Understanding Florida’s Comparative Negligence

One day, you’re driving down Calle Ocho. You’re looking at your phone when, out of nowhere, a drunk driver runs a red light and hits you. You suffer serious and permanent injuries as a result of the car accident.

You may be worried that the fact that you were texting and driving means you can’t pursue damages from the drunk driver?

Luckily, you live in Florida and Florida has adopted the negligence standard of pure comparative fault.

Florida Statute 768.81 provides, in short, that whatever percentage you were negligent, your financial recovery will be reduced by that amount.

If you filed a personal injury lawsuit and the jury found you 25 percent negligent for the crash because you were texting and driving, your total damages would be reduced by 25 percent. The jury decided the case in your favor and awarded you $200,000 in damages. The drunk driver was 75 percent at fault. Your total damage award would be reduced by $50,000 (25 percent), so the most you would receive is $150,000.

Because we are a pure comparative fault state, that means you can collect damages no matter how high your percentage of fault.

Plaintiffs in most other states don’t have this advantage. The majority of other states use a different type of contributory negligence standard known as modified comparative fault. These states usually follow the 50 or 51 percent bar rule, meaning if you are half or more than half responsible for the accident or your injuries, you’re barred from collecting anything at all. In a small number of states, if you are found even 1 percent responsible for what happened, you can’t collect anything at all (pure contributory negligence standard). But that’s not the case in Florida. If you were 99 percent liable for the injuries you suffered, you can still collect that 1 percent in damages.

In fact, in a recent case against Tesla, a Florida jury found Tesla just 1% liable in the death of an 18-year-old man whose Model S sedan slammed into a concrete wall, but ordered Elon Musk’s electric car maker to pay $10.5 million to the driver’s parents. Jurors found Tesla negligent for deactivating a speed limiter that the plaintiffs had installed to keep their son Barrett from driving too fast.

Barrett Riley was driving at 116 miles per hour (187 kph), on a curve with a posted 25 mph speed limit, on May 8, 2018, when he lost control of his 2014 Model S while trying to pass another vehicle, causing a fire. Another passenger also died while a third occupant survived.

Though jurors found Barrett Riley 90% responsible and his father 9% responsible for the crash, it awarded James Riley $4.5 million and Jenny Riley $6 million.

Florida Injury Case Defendants Frequently Argue Comparative Negligence

A good lawyer for a defendant will try to argue comparative negligence in an attempt to reduce a defendant’s liability to pay.

As South Florida’s best personal injury lawyer, one of my goals is to eliminate or at least minimize any assertion of a comparative negligence against you because that is ultimately going to take money from you. We do this by investigating the facts of your case and the details of what led to your injuries. We will challenge any assertion that you were partly at fault for the accident. 

In addition to comparative negligence, the following things can have a substantial impact on your personal injury case.

Release or Covenant Not to Sue

A release or covenant not to sue is an agreement by a plaintiff not to sue a particular defendant.

This rule might come into play when you participate in a hazardous activity, such as playing a dangerous sport, and promise not to sue if you are injured. Otherwise known as waivers. 

You will also sign a release if you reach a settlement with a defendant before a lawsuit is filed, which is an agreement not to pursue a lawsuit in return for them paying an agreed amount of money for your damages.

However, the release only applies to the defendant specified in it. It does not release any other defendant who is liable for the plaintiff’s injury. For example, if you were injured on a property owned by multiple parties who may be responsible, you can settle with one party and pursue damages against the other for the same incident. 


Damages are compensation you receive for your injuries caused by someone else’s negligence. The amount of damages you can recover differs depending on the facts of your case.

As explained in more detail in a previous post, there are 2 types of damages you can recover: Special and general damages.

Navigating comparative negligence in a Florida negligence action can be complicated. If you or a loved one is injured in an accident, call Jaime “Mr. 786Abogado” Suarez today!

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