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1. Defendant owed a duty to plaintiff to protect the plaintiff from a particular injury or damage;
2. Defendant breached this duty;
3. Defendant’s breach was the proximate cause of injury or damage to plaintiff; and
4. Plaintiff suffered damages caused by the breach.

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1. Defendant owed a duty to plaintiff to protect the plaintiff from a particular injury or damage;
2. Defendant breached this duty;
3. Defendant’s breach was the proximate cause of injury or damage to plaintiff; and
4. Plaintiff suffered damages caused by the breach.

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FLORIDA STATE COURTS

Supreme Court: Peoples Gas Sys. v. Posen Constr., Inc., 322 So. 3d 604, 612-13 (Fla. 2021); Limones v. Sch. Dist. of Lee Cty., 161 So. 3d 384, 389 (Fla. 2015).

First District: Bing v. Alachua Cnty., 392 So. 3d 266, 269 (Fla. 1st DCA 2024); R.J. Reynolds Tobacco Co. v. Nelson, 353 So. 3d 87, 90 (Fla. 1st DCA 2022); Lee v. Harper, 328 So.3d 384, 386-87 (Fla.1st DCA 2021); Denson v. SM-Planters Walk Apartments, 183 So.3d 1048, 1050 (Fla. 1st DCA 2015).

Second District: Roman v. Sos, 393 So. 3d 1263, 1266 (Fla. 2d DCA 2024); Martin v. City of Tampa, 351 So.3d 75, 77 (Fla. 2^nd DCA 2022); Greeley v. Wal-Mart Stores East, LP, 2022 WL 1019619, *4 (Fla. 2d DCA Apr. 6, 2022); Norman v. DCI Biologicals Dunedin, LLC, 301 So.3d 425, 428 (Fla. 2d DCA 2020).

Third District: Pozanco v. FJB 6501, Inc., 2022 WL 1758350, *2 (Fla. 3d DCA June 1, 2022) ;Mejia v. Egleston, 319 So. 3d 159, 160 n. 5 (Fla. 3d DCA 2021); Lago v. Costco Wholesale Corp., 233 So.3d 1248, 1250 (Fla. 3d DCA 2017).

Fourth District: Scheible v. Brown, 333 So.3d 726, *729 (Fla. 4th DCA 2022) ; Abad v. G4S Secure Solutions (USA), Inc., 293 So.3d 26, 29 (Fla. 4th DCA 2020); Bryan v. Galley Maid Marine Prod., Inc., 287 So. 3d 1281, 1285 (Fla. 4th DCA 2020).

Fifth District: Ruth v. Guerrieri Mgmt., Inc., 397 So. 3d 781, 785 (Fla. 5th DCA 2024); Graulau Maldonado v. Orange Cty. Pub. Libr. Sys., 273 So.3d 278, 279 (Fla. 5th DCA 2019); Schwartz v. Wal-Mart Stores, Inc., 155 So.3d 471, 473 (Fla. 5th DCA 2015).

FLORIDA FEDERAL COURTS

Eleventh Circuit: J.F. by & through S.F. v. Carnival Corp., No. 24-10259, 2025 WL 1689609, at *2 (11th Cir. June 17, 2025); Arberman v. PNC Bank, Nat’l Ass’n, 2023 WL 3910573, *3 (11th Cir. June 9, 2023); Sutton v. Wal-Mart Stores E., LP, 64 F.4th 1166, 1169 (11th Cir. 2023); Ho v. City of Boynton Beach, 2023 WL 2293517, *2 (11th Cir. Mar. 1, 2023).

Southern District: Parker v. Ross Dress for Less, Inc., No. 24-80260-CIV, 2025 WL 1433783, at *2 (S.D. Fla. Mar. 27, 2025); Johnson v. Floor & Decor Outlets of Am., Inc., 2023 WL 3750592, *4 (S.D. Fla. May 31, 2023); Felder v. Sam’s E., Inc., 2023 WL 3600041, *3 (S.D. Fla. May 23, 2023); Ramirez v. Carnival Corp., 2023 WL 3223853, *12 (S.D. Fla. May 3, 2023).

Middle District: Eason v. United States, 771 F. Supp. 3d 1263, 1282 (M.D. Fla. 2025); McDaniel v. Gable, 2023 WL 3453546, *2 (M.D. Fla. May 15, 2023); McKenzie v. U.S. Tennis Ass’n Inc., 2023 WL 3058036, *7 (M.D. Fla. Apr. 24, 2023); Porras v. United States, 2023 WL 2583303, *1 (M.D. Fla. Mar. 21, 2023).

Northern District: Lugo v. Simmons, 760 F. Supp. 3d 1344, 1359 (N.D. Fla. 2024); Chappell v. United States, No. 5:18-CV-199-TKW/MJF, 2020 WL 4573373, at *5 (N.D. Fla. July 16, 2020); Fernandez v. United States, No. 4:19-CV-113-RH/MJF, 2020 WL 3105925, at *2 (N.D. Fla. June 4, 2020).

FLORIDA STATUTES

§ 768.041 et seq., Fla. Stat.

