Frequently Asked Questions - What is Comparative Negligence?
The legal definition of negligence is Florida is “the failure to use reasonable care, which is the care that a reasonably careful person would use under like circumstances. Negligence is doing something that a reasonably careful person would not do under like circumstances or failing to do something that a reasonably careful person would do under like circumstances”. In other words, a person’s conduct is evaluated by comparing said person’s actions to the actions of a person engaging in the same activity who is performing said activity in a careful manner. In addition, a person can be negligent by failing to take action he or she should have taken.
The determination of negligence does not begin and end with identifying a negligent party. Under Florida Law, the doctrine of comparative negligence is the legal standard. Comparative negligence is the determination of how negligent a person or multiple people acted in the course of a crash. For instance, in our rear end collision example, the rear driver is presumed to be 100% negligent. But what happens in a situation where a driver passes through a red light, but the other driver recognizes this and has an opportunity to take evasive action and either avoid the crash all together or lessen the impact through defensive actions? A jury considering that type of scenario would be required to determine if both drivers shared responsibility, and if so the jury would be required to apportion a specific percentage of negligence to each party. In this example, a jury may find the driver who passed through the red light to be 90% negligent and they may simultaneously find the driver with the right of way to be 10% negligent for failing to take reasonable actions to either avoid the crash all together or lessen the impact. This analysis would use the portion of the negligence definition above that discusses negligence in terms of failing to act in a reasonable manner.
In some states other than Florida, states apply the doctrine of contributory negligence instead of comparative negligence. In a contributory negligence jurisdiction, if any party is 1% negligent, that party cannot maintain a lawsuit against any other negligent parties. As you can imagine, following this doctrine can lead to highly unfair results. That is why states like Florida have steered away from contributory negligence and instead followed comparative negligence, so that any involved driver will be responsible only for the injurie or damages caused by his or her proportional negligence.
Because comparative negligence is based on fairness of any party being responsible only for the damages that particular party caused, comparative negligence applies to all personal injury actions including automobile crashes, slip and fall injuries, medical malpractice, products liability, etc. In each of these cases, any potential negligent party will pay only for the damages it caused. A recent trial provides an excellent illustration of how comparative negligence works when there are multiple negligent parties. The case involved a motor vehicle crash that resulted in the death of 3 young adults. The vehicle was traveling on a four lane highway in Central Florida moving at approximately 65 miles per hour. Suddenly and without warning, one of the vehicle’s tires exploded causing the vehicle to careen out of control into the opposite travel lane, eventually crashing head on with an SUV. All 3 occupants of the sedan died on impact. An inspection of the blown tire revealed a manufacturing defect in the steel belt which allowed the structure of the tire to weaken once the tire reached a certain temperature. The negligence of the tire manufacturer caused the vehicle to suddenly veer to the left. According to accident reconstruction experts who were able to recreate the movement of the vehicle and all the dynamics of the crash, though the tire manufacturer was clearly negligent, the driver overcorrected after the tire blew out. In other words, the driver could have either mitigated the severity of the crash or possible avoided the crash had she did not immediately lock up the brakes. In addition, the investigation revealed the driver of the SUV traveling in the opposite direction had consumed 4 glasses of wine three hours prior to the crash, and the consumption of alcohol likely delayed his reaction time by an additional second. Interestingly, the SUV driver was only 17 years old, and his legal guardian knew he had consumed alcohol, and though they did not give him the keys to the vehicle, they did not forbid him to drive their vehicle. The jury was instructed to consider the respective responsibility, or comparative negligence of the tire manufacturer, the deceased driver of the sedan, the driver of the SUV traveling in the opposite direction, and the SUV driver’s legal guardian who did not prevent the seventeen year old driver from operating their vehicle that evening. . They found the deceased driver of the sedan 30% negligent, the tire manufacturer 45% negligent, the driver of the SUV to be 15% negligent, and the legal guardian’s negligence was 10%. There is no formula for determining these degrees of comparative fault. This determination is solely in the province of the jury based on the evidence in any particular case. The total damages were 2.8 million dollars, and each negligent party’s comparative negligence was applied to each party to determine their respective amounts.
Finally, though the comparative negligence doctrine is based on fairness, there are situations when application of the doctrine can be less than fair to an injured party. In some situations with multiple negligent parties, one or more party may be insolvent or uncollectable. It’s one thing to obtain a verdict from a jury; however the verdict must be collected from the defendant. In a recent trial, there were two negligent parties who were both defendants in the case. The jury found each defendant 50% at fault and awarded $400,000 in damages. Unfortunately, one of the defendants allowed his insurance policy to lapse, and he had no assets to satisfy the judgment. After applying comparative negligence, the injured party was only able to collect half his damages. Though such a result is possible, comparative negligence remains the most equitable manner to determine damages in personal injury cases.