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The Five Elements of A Negligence Case

Oldham & Smith Nov. 15, 2017

Each year, thousands of Americans are involved in injury-related incidents, many from drug overdoses and other poisonings, motor vehicle crashes, and falls. To obtain compensation for their wounds, these victims usually need to prove five elements by a preponderance of the evidence (more likely than not).

The negligence per se rule is the largest exception. If the tortfeasor (negligent actor) violated a safety law, such as speeding or failure to properly restrain a dog, and that violation causes injury, the tortfeasor may be liable for damages as a matter of law.


Cases like Donoghue v. Stevenson, in which a woman sued a beer bottler after she found a dead snail in a bottle, established the duty of reasonable care that applies to noncommercial drivers. This duty essentially means that drivers must obey “the rules of the road” and drive defensively at all times.

Taxi drivers, bus drivers, truck drivers, and most other commercial operators are common carriers in Florida, so they have a duty of utmost care. As a result, it is easier for victims to obtain compensation in many commercial driver negligence cases.


Whereas duty is a legal question, breach is a fact question which the jury must decide, because not all careless behavior constitutes a breach of the duty of reasonable care. Some common violations include:

  • Speed: One or two miles per hour above the speed limit may not be a breach of duty, but anything above that level probably is. Speed increases the risk of a collision, because it reduces reaction time, and also worsens the injuries sustained in said crash, because speed increases the force in a collision between any two objects.

  • Distraction: Talking with a passenger, looking out the window, or adjusting the air conditioner probably do not constitute distracted driving, even though they involve cognitive, visual, or manual distraction. Activities like eating or using a cellphone while driving are a different matter.

  • Alcohol: One drink is enough to cause impairment, so unlike speed or distraction, any alcohol use probably breaches the duty of reasonable care.

Fatigue and a failure to keep a proper lookout are two other common breaches of duty.


There must be a direct connection between the tortfeasor’s (negligent driver’s) action or inaction and the victim’s damages.

Proximate Cause

The victim’s injury must be a foreseeable result of the tortfeasor’s negligence. It is foreseeable that a car may leave the road and strike a pedestrian, but not foreseeable that a doctor will make a medical mistake and cause additional injury.


Close only counts in horseshoes and hand grenades, as the old saying goes. To obtain compensation, the victim must suffer a physical personal injury and/or property damage. “Near misses,” even though they may cause emotional distress, are usually not actionable in court.

Rely on Assertive Attorneys

Even if all five elements are present, victims need aggressive attorneys to get the compensation they deserve. For a free consultation with an experienced personal injury lawyer in Orlando, contact Oldham & Smith. We do not charge upfront legal fees in negligence cases.