Comparative and Contributory Negligence in Florida

On Behalf of | Jan 14, 2019 | Personal Injury

What happens when more than one party is negligent in a FL car crash or personal injury accident?

There is a basic rule in United States personal injury law: the person whose negligence causes an accident should have to pay for the costs of the accident.

But what happens when more than one party is negligent? For example, what if two people are in a high-speed, rear-end car crash because one driver was speeding while the other had a defective tail light?

Different states answer that question differently. Some use a system called contributory negligence while others use a system called comparative negligence.

With either system, each state is free to carve out its own variations on the rules. As a result, the money you’re entitled to after an accident (if any) can vary significantly from one jurisdiction to the next.

Below, we explain the basic premise of both systems, then we explain how it works here in the state of Florida.

What Is Contributory Negligence?

In a contributory negligence state, a victim cannot recover any compensation for an accident if he or she is at all responsible for causing the accident.

Returning to our earlier example, let’s suppose that the high-speed driver was determined to be 90% at fault for the crash, but the driver who failed to replace their tail light was 10% at fault. Let’s also suppose the latter driver was the only one injured.

In a contributory negligence state, the injured driver could not recover a single penny. Why? Because he was partly responsible for the crash. It doesn’t matter that the speeding driver was mostly at fault. In fact, even if the speeding driver was 99.9% at fault, in a pure contributory negligence state, the victim still could not recover a single cent unless 0% at fault.

As you can see, contributory negligence is a very harsh rule. For that reason, many states have either modified their contributory negligence rules or moved to a different system altogether: comparative negligence.

What Is Comparative Negligence?

In a comparative negligence state, if multiple parties were negligent, each party will be assigned a percentage of fault.

Here again, we can look at our example of the speeding driver who was 90% at fault and the injured driver with a broken tail light who was 10% at fault.

Whereas the rule of contributory negligence would leave the injured driver with nothing, in a comparative negligence state, he can still recover compensation for his damages. His total recovery will simply be reduced by his percentage of fault.

So if the driver suffered $100,000 of damages, his recovery would be reduced by his 10% of fault, for a total of $90,000.

This system allows for a fairer assignment of compensation. Unlike contributory negligence state, comparative negligence states don’t force accident victims to pay entirely out of pocket for an accident that was mostly someone else’s fault.

Two Major Types of Comparative Negligence: Pure and Modified

Before we dive into comparative and contributory negligence in Florida specifically, there is one more thing you need to know about comparative negligence in general.

There are two major versions of comparative negligence. They both basically function as described above, but they differ on one question: how do you handle a case where the accident victim is 50% at fault (or more than 50% at fault)? Is it fair to let an accident victim sue and recover money from an equally negligent or less negligent party?

  • Some states follow a pure comparative negligence rule, which says: yes, an accident victim can recover money from an equally or less negligent party. So even if you are 90% at fault, you can still recover 10% of your damages from the other party.
  • Other states have decided such a “pure” approach isn’t fair, so they’ve adopted a rule called modified comparative negligence, which says you can’t recover any money at all if your percentage of fault exceeds a certain number. (In some jurisdictions, that number is 50%. In others, it is 51%.)

Now that we’ve defined the basic rules and explained how they work generally, we can turn our attention to the rules of comparative and contributory negligence in Florida. There’s a lot to know.

Understanding Comparative and Contributory Negligence in Florida

Once upon a time, Florida was a contributory negligence state. Prior to 1973, accident victims in this state were out of luck if a court determined they were even a little bit at fault for the accident.

As you can imagine, this led many negligent drivers in Florida to argue that they didn’t need to pay for their negligence. They would try to find evidence of some tiny infraction or small mistake by the victim.

Fortunately, as in most states, Florida, personal injury law has evolved. Today, Florida follows the rule of pure comparative negligence we explained above. Accident victims in Florida can recover compensation from the other party, even if the victim is partly at fault (and even if the victim’s percentage of fault exceeds 51%).

In other words, you can be mostly at fault for an accident in Florida and still seek compensation for your personal damages from the other parties. If you succeed, your total damages will be reduced by your percentage of fault, whatever that percentage might be.

Who Decides the Percentage of Fault in Florida?

If a personal injury claim goes to court, the court itself (usually a jury) will assign each party a percentage of fault. While the court will work hard to arrive at a fact-based number that fairly reflects the evidence of fault, attorneys can often be effective in arguing for a smaller or greater percentage. This is one of the many ways in which an experienced Miami personal injury lawyer can help accident victims fight to increase their recovery.

Of course, many personal injury claims do not go to trial. In those cases, it is up to the parties themselves to agree on a percentage of fault and then to reach a financial settlement accordingly. This might be accomplished through negotiations or through “Alternative Dispute Resolution” proceedings (such as mediation or arbitration).

Not Just for Auto Accidents

So far, we have used hypothetical auto accident scenarios to explain comparative and contributory negligence in Florida. But it’s important to remember that these same rules apply to all personal injury claims where negligence is alleged.

Bicycle accidents, premises liability cases, negligent security claims, and many other personal injury matters are subject to Florida’s rule of pure comparative negligence.

That said, there are certain types of personal injury matters where different rules about negligence may apply. For that reason, you should always discuss your particular legal matter with an experienced Miami personal injury lawyer before making assumptions about your rights, options, or responsibilities under Florida law.

Talk to a lawyer. Schedule a free consultation with Kaire & Heffernan, LLC.

Florida’s doctrine of comparative fault is complex, especially in situations involving more than two parties, or where the issues of fault and liability are not clear-cut (as is often the case). An experienced Miami auto accident lawyer can help.

At Kaire & Heffernan, LLC, we are committed to fighting for the largest amount of compensation available to our clients.

Here’s our guarantee: we will not charge for our services unless and until we get you money. If we don’t succeed, you don’t pay anything.

Time limits apply to Florida personal injury claims, so please don’t delay. Schedule a free consultation with the Miami personal injury lawyers at Kaire & Heffernan, LLC right away.

Mark Kaire has been practicing law in Miami for nearly 15 years. He is dedicated to helping the injured people of Miami receive compensation. Mr. Kaire has been blogging on Miami’s legal issues for 4 years.