Commentary: Navigating Florida’s Comparative Fault Statute

During the life of a Florida claim, risk managers, adjusters or clients often ask, “What kind of jurisdiction is Florida for fault?” And all too often, the answer given since 2006 is, “purely comparative.” This is a reference to the 2006 amendment to Florida’s Comparative Fault statute, Section 768.81.

This answer often is the foregone conclusion because the statute says plainly, “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.” Therefore, the assumption is that the claim is analyzed, values are assessed, and litigation strategy is formed and implemented without consideration for joint and several liability.

However, there are several scenarios where this answer is incomplete or incorrect. In fact, the correct or complete answer in these scenarios will often lead to completely different evaluations, valuations and strategies.

Florida courts have recognized that there are certain types of liability that are different than the usual concept. A very instructive case is Grobman v. Posey, 863 So.2d 1230 (Fla. 4th DCA 2003) which involves vicarious liability. A vicariously liable party is responsible to the plaintiff to the same extent as the primary actor. Both are jointly liable for all of the harm that the primary actor has caused.

Similarly, there is the concept of derivative liability. Derivative liability involves wrongful conduct both by the person who is derivatively liable and the actor whose wrongful conduct was the direct cause of injury to another. Derivative liability is similar to vicarious liability in that: a.) there is no cause of action unless the directly liable tortfeasor commits a tort and b.) the derivatively liable party is liable for all of the harm that such a tortfeasor has caused.

Although it can be argued that the Posey case predates the 2006 amendment to Florida’s Comparative Fault Statute, it is important to note that the pre-2006 version of Florida’s Comparative Fault statute was nearly identically worded in its abolishment of joint and several liability for joint tortfeasors but was limited to non-economic damages. Additionally, several cases after 2006 have cited Posey with authority, including a 2012 case discussed later on.

So how can this make a difference in defending a claim? Let’s take the example of a restaurant. The restaurant is located in a small shopping center and leases its restaurant space from the owner of the center. The shopping center owner hires a security company to patrol the parking lot. One evening, a patron dines at the restaurant, leaves the restaurant, and, while walking to his car, is tragically murdered during an armed robbery. The restaurant is insured, but the small security company is not, and the shopping center owner is in bankruptcy and let his insurance lapse prior to the shooting. Contractually under the lease, the shopping center owner assumed responsibility for security of the parking lot and the known facts suggest that the security company may have failed to follow their post-orders.

If the claim against the restaurant is analyzed as a purely comparative claim, then the restaurant faces minimal to no liability under the facts. No one at the restaurant appears to have done anything wrong, and the fault, if any, lies primarily – or entirely – with the shopping center owner and the security company.

However, Florida is not purely comparative in this scenario. Florida law places a non-delegable duty on owners and occupiers of premises, including the duty to maintain the premises in a reasonably safe condition. Because the duty is non-delegable – even if the owner/occupier hires an independent contractor to carry out the duty – the owner/occupier is held vicariously liable for the independent contractor’s failure to carry out the duty. And if the owner/occupier does something themselves wrong to contribute to the accident or injury, then they are held derivatively liable for the independent contractor’s failure to carry out the duty.

But wait – didn’t the robbery happen in the parking lot and not within the restaurant’s leased space? Florida law also extends the concept of a premises to not just the premises itself (such as the leased space), but also known ingresses (entrances) and egresses (exits) to the premises. Therefore, in this example, the parking lot becomes part of the restaurant’s premises and it owes a non-delegable duty to maintain the parking lot in a reasonably safe condition.

Thus, the restaurant can be held vicariously or derivatively liable for the mistakes of the shopping center owner and the security company in this claim. What’s worse is that the claimant’s attorney, when faced with the fact that neither the shopping center owner nor the security company appear collectible, may choose to sue only the restaurant. At trial, the restaurant will likely be prevented from offsetting its own liability with the comparative fault of the shopping center owner or of the security company. With this knowledge in mind, a good defense strategy could be to work to defend not only the actions of the restaurant, but also those of the shopping center and the security company. It would likely be counter-productive to instead point the finger at these other actors. And this also clearly affects the valuation of the claim against the restaurant.

There are numerous other situations under Florida law where vicarious or derivative liability are imposed, including: employer/employee under respondeat superior; dangerous instrumentality; general contractor/subcontractor, principal/agent, product distributor/manufacturer; and inherently dangerous activity.

It is also important to consider that if a defendant is subject to vicarious or derivative liability, the defendant has rights to potentially recover from those parties or non-parties they are being held vicariously or derivatively liable for. This could be indemnity rights (vicarious liability) or even potentially contribution rights (derivative liability). In order to preserve those rights, it may be necessary to have a jury determine apportionment of fault between the defendant and various other parties and non-parties.

In Continental Fla. Materials, Inc. v. Kusherman, 91 So.3d 159 (Fla. 4th DCA 2012), a plaintiff convinced a trial court that a defendant was not permitted to have a jury apportion fault at trial to various non-parties. The court struck the defendant’s affirmative defenses and the case was tried without the non-parties on the verdict form for the jury to apportion fault. On appeal this was held to be improper.

The court explained:

“A distinction must be drawn between apportionment of fault and ultimate liability. The former allows the finder of fact to determine to what extent, if any, each party or non-party contributed to the loss or injury. The latter determines who will actually pay for that loss or injury. The combination of both insures responsibility for one’s own negligence, and ultimately who will pay – and to what extent of – the total loss.”

In other words, simply because a jury apportions fault to various parties or non-parties on a verdict form, does not mean that the defendant seeking the apportionment will necessarily get to reduce their own liability with the apportionment to these other parties or non-parties. However, at least they can use that apportionment to potentially seek indemnity or contribution from those other parties.

Going back to the restaurant example, what if the security company or the shopping center did have coverage or assets, but the plaintiff chooses not to sue them? For the restaurant, they would probably want to try to bring the security company or the shopping center into the case with a third-party claim for indemnity or contribution. And, to preserve those claims at trial, they would probably want to seek a jury apportionment of fault to the shopping center or security company.

It is important to keep in mind that these are not easy or simple scenarios to digest. And often the results can seem counter-intuitive or unjust. This is one of the reasons the Florida Comparative Fault statute was amended in 2006. But despite the amendment, these scenarios live on and should be kept in mind when handling certain claims.

Ryan D. Burns is a shareholder with Marshall Dennehey Warner Coleman & Goggin, a civil defense litigation law firm that represents and advises insurers, self-insured businesses and professionals in a wide range of casualty, health care, professional liability, employment law and workers’ compensation matters. He may be reached at (954) 847-4950 or rdburns@mdwcg.com.