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Understanding comparative fault in Florida

Most residents of the Tampa area understand that a person who causes an accident that injures another person is liable for that person’s injuries. But what happens if the claimant is also found to have engaged in conduct that caused the accident? The answer in Florida (and many other states) is called “comparative fault.”

In order to understand how comparative fault works, it is first necessary to understand the legal rule that it has replaced. When the English settled the eastern seaboard in the 17th and 18th centuries, they brought with them many legal rules from the British legal system. One of those rules was intended to resolve the potential deadlock if a person claiming damages based upon another person’s negligence was also partially at fault. The rule was called “contributory negligence,” and its effect was to deny the plaintiff any recovery, even if the plaintiff’s share of fault was minimal.

As the Industrial Ages settled on America, many state legislatures found this rule to be extremely unfair. For example, a person who may have been merely 5% negligent should not lose to a person who was 95% at fault, but that was the effect of the comparative negligence rule. Early in the twentieth century, state legislatures began to reexamine this rule and to devise alternative. Florida took a bit longer, but in 1975 it passed a statute that effectively eliminated contributory negligence as a complete bar to a plaintiff’s claim. The courts have tinkered with this outcome, and today, the rule of comparative fault governs all personal injury cases.

In its current version, the statute that defines comparative fault reads as follows:

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.

In practice the rule requires the jury to allocate fault among all parties who may share fault, including the plaintiff. Once the jury has returned its verdict with allocations of fault, the court will issue an order for judgment that reflects the fault percentages determined by the jury.

The virtue of the comparative fault rule is that it distributes fault and liability for damages according to each party’s degree of negligence. The only restriction remaining is that the plaintiff must prove by a preponderance of the evidence that the defendants share a collectively greater percentage of fault than the plaintiff. For example, the jury might find the plaintiff to be 20% at fault, each of two defendants to be 25% at fault, and a third defendant to be 30% at fault. Because the defendants’ aggregate share of fault (80%) exceeds that of the plaintiff, the defendants will each be liable to the plaintiff for damages reduced by the plaintiff’s percentage, i.e. 64%. The calculation works as follows:

Total Damages: 100%
Plaintiff’s share: 20%
Plaintiff’s net share: 80%

The plaintiff’s net share is then divided amount the three defendants according their allocation of fault: Two defendants will each be liable for 25/80 of the total damages, and one defendant will be liable for 30/80 of the damages.

Many personal injury actions involve several defendants, and sorting out the application of the comparative fault law may frequently make the assistance of a qualified attorney mandatory.


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