Posted By Alan Sackrin on January 12, 2017
In Florida, we all know that an accident victim has the right to pursue money damages against a negligent wrongdoer (aka the “tortfeasor”). That, of course, assumes the victim’s injuries were caused by the tortfeasor’s action (or inaction).
The law in Florida, like most states, is that a tortfeasor is held to account for his or her failure to act reasonably. Failing to act reasonably (or acting negligently) is the backbone of most personal injury law. How does this work? To prove negligence and recover damages after an accident, a victim must prove the tortfeasor did not consider the harm they might foreseeably cause another person.
What is Negligence?
Negligence is a type of tort (a tort is a civil wrong where someone is injured). In Florida, our negligence law is made up of both statutes (laws written by our legislatures) and court opinions.
Additionally, under our negligence laws, tortfeasors can be held to compensate a victim for damages to the person as well as to their property. Of course, not every loss related to a tortfeasor’s negligence can or will be recovered by the victim.
Reasonable and Prudent Standard
Florida law places limitations on accident claims. Meaning, before an accident victim can recover compensation, he or she will need to prove that the wrongdoer failed to act in a “reasonable” manner.
In Florida, every person is held to a “reasonable and prudent” standard. So is every business.
It is only when the tortfeasor fails to act reasonably that the tortfeasor can be found negligent under the law.
This means when you drive your car, you are expected to drive as a “reasonable and prudent” driver would under the circumstances. If you are a grocery store, then you are to keep your store aisles clean and free from spills as any “reasonable and prudent” grocer would do.
Doctors, are held to the same standard. When a surgeon performs surgery, he or she is expected to act in the same manner as a “reasonable and prudent” member of the surgical profession in the community would do so.
The Florida Supreme Court explains it this way:
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.
Accident Claims and Reasonableness
Let’s consider two big areas of negligence law and damage claims: car accidents and slip and falls.
In both of these injury claims, there will be an injured person, and there will be a negligent party. Maybe this is another driver. Maybe this is a business owner or operator, like a restaurant, a supermarket, or a hotel.
For both of these accident claims, the burden of proof is on the victim. The victim must show someone was negligent and the negligence caused their injuries.
A victim does this by providing authentic and admissible evidence of negligence. In a personal injury lawsuit, these requirements must be met in order for the jury to consider their claim.
The key elements to prove of each of these types of negligence claims are: (1) a legal duty of care was owed to the victim; (2) that duty of care was breached; this (3) caused the accident; and (4) damages resulted from the accident.
The duty of care is the first element that the accident victim after a car crash or slip and fall injury must establish. What is that “duty of care”? The answer is to act in a reasonable and prudent manner under the circumstances.
Negligence exists when the other driver (or the store or hotel, etc.) failed to act reasonably in the circumstances and someone was hurt because of it.
Here are some examples:
After a car accident, a victim will file a claim for damages with the at-fault driver’s insurance company. If the at-fault driver failed to drive as a reasonable driver would have under the circumstances, then he or she should be deemed negligent. Here are 4 types of common car accident claims:
1. Loss of Control Car Accident
It’s not easy to define a “loss of control” car accident, because these kinds of crashes involve all sorts of circumstances. For instance, someone who jackknifes on the highway and causes an accident is responsible for a loss of control car accident. Depending on the facts, a rear-end accident may also be classified as a loss of control accident.
The key here is that the other driver was not able to control his or her vehicle. And, the key to his or her liability will be if he or she was not acting as a reasonable and prudent driver would act under the circumstances.
For more factors to consider in a loss of control accident, see our post, How Do You Know If A Driver Acted Reasonably In Trying To Prevent a Loss of Control Car Accident?
2. Rear End Car Accident
Rear end crashes happen all the time here in Florida. They happen for several reasons. Maybe the at-fault driver was distracted. This might be from road noise, or from his own activity like texting on their phone; eating in the car; or checking the GPS.
Often, rear end car accidents happen when the driver in the front car gets scared because of a road hazard. Maybe an animal darts into the road ahead. Maybe a basketball bounces into traffic, and the driver is afraid a child will run out into traffic.
Also, a driver may suddenly decide to take a right hand turn, right into the path of another vehicle that has the right of way. Or, maybe the front car slams on its brakes for whatever reason.
The key here will be if the driver was acting reasonably at the time of the accident. Was it reasonable to be distracted by their phone? Probably not. Was it reasonable to brake because of a basketball bouncing into the car’s path? Maybe so.
For more factors to consider in a rear end car accident, see our post How Do You Know If A Driver Acted Reasonably In Trying To Avoid A Rear End Car Accident?
3. Backing Car Accident
A backing crash happens when a driver puts his vehicle in reverse and hits the gas pedal. He or she drives into or over someone who is not in a car. The victim may be walking, or on a bicycle. Backovers can happen on public or on private property, like a restaurant parking lot. Often, children are the victims of these kinds of accidents.
Was the backing driver reasonable or was she negligent? Each case is different. For more factors to consider in a backing car accident, see our post discussing Backing Car Accidents in Florida.
4. Pedestrian Accident
Pedestrian accidents happen when a driver hits someone on foot with his or her moving vehicle. Insurance companies usually assume the driver is at fault in these kinds of cases. However, this is not always true.
There are situations where the driver was driving defensively and will not be found negligent and liable for the accident. For example, if a child suddenly darts out into traffic, then the driver may not have been able to avoid the accident.
