In general, comparative negligence should be considered in Florida whenever more than one party is responsible for an accident. Through comparative negligence, it can be determined both how much the payor pays and how much the payee receives.
Florida was, prior to March of 2023, a pure comparative negligence state. Under a system of pure comparative negligence, individuals could, theoretically, recover compensation regardless of their own fault. At the extreme, a plaintiff could be 99% at fault and yet still recover when suing for negligence. Of course, practically, this would likely mean that plaintiff could deduct 1% from the amount that defendant could recover from plaintiff. It's still important to understand pure comparative negligence since that is the default rule on the MBE.
But Florida made a change. Under the new modified comparative negligence system in Florida, individuals will be barred from recovering any compensation if they are more than 50% responsible for causing their own injuries. It's worth noting that this change does not apply to claims based on medical negligence (malpractice).
It's not an insignificant difference. If, for example, plaintiff is deemed to be 45% responsible for his/her own injuries, then the the change has less effect. Under pure comparative the plaintiff could recover and the same is true under modified (since 45% is less than 50%). But if plaintiff is deemed to be, for example, 51% at fault, there is no recovery under this new modified system, even though there would have been recovery under the pure comparative negligence system.
In short, continue to apply pure comparative negligence on the MBE unless the question specifies otherwise. But should you get a Torts essay on the Florida portion of the exam, apply the modified system of comparative negligence as described here.
No comments:
Post a Comment