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What Constitutes Negligence?

As an attorney who represents those injured by the negligence of others, I am often asked by clients “what does negligence mean?”  Basically, negligence is the failure to exercise the standard of care that a “reasonably prudent” person would have exercised in a similar situation.  The “reasonable” person standard is a legal hypothetical person who acts sensibly, does things without delay and takes proper (but not excessive) precautions.  Moreover, a defendant’s mental deficiencies and/or inexperience are not taken into account (stupidity is no defense).  However, physical deficiencies are taken into consideration (i.e., a blind person should not fly a plane).

In order to prove a case for negligence, four elements must exist:

  1. A duty on the part of the defendant to conform to a specific standard of conduct for the protection of the plaintiff against an unreasonable risk of injury;
  2. A breach of that duty by the defendant;
  3. The breach is the actual and proximate cause of the plaintiff’s injury; and
  4. Damages.


A duty of care is owed to all foreseeable plaintiffs.  The extent of the duty is determined by the applicable standard of care.  The basic standard of care is that of the “reasonable” person, meaning the conduct is measured against what the average person would do.  However, sometimes particular standards exist in certain situations.  For professionals (such as lawyers and doctors), the standard is that the defendant professional is required to possess the knowledge and skill of a member of the profession or occupation in good standing in similar communities.  Children are held to the standard of a child of like age, education, intelligence and experience.

For owners or occupiers of land, different standards apply depending on the status of the person injured.  In Florida, liability towards an undiscovered trespasser (a person who enters the property without an invitation and whose presence was not detected within 24 hours before the incident) is not actionable unless the landowner intentionally hurts the trespasser.  Also, the landowner has no duty to warn of any dangerous conditions towards undiscovered trespassers.  The duty owed to a discovered trespasser (a person who enters the property without an invitation and whose actual physical presence was detected within 24 hours of the incident) is that the landowner must refrain from gross negligence or intentional misconduct and must warn of dangerous conditions that are known but not readily observable by others.  However, a landowner is under no duty to warn of dangerous conditions if the trespasser is under the influence of drugs or alcohol.  If the person on the property is a licensee by invitation (i.e., social guests and others who are on the property through invitation) they are owed a duty of reasonable care under the circumstances.  If the person on the property is an uninvited licensee (a person who chooses to come onto the property solely for their own convenience without invitation) they are owed that same duty as owed to discovered trespassers.  Invitees are owed the highest of duties for possessors of land.  Invitees are those who enter onto the land in response to an invitation by the landowner (such as business visitors or those on a public park that is held open to the public).  They are owed the duties as a licensee by invitation AND the duty to make reasonable inspections to discover non-obvious dangerous conditions.


Where a defendant’s conduct falls short of the level required by the applicable standard of care owed to the plaintiff, they have breached their duty.  This is a question that must be presented to a jury as the finders of fact in negligence cases.  Plaintiffs may use certain theories to help persuade a jury of a breach.  One such way is to present evidence of a custom or usage (i.e., custom in an industry).  Another way to prove a breach is through violation of a statute (i.e., the defendant ran the red light and hit my client).

Actual and Proximate Cause

Once negligent conduct is shown (duty and breach), the plaintiff must now prove that the breach of the duty caused an injury.  The actual cause is where the act or omission is the cause in fact of an injury when the injury would not have occurred BUT FOR the act.  The proximate cause must also be proven in negligence cases.  Proximate, or legal cause, is a limitation of liability and deals with liability or non-liability for unforeseeable or unusual consequences of one’s acts.  The test for proximate cause is one of foreseeability.  For example, it is foreseeable that subsequent medical negligence may occur when a person injured in a motor vehicle accident seeks treatment.  Therefore, the defendant who caused the accident would be liable for the subsequent medical negligence.  However, it is not foreseeable that a plaintiff injured in a motor vehicle accident would later slip and fall in a supermarket.  The defendant who caused the motor vehicle accident would not be liable for the subsequent slip and fall.


If the plaintiff has proven the previous three elements of his negligence case, he is entitled to receive compensation in the form of damages (past, present and future).  Economic damages are damages that have a definite number (such as medical expenses).  Noneconomic damages are for injuries that are difficult to discern (such as pain and suffering).  Punitive damages are recoverable if the defendant’s conduct is wanton and willful, reckless or malicious (i.e., causing an accident while intoxicated).  Punitive damages are designed to punish.  In all cases, the plaintiff has a duty to mitigate his damages (i.e., seek appropriate medical treatment).

The LaBovick Law Group has a team of personal injury attorneys who concentrate their practices on representing those injured by the negligence of others.  Proving your negligence case is not easy and there are always some issues that may impede your negligence case.  We know the difficulties of proving the elements of negligence and how to best prepare a case to go to trial.  If you have been injured by the negligence of another, call today for a free consultation.

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