Statutes of Limitations (FLORIDA)


Personal Injury - 4 yrs. [F.S.A. § 95.11(3)]

Wrongful Death - 2 yrs. [F.S.A. § 95.11(4)]

Property Damage - 4 yrs. [F.S.A. § 95.11(3)]

Written Contracts - 5 yrs. [F.S.A. § 95.11(2)]

Oral Contracts - 4 yrs. [F.S.A. § 95.11(3)]

Contracts for Sale (goods) - No separate statute

Breach of Implied Warranty - 4 yrs. [F.S.A. § 95.11(3)]

Breach of Express Warranty - 5 yrs [F.S.A. § 95.11(2)]


Time within which an action shall be begun under any statute of limitations runs from the time when the last element constituting the cause of action occurs [F.S.A. § 95.031],  




Statute of Repose (Products) (FLORIDA)

12 yrs. for actions involving products with expected useful life of 10 yrs. or less.  All products except* those listed in the statue are conclusively presumed to have expected useful life of 10 years or less. [F.S.A. § 95.031].

* Aircraft used in commercial or contract carrying of passengers or freight, vessels of more than 100 gross tons, railroad equipment used in commercial or contract carrying of passengers or freight, and improvements to real property, including elevators and escalators, are not subject to the statute of repose.


Admissibility of Expert Testimony (FLORIDA)


Test similar to Daubert.  Fla. Stat. § 90.702 provides that an expert may testify if: (1) the testimony is based upon sufficient facts or data; (2) the testimony is the product of reliable principles and methods; and (3) the witness has applied the principles and methods reliably to the facts of the case.


Causes of Action (FLORIDA)


Strict Liability – Florida has adopted Rest. (2nd) of Torts, 402A. One who sells any product in a defective condition unreasonably dangerous to the user is subject to liability if the seller is engaged in the business of selling such a product, and the product is expected to and does reach the user without substantial change in the condition in which it is sold [West v. Caterpillar Tractor Co., 336 So. 2d 80 (Fla. 1976)]. 


Negligence – Defendant in a negligence action is liable if he could be charged with actual or implied knowledge of the defect [Carter v. Hector Supply Co., 128 So. 2d 390 (Fla. 1961)].


Breach of Warranty – Florida has adopted the standard UCC express warranty [F.S.A. § 672.313]; implied warranty of merchantability [F.S.A. § 672.314]; implied warranty of fitness for particular purpose [F.S.A. § 672.315].  A seller’s warranty (express or implied) extends to any natural person who is in the family or household of his buyer, who is a guest in his home or who is an employee, servant or agent of his buyer if it is reasonable to expect that such person may use, consume or be affected by the goods and who is injured in person by breach of the warranty [F.S.A. § 672.318].  Strict liability supplants all no-privity, breach of implied warranty cases because it was created out of these cases, but the contract action of breach of implied warranty remains available where privity of contract is shown [Kramer v. Piper Aircraft Corp., 520 So. 2d 37 (Fla. 1988)].


Definition of “Defect” (FLORIDA)


A product is defective when the risks are greater than a reasonable buyer would expect [Perez v. Nat’l Presto Indus., 431 So. 2d 667 (Fla. App. 1983)].  Three basic families of defects: manufacturing defects, design defects, and failures to warn. [Force v. Ford Motor Co., 879 So. 2d 103 (Fla. App. 2004)].


Also, see discussion below re: "design defects."

Liability of Sellers (FLORIDA)

Strict liability applies to sellers, suppliers, distributors, retailers, and commercial lessors. [Samuel Friedland Family Enters. v. Amoroso, 630 So. 2d 1067 (Fla. 1994); Dorsch v. Pilatus Aircraft Ltd., 2012 U.S. Dist. LEXIS 61207 (M.D. Fla. May 2, 2012)].  Liability applies only if they are engaged in the business of selling such a product.


Defenses (FLORIDA)     

Comparative Negligence – Florida follows pure comparative negligence (Plaintiff can recover even if 99% at fault) [F.S.A. § 768.81].  Applies to strict liability and implied warranty cases [West v. Caterpillar Tractor Co., 336 So. 2d 80 (Fla. 1976)].


Product Misuse – In order for strict liability to apply, the product must have been used for the purpose intended [High v. Westinghouse Elec. Corp., 610 So. 2d 1259 (Fla. 1992)].


