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What Is Negligence?

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What Is Negligence?

Most personal injury claims in Florida are based on the legal theory of negligence. Negligence is failing to use the level of care that a person with ordinary prudence would use in the same situation. Proving negligence allows you to seek compensation for your pain and suffering, medical bills, permanent impairments, lost wages, and other damages. 

What Are the Four Legal Elements of a Negligence Claim?

Negligence occurs when a party’s reckless or careless conduct results in harm or injury to another person. A claim based on negligence requires the plaintiff to prove the following four legal elements by a preponderance of the evidence. That means there is a greater than 50% chance the plaintiff’s allegations against the other party are true. 

The four elements of a negligence claim are:

A duty of care is an obligation and responsibility to act in a certain way based on customs or laws. The legal duty of care requires a person to act in a manner that does not put others at an increased risk of harm or injury. 

For example, all drivers have a duty of care to obey traffic laws and use safe driving behaviors to avoid causing car accidents. Their duty of care includes avoiding dangerous driving behaviors and reckless driving that would increase the risk of a car crash.

The level of care a person must use varies. It depends on the circumstances and situation. Therefore, jurors use the “reasonable person” standard to determine the level of care a person should have used.

A “reasonable person” is a hypothetical person of ordinary prudence. The jurors decide what a “reasonable person” would have done given the same circumstances. That establishes the level of care the defendant should have used to fulfill their duty of care.

Breach of Duty

A breach of duty occurs when the defendant does not satisfy their duty of care through their acts or omissions. In other words, the defendant’s conduct does not meet or exceed what a reasonable person would have done given the same circumstances. The breach of duty may involve careless or reckless acts, but the conduct could also be criminal.

For example, a reasonable person understands that passing a stopped school bus is against the law and could increase the risk of causing a car accident. However, a driver speeds past a school bus even though the bus has lights on and the stop signal is extended. Jurors would likely find that the driver breached their duty of care.


It is not enough to prove that the defendant breached the duty of care. You must also prove that the breach of duty was the direct and proximate cause of your injury. 

Direct cause means that you would not have been injured if it had not been for the defendant’s conduct. Proximate cause means that the defendant could reasonably foresee that causing injury to another person was a natural consequence of their conduct.

In the example of the school bus, the driver passes the school bus and causes an accident. A reasonable person could foresee that passing a stopped school bus could result in injury to a child or other person. Furthermore, had the person not passed the school bus, the car accident would not have occurred.

In other words, you were injured because the other driver broke the law and passed a stopped school bus, causing a car accident. 


The last element of a negligence claim is damages. You must prove that the defendant’s breach of duty caused you to sustain damages. 

Damages can include economic damages, such as:

  • Loss of income and benefits, including future lost wages and diminished earning capacity because of permanent impairments 
  • The cost of medical treatment, including future medical bills and costs
  • Out-of-pocket expenses related to your injuries and recovery
  • Personal care and household services
  • Rehabilitative therapies and counseling 
  • In-home and long-term nursing care

However, your losses also include non-economic damages. These damages represent the pain and suffering you experienced because of the defendant’s breach of duty. 

Examples include:

  • The pain and discomfort caused by physical injuries
  • Mental anguish and emotional distress 
  • Loss of enjoyment of life 
  • Permanent disabilities and impairments
  • A decrease in your quality of life
  • Scarring and disfigurement

Evidence of damages can include medical records, employment records, photographs of injuries, statements from medical experts, and your testimony regarding your pain and suffering.

The value of your damages depends on several factors. 

For example, the value of damages generally increases as the severity of your injuries increases. Catastrophic injuries typically result in higher damages. Likewise, permanent impairments increase the value of damages because you sustain ongoing expenses and losses. 

Contact a Florida Personal Injury Lawyer to Discuss Your Negligence Claim

A personal injury lawyer from Winters & Yonker Personal Injury Lawyers will understand how to build a solid case proving negligence. Call or contact our personal injury law firm in Tampa, FL to schedule a free consultation.

We have five convenient locations in Florida, including Tampa, ClearwaterSt. Petersburg, New Port Richey, and Lakeland.

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