Personal Injury

Personal injury is the commonly used phrase to describe negligence resulting in a bodily injury. (The phrase also includes “[a]ny invasion of a personal right, including mental suffering and false imprisonment.” PERSONAL INJURY, Black’s Law Dictionary (11th ed. 2019)).

Four Elements of Negligence

There are many different types of personal injury cases and our website goes to great lengths to explain most of them:

• Injuries Caused by Animals
• Medical Malpractice
  • Burden of Proof
  • Expert Witnesses
  • Presuit Requirements
  • Arbitration
  • Medical Malpractice Statute of Limitations
  • Medical Malpractice Litigation
  • Settlement Agreements
  • Limitation on Actions Against Insurers, Prepaid Limited Health Service Organizations, Health Maintenance Organizations, or Prepaid Health Clinics
  • Florida Medical Consent Law
  • Authorization for Release of Protected Health Information
  • Florida’s Birth-Related Neurological Injury Compensation Plan (NICA)
• Motor Vehicle Accidents
  • Florida’s Dangerous Instrumentality Doctrine
  • Motor Vehicle Insurance
  • Uber and Lyft Accidents
  • Turo and Other Peer-to-Peer Car Sharing Accidents
• Premises Liability
• Wrongful Death
• Cruise Ship Injuries
• Intentional Torts
• Nursing Home, Assisted Living, and Adult Family Care
• Products Liability
• Boating Accidents

Each type has its own unique variances but there are four “elements” at the core of every personal injury case. A person seeking to prevail in a negligence claim must establish:

1. A duty, or obligation, recognized by the law, requiring the [defendant] to conform to a certain standard of conduct, for the protection of others against unreasonable risks.
2. A failure on the [defendant’s] part to conform to the standard required: a breach of the duty . . . .
3. A reasonably close causal connection between the conduct and the resulting injury. This is what is commonly known as “legal cause,” or “proximate cause,” and which includes the notion of cause in fact.
4. Actual loss or damage . . . .

Clay Elec. Co-op., Inc. v. Johnson, 873 So. 2d 1182, 1185 (Fla. 2003) (brackets and ellipses in original).

These four elements are summarized as duty, breach, causation, and damages.

Duty

The first of the four elements that must be established is duty. Duty “is linked to the concept of foreseeability and may arise from four general sources: (1) legislative enactments or administration regulations; (2) judicial interpretations of such enactments or regulations; (3) other judicial precedent; and (4) a duty arising from the general facts of the case.” Id. (citing McCain v. Fla. Power Corp., 593 So.2d 500, 503 n.2 (Fla.1992).

As to the role of foreseeability, “Florida, like other jurisdictions, recognizes that a legal duty will arise whenever a human endeavor creates a generalized and foreseeable risk of harming others.” McCain., 593 So. 2d at 503. “Where a defendant’s conduct creates a foreseeable zone of risk, the law generally will recognize a duty placed upon defendant either to lessen the risk or see that sufficient precautions are taken to protect others from the harm that the risk poses.” Kaisner v. Kolb, 543 So. 2d 732, 735 (Fla. 1989). See also the landmark case of Palsgraf v. Long Island R. Co., 248 N.Y. 339, 350, 162 N.E. 99, 103 (1928) (“Every one owes to the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others. . . . [If harm comes, the person owing the duty is liable to those who might reasonably be harmed as well as those who are] in fact injured, even if [they are] outside what would generally be thought the danger zone.”)

As stated by the Florida Supreme Court: “Where a defendant’s conduct creates a foreseeable zone of risk, the law generally will recognize a duty placed upon defendant either to lessen the risk or see that sufficient precautions are taken to protect others from the harm that the risk poses.” Kaisner v. Kolb, 543 So. 2d 732, 735 (Fla. 1989). “[A]s the risk grows greater, so does the duty, because the risk to be perceived defines the duty that must be undertaken.” McCain., 593 So. 2d at 503 (citing J.G. Christopher Co. v. Russell, 63 Fla. 191, 58 So. 45 (1912)).

Ultimately, “the statute books and case law . . . are not required to catalog and expressly proscribe every conceivable risk in order for it to give rise to a duty of care.” McCain., 593 So. 2d at 503. Instead, “each defendant who creates a risk is required to exercise prudent foresight whenever others may be injured as a result. This requirement of reasonable, general foresight is the core of the duty element.” Id.

As to who decides this issue, “duty exists as a matter of law and is not a factual question for the jury to decide: Duty is the standard of conduct given to the jury for gauging the defendant’s factual conduct. As a corollary, the trial and appellate courts cannot find a lack of duty if a foreseeable zone of risk more likely than not was created by the defendant. Id.

Breach

The second element of negligence, “breach,” is fairly simple. Once the court decides that a duty exists, the question of whether that duty was breached is an issue for the jury to decide. “While the question of whether a duty exists is a question of law for the court to decide, the questions of whether an existing duty has been breached and if so, whether such breach was the legal cause of a claimant’s injury or damage are questions of fact which have generally been left to the trier of fact in negligence cases.” Sanderson v. Eckerd Corp., 780 So. 2d 930, 933 (Fla. 5th DCA 2001).

