CHAPTER 768

768.041 Release or covenant not to sue. (1) A release or covenant not to sue as to one tortfeasor for property damage to, personal injury of, or the wrongful death of any person shall not operate to release or discharge the liability of any other tortfeasor who may be liable for the same tort or death. (2) At trial, if any defendant shows the court that the plaintiff, or any person lawfully on her or his behalf, has delivered a release or covenant not to sue to any person, firm, or corporation in partial satisfaction of the damages sued for, the court shall set off this amount from the amount of any judgment to which the plaintiff would be otherwise entitled at the time of rendering judgment and enter judgment accordingly. (3) The fact of such a release or covenant not to sue, or that any defendant has been dismissed by order of the court shall not be made known to the jury. History. — ss. 1, 2, 3, ch. 57-395; s. 45, ch. 67-254; s. 1158, ch. 97-102. Note. — Former s. 54.28. 768.0415 Liability for injury to parent. A person who, through negligence, causes significant permanent injury to the natural or adoptive parent of an unmarried dependent resulting in a permanent total disability shall be liable to the dependent for damages, including damages for permanent loss of services, comfort, companionship, and society. This section shall apply to acts of negligence occurring on or after October 1, 1988. History. — s. 1, ch. 88-173. 768.042 Damages. In any action brought in the circuit court to recover damages for personal injury or wrongful death, the amount of general damages shall not be stated in the complaint, but the amount of special damages, if any, may be specifically pleaded and the requisite jurisdictional amount established for filing in any court of competent jurisdiction. History. — ss. 8, 9, ch. 75-9; s. 161, ch. 2020-2. 768.0425 Damages in actions against contractors for injuries sustained from negligence, malfeasance, or misfeasance. (1) For purposes of this section only, the term “contractor” means any person who contracts to perform any construction or building service which is regulated by any state or local law, including, but not limited to, chapters 489 and 633; and the term “consumer” means a person who contracts for the performance of any construction or building service which is regulated by any state or local law, including, but not limited to, chapters 489 and 633. (2) In any action against a contractor for injuries sustained resulting from the contractor’s negligence, malfeasance, or misfeasance, the consumer shall be entitled to three times the actual compensatory damages sustained in addition to costs and attorney’s fees if the contractor is neither certified as a contractor by the state nor licensed as a contractor pursuant to the laws of the municipality or county within which she or he is conducting business. History. — ss. 12, 16, ch. 87-310; s. 21, ch. 88-149; ss. 22, 23, ch. 88-156; s. 1159, ch. 97-102. Note. — Former s. 489.5331. 768.0427 Admissibility of evidence to prove medical expenses in personal injury or wrongful death actions; disclosure of letters of protection; recovery of past and future medical expenses damages. (1) DEFINITIONS. — As used in this section, the term: (a) “Factoring company” means a person who purchases a health care provider’s accounts receivable at a discount below the invoice value of such accounts. (b) “Health care coverage” means any third-party health care or disability services financing arrangement, including, but not limited to, arrangements with entities certified or authorized under federal law or under the Florida Insurance Code; state or federal health care benefit programs; workers’ compensation; and personal injury protection. (c) “Health care provider” means any of the following professionals and entities, and professionals and entities similarly licensed in another jurisdiction: 1. A provider as defined in s. 408.803. 2. A clinical laboratory providing services in this state or services to health care providers in this state, if the clinical laboratory is certified by the Centers for Medicare and Medicaid Services under the federal Clinical Laboratory Improvement Amendments and the federal rules adopted thereunder. 3. A federally qualified health center as defined in 42 U.S.C. s. 1396d(l)(2)(B), as that definition existed on March 24, 2023. 4. A health care practitioner as defined in s. 456.001. 5. A health care professional licensed under part IV of chapter 468. 6. A home health aide as defined in s. 400.462. 7. A provider licensed under chapter 394 or chapter 397 and its clinical and nonclinical staff providing inpatient or outpatient services. 8. A continuing care facility licensed under chapter 651. 9. A pharmacy permitted under chapter 465. (d) “Letter of protection” means any arrangement by which a health care provider renders treatment in exchange for a promise of payment for the claimant’s medical expenses from any judgment or settlement of a personal injury or wrongful death action. The term includes any such arrangement, regardless of whether referred to as a letter of protection. (2) ADMISSIBLE EVIDENCE OF MEDICAL TREATMENT OR SERVICE EXPENSES. — Evidence offered to prove the amount of damages for past or future medical treatment or services in a personal injury or wrongful death action is admissible as provided in this subsection. (a) Evidence offered to prove the amount of damages for past medical treatment or services that have been satisfied is limited to evidence of the amount actually paid, regardless of the source of payment. (b) Evidence offered to prove the amount necessary to satisfy unpaid charges for incurred medical treatment or services shall include, but is not limited to, evidence as provided in this paragraph. 1. If the claimant has health care coverage other than Medicare or Medicaid, evidence of the amount which such health care coverage is obligated to pay the health care provider to satisfy the charges for the claimant’s incurred medical treatment or services, plus the claimant’s share of medical expenses under the insurance contract or regulation. 