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, in which case the plaintiff will be barred from recovering any damages. Plaintiffs in Florida must now demonstrate that they are not more than 50 percent negligent.

Comparative Negligence Extended to Criminal Actors in Negligent Security Actions

HB 837 also extends the application of the comparative negligence doctrine in negligent security actions brought by a person who is lawfully on a property when injured by a third party’s criminal act. Florida law currently does not apply the comparative negligence approach in actions based on intentional tort. This means that owners of property where criminal acts occurred become financially responsible for all of the damages caused by the third-party criminal actor. HB 837 will allow the trier of fact to apportion fault among all persons who contributed to the plaintiff’s injury in a negligent security action, including a criminal actor.

Newly created section 768.0701, Florida Statutes, provides that, “in an action for damages against the owner, lessor, operator, or manager of commercial or real property brought by a person lawfully on the property who was injured by the criminal act of a third party, the trier of fact must consider the fault of all persons who contributed to the injury.” As amended, this statute provides a more equitable framework within which to assess liability for the criminal acts of third parties and alleviates the financial burden previously imposed on landowners for injuries resulting from intentional torts.

Practical Effects of New Comparative Negligence Standard

As with any legislation that imposes substantive changes to tort laws, there will be legal challenges to the constitutionality and fairness of the law. Modified comparative negligence is followed in a majority of states, however, and is not entirely new in Florida. Florida’s alcohol and drug defense statute, section 768.36, currently incorporates a modified comparative negligence analysis. This statute precludes recovery in any civil action in which a trier of fact finds that an injured plaintiff was under the influence of alcohol or drugs at the time the plaintiff was injured and was more than 50 percent at fault for their own harm. See §768.36(2)(a), (b), Fla. Stat. (2022). Claims that section 768.36 violates the guarantee of access to courts, the Equal Protection Clause, and due process all have been rejected. Florida’s new law likely will withstand the same scrutiny.

A modified comparative negligence approach leaves the determination of fault and apportionment of damages in the hands of the trier of fact, while precluding injured plaintiffs from shifting the responsibility for those injuries to tortfeasors who are less culpable than the plaintiffs themselves. Placing limits on the extent to which injured plaintiffs may be compensated, or barring recovery altogether, is vitally important to ensuring equity for all parties to the litigation. On a broader scale, the modified comparative negligence approach alleviates the financial burden previously placed on defendant tortfeasors, and consequently their insurers, and furthers the goal of reducing litigation and insurance costs system-wide.