Broadly speaking, negligence is the failure to use reasonable care. Reasonable care is that degree of care, which a reasonably careful person would use under like circumstances. Negligence may consist either in doing something that a reasonably careful person would not do under similar circumstances or in failing to do something that a reasonably careful person would do under similar circumstances. See Florida Standard Jury Instructions (Civil) § 4.1.
In Florida, the elements of a cause of action for negligence are:
(i.e., the existence of a duty recognized by law requiring the defendant to conform to a certain standard of conduct for the protection of others, including the plaintiff)
(i.e., a failure on the part of the defendant to perform the duty)
(i.e., a reasonably close causal connection between that breach and the plaintiff’s resulting injury)
(i.e., actual loss or damage to the plaintiff)
It is important to note that the plaintiff bears the burden of proving all four elements. Clampitt v. D.J. Spencer Sales, 786 So. 2d 570, 573 (Fla. 2001). Additionally, Florida follows the comparative negligence rule. Hoffman v. Jones, 280 So. 2d 431, 438 (Fla. 1973). Under the comparative negligence rule, a plaintiff’s recovery is reduced in proportion to the percentage of fault, if any, that his or her actions or in-actions contributed to the damages or injuries sustained.
To state a negligence cause of action, the defendant must owe a duty of due care to the person injured. The duty element of negligence focuses on whether the defendant’s conduct foreseeably created a broader “zone of risk’’ that poses a general threat of harm to others.
“There are generally four recognized bases for imposing a duty of care: (1) legislative enactments or administration regulations; (2) judicial interpretations of such enactments or regulations; (3) other judicial precedent; and (4) a duty arising from the general facts of the case.” Wallace v. Dean, 3 So. 3d 1035, 1047 (Fla. 2009) (quotation omitted).
“Foreseeability clearly is crucial in defining the scope of the general duty placed on every person to avoid negligent acts or omissions. Florida, like other jurisdictions, recognizes that a legal duty will arise whenever a human endeavor creates a generalized and foreseeable risk of harming others. As we have stated: Where a defendant’s conduct creates a foreseeable zone of risk, the law generally will recognize a duty placed upon defendant either to lessen the risk or see that sufficient precautions are taken to protect others from the harm that the risk poses.” McCain v. FPL, 593 So. 2d 500, 503 (Fla. 1992).
“[E]ach defendant who creates a risk is required to exercise prudent foresight whenever others may be injured as a result. This requirement of reasonable, general foresight is the core of the duty element.” Curd v. Mosaic Fertilizer, LLC, 39 So. 3d 1216, 1227–28 (Fla. 2010).
The Florida Supreme Court has stated that even “poor judgment” may result in negligence:
A failure to conform to the standard [of care] is negligence, therefore, even if it is due to clumsiness, stupidity, forgetfulness, an excitable temperament, or even sheer ignorance. An honest blunder, or a mistaken belief that no damage will result, may absolve the actor from moral blame, but the harm to others is still as great, and the actor’s individual standards must give way in this area of the law to those of the public. In other words, society may require a person not to be awkward or a fool.
The mere occurrence of an accident does not prove a breach of a duty. Miller v. Aldrich, 685 So. 2d 988 (Fla. 5th DCA 1997). The Supreme Court of Florida has explained that “the threshold inquiry is whether that which occurred is a phenomenon which does not ordinarily happen except in the absence of due care” and that the plaintiff bears the burden of establishing that his or her injuries resulted from negligence and that the defendant was the “probable actor.” Goodyear Tire & Rubber Co. v. Hughes Supply, Inc., 358 So. 2d 1339, 1342 (Fla. 1978).
The alleged negligence must be the legal cause of the plaintiff’s damages or injuries. In Florida, negligence is a legal cause of loss, injury or damage if it directly and in natural and continuous sequence produces or contributes substantially to producing such loss, injury or damage, so that it can reasonably be said that, but for the negligence, the loss, injury or damage would not have occurred. See Florida Standard Jury Instructions (Civil) § 4.1.
“In order to establish that a defendant’s conduct was the ‘cause in fact’ of a particular harm, the [plaintiff] usually must demonstrate that ‘but for’ the defendant’s conduct, the harm would not have occurred. A defendant can rebut this showing by demonstrating that the harm would have occurred in any event, regardless of the defendant’s conduct.” Schuette v. State, 822 So. 2d 1275, 1281 (Fla. 2002).
Negligence may be a legal cause of loss, injury or damage even though it operates in combination with the act of another, if such other cause occurs at the same time as the negligence, and if the negligence contributes substantially to producing such loss, injury, or damage. See Florida Standard Jury Instructions (Civil) § 4.1.
As a general rule, bodily injury or property damage is an essential element of a cause of action in negligence. Monroe v. Sarasota Cnty. School Bd., 746 So. 2d 530, 531 (Fla. 2d DCA 1999). In other words, a plaintiff fails to state a cause of action for negligence unless the plaintiff pleads and proves that he or she suffered damages due to the defendant’s negligence.
Author Gulisano Posted on Categories Cause of Actions, Civil Litigation, Personal InjuryAddress
1701 N. Federal Highway, Suite 4
Boca Raton, FL 33432
Fax
954-947-3910
Email
Click the icon above to call Gulisano Law now for a free consultation.
Gulisano Law, PLLC. Copyright © 2024.
All Rights Reserved.
