Personal Injury and Tort Law in Florida


Personal injury law is all about torts. Broadly defined, a tort is a harmful act (or failure to act) for which the law provides a remedy. There are many different kinds of torts.  Injuring someone is a tort; so is damaging a person’s property or character, or wrongly denying someone his or her liberty. The basic principle of tort law is that injured persons should be compensated by those responsible for their injuries. Thus, a victim of a tort has the right to sue the person committing the tort (called a tortfeasor) for damages.

Though often confused, torts and crimes are two separate legal entities. Torts are civil wrongs against an individual exposing the tortfeasor to liability. Crimes are wrongs against society or the state and are punishable by incarceration or fines. Some actions, however, can be both a tort and a crime. For example, someone who used force to cause bodily injury has committed a tort called battery and is liable to the victim for damages. Battery is also a misdemeanor under Florida law and punishable by up to one year in prison. Thus, a person could be prosecuted and convicted of battery, and later face a civil lawsuit brought by the victim.


Theories of Tort Liability


The law recognizes three general types of torts: intentional torts, negligent torts, and torts based on strict liability. Each of these torts is unique and has its own requirements for recovery. For example, if a person is injured by a commercial product, he or she may sue the manufacturer under a theory of negligence or strict liability. Suing for negligence requires that the plaintiff show that the defendant failed to use proper care in making the product. Suing based on strict liability requires that the plaintiff show, among other things, that the product was “unreasonably dangerous” when it was made.


 Which theory a plaintiff uses depends on the facts of his or her particular case.

Intentional Torts

Intentional torts are those for which the defendant intends the consequences of an act. Battery is an example of an intentional tort; so is assault (threatening someone with violence), false arrest or imprisonment or other invalid uses of legal authority, invasion of privacy (e.g., unauthorized use of a person’s name or picture for commercial purposes), and trespass. Defamation is also considered an intentional tort, either in print, on television or radio (libel), or in spoken form (slander).

To proceed in a lawsuit for damages caused by an intentional tort, a plaintiff must show that the defendant committed the tort, intended the consequences or knew with substantial certainty what consequences would result, and that the defendant’s act was a great factor in the resulting harm or injury. In some cases, however, there are defenses to intentional torts which excuse the defendant from liability. For example, someone may commit battery in self-defense. Similarly, the truth of a statement may be a complete defense to a defamation action.


Unlike negligence, a plaintiff suing for an intentional tort is not usually required to show actual damages in order to proceed with a lawsuit. In the case of defamation, for example, the resulting emotional distress and mental anguish are considered sufficient damages to justify a lawsuit (however, the damage award may be nominal, such as one dollar, without proof of an injury). Plaintiffs who do suffer quantifiable injury are entitled to compensatory damages (damages which compensate the plaintiff for injury to person or property) and may receive punitive damages (damages aimed at punishing the defendant and deterring future similar action) if the tort was willfully or malicious.

In cases of negligence, the plaintiff must prove that circumstances were such that there was a discrepancy with how careful a person was when he or she caused the  injury, and how careful, under law, he or she should have been. There are four requirements to proving negligence. A plaintiff must show (1) the defendant had a duty to conform to a certain standard of conduct to protect others from unreasonable risk; (2) the defendant breached that duty; (3) the defendant’s breach was the proximate cause of the plaintiff’s injury; and (4) the plaintiff suffered an injury.

In general, the law imposes a duty on everyone to behave at least as carefully as a reasonable, ordinary, prudent person in a similar situation. This is known as the reasonable person standard. A defendant’s actions must fall short of the reasonable person standard in order for the defendant to be found negligent. If a court determines that the defendant acted reasonably, even though his or her actions caused injury to another, the defendant is not negligent and responsible for damages. Children are typically held to a lower standard than adults; and professionals, such as doctors, are held to a higher standard while performing their professions.


Medical Malpractice has its own special statutory rules governing the pursuit of those types of claims.  For instance a victim must serve a very specific Notice of Intent to sue upon all potential defendants and provide an affidavit form an expert in the pertinent field that the defendant(s) have committed malpractice.  There is a whole series of pre-suit procedures that must be followed to the letter before a medical malpractice suit can even be filed.  Further malpractice lawsuits must be initiated within two years of the incident or the discovery of the resulting injury, whichever is later.  The typical personal injury “statute of limitations” is 4 years from the date of incident.


Proximate cause is the legal term given to describe an act which causes a plaintiff’s injury or, more accurately, causes the injury for purposes of assigning liability. Sometimes a defendant’s act may be so remotely related to the plaintiff’s injury as not to be considered a proximate cause. For example, in a famous 1928 New York case, a railroad employee helped a passenger onto a moving train by pushing him. In the process, a package the passenger was carrying, wrapped in newspaper and containing firework  fell and exploded. The force of the explosion knocked down some scales at the far end of the train platform, a considerable distance away, injuring the plaintiff. The plaintiff sued the railroad company for damages. The court ruled that since the railroad employee could not foresee the complicated and unlikely sequence of events that led to the plaintiff’s injury, the employee’s action was not the proximate cause of the plaintiff’s injury. In other words, although the railroad employee’s action “caused” the plaintiff’s injury in a technical sense, this causation was too remote to hold the railroad company liable.


Damages must be shown in a negligence lawsuit, otherwise the lawsuit will be dismissed. Plaintiffs who successfully prove the defendant’s negligence are entitled to compensatory and punitive damages. However, recent Florida legislation has severely limited the recovery of punitive damages in negligence actions (limitations also apply to strict liability, products liability, professional negligence, and breach of warranty). For example, a punitive damage award of more than three times the compensatory damages is considered excessive and subject to reduction. Additionally, 35 percent of every punitive damage award goes to the state of Florida’s treasury. The remaining 65 percent goes to the plaintiff.