Product Alteration/Modification – In order to prevail in an action brought under strict liability or negligence, Plaintiff must demonstrate that the injuries were caused by a defective product whose defect existed at the time of injury and at the time in which the product left Manufacturer’s control [Rodriguez v. Nat’l Detroit, Inc., 857 So. 2d 199 (Fla. App. 2003)].


Assumption of Risk – Incorporated in the comparative negligence analysis [Std. Havens Prods. v. Benitez, 648 So. 2d 1192 (Fla. 1994)].


Economic Loss Doctrine (ELD) (Product Destroys Only Itself) (FLORIDA)

Applies to product liability cases and there are several exceptions, such as cases involving professional malpractice, fraudulent inducement, and negligent misrepresentation [Tiara Condominium Asps’, Inc. v. Marsh & McLennan Companies, Inc., 110 So.3d 399 (Fla. 2013)].  In order to determine the character of the loss, one must look to the product purchased by Plaintiff and not the product sold by Defendant (the “product” purchased was the home with all of its component parts, including the seawall, pool, and patio) [Fishman v. Bold, 666 So.2d 273, (Fla. App. 1996)].


Malfunction Theory (Using Circumstantial Evidence to Prove Defect) (FLORIDA)


Evidence of the nature of an accident itself may, under certain circumstances, give rise to a reasonable inference that the product was defective because the circumstances of the product’s failure may be such as to frustrate the ordinary consumer’s expectations of its continued performance.  Plaintiff may establish a submissible products liability case by either direct or circumstantial evidence, the latter frequently accomplished through the opinion testimony of an expert that the product was defective [Cassisi v. Maytag Co., 396 So. 2d 1140 (Fla. App. 1981)].   


Design Defects (FLORIDA)


Under the consumer-expectation theory, a product is defectively designed if Plaintiff can show that the product did not perform as safely as an ordinary consumer would expect when used in the intended or reasonably foreseeable manner.  This test relies on deductive reasoning to conclude that the product is defective.  Under the risk-utility theory, a product is defectively designed if Plaintiff proves that the design of the product proximately caused Plaintiff’s injuries and Defendant fails to prove that, on balance, the benefits of the design outweigh the risk of danger inherent in the design [Force v. Ford Motor Co., 879 So. 2d 103 (Fla. App. 2004)].  There is some disagreement among courts as to which test should be used [See Force v. Ford Motor Co., 879 So. 2d 103 (Fla. App. 2004); Agrofollajes, S.A. v. E.I. Du Pont de Nemours & Co., 48 So. 3d 976 (Fla. App. 2010); Aubin v. Union Carbide Corp., 177 So. 3d 489 (Fla. 2015)].


The parties may present evidence that a reasonable alternative design existed and argue whether the benefit of the product’s design outweighed any risks of injury or death caused by the design. [Aubin v. Union Carbide Corp., 177 So. 3d 489 (Fla. 2015)].


In an action based upon defective design, the finder of fact must 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 [Fla. Stat. § 768.1257].


Failure to Warn (FLORIDA)


A duty to warn arises where a product is inherently dangerous or has dangerous propensities, but there is no duty to warn of an obvious danger.  Manufacturer may be liable for introducing an otherwise safe product into the stream of commerce solely by virtue of inadequate warnings (in such a case, a plaintiff may proceed under a theory of negligence, strict liability, or both) [Veliz v. Rental Serv. Corp. USA, Inc., 313 F. Supp. 2d 1317 (M.D. Fla. 2003)].


Where warning is given, Seller may reasonably assume that it will be read and heeded, and a product bearing such a warning, which is safe for use if the warning is followed, is not in defective condition, nor is it unreasonably dangerous [Giddens v. Denman Rubber Mfg. Co., 440 So. 2d 1320 (Fla. App. 1983)].



Independent Cause of Action for Evidence Spoliation (FLORIDA)

Tort of negligent spoliation against a first-party defendant has not been recognized [Martino v. Wal-Mart Stores, Inc., 908 So.2d 342 (Fla. 2005)].  Independent claim for spoliation against third parties has been recognized [Townsend v. Conshor, Inc., 832 So.2d 166 (Fla. App. 2002)].