Florida/Georgia Personal Injury & Workers Compensation

...ineral spirits out of the reach of their son. Their actions must also be judged in accordance with the rules of comparative negligence and, thus, cannot serve as a basis for dismissing the complaint for failure to state a claim. 9 See Fla.Stat. Ann. § 768.81(2); see also Bean, 532 So.2d at 686 (the issue of whether a mother’s conduct in placing an open plastic soda bottle containing mineral spirits within easy reach of her child was the sole proximate cause of the child’s death was for the jury to decide)....

...Thermoset at risk of receiving inadequate relief. Florida is not a joint-and-several liability state. Under Florida law, a defendant in a product liability action (like GAF) is liable only for the amount of damages proportional to its percentage of fault. See Fla. Stat. § 768.81(3)....

...ly denied based on fraudulent misrepresentation. Second, FIGA argued that Jones had failed to timely file her claim, and that the claim was therefore barred. FIGA also asserted that damages against the Association were only available as permitted by section 768.81 of the Florida Statutes (1995) (the comparative negligence provision), as limited by section 631.57....

...D’Amario reconciles principles of comparative fault and proximate causation in enhanced injury cases. Florida follows the doctrine of comparative fault in civil negligence, strict liability, products liability, and breach of warranty cases such as this one. Fla. Stat. § 768.81 (2004)....

...As noted in the above-cited annotation, the rationale for this majority view "rests on the notion that there is no reason to differentiate negligent misrepresentations from any other forms of negligence." 22 A.L.R. 5th at 471. This view is consistent with Florida law as set forth in section 768.81, Florida Statutes (1995), which provides that comparative fault principles shall apply in negligence cases. That section provides: 768.81....

...hich is the very type of loss at issue in this action. By this opinion, we adopt the Restatement (Second) of Torts' position on negligent misrepresentation contained in section 552. Further, we find that the comparative fault provisions contained in section 768.81 apply to actions involving negligent misrepresentation....

...The court determined that the medical evidence indicated that everyone treating Bravo had failed to meet the requisite standard of care and that their negligence contributed substantially to Kevin’s injuries. 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....

...government would be fully responsible for Dr. Kushner’s part of the judgment. The court ruled that even if it were wrong about Dr. Kushner being a government employee, apportionment would still not be proper because of two exceptions to Fla. Stat. § 768.81(3): (1) the initial-subsequent tortfeasor exception, and (2) the indivisible injury exception. The court entered a total judgment against the government in the amount of $60,485,788.98 to Bravo, Rodriguez, and Kevin....

...7  The government raises three primary issues on appeal, contending that the district court erred by: (1) finding that Dr. Kushner was a government employee instead of an independent contractor; (2) failing to apply Fla. Stat. § 768.81(3) to apportion the damages among the joint tortfeasors; and (3) not further reducing the damages awarded. A. There is some dispute among the circuits about whether an individual’s statu...

...ssue standing. The district court stated that the question of Dr. Kushner’s employment 8 status was “merely academic,” because the court determined that either of two exceptions to Fla. Stat. § 768.81(3) applied, making all of the defendants jointly and severally liable for the entire damage award regardless of whether Dr. Kushner was an employee of the government....

...Alternatively, the court addressed the issue of Dr. Kushner’s employment status, and interpreted the various contracts to mean that he was employed by the government for FTCA purposes. Because we agree with that alternative ruling we need not address the § 768.81(3) issues. We have established the “control test” for determining whether an individual is a government employee or an independent contractor: “[A] person is an employee of the Government if the Government controls and super...

...Kushner was a government employee for FTCA purposes. 11  Because Dr. Kushner was an employee of the government, we need not reach the government’s argument that liability should have been apportioned among the separate tortfeasors in accordance with Fla. Stat. § 768.81(3). Regardless of the applicability of that statue, the government is liable for the entire judgment in its role as employer. B. Our review of the size of the damages verdict is for clear error....

...damages available to the suitor." --- U.S. at ----, 119 S.Ct. at 672. The comparative fault regime urged by American goes beyond the issue of the amount of damages available to the suitor; it acts to limit the liability, or fault, of the air carrier. See Fla. Stat. Ann. § 768.81(3) ("the court shall enter judgment against each party liable on the basis of such party's percentage of fault")....

Florida's comparative fault statute, Florida Statute § 768.81. Because the jury had returned a single damages

...Dougherty, 636 So.2d 746, 748 (Fla. 2d DCA) (without evidence of the nonparty defendant's negligence, the named defendant has "not satisfied the foundation necessary for a jury to receive jury instructions and a verdict form to decide the case pursuant to section 768.81, Florida Statutes (1991) and Fabre "), review denied, 645 So.2d 457 (Fla.1994)....

...or resolution. The first question relates to the application of Florida's comparative fault statute to a vicariously liable party. 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....

...n Rountree's status as the subcontractor to transportation contractor WOKO. Id. at 1253-54. Comparative Fault Issue AHA argued on appeal that its damages recovery should not be limited to 41% under the comparative fault principles *466 enunciated in section 768.81, Florida Statutes (1997). Nat'l R.R. Passenger Corp., 286 F.3d at 1254-56. AHA argued that a party who is only vicariously liable cannot have another's fault apportioned to him under section 768.81, as this statute only applies to parties who are directly negligent, who actively participate in the accident at issue, or who constitute joint or concurrent tortfeasors. AHA relied upon the use of the word "fault" in the statute. In response, KUA, FMPA, CSX, and Amtrak (the "comparative fault appellees") noted that under section 768.81(2) any contributory fault that is "chargeable to the claimant" has the effect of diminishing damages "for an injury attributable to the claimant's contributory fault." Id. at 1256. After examining the parties' arguments and reviewing Florida case law, the Eleventh Circuit concluded that existing Florida case law does not resolve the question of how section 768.81 is to be interpreted with regard to vicarious liability. Accordingly, the Eleventh Circuit certified the following question of law to this Court for instructions: SHOULD A VICARIOUSLY LIABLE PARTY HAVE THE NEGLIGENCE OF THE ACTIVE TORTFEASOR APPORTIONED TO IT UNDER FLORIDA STATUTE § 768.81 SUCH THAT RECOVERY OF ITS OWN DAMAGES IS REDUCED CONCOMITANTLY? Id....

...ty that is more responsible for an accident recovering more than a party that is less responsible. But, this doctrine is designed to compute each party's liability based on the damages they caused as opposed to the damages they suffered. Id. at 439. Section 768.81, Florida Statutes, codified the holding of Hoffman v....

...(3) APPORTIONMENT OF DAMAGES.—In cases to which this section applies, 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;. . . . § 768.81(2)-(3), Fla. Stat. (1997). [3] Nothing in the legislative history of this statute indicates an intention other than a direct codification of this Court's adoption of comparative liability. Section 768.81 was enacted as part of the comprehensive Tort Reform and Insurance Act of 1986....

...o be directly negligent, the comparative fault statute is not applicable. In contrast, the railroads note that the statute provides that any award of damages is to be diminished proportionately by "any contributory fault chargeable to the claimant." § 768.81(2), Fla....

...AHA relies in part on Wal-Mart Stores, Inc. v. McDonald, 676 So.2d 12, 20 (Fla. 1st DCA 1996), approved sub nom. Merrill Crossings Assocs. v. McDonald, 705 So.2d 560 (Fla.1997), a decision in which the First District Court of Appeal interpreted "fault" under section 768.81 as equating to a defendant's amount of "negligence." However, the First District's analysis was narrowly aimed at distinguishing negligent acts *470 from intentional, criminal acts. The First District concluded that the Legislature did not intend for the language in section 768.81 to treat negligence and intentional, criminal acts the same....

..."The party who is vicariously liable is responsible to the plaintiff to the same extent as the primary actor." June F. Entman, The Nonparty Tortfeasor, 23 Mem. St. U.L.Rev. 105, 106 (1992). S & S was vicariously liable for Rountree's negligence and AHA, in turn, stepped in to S & S's shoes as a subrogee. Our conclusion that section 768.81 applies to vicariously liable parties as well as active tortfeasors also harmonizes with Florida's contribution statute....

...tly dangerous activities S & S was vicariously liable for the actions of Rountree. This determination was made after fault had already been apportioned to the liable parties by the jury. AHA cites two additional cases to support its proposition that section 768.81 is not applicable to this case....

...Marin was entered in the amount of $357,750. On appeal, the issue was whether the liability for noneconomic damages should be apportioned to the Fabres on the basis of the percentage of fault attributed to them. Hence, the district court of appeal was called upon to interpret section 768.81(3), Florida Statutes (Supp....

...Rather, the legislature intended only to apportion liability among those tortfeasors who were defendants in the lawsuit. Hence, the court affirmed the full amount of the judgment. In Messmer, the Fifth District Court of Appeal reached the opposite conclusion in applying section 768.81(3) to facts which for purposes of this appeal were the same as those in the instant case. The Messmer court adopted the rationale of the trial court's order, which read in pertinent part: "Section 768.81(3) provides that 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.' The court is of the opinion that the lang...

...While recognizing the logic in Disney's position that it should not be responsible for 86% of the damages, we declined to judicially eliminate joint and several liability on the premise that this was a public policy matter which would be best decided by the legislature. The legislature acted upon the subject by enacting section 768.81(3)....

...rtioned among all participants to the accident. The abolition of joint and several liability has been advocated for many years because the doctrine has been perceived as unfairly requiring a defendant to pay more than his or her percentage of fault. Section 768.81 was enacted as part of the Tort Reform and Insurance Act of 1986, chapter 86-160, Laws of Florida, in which the legislature found "that there is in Florida a financial crisis in the liability insurance industry" and "that the current t...

...1990). In passing on the constitutionality of the act, we observed that the right of access to courts "does not include the right to recover for injuries beyond those caused by the particular defendant." Smith, 507 So.2d at 1091. We are convinced that section 768.81 was enacted to replace joint and several liability with a system that requires each party to pay for noneconomic damages only in proportion to the percentage of fault by which that defendant contributed to the accident....

...It would be incongruous that the legislature would have intended that the Fabres' responsibility be 100% in situations where Mrs. Marin's vehicle was operated by her husband and only 50% in situations where by chance she was a passenger in a vehicle operated by a friend. The court below erroneously interpreted section 768.81 by concluding that the legislature would not have intended to preclude a fault-free plaintiff from recovering the total of her damages....

...g joint and several liability was that in the event one of the defendants is insolvent the plaintiff should be able to collect the entire amount of damages from a solvent defendant. By eliminating joint and several liability through the enactment of section 768.81(3), the legislature decided that for purposes of noneconomic damages a plaintiff should take each defendant as he or she finds them....

...We believe that any inconsistencies which may occur in given factual scenarios can be harmonized. [3] However, in the event they cannot, the legislature has already resolved the issue. Section 768.71(3), Florida Statutes (Supp. 1988) provides that if the provisions of sections 768.71-768.81 conflict with any other provisions of the Florida Statutes, such other provisions shall prevail....

...o judge a forest by observing just one tree. It cannot, and more important should not, be done."). Accordingly, Mrs. Marin's judgment should be reduced by 50% of her noneconomic damages. There should be no reduction in economic damages because under section 768.81(3), joint and several liability continues to apply when a defendant's negligence equals or exceeds that of the plaintiff....

...m and a negligent party, the innocent victim should be made whole by receiving damages from a negligent party. Because the language of the statute does not compel the majority's conclusion in this case, I dissent. The Legislature undeniably intended section 768.81(3), Florida Statutes (Supp....

...arties in the suit. However, nowhere in the statutory language or in legislative history has the Legislature made clear its intent to apply the statute to nonparties in the unusual situation presented by these facts. To the contrary, the language in section 768.81(3) is susceptible of at least two equally plausible interpretations of legislative intent....

...s. [2] If the accident had happened today, Mrs. Marin could sue her husband because the doctrine of interspousal immunity has now been abrogated. Waite v. Waite, 618 So.2d 1360 (Fla. 1993). [3] Thus, we reject the argument that our interpretation of section 768.81(3) when coupled with the right to setoff under section 768.31(5) will lead to a double reduction in the amount of damages....

...solve the issue of that defendant's proportionate share of negligence. We reject the contention that it was essential that DeMario remain in the suit in order to determine her share of negligence. For the purpose of apportioning noneconomic damages, section 768.81(3), Florida Statutes (1989), [3] requires the fault of all persons responsible for an accident to be determined regardless of whether they are parties to the litigation....

...dant has shallow pockets. The plaintiff may accept a fixed payment from the settling defendant (typically the full extent of his insurance coverage) in exchange for his assistance in securing a large judgment against his codefendant. [3] Apparently, section 768.81(3), which was first enacted in 1986, was not applicable in Whited....

..._____% The same interrogatory was submitted on the verdict form for Worlds. In apportioning fault, the jury determined that Barton was 98% liable and Nunes and Interian were each 1% liable. Barton and plaintiffs argue that this apportionment interrogatory is in direct and express conflict with section 768.81, Florida Statutes, and Merrill Crossings Associates v. McDonald, 705 So.2d 560 (Fla.1997). In Merrill Crossings, the supreme court held that section 768.81, Florida Statutes, requiring that judgments against parties in negligence cases be based on comparative fault rather than joint and several liability, does not apply to an action based upon an intentional tort....

...TO EMPLOY REASONABLE SECURITY MEASURES, WITH SAID OMISSION RESULTING IN AN INTENTIONAL, CRIMINAL ACT BEING PERPETRATED UPON THE PLAINTIFF BY A NON-PARTY ON PROPERTY CONTROLLED BY THE DEFENDANTS, AN "ACTION BASED UPON AN INTENTIONAL TORT" PURSUANT TO SECTION 768.81(4)(B), FLORIDA STATUTES (1993), SO THAT THE DOCTRINE *561 OF JOINT AND SEVERAL LIABILITY APPLIES? IN SUCH AN ACTION, IS IT REVERSIBLE ERROR FOR THE TRIAL COURT TO EXCLUDE AN INTENTIONAL, CRIMINAL NON-PARTY TORTFEASOR FROM THE VERDICT FORM? Wal-Mart Stores, Inc....

...Merrill Crossings recovered a judgment on its cross-claim for indemnity against Wal-Mart plus attorney's fees and costs. Wal-Mart appealed. The First District Court of Appeal concentrated on the issue of whether the trial court erred in failing to include the assailant on the verdict form. The court looked to section 768.81, Florida Statutes (1993), and Slawson v. Fast Food Enterprises, 671 So.2d 255 (Fla. 4th DCA 1996), review dismissed, 679 So.2d 773 (Fla.1996), and ultimately concluded that excluding the assailant from the verdict form was not error. Section 768.81 codifies "Comparative Fault"; it provides in relevant part: (2) EFFECT OF CONTRIBUTORY FAULT.—In an action to which this section applies, any contributory fault chargeable to the claimant diminishes proportionately the amount awarded...

...In determining whether a case falls within the term "negligence cases," the court shall look to the substance of the action and not the conclusory terms used by the parties. (b) This section does not apply ... to any action based upon an intentional tort.... § 768.81, Fla....

...Ady v. American Honda Finance Corp., 675 So.2d 577 (Fla.1996), and Carlile v. Game & Fresh Water Fish Commission, 354 So.2d 362 (Fla. 1977), for the principle that statutes in derogation of the common law must be strictly construed. The court quoted section 768.81(4)(a), which states that the statute applies only to "negligence cases" and not to "any action based upon an intentional tort." Because the statute was to be strictly construed, the court accepted McDonald's contention that the substan...