2. If the claimant has health care coverage but obtains treatment under a letter of protection or otherwise does not submit charges for any health care provider’s medical treatment or services to health care coverage, evidence of the amount the claimant’s health care coverage would pay the health care provider to satisfy the past unpaid medical charges under the insurance contract or regulation, plus the claimant’s share of medical expenses under the insurance contract or regulation, had the claimant obtained medical services or treatment pursuant to the health care coverage. 3. If the claimant does not have health care coverage or has health care coverage through Medicare or Medicaid, evidence of 120 percent of the Medicare reimbursement rate in effect on the date of the claimant’s incurred medical treatment or services, or, if there is no applicable Medicare rate for a service, 170 percent of the applicable state Medicaid rate. 4. If the claimant obtains medical treatment or services under a letter of protection and the health care provider subsequently transfers the right to receive payment under the letter of protection to a third party, evidence of the amount the third party paid or agreed to pay the health care provider in exchange for the right to receive payment pursuant to the letter of protection. 5. Any evidence of reasonable amounts billed to the claimant for medically necessary treatment or medically necessary services provided to the claimant. (c) Evidence offered to prove the amount of damages for any future medical treatment or services the claimant will receive shall include, but is not limited to, evidence as provided in this paragraph. 1. If the claimant has health care coverage other than Medicare or Medicaid, or is eligible for any such health care coverage, evidence of the amount for which the future charges of health care providers could be satisfied if submitted to such health care coverage, plus the claimant’s share of medical expenses under the insurance contract or regulation. 2. If the claimant does not have health care coverage or has health care coverage through Medicare or Medicaid, or is eligible for such health care coverage, evidence of 120 percent of the Medicare reimbursement rate in effect at the time of trial for the medical treatment or services the claimant will receive, or, if there is no applicable Medicare rate for a service, 170 percent of the applicable state Medicaid rate. 3. Any evidence of reasonable future amounts to be billed to the claimant for medically necessary treatment or medically necessary services. (d) This subsection does not impose an affirmative duty upon any party to seek a reduction in billed charges to which the party is not contractually entitled. (e) Individual contracts between providers and authorized commercial insurers or authorized health maintenance organizations are not subject to discovery or disclosure and are not admissible into evidence. (3) LETTERS OF PROTECTION; REQUIRED DISCLOSURES. — In a personal injury or wrongful death action, as a condition precedent to asserting any claim for medical expenses for treatment rendered under a letter of protection, the claimant must disclose: (a) A copy of the letter of protection. (b) All billings for the claimant’s medical expenses, which must be itemized and, to the extent applicable, coded according to: 1. For health care providers billing at the provider level, the American Medical Association’s Current Procedural Terminology (CPT), or the Healthcare Common Procedure Coding System (HCPCS), in effect on the date the services were rendered. 2. For health care providers billing at the facility level for expenses incurred in a clinical or outpatient setting, including when billing through an Ambulatory Payment Classification (APC) or Enhanced Ambulatory Patient Grouping (EAPG), the International Classification of Diseases (ICD) diagnosis code and, if applicable, the American Medical Association’s Current Procedural Terminology (CPT), in effect on the date the services were rendered. 3. For health care providers billing at the facility level for expenses incurred in an inpatient setting, including when billing through a Diagnosis Related Group (DRG), the International Classification of Diseases (ICD) diagnosis and procedure codes in effect on the date in which the claimant is discharged. (c) If the health care provider sells the accounts receivable for the claimant’s medical expenses to a factoring company or other third party: 1. The name of the factoring company or other third party who purchased such accounts. 2. The dollar amount for which the factoring company or other third party purchased such accounts, including any discount provided below the invoice amount. (d) Whether the claimant, at the time medical treatment was rendered, had health care coverage and, if so, the identity of such coverage. (e) Whether the claimant was referred for treatment under a letter of protection and, if so, the identity of the person who made the referral. If the referral is made by the claimant’s attorney, disclosure of the referral is permitted, and evidence of such referral is admissible notwithstanding s. 90.502. Moreover, in such situation, the financial relationship between a law firm and a medical provider, including the number of referrals, frequency, and financial benefit obtained, is relevant to the issue of the bias of a testifying medical provider. (4) DAMAGES RECOVERABLE FOR MEDICAL TREATMENT OR SERVICE EXPENSES. — The damages that may be recovered by a claimant in a personal injury or wrongful death action for the reasonable and necessary cost or value of medical care rendered may not include any amount in excess of the evidence of medical treatment and services expenses admitted pursuant to subsection (2), and also may not exceed the sum of the following: (a) Amounts actually paid by or on behalf of the claimant to a health care provider who rendered medical treatment or services; (b) Amounts necessary to satisfy charges for medical treatment or services that are due and owing but at the time of trial are not yet satisfied; and (c) Amounts necessary to provide for any reasonable and necessary medical treatment or services the claimant will receive in the future. History. — ss. 6, 27, ch. 2023-15. 