Was the driver reasonable or negligent in your case? Each case is different. For more factors to consider in a pedestrian accident, see our post How Do You Know If A Driver Acted Reasonably In Trying To Prevent a Pedestrian Accident?
Slip and Falls
Slip and fall accidents happen in all kinds of places. Anytime someone loses their footing and falls, that is considered a “slip and fall” accident. It may be caused by a substance on the floor at a grocery store, or a napkin left on a restaurant floor, or the slip and fall is caused by soap scum in a hotel shower tub or shower. One thing remains the same for all slip and fall accidents: Florida’s premises liability law will hold the owner or operator of the premises liable for the accident if their negligence caused the fall and the victim is injured as a result of the negligence.
Falling down on a stairway often results in serious bodily injuries. So much so, insurance companies have done research studies on stairway slip and falls to try and minimize these risks. Stairs are required to have all sorts of safety features as a result: things like handrails at a certain height.
Did the owner of the stairway act reasonably and take steps to prevent a slip and fall (was there adequate lighting or were slip resistant strips in use on the stairs)? For more factors to consider in a stairway slip and fall accident, see our post discussing Stairway Slip and Fall Accidents.
2. Parking Lots
In Florida, owners of parking lots have two duties of care to their invitees: (1) to maintain the premises in a reasonably safe condition and (2) to give warning of concealed perils. Burton v. MDC PGA Plaza Corp., 78 So.3d 732, 734 (Fla. 4th DCA 2012).
Failure to warn of a crack in the asphalt footpath may be negligence, just as having failed to mop up standing water after a thunderstorm.
Again, did the owner of the parking lot take reasonable steps (were the wheel stops and speed bumps painted yellow or was proper warning signage in use) to prevent a slip and fall accident? For additional factors to consider in a parking lot slip and fall accident, see our post discussing Parking Lot Slip and Fall Accidents.
Public restrooms need to be clean and well-maintained so they are safe for those invitees who have access to them. If there is a slip and fall accident in a public restroom, then all sorts of failures on the part of the business owner may have contributed to the victim’s injuries (slippery floor, poor lighting, leaky roof, etc.). The key here will be if the owner or operator of the public restroom acted reasonably in trying to keep the restroom safe for patrons.
Was the owner of the restroom reasonable? Here are some factors to consider in a restroom slip and fall accident, discussed in our post “How Do You Know If A Business Acted Reasonably In Trying To Prevent a Restroom Slip and Fall Accident?
4. Stage or Elevation
Any kind of change in a footpath, like going up as you step forward, is considered a “stage” or “elevation” for accident claim purposes. These are called “change in elevation slip and falls.” They can be caused by all sorts of things, like raised seating areas, platforms, piers, mezzanines, or curbs.
Did the owner of the stage or elevation act reasonably in trying to prevent an accident from occurring? What steps did he or she take to protect against foreseeable injuries? For factors to consider in a stage or elevation slip and fall accident, see our post Stage or Elevation Slip and Falls in Florida.
5. Walkway or Hallway
Accidents where someone falls and is hurt in a walkway or hallway can happen in a wide variety of locations and businesses. After all, there are walkways and hallways in most business establishments.
For a successful negligence claim, the accident victim must show a failure to maintain reasonable care of the area, causing the slip and fall (like not treating a tile or marble floor, or another slippery surface, with a slip resistance film or not mopping or waxing the floor regularly).
Was the owner of the walkway or hallway reasonable? For factors to consider in a walkway slip and fall accident, see our discussion on Walkway or Hallway Slip and Fall Accidents.
A business owner or operator owes a duty of care to its invitees from the minute they cross the property line. If someone slips and falls in a business entryway, then that owner will be liable for that accident if they were negligent in taking care of that entryway (like not having slip resistant mats when it is raining outside or failing to replace old or damaged mats or mats that are curling).
Entryways must be both inviting and safe. Was the owner of the entryway reasonable in taking care of the area when you slipped and fell?
For factors to consider in an entryway slip and fall accident, see our post discussing 30 Questions to Ask After an Entryway Slip and Fall.
When you are injured in an office, the business owner or operator may be held liable for the accident. However, if you are an invitee the law will be applied differently than if you are an employee. In Florida, if you are injured in an office slip and fall accident, then you may have coverage with your employer’s workers’ compensation coverage.
However, in both situations the question of negligence will be the same. Was the owner of the office reasonable (like safely positioning trash cans or boxes out of foot path traffic or in a spot where someone won’t trip over them) in trying to prevent this kind of accident in the office? For other factors to consider in an office slip and fall accident, see our post discussing Office Slip and Fall Accidents.
Do You Have an Accident Damages Claim?
If you have been hurt in a slip and fall accident, or in a car crash, then the key to your accident claim is whether or not a duty of care was violated. If the person (or business) who caused the accident failed to act reasonably, then they can be held liable for your damages. Damages can include medical bills, lost wages, pain and suffering and more.
If you or a loved one has suffered harm due to the negligence of another person or business, a good piece of advice is to speak with an experienced Florida personal injury lawyer to learn about some of the issues that can arise, including how most insurance companies respond to these claims and the type and amount of damages you can recover. Most personal injury lawyers, like Alan Sackrin, will offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.
Do you have questions or comments? Then please feel free to send Alan an email or call him now at (954) 458-8655.
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