The Florida Senate

768.041  Release or covenant not to sue.

768.0415  Liability for injury to parent.

768.042  Damages.

768.0425  Damages in actions against contractors for injuries sustained from negligence, malfeasance, or misfeasance.

768.043  Remittitur and additur actions arising out of operation of motor vehicles.

768.07  Railroad liability for injury to employees.

768.0705  Limitation on premises liability.

768.0710  Burden of proof in claims of negligence involving transitory foreign objects or substances against persons or entities in possession or control of business premises.

768.075  Immunity from liability for injury to trespassers on real property.

768.08  Liability of corporations having relief department for injury to employees; contracts in violation of act void.

768.091  Employer liability limits; ridesharing.

768.093  Owner liability limits; powered shopping carts.

768.095  Employer immunity from liability; disclosure of information regarding former or current employees.

768.096  Employer presumption against negligent hiring.

768.098  Limitation of liability for employee leasing.

768.0981  Limitation on actions against insurers, prepaid limited health service organizations, health maintenance organizations, or prepaid health clinics.

768.10  Pits and holes not to be left open.

768.11  Pits and holes; measure of damages.

768.12  Motor vehicle colliding with any animal at large on a public highway.

768.125  Liability for injury or damage resulting from intoxication.

768.1256  Government rules defense.

768.1257  State-of-the-art defense for products liability.

768.128  Hazardous spills; definitions; persons who assist in containing or treating spills; immunity from liability; exceptions.

768.13  Good Samaritan Act; immunity from civil liability.

768.1315  Good Samaritan Volunteer Firefighters' Assistance Act; immunity from civil liability.

768.1325  Cardiac Arrest Survival Act; immunity from civil liability.

768.1335  Emergency Medical Dispatch Act; presumption.

768.1345  Professional malpractice; immunity.

768.135  Volunteer team physicians; immunity.

768.1355  Florida Volunteer Protection Act.

768.136  Liability for canned or perishable food distributed free of charge.

768.137  Definition; limitation of civil liability for certain farmers; exception.

768.138  Interruption of electric utility service by order of law enforcement; immunity.

768.14  Suit by state; waiver of sovereign immunity.

768.16  Wrongful Death Act.

768.17  Legislative intent.

768.18  Definitions.

768.19  Right of action.

768.20  Parties.

768.21  Damages.

768.22  Form of verdict.

768.23  Protection of minors and incompetents.

768.24  Death of a survivor before judgment.

768.25  Court approval of settlements.

768.26  Litigation expenses.

768.28  Waiver of sovereign immunity in tort actions; recovery limits; limitation on attorney fees; statute of limitations; exclusions; indemnification; risk management programs.

768.295  Strategic Lawsuits Against Public Participation (SLAPP) suits by governmental entities prohibited.

768.31  Contribution among tortfeasors.

768.35  Continuing domestic violence.

768.36  Alcohol or drug defense.

768.37  Limitation on civil liability arising from long-term consumption of food and nonalcoholic beverages.

768.041  Release or covenant not to sue.--

(1)  A release or covenant not to sue as to one tortfeasor for property damage to, personal injury of, or the wrongful death of any person shall not operate to release or discharge the liability of any other tortfeasor who may be liable for the same tort or death.

(2)  At trial, if any defendant shows the court that the plaintiff, or any person lawfully on her or his behalf, has delivered a release or covenant not to sue to any person, firm, or corporation in partial satisfaction of the damages sued for, the court shall set off this amount from the amount of any judgment to which the plaintiff would be otherwise entitled at the time of rendering judgment and enter judgment accordingly.

(3)  The fact of such a release or covenant not to sue, or that any defendant has been dismissed by order of the court shall not be made known to the jury.

History.--ss. 1, 2, 3, ch. 57-395; s. 45, ch. 67-254; s. 1158, ch. 97-102.

Note.--Former s. 54.28.

768.0415  Liability for injury to parent.--A person who, through negligence, causes significant permanent injury to the natural or adoptive parent of an unmarried dependent resulting in a permanent total disability shall be liable to the dependent for damages, including damages for permanent loss of services, comfort, companionship, and society. This section shall apply to acts of negligence occurring on or after October 1, 1988.

History.--s. 1, ch. 88-173.

768.042  Damages.--

(1)  In any action brought in the circuit court to recover damages for personal injury or wrongful death, the amount of general damages shall not be stated in the complaint, but the amount of special damages, if any, may be specifically pleaded and the requisite jurisdictional amount established for filing in any court of competent jurisdiction.

(2)  The provisions of this section shall not apply to any complaint filed prior to May 20, 1975.

History.--ss. 8, 9, ch. 75-9.

768.0425  Damages in actions against contractors for injuries sustained from negligence, malfeasance, or misfeasance.--

(1)  For purposes of this section only, the term "contractor" means any person who contracts to perform any construction or building service which is regulated by any state or local law, including, but not limited to, chapters 489 and 633; and the term "consumer" means a person who contracts for the performance of any construction or building service which is regulated by any state or local law, including, but not limited to, chapters 489 and 633.

(2)  In any action against a contractor for injuries sustained resulting from the contractor's negligence, malfeasance, or misfeasance, the consumer shall be entitled to three times the actual compensatory damages sustained in addition to costs and attorney's fees if the contractor is neither certified as a contractor by the state nor licensed as a contractor pursuant to the laws of the municipality or county within which she or he is conducting business.

History.--ss. 12, 16, ch. 87-310; s. 21, ch. 88-149; ss. 22, 23, ch. 88-156; s. 1159, ch. 97-102.

Note.--Former s. 489.5331.

768.043  Remittitur and additur actions arising out of operation of motor vehicles.--

(1)  In any action for the recovery of damages based on personal injury or wrongful death arising out of the operation of a motor vehicle, whether in tort or in contract, wherein the trier of fact determines that liability exists on the part of the defendant and a verdict is rendered which awards money damages to the plaintiff, it shall be the responsibility of the court, upon proper motion, to review the amount of such award to determine if such amount is clearly excessive or inadequate in light of the facts and circumstances which were presented to the trier of fact. If the court finds that the amount awarded is clearly excessive or inadequate, it shall order a remittitur or additur, as the case may be. If the party adversely affected by such remittitur or additur does not agree, the court shall order a new trial in the cause on the issue of damages only.

(2)  In determining whether an award is clearly excessive or inadequate in light of the facts and circumstances presented to the trier of fact and in determining the amount, if any, that such award exceeds a reasonable range of damages or is inadequate, the court shall consider the following criteria:

(a)  Whether the amount awarded is indicative of prejudice, passion, or corruption on the part of the trier of fact.