...The court noted that it was foreseeable, intentional conduct from which the appellants had a duty to protect McDonald. The district court distinguished the instant case from our decision in Fabre v. Marin, *562 623 So.2d 1182 (Fla.1993), where we said: "We are convinced that section 768.81 was enacted to replace joint and several liability with a system that requires each party to pay for noneconomic damages only in proportion to the percentage of fault by which that defendant contributed to the accident." Fabre, 623 So.2d at 1185....

..... and in the social condemnation attached to it.' Prosser and Keeton on the Law of Torts, § 65, at 462 (5th ed.1984)." Wal-Mart, 676 So.2d at 21. The court concluded that excluding the criminal assailant from the verdict form was not error because section 768.81 does not apply to the instant action, but certified the questions at issue....

...Thus, it would be irrational to allow a party who negligently fails to provide *563 reasonable security measures to reduce its liability because there is an intervening intentional tort, where the intervening intentional tort is exactly what the security measures are supposed to protect against. Section 768.81(4)(a) explicitly states, "In determining whether a case falls within the term `negligence cases,' [such that comparative fault would be required] the court shall look to the substance of the action and not the conclusory terms used by the parties." The Slawson court, in holding that section 768.81 did not apply to that case, reasoned: Hence looking "to the substance of the action and not the conclusory terms used by the parties," we conclude that the substance of this action was an intentional tort, not merely negligence....

...The substance of the action here is that McDonald was the victim of an intentional tort; we are not faced with the kind of true negligence action we examined in Fabre. Accordingly, we agree with the reasoning of the Slawson court as to this issue and hold that section 768.81, by its own terms, does not apply to the instant case to mandate comparative fault. Because we hold that section 768.81 is not applicable to the instant case, it was not error to exclude the intentional tortfeasor from the verdict form....

...s from the reasonably foreseeable intentional attack of a third party. A jury agreed with both claims and assessed economic damages of $88,000 and non-economic damages of $212,000. The trial judge, however, had decided that the action was covered by section 768.81, Florida Statutes, and consequently asked the jury to apportion fault between Kidd and Burger King....

...The judge later reduced Burger King's liability for non-economic damages in accordance with the jury's apportionment. On appeal, Mrs. Slawson argues that the statute is inapplicable to this action founded on an intentional tort. We agree and reverse. Section 768.81 provides in pertinent part as follows: "(3) Apportionment of damages.— In cases to which this section applies, the court shall enter judgment against each party liable on the basis of such party's percentage of fault and not on the ba...

...In other words, statutes abolishing or limiting the common law must be clear as to the abrogation or change; when the extent of the abrogation or change is not clear from the text of the *258 statute, then the common law rule stands. Id. Beginning with the text of section 768.81, we find in subsection (3) that proportionate fault is to be diminished or reduced only in those actions to which the section applies....

...Reading the statute as contended by Burger King produces a perverse and irreconcilable anomaly. On the one hand Burger King owed a duty to protect her from foreseeable intentional assaults by other patrons; but on the other hand, Burger King contends, it is entitled under section 768.81 to diminish or defeat its liability for the breach of that duty by transferring it to the very intentional actor it was charged with protecting her against....

...very act that the landlord had a duty to protect against, and passing off the liability in whole or in part to the very person that Burger King had a duty to protect against. The clear distinction that the legislature has so carefully constructed in section 768.81(4) between intentional and negligence actions precludes us from finding an intent in this statute to erase or obliterate the common law rules barring the Burger King defendants in this action from reducing their own liability by the in...

...ure negligence action is quite different from whether the statute is even applicable to the action in which it was raised. In order to facilitate supreme court review of the issue, however, we hereby certify the following question to the court: Does section 768.81 require or permit apportionment of fault in an action by a victim of an intentional assault against the person committing the assault and another person who, reasonably foreseeing the event, fails to take steps to prevent it from occurring? We address the second issue on appeal....

...damages. She also contends that the trial judge should have *260 instructed the jury not to reduce plaintiff's damages by Kidd's percentage of fault. Even if, for the sake of argument, this were properly a case requiring apportionment of fault under section 768.81, we find prejudicial error in so limiting plaintiff's closing argument and in failing to instruct the jury that apportionment of fault does not permit any reduction by the jury in the assessment of damages. As one judge has pointed out, if a defendant seeks the benefit of section 768.81, "the jury should be told about the effect that the statute will have on its verdict, just as it is told about the effect of traditional comparative negligence." Seminole Gulf Ry....

...1st DCA 1990); and Taylor v. State, 330 So.2d 91 (Fla. 1st DCA 1976). Although these are criminal cases, the principle is no less applicable to civil cases as to law the court has decided is applicable to the action and which affects the issues to be tried. Again, even if section 768.81 required apportionment in this case, the failure to permit the argument and give the instruction requires a new trial on damages....

...GLICKSTEIN and WARNER, JJ., concur. NOTES [1] For the sake of convenience, we refer to the three appellees as "Burger King" even though they each occupy a different status as to the restaurant in suit. [2] The parties have stipulated that the legislative history to section 768.81, both written and audio, offers no assistance in understanding the text....

...1999)("Joint and several liability is also appropriate when the tortious acts of multiple tortfeasors combine to produce a single, indivisible injury."). Application of the indivisible injury rule is not inconsistent with Florida statutory law concerning the apportionment of damages amongst tortfeasors based on fault. Section 768.81(3), Florida Statutes (1999), provides that trial courts "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." In Fabre v. Marin, 623 So.2d 1182 (Fla.1993), this Court observed that the Legislature's intention in enacting section 768.81 was to "replace joint and several liability with a system that requires each party to pay for noneconomic damages only in proportion to the percentage of fault by which that defendant contributed to the accident." Fabre, 623 So.2d at 1185....

...We review Tallahassee Memorial Regional Medical Center, Inc. v. Wells, 634 So.2d 655 (Fla. 1st DCA 1994), in which the district court of appeal certified the following questions to be of great public importance: (A) IS A NON-SETTLING DEFENDANT IN A CASE TRIED UNDER SECTION 768.81(3) ENTITLED TO SETOFF OR REDUCTION OF HIS APPORTIONED SHARE OF THE DAMAGES, AS ASSESSED BY THE JURY, UNDER THE PROVISIONS OF SECTIONS 768.041(2), 46.015(2) OR 768.31(5)(a), BASED UPON SUMS PAID BY SETTLING DEFENDANTS IN EXCESS OF THEIR...

...In reversing the judgment, the district court of appeal found that footnote 3 of this Court's opinion in Fabre v. Marin, 623 So.2d 1182 (Fla. 1993), was controlling. Id. at 658-59. Recognizing some merit in Wells' arguments, however, the court chose to certify the foregoing questions. In Fabre, this Court interpreted section 768.81(3), Florida Statutes (Supp....

...In order to do this, it is necessary to determine the percentage of fault of all entities who contributed to the accident regardless of whether they are joined as defendants. Footnote 3 of our opinion in Fabre states: Thus, we reject the argument that our interpretation of section 768.81(3) when coupled with the right to setoff under section 768.31(5) will lead to a double reduction in the amount of damages....

...easor's liability. She asserts that the setoff statutes are only applicable where there is common liability, as in the case of economic damages. Thus, where liability is determined by the jury as a percentage of fault, the comparative fault statute, section 768.81(3), would apply and there would be no setoff. On the other hand, TMRMC argues that the purpose of the setoff provisions is to prevent duplicate or overlapping compensation for identical damages. The abolition of joint and several liability by section 768.81(3), TMRMC argues, did not alter this long-established prohibition against double recovery....

...At first glance, it would appear that the rationale of footnote 3 would foreclose Wells' claim. In fairness, however, the arguments advanced in this appeal were not presented to, nor considered by, this Court in Fabre. The illustration in footnote 3 was intended to demonstrate that our interpretation of section 768.81(3) would not lead to a double reduction in damages....

...Canyon Highway District No. 4, 122 Idaho 73, 831 P.2d 541 (1992), overruled on other grounds, Lawton v. City of Pocatello, 126 Idaho 454, 886 P.2d 330 (1994). We are persuaded by the logic of what is clearly the majority rule. Moreover, we are convinced that the language of section 768.81(3) and the setoff statutes lead to this result. Section 768.81(3) provides: APPORTIONMENT OF DAMAGES....

...that with respect to any party whose percentage of fault equals or exceeds that of a particular claimant, the court shall enter judgment with respect to economic damages against that party on the basis of the doctrine of joint and several liability. § 768.81(3), Fla. Stat. (1989). Under section 768.81(3), each defendant is solely responsible for his or her share of noneconomic damages. The setoff provisions, which were enacted *253 before section 768.81, presuppose the existence of multiple defendants jointly liable for the same damages....

...at the time of rendering judgment. § 46.015, Fla. Stat. (1989) (emphasis added). Section 46.015 clearly applies to "a person who is or may be jointly and severally liable with other persons for a claim." Id. (emphasis added). A defendant sued under section 768.81 may not be jointly liable with other defendants for noneconomic damages....

...WELLS, J., concurs specially with an opinion, in which KOGAN, J., concurs. ANSTEAD, J., concurs specially with an opinion. *255 WELLS, Justice, concurring specially. I concur with the majority's reconciliation of sections 46.015(2), 768.31(5), and 768.81(3), Florida Statutes (1991), in this case in which the parties stipulated that the settling defendants would remain on the verdict form although Fabre v. Marin, 623 So.2d 1182 (Fla. 1993), had not yet been decided. It is my view that the majority's interpretation of these statutes is correct in cases in which the jury is instructed to apportion fault in accordance with Fabre's interpretation of section 768.81(3)....

...While I concur in the majority's opinion because it makes very good sense, I have some concern that the legislature has not acted to express or clarify its intent as to the continuing application of the provisions of sections 46.015(2), 768.31(5)(a), and 768.041(2), Florida Statutes (1991), in view of the enactment of section 768.81(3), Florida Statutes (1989). Prior to the adoption of section 768.81(3), a tortfeasor might have had to shoulder more than its proportionate share of fault in responding to a claim....

...Hence, the remaining tortfeasor-defendant, in effect, receives a "contribution" from the settling tortfeasor in the form of a reduction in the judgment for damages the remaining tortfeasor-defendant may face. This is how the legislative contribution scheme worked before the enactment of section 768.81(3). With the enactment of section 768.81(3), the need for, and the role of, the contribution scheme set out above has been substantially reduced. Under section 768.81(3), a judgment is to be entered against a particular tortfeasor-defendant only "on the basis of such party's percentage of fault and not on the basis of the doctrine of joint and several liability." Since this tortfeasor-defendant now...

...tfeasors, or by a reduction in the judgment entered against him in the amount of any settlements made by the claimant with other tortfeasors. Since the "problem" of a tortfeasor paying more than his fair share has been eliminated by the enactment of section 768.81(3), the "solution" to the problem by the scheme of contribution and setoff is no longer needed....

...The underlying purpose of the contribution scheme and sections 46.015(2), 768.31(5)(a), and 768.041(2) is simply no longer served in such a case. This is the essence of our decision today. However, it is important to note that the legislature left the contribution scheme described above largely intact when it adopted section 768.81(3)....

...suitor.” --- U.S. at ---, 119 S. Ct. at 672. The comparative fault regime urged by American goes beyond the issue of the amount of damages available to the suitor; it acts to limit the liability, or fault, of the air carrier. See Fla. Stat. Ann. § 768.81(3) (“the court shall enter judgment against each party liable on the basis of such party’s percentage of fault”)....

...Hal B. Anderson of Billing, Cochran, Heath, Lyles & Mauro, P.A., Fort Lauderdale, Amicus Curiae for Florida Defense Lawyers Association. COBB, J. 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 the trial court erred in refusing to grant the plaintiffs a new trial or additur on the issue of damages....

...hat the undisputed evidence established that Basel's past lost wages were $317,450, his future loss of earning capacity was $933,067 and his future medical expenses were $3,869,471. The defendants moved the court to enter judgment in accordance with section 768.81, Florida Statutes, as amended by Chapter 99-225 section 27, Laws of Florida, which became effective October 1, 1999....

...Application of the 1999 statutory amendment would result in a judgment against Queen and McFarland & Son, Inc. being limited to $718,128.90. The plaintiffs filed a motion asking the court to enter judgment against the defendants in accordance with the version of section 768.81, Florida Statutes that existed prior to the October 1, 1999 amendment....

...eded to enter final judgment against Queen and McFarland & Son, Inc. for $718,128.90 (economic damages of $650,128.90, non-economic damages of $38,000), and against the Estate of Jean Basel for $2,279,945. APPLICATION OF OCTOBER 1, 1999 AMENDMENT TO SECTION 768.81, FLORIDA STATUTES, TO PENDING CAUSE OF ACTION— At common law, each defendant tortfeasor who caused injuries to a plaintiff was *691 jointly and severally liable for the total of the plaintiff's damages, regardless of the extent of each defendant's fault....

...While recognizing logic in Disney's position that it should not be responsible for 86% of the damages, the Florida Supreme Court declined to judicially disturb joint and several liability, instead suggesting that the subject was best left to the legislature. The legislature enacted section 768.81(3), Florida Statutes, providing for liability to be determined on the basis of the percentage of fault of each tortfeasor....

...ntiff's economic damages. The statute precluded joint and several liability for non-economic damages ( i.e., pain and suffering), except where the amount of damages (economic and noneconomic) was $25,000 or less. [1] The October 1, 1999 amendment to section 768.81 altered joint and several liability for economic damages based upon a sliding scale, depending upon whether the plaintiff was with or without fault and depending upon the percentage of fault of the defendant....

...aintiff was without fault. If the defendant was more than 50% negligent, his joint and several liability was capped at $1,000,000 if the plaintiff had some fault, and capped at $2,000,000 if the plaintiff was without fault. Under the 1986 version of section 768.81 (which existed when Basel's cause of action *692 accrued in August 1994), there was no limit to the amount of economic damages that Basel could recover against each defendant whose fault was equal to or greater than his....

...Basel argues that this monetary difference is a substantive one and that the statutory amendment can only be applied prospectively and not retroactively so as to impair what he claims is a vested right. The defendants counter that Chapter 99-225, section 27, Laws of Florida, which contained the amendment to section 768.81, demonstrates that the legislature intended the amendment to apply to existing causes of action as the legislature viewed the amendment as causing no substantive change to vested rights....

...effort, apply to existing causes of action. Retroactive application will not be left to implication. In the absence of an explicit legislative expression, the default rule is invoked and the inquiry becomes whether the amendment in Chapter 99-225 to section 768.81 is substantive in nature or procedural or remedial....

...ro rata share of the judgment. The court stated that the Contribution Act "does not increase the liability of any of the participants in the offense," and therefore it could be applied retroactively. In contrast, application of the 1999 amendment to section 768.81, Florida Statutes, to this case acts to decrease the pre-existing legal liability of some of the defendants to the plaintiff....

...suffered a severe, disabling brain injury in the accident, would live another 32.6 years. The trial court did not abuse its discretion in denying additur. The final judgment is reversed for entry of a corrected final judgment applying the version of section 768.81(3), Florida Statutes, in existence in August, 1994....

...3d DCA 1968). Exclusion of Intentional Criminal Attacker From Verdict Form The trial court held that because the perpetrator who shot McDonald had committed an intentional, criminal act, the attacker would not be included on the verdict form. Citing section 768.81, Florida Statutes, which the trial court found inapplicable, and Fabre v....

...4th DCA 1996) (reversing trial court's ruling that had allowed jury in negligence suit to apportion fault and liability between the negligent fast-food restaurant and the intentional, criminal tortfeasor who attacked the plaintiff on the restaurant's premises). The statute reads in pertinent part: 768.81 Comparative fault.___ (1) DEFINITION.___As used in this section, "economic damages" means past lost income and future lost income reduced to present value; medical and funeral expenses; lost support and services; ......

