An Alternative View of Refining Comparative Fault in Florida
In the January 2015 issue, “Refining Comparative Fault in Florida: A Causation Theory for Apportioning Fault” satisfactorily chronicled changes to the law of torts in Florida (particularly the law of negligence) over the past 40 years. This article provides a different perspective on how comparative fault in Florida should be revised.
The common law of negligence had been fairly well settled for almost two centuries when the Florida Supreme Court issued its seminal Hoffman v. Jones, 272 So. 2d 529 (Fla. 1973), decision. In Florida, as most everywhere, the common law included the rules that contributory negligence of a plaintiff, however slight, barred recovery and that no-contribution was permitted among joint tortfeasors. The first rule was solidified in Butterfield v. Forrester, 11 East 60 (1809), and the second in Merryweather v. Nixan, 8 Durn & E 186 (1799). These rules were based largely on the common law’s repugnance against resolving disputes between wrongdoers. In short, when everyone was at fault, the common law let the harm lie where it fell.
The common law has always deemed tortious behavior to be a form of moral wrongdoing. As stated by Lord Atkin in Donoghue v. Stevenson, 1932 S.L.T. 317 (1932), “The liability for negligence, whether you style it such or treat it as in other systems as a species of ‘culpa’ is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay.” Crimes are more immoral than torts, thus, the common law limited tort remedies to compensation except in egregious instances that justify punitive damages.
about 1800, the common law tort of negligence had evolved to require the elements that all law students learn. Duty, breach, causation (including proximate causation), and damages. Plaintiffs were required to prove all four elements and failure to prove any one denied recovery. Similarly, even if the plaintiff proved all the elements against a defendant, the defendant would still prevail by proving the plaintiff guilty of contributory negligence.
Proof of causation-in-fact was (and is) essential. If the plaintiff proved the injury complained of would not have occurred in the absence of (“but-for”) a defendant’s negligence (or alternatively that the defendant’s negligence was a substantial factor of the harm), causation-in-fact was proved. If the plaintiff failed to prove this causative link, then the plaintiff’s case against the defendant failed even though the defendant owed the plaintiff a duty of care and breached it. As the great Cardozo said in Palsgraf v. Long Island R. Co., 162 N.E. 99, 99 (1928) (quoting Pollock on Torts ), “‘Proof of negligence in the air, so to speak, will not do.’” To assess the need to change the current law of Florida, these principles should be a fixed starting point: First, no party is liable to a plaintiff for any harm that would have been caused even if the party had not been negligent ( i.e. , if the plaintiff would have been harmed anyway), and second, no defendant should be absolved of liability for any harm that would not have occurred in the absence of the defendant’s fault. In short, the law should not acknowledge a fiction of partial liability for an indivisible injury.
The early common law held joint tortfeasors jointly and severally liable for any indivisible injury their joint negligence caused a plaintiff to suffer. Thus, if A and B, who might even have been strangers, negligently crashed their carriages and rolled over P, an innocent pedestrian on the road, A and B would each be individually liable for all of P’s indivisible injuries and the two would remain jointly liable until P’s joint and several judgment was fully satisfied. (In contrast, if P’s various injuries could be discretely separated and attributed, then each defendant would be liable only for the discrete injuries caused solely by its negligence. For example, A might have run over P’s arm and B over P’s leg.)
The common law also permitted plaintiffs to control their cases. Hence, in the circumstances above, P might choose to sue only A (or B) and obtain and collect an individual judgment. Or P might sue both A and B and execute a joint and several judgment against whomever. In any event, if P satisfied the judgment only against A (or B), the no-contribution rule would stick A (or B) with the whole loss.
Although the common law was unfriendly to wrongdoers, it possessed the beauty of simplicity. Negligent plaintiffs recovered nothing. End of story. the same token, a tagged recipient of a joint and several judgment in favor of an innocent plaintiff could have no contribution from the others. In short, the common law denied ancillary actions among joint tortfeasors.
Some common law courts (and legislatures) were never happy with the consequences of these rules in egregious cases. Proposals to amend the no contribution rule generally preceded proposals to abrogate the contributory negligence bar. This might reflect better organization within the defendant class (including liability insurance companies) to promote change than in the plaintiff class. The first Uniform Contribution among Tortfeasors Act (1939) proposed to permit contribution among joint tortfeasors in equal pro rata shares. This complicated common law simplicity only slightly: A joint tortfeasor could obtain contribution from other joint tortfeasors but only on a share-and-share-alike basis. This sensibly avoided extended litigation to apportion liability on a “percentage” basis.
