Florida Bar Journal

Joint and Several Liability in Florida: Are Reports of Its Demise Greatly Exaggerated?

Unless you have been living in a cave the last few months, you probably have heard that the Florida Legislature recently abolished the doctrine of joint and several liability. Effective April 26, 2006, the legislature amended §768.81 to provide, subject to limited exceptions, for apportionment of damages in negligence cases according to each party’s percentage of fault, rather than pursuant to the doctrine of joint and several liability. Under this so-called “comparative fault” approach, a tortfeasor’s degree of liability is now generally limited to his or her own degree of fault. The new statutory amendment completes the trend begun some 20 years ago toward abrogation of the joint and several liability doctrine in Florida.1

The death knell of joint and several liability, however, should not be sounded just yet. The doctrine will continue to control causes of action accruing before the new statute’s effective date. It also will apply to various claims that are statutorily exempted from the comparative fault approach. Moreover, vestiges of joint and several liability still can be found in a few situations in which Florida courts either have expressly rejected the new comparative fault approach or, at least, continue to apportion damages in a manner more consistent with joint and several liability.

The Transition to Comparative Fault in Florida
Historically, Florida courts applied the common law doctrine of contributory negligence in negligence cases. This doctrine barred recovery by a plaintiff whose own fault contributed in any way to his or her injuries against any tortfeasor whose fault also might have caused plaintiff’s injuries.2 The common law doctrine of joint and several liability developed concurrently in Florida with the contributory negligence doctrine. Traditionally, joint and several liability renders each defendant at fault liable for the entire judgment awarded to plaintiff, regardless of each party’s percentage of fault.

Florida started receding from the “all or nothing” contributory negligence doctrine in 1973 with the Florida Supreme Court’s decision in Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973). In Hoffman, the court discarded contributory negligence as a bar to recovery by plaintiffs and adopted the comparative negligence doctrine:

Perhaps the best argument in favor of the movement from contributory to comparative negligence is that the latter is simply a more equitable system for determining liability and a more socially desirable method of loss distribution. The injustice which occurs when a plaintiff suffers severe injuries as a result of an accident for which he is only slightly responsible, and is thereby denied any damages, is readily apparent. The rule of contributory negligence is a harsh one…. When the negligence of more than one person contributes to the occurrence of an accident, each should pay the proportion of the total damages he has caused the other party.3

Two years after Hoffman, in Lincenberg v. Issen, 318 So. 2d 386 (Fla. 1975),the Florida Supreme Court began to move away from pure joint and several liability principles by approving for the first time a right of contribution among joint tortfeasors. Several years later, the Florida Supreme Court considered whether to abolish joint and several liability altogether in Walt Disney World Company v. Wood, 515 So. 2d 198 (Fla. 1987). Although recognizing the inequities often caused by the joint and several liability doctrine, the court declined to eliminate the doctrine, concluding that any abrogation of joint and several liability should be left to the Florida Legislature.4

Interestingly, the Florida Legislature already had initiated a movement toward renunciation of the joint and several liability doctrine in 1986, a year before the Walt Disney decision.5 This 1986 legislative enactment, codified at F.S. §768.81, was part of the Tort Reform and Insurance Act of 1986 and became known as Florida’s comparative fault statute.6 This legislation effectuated a partial nullification of joint and several liability in negligence cases and was the first of three significant legislative enactments ultimately leading to the recent 2006 abolition of joint and several liability in most Florida negligence cases.

Section 768.81(3), as enacted in 1986, provided in pertinent part:

In cases to which this section applies, the court shall enter judgment against each party liable on the basis of such party’s percentage of fault and not on the basis of the doctrine of joint and several liability; provided that with respect to any party whose percentage of fault equals or exceeds that of a particular claimant, the court shall enter judgment with respect to economic damages against that party on the basis of the doctrine of joint and several liability.

its terms, the 1986 statute applied only to “negligence” cases. Also, joint and several liability still applied to all actions in which damages totaled less than $25,000, and remained for “economic damages” if each defendant’s comparative fault equaled or exceeded plaintiff’s fault.7 However, joint and several liability was completely eliminated for noneconomic damages like pain and suffering, with awards of these types of damages based solely on percentages of fault.8