...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 [footnotes deleted]. § 768.81, Fla....

...nduct of another on his land by simply pointing to the intentional conduct of the attacker. Holley v. Mt. Zion Terrace Apartments, Inc., 382 So.2d 98 (Fla. 3d DCA 1980). 671 So.2d at 257 (emphasis in original). Being in derogation of the common law, section 768.81, Florida Statutes, must be strictly construed in favor of the common law....

...dicate such change clearly, or else the rule of common law stands. Id. at 364. A court will not infer that a statute was intended to enact any change in the common law other than what is specified and plainly pronounced. Therefore, a statute such as section 768.81 should not be interpreted to displace the common law any more than is necessary. Godales v. Y.H. Investments, Inc., 667 So.2d 871 (Fla. 3d DCA 1996) (as § 768.81 does not explicitly abrogate common-law rule that child's recovery should not be diminished by parent's negligence, statute must be construed to preserve common-law rule); Robinson & St....

...King produces a perverse and irreconcilable anomaly. On the one hand Burger King owed a duty to protect [the victim, a patron] from foreseeable intentional assaults by other patrons; but on the other hand, Burger King contends, it is entitled under section 768.81 to diminish or defeat its liability for the breach of that duty by transferring it to the very intentional actor it was charged with protecting her against....

...held liable due to spousal immunity provision in policy), rev. den., 598 So.2d 77 (Fla.1992). See Fabre v. Marin, 597 So.2d 883, 886 (Fla. 3d DCA 1992). The Fabres' appeal required the Supreme Court of Florida to determine the legislative intent of section 768.81, Florida Statutes....

...have been or could have been joined as defendants. Even if it could be said that the statute is ambiguous, we believe that the legislature intended that damages be apportioned among all participants to the accident. * * * * * * We are convinced that section 768.81 was enacted to replace joint and several liability with a system that requires each party to pay for noneconomic damages only in proportion to the percentage of fault by which that defendant contributed to the accident. Fabre, 623 So.2d at 1185. Additionally, the supreme court held: The court below erroneously interpreted section 768.81 by concluding that the legislature would not have intended to preclude a fault-free plaintiff from recovering the total of her damages....

...g joint and several liability was that in the event one of the defendants is insolvent the plaintiff should be able to collect the entire amount of damages from a solvent defendant. By eliminating joint and several liability through the enactment of section 768.81(3), the legislature decided that for purposes of noneconomic damages a plaintiff should take each defendant as he or she finds them....

...The "apportionment of damages" provision in the comparative fault statute states: In cases to which this section applies, 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. § 768.81(3), Fla....

...223 So.2d at 555 (negligence connotes an unintentional tort). This distinction was addressed in Publix Supermarkets, Inc. v. Austin, 658 So.2d 1064 (Fla. 5th DCA), rev. den., 666 So.2d 146 (Fla.1995), which required the district court to resolve how section 768.81, Florida Statutes, affects a case with two joint tortfeasors___one alleged to be negligent and the other charged with a willful tort....

...Dean Prosser echoed these conclusions, stating that intentional wrongdoing differs from simple negligence "not merely in degree but in the kind of fault... and in the social condemnation attached to it." Prosser and Keeton on the Law of Torts, § 65, at 462 (5th ed.1984). The public policy underlying our construction of section 768.81, Florida Statutes, is that negligent tortfeasors such as Wal-Mart and Merrill Crossings should not be permitted to reduce their fault by shifting it to another tortfeasor whose intentional, criminal conduct was a foreseeable result of their negligence....

...It is neither unfair nor irrational for an innocent plaintiff to collect full damages from negligent defendants who knew, or should have known, that an injury would be intentionally inflicted and failed in their duty to prevent it. McDonald notes that it makes sense that section 768.81, Florida Statutes, protects a plaintiff by allowing the choice between collecting full damages from either the intentional actor or the negligent party whose negligence caused the intentional act. At the same time, the contribution statute prevents an intentional actor who pays the plaintiff from collecting against a negligent co-tortfeasor. § 768.31(2)(c), Fla. Stat. (1993). In summary, we conclude that by its express language in section 768.81, Florida Statutes, the legislature did not intend to treat negligent acts and criminal, intentional acts the same....

...The inherent distinction between negligent and criminal, intentional torts is considerable, and we find it illogical and impractical for a fact-finder to have to compare or balance the two types of conduct. We believe it is reasonable to interpret section 768.81, Florida Statutes, as a legislative preference not to transfer a negligent tortfeasor's duty of care over to a criminal tortfeasor, especially where a defendant's acts or omissions are the proximate cause of the intended tort. See Hall v. Billy Jack's, Inc., 458 So.2d 760 (Fla.1984) (lounge proprietor owes its patrons the duty to protect them from reasonably foreseeable harm). Therefore, we conclude that section 768.81 is inapplicable to the instant action....

...to employ reasonable security measures, with said omission resulting in an intentional, criminal act being perpetrated upon the plaintiff by a non-party on property controlled by the defendants, an "action based upon an intentional tort" pursuant to section 768.81(4)(b), Florida *23 Statutes (1993), so that the doctrine of joint and several liability applies? In such an action, is it reversible error for the trial court to exclude an intentional, criminal non-party tortfeasor from the verdict form? AFFIRMED....

...The causes of action asserted against appellants in the complaint are based on negligent failure to provide adequate security to prevent criminal attacks and negligent failure to warn of the danger of such attacks. As an initial matter, it seems to me relatively clear that section 768.81, Florida Statutes (1993), is intended to apply to claims of this type. I can arrive at no other conclusion from the language of section 768.81(4)(a), which states that "[t]h[e] section applies to negligence cases," and then defines "`negligence cases'" to include "civil actions for damages based upon theories of negligence." Respectfully, I am unable to follow the reasoning which leads the court in Slawson v. Fast Food Enterprises, 671 So.2d 255 (Fla. 4th DCA 1996)—and the majority here—to conclude that claims such as those asserted by appellees are actually "based upon an intentional tort." Id. at 257-58. Having concluded that section 768.81 was intended by the legislature to apply to actions such as this, my examination of that section, and particularly of subsection (3), leads me to conclude that an ambiguity exists because of the use of the word "fault." In particular,...

...From a reading of the statute, alone, it seems to me that the two meanings are, more-or-less, equally plausible. Searching for assistance in discerning the meaning intended by the legislature, I have turned to the legislative history of the statute. Section 768.81 was originally enacted as section 60 of the Tort Reform and Insurance Act of 1986....

...SCM Glidco Organics Corp., 606 So.2d 722, 725 (Fla. 1st DCA 1992) ("Staff analyses of legislation should be accorded significant respect in determining legislative intent"). From a reading of the relevant portions of these two documents, it seems to me relatively clear that section 768.81 was intended to do two things, and nothing more: (1) to codify the law regarding comparative negligence as it then existed in the state; and (2) to abolish, subject to limited exceptions, the common law doctrine of joint and several liability in negligence cases....

...is," and the "defendants will remain jointly and severally liable for the entire amount." 318 So.2d at 393-94. Reading the court's decisions in Hoffman v. Jones and Lincenberg v. Issen together with the Senate and House Staff Analyses of what became section 768.81, the source of the word "fault" becomes clear (at least to me)— the word "fault" is used repeatedly by the court in both opinions, in a sense obviously intended to be synonymous with the word "negligence." Thus, in Hoffman, the court...

...ased on fault, casts the entire burden of a loss for which several may be responsible upon only one of those at fault, and for these reasons this Court recedes from its earlier decisions to the contrary. Id. at 391. Clearly, the word "fault" used in section 768.81 was merely lifted by the drafters from the language used by the court in Hoffman and Lincenberg....

...ages to those individuals or entities found to have been negligent— those whose conduct was more than negligent were not intended to figure into the equation. I note, in passing, that, if my analysis regarding the source of the word "fault" used in section 768.81 is correct, then it seems reasonable to conclude that the word "party" used in section 768.81(3) was, likewise, lifted from Hoffman and Lincenberg, and was, therefore, intended to have the same meaning as was ascribed to it in those cases....

...Clearly, in those cases, the court was using the word to refer only to those who were named participants in a lawsuit. If this analysis is correct, then perhaps the supreme court might wish to reconsider its conclusion in Fabre v. Marin, 623 So.2d 1182 (Fla.1993), that the legislature intended the word "party" used in section 768.81(3) to mean any individual or entity whose conduct "contributed to the accident, regardless of whether they have been or could have been joined as defendants." Id....

...ding that Fabre defendants are nonparties that are alleged by a party defendant to be solely or partially negligent and should be placed on the verdict form so that there can be apportionment of fault against them for noneconomic damages pursuant to section 768.81(3), Florida Statutes (1995)....

...tempts. The trial court did not err in denying the Board's motion for judgment as a matter of law. IV. 46 In Fabre v. Marin, 623 So.2d 1182, 1185 (Fla.1993), the Supreme Court of Florida held that Florida's comparative fault statute, Fla. Stat. Ann. § 768.81 (West 1997 Supp.), requires fault to be "apportioned among all responsible entities who contribute to an accident even though not all of them have been joined as defendants." 18 Nash v....

...the dangers of touring in certain areas of Miami, especially with a Rent-A-Car bumper sticker, and should have warned the plaintiffs of the danger. Id. 52 Discussing Florida's comparative fault statute, the court held that the unmistakable intent of section 768.81 was to limit a defendant's liability to only his percentage of "fault." The court looked to the dictionary definition of fault, and found nothing to suggest that intentional actors should be excluded from the blameworthy individuals who are supposed to share liability under section 768.81....

...The plaintiff filed suit against Burger King, claiming that the restaurant had negligently failed to protect her, as a business invitee, from the reasonably foreseeable intentional attack of a third party. Id. The trial judge determined that the plaintiff's claim was governed by section 768.81, and consequently requested the jury to apportion fault between Kidd and Burger King....

...ing 20% responsible. Id. 54 On appeal, the Fourth District Court of Appeals reversed. The Fourth District could not reconcile Burger King's duty to protect the plaintiff from foreseeable intentional assaults with Burger King's assertions that, under section 768.81, it was entitled to diminish or defeat its liability for the breach of that duty by transferring liability to the very intentional actor it was charged with protecting the plaintiff from: 55 If the likelihood that a third person may ac...

...While we could make a guess as to which of these approaches is the proper one, we think the more prudent course is to submit the issue to the Florida Supreme Court. Accordingly, we respectfully certify the following question of law to the Supreme Court of Florida: 58 Does Florida's comparative fault statute, Fla. Stat. Ann. § 768.81 (West 1997 Supp.), require the allocation of "fault" between both negligent and intentional tortfeasors? 59 Our statement of the question is not meant to limit the scope of inquiry by the Supreme Court of Florida: " '[T]he particular phrasi...

...e en route to or from school or is presumed by law to be attending school. Fla. Stat. ch. 232.25 (1989) (amended 1995 & 1996). 17 The School Health Services Act was also in effect at the time of Shawn's death. Fla. Stat. ch. 402.32 (1989) 18 Chapter 768.81 provides: (3) Apportionment of Damages.--In cases to which this section applies, 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.......

...and not the conclusory terms used by the parties. (b) This section does not apply to any action brought by any person to recover actual economic damages resulting from pollution, [or] to any action based upon an intentional tort.... Fla. Stat. Ann. § 768.81 (3), (4) (West 1997 Supp.)....

...orida’s comparative negligence law should have precluded HDR from introducing its evidence against Barnard. Florida’s comparative negligence law renders a party liable only for the share of total damages proportional to its fault. Fla. Stat. § 768.81(3)....

...he time it was made. Pre-trial there was no way for the Defendants to know that the bulk of the damages would be economic and the percentage of fault of Plaintiff would be less than the percentage of fault applicable to any particular Defendant. See section 768.81(3), Fla....

...The rule was amended in 1996, the Committee Note informs, in order to conform the rule to Fabre v. Marin, 623 So.2d 1182 (Fla.1993), receded from on other grounds, Wells v. Tallahassee Memorial Regional Medical Center, Inc., 659 So.2d 249 (Fla.1995). Fabre held that subsection 768.81(3) requires that judgment should be entered against each liable party on the basis of that party's percentage of fault....

...[16] The plaintiff's total award is *944 first reduced by his or her comparative fault in causing the accident. This reduced sum is then reduced a second time by deducting the percentage of the plaintiff's damages that were caused by the failure to wear a seat belt. [17] This practice is inconsistent with section 768.81(2), Florida Statutes (1995), and our holding today....

...Of course, a plaintiff may also be found to have been comparatively negligent if she was partially at fault in causing an accident. There is no reason to treat these two examples of comparative negligence separately on a verdict form. According to section 768.81(2), the percentage of plaintiff's damages that is attributable to plaintiff's negligent conduct (i.e., plaintiff's total comparative negligence) should be used to proportionately reduce the plaintiff's recovery....

...mine if Hyatt has any liability. Although Dolphin is free to claim there is a Fabre defendant, Dolphin must bear the burden of naming that defendant and proving its claim before that Fabre *620 defendant can be included on the jury verdict form. See § 768.81(3)(d) and (e), Fla....

...As such, the trial court did not abuse its discretion in striking St. Mary's defenses and directing a verdict for the Brinsons on the spoliation count. We next address St. Mary's argument that it was error for the trial court to refuse to instruct the jury on apportionment of damages under section 768.81(3), Florida Statutes (1993)....

...omic and economic damages setoffs. In our analysis, we address each type of setoff separately. 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)....

...Finally, we apply this distinction to the case before us. *314 A. APPLICABLE LAW The standard of review for the pure questions of law before us is de novo. See Armstrong v. Harris, 773 So.2d 7 (Fla. 2000). Therefore, no deference is given to the judgment of the lower courts. 1. Applicability of Section 768.81, Florida Statutes (1997) Florida law regarding setoffs is found in sections 46.015(2), [6] 768.041(2), [7] and 768.31(5), [8] Florida Statutes (1997)....

...Each of these statutes presupposes the existence of multiple defendants jointly and severally liable for the same damages. See Wells v. Tallahassee Mem'l Reg'l Med. Ctr., Inc., 659 So.2d 249, 253 (Fla.1995). After these statutes were first enacted, the Legislature enacted section 768.81, Florida Statutes (1997). Section 768.81 eliminates joint and several liability for noneconomic damages and limits joint and several liability for economic damages....

...that with respect to any party whose percentage of fault equals or exceeds that of a particular claimant, the court shall enter judgment with respect to economic damages against that party on the basis of the doctrine of joint and several liability. § 768.81(3) Fla. Stat. (1997). [9] Section 768.81(4) expressly provides that the statute applies to negligence cases, including professional malpractice cases. 2. Noneconomic Damages In Wells, the Court considered the interrelationship between the three setoff statutes and the apportionment provisions of section 768.81....

...TMRMC requested a setoff, arguing that the judgment should be reduced by the total amount paid by the settling defendants. Id. This Court concluded that the setoff statutes do not apply to noneconomic damages for which defendants are only severally liable pursuant to section 768.81(3), but held that the setoff statutes continue to apply to economic damages for which parties continue to be subject to joint and several liability....

...Wells Fargo Guard Services, Inc., 678 So.2d 1262 (Fla.1996), this Court outlined the procedure for apportioning the fault of a person or entity not joined as a defendant in the suit. Under the facts in Nash, we held that the outlined procedure was a prerequisite for the apportionment of noneconomic damages under section 768.81 and Wells....

...Under these circumstances, we believe that Wells Fargo waived the defense that noneconomic damages should be apportioned to Methodist. Nash, 678 So.2d at 1265. Because the defendant in Nash did not plead the negligence of a nonparty, the Court held that the defendant had waived its right to apportionment under section 768.81 and that it was, therefore, liable for 100% of the plaintiff's noneconomic damages....