768.043 Remittitur and additur actions arising out of operation of motor vehicles. (1) In any action for the recovery of damages based on personal injury or wrongful death arising out of the operation of a motor vehicle, 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 clearly excessive or inadequate in light of the facts and circumstances which were presented to the trier of fact. If the court finds that the amount awarded is clearly excessive or inadequate, it shall order a remittitur or additur, as the case may be. 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. (2) In determining whether an award is clearly excessive or inadequate in light of the facts and circumstances presented to the trier of fact and in determining the amount, if any, that such award exceeds a reasonable range of damages or is inadequate, the court shall consider the following criteria: (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. 77-468; s. 283, ch. 79-400. 768.07 Railroad liability for injury to employees. If any person is injured by a railroad company by the running of the locomotives or cars, or other machinery of such company, the person 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, her or 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 7053; s. 1160, ch. 97-102. 768.0701 Premises liability for criminal acts of third parties. Notwithstanding s. 768.81(4), in an action for damages against the owner, lessor, operator, or manager of commercial or real property brought by a person lawfully on the property who was injured by the criminal act of a third party, the trier of fact must consider the fault of all persons who contributed to the injury. History. — s. 7, ch. 2023-15. 768.0705 Limitation on premises liability. The owner or operator of a convenience business that substantially implements the applicable security measures listed in ss. 812.173 and 812.174 shall gain a presumption against liability in connection with criminal acts that occur on the premises and that are committed by third parties who are not employees or agents of the owner or operator of the convenience business. History. — s. 18, ch. 99-225. 768.0706 Multifamily residential property safety and security; presumption against liability. (1) As used in this section, the term: (a) “Crime prevention through environmental design” has the same meaning as in s. 163.503(6). (b) “Multifamily residential property” means a residential building, or group of residential buildings, such as apartments, townhouses, or condominiums, consisting of at least five dwelling units on a particular parcel. (c) “Parcel” means real property for which a distinct parcel identification number is assigned to the property by the property appraiser for the county in which the property is located. (2) The owner or principal operator of a multifamily residential property which substantially implements the following security measures on that property has a presumption against liability in connection with criminal acts that occur on the premises which are committed by third parties who are not employees or agents of the owner or operator: (a)1. A security camera system at points of entry and exit which records, and maintains as retrievable for at least 30 days, video footage to assist in offender identification and apprehension. 2. A lighted parking lot illuminated at an intensity of at least an average of 1.8 foot-candles per square foot at 18 inches above the surface from dusk until dawn or controlled by photocell or any similar electronic device that provides light from dusk until dawn. 3. Lighting in walkways, laundry rooms, common areas, and porches. Such lighting must be illuminated from dusk until dawn or controlled by photocell or any similar electronic device that provides light from dusk until dawn. 4. At least a 1-inch deadbolt in each dwelling unit door. 5. A locking device on each window, each exterior sliding door, and any other doors not used for community purposes. 6. Locked gates with key or fob access along pool fence areas. 7. A peephole or door viewer on each dwelling unit door that does not include a window or that does not have a window next to the door. (b) By January 1, 2025, the owner or principal operator of a multifamily residential property has a crime prevention through environmental design assessment that is no more than 3 years old completed for the property. Such assessment must be performed by a law enforcement agency or a Florida Crime Prevention Through Environmental Design Practitioner designated by the Florida Crime Prevention Training Institute of the Department of Legal Affairs. The owner or principal operator must remain in substantial compliance with the assessment for purposes of this paragraph. (c)1. By January 1, 2025, the owner or principal operator of a multifamily residential property provides proper crime deterrence and safety training to its current employees. After January 1, 2025, the owner or principal operator must provide such training to an employee within 60 days after his or her hire date for purposes of this paragraph. 2. For purposes of this paragraph, “proper crime deterrence and safety training” means training which trains and familiarizes employees with the security principles, devices, measures, and standards set forth under paragraph (a), and which is reviewed at least every 3 years and updated as necessary. The owner or principal operator may request a law enforcement agency or the Florida Crime Prevention Through Environmental Design Practitioner performing the assessment under paragraph (b) to review the training curriculum. (3) For purposes of establishing the presumption against liability under subsection (2), the burden of proof is on the owner or principal operator to demonstrate that the owner or principal operator has substantially implemented the security measures specified in subsection (2). (4) The Florida Crime Prevention Training Institute of the Department of Legal Affairs shall develop a proposed curriculum or best practices for owners or principal operators to implement such training. The state has no liability in connection with providing a proposed training curriculum under this subsection. (5) This section does not establish a private cause of action. History. — s. 8, ch. 2023-15. 