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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 1.951, Florida Rules of Civil Procedure (Forms for Use with Rules)

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FLORIDA STATE COURTS

Supreme Court: Curd v. Mosaic Fertilizer, LLC, 39 So.3d 1216, 1227-28 (Fla. 2010).

First District: Walker v. Winn-Dixie Stores, Inc., 160 So.3d 909, 912 (Fla. 1st DCA 2014); Jenkins v. W.L. Roberts, Inc., 851 So.2d 781, 783 (Fla. 1st DCA 2003).

Second District: 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); Lisanti v. City of Port Richey, 787 So.2d 36, 37 (Fla. 2d DCA 2001).

Third District: Lago v. Costco Wholesale Corp., 233 So. 3d 1248, 1250 (Fla. 3d DCA 2017); Wilson-Greene v. City of Miami, 208 So. 3d 1271, 1274 (Fla. 3d DCA 2017).

Fourth District: Oliver v. Winn-Dixie Stores, Inc., 291 So. 3d 126, 128 (Fla. 4th DCA 2020); Pembroke Lakes Mall Ltd. v. McGruder, 137 So.3d 418, 423–24 (Fla. 4th DCA 2014).

Fifth District: Ruth v. Guerrieri Mgmt., Inc., 397 So. 3d 781, 785 (Fla. 5th DCA 2024); Maldonado v. Orange Cty. Pub. Libr. Sys., 273 So.3d 278, 279 (Fla. 5th DCA 2019); Bongiorno v. Americorp, Inc., 159 So.3d 1027, 1029 (Fla. 5th DCA 2015).

FLORIDA FEDERAL COURTS

Eleventh Circuit: Sutton v. Wal-Mart Stores E., LP, 64 F.4th 1166, 1169 (11th Cir. 2023); Donnelly v. Wal-Mart Stores E., LP, 844 F. App’x 164, 167-68 (11th Cir. 2021); Felder v. Sam's E., Inc., No. 23-12049, 2024 WL 4430482, at *2 n.1 (11th Cir. Oct. 7, 2024); Espinoza v. Target Corp., 843 F. App’x 168, 171 (11th Cir. 2021).

Southern District: Amorim v. Wal-Mart Stores E., L.P., No. 24-CV-81535, 2025 WL 1639221, at *2 (S.D. Fla. May 20, 2025), report and recommendation adopted, No. 24-81535-CIV, 2025 WL 1634739 (S.D. Fla. June 9, 2025); Cabrera v. Macy’s Fla. Stores, LLC, 2022 WL 1642762, *3 (S.D. Fla. Mar. 31, 2022); Simon v. Leevers Supermarkets, Inc., 2022 WL 1664515, *2 (S.D. Fla. Jan. 28, 2022); Tejeda v. Costco Wholesale Corp., 2022 WL 1478884, *2 (S.D. Fla. Jan. 26, 2022).

Middle District: Gilbert v. Wal-Mart Stores E., LP, 748 F. Supp. 3d 1163, 1168 (M.D. Fla. 2024); McCart v. Wal-Mart Stores E., LP, 2023 WL 2374159, *8 (M.D. Fla. Mar. 6, 2023); Denis v. Target Corp., 2022 WL 1307058, *2 (M.D. Fla. May 2, 2022); Mokris v. United States, 2022 WL 1302327, *6 (M.D. Fla.  May 2, 2022); Elliot v. Magic Burgers, LLC, 2022 WL 1619387, *2 (M.D. Fla. Mar. 15, 2022).

Northern District: Demboske v. Autry Greer & Sons, Inc., No. 3:23CV24717-HTC, 2024 WL 4800517, at *2 (N.D. Fla. July 30, 2024); Mitchell v. United States, No. 3:12cv15/MCR/EMT, 2012 WL 3063999, at *3 (N.D. Fla. June 14, 2012).

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2 Defenses to Claim for Negligence Fall Down

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

(2) Section 768.0755, Fla. Stat. (Premises liability for transitory foreign substances in a business establishment).

(3) 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).

(4) Places of Amusement: A higher duty of care is imposed on places of amusement where large crowds are invited to congregate, allowing for a finding of liability for a negligent method of operation even absent knowledge of a dangerous condition. See Wells v. Palm Beach Kennel Club, 35 So.2d 720 (Fla. 1948).

(5) “[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, which bars a plaintiff from recovery if the plaintiff is more than fifty (50) percent at fault. § 768.81(6), Fla. Stat. (2023).

(6) Constructive Notice: Where a landowner defendant in premises liability case did not have actual notice of a dangerous condition, constructive notice may be inferred from the length of time the condition existed, or from the high frequency of the condition’s occurrence. See Oliver v. Winn-Dixie Stores, Inc., 291 So.3d 126, 129 (Fla. 4th DCA 2020); Grimes v. Fam. Dollar Stores of Fla., Inc. 194 So.3d 424, 428 (Fla. 3d DCA 2016); Camina v. Parliament Ins. Co., 417 So.2d 1093 (Fla. 3d DCA 1982).

(7) Possessor of Premises: A possessor has a duty to provide a reasonably safe premises for invites, encompassing both a duty to learn of dangerous conditions, and a duty to protect invitees from dangerous conditions the possessor actually knows of. See Fredrick v. Dolgencorp, LLC, 304 So. 3d 36, 38-39 (Fla. 2d DCA 2020); Winn-Dixie Stores, Inc. v. Mazzie, 707 So.2d 927 (Fla. 1998).

(8) 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.

(9) 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. Kenz v. Miami-Dade Cty. & Unicco Serv. Co., 116 So.3d 461 (Fla. 3d DCA 2013); Morris v. Capital City Bank, 403 So. 3d 369, 371 (Fla. 1st DCA 2025); Seven Restaurants, LLC v. Tulecki, 391 So. 3d 949, 958 (Fla. 4th DCA 2024).

(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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