Comparative Fault in Florida: Who Was to Blame, and by How Much

"The accident was partly your fault." Injured people hear it from insurance adjusters almost right away.

Florida juries are asked to put a percentage on that claim. The rules come from the Florida Standard Jury Instructions in Civil Cases.

What comparative fault is

When the defense says the injured person was careless too, that is a defense. The jury hears it in instruction 401.22(a):

"whether (claimant or person for whose injury or death claim is made) was [himself] [herself] negligent in (describe alleged negligence) and, if so, whether that negligence was a contributing legal cause of injury or damage to (claimant)." Fla. Std. Jury Instr. (Civ.) 401.22(a).

The defense has to raise it and prove it. Negligence means the same thing for you as for the other side. Instruction 401.4 defines it as "the failure to use reasonable care, which is the care that a reasonably careful person would use under like circumstances."

What the jury is told to do with the percentages

Instruction 401.23 tells the jury what to do if everyone shares blame:

"If, however, the greater weight of the evidence shows that both (claimant) and [(defendant)] [one or more of (defendants)] were negligent and that the negligence of each contributed as a legal cause of [loss] [injury] [or] [damage] sustained by (claimant), you should decide and write on the verdict form what percentage of the total negligence of [both] [all] parties to this action you apportion to each of them." Fla. Std. Jury Instr. (Civ.) 401.23.

The jury also does not do the math on your money. Instruction 501.4 says:

"In determining the total amount of damages, you should not make any reduction because of the negligence, if any, of (claimant) or (defendant(s)). The court in entering judgment will make any appropriate reduction(s)." Fla. Std. Jury Instr. (Civ.) 501.4.

So the jury finds the full damages and the percentages. The judge then applies the percentages.

The 50 percent rule

Florida changed this rule in 2023. The committee notes to the damages instructions explain:

"Section 9, Chapter 2023-15, Laws of Florida ("HB 837") changed Florida civil tort actions from a pure comparative fault to modified comparative fault where the plaintiff will be barred from recovery if found to be more than 50% at fault." Fla. Std. Jury Instr. (Civ.) 501.15, Note on Use 3.

The rule is written into Florida law at section 768.81(6), Florida Statutes. It generally applies to cases filed after March 24, 2023, and it does not apply to medical negligence cases.

In plain English, for cases the new law covers:

• If the jury puts you at 50 percent or less, you can still recover. Your award is reduced by your share.
• If the jury puts you at more than 50 percent, you recover nothing.

That makes the fault fight the most important fight in many cases. A few percentage points can decide whether a family gets anything.

Blame on people who are not in the case

The defense can also point at someone who is not a party, such as another driver or a contractor. Florida calls this a "Fabre" issue. The jury can be asked to assign a percentage to that outside person too. The defense generally has to raise that person's fault in its pleadings, identify the person if known, and prove that fault at trial.

How it is pleaded

Comparative fault is an affirmative defense. It appears in the defendant's answer, not in your complaint. Your complaint tells what the defendant did. Your lawyer then answers the defense with the evidence: the crash report, video, witnesses, and the scene.

What you need to prove

• The defendant's negligence, and that it was a legal cause of your harm.
• Your damages.
• Against the defense: that the greater weight of the evidence does not show you were careless, or that your carelessness was small next to theirs.

Common defense arguments

• No seat belt, or a late brake. Even a small share of blame helps them.
• Phone use, speed, or looking away.
• "You should have seen the hazard." Common in falls.
• "Someone else is to blame." The empty chair for the non-party.
• Statements made early, to an adjuster or in an apology.

What to do now

1. Do not guess about fault at the scene or on the phone with an insurer.
2. Do not say "I'm fine" or "it was my fault."
3. Save video fast. Stores and businesses overwrite it.
4. Get witness names and numbers.
5. Call a lawyer before you give a recorded statement.

Talk to us

Free consultation. Call (305) 209-0384. Answered 24/7. Se habla español.

This page is general information, not legal advice.