768.075 Immunity from liability for injury to trespassers on real property. (1) A person or organization owning or controlling an interest in real property, or an agent of such person or organization, shall not be held liable for any civil damages for death of or injury or damage to a trespasser upon the property when such trespasser was under the influence of alcoholic beverages with a blood-alcohol level of 0.08 percent or higher, when such trespasser was under the influence of any chemical substance set forth in s. 877.111, when such trespasser was illegally under the influence of any substance controlled under chapter 893, or if the trespasser is affected by any of the aforesaid substances to the extent that her or his normal faculties are impaired. However, the person or organization owning or controlling the interest in real property shall not be immune from liability if gross negligence or intentional misconduct on the part of such person or organization or agent thereof is a proximate cause of the death of or injury or damage to the trespasser. (2) A person or organization owning or controlling an interest in real property, or an agent of such person or organization, is not liable for any civil damages for the death of or injury or damage to any discovered or undiscovered trespasser, except as provided in paragraphs (3)(a), (b), and (c), and regardless of whether the trespasser was intoxicated or otherwise impaired. (3)(a) As used in this subsection, the term: 1. “Invitation” means that the visitor entering the premises has an objectively reasonable belief that he or she has been invited or is otherwise welcome on that portion of the real property where injury occurs. 2. “Discovered trespasser” means a person who enters real property without invitation, either express or implied, and whose actual physical presence was detected, within 24 hours preceding the accident, by the person or organization owning or controlling an interest in real property or to whose actual physical presence the person or organization owning or controlling an interest in real property was alerted by a reliable source within 24 hours preceding the accident. The status of a person who enters real property shall not be elevated to that of an invitee, unless the person or organization owning or controlling an interest in real property has issued an express invitation to enter the property or has manifested a clear intent to hold the property open to use by persons pursuing purposes such as those pursued by the person whose status is at issue. 3. “Undiscovered trespasser” means a person who enters property without invitation, either express or implied, and whose actual physical presence was not detected, within 24 hours preceding the accident, by the person or organization owning or controlling an interest in real property. (b) To avoid liability to undiscovered trespassers, a person or organization owning or controlling an interest in real property must refrain from intentional misconduct that proximately causes injury to the undiscovered trespasser, but has no duty to warn of dangerous conditions. To avoid liability to discovered trespassers, a person or organization owning or controlling an interest in real property must refrain from gross negligence or intentional misconduct that proximately causes injury to the discovered trespasser, and must warn the trespasser of dangerous conditions that are known to the person or organization owning or controlling an interest in real property but that are not readily observable by others. (c) This subsection shall not be interpreted or construed to alter the common law as it pertains to the “attractive nuisance doctrine.” (4) A person or organization owning or controlling an interest in real property, or an agent of such person or organization, shall not be held liable for negligence that results in the death of, injury to, or damage to a person who is attempting to commit a felony or who is engaged in the commission of a felony on the property. History. — s. 1, ch. 90-140; s. 1161, ch. 97-102; s. 19, ch. 99-225. 768.0755 Premises liability for transitory foreign substances in a business establishment. (1) If a person slips and falls on a transitory foreign substance in a business establishment, the injured person must prove that the business establishment had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it. Constructive knowledge may be proven by circumstantial evidence showing that: (a) The dangerous condition existed for such a length of time that, in the exercise of ordinary care, the business establishment should have known of the condition; or (b) The condition occurred with regularity and was therefore foreseeable. (2) This section does not affect any common-law duty of care owed by a person or entity in possession or control of a business premises. History. — s. 1, ch. 2010-8. 768.08 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 her or 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 her or 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 department, society or association, and such employee, and in case of her or 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. History. — s. 1, ch. 6520, 1913; RGS 4967; CGL 7054; s. 1162, ch. 97-102. 768.0895 Limitation of liability for employers of persons with disabilities. (1) An employer who employs a person with a developmental disability is not liable for the acts or omissions, negligent or intentional, of the employee if: (a) The employee receives or has received supported employment services through a supported employment service provider; and (b) The employer does not have actual notice of the actions of the employee which created unsafe conditions in the workplace. (2) A supported employment service provider that provides or has provided supported employment services to a person with a developmental disability is not liable for the actions or conduct of the person which occur within the scope of the person’s employment. (3) As used in this section, the term: (a) “Developmental disability” has the same meaning as provided in s. 393.063. (b) “Supported employment service provider” means a not-for-profit public or private organization or agency that provides services for persons in supported employment, as defined in s. 393.063. History. — s. 1, ch. 2011-231. 768.091 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 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. 