car accident quiz

request consultation

call 561.372.3800

What Exactly Is Legal “Negligence”?

by | Nov 12, 2020

Everyone seems to have an intuitive understanding of what constitutes “negligent” behavior. But like so many other terms, “negligence” bears a specific and technical meaning in the legal world that few non-lawyers fully appreciate.

Understanding the legal definition of negligence is key to understanding Florida’s personal injury laws since negligence typically serves as the basis for most personal injury cases including car accidents, truck accidents, premises liability cases, malpractice suits, and more.

Florida’s Definition of Negligence

The legal definition of negligence in Florida can be found in the Florida Standard Jury Instructions, Fla. Std. Jury Instr. (Civ.) 401.4. There negligence is defined as:

the failure to use reasonable care, which is the care that a reasonably careful person would use under like circumstances. Negligence is doing something that a reasonably careful person would not do under like circumstances or failing to do something that a reasonably careful person would do under like circumstances.

So now you know! Case solved! Well, probably not.

For most people, this cryptic and convoluted definition doesn’t clear up very much. Therefore, Florida courts use a four-part test in applying the doctrine of negligence.

Four-Part Test for Negligence

When you hire a personal injury lawyer to represent you, they will focus first on establishing the other party’s negligence. To do so, they must prove the four basic elements of every negligence lawsuit:

  1. Duty of Care: Proof that the other person owed you a duty to keep you safe from harm.
  2. Breach of Duty: Proof that the defendant breached that duty to keep you safe.
  3. Causation: Demonstration that the breach of duty of care caused you injury, damage, or harm.
  4. Injury or Damage: Proof that the accident did cause you injury, damage, or harm.

Duty of Care

The first element in determining negligence is establishing that the defendant (injurer) owed the plaintiff (injured) a legal duty of care. A duty of care arises when the law recognizes a relationship between two parties in which each party has an obligation to exercise the same level of reasonable care that another person in a similar situation would exercise.

A good way of approaching this concept is to think of an automobile driver. All drivers are expected to maintain their vehicles such that they can be operated safely and to operate their vehicles in a manner consistent with Florida’s traffic laws. These restrictions exist to impose the duty on the driver.

Likewise, business owners and property owners have a duty to take reasonable care to make their premises safe for their customers, employees, and guests. Doctors, accountants, and lawyers have a duty to patients and clients to perform their relative jobs at certain standards as well.

Breach of Duty

Next, your lawyer will prove that the defendant breached the duty by doing or not doing something that an average person would do in a similar circumstance.

Let’s continue our car driving example from above: The existence of a speed limit imposes the duty on drivers to operate their vehicles within the limits outlined by Florida law for the safety of other drivers. Therefore, breaking the speed limit constitutes a breach of duty.

Similarly, running red lights or stop signs, driving erratically, or operating a vehicle with faulty brakes would also breach the driver’s duty of care.

Again, the situation extends beyond cars and drivers. The following situations could all potentially constitute breaches of duties of care:

  • A property owner failing to fix broken stair,
  • A grocery store not regularly checking aisles for spills, and
  • A dog owner bringing a dog known to be aggressive toward kids to a playground.

Injury or Damages

There must also be some sort of measurable harm suffered by you, the victim, whether physical, financial, or emotional. Nearly every personal injury case will include some physical damages (e.g. broken bones, cuts, concussion, etc.). Many other accidents will involve property damages as well to your car, motorcycle, bicycle, or other personal items.

Damages need not be physical, though. There are special kinds of damages specifically designed to address mental pain and suffering, second-order effects (e.g. future lost wages), or even uniquely defined categories of damages.


The final element of negligence is causation, which focuses on how the breach caused the injury or harm. By Florida law, injured parties must prove that the defendant’s breach of duty directly caused or substantially contributed to your injuries and damages. This often means demonstrating that but for the defendant’s conduct the harm would not have occurred (also known as the “proximate cause”).

For example, if someone is speeding down I-95 at 100 mph and someone headed the opposite direction swerves into the concrete median, one can’t say the speeder caused the other driver to lose control of their vehicle; the driver of the smashed-up car cannot sue the speeder.

