15 Jan

What is comparative negligence, and how can it affect your Florida personal injury case?

Learn more about this important legal defense that can change the amount of damages you are able to recover in the state of Florida!

If you were injured in an accident in Florida due to someone else’s negligence, you have a legal right to seek compensation. However, the amount of compensation you receive in a personal injury case is dependent on several factors (such as the skill and experience level of your lawyer, the severity of your injuries, the circumtances of the crash, and more).

One of those important factors is fault. Your ability to recover compensation at all hinges on a jury or judge or insurance company acknowledging that another party’s negligence directly caused your accident and your injuries.

Determining fault in an accident case can be challenging, however. Sometimes it is clear where the blame lies, but most of the time drivers disagree and accuse each other; rarely does someone like to admit they were to blame, particularly when an accident has serious financial consequences. When there is a question of blame that needs to be settled in order to award damages, some states use a rule called “comparative negligence” in order to determine responsibility.

Take this scenario, for example. Jeff is responding to an email from a client with his right hand and gripping the steering wheel with his left as he is making a right turn out of his neighborhood in Tampa. He glances up to make sure the road is clear, and then back down at his phone as he begins pulling out. Because he was distracted, he misjudges the distance between Sam’s car and his own, and Sam’s larger SUV slams into his vehicle. Sam was going 15 miles over the speed limit, though she was focused on the road and attempted to brake as soon as she saw Jeff pull out. Jeff files a personal injury claim, but he was also at fault, and perhaps more at fault than Sam was.

When settling this case, the court would need to assign a percentage of fault to both parties before awarding any damages using the comparative negligence, or comparative fault, rule. There are three kinds of comparative fault. Which one is applied depends on what state the accident occurs in.

Florida recognizes modified comparative negligence. (Note that Florida does have a no-fault insurance rule; that is separate from comparative fault in personal injury cases). Modified comparative fault allows the injured party to collect damages that are proportional to their percentage of fault as long as the percentage is less than 50% (as of a new bill signed into law in 2023). For example, if Jeff was found to be 60% at fault for distracted driving and Sam was found to be 40% at fault for speeding, Sam could sue Jeff (or more accurately, Jeff’s insurer) and recover 60% of the total amount of damages (his 40% being withheld).

This is also known as partial comparative negligence (also known as the 50 or 51 Percent Bar Rule). With this rule, the money plaintiffs can recover is proportional to the percentage of fault, but it only applies if plaintiffs do not have an equal or higher percentage of fault than the other party. If they do, they cannot collect damages at all. If the injured party (plaintiff) is less than 50% responsible for the crash, they can collect damages, but if they are more than 50/51% at fault, they cannot.

Very few states recognize pure contributory negligence (actually, only five states still do: Alabama, D.C., Maryland, North Carolina, and Virginia). Contributory fault prohibits injured parties from collecting any damages if they shared any of the fault, even if it is as low as 1%. Say Sam was speeding at only 5 miles per hour and was severely injured instead of Jeff, and a jury found them to be 5% and 95% responsible, respectively. Sam would not be able to recover damages at all (even though under the comparative negligence rule he is entitled to possibly 95%). Under the contributory fault law, fault disqualifies injured parties from receiving compensation.

Florida’s comparative negligence law can either help or hurt your personal injury case, but only an experienced personal injury attorney can tell you how much your case is truly worth. If you were injured in a car accident in Florida, contact The Florida Law Group immediately!

Our firm is nationally recognized among the top 1% of law firms. We have received numerous awards and accolades including being recognized for excellence by the Florida Super Lawyers®, The National Association of Distinguished Counsel, The National Trial Lawyers Top 100 and Best Attorneys of America. You can trust our local legal expertise, and you can trust that we will never let you settle for less than what you deserve. We fight to recover maximum compensation! for a free case evaluation. We proudly offer all of our services on a contingency fee basis, meaning you do not pay us anything unless we reach a settlement!