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What Is Comparative Fault and What Does It Mean?


In Florida in 1973, in a case known as Hoffman v. Jones, the Florida Supreme Court decided to implement comparative fault relating to finding of fault against persons or entities responsible for an incident. Today what it means is that each person or entity is responsible for the percentage of fault attributed to them for the incident which occurred. This is very important, because previously—before Hoffman v. Jones—the law in Florida was that if an injured person contributed to the occurrence of an incident, then they could recover nothing. So, before the change in the law an at-fault person who was potentially 90% at fault owed nothing toward the injuries or damages sustained by the claimant—under the old law. When the Florida Supreme Court in 1973 adopted comparative fault—also known as comparative negligence—it reversed how Florida courts handled negligence claims going back to 1886. (That prior law originated from a court case known as Louisville and Nashville Railroad Co. v. Yniestra.)

How Does Comparative Fault Work in Injury Cases?

In Florida it is for a jury to decide what percentage of fault is assigned to every potentially responsible party. Defense attorneys, insurance adjusters, and even judges may have opinions about the percentage of fault of a particular claimant or defendant; but, under Florida law the final say on percentage of fault is for the jury to decide. The way it is done is this. In a civil trial the first question on a verdict form asks the jury to decide if the defendant is guilty of negligence for the incident. If the jury answers the “fault” question with a “YES”, the second question asks the jury to say what is the defendant’s percentage of fault. If there is more than one defendant, the jury answers the same question for every defendant. Next, the verdict form asks the jury if the claimant was negligent at all in the incident. The percentages are then applied to any damages awarded by the jury. (The jury doesn’t apply the percentages to the damages, the judge does this.) So for example if a jury awarded a claimant $100,000 to the claimant, but found the claimant 10% at fault, then the judge cuts the award down by 10%.

The Power Is in the Hands of the Jury

The judge has the power to make certain rulings in a personal injury case, but it is the jury which has the power to decide who is negligent and how much a claimant gets paid in a personal injury case. This is another reason why comparative fault is very important. Rather than being denied any recovery, a claimant would still recover if the jury finds one or more defendants to be responsible for the claimant’s injuries. (i.e., damages) This is why jury trials are important in disputed cases where insurers refuse to pay what is due to the claimant. When the jury speaks and issues a verdict against the insurer, or against an at-fault person, the jury delivers the predicate to get a judgment for the claimant’s damages. Sometimes the verdicts are hundreds of thousands of dollars or even millions of dollars. An insurance company may not like it, but the power is in the hands of the jurors.

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