Many personal injury cases do not involve situations where one party is entirely at fault. Many cases, instead, involve situations where both sides may bear some responsibility. This is why, like in many other states, a Florida injury victim may still recover damages even if they were partially to blame for an accident. Recent changes in our legal system, however, have made this more difficult. We are writing this article to discuss the concept of comparative fault and how these recent changes impact Plaintiffs.
Florida is a Modified Comparative Negligence State
The Concept of Comparative Fault
Comparative fault is a legal doctrine that allows the victim of an injury to recover damages even if they were partially at fault for the incident. The jury will decide the amount of fault, if any, to be assigned to the victim. The victim’s compensation will then be reduced by their share of the fault. So, for example, if a victim suffers $100,000 in damages and the jury determines that they were also 40% responsible for the accident, then the victim will recover $60,000 ($100k – 40%). Defense claims of comparative fault often arise in car accident cases, trucking accidents, premises liability cases, as well as other types of matters. Some states follow the concept of “pure comparative fault,” while others have adopted the standard of “modified comparative fault.” Florida switched from the former to the latter in 2023.
Florida’s Prior Standard of “Pure” Comparative Fault
Florida was a “pure” comparative fault state prior to 2023. Under this standard, a victim could recover damages regardless of the extent to which they were at fault for the accident. As an example, suppose that the driver of a car was hit by a semi-truck after the driver ran through a red light. While the truck had the right of way, the trucker was found to be speeding. The jury finds that the driver of the car was 90% responsible for the accident and that they suffered $1m in damages due to serious injuries. The victim would still be permitted to recover $100,000 ($1m – 90%). This legal framework was very friendly to Plaintiffs for obvious reasons. Florida was in the minority of states when it followed this system as most states have adopted the concept of “modified” comparative fault.
Florida Adopted the “Modified” Comparative Fault Standard in 2023
Governor Desantis signed HB 837 into law in the first half of 2023. This bill changed Florida law and our state now follows the concept of modified comparative fault. A victim may still recover damages even if they were partially liable for the accident. An individual will be barred from recovery, however, if they are found to have been fifty-one percent or more responsible for the accident. This means that under the example above where the driver of a car was found to be 90% responsible for the wreck, the driver of the car would receive nothing. This change in our state’s law makes it more difficult to receive compensation after an accident, and it makes the hiring of an experienced attorney more imperative.
While this change in the law clearly favors defendants, it should be noted that it is not as favorable to the defendants as the comparative fault laws in some other states. There are other jurisdictions in which a victim will be prohibited from recovering if they are found to be 50% responsible for the accident as opposed to Florida’s 50%. While this may not seem like a consequential difference, there are many situations in which a jury will simply divide liability fifty-fifty. If this were to occur, a victim could still recover damages in Florida while they would not be able to in many other jurisdictions.
The Change in Florida Law May Make the Defense Less Likely to Settle
A defendant will often attempt to claim that a victim was actually at fault for the accident. Under Florida’s prior legal framework, however, such arguments typically went to how much compensation a victim should receive. Given that our state’s new legal framework increases the chances of a victim receiving no compensation, a defendant now likely has greater incentive to not settle the case at all. This makes hiring an attorney who is willing and able to litigate your case all the more important.
It is Important to Hire an Experienced Personal Injury Attorney as Decisions Regarding Comparative Fault are Subjective
As mentioned above, the allocation of fault in a personal injury case is left to the jury. Given that jurors are human beings, each with their own opinions, it is common for different jurors to see facts in different ways and the allocation of fault can be highly subjective. This means that a set of facts may be presented to one jury who will then find that a defendant bears the responsibility of the fault. Another jury may look at the same set of facts and determine that the Plaintiff bears the responsibility of the fault. This means that your case must be presented to the jury in a way that directly addresses the issue and explains why the accident should be considered the fault of the other party.
Retaining a personal injury lawyer with trial experience is important to the handling of your case. Counsel with experience in such matters will be familiar with the process of presenting facts to the jury in a way that deals with arguments over comparative fault. Not all personal injury firms litigate a case from beginning to end. Furthermore, there are many attorneys who take personal injury cases, but such matters are not the focus of their practice. Retaining a lawyer who specifically focuses on such matters may help your case.
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