Florida Statute 768.81 | Lawyer Caselaw & Research

The 2024 Florida Statutes

Title XLV
TORTS

Chapter 768
NEGLIGENCE

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F.S. 768.81

¹768.81 Comparative fault.—

(1) DEFINITIONS.—As used in this section, the term:

(a) “Accident” means the events and actions that relate to the incident as well as those events and actions that relate to the alleged defect or injuries, including enhanced injuries.

(b) “Economic damages” means past lost income and future lost income reduced to present value; medical and funeral expenses; lost support and services; replacement value of lost personal property; loss of appraised fair market value of real property; costs of construction repairs, including labor, overhead, and profit; and any other economic loss that would not have occurred but for the injury giving rise to the cause of action.

(c) “Negligence action” means, without limitation, a civil action for damages based upon a theory of negligence, strict liability, products liability, professional malpractice whether couched in terms of contract or tort, or breach of warranty and like theories. The substance of an action, not conclusory terms used by a party, determines whether an action is a negligence action.

(d) “Products liability action” means a civil action based upon a theory of strict liability, negligence, breach of warranty, nuisance, or similar theories for damages caused by the manufacture, construction, design, formulation, installation, preparation, or assembly of a product. The term includes an action alleging that injuries received by a claimant in an accident were greater than the injuries the claimant would have received but for a defective product. The substance of an action, not the conclusory terms used by a party, determines whether an action is a products liability action.

(2) EFFECT OF CONTRIBUTORY FAULT.—In a negligence action, 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, subject to subsection (6).

(3) APPORTIONMENT OF DAMAGES.—In a negligence action, the court shall enter judgment against each party liable on the basis of such party’s percentage of fault and not on the basis of the doctrine of joint and several liability.

(a)1. In order to allocate any or all fault to a nonparty, a defendant must affirmatively plead the fault of a nonparty and, absent a showing of good cause, identify the nonparty, if known, or describe the nonparty as specifically as practicable, either by motion or in the initial responsive pleading when defenses are first presented, subject to amendment any time before trial in accordance with the Florida Rules of Civil Procedure.

2. In order to allocate any or all fault to a nonparty and include the named or unnamed nonparty on the verdict form for purposes of apportioning damages, a defendant must prove at trial, by a preponderance of the evidence, the fault of the nonparty in causing the plaintiff’s injuries.

(b) In a products liability action alleging that injuries received by a claimant in an accident were enhanced by a defective product, the trier of fact shall consider the fault of all persons who contributed to the accident when apportioning fault between or among them. The jury shall be appropriately instructed by the trial judge on the apportionment of fault in products liability actions where there are allegations that the injuries received by the claimant in an accident were enhanced by a defective product. The rules of evidence apply to these actions.

(4) APPLICABILITY.—This section does not apply to any action brought by any person to recover actual economic damages resulting from pollution, to any action based upon an intentional tort, or to any cause of action as to which application of the doctrine of joint and several liability is specifically provided by chapter 403, chapter 498, chapter 517, chapter 542, or chapter 895.

(5) MEDICAL MALPRACTICE.—Notwithstanding anything in law to the contrary, in an action for damages for personal injury or wrongful death arising out of medical malpractice, whether in contract or tort, if an apportionment of damages pursuant to this section is attributed to a teaching hospital as defined in s. 408.07, the court shall enter judgment against the teaching hospital on the basis of such party’s percentage of fault and not on the basis of the doctrine of joint and several liability.

(6) GREATER PERCENTAGE OF FAULT.—In a negligence action to which this section applies, any party found to be greater than 50 percent at fault for his or her own harm may not recover any damages. This subsection does not apply to an action for damages for personal injury or wrongful death arising out of medical negligence pursuant to chapter 766.

History.—ss. 60, 65, ch. 86-160; s. 5, ch. 87-50; s. 79, ch. 88-1; s. 43, ch. 88-277; s. 1, ch. 88-335; s. 38, ch. 91-110; s. 104, ch. 92-33; s. 27, ch. 99-225; s. 1, ch. 2006-6; s. 1, ch. 2011-215; s. 9, ch. 2023-15.

