The Florida Bar
www.floridabar.org
The Florida Bar Journal
January, 2015 Volume 89, No. 1
Refining Comparative Fault in Florida: A Causation Theory for Apportioning Fault

by Benjamin H. Brodsky

Page 8

Under Florida’s comparative fault law, a negligent tortfeasor’s degree of liability is generally limited to his or her own degree of fault. The Florida Supreme Court has explained that comparative fault is intended to avoid unfairly burdening defendants in negligence cases with liability that they did not cause.1 A crucial element of this liability regime in negligence cases is a defendant tortfeasor’s ability to plead and prove that a codefendant or nonparty caused and, therefore, should be apportioned some or all of the fault for a plaintiff’s injuries, reducing the defendant tortfeasor’s liability accordingly. In the context of relatively simple cases, such as those arising from many typical automobile accidents, this is a straightforward inquiry into each party’s (and possibly nonparty’s) role in causing the plaintiff’s damages. However, in more complex commercial cases, the analysis of comparative fault can get bogged down by the complicated relationships between the parties, the likelihood that at least some of the parties are in contractual privity, and the often difficult process of discerning duties owed by parties to one another across a web of relationships. Florida courts’ repeated assertions in dicta that a party or nonparty must be “negligent” in order to be apportioned fault have only further muddied this analysis.

The difficulty — and, ultimately, arbitrariness — of tying a party’s fault to its negligence in the commercial context is apparent when considering the basic question of whether a defendant may apportion fault to a party that is in contractual privity with the plaintiff. In the only reported decision interpreting Florida law on the issue, Millette v. Tarnove, 435 Fed. Appx. 848, 853-55 (11th Cir. 2011), the U.S. Court of Appeals for the 11th Circuit held that a jury may apportion fault to a nonparty, even if its duties to the plaintiff arise by contract, and even if the plaintiff is unable to recover from it in tort because of the economic loss rule. Ultimately, the 11th Circuit looked behind the contractual relationship between the plaintiff and the nonparty to determine whether the nonparty owed a fundamental societal duty to the plaintiff that would allow fault to be apportioned to it.2 The author’s contention is that such contortions are unnecessary and obscure the true function of comparative fault principles under Florida law. Indeed, under the comparative fault statute, a defendant is required to pay for a plaintiff’s damages “only in proportion to the percentage of fault by which that defendant contributed to the accident.”3

This article attempts to set forth a coherent theory for comparative fault that is based on causation rather than the serendipitous circumstances of the plaintiff’s relationship with the other defendant or nonparty. This proposed version of comparative fault would apply under any scenario in which the actions of another partially or wholly caused a plaintiff’s damages, regardless of whether the plaintiff-codefendant/nonparty liability relationship sounds in contract or in tort. In doing so, the article examines the historical and policy underpinnings of comparative fault law in Florida, considers the 11th Circuit’s Millette decision in the context of that history and policy, and finally suggests a conceptual and statutory framework that ensures that a defendant is not punished through responsibility for the damages caused by another.

Comparative Fault Law Represents a Public Policy Decision to Equate Fault with Liability
In Florida, by statute, a defendant is required to pay for a plaintiff’s damages “only in proportion to the percentage of fault by which that defendant contributed to the accident.”4 The comparative fault statute, F.S. §768.81, reflects a policy rooted in fundamental fairness because “[t]here is nothing inherently fair about a defendant who is 10 [percent] at fault paying 100 [percent] of the loss.”5 Moreover, as adjudged by the Florida Supreme Court, “there is no compelling social policy which requires the codefendant to pay more than his fair share of the loss,” even if, “by reason of some competing social policy” — such as the economic loss rule — “the plaintiff cannot receive payment for his injuries from the [nonparties].”6

