Within the past three (3) years, the Florida Legislature amended the comparative negligence statute. Comparative negligence is a partial legal defense that reduces the amount of damages that a plaintiff can recover in a negligence-based claim. It is based upon the degree to which the plaintiff’s own negligence contributed to cause the injury. Prior to 2011, manufacturers of defective products did not have the ability or had a limited ability to argue comparative negligence.
For our practical readers, if a jury were to assess comparative fault on to an injured victim, that fault would serve to reduce the victim’s claim against the manufacturer. For example, assume that you were driving a vehicle and you took your eyes off the road (maybe to find that favorite XM station). In that split second, you veer off the road and hit a tree head on. Your air bag deploys, as it should, to prevent or minimize any injury. However, this time, instead of the air bag coming out by itself, a projectile, whether metal or plastic, is shot at 60-180 mph into your face. You sustain severe injuries to your head/face as a result of the projectile. It is later discovered that the air bag is defective and several recalls have been made regarding this defect.
BIG QUESTION: Should your acts (taking eyes off road) be used to diminish your damages against the vehicle’s manufacturer?
The Florida Legislature seems to say that this is a satisfactory result. I contend that in some circumstances, it does not produce a fair result. Lets use the example above. Lets assume that a stray dog runs into your lane. It has no owner and runs off after the accident, yet you are forced off the road into the same tree. Again, the air bag causes you severe injuries. Your damages are the same. The same defect caused the injuries. But for the defective product, you would have not sustained severe injuries. In fact, had the product worked correctly, you could possibly walk away from the accident unharmed. This is mere arguendo, but you should see the conundrum created by this new law.
Do you think that the Legislature got it right?