¹Note.—

A. Section 2, ch. 2011-215, provides that “[t]he Legislature intends that this act be applied retroactively and overrule D’Amario v. Ford Motor Co., 806 So. 2d 424 (Fla. 2001), which adopted what the Florida Supreme Court acknowledged to be a minority view. That minority view fails to apportion fault for damages consistent with Florida’s statutory comparative fault system, codified in s. 768.81, Florida Statutes, and leads to inequitable and unfair results, regardless of the damages sought in the litigation. The Legislature finds that, in a products liability action as defined in this act, fault should be apportioned among all responsible persons.”

B. Section 3, ch. 2011-215, provides that “[t]his act is remedial in nature and applies retroactively. The Legislature finds that the retroactive application of this act does not unconstitutionally impair vested rights. Rather, the law affects only remedies, permitting recovery against all tortfeasors while lessening the ultimate liability of each consistent with this state’s statutory comparative fault system, codified in s. 768.81, Florida Statutes. In all cases, the Legislature intends that this act be construed consistent with the due process provisions of the State Constitution and the Constitution of the United States.”

F.S. 768.81 on Google Scholar

F.S. 768.81 on Casetext

Amendments to 768.81

Arrestable Offenses / Crimes under Fla. Stat. 768.81

Level: Degree
Misdemeanor/Felony: First/Second/Third

Current data shows no reason an arrest or criminal charge should have occurred directly under Florida Statute 768.81.

Annotations, Discussions, Cases:

Cases Citing Statute 768.81

Total Results: 20

Pablo Guzman, M.D. and Holy Cross Hospital, Inc. v. Maria Joanna Lazzari, the Plenary Guardian of the Person and Property of Morela Lazzari

Court: Fla. Dist. Ct. App. | Date Filed: 2024-07-03T00:00:00-07:00

Snippet: for the “purpose[] of apportioning damages.” § 768.81(3)(a)2., Fla. Stat. (2022). …does not. Here, the defendant argues section 768.81—which abolished joint-and- several liability—limits…proportionate to its “percentage of fault.” See § 768.81(3), Fla. Stat. (2022); see also Fabre, 623 So. …Fla. 3d DCA 1993) (citation omitted). Section 768.81(3)(a)2. requires the defendant to prove “by a preponderance

Latrice Pla v. Ashley Rierson

Court: Fla. Dist. Ct. App. | Date Filed: 2024-05-15T00:00:00-07:00

Snippet: contributory fault, but does not bar recovery.” § 768.81(2), Fla. Stat. “Causation is an essential element

Guardianship of Jacquelyn Anne Faircloth v. Main Street Entertainment, Inc., etc.

Court: Fla. | Date Filed: 2024-03-07T00:00:00-08:00

Snippet: Whether the comparative fault statute, section 768.81, Florida Statutes, applies to tort actions…unpack the certified question, we note that section 768.81 1 says that percentage-of-fault-based liability…several liability, governs a “negligence action.” § 768.81, Fla. Stat. In turn, section 768.125 permits liability…purposes of the comparative fault statute, section 768.81. I Late…assert a comparative fault defense under section 768.81. After reviewing the background of section 768.125

J.L. PROPERTY OWNERS ASSOCIATION, INC. v. TIMOTHY F. SCHNURR, as of the Estate of James V. Schnurr, and CHRISTINE SCHNURR

Court: Fla. Dist. Ct. App. | Date Filed: 2022-01-04T23:53:00-08:00

Snippet: 2016). The comparative fault statute, section 768.81, Florida Statutes, provides that “[i]n a negligence…liability.” § 4 768.81(3), Fla. Stat. (2019). “[I]n determining noneconomic…nonparty in causing the plaintiff’s injuries.” § 768.81(3)(a)(2), Fla. Stat. (2019). It is important to

DAVID PARSONS AND MARLA PARSONS v. PATRICIA CULP

Court: Fla. Dist. Ct. App. | Date Filed: 2021-09-17T00:53:00-07:00

Snippet: governs allocation of fault to nonparties, section 768.81(3)(a), Florida Statutes (2016), includes the preface

Peoples Gas System, etc. v. Posen Construction, Inc., etc.