...Polk County, 753 So.2d 138 (Fla. 2d DCA 2000): "A defendant seeking to have the jury apportion its fault with that of a nonparty has the burden to plead and prove its entitlement to that benefit." Id. at 142. 3. Economic Damages Unlike noneconomic damages, for which section 768.81 eliminated joint and several liability, the setoff statutes continue to apply to economic damages for which parties continue to be subject to joint and several liability....

...A defendant who is "not found liable" could be a defendant whose liability was not even considered by a jury, whereas a defendant may only be "found not liable" after a verdict. This distinction was recognized by the Second District Court of Appeal in D'Angelo. B. APPLICATION OF LAW 1. Applicability of Section 768.81, Florida Statutes D'Angelo argues that section 768.81 only applies to cases where there is more than one defendant at trial or where the defendant elects to proceed under section 768.81 by including the settling defendant(s) on the verdict form. Because D'Angelo was the only defendant at trial and was the only defendant that appeared on the verdict form, [11] he argues that section 768.81 does not apply and that he is entitled to a full setoff against both economic and noneconomic damages. Section 768.81(4)(a), Florida Statutes (1997), states: "This section applies to negligence cases." No language in the statute limits its applicability to cases where more than one defendant appears on the verdict form. If section 768.81 were inapplicable in cases where only the nonsettling defendant appears on the verdict form, the section of the statute eliminating joint and several liability for noneconomic damages would not apply, and the nonsettling defendant woul...

...ury or wrongful death unless its terms so provide, but it reduces the claim against the others to the extent of any amount stipulated by the release or the covenant, or in the amount of the consideration paid for it, whichever is the greater.... [9] Section 768.81(3) was amended in 1999; however, the applicable version is that which was in effect when the cause of action arose....

...Ignacio's misuse of the lift did not proximately cause the tip over, it certainly caused his injuries and death. Had the parties used the lift as intended — to lift products and materials to higher elevations — Mr. Ignacio would not have been injured in the tip over. [34] Florida Statute § 768.81(2) details the effect of contributory fault....

...4th DCA 2015), we recently held that a de novo standard applies to this issue. Applying that standard, we held that whether conduct in the context of a tobacco action is considered negligent or intentional, comparative negli *767 gence applies. See Schoeff, 178 So.3d at 496 . Sections 768.81(2) and (4), Florida Statutes (1992), 4 provide, in part, that in “negligence cases,” the claimant’s contributory fault “diminishes proportionately the amount awarded as economic and noneco-nomic damages for an injury attributable to the claimant’s contributory .fault,” however, it does not prevent recovery. § 768.81(2), (4), Fla....

...The term “negligence cases” “includes, but is not limited to, civil actions for damages based upon theories of negligence, strict liability, products liability, professional malpractice whether couched in terms of contract or tort, or breach of warranty and like theories.” Id. § 768.81(4)(a)....

...In deciding whether a case constitutes a “negligence case,” courts must examine “the substance of the action and not the conclusóry terms used by the parties.” Id. If the action is based upon an intentional tort, compensatory damages cannot be reduced by the plaintiffs. contributory fault. Id. § 768.81(4)(b)....

...to recover her full non-economic damages without regard to comparative fault as the jury was- advised. ■ The trial court failed, however, to look to the substance of the action to determine if the claims were grounded in negligence as required by section 768.81(4)(a)....

...The court reasoned: There is no rational method to apportion fault between the strictly liable retailer, who has committed no negligent act, and the manufacturer who produced a product with a hidden defect. In such a case, where the retailer's liability is not based on fault, section 768.81(3), Florida Statutes (1999), does not allow the defendants to apportion damages between themselves....

...e total of the plaintiff's damages regardless of the extent of each defendant's fault in causing the accident. See Fabre v. Marin, 623 So.2d 1182, 1184 (Fla.1993) (citing Louisville & N. R.R. v. Allen, 67 Fla. 257, 65 So. 8 (1914)). The enactment of section 768.81, Florida Statutes, represented a policy shift in the State of Florida from joint and several liability that resulted in a single recovery for the plaintiff to the apportionment of fault. Therefore, instead of each defendant being severally responsible for all of the plaintiffs damages, with limited statutory exceptions, the defendant is responsible only for the percentage of fault determined by the jury. See § 768.81, Fla. Stat. (2000). The version of section 768.81 in effect both at the time of the Wells decision and the First District's opinion in this case, provided in pertinent part: [1] (3) Apportionment of damages.-In cases to which this section applies, the court shall enter judgment agains...

...ability. . . . . (5) Applicability of joint and several liability.—Notwithstanding the provisions of this section, the doctrine of joint and several liability applies to all actions *962 in which the total amount of damages does not exceed $25,000. § 768.81, Fla. Stat. (1997). As this Court explained in Conley v. Boyle Drug Co., 570 So.2d 275, 285 (Fla. 1990): [J]oint and several liability is only favored within this state in those limited circumstances set forth in sections 768.81(3), (4) and (5), Florida Statutes (1989). Under sections 768.81(3), (4) and (5), joint and several liability is abrogated except: 1) in cases of economic damages "with respect to any party whose percentage of fault equals or exceeds that of a particular claimant;" 2) in "any action brought by any person to...

...from a settlement or partial settlement than he could receive as damages." Wells, 659 So.2d at 252 (quoting Neil, 859 P.2d at 206). After reviewing the applicable setoff statutes, we concluded that "[t]he setoff provisions, which were enacted before section 768.81, presuppose the existence of multiple defendants jointly liable for the same damages....

...Hence, the remaining tortfeasor-defendant, in effect, receives a "contribution" from the settling tortfeasor in the form of a reduction in the judgment for any damages the remaining tortfeasor-defendant may face. This is how the legislative *964 contribution scheme worked before the enactment of section 768.81(3). With the enactment of section 768.81(3), the need for, and the role of, the contribution scheme set out above has been substantially reduced. Under section 768.81(3), a judgment is to be entered against a particular tortfeasor-defendant only "on the basis of such party's percentage of fault and not on the basis of the doctrine of joint and several liability." Since this tortfeasor-defendant now...

...tfeasors, or by a reduction in the judgment entered against him in the amount of any settlements made by the claimant with other tortfeasors. Since the "problem" of a tortfeasor paying more than his fair share has been eliminated by the enactment of section 768.81(3), the "solution" to the problem by the scheme of contribution and setoff is no longer needed....

...The jury awarded the plaintiffs damages, found the county 17.5% at fault, and found the decedent 55% at fault for failing to wear his seatbelt. See id. The Third District reversed the trial court's finding that the county was jointly and severally liable for the $174,536 judgment. See id. The court concluded that pursuant to section 768.81(3), the county could not be held jointly and severally liable for economic damages because its percentage of fault was less than the decedent's percentage of fault and pursuant to section 768.81(5), the county could not be held jointly and severally liable for noneconomic damages because the total amount of damages exceeded $25,000....

...negligence action, relying upon the setoff statute contained in section 768.041(2), Florida Statutes (1993). However, the decision in Lauth failed to mention the effect of this Court's opinion in Wells and the introduction of comparative fault under section 768.81....

...mages. Moreover, under the First District's decision, a defendant would always be entitled to a setoff from an award of economic damages, even if, as in Frederic, the defendant was not held jointly and severally liable for the economic damages under section 768.81(3), because its percentage of fault was less than the plaintiff's....

...We conclude, following our reasoning in Wells, that the applicability of the setoff statutes is predicated on the existence of other tortfeasors who are liable for the same injury as the settling party. The language of the setoff statutes does not suggest a different result in this case. Although the Legislature amended section 768.81(3) in 1999, see supra note 1, the *966 Legislature enacted the setoff statutes before it enacted the comparative fault statute and the language of the setoff statutes has not changed since Wells....

...sistent with our opinion in this case. It is so ordered. [4] WELLS, C.J., and SHAW, HARDING, ANSTEAD, LEWIS, and QUINCE, JJ., concur. NOTES [1] Although not relevant for purposes of the resolution of the question in this case, the current version of section 768.81(3), which the Legislature amended in 1999, differs significantly from the 1997 version in creating further statutory exceptions when a defendant will not be held jointly and severally liable. See ch. 99-225, Laws of Fla.; § 768.81(3), Fla....

...Marin, 623 So.2d 1182 (Fla. 1993), and Wells. Finally, Schnepel's reliance upon the Fourth District's decision in Centex Rooney Construction Co. v. Martin County, 706 So.2d 20 (Fla. 4th DCA 1997), appears misplaced, as Centex Rooney is a breach of contract action, and thus section 768.81 is inapplicable....

...other type of conduct) ]; and, if so, whether that [negligence] [fault] [responsibility] was a contributing legal cause of [loss] [injury] [or] [damage] to (claimant, decedent or person for whose injury claim is made). NOTE ON USE FOR 401.22f See F.S. 768.81 (1993); Fabre v....

...ype of conduct)]; and, if so, whether that [negligence] [fault] [responsibility] was a contributing legal cause of the [loss] [injury] [or] *715 [damage] to (claimant, decedent or person for whose injury claim is made). NOTE ON USE FOR 402.14e See F.S. 768.81 (1993); Fabre v....

...se of any [loss] [injury] [or] [damage] sustained by (claimant). NOTES ON USE FOR 409.11 1. In 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) OF TORTS § 552, which requires proof of justifiable reliance....

...o not attempt to define the terms. 3. F.S. 768.0415 refers only to "negligence." The committee takes no position as to whether the statute is limited to negligence cases or the definition of "negligence" in this statutory context. For example, see F.S. 768.81(4)(a) defining "negligence cases." 4....

...The third paragraph of this instruction should be used to inform the jury of the appropriate procedure, so that the jury does not make inappropriate adjustments to its verdict. There is support for giving a special instruction explaining to the jury the impact and effect of an F.S. 768.81 apportionment of liability in such cases....

...The third paragraph of this instruction should be used to inform the jury of the appropriate procedure, so the jury does not make inappropriate adjustments to its verdict. There is support for giving a special instruction explaining to the jury the impact and effect of F.S. 768.81 apportionment of liability in such cases....

...Instead, we conclude that where a joint offer is made by the defendants in a case, the failure to specify the amount to be contributed by each may be harmless if the theory for the defendants' joint liability does not allow for apportionment under section 768.81, Florida Statutes (1997)....

...$11,917,000 in economic damages and $15,000,000 in non-economic damages. The trial court entered judgment against Foreline for the full amount of the verdict ($26,917,000) ruling that allocation *909 of damages for comparative negligence pursuant to section 768.81, Florida Statutes, did not apply....

...ry judgment ruling. While our disposition of this issue renders further discussion of the underlying legal issue unessential, we write further to explain our view that ARC's legal argument lacks merit. 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 attributable to a doctor's malpractice." Underwriters at Lloyds v....

...rtfeasors and not joint tortfeasors jointly and severally liable for one common injury. In our view, this is still good law and there is no support for ARC's position otherwise in either case law or ordinary reasoning. The legislature's enactment of section 768.81 was intended to abrogate the concept of joint and several liability for purposes of determining noneconomic damages caused by joint tortfeasors....

...The statute is designed to allocate the percentage of fault among those parties contributing to the accident which caused the plaintiff's initial injury. A fair reading of the statute implies that the language relating to professional malpractice in subsection 768.81(4)(a) refers to those situations *525 where two or more negligent professionals contribute, or act in concert with each other, to cause an initial injury....

...ed after the statute's 1991 enactment. For example, in Fabre v. Marin, 623 So.2d 1182, 1185 (Fla.1993), overruled on other grounds, Wells v. Tallahassee Memorial Regional Medical Center, Inc., 659 So.2d 249 (Fla.1995), our supreme court stated that "section 768.81 was enacted to replace joint and several liability with a system that requires each party to pay for noneconomic damages only in proportion to the percentage of fault by which that defendant contributed to the accident....

...In that case, the court held that "Benchwarmers, as the initial tortfeasor, is subject to the total financial burden of [the plaintiff's] injuries, including those directly attributable to [the doctor's] subsequent malpractice." Id. at 1198. We interpret this language to mean that section 768.81 only applies to those parties who negligently contributed to the infliction of the plaintiff's initial injury, not to medical providers who subsequently aggravated the injury....

...Ironically, the original tortfeasor would be empowered, not only to decide whether a victim must sue his or her doctor, but also when that suit must be filed. These policy considerations are no less critical today than they were prior to the 1991 enactment of section 768.81....

...Finally, in Walt Disney World Co. v. Wood, 515 So.2d 198 (Fla.1987), the supreme court, after much discussion and by a close vote, elected to leave the decision on whether to change the law to the legislature. The legislature accepted the challenge and adopted section 768.81, Florida Statutes, entitled "Comparative fault." Subsection (3) of the statute provides that, "In cases in which this section applies, the court shall enter judgment against each party liable on the basis of such party's percentage of...

...onsible only to the extent that plaintiffs damages can be attributed to their percentage of fault. Appellee herein concedes that had the healthcare workers sought to be added to the verdict form in this case been "jointly and severally liable," then section 768.81 (and Fabre v....

...[1] Suppose in our case, plaintiff had included the health care workers as additional defendants claiming all defendants contributed to cause the death of Nathan. Could not plaintiff have done so? If the health care workers had been joined with appellant herein as co-defendants, would the provision in section 768.81 limiting damages to the percentage of fault of each *528 be applicable? Should the applicability of section 768.81 be at the option of plaintiff? I see the policy adopted by the legislature as being broader than the single accident scenario accepted by the trial judge....

...City of Lauderdale Lakes, 382 So.2d 702 (Fla.1980), has now rejected the notion that a negligent defendant cannot recover that portion of a judgment against him which he can show is attributable to the subsequent negligence of a doctor. And by enacting section 768.81, the legislature has determined that a single jury should decide the percentage of fault for each of those alleged to be responsible for appellee's damages....

...The underpinning of the concept of comparative negligence is that the court (the jury) has the ability to apportion damages in relation to plaintiff's injuries. See Walt Disney World Co. v. Wood, 515 So.2d 198, 202 (Fla.1987) (McDonald, C.J., dissenting). Even before the enactment of section 768.81, Lloyds recognized that "distinct and independent tortfeasors" should ultimately be responsible for only the damages caused by their acts of negligence if such damages can be reasonably determined....

...Should not the doctor be held to have contributed to the loss of future income as well as being responsible for disfigurement? Suppose the evidence excluded in this case would have shown that there is a 25% chance that the victim would have survived but for the negligent medical care. Under section 768.81, should the defendant herein pay 100% of the damages? Explain your answer. The legislature has, by adopting section 768.81, clearly stated a public policy of holding one responsible only for the proportionate share of the damages resulting from his degree of fault. That is the real message of section 768.81. We should not look for loopholes in order to avoid applying this public policy. But even if we do hold that the public policy set out in section 768.81 applies only to those defendants who are jointly and severally liable, and even if we assume that such a statute is necessary to preclude holding one liable for damages caused by subsequent injuries inflicted by another's negligence (and I do not), still section 768.81 would apply in this case....

...negligent defendant is liable for all damages suffered by plaintiff because he placed the plaintiff "at risk" of medical malpractice, the health care workers are liable only for the injuries caused by their malpractice [2] ), they would be, but for section 768.81, jointly and severally liable for the injuries caused by the health care workers —the health care workers because of traditional negligence law and the negligent defendant because the law assumes that his negligent action was the proximate cause of the injury caused by the malpractice....

...e water in 15 seconds than one without a seizure swallows in five minutes? I do not pretend to know the answer but, I submit, inquiring minds should want to know. In my view, the defendant should have been given the opportunity to show, under either section 768.81 or under the holdings of Gross and Washewich, if it could, that negligence of others contributed to Nathan's death....