REFERENCES

Restatement (Second) of Torts ‘ 281 (1965)

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2 Defenses to Claim for Negligence

(1) Fla. R. Civ. P. 1.110(d) (pleading affirmative defenses), and other standard defenses. See § 1.

(2) Statute of Limitations: Fla. Stat. § 95.11(4)(a) (2023) (two years); Fla. Stat. § 95.11(3)(a) (2022)(four years for claims accruing prior to March 24, 2023).

(3) The statute of repose bars product liability actions based on harm “allegedly caused by a product with an expected useful life of 10 years or less, if the harm was caused by exposure to or use of the product more than 12 years after delivery of the product to its first purchaser or lessee who was not engaged in the business of selling or leasing the product or of using the product as a component in the manufacture of another product’’, unless the product is specifically exempted as having a useful life greater than 10 years. § 95.031(2)(b), Fla. Stat.; Dominguez v. Hayward Indus., Inc., 201 So. 3d 100, 101-02 (Fla. 3d DCA 2015).

(4) “[T]ort liability in Florida is premised on pure comparative negligence, which means that a jury should apportion fault between the plaintiff, defendant, and any third parties alleged to have been at fault, and render an award based on a defendant’s percentage of fault in causing an injury.” Williams v. Davis, 974 So. 2d 1052, 1061 n.1 (Fla. 2007); Eason v. United States, 771 F. Supp. 3d 1263, 1283-84 (M.D. Fla. 2025); Fla. Stat. § 768.81(2).

For negligence claims that accrue on or after March 24, 2023, Florida will apply a comparative negligence standard that bars a plaintiff from recovery if the plaintiff is more than fifty (50) percent at fault. §768.81(6), Fla. Stat. (2023).

(5) Assumption of the risk will diminish the plaintiff’s recovery through comparative negligence. Blackburn v. Dorta, 348 So.2d 287, 293 (Fla. 1977)(holding that “hold that the affirmative defense of implied assumption of risk is merged into the defense of contributory negligence and the principles of comparative negligence enunciated in Hoffman v. Jones.”); Tillman v. C.R. Bard, Inc., 96 F. Supp. 3d 1307, 1353 (M.D. Fla. 2015); see also, Restatement (Second) of Torts § 496 (1965).

(6) Plaintiff’s contributory negligence serves to diminish the recovery of damages through principles of comparative negligence, by apportioning defendant’s degree of negligence against that of the plaintiff. Hoffman v. Jones, 280 So.2d 431, 436 (Fla. 1973); Melton v. Century Arms, Inc., 243 F. Supp. 3d 1290, 1300 (S.D. Fla. 2017); see also § 768.81, Fla. Stat.

(7) Plaintiff’s injuries resulted from an intervening, superseding cause. Serrano v. Dickinson, 2023 WL 3985021, *3 (Fla. 4th DCA June 14, 2023); Golden Gate Homes, LC v. Levey, 59 So.3d 275, 281 (Fla. 3d DCA 2011); see also, Restatement (Second) of Torts §§ 440, 441 (1965).

(8) Execution of a valid release is an absolute bar to liability. Harrell v. BMS Partners, LLC, 350 So. 3d 361, 365 (Fla. 4th DCA 2022); Bruce v. Heiman, 392 So.2d 1026, 1026 (Fla. 5th DCA 1981); Beck-Ford Constr., LLC v. TCA Global Credit Master Fund, LP,240 F. Supp. 3d 1256, 1279 (S.D. Fla. 2017).

(9) Patent danger, also known as the “open and obvious hazard doctrine,” is an absolute bar to liability when plaintiff’s negligence claim is premised on failure to warn, and otherwise serves as a defense to reduce the defendant’s liability through principles of comparative negligence when plaintiff failed to exercise reasonable care under the circumstances. E.g., Pozanco v. FJB 6501, Inc., 346 So. 3d 120, 124 (Fla. 3d DCA 2022); Hunnings v. Texaco, Inc., 29 F.3d 1480, 1486-87 (11th Cir. 1994); see also Belik v. Carlson Travel Grp., Inc., 864 F. Supp. 2d 1302, 1308 (S.D. Fla. 2011) (stating that, generally, a defendant only has a duty to warn of dangers that are not open and obvious).

(10) The impact rule requires that “before a plaintiff can recover damages for emotional distress caused by the negligence of another, the emotional distress suffered must flow from physical injuries the plaintiff sustained in an impact.”  E.g., R.J. v. Humana of Fla, Inc., 625 So.2d 360, 362 (Fla. 1995)(citation omitted). Exceptions to the impact rule include “a certain very narrow class of cases in which the foreseeability and gravity of the emotional injury involved, and lack of countervailing policy concerns, have surmounted the policy rationale undergirding the application of the impact rule” (Rowell v. Holt, 850 So.2d 474, 478 (Fla. 2003)) including “intentional torts, such as defamation, invasion of privacy, and intentional infliction of emotional distress” (Florida Dept. of Corrections v. Abril, 969 So.2d 201, 207 (Fla. 2007)) and freestanding torts such as wrongful birth (id.),  where “a psychotherapist has created a fiduciary relationship and has breached a statutory duty of confidentiality to his or her patient” (Gracey v. Eaker, 837 So.2d 348, 357 (Fla. 2002)), and claims “for a breach of confidentiality in negligently disclosing the results of HIV testing.” Abril, 969 So.2d at 208).