Court: Fla. | Date Filed: 2021-06-10T00:53:00-07:00

Snippet: fault statute applies to “negligence action[s].” § 768.81(2), Fla. Stat. (2019). And that statute defines… damages based upon a theory of negligence.” § 768.81(1)(c), Fla. Stat. (2019). Because the Act authorizes…negligence”). Beyond the applicability of section 768.81, we deem comparative fault to be among the background… herein is subject to the provisions of s. 768.81. “[A] court cannot construe an unambiguous statute

AMERICAN PRIME TITLE SERVICES, LLC v. ZHI WANG

Court: Fla. Dist. Ct. App. | Date Filed: 2021-02-02T23:53:00-08:00

Snippet: Legislature did no such thing. While section 768.81(3) of the Florida Statutes abolishes the doctrine… 18 the pure apportionment statute (section 768.81(3)) rests in Part II of Chapter 768, governing…provision shall apply.” Ergo, to the extent section 768.81(3) conflicts with the statutory provisions establishing

BROWARD COUNTY, FLORIDA v. CH2M HILL, INC. and TRIPLE R PAVING, INC.

Court: Fla. Dist. Ct. App. | Date Filed: 2020-07-22T00:53:00-07:00

Snippet: section 768.81(3) requires apportionment of damages in “negligence” actions, section 768.81(1) defines… that fault should be apportioned under section 768.81, Florida Statutes, to Triple R and to various nonparties…apportioned damages pursuant to section 768.81(3), Florida Statutes (2018). In its appeal…the County’s argument and conclude that section 768.81, Florida Statutes (2018), authorized the circuit… 8 Section 768.81 is contained in Part II of Chapter 768. In describing

In Re: Standard Jury Instructions in Civil Cases - Report No. 19-03

Court: Fla. | Date Filed: 2020-02-26T23:53:00-08:00

Snippet: NOTE ON USE FOR 403.18e See F.S. 768.81; Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993). In… 3. Apportionment of fault. See F.S. 768.81; Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993). In

In Re: Standard Jury Instructions in Civil Cases - Report No. 19-04

Court: Fla. | Date Filed: 2020-01-22T23:53:00-08:00

Snippet: explaining to the jury the impact and effect of an F.S. 768.81 apportionment of liability in such cases. See Slawson…explaining to the jury the impact and effect of F.S. 768.81 apportionment of liability in such cases. See Slawson

Specialty Hospital-Gainesville, Inc. v. Charles Barth

Court: Fla. Dist. Ct. App. | Date Filed: 2019-07-15T00:53:00-07:00

Snippet: non- party under Fabre v. Martin 1, and section 768.81(3), Florida Statutes. The jury found that Heartland…non-party’s negligence caused the plaintiff’s injury. § 768.81(3)(a)2., Fla. Stat. (2012); Gooding v. Univ. Hosp…adoption of comparative fault by statute in section 768.81, Florida Statutes, did not abrogate the Stuart …not legally relevant under Stuart. Section 768.81, Florida Statutes, which provides for the allocation

PHILIP MORRIS USA INC. and R.J. REYNOLDS TOBACCO COMPANY v. STANLEY MARTIN, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF CAROLE MARTIN

Court: Fla. Dist. Ct. App. | Date Filed: 2018-12-11T23:53:00-08:00

Snippet: Schoeff, 178 So. 3d at 495–96 (interpreting section 768.81 to require apportionment of comparative fault in… liability action, and concluding “that section 768.81 cannot be avoided simply because the action includes