The equating of fault with liability was not always the rule in Florida. Until 40 years ago, fault and liability were linked in ways that led to unjust outcomes. Under the doctrine of contributory negligence, for example, if the finder of fact determined a plaintiff to be even 1 percent at fault for his or her injuries, the plaintiff was barred from all recovery.7 The policy rationale behind the adoption of this “all or nothing” rule was that only a plaintiff without fault was entitled to recover for his or her injuries: “[O]ne person being in fault will not dispense with another using ordinary care of himself.”8 Likewise, for defendants, the law failed to equate fault with liability. Under the doctrine of joint and several liability, a joint tortfeasor found to be only 1 percent responsible for a plaintiff’s injuries was liable for the entire loss.9 The policy rationales behind the rule of joint and several liability focused on protecting the plaintiff and the difficulty of apportioning fault among defendants for a single injury.10 Indeed, joint and several liability and contributory negligence are twinned concepts resting at least partially on the same conceit that has since been definitively rejected by the Florida Supreme Court — that it is impossible for a jury to divvy up fault among mutually culpable plaintiffs and defendants.

In 1973, in Hoffman v. Jones, 280 So. 2d 431, 436 (Fla. 1973), the Florida Supreme Court began the process of equating fault with liability by adopting the doctrine of comparative negligence in the place of contributory negligence:

The rule of contributory negligence as a complete bar to recovery was imported into the law by judges. Whatever may have been the historical justification for it, today it is almost universally regarded as unjust and inequitable to vest an entire accidental loss on one of the parties whose negligent conduct combined with the negligence of the other party to produce the loss. If fault is to remain the test of liability, then the doctrine of comparative negligence which involves apportionment of the loss among those whose fault contributed to the occurrence is more consistent with liability based on a fault premise.

Under this new doctrine, a plaintiff could recover for the portion of damages that were caused by another, even if he or she was partially to blame for them.11 Two years later, in Lincenberg v. Issen, 318 So. 2d 386, 391 (Fla. 1975), the Florida Supreme Court abolished the rule against contribution among joint tortfeasors: “[It would be undesirable for this [c]ourt to retain a rule that under a system based on fault, casts the entire burden of a loss for which several may be responsible upon only one of those at fault.” And in 1986, the Florida Legislature continued the march toward equating fault with liability by eliminating joint and several liability except under certain enumerated circumstances.12 The elimination of joint and several liability represented an implicit repudiation of the policy rationales set forth in Walt Disney Co. v. Wood, 515 So. 2d 198 (Fla. 1987) — i.e., protecting the plaintiff and avoiding the potentially challenging task of apportioning fault among defendants for a single injury.

Through its decision in Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993), the Florida Supreme Court appeared to complete the transformation of tort law in Florida to a regime in which plaintiffs may recover for the portions of their losses caused by others, but individual defendants are not forced to pay for damages that they did not cause. In Fabre, the plaintiff was injured in an accident while riding as a passenger in an automobile driven by her husband. While the husband owed general duties of care to his wife, he was immune from suit because of interspousal immunity.13 The jury found that he was 50 percent at fault for the accident, but the trial court declined to reduce the defendant’s liability accordingly.14 The Florida Supreme Court, noting the progress in the law toward a more equitable approach in holding defendants responsible for their actions, quashed the trial court’s order and remanded for proceedings consistent with its opinion.15

Two equity-based policy determinations supported the court’s decision. The first was a rejection of the principle that “in a suit between an innocent victim and a negligent party, the innocent victim should be made whole by receiving damages from a negligent party.”16 Instead, the court examined the issue from the perspective of the defendant, and concluded that “[t]here is nothing inherently fair about a defendant who is 10 [percent] at fault paying 100 [percent] of the loss, and there is no social policy that should compel defendants to pay more than their fair share of the loss.”17 The second was a recognition of the need to apply the law fairly to all defendants, and avoid imposing penalties on a defendant based on the chance circumstances of a plaintiff’s damages over which the defendant had no control: “It would be incongruous that the legislature would have intended that the [defendant’s] responsibility be 100 [percent] in situations where [plaintiff’s] vehicle was operated by her husband and only 50 [percent] in situations where by chance she was a passenger in a vehicle operated by a friend.”18

