Introduction: The Foundation of Florida Tort Law

The tort of negligence is the bedrock of modern civil liability in Florida, providing a cause of action for individuals harmed by the failure of others to exercise reasonable care. Rooted in common law principles, this doctrine holds a person or entity accountable when their unreasonable actions, or inactions, cause foreseeable harm to another. Codified primarily within Chapter 768 of the Florida Statutes, negligence law is continuously shaped by judicial interpretation and legislative enactment, creating a dynamic body of law that seeks to balance the rights of injured parties with the need to prevent unwarranted liability.

The Four Pillars of a Negligence Claim

To succeed in a negligence action in Florida, a plaintiff must prove four essential elements by the "greater weight of the evidence." The failure to establish any one of these pillars will cause the entire claim to collapse.

1. Duty of Care

The defendant must have owed a legal duty to the plaintiff to act with a certain level of care. The existence of a duty is a question of law for the court to decide.

The "Foreseeable Zone of Risk" Doctrine

The primary test for determining a common law duty in Florida is the "foreseeable zone of risk" doctrine. A legal duty arises whenever a person's conduct creates a generalized and foreseeable risk of harming others. The Florida Supreme Court, in the landmark case of McCain v. Florida Power Corp., clarified that this duty element is a "minimal threshold legal requirement for opening the courthouse doors."

Varying Standards of Care

The duty of care is not one-size-fits-all. The law tailors the standard to the specific relationship and circumstances:

Professionals: Doctors, lawyers, and engineers are held to a higher standard, requiring them to exercise the level of skill and care of a reasonably prudent professional in their field.
Property Owners: The duty owed to a person on land depends on their legal status (invitee, licensee, or trespasser).
Common Carriers: Airlines and bus lines owe their passengers the highest degree of care.

2. Breach of Duty

The defendant must have breached their duty by failing to act as a "reasonably prudent person" would under similar circumstances. A breach can be an act (misfeasance) or a failure to act (nonfeasance). This is a question of fact for the jury.

Negligence Per Se

In some cases, a breach can be established through negligence per se. This occurs when a defendant violates a statute designed to protect a specific class of people from a specific type of harm. The violation itself is considered negligence as a matter of law, conclusively establishing the breach.

3. Causation

The defendant's breach must be the legal cause of the plaintiff's injuries. Florida law requires proof of two distinct components of causation:

Actual Cause (Cause-in-Fact): Often determined by the "but-for" test: "but for" the defendant's negligence, the injury would not have occurred. For multiple causes, the "substantial factor" test may apply.
Proximate Cause (Legal Cause): This element limits liability to harms that were a natural and foreseeable consequence of the defendant's breach. It prevents liability for harms that are too remote or bizarre. This is a factual question for the jury.

4. Damages

The plaintiff must have suffered actual, demonstrable harm or loss. Negligence without injury is not actionable. These damages can be physical, emotional, or financial. Notably, in claims for purely emotional distress, Florida's restrictive "Impact Rule" generally requires a physical impact or injury.

Defenses to Negligence

Defendants in Florida have several powerful defenses that can reduce or completely bar a plaintiff's recovery. The legal landscape for these defenses was dramatically altered by the 2023 tort reforms (HB 837).

Comparative Negligence: The 2023 Paradigm Shift

For 50 years, following Hoffman v. Jones, Florida used a "pure" comparative negligence rule. Effective March 24, 2023, the state shifted to a "modified comparative negligence" standard under Fla. Stat. § 768.81.

The 51% Bar Rule: A plaintiff who is found to be more than 50% at fault for their own harm is completely barred from recovering any damages.
If the plaintiff's fault is 50% or less, their damages are simply reduced by their percentage of fault.
Medical Malpractice Exception: This new 51% bar rule does not apply to medical negligence cases, which continue to operate under the old "pure" comparative negligence standard.

Assumption of Risk

This defense applies when a plaintiff knowingly and voluntarily exposes themselves to a known danger. In Florida, its application is narrow:

Express Assumption of Risk: This remains a complete defense and typically involves a signed waiver or release, or voluntary participation in a contact sport.
Implied Assumption of Risk: This is no longer a complete defense. Instead, a plaintiff's conduct in knowingly encountering a risk is considered by the jury as part of the comparative negligence analysis.

Statute of Limitations

A lawsuit must be filed within a specific time period. HB 837 significantly shortened this deadline for general negligence claims.

For negligence actions accruing on or after March 24, 2023, the statute of limitations is now two years (down from four years).
Specialized claims, such as medical malpractice (2 years from discovery) and wrongful death (2 years from death), have their own distinct deadlines under Fla. Stat. § 95.11.

Immunities

Sovereign Immunity: Under Fla. Stat. § 768.28, claims against government entities are permitted but liability is capped at $200,000 per person and $300,000 per incident. This requires pre-suit notice.
Other Statutory Immunities: Florida's Good Samaritan Act protects individuals rendering emergency aid, and the Dram Shop Act limits liability for social hosts who serve alcohol to adults.

Recoverable Damages

A successful plaintiff is entitled to monetary compensation for their losses. These damages are categorized as compensatory (economic and non-economic) and, in rare cases, punitive.

Compensatory Damages

Economic Damages: These are tangible, calculable financial losses, including past and future medical expenses, lost wages, and loss of future earning capacity.
Non-Economic Damages: These compensate for intangible, human losses, such as pain and suffering, mental anguish, loss of enjoyment of life, and disfigurement. The Florida Supreme Court, in cases like Estate of McCall and Kalitan, struck down statutory caps on non-economic damages in medical malpractice cases as unconstitutional.

