In personal injury law, liability is the financial responsibility that someone bears for an injury accident. Individuals and entities go to great lengths to avoid or limit their personal injury liability. Once an accident occurs, the parties will use the legal rules of liability to negotiate compensation for the accident.

What Mental States Generate Liability?

What Mental States Generate Liability?

Most personal injury liability claims involve some sort of misconduct by the defendant. It is usually (but not always) true that you must prove the defendant acted from a culpable mental state, and committed a culpable act or omission, to win a personal injury claim. 


Negligence is a legal term that means something like carelessness. Running a stop sign might be negligent, for example. Most personal injury claims are based on negligence

Intentional Misconduct

Intentional misconduct occurs when someone deliberately harms you. An example might be a road rage incident, in which someone intentionally causes your car to crash. Another example might be a physical assault incident to a robbery. Although intentional misconduct can serve as the basis for a personal injury claim, a common problem is that most insurance policies do not cover injuries arising from intentional misconduct. 

Strict Liability

Some personal injury claims are based on a legal concept known as strict liability. Strict liability means that the victim does not have to prove that the defendant was at fault to win their claim. Strict liability claims include:

  • A product liability claim against the manufacturer of an unreasonably dangerous product;
  • A workers’ compensation claim against your employer;
  • Claims against the employer of a defendant who was acting within the scope of employment at the time of the accident; and
  • Claims against a dog owner for dog bite injuries.

Naturally, all claims against insurance policies are strict liability claims in the sense that the insurance company does not have to commit misconduct to face liability.

Types of Harm for Which a Defendant Might Be Liable

Florida personal injury law allows you to seek compensation for all of your losses, both economic and non-economic. Following are the major categories of losses that Florida will allow you to seek compensation for.

Physical Injury

Physical injury means anything that you might seek medical treatment for. Your medical bills and your doctor’s medical records are evidence of your physical injury. The opposing party might question your physical injury if you fail to seek medical attention immediately after your injury. 

Some types of injury, such as whiplash, are difficult to prove. Another difficulty in proving physical injury is when your medical expenses are ongoing at the time you see compensation. You might even require continuing medical care for the rest of your life. In such cases, it is important to hire a personal injury lawyer to help calculate the true value of your personal injury claim.

Pain and Suffering

Pain and suffering damages refer to compensation for physical pain. Suppose, for example, that you are involved in an auto accident and you suffer broken bones and a burn injury. You will probably receive more pain and suffering damages for exactly the same injuries if you are conscious throughout the recovery process than if you were comatose during at least some of your recovery.

Pain and suffering damages can amount to well over 50% of the total value of a personal injury claim. Some types of injuries, such as burn injuries, generate particularly high pain and suffering damages because of the intense pain that they cause.

Emotional Distress

Like pain and suffering damages, emotional distress damages are compensation for intangible damages. Pain and suffering damages compensate you for physical distress, while emotional distress damages compensate you for psychological distress. 

A young woman who suffers mental anguish because of disfiguring facial scarring suffers from emotional distress. Another example is a child dog bite victim who develops nightmares and a lifelong fear of dogs. Both of these victims might receive emotional distress damages.

Punitive Damages

Damages for physical injury, pain and suffering, and emotional distress are all forms of compensatory damages. Punitive damages, however, are not compensatory damages. Courts rarely award punitive damages, even to victorious claimants. 

Florida limits punitive damages to $500,000 or triple the amount of compensatory damages, whichever is higher. Courts award punitive damages in addition to compensatory damages such as medical expenses and pain and suffering.

Comparative Fault

Suppose someone is injured in an accident that was partly their fault. If the victim and the defendant share blame for the accident, how should a court compensate the victim, if at all? If the court still compensates the victim, how much compensation should it award? 

Florida operates a “modified comparative negligence” system with a 51% bar to recovery. The court will assign a percentage of fault to each party (35% to the victim and 65% to the defendant, for example). Each party will lose their claim of damages in exact proportion to their own percentage of fault. However, the victim would be barred from recovering damages under Florida law if they share the majority of the blame.


A victim who was 35% responsible for an accident, for example, would lose 35% of their claim for damages (from $100,000 down to $65,000). Likewise, if the defendant suffered damages of their own, they would lose 65% of their own damages (from $100,000 down to $35,000, for example). If the victim were assigned 51% or more responsibility instead, they would not be able to recover compensation.

Almost any personal injury lawyer will offer a free initial telephone consultation where they will ask questions to evaluate the strength of your claim. A 15-minute conversation with a personal injury lawyer can clarify the nature and value of your claim, allowing you to determine what you should do next. Contact us today to discuss your case.