401.4 NEGLIGENCE

Negligence is the failure to use reasonable care, which is the care that a reasonably careful person would use under like circumstances. Negligence is doing something that a reasonably careful person would not do under like circumstances or failing to do something that a reasonably careful person would do under like circumstances.

NOTES ON USE FOR 401.4

1. No inference of negligence from mere fact of accident. The committee recommends that no instruction be given to the effect that “negligence may not be inferred from the mere happening of an accident alone.” Belden v. Lynch, 126 So.2d 578, 581 (Fla. 2d DCA 1961). Such an instruction is argumentative and negative.

2. Unavoidable accident. The committee recommends that no instruction be given on the subject of “unavoidable accident,” this being a more appropriate subject for argument by counsel.

3. Presumption of reasonable care; right to assume others will exercise. The committee recommends that no instruction be given to the effect that one is presumed to have exercised reasonable care for one’s own safety or for the safety of others or that one has the right to assume others will exercise reasonable care. Whether a person is entitled so to assume and to act on that assumption ultimately depends on whether a reasonably careful person in the same circumstances would so assume and act. See 3 Fla. Jur. Automobiles §93 at 562; 23 Fla. Jur. Negligence §79 at 319, also §§77 and 78; 65A C.J.S. Negligence §15 at 592, §118 at 30; 60 C.J.S. Motor Vehicles §249 at 610; 61 C.J.S. Motor Vehicles §459 at 13.

4. Sudden Emergency. The committee recommends that no instruction be given on the subject of sudden emergency. In the circumstances of an emergency, as in “ordinary circumstances,” the applicable standard of care is reasonable care under the circumstances.

5. Traffic. The committee recommends that no instruction be given on the following subjects: (a) duty to keep lookout; (b) duty to inspect vehicle or to maintain vehicle in safe condition; or (c) the supposed “range of vision” rule. Negligence is properly and completely defined as the failure to use that degree of care which a reasonable person would use under like circumstances.

6. Railroads. The committee recommends that no instruction be given on the following subjects: (a) the supposed duty of a pedestrian or motorist to “yield the right of way” to an approaching train; (b) reciprocal duties at railroad crossings; or (c) the “standing train” doctrine. Negligence is properly and completely defined as the failure to use that degree of care which a reasonable person would use under like circumstances.