Florida Statutes

Fla. Stat. § 768.81 (2025)

Comparative fault.

✓ 2025 Florida Statutes — current through the 2025 Regular Session

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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.”

Notes of Decisions

Cited in 288 cases (42 in the last 5 years), 1987–2025 · leading case: D'ANGELO v. Fitzmaurice, 863 So. 2d 311 (Fla. 2003).

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D'ANGELO v. Fitzmaurice, 863 So. 2d 311 (Fla. 2003). · cites it 24× “We begin our discussion by referencing the relevant statutory scheme established by the three setoff statutes and the separate apportionment provisions of section 768.81, Florida Statutes (1997). We then review the critical difference between noneconomic and economic damages…”

R.J. Reynolds Tobacco Co. v. Joan Schoeff, as Pers. Rep. of the Est. of James Edward Schoeff, 178 So. 3d 487 (Fla. 4th DCA 2015). · cites it 28× “Section 768.81 does not permit the reduction of compensatory damages by plaintiff’s comparative fault where the suit is based upon an intentional tort (“the intentional tort exception”).”

Wal-Mart Stores v. McDonald, 676 So. 2d 12 (Fla. 1st DCA 1996). · cites it 39× “§ 768.81, Fla. Stat. (1993). The resolution of this issue requires us to determine what the Florida Legislature intended to include and exclude in this statute.”

Am. Home Assur. v. NAT. RR CORP., 908 So. 2d 459 (Fla. 2005). · cites it 18× “It asks whether a vicariously liable party should have the negligence of the active tortfeasor apportioned to it under section 768.81, Florida Statutes (1997), such that recovery of its own damages is correspondingly reduced.”

Grobman v. Posey, 863 So. 2d 1230 (Fla. 4th DCA 2003). · cites it 36× “Because section 768.81, Florida Statutes (1995), did not apply to the causes of action asserted against the settling defendant, we hold that appellants are entitled to a setoff of the full amount paid in settlement.”

Wells v. Tallahassee Mem. Med. Ctr., 659 So. 2d 249 (Fla. 1995). · cites it 22× “The setoff provisions, which were enacted *253 before section 768.81, presuppose the existence of multiple defendants jointly liable for the same damages.”

Birge v. Charron, 107 So. 3d 350 (Fla. 2012). · cites it 21× “See § 768.81(2), Fla. Stat. Regardless of whether an injury is caused by the fault of a front driver, a rear driver, or both, the dictates of section 768.”

Gouty v. Schnepel, 795 So. 2d 959 (Fla. 2001). · cites it 21× “See § 768.81, Fla. Stat. (2000). The version of section 768.”

Bravo v. United States, 532 F.3d 1154 (11th Cir. 2008). · cites it 10× “The government requested that the damages be apportioned under Fla. Stat. § 768.81 (3) between the culpable Naval personnel (for which it admitted responsibility) and Dr.”

Basel v. McFarland & Sons, Inc., 815 So. 2d 687 (Fla. 5th DCA 2002). · cites it 16× “We consider two issues in this appeal: (1) whether it was error to apply the October 1, 1999 amendment to section 768.81, Florida Statutes, limiting joint and several liability, retroactively to this personal injury cause of action which accrued in August, 1994 and (2) whether…”

D'AMARIO v. Ford Motor Co., 806 So. 2d 424 (Fla. 2001). · cites it 9× “(citing § 768.81, Fla. Stat. (1993)). In so concluding, the court rejected the argument that a plaintiff's comparative fault should not be considered in the secondary collision context.”

Ass'n for Retarded v. Fletcher, 741 So. 2d 520 (Fla. 5th DCA 1999). · cites it 23× “The core of ARC's argument is that, by enacting section 768.81, Florida Statutes (1991), our legislature changed the well-established common law rule that "[t]he initial tortfeasor is subject to the total financial burden of the victim's injuries, including those directly…”

Show all 288 citing cases →

— 768.81(1) — 2 cases

Letzter v. Cephas, 792 So. 2d 481 (Fla. 4th DCA 2001).