Although a few states had earlier abrogated the contributory negligence bar by statute, Hoffman was the first decision to do so by judicial fiat. The Supreme Court did not merely permit juries to reduce a negligent plaintiff’s recovery on quasi-equitable grounds, but instead, diminished the recovery in proportion to the amount of negligence a jury attributed to it as a percentage of all the negligence it attributed to all parties in the law suit, which must total 100 percent. In retrospect, this proved to be a mistake. Hoffman did not change the requirement that a plaintiff must first prove each defendant’s negligence was a cause-in-fact of any indivisible injury the plaintiff suffered. Without that, a defendant would be liable for nothing. Hoffman also did not disturb the rule of joint and several liability as to a negligent plaintiff’s reduced recovery.
In sum, Hoffman complicated litigation only to the extent of requiring juries to apportion blame in percentages between the plaintiff on one side and all the defendants collectively on the other. A plaintiff could still execute a resulting joint and several judgment as it chose. The big change, and the goal of the Court, was to permit a negligent plaintiff to obtain some remedy, albeit reduced, whereas the contributory negligence bar would permit none.
Hoffman was pro-plaintiff. The Court ended two centuries of denying negligent plaintiffs any remedy, even those guilty of only slight negligence. It also wanted to permit juries to “do justice” for negligent plaintiffs without having to ignore contributory negligence in order to return “dishonest” verdicts for them. What the Court did not foresee was that future courts and legislatures would manipulate its holding into a pro-defendant rule that may be even more harmful to modern plaintiffs as a whole than the contributory negligence bar had been to plaintiffs in the past.
Hoffman simply did too much. As suggested above, it could have merely instructed juries to return a damage verdict reduced appropriately to offset a plaintiff’s own negligence, but it did not do that. Instead, it essentially created a statute:1 Juries must not only determine that both the plaintiff and a defendant were guilty of fault that was a cause-in-fact of the plaintiff’s harm, but they must also measure the negligence of each of them in percentages summing 100 percent. A court would reduce the jury’s damage verdict by the percentage allocated to the plaintiff and enter judgment for the remainder against the defendant (and joint and several judgments against multiple defendants).
The Court failed to assess the highly artificial nature of the job it was foisting upon juries. Juries can reasonably assess evidence to conclude that an actor failed to act reasonably in a given circumstance. This is a qualitative evaluation such as we all make every day. But juries have no device to quantify negligence in increments of 1 percent. They have no tool to measure negligence, such as a scale to measure weight or a ruler to measure length or height. They have no concrete criteria to quantify a nonmaterial concept such as negligence. Despite this lack of guidance, 40 plus years of practice have proven that dutiful juries will make the allocations judges instruct them to make, but on what bases we do not know. We must assume that juries consider inappropriate factors, such as race, gender, wealth, physical characteristics, corporate status, insurance (or perception thereof), lawyers’ skills, and others not based upon blameworthiness. Nevertheless, however, juries produce them. Percentage allocations of negligence are artificial constructs with no material reality; they are fictions. Even so, they would have done little harm to plaintiffs if their use had been limited as the Court envisioned in Hoffman, i.e., to permit courts to enter reduced judgments for negligent plaintiffs (and joint and several judgments against multiple defendants.) The Court did not foresee that future judges and legislatures would give these percentages an entirely different meaning; namely, as actual measures of the amount of damage caused by each party. This is artificial and wholly false.
In the law of negligence, no defendant may be held liable for any damages at all for which the defendant’s negligence was not a cause-in-fact. Before allocating a percentage of negligence to any party in regard to an indivisible harm, a jury must first decide that the party breached the duty of care owed the plaintiff and that in the absence of the breach ( i.e., “but-for”) the harm would not have occurred. In short, the jury must first decide the defendant’s negligence was a cause of all an indivisible harm . Despite this, courts and legislators have come to accept the artificial allocation of negligence in percentages as an actual measure of a limited amount of harm a particular party caused, when in fact the defendant’s negligence was a cause of all of it.