82-95; s. 1163, ch. 97-102. 768.092 Special mobile equipment; liability of lessors. (1) As used in this section, the term: (a) “Lease agreement” means a written agreement for the rental or lease of special mobile equipment, regardless of whether the lease is for a fixed term or with an option to purchase. (b) “Lessee” means a person who rents or leases special mobile equipment from the lessor pursuant to a lease agreement. (c) “Lessor” means a person who, pursuant to a lease agreement, offers or arranges for the rental or lease of special mobile equipment by the lessee. (d) “Special mobile equipment” has the same meaning as in s. 316.003. (2) The lessor of any special mobile equipment that causes injury, death, or damage while leased under a lease agreement is not liable for acts of the lessee or the lessee’s agent or employee in connection with the rental or lease, including any bodily injury, death, or damage resulting from the operation, maintenance, or use of the special mobile equipment, if the lease agreement requires documented proof of insurance coverage containing limits of at least $250,000 per person and up to $500,000 per incident for bodily injury liability and up to $100,000 for property damage liability, or at least $750,000 for combined property damage liability and bodily injury liability. The failure of the lessee to have in effect the insurance coverage required by the lease agreement does not impose liability on the lessor. History. — s. 1, ch. 2019-104. 768.093 Owner liability limits; powered shopping carts. (1) For the purposes of this section, the term “powered shopping cart” means an electrically powered assistive technology device which is generally used in a retail establishment by a customer, designed for the simultaneous transport of a person and of goods of any kind, and capable of speeds no greater than 2 1 / 2 miles per hour. (2) A powered shopping cart which is provided to a person gratuitously for use solely on the premises of the owner of such powered shopping cart shall not be considered a dangerous instrumentality in this state. History. — s. 1, ch. 2002-33. 768.095 Employer immunity from liability; disclosure of information regarding former or current employees. An employer who discloses information about a former or current employee to a prospective employer of the former or current employee upon request of the prospective employer or of the former or current employee is immune from civil liability for such disclosure or its consequences unless it is shown by clear and convincing evidence that the information disclosed by the former or current employer was knowingly false or violated any civil right of the former or current employee protected under chapter 760. History. — s. 1, ch. 91-165; s. 17, ch. 99-225. 768.096 Employer presumption against negligent hiring. (1) In a civil action for the death of, or injury or damage to, a third person caused by the intentional tort of an employee, such employee’s employer is presumed not to have been negligent in hiring such employee if, before hiring the employee, the employer conducted a background investigation of the prospective employee and the investigation did not reveal any information that reasonably demonstrated the unsuitability of the prospective employee for the particular work to be performed or for the employment in general. A background investigation under this section must include: (a) Obtaining a criminal background investigation on the prospective employee under subsection (2); (b) Making a reasonable effort to contact references and former employers of the prospective employee concerning the suitability of the prospective employee for employment; (c) Requiring the prospective employee to complete a job application form that includes questions concerning whether he or she has ever been convicted of a crime, including details concerning the type of crime, the date of conviction and the penalty imposed, and whether the prospective employee has ever been a defendant in a civil action for intentional tort, including the nature of the intentional tort and the disposition of the action; (d) Obtaining, with written authorization from the prospective employee, a check of the driver license record of the prospective employee if such a check is relevant to the work the employee will be performing and if the record can reasonably be obtained; or (e) Interviewing the prospective employee. (2) To satisfy the criminal-background-investigation requirement of this section, an employer must request and obtain from the Department of Law Enforcement a check of the information as reported and reflected in the Florida Crime Information Center system as of the date of the request. (3) The election by an employer not to conduct the investigation specified in subsection (1) does not raise any presumption that the employer failed to use reasonable care in hiring an employee. History. — s. 16, ch. 99-225. 768.098 Limitation of liability for employee leasing. (1) An employer in a joint employment relationship pursuant to s. 468.520 shall not be liable for the tortious actions of another employer in that relationship, or for the tortious actions of any jointly employed employee under that relationship, provided that: (a) The employer seeking to avoid liability pursuant to this section did not authorize or direct the tortious action; (b) The employer seeking to avoid liability pursuant to this section did not have actual knowledge of the tortious conduct and fail to take appropriate action; (c) The employer seeking to avoid liability pursuant to this section did not have actual control over the day-to-day job duties of the jointly employed employee who has committed a tortious act nor actual control over the portion of a job site at which or from which the tortious conduct arose or at which and from which a jointly employed employee worked, and that said control was assigned to the other employer under the contract; (d) The employer seeking to avoid liability pursuant to this section is expressly absolved in the written contract forming the joint employment relationship of control over the day-to-day job duties of the jointly employed employee who has committed a tortious act, and actual