What is Comparative Negligence and how does it affect my personal injury lawsuit?

One of the more complicated concepts in Florida for personal injury attorneys to explain to their clients is the pure comparative negligence doctrine. In layman’s terms, in Florida, even if you are partly at-fault for your injuries, you can still recover money from a defendant you have sued. However, if you are entirely at fault for your injuries, you cannot recover money.

According to Florida Statute 768.81, “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.”  This means that the damages (money) you are awarded for your injuries are reduced by the percentage of fault that the jury allocated to the plaintiff (you).

The mechanics of the system are actually pretty straightforward. At the conclusion of a trial where a plaintiff (the injured party) has brought a claim of negligence against a defendant (the person or entity that allegedly caused the plaintiff’s injury), the jury is tasked with allocating the percentage of fault for the incident that caused the injury. The percentages of negligence for all the parties must equal 100%.


For instance, in a rear-end car accident, the defendant is almost always determined to be 100% at fault (there is a rebuttable presumption of fault on the part of the rear driver). However, if two cars hit in an intersection and they each claimed to have had the green light (even though this is impossible) and there is no other evidence for a jury to consider such as an independent eyewitness or video of the accident, the jury might just compromise and allocate 50% negligence to each party. In the instance of 50/50 negligence, if the jury determined the plaintiff to have injuries worth $100,000, the plaintiff would only recover $50,000.

The pure comparative fault standard often comes into play in premises liability incidents particularly at a big box store or supermarket. In those cases, even when there is something on the floor, the defendant will often argue that the plaintiff should have either known the hazardous condition was on the floor or seen that it was on the floor. In that scenario, the defendant will ask the jury to allocate something less than 100% on the defendant for the incident. For example, if the plaintiff fell at a supermarket and suffered $100,000 in damages from the fall and the jury allocates 80% of the fault to the supermarket and 20% of the fault to the plaintiff, the plaintiff would then recover $80,000 for his or her injuries.

The situation surrounding a case with multiple defendants is basically unchanged. In those scenarios, the jury is asked to allocate the fault between the parties. If two defendants are equally at fault and the plaintiff is not at fault, the jury would allocate 50% to each defendant and 0% to the plaintiff or any percentage breakdown that equals 100%.

Older Principles 

Prior to 1973, Florida utilized the common law principle of contributory negligence which barred recovery by a plaintiff if the plaintiff was even 1% negligence. Under the contributory negligence, the defendant could be almost entirely at fault for the plaintiff’s injuries but the plaintiff would have been prevented from recovering any money from the defendant. This standard was replaced by the more equitable pure comparative fault system that Florida now follows.

Around the same time, in cases involving more than one defendant, Florida was following the joint and several liability principle. Under joint and several liability, a defendant who was determined to be at fault, no matter how little at fault, could be on the hook for the entire amount of a plaintiff’s damages. So, in a case where a plaintiff sued two defendants and Defendant A was 95% at fault and Defendant B was merely 5% at fault, the plaintiff could recover the entire amount of his or her damages from whichever of the two parties the plaintiff decided. In other words, Defendant B, who was only determined to be 5% at fault for the incident caused the plaintiff’s injuries, could end up paying the entire amount of the judgment.

I have handled hundreds of personal injury lawsuits involving pure comparative negligence. Do not trust your personal injury case to a firm that does not actively litigate cases and bring cases to trial. Do not fall victim to one of the advertising firms where you will get lost in the shuffle and just become a number in a file cabinet. At JB Law, all clients are given the attention they deserve and are provided with my personal cell phone. It is not my “work” cell phone number. It is my only cell phone number. My clients can always reach me and always know what is going on with their case.

If you ever have any questions about your legal rights, please reach out to me on either my cell phone (305-803-1865) or my office line (561-717-9551).