(b)  Whether it clearly appears that the trier of fact ignored the evidence in reaching the verdict or misconceived the merits of the case relating to the amounts of damages recoverable.

(c)  Whether the trier of fact took improper elements of damages into account or arrived at the amount of damages by speculation or conjecture.

(d)  Whether the amount awarded bears a reasonable relation to the amount of damages proved and the injury suffered.

(e)  Whether the amount awarded is supported by the evidence and is such that it could be adduced in a logical manner by reasonable persons.

(3)  It is the intent of the Legislature to vest the trial courts of this state with the discretionary authority to review the amounts of damages awarded by a trier of fact, in light of a standard of excessiveness or inadequacy. The Legislature recognizes that the reasonable actions of a jury are a fundamental precept of American jurisprudence and that such actions should be disturbed or modified only with caution and discretion. However, it is further recognized that a review by the courts in accordance with the standards set forth in this section provides an additional element of soundness and logic to our judicial system and is in the best interests of the citizens of Florida.

History.--s. 41, ch. 77-468; s. 283, ch. 79-400.

768.07  Railroad liability for injury to employees.--If any person is injured by a railroad company by the running of the locomotives or cars, or other machinery of such company, the person being at the time of such injury an employee of the company, and the damage was caused by negligence of another employee, and without fault or negligence on the part of the person injured, her or his employment by the company shall be no bar to a recovery. No contract which restricts such liability shall be legal or binding.

History.--s. 3, ch. 4071, 1891; GS 3150; RGS 4966; CGL 7053; s. 1160, ch. 97-102.

768.0705  Limitation on premises liability.--The owner or operator of a convenience business that substantially implements the applicable security measures listed in ss. 812.173 and 812.174 shall gain a presumption against liability in connection with criminal acts that occur on the premises and that are committed by third parties who are not employees or agents of the owner or operator of the convenience business.

History.--s. 18, ch. 99-225.

768.0710  Burden of proof in claims of negligence involving transitory foreign objects or substances against persons or entities in possession or control of business premises.--

(1)  The person or entity in possession or control of business premises owes a duty of reasonable care to maintain the premises in a reasonably safe condition for the safety of business invitees on the premises, which includes reasonable efforts to keep the premises free from transitory foreign objects or substances that might foreseeably give rise to loss, injury, or damage.

(2)  In any civil action for negligence involving loss, injury, or damage to a business invitee as a result of a transitory foreign object or substance on business premises, the claimant shall have the burden of proving that:

(a)  The person or entity in possession or control of the business premises owed a duty to the claimant;

(b)  The person or entity in possession or control of the business premises acted negligently by failing to exercise reasonable care in the maintenance, inspection, repair, warning, or mode of operation of the business premises. Actual or constructive notice of the transitory foreign object or substance is not a required element of proof to this claim. However, evidence of notice or lack of notice offered by any party may be considered together with all of the evidence; and

(c)  The failure to exercise reasonable care was a legal cause of the loss, injury, or damage.

History.--s. 1, ch. 2002-285.

768.075  Immunity from liability for injury to trespassers on real property.--

(1)  A person or organization owning or controlling an interest in real property, or an agent of such person or organization, shall not be held liable for any civil damages for death of or injury or damage to a trespasser upon the property when such trespasser was under the influence of alcoholic beverages with a blood-alcohol level of 0.08 percent or higher, when such trespasser was under the influence of any chemical substance set forth in s. 877.111, when such trespasser was illegally under the influence of any substance controlled under chapter 893, or if the trespasser is affected by any of the aforesaid substances to the extent that her or his normal faculties are impaired. However, the person or organization owning or controlling the interest in real property shall not be immune from liability if gross negligence or intentional misconduct on the part of such person or organization or agent thereof is a proximate cause of the death of or injury or damage to the trespasser.

(2)  A person or organization owning or controlling an interest in real property, or an agent of such person or organization, is not liable for any civil damages for the death of or injury or damage to any discovered or undiscovered trespasser, except as provided in paragraphs (3)(a), (b), and (c), and regardless of whether the trespasser was intoxicated or otherwise impaired.

(3)(a)  As used in this subsection, the term:

1.  "Invitation" means that the visitor entering the premises has an objectively reasonable belief that he or she has been invited or is otherwise welcome on that portion of the real property where injury occurs.

2.  "Discovered trespasser" means a person who enters real property without invitation, either express or implied, and whose actual physical presence was detected, within 24 hours preceding the accident, by the person or organization owning or controlling an interest in real property or to whose actual physical presence the person or organization owning or controlling an interest in real property was alerted by a reliable source within 24 hours preceding the accident. The status of a person who enters real property shall not be elevated to that of an invitee, unless the person or organization owning or controlling an interest in real property has issued an express invitation to enter the property or has manifested a clear intent to hold the property open to use by persons pursuing purposes such as those pursued by the person whose status is at issue.

3.  "Undiscovered trespasser" means a person who enters property without invitation, either express or implied, and whose actual physical presence was not detected, within 24 hours preceding the accident, by the person or organization owning or controlling an interest in real property.

(b)  To avoid liability to undiscovered trespassers, a person or organization owning or controlling an interest in real property must refrain from intentional misconduct that proximately causes injury to the undiscovered trespasser, but has no duty to warn of dangerous conditions. To avoid liability to discovered trespassers, a person or organization owning or controlling an interest in real property must refrain from gross negligence or intentional misconduct that proximately causes injury to the discovered trespasser, and must warn the trespasser of dangerous conditions that are known to the person or organization owning or controlling an interest in real property but that are not readily observable by others.

(c)  This subsection shall not be interpreted or construed to alter the common law as it pertains to the "attractive nuisance doctrine."

(4)  A person or organization owning or controlling an interest in real property, or an agent of such person or organization, shall not be held liable for negligence that results in the death of, injury to, or damage to a person who is attempting to commit a felony or who is engaged in the commission of a felony on the property.

History.--s. 1, ch. 90-140; s. 1161, ch. 97-102; s. 19, ch. 99-225.