In negligence cases, the judge will instruct the jury:

Negligence is 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.

Negligence, Florida Standard Jury Instructions in Civil Cases, 401-4.

The jury will most likely be asked to decide breach and causation in one question. Under the Model Form of Verdict for General Negligence, the first question the jury must decide is: “Was there negligence on the part of [defendant] which was a legal cause of [loss] [injury] [or] [damage] to [claimant or decedent]?”

Causation

The third element in a negligence case is causation. Here, “the legal concept of foreseeability also is crucial.” McCain, 593 So. 2d at 503. But unlike foreseeability in determining duty, which considers the “zone of risk,” foreseeability in determining causation is more “concerned with the specific, narrow factual details of the case.” Id.

According to the Florida Supreme Court, proximate or legal cause is found where “prudent human foresight would lead one to expect that similar harm is likely to be substantially caused by the specific act or omission in question.” Id. “In other words, human experience teaches that the same harm can be expected to recur if the same act or omission is repeated in a similar context.” Id. Although, it is important to note that “there is no requirement that the harm must recur every time, only that recurrence is likely.” Id. at n.3.

It is also not critical that the defendant foresees the exact way the injury occurred, or its exact extent. McCain, 593 So. 2d at 503. But “an injury caused by a freakish and improbable chain of events would not be ‘proximate’ precisely because it is unquestionably unforeseeable, even where the injury may have arisen from a zone of risk.” Id. “The law does not impose liability for freak injuries that were utterly unpredictable in light of common human experience.” Id.

So, “a trial court has discretion to remove the issue from the jury if, ‘after the event and looking back from the harm to the actor’s negligent conduct, it appears to the court highly extraordinary that [the conduct] should have brought about the harm.’” Id. at 503-504 (citing Restatement (Second) of Torts § 435(2) (1965)).

But generally, the issue of causation is left to the jury. McCain, 593 So. 2d at 505 (“where reasonable persons could differ as to whether the facts establish proximate causation—i.e., whether the specific injury was genuinely foreseeable or merely an improbable freak—then the resolution of the issue must be left to the fact-finder.”)

Before going on to the issue of damages, a jury must also determine whether the plaintiff bears any fault. Under section 768.81(2), Florida Statutes, “contributory fault chargeable to the claimant diminishes proportionately the amount awarded as economic and noneconomic damages for an injury attributable to the claimant’s contributory fault.” And under 768.81(6), “any party found to be greater than 50 percent at fault for his or her own harm may not recover any damages.” (Emphasis added.) But that bar to recovery, “does not apply to an action for damages for personal injury or wrongful death arising out of medical negligence. . . .” Id.

The jury must also determine fault amongst the defendants—if there are more than one. “In a negligence action, the court shall enter judgment against each party liable on the basis of such party’s percentage of fault and not on the basis of the doctrine of joint and several liability.” § 768.81(3), Fla. Stat. However, under 768.31(2)(a), “when two or more persons become jointly or severally liable in tort for the same injury to person or property, or for the same wrongful death, there is a right of contribution among them even though judgment has not been recovered against all or any of them.” “Contribution exists only in favor of a tortfeasor who has paid more than her or his pro rata share of the common liability.” § 768.31(2)(b), Fla. Stat. And the “tortfeasor’s total recovery is limited to the amount paid by her or him in excess of her or his pro rata share.” Id. “No tortfeasor is compelled to make contribution beyond her or his own pro rata share of the entire liability.” It’s worth noting that “[t]here is no right of contribution in favor of any tortfeasor who has intentionally (willfully or wantonly) caused or contributed to the injury or wrongful death.” § 768.31(2)(c), Fla. Stat.

Damages

Damages generally fall into three main categories: economic losses; noneconomic losses; and punitive damages, if applicable. If a case goes to trial, section 768.77, Florida Statutes, requires juries to itemize damages within these categories. For medical malpractice cases, the itemization required is a bit more nuanced—adding breakdowns for past and future losses to economic and noneconomic damages.

This is from the Florida Supreme Court’s Form 2(A), the “Model Form of Verdict for Personal Injury Damages”:

What is the total amount of (claimant’s) damages for lost earnings in the past, loss of earning capacity in the future, medical expenses incurred in the past, medical expenses to be incurred in the future, and (list any other economic damages)?

What is the total amount of (claimant’s) damages for pain and suffering, disability, physical impairment, disfigurement, mental anguish, inconvenience, aggravation of a disease or physical defect (list any other noneconomic damages) and loss of capacity for the enjoyment of life sustained in the past and to be sustained in the future?

What is the total amount of damage sustained by (spouse) in loss of [his wife’s] [her husband’s]:

[a.] Comfort, society, and attention?

[b.] Services?

The following is is from Form 2(b), the “Model Form of Verdict for Wrongful Death Damages”: (Keep in mind that not all damages below will be applicable in every wrongful death case. For more on this, please see our webpage on Florida Wrongful Death.)