The next significant step toward abolition of the joint and several liability doctrine occurred in 1999, when the legislature made sweeping changes to §768.81.9 Under the 1999 legislation, courts were directed to enter judgment against each party based on the party’s percentage of fault, rather than on the basis of joint and several liability, except in the limited circumstances specified in the statute.10 Like the 1986 version of §768.81, liability for payment of noneconomic damages remained directly proportionate to a party’s percentage of fault. However, application of joint and several liability for economic damages became more complex, with the legislature imposing a “sliding scale” for economic damages under which joint and several liability depended on whether plaintiff also was adjudicated at fault and the percentage of fault attributed to each defendant.

Section 768.81(3)(a) provided the rules in situations in which a plaintiff was found to be at least partially contributorily negligent. Under this section, 1) a defendant was not subject to joint and several liability for economic damages if the defendant was found to be 10 percent or less at fault; 2) if a defendant was found to be more than 10 percent but less than 25 percent at fault, joint and several liability did not apply to economic damages in excess of $200,000; 3) for a defendant found to be at least 25 percent but not more than 50 percent at fault, joint and several liability did not apply to economic damages in excess of $500,000; and 4) for a defendant found to be more than 50 percent at fault, joint and several liability did not apply to economic damages in excess of $1,000,000.11 Significantly, the 1999 legislation provided that joint and several liability did not apply at all to any defendant whose percentage of fault was less than the fault allocated to plaintiff.12

Section 768.81(3)(b) set forth the joint and several liability parameters when a plaintiff was found to be without fault. In situations when no fault was allocated to plaintiff, 1) no joint and several liability existed for economic damages for a defendant found to be less than 10 percent at fault; 2) for a defendant found to be at least 10 percent, but less than 25 percent, at fault, joint and several liability did not apply to economic damages in excess of $500,000; 3) for a defendant found to be at least 25 percent, but not more than 50 percent, at fault, joint and several liability did not apply to economic damages in excess of $1,000,000; and 4) for a defendant found more than 50 percent at fault, joint and several liability did not apply to economic damages in excess of $2,000,000.13

Pursuant to §768.81(3), the economic damages calculated under joint and several liability were in addition to the economic and noneconomic damages already attributable to a particular defendant based on his or her percentage of fault.14 its terms, the 1999 amendment became effective October 1, 1999, and has been applied only prospectively, not retroactively.15 Thus, the new rules established by the 1999 legislation applied only to causes of action accruing on or after October 1, 1999.

The legislature’s two-decade-long movement toward abolishment of the joint and several liability doctrine in negligence cases came to full fruition this past spring, when the legislature eliminated the sliding scale approach implemented in 1999. Now, instead of the complicated formula based on the parties’ percentages of fault, §768.81(3) simply provides: “In cases to which this section applies, the court shall enter judgment against each party liable on the basis of such party’s percentage of fault and not on the basis of the doctrine of joint and several liability.”16 This new provision became effective April 26, 2006, and applies to causes of action accruing on or after the effective date.17

Joint and several liability, thus, no longer exists for most negligence causes of action governed by §768.81 (and accruing on or after April 26, 2006). In these cases, all damages are allocated based purely on each party’s percentage of fault, and courts no longer need to apply the complicated 1999 sliding scale formulas to determine whether to apportion damages according to joint and several liability. In effect, Florida now has a pure comparative fault approach to damages in most negligence cases.18

Comparative Fault Still Not Universal
Although the 2006 amendment to §768.81 marks a substantial extension of the comparative fault approach, joint and several liability is not quite as extinct as recent headlines might suggest. The legislature has carved into the statute various exceptions that preserve traditional joint and several liability principles in several discrete subject areas. In addition, there are numerous common law exceptions to the imposition of comparative fault principles.19

• Pre-amendment Cases —Because the 2006 amendment to §768.81 abolished joint and several liability for applicable negligence claims accruing on or after April 26, 2006, whether and to what extent joint and several liability exists in a particular case will depend on when the pertinent cause of action accrued. For a cause of action that accrued before the effective date of the 2006 amendment, the old sliding scale rules of the 1999 version of §768.81 most likely would apply. As noted, whether and to what extent joint and several liability applies to a pre-April 26, 2006, claim turns on whether the plaintiff has any fault, the degree of each defendant’s fault, and the amount and type of damages awarded in the judgment under the 1999 sliding scale approach.