control over the portion of the job site at which or from which the tortious conduct arose or at which and from which the jointly employed employee worked, and that said control was assigned to the other employer under the contract; and (e) Complaints, allegations, or incidents of any tortious misconduct or workplace safety violations, regardless of the source, are required to be reported to the employer seeking to avoid liability pursuant to this section by all other joint employers under the written contract forming the joint employment relationship, and that the employer seeking to avoid liability pursuant to this section did not fail to take appropriate action as a result of receiving any such report related to a jointly employed employee who has committed a tortious act. (2) An employer seeking to avoid liability pursuant to this section shall not be presumed to have actual control over the day-to-day job duties of the jointly employed employee who has committed a tortious act, nor actual control over the portion of a job site at which or from which that employee worked, based solely upon the fact that the employee at issue is a leased employee. (3) This section shall not alter any responsibilities of the joint employer who has actual control over the day-to-day job duties of the jointly employed employee and who has actual control over the portion of a job site at which or from which the employee is employed, which arise from s. 768.096. History. — s. 29, ch. 99-225. 768.0981 Limitation on actions against insurers, prepaid limited health service organizations, health maintenance organizations, or prepaid health clinics. An entity licensed or certified under chapter 624, chapter 636, or chapter 641 shall not be liable for the medical negligence of a health care provider with whom the licensed or certified entity has entered into a contract, other than an employee of such licensed or certified entity, unless the licensed or certified entity expressly directs or exercises actual control over the specific conduct that caused injury. History. — s. 64, ch. 2003-416. 768.10 Pits and holes not to be left open. It 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 7056. 768.11 Pits and holes; measure of damages. Any company or individual who may leave open pits or other holes contrary to the provisions of s. 768.10 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. 768.12 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. History. — s. 1, ch. 21018, 1941. 768.125 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. History. — s. 1, ch. 80-37. 768.1256 Government rules defense. (1) In a product liability action brought against a manufacturer or seller for harm allegedly caused by a product, there is a rebuttable presumption that the product is not defective or unreasonably dangerous and the manufacturer or seller is not liable if, at the time the specific unit of the product was sold or delivered to the initial purchaser or user, the aspect of the product that allegedly caused the harm: (a) Complied with federal or state codes, statutes, rules, regulations, or standards relevant to the event causing the death or injury; (b) The codes, statutes, rules, regulations, or standards are designed to prevent the type of harm that allegedly occurred; and (c) Compliance with the codes, statutes, rules, regulations, or standards is required as a condition for selling or distributing the product. (2) In a product liability action as described in subsection (1), there is a rebuttable presumption that the product is defective or unreasonably dangerous and the manufacturer or seller is liable if the manufacturer or seller did not comply with the federal or state codes, statutes, rules, regulations, or standards which: (a) Were relevant to the event causing the death or injury; (b) Are designed to prevent the type of harm that allegedly occurred; and (c) Require compliance as a condition for selling or distributing the product. (3) This section does not apply to an action brought for harm allegedly caused by a drug that is ordered off the market or seized by the Federal Food and Drug Administration. History. — s. 15, ch. 99-225. 768.1257 State-of-the-art defense for products liability. In an action based upon defective design, brought against the manufacturer of a product, the finder of fact shall consider the state of the art of scientific and technical knowledge and other circumstances that existed at the time of manufacture, not at the time of loss or injury. History. — s. 14, ch. 99-225. 768.128 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; (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. History. — s. 39, ch. 83-310. 768.13 Good Samaritan Act; immunity from civil liability. (1) This act shall be known and cited as the “Good Samaritan Act.” (2)(a) Any person, including those licensed to practice medicine, who gratuitously and in good faith renders emergency care or treatment either in direct response to emergency situations related to and arising out of a public health emergency declared pursuant to s. 381.00315, a state of emergency which has been declared pursuant to s. 252.36 or 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 person would have acted under the same or similar circumstances. (b)1. Any health care provider, including a hospital licensed under chapter 395, providing emergency services pursuant to obligations imposed by 42 U.S.C. s. 1395dd, s. 395.1041, s. 395.401, or s. 401.45 shall not be held liable for any civil damages as a result of such medical care or treatment unless such damages result from providing, or failing to provide, medical care or treatment under circumstances demonstrating a reckless disregard for the consequences so as to affect the life or health of another. 2. The immunity provided by this paragraph applies to damages as a result of any act or omission of providing medical care or treatment, including diagnosis: a. Which occurs prior to the time the patient is stabilized and is capable of receiving medical treatment as a nonemergency patient, unless surgery is required as a result of the emergency within a reasonable time after the patient is stabilized, in which case the immunity provided by this paragraph applies to any act or omission of providing medical care or treatment which occurs prior to the stabilization of the patient following the surgery. b. Which is related to the original medical emergency. 