Comparative Negligence in Wrongful Death Cases:

As a wrongful death lawyer, I often get calls from people who lost a loved one where the loved one was clearly at fault.  They are often surprised to hear me say I’ll take the case because somebody else was also at fault.  Under Florida law, more than one person can be at fault for any given accident.  In fact, there can be, and often are, multiple people at fault for an accident.  The Florida legislature has decided that the damages caused by an accident must be paid by each person at fault but only to the extent that their negligence caused the injury or death, in most cases.

For example, I had a case once where my client’s son was walking down the street and was struck by a vehicle, causing his death.  The defense claimed that my client was in the middle of the roadway, but we were able to prove that even if he had been in the middle of the roadway, the defendant driver had plenty of time to see him and avoid the collision if he had been paying attention.  Consider, if you will, a hypothetical wrongful death case where the deceased stopped his vehicle suddenly because he dropped his phone and was rammed into from the rear by a semi-truck.  

Suppose we could prove that the semi-truck driver violated the Federal Motor Carrier Safety Regulations in multiple ways and had plenty of time to perceive and react to the stopped vehicle. In that case, the jury would have to decide to what extent the truck driver and the trucking company were at fault versus the extent to which the deceased driver was at fault.  The trucker and the trucking company would be held responsible for the portion of the damages attributable to them.  

For the sake of simplicity, if the trucking company was found to be 50% at fault, they would be responsible for 50% of the damages caused by the driver’s death.  If the jury also found that the damages related to the wrongful death were $10,000,000, the verdict would be $10,000,000, but the judge would reduce that amount to a judgment of $5,000,000.

Jurors are often asked to determine the extent to which the failure to use a seat belt caused or contributed to the decedent’s death.  Of course, every case is different, and the facts of the particular case will make a difference in these situations, but our research shows that, on average, the jurors place about 25% of the fault on a decedent who didn’t wear a seat belt.  In that situation, the amount of damages the survivors would be entitled to would be reduced by 25%.

The effect of comparative negligence will vary from case to case, so it’s extremely important to discuss this with an experienced wrongful death attorney.  It’s also important to call the attorney as soon as possible because these cases live and die by evidence, and evidence tends to fade or disappear over time.  Your attorney not only needs to build evidence of how the crash occurred but also needs to guide you on how to build the evidence of your damages so that you can get the full and fair value for your case.


Jimmy Fasig

Wrongful Death Attorney