768.08  Liability of corporations having relief department for injury to employees; contracts in violation of act void.--Any person, association of persons, or corporation that has, or shall hereafter have, a relief department for the benefit of their or its employees, or which shall contribute any money or other thing of value to any relief society or association for the benefit of their or its employees, to which such employee may also contribute any money, or other thing of value, shall not be relieved of liability to such employee, or in case of her or his death to any person authorized by law to sue for such death, for the negligent injury or killing of such employee, because such employee may have been a member of or contributed to any such relief department, or received any benefits therefrom, but such employee, and in case of her or his death any person or persons authorized by law to sue for such death, shall be entitled to demand, sue for and recover any benefit that such employee may have been entitled to receive by reason of having been a member of or contributed to any such relief department, society or association, and such employee, and in case of her or his death any person authorized by law to sue for such death, shall be entitled to institute suit against any such person, association of persons or corporations, and to recover for any injury suffered by such employee and for the death of such employee, suffered through the negligence of such person, association of persons, or corporation, and any contract, stipulation or provision in violation of this section is declared to be null and void.

History.--s. 1, ch. 6520, 1913; RGS 4967; CGL 7054; s. 1162, ch. 97-102.

768.091  Employer liability limits; ridesharing.--

(1)  No employer shall be liable for injuries or damages sustained by operators, passengers, or other persons resulting from the operation of a motor vehicle while being used in a ridesharing arrangement between a place of residence and a place of employment or termini near such places; nor shall such employer be liable for injuries or damages sustained to operators, passengers, or other persons because such employer provides information or incentives to, or otherwise encourages, employees to participate in ridesharing arrangements. However, this section does not apply to motor vehicles owned or leased by an employer nor to acts by an employee within the scope of employment as defined in subsection (2).

(2)  For purposes of ridesharing, employment shall be deemed to commence when an employee arrives at the employer's place of employment to report for work and to terminate when the employee leaves the employer's place of employment, excluding areas not under the control of the employer. However, an employee shall be deemed to be within the course of employment when the employee is engaged in the performance of duties assigned or directed by the employer, or acting in the furtherance of the business of the employer, irrespective of location.

History.--ss. 2, 3, ch. 82-95; s. 1163, ch. 97-102.

768.093  Owner liability limits; powered shopping carts.--

(1)  For the purposes of this section, the term "powered shopping cart" means an electrically powered assistive technology device which is generally used in a retail establishment by a customer, designed for the simultaneous transport of a person and of goods of any kind, and capable of speeds no greater than 2¹/₂ miles per hour.

(2)  A powered shopping cart which is provided to a person gratuitously for use solely on the premises of the owner of such powered shopping cart shall not be considered a dangerous instrumentality in this state.

History.--s. 1, ch. 2002-33.

768.095  Employer immunity from liability; disclosure of information regarding former or current employees.--An employer who discloses information about a former or current employee to a prospective employer of the former or current employee upon request of the prospective employer or of the former or current employee is immune from civil liability for such disclosure or its consequences unless it is shown by clear and convincing evidence that the information disclosed by the former or current employer was knowingly false or violated any civil right of the former or current employee protected under chapter 760.

History.--s. 1, ch. 91-165; s. 17, ch. 99-225.

768.096  Employer presumption against negligent hiring.--

(1)  In a civil action for the death of, or injury or damage to, a third person caused by the intentional tort of an employee, such employee's employer is presumed not to have been negligent in hiring such employee if, before hiring the employee, the employer conducted a background investigation of the prospective employee and the investigation did not reveal any information that reasonably demonstrated the unsuitability of the prospective employee for the particular work to be performed or for the employment in general. A background investigation under this section must include:

(a)  Obtaining a criminal background investigation on the prospective employee under subsection (2);

(b)  Making a reasonable effort to contact references and former employers of the prospective employee concerning the suitability of the prospective employee for employment;

(c)  Requiring the prospective employee to complete a job application form that includes questions concerning whether he or she has ever been convicted of a crime, including details concerning the type of crime, the date of conviction and the penalty imposed, and whether the prospective employee has ever been a defendant in a civil action for intentional tort, including the nature of the intentional tort and the disposition of the action;

(d)  Obtaining, with written authorization from the prospective employee, a check of the driver's license record of the prospective employee if such a check is relevant to the work the employee will be performing and if the record can reasonably be obtained; or

(e)  Interviewing the prospective employee.

(2)  To satisfy the criminal-background-investigation requirement of this section, an employer must request and obtain from the Department of Law Enforcement a check of the information as reported and reflected in the Florida Crime Information Center system as of the date of the request.

(3)  The election by an employer not to conduct the investigation specified in subsection (1) does not raise any presumption that the employer failed to use reasonable care in hiring an employee.

History.--s. 16, ch. 99-225.

768.098  Limitation of liability for employee leasing.--

(1)  An employer in a joint employment relationship pursuant to s. 468.520 shall not be liable for the tortious actions of another employer in that relationship, or for the tortious actions of any jointly employed employee under that relationship, provided that:

(a)  The employer seeking to avoid liability pursuant to this section did not authorize or direct the tortious action;

(b)  The employer seeking to avoid liability pursuant to this section did not have actual knowledge of the tortious conduct and fail to take appropriate action;

(c)  The employer seeking to avoid liability pursuant to this section did not have actual control over the day-to-day job duties of the jointly employed employee who has committed a tortious act nor actual control over the portion of a job site at which or from which the tortious conduct arose or at which and from which a jointly employed employee worked, and that said control was assigned to the other employer under the contract;

(d)  The employer seeking to avoid liability pursuant to this section is expressly absolved in the written contract forming the joint employment relationship of control over the day-to-day job duties of the jointly employed employee who has committed a tortious act, and actual control over the portion of the job site at which or from which the tortious conduct arose or at which and from which the jointly employed employee worked, and that said control was assigned to the other employer under the contract; and

(e)  Complaints, allegations, or incidents of any tortious misconduct or workplace safety violations, regardless of the source, are required to be reported to the employer seeking to avoid liability pursuant to this section by all other joint employers under the written contract forming the joint employment relationship, and that the employer seeking to avoid liability pursuant to this section did not fail to take appropriate action as a result of receiving any such report related to a jointly employed employee who has committed a tortious act.

(2)  An employer seeking to avoid liability pursuant to this section shall not be presumed to have actual control over the day-to-day job duties of the jointly employed employee who has committed a tortious act, nor actual control over the portion of a job site at which or from which that employee worked, based solely upon the fact that the employee at issue is a leased employee.

(3)  This section shall not alter any responsibilities of the joint employer who has actual control over the day-to-day job duties of the jointly employed employee and who has actual control over the portion of a job site at which or from which the employee is employed, which arise from s. 768.096.

History.--s. 29, ch. 99-225.