• Express Statutory Exceptions —Section 768.81(4) contains several express statutory exceptions to application of comparative fault principles. For instance, pursuant to §768.81(4)(b), the comparative fault statute does not apply to an action brought to recover actual economic damages resulting from pollution. Additionally, this subsection excepts out any causes of action for which application of joint and several liability is specifically provided by several chapters of the Florida Statutes, including Ch. 403 (regarding environmental control), Ch. 498 (dealing with land sales practices), Ch. 517 (governing securities transactions), Ch. 542 (which contains Florida’s Antitrust Act), and Ch. 895 (setting forth Florida’s RICO Act).20

Moreover, §768.81(4)(b) excepts “any action based upon an intentional tort.” In Merrill Crossings Associates v. McDonald, 705 So. 2d 560 (Fla. 1997), the Florida Supreme Court considered the scope of this exception in addressing whether an intentional tortfeasor should be left off a verdict form. Limiting a defendant’s ability to apportion fault to defendants or nonparties who negligently, rather than intentionally, cause the plaintiff’s injuries, the court stated:

[T]he language excluding actions “based on an intentional tort” from the statute gives effect to a public policy that negligent tortfeasors…should not be permitted to reduce their liability by shifting it to another tortfeasor whose intentional criminal conduct was a foreseeable result of their negligence (citations omitted).21

In short, the comparative fault principles of §768.81 are inapplicable to actions based on intentional torts.

Finally, §768.81(5) contains an express rule for a “teaching hospital.” Specifically, in an action for damages for personal injury or wrongful death arising out of medical malpractice, a court must enter judgment against a teaching hospital on the basis of percentage of fault and not joint and several liability when an apportionment of damages is attributed to a teaching hospital under §768.81.22

• Vicarious and “Derivative” Liability —The abolition of joint and several liability does not mean that a comparative fault analysis now will always be invoked whenever there are two or more defendants with liability in a given case. Florida common law has long recognized a number of situations in which liability is assessed among multiple defendants in a manner that may not accord precisely with the joint and several liability doctrine, but that also fails to jibe with comparative fault principles.

The doctrine of vicarious liability imposes on a party who is free of legal fault the negligence of another. The liability of the vicariously liable party is premised solely on the legal imputation of responsibility for another party’s tortious acts.23 Although the vicariously liable party is not directly at fault, it is obligated to the plaintiff for the primary tortfeasor’s fault.

Because a vicariously liable party is responsible to plaintiff to the same extent as the primary tortfeasor, vicarious liability does not appear to square with a construct of liability that provides for apportionment among joint tortfeasors. Section 768.81 requires apportionment of damages among joint tortfeasors. Joint tortfeasors act together to commit a wrong or engage in independent acts that combine to cause a single injury.24 However, a vicariously liable party has not engaged in wrongful conduct, but is simply liable for another’s wrongdoing. Also, a vicariously liable party and the party whose actions generated the threshold liability are both jointly liable for the identical loss. For these reasons, liability probably should not be apportioned on a percentage basis as between the primary tortfeasor and the vicariously liable party in the manner contemplated by §768.81.25

The Florida Supreme Court appears to have acknowledged that §768.81 does not contemplate splitting liability as between an active tortfeasor and another who is vicariously liable for that tortfeasor’s conduct. In Nash v. Wells Fargo Guard Services, Inc., 678 So. 2d 1262 (Fla. 1996), the court elaborated on the procedure for apportioning the fault of a nonparty pursuant to §768.81. In addressing the propriety of placing a nonparty’s name on a jury verdict form for the purpose of apportioning fault, the court stated that “the named defendant cannot rely on the vicarious liability of a nonparty to establish the nonparty’s fault.”26

