Personal Injury

Personal Injury Law

Personal injury law is all about torts. Broadly defined, a tort is a harmful act (or failure to act) for which the law provides a remedy. There are many different kinds of torts. Physically injuring someone is a tort; so is damaging a person’s property or character, or wrongly denying someone his or her liberty. The basic principle of tort law is that injured persons should be compensated by those responsible for their injuries. Thus, a victim of a tort has the right to sue the tortfeasor (the person committing the tort) for damages.

Though often confused, torts and crimes are two separate legal entities. Torts are civil wrongs against an individual exposing the tortfeasor to liability. Crimes are wrongs against society or the state and are punishable by incarceration or fines. Some acts, however, can be both a tort and a crime. For example, someone who used force to cause bodily injury has committed a tort known as battery and is liable to the victim for damages. Battery is also a first degree misdemeanor under Florida law and punishable by up to one year in prison. Thus, a person could be prosecuted and convicted of battery, and later face a civil lawsuit brought by the victim.

Theories of Tort Liability

The law recognizes three general types of torts: intentional torts, negligent torts, and torts based on strict liability. Each of these torts is unique and has its own requirements for recovery. For example, if a person is injured by a commercial product, he or she may sue the manufacturer under a theory of negligence or strict liability. Suing for negligence requires that the plaintiff show that the defendant failed to use adequate care in making the product. Suing based on strict liability requires that the plaintiff show, among other things, that the product was “unreasonably dangerous.” Which theory a plaintiff uses depends on the facts of his or her particular case.

Intentional Torts

As the name implies, intentional torts are those torts for which the defendant intends the consequences of an act. Battery is an example of an intentional tort; so is assault (threatening someone with physical violence), false imprisonment or other invalid uses of legal authority, invasion of privacy (e.g., unauthorized use of a person’s name or picture for commercial purposes), and trespass. Defamation is also considered an intentional tort, either in print, on television or radio (libel), or in spoken form (slander).

To proceed in a lawsuit for damages caused by an intentional tort, a plaintiff must show that the defendant committed the tort, intended the consequences or knew with substantial certainty what consequences would result, and that the defendant’s act was a substantial factor in the resulting harm or injury. In some cases, however, there are defenses to intentional torts which excuse the defendant from liability. For example, someone may commit battery in self-defense. Under Florida law, a person is justified in using force to defend him or herself, so long as the force is reasonably necessary. Similarly, the truth of a statement may be a complete defense to a defamation action.

Unlike negligence, a plaintiff suing for an intentional tort is not usually required to show actual damages in order to proceed with a lawsuit. In the case of defamation, for example, the resulting emotional distress and mental anguish are considered sufficient damages to justify a lawsuit (however, the damage award may be nominal without proof of a quantifiable injury). Plaintiffs who do suffer quantifiable injury are entitled to compensatory damages (damages which compensate the plaintiff for injury to person or property) and may receive punitive damages (damages aimed at punishing the defendant and deterring future similar action) if the tort was willfully committed or particularly malicious.


The majority of personal injury lawsuits in Florida are brought under a theory of negligence. Negligence has to do with how careful a person was when he or she caused an injury, and how careful, according to the law, he or she should have been. There are four requirements to proving negligence. A plaintiff must show (1) the defendant had a duty to conform to a certain standard of conduct to protect others from unreasonable risk; (2) the defendant breached that duty; (3) the defendant’s breach was the proximate cause of the plaintiff’s injury; and (4) the plaintiff suffered an injury.

In general, the law imposes a duty on everyone to behave at least as carefully as a reasonable, ordinary, prudent person in a similar situation. This is known as the reasonable person standard. A defendant’s actions must fall short of the reasonable person standard in order for the defendant to be found negligent. If a court determines that the defendant acted reasonably, even though his or her actions caused injury to another, the defendant is not negligent and not liable for damages. Children are typically held to a lower standard than adults; and professionals, such as doctors, are held to a higher standard. Under Florida law, doctors and other health professionals must meet a standard of care based on what is recognized as acceptable and appropriate by reasonably prudent health care providers in similar circumstances.

Proximate cause is the legal term given to describe an act which causes a plaintiff’s injury or, more accurately, causes the injury for purposes of assigning liability. Sometimes a defendant’s act may be so remotely related to the plaintiff’s injury as not to be considered a proximate cause. For example, in a famous 1928 New York case, a railroad employee helped a passenger onto a moving train by pushing him from behind. In the process, a package the passenger was carrying, wrapped in newspaper and containing fireworks, was dislodged, fell, and exploded. The force of the explosion knocked down some scales at the far end of the train platform, a considerable distance away, injuring the plaintiff. The plaintiff sued the railroad company for damages. The court ruled that since the railroad employee could not foresee the complicated and unlikely sequence of events that led to the plaintiff’s injury, the employee’s action was not the proximate cause of the plaintiff’s injury. In other words, although the railroad employee’s action “caused” the plaintiff’s injury in a technical sense, the line of causation was too remote to hold the railroad company liable.

Damages must be shown in a negligence lawsuit; otherwise the lawsuit will be dismissed. Plaintiffs who successfully prove the defendant’s negligence are entitled to compensatory and punitive damages. However, recent Florida legislation has limited the recovery of punitive damages in negligence actions (limitations also apply to strict liability, products liability, professional negligence, and breach of warranty). For example, a punitive damage award of more than three times the compensatory damages is considered excessive and subject to reduction. Additionally, 35 percent of every punitive damage award goes to the state of Florida. The remaining 65 percent goes to the plaintiff.

The outcome of lawsuits alleging negligence can be difficult to predict because the reasonable person standard is vague, imprecise, and apt to be interpreted differently by different people. Applying the reasonable person standard to a particular set of facts can be a very subjective process. Finding an attorney with experience presenting negligence cases and expertise in arguing the reasonable person standard to a judge or jury are the keys to a successful lawsuit.

Comparative Negligence

Often, accidents are not black and white events. That is, a plaintiff is usually not 100 percent fault-free and a defendant 100 percent negligent. In 1973, Florida adopted the doctrine of comparative negligence which enables a jury to more accurately apportion liability in a negligence lawsuit. Comparative negligence permits a jury to compare the negligence of the plaintiff with the negligence of the defendant and decide damages accordingly. If the jury finds the plaintiff 10 percent negligent in a car accident, and the defendant 90 percent negligent, the defendant has to pay only 90 percent of any damage award.

Strict Liability

If a plaintiff sues under the theory of strict liability, he or she contends that the defendant is liable regardless of fault. The issue of how careful a defendant was or should have been is irrelevant. If the defendant’s activity was the proximate cause of the plaintiff’s injury, the defendant is liable.
Strict liability applies only in a limited number of areas. For example, owners of wild or dangerous animals are strictly liable for any injuries their animals may cause (owners of domestic animals — dogs and cats — are liable only if negligent). Also, anyone engaged in ultra hazardous or abnormally dangerous activities are strictly liable for injuries. Examples would include demolishing buildings, crop dusting, manufacturing explosives, blasting, and fumigating. Finally, and most important for consumers, manufacturers may be strictly liable for injuries caused by their products.
To prove a case based on strict liability, four elements must be established. A plaintiff must show (1) the defendant had an absolute duty to make the activity or product safe; (2) the defendant breached that duty; (3) the breach of the duty was the proximate cause of the plaintiff’s injury; and (4) the plaintiff suffered an injury. Because the issue of fault is not relevant to a strict liability case, the most crucial element of the above four is that of causation.

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