768.0981  Limitation on actions against insurers, prepaid limited health service organizations, health maintenance organizations, or prepaid health clinics.--An entity licensed or certified under chapter 624, chapter 636, or chapter 641 shall not be liable for the medical negligence of a health care provider with whom the licensed or certified entity has entered into a contract, other than an employee of such licensed or certified entity, unless the licensed or certified entity expressly directs or exercises actual control over the specific conduct that caused injury.

History.--s. 64, ch. 2003-416.

768.10  Pits and holes not to be left open.--It is not lawful for any company or individual to leave open any pit or other hole outside of an enclosure of a greater depth and breadth than 2 feet; provided, however, such pit or hole may be left open by enclosing the same with a fence or other enclosure that would be a safeguard against horses, cattle or other domestic animals falling into the same; provided further, that this section shall not apply to pits or holes made by any company or individual while bona fide engaged in actual mining operations, such pits and holes to be enclosed as herein provided when said mining operations shall cease or be discontinued.

History.--s. 1, ch. 4051, 1891; GS 3152; RGS 4969; CGL 7056.

768.11  Pits and holes; measure of damages.--Any company or individual who may leave open pits or other holes contrary to the provisions of s. 768.10 shall be liable in damages to any person injured thereby in an amount double the actual damages sustained, which may be recovered in any court of competent jurisdiction.

History.--s. 2, ch. 4051, 1891; GS 3153; RGS 4970; CGL 7057.

768.12  Motor vehicle colliding with any animal at large on a public highway.--Whenever a motor vehicle collides with any animal at large on a public highway of this state, and the operator of the motor vehicle dies as a result of the collision, the owner of such animal shall have no cause of action against the personal representative of the estate of the said deceased operator on account of any injuries to, or the death of, such animal, resulting from the collision.

History.--s. 1, ch. 21018, 1941.

768.125  Liability for injury or damage resulting from intoxication.--A person who sells or furnishes alcoholic beverages to a person of lawful drinking age shall not thereby become liable for injury or damage caused by or resulting from the intoxication of such person, except that a person who willfully and unlawfully sells or furnishes alcoholic beverages to a person who is not of lawful drinking age or who knowingly serves a person habitually addicted to the use of any or all alcoholic beverages may become liable for injury or damage caused by or resulting from the intoxication of such minor or person.

History.--s. 1, ch. 80-37.

768.1256  Government rules defense.--

(1)  In a product liability action brought against a manufacturer or seller for harm allegedly caused by a product, there is a rebuttable presumption that the product is not defective or unreasonably dangerous and the manufacturer or seller is not liable if, at the time the specific unit of the product was sold or delivered to the initial purchaser or user, the aspect of the product that allegedly caused the harm:

(a)  Complied with federal or state codes, statutes, rules, regulations, or standards relevant to the event causing the death or injury;

(b)  The codes, statutes, rules, regulations, or standards are designed to prevent the type of harm that allegedly occurred; and

(c)  Compliance with the codes, statutes, rules, regulations, or standards is required as a condition for selling or distributing the product.

(2)  In a product liability action as described in subsection (1), there is a rebuttable presumption that the product is defective or unreasonably dangerous and the manufacturer or seller is liable if the manufacturer or seller did not comply with the federal or state codes, statutes, rules, regulations, or standards which:

(a)  Were relevant to the event causing the death or injury;

(b)  Are designed to prevent the type of harm that allegedly occurred; and

(c)  Require compliance as a condition for selling or distributing the product.

(3)  This section does not apply to an action brought for harm allegedly caused by a drug that is ordered off the market or seized by the Federal Food and Drug Administration.

History.--s. 15, ch. 99-225.

768.1257  State-of-the-art defense for products liability.--In an action based upon defective design, brought against the manufacturer of a product, the finder of fact shall consider the state of the art of scientific and technical knowledge and other circumstances that existed at the time of manufacture, not at the time of loss or injury.

History.--s. 14, ch. 99-225.

768.128  Hazardous spills; definitions; persons who assist in containing or treating spills; immunity from liability; exceptions.--

(1)  For the purpose of this section:

(a)  The term "hazardous materials" includes all materials and substances which are now designated or defined as hazardous by the law of this state or federal law or by the rules or regulations of this state or any federal agency.

(b)  The term "spill" includes the accidental spilling, leaking, pumping, pouring, emitting, or dumping of any hazardous waste or material which creates an emergency hazardous situation or is expected to create an emergency hazardous situation.

(c)  An "emergency hazardous situation" exists whenever there is an imminent and substantial threat to public health and safety.

(2)  Notwithstanding any provision of the law to the contrary, no person who provides good faith assistance or advice in immediately containing or treating, or attempting to contain, treat, or prevent, an actual or threatened spill is subject to civil liabilities or penalties of any type. Except for the immediate response to the spill or threatened spill, all activities to prevent, contain, clean up, and dispose of, or to attempt to prevent, contain, clean up, and dispose of, the hazardous material shall be in accordance with applicable state and federal law.

(3)  The immunities provided in subsection (2) do not apply to any person:

(a)  Whose act or omission causes in whole or in part such actual or threatened discharge and who would otherwise be liable therefor;

(b)  Who receives compensation other than reimbursement for out-of-pocket expenses for services in rendering such assistance or advice;

(c)  Who fails to act as an ordinary reasonably prudent person would have acted under the same or similar circumstances; or

(d)  Who fails to comply with the lawful instruction of an on-scene, governmentally supervised, operational emergency response team whose duty is to prevent, contain, or clean up the spill.

(4)  Nothing in subsection (2) shall be construed to limit or otherwise affect the liability of:

(a)  Any person for damages resulting from such person's gross negligence or from such person's reckless, wanton, or intentional misconduct; or

(b)  Any person for the improper management of the hazardous waste or material after the emergency spill response activities are completed.

History.--s. 39, ch. 83-310.

768.13  Good Samaritan Act; immunity from civil liability.--

(1)  This act shall be known and cited as the "Good Samaritan Act."

(2)(a)  Any person, including those licensed to practice medicine, who gratuitously and in good faith renders emergency care or treatment either in direct response to emergency situations related to and arising out of a public health emergency declared pursuant to s. 381.00315, a state of emergency which has been declared pursuant to s. 252.36 or at the scene of an emergency outside of a hospital, doctor's office, or other place having proper medical equipment, without objection of the injured victim or victims thereof, shall not be held liable for any civil damages as a result of such care or treatment or as a result of any act or failure to act in providing or arranging further medical treatment where the person acts as an ordinary reasonably prudent person would have acted under the same or similar circumstances.

