Existence of “Duty” in Negligence Action is Question of Law

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In a negligence action, the issue of whether a duty applies is a question of law.

February 6, 2019
David Adelstein - Florida Construction Legal Updates

In a negligence action, the issue of whether a duty applies is a question of law. See Limones v. School Dist. of Lee County, 161 So.3d 384, 389 (Fla. 2015) (“[T]he existence of a duty is a legal question because duty is the standard to which the jury compares the conduct of the defendant.”); McCain v. Florida Power Corp., 593 So.2d 500, 502 (Fla. 1992) (“Since duty is a question of law, an appellate court obviously could reverse based on its purely legal conclusion that no such duty existed.”). Thus, the trial court determines, as a matter of law, whether a legal duty of care applies in a negligence action.

Florida law recognizes the following four sources of duty: (1) statutes or regulations; (2) common law interpretations of those statutes or regulations; (3) other sources in the common law; and (4) the general facts of the case.
See id.

Oftentimes it is the fourth source – the general facts of the case – that comes into play to determine whether the defendant owed the plaintiff a duty of care.

Mr. Adelstein may be contacted at dma@kirwinnorris.com



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