Duty Element of Negligence – Did Defendant’s Conduct Foreseeably Create Broader Zone of Risk

In any negligence action, the first element a plaintiff needs to prove is that the defendant owed a duty of care to the plaintiff. Lee v. Harper, 46 Fla.L.Weekly D2251a (Fla. 1st DCA 2021). This duty element is a threshold legal question or a question of law. Id. “The duty element of negligence focuses on whether the defendant’s conduct foreseeably created a broader ‘zone of risk’that poses a general threat of harm to others.” Id. (quotations and citations omitted). The issue is not whether the harm in question was foreseeable but the “defendant’s conduct must create the risk or control the...

01 January

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The Duty of Care Element in a Negligence Action is a Question of Law

Posted by David Adelstein

in Trial Perspectives

There are four elements to proving a negligence (tort) claim: (1) a duty of care; (2) breach of that duty; (3) proximate causation; and (4) damages. Stated differently, the plaintiff must prove that the defendant owed a duty of care to the plaintiff, the defendant breached that duty, and the defendant's breach proximately caused damages to the plaintiff. Whether a duty of care exists is a question of law, meaning it is a question for the court. Cascante v. 50 State Security Service, Inc., 45 Fla. L. Weekly D8a (Fla. 3d DCA 2019). If there is no duty, there is no...