For the same reason that §768.81 apparently does not require apportionment of fault as between a directly culpable actor and his vicariously liable counterpart, the statute also probably does not require such apportionment as between a directly liable party and a “derivatively” liable party. So-called derivative liability involves wrongful conduct both by the person who is derivatively liable and the actor whose wrongful conduct was the direct cause of the relevant injury.27 Such liability is not vicarious, because the derivatively liable party committed a wrongful act. Nevertheless, such liability remains derivative, because it depends on a subsequent wrongful act or omission by another.28

An example of derivative liability is an HMO’s negligent failure to check the credentials of physicians who later commit medical malpractice.29 The HMO’s liability is not vicarious, because the HMO separately committed a tortious act in omitting to perform the credential check. However, such liability is still “derivative” because it became manifest or actionable only upon the subsequent wrongful acts or omissions of the doctors who committed malpractice.30

The same rationale that precludes fault apportionment as between a directly liable agent and his vicariously liable principle, thus, also prevents such apportionment as between directly and “derivatively” liable parties. As a legal commentator has explained:

When the risk of tortious or criminal conduct is the very risk that made the derivatively liable party’s conduct negligent in the first place, allowing the occurrence of that foreseeable conduct to reduce the responsibility of the derivatively liable party undermines the incentive for that party to take precautions against this risk.31

• Indivisible Injury Rule and Complete Liability of Initial Tortfeasor —In Florida, if two successive accidents cause the same or similar injuries, and the jury cannot apportion the injuries between the two tortfeasors, plaintiff can recover for the entire loss as against either tortfeasor.32 This so-called “indivisible injury rule” is predicated on the existence of two successive, versus concurrent, accidents and the inability to divide the loss as between the two tortfeasors on any logical or reasonable basis.33

It is unclear whether the indivisible injury rule represents a holdover of the joint and several liability doctrine, with some, but not all, courts invoking that doctrine as the rule’s theoretical underpinning.34 However, what is clear is that the rule imposes liability on a defendant for damages that were caused at least in part by another defendant. In this respect, the rule appears somewhat inconsistent with the comparative fault approach undergirding §768.81(3).35

Somewhat related to the indivisible injury rule is the old Florida common law principle that an initial tortfeasor may be held responsible for all subsequent injuries resulting to an injured plaintiff.36 The latter principle applies even where the initial tortfeasor is a physician.37 When an initial tortfeasor incurs liability for the entirety of the plaintiff’s damages, his remedy is to seek equitable subrogation against the subsequent tortfeasor.38

An initial tortfeasor’s liability for all subsequent injuries represents another situation in which comparative fault analysis under §768.81(3) appears not to apply. Because the initial tortfeasor is held responsible for injuries caused in part by a subsequent, separate tortfeasor, the entire loss is not apportioned as between the two tortfeasors, but rather is imposed, at least initially before assertion of any subsequent subrogation claim, only as against the first tortfeasor. On its face, such an allocation of loss appears more consistent with the total apportionment provided for under the joint and several liability doctrine.39

In short, whereas the Florida Legislature may have intended to completely abolish joint and several liability doctrine via §768.81(3), it appears that some vestiges of the doctrine remain in the indivisible injury and “complete liability of initial tortfeasor” contexts, even if joint and several liability is not expressly invoked as the underlying justifying principle.

• Strict Liability of a Retailer —At least one Florida court has recognized that joint and several liability also still applies in the strict products liability context. The Second District Court of Appeal articulated the pertinent principle in Barnes v. Kellogg Company, 846 So. 2d 568 (Fla. 2d DCA 2003), disapproved on other grounds by Lamb v. Matetzschk, 906 So. 2d 1037 (Fla. 2005), as follows:

Although the strict liability of a retailer for a manufacturer’s product is not usually described as a form of “vicarious” liability, it is a form of liability without fault where the retailer is required to pay for damages caused by the manufacturer’s error (footnote omitted). There is no rational method to apportion fault between the strictly liable retailer, who has committed no negligent act, and the manufacturer who has produced a product with a hidden defect. In such a case, where the retailer’s liability is not based on fault, section 768.81(3), Fla. Stat. (1999), does not allow the defendants to apportion damages between themselves. They are jointly and severally liable for all damages (emphasis added).40

Based on the rationale of Barnes, a retailer that is sued for strict liability based on its sale of an allegedly defective product will be jointly and severally liable with the product’s manufacturer for damages suffered by the injured party. Because the strictly liable retailer has no independent fault, no rational basis exists to apportion fault between the defendants. Thus, the comparative fault principles of §768.81(3) appear to have no application in this strict products liability setting, and the manufacturer and strictly liable retailer will possess joint and several liability for the plaintiff’s damages. Although Barnes was decided under the 1999 version of the comparative fault statute, the 2006 legislative changes do not appear to alter the principle articulated in that case.