(11) Consent is a defense to negligence claims. Restatement (Second) of Torts § 892 (1965).

(12) The economic loss rule, which is limited to product liability actions, bars tort claims in product liability actions where a contract exists and only the product is damaged. Tiara Condominium Ass’n v. Marsh & McLennan Cos., Inc., 110 So.3d 399, 400 (Fla. 2013).

(13) Tort actions are generally barred where the defendant has not committed a breach of duty that is separate and independent from a breach of contract.  E.g., Tiara Condominium Ass’n v. Marsh & McLennan Cos., Inc., 110 So.3d 399, 408 (Fla. 2013)(Pariente, J., concurring); Island Travel & Tours, Ltd., Co. v. MYR Independent, Inc., 300 So.3d 1236, 1239 (Fla. 3d DCA 2020).

(14) Good Samaritans are immune from civil liability. § 768.13, Fla. Stat. “The immunity given under [§ 768.13] to a person who gratuitously renders aid to an injured person is conditioned upon that person rendering aid ‘as an ordinary reasonably prudent person.’” L.A. Fitness Int’l, LLC v. Mayer, 980 So.2d 550, 561n.2 (Fla. 4th DCA 2008).

(15) Military contractors are saved from liability when the contractor (a) had no or minimal input in the design of the product or warned the military of the product’s risks and notified the military of alternative designs then reasonably known by the contractor, and (b) the military authorized the contractor to proceed despite the product’s dangerous design. Dorse v. Armstrong World Indus., Inc., 513 So.2d 1265, 1269 (Fla. 1987).

(16) Product misuse will diminish the plaintiff’s recovery through comparative negligence. See Cerrato v. Nutribullet, LLC, No. 8:16–cv–3077–T–24 JSS, 2017 WL 5164898, at *3 (M.D. Fla. Nov. 7, 2017); Standard Havens Products, Inc. v. Benitez, 648 So.2d 1192, 1197 (Fla. 1994).

(17) Statutory Negligence requires showing that plaintiff (a) is a member of class for which protection was intended, (b) suffered an injury which the statute was designed to prevent and (c) violation of the statute proximately caused the injury. Vogel v. Cornerstone Doctors Condo. Ass’n, Inc., 299 So. 3d 1170, 1177 (Fla. 2d DCA 2020); Vitrano v. Fla. Power & Light Co., 190 So. 3d 89, 92 (Fla. 4th DCA 2015); DeJesus v. Seaboard Coast Line R.R. Co., 281 So.2d 198, 201 (Fla. 1973).

(18) Section 768.0755, Fla. Stat., is procedural in nature, and applies retroactively, requiring that [in a slip and fall action] the plaintiff prove that the business establishment had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it. Glaze v. Worley, 157 So. 3d 552, 555 (Fla. 1st DCA 2015); Kenz v. Miami-Dade Cty. & Unicco Serv. Co., 116 So.3d 461, 466 (Fla. 3d DCA 2013); Ruth v. Guerrieri Mgmt., Inc., 397 So. 3d 781, 785 (Fla. 5th DCA 2024).

(19) Parents are not liable for the torts of their minor children except: “(1) where the parent entrusts the child with an instrumentality which, because of the child’s lack of age, judgment, or experience, may become a source of danger to others; (2) where the child committing the tort is acting as the servant or agent of its parents; (3) where the parent consents, directs, or sanctions the wrongdoing; and (4) where the parent fails to exercise control over the minor child although the parent knows or with due care should know that injury to another is possible.” Snow v. Nelson, 475 So.2d 225, 226 (Fla. 1985); Gissen v. Goodwill, 80 So.2d 701, 703 (Fla. 1955); Perez v. Rodriguez, 204 So.3d 92, 95 (Fla. 4th DCA 2016).

(20) Florida’s Alcohol and Drug Defense, as set forth in Section 768.36(2), Fla. Stat., provides in pertinent part that “[i]n any civil action, a plaintiff may not recover any damages for loss or injury to his or her person or property if the trier of fact finds that, at the time the plaintiff was injured: (a) The plaintiff was under the influence of any alcoholic beverage or drug to the extent that the plaintiff’s normal faculties were impaired or the plaintiff had a blood or breath alcohol level of 0.08 percent or higher; and (b) As a result of the influence of such alcoholic beverage or drug the plaintiff was more than 50 percent at fault for his or her own harm.” Main St. Entm’t, Inc. v. Faircloth, 342 So. 3d 232, 237 (Fla. 1st DCA 2022); Kempton v. McComb, 264 So.3d 1180, 1181 (Fla. 5th DCA 2019); see also Bryant v. Mascara, No. 2:16-CV-14072-ROSENBERG/REINHART, 2018 WL 3862650, at *1 (S.D. Fla. Aug. 14, 2018).

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