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How does comparative fault work in Florida?

Federal & State Law Editorial TeamLast reviewed: 2026-05-18

1. Negligence Elements. Florida negligence requires duty, breach, proximate causation, and damages (Clay Elec. Coop. v. Johnson, 873 So.2d 1182). Foreseeability defines both duty and proximate cause.

2. Comparative Fault Regime. HB 837, signed March 24, 2023, amended Fla. Stat. § 768.81(6) to impose a 51% bar: "any party found to be greater than 50 percent at fault for his or her own harm may not recover any damages." This applies to all negligence actions filed on or after 3/24/2023, except medical negligence, which continues to use pure comparative fault. Pre-3/24/2023 cases retain the pre-Hoffman pure comparative rule from Hoffman v. Jones, 280 So.2d 431 (Fla. 1973).

3. Joint and Several Liability. Florida abolished J&S for negligence in 2006 (§ 768.81(3)); liability is now several only based on each defendant's percentage of fault. Intentional torts and pollution remain joint.

4. Last Clear Chance / Sudden Emergency. Last clear chance was subsumed into comparative fault by Hoffman. Sudden emergency persists as a jury instruction (Fla. Std. Jury Instr. 401.13).

5. Settling Tortfeasors. Fabre defendants (Fabre v. Marin, 623 So.2d 1182) — nonparties may be placed on the verdict form for fault allocation. Settlement credits under § 768.041 reduce judgment by settlement amounts.

6. Statute of Repose vs SOL. HB 837 also cut the negligence SOL from 4 to 2 years (§ 95.11(4)(a)) for causes accruing after 3/24/2023. Construction repose is 7 years (§ 95.11(3)(c)). Products liability repose 12 years (§ 95.031).

7. Caps. Med-mal noneconomic caps in § 766.118 were struck down as unconstitutional in N. Broward Hosp. v. Kalitan, 219 So.3d 49 (Fla. 2017). Punitive damages capped under § 768.73 at greater of 3× compensatory or $500,000.

8. Wrongful Death Comparative. Florida Wrongful Death Act (§ 768.16-.26) applies § 768.81 comparative fault to survivors' claims.

9. Worker Injuries. Chapter 440 WC is exclusive (§ 440.11). Third-party tort suits apply the post-HB 837 51% bar.

This is legal information, not legal advice.

When to Talk to a Lawyer
  • Accident on or after 3/24/2023 where comparative fault percentage is contested
  • Med-mal case (pure comparative still applies) involving multiple providers
  • Pre-3/24/2023 cause of action requiring preservation under old pure comparative rule
Related Statutes & Laws
  • Fla. Stat. § 768.81
  • Fla. Stat. § 95.11
  • Fla. Stat. § 766.118

This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.