Comparative Fault

In many Southwest Florida premises liability cases, a key defense tactic is to hone in on whether the injured person or another party shared any portion of blame – or to at least cast enough doubt on the specifics of the liability to convince a jury that the defendant can’t conclusively be held 100 percent responsible.

This is called comparative fault, and the goal for defendants is to reduce the amount of damages for which that defendant is responsible. At Associates and Bruce L. Scheiner, Attorneys for the Injured, our experienced premises liability attorneys represent injury victims throughout Southwest Florida, including Fort Myers, Naples, Cape Coral and Port Charlotte.

We know what it takes to overcome arguments of comparative fault. We are also committed to conducting meticulous research at the outset of a case in order to identify other potential defendants far in advance of trial.

Premises liability cases with multiple defendants can quickly become complex, so it’s important that you only trust your claim to a law firm with extensive experience and proven success. This has become all the more important since 2006, when the Florida legislature effectively abolished joint and several liability with an amendment to the comparative fault law, § F.S. 768.81.

Prior to the 1970s, some Florida courts took an “all or nothing” approach in the doctrine of contributory negligence, meaning plaintiffs who contributed in any way to their own injuries were barred from seeking recovery.

Then in 1973, the Florida Supreme Court in Hoffman v. Jones decided a plaintiff’s own role should not stop a severely injured person from being able to pursue some measure of relief. The court adopted the more equitable system of “comparative negligence,” which holds each party is responsible for his or her own apportionment of damages. That means if a jury finds the plaintiff is 35 percent at fault and the defendant 65 percent at fault and awards $100,000 in damages, the plaintiff should receive $65,000 from defendant.

At the time of Hoffman, courts adhered to joint and several liability principles, which held that when there were multiple defendants in an injury case and one couldn’t pay, the others were held responsible to pay the entire amount so that the plaintiff would be made whole.

However, subsequent Florida Supreme Court decisions (Licenberg v. Issen in 1975 and Walt Disney World v. Wood in 1987) diminished joint and several liability damage apportionment, and it was completely abolished in 2006 with an amendment to § F.S. 768.81. Although the legislature carved out a few limited exceptions to the rule, in the vast majority of cases, joint and several liability is no longer recognized in Florida.

So while plaintiffs aren’t entirely barred from pursuing a personal injury action, the ultimate award could be significantly reduced if they or a non-party defendant is found to share some modicum of responsibility for what happened.

There are many different kinds of premises liability, and therefore numerous different angles a defendant might take to assert comparative fault in a claim.

For example, a patron slips and falls on a wet floor in a grocery store and suffers several fractures and a concussion. The store failed to warn the patron of danger by neglecting to post a Wet Floor sign, despite knowing there was a spill staffers had yet to clean. The patron would be entitled to collect damages. However, if the patron had been running at the time of the fall, he or she might share some portion of the blame.

If a tenant trips in an unlit staircase and suffers a broken back, he may sue the landlord and collect damages. However, if he was intoxicated at the time of the fall, the tenant may see a significant decrease in the overall damages awarded.

In cases where a premises liability tort arises from an intentional criminal act, the Florida Supreme Court ruled in 1997 that negligent defendants can’t minimize their liability by shifting blame because state law doesn’t allow comparison of intentional and negligent acts. In Merrill Crossings Associates et al., v. McDonald, a grocery store patron was shot and seriously injured by an unknown assailant in the parking lot. He filed suit against the owner and developer of the store, alleging failure to maintain reasonable security, and a jury decided in his favor. On appeal, the question was asked whether the trial court erred in failing to include the gunman on the verdict form. The court, citing F.S. § 768.81(4)(b), held the trial court did not err because the comparative fault is expressly not applicable to any action based on an intentional tort.

Essentially, negligent property owners can’t reduce their own fault by the foreseeable intentional criminal actions of another which the property owner had a duty to prevent.

If you or a loved one has been injured in Southwest Florida, contact Associates and Bruce L. Scheiner, Attorneys for the Injured, for a free and confidential consultation to discuss your rights. There are no fees or costs unless we win. Offices in Fort Myers, Cape Coral, Naples and Port Charlotte.