Comparative Negligence

Most accident and injury cases in Florida are based on a theory of negligence. And in most cases the negligence in question was committed by the defendant against the plaintiff. By way of example, a simple case of negligence may involve a car accident where one driver fails to pay attention, then hits another driver who is doing everything right. The negligent driver would, in this example, be responsible to pay for all the damage the other driver suffered.

But imagine for a moment a different scenario. Imagine a driver speeding through an intersection going 30 or 40 miles over the speed limit; now imagine a pedestrian listening to music with earphones and walking through that same intersection against a "Do Not Walk" sign. In this example, the driver hits the pedestrian, causing horrible injuries. Who would pay for the damage? The driver? The pedestrian? It is a scenario like this where comparative negligence comes into play. Essentially, comparative negligence assigns to each person the percentage they are negligent in a case. So if a plaintiff is 20% responsible for the injuries he suffers in an accident because of his negligence, his total jury verdict for damages will be reduced by 20%.

History of the Law of Comparative Negligence

Comparative negligence was not always Florida's law, however. As with all other states in the United States, at one point Florida followed the contributory negligence rule. Under contributory negligence a plaintiff is barred from recovery if their negligence is at all responsible for their injury. So, in the scenario above where the pedestrian was hit by a speeding driver, the pedestrian would be prohibited from recovering anything.

Contributory negligence is rooted in an English decision from the early 1800s. After that decision, every U.S. jurisdiction, including Florida, adopted the legal principle. But even when Florida adopted the rule, the judge in the case called it unjust and inequitable. Many other jurisdictions felt the same way, but the law was adopted as a common rule nonetheless.

Changes from Contributory to Comparative Negligence

By the 1970s there was a large push to change what was perceived by most as an unfair rule. In fact, Florida was the first to do so by judicial decision. In 1973, the Florida Supreme Court overturned over one hundred years of precedent in Hoffman v. Jones. Among the reasons why the court decided to overturn the rule were:

  • There was true doubt as to whether contributory negligence was a true common law rule.
  • Social upheaval required the court to change the rule of law.
  • The landscape of personal injury law had changed dramatically with the advent of automobile accidents.

Agreeing with the court's decision to change the law, the Florida legislature later passed a law making Florida a pure comparative negligence jurisdiction. This meant that in a case for negligence, a plaintiff's award would reduced by the amount his own negligence contributed to the damages. Most states have followed either this version or something similar to it since.

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