What is Comparative Negligence in Florida?

Car crashes or other personal injury accidents often have multiple causes. This can make it challenging to determine who is responsible and who should pay for the damage caused by the accident. How responsibility is determined differs based on where the accident occurs. In Florida, this is managed through what is called comparative negligence. This article will explain what this means and how it can affect you if you have an accident in Florida.

Comparative Fault in Florida

Florida is a pure comparative fault state, meaning victims may be entitled to compensation even if they were 99% at fault for the injury. In these cases, the court reduces compensation in proportion to their responsibility for the accident.

In contrast, neighboring Alabama is a pure contributory negligence state. Contributory negligence means victims are ineligible for compensation even if they are only 1% at fault for the incident.

Most states are modified comparative fault states. Victims are entitled to a proportionate share of compensation if they’re less than 50% responsible for the injury. For example, you would receive nothing if you were 51% at fault.

If you are involved in a crash in Florida or another comparative fault state, have a car accident lawyer review and assess the claims. Under Florida's comparative negligence rule, if a first responder or insurance company investigator makes an adverse fault ruling, you might still be entitled to compensation for medical bills, lost wages, and emotional distress.

What Is Comparative Negligence in Florida

The key to understanding what comparative negligence in Florida is may be the key to understanding the difference between accident fault and accident liability. A head-on crash is a good example.

Assume Stan was southbound on a two-lane highway and crossed onto the northbound side to pass a slow-moving vehicle. He collided with Ollie, who was approaching on the northbound side.

Based on those facts, most investigators would say Stan was at fault. However, an investigator will not know all the facts at this point. Stan may not be liable (legally responsible) for injuries.

For example, if Ollie was a commercial driver, he has a duty to anticipate and avoid accidents, not just avoid them. So, Ollie must assume that Stan would pass unsafely and act accordingly. If Ollie doesn't do so, he violates his duty of care.

What Are Comparative Negligence Variations?

Several factors and principles are used to defend a driver who is found at fault for an accident. Three of the most common are:

• Assumption of risk
• Sudden emergency
• Last clear chance

Let’s take a look at what each of these means and how they work.

Assumption of Risk

The assumption of risk principle is also known as the “seat belt defense.” While this defense varies in different states, a seatbelt is a good example. Under this principle, if someone in the accident is injured because they weren’t wearing their seatbelt, it is assumed that they are responsible for their injuries because they “assumed the risk” by choosing not to buckle up. Here, victims who do not buckle up could lose part or even all of their compensation.

However, the insurance company has the burden of proof, and its lawyers must establish two basic elements:

• The seat belt functioned properly, and
• A failure to wear a seat belt, as opposed to the tortfeasor's negligence, substantially caused an injury.

Some seat belts are under factory recalls; other seat belts simply fail because of wear and tear. The motorcycle helmet defense follows the same legal principles: If a motorcycle crash victim wasn't wearing a helmet at the time of the accident, the insurance company could shift blame for the accident onto the victim.

Sudden Emergency

A sudden emergency in a car crash claim is like a comparative fault on steroids. In Florida, comparative fault reduces compensation. This defense, which excuses negligence, applies if the tortfeasor (negligent actor) reasonably reacts to a sudden emergency.

Florida law narrowly defines “sudden emergencies” as completely unexpected situations, such as earthquakes and cloud-to-ground lightning strikes. But stopped-short vehicles, large potholes, and jaywalking pedestrians are everyday hazards you should anticipate and avoid when driving.

Last Clear Chance

The above Stan and Ollie example touched on the last clear chance defense. Now, let’s go into more detail: Similar to a sudden emergency, the last clear chance excuses negligence if someone had the last clear chance to avoid a wreck and doesn’t grasp that chance.

So, a crash was inevitable if Stan swerved over the center line without warning. Ollie can’t react quickly enough to get out of Stan’s way. So, the last clear chance, which is different from any possible chance, will not apply.

But say Stan mistook an exit ramp for an entrance ramp and was diving safely but on the wrong side of the road. Ollie probably should have been able to avoid Stan. Therefore, the last clear chance defense might apply. Ollie might be liable for damages even though he didn’t do anything legally wrong.

Florida’s Contributory Negligence Defense in Court

That’s an interesting and important legal theory, but how do Florida’s comparative negligence defense and related defenses work in court?

In another example, assume Kate was speeding five mph over the limit when she hit Allie. Kate was breaking the law, but her excessive speed probably didn’t contribute to the wreck. On the other hand, if Kate was going 20 mph over the limit, her reckless speed probably contributed to the crash.

Usually, the victim has the burden of proof in civil court. But if the insurance company uses an affirmative defense, like comparative fault, the insurance company actually has two burdens of proof.

First, usually during a pretrial hearing, an insurance company lawyer must convince a judge that contributory negligence, or one of its legal cousins, might apply. After the pretrial hearing, an insurance company lawyer must make the same argument to the jury, which is far more difficult than convincing one person.

Incidentally, jurors don't know the effect of their ruling. They don't know that dividing fault 50-50 takes away 50% of the victim’s compensation. This area of law is very subjective. The outcome depends on a lawyer’s advocacy and negotiation skills because the facts can go either way.

At Accident.Com, we connect accident victims with local attorneys who have these skills. If you have been involved in a crash, contact us now and take the first step toward fair compensation for serious injuries.