3. For purposes of this paragraph, “reckless disregard” as it applies to a given health care provider rendering emergency medical services shall be such conduct that a health care provider knew or should have known, at the time such services were rendered, created an unreasonable risk of injury so as to affect the life or health of another, and such risk was substantially greater than that which is necessary to make the conduct negligent. 4. Every emergency care facility granted immunity under this paragraph shall accept and treat all emergency care patients within the operational capacity of such facility without regard to ability to pay, including patients transferred from another emergency care facility or other health care provider pursuant to Pub. L. No. 99-272, s. 9121. The failure of an emergency care facility to comply with this subparagraph constitutes grounds for the department to initiate disciplinary action against the facility pursuant to chapter 395. (c)1. Any health care practitioner as defined in s. 456.001(4) who is in a hospital attending to a patient of his or her practice or for business or personal reasons unrelated to direct patient care, and who voluntarily responds to provide care or treatment to a patient with whom at that time the practitioner does not have a then-existing health care patient-practitioner relationship, and when such care or treatment is necessitated by a sudden or unexpected situation or by an occurrence that demands immediate medical attention, shall not be held liable for any civil damages as a result of any act or omission relative to that care or treatment, unless that care or treatment is proven to amount to conduct that is willful and wanton and would likely result in injury so as to affect the life or health of another. 2. The immunity provided by this paragraph does not apply to damages as a result of any act or omission of providing medical care or treatment unrelated to the original situation that demanded immediate medical attention. 3. For purposes of this paragraph, the Legislature’s intent is to encourage health care practitioners to provide necessary emergency care to all persons without fear of litigation as described in this paragraph. (d) Any person whose acts or omissions are not otherwise covered by this section and who participates in emergency response activities under the direction of or in connection with a community emergency response team, local emergency management agencies, the Division of Emergency Management, or the Federal Emergency Management Agency is not liable for any civil damages as a result of care, treatment, or services provided gratuitously in such capacity and resulting from any act or failure to act in such capacity in providing or arranging further care, treatment, or services, if such person acts as a reasonably prudent person 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 person would have acted under the same or similar circumstances. History. — ss. 1, 2, ch. 65-313; s. 1, ch. 78-334; s. 62, ch. 86-160; s. 46, ch. 88-1; s. 4, ch. 88-173; s. 42, ch. 88-277; s. 1, ch. 89-71; s. 37, ch. 91-110; s. 33, ch. 93-211; s. 3, ch. 97-34; s. 1164, ch. 97-102; s. 2, ch. 2001-76; s. 3, ch. 2002-269; s. 65, ch. 2003-416; s. 1, ch. 2004-45; s. 441, ch. 2011-142. 768.1315 Good Samaritan Volunteer Firefighters’ Assistance Act; immunity from civil liability. (1) SHORT TITLE. — This section may be cited as the “Good Samaritan Volunteer Firefighters’ Assistance Act.” (2) DEFINITIONS. — As used in this section, the term: (a) “Authorized technician” means a technician who is certified by the manufacturer of fire control or fire rescue equipment as qualified to inspect that equipment. The technician may not be employed by the state agency or subdivision administering the distribution of the fire control or fire rescue equipment. (b) “Qualified fire control or fire rescue equipment” means equipment used for fire control or fire rescue which has been recertified by an authorized technician as meeting the manufacturer’s specifications and which is distributed by or through a state agency or subdivision to a volunteer fire department. (c) “State agency or subdivision” shall have the meaning provided in s. 768.28(2). (3) LIMITATION OF LIABILITY. — A state agency or subdivision, including an officer, employee, or agent thereof, who is acting within the scope of his or her employment or function, which donates qualified fire control or fire rescue equipment to a volunteer fire department is not liable for civil damages under any state law for personal injury, property damage, or death proximately caused after the donation by a defect in the equipment. (4) EXCEPTIONS TO LIABILITY PROTECTION. — Subsection (3) does not apply to a state agency or subdivision, or an officer, employee, or agent thereof, if: (a) The defect that proximately caused the personal injury, property damage, or death resulted from: 1. An act or omission of an officer, employee, or agent of the state agency or subdivision which constitutes malice, gross negligence, recklessness, or intentional misconduct; or 2. A modification or alteration of the qualified fire control or fire rescue equipment by the state agency or subdivision, or by an officer, employee, or agent thereof, after the equipment was recertified by an authorized technician as meeting the manufacturer’s specifications. (b) The state agency or subdivision is the manufacturer of the qualified fire control or fire rescue equipment. Nothing in this section shall be construed as a waiver of sovereign immunity. History. — s. 1, ch. 2004-368. 768.1325 Cardiac Arrest Survival Act; immunity from civil liability. (1) This section may be cited as the “Cardiac Arrest Survival Act.” (2) As used in this section: (a) “Perceived medical emergency” means circumstances in which the behavior of an individual leads a reasonable person to believe that the individual is experiencing a life-threatening medical condition that requires an immediate medical response regarding the heart or other cardiopulmonary functioning of the individual. (b) “Automated external defibrillator device” means a lifesaving defibrillator device that: 1. Is commercially distributed in accordance with the Federal Food, Drug, and Cosmetic Act. 2. Is capable of recognizing the presence or absence of ventricular fibrillation, and is capable of determining without intervention by the user of the device whether defibrillation should be performed. 