PHILIP MORRIS USA INC. and R.J. REYNOLDS TOBACCO COMPANY v. STANLEY MARTIN, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF CAROLE MARTIN

Court: Fla. Dist. Ct. App. | Date Filed: 2018-12-11T23:53:00-08:00

BROWN & BROWN, INC. v. JAMES T. GELSOMINO and ACE AMERICAN INSURANCE COMPANY

Court: Fla. Dist. Ct. App. | Date Filed: 2018-11-27T23:53:00-08:00

Snippet: the question remains: which version of section 768.81, applies—the statute passed and effective in 2002…the doctrine of joint and several liability.” § 768.81(3), Fla. Stat. (2006). This amendment clearly abrogated…196. In 2011, the legislature amended section 768.81 to include new statutory language that related …statutory comparative fault system, codified in s. 768.81, Florida Statutes, and leads to inequitable… comparative fault system, codified in s. 768.81, Florida Statutes. In all cases, the Legislature

Regal Entertainment Group v. Navas

Court: Fla. Dist. Ct. App. | Date Filed: 2018-08-01T00:53:00-07:00

Snippet: reduce the defendant’s potential liability. § 768.81(3), Fla. Stat. (2011). Florida law holds each …to actions “based upon an intentional tort.” § 768.81(4), Fla. Stat. (2011). The trial court improperly…conduct did not fall within the exception to section 768.81, Florida Statute (2011), as his conduct did not…Torts, section 449, a position that ignores section 768.81, Florida Statute (2011).

Philip Morris USA Inc. v. Mary Brown, as Personal Representative etc.

Court: Fla. Dist. Ct. App. | Date Filed: 2018-04-18T00:53:00-07:00

Snippet: comparative-fault percentages was not critical, see § 768.81(4), Fla. Stat. (2013); see also Schoeff v. R.J.

In Re: Standard Jury Instructions in Civil Cases-Report No. 17-03.

Court: Fla. | Date Filed: 2018-02-01T00:00:00-08:00

Citation: 236 So. 3d 919

Snippet: explaining to the jury the impact and effect of an F.S. 768.81 apportionment of liability in such cases. See …explaining to the jury the impact and effect of F.S. 768.81 apportionment of liability in such cases. See

Joan Schoeff, etc. v. R.J. Reynolds Tobacco Company

Court: Fla. | Date Filed: 2017-12-13T23:53:00-08:00

Snippet: causes of action. See § 768.81(4), Fla. Stat. (2001, 2006). Before 2011, section 768.81 used the terms “case… comparative fault system, codified in s. 768.81, Florida Statutes. …percentage of fault of other culpable parties. § 768.81, Fla. Stat. (2011). The statute provides, “In …contributory fault, but does not bar recovery.” § 768.81(2), Fla. Stat. (2011). “Negligence action” is defined…liability, [or] professional malpractice.” Id. § 768.81(1)(c). The intentional tort exception is codified

PHILIP MORRIS USA INC. and R.J. REYNOLDS TOBACCO COMPANY v. GERTRUDE MARCHESE

Court: Fla. Dist. Ct. App. | Date Filed: 2017-11-21T23:53:00-08:00

Snippet: considering the apportionment of damages under section 768.81(4), Florida Statutes (2011). See id. at 495. See… and comparative fault was barred under section 768.81(4). Id. There, Reynolds countered that the trial…comparative fault. Id. This court held, “Section 768.81 does not permit the reduction of compensatory damages…exception to this suit.” Id. We stated that “section 768.81 cannot be avoided simply because the action includes

Philip Morris USA, Inc. v. Ledoux

Court: Fla. Dist. Ct. App. | Date Filed: 2017-10-18T00:00:00-07:00

Citation: 230 So. 3d 530

Snippet: this proposition, Plaintiff relies upon section 768.81, Florida Statutes (2016), entitled "Comparative…an “action based . upon an intentional tort.” § 768.81(4). See also Merrill Crossings Assocs. v. McDonald