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New Florida Bill Takes Aim At Comparative Fault


For decades Florida has operated under a system of torts that works on pure comparative negligence. The system is similar to California and New York. A plaintiff who is 99% at fault for an accident can still recover 1% damages from the defendant. However, these lawsuits are really never filed because a jury that found a defendant 99% at fault would likely find them 100% at fault. Other states operate on a system of contributory negligence. In these states, it’s possible to block recovery for a plaintiff who is more than 51% or 50% at fault, depending on the state. Essentially, a finding that a plaintiff was 51% at fault or more would bar their recovery of any damages.

The idea is that it would prevent the majority of “bad” lawsuits from moving forward. For decades, Florida has been named a “judicial hellhole” on the basis of the difficulty by which a defendant must get a case dismissed. The new legislation hopes to make it easier for insurers and businesses to fight lawsuits in which fault is clouded and avoid the costs of litigation.

The efforts come as reports that the insurance market in Florida and Louisiana is collapsing. Both states have been hit hard by hurricanes and both states are believed to be the recipients of future disaster thanks to climate change.

What does this mean for plaintiffs? 

If the legislation passes, Florida would become one of a number of states that operate on a hybrid contributory fault system. These states set a bar for liability at 50% and essentially prevent payment to plaintiffs who are more at fault than the companies or individuals they are suing. Such a law generally bothers no one beyond personal injury attorneys because the public is under the impression that fault is atomized and if one person is at fault then the other person is not. Counterintuitively, the law operates differently and states that multiple parties can contribute fault and one of those parties is the plaintiff.

Example test case 

I’m doing a bit of day drinking and my 40 just ran out of gas. I wander down to the convenience store, but on my way, I step into traffic and am hit by a bus. I sue because I’m injured, but the bus company claims the accident was my fault, because I was drunk. Meanwhile, it isn’t clear that the bus driver did not have enough time to stop for me. Now what? The matter is reviewed by the court. There is a presumption in summary dismissal that statements of fact will tilt the way of the plaintiff. Since it’s unclear, the lawsuit survives and the plaintiffs can continue to pursue the matter. If it is clear that the bus driver did not have enough reaction time, then the lawsuit would likely be dismissed because the bar to get through is higher.

Prior, it was very difficult to get a lawsuit dismissed if any potential argument could be made by the plaintiff.

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 Payer Law represents the interests of Miami residents who have been injured by negligent or malicious individuals or companies. Call our Miami personal injury lawyers today to schedule a free consultation and learn more about our services.


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