Comparative Fault Applies when Substance of the Action is Sounded in Negligence

In previous postings (check here and here) I discussed the doctrine known as comparative fault or comparative negligence referenced in Florida Statute s. 768.81. This is when the trier of fact allocates a parties percentage of fault to the damages claimed by the plaintiff. A party can only be liable for their pro rata percentage of fault and fault can even be allocated to the plaintiff. This doctrine typically applies in negligence claims. However, in a recent construction dispute dealing with only economic damages, further discussed here, the appellate court considered that Florida Statute s. 768.81 focuses on the...

01 April

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Proving Affirmative Defenses and the Affirmative Defense of Comparative Negligence

Posted by David Adelstein

in Burden of Proof, Jury Instructions

When a defendant is sued, the defendant will typically assert affirmative defenses (or defenses to the claims asserted by the plaintiff). Just like a plaintiff has the burden of proof to prove its claims against a defendant, the defendant has the burden of proof to prove its affirmative defenses. The recent opinion in Bongiorno v. Americorp., 40 Fla L. Weekly D760c (Fla. 5th DCA 2015) exemplifies that a defendant that asserts an affirmative defense has the burden of proving that defense. This case was a personal injury negligence case. The defendant argued that the plaintiff’s negligence contributed to her negligence, i.e.,...