The common law denial of contribution among joint tortfeasors did not survive Hoffman very long. In 1975, the legislature enacted the Uniform Contribution among Tortfeasors Act2 to permit contribution in equal pro rata shares, and Lincenberg v. Issen, 315 So. 2d 386 (Fla. 1975), abrogated the rule in negligence cases not covered by the new statute in the same year. These developments did not complicate litigation much. Joint tortfeasors remained jointly and severally liable for all a plaintiff’s indivisible damages minus the offset for contributory negligence. The new law merely permitted defendants to force a sharing of the judgment among themselves in equal pro-rata shares.3
Then came Walt Disney World Co. v. Wood, 515 So. 2d 198 (Fla. 1987). There, a jury allocated 14 percent fault to the plaintiff, 85 percent to the plaintiff’s fiancee, 1 percent to Walt Disney World, and returned a damage verdict of $75,000. (Prior to Hoffman, the common law would have denied any recovery.) The trial court entered a joint and several judgment of $64,500 ($75,000 minus 14 percent) against the fiancee and Walt Disney World, and to no one’s surprise the plaintiff executed against Walt Disney World. It appealed to the Supreme Court via the Fourth DCA, complaining that the joint and several liability should be abrogated as “unjust.” The appeal failed,4 but the fiction that a jury’s allocation of negligence measured the amount of damages a party had caused took hold in some otherwise sensible minds. Dissenting Justice McDonald opined, “It would be an illogical fiction to say that, although fault may be apportioned, causation cannot.”5 Dissenting Justice Overton stated: “Our tort system is founded on the principle of fault, with the one whose fault caused injury being liable for the damages he or she caused. In this instance, the tortfeasor that caused only one percent of the injury is required to pay 86 percent of the damages.”6 Neither of these justices stopped to consider this: If Walt Disney World had not been negligent, the plaintiff would have suffered no harm at all.
The absurdity of allocating a portion of an indivisible injury may be demonstrated by the A, B, P hypothetical stated above. Suppose P were killed and would not have been hurt but for the joint negligence of A and B? It would make no sense to say that A or B caused half the death (or some other percentage a jury might allocate). Had either A or B not been negligent, P would have suffered no injury, much less death. The individual negligent action of A and that of B was a cause of the death ; not some portion of it.
At the time of Walt Disney World, the national tort defense industry was mounting a full court press to eliminate joint and several liability on the false premise that an allocation of percentages of negligence determined a discrete measure of the exact amount of harm a defendant had caused in an indivisible injury. The campaign was highly successfully, especially in Florida. Even before the Supreme Court decided Walt Disney World v. Wood, the legislature had enacted §768.81, which then provided:
(3) Apportionment of Damages — 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.
This was the beginning of the end of joint and several liability in negligence law in Florida. Then came Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993). There, the Supreme Court construed the then-current version of §768.81 to require juries to allocate negligence to nonparties, even those who would be immune to suit. This further diminished plaintiffs’ entitlement to recover from defendants whose negligence was a cause-in-fact of all the harm. But Fabre v. Marin was not the end of it. The legislature continued to whittle away at joint and several liability and delivered the coup de grâce when it enacted the current version of F.S. §768.81 in 2006:7 “In a negligence action, 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.”
This statute does apply only to negligent plaintiffs; it applies to all plaintiffs even those entirely innocent of fault. Take the A, B, P hypothetical and assume a jury decides that “but-for” the joint negligence of A and B, P would not have been killed. Assume the jury allocates negligence A 25 percent, B 75 percent, P 0 percent, and returns a damage verdict of $1 million. Finally, assume B is penniless (or immune) and A has a $10 million liability policy. Under the common law P would have recovered $1 million from A (and also under Hoffman ). Under the current law of Florida, P — though innocent of fault — would recover only $250,000 from A, despite the fact that P would not have been hurt if A had not been negligent. Hence, in the course of time, Hoffman’s plaintiff-friendly goal has been transmogrified into a strong anti-plaintiff rule.
If the Hoffman justices could have foreseen these consequences, they might have left well enough alone. We will never know.8 Perhaps to further benefit defendants, the law ought to be returned to a more neutral stance. First and foremost, Florida should renounce the fiction that a negligent defendant whose act was a cause-in-fact of all of a plaintiff’s indivisible harm is liable for only a portion of it. It should also restore the doctrine of joint and several liability augmented with a right of contribution among joint tortfeasors in equal pro rata shares. Here is what a revised statute should do:
1) A plaintiff may choose to sue only one, some, or all of potential joint tortfeasors.
2) A sued joint tortfeasor may implead others or may later commence a contribution action against those not joined, as prescribed in the first Contribution among Joint Tortfeasors Act.
3) As to parties to the suit, a jury must first decide whether each breached a duty of care to the plaintiff, and if so, whether the breach was a cause-in-fact of indivisible harm suffered by the plaintiff. (As to discrete injuries caused by the sole negligence of a defendant, the Hoffman analysis would remain.)
4) If the jury determines that the plaintiff was guilty of contributory negligence, it must then decide whether the plaintiff’s negligence was qualitatively more egregious than the collective negligence of the other parties to the law suit.
5) If the jury determines the plaintiff’s negligence to be qualitatively more egregious than the combined negligence of the other parties to the law suit, it must return a verdict for the defendants.
6) If the jury determines the plaintiff’s negligence to be qualitatively less egregious than the combined negligence of the other parties to the action, it must return a damage verdict and a statement of the amount it should be reduced to offset the plaintiff’s contributory negligence.
