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As the shackles on lawyer advertising are removed, it seems like lawyers are frequently advertising for injured people to hire their services. They do not want everyone who is injured. They only want those who are injured by the negligence of another.

What is negligence? Florida's Supreme Court has approved jury instruction that defines negligence as "failure to use reasonable care, which is the care that a reasonably careful person would use under the 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."

Negligence itself does not equal liability. It must be legal cause of a loss or damage. Florida's Supreme Court confirmed negligence is a legal cause of loss or damage if it directly "and in natural and continuous sequence produces or contributes substantially to producing the loss or damage." There has to be some relation between the negligence and the injury. It is not enough that there is a possible relation. Florida has adopted the more likely than not standard, which means the injured person must prove the negligence probably caused the damages.

Under Common Law inherited from England, if the injured person's negligence contributed in any manner to the injuries, that person was barred from recovery. That doctrine is known as contributory negligence and could be quite harsh. A person only one percent at fault was barred from pursuing someone who for all practical purposes really caused the injuries.

Florida's Supreme Court abolished the doctrine of contributory negligence in the 1973 case of Hoffman v. Jones. The court explained that the doctrine of contributory negligence should be replaced because it is inconsistent with contemporary standards. It explained that contributory negligence was inequitable. The Hoffman court ruled that for future cases, the principle of comparative negligence would apply.

Comparative negligence does just what it sounds like. It requires the court determine the proportion of the entire damages caused by the injured person and the defendant. No longer does the injured person's contributory negligence bar recovery. An injured person is entitled to damages which are caused by the negligence of the defendant. The total amount of damages is first quantified. The percentage responsibility of both plaintiff and defendant is then determined and the defendant is responsible for the percentage of total damages equal to the percentage of causation attributable to the defendants negligence.

In 1986, the legislature mandated a comparative negligence approach to accident cases at Section 768.81 Florida Statutes. The statute provides that in accident cases the court enter judgment against each party on the basis of each party's percentage of fault. The statute was particularly concerned when there was more than one negligent defendant as the statute also changed the then existing doctrine of joint and several liability. Under joint and several liability, any defendant whose negligence contributed to the damages was liable for all of the damages that could be awarded against defendants in totality. The statute now generally requires apportionment of liability among all defendants so that each defendant is only liable for that portion of the damages allocated to that defendant's portion of negligence. The statute applies comparative negligence to the defendants apportioning liability among defendants. It reaffirms the same principle with respect to reduction of damages attributable to the injured person's fault.

Assumption of the risk is another factor that can be at play in certain negligence cases. Assumption of the risk is a claim that the injured person assumed the risk and is therefore responsible for his or her injuries. As the defense developed, it became complicated by categories and subcategories. Florida's Supreme Court added assumption of risk in the 1977 case of Blackburn v. Dorta. The court explained primary assumption of risk is when the defendant is not negligent either because the defendant has no duty to the injured person or because the defendant did not breach any duty. Secondary assumption of risk applied where the defendant was negligent, but the defendant was aware and voluntary assumed the risk of injury from the defendant's negligence. Florida courts explained that there was also secondary implied assumption of risk, which was referred to as "torn in the judicial side."

Pure or strict implied assumption of risk is when a person voluntarily exposes himself to a known risk. The court explained that it could when a landlord negligently allowed a tenant's premises to become highly flammable and they are destroyed by fire.

Implied-qualified assumption of risk is where the injured person takes action which would clearly be unreasonable. Using the same apartment fire analogy, implied-qualified assumption of risk would be when the tenant rushes in to retrieve a hat and is injured by the fire. The court explained that implied-qualified assumption of risk was almost identical to contributory negligence, as both barred recovery by an injured plaintiff.

In 1973, the court abolished contributory negligence and in Blackburn it extended that abolition to include assumption of the risk. But, it excluded express assumption of risk. Express assumption of risk can arise either by contract or by participation in a contact sport. If it can be established that the injured person was aware of the risk and expressly assumed the risk by contract or participation in a contact sport, recovery can be barred.

There is no set formula to determine comparative degrees of negligence. Judges and juries can disagree and that uncertainty creates instability in negligence lawsuits. Nevertheless, it is Florida's effort to apportion liability based on the facts in any case.

William G. Morris is the principal of William G. Morris, P.A. William G. Morris and his firm have represented clients in Collier County for over 30 years. His practice includes litigation and divorce, business law, estate planning, associations and real estate. The information in this column is general in nature and not intended as legal advice.

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