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What is Negligence?

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What is Negligence?

Negligence is the basis for most personal injury cases in Florida. You must prove another person’s negligence caused you injury before you can recover compensation for your injuries and damages. 

Negligence is the failure to act with a level of care that a person of ordinary prudence would use in a similar situation. The legal action is composed of four elements: duty, breach, causation, and damages.

Duty of Care

A duty of care generally arises from law or custom due to a relationship between two parties. For example, motorists have a duty of care to obey Florida traffic laws and avoid causing a car accident. Likewise, doctors owe a duty of care to their patients to avoid medical errors

You must prove that a defendant owed you a duty of care as the first step in your negligence claim.

Breach of Duty

Second, you must show that the defendant breached the duty of care. A breach generally means a failure to act. A person breaches their duty when they fail to act like a reasonable person under the circumstances.

For example, suppose a driver fails to yield the right of way, or a doctor fails to monitor a patient after surgery. In both cases, the defendant breached the duty of care by failing to act reasonably.


In many cases, causation is the most difficult element to prove. First, the evidence must show that the defendant caused the accident or incident that resulted in your injury. 

In the example above, you would need evidence proving that failure to yield caused your car crash. It is not sufficient to prove that the defendant put you at risk of harm. You must link the defendant’s actions with the cause of your injuries. 

Prompt medical care after an accident or injury can improve your chance of winning your case. Your medical records can offer proof of your injury and protect your rights to an injury claim. 

Delays in medical care could cause the insurance company to deny or reduce the value of your claim. They might allege your injuries were pre-existing or that you failed to mitigate your damages. Either argument could lower the value of your injury claim


The fourth element of a negligence claim is damages. The types of damages in a personal injury case may include economic loss and non-economic damages. 

Examples of damages include, but are not limited to:

  • Medical bills
  • Cost of in-home nursing care and personal care
  • Loss of wages, benefits, and other income
  • Reductions in your future earning potential
  • The pain and suffering caused by physical injuries, mental trauma, and emotional distress
  • Loss of enjoyment of life or reduced quality of life

Carefully documenting your damages improves your chance of recovering the total value of your claim. Therefore, you should keep copies of all documents evidencing financial losses and make notes about your struggle to recover. 

What is a Reasonable Person?

The standard of care in negligence is based on what a “reasonable person” would do under similar circumstances. The reasonable person is a hypothetical standard. There are no set guidelines for deciding what a reasonable person would do. 

In a personal injury case, a jury decides what a reasonable person would have done given the facts presented during the trial. Then, the jurors compare the defendant’s conduct to a reasonable person’s behavior. If the conduct falls short, the defendant may be responsible for the victim’s damages.

The Impact of Comparative Negligence 

Under Florida’s modified comparative fault laws, an insurance company or court can reduce or prevent an accident victim’s compensation if they share fault for the accident. If your share of fault is 50% or less, your compensation will be reduced proportionately. However, if your assigned fault exceeds 50%, you’re prevented from receiving a financial recovery.

For example, if the jury finds that you were 20 percent at fault for your motorcycle accident, you can only recover up to 80 percent of the value of your damages. If the jury finds that you were 51 percent (or more) at fault, you cannot recover anything.

If an insurance claims adjuster or other party blames you for your injury, contact a lawyer immediately. Insurance companies like to use this argument to undervalue and deny personal injury claims.

Contact Our Miami Personal Injury Lawyers for a Free Consultation

Proving negligence can be challenging. When the stakes are high, insurance companies and defense teams fight to limit their liability. We fight harder to protect your right to fair compensation.

Contact our law firm at (305) 937-0191 to schedule a free consultation with one of our Miami personal injury attorneys at Shaked Law Personal Injury Lawyers. We are here to help you when you need a trusted legal advocate on your side.