Florida's modified comparative negligence regime after HB 837. The line moves at 51 percent. Below it, you recover. At or above it, you do not.
Call 904-383-7448Reviewed by Graham W. Syfert, Esq., Florida Bar No. 39104. Last updated .
Section 768.81, Florida Statutes, governs apportionment of fault in negligence cases. Before March 24, 2023, Florida was a pure comparative negligence state: a plaintiff 90 percent at fault could still recover 10 percent of damages. HB 837 changed that.
Under the current statute, a plaintiff more than 50 percent at fault recovers nothing. At 50 percent or less, recovery is reduced by the plaintiff's percentage of fault. The medical-negligence carve-out keeps pure comparative fault for malpractice claims. Section 768.81(6).
Read the full statute at syfert.com/florida/statutes/0768.81.html.
"In a negligence action, the contributory fault chargeable to the claimant diminishes proportionately the amount awarded as economic and noneconomic damages for an injury attributable to the claimant's contributory fault, but does not bar recovery; however, in a negligence action, any party found to be greater than 50 percent at fault for his or her own harm may not recover any damages." Section 768.81(6), Florida Statutes (as amended by Ch. 2023-15, Laws of Fla.). Read the full statute.
The statute also addresses joint-and-several liability (eliminated for negligence in Florida in 2006), apportionment of fault to non-parties (the Fabre rule), and the carve-outs for medical negligence and certain intentional tort cases.
Florida adopted comparative negligence by judicial decision in Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973), which abolished the older common-law rule that any contributory fault barred recovery. The Legislature codified pure comparative fault in 1986. In 2006, the Legislature eliminated joint-and-several liability for negligence claims. In 2023, HB 837 switched Florida to modified comparative fault with the 51 percent bar.
The medical-negligence carve-out was added during the HB 837 process. Trial-bar lobbying preserved pure comparative fault for malpractice claims.
Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993). Established that a defendant may apportion fault to a non-party on the verdict form, but only if the defendant pleads the non-party's negligence with specificity and proves it at trial. The "Fabre defendant" doctrine remains central to Florida apportionment practice. See syfert.com for current treatment.
Wells v. Tallahassee Memorial Regional Med. Ctr., 659 So. 2d 249 (Fla. 1995). Refined the Fabre pleading and proof requirements.
For an updated, treatment-flagged list of Florida appellate decisions citing section 768.81, see syfert.com/florida/statutes/0768.81.html. The list is refreshed monthly and includes red-flag, yellow-flag, and green-flag treatment indicators driven by Graham's treatment-flag database.
Defense lawyers anchor on the bar. Every fact that arguably shows plaintiff fault becomes evidence at the bar's edge. Counter with documentation of defendant fault, expert reconstruction, and clean cross-examination of the plaintiff.
Fabre apportionment is real, but it requires specific pleading and trial proof. If the defense pleads "John Doe contractor" without naming the contractor or describing the contractor's negligence, move to strike. The Fabre defense fails without specificity.
Mitigation is technically a separate doctrine, but defense lawyers fold it into comparative fault arguments. The duty to mitigate is reasonable, not absolute. Document treatment compliance.
The 51 percent bar reshapes settlement value. Cases that would have settled for 60 percent of full value under pure comparative fault now sometimes settle for 100 percent (because the defense risk is total) or 0 percent (because the plaintiff risks the bar). Liability has become bimodal.
Voir dire matters more than ever. Jurors who heard about HB 837 may anchor low on plaintiff fault percentages. Jurors who did not may carry pure-comparative-fault intuitions from the popular press.
Apportionment to non-parties remains the under-appreciated lever. A defendant who can credibly point at a non-party often gets a meaningful percentage shifted off their share. Pleading discipline matters: if a Fabre defendant is not specifically named and supported with proof, the apportionment fails.
A plaintiff more than 50 percent at fault for their own harm cannot recover any damages. Section 768.81(6), Florida Statutes.
Modified, since March 24, 2023. A plaintiff at 50 percent or less recovers, reduced by their share of fault. At 51 percent or more, no recovery. Before HB 837, Florida was a pure comparative state.
No. Medical negligence still applies pure comparative fault.
A non-party whose fault may be apportioned on the verdict form under Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993). The defendant must plead and prove the non-party's negligence with specificity.
Apportionment questions are fact-specific. Call for a free read on how the 51 percent bar might apply.
Call: 904-383-7448