Those policy determinations were echoed in a subsequent Florida Supreme Court decision, Y.H. Invs., Inc. v. Godales, 690 So. 2d 1273 (Fla. 1997). In that case, a mother’s immunity from tort liability for her child’s injuries did not preclude a jury from allocating fault to her on the verdict form in a negligence action against a property manager based on those injuries. As the court explained, if a defendant may be held accountable for only the portion of the plaintiff’s damages that are his or her fault, the fault of all persons or entities that contributed to the damages must be considered: “[T]he only means of determining a party’s percentage of fault is to compare that party’s percentage to all of the other entities who contributed to the accident, regardless of whether they have been or could have been joined as defendants.”19 And, again, the Florida Supreme Court noted that a defendant’s liability cannot turn on the relationship between the responsible nonparty and the plaintiff. “Indeed, had [the child] been in the care of a hired baby-sitter or an unrelated adult, it is apparent that the fault of the baby-sitter or adult could be properly considered in determining the cause of the accident and the percentage of fault of the responsible parties.”20

The clearly stated policy underpinnings of the comparative fault doctrine in Florida — equating fault with liability and treating similarly situated defendants the same — are necessarily founded on causation. That is, a negligent defendant should only be held responsible for the harm that he or she caused. Yet, in applying the comparative fault doctrine, Florida courts have erected an unnecessary hurdle in the process by stating that the nonparty that caused or contributed to the plaintiff’s harm must him or herself be negligent.21 This hurdle could preclude a jury from considering the fault of a nonparty who has only contracted duties to the plaintiff.

It is difficult to determine the source of Florida courts’ requirement that a nonparty must be proved negligent in order to be apportioned fault on a verdict form. The comparative fault statute, F.S. §768.81, does not contain such a requirement. Indeed, the statutory language suggests that all that is required to be pled and proven is the nonparty’s causal relationship to the plaintiff’s injuries: “In order to allocate any or all fault to a nonparty and include the named or unnamed nonparty on the verdict form for purposes of apportioning damages, a defendant must prove at trial, by a preponderance of the evidence, the fault of the nonparty in causing the plaintiff’s injuries.”22 Incredibly, in the trinity of Florida Supreme Court cases dealing with apportioning fault to a nonparty not amenable to suit in tort — Fabre, Godales, and Allied-Signal, Inc. v. Fox, 623 So. 2d 1180 (Fla. 1993) — the word “duty,” a necessary element of negligence, does not appear once.

As discussed below, this requirement — that a nonparty that caused or contributed to the harm suffered by the plaintiff must be “negligent” in order to be apportioned fault on a verdict form — is at odds with the stated policy behind comparative fault. It can lead to unfair results when the negligence of the responsible nonparty may be hard or impossible to prove. It is also very tricky to apply in the context of complex commercial cases in which the various relationships between the parties may not uniformly be governed by tort as opposed to contract duties. A federal appellate decision applying Florida’s comparative fault law in the context of a homebuyer-developer-contractor dispute — which appears to be the only reported case dealing with such a web of commercial relationships in the context of comparable fault — is descriptive on this point.

The 11th Circuit’s Duty-Based Analysis
In Millette v. Tarnove, 435 Fed. Appx. 848, 853-55 (11th Cir. 2011), a home purchaser sued her general contractor, Nadeau, in the Southern District of Florida for negligent construction of her home. The defendant, Nadeau, pleaded the culpability of nonparties Camus/DEK (the developer) and Webster Bank (Millette’s lender) as an affirmative defense for the purpose of apportioning fault to them under Fabre and F.S. §768.81. Even though Millette’s relationship with the developer and the bank were strictly governed by contract, Judge Cohn found that they could still be apportioned fault because of the existence of an underlying duty to the plaintiff:

The [c]ourt finds it incontestible that a real estate developer (like DEK/Camus) who takes a client’s money in exchange for the promise to buy a piece of land and build a home on that piece of land owes a duty of care to the client to exercise reasonable care in handling her money and performing his duties. If the client and real estate developer are in contractual privity, as will most often be the case, the economic loss rule may very well bar the client from suing the developer in tort. That is not the same as finding no duty exists. The duty, most certainly, exists…. Likewise, the [c]ourt finds it incontestible that a bank owes a duty of care to its customer to exercise reasonable care when handling the customer’s funds. Nonetheless, because the bank and customer are in contractual privity with one another, the economic loss rule may very well bar the client from suing the [the bank] in tort.23

