Negligence Per Se in Florida

Elements of Negligence Per Se

Negligence Per Se, meaning "negligence in itself," is a legal doctrine that allows a plaintiff to satisfy the first two elements of a negligence claim (duty and breach) by proving the defendant violated a statute. It acts as a "legal shortcut," replacing the subjective "reasonable person" standard with a clear statutory one. To succeed, a plaintiff must prove four specific elements.

1. Violation of a Statute: The defendant violated a specific statute, ordinance, or regulation.
2. Protected Class: The plaintiff is a member of the class of persons the statute was designed to protect.
3. Type of Harm: The injury the plaintiff suffered is the type of harm the statute was intended to prevent.
4. Causation: The defendant's statutory violation was the proximate cause of the plaintiff's injuries.

Even if negligence per se is established, the plaintiff must still prove that the violation caused their damages. The doctrine only establishes duty and breach as a matter of law.

Negligence Per Se vs. Evidence of Negligence

In Florida, not all statutory violations are treated equally. The legal effect depends on the purpose of the statute, a distinction clarified in the landmark case deJesus v. Seaboard Coast Line Railroad Co.

Negligence Per Se (Conclusive Proof)

A statutory violation is treated as negligence per se when the law was enacted to protect a particular class of persons from a particular type of injury. In these cases, the judge instructs the jury that if they find the defendant violated the statute, they must find the defendant was negligent (Florida Standard Jury Instruction 401.8). Examples include:

• Laws prohibiting the sale of alcohol or firearms to minors.
• Child labor laws.
• Specific safety statutes, like requiring lighted warnings on a train blocking a road at night.

Evidence of Negligence

A statutory violation is treated as mere evidence of negligence when the law was designed to protect the general public. The judge instructs the jury that they may consider the violation, along with all other facts, in deciding whether the defendant was negligent (Florida Standard Jury Instruction 401.9). Examples include:

• Most traffic violations (e.g., speeding, running a stop sign).
• General building code violations.

Defenses to Negligence Per Se

A defendant can still raise defenses to excuse the statutory violation or reduce liability.

Common Law Excuses

A defendant may be excused from a statutory violation if they can prove a legitimate justification, such as:

• Impossibility of Compliance: It was impossible for the defendant to comply with the law for reasons beyond their control (e.g., sudden brake failure).
• Greater Risk of Harm: Complying with the statute would have created a greater danger than violating it (e.g., swerving to avoid a child).
• Sudden Emergency: The violation occurred because of a sudden emergency not of the defendant's own making.

Modified Comparative Negligence

The most powerful defense in Florida is comparative fault. Under the 2023 tort reforms (HB 837), a plaintiff found to be more than 50% at fault for their own injuries is completely barred from recovering any damages. Even when a defendant is negligent per se, the jury will still apportion fault, and if the plaintiff's share exceeds 50%, they will recover nothing.

Damages and Statute of Limitations

Damages

A finding of negligence per se does not change the types of damages a plaintiff can recover. They are entitled to standard compensatory damages, including economic losses (medical bills, lost wages) and non-economic losses (pain and suffering).

Statute of Limitations

As part of the 2023 tort reforms, the statute of limitations for general negligence claims in Florida was reduced from four years to two years. This shorter deadline applies to all negligence per se actions that accrue on or after March 24, 2023.