performed a vasectomy on the plain- tiff and the plaintiff's wife thereafter became pregnant, summary judg- ment for the defendant was granted.7 If a young child enters a hospital for eye surgery, and leaves with extensive injuries to her arms, a question for jury cognizance is present.8 It could be found that the hospital was negligent in either fastening the restraining boards too tightly or in failing to prevent the child from struggling against the boards. The functions and duties of the nurse and doctor were the base of the controversy in a recent missing sponge case.0 When the plaintiff's gall bladder operation was completed, his abdomen contained a sponge. The nurse had been counting the sponges. If the doctor had been counting the sponges, it would have been negligence per se.'0 The issue was whether the nurse was a borrowed servant of the doctor or a continuing hospital employee. Since the court found that sponge counting was a ministerial function rather than a professional duty of the doctor, the hospital, not the doctor, was held accountable. An interesting problem of classification confronted the Fourth Dis- trict Court of Appeal in O'Grady v. Wickman." After the two-year statute of limitations on assault and battery actions had run, the plaintiff sued two doctors, alleging lack of informed consent. The court held that the gravamen of the complaint was malpractice and thus, the longer negligence statute of limitations would apply. 3. Halifax Hosp. Dist. v. Davis, 201 So.2d 257 (Fla. 1st Dist. 1967). 4. Anderson v. Sarasota County Public Hosp. Bd., 214 So.2d 655 (Fla. 2d Dist. 1968). 5. Southern Fla. Sanitarium & Hosp., Inc. v. Hodge, 215 So.2d 753 (Fla. 3d Dist. 1968). 6. 201 So.2d 804 (Fla. 3d Dist. 1967). 7. A cynic might suggest that a hidden issue of proximate cause is what motivated the court to decide in this manner. 8. Moore v. Halifax Hosp. Dist., 202 So.2d 568 (Fla. Ist Dist. 1967). 9. Buzon v. Mercy Hosp., Inc., 203 So.2d 11 (Fla. 3d Dist. 1967). 10. Smith v. Zeagler, 116 Fla. 628, 157 So. 328 (1934). 11. 213 So.2d 321 (Fla. 4th Dist. 1968). 1970] TORTS B. Manufacturers and Suppliers Royal v. Black and Decker Manufacturing Co.,12 is a restatement of the Florida position on products liability. A widow brought a wrongful death action alleging that her husband was electrocuted while plugging a drill, manufactured by the defendant, into an extension cord. The com- plaint, the court held, failed to state a claim upon which relief could be granted since there was no allegation that the drill or plug was either unreasonably dangerous or defective. A manufacturer is not yet an insurer for all injuries caused by his products. The court invoked the words of Justice Traynor: [S] trict liability in tort is to be imposed upon the manufacturer ...when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being. 3 In Noonan v. Buick Co., 4 the plaintiff's three-year-old son made a sudden lunge for the steering wheel. The car veered to the right and started to skid. The front seat catapulted forward, causing an accident. The defense that such a result was not a foreseeable consequence of the negligence was rejected by the court. The defense of contributory negligence prevailed in Martin v. Ply- mouth Cordage Co. 5 A purchaser of insecticide brought a negligence action against the seller because the bags contained a substance harmful to his plants. The bags, however, had a bold warning of their contents on the label which the court said the plaintiff or his agent should have read before spreading the insecticide. In Zunck v. Gulf Oil Corp.,6 the plaintiff was injured by exploding gas. The plaintiff, who could not detect the leak in the stove because the gas was not odorized, lit a match which resulted in a conflagration. The court granted summary judgment to the manufacturer and wholesaler on the issue of their negligence but held the retailer liable since he was aware of the condition of the gas and failed in his duty to odorize it. The manufacturer and wholesaler had no such duty to odorize. C. Business Invitees, Licensees, and the Attractive-Nuisance Doctrine Although an occupier of land is not an insurer of the safety of persons on his property,1" he may, nevertheless, be held liable for injuries sustained by others while on the premises.
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