Florida's New Tort Reform Package: Placing Responsibility On Plaintiffs For Their Own Negligence

• Jurisdiction: Florida,United States
• Law Firm: Wilson Elser Moskowitz Edelman & Dicker LLP
• Subject Matter: Litigation, Mediation & Arbitration, Personal Injury, Professional Negligence
• Author: Ms Donna M. Krusbe
• Published date: 06 April 2023

In the most recent round of tort reform, lawmakers in Florida have made significant changes to tort laws in an effort to even the playing field for all litigants. One substantive change is the manner in which triers of fact will determine fault and apportion damages in negligence actions. As of March 24, 2023, Florida will transition from a "pure comparative negligence jurisdiction" to a "modified" system in all tort cases, except personal injury or wrongful death actions arising out of medical negligence under Chapter 766, Florida Statutes. Lawmakers anticipate that these changes will limit the financial liability of private and government entities, deter undesirable behavior and shift losses to responsible parties.

Pure Comparative Negligence to Modified Comparative Negligence

HB 837 marks the first major change in this area of tort law in 50 years. In 1973, in Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973), the Florida Supreme Court adopted the pure comparative negligence approach. Hoffman was codified in 1986 when the Legislature passed the Tort Reform and Insurance Act. HB 837 will once again change the landscape of negligence actions in Florida by placing more responsibility on injured plaintiffs when their own negligence is the cause of their injuries. Plaintiffs' negligence will now affect not only the amount of compensation but also their right to any compensation at all.

In a pure comparative negligence jurisdiction, damages are apportioned based on each party's percentage of fault, with the plaintiffs' total damages being reduced in accordance with their percentage of fault. Under this rule, plaintiffs may recover damages for the 1 percent for which they are not at fault, even if they are 99 percent at fault. Florida joins the 34 states that follow some variation of the modified comparative negligence approach, under which plaintiffs will recover nothing if they are to blame for a certain percentage of the fault. Florida will now follow the 50 percent bar rule.

Florida's new law, which amends section 768.81, Florida Statutes, provides that "[in] a negligence action ... any party found to be greater than 50 percent at fault for their own harm may not recover any damages." Pursuant to section 768.81, as amended, a plaintiff whose percentage of fault is determined to be under 50 percent may still recover damages based on their degree of fault, as before. The change to the law applies if the plaintiff's fault is found to be greater than 50 percent...