comparative negligence doctrine in Florida

2024The Underlying Cause of Action Is Not a Negligence Action I fundamentally disagree with the majority’s conclusion that the underlying cause of action, alleging the willful and unlawful furnishing of alcoholic beverages to an underage person (and the resulting harm), is a negligence action for purposes of Florida’s comparative fault statute. - 19 - This Court adopted the doctrine of comparative negligence in Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973).

2019See Hoffman v. Jones, 280 So. 2d 431, 438 (Fla. 1973). “[W]ithdrawal of the comparative negligence defense [does] not in any way deprive [a defendant] of the right to argue that Plaintiffs’ actions were the ‘sole legal cause’ of their own injuries.” Goulah v. Ford Motor Co., 118 F.3d 1478 , 1485 (11th Cir. 1997) (applying Florida law). “[I]ndividual 8 plaintiffs do not simply walk into court, state that they are entitled to the benefit of the Phase I findings, prove their damages, and walk away with a judgment against the Engle defendants.” Douglas, 110 So. 3d at 431 .

2010In Gilchrist Timber Co. v. ITT Rayonier, Inc., 696 So.2d 334 (Fla.1997), the Supreme Court held that the doctrine of comparative negligence, as codified in F.S. 768.81, applied to an action for negligent misrepresentation as set forth in the Restatement (2d) op Torts § 552, which requires proof of justifiable reliance. 2.

2002In Gilchrist Timber Co. v. ITT Rayonier, Inc., 696 So.2d 334 (Fla.1997), the Supreme Court held that the doctrine of comparative negligence, as codified in § 768.81, Fla. Stat., applied to an action for negligent misrepresentation as set forth in the Restatement (Second) of Torts § 552 (1977), which requires proof of justifiable reliance.

1992See Reinhart v. Seaboard Coast Line Railroad, 422 So.2d 41 (Fla. 2d DCA 1982). 449 So.2d at 365 .

1990Reinhart v. Seaboard Coast Line, 422 So.2d 41, 44 (Fla. 2d DCA 1982), review denied, 431 So.2d 989 (Fla. 1983).

2000The doctrine of implied assumption of the risk is now subsumed within comparative negligence, see Blackburn v. Dorta, 348 So.2d 287, 289 (Fla. 1977), and only the comparative negligence instruction should have been used.

1997EXPRESS ASSUMPTION OF RISK BY VIRTUE OF SIGNING WAIVER In Blackburn v. Dorta, 348 So.2d 287 (Fla.1977), the Florida Supreme Court held that the defense of implied assumption of the risk was merged with the defense of contributory negligence when the court adopted the doctrine of comparative negligence.

2020Specifically, we stated: “Because of the very nature of the comparative negligence doctrine, situations in which directed verdicts will be appropriate will occur with even less frequency, particularly in cases where the plaintiff’s own negligence is in issue.” Id.

1979As the court observed in Petroleum Carrier Corp. v. Gates, 330 So.2d 751, 752 (Fla. 1st DCA 1976): "Because of the very nature of the comparative negligence doctrine, situations in which directed verdicts will be appropriate will occur with even less frequency, particularly in cases where the plaintiff's own negligence is in issue.

1997Works Co. v. Jones, 366 So.2d 1167 (Fla.1979) (rejecting "patent danger" doctrine); West v. Caterpillar Tractor Co., 336 So.2d 80 (Fla.1976) (imposing strict liability against manufacturers); Ford Motor Co. v. Evancho, 327 So.2d 201 (Fla.1976) ( see discussion, infra ); Lincenberg v. Issen, 318 So.2d 386 (Fla.1975) (abolishing the no-contribution among tortfeasors rule); Hoffman v. Jones, 280 So.2d 431 (1973) (adopting doctrine of comparative negligence).

1991Perhaps a more pertinent question, assuming the applicability of products-liability law to medical malpractice cases, is whether the Drackett rule has continuing efficacy, in that subsequent to its decision the Florida Supreme Court adopted both the doctrine of strict liability in tort, see West v. Caterpillar Tractor Co., 336 So.2d 80 (Fla.1976), and the doctrine of comparative negligence, see Hoffman v. Jones, 280 So.2d 431 (Fla.1973).