3. Upon determining that defibrillation should be performed, is able to deliver an electrical shock to an individual. (c) “Harm” means damage or loss of any and all types, including, but not limited to, physical, nonphysical, economic, noneconomic, actual, compensatory, consequential, incidental, and punitive damages or losses. (3) Notwithstanding any other provision of law to the contrary, and except as provided in subsection (4), any person who uses or attempts to use an automated external defibrillator device on a victim of a perceived medical emergency, without objection of the victim of the perceived medical emergency, is immune from civil liability for any harm resulting from the use or attempted use of such device. In addition, notwithstanding any other provision of law to the contrary, and except as provided in subsection (4), any person who acquired the device and makes it available for use, including, but not limited to, a community association organized under chapter 617, chapter 718, chapter 719, chapter 720, chapter 721, or chapter 723, is immune from such liability, if the harm was not due to the failure of such person to: (a) Properly maintain and test the device; or (b) Provide appropriate training in the use of the device to an employee or agent of the acquirer when the employee or agent was the person who used the device on the victim, except that such requirement of training does not apply if: 1. The device is equipped with audible, visual, or written instructions on its use, including any such visual or written instructions posted on or adjacent to the device; 2. The employee or agent was not an employee or agent who would have been reasonably expected to use the device; or 3. The period of time elapsing between the engagement of the person as an employee or agent and the occurrence of the harm, or between the acquisition of the device and the occurrence of the harm in any case in which the device was acquired after engagement of the employee or agent, was not a reasonably sufficient period in which to provide the training. (4) Immunity under subsection (3) does not apply to a person if: (a) The harm involved was caused by that person’s willful or criminal misconduct, gross negligence, reckless disregard or misconduct, or a conscious, flagrant indifference to the rights or safety of the victim who was harmed; (b) The person is a licensed or certified health professional who used the automated external defibrillator device while acting within the scope of the license or certification of the professional and within the scope of the employment or agency of the professional; (c) The person is a hospital, clinic, or other entity whose primary purpose is providing health care directly to patients, and the harm was caused by an employee or agent of the entity who used the device while acting within the scope of the employment or agency of the employee or agent; (d) The person is an acquirer of the device who leased the device to a health care entity, or who otherwise provided the device to such entity for compensation without selling the device to the entity, and the harm was caused by an employee or agent of the entity who used the device while acting within the scope of the employment or agency of the employee or agent; or (e) The person is the manufacturer of the device. (5) This section does not establish any cause of action. This section does not require that an automated external defibrillator device be placed at any building or other location or require an acquirer to make available on its premises one or more employees or agents trained in the use of the device. (6) An insurer may not require an acquirer of an automated external defibrillator device which is a community association organized under chapter 617, chapter 718, chapter 719, chapter 720, chapter 721, or chapter 723 to purchase medical malpractice liability coverage as a condition of issuing any other coverage carried by the association, and an insurer may not exclude damages resulting from the use of an automated external defibrillator device from coverage under a general liability policy issued to an association. History. — s. 1, ch. 2001-76; s. 3, ch. 2004-345; s. 3, ch. 2004-353; s. 3, ch. 2006-206; s. 2, ch. 2008-101. 768.1326 Placement of automated external defibrillators in state buildings; rulemaking authority. The State Surgeon General shall adopt rules to establish guidelines on the appropriate placement of automated external defibrillator devices in buildings or portions of buildings owned or leased by the state, and shall establish, by rule, recommendations on procedures for the deployment of automated external defibrillator devices in such buildings in accordance with the guidelines. The Secretary of Management Services shall assist the State Surgeon General in the development of the guidelines. The guidelines for the placement of the automated external defibrillators shall take into account the typical number of employees and visitors in the buildings, the extent of the need for security measures regarding the buildings, special circumstances in buildings or portions of buildings such as high electrical voltages or extreme heat or cold, and such other factors as the State Surgeon General and Secretary of Management Services determine to be appropriate. The State Surgeon General’s recommendations for deployment of automated external defibrillators in buildings or portions of buildings owned or leased by the state shall include: (1) A reference list of appropriate training courses in the use of such devices, including the role of cardiopulmonary resuscitation; (2) The extent to which such devices may be used by laypersons; (3) Manufacturer recommended maintenance and testing of the devices; and (4) Coordination with local emergency medical services systems regarding the incidents of use of the devices. In formulating these guidelines and recommendations, the State S