Impact of HB 837 on Proving Medical Damages

The 2023 tort reform introduced strict new rules (Fla. Stat. § 768.0427) on the evidence that can be presented to a jury for medical expenses, aimed at preventing awards for "phantom damages."

Evidence of medical bills is now largely limited to the amounts actually paid or owed, not the initial amount billed.
The law imposes new disclosure requirements for treatment received under a "Letter of Protection" (LOP) and makes an attorney's referral to an LOP provider admissible to show potential bias.

Punitive Damages

Punitive damages are intended to punish the defendant. They are awarded only in cases of intentional misconduct or gross negligence, proven by clear and convincing evidence under Fla. Stat. § 768.72. Florida law imposes strict caps on punitive damages, generally limiting them to the greater of three times the compensatory damages or $500,000.

Special Applications of Negligence

While the four core elements apply broadly, Florida law has specific rules for certain types of negligence cases.

Medical Malpractice

Governed by Chapter 766 of the Florida Statutes, medical negligence claims are a highly specialized field. The standard of care is defined as "that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers." This almost always requires expert testimony.

Pre-Suit Requirements

Before filing a lawsuit, a claimant must conduct a pre-suit investigation and obtain a written expert opinion corroborating that reasonable grounds for a claim exist. This is a complex process with strict deadlines designed to filter out frivolous claims.

Premises Liability

This area of law deals with injuries caused by unsafe conditions on someone's property. The duty owed by the property owner depends on the legal status of the visitor:

Invitees: Customers or members of the public are owed the highest duty. The owner must maintain the premises in a reasonably safe condition and warn of concealed dangers.
Licensees: Social guests are owed a duty to be warned of known dangers.
Trespassers: Property owners generally only owe a duty to refrain from intentional harm. Special rules apply for "discovered" trespassers and children.

Negligent Security

A key subset of premises liability is negligent security, where a business may be liable for failing to take reasonable measures to protect patrons from foreseeable criminal attacks. The 2023 reforms (HB 837) significantly altered this area by requiring juries to apportion fault to the criminal actor (which can reduce the property owner's liability) and creating a legal presumption against liability for apartment owners who implement specific security measures outlined in Fla. Stat. § 768.0706.

Motor Vehicle Negligence

Florida's No-Fault System

Florida is a "no-fault" state for auto insurance. Drivers are required to carry Personal Injury Protection (PIP) insurance, which covers the first $10,000 of their own medical bills and lost wages, regardless of who was at fault. A person can only sue an at-fault driver for non-economic damages (pain and suffering) if their injury meets a statutory "permanency threshold," meaning it involves significant and permanent loss of a bodily function, permanent injury, significant scarring, or death.

Dangerous Instrumentality Doctrine

Florida follows the Dangerous Instrumentality Doctrine, a form of vicarious liability which holds that the owner of a "dangerous instrumentality," such as a motor vehicle, is liable for the negligence of anyone they allow to operate it. This doctrine, established in Southern Cotton Oil Co. v. Anderson, seeks to provide greater financial recourse to victims by placing responsibility on the owner who is in the best position to insure the risk.

Key Statutes and Landmark Case Law

Florida's negligence law is a blend of common law precedent and statutory enactments.

Governing Statutes

Fla. Stat. Chapter 768 ("Negligence"): Contains key provisions on comparative fault, sovereign immunity, and punitive damages.
Fla. Stat. Chapter 95 ("Limitations of Actions"): Sets the statutes of limitations for various claims, including the new two-year limit for general negligence.
Fla. Stat. Chapter 766 ("Medical Malpractice"): Provides the comprehensive framework for medical negligence claims.

Landmark Cases

McCain v. Florida Power Corp. (1992): Established the "foreseeable zone of risk" test as the primary standard for determining the existence of a legal duty.
Hoffman v. Jones (1973): Judicially abolished the harsh doctrine of contributory negligence and adopted "pure" comparative negligence, which was the law for 50 years until the 2023 legislative reform.
Fabre v. Marin (1993): Allowed juries to apportion fault to non-parties (often called "Fabre defendants"), preventing a plaintiff from collecting 100% of damages from a defendant who was only partially at fault.
N. Broward Hosp. Dist. v. Kalitan (2017): Struck down statutory caps on non-economic damages in medical malpractice cases as unconstitutional, affirming that juries determine the full extent of such damages.

Recent Legislative and Judicial Developments

The state of negligence law in Florida is one of significant flux, primarily due to the landmark 2023 tort reforms (HB 837) and a philosophical shift in the Florida Supreme Court.

Key Changes from HB 837 (2023)

Shifted from pure to modified comparative negligence (with a >50% bar).
Reduced the general negligence statute of limitations from 4 years to 2 years.
Created new rules to limit evidence of medical damages.
Strengthened defenses in negligent security cases.

Judicial Philosophy Shift

In recent years, the Florida Supreme Court has become more aligned with a conservative, business-friendly judicial philosophy. This is evidenced by key decisions such as:

Adoption of the Daubert Standard (2019): Raising the bar for the admissibility of expert witness testimony.
Adoption of the Federal Summary Judgment Standard (2021): Making it easier for defendants to win cases before trial if a plaintiff lacks sufficient evidence.

Negligence in Florida