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What is Negligence?

Negligence as a general concept is widely discussed—everyone seems to have a gut feeling of what they believe to be “negligent” behavior. But few non-lawyers really appreciate the technical definition of this term of art. Understanding negligence is key to understanding the personal injury laws of any state as negligence typically serves as the basis for most PI cases. Negligence can encompass many different instances of unreasonable or unsafe conduct.

The legal definition of negligence for FL can be found in the Florida Standard Jury Instructions, Fla. Std. Jury Instr. (Civ.) 401.4, where 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.” This, however, is a rather cryptic and circuitous definition. Thus, courts use a four-part test in applying the doctrine of negligence.

Negligence Per Se

Elements to Establish Prima Facie Negligence

Thus courts look for four basic elements in every negligence lawsuit:

  1. Duty of Care: Plaintiff must establish that Defendant owed him a duty of care;
  2. Breach of Duty: Plaintiff must show that Defendant breached the aforementioned duties;
  3. Injury: Plaintiff must show he/she was injured in some way; and
  4. Causation: Plaintiff must demonstrate that the alleged injury was specifically caused by Defendant’s breach of duty.

What is Negligence Per Se?

The legal definition of negligence per se is it is the doctrine by which courts recognize that the first two elements of negligence, duty and breach, can be conclusively presumed from the breach of a duty imposed by statute or regulation. In other words, where a statute or regulation imposes some kind of minimal reasonable standard of care on a person who undertakes a particular activity, and you as the plaintiff have proof that the defendant was noncompliant with said statute or regulation, it is possible that negligence per se may apply. Activities need not be deemed inherently dangerous for negligence per se to apply. Instead, the activities must be considered to be just dangerous enough to where a person who undertakes them is/should be held to a higher standard of care than that for ordinary negligence.

Elements to Establish Prima Facie Negligence Per Se

Once Plaintiff shows that Defendant violated a statute or regulation, Plaintiff is additionally required to show:

  1. Member of Class of Persons that Statute/Regulation was Designed to Protect;
  2. Injury is of Same Type that Statute/Regulation was Intended to Prevent; and
  3. Causation: Plaintiff must show that Defendant’s violation of the subject statute/regulation was ultimately the proximate cause of Plaintiff’s injuries.

Examples of Negligence Per Se

Negligence per se examples can be found in all kinds of situations where statutes and regulations are at play. Activities such as driving under the influence of alcohol, improperly preventing your dog or other pet from biting someone, incorrectly controlling the operations of a railroad, or even the practice of professions such as accounting, engineering, health care, and more, can trigger negligence per se. It can also apply in situations where a business has failed to use proper equipment in its operations to ensure others’ safety.

Side Note: How Negligence Per Se Differs from Strict Liability

I will further expand on the concept of strict liability in a later article, but do want to mention that there is a nuanced distinction between strict liability and negligence per se. Like negligence per se, strict liability also applies in situations where Defendant violates a statute/regulation. The difference, however, is that strict liability raises a conclusive presumption of liability whereas negligence per se raises a conclusive presumption of negligence. You may wonder what is the difference. The difference is crucial and makes all the difference in the world between the two concepts. In situations where strict liability applies, such as the sale of firearms to minors, the Plaintiff need not submit any proof beyond Defendant’s violating the statute/regulation in question. If Plaintiff can show Defendant breached the law, Defendant is presumed to be liable for Plaintiff’s injuries. In cases of negligence per se, however, Plaintiff must still additionally establish the three elements above to show that Defendant is liable for Plaintiff’s injuries. In other words, in situations where negligence per se applies, showing that Defendant violated a statute/regulation is not enough, Plaintiff still has additional evidentiary burdens which must be met.

Negligence Per Se in Florida

A good exploration of Florida’s view on negligence per se can be found in the Florida Supreme Court case of deJesus v. Seaboard C. L. R. Co., 281 So. 2d 198 (Fla. 1973). In it, a husband and wife were driving their car when it collided with a tank car of a railroad company. The train was blocking the road at nighttime and had no lighting so it was impossible to see at night. Plaintiffs ultimately alleged negligence on part of the railroad company and tried to use the doctrine of negligence per se to establish that the railroad company was conclusively negligent for their injuries because it failed to comply with the applicable statute. The Plaintiffs won, then Defendant appealed, and ultimately the matter came before the Supreme Court of Florida, with the Court having to decide whether negligence per se properly applied to the statutes at hand. Ultimately, it found that the statute was intended to protect a specific class of persons and that the Plaintiffs suffered the same harm the statute was intending to prevent. Thus, it reversed the District Court’s decision and verified that indeed negligence per se did apply and that the trial court’s original judgment should be reinstated.

Contact Us Today

If you or a loved one were injured due to the actions of someone else, do not hesitate, contact us right away. In situations where statutes, regulations, and/or ordinances are at play, you may be eligible to use the doctrine of negligence per se in your case. Doing so often helps plaintiffs recover faster and in greater amounts. Contact MANGAL, PLLC today to learn more about how to handle your personal injury case. Call us at(352) 995-9945.

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