Because Florida follows a pure contributory negligence model of recovery, no amount of plaintiff fault will completely bar a plaintiff from pursuing damages. However, there are some cases when the degree of plaintiff fault could render such actions effectively worthless.
Itâs important to weigh the potential outcomes carefully with your attorney before deciding whether and how to proceed.
In the recent case ofÂ Carman v. Tinkes, et al., the U.S. Court of Appeals for the Seventh Circuit ruled the high degree of fault by the plaintiff â even assuming it was proven the defendant was engaging in a traffic violation at the time of the wreck â precluded the claim from progressing. The case arose out of Indiana, which follows a modified comparative fault model. By this theory, plaintiffs who hold up to 49 percent of the fault are entitled to damages. However, if the court decides the plaintiff holds more than half of the responsibility for the incident resulting in injury, the claim will be barred.
While a case may not have the same outcome in Florida, given our more liberal approach to tort law, itâs still worth carefully considering whether such a claim should be brought in the first place.
According to court records, the undisputed evidence indicates that early one April morning, while it was still dark outside, a driver was traveling âquicklyâ on the highway without his headlights on. As he approached a red light at an intersection, witnesses would later say, he failed to stop or slow down. In doing so, he struck the right rear corner of a commercial pickup truck driven by one of the defendants. The truck did have its lights on.
The impact of the crash was tragic, resulting in the death of the car driver.
What was disputed later, when the car driverâs family filed suit against the trucker and his employer, was what action the truck driver was taking at the time of the crash. One witness testified the truck was fully stopped and completely within the left turn lane. However, another witness said the truck was partially in the middle lane, but was pulling into the left turn lane in front of another vehicle.
If the second version of events were true, the truck driver would have been committing a traffic violation (illegally passing on the right). However, the appellate court determined this issue was irrelevant because there was no indication that the violation served in any contributory way to the subsequent crash.
Plaintiffs argued two theories of negligence. The first, because the trucker was violating a traffic law at the time of the crash, he was per se negligent, which means he would be at least partially at fault for the death of the car driver. The second is that a metal bumper on the back of the commercial truck was installed after-market and created a hazardous condition that made an already serious crash fatal.
The appellate court rejected these arguments. The court found that violation of a statute does not necessarily make a driver liable for injury to another person unless the injury was in some way a result of the violation. In this case, there was nothing to suggest that but-for the actions of the truck driver or the existence of his bumper, the crash would not have occurred or the car driver would not have died.
Therefore, the surviving family will not be allowed to continue with their claim.
How We Can HelpÂ
If you, a friend or a family member find themselves in a situation such as this, please call the Law Office of Scott A. Ferris, P.A. at 305 670-3330 right away. Scott A. Ferris, Esq. is a licensed civil law attorney who has been practicing law since 1987. He is available whenever you need him to pursue your rights. Please learn about our firm at www.FerrisLawFirm.com.