The Impact of Tort Reform

Gov. Ron DeSantis signed Senate Bill 2-A into law in December 2022, followed by his signing of HB 837 on March 24, 2023. One of the many features of this tort reform was the move from a pure comparative fault state to a system of modified comparative fault. Now, new standard jury instructions are being considered to facilitate the apportionment of fault by a jury in light of Florida’s new modified system of comparative fault. The modified jury instructions incorporate the recent tort reform changes to Florida law, including the changes to comparative fault. 

Adjusting Comparative Fault  

Florida has traditionally been a pure comparative fault state, where plaintiffs could recover damages in a personal injury action even if they were mostly—or even nearly entirely—at fault for their own damages. See Section 768.81(2), Florida Statutes (“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.”). HB 837 modified Florida’s comparative fault law to bar a plaintiff’s recovery if they are more than 50% at fault for their own harm.  

Florida Statute § 768.81(6) (effective March 23, 2023), titled Comparative Fault, now states: Greater percentage of fault. – In a negligence action to which this section applies, any party found to be greater than 50 percent at fault for his or her own harm may not recover any damages.  

§ 768.81(6) does not apply to an action for damages for personal injury or wrongful death arising out of medical negligence pursuant to chapter 766.  

Proposed Jury Instructions and Verdict Form

The Supreme Court Committee on Standard Jury Instructions in Civil Cases has proposed new instructions and a new verdict form in light of section 9, Chapter 2023-15, Laws of Florida. This law, commonly known as section 9, HB837, is codified at section 768.81(6), Florida Statutes. The committee proposed new instructions based on the following existing instructions: 409.13, 412.2, 412.8, 501.1, 501.3, 502.1, and model verdict form 1. These instructions include new instructions for the following: Apportionment of Damages (409.135); Contribution (412.25); Burden of Proof (412.85); Personal Injury and Property Damages (501.15); No-fault (501.35); Wrongful Death Damages (502.15); as well as a new Model Form of Verdict for General Negligence with Apportionment of Fault (Form 1.5).