The outcome of lawsuits alleging negligence can be difficult to predict because the reasonable person standard is vague, imprecise, and apt to be interpreted differently by different people on a jury. Applying the reasonable person standard to a particular set of facts can be a very subjective process. Finding an attorney with experience presenting negligence cases and expertise in arguing the reasonable person standard to a judge or jury are the keys to a successful lawsuit.

Comparative Negligence

Often, accidents are not black and white events. That is, a plaintiff is often not 100 percent fault-free and a defendant 100 percent at fault. The doctrine recognized in Florida of Comparative negligence permits a jury to compare the negligence of the plaintiff with the negligence of the defendant and decide damages accordingly. If the jury finds the plaintiff 10 percent negligent in a car accident and the defendant 90 percent negligent, the defendant has to pay only 90 percent of any damage award.

Strict Liability 

If a plaintiff sues under the theory of  strict liability, he or she contends that the defendant is liable regardless of fault. The issue of how careful a defendant was or should have been is irrelevant. If the defendant’s activity was the proximate cause of the plaintiff’s injury, the defendant is liable.

Strict liability applies only in a very limited number of areas. For example, owners of dangerous animals are strictly liable for any injuries their animals may cause (owners of domestic animals — dogs and cats — are liable only if negligent). Also, anyone engaged in ultra hazardous or abnormally dangerous activities is strictly liable for injuries. Examples would include electrical carriage, demolishing buildings, crop dusting, manufacturing explosives, blasting, and fumigating. Finally, and most important for consumers, manufacturers may be strictly liable for injuries caused by their products.
To prove a case based on strict liability, four elements must be established. A plaintiff must show (1) the defendant had an absolute duty to make the activity or product safe; (2) the defendant breached that duty; (3) the breach of the duty was the proximate cause of the plaintiff’s injury; and (4) the plaintiff suffered an injury. Because the issue of fault is not relevant to a strict liability case, the most crucial element of the above four is that of causation.



Issues Concerning Tort Cases Generally

Burden of Proof

A plaintiff has to prove his or her case “by a preponderance of the evidence.” In other words, a plaintiff must show that a majority of the evidence establishes that the defendant committed the tort.  This is different from the burden of proof in a criminal case. In a criminal case, the prosecution must prove the defendant’s guilt “beyond a reasonable doubt” — a much higher standard. When a tort is also a crime, the results from the civil and criminal cases do not have to be consistent; in fact, the outcomes are frequently contradictory. (Such as in the OJ Simpson cases) Because the criminal burden of proof is higher, a defendant may be found innocent of committing a crime, but liable for tort damages.

Vicarious Liability

Vicarious liability describes those instances wherein one person is held liable for the tortious acts of another, even though the first person was not involved in the act, did nothing to encourage the act, and may even have attempted to prevent it. For example, under Florida law, a person who consents to the use of his or her car by another is liable for any negligent damage the second person may do with the car. However there are exceptions for rental car owners.


The most common form of vicarious liability occurs in the area of employment. An employer is liable for any tortious acts committed by an employee acting within the scope of employment. But exactly what actions are “within the scope of employment” is a tricky issue. If an employee is driving his or her own automobile to work and hits a pedestrian, is that within the scope of employment? Likely not. What if the employee is driving a company car he or she routinely takes home? More likely. What if a telephone repair person making a house call during working hours causes an accident while driving a company van? A court will probably find the employee to be acting within the scope of employment.


Another area in which vicarious liability is applied is in the case of bar owners or anyone providing alcohol. Under Florida law, anyone serving alcohol to a minor or to a known alcoholic may be liable for intoxication-related damages caused by that person.

Wrongful Death Lawsuits

If a person dies from a defendant’s tortious action, the decedent’s survivors and estate may bring a lawsuit for the wrongful death. Survivors include the decedent’s spouse, children, and parents. Each survivor may recover for loss of the decedent’s support or services. Additionally, the surviving spouse, minor children, and all children if there is no surviving spouse, may recover for loss of the decedent’s companionship and protection. They may also recover for pain and suffering. The estate can recover for lost earning from the date of injury until the date of death, and funeral and medical expenses if paid by the estate.

Government Immunity 

There was a time when citizens could not sue the government for torts committed by government employees. This immunity has been partly waived by the federal and state governments, including Florida. The Florida state government is now liable for the torts of its employers to the same extent as private employers. However, there are limits. Most important are monetary limits of $100,000 per person and $200,000 per incident of responsibility.  A jury may decide the state agency caused a wrongful death that it values the damages at $2,000,000.00.  However that verdict will be reduced to likely $100,000 and the remainder will not be recovered  without a special state law being passed.

Also, there is no duty of care concerning how the state exercises its discretionary power to enforce the law. A person cannot sue the fire department for failing to put out a fire in his or her house, nor the police department for failing to stop the theft of his or her car. Only if a plaintiff can show that the government owed him or her a special duty, above that owed to the public at large, will he or she prevail in a tort suit against the government. This is very difficult to do.

Statute of Limitations

Remember that there are limits to the time period in which a lawsuit can be filed. For example, a lawsuit based on negligence must be filed within four years from the time the cause of action arose. If a person fails to file a lawsuit within the time period prescribed by the statute of limitations, the person loses the right to file that lawsuit.


Medical Malpractice time frames are much shorter, two years as stated above.


Please call Tom Thompson at 386-577 to answer any questions you may have on personal injury or torts
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