Reviewed by Lorraine E. Robinson, Board Certified in Civil Trial Law by The Florida BarUpdated
A tort claim is a legal filing where one person alleges that another person has caused them harm. Tort law is about relieving one person’s damages or injuries caused by another person’s actions or negligence. The primary aim is to compensate the victim and ensure the responsible party is held accountable. In Florida, tort claims include most personal injury cases, from car accidents to medical malpractice, and a special set of rules applies when the party at fault is a government agency.
Understanding more about tort claims can help you be better prepared to handle your own personal injury case with the help of an experienced legal team.
Torts can generally be divided into three categories: intentional torts, negligence, and strict liability torts.
Intentional Torts
These occur when someone deliberately causes harm to another person. Examples include assault, battery, and defamation. In these cases, the victim must prove that the person intended to commit the act. Learn more about intentional torts.
Negligence Torts
These are the most common tort claims, where someone’s failure to act with reasonable care harms another person. This usually involves car accidents, slip and fall accidents, or medical malpractice. To succeed in a negligence claim, you must prove duty, breach, causation, and damages. See our guide to negligence.
Strict Liability Torts
These occur when a party is held liable without fault. Typically applied in cases involving defective products or inherently dangerous activities, strict liability means that it doesn’t matter how careful the defendant was; they can still be held accountable. Learn more about strict liability.
The Elements of a Negligence Claim
Understanding the components of a tort claim is essential for anyone considering filing one. Let’s take a closer look at each crucial element to help you grasp what they mean and why they matter.
Duty
The concept of “duty” refers to the legal obligation the defendant (the person being accused) owed to the claimant (the person making the claim). This obligation can vary depending on the context. For example, drivers must follow traffic laws and drive safely to prevent accidents. Doctors must provide a standard level of care to their patients. It can become the basis for a tort claim if someone fails to meet their duty. For a successful claim, it must be proven that the defendant was responsible for the claimant in that specific situation.
Breach
Once duty is established, the next step is to demonstrate that there was a “breach” of this duty. A breach occurs when the defendant fails to fulfill their duty through actions or lack of action. For instance, if a store owner does not fix a broken floor in their shop and a customer trips and falls, that may breach the store owner’s duty to maintain a safe environment for patrons. It is crucial to show precisely how the breach occurred and deviated from what would be considered reasonable or lawful behavior. Read more about what breach of duty means.
Causation
Causation is about connecting the dots between the breach of duty and the harm suffered by the claimant. This component seeks to establish that the breach directly caused the injury or damage. There are two aspects to consider: factual causation and legal causation. Factual causation involves determining whether the harm would have occurred “but for” the breach.
Legal causation, also known as “proximate cause,” determines if the harm was a foreseeable consequence of the breach. It isn’t easy to hold the defendant legally accountable without establishing causation.
Damages
Finally, the claimant must prove “damages,” the harm or injury from the breach. Damages may be physical, emotional, or financial. They could include injuries requiring medical treatment, psychological trauma, or economic losses due to the inability to work.
These damages need to be documented and quantified to ensure they are compensable. This is often done through medical bills, pay stubs, receipts, and expert testimony. Without damages, even if all other components are proven, a tort claim may not succeed because there is no harm to compensate for.
Florida Rules That Affect Every Tort Claim
- Filing deadline. For most negligence claims arising on or after March 24, 2023, Florida gives you two years to file a lawsuit. Other claims have different deadlines. Many intentional tort claims, such as assault and battery, have four years, while medical malpractice and defamation claims have two.
- Shared fault. Florida follows modified comparative negligence. If you are found more than 50% at fault, you cannot recover. At 50% or less, your damages are reduced by your share of fault. Medical malpractice cases are an exception to the 50% bar.
- Car accidents and PIP. Because Florida is a no-fault state, a car accident victim generally must meet the serious injury threshold before bringing a tort claim for pain and suffering against the at-fault driver.
Filing a Tort Claim Against a Florida Government Agency
You can bring a tort claim against the State of Florida, a county, a city, or another public agency, but Florida Statute §768.28 sets special rules. Florida has waived its sovereign immunity for these claims only up to set limits, and you must give written notice before you can file suit.
That matters in Clearwater, where injuries can involve a PSTA bus, a city vehicle, a county road defect, or a public facility. Under §768.28:
- Notice: You must present your claim in writing to the responsible agency within three years after the claim arises, or within two years for a wrongful death claim. Claims against the state or a state agency must also be sent to the Florida Department of Financial Services. Claims against a city or county do not require that second notice.
- Waiting period: You cannot file suit until the agency denies the claim in writing or six months pass without a final decision. For medical malpractice claims, the waiting period is 90 days.