(b)1.  Any health care provider, including a hospital licensed under chapter 395, providing emergency services pursuant to obligations imposed by 42 U.S.C. s. 1395dd, s. 395.1041, s. 395.401, or s. 401.45 shall not be held liable for any civil damages as a result of such medical care or treatment unless such damages result from providing, or failing to provide, medical care or treatment under circumstances demonstrating a reckless disregard for the consequences so as to affect the life or health of another.

2.  The immunity provided by this paragraph applies to damages as a result of any act or omission of providing medical care or treatment, including diagnosis:

a.  Which occurs prior to the time the patient is stabilized and is capable of receiving medical treatment as a nonemergency patient, unless surgery is required as a result of the emergency within a reasonable time after the patient is stabilized, in which case the immunity provided by this paragraph applies to any act or omission of providing medical care or treatment which occurs prior to the stabilization of the patient following the surgery.

b.  Which is related to the original medical emergency.

3.  For purposes of this paragraph, "reckless disregard" as it applies to a given health care provider rendering emergency medical services shall be such conduct that a health care provider knew or should have known, at the time such services were rendered, created an unreasonable risk of injury so as to affect the life or health of another, and such risk was substantially greater than that which is necessary to make the conduct negligent.

4.  Every emergency care facility granted immunity under this paragraph shall accept and treat all emergency care patients within the operational capacity of such facility without regard to ability to pay, including patients transferred from another emergency care facility or other health care provider pursuant to Pub. L. No. 99-272, s. 9121. The failure of an emergency care facility to comply with this subparagraph constitutes grounds for the department to initiate disciplinary action against the facility pursuant to chapter 395.

(c)1.  Any health care practitioner as defined in s. 456.001(4) who is in a hospital attending to a patient of his or her practice or for business or personal reasons unrelated to direct patient care, and who voluntarily responds to provide care or treatment to a patient with whom at that time the practitioner does not have a then-existing health care patient-practitioner relationship, and when such care or treatment is necessitated by a sudden or unexpected situation or by an occurrence that demands immediate medical attention, shall not be held liable for any civil damages as a result of any act or omission relative to that care or treatment, unless that care or treatment is proven to amount to conduct that is willful and wanton and would likely result in injury so as to affect the life or health of another.

2.  The immunity provided by this paragraph does not apply to damages as a result of any act or omission of providing medical care or treatment unrelated to the original situation that demanded immediate medical attention.

3.  For purposes of this paragraph, the Legislature's intent is to encourage health care practitioners to provide necessary emergency care to all persons without fear of litigation as described in this paragraph.

(d)  Any person whose acts or omissions are not otherwise covered by this section and who participates in emergency response activities under the direction of or in connection with a community emergency response team, local emergency management agencies, the Division of Emergency Management of the Department of Community Affairs, or the Federal Emergency Management Agency is not liable for any civil damages as a result of care, treatment, or services provided gratuitously in such capacity and resulting from any act or failure to act in such capacity in providing or arranging further care, treatment, or services, if such person acts as a reasonably prudent person would have acted under the same or similar circumstances.

(3)  Any person, including those licensed to practice veterinary medicine, who gratuitously and in good faith renders emergency care or treatment to an injured animal at the scene of an emergency on or adjacent to a roadway shall not be held liable for any civil damages as a result of such care or treatment or as a result of any act or failure to act in providing or arranging further medical treatment where the person acts as an ordinary reasonably prudent person would have acted under the same or similar circumstances.

History.--ss. 1, 2, ch. 65-313; s. 1, ch. 78-334; s. 62, ch. 86-160; s. 46, ch. 88-1; s. 4, ch. 88-173; s. 42, ch. 88-277; s. 1, ch. 89-71; s. 37, ch. 91-110; s. 33, ch. 93-211; s. 3, ch. 97-34; s. 1164, ch. 97-102; s. 2, ch. 2001-76; s. 3, ch. 2002-269; s. 65, ch. 2003-416; s. 1, ch. 2004-45.

768.1315  Good Samaritan Volunteer Firefighters' Assistance Act; immunity from civil liability.--

(1)  SHORT TITLE.--This section may be cited as the "Good Samaritan Volunteer Firefighters' Assistance Act."

(2)  DEFINITIONS.--As used in this section, the term:

(a)  "Authorized technician" means a technician who is certified by the manufacturer of fire control or fire rescue equipment as qualified to inspect that equipment. The technician may not be employed by the state agency or subdivision administering the distribution of the fire control or fire rescue equipment.

(b)  "Qualified fire control or fire rescue equipment" means equipment used for fire control or fire rescue which has been recertified by an authorized technician as meeting the manufacturer's specifications and which is distributed by or through a state agency or subdivision to a volunteer fire department.

(c)  "State agency or subdivision" shall have the meaning provided in s. 768.28(2).

(3)  LIMITATION OF LIABILITY.--A state agency or subdivision, including an officer, employee, or agent thereof, who is acting within the scope of his or her employment or function, which donates qualified fire control or fire rescue equipment to a volunteer fire department is not liable for civil damages under any state law for personal injury, property damage, or death proximately caused after the donation by a defect in the equipment.

(4)  EXCEPTIONS TO LIABILITY PROTECTION.--Subsection (3) does not apply to a state agency or subdivision, or an officer, employee, or agent thereof, if:

(a)  The defect that proximately caused the personal injury, property damage, or death resulted from:

1.  An act or omission of an officer, employee, or agent of the state agency or subdivision which constitutes malice, gross negligence, recklessness, or intentional misconduct; or

2.  A modification or alteration of the qualified fire control or fire rescue equipment by the state agency or subdivision, or by an officer, employee, or agent thereof, after the equipment was recertified by an authorized technician as meeting the manufacturer's specifications.

(b)  The state agency or subdivision is the manufacturer of the qualified fire control or fire rescue equipment.

Nothing in this section shall be construed as a waiver of sovereign immunity.

History.--s. 1, ch. 2004-368.

¹768.1325  Cardiac Arrest Survival Act; immunity from civil liability.--

(1)  This section may be cited as the "Cardiac Arrest Survival Act."

(2)  As used in this section:

(a)  "Perceived medical emergency" means circumstances in which the behavior of an individual leads a reasonable person to believe that the individual is experiencing a life-threatening medical condition that requires an immediate medical response regarding the heart or other cardiopulmonary functioning of the individual.

(b)  "Automated external defibrillator device" means a defibrillator device that:

1.  Is commercially distributed in accordance with the Federal Food, Drug, and Cosmetic Act.

2.  Is capable of recognizing the presence or absence of ventricular fibrillation, and is capable of determining without intervention by the user of the device whether defibrillation should be performed.

