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Florida Makes Major Changes to Comparative Negligence Law
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Florida Makes Major Changes to Comparative Negligence Law

May 1, 2023 Insurance Industry Legal Blog

Reading Time: 5 minutes

On March 24, 2023, Florida Governor Ron DeSantis signed into law one of the most significant tort reform bills in Florida history, HB 837.  This new law makes sweeping changes to long-standing Florida civil tort law in numerous areas related to negligence, insurance bad faith and related rules of evidence, among others.  This blog addresses a major change to Florida’s longstanding comparative negligence law, which moved Florida from a pure comparative negligence state to a modified comparative negligence state.  This change will have major implications for damages allocation in all negligence claims where the plaintiff may be found partially at fault for the incident resulting in the plaintiff’s damages.

What is Comparative Negligence?

Comparative negligence is a doctrine in the law that provides that when both the plaintiff and the defendant are guilty of negligence that is, in some degree, a legal cause of the injury to the plaintiff, the plaintiff’s claim is not defeated entirely.  Instead, in assessing damages, the jury awards the plaintiff the damages that the jury determines the negligence of the defendant caused to the plaintiff.  For example, if the jury finds that the defendant is 75% at fault for the damages, and the plaintiff is 25% at fault, the plaintiff is only able to recover 75% of the plaintiff’s damages, as the 25% caused by the plaintiff himself is not recoverable.

Florida adopted the comparative negligence doctrine in 1973, in the Florida Supreme Court’s opinion in Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973), in which the court abolished the prior doctrine of contributory negligence, which held that if the plaintiff’s damages were caused by any portion of plaintiff’s own negligence, the plaintiff could not recover any damages.  The Florida Supreme Court adopted the “pure form” of comparative negligence, stating that it was “the most equitable method of allocating damages in negligence actions.”  Id. at 139.

Under the “pure comparative negligence” doctrine in place in Florida since 1973, and codified at section 768.81, Florida Statutes, “each party is apportioned liability based on its percentage of fault.”  Although it was acknowledged by the Florida Supreme Court in Hoffman that pure comparative negligence could result in a plaintiff that was more responsible for the accident recovering damages from a defendant that was less responsible for the accident, it reasoned that doctrine of comparative negligence was designed to determine each party’s liability based on the damages they caused rather than the damages they suffered.  Id. at 139.

How Did Florida’s Comparative Negligence Law Change?

For the past 50 years since 1973, Florida has been a pure comparative negligence state.  However, effective March 24, 2023, section 768.81, Florida Statutes, was amended to change comparative negligence in Florida to a modified comparative negligence standard, rather than pure comparative negligence.  It did so by adding subsection (6) to the statute as follows:

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

In other words, in all negligence actions other than for medical malpractice, if the plaintiff is found to be more than 50% at fault, the plaintiff cannot recover any damages.  This modified comparative negligence standard is a major change in Florida law, as previously under the pure comparative negligence standard, even if a plaintiff was found to be more than 50% liable for his or her own negligence, say 55% for example, the plaintiff’s damages would be reduced by 55%, but the plaintiff could still recover from the defendant for the other 45% of the plaintiff’s damages.  Now, in that same example under a modified comparative negligence, the plaintiff could not recover any of the plaintiff’s damages, even though the defendant was 45% responsible for plaintiff’s damages.

Although this is a major change in Florida tort law that will have a significant effect on Florida negligence cases moving forward, Florida is now joining the majority of approximately 34 other states that have some form of modified comparative negligence law.

What Claims Does This Change Effect?

The change in Florida to a modified comparative negligence standard affects all negligence claims in Florida, other than claims for medical malpractice, which were exempted in the new statute and to which pure comparative negligence will still apply.  The change applies to all negligence lawsuits that are filed after the effective date of H.B. 837, which was March 24, 2023.  Negligence lawsuits filed prior to that date should still be under the pure comparative negligence standard, but those filed after March 24, 2023, will be subject to the new modified comparative negligence standard.


The change to Florida’s longstanding pure comparative negligence standard to the new modified comparative negligence standard is a major change affecting Florida tort law.  Generally speaking, a plaintiff that files a negligence suit after March 24, 2023, will not be able to recover any damages if the plaintiff is found to be more than 50% responsible for the damages sought.   Both injured parties, and defendants (and their insurers) need to be aware of this major change to Florida’s tort system that will have widespread effect on the award of damages for negligence in Florida.

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