Car Accident Negligence Claims and Defenses

Simply being injured in a car accident is not necessarily enough to collect financial compensation. At Gerson & Schwartz, P.A. our Miami car accident lawyers can explain negligence claims and defenses that may impact the success of your accident claim. Under Florida laws, client that are injured and seek damages must prove all claims by the greater weight of the evidence.

When you speak to our legal staff, we will need to the facts and gather all evidence so that we can prove the driver or another person was negligent. Negligence claims in a Florida car accident are different than premises liability and other injury claims. The auto insurance companies have developed many different types of legal strategies to defend auto accident personal injury claims. That’s why it’s so important to have the best car attorney in Miami, representing you or a loved one for serious injuries. Gerson & Schwartz, PA has over 50 years of experience handling auto accident, injury claims and car accident fatalities in Miami Dade County. Our Florida trial law firm is aware of the tactics and negligence defenses raised in car accident cases in Miami, Florida. With over 300+ jury trials, you can rest assured that we have the skill, knowledge and expertise you need. If you want to double check, just take a look at some our recent verdicts and settlements.

Under Florida law, negligence is the failure to exercise that a reasonably careful person would use under like circumstances. In order to succeed in a car accident negligence claim in the state of Florida, injury victims must prove that that an at fault party, failed to do something that a reasonably careful person would do, or failed to do something that reasonably careful person would not do. Some examples of a driver breaching there legal duty can be speeding, running a stop sign, failing to yield, drinking and driving, or not paying attention. Chapter 768 of Florida Statutes outlines the definitions and various applications of negligence tort law in Florida.

As it relates to auto, truck, and motor vehicle accident claims, negligence is the foundation of personal injury and wrongful death claims filed by drivers, passengers, pedestrians and bicyclists. When an injured party can prove negligence, the fault party is legally obligated to pay money damages for the serious harms and losses they cause.

For a defendant to be held liable for money damages, in a car accident case they must prove negligence, as follows:

• A vehicle operator owed a legal duty of care to the injured party. A duty of care is owed to the public, other motorists, pedestrians and other persons on the road.
• That person breached duty of care
• The breach of duty caused an accident victims injuries
• Amount of Damages- damages can include pain and suffering, wage loss, loss of earning capacity, scarring, disfigurement, and emotional and psychological harms

Possible defendants in negligence auto accident claims in Miami may include claims against the driver, employers, the owner of the vehicle, a parent of the driver, or commercial carrier. Less obvious defendants can included a bar or alcohol serving establishment that was responsible for serving alcohol to the driver (if underage). Other claims can be brought against alternative theories of liability against a vehicle manufacturer or mechanic or construction company.

There are some instances where in types of legal responsibility resulting from car accident negligence which can be established in Miami traffic accident cases. These would include:

• Vicarious liability. This refers to instances wherein defendant party may not be directly liable, but by and through a special relationship with defendant, is liable for defendant’s negligence. Examples include: Employers (for negligent employees acting in the course and scope of employment), motor vehicle owners (per the dangerous instrumentality doctrine set forth in Southern Cotton Oil Co. v. Anderson) or the parent/ guardian of an under-18 driver (per Florida Statute 322.09(2) ).
• Gross negligence. This is conduct by a defendant that is so reckless or wanting in care that it constitutes a conscious disregard or indifference to life, safety or rights of others. Per Florida Statute 768.72, gross negligence and intentional misconduct are the only means by which a plaintiff has grounds to assert punitive damages. Per Florida Statute 768.73, punitive damages are awarded to a plaintiff to penalize defendant, and offer the possibility of a damage award up to 9 times greater than what is given for compensatory damages. Examples of gross negligence usually are applied in auto accidents with drunk drivers or fatal car accident cases.
• Negligence Per Se. This principle asserts that an act is negligent because it is a violation of the law. According to Section 401.8 of Florida’s Civil Jury Instructions, violation of a non-traffic statutes can be considered negligence per se. An example of negligence per se in a car accident case would be injuries caused by a drunk driver. Meanwhile, Florida’s Civil Jury Instruction Section 401.9, which can be applied to traffic regulations, holds that violation of certain statutes is considered evidence of negligence, though not necessarily conclusive evidence of negligence.
• Negligence of a common carrier. As explained in Section 401.6, the reasonable care standard required of a common carrier (who transports passengers) is the highest degree of care, doing/ not doing something that a very careful person would under similar circumstances.

With various forms of negligence, there are different legal approaches. Because each personal injury claim is different, it’s important to consult with a Miami crash attorney who can help you determine what type of auto, car or motor vehicle negligence to assert, and what defenses we can likely expect.

Defense strategies employed by defendant drivers and others will depend on the circumstances of the case.

In disputing negligence, defendants will try to assert that any one of the three elements (duty, breach of duty and proximate cause of injuries) was not proven by a preponderance of the evidence. Most often, the elements that are subject to challenge in crash cases are breach of duty and proximate cause of damage. In other words, defendant will argue he or she did act with reasonable care, or else even if they failed in this regard, that breach wasn’t the cause of plaintiff’s injuries.

Some other common approaches in these cases include:

• Statute of limitations. Florida Statute 85.11 gives injury plaintiffs four years from the cause of action (i.e., the motor vehicle accident) to the time a lawsuit can be filed. Claims for wrongful death get just two years. Claims against government defendants may have strict notification requirements that must be met before a claim can be filed. Failure to file a claim within these limits is a strong defense.
• Comparative negligence. In any negligence claim, more than one person can be held responsible. In a contested car accident, a defense may argue that the injured party too was negligent. This can also be applied in any negligence claim under Florida law. Comparative negligence is often used by a defendant to assert that an injured party was also negligent in causing the accident. Under Florida negligence laws, this will not bar recovery. But it if proven it can proportionately diminish the amount the injured person receives in both economic and non-economic damages. A negligent driver for example can use the degree of fault assigned to the injured party and then reduce the amount of damages payable by asserting plaintiff was wholly or partially to blame. Some states, other than Florida follow contributory negligence. In those cases, if established at all will completely bar an injury victims’ right to recovery.
• Pre-existing injuries. This is commonly raised in many negligence and car accident personal injury claims. However, Florida law allows accident victims to pursue claims for aggravation of a pre-existing injury. Also, the burden is on the defendant to prove injuries were pre-existing. If the evidence in the case does not support a pre-existing injury Florida law, there is a legal presumption that requires juries to find that the injuries are related to the accident and the total amount of damages may be awarded if proven in court.
• Failure to mitigate damages. Florida Civil Jury Instruction Section 504.9 requires plaintiffs to use “reasonable efforts or expenditures” to mitigate their own damages. This is sometimes referred to as the “doctrine of avoidable consequences.” For example, failure to seek proper medical attention or follow through with medical advice, could potentially be grounds for this assertion.
• Liability of other tortfeasors (wrongdoers). This is another means by which a defendant in a Miami car accident lawsuit could minimize their own liability. In cases where non-defendant parties are deemed liable, a plaintiff will generally not be able to recover from them, at least not in the same claim.
• Sudden emergency. This would be an assertion that defendant, through no fault of their own, was placed in a sudden emergency situation and acted reasonably in that situation.

Our experienced Miami car accident lawyers are committed to helping you develop a workable legal strategy to successfully challenge these defenses and secure fair compensation for your injuries. If you or someone you love has been injured in a car accident, please contact the Miami Car Accident Attorneys at Gerson & Schwartz, P.A., for a free consultation by calling (305) 371-6000 or using our online contact form.