Comparative Negligence in Florida: How Fault Affects Your Claim

Florida Is Not a Pure Comparative Negligence State

You will read, on many websites, that Florida lets a victim "recover even if they are 99 percent at fault." That is wrong, and it has been wrong since 2023. Florida applies a modified comparative fault standard under Section 768.81, Florida Statutes. Your own fault reduces your award in proportion, and a finding that you are more than half at fault now ends the case entirely.

Florida was once one of a small number of states following the pure comparative rule of D'Amario v. Ford Motor Co., 806 So. 2d 424 (Fla. 2001). The Legislature ended that. Section 9 of chapter 2023-15 (CS/CS/HB 837) added subsection (6) to Section 768.81, effective 23 March 2023.

How the Three Rules Interact

Most explanations of Florida fault law quote only the reduction rule and miss the other two. All three matter.

1. Your fault reduces the award - Section 768.81(2)

"In a negligence action, contributory fault chargeable to the claimant diminishes proportionately the amount awarded as economic and noneconomic damages for an injury attributable to the claimant's contributory fault, but does not bar recovery, subject to subsection (6)."

The operative words are "subject to subsection (6)." The reduction rule is real, but it is subject to the bar described next.

2. A finding above 50 percent ends recovery - Section 768.81(6)

"In a negligence action to which this section applies, any party found to be greater than 50 percent at fault for his or her own harm may not recover any damages."

The standard is greater than 50 percent. A finding of exactly 50 percent does not trigger the bar; 51 percent does. That single percentage point can be the entire case.

3. Joint and several liability no longer applies - Section 768.81(3)

"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 is a major change that is frequently overlooked. A defendant is generally answerable only for its own percentage of fault. If a surgeon is found 20 percent responsible in a case with four defendants, a plaintiff may recover 20 percent of the damages from that surgeon alone rather than the whole award. Before this provision, a plaintiff could ordinarily collect the entire judgment from any one defendant.

Fault Can Be Allocated to Someone Who Is Not in the Case

Section 768.81(3)(a) allows a defendant to allocate fault to a nonparty, but only on strict terms. The defendant must "affirmatively plead the fault of a nonparty" and, absent good cause, must identify the nonparty if known or describe the nonparty "as specifically as practicable," either by motion or in the initial responsive pleading, subject to amendment before trial. To include the nonparty on the verdict form and apportion damages against it, the defendant must prove the nonparty's fault by a preponderance of the evidence.

The practical effect is that a defendant cannot ambush a plaintiff with an unnamed phantom tortfeasor at trial. The identification requirement must be satisfied early, which is a genuine advantage to plaintiffs in multi-defendant cases.

Where the Section Does Not Apply

Section 768.81(4) removes the statute from several situations entirely:

• Actions to recover actual economic damages resulting from pollution.
• Actions based on an intentional tort. This matters: a claim pleaded as an intentional tort is outside the fault-apportionment rules.
• Any cause of action as to which joint and several liability is specifically provided by chapters 403, 498, 517, 542, or 895.

Section 768.81(6) additionally does not apply to "an action for damages for personal injury or wrongful death arising out of medical negligence pursuant to chapter 766." In a chapter 766 action, a plaintiff found predominantly at fault is not barred by the 50 percent rule.

Section 768.81(5) addresses teaching hospitals specifically, requiring that where fault is apportioned to a teaching hospital as defined in Section 408.07, judgment against it is entered on the basis of its percentage of fault rather than joint and several liability.

Worked Examples

Example 1: 30 percent fault. A jury finds a motorcyclist 30 percent at fault for speeding and the other driver 70 percent at fault for an unsafe turn. Total damages are $500,000. The motorcyclist's award is reduced by 30 percent to $350,000, which they recover. Subsection (6) is not triggered.

Example 2: 55 percent fault. The same rider is found 55 percent at fault. Under Section 768.81(6) they recover nothing, even though the other driver was careless. A defense verdict on damages, not a reduced award.

Example 3: multiple defendants. Total damages are $1,000,000. Fault is apportioned 20 percent to a surgeon, 30 percent to a hospital, and 50 percent to a driver, with the plaintiff faultless. Because joint and several liability does not apply, the plaintiff may recover $200,000 from the surgeon, $300,000 from the hospital, and $500,000 from the driver, rather than the full $1,000,000 from any one of them.

Example 4: medical malpractice. A plaintiff found 70 percent at fault in a chapter 766 action is not barred by subsection (6), and the award is reduced by their share of fault. Note that the substantive caps on non-economic damages in chapter 766 apply separately.

Why Insurers Focus So Hard on Fault

Because of the combination of a complete bar above 50 percent and the loss of joint and several liability, fault allocation is usually the highest-leverage issue in a catastrophic injury case. An insurer does not need to win on liability to win on damages. Convincing a jury that the injured person was 51 percent at fault, in a case where 49 percent is genuinely arguable, is often a cheaper and more achievable strategy than proving the defendant was not liable.

That is why the defence work in these cases focuses on the injured person's conduct: whether they wore a seat belt, whether they ran a red light, whether they had treatment gaps in their medical history, whether they declined a diagnostic test. None of those are worth much on their own. Stacked together, they are a defense verdict.

Sources

• Section 768.81, Florida Statutes - comparative fault, including subsections (1)(c) (definitions of "negligence action" and "products liability action"), (2), (3), (3)(a), (4), (5), and (6).
• Section 9, chapter 2023-15, Florida Laws (CS/CS/HB 837) - adding subsection (6) to Section 768.81, effective 23 March 2023.
• Chapter 766, Florida Statutes - medical malpractice, and the exception in Section 768.81(6) for claims arising out of medical negligence.
• Chapter 768, Florida Statutes, section 408.07 - definition of teaching hospital, referenced in Section 768.81(5).

This guide is general information, not legal advice, and it does not create an attorney-client relationship. Fault allocation depends entirely on the evidence in a specific case and should be discussed with a Florida attorney.