Understand how Florida’s new comparative negligence law could impact your compensation in a personal injury case.
If you’ve been hurt in an accident in Florida and think someone else is at fault, it’s crucial to understand the legal concept of negligence because it’s likely at the heart of your potential personal injury case.
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But what exactly does negligence mean, and how does it affect the outcome of a lawsuit in Florida?
In this article, we’ll walk you through the different types of negligence and explain which type is currently recognized under Florida law. You’ll also learn about the “duty of care” that everyone is expected to uphold and what happens when someone falls short of this legal expectation.
If you still have questions after reading this article, reach out to experienced Miami accident attorney Mike Redondo at Redondo Law for a free consultation to learn more about your right to compensation after an accident.
What is negligence?
Negligence is a legal term that refers to when someone doesn’t take the necessary care that a reasonable person would take under similar conditions, leading to injury or damage. It essentially revolves around a lack of attentiveness or caution that causes harm.
In legal cases, particularly in personal injury and tort law, negligence is a critical concept as it forms the basis for holding someone legally responsible for the harm they’ve caused another person.
To establish negligence in a court of law, an attorney must prove the following 4 elements:
- Duty of care. The defendant (person being sued) owed a legal duty to the plaintiff (person who is suing).
- Breach of duty. The defendant breached that duty by acting or failing to act in a certain way.
- Causation. It was the defendant’s action or inaction that actually caused the plaintiff’s injury.
- Damages. The plaintiff incurred actual damages or losses. This can include medical bills, repair or replacement costs, lost wages and other quantifiable expenses directly related to the injury.
If all these elements can be demonstrated in a case, then the person or party accused of negligence may be held liable for any resulting damages, both economic (like medical bills) and noneconomic (like emotional distress and pain and suffering).
Contributory negligence vs. comparative negligence
Different states across the U.S. have adopted various legal standards for dealing with negligence in personal injury cases, which can significantly affect the outcome of a lawsuit and the amount of compensation a plaintiff can recover.
The two primary systems used are contributory negligence and comparative negligence.
What is contributory negligence?
Contributory negligence is a legal doctrine under which a plaintiff isn’t able to collect any damages from the defendant if it can be proven that the plaintiff’s injury was even partially their own fault. Under this rule, if a plaintiff is found to be even 1% responsible for the accident that led to their injuries, they’re completely barred from receiving any compensation from the defendant.
This standard is considered strict and is only followed in a few states because it can result in harsh consequences for plaintiffs.
What is comparative negligence?
Comparative negligence is a legal doctrine used to allocate fault and damages based on the degree to which each party is found to be responsible for the harm. Under this system, a plaintiff’s compensation for an injury is reduced by a percentage equal to their share of fault in causing the damage or injury.
There are 2 types of comparative negligence: pure comparative negligence and modified comparative negligence.
What is pure comparative negligence?
In states that follow pure comparative negligence, plaintiffs can recover damages even if they are found to be 99% at fault for the incident. However, the amount of damages the plaintiff can recover is reduced by their own percentage of fault.
For instance, if a plaintiff is awarded $100,000 in damages but is found to be 60% at fault, they would only be able to recover 40% of the damages, which in this case would be $40,000.
What is modified comparative negligence?
Modified comparative negligence also reduces the amount of damages a plaintiff can recover based on their degree of fault, but with a limit that prevents them from recovering any damages if their level of fault reaches a certain threshold.
There are generally 2 types of thresholds used in states that follow modified comparative negligence:
- 50% bar. Under the 50% bar rule, a plaintiff cannot recover damages if they are found to be 50% or more at fault for the accident. In other words, they must be less at fault than the defendant to receive any compensation.
- 51% bar. Under the 51% bar rule, a plaintiff can only recover damages if they are found to be less than 51% at fault. So, if the plaintiff and defendant are equally at fault (50/50), the plaintiff can recover 50% of the damages. But if the plaintiff’s share of the fault reaches 51% or higher, they cannot recover any damages.
Each state chooses which form of comparative negligence to follow, and this choice significantly affects the outcome of personal injury cases within its jurisdiction.
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What does Florida use to determine fault?
As of March 2023, Florida now uses a modified comparative negligence approach with a 51% threshold for personal injury cases. Prior to this, the state applied pure comparative negligence when determining fault in personal injury cases.
According to Florida Statute 768.81, if an individual is found to be more than 50% responsible for their own injuries in a negligence lawsuit, they cannot recover any damages.
It’s important to note that this rule does not apply to cases of personal injury or wrongful death that result from medical negligence. In these instances, the specific provisions of medical negligence laws would govern the case.
How the change to modified comparative negligence could affect your Florida personal injury case
To help you understand how this new law could impact your personal injury case, let’s look at a hypothetical example:
Let’s say a pedestrian is jaywalking and looking at their phone when they’re hit by a car going 5 miles over the speed limit. The court determines the pedestrian is 70% at fault for jaywalking and the driver is 30% at fault because they were speeding.
Under the old pure comparative negligence rule in Florida, the pedestrian could have recovered 30% of their damages, despite being mostly at fault. But now, with Florida’s adoption of modified comparative negligence with a 51% threshold, the pedestrian could not recover any damages.
This shift means that plaintiffs who are more responsible for their injury than the defendant are now barred from recovering damages, which means that now more than ever, it’s essential to have an experienced accident attorney who can skillfully navigate the complexities of modified comparative negligence and work to minimize the percentage of fault attributed to you in court.
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How can an attorney help minimize my fault and maximize my compensation?
An attorney can be instrumental in both minimizing your fault and maximizing your compensation by employing a multifaceted approach tailored to the specifics of your case.
They start by gathering and examining evidence, such as traffic camera footage, eyewitness accounts and police reports, to construct a narrative that favors your perspective. By leveraging expert witness testimony, they can provide professional insights into the accident’s mechanics or the medical implications of your injuries, which can be persuasive in establishing a lesser degree of fault on your part.
In the negotiation phase, an attorney’s experience dealing with insurance companies can prevent you from settling for less, as they understand the tactics these companies may use to undervalue your claim.
With a comprehensive legal strategy, an attorney aims not only to reduce the percentage of fault attributed to you but also to ensure that the compensation you receive is commensurate with the damages sustained, thus providing both a shield and a sword in your legal battle.
Talk to Redondo Law about your injury claim
If you were hurt in an accident and are worried about being blamed for it, talk to a lawyer before you talk to the insurance company. How fault is divided can decide whether you recover anything at all.
Before founding Redondo Law, Mike Redondo spent six years at Holland & Knight defending major corporations in catastrophic injury and wrongful death cases. He knows how the other side builds a comparative fault argument, and how to answer it. Contact us or call (305) 908-6778 for a free case review.
References
Statutes & Constitution :View Statutes : Online Sunshine. (n.d.). Www.leg.state.fl.us. http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0768/Sections/0768.81.html
