Kibbey Wagner, PLLC | April 15, 2023 | Negligence
Even though it sounds similar, there is a legal difference between negligence and negligence per se in Florida. Negligence is usually harder to prove, while negligence per se is easier. In a negligence per se case, the negligence is assumed because the defendant violated a law.
Even though these two theories are distinctly different, both may be applied in personal injury cases. A personal injury lawyer can help you find out what theory of negligence may be relevant in your case.
What Is Negligence?
Negligence is when someone causes an accident or injury because they failed to use reasonable care. That means that they failed to act, or not to act, as a reasonable person would in similar circumstances. The reasonable person is a fictional standard that the courts apply.
With negligence, it doesn’t matter whether or not the defendant knew that their actions would hurt someone. In fact, most negligent people never intend to hurt someone. However, the court looks at whether or not their actions were reasonable compared to what they expect someone to do in the same situation.
Elements of Negligence
To prove negligence in Florida, the plaintiff must show that the defendant:
- Owed a duty of care to the plaintiff
- Breached that duty to care (when they acted unreasonably)
- That breach caused the accident, and
- The accident caused the plaintiff to incur damages
The plaintiff must prove this by a preponderance of the evidence. That means that it is more likely than not that the defendant was negligent.
What Is Negligence Per Se?
With negligence per se, the plaintiff argues that the defendant was negligent because they violated a law. The law was designed to prevent the type of harm that they caused.
In these cases, the plaintiff doesn’t need to prove that the defendant owed a duty and breached it. That’s because a reasonable person never violates the law. It is generally easier to prove a negligence per se case than a negligence case.
Negligence Per Se Example
Car accidents are often a great example of negligence per se cases in Florida. Let’s say that the defendant is speeding 20 miles per hour over the limit and crashes into the plaintiff after losing control. The plaintiff is seriously hurt as a result of the crash.
The defendant violated Florida law that prohibits speeding. The purpose of the law is to prevent drivers from losing control and causing serious car accidents. That’s exactly what happened in this case. Therefore, the defendant was negligent per se.
Another example comes up in criminal cases. If the defendant assaults someone and causes an injury, they may be charged criminally. However, they might also face a civil personal injury case for the injuries that they caused.
In this case, the defendant violated Florida law that makes it illegal to assault someone. The purpose of the law is to protect people from violent attacks. Since the defendant violated this law, they are negligent per se in the civil case.
Comparative Fault And Negligence Claims
Florida’s modified comparative fault law applies in both negligence and negligence per se cases. This means that the plaintiff can only recover damages that are proportionate to their fault. However, if they are mostly at fault (51%), they cannot recover any compensation.
For example, if the plaintiff is 30% responsible for causing an accident, while the defendant is 70% responsible, the plaintiff can only recover 70% of their damages.
Contact the Personal Injury Law Firm of Kibbey Wagner, PLLC in South Florida For Help Today
For more information, please contact the Stuart, Port St. Lucie, or Palm Beach Gardens personal injury law firm of Kibbey Wagner, PLLC, at your nearest location to schedule a free consultation today.
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Palm Beach Gardens, FL 33418