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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.

See Form 1.945, Florida Rules of Civil Procedure (Forms for Use with Rules)

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FLORIDA STATE COURTS

Supreme Court: Birge v. Charron, 107 So.3d 350, 362 n19 (Fla. 2012); Curd v. Mosaic Fertilizer, LLC, 39 So.3d 1216, 1227-28 (Fla. 2010).

First District: Sorel v. Koonce, 53 So.3d 1225, 1227 (Fla. 1st DCA 2011); Jenkins v. W.L. Roberts, Inc., 851 So.2d 781, 783 (Fla. 1st DCA 2003).

Second District: Meyers v. Shontz, 251 So. 3d 992, 1002 (Fla. 2d DCA 2018); Whritenour v. Thompson, 145 So.3d 870, 873 (Fla. 2d DCA 2014).

Third District: Sewell v. Racetrac Petroleum, Inc., 245 So.3d 822, 825 (Fla. 3d DCA 2017).

Fourth District: Padilla v. Schwartz, 199 So.3d 516, 518 (Fla. 4th DCA 2016); Kelly v. Lodwick, 82 So.3d 855, 857 (Fla. 4th DCA 2011).

Fifth District: Charron v. Birge, 37 So.3d 292, 296 (Fla. 5th DCA 2010).

FLORIDA FEDERAL COURTS

Eleventh Circuit: O’Donnell v. United States, 736 F. App’x. 828, 831 (11th Cir. 2018); Sorrels v. NCL (Bahamas) Ltd., 796 F.3d 1275, 1280 (11th Cir. 2015). 

Southern District: Charlemagne v. Alibayof, 2022 WL 1642299, *5 (S.D. Fla. Apr. 29, 2022);Stasio v. United States, No. 19-CV-62828, 2021 WL 848946, at *2 (S.D. Fla. Mar. 5, 2021); Miller v. Comery, No. 0:14–CV–60223, 2014 WL 7336676, at *2 (S.D. Fla. Dec. 24, 2014).

Middle District: Mendoza v. Cardwell, No. 6:23-CV-1352-ACC-RMN, 2024 WL 3757807, at *3 (M.D. Fla. July 3, 2024); Porras v. United States, 2022 WL 2073006, *4 (M.D. Fla. June 9, 2022); Triolo v. United States, 2022 WL 843580, *1 (M.D. Fla. Mar. 22, 2022); Hendrix v. United States, No. 8:19-CV-1145-SCB-AAS, 2021 WL 1997426, at *6 (M.D. Fla. May 19, 2021).

Northern District: Sieben v. Hurley, No. 1:24CV126-MW/MJF, 2024 WL 5440838, at *1 (N.D. Fla. Sept. 23, 2024); Mitchell v. United States, No. 3:12cv15/MCR/EMT, 2012 WL 3063999, at *2 (N.D. Fla. June 14, 2012).

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2 Defenses to Claim for Negligence Motor Vehicle

(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) Seat Belt Defense: To present this defense to the jury as to the issue of comparative negligence, defendant must show “(1) the plaintiff failed to use ‘an available and fully operational seat belt; (2) the non-use was unreasonable under the circumstances; and (3) this failure caused or contributed substantially to the plaintiff’s damages.” Osgood Indus. v. Schlau, 654 So.2d 959, 961 (Fla. 2d DCA 1995); but see Jones v. Alayon, 162 So.3d 360, 368 (Fla. 4th DCA 2015) (holding that defendants need not prove seat belt was available and fully operational, but such information may be used as a factor in establishing comparative negligence).


(4) Sudden Emergency: “The factual requirements in considering the application of the sudden emergency doctrine are (1) that the claimed emergency actually or apparently existed; (2) that the perilous situation was not created or contributed to by the person confronted; (3) that alternative courses of action in meeting the emergency were open to such person; and (4) that the action or course taken was such as would or might have been taken by a person of reasonable prudence in the same or similar situation. The presence or absence of a sudden emergency situation is a question of fact ordinarily to be decided by the jury.” Vantran Industries, Inc. v. Ryder Truck Rental, Inc., 955 So.2d 1118, 1220 (Fla. 1st DCA 2006); Wallace v. Nat’l Fisheries, Inc., 768 So.2d 17, 18 (Fla. 3d DCA 2000).

(5) Sudden Stop: In a rear-end collision, there is a presumption of negligence against a rear-driver defendant. Where it is alleged plaintiff stopped suddenly, defendant can rebut the presumption if plaintiff’s sudden stop was arbitrary (at an unexpected place and time). Birge v. Charron, 107 So.3d 350, 359 (Fla. 2012); Rementer v. United States, No. 8:14–CV–642–T–17MAP, 2017 WL 1095054, at *17-18 (M.D. Fla. Mar. 21, 2017); Padilla v. Schwartz, 199 So.3d 516, 518 (Fla. 4th DCA 2016).

(6) Sudden Brake Failure: Where defendant attributes a collision to a sudden mechanical failure, this must specially plead as an affirmative defense. Ironman v. Rhoades, 493 So.2d 1097 (Fla. 4th DCA 1986).

(7) Dangerous Instrumentality Doctrine: “Florida’s dangerous instrumentality doctrine imposes `vicarious liability upon the owner of a motor vehicle who voluntarily entrusts that motor vehicle to an individual whose negligent operation causes damage to another.'” Newton v. Caterpillar Fin. Servs. Corp., 253 So.3d 1054, 1056 (Fla. 2018)(quoting Rippy v. Shepard, 80 So.3d 305, 306 (Fla. 2012); see also Medina v. Yoder Auto Sales, Inc., 743 So.2d 621, 622 (Fla. 2d DCA 1999)(“Under the dangerous instrumentality doctrine, one who permits an automobile to be used by someone else on the public highways is liable for injuries to third parties caused by the authorized user’s negligence.”)(citation omitted).

(8) Beneficial Ownership Exception:  The beneficial ownership exception, which is also known as the bare legal title exception, is a narrow exception to the dangerous instrumentality doctrine, and provides that “a titleholder may avoid vicarious liability if the titleholder demonstrates that he or she does not have the authority to exert any dominion or control over the vehicle and therefore is not a beneficial owner of the vehicle.” Christensen v. Bowen, 140 So.3d 498, 501 (Fla. 2014).

(9) 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.

(10) “[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); 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).

(11) 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).

(12) 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.

(13) 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).

(14) 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).

(15) 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).

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

(17) 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).

(18) 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).

(19) 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).

(20) 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).

(21) 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).

(22) 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).

(23) 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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