Judge Cohn explained his rationale of why a nonparty could still be apportioned fault even if it was not amenable to suit in tort:

Millette’s inability to assert a negligence action against certain non-parties does not mean those parties were not negligent. Imagine a classic slip-and-fall case where it is undisputed that the defendant owed the plaintiff a duty of care, the defendant breached that duty, and the defendant’s breach of that duty caused plaintiff’s injury. But the statute of limitations has run. The running of the statute of limitations does not render defendant’s actions less negligent; rather, it constitutes a bar to plaintiff’s cause of action. Just like the economic loss rule.24

Accordingly, these Fabre defendants were placed on the verdict form, and the jury apportioned 95 percent of the fault to them, thereby reducing plaintiff’s recovery from the general contractor.

Millette appealed, arguing that the Fabre defendants were improperly apportioned fault because she had a contractual relationship with them, therefore, preventing her from suing them in tort under the economic loss rule. Plaintiff reasoned that, because the economic loss rule precluded her from suing the Fabre defendants in tort, it was improper and unfair for the defendant general contractor to decrease its percentage of fault by apportioning fault to these persons and entities. The 11th Circuit disagreed with this argument:

Millette’s inability to recover in tort from a nonparty due to the economic loss rule does not preclude apportioning fault to that nonparty. Florida courts have repeatedly interpreted the comparative fault statute to allow for apportionment of fault even if the plaintiff could not sue the nonparty in tort. As the Florida Supreme Court explained, “the only means of determining a party’s percentage of fault is to compare that party’s percentage to all of the other entities who contributed to the accident, regardless of whether they have been or could have been joined as defendants.”25

The 11th Circuit went on to cite a number of Florida Supreme Court cases holding that a nonparty who enjoys an immunity from suit by the plaintiff can still be apportioned fault and concluded that Millette’s “inability to sue Camus/DEK and Webster Bank in tort does not preclude apportioning fault to these entities.”26

The plaintiff argued on appeal that the developer and the bank could not be apportioned fault because they owed her no tort-based duties, only contractual ones. The 11th Circuit disagreed with this argument as well:

Millette reasons that, because the economic loss rule prevents her from suing Camus/DEK and Webster Bank in tort, they do not owe a duty of reasonable care to Millette and thus cannot be apportioned fault for causing her damages. We disagree….Considering that the purpose of the economic loss rule is to prevent a tort duty from intruding on the bargained-for allocation of loss, permitting Nadeau to apportion fault to Camus/DEK and Webster Bank makes sense. Nadeau has no contract with Millette, so the apportioning of fault to Camus/DEK and Webster Bank does not avoid or alter any of Nadeau’s contractual obligations.27

As further explained by the 11th Circuit, “allowing Nadeau to apportion fault to Camus/DEK and Webster Bank is consistent with the policy underlying §768.81 — to require a defendant to pay for the plaintiff’s damages ‘only in proportion to the percentage of fault by which that defendant contributed to the accident.’”28

Having set forth a rule of law that would match a defendant’s responsibility for loss with the amount of harm that he or she caused, the 11th Circuit took a sharply divergent turn, questioning whether the bank could be apportioned fault based on the existence of “duty”:

While we conclude that a nonparty may be apportioned fault even though that nonparty has a contract with the plaintiff, we question whether apportioning fault to Webster Bank was appropriate under the facts of this case. See Armetta v. Clevetrust Realty Investors, 359 So. 2d 540, 543 (Fla. 4th DCA 1978) (citing Schaeffer v. Gilmer, 353 So. 2d 847 (Fla. 1st DCA 1977) (“A lender owes no duty to others to supervise the construction and development of projects which it has financed.”)); Sobi v. First South Bank, Inc., 946 So. 2d 615, 617 (Fla. 1st DCA 2007) (“[U]nder Florida law, as a general rule a lender has no liability for construction defects.”). No party has cited these cases or discussed the general duty of a lender under Florida law. We therefore do not address whether reasons independent of the presence of a contract preclude the apportionment of fault to Webster Bank.29

As set forth below, it is the author’s position that the 11th Circuit unnecessarily injected issues of duty into its analysis, when the appropriate inquiry should focus on causation.

