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Comparative Negligence in Florida Pedestrian Accidents

Florida follows a pure comparative negligence theory when it comes to sharing blame for incidents resulting in personal injury. What this means is per F.S. 768.81, share of the blame for the car accident or pedestrian accident will not prohibit you from pursuing or collecting damages from other at-fault parties. However, it will have the effect of reducing how much you can collect, so your injury lawyer will try to argue for as little comparative fault as possible.

Florida is pure comparative (compared to modified comparative), which means plaintiffs can (in theory) recover 1 percent of damages from a defendant even if plaintiff is 99 percent liable for the accident. Other states only allow one to recover if they are less than 50 percent responsible.

This is important point to make for many clients, because it’s a fear that often keeps them from seeking attorney advice in the first place. They are afraid that because they were partially at-fault, they don’t have any right to file a claim. In some other states, that’s true. In Florida, it’s not.

Neither is it true in Pennsylvania, where the Pennsylvania Supreme Court recently weighed a wrongful death case and the appropriateness of introducing evidence of a decedent’s alcohol impairment at the time of a fatal pedestrian accident.

What this really came down to was rules of evidence, and whether a post-mortem blood sample from pedestrian could be entered into evidence with only expert testimony interpreting the BAC, or whether independent corroborating evidence was necessary. Ultimately, the court declined to adopt a bright line rule on the issue, but said in this case, the trial court was within its discretion to admit the evidence – which in the end, showed comparative negligence by the pedestrian.

In Pennsylvania just as in Florida, one’s comparative negligence does not bar recovery, but it does limit how much can be compensated.

According to court records in the case, this fatal pedestrian accident occurred at night on a four-lane road. Defendant struck pedestrian near an intersection, and admitted to authorities she didn’t see him prior to impact.

Decedent was transported to hospital, where he was pronounced dead. An autopsy was performed, and it was determined he had a blood-alcohol concentration of 0.313. Now, the legal limit for drivers is 0.08, but there is no law that says pedestrians can’t drink more than that. However from a civil case liability standpoint, all users of the roads and public ways – including pedestrians – have the duty to use reasonable care. Evidence of a pedestrian’s impairment doesn’t necessarily prove one wasn’t using reasonable care, but it could be compelling evidence when it’s nearly four times what is considered the per se limit for drivers.

The case went to trial and jurors found that while defendant was negligent, this was not the cause of decedent’s injuries.

Plaintiff (decedent’s mother) appealed the decision, arguing decedent’s BAC should never have been admitted into evidence because it lacked the necessary corroborating evidence. No one could testify as to where decedent had been just prior to the crash and no one could attest to his mental state or level of impairment at that time.

The court, however, ruled the trial court appropriately allowed this information.

Call Freeman Injury Law — 1-800-561-7777 for a free appointment to discuss your rights. Now serving Orlando, West Palm Beach, Port St. Lucie and Fort Lauderdale.

Additional Resources:

Coughlin v. Massaquoi, Sept. 28, 2017, Pennsylvania Supreme Court

More Blog Entries:

Mother of Teen Killed in South Florida Crash Sues Lyft, Sept. 30, 2017, Orlando Car Accident Lawyer Blog

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