Had the two drivers been going the same direction, and had the speeder clipped the rear bumper of the other driver as he attempted to weave in and out of traffic, sending the car spinning into the median, the story would be different: But for the first driver’s actions, the second driver would not have crashed into the median.

Additionally, in our extra examples above, if nobody was injured on the property owner’s broken stair, on the grocery store’s slippery floor, or by the dog at the park, then no causation would exist. But if a guest trips on the loose stair and breaks her ankle or the dog slips its collar and attacks a child, then the injured parties could sue the relevant persons.

Pro Tip: A couple of factors can mitigate the breach of duty and causation. First, if there is an intervening cause, the liability of the original person who breached their duty would be negated. Second, if the action that caused the injury was due to an unexpected act of nature, then it would be deemed unforeseeable, also likely negating the liability of the person who breached the duty of care.

Negligence Per Se

In certain instances, injured parties and their lawyers can invoke the doctrine of “negligence per se.” Negligence per se is a special type of negligence wherein the defendant is found negligent as a matter of law because they violated a statute that is designed to protect against the type of accident or harm caused by their actions.

In other words, where a statute or regulation imposes some kind of minimal reasonable duty of care on a person who undertakes a particular activity, and you have proof that the defendant violated said statute or regulation, it is possible that negligence per se may apply.

Under normal circumstances, proving negligence requires that your lawyer prove the four elements listed above. But when a defendant is found negligent per se, the injured party can bypass proving the first two elements of regular negligence and skip to showing whether the violation directly caused or substantially contributed to the plaintiff’s injury.

Elements to Establish Negligence Per Se

Examples of negligence per se abound in all manner of situations where statutes or regulations govern the conduct of individuals or businesses from car and truck drivers to pet owners, from doctors and accountants to railroad operators.

Once your lawyer has shown that the defendant violated a statute or regulation, in Florida they must still prove that you:

  1. Are a member of the class of persons the statute was designed to protect,
  2. Your injury is the type the statute was designed to prevent, and
  3. Violation of the statute was the proximate cause of the injury.

Negligence Per Se in Florida

Let’s look at a good real-world example of negligence per se in Florida from a 1973 Florida Supreme Court case deJesus v. Seaboard Coast Line Railroad Company (281 So. 2d 198 (1973)). Here’s what happened.

While driving at night, a husband and wife crashed into an unlighted tank car of a train, which was temporarily stopped on the tracks, thus blocking the road. The attorneys for the husband and wife argued for negligence per se to establish that the railroad company was conclusively negligent for their clients’ injuries because the company had violated an existing statute that was intended to “protect automobile drivers and their passengers from colliding with unlighted trains blocking highways at night at unlighted crossings.”

The railroad company appealed their loss in the lower court, and the case ultimately made it before the Florida Supreme Court. In its ruling, the Court had to decide whether negligence per se properly applied. Ultimately, it found that the statute was intended to protect a specific class of persons and that the husband and wife had suffered the same harm the statute was intending to prevent. Thus, it verified that negligence per se did apply.

However, it is important to note that in Florida merely violating a statute is not sufficient to trigger negligence per se; generally, only violations of non-traffic penal statutes are considered negligence per se. So, for example, in a drunk driving accident, showing that the driver was drunk would establish negligence pe se, because the law that prohibits drunk driving is a penal statute. Showing that the driver was speeding (a traffic violation) may not be sufficient to trigger negligence per se; although, it can still be used as evidence of negligence (e.g. breach of duty).

Expert Advice on a Complex Subject

If you’ve been injured in a car accident, truck accident, slip and fall accident, or boating accident, by medical or professional malpractice, or by exposure to toxic mold, proving the negligence of the other party is absolutely critical.

But as you’ve seen above, Florida’s negligence laws are nuanced and much more complex than people realize. Without a trusted personal injury lawyer on your side to help you navigate the particulars, you run the risk of losing your case.

The personal injury lawyers here at Personal Injury & Accident Law Center would love to speak to you about your case and tell you how we can help you get on the path to a full recovery. Call or text us today at (561)372-3800 to schedule a free case evaluation or fill out the confidential form below.