Pure Comparative Negligence

The above picture is of a question that I answered on Avvo.com. The person who asked the question obviously did not understand how liability works in Florida.

People often believe that who gets the ticket in a crash matters. It does not. Police officers do not determine liability in the state of Florida. The only thing a police officer tries to determine—and judges do not always agree with those police officers—is whether or not a driver violated a state statute.

Most police officers have no idea that Florida is what is called a “pure comparative negligence state.”

What that means is that you can only recover the amount of damages for which you are not at fault in a crash. Rarely are crashes 100% the fault of one driver or the other. Drivers can often brake quicker, drive slower, react sooner, and stop more swiftly whenever a collision is about to occur. Even rear end collisions only have what is called a “rebuttable presumption of liability.” That means, contrary to the public’s perception, that the person who rear ends another person is not always 100% at-fault in a crash.

So how does comparative negligence work? The easiest example is to use 2 drivers who both have $1 worth of damages. Let us say Driver A is 75% at fault. Driver B is 25% at fault.

Driver A can collect $.25 worth of his $1 in damages.

Driver B can collect $.75 worth of her $1 in damages.

So who decides who was negligent in a crash? Well, in pre-suit cases, claims adjusters do that initially. If claims adjusters do not agree, then they will often use what is called  an arbitration panel to decide who has what amount of comparative negligence. The arbitration panel, though, is made up of claims adjusters, and claims adjusters are notoriously conservative.

That is where I come in. My job is to advocate for my client in a personal injury case. I do that even in pre-suit cases. Of course, if I have to file a lawsuit in a personal injury case, then I argue my client’s case to a jury, and the jury decides  who has what amount of comparative negligence.

Claims adjusters and juries look at many things when trying to decide comparative negligence. They may examine the points of impact, skid-marks, position of the vehicles within an intersection (in the above case), the amount of crush damage, and the amount of reaction time both drivers had before the collision occurred. In some cases, traffic light sequencing comes into play, and a jury may even consider the weather conditions that could affect how one should drive such as in the rain.

It is a complicated process, but one thing that claims adjusters and juries cannot consider is who received a traffic ticket. That is because traffic tickets are not admissible in court as evidence. Generally speaking, the police officer is not going to see a crash occur, and the police officer is merely guessing at who violated a state statute. Even if I were to subpoena a police officer to testify at trial, all the police officer could testify about is what he saw when he got to the scene. That is it.

This is why I tell my clients I do not care if they received a traffic ticket. Many attorneys will not accept a case if the client received a traffic ticket, but I do not care. What I care about are the injuries my client has and the available policy limits the other driver and my client have at the time of the crash.

Here is why I do not think who received a traffic citation is important: How much is 1% of the human life worth? How about 1% of a broken arm? 1% of the missing eye?

One percent of an injury could be worth far more than the other person’s bodily injury liability limits or your uninsured motorist limits. If the other driver has very low policy limits, and my client has sustained a severe injury or died, then even if my client is 99% at-fault for the collision, then my client deserves 1% of her damages. One percent of a severe injury is often worth the full amount of the other side’s bodily injury policy limits.

I believe everybody is entitled to recover their compensatable damages.

The other issue is that claims adjusters are often wrong about the positions they take in regard to liability, and when they become so stubborn that I must file a lawsuit, then my experiences that that position can change, and  many times, it changes in my client’s favor. I have had claims adjusters swear up and down that they were not going to pay me any more than they were already offering me, and when I filed a lawsuit, suddenly everything changes.

Does that always happen? Of course not. But it has happened often enough that I believe in the awesome power of a lawsuit to persuade an insurance company to do the right thing.

If you have any questions about Florida’s pure comparative negligence law, I invite you to contact me.


Kindest regards,

Attorney Dillingham

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