...Since the others alleged to be negligent are not parties, there is no due process problem. At this limited new trial, defendant would have the burden of showing that designated others bear a percentage of fault for Nathan's death. See Nash v. Wells Fargo Guard Services, Inc., 678 So.2d 1262 (Fla.1996). NOTES [1] Section 768.81, Florida Statutes (1991), provides, in relevant part: 768.81....

...t The Tort Reform and Insurance Act of 1986, chapter 86-160, Laws of Florida, abrogated the rule of Stuart v. Hertz , i.e., that an initial tortfeasor is liable for subsequent medical malpractice, which forms the basis for the *1149 Mosley decision. Section 768.81(3), Florida Statutes (2001), provides in relevant part that "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....

...favor of Philadelphia Indemnity Insurance Company (Philadelphia Indemnity) and $4,415.31 in favor of D & H Distributing Corporation (D & H). Philadelphia Indemnity and D & H cross-appeal the trial court's application of the comparative fault statute section 768.81, Florida Statutes (2000), and the trial court's failure to award interest from the date of the *363 theft which resulted in the loss....

...curring and it cannot matter that the incident in question was the first one. We now turn our attention to the cross-appeal. In its cross-appeal, Philadelphia Indemnity asserts that the trial court improperly ruled that the comparative fault statute section 768.81 applies to the action and then further compounded the error by misapplying the joint liability provisions of the statute....

...and Parkway Commerce Center had previously been voluntarily dismissed by Philadelphia Indemnity and D & H. However, each was placed on the verdict form as Fabre [1] defendants. Florida law allows Burns and defendants in similar negligence actions to apportion fault between themselves and negligent non-parties. See Fla. Stat. § 768.81 (2001); Fabre v....

...Philadelphia Indemnity misunderstands Fabre and its progeny as well as Florida's comparative fault statute. Under its view, a defendant in a negligent security case would never be able to apportion liability with other negligent parties (and non-parties). This interpretation is inconsistent with Section 768.81, which the trial court properly applied in this case....

...D & H's loss, the action against Burns is not based upon an intentional tort but instead is based on the negligent manner in which Burns conducted its security responsibilities. Philadelphia Indemnity cites to no case in this state which holds that Section 768.81, Florida Statutes, does not apply to cases in which the theory of recovery is negligence. In the instant case, it is the negligent tortfeasors who are being held liable and there is no attempt to apportion damages based upon the intentional criminal conduct of the perpetrator of the theft. Having concluded that § 768.81 applies to this action, we must address Philadelphia Indemnity's assertion that the trial judge miscalculated the amount of damages under § 768.81(3)(a)....

...Therefore, Philadelphia Indemnity and D & H are entitled to recover $668,117.98. Pursuant to *367 subsection (3), joint and several liability does apply in this case allowing a recovery of all stipulated damages minus a 13% deduction for comparative negligence. Subsection (3) of § 768.81 provides: (3) APPORTIONMENT OF DAMAGES.—In cases to which this section applies, 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 sev...

...subparagraph 3., ... the amount of economic damages calculated under joint and several liability shall be in addition to the amount of economic and noneconomic damages already apportioned to that defendant based on that defendant's percentage of fault. § 768.81(3) (emphasis added)....

...h represents the balance of damages for which potential joint liability applies. The statute caps a defendant's joint and several liability at $500,000 where the defendant is found to be at least 25 percent but not more than 50 percent at fault. See § 768.81(3)(a)(3)....

...igation.” Black’s Law Dictionary 998 (9th ed. 2009). To be sure, Florida law provides that “[i]n a negligence action, the court shall enter judgment against each party liable on the basis of such party’s percentage of fault.” Fla. Stat. § 768.81(3)....

...Reynolds Metals Co., 760 So.2d 199, 202 (Fla. 2d DCA 2000) ("[W]here a joint offer is made by the defendants in a case, the failure to specify the amount to be contributed by each may be harmless if the theory for the defendants' joint liability does not allow for apportionment under section 768.81, Florida Statutes (1997)....

...Appellee urges as a point of reversal in her cross-appeal that the trial court erred in permitting the jury to apportion noneconomic damages between negligent and intentional tortfeasors, [9] and, in so doing, it misconstrued the intent of the legislature in enacting section 768.81(3), Florida Statutes (1989), a portion of the comparative fault statute. As to this issue, I would also affirm. In allowing apportionment of damages, the trial court proceeded according to the provisions of section 768.81(3), which provides: (3) APPORTIONMENT OF DAMAGES....

...al liability. (Emphasis added.) Although McGhee concedes that no Florida decision has as yet decided whether the above subsection authorizes apportionment of fault between both negligent and intentional defendants in the same action, she relies upon section 768.81(4) as an indication that the legislature intended to exclude intentional tortfeasors from the ambit of the comparative fault statute. Section 768.81(4)(a) and (b) explain: (a) This section applies to negligence cases [,] .....

...the jury should consider the percentages of fault of all tortfeasors in reaching its verdict on damages. Due to the non-negligent nature of the inmates' acts, McGhee now contends that DOC's claim for apportionment must be barred by the provisions of section 768.81(4)(b), excluding from its operation any action based upon an intentional tort....

...e third party. Id. at 606. Accord Bach v. Florida R/S, Inc., 838 F. Supp. 559 (M.D. Fla. 1993); Doe v. Pizza Hut of Am., Inc., No. 93-709 (M.D.Fla. June 21, 1994). The Academy of Florida Trial Lawyers joins McGhee in urging reversal, contending that section 768.81 only abrogates joint and several liability to the extent it would otherwise apply under common law....

...Thus, a defendant could not reduce his or her liability by pointing to wrongdoing (negligent or intentional) which occurred in a separate transaction, and he or she could not seek contribution except from a joint tortfeasor. See § 768.31(2)(a) & (c), Fla. Stat. (1989). Consequently, it is the Academy's position that because section 768.81 allows apportionment in cases involving joint tortfeasors, but says nothing about non-joint tortfeasors, it does not alter the common law rule prohibiting contribution among non-joint tortfeasors....

...After considering the arguments by counsel and the authorities cited, I would affirm as to this issue. It is clear that plaintiff's action against the DOC was based on negligence, and the comparative fault statute specifically applies to actions for negligence. § 768.81(4), Fla....

...sors, because it distributes the loss according to the respective faults of the parties causing the loss. Id. at 231. The reasoning of the court's opinion in Blazovic appears to me to be consistent with the Florida courts' general interpretations of section 768.81 in that the statute clearly requires a jury's consideration of each individual's fault contributing to an injured person's damages, even if such person is not or cannot be a party to the lawsuit....

...imant to recover even though the claimant is ninety-nine percent negligent. See Hoffman v. Jones, 280 So.2d 431 (Fla.1973). Second, in Smith v. Department of Insurance, 507 So.2d 1080 (Fla.1987), we recognized, by denying constitutional attacks upon section 768.81, Florida Statutes (Supp.1986), id. at 1090, 1091, the legislature's authority to legislate in respect to comparative negligence by legislative modification of the common-law doctrine of joint and several liability. It is noteworthy that pursuant to section *1252 768.81, Florida Statutes (1995), the common-law doctrine of joint and several liability remains applicable to economic damages in instances in which a party's percentage of fault equals or exceeds that of a particular claimant....

...Joint and several liability was established through the common law and later codified by the legislature. It allows a claimant to recover all damages from one of multiple defendants even though that particular defendant may be the least responsible defendant in the cause. Under the present section 768.81(3), Florida Statutes, a party who has more responsibility than the plaintiff may be made to pay all of the plaintiff's economic losses pursuant to the doctrine of joint and several liability....

...tiff shall not recover such special damages for personal injury protection benefits paid or payable. (Emphasis added.) Thus, section 627.736(3) dictates that an insured plaintiff has "no right to recover" damages paid or payable by PIP benefits. [4] Section 768.81(2), Florida Statutes (2003), addresses comparative negligence and provides: (2) EFFECT OF CONTRIBUTORY FAULT....

...— In an action to which this section applies, any 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. (Emphasis added.) A plain reading of section 768.81(2) is that "the amount awarded as economic and noneconomic damages" to the plaintiff is what is to be reduced by the percentage of the plaintiff's comparative fault....

...t liability, negligence and breach of warranty claims, on claims of prejudicial conduct by French's counsel, and sought alternatively, a remittitur of the verdict. Finally, the defendants also argued that the jury should have apportioned fault under section 768.81, Florida Statute....

...The trial court instructed the jury on the liability issue without using the word "intentional." The trial court then gave an instruction on comparative negligence and submitted to the jury a verdict form that allowed for a finding of comparative negligence. Such instruction was directly contrary to section 768.81(4)(b), Florida Statutes (1995), which provided that comparative negligence was not applicable in an intentional tort action, a principle which had long been the common law of Florida....

...when there was insufficient evidence of negligence. We affirm on all issues raised in this appeal. The first issue that Grace and Owens-Corning raise is the trial court's failure to permit the jury to have instructions and a verdict form pursuant to section 768.81, Florida Statutes (1991) and Fabre v....

...n a job site and the likelihood of injury from each of the products. Without that evidence, Grace and Owens-Corning have not satisfied the foundation necessary for a jury to receive jury instructions and a verdict form to decide the case pursuant to section 768.81, Florida Statutes (1991) and Fabre....

...Corp., 724 So.2d 1218, 1219 (Fla. 5th DCA 1998)." Kimball v. Publix Super Markets, Inc., 901 So.2d 293, 296 (Fla. 2d DCA 2005). There is no claim either that Kay's abused the amendment privilege or that amendment would be futile. To the contrary, amendment was essential. See § 768.81(3)(d), Fla....

...5th DCA 2005) (citation omitted) (explaining " Fabre defendants are non-parties which are alleged by a party defendant to be wholly or partially negligent and should be placed on the verdict form so there can be an apportionment of fault against them for non-economic damages"). [2] Section 768.81(3)(d) of the Florida Statutes requires a defendant seeking to impute fault to a negligent non-party to plead such a defense. § 768.81(3)(d), Fla....

...da Trial Lawyers, Amicus Curiae. PER CURIAM. We have for review Godales v. Y.H. Investments, Inc., 667 So.2d 871 (Fla. 3d DCA 1996). We accepted jurisdiction to answer the following question which was certified to be of great public importance: DOES SECTION 768.81, FLORIDA STATUTES (1993), REQUIRE THAT A MINOR CHILD PLAINTIFF'S AWARD BE REDUCED BY THE NEGLIGENCE OF A NON-PARTY PARENT OR GUARDIAN, AND TO THE BENEFIT OF THE DEFENDANT TORTFEASOR? 667 So.2d at 873....

...We have jurisdiction pursuant to article V, section 3(b)(4) of the Florida Constitution. For the reasons expressed below, we rephrase the question and, as rephrased, answer the question in the affirmative and quash the decision under review. We rephrase the question as follows: DOES SECTION 768.81, FLORIDA STATUTES (1993), PERMIT THE CONSIDERATION OF THE NEGLIGENCE OF A NON-PARTY PARENT OR GUARDIAN IN DETERMINING THE CAUSE OF A MINOR'S INJURY IN A NEGLIGENCE ACTION AGAINST A THIRD PARTY TORTFEASOR? MATERIAL FACTS Two-year old Ar...

...and Godales, with interrogatories to determine the percentage of any negligence attributable to them. The jury returned a verdict finding Y.H. and Godales each to be fifty percent negligent in causing the accident and awarding Armando $42,500 in damages for pain and suffering. Accordingly, pursuant to the provisions of section 768.81, Florida Statutes (1993), the trial court entered a final judgment against Y.H....

...damages from Y.H. Godales, 667 So.2d at *1275 873. [2] The district court also certified the question referred to above. LAW AND ANALYSIS This case presents us with a straightforward issue concerning the application of the comparative fault statute, section 768.81(3), Florida Statutes (1993)....

...by judicial action. Id. at 200, 202. Indeed, following the district court decision in Walt Disney World Co. v. Wood, 489 So.2d 61 (Fla. 4th DCA 1986), approved, 515 So.2d 198 (Fla.1987), the Florida legislature did enact a comparative fault statute, section 768.81, Florida Statutes (Supp.1986), that squarely directed that any judgment against a defendant be based on the defendant's percentage of fault in causing any damage and not on joint and several liability. [8] Section 768.81(3) provides: In cases to which this section applies, 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; provide...

...ent with respect to economic damages against that party on the basis of the doctrine of joint and several liability. (Emphasis added.) Hence, the legislature, in essence, acted to do what we declined to do in Walt Disney World Co. v. Wood. [9] Under section 768.81 defendants like Walt Disney would no longer have to pay damages in excess of the amount their conduct actually caused....

...damages, i.e., pain and suffering, while retaining such liability in clause two for economic damages [10] for "any party whose percentage of fault equals or exceeds that of a particular claimant," albeit with several other enumerated exceptions. See § 768.81(4)(b), (5), Fla. Stat. (1993). In August of 1993, we applied section 768.81 in two cases: Fabre v....

...Marin each fifty percent at fault, the court entered judgment against Mrs. Fabre for the entire $350,000 award of noneconomic damages. Id. On appeal, the Third District upheld the judgment. We quashed the Third District's decision, stating that "we believe that the legislature [by the enactment of 768.81] intended that damages be apportioned among all participants to the accident" id....

...Allied-Signal, 623 So.2d at 1182. The gist of the decisions in Fabre and Allied-Signal was our holding that the legislature intended that a judgment against a particular tortfeasor be based on "such party's percentage of fault" in causing the claimant's damages. Hence, under section 768.81, a tortfeasor who is determined to have been only ten percent at fault in causing an injury will only be liable for ten percent of the damages....

...[12] It appears to be based upon the same considerations of fairness that were responsible for our decision in Hoffman that claimants have their damages reduced only by their percentage of fault. THIS CASE As noted previously, this case presents a straightforward application of section 768.81(3), much like our application of the statute in Fabre and Allied-Signal....

...However, including Godales' name on the verdict form is consistent with Fabre and Allied-Signal wherein we approved similar inclusions for jury consideration despite interspousal and employer/employee *1278 immunity, respectively. Our decision today simply applies section 768.81 in the parent/child context just like it was applied in the husband/wife context in Fabre. Godales' negligence is not "imputed" to her child any more than Mr. Marin's negligence was "imputed" to his wife. Rather, section 768.81 provides that Y.H....

...does this fault apportionment reduce or preclude the child's recovery of damages; rather, the child is entitled to a judgment for damages against the non-parent tortfeasor "on the basis of such party's percentage of fault", as expressly provided in section 768.81. Since there is no dispute about the jury's determination that Y.H. was only fifty percent at fault in causing Armando's injuries, any judgment against Y.H. must be entered, under section 768.81, for fifty percent of Armando's damages....

...OVERTON, GRIMES, HARDING and ANSTEAD, JJ., concur. WELLS, J., dissents with an opinion, in which KOGAN, C.J., concurs. SHAW, J., dissents. WELLS, Judge., dissenting. The majority's reversal of the district court's decision writes into Florida law an unforeseen consequence of section 768.81, Florida Statutes (1995), which is brought about by this Court's construction of that statute in Fabre v....

...They contend that since nonparent defendants would have to pay for more than their percentage of fault if juries did not evaluate parental fault *1279 and assess such fault on their verdict forms, any other consideration would fall in deference to this interpretation of section 768.81....

...sk to a child by having the child's damages reduced by the percentage of fault of the parent. This is a significant and detrimental retreat from Florida's long-recognized protection for children. The second argument advanced by the appellant is that section 768.81 and Fabre, as clarified in Wells v....