3.  Upon determining that defibrillation should be performed, is able to deliver an electrical shock to an individual.

(c)  "Harm" means damage or loss of any and all types, including, but not limited to, physical, nonphysical, economic, noneconomic, actual, compensatory, consequential, incidental, and punitive damages or losses.

(3)  Notwithstanding any other provision of law to the contrary, and except as provided in subsection (4), any person who uses or attempts to use an automated external defibrillator device on a victim of a perceived medical emergency, without objection of the victim of the perceived medical emergency, is immune from civil liability for any harm resulting from the use or attempted use of such device. In addition, any person who acquired the device, including, but not limited to, a community association organized under chapter 617, chapter 718, chapter 719, chapter 720, chapter 721, or chapter 723, is immune from such liability, if the harm was not due to the failure of such acquirer of the device to:

(a)  Notify the local emergency medical services medical director of the most recent placement of the device within a reasonable period of time after the device was placed;

(b)  Properly maintain and test the device; or

(c)  Provide appropriate training in the use of the device to an employee or agent of the acquirer when the employee or agent was the person who used the device on the victim, except that such requirement of training does not apply if:

1.  The employee or agent was not an employee or agent who would have been reasonably expected to use the device; or

2.  The period of time elapsing between the engagement of the person as an employee or agent and the occurrence of the harm, or between the acquisition of the device and the occurrence of the harm in any case in which the device was acquired after engagement of the employee or agent, was not a reasonably sufficient period in which to provide the training.

(4)  Immunity under subsection (3) does not apply to a person if:

(a)  The harm involved was caused by that person's willful or criminal misconduct, gross negligence, reckless disregard or misconduct, or a conscious, flagrant indifference to the rights or safety of the victim who was harmed;

(b)  The person is a licensed or certified health professional who used the automated external defibrillator device while acting within the scope of the license or certification of the professional and within the scope of the employment or agency of the professional;

(c)  The person is a hospital, clinic, or other entity whose primary purpose is providing health care directly to patients, and the harm was caused by an employee or agent of the entity who used the device while acting within the scope of the employment or agency of the employee or agent;

(d)  The person is an acquirer of the device who leased the device to a health care entity, or who otherwise provided the device to such entity for compensation without selling the device to the entity, and the harm was caused by an employee or agent of the entity who used the device while acting within the scope of the employment or agency of the employee or agent; or

(e)  The person is the manufacturer of the device.

(5)  This section does not establish any cause of action. This section does not require that an automated external defibrillator device be placed at any building or other location or require an acquirer to make available on its premises one or more employees or agents trained in the use of the device.

(6)  An insurer may not require an acquirer of an automated external defibrillator device which is a community association organized under chapter 617, chapter 718, chapter 719, chapter 720, chapter 721, or chapter 723 to purchase medical malpractice liability coverage as a condition of issuing any other coverage carried by the association, and an insurer may not exclude damages resulting from the use of an automated external defibrillator device from coverage under a general liability policy issued to an association.

History.--s. 1, ch. 2001-76; s. 3, ch. 2004-345; s. 3, ch. 2004-353.

¹Note.--Section 4, ch. 2001-76, provides that:

"No later than January 1, 2003, the Secretary of the Department of Health shall adopt rules to establish guidelines on the appropriate placement of automated external defibrillator devices in buildings or portions of buildings owned or leased by the state, and shall establish, by rule, recommendations on procedures for the deployment of automated external defibrillator devices in such buildings in accordance with the guidelines. The Secretary of the Department of Management Services shall assist the Secretary of the Department of Health in the development of the guidelines. The guidelines for the placement of the automated external defibrillators shall take into account the typical number of employees and visitors in the buildings, the extent of the need for security measures regarding the buildings, special circumstances in buildings or portions of buildings such as high electrical voltages or extreme heat or cold, and such other factors as the Secretaries determine to be appropriate. The Secretary of the Department of Health's recommendations for deployment of automated external defibrillators in buildings or portions of buildings owned or leased by the state shall include:

"(a)  A reference list of appropriate training courses in the use of such devices, including the role of cardiopulmonary resuscitation;

"(b)  The extent to which such devices may be used by laypersons;

"(c)  Manufacturer recommended maintenance and testing of the devices; and

"(d)  Coordination with local emergency medical services systems regarding the incidents of use of the devices.


"In formulating these guidelines and recommendations, the Secretary may consult with all appropriate public and private entities, including national and local public health organizations that seek to improve the survival rates of individuals who experience cardiac arrest."

768.1335  Emergency Medical Dispatch Act; presumption.--

(1)  This section may be known by the popular name the "Emergency Medical Dispatch Act."

(2)  As used in this section:

(a)  "Emergency medical dispatch" means the function of utilizing emergency medical dispatch protocols.

(b)  "Emergency medical dispatcher" means a person who is trained or certified in the prompt and accurate processing of calls for emergency medical assistance.

(c)  "Emergency medical dispatch agency" means any private or public entity that is responsible for the emergency medical dispatch by emergency medical dispatchers.

(d)  "Emergency medical dispatch protocol" means guidelines for processing calls for emergency medical assistance or for the dispatching of emergency medical services in a prehospital setting which are substantially similar to standards set forth by the American Society for Testing and Materials or the National Highway Traffic Safety Administration and which have been incorporated into an emergency medical dispatch training program.

(3)  Notwithstanding any other provision of law to the contrary, and unless otherwise immune under s. 768.28, any emergency medical dispatcher or the emergency medical dispatch agency, its agents, or its employees who utilize emergency medical dispatch protocols are presumed not to have acted negligently regarding any injuries or damages resulting from the use of emergency medical dispatch protocols, if the emergency medical dispatcher or the emergency medical dispatch agency, its agents, or its employees:

(a)  Properly trained their emergency medical dispatchers in an emergency medical dispatch that is substantially similar to standards set forth by the American Society for Testing and Materials or the National Highway Traffic Safety Administration.

(b)  Implemented standard practices and management for emergency medical dispatch or practices that are substantially similar to standards set forth by the American Society for Testing and Materials or the National Highway Traffic Safety Administration.

(c)  Utilized standard practices for training, instructor qualification, and certification eligibility of emergency medical dispatchers or practices that are substantially similar to standards set forth by the American Society for Testing and Materials or the National Highway Traffic Safety Administration.

History.--s. 1, ch. 2003-180.

