If you were hurt and someone is now saying the wreck was mostly your fault, this is the rule they are leaning on. Here is what Florida's more-than-50-percent bar actually means for you, in plain language, and how that line changes what your case is worth.
Reviewed by Graham W. Syfert, Esq., Florida Bar No. 39104. Last updated .
Florida used to be a pure comparative negligence state: a plaintiff 90 percent at fault recovered 10 percent. HB 837 changed that on March 24, 2023. Section 768.81(6) now imposes a more-than-50-percent bar. A plaintiff more than 50 percent at fault recovers nothing. Medical-negligence claims still apply pure comparative fault.
Under pure comparative negligence, every percentage point reduced damages but never eliminated them. A 90-percent-at-fault plaintiff recovered 10 percent of damages. A 99-percent-at-fault plaintiff recovered 1 percent. There was always a path to some recovery.
Modified comparative negligence with a more-than-50-percent bar changes the math. At exactly 50 percent fault or less, the plaintiff still recovers, reduced by their own share. The moment fault crosses above 50 percent, even at 50.1 percent, the plaintiff recovers nothing. People call this the "51 percent bar," but that is a little misleading: the line sits just past an even split, not at 51 percent.
Settlement value used to scale linearly with plaintiff fault. A case with 30 percent plaintiff fault settled for 70 percent of full value, more or less. A case with 60 percent plaintiff fault settled for something around 40 percent. Adjusters and lawyers applied the discount and moved on.
The more-than-50-percent bar makes settlement value bimodal at the bar. A case where the plaintiff's fault is around 40 to 50 percent now settles for closer to full value (the carrier risks losing the comparative fight and paying everything). A case where plaintiff's fault is around 51 to 60 percent settles for a small fraction (the carrier risks paying full value, but the plaintiff risks zero recovery). Negotiation around the bar is fierce.
The Florida Standard Jury Instructions in Civil Cases were updated to reflect the more-than-50-percent bar. The verdict form now asks the jury to apportion fault and warns that the plaintiff recovers nothing if found more than 50 percent at fault. Voir dire should explore juror attitudes toward the bar.
Florida law allows the defense to apportion fault to non-parties under Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993). The non-party's percentage of fault appears on the verdict form and reduces the named defendant's liability proportionally.
Fabre defenses require specific pleading. The defense must identify the non-party with sufficient particularity to allow the plaintiff to investigate. Generic "John Doe contractor" pleadings should be challenged early. Without proper pleading and trial proof, the Fabre apportionment fails.
The more-than-50-percent bar does not apply to medical negligence claims. Section 768.81(6). Medical malpractice still applies pure comparative fault. The carve-out was added during the HB 837 process at the request of the trial bar.
Develop the defendant-fault evidence early. Reconstructionist reports, witness statements, surveillance footage. The strongest plaintiff cases under modified comparative fault are the ones where the defense has nothing meaningful to throw at apportionment.
Identify all potential Fabre defendants in the initial case workup. Missing a defendant means missing the chance to add them as a party (or at minimum to control the narrative around their role). Apportionment to a non-party who is properly named and proven shifts fault away from your client.
For mixed-fault cases, run the math both ways. What does settlement look like at 40 percent? At 50 percent? At 51 percent? The cliff at 51 percent makes some cases not worth trying.