2018As a consequence, the reversal in this case should not have extended to a new trial on damages.”); see also Regions Bank v. Capital Square, Inc., 83 So. 3d 900 , 902–03 (Fla. 3d DCA 2012) (concluding that “a reversal precipitated by Fabre errors does not affect the determination of damages and should not require a new trial on damages,” and remanding for “a new trial solely on the issue of apportionment between the parties”); Schindler Elevator Corp. v. Viera, 693 So. 2d 1106, 1108 (Fla. 3d DCA 1997) (holding that a comparative negligence error in erroneously omitting a nonparty from the verdi

2018As a consequence, the reversal in this case should not have extended to a new trial on damages.”); see also Regions Bank v. Capital Square, Inc., 83 So. 3d 900 , 902–03 (Fla. 3d DCA 2012) (concluding that “a reversal precipitated by Fabre errors does not affect the determination of damages and should not require a new trial on damages,” and remanding for “a new trial solely on the issue of apportionment between the parties”); Schindler Elevator Corp. v. Viera, 693 So. 2d 1106, 1108 (Fla. 3d DCA 1997) (holding that a comparative negligence error in erroneously omitting a nonparty from the verdi

2018Accordingly, we are left with no alternative but to reverse and remand “with instructions for the trial court to award compensatory damages in the full amount of the jury’s verdict.” See Philip Morris USA Inc. v. Gore, 238 So. 3d 828, 831 (Fla. 4th DCA 2018) (reversing to comply with Schoeff’s elimination of the comparative negligence defense under similar circumstances).

2018Accordingly, we are left with no alternative but to reverse and remand “with instructions for the trial court to award compensatory damages in the full amount of the jury’s verdict.” See Philip Morris USA Inc. v. Gore, 238 So. 3d 828, 831 (Fla. 4th DCA 2018) (reversing to comply with Schoeff’s elimination of the comparative negligence defense under similar circumstances).

2018Aerial Lift, Inc. v. Perez, 629 So. 2d 169, 172 (Fla. 3d DCA 1993) (where reversal was required “on grounds unrelated to the damages issue,” including a comparative negligence error in omitting Fabre defendants from the verdict form, the 4 Fabre v. Marin, 623 So. 2d 1182, 1184 (Fla. 1993) (if defendant proves the fault of a nonparty on a comparative negligence affirmative defense, the jury may be asked to apportion the percentage of fault to the nonparty on the jury verdict form). 9 new trial would be “confined to issues of the liability of the defendant and of the other entities allegedly res

2018Aerial Lift, Inc. v. Perez, 629 So. 2d 169, 172 (Fla. 3d DCA 1993) (where reversal was required “on 4 Fabre v. Marin, 623 So. 2d 1182, 1184 (Fla. 1993) (if defendant proves the fault of a nonparty on a comparative negligence affirmative defense, the jury may be asked to apportion the percentage of fault to the nonparty on the jury verdict form). 9 grounds unrelated to the damages issue,” including a comparative negligence error in omitting Fabre defendants from the verdict form, the new trial would be “confined to issues of the liability of the defendant and of the other entities allegedly res

2018Aerial Lift, Inc. v. Perez, 629 So. 2d 169, 172 (Fla. 3d DCA 1993) (where reversal was required “on grounds unrelated to the damages issue,” including a comparative negligence error in omitting Fabre defendants from the verdict form, the 4 Fabre v. Marin, 623 So. 2d 1182, 1184 (Fla. 1993) (if defendant proves the fault of a nonparty on a comparative negligence affirmative defense, the jury may be asked to apportion the percentage of fault to the nonparty on the jury verdict form). 9 new trial would be “confined to issues of the liability of the defendant and of the other entities allegedly res

2018Aerial Lift, Inc. v. Perez, 629 So. 2d 169, 172 (Fla. 3d DCA 1993) (where reversal was required “on 4 Fabre v. Marin, 623 So. 2d 1182, 1184 (Fla. 1993) (if defendant proves the fault of a nonparty on a comparative negligence affirmative defense, the jury may be asked to apportion the percentage of fault to the nonparty on the jury verdict form). 9 grounds unrelated to the damages issue,” including a comparative negligence error in omitting Fabre defendants from the verdict form, the new trial would be “confined to issues of the liability of the defendant and of the other entities allegedly res

2018As a consequence, the reversal in this case should not have extended to a new trial on damages.”); see also Regions Bank v. Capital Square, Inc., 83 So. 3d 900 , 902–03 (Fla. 3d DCA 2012) (concluding that “a reversal precipitated by Fabre errors does not affect the determination of damages and should not require a new trial on damages,” and remanding for “a new trial solely on the issue of apportionment between the parties”); Schindler Elevator Corp. v. Viera, 693 So. 2d 1106, 1108 (Fla. 3d DCA 1997) (holding that a comparative negligence error in erroneously omitting a nonparty from the verdi

