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Last Update: 12/10/21

Are you partly at-fault for your car accident to a slip and fall injury? Will you be subject to a claim of contributory negligence? The use of experts is key here.

And how to determine who is to blame for an accident can often be complicated. That’s because the at-fault party often points the finger at the injured party and says the victim was the primary cause of the accident. If that happens, then the injured party is usually left with a long-drawn-out process to recover compensation for his or her injuries. If an insurance company can find any reason to blame the victim, then it will do so. After all, most insurance companies have a well-earned reputation of vigorously defending against any claim that is questionable.

Read: Who Pays For My Damages In A Florida Car Crash?

Placing Blame for Your Florida Claim

Blame isn’t decided as all-or-nothing in Florida. In Florida, our “contributory negligence” law addresses the issue of blame and how it is allocated among the parties involved in an accident. (Note: If it is determined that no party is at fault, then the case has little if any value. It doesn’t matter if a party is seriously injured.) 

In fact, the question of fault and how it is allocated is at the center of how much compensation a victim will ultimately recover for his or her injuries. See, Fabre v. Marin, 623 So.2d 1182 (Fla. 1993), and Nash v. Wells Fargo Services, Inc., 678 So.2d 1262 (Fla. 1996). 

Most experienced personal injury lawyers will evaluate if their client shares any responsibility when estimating the value of any personal injury claim. This issue of shared responsibility is what makes it so hard sometimes for a personal injury lawyer to accurately estimate the amount of compensation a client will ultimately receive.

Contributory Negligence and Fault Issue: Calculating Blame

As mentioned above, Florida has implemented a “pure comparative fault” system to determine blame in an accident. (See Florida Statute 768.81.)

Here are 2-key sections of the statute:

(2) EFFECT OF CONTRIBUTORY FAULT.In a negligence action, 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.
(3) APPORTIONMENT OF DAMAGES.In a negligence action, 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.

How does this work?

Allocations are made by the trier of fact (likely a Jury, but it can be a Judge, a Mediator, and even the Lawyers) between those involved in the incident and then percentages are applied to each party.

Here’s an example of how contributory negligence works in Florida:

Joe and Mary are in a traffic accident in downtown Hallandale, here in Broward County. Joe was hurt in the accident and had to be taken to the hospital for treatment. Mary didn’t suffer severe injuries in the crash.

Accident experts review the crash site, study photos of the wreck, read the police reports, talk to witnesses, etc., and determine that Joe was 80% at fault for the accident because he was speeding at the time.

They also determine that Mary was 20% at fault for the crash because she failed to yield or was distracted.

Joe’s total damages come to $200,000.00.

Joe can look to Mary for $200,000 – 80% ($200,000) = $40,000 which is Mary’s percentage of fault.

Fault as a Fact Question: Importance of Expert Analysis of Your Accident

Obviously, applying the percentages is easy enough once blame has been determined. Thus, who is at fault is usually the main issue in an accident case which is usually determined by a jury. However, once that determination is made most of these cases boil down to a math question – it’s just a matter of applying percentages to the total amount of damages.

So, the real issue becomes how those percentages are determined. Defense lawyers and insurance adjusters are always ready to low-ball numbers and skew things so that their claimant has the least fault possible in the claim.

Plaintiff’s injury lawyers understand the strategies used by insurance companies to keep those fault percentages low. Accident reconstruction experts can be particularly helpful in understanding what happened and why an accident occurred. Investigators can find historical information that can be invaluable: for example, there is a history of wrecks at an intersection because of a blind spot created by the sun or the other driver’s car has been the subject of a recall because of a major parts failure. This is why knowing how to select an expert and how to properly question an expert are key elements in any personal injury trial.

Quick Tip: Here’s one way an experienced personal injury trial lawyer can help and add value to your case (they will hold the defendant to comply with these requirements and challenge the sufficiency of the defendant’s compliance):

(a)1. In order to allocate any or all fault to a nonparty, a defendant must affirmatively plead the fault of a nonparty and, absent a showing of good cause, identify the nonparty, if known, or describe the nonparty as specifically as practicable, either by motion or in the initial responsive pleading when defenses are first presented, subject to amendment any time before trial in accordance with the Florida Rules of Civil Procedure.
2. In order to allocate any or all fault to a nonparty and include the named or unnamed nonparty on the verdict form for purposes of apportioning damages, a defendant must prove at trial, by a preponderance of the evidence, the fault of the nonparty in causing the plaintiff’s injuries.

Bottom line: When you have been injured in an accident in Florida, the at-fault party in the accident (through their insurance company) will try to place as much blame on the victim, because it lessens the at-fault parties’ financial liability under Florida’s contributory negligence law.

What Should You Do?

A good piece of advice if you have been harmed in an accident, is to speak with an experienced personal injury lawyer to learn about some of the issues that can arise with these claims, including how most insurance companies handle claims like yours and the tactics they use to place some of the blame on you. Most personal injury lawyers, like Alan Sackrin, will offer a free initial consultation (over the phone or in-person) to answer your questions.



Do you have questions or comments? Then please feel free to send Alan an email or call him now at (954) 458-8655.



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