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What is Comparative Negligence?

Categories:Working with an Attorney

Florida is a “Pure Comparative” negligence state. Florida Statute Section 768.81(3) Apportionment of Damages states, “in a negligence action, 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”. This means that a jury is allowed to apportion fault to more than one party and this could include the injured party or injured parties.

For example, you are injured from tripping on a box left in an aisle in a grocery store. The grocery store will argue that you should have been looking where you were walking and that the box was “open and obvious”, hence you the injured party could have prevented the injury. Your attorney will argue that you would never have expected for a box to be in the middle of an aisle and expected the aisle to be free of any dangerous conditions and that the grocery knew or should have known the box was there and removed it. Now the jury gets to decide which parties are at fault and how much fault should be assigned to each party.

Based on the scenario above, the jury may find that the injured party was 50% at fault and the grocery store was 50% at fault. The next question the jury will have to answer is the amount of the injured party’s damages, in this example let’s say the jury awarded $10,000.00 in total damages to the injured party. Because Florida is a pure comparative negligence state, the injured party would get to recover 50% of $10,000.00 which is $5,000.00.

Comparative negligence is applied even when there is more than 2 potential at fault parties and a recovery is awarded to the injured party based on the amount of damages awarded even is the at fault party is found to be just 1% negligent. For example, say there are 2 defendants or at fault parties that were at fault in rescuing a business invitee from a malfunctioning elevator and the injured party also did something that was negligent and contributed to their own injuries. The jury could decide that the Defendant Red was 20% at fault and/or negligent and defendant Blue was 10% at fault and/or negligent and that the injured party was 70% at fault and/or negligent. Then the jury decides that the injured party’s damages are $100,000.00. The injured party’s recovery or award from the jury will be reduced in portion to his or her fault. Hence the injured party’s award of $100,000.00 in damages will be reduced by 70% to $30,000.00.

Florida is one of 13 states that have “Pure Comparative” negligence. Other states may have various Doctrines of Negligence which include Pure Contributory Negligence, the 50% bar to recover rule, and the 51% bar to recovery rule. The lesson to be learned based on Florida’s Pure comparative negligence doctrine is that just because as an at fault party you may be assigned a percentage of fault does not mean you should not be compensated for the other parties fault in proportion to their fault and your injuries.


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