A personal injury lawsuit involves a party alleging that they were injured due to the actions of another person. The plaintiff in the case is the injured party, and the party who allegedly committed the damage is the defendant. The injury could be caused by the defendant’s intentional act or negligence.


When a person purposefully harms another person or property, this is called an intentional tort.

(“Tort” is the French word for “wrong”). In Florida, there are seven basic categories of

Intentional torts:

  • Assault
  • Battery
  • Intentional infliction of emotional distress
  • False imprisonment
  • Trespass to land
  • Trespass to chattels
  • Conversion

In cases where the allegation is that the defendant acted intentionally, the plaintiff must prove three things:

1. The defendant committed the alleged action,

2. The defendant intended (or knew of) the harm the action would cause, and

3. The action caused the injury.


Negligence is the legal term for accidental injuries – when a defendant does not intend to cause harm, yet still does. Examples include auto accidents (although crashes involving drinking while driving may rise to the level of intentional), slip and fall cases, and medical malpractice actions.

To succeed in a negligence action, the plaintiff must prove:

1. The defendant had a duty of care towards the plaintiff,

2. The defendant breached that duty,

3. The defendant’s breach proximately caused the injury or damages,

4. The plaintiff suffered damages.


The first thing that the plaintiff must prove in a personal injury action is that the defendant was at fault for causing the injury. If a plaintiff cannot prove that the injuries were caused by the defendant, then the plaintiff will recover nothing. It does not matter if the injuries were horrendous or if the damages totaled millions of dollars. However, if the injured party proves that the defendant’s actions or inactions caused the injury, then the plaintiff’s chances of recovery are much greater.

Negligence – Comparative Fault

In negligence cases, if the plaintiff was also at fault – if the injury was in any part caused by the negligence of the plaintiff – then the plaintiff’s award will be decreased by the percentage of that negligence. This is known as comparative negligence.

1 Florida’s comparative fault statute requires that a negligent defendant pay only for damages based on the “party’s percentage of fault.”

2 Simply put, defendants will not be compelled to pay for damages that they did not cause. Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993).

This rule does not apply if a defendant intentionally injured the plaintiff. Fla. Stat. § 768.81(4).Although the law in some states prohibits an injured party from recovering damages if the person is more than 51 percent at fault for their own injury, Florida has no such prohibition.


To be successful in a personal injury claim, the plaintiff must prove that the defendant’s action or inaction caused the plaintiff’s injury. Causation can be supported by expert testimony. Causation is especially important in cases where it is alleged that the defendant was negligent. In negligence cases, the plaintiff must prove that the defendant’s action proximately caused the injury. The Florida Supreme Court has made it clear that a defendant’s negligence must have “foreseeably and substantially” caused the damages. Sanders v. ERP Operating, Ltd. Partnership, 2015 WL 569041 (Fla. 2015).


In Florida, there are laws that prevent a plaintiff from filing a case if it is not filed within the proper amount of time. These laws are known as statutes of limitations. Although these statutes sometimes contain time limits that differ depending upon the type of case, in most personal injury cases, the injured party has four years from the date of the accident to bring an action. Fla. Stat. Ann. § 95.11.


Plaintiffs may recover economic or non-economic damages in personal injury cases.

  • Economic damages are specific damages that have easy to calculate dollar amounts,

such as:

  •  Medical bills (past and future)
  •  Property damage
  •  Lost income (past and future)
  •  Funeral expenses (wrongful death actions)
  •  Non-economic damages are more difficult to estimate, and include:

such as:

  •  pain and suffering
  •  loss of enjoyment of life
  •  mental anxiety
  •  disability or disfigurement

It is important to note that the laws regulating damages, as well as the methods for calculating damages, vary from case to case. For instance, to recover for pain and suffering in an automobile accident case, the plaintiff usually must prove that the injuries are permanent. In a slip and fall case, that is not required.


In order to present a good case for damages and causation, a plaintiff may need to hire an expert witness. A witness may be “qualified as an expert by knowledge, skill, experience, training or education.”  Fla. Stat. § 90.702.  To be qualified as an expert, the witness must either be:

  •  duly and regularly engaged in the practice of a profession who holds a professional degree from a university or college and has had special professional training and experience, or
  • possessed of special knowledge or skill about the subject upon which called to testify.


Most personal injury lawsuits are settled prior to a lawsuit being filed, and in situations where a case is in litigation, many of them settle prior to trial. Settlements are encouraged most of the time, because trials are costly and stressful to the parties and their attorneys. Additionally, many times an experienced attorney can settle your case early in the proceedings. The reasons personal injury cases may be settled quickly include:

1. Lower attorney’s fees and costs for the defendant;

2. Lower attorney’s fees and costs for the plaintiff;

3. Delay makes the same money worth less because of inflation;

4. Some plaintiff’s do not want to go through the stress of years of litigation;

5. It eliminates the risk that the defendant may become responsible for the plaintiff’s attorneys’ fees and costs.

6. It eliminates the risk that the plaintiff may become responsible for the defendant’s attorneys’ fees and costs.

Most cases that settle involve the parties meeting in the middle, with neither side getting everything they wanted.