2018As a consequence, the reversal in this case should not have extended to a new trial on damages.”); see also Regions Bank v. Capital Square, Inc., 83 So. 3d 900 , 902–03 (Fla. 3d DCA 2012) (concluding that “a reversal precipitated by Fabre errors does not affect the determination of damages and should not require a new trial on damages,” and remanding for “a new trial solely on the issue of apportionment between the parties”); Schindler Elevator Corp. v. Viera, 693 So. 2d 1106, 1108 (Fla. 3d DCA 1997) (holding that a comparative negligence error in erroneously omitting a nonparty from the verdi

1980See Coleman v. American Universal of Florida, Inc., 264 So.2d 451 (Fla.App. 1st 1972), quoting from 2 Frumer and Friedman Products Liability § 16.01(3), at 3-20 to 3-31.

1976See Coleman v. American Universal of Florida, Inc., 264 So.2d 451 (Fla.App. 1st 1972), quoting from 2 Frumer and Friedman Products Liability § 16.01(3), at 3-20 to 3-31.

1976Presently, where the evidence reflects the existence of contributory negligence the jury is charged on the comparative negligence principle and is directed to "apportion fault as it sees fit between negligent parties" and to "apportion the total damages resulting from the loss or injury according to the proportion of fault of each party", Hoffman v. Jones, supra, at 439.

1976In Hoffman v. Jones, supra, the Supreme Court astutely recognized the necessity to gauge the jury's proper application of the comparative negligence rule and made the following general observation: "In accomplishing these purposes, the trial court is authorized to require special verdicts to be returned by the jury and to enter such judgment or judgments as may truly reflect the intent of the jury as expressed in any verdict or verdicts which may be returned." ( 280 So.2d at 439 ) In Lincenberg , the Supreme Court was concerned with the "no contribution" principle and concluded that its applic

2020Likewise, the Fourth District in Schlefstein held: “‘[W]ithdrawal of the comparative negligence defense [does] not in any way deprive [a defendant] of the right to argue that Plaintiffs’ actions were the “sole legal cause” of their own injuries.’” (quoting Goulah v. Ford Motor Co., 118 F.3d 1478 , 1485 (11th Cir. 1997) (applying Florida law)). 284 So. 3d at 590. 10 That analysis applies with equal force to the present case.

2019See Hoffman v. Jones, 280 So. 2d 431, 438 (Fla. 1973). “[W]ithdrawal of the comparative negligence defense [does] not in any way deprive [a defendant] of the right to argue that Plaintiffs’ actions were the ‘sole legal cause’ of their own injuries.” Goulah v. Ford Motor Co., 118 F.3d 1478 , 1485 (11th Cir. 1997) (applying Florida law). “[I]ndividual 8 plaintiffs do not simply walk into court, state that they are entitled to the benefit of the Phase I findings, prove their damages, and walk away with a judgment against the Engle defendants.” Douglas, 110 So. 3d at 431 .

1995Section 316.614(10) does not undertake to change that existing law, but instead codifies the accepted legal doctrine, as stated in Parker v. Montgomery, 529 So.2d 1145 (Fla. [App.] 1st DCA1988), that the concept of mitigation of damages has been subsumed within the doctrine of comparative negligence.

1995In so saying, I am aware that this court has observed in Parker v. Montgomery, 529 So.2d 1145 (Fla. 1st DCA), review denied, 531 So.2d 1354 (Fla.1988), which involved the defense of failure to place a child passenger in a safety restraint device, that the concept of mitigation of damages has been subsumed within the doctrine of comparative negligence.

2019See Hoffman v. Jones, 280 So. 2d 431, 438 (Fla. 1973). “[W]ithdrawal of the comparative negligence defense [does] not in any way deprive [a defendant] of the right to argue that Plaintiffs’ actions were the ‘sole legal cause’ of their own injuries.” Goulah v. Ford Motor Co., 118 F.3d 1478 , 1485 (11th Cir. 1997) (applying Florida law). “[I]ndividual 8 plaintiffs do not simply walk into court, state that they are entitled to the benefit of the Phase I findings, prove their damages, and walk away with a judgment against the Engle defendants.” Douglas, 110 So. 3d at 431 .

2019“Instead, to gain the benefit of the Phase I findings in the first instance, individual plaintiffs must prove membership in the Engle class.” Id.

2015See generally Green Cos. v. Divincenzo, 432 So. 2d 86 (Fla. 3d DCA 1983).

2015See generally Green Cos. v. Divincenzo, 432 So.2d 86 (Fla. 3d DCA 1983).

2006See id.