• Survivors in Wrongful Death Claim — Notwithstanding the comparative fault principles of §768.81, a non-negligent survivor’s wrongful death recovery cannot be reduced by another survivor’s negligence. Pursuant to §768.20 of Florida’s Wrongful Death Act, a defense that would bar or reduce a particular survivor’s recovery if that survivor was a plaintiff may be asserted against him or her, but cannot be utilized to reduce the recovery of any other survivor.41

At first blush, this section appears to conflict with §768.81(3)’s provision for entry of judgment against each party on the basis of the party’s percentage of fault. In other words, because each party’s liability generally is limited to the party’s percentage of fault under §768.81(3), a negligent survivor’s fault would appear to reduce the overall liability of the other defendants. However, §768.71(3) resolves this apparent conflict by providing that the comparative fault statute yields to the wrongful death statute to the extent the two provisions conflict.42 Thus, the provisions of the wrongful death statute, prohibiting reduction of a non-negligent survivor’s recovery based on the negligence of another survivor, should trump the comparative fault statute in this instance.

Application of this principle is illustrated in Frazier v. Metropolitan Dade County, 701 So. 2d 418 (Fla. 3d DCA 1997). In that case, the court considered whether the damages awarded to a father, determined to be a non-negligent survivor, could be reduced by the percentage of fault attributed to the mother, a negligent survivor. The court concluded that, because §768.81(3) yields to §768.20 when the two conflict, the father’s award of damages could not be reduced by the negligent survivor’s percentage of fault.43 However, the court further noted that any fault attributed to a non-survivor is subject to the usual comparative fault rules of §768.81(3) and, therefore, can impact the ultimate recovery of a non-negligent survivor.44

Conclusion
Joint and several liability now has been prospectively abolished for most Florida negligence cases. The Florida Legislature’s 2006 amendment to §768.81 completes a trend away from joint and several liability and toward comparative fault that began 20 years ago. Practitioners should be aware, however, that remnants of joint and several liability can still be found in a few statutorily excepted subject areas. In addition, Florida common law continues to recognize a few unique situations where either joint and several liability controls outright or the imposition of liability at least appears more consistent with that doctrine than with a comparative fault approach. The bottom line is that joint and several liability in Florida may be gone, but it has not been forgotten.

