Comparative Fault in Florida Personal Injury Lawsuits

Florida Title XLV TORTS, Florida Chapter 768, Statute 768.81(see below) talks about comparative fault. We have listed the statute below, but will highlight some of the important and interesting portions of the statute here as it relates to personal injury claim.  Many personal injury accident victims call our office and ask us what damages they can recover if they've been injured through the negligence of another. Florida Statute 768.81 defines Economic damages as: past lost income reduced to present value. (Economists may be used in a personal injury trial to explain present value to the jury; medical and funeral expenses; lost support and services; and any other economic loss which would not have occurred but for the injury giving rise to the cause of action. 

In any personal lawsuit where the defendant argues that the injured party was also careless, any contributory fault chargeable to the injured person reduces in proportion the money given as economic and noneconomic damages for an injury attributable to the person's contributory fault, but does not prevent recovery. This basically means that even if a injured person was careless, they can still recover money. In a personal injury lawsuit, the court enters a judgment (which comes after the verdict), against each defendant based on the amount that each party was negligent and not on the basis on joint and several liability. 

If a negligent party is a personal injury lawsuit wants to blame another negligent party, he must plead the fault of the negligent person or (business) who isn't in the lawsuit. If the defendant knows that name of the nonparty, he must name them in his affirmative defense.  If he does not know the name, the defendant can describe the other party in as much detail as possible. 

Florida Title XLV TORTS, Florida Chapter 768, Statute 768.81

(1) DEFINITION.--As used in this section, "economic damages" means past lost income and future lost income reduced to present value; medical and funeral expenses; lost support and services; replacement value of lost personal property; loss of appraised fair market value of real property; costs of construction repairs, including labor, overhead, and profit; and any other economic loss which would not have occurred but for the injury giving rise to the cause of action.

(2) EFFECT OF CONTRIBUTORY FAULT.--In an action to which this section applies, any 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.

(3) APPORTIONMENT OF DAMAGES.--In cases to which this section applies, the court shall enter judgment against each party liable on the basis of such party's percentage of fault and not on the basis of the doctrine of joint and several liability.

(a) In order to allocate any or all fault to a nonparty, a defendant must affirmatively plead the fault of a nonparty and, absent a showing of good cause, identify the nonparty, if known, or describe the nonparty as specifically as practicable, either by motion or in the initial responsive pleading when defenses are first presented, subject to amendment any time before trial in accordance with the Florida Rules of Civil Procedure.

(b) In order to allocate any or all fault to a nonparty and include the named or unnamed nonparty on the verdict form for purposes of apportioning damages, a defendant must prove at trial, by a preponderance of the evidence, the fault of the nonparty in causing the plaintiff's injuries.

(4) APPLICABILITY.--

(a) This section applies to negligence cases. For purposes of this section, "negligence cases" includes, but is not limited to, civil actions for damages based upon theories of negligence, strict liability, products liability, professional malpractice whether couched in terms of contract or tort, or breach of warranty and like theories. In determining whether a case falls within the term "negligence cases," the court shall look to the substance of the action and not the conclusory terms used by the parties.

(b) This section does not apply to any action brought by any person to recover actual economic damages resulting from pollution, to any action based upon an intentional tort, or to any cause of action as to which application of the doctrine of joint and several liability is specifically provided by chapter 403, chapter 498, ¹chapter 517, ¹chapter 542, or ¹chapter 895.