...The lengthy course of litigation included an initial trial, an appeal to the Fourth District which reversed and remanded the case, a re-trial, another appeal, and finally, review by this Court. [8] The Fourth District's decision in Disney was rendered on April 9, 1986. Section 768.81 only applies to "causes of action arising on or after July 1, 1986, and does not apply to any cause of action arising before that date." Section 768.71(2), Fla.Stat....

...[9] While not directly evaluating the statute, we did acknowledge its passage in our Disney decision by noting that: In 1986 the legislature substantially modified the doctrine of joint and several liability as part of its comprehensive tort reform law. § 768.81, Fla.Stat....

...Marin could not sue her husband because of the doctrine of interspousal immunity. Subsequently, we abolished that doctrine in Waite v. Waite, 618 So.2d 1360 (Fla.1993). [12] The parties acknowledge that this issue has been repeatedly debated in the legislature in recent years, but the legislature has taken no action to amend section 768.81....

...e unfair to make a contractor bear 100% of the loss caused by a latent defect which the DOT, in its expertise, should have discovered. It is also arguably contrary to the legislature's intent when it abrogated joint and several liability by enacting section 768.81, Florida Statutes, making defendants responsible only for their own negligence and not the negligence of others. In upholding the constitutionality of section 768.81, our supreme court observed: Whatever may have been the historical justification for it, today it is almost universally regarded as unjust and inequitable to vest an entire accidental loss on one of *615 the parties whose negligent conduct combined with the negligence of the other party to produce the loss....

...current negligence or an unforseeable intervening cause. Then, in a case such as this one, if the jury found the defect was latent, but that the DOT should have discovered it, it could apportion the responsibility just as the legislature intended in section 768.81.

...On appeal Letzter challenges: (1) the trial court's decision to give the Stuart v. Hertz jury instruction; (2) the judge's failure to allow the jury to determine whether the two defendant doctors were joint tortfeasors; and (3) the trial judge's failure to apportion the non-economic damages award pursuant to section 768.81, Florida Statutes....

...nd that the error does not require a new trial in this case. Finally, we conclude that the trial judge erred in failing to apportion the non-economic damages award among Doctors Letzter and Armand in accordance with the jury's verdict as provided in section 768.81, Florida Statutes....

...r. Letzter and 55% Dr. Armand. After reviewing the verdict, the trial court refused to apportion the noneconomic portion of the damages award in accordance with the jury's assessment of fault, which is required in the case of joint tortfeasors under section 768.81, Florida Statutes....

...In so doing, the judge expressly ruled that Stuart v. Hertz applied to the case before him and refused to apportion the non-economic damages in accordance with the jury's allocation of fault. Dr. Letzter contends that this failure to apportion the non-economic damages was error. We agree. Section 768.81, Florida Statutes, requires the apportionment of the noneconomic damages portion of the judgment in cases involving joint tortfeasors. See § 768.81(3)-(4), Fla.Stat.; see also Beverly Enters.-Fla., Inc....

...Armand which was the legal cause of injury to Cephas since, under Stuart v. Hertz , Letzter would have been legally responsible for any injury caused by Armand's negligence. Thus, it was error for the trial judge to refuse to apportion the non-economic damages award pursuant to section 768.81....

...The Tort Reform and Insurance Act of 1986, Chapter 86-160, Laws of Florida, which "applies to any action for damages," provides that "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." § 768.81(1), (3)....

...tortfeasors [4] , and adhere to Stuart, *489 there is no language in the legislation which limits its applicability to joint tortfeasors. The title of the Act, sections 768.71-81, is "Damages," and the provision specifically applicable in this case, section 768.81(3) is entitled "Apportionment of Damages." In Fabre v. Marin, 623 So.2d 1182, 1185 (Fla.1993), the Florida Supreme Court was applying section 768.81(3) to a single accident and discussed the allocation of percentage of fault in terms of how a defendant "contributed to the accident." The statute, however, focuses on damages, not accidents, and does not distinguish between damages caused by joint tortfeasors or, as in this case, separate tortfeasors....

...2000), the plaintiff was involved in two automobile accidents three months apart, and sued only the tortfeasor causing the first accident. The Florida Supreme Court held that if the damages could not be apportioned between the two accidents, then the damages did not have to be apportioned under section 768.81(3)....

...Prior to trial, however, final judgment was entered in favor of Glades Hospital on the counts pertaining to it. [3] Cephas has cross appealed, contending that he was entitled to a directed verdict in his favor on the affirmative defenses raised by Dr. Letzter under section 768.81(3) because that statute is unconstitutional-both as enacted and as interpreted by the supreme court in Fabre....

...At the hearing that followed, Allstate also argued that the unauthorized settlement prejudiced its subrogation rights with respect to Ms. Buchholz because the Rushes executed a general release in her and GEICO's favor. The Rushes, relying on Florida Statutes, section 768.81 (1993), countered that had Ms....

...Following this amendment, the court upset the mix when it issued Fabre v. Marin, 623 So.2d 1182 (Fla.1993) and Wells v. Tallahassee Memorial Regional Medical Center, Inc., 659 So.2d 249 (Fla.1995). Fabre involved the interpretation of the Tort Reform Act, section 768.81(3), Florida Statutes (Supp.1988), which provided, in pertinent part: (3) Apportionment of damages.—In cases to which this section applies, the court shall enter judgment against each party liable on the basis of such party's percentag...

...Appellants assert error in the trial court's failure to reduce the jury damage award by fifty percent, the percentage of negligence the jury attributed to the Fabres. At the time of the automobile accident, Mrs. Marin was a passenger and not at fault. We agree with the trial court's interpretation of section 768.81(3), Florida Statutes (Supp....

...The trial court denied the motion for a new trial, granted a remittitur, reducing Mrs. Marin's economic damages by $5,000, and entered an amended final judgment for $357,750. The Fabres and State Farm [collectively "Appellants"] appeal. Appellants urge reversal of the amended final judgment. They contend that section 768.81(3), Florida Statutes, is unambiguous and that its plain and obvious meaning requires that judgment against appellants be limited to fifty percent of the damages awarded, in accordance with the percentage of fault the jury attributed to them. Appellants correctly assert that Messmer v. Teacher's Ins. Co., 588 So.2d 610 (Fla. 5th DCA 1991), is indistinguishable from the case at hand; however, we decline to adopt its conclusion. On the other hand, Mrs. Marin argues that section 768.81(3) is ambiguous and that the trial court's construction of the statute is consistent with the legislature's intent. It is well settled that a clear and unambiguous statute must be given its plain and obvious meaning. Holly v. Auld, 450 So.2d 217, 218 (Fla. 1984). However, this axiom is inapplicable to section 768.81(3) because the statute is ambiguous. Section 768.81(3) provides: "In cases to which this section applies, 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......

...ault" for which judgment shall be entered, that is, whether to consider the fault attributable to all defendants, or to all participants in the accident. The resolution again depends on the definition assigned to the term "party." The ambiguities in section 768.81(3) preclude us from discerning its plain meaning....

...Thus, appellants argue, the judgment against them should be equated to their percentage of fault. We do not agree that the legislature's intent in promulgating this subsection was to deprive a fault-free innocent plaintiff of recovery. [5] In fact, several factors counter this construction. Section 768.81(2) provides: (2) EFFECT OF CONTRIBUTORY FAULT....

..., but does not bar recovery. (Emphasis added). In subsection three, the legislature speaks of "any party whose percentage of fault equals or exceeds that of a particular claimant," contemplating a scenario where the claimant is found to be at fault. Section 768.81(3), Fla....

...," and is not to be construed as contemplating a reduction in a claimant's recovery by the percentage of liability assigned to individuals who are not defendants in the lawsuit. Unreasonable consequences would result if appellants' interpretation of section 768.81(3) were adopted....

...Marin is barred from recovering from him by the doctrine of interspousal tort immunity. Sturiano v. Brooks, 523 So.2d 1126 (Fla. 1988); Raisen v. Raisen, 379 So.2d 352 (Fla. 1979). The legislature expressly diminished claimant's recovery only by the percentage of claimant's fault. Sections 768.81(2), (3), Fla....

...n. In our view, the legislature, in discarding joint and several liability, intended to apportion liability among defendant tortfeasors to the extent each was determined to be at fault; it did not curtail a fault-free plaintiff's ability to recover. Section 768.81(2), Fla....

...iff's recovery, and in view of the statute's express provision of the measure by which to reduce a negligent claimant's award, we conclude that subsection three should not be applied to bar Mrs. Marin's recovery. The trial court properly interpreted section 768.81(3)....

...Marin, 623 So.2d 1182, 1186 (Fla.1993) (“Liability is to be determined on the basis of the percentage of fault of each participant to the accident and not on the basis of solvency or amenability to suit of other potential defendants.”); see also § 768.81(3)(a), Fla....

...e fault of each party. Id. Following our opinion in Hoffman , the Florida Legislature in 1986 codified the Court’s adoption of a system of comparative negligence, and its concomitant abol-ishment of the rule of contributory negligence, by enacting section 768.81(l)-(5), Florida Statutes (1986 supp.) (Comparative fault). See ch. 86-160, § 60, at 755-56, Laws of Fla. On the date of the accident here, and at the time of the entry of final summary judgment against the plaintiff, 10 section 768.81(2) & (3), Florida Statutes (2006) (Comparative fault), read as follows: (2) EFFECT OF CONTRIBUTORY FAULT....

...(3) APPORTIONMENT OF DAMAGES. — In cases to which this section applies [negligence cases], 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. § 768.81(2),(3), Fla....

...lemented for the express purpose of allowing recovery in negligence cases based on a jury’s allocation of comparative fault — on a percentage basis— among all individuals who were negligent in bringing about an injury. Under the clear terms of section 768.81(4)(a), Florida Statutes (2006), this substantive means of tort recovery applies to “negligence cases,” a broad class of cases that, as defined by statute, in no way excludes those negligence eases arising from rear-end motor vehicle collisions....

..., the plain and unambiguous language of section 768(2), Florida Statutes (2006), provides that a plaintiffs contributory fault in a negligence action “does not bar recovery,” but rather diminishes proportionately the amount of his recovery. 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 768.81(3), Florida Statutes (2006), entitle a plaintiff to judgment “against each” liable party, on the basis of that party’s “percentage of fault.” See § 768.81(3), Fla....

...mparative negligence. 14 Under Florida’s system of comparative negligence, recovery is to be allocated by the proportionate fault of all individuals whose negligence contributed to the injury, whether or not said individuals have filed claims. See § 768.81(2), (3), Fla....

...instructions they have sworn to followf.j”) (internal citations omitted). Accordingly, an allowance for the reduction of a plaintiff’s recovery based on comparative negligence serves a beneficial purpose for defendants as well. . The wording of section 768.81(2)-(3), amended as of June 23, 2011, after the filing of the initial brief here, is slightly altered from, but does not change the relevant substance of, the provisions in effect for this case. See ch.2011-215, § 1 at 3318, Laws of Fla.; § 768.81(2), (3), Fla. Stat. (2012). 11. See § 768.81(4)(a), Fla....

...In determining whether a *358 case falls within the term “negligence cases,” the court shall look to the substance of the action and not the conclusory terms used by the parties. Id. The current statutory definition of "negligence action” is located in section 768.81(l)(c), Florida Statutes (2012), and is as broad as the definition relevant here....

...Similarly under the reasoning expressed by the court in Cevallos, a comparatively negligent front driver would apparently be insulated or shielded from liability to his passengers and those in the rearward zone of danger regardless of the presence of comparative negligence on the part of the front driver. Nevertheless, both section 768.81(2),(3) and this Court’s holding in Hoffman command a different result....

...the judgment against it. Since the corporation's liability for the accident was purely vicarious in nature for the acts of Neal himself, rather than joint and several, it is obvious, contrary to the ruling below, that the comparative fault statute, section 768.81, Florida Statutes (1995), Fabre v....

...This view is based on the belief, as outlined in West, that fairness and good reason require that the fault of the defendant and of the plaintiff should be compared with each other with respect to all damages and injuries for which the conduct of each party is a cause in fact and a proximate cause. See § 768.81, Fla....

...Instead, we conclude that where a joint offer is made by the defendants in a case, the failure to specify the amount to be contributed by each may be harmless if the theory for the defendants' joint liability does not allow for apportionment under section 768.81, Florida Statutes (1997)....

...[4] There is no rational method to apportion fault between the strictly liable retailer, who has committed no negligent act, and the manufacturer who produced a product with a hidden defect. In such a case, where the retailer's liability is not based on fault, section 768.81(3), Florida Statutes *572 (1999), does not allow the defendants to apportion damages between themselves....

...[2] Because we are ordering a new damages trial, we must address the issue of whether it was error to permit the jury to apportion fault between the negligent actor, Alamo, and the nonparty intentional tortfeasor, Aaron. The question presented involves an interpretation of section 768.81, Florida Statutes (1993)....

...David de Armas & Edward L. White III, Apportioning Fault Between the Negligent and Intentional Tortfeasor, Fla. B.J., Oct. 1995, at 92 (noting that "Judge Ervin's position is consistent with the principle that liability equates fault, which is the backbone of § 768.81")....

...Based on this analysis we conclude that the trial court did not err in allowing the jury to apportion fault between the negligent and intentional tortfeasors. [5] To Judge Ervin's dissent, we add only the following observations. Because the legislature undoubtedly had the power to enact section 768.81 it is this court's duty to give effect to the legislature's intent in enacting the statute. Van Pelt v. Hilliard, 75 Fla. 792, 78 So. 693 (1918). Where that intent is clear from the language used in the statute, the court need not look any further. Holly v. Auld, 450 So.2d 217, 219 (Fla.1984). The unmistakable intent of 768.81(3) is to limit a negligent defendant's liability to his percentage of fault....

...Fast Food Enters., 671 So.2d 255 (Fla. 4th DCA 1996). It simply fails to give effect to the previously discussed clear legislative intent to limit a negligent defendant's liability to its percentage of fault. Further, the argument that statutes, such as 768.81, which are in derogation of the common law should be strictly construed in favor of retaining the preexisting common law rule was indirectly addressed by the Supreme Court in Fabre v. Marin, 623 So.2d 1182 (Fla.1993), when the court noted that the act, of which section 768.81 is a part, "disfavors joint and several liability to such a degree that it survives only in those limited situations where it is expressly retained." This case clearly does not involve one of those "limited situations." Because the iss...

...3d DCA 1980) (brutal act of rapist/murderer did not insulate negligent landlord from liability for failure to provide adequate security). The Florida legislature partially abrogated the common law doctrine of joint and several *944 liability in 1993 when it adopted section 768.81(3), Florida Statutes (1993): In cases to which this section applies, 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 joint and several liability; provide...

...that with respect to any party whose percentage of fault equals or exceeds that of a particular claimant, the court shall enter judgment with respect to economic damages against that party on the basis of the doctrine of joint and several liability. Section 768.81(4)(a) then provides that "[t]his section applies to negligence cases." "Negligence cases" are defined as ... civil actions for damages based upon theories of negligence, strict liability, products liability, professional malpractice whether couched in terms of contract or tort, or breach of warranty and like theories. § 768.81(4)(a). The Florida Supreme Court interpreted section 768.81 to require the fact-finder to consider and apportion the fault of all entities involved in an accident—even individuals who were not parties to the action and were immune from suit....

...In Fabre the individuals among whom fault was divided were all negligent joint tortfeasors. In this case, by contrast, the defendant, Alamo Rent-A-Car, seeks to reduce its liability for negligence by shifting a portion of its fault to a criminal who committed an intentional violent assault. However, section 768.81 does not permit Alamo to evade its liability to plaintiffs by comparing its negligence with the assailant's attack....