768.1345  Professional malpractice; immunity.--No person shall have a claim for professional malpractice against a licensed professional who provides services for which no compensation is sought or received to such person during the period of a declared emergency if the professional services arose out of the emergency and if the professional acted as an ordinary reasonably prudent member of the profession would have acted under the same or similar circumstances.

History.--s. 32, ch. 93-211.

768.135  Volunteer team physicians; immunity.--Any person licensed to practice medicine pursuant to chapter 458, chapter 459, chapter 460, chapter 461, or chapter 466:

(1)  Who is acting in the capacity of a volunteer team physician in attendance at an athletic event sponsored by a public or private elementary or secondary school; and

(2)  Who gratuitously and in good faith prior to the athletic event agrees to render emergency care or treatment to any participant in such event in connection with an emergency arising during or as the result of such event, without objection of such participant,

shall not be held liable for any civil damages as a result of such care or treatment or as a result of any act or failure to act in providing or arranging further medical treatment when such care or treatment was rendered as a reasonably prudent person similarly licensed to practice medicine would have acted under the same or similar circumstances.

History.--s. 1, ch. 80-263; s. 483, ch. 81-259; s. 2, ch. 88-257.

768.1355  Florida Volunteer Protection Act.--

(1)  Any person who volunteers to perform any service for any nonprofit organization, including an officer or director of such organization, without compensation, except reimbursement for actual expenses, shall be considered an agent of such nonprofit organization when acting within the scope of any official duties performed under such volunteer services. Such person shall incur no civil liability for any act or omission by such person which results in personal injury or property damage if:

(a)  Such person was acting in good faith within the scope of any official duties performed under such volunteer service and such person was acting as an ordinary reasonably prudent person would have acted under the same or similar circumstances; and

(b)  The injury or damage was not caused by any wanton or willful misconduct on the part of such person in the performance of such duties.

1.  For purposes of this act, the term "nonprofit organization" means any organization which is exempt from taxation pursuant to 26 U.S.C. s. 501, or any federal, state, or local governmental entity.

2.  For purposes of this act, the term "compensation" does not include a stipend as provided by the Domestic Service Volunteer Act of 1973, as amended (Pub. L. No. 93-113), or other financial assistance, valued at less than two-thirds of the federal hourly minimum wage standard, paid to a person who would otherwise be financially unable to provide the volunteer service.

(2)  Except as otherwise provided by law, if a volunteer is determined to be not liable pursuant to subsection (1), the nonprofit organization for which the volunteer was performing services when the damages were caused shall be liable for such damages to the same extent as the nonprofit organization would have been liable if the liability limitation pursuant to subsection (1) had not been provided.

(3)  Members of elected or appointed boards, councils, and commissions of the state, counties, municipalities, authorities, and special districts shall incur no civil liability and shall have immunity from suit as provided in s. 768.28 for acts or omissions by members relating to members' conduct of their official duties. It is the intent of the Legislature to encourage our best and brightest people to serve on elected and appointed boards, councils, and commissions.

(4)  This section may be cited as the "Florida Volunteer Protection Act."

History.--s. 1, ch. 93-139; s. 50, ch. 96-399.

768.136  Liability for canned or perishable food distributed free of charge.--

(1)  As used in this section:

(a)  "Donor" means a person, business, organization, or institution which owns, rents, leases, or operates:

1.  Any building, vehicle, place, or structure, or any room or division in a building, vehicle, place, or structure, that is maintained and operated as a place where food is regularly prepared, served, or sold for immediate consumption on or in the vicinity of the premises; or to be called for or taken out by customers; or to be delivered to factories, construction camps, airlines, locations where catered events are being held, and other similar locations for consumption at any place;

2.  Any public location with vending machines dispensing prepared meals; or

3.  Any retail grocery store.

(b)  "Gleaner" means a person who harvests for free distribution an agricultural crop that has been donated by the owner.

(c)  "Canned food" means any food which has been commercially processed and prepared for human consumption and which has been commercially packaged in such a manner as to remain nonperishable without refrigeration for a reasonable length of time.

(d)  "Perishable food" means any food that may spoil or otherwise become unfit for human consumption because of its nature, type, or physical condition. "Perishable food" includes, but is not limited to, fresh or processed meats, poultry, seafood, dairy products, bakery products, eggs in the shell, fresh fruits or vegetables, and foods that have been noncommercially packaged or that have been frozen or otherwise require refrigeration to remain nonperishable for a reasonable length of time.

(2)  A good faith donor or gleaner of any canned or perishable food, apparently fit for human consumption, to a bona fide charitable or nonprofit organization for free distribution shall not be subject to criminal penalty or civil damages arising from the condition of the food, unless an injury is caused by the gross negligence, recklessness, or intentional misconduct of the donor or gleaner.

(3)  A bona fide charitable or nonprofit organization, or any representative or volunteer acting on behalf of such organization or an uncompensated person acting in a philanthropic manner providing services similar to those of such an organization, which accepts, collects, transports, or distributes any canned or perishable food, apparently fit for human consumption, from a good faith donor or gleaner for free distribution shall not be subject to criminal penalty or civil damages arising from the condition of the food, unless an injury is caused by the gross negligence, recklessness, or intentional misconduct of an agent of the charitable or nonprofit organization.

(4)  The provisions of this section apply to the good faith donation of canned or perishable food regardless of whether such food is readily marketable due to appearance, freshness, grade, surplus, or other such considerations.

(5)  The provisions of this section shall not be construed to restrict the authority of any lawful agency to otherwise regulate or ban the use of food for human consumption, and the immunity from liability granted herein shall not be construed to relieve any donor of its duty to comply with any law regulating such donor with respect to health or sanitation.

History.--s. 1, ch. 81-130; s. 1, ch. 85-132; s. 1, ch. 89-35.

768.137  Definition; limitation of civil liability for certain farmers; exception.--

(1)  For the purposes of this section, the term "farmer" means a person who is engaging in the growing or producing of farm produce, either part time or full time, for personal consumption or for sale and who is the owner or lessee of the land or a person designated in writing by the owner or lessee to act as her or his agent.

¹(2)  Any farmer who gratuitously allows persons to enter upon her or his own land for the purpose of removing any farm produce or crops remaining in the fields following the harvesting thereof, shall be exempt from civil liability arising out of any injury or death resulting from the nature or condition of such land or the nature, age, or condition of any such farm produce or crop.

¹(3)  The exemption from civil liability provided for in this section shall not apply if injury or death directly results from the gross negligence, intentional act, or from known dangerous conditions not disclosed by the farmer.

