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Comparative Negligence

October 18, 2017

In Florida, the amount of recovery in a personal injury lawsuit is determined by whether you contributed to your own accident.  Some states use comparative negligence, and Florida had adopted the comparative negligence rule.  Comparative negligence allows a judge or jury to apportion fault.  In some states, even if you are only slightly responsible for your own accident, you are barred from recovery.  Florida’s comparative negligence rule is codified under section 768.81 and is an important consideration when evaluating the facts of your case.  Bryn W. Crews, an Orlando personal injury attorney, have been fighting on behalf of plaintiffs for many years.  To understand the merits of your case, and whether the comparative negligence rule will limit your recovery, call today for an evaluation of your case.

Florida allows a contributorily negligent plaintiff to recover a percentage of damages by weighing the plaintiff’s negligence against the defendant’s, and reducing the plaintiff’s recovery accordingly.  For example, an inattentive driver, or a careless pedestrian, will not recovery 100% of her damages if a judge or jury finds them partially at fault.  Florida is also known as a pure comparative negligence state.  This theory of recovery allows a plaintiff that is 95% at fault to recover against the defendant for 5% of her damages.  Interestingly, Florida was the first state to adopt pure comparative negligence through a court of last resort, without resorting to the legislature.

Comparative negligence is an important development in the law.  Under contributory negligence, a plaintiff may have a duty to remove himself from danger.  Other special rules apply under contributory negligence such as a duty to mitigate, the last clear chance rule, and a bar from recovery if he violated a statute during the course of the accident.  Some exceptions apply in Florida under comparative negligence.

Florida statute 768.36 Alcohol or drug defense, dictates that “a plaintiff may not recover any damages for loss or injury to his or her person or property if the trier of fact finds that, at the time the plaintiff was injured” he or she was “under the influence of any alcoholic beverage or drug to the extent that the plaintiff’s normal faculties were impaired or the plaintiff had a blood or breath alcohol level of 0.08 percent or higher.”  This is not a hard and fast rule, as it is qualified by subsection (2)(b), which states, this code section only bars recover if “the plaintiff was more than 50 percent at fault for his or her own harm.”  So a plaintiff that is under the influence, but only contributes 40% to his injury will still be able to recover 60% of his damages.

The Florida Supreme Court provides model jury instructions.  Model Charge No. 1, addresses comparative negligence in automobile collisions and reads as follows:

If, however, the greater weight of the evidence shows that both John Doe and Rachel Rowe were negligent and that the negligence of each contributed as a legal cause of loss, injury, or damage sustained by John Doe, you should decide and write on the verdict form, which I will give you at the end of the case, what percentage of the total negligence of both parties to this action was caused by each of them.

These jury instructions, Florida’s comparative fault statute, and its exceptions demonstrate the importance of contacting a personal injury attorney before seeking recovery.  Bryan W. Crews handles personal injury cases throughout Orlando and is ready to help you or a family member.  Each case is different, and results are not guaranteed.  The attorneys at Bryan W. Crews will gather the facts, work towards a settlement, or pursue a lawsuit on your behalf.

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