What are the elements for a cause of action for negligence
The elements of a cause of action for negligence are:
(1) a legal duty of the defending party to protect the party seeking relief under the circumstances;
(2) negligent failure by the defending party to comply with the duty;
(3) injury to the party seeking relief as a result; and
(4) damages.
The debate about whether negligence is an ultimate fact or a conclusion of law has been settled in Florida. It is an ultimate fact. To show the duty owed by the defending party to the party seeking affirmative relief, ultimate facts must be alleged showing the relationship of the parties and the circumstances out of which the duty to avoid negligence arises. It suffices to allege that the defendant negligently “operated his motor vehicle,” “designed the building” or “manufactured the product.” The standard of causation is whether the negligence probably caused the injury.
A plaintiff who does not sue all of the potentially liable parties creates a problem for a defendant or defendants. To take advantage of the abolition of joint and several liabilities and the introduction of comparative negligence a defendant must assert an affirmative defense and, absent good cause, identify a non party alleged to be liable. He must prove the non party's fault at trial by a preponderance of the evidence to have the non party included on the verdict form to apportion damages.
