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“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