1 See House of Representatives Staff Analysis, H.B. 145 at 1 (Fla. February 22, 2006).
2 See, e.g., Macasphalt Corp. v. Murphy, 67 So. 2d 438, 439 (Fla. 1953).
3 Hoffman, 280 So. 2d. at 437.
4 Walt Disney, 515 So. 2d at 202.
5 Because the pertinent claims arose before July 1, 1986, the effective date of the new statute, the court did not apply the new statute in the Walt Disney case.
6 Fla. Stat. §768.81 (1986).
7 See Fla. Stat. §§768.81(3) and (5) (1986). Pursuant to §768.81(4)(a), “negligence cases” include actions for damages based on negligence, strict liability, products liability, professional malpractice, breach of warranty, and other similar theories. Section 768.81(1) defines “economic damages” to include lost income, medical and funeral expenses, lost support and services, replacement value of personal property, loss of appraised value of real property, costs of construction repairs, including labor, overhead, and profit, and any other economic loss that would not have occurred but for the subject injury.
8 Fla. Stat. §768.81(3) (1986).
9 The legislature made other changes to §768.81 at various times between 1986 and 1999. However, these amendments did not materially alter the 1986 legislation’s approach to joint and several liability.
10 Fla. Stat. §768.81(3) (1999).
11 Fla. Stat. §768.81(3)(a) (1999).
12 Fla. Stat. §768.81(3)(c) (1999).
13 Fla. Stat. §768.81(3)(b) (1999).
14 Fla. Stat. §§768.81(3)(a) and (b) (1999).
15 See, e.g., Basel v. McFarland & Sons, Inc., 815 So. 2d 687 (Fla. 5th D.C.A. 2002).
16 Fla. Stat. §768.81(3) (2006).
17 2006 Fla. Sess. Law Serv., Chapter 2006-6, §2 (West).
18 Whereas the 2006 legislation might be challenged at some point, any such challenge probably will face an uphill battle. Shortly after the Florida Legislature first began transitioning towards a comparative fault approach back in 1986, the then-new legislation underwent considerable legal scrutiny, facing attacks on due process, equal protection, and right of access to court grounds. See Smith v. Dept. of Ins., 507 So. 2d 1080 (Fla. 1987). In somewhat cursory fashion, the Florida Supreme Court rejected almost all of these challenges, finding that, with limited exceptions, the new legislation was “entirely within constitutional parameters.” Id. at 1095. The court’s apparent reluctance to strike down the legislature’s prior partial moves towards comparative fault would appear not to bode well for any new challenge to the more complete adoption of that doctrine contained in the latest amendment to §768.81.
19 This article does not discuss every exception to the application of comparative fault principles in Florida, but treats only some of the more common examples.
20 Fla. Stat. §768.81(4)(b) (2006).
21 McDonald, 705 So. 2d at 562; see also D’Amario v. Ford Motor Co., 806 So. 2d 434, 437-39 (Fla. 2001).
22 Fla. Stat. §768.81(5) (2006).
23 American Home Assur. v. Nat. R.R. Passenger Corp., 908 So. 2d 459, 467-68 (Fla. 2005).
24 Letzter v. Cephas, 792 So. 2d 481, 487 (Fla. 4th D.C.A.), review granted, 796 So. 2d 535 (Fla. 2001), rev. dismissed, 843 So. 2d 871 (Fla. 2003).
25 See, e.g., Grobman v. Posey, 863 So. 2d 1230, 1235 (Fla. 4th D.C.A. 2003) (“Vicarious liability does not mesh with the concept of liability that can be apportioned among joint tortfeasors”); Danner Constr. Co. v. Reynolds Metals Co., 760 So. 2d 199, 203 (Fla. 2d D.C.A. 2000) (defendant could not be a Fabre defendant because it was only “vicariously liable without personal fault”); J.R. Brooks & Son, Inc. v. Quiroz, 707 So. 2d 861, 863 (Fla. 3d D.C.A. 1998) (holding that purely vicarious liable party was not subject to §768.81 apportionment).
26 Nash, 678 So. 2d at 1264. The Florida Supreme Court’s decision in American Home, 908 So. 2d 459, probably does not dictate a different result. In American Home, the court addressed “whether a vicariously liable party should have the negligence of the active tortfeasor apportioned to it under section 768.81 [citation omitted], such that recovery of its own damages is correspondingly reduced.” Id. at 462. In answering “yes” to this question, the court expressly distinguished its decision in Nash and stated that “section 768.81 applies to vicariously liable parties as well as active tortfeasors….” Id. at 470. However, as the court suggested in distinguishing Nash, the question of whether a damages-seeking, vicariously liable party who steps into the shoes of the active tortfeasor via subrogation should be assessed with that tortfeasor’s negligence, is entirely different from the question of whether liability for the