...The authors of the Restatement explain that "[t]o deny recovery because the other's exposure to the very risk from which it was the purpose of the duty to protect him resulted in harm to him, would be to deprive the other of all protection and to make the duty a nullity." Id. at comment (b). Section 768.81(4)(b), Florida Statutes, recognizes the difference between intentional torts and negligence and removes intentional torts altogether from the Fabre equation of fault with liability by specifically excluding cases that are "based upon an intentional tort." § 768.81(4)(b)....

...uctions with respect to permanent injury may have reasonably confused or misled the jury. Faulkner v. Allstate Ins. Co., 367 So.2d 214 (Fla.1979); Adkins v. Seaboard Coast Line R.R. Co., 351 So.2d 1088 (Fla. 2d DCA 1977). [3] The critical portion of section 768.81(3) provides: "In cases to which this section applies, 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." [4] Judge Ervin concurred in part and dissented in part from the majority opinion....

...Hess cross appeals the trial court’s final judgment to the extent it reduced the compensatory damages award based on the comparative fault of the decedent Mr. Hess. She argues that the substance of her action was the intentional tort of fraudulent concealment, precluding application of the comparative fault statute. See § 768.81(3)-(4), Fla....

...d/b/a Mercy Hospital appeal from an amended final judgment entered after a jury trial in a medical malpractice action. [1] The issue we write to address is whether Grobman and Mercy Hospital, non-settling defendants, are entitled to a full setoff for sums paid by a settling defendant prior to trial. 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....

...The trial court denied the motions on the ground that the defendants' failure to have the jury decide whether Prudential was liable precluded their ability to claim a setoff. Appellants' entitlement to a setoff turns on whether Prudential was a party defendant to which the apportionment requirement of section 768.81(3), Florida Statutes (1995) [5] applied. If section 768.81(3) did not apply, then Prudential was not a proper Fabre defendant, and the failure to include it on the verdict form had no legal effect....

...or sums paid before trial to the plaintiff by a settling defendant. See D'Angelo v. Fitzmaurice, 863 So.2d 311 (Fla. 2003); Gouty v. Schnepel, 795 So.2d 959 (Fla.2001); Wells, 659 So.2d at 253. All three cases attempt to reconcile the requirement of section 768.81(3) that "each defendant is solely responsible for his or her share of noneconomic damages," Wells, 659 So.2d at 252, with the setoff provisions of 768.041(2), 46.015(2), and 768.31(5), Florida Statutes (1995)....

...ed to file appropriate pleadings and to ensure that any settling party under Fabre appears on the verdict form." D'Angelo, 28 Fla. L. Weekly at S842. The key question is whether the holding in D'Angelo applies to this case. Crucial to the trilogy of section 768.81 settlement cases is the assumption that section 768.81(3) applies to the claim against the settling defendant. In cases to which it applies, section 768.81 "eliminates joint and several liability for noneconomic damages and limits joint and several liability for economic damages." D'Angelo, 863 So.2d at 314. Section 768.81 "applies to negligence cases, including professional malpractice cases." Id.; see § 768.81(4), Fla. Stat. (1995). Where section 768.81 applies, it limits the scope of the statutes regarding setoffs—sections 46.015(2), 768.041(2), and 768.31(5), Florida Statutes (1995). See D'Angelo, 863 So.2d at 314. To decide whether section 768.81 applies requires more than determining whether the case at hand is a negligence case. One must examine the cause of action asserted against a settling defendant to determine if section 768.81 requires apportionment of liability with another defendant. Such an inquiry asks if the settling defendant was the type of defendant that could have been added as a Fabre defendant on the verdict form. In Fabre, the supreme court wrote that "section 768.81 was enacted to replace joint and several liability with a system that requires each party to pay for noneconomic damages only in proportion to the percentage of fault by which that defendant contributed to the accident." 623 So.2d at 1185 (emphasis added)....

...Under the doctrine of joint and several liability, "all negligent defendants were held responsible for the total of the plaintiff's damages regardless of the extent of each defendant's fault in causing the accident." Id. at 1184. The impetus for enacting section 768.81 was the perceived unfairness of "requiring a defendant to pay more than his or her percentage of fault." Id. at 1185. Section 768.81 requires apportionment of non-economic damages "in cases involving joint tortfeasors." Letzter v....

...a single, indivisible injury, then such persons are jointly and severally liable although there was no common duty, common design or concerted action. Id. at 38 (emphasis in original). Central to the concept of joint and several liability covered by section 768.81 is the idea that a potential defendant caused or contributed to a plaintiff's injury, that a defendant's negligence "concurred" with that of another defendant to produce an injury....

...The vicariously liable party is responsible to the plaintiff to the same extent as the primary actor; both are jointly liable for all of the harm that the primary actor has caused. In such a situation, fault cannot be divided into the percentages contemplated by section 768.81. Also, the vicariously liable party has engaged in no wrongful conduct. Thus, there can be no "fault" within the meaning of section 768.81(3). The basis for imposing liability is that party's relationship with the negligent tortfeasor. The supreme court has expressly recognized that apportionment of fault under section 768.81 is not appropriate where a defendant's liability is only vicarious. In Nash, 678 So.2d at 1263-64, the supreme court established "the procedure for apportioning the fault [under section 768.81] of a person or entity not joined as a defendant in the suit." D'Angelo, 863 So.2d at 315....

...Reynolds Metals Co., 760 So.2d 199, 203 (Fla. 2d DCA 2000) (stating that a defendant "could not be a Fabre defendant" because it was only "vicariously liable without personal fault"); J.R. Brooks & Son, Inc. v. Quiroz, 707 So.2d 861, 863 (Fla. 3d DCA 1998) (holding that section 768.81 did not apply to a defendant whose fault was purely vicarious). For these reasons, the vicarious liability theory of recovery asserted against Prudential did not trigger the application of section 768.81....

...cause of action unless the directly liable tortfeasor commits a tort and (2) the derivatively liable party is liable for all of the harm that such a tortfeasor has caused. Given the similarity between derivative and vicarious liability, we hold that section 768.81 does not require the apportionment of responsibility between a defendant whose liability is derivative and the directly liable negligent tortfeasor....

...The installer was never identified and was not a party to the lawsuit. One of the questions on appeal was whether the trial court erred in excluding the anonymous independent contractor from the verdict form, so that the jury could allocate fault pursuant to section 768.81. Id. at 347. Comparing the case to one of vicarious liability, we held that the trial court correctly excluded the independent contractor from the verdict form because section 768.81 did not apply: Here, because [the defendant] negligently hired the "phantom" contractor, she is liable for his negligence to the same extent as if she had done the work herself....

...Liability for damages may not be apportioned to a nonparty defendant where that liability is vicarious in nature. Suarez, 820 So.2d at 347. [7] *1237 The negligent credentialing cause of action in this case is one of derivative liability like the negligent hiring theory of recovery in Suarez. In neither case does section 768.81 require apportionment of liability between the derivatively liable defendant and the directly liable negligent tortfeasor. Thus, Prudential was not a proper Fabre defendant to be placed on the verdict form under this theory of liability. Because neither the vicarious nor the derivative claim against Prudential was subject to apportionment under section 768.81(3), the trilogy of section 768.81 settlement cases ending with D'Angelo does not control. Instead, the setoff issue is governed by sections 46.015 and 768.041, Florida Statutes (1995), which require a complete setoff as to amounts received from Prudential. See Quiroz, 707 So.2d at 863. This result finds support in a case holding section 768.81 to be inapplicable in a similar context....

...y failed to take corrective action in the form of investigation, restriction or removal from list of providers" after Prudential "became aware of" the defendants' "unfitness to serve as ... health care providers to members of the Plan." [5] Although section 768.81(3) was amended in 1999, the "applicable version is that which was in effect when the cause of action arose." D'Angelo v....

...that with respect to any party whose percentage of fault equals or exceeds that of a particular claimant, the court shall enter judgment with respect to economic damages against that party on the basis of the doctrine of joint and several liability. § 768.81(3), Fla. Stat. (1995). [6] In a case involving the negligent failure to employ reasonable security measures, the supreme court adopted similar reasoning in describing the public policy as to why section 768.81 does not require apportionment of liability between the negligent tortfeasor and the intentional, criminal, non-party tortfeasor....

...that fairness and good reason require that the fault of the defendant and of the plaintiff should be compared with each other with respect to all damages and injuries for which the conduct of each party is a cause in fact and a proximate cause. Id. (citing § 768.81, Fla....

...nd that Florida statutory and case law requires juries to apportion fault among all persons who contributed to the resulting injuries and that enhanced-injury cases do not constitute an exception to this well-established rule. They cite section *435 768.81(3), Fla....

...(1997), which provides for the entry of "judgment against each party liable on the basis of such party's percentage of fault" and this Court's interpretation of the statute in Fabre v. Marin, 623 So.2d 1182 (Fla.1993). In Fabre this Court concluded "that section 768.81 was enacted to replace joint and several liability with a system that requires each party to pay for noneconomic damages only in proportion to the percentage of fault by which that defendant contributed to the accident." Id....

...pon whether a defect existed and gave rise to the enhanced injuries suffered by the plaintiff. Intentional Tort Exception to Comparative Fault The estate and D'Amario also contend that even if we were to hold that the comparative fault principles of section 768.81, Florida Statutes (1997), apply to crashworthiness cases, we should hold that this case falls within the intentional tort exception to section 768.81. Section 768.81(4)(b) states that the comparative fault statute does not apply "to any action based upon an intentional tort." Id. § 768.81(4)(b)....

...He sued Wal-Mart and Merrill Crossings Associates, the owner of the shopping center, for their failure to provide reasonable security measures. The comparative fault of the unknown assailant was not included on the jury verdict form. In holding that the comparative fault provisions of section 768.81 do not apply to such a situation, this Court approved the trial court's action and distinguished Fabre: In Fabre, the plaintiff was an innocent passenger suing for damages resulting from an automobile accident caused by the combined ne...

...do not address the issue of the joint and several liability of the driver and the passenger, see, e.g., Vetter v. Morgan, 22 Kan. App.2d 1, 913 P.2d 1200, 1205-06 (1995); Cooper v. Bondoni, 841 P.2d 608, 611-12 (Okl. App.1992), or the application of section 768.81, Florida Statutes (2002), to this action....

...At common law, under the doctrine of joint and several liability, all negligent defendants were held responsible for the total of the plaintiff's damages regardless of the extent of each defendant's fault in causing the accident. Gouty v. Schnepel, 795 So.2d 959 (Fla.2001). In 1986, the Legislature enacted section 768.81, the comparative fault statute....

...feasors. Instead of each defendant being severally responsible for all of the plaintiffs' damages, with limited exceptions, the defendant is responsible only for the percentage of fault determined by the jury. Gouty. In 1999, the Legislature amended section 768.81 to provide joint and several liability for economic damages based on a sliding scale, depending on whether the plaintiff was with or without fault and the percentage of fault of the defendant....

...The amendment made a defendant less than 10% at fault not subject to joint and several liability, regardless of whether the plaintiff had some fault or not. Basel v. McFarland & Sons, Inc., 815 So.2d 687 (Fla. 5th DCA 2002). However, this court has held the 1999 amendment to section 768.81 is prospective only and may not be applied retroactively to causes of action accruing prior to its effective date. Basel. The 1997 version of section 768.81, in effect at the time of the accident in this case, apportioned damages as follows: (3) Apportionment of damages....

...GRIMES, Justice. Pursuant to section 25.031, Florida Statutes (1987), and Florida Rule of Appellate Procedure 9.150, the United States Court of Appeals for the Eleventh Circuit has certified to this Court a question concerning the interpretation of section 768.81(3), Florida Statutes (1989)....

...serviced with a safety screen, and in failing to warn of the fan's suction. The trial court denied Allied's request to allow the jury to consider and assess non-party Eastern's percentage of fault, if any, under Florida's Tort Reform Act, Fla. Stat. § 768.81 (1989)....

...Fox was awarded a total amount of $350,000.00 in damages. Thus, the amended final judgment was $245,000.00. The *1182 district court denied Allied's motion for a new trial. Fox, 966 F.2d at 626-27. The court phrased the question for certification as follows: WHETHER THE INTERPRETATION OF FLA. STAT. § 768.81(3) (1989) REQUIRES CONSIDERATION BY THE JURY OF A NON-PARTY'S COMPARATIVE FAULT IN ORDER TO DETERMINE A PARTY'S LIABILITY? Id....

...1992), and Fabre v. Marin, 597 So.2d 883 (Fla. 3d DCA 1992). On the authority of our decision in Fabre v. Marin, 623 So.2d 1182 (Fla. 1993), we answer the certified question in the affirmative. In Fabre we adopted the rationale of Messmer, holding that section 768.81(3), Florida Statutes (1989), requires that liability be apportioned to all participants in an accident in order to determine a defendant's percentage of fault....

...They also found that Messmer suffered $52,455 in economic damages and $200,000 in non-economic damages. Arthur died shortly after the accident and neither he nor his estate were parties to the arbitration or litigation. The trial court ruled that pursuant to section 768.81(3), Florida Statutes (1987), Teacher's fully satisfied its (or Waldron's) liability to Messmer....

...any party whose percentage of fault equals or exceeds that of a particular claimant, the court shall enter judgment with respect to economic damages against that party on the basis of the doctrine of joint and several liability. Messmer argues that section 768.81(3) requires apportionment for noneconomic damages only as to the actual parties to the litigation or arbitration....

...She urges that in a case such as this, where Arthur could not have been held liable because of spousal immunity, [1] the joint tortfeasor who is a party should be held liable for the entire amount of the plaintiff's damages. Judge McNeal concluded that a proper interpretation of section 768.81(3) militates against Messmer's position in this case. We agree, and adopt his opinion as follows: Section 768.81(3) provides that 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.' The court is of the opinion that the lang...

...Florida Public Service Comm., 220 So.2d 905 (Fla. 1969). In light of the policies adopted in Hoffman v. Jones, 280 So.2d 431 (Fla. 1973) and Lincenberg v. Issen, 318 So.2d 386 (Fla. 1975), this court is of the opinion that the legislative intent in adopting § 768.81(3) was to implement a system of equating fault with liability, at least as to non-economic damages....

...c. This becomes the equivalent of joint and several liability, which the legislature obviously was intending to eliminate. The supreme court's recent opinion in Conley v. Boyle Drug Company, 570 So.2d 275 (Fla. 1990), supports this interpretation of section 768.81(3)....

...That is, no defendant will be held liable for more harm that it statistically could have caused in the respective market. Second, the court noted that joint and several liability is only favored within this state in specific limited situations set forth in section 768.81....

...everal liability into a market share theory of liability would be contrary to the policy of this state. 570 So.2d at 284-285. The market share theory of liability appears to be based on the same premise as the apportionment of noneconomic damages in section 768.81(3), that is, apportionment according to fault rather than liability for the total amount of the plaintiff's damages....

...Marin, 597 So.2d 883 (Fla. 3d DCA 1992), based upon its certified conflict with Messmer v. Teacher's Insurance Co., 588 So.2d 610 (Fla. 5th DCA 1991), review denied, 598 So.2d 77 (Fla. 1992). The supreme court quashed the district court's opinion and held that section 768.81(3), Florida Statutes (Supp....

...plaintiffs, Mr. and Mrs. Fassnacht, whose car collided with a train owned by the defendant, Seminole Gulf Railway, Limited Partnership [Seminole]. Seminole appeals the trial court's refusal to enter judgment in favor of Mrs. Fassnacht in accord with section 768.81, Florida Statutes (1989)....

...hts experienced were not entirely related to this accident or that the damages were less extensive than the Fassnachts believed. We find no abuse of discretion in the trial court's denial of their motion and thus affirm the cross-appeal. Pursuant to section 768.81(3), Florida Statutes (1989), [3] Seminole moved to have Mrs....