Broward Cnty., Florida v. Ch2m Hill, Inc. & Triple R Paving, Inc. (Fla. 4th DCA 2020).

— 768.81(1)(c) — 6 cases

Joan Schoeff, etc. v. R.J. Reynolds Tobacco Co. (Fla. 2017).

Broward Cnty., Florida v. Ch2m Hill, Inc. & Triple R Paving, Inc. (Fla. 4th DCA 2020).

Guardianship of Jacquelyn Anne Faircloth v. Main Street Ent., Inc., etc. (Fla. 2024).

Peoples Gas Sys., etc. v. Posen Constr., Inc., etc. (Fla. 2021).

Doherty v. Allianz Life Ins. Co. of North Am. (M.D. Fla. 2019).

— 768.81(2) — 23 cases

Birge v. Charron, 107 So. 3d 350 (Fla. 2012). “See § 768.81(2), Fla. Stat. Regardless of whether an injury is caused by the fault of a front driver, a rear driver, or both, the dictates of section 768.”

Am. Home Assur. v. NAT. RR CORP., 908 So. 2d 459 (Fla. 2005). “It asks whether a vicariously liable party should have the negligence of the active tortfeasor apportioned to it under section 768.81, Florida Statutes (1997), such that recovery of its own damages is correspondingly reduced.”

Ridley v. Saf. Kleen Corp., 693 So. 2d 934 (Fla. 1997).

Norman v. Farrow, 880 So. 2d 557 (Fla. 2004).

Connell v. Riggins, 944 So. 2d 1174 (Fla. 1st DCA 2006).

— 768.81(3) — 97 cases

Wells v. Tallahassee Mem. Med. Ctr., 659 So. 2d 249 (Fla. 1995). “The setoff provisions, which were enacted *253 before section 768.81, presuppose the existence of multiple defendants jointly liable for the same damages.”

Gouty v. Schnepel, 795 So. 2d 959 (Fla. 2001). “See § 768.81, Fla. Stat. (2000). The version of section 768.”

Grobman v. Posey, 863 So. 2d 1230 (Fla. 4th DCA 2003). “Because section 768.81, Florida Statutes (1995), did not apply to the causes of action asserted against the settling defendant, we hold that appellants are entitled to a setoff of the full amount paid in settlement.”

D'ANGELO v. Fitzmaurice, 863 So. 2d 311 (Fla. 2003). “We begin our discussion by referencing the relevant statutory scheme established by the three setoff statutes and the separate apportionment provisions of section 768.81, Florida Statutes (1997). We then review the critical difference between noneconomic and economic damages…”

Fabre v. Marin, 597 So. 2d 883 (Fla. 3d DCA 1992).

— 768.81(3)(6) — 1 case

Sendzischew v. Johnson, 934 So. 2d 487 (Fla. 3d DCA 2004).

— 768.81(3)(a) — 12 cases

Burns Intern. SEC. v. Philadelphia Indem., 899 So. 2d 361 (Fla. 4th DCA 2005).

T & S Enter. Handicap Accessibility, Inc. v. Wink Indus. Maint. & Repair, Inc., 11 So. 3d 411 (Fla. 2d DCA 2009).

Millette v. Tarnove etc., 435 F. App'x 848 (11th Cir. 2011).

Wopshall v. The Travelers Home & Marine Ins. Co. (S.D. Fla. 2019).

— 768.81(3)(a)(1) — 1 case

Hominski v. Gusar, LLC (S.D. Fla. 2025).

— 768.81(3)(a)(2) — 1 case

J.L. Prop. Owners Ass'n, Inc. v. Timothy F. Schnurr, as of the Est. of James v. Schnurr, & Christine Schnurr (Fla. 4th DCA 2022).

— 768.81(3)(a)(3) — 1 case

Burns Intern. SEC. v. Philadelphia Indem., 899 So. 2d 361 (Fla. 4th DCA 2005).

— 768.81(3)(b) — 5 cases

R.J. Reynolds Tobacco Co. v. Grossman, 96 So. 3d 917 (Fla. 4th DCA 2012).