identical “fault” may be apportioned under §768.81 both against the active tortfeasor and yet again against a party who is vicariously liable for that tortfeasor’s conduct. Obviously, if a named defendant were allowed in this fashion to include on the verdict form a nonparty who is vicariously liable for the named defendant’s wrongdoing, the plaintiff’s recovery would be split between the named defendant and the vicariously liable nonparty even though the liability of the two otherwise should be coextensive. See, e.g.., Nat’l R.R. Passenger Corp. v. Roundtree Transp. & Rigging, Inc., 286 F.3d 1233, 1256 (11th Cir. 2002). Such a result would unfairly dilute the plaintiff’s recovery as against the active tortfeasor and correspondingly deliver a windfall to the tortfeasor.
27 See, e.g., William D. Underwood & Michael D. Morrison, Apportioning Responsibility in Cases Involving Claims of Vicarious, Derivative, or Statutory Liability for Harm Caused by the Conduct of Another, 55 Baylor L. Rev. 617, 619-20 (2003).
28 See, e.g., Grobman, 863 So. 2d at 1235; see also Suarez v. Gonzalez, 820 So. 2d 342, 347 (Fla. 4th D.C.A. 2002).
29 See, e.g., Grobman, 863 So. 2d 1230.
30 Derivative liability is, thus, similar to vicarious liability in that 1) no cause of action exists unless the directly liable tortfeasor commits a tort, and 2) the derivatively liable party is responsible for the entire injury caused by the underlying tortfeasor. Grobman, 863 So. 2d at 1235-36.
31 Underwood & Morrison at 646, quoted in Grobman, 863 So. 2d at 1236.
32 Froats v. Baron, 883 So. 2d 885, 887 (Fla. 5th D.C.A. 2004).
33 As noted by the Florida Supreme Court in Gross v. Lyons, 763 So. 2d 276, 279 (Fla. 2000), the “indivisible injury” rule is consistent with the approach adopted by the Restatement (Second) of Torts, §433A, which explains that when “two or more causes combine to produce such a single [harm], incapable of division on any logical or reasonable basis, and each is a substantial factor in bringing about the harm, the courts have refused to make an arbitrary apportionment for its own sake, and each of the causes is charged with responsibility for the entire harm.”
34 For instance, Froats, 883 So. 2d at 887, expressly links this rule to joint and several liability, whereas others make no mention of that doctrine. See, e.g., Washewich v. LeFave, 248 So. 2d 670 (Fla. 4th D.C.A. 1971).
35 Note, however, that the Florida Supreme Court has recently held that the indivisible injury rule is not inconsistent with §768.81(3)’s apportionment of damages among tortfeasors based on fault. See Gross, 763 So. 2d at 279. The court reasoned that because the sued tortfeasor is the “sole legal cause” for the relevant accident, and the accident was a substantial factor in causing the indivisible injury, that tortfeasor is liable for the entire damage. Id. at 279-80.
36 See, e.g., Frank M. Stuart, M.D., P.A. v. Hertz Corp., 351 So. 2d 703 (Fla. 1977); Rucks v. Pushman, 541 So. 2d 673 (Fla. 5th D.C.A.), rev. denied, 549 So. 2d 674 (Fla. 1989).
37 Letzter, 792 So. 2d at 485.
38 Underwriters at Lloyds v. City of Lauderdale Lakes, 382 So. 2d 702, 704 (Fla. 1980).
39 At least one court has questioned whether the “initial tortfeasor” rule as enunciated in Stuart v. Hertz remains viable following the adoption of the Tort Reform and Insurance Act of 1986, because the latter act shows “a preference of making each tortfeasor liable only for his own negligence.” See Caccavella v. Silverman, 814 So. 2d 1145, 1149 (Fla. 4th D.C.A. 2002), rev. dismissed, 860 So. 2d 976 (Fla. 2003). Although the Florida Supreme Court declined the Fourth D.C.A.’s invitation to clarify this precise question in Caccavella, the high court tangentially addressed this issue in D’Amario, where it made no mention of a conflict between the initial tortfeasor rule and §768.81(3)’s comparative fault approach. D’Amario, 806 So. 2d at 435-36.
40 Barnes, 846 So. 2dat 571-2.
41 Fla. Stat. §768.20 (2006).
42 Fla. Stat. §768.71(3) (2006).
43 Frazier, 701 So. 2d at 420.
44 Id.

Michael S. Hooker is a shareholder and senior litigator at Glenn Rasmussen Fogarty & Hooker, P.A., in Tampa. His primary areas of practice are commercial and products liability litigation. He received his J.D. from the University of Virginia and an M.A. from Indiana University.
Guy P. McConnell is a staff attorney at Glenn Rasmussen Fogarty & Hooker, P.A., in Tampa. His primary areas of practice are commercial and products liability litigation. He received his J.D. from the University of Michigan and a B.B.A. from the University of Cincinnati.