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Comparative Negligence


Personal Injury

Understanding the concept of negligence, for purposes of assessing liability and damages, can be a difficult process because most individuals are unfamiliar with complicated legal terms. In addition, further confusion can arise due the variations in law from one state to another. The Auto Collision Attorneys of the Law Office of Alba & Yochim P.A. take note of the difficulty that many have in understanding and interpreting principles of contributory fault and comparative negligence, and more importantly, applying such principles to your own unique scenario.

Our compassionate, yet experienced and aggressive accident and injury team, want you to know, that we are here to help you through this difficult time. We offer the following information to the residents of our community.

Just as Florida’s auto coverage requirements vary from other jurisdictions, so does the manner in which liability is assessed in negligence actions. In general, the law of a state will fall under one of three categories, (1) pure comparative negligence; (2) pure contributory negligence; or (3) a combination, variation, or modified form of comparative and contributory negligence.

Florida Statute §768.81(2), Comparative fault, provides:

EFFECT OF CONTRIBUTORY FAULT.—In a negligence action, contributory fault chargeable to the claimant diminishes proportionately the amount awarded as economic and noneconomic damages for an injury attributable to the claimant’s contributory fault, but does not bar recovery.

Given that the terms ‘comparative negligence’ and ‘comparative fault’ are used interchangeably, just as ‘contributory fault’ and ‘contributory negligence’ are, it is easy to see why many may have confusion in interpreting Florida law. As with many other states, the distinction is not always clear. Perhaps due to its reference to ‘contributory fault’ within its ‘comparative negligence’ statute, Florida is one of these states, where the language of its law is often confused.

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Without the necessity of going to into an extended historical analysis of the development of negligence law in our jurisdiction, and its comparison to others, the more important consideration is the interpretation of negligence law as it currently stands in Florida.  Accordingly, the most important thing to know is that Florida adheres to principles of what is currently recognized as pure comparative negligence.

Pure comparative negligence, also referred to as comparative fault, put simply, means that the percentage of fault of each party will be taken into consideration, and any damages awarded to an injured will be reduced by that party’s percentage of fault. For example, if an injured party is found to be 25% at fault in an accident, and their damages are assessed at $100,000, the amount of compensation awarded would be reduced to $75,000, in order to account for the percentage of fault attributed to the injured. This is referred to as ‘apportionment of damages.’

In addition, it is important to understand that comparative fault will not necessarily apply in every circumstance. For example, if an auto negligence action is based upon an intentional tort, than comparative fault will not apply. This concept was explained in Merrill Crossings Associates v. McDonald, 705 So. 2d 560 (Fla. 1997), where the court stated:

“[T]he language excluding actions “based on an intentional tort” from the statute gives effect to a public policy that negligent tortfeasors…should not be permitted to reduce their liability by shifting it to another tortfeasor whose intentional criminal conduct was a foreseeable result of their negligence (citations omitted).”

[Note: The term ‘tortfeasor’ means, generally, the persons responsible for causing the injury or accident]

While the law in Florida pertaining to negligence is premised on the notion that damages shall be apportioned in accordance which each party’s percentage of fault, there are other circumstances in which courts seem to contradict this basic underlying principle of comparative fault. For example, where two successive accidents occur, and the jury is unable to determine which tortfeasor caused which damages, the injured may seek recovery for losses against either tortfeasor.

Another example of the apparent inconsistency of comparative fault law in Florida is where an initial tortfeasor is required to compensate for damages for subsequent injuries extending from the accident, unless and until the initial tortfeasor elects to assert a claim for subrogation. For example, where the victim of a car accident seeks treatment for their injuries, and a physician causes further injury, the negligent motorist can be held liable for both injuries.

Likewise, if the initial tortfeasor was a physician, and the victim sustains further injury in an auto accident, the physician can be held liable for subsequent injuries. However, the initial or subsequent injury need not be caused by a physician, or any specific individual in particular. Rather, the focal consideration is whether or not the subsequent injury would not have otherwise occurred absent the initial accident or injury.

With several decades of combined practice experience as Auto Collision Attorneys, the Law Office of Alba & Yochim P.A. possesses the knowledge and proficiency necessary to interpret and apply all relevant provisions of Florida law. Our dedicated injury team believe that following an accident, your primary concern should be recovering from your injuries or coping with your grief— Let us handle the rest!