Holmes Reg'l Med. Ctr., Inc. v. Allstate Ins. Co., 225 So. 3d 780 (Fla. 2017).

Sims v. BMW of North Am. LLC (M.D. Fla. 2025).

Holmes Reg'l Med. Ctr., Inc. v. Allstate Ins. Co. – Corrected Opinion (Fla. 2017).

Knepfle v. J & P Cycles, LLC (M.D. Fla. 2019).

— 768.81(3)(c) — 1 case

Erickson v. Irving, 16 So. 3d 868 (Fla. 3d DCA 2009).

— 768.81(3)(d) — 2 cases

Kay's Custom Drapes, Inc. v. Garrote, 920 So. 2d 1168 (Fla. 3d DCA 2006).

Yakavonis v. Dolphin Petroleum, Inc., 934 So. 2d 615 (Fla. 4th DCA 2006).

— 768.81(3)(e) — 1 case

Witt v. La Gorce Country Club, Inc., 35 So. 3d 1033 (Fla. 3d DCA 2010).

— 768.81(4) — 21 cases

R.J. Reynolds Tobacco Co. v. Joan Schoeff, as Pers. Rep. of the Est. of James Edward Schoeff, 178 So. 3d 487 (Fla. 4th DCA 2015). “Section 768.81 does not permit the reduction of compensatory damages by plaintiff’s comparative fault where the suit is based upon an intentional tort (“the intentional tort exception”).”

R.J. Reynolds Tobacco Co. v. Hiott, 129 So. 3d 473 (Fla. 1st DCA 2014).

R.J. Reynolds Tobacco Co. v. Grossman, 211 So. 3d 221 (Fla. 4th DCA 2017).

Dep't of Corr. v. McGhee, 653 So. 2d 1091 (Fla. 1st DCA 1995).

— 768.81(4)(a) — 17 cases

Merrill Crossings Assocs. v. McDonald, 705 So. 2d 560 (Fla. 1997).

R.J. Reynolds Tobacco Co. v. Calloway, 201 So. 3d 753 (Fla. 4th DCA 2016).

— 768.81(4)(b) — 16 cases

R.J. Reynolds Tobacco Co. v. Hiott, 129 So. 3d 473 (Fla. 1st DCA 2014).

D'AMARIO v. Ford Motor Co., 806 So. 2d 424 (Fla. 2001). “(citing § 768.81, Fla. Stat. (1993)). In so concluding, the court rejected the argument that a plaintiff's comparative fault should not be considered in the secondary collision context.”

Bakerman v. the Bombay Co., Inc., 961 So. 2d 259 (Fla. 2007).

Stellas v. Alamo Rent-A-Car, Inc., 673 So. 2d 940 (Fla. 3d DCA 1996).

— 768.81(5) — 5 cases

Gouty v. Schnepel, 795 So. 2d 959 (Fla. 2001). “See § 768.81, Fla. Stat. (2000). The version of section 768.”

Metro. Dade Cnty. v. Frederic, 698 So. 2d 291 (Fla. 3d DCA 1997).

Dewitt Excavating, Inc. v. Walters, 642 So. 2d 833 (Fla. 5th DCA 1994).

Schultz v. Wilkes, 689 So. 2d 435 (Fla. 5th DCA 1997).

Subwick v. Conners, 723 So. 2d 880 (Fla. 4th DCA 1998).

— 768.81(6) — 2 cases

R.J. Reynolds Tobacco Co. v. Jennifer Rey (Fla. 3d DCA 2025).

Gonzalez v. Seabest, Inc. (S.D. Fla. 2024).

— 768.81(c) — 1 case

Pinares v. United Tech. Corp. (S.D. Fla. 2023).

— 768.81(d) — 1 case

Pinares v. United Tech. Corp. (S.D. Fla. 2023).

— 768.81(l) — 1 case

— 768.81(l)(c) — 2 cases

R.J. Reynolds Tobacco Co. v. Sury, 118 So. 3d 849 (Fla. 1st DCA 2013).

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