History.--s. 1, ch. 92-85; s. 3, ch. 92-151; ss. 1165, 1166, ch. 97-102.

¹Note.--As created by s. 1, ch. 92-85. Subsections (2) and (3) were also created by s. 3, ch. 92-151. The ch. 92-85 version is published here as the last expression of legislative will (see Journal of the House of Representatives 1992, p. 2021, and Journal of the Senate 1992, pp. 1508 and 1811). Subsections (2) and (3), as created by s. 3, ch. 92-151, read:

(2)  Any farmer who gratuitously allows persons to enter upon her or his own land for the purpose of removing any farm produce or crops remaining in the fields following the harvesting thereof shall be exempt from civil liability arising out of any injury or death resulting from the nature or condition of such land or the nature, age, or condition of any such farm produce or crop provided that this exemption shall not apply if the farmer knowingly allows a dangerous condition or situation to exist and does not disclose such condition or situation.

(3)  The exemption from civil liability provided for in this section shall not apply if injury or death directly results from the gross negligence or intentional act of the farmer.

768.138  Interruption of electric utility service by order of law enforcement; immunity.--The good-faith compliance by an electric utility, as defined in s. 366.02, or the utility's personnel, with a law enforcement or judicial order to interrupt or disconnect electric service at a location for the purpose of aiding law enforcement personnel in the performance of their duties constitutes an absolute defense for the electric utility and its personnel to any civil, criminal, or administrative action arising out of such interruption or disconnection, as long as the electric utility and its personnel exercise reasonable care in their actions. However, this provision does not create a duty of care where none existed prior to the enactment of this section.

History.--s. 1, ch. 2001-165.

768.14  Suit by state; waiver of sovereign immunity.--Suit by the state or any of its agencies or subdivisions to recover damages in tort shall constitute a waiver of sovereign immunity from liability and suit for damages in tort to the extent of permitting the defendant to counterclaim for damages resulting from the same transaction or occurrence.

History.--s. 1, ch. 67-2204.

768.16  Wrongful Death Act.--Sections 768.16-768.26 may be cited as the "Florida Wrongful Death Act."

History.--s. 1, ch. 72-35; s. 105, ch. 2003-1.

768.17  Legislative intent.--It is the public policy of the state to shift the losses resulting when wrongful death occurs from the survivors of the decedent to the wrongdoer. Sections 768.16-768.26 are remedial and shall be liberally construed.

History.--s. 1, ch. 72-35; s. 106, ch. 2003-1.

768.18  Definitions.--As used in ss. 768.16-768.26:

(1)  "Survivors" means the decedent's spouse, children, parents, and, when partly or wholly dependent on the decedent for support or services, any blood relatives and adoptive brothers and sisters. It includes the child born out of wedlock of a mother, but not the child born out of wedlock of the father unless the father has recognized a responsibility for the child's support.

(2)  "Minor children" means children under 25 years of age, notwithstanding the age of majority.

(3)  "Support" includes contributions in kind as well as money.

(4)  "Services" means tasks, usually of a household nature, regularly performed by the decedent that will be a necessary expense to the survivors of the decedent. These services may vary according to the identity of the decedent and survivor and shall be determined under the particular facts of each case.

(5)  "Net accumulations" means the part of the decedent's expected net business or salary income, including pension benefits, that the decedent probably would have retained as savings and left as part of her or his estate if the decedent had lived her or his normal life expectancy. "Net business or salary income" is the part of the decedent's probable gross income after taxes, excluding income from investments continuing beyond death, that remains after deducting the decedent's personal expenses and support of survivors, excluding contributions in kind.

History.--s. 1, ch. 72-35; s. 66, ch. 77-121; s. 40, ch. 77-468; s. 1, ch. 81-183; s. 3, ch. 89-61; s. 1, ch. 90-14; s. 1167, ch. 97-102; s. 107, ch. 2003-1.

768.19  Right of action.--When the death of a person is caused by the wrongful act, negligence, default, or breach of contract or warranty of any person, including those occurring on navigable waters, and the event would have entitled the person injured to maintain an action and recover damages if death had not ensued, the person or watercraft that would have been liable in damages if death had not ensued shall be liable for damages as specified in this act notwithstanding the death of the person injured, although death was caused under circumstances constituting a felony.

History.--s. 1, ch. 72-35.

768.20  Parties.--The action shall be brought by the decedent's personal representative, who shall recover for the benefit of the decedent's survivors and estate all damages, as specified in this act, caused by the injury resulting in death. When a personal injury to the decedent results in death, no action for the personal injury shall survive, and any such action pending at the time of death shall abate. The wrongdoer's personal representative shall be the defendant if the wrongdoer dies before or pending the action. A defense that would bar or reduce a survivor's recovery if she or he were the plaintiff may be asserted against the survivor, but shall not affect the recovery of any other survivor.

History.--s. 1, ch. 72-35; s. 1168, ch. 97-102.

768.21  Damages.--All potential beneficiaries of a recovery for wrongful death, including the decedent's estate, shall be identified in the complaint, and their relationships to the decedent shall be alleged. Damages may be awarded as follows:

(1)  Each survivor may recover the value of lost support and services from the date of the decedent's injury to her or his death, with interest, and future loss of support and services from the date of death and reduced to present value. In evaluating loss of support and services, the survivor's relationship to the decedent, the amount of the decedent's probable net income available for distribution to the particular survivor, and the replacement value of the decedent's services to the survivor may be considered. In computing the duration of future losses, the joint life expectancies of the survivor and the decedent and the period of minority, in the case of healthy minor children, may be considered.

(2)  The surviving spouse may also recover for loss of the decedent's companionship and protection and for mental pain and suffering from the date of injury.

(3)  Minor children of the decedent, and all children of the decedent if there is no surviving spouse, may also recover for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury. For the purposes of this subsection, if both spouses die within 30 days of one another as a result of the same wrongful act or series of acts arising out of the same incident, each spouse is considered to have been predeceased by the other.

(4)  Each parent of a deceased minor child may also recover for mental pain and suffering from the date of injury. Each parent of an adult child may also recover for mental pain and suffering if there are no other survivors.

(5)  Medical or funeral expenses due to the decedent's injury or death may be recovered by a survivor who has paid them.

(6)  The decedent's personal representative may recover for the decedent's estate the following:

(a)  Loss of earnings of the deceased from the date of injury to the date of death, less lost support of survivors excluding contributions in kind, with interest. Loss of the prospective net accumulations of an estate, which might reasonably have been expected but for the wrongful death, reduced to present money value, may also be recovered:

1.  