When the Defense of Comparative Negligence Does Not Apply
Posted By Garrett Riley || Aug 24, 2012
We have blogged before in this space about the comparative negligence laws in Florida and their effect on personal injury cases. Basically, comparative negligence means that if an injured person is at fault in any way for their accident, then the amount of damages they can recover may be reduced by the percentage of fault that a jury determines the injured person was responsible for their own damages.
Comparative negligence is an applicable defense in almost any injury case. However, the law in Florida has carved out a few exceptions. For example, comparative negligence does not apply to cases involving intentional torts like battery, assault, and false imprisonment. Comparative negligence will also not apply in cases involving willful, wanton, and reckless conduct because some conduct is so inherently dangerous and negligent that the law says it doesn’t matter what the injured person was doing when they were injured because the conduct of the negligent party was so wrongful.
Finally, comparative negligence will not apply in cases involving attractive nuisances. These kinds of cases usually involve children who are injured after being attracted to a dangerous peril and who don’t have an understanding of what they are doing. In those cases, it has to be proved that the child did not appreciate what they were doing when they were injured so it’s impossible that they would be at fault for their own injury.
Understanding comparative negligence and the exceptions to the general rule is important because insurance companies will often raise it as a defense to paying damages to an injured person. If the defense of comparative negligence doesn’t apply in your case, like in the cases mentioned above, then the insurance companies will not be allowed to use a defense of comparative negligence against you and you have a better chance at recovering the full amount of damages for your injuries.