Under this system, the jury determines the percentage of fault attributable to the plaintiff, the defendant, and even nonparties who may have contributed to the injury. The jury also assigns a monetary value to the plaintiff’s damages. Together, these findings constitute the jury’s verdict.

A jury verdict is not the same as a final judgment. Only judges render final judgments, and in doing so, they consider several factors—two of the most important being the jury’s findings on fault and damages.

Consider a simple example:

Mr. Jones, visiting a friend’s condominium, trips over a large crack in a poorly lit underground parking lot and falls, suffering a severe laceration and a concussion. The lot, owned by a condominium association and managed by a maintenance company, had a long history of accidents caused by the same crack. After failing to reach a settlement, Mr. Jones sues both the association and the management company for negligence.

The jury returns a verdict of $500,000 in damages, apportioning fault 75% to the defendants (the association and management company) and 25% to Mr. Jones. Applying Florida’s comparative fault rule, the final judgment for Mr. Jones would be $375,000—reflecting 75% of the total damages awarded.

From Contributory to Comparative Fault

Before 1973, Florida followed the doctrine of contributory fault, under which a plaintiff who was even 1% at fault was barred from any recovery. In our example, Mr. Jones—though only 25% at fault—would have recovered nothing under that old rule.

Is there anything similar to contributory fault in modern Florida law? Sort of, but not quite. There remains a principle that can, in certain circumstances, prevent a plaintiff from recovering even when the defendant bears some responsibility: the Open and Obvious Doctrine.

The Open and Obvious Doctrine

The Open and Obvious Doctrine holds that certain conditions are so open and obvious that, as a matter of law, they cannot be considered dangerous, and therefore do not give rise to liability. Examples include:

• A six-foot-diameter planter (Taylor v. Universal City Property Mgmt., 779 So. 2d 621 (Fla. 5th DCA 2001));
• A landscaped area surrounded by large planks adjacent to a walkway (City of Melbourne v. Dunn, 841 So. 2d 504 (Fla. 5th DCA 2003));
• A raised concrete surface at a gas station, visible in broad daylight (Circle K Convenience Stores, Inc. v. Ferguson, 556 So. 2d 1207 (Fla. 5th DCA 1990)).

The critical language in these cases is that the condition must be “glaringly open and obvious.”

Fortunately for most plaintiffs, Florida courts are generally reluctant to decide—as a matter of law—that a condition meets this standard. In most premises liability cases, the issue of liability remains a question for the jury.

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Contact us toll free at 866-785-GALE or by email (jgale@jeffgalelaw.com) for a free, confidential consultation to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

Florida Statute 440.39(2) provides that “the employer or, in the event the employer is insured against liability hereunder, the insurer shall be subrogated to the rights of the employee or his or her dependents against such third-party tortfeasor.” This means that the employer and its workers’ compensation insurance carrier are entitled to recover a portion of their expenditures from money the injured employee receives from the at-fault third party.

Typically, it is not a dollar-for-dollar recovery. The formula for the recovery is contained in section 440.39(3)(a).

The formula’s interpretation has been challenged. Manfredo v. Employer’s Casualty Insurance Company, 560 So.2d 1162 (Fla 1990) put much of the uncertainty to rest. Manfredo explained that the percentage of the employer/carrier’s recovery is determined as follows:

Step 1. Establish the “full value” of the liability case.

Step 2. Reduce the actual recovery by attorney’s fees and costs to reach a net recovery.

Step 3. Divide the net recovery by the full value.

Step 4. The result in Step 3 is the percentage of the subrogation lien the employer/carrier is allowed to recover.

Let’s say the employer/carrier’s subrogation lien totals $100,000, and the net recovery divided by the full value is 20%, the employer/carrier’s recovery is $20,000.

Determining full value is an evidentiary matter. Experts, usually seasoned personal injury lawyers, give their opinions based on the facts of the particular case and their experience. The judge decides what evidence to accept.

Florida is a comparative fault state. See Florida Statute 768.81. This means that a tortfeasor only pays for damages in proportion to his or her percentage of fault. For example, if damages are $1,000,000, but the tortfeasor is only 60% at fault for causing the accident which has resulted in the damages, the at-fault party’s share is limited to $600,000.

Interestingly, comparative fault cannot be argued to reduce full value. See City of Hollywood v. Lombardi, 770 So. 2d 1196 (Fla. 2000) and Luscomb v Liberty Mut. Ins. Co., 967 So. 2d 379 (Fla. 3rd DCA 2007).

Another common factor preventing full recoveries is limited insurance coverage. Very few individuals maintain large bodily injury and uninsured/underinsured motorist insurance policy limits — I consider $1 million and above to be large. Damages usually exceed coverage limits.

While the cases cited in the section above discussing comparative fault do not explicitly say that limited coverage can be argued to reduce the full value assessment, it is my opinion that it cannot. There is nothing in the statute or the cases interpreting the statute saying it can. The language of the statute suggests that it cannot. Section 440.39(3)(a) contains the following language:

“[T]he employer or carrier shall recover from the judgment or settlement, after costs and attorney’s fees incurred by the employee or dependent in that suit have been deducted, 100 percent of what it has paid and future benefits to be paid, except, if the employee or dependent can demonstrate to the court that he or she did not recover the full value of damages sustained, the employer or carrier shall recover from the judgment or settlement, after costs and attorney’s fees incurred by the employee or dependent in that suit have been deducted, a percentage of what it has paid and future benefits to be paid equal to the percentage that the employee’s net recovery is of the full value of the employee’s damages.”

Moreover, the Lombardi case involved a compromised policy limits settlement of $100,000 in which the trial court calculated full value at $250,000. The insurance company did not argue that full value should be limited to the $100,000 settlement.

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Contact us at 305-758-4900 or by email to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

DISCLAIMER: This information provided by Jeffrey P. Gale, P.A. is for informational purposes only and is intended to be used as a non-legal guide prior to consultation with an attorney familiar with your specific legal situation. It should not be considered legal advice or counseling. No such legal advice or counseling is either expressly or impliedly intended. This information is not a substitute for the advice or counsel of an attorney. If you require legal advice, you should seek the services of an attorney.