“If you have been injured in a personal injury “accident”, or you have lost a family member to one, you should consult with an experienced Florida personal injury accident attorney to discuss the unique facts and circumstances of your case.”

UNDERSTANDING THECONCEPT OF “NEGLIGENCE”IN A

PERSONAL INJURY LAWSUIT IN FLORIDA

IN FLORIDA

AMANDA POWERS SELLERS AND JENNA C. FINKELSTEIN

We frequently use terms such as “car accident” or “slip and fall accident”

when referring to scenarios that cause injuries to a victim. The reality,

however, is that more often than not those injuries are not caused by an

accident, but by the negligence of another party. Most personal injury

lawsuits are based on negligence. When another party’s negligence caused,

or contributed to your injuries the law in the State of Florida may allow you

to recover compensation for your injuries from the negligent party.

If you have been injured in a personal injury “accident”, or you have lost a

family member to one, you should consult with an experienced Florida

personal injury accident attorney to discuss the unique facts and

circumstances of your case. In the meantime, however, a basic

understanding of what the law means by the term “negligence” may be

beneficial.

DETERMINING FAULT – INTENTIONAL, NEGLIGENT AND

STRICT LIABILITY TORTS

For a victim to recover damages for injuries sustained in a personal injury

“accident” the defendant must be legally at fault for those injuries. “Torts”

is the proper legal term for the area of the law that addresses injuries to

your person or your property. There are three types of “torts”, meaning

there are three ways in which a defendant can be found to be at fault.

Each type of tort requires a different level of mens rea, or “state of mind”,

on the part of the defendant.

Intentional torts – in an intentional tort, the defendant’s

intentional conduct caused the injury. Assault is an example of an

intentional tort. Though assault can also be a criminal offense, it may

be the basis for a personal injury lawsuit as well. If, for example, you

are assaulted while working as a waitress in a nightclub when a bar

fight breaks outyou may be entitled to compensation for your injuries

because the defendant committed the intentional tort of assault.

Strict liability torts – in some cases the law is not concerned with

the defendant’s state of mind. Instead, the law only looks at the end

result. Dog bites are a common example of a strict liability tort. Many

states, including Florida, have a strict liability dog bite law that holds

the owner of a dog liable for injuries without regard to whether the

defendant attempted to prevent the attack.

Negligent torts –most personal injury accidents are based on negligent

torts. Negligence uses a reasonableness standard when determining

liability.

THE ELEMENTS OF A NEGLIGENT TORT

The vast majority of personal injury lawsuits are negligence lawsuits,

including car accidents, slip and fall accidents, and most premises liability

accidents. To succeed in a lawsuit based on negligence you must prove

four elements:

Duty of care – the defendant must have owed a legal duty to the

victim to do everything reasonably possible to prevent harm from

befalling the victim. The duty of care is determined on a case by case

basis; however, there are some situations where the duty of care is

fairly well established, including:

o motorists operating a vehicle on a public highway owe a duty of

care to others on the roadway

o a shop owner owes a duty of care to the customers who enter

the shop

o a manufacturer of a product owes a duty of care to those who

purchase the product

o a doctor owes a duty of care to a patient

Breach of duty – for the defendant to be liable you must prove that

the defendant breached the duty of care. For example, a motorist

who drives while intoxicated has breached the duty of care owed to

others are the roadway. Likewise, a shop owner who is aware of a

dangerous situation in the store yet does nothing to remedy the

situation within a reasonable amount of time would likely be held

liable for any injuries that occur as a result of the situation.

Causation – you must prove that the breach of the duty of care was

a significant contributing factor in the “accident” that led to your

injuries.

Damages –you must prove that you were injured as a result of the

defendant’s breach of the duty of care.

COMPARATIVE VS. CONTRIBUTORY NEGLIGENCE

Sometimes a defendant is 100 percent responsible for injuries suffered by

a victim. More often, however, the defendant is able to prove that the

victim shared some of the responsibility for the accident. Therefore, the

law must decide how to apportion fault if more than one party was

responsible for the “accident”. To do this, the law may use either

comparative or contributory negligence.

Contributory negligence prevents a victim from recovering compensation if

the victim “contributed” to the accident in any way. In other words, if you

are seriously injured in a car accident in which you were one percent at

fault you cannot recover anything from the defendant because you

contributed to the accident. Fortunately, only a handful of states use

contributory negligence.

Comparative negligence “compares” the degree to which each party is

responsible for the accident. If the defendant(s) was more than 50 percent

at fault you may be entitled to recover compensation. For instance, if you

are injured in a car accident wherein the defendant was texting while

driving but you were speeding it may be determined that the defendant

was 80 percent responsible for the accident and you were 20 percent at

fault. In that case, your compensation will be diminished by the percentage

of your fault in the accident, in this case 20 percent.

FLORIDA’S NO FAULT INSURANCE LAW

The State of Florida is a “no fault” insurance state, meaning that for minor

motor vehicle accidents a victim’s own insurance carrier will provide

compensation for things such as medical bills and lost wages without

regard to fault. Therefore, negligence is not an issue. If, however, your

injuries surpass the “serious injury threshold” in Florida you may pursue a

traditional personal injury lawsuit in which case you will be required to

prove the defendant was negligent.

If you believe that another party’s negligent conduct caused, or contributed

to, injuries you suffered in an “accident” you may be entitled to

compensation for those injuries. Only an experienced Florida personal

injury attorney can evaluate the details of your case and provide you with

individualized advice.

Findlaw, Elements of a Negligence Case

Laws.com, Comparative Negligence

Florida Statutes 768.81, Comparative Fault

ABOUT THE AUTHORS

Amanda Powers Sellers

Florida criminal defense lawyer, Amanda Powers Sellers,

has aggressively defended thousands of Florida criminal

cases. With over nine years of criminal jury trial

experience, she has the necessary background to represent

cases ranging from Driving under the Influence (DUI) to

First Degree Murder.

Amanda is a seasoned litigator and an aggressive negotiator. With a wealth

of experience she has proven that her gentle, but aggressive style of criminal

defense litigation consistently achieves results for her clients.

Jenna C. Finkelstein

Florida criminal defense attorney, Jenna Finkelstein, has

over sixty (60) criminal jury trials to her credit. Her

experience defending individuals charged with crimes in

the state of Florida ranges from domestic battery to DUI

Manslaughter, Sexual Battery, First Degree Murder and all

crimes in between.

She is passionate about the law and promises personal attention to all of her

clients and their individual needs. Jenna is a seasoned trial attorney who

knows the legal system and its players. Jenna and her team at the Law Offices

of Powers Sellers & Finkelstein, PLC, are committed to fighting for you.

Powers Sellers & Finkelstein, PLC 6344 Roosevelt Blvd. Suite B

Clearwater, FL 33760 727-531-2926

http://psffirm.com