7) The court must enter a joint and several judgment in the amount of the reduced verdict against the party defendants.
8) The plaintiff may execute the joint and several judgment as it sees fit against one or all of the joint tortfeasors until satisfied.
9) A targeted tortfeasor may by motion seek contribution in equal pro rata shares against any other tortfeasor to which the judgment applied and may also commence a separate contribution action against any wrongdoer who was not a party to the action.
Some plaintiffs’ lawyers may deride this proposal as anti-plaintiff to the extent it restores the contributory negligence bar against a plaintiff whose negligence was qualitatively greater than the collective negligence of the defendants. Nevertheless, lay people might find this rule more palatable than a rule that permits any judgment at all against a defendant whom a jury deemed to be less culpable than the plaintiff. In fact, of 51 U.S. jurisdictions, including the District of Columbia, five preserve the common law contributory negligence bar, 33 impose a threshold of the sort in number five above, one applies a slight/gross threshold, and only 12 follow the “pure” theory of Hoffman. This proposal rights a system that has been infused with artificial and wholly false premises that heavily favor defendants and also incorporates the majority rule in the U.S. that denies recovery to a plaintiff whose own negligence is the predominant cause of harm. The proposal would also simplify litigation. A plaintiff may decide whom to sue, leaving to defendants to implead others as they deem desirable. Juries would no longer make artificial allocations of fault without any concrete guidelines. Instead, they would make qualitative assessments of whether the negligence of a plaintiff exceeded that of all defendants and, if not, how much to reduce a damage verdict to offset the plaintiff’s fault. Finally, targeted defendants would be permitted contribution among joint tortfeasors in equal pro rata shares. This would wholly eliminate the fiction that a party caused only a portion of an indivisible injury and would make the job of juries much easier and litigation less costly.
Critics may rightly point to issues that would need to be resolved, but that is always true. For example, how do we resolve the mixture of the apples of negligence and the oranges of strict liability? Addressing this point fully would take more space than available, but Justice Adkins (the author of Hoffman ) gave a good enough answer in West v. Caterpillar Tractor Co., 336 So. 2d at 90 (Fla. 1976): “Strict liability means negligence as a matter of law or negligence per se, the effect of which is to remove the burden from the user of proving specific acts of negligence.” What about the varied liabilities of a tortfeasor who intentionally injured a plaintiff and another who breached its duty to protect the plaintiff from the intentional wrongdoer? These are not joint tortfeasors. If a plaintiff recovered a judgment against the negligent actor, that actor should be permitted to sue the intentional tortfeasor for full indemnification. What about a defendant who had a contractual obligation to indemnify a plaintiff for harm done by a tortfeasor (negligent or intentional)? Again, the contractual obligor should ordinarily be permitted to seek indemnification from a tortfeasor. And what about the so-called “economic loss rule”? After having let it run rampant for several decades, the Florida Supreme Court finally limited its application to product liability cases in Tiara Condo. Ass’n, Inc. v. Marsh & McLennan Companies, Inc. , 110 So. 3d 399 (Fla. 2013). It poses no barrier to the proposed revision.
While intending to aid negligent plaintiffs, Hoffman created a fiction of percentages of fault that later courts and legislatures have tortured into a false measure of the amount of damages the negligent party caused. The unvarying rule that no party is liable for indivisible harm unless its negligence was a but-for cause-in-fact of all of it has been ignored. This rule has not been and should not be abrogated. Florida does not need more ahistorical and illogical fictions about causation that have greatly damaged plaintiffs and complicated litigation. Instead, Florida needs to restore sound common law principles modified by the true goal of Hoffman in a different design and with an easy-to-administer right of contribution among joint tortfeasors. This would be fairer to the parties and much simpler to litigate. It is a better plan.
1 Although he did not voice objection to eliminating the contributory negligence bar, dissenting Justice Roberts strongly objected to this lawmaking by the Court. In his view, doing so was a job for the legislature.
2 Fla. Stat. §768.31 (1975).
3 Fla. Stat. §769.31 was amended in 1976 (Ch. 76-186, §1, Laws of Fla., to permit contribution based upon “relative degrees of fault.” This change, of course, requires more extensive litigation than the “equal pro rata shares” rule).
4 Hoffman had envisioned that the new rule would sometimes produce outcomes that seemed “inequitable.” Hoffman, 280 So. 2d at 439.
5 Disney World, 515 So. 2d at 205.
6 Id. at 206 (emphasis added).
7 Ch. 2006-6, §1, Laws of Fla.
8 All those justices are now deceased.
Joseph W. Little is professor of law emeritus at the University of Florida Levin College of Law.