DAMAGES OF THE ESTATE

What is the total amount of any damages sustained by the estate for [any earnings of the decedent lost from the date of injury to the death not including any amount of support lost by a survivor in that period] [,] [the amount of any medical or funeral expenses resulting from (decedent’s) injury and death charged to the estate or paid by someone other than a survivor] [,] [and] [loss of net accumulations] [,] [(list other damages sustained by estate)]?

DAMAGES OF (surviving spouse)

a. What is the amount of any damages sustained by (surviving spouse) for the [loss of the (decedent’s) support] [and] [services] [, and] [medical or funeral expenses] resulting from (decedent’s) injury and death paid by (surviving spouse)]?

b. What is the total amount of damages sustained by (surviving spouse) for the loss of [his wife’s] [her husband’s] companionship and protection and for [his] [her] pain and suffering as a result of (decedent’s) injury and death?

DAMAGES OF (surviving child)

a. What is the total amount of damages sustained by (surviving child) for the [loss of the (decedent’s) support] [and] [services] [, and] [medical or funeral expenses resulting from (decedent’s) death paid by (surviving child)]?

b. What is the total amount of damages sustained by (surviving child) for the loss of parental companionship, instruction and guidance and (surviving child’s) pain and suffering as a result of (decedent’s) injury and death?

DAMAGES OF (surviving mother)

What is the total amount of damages sustained by (surviving mother) for her [pain and suffering as a result of the injury and death of (minor child)] [and] [medical or funeral expenses resulting from (decedent’s) injury and death paid by (surviving mother)]?

DAMAGES OF (surviving father)

What is the total amount of damages sustained by (surviving father) for his [pain and suffering as a result of the injury and death of (minor child)] [and] [medical or funeral expenses resulting from (decedent’s) injury and death paid by (surviving father)]?

Punitive Damages

Sometimes, a tortfeasor’s conduct is so bad that damages—intended to punish—are warranted. Under section 768.72(2), Florida Statutes, “[a] defendant may be held liable for punitive damages only if the trier of fact, based on clear and convincing evidence, finds that the defendant was personally guilty of intentional misconduct or gross negligence.” “‘Intentional misconduct’ means that the defendant had actual knowledge of the wrongfulness of the conduct and the high probability that injury or damage to the claimant would result and, despite that knowledge, intentionally pursued that course of conduct, resulting in injury or damage.” § 768.72(2)(a), Fla. Stat. “Gross negligence” is when “the defendant’s conduct was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct.” § 768.72(2)(b), Fla. Stat.

Punitive damages are limited by section 768.73, Florida Statues. Unless one of two limited exceptions apply, “an award of punitive damages may not exceed the greater of: 1. Three times the amount of compensatory damages . . . ; or 2. The sum of $500,000.” § 768.73(1)(a), Fla. Stat. If a jury finds that the defendant’s conduct was “motivated solely by unreasonable financial gain and determines that the unreasonably dangerous nature of the conduct, together with the high likelihood of injury resulting from the conduct, was actually known . . . , it may award an amount of punitive damages not to exceed the greater of: 1. Four times the amount of compensatory damages . . . ; or 2. The sum of $2 million.” § 768.73(1)(b), Fla. Stat. And lastly, if the jury finds that “the defendant had a specific intent to harm the claimant and determines that the defendant’s conduct did in fact harm the claimant, there shall be no cap on punitive damages.” It’s interesting to note that “[t]he jury may neither be instructed nor informed as to the provisions of [section 768.73].” §768.73(4), Fla. Stat.

Miscellaneous Damage-Related Issues

Pleading Damages

There are some special requirements for “pleading” damages. For example, under section 768.042, “the amount of general damages shall not be stated in the complaint, but the amount of special damages, if any, may be specifically pleaded and the requisite jurisdictional amount established for filing in any court of competent jurisdiction.”

Actions against Contractors

Further, in actions against contractors for injuries sustained from negligence, malfeasance, or misfeasance, “the consumer shall be entitled to three times the actual compensatory damages sustained in addition to costs and attorney’s fees if the contractor is neither certified as a contractor by the state nor licensed as a contractor pursuant to the laws of the municipality or county within which she or he is conducting business.” § 768.0425, Fla. Stat.

Other Miscellaneous Personal Injury Issues

There are a couple miscellaneous issues within personal injury that need to be addressed.

Liability for injury to parent

Under section 768.0415, “[a] person who, through negligence, causes significant permanent injury to the natural or adoptive parent of an unmarried dependent resulting in a permanent total disability shall be liable to the dependent for damages, including damages for permanent loss of services, comfort, companionship, and society.”

Dram Shop Act

Under section 768.125, Florida Statutes: “A person who sells or furnishes alcoholic beverages to a person of lawful drinking age shall not thereby become liable for injury or damage caused by or resulting from the intoxication of such person, except that a person who willfully and unlawfully sells or furnishes alcoholic beverages to a person who is not of lawful drinking age or who knowingly serves a person habitually addicted to the use of any or all alcoholic beverages may become liable for injury or damage caused by or resulting from the intoxication of such minor or person.”

If you or anyone you know needs an attorney to help seek justice in a personal injury matter, please call us at 754-400-5150 or contact us online. Let the Law Offices of Evan M. Rosen serve you!