...Marin, 623 So.2d 1182 (Fla. 1993), does support the relief granted by the majority in this case, I do not believe the issue was adequately preserved by the defendant in the trial court. The record does not reflect that the defendant asked for relief under section 768.81 until after the jury returned its verdict. In my opinion, a defendant should raise section 768.81 as an affirmative defense, just as defendants have always raised contributory or comparative negligence. A defendant should request jury instructions on this issue similar to the standard instructions for comparative negligence. See Fla. Std. Jury Instruction 6.1(c). If a defendant wants the benefit of section 768.81, the jury should be told about the effect that statute will have on its verdict, just as it is told about the effect of traditional comparative negligence. In this case, the jury awarded Mrs. Fassnacht a total of $35,000. All of her economic losses were protected by collateral sources. Accordingly, the majority's opinion will cause *145 her to receive a net recovery of $17,500. [4] Section 768.81 does not apply to cases in which the damages are $25,000 or less....

...But I see no reason to give the defendant the benefit of jury instructions that it never requested. Cf. W.R. Grace & Co.-Conn. v. Dougherty, 636 So.2d 746 (Fla. 2d DCA 1994) (holding trial court did not err in refusing to give instruction and verdict form under section 768.81 where defendant failed to present sufficient evidence to support this defense)....

...negligent representation stated by Baggett. Thus we conclude that the district court erred in granting defendant JNOV, and we see no need to order a retrial on any question except that of the comparative negligence of the parties under Fla.Stat. § 768.81....

...2 1 The district court determined that Florida law governed Nice’s negligence claim, and that Florida’s comparative fault doctrine would allow the defendants to attempt to shift some or all of the fault to the Navy. See Fla. Stat. § 768.81(3)(a). 2 The district court found that its order involved a “controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.” See 28 U.S.C. § 1292(b)....

...[2] Defendants' Cross Appeal By way of cross appeal, the Agency and Gonzalez argue that the trial court erred in not reducing the judgment based on Arena Parking's comparative negligence. The comparative fault statute applies only to negligence cases. See § 768.81(4), Fla....

...reate insurance coverage where to refuse to do so would sanction fraud or other injustice."). Promissory estoppel is not traditionally considered a cause of action arising from negligence. Additionally, because it is in derogation of the common law, section 768.81 must be strictly construed in favor of the common law....

...the present case did not create a fundamental error. Comparative Fault RJR argues that the court erred in refusing to reduce the jury’s compensatory damages by the Decedent’s comparative fault. The court’s refusal was based on its finding that section 768.81(4), Florida Statutes, (2013) barred application of the Dece *227 dent’s comparative fault to reduce damages because the jury found that RJR committed an intentional tort....

...1 Hiott cross-appeals the trial court’s order applying the jury finding that Mr. Hiott was partially at fault for his smoking-related illness to reduce the damages award. She asserts that because the jury found Reynolds committed the intentional tort of fraudulent concealment, section 768.81(4), Florida Statutes, barred application of Mr....

...Hiott moved for entry of final judgment in the full amount of compensatory damages, arguing that there should be no reduction based on Mr. Hiott’s fault because Reynolds committed an intentional tort, and thus Florida’s comparative fault statute, section 768.81, Florida Statutes, did not apply....

...Hiott asserts that the trial court erred-when it applied comparative fault to reduce the compensatory damages award, because Florida law provides that a comparative fault defense does not apply to intentional torts, and she asserts that this precludes waiver. § 768.81(4)(b), Fla. Stat.; Mazzilli v. Doud, 485 So.2d 477, 480 (Fla. 3d DCA 1986). Hiott relies on this court’s decision in Sury , where we held that section 768.81(4)(b), Florida Statutes, precluded a reduction of damages where, much like here, the case was essentially *480 based on intentional misconduct....

...gligence only. If the latter should occur, according to Appellee, then comparative fault would apply; if the former, the trial court should be required to disregard the jury’s comparative fault finding and decline to reduce the damages award under section 768.81(4), Florida Statutes....

...nal tort question, as the Fifth District reversed on the intentional tort claim; thus, only negligence claims remained, and comparative fault had to apply there as a matter of law. We think the rationale of Foreline on this point is not dependent on section 768.81, Florida Statutes, but on the simple premise that it would be misleading to the jury to: 1) fail to inform them that no comparative fault would apply to the intentional tort claims; 2) inform them that they must allocate comparative fa...

...ich this section applies, any 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. § 768.81(2), Fla. Stat. (2001); see Y.H. Inv., Inc. v. Godales, 690 So.2d 1273, 1277 (Fla.1997) (construing section 768.81, Florida Statutes, as "a legislative policy choice to apportion liability for damages based upon a party's fault in causing the damage")....

...tellases argued that it was error to permit a nonparty intentional tortfeasor's name (the assailant) to appear on the verdict form so that the jury could apportion fault between the assailant and the negligent tortfeasor (Alamo). The court looked to section 768.81, Florida Statutes (1993), which abrogated joint and several liability as to noneconomic damages and requires courts to apportion liability in accord with percent of fault of each party....

...4th DCA), review dismissed, 679 So.2d 773 (1996), which reached the opposite conclusion. We approved the reasoning of the Slawson court and decided this exact issue in Merrill Crossings Associates v. McDonald, No. 88,324, ___ So.2d ___, 1997 WL 746290 (Fla. Dec. 4, 1997), where we held that section 768.81 does not apply to this type of action....

...rson who is not of lawful drinking age or who knowingly serves a person habitually addicted to the use of any or all alcoholic beverages may become liable for injury or damage caused by or resulting from the intoxication of such minor or person. [2] § 768.81, Fla....

could assess comparative fault pursuant to section 768.81, Florida Statutes (2000), and Fabre v. Marin

liability applies to the defendants because Fla.Stat. § 768.81, which codifies the doctrine of comparative fault

liability does not allow for apportionment under section 768.81. This circumstance typically exists in cases

reduction of the compensatory damages pursuant to section 768.81, Florida Statutes, was not appropriate as the

ruling was thereafter codified by statute in section 768.81(3) of the Florida Statutes. Later, in Fabre

Florida’s law of comparative fault as codified in section 768.81, Florida Statutes, which by its clear terms

Jeppesen, Honeywell and the Colombian ATC's. Section 768.81(3) of the Florida Statutes essentially provides

v. Marin, 623 So.2d 1182 (Fla.1993); see also § 768.81(3), Fla. Stat. (2013). In Fabre, this,Court held

1986, after Morgan, the Legislature adopted section 768.81, Florida Statutes, which provides in pertinent

1182 (Fla. 1993). Fabre held that pursuant to Section 768.81(3), judgment should be entered against each

awards non-economic damages to the plaintiffs. See § 768.81(3) Fla. Stat.(1993). There was no issue at trial

essentially a products liability claim and that section 768.81, Florida Statutes, required reduction of the

percentages as contemplated in Willis Shaw, section 768.81 or rule 1.442 because both defendants are completely

conduct a Fabre allocation of fault as to ITT. Section 768.81, Florida Statutes (2005), provides in pertinent

, 1081 (11th Cir. 2002). Florida Statute § 768.81 provides for a reduction of damages in a negligence

tire manufacturer that the 2006 amendments to section 768.81, Florida Statutes, which abolished joint and

14.7% of the damages, its percentage of fault. § 768.81, Fla. Stat. (1995). We agree with the plaintiff

1421170 at *2 (M.D.Fla. June 17, 2005); Fla. Stat. § 768.81. See also Latimer v. Roaring Toyz, Inc., 601 F

principles shall apply in negligence cases”) (citing Section 768.81, Florida Statutes). As one court has noted

codified the doctrine of comparative negligence. Section 768.81, Florida Statutes (1993), provides in relevant

The Florida supreme court in Fabre held that section 768.81(3), Florida Statutes (1989), requires that

liability of the parties pursuant to Fla.Stat. § 768.81(3). 1 We have determined that this

the comparative fault provisions of Fla.Stat. § 768.81 (1986), regarding apportionment of damages among

be included on the verdict form pursuant to section 768.81, Florida Statutes (1995), and Fabre v. Marin

DCA 1996). Slawson involved the meaning of section 768.81, a statute that adopted the doctrine of "comparative

doctrine of comparative negligence, as codified in § 768.81, Fla. Stat., applied to an action for negligent

1993). The Fabre court held that pursuant to section 768.81(3), Florida Statutes, judgment should be entered

the limited circumstances set forth by statute. § 768.81(3), (4), (5), Fla. Stat. (1995). See Conley v

application of the comparative fault statute, section 768.81, Florida Statutes (1987), the imputation to

supreme court concluded: We are convinced that section 768.81 was enacted to replace joint and several liability

fault statute, which is codified at section 768.81. Compare § 768.81(3), Fla. Stat. (1997) (providing that

Florida Supreme Court held that pursuant to Section 768.81(3), judgment should be entered against each

under the comparative fault statute because Ҥ 768.81 applies solely to parties who are directly negligent

negligence actions in Florida. See Fla. Stat. § 768.81(3). That argument relates to the merits or validity

1st DCA 2008). The comparative fault statute, section 768.81, Florida Statutes, provides for apportionment

that the trial court erred in not applying section 768.81, Florida Statutes (1987), which eliminates

For this proposition, Plaintiff relies upon section 768.81, Florida Statutes (2016), entitled "Comparative

Id. [7] See ch. 71-252, Laws of Fla. [8] See § 768.81 Fla. Stat.(2002).

concealment into a negligent misrepresentation claim. Section 768.81(4)(a), Florida Statutes (2002) defines comparative

accident," id., as determined by the jury. See § 768.81(3), Fla. Stat. (1997). As to non-economic damages

Florida’s comparative fault statute, Fla. Stat. Ann. § 768.81 (West 1997 Supp.), requires fault to be “apportioned

their liability to the jury. See FLA.STAT.ANN. § 768.81 (West Supp.2001); Fabre v. Marin, 623 So.2d 1182

the nonparty in causing the plaintiffs injuries. § 768.81(3)(b), Fla. Stat. (2006). R.J. Reynolds was required

the trial court applied the wrong version of section 768.81, Florida Statutes, which addresses joint and

adoption of the comparative fault *800 statute, section 768.81(3), Florida Statutes (Supp.1988), economic

be a joint tortfeasor with the Nursing Home. Section 768.81, Florida Statutes (1999), deals with apportionment

Supreme Court explained in Merrill Crossings, section 768.81, Florida Statutes, does not permit allocation

judgment pursuant to section 768.81(3) Florida Statutes (1995). Section 768.81(3), provides, in pertinent

form. Addressing apportionment of liability, section 768.81 provides that "the court shall enter judgment

explaining to the jury the impact and effect of a section 768.81 apportionment of liability in such cases. See

court in excluding this testimony. NOTES [1] See § 768.81(3), Fla. Stat. (1991). The jury ascribed no negligence

wearing when his accident occurred. See Fla.Stat. § 768.81.[4] Nonetheless, the court notes that none of

comparative negligence. The statute, Fla. Stat. § 768.81 , mandates comparative-fault reduction in

403.16 In 2011, the legislature amended F.S. 768.81 to state that in a products liability case in

between and among joint tortfeasors pursuant to Section 768.81, Florida Statutes. In addition to referring

against them for noneconomic damages, pursuant to section 768.81(3), Florida Statutes (1995). [2] At the time

some of the harsher effects of that doctrine. § 768.81, Fla. Stat. (1989).

as part of its comprehensive tort reform law. § 768.81, Fla. Stat. (Supp. 1986). The fact that the new

several tort-feasors to which the principles of section 768.81(3), Florida Statutes (1999) and Fabre v. Marin

in strict product liability cases. Fla. Stat. § 768.81(1)(c); see West v. Caterpillar Tractor Co., 336

fault, because that would be consistent with section 768.81, Florida Statutes (1993), which partially abrogated

also to himself and to Betten. We disagree. Section 768.81 of the Florida Statutes (2007), sets forth

liability does not allow for apportionment under section 768.81, Florida Statutes." Danner Constr. Co. v. Reynolds

(Fla.2001). In 1986, the Legislature enacted section 768.81, the comparative fault statute. This represented

Florida's comparative negligence statute, section 768.81,[5] applies in strict liability cases. *131

action for contribution as a matter of law. Section 768.81, the Uniform Contribution Among Tortfeasors

Schoeff, 178 So. 3d at 495–96 (interpreting section 768.81 to require apportionment of comparative fault

to consider the appellant's point concerning section 768.81(3), Florida Statutes (1991). By the time of

623 So.2d 1182, 1185 (Fla.1993); See Fla. Stat. § 768.81. Due to the availability of this affirmative defense

that, with respect to non-economic damages, section 768.81(3), Florida Statutes (Supp. 1988),[1] requires

1182 (Fla. 1993) and interpreted Florida Statutes § 768.81(3) which reads: (3) APPORTIONMENT OF DAMAGES.

retailer's liability is not based on fault, section 768.81(3), Florida Statutes (1999), does not allow

intentional tort of fraudulent concealment, section 768.81(4), Florida Statutes, barred application of

such as this agent, on the verdict form under section 768.81(3), Florida Statutes (2002), and Fabre v. Marin

verdict form, in accordance with Florida Statute § 768.81. The current controversy, Case no. 91-1432, involves

claim is made). NOTE ON USE FOR 401.22Í See F.S. 768.81 (1993); Fabre v. Marin, 623 So.2d 1182 (Fla.1993)

of these statutes created by the adoption of section 768.81(3), which provides for the apportionment of

counterclaim. C. The Statutory Requirement of Section 768.81 That Reduces Mr. Claudio’s Liability We note

based upon an intentional tort." Fla.Stat. Ann. § 768.81(4)(a)-(b) (West 1997) Thus, the Florida legislature's

2d 560 (Fla.1997), for the proposition that section 768.81, Florida Statutes, the comparative fault statute

of the joint and several liability statute, section 768.81, Florida Statutes (1999), Worthington was liable

from that opinion. In Grobman, we held that “section 768.81 [the statute interpreted in Fabre ] does not

reviewed the apportionment of damages statutes, section 768.81(3), Florida Statutes (Supp.1988), and Florida's

that apportionment of fault is not required by section 768.81, Florida Statutes, where a jury finds—as it

contributed to his own injuries. See Fla. Stat. § 768.81(2) (stating that in a civil action for damages

result from an intentional tort. See Fla. Stat. § 768.81(4).

issue is whether the comparative fault statute, section 768.81, Florida Statutes (Supp. 1992), 2

the plain language of section 768.81, Florida Statutes (1991). Section 768.81(5) provides: Notwithstanding

Florida’s comparative fault approach. See Fla. Stat. § 768.81(3). The result being that the jury will have determined

Court: Whether the interpretation of Fla.Stat. § 768.81(3) requires consideration by the jury of a non-party’s

severally liable for the damages, pursuant to section 768.81(3)(c), Florida Statutes (1999). The trial court

instructions and verdict form. We recognize that section 768.81, Florida Statutes, governing apportionment

*796Legislature did not change this rule when it adopted section 768.81, Florida Statutes. See Assoc. for Retarded

obsolete as a result of Florida Statute, section 768.81. Section 768.81(3) states that “In a negligence action

doctrine of comparative negligence, as codified in § 768.81, Fla. Stat., applied to an action for negligent

motion for setoff, the trial court relied on section 768.81(3), Florida Statutes (2010), and D’Angelo

response to the legislature’s amendment to section 768.81, Florida Statutes (Supp.1988), entitled “Comparative

held that the comparative fault provisions of section 768.81(3) would apply and that there could be no offset