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Most personal injury claims are based on negligence. Although you might understand the legal term “negligence” as a synonym for the term “carelessness,” there is a lot more complexity to negligence than simple carelessness.

The Four Legal Elements of a Personal Injury Claim

To win a personal injury claim, you must prove four legal elements (facts) about the defendant:

  • The defendant owed the victim a duty of care;
  •  The defendant breached their duty of care to the victim; and
  • The defendant’s breach caused the harm that the victim suffered;
  • The victim suffered damages; 

Although the first two elements put together constitute negligence, proving negligence alone is not enough to win a personal injury claim. You must also prove causation and damages, the third and fourth elements above.

Duty of Care

The standard of care that applies to the defendant varies from case to case. In most cases, such as car accidents, the defendant must act as a “reasonable person” under the circumstances. In a medical malpractice claim, by contrast, the defendant must meet a professional standard of care. Sometimes you need an expert witness to determine the applicable standard of care.

Breach of Duty

Breach of duty simply means that the defendant failed to abide by their duty of care, i.e They failed to act like a reasonable person. 

Running a stop sign, for example, is a breach of the duty of care. A reasonable person obeys traffic laws and drives safely to avoid harming others. They would not run a stop sign because it could cause an accident.


The mere existence of negligence is not enough to establish a personal injury claim. You must also tie the negligence to the victim’s damages by proving causation. The defendant’s negligence must have caused the victim’s damages in two ways: (i) cause in fact and (ii) proximate cause.

Cause in fact

Cause in fact means that an accident would not have happened if it had not been for a defendant’s conduct. This is a fairly easy element to prove.

Proximate cause

Proximate cause refers to a cause that was closely related to the accident that injured the victim. A victim’s injuries must be a foreseeable result of the defendant’s actions. In not, there is no proximate cause, and the defendant is not liable for the victim’s injury.


Damages, in the legal sense of the word, refer to the type of losses that a court can compensate through money damages. This might be counterintuitive to some people. Most people wouldn’t agree that money can compensate for human life, but courts routinely grant money damages to successful wrongful death claimants. 

In fact, it’s really the only way the court can redress such an injury. The most common types of damages are:

Courts occasionally award punitive damages to punish the defendant for outrageous conduct. 

Special Forms of Negligence

Following are descriptions of three special types of negligence in Florida: Negligence per se, gross negligence, and criminal negligence.

Negligence Per Se

“Negligence per se” is a form of negligence that represents a legal shortcut to proving negligence. Ordinarily, the jury must make a judgment call on whether the defendant was or was not negligent. Negligence per se, when it applies, allows the court to determine negligence by objective standards. 

The four facts you must prove to establish negligence per se are:

  • The defendant violated a public safety statute or ordinance;
  • The victim was a member of the class of people the rule protects (motorists, for example);
  • The victim’s injury was the type of injury the rule was designed to prevent; and
  • The defendant’s violation of the law caused the victim’s injury.

An example would be proving that the defendant broke a traffic law (driving at night with their lights off, for example), and ‌caused the accident that injured the victim. Negligence per se is ‌useful in claims against defendants in highly regulated industries, such as medicine or commercial trucking.

Gross Negligence

Ordinary negligence occurs when you are unaware of a fact that you should have been aware of. “Gross negligence” refers to conduct that exhibits a conscious disregard for the life, safety, or rights of others. An example might be the difference between driving 10mph over the speed limit because you were not paying attention to the speedometer (ordinary negligence) and driving 50 mph over the speed limit in an illegal auto race (gross negligence).

A finding of gross negligence can support a claim for punitive damages. Florida awards punitive damages, if at all, in addition to compensatory (economic and non-economic) damages. Most victims do not receive punitive damages even if they win their claim.

Criminal Negligence

Criminal negligence is negligence that is serious or extreme enough to support criminal charges. Gross negligence might qualify for criminal charges (in a drunk driving accident that killed someone, for example). 

You must prove criminal negligence using the “beyond a reasonable doubt” standard. In a civil claim, you need only prove your claim against the much easier to meet “preponderance of the evidence” standard. Both a criminal trial and a civil lawsuit can proceed simultaneously for the same accident. You can win a civil lawsuit even if you lose a criminal prosecution.

Contact a Lawyer for Help With Your Negligence Claim

Referring to negligence as “carelessness” might lull you into a false sense of security. In fact, the question of negligence can get very complex. The foregoing discussion only scratches the surface of the true complexity of this subject. If you believe you may have a negligence claim, contact a personal injury lawyer at your earliest opportunity.

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