- Damage caps: A government agency generally cannot pay more than $200,000 to one person or $300,000 for all claims from the same incident. Punitive damages and prejudgment interest are not available. A court can enter a larger judgment, but the amount above the caps can usually be collected only if the Florida Legislature passes a claim bill.
- Filing deadline: Most negligence claims against a government agency must be filed within four years, and wrongful death claims within two years.
Missing a notice deadline can end a claim against a public agency before it starts, so talk to an attorney as soon as possible if a government employee or property was involved.
Filing a Tort Claim: The Step-by-Step Process
Filing a tort claim involves several steps, which is crucial for success. Here’s a more detailed look at what this process entails:
Consultation with a Lawyer
The first step is consulting with a qualified personal injury lawyer. This initial meeting is vital for evaluating your situation’s specifics and determining your claim’s potential viability. A lawyer will ask about the details of the incident, any evidence you may have, and the impact of the injury on your life.
Investigation
Your lawyer will begin an in-depth investigation following the consultation to gather evidence supporting your claim. This may include collecting police reports, medical records, eyewitness statements, and photographic evidence of the scene or injuries.
Filing the Claim
Once the investigation is complete and sufficient evidence is gathered, your lawyer will prepare and file the claim. The complaint is then filed with the appropriate court or submitted to the relevant insurance company. This formal filing initiates the legal process and notifies the defendant of the claim against them. For the difference between the two paths, see claim vs. lawsuit.
Negotiation and Settlement
After filing the claim, there is often an opportunity for negotiation to reach a settlement without going to trial. During this phase, your lawyer will negotiate with the defendant’s legal team or insurance company to secure a fair settlement that compensates you for your injuries and losses.
Trial
The case may proceed to trial if a settlement cannot be reached. In a trial, both sides will present their evidence and arguments to a judge or jury, who will determine whether the defendant is liable and what compensation, if any, should be awarded.
Compensation in Tort Claims: What You Need to Know
When a tort claim is successful, the court may award compensation to cover various damages. Here’s a closer look at what these may include:
Medical Expenses
Compensation for medical expenses includes the cost of medical treatment you need because of the injury. This covers doctor visits, hospital stays, surgeries, medications, physical therapy, and any future medical care related to the injury. Ensuring all medical expenses are documented is crucial for obtaining total compensation.
Lost Wages
If the injury caused you to miss work, you could be entitled to compensation for lost wages. This involves calculating the income you lost during your recovery and may also cover future lost earnings if the injury affects your ability to work long-term. Pay stubs, tax returns, and employment records are typical documentation needed for these damages.
Pain and Suffering
These damages compensate for the physical pain and emotional distress caused by the injury. Pain and suffering are considered “non-economic” damages, as they do not have a direct financial cost. Courts often use various methods to calculate these damages, taking the severity of the injury and its impact on your quality of life into account.
Frequently Asked Questions
Is a personal injury case a tort claim?
Yes. Most personal injury cases, including car accidents, slip and falls, and medical malpractice, are negligence-based tort claims.
Can I sue the city or county in Florida?
Yes, within limits. Florida Statute §768.28 allows tort claims against government agencies, but you must give written notice before filing suit, and the amount you can collect is generally capped at $200,000 per person and $300,000 per incident.
How long do I have to file a tort claim in Florida?
For most negligence claims from accidents on or after March 24, 2023, two years. Claims against a government agency follow different rules: written notice is generally due within three years, and suit must usually be filed within four years. Other types of claims have their own deadlines, so talk to an attorney early.
A Personal Injury Lawyer Can Help With Your Tort Claim
Understanding tort claims can be intricate, but knowing the basics can help demystify the process. If you believe you have a tort claim, seeking guidance from knowledgeable and experienced attorneys is essential. They can handle the complex parts of your case and work to secure the compensation and justice you deserve. At Perenich, Caulfield, Avril & Noyes, two of our attorneys are Board Certified in Civil Trial Law by The Florida Bar.
Contact the Pinellas County Personal Injury Law Firm Of Perenich, Caulfield, Avril & Noyes Personal Injury Lawyers for Help
Perenich, Caulfield, Avril & Noyes has handled tort claims for injured people in Clearwater and Tampa Bay since 1955. For more information, please contact the Clearwater and St. Petersburg personal injury law firm of Perenich, Caulfield, Avril & Noyes Personal Injury Lawyers at the nearest location to schedule a free consultation today.
We serve Pinellas County and its surrounding areas:
Perenich, Caulfield, Avril & Noyes Personal Injury Lawyers – Clearwater
1875 N Belcher Rd. STE 201,
Clearwater, FL 33765
(727) 591-3354
Perenich, Caulfield, Avril & Noyes Personal Injury Lawyers – St. Petersburg
2560 1st Ave S,
St. Petersburg, FL 33712
(727) 591-3354