Apportionment of Fault Should Turn on Causation
In Millette, Nadeau General Contractors, Inc., one of the named defendants, presented evidence to the jury that Webster Bank, the bank that had provided the construction loan to the plaintiff, had allowed the developer to fraudulently divert construction draws when it should have known that such draws were improper. As explained by Judge Cohn, the district court judge, such conduct arguably injured the plaintiff because “had Webster Bank refused to disburse funds, knowing that Nadeau was not working on the North Port Lot, Millette would not have suffered the injury she complained of.”30

Both the trial court and the 11th Circuit determined that, notwithstanding whether the bank and the plaintiff were in contractual privity, the ability of the jury to apportion fault would turn on the existence of a duty owed by the bank to the plaintiff. But what if no such duty existed? Would it still be equitable to hold the general contractor responsible for the actions of the bank, which may have caused most of the plaintiff’s damages? With the bank having involved itself in the transaction and then exacerbated plaintiff’s injuries, should the general contractor bear the burden of those injuries caused by the bank? The answer is no.

Take the following hypothetical example: At the time the plaintiff applied for her construction loan with Webster Bank, she told her loan officer that she was trusting and relying on the bank to supervise disbursement of funds because she had never taken a construction loan before and needed consultation and guidance. The loan officer, eager to close on the loan, accepted the heightened role that the plaintiff asked the bank to play. Under these circumstances, there is a strong argument that the bank could be added to the verdict form as a Fabre defendant,31 even though the general contractor likely had no knowledge of the heightened bank-borrower relationship and certainly had no control over it. This duty-based approach, thus, leads to unjust outcomes, as functionally identical defendants are treated differently based on circumstances entirely out of their control. For the same reason that “it would be incongruous that the legislature would have intended that [defendant’s] responsibility be 100 [percent] in situations where [plaintiff’s] vehicle was operated by her husband and only 50 [percent] in situations where by chance she was a passenger in a vehicle operated by a friend,”32 it would be incongruous that the general contractor could apportion fault to the bank when the bank had a heightened relationship with the plaintiff, but could not do so when the bank had merely an arm’s-length relationship with the plaintiff.

As described by this hypothetical, the policy rationale behind apportionment of fault in Florida requires that such apportionment should turn on causation, not on the vagaries of the existence of a duty between a nonparty and a plaintiff. Causation-based apportionment is the only principled way to ensure that defendants are held liable for only the portion of plaintiffs’ damages that is attributable to the defendants’ conduct. It is also the only way to ensure that identically situated defendants are not treated differently based on the collateral circumstances surrounding a given plaintiff’s injuries, such as whether an injury-causing or exacerbating individual owed a duty to the plaintiff. Indeed, our comparative fault regime already links fault with causality, not moral blame. A strictly liable party — the quintessential “no fault” party — can apportion and be apportioned fault under §768.81.33

Admittedly, such a rule would require reconsideration of other aspects of comparative fault — for example, the prohibition against apportioning fault among negligent and intentional tortfeasors.34 Yet, that prohibition itself appears to be misguided. As persuasively explained by other commentators, such a prohibition runs headlong into the principles of treating functionally identical defendants similarly and of equating fault with liability:

Holding a negligent defendant jointly and severally liable for all damages with an intentional tortfeasor is illogical. The following hypothetical illustrates this point. Under Florida law, a restaurant is not required to protect its guests from every conceivable risk while they are on its premises; it owes its patrons only the duty to protect them from reasonably foreseeable harm. Assume a visibly intoxicated and belligerent patron negligently bumps into and knocks down a guest. Immediately thereafter the patron intentionally pushes down another guest. Each guest receives identical injuries, and each brings a negligence action against the restaurant. In both situations, the restaurant breached the same duty to each guest by not removing the intoxicated patron from the premises before harm was caused. If the intoxicated patron is placed on the verdict form in the action brought by the negligently injured guest, but not on the verdict form in the action brought by the intentionally injured guest, the restaurant would be liable only for its share of the noneconomic damages which the negligently injured guest suffered, but would be jointly and severally liable for all damages which the intentionally injured guest suffered. Even though the restaurant breached the same duty toward each guest and each guest suffered the same injury, the restaurant would be liable for different amounts of damages. These differing results would be nonsensical. Thus, to maintain the principle that liability equates fault, a jury must apportion fault among all participants, including any intentional tortfeasor, to ensure that the negligent defendant pays just his or her share of the noneconomic damages.35

Similarly misguided are arguments that allowing a defendant to apportion fault to any nonparty who caused the plaintiff’s harm — regardless of whether the nonparty intentionally harmed or had a duty to the plaintiff — will lead to abuse. The trial court can and should act as a gatekeeper to keep defendants from spuriously placing nonparties on the verdict form based on tenuous argument of causation. Indeed, the trial court already does that now, as the comparative fault statute requires the defendant to prove fault by a preponderance of evidence at trial in order for the nonparty to be placed on the verdict form.

Similarly off-base are arguments that jurors will get confused or will be unable to apportion fault among individuals with varying degrees of culpability and duties to the plaintiff. Jurors are routinely called on to make complicated decisions regarding the relative culpability of parties called before them. There does not seem to be a principled argument or any empirical data showing that jurors would be unable to allocate fault between those who act negligently and those who act intentionally, or between nonparties with and without duties to the plaintiff who caused injuries to that plaintiff. Indeed, the decisions that have concluded that a jury cannot possibly apportion fault among negligent and intentional tortfeasors have done so on an essentially ipso facto basis.36 If anything, a causation-based framework will simplify the work of judges and juries by creating a straightforward method of apportioning fault that does not depend on the complicated interplay between contracts, torts, and nebulous notions of “duty.”

The comparative fault statute, F.S. §768.81, already foreshadows a “causation” analysis in apportioning fault. Subsection (3)(a)(2) provides that, “[i]n order to allocate any or all fault to a nonparty and include the named or unnamed nonparty on the verdict form for purposes of apportioning damages, a defendant must prove at trial, by a preponderance of the evidence, the fault of the nonparty in causing the plaintiff’s injuries.”37 What is needed further is a clarification of the statute by the legislature or courts that will ensure that defendants are held liable only for those damages that they caused.


1 Fabre v. Marin, 623 So. 2d 1182, 1187 (Fla. 1993).

2 Millette, 435 Fed. Appx. at 854-55.

3 Fabre, 623 So. 2d at 1185.

4 Id. See also Fla. Stat. §768.81.

5 Fabre, 623 So. 2d at 1187 (quoting Brown v. Keill, 224 Kan. 195, 580 P.2d 867 (1978)).

6 Id.

7 See Louisville & Nashville R.R. Co. v. Yniestra, 21 Fla. 700 (1886).

8 Id. at 732.

9 Walt Disney World Co. v. Wood, 515 So. 2d 198 (Fla. 1987).

10 Id.

11 Hoffman, 280 So. 2d at 436.

12 Fla. Stat. §768.81(3) (1986) (“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.”).

13 Fabre, 623 So. 2d at 1186.

14 See Fabre v. Marin, 597 So. 2d 883, 884-85 (Fla. 3d DCA 1992), decision quashed, 623 So. 2d 1182 (Fla. 1993).

15 Id. at 1187.

16 Id. at 1188 (Barkett, J. dissenting).

17 Id. at 1187 (quoting Brown v. Keill, 580 P.2d 867 (Kan. 1978)).

18 Id. at 1186.

19 Godales, 690 So. 2d at 1277 (emphasis in original) (quoting Fabre, 623 So. 2d at 1185).

20 Id. In other cases, the Florida Supreme Court has held that a defendant’s liability cannot turn on the relationship between the responsible nonparty and the plaintiff. For example, in Allied Signal, Inc. v. Fox, 623 So. 2d 1180 (Fla. 1993), decided the same day as Fabre, an Eastern Airlines technician lost fingers while servicing an aircraft fan. The technician sued the manufacturer in federal court for negligently failing to instruct and warn with respect to the fan. Eastern Airlines, which had a duty to train the employee that it arguably breached, was not named as a defendant because it was immune from suit under the Workers’ Compensation Act as the plaintiff’s employer. The manufacturer requested that the trial court place Eastern Airlines on the verdict form so that the jury could consider and assess the airline’s percentage of fault for the technician’s injury. The trial court refused, and the manufacturer appealed. Upon a certified question from the U.S. Court of Appeals for the 11th Circuit, the Florida Supreme Court held that the airline’s immunity from tort liability based on the Workers’ Compensation Act did not bar the jury’s consideration of its fault in causing the plaintiff’s damages.

Similarly, a defendant (or nonparty) that is insolvent can still be apportioned fault for a plaintiff’s injuries, even if the plaintiff would be unable to recover any damages from them. Fabre, 623 So. 2d at 1186 (“[T]he legislature decided that for purposes of noneconomic damages a plaintiff should take each defendant as he or she finds them. If a defendant is insolvent, the judgment of liability of another defendant is not increased.”).
21 See Birge v. Charron, 107 So. 3d 350, 357 (Fla. 2012), reh’g denied (Jan. 24, 2013) (“[I]t is clear that Florida’s system of comparative negligence was implemented for the express purpose of allowing recovery in negligence cases based on a jury’s allocation of comparative fault — on a percentage basis — among all individuals who were negligent in bringing about an injury.”); Nash v. Wells Fargo Guard Services, Inc., 678 So. 2d 1262, 1264 (Fla. 1996) (“[I]n order to include a nonparty on the verdict form pursuant to Fabre, the defendant must plead as an affirmative defense the negligence of the nonparty and specifically identify the nonparty.”); Ortiz v. Regalado, 113 So. 3d 57, 63 (Fla. 2d DCA 2013) (quoting Salazar v. Helicopter Structural & Maint., Inc., 986 So. 2d 620, 622 n.1 (Fla. 2d DCA 2007)) (“A ‘Fabre defendant’ is a nonparty defendant whom a party defendant asserts is wholly or partially responsible for the negligence alleged.”).

22 Fla. Stat. §768.81(3)(a)(2). William L. Prosser, Handbook of the Law of Torts at 18 (4th ed. 1971) (“In the legal sense, ‘fault’ has come to mean no more than a departure from the conduct required of a man by society for the protection of others.”). This would appear to suggest that fault is tied to negligence and its foundation in a duty of care. Yet, as discussed below, to require that the codefendant or nonparty have a “duty” in order to be apportioned fault invites inequitable and unpredictable results at odds with doctrinal underpinnings of Florida’s comparative fault jurisprudence. The court in Wal-Mart Stores, Inc. v. McDonald, 676 So. 2d 12, 20 (Fla. 1st DCA 1996), considered the equation of fault with negligence in the context of apportioning fault to an intentional tortfeasor, but did so in the context of a negligent supervision claim. As discussed below, these type of cases — in which the defendant should not be able to apportion fault to the intentional tortfeasor that it was supposed to protect the plaintiff against — are unique for that very reason and should be treated as the exception rather than the rule. Judge Webster concluded in his concurring opinion in McDonald that fault and negligence are synonymous based on his review of the legislative history of the comparative fault statute. However, Judge Webster did not address how such supposed synonymy runs headlong into the policy rationale behind comparative fault in Florida.

23 Millette v. DEK Technologies, Inc., 2010 WL 503119, *3, n.2 (S.D. Fla. Feb. 8, 2010) (emphasis added).

24 Id. at *3, n.1 (emphasis added).

25 Millette v. Tarnove, 435 Fed. Appx. at 854 (emphasis in original) (quoting Godales, 690 So. 2d at 1277).

26 Id.

27 Id.

28 Id. (quoting Fabre, 623 So. 2d at 1185).

29 Id. at 855. In its decision, the 11th Circuit reversed the judgment entered against Nadeau on a separate apportionment issue — i.e., the district court’s ruling that the jury should decide whether the developer nonparty was an intentional tortfeasor.

30 Millette, 2010 WL 503119 at *3, n.5.

31 See Susan Fixel, Inc. v. Rosenthal & Rosenthal, Inc., 842 So. 2d 204, 209 (Fla. 3d DCA 2003) (holding that plaintiff/borrower had adequately stated a cause of action against defendant lender/factor for failure to use care in disclosing financial information based on alleged fiduciary relationship between plaintiff and defendant).

32 Fabre, 623 So. 2d at 1186.

33 See, e.g., D’Amario v. Ford Motor Co., 806 So. 2d 424, 442 (Fla. 2001) (principles of comparative fault concerning apportionment of fault as to the cause of the underlying crash will not ordinarily apply in crashworthiness or enhanced injury cases, but comparative fault may be asserted as a defense in a strict liability claim for crashworthiness when there is a valid issue as to whether plaintiff’s negligence contributed to the cause of the enhanced injuries, as opposed to the initial crash).

34 See, e.g., Stellas v. Alamo Rent-A-Car, Inc., 702 So. 2d 232 (Fla. 1997); Merrill Crossings Assocs. v. McDonald, 705 So. 2d 560 (Fla. 1997); see also Fla. Stat. §768.81(4)(b) (“This section does not apply to any action brought by any person to recover actual economic damages resulting from pollution, to any action based upon an intentional tort….”). In these cases, the Florida Supreme Court reasoned that Florida’s comparative fault jurisprudence was never intended to compare negligent acts to criminal/intentional acts. Ultimately, the court concluded that comparative fault should not apply to intentional torts because “intentional wrongdoing differs from simple negligence not merely in degree but in the kind of fault...and in the social condemnation attached to it.” See Merrill Crossings, 705 So. 2d at 562 (citations omitted). The court in Merrill Crossings went on to hold that such an interpretation of comparative fault law “gives effect to a public policy that negligent tortfeasors such as in the instant case 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.” Id. As stated in note 35, there are certain situations in which these decisions reflect sound policy; however, the likelihood of absurd results makes a blanket rule untenable.

35 D. De Armas & E. White III, Judge Ervin’s Step in the Right Direction: Apportioning Fault Between the Negligent and Intentional Tortfeasor, 69 Fla. B. J. 92 (Oct. 1995). There are certain situations in which it makes good policy sense to prevent negligent tortfeasors from apportioning fault to intentional wrongdoers; for example, in the context of lawsuits for negligent security. “The happening of the very event the likelihood of which makes the actor’s conduct negligent and so subjects the actor to liability cannot relieve him from liability. The duty to refrain from the act committed or to do the act omitted is imposed to protect the other from this very danger. To deny recovery because the other’s exposure to the very risk from which it was the purpose of the duty to protect him resulted in harm to him, would be to deprive the other of all protection and to make the duty a nullity.” Holley v. Mt. Zion Terrace Apartments, Inc., 382 So. 2d 98, 101 (Fla. 3d DCA 1980) (quoting Restatement (Second) of Torts §449, cmt. b). These negligent security actions — and other such cases in which the harm caused to the plaintiff is within the scope of duty undertaken by the defendant and, therefore, reasonably foreseeable to the defendant — appear to be in a class of their own. To make a generalized rule that a negligent tortfeasor can never apportion fault to an intentional tortfeasor leads to the type of absurd results delineated in De Armas and White’s article.

36 Wal-Mart Stores, Inc. v. McDonald, 676 So. 2d 12, 22 (Fla. 1st DCA 1996), approved sub nom, Merrill Crossings Associates v. McDonald, 705 So. 2d 560 (Fla. 1997) (“The inherent distinction between negligent and criminal, intentional torts is considerable, and we find it illogical and impractical for a fact-finder to have to compare or balance the two types of conduct.”).

37 Emphasis added.

Benjamin Brodsky, a partner with Coffey Burlington, has been with the firm since 2009. He joined the firm following a two-year clerkship with Judge Joan A. Lenard in the Southern District of Florida. His practice encompasses all aspects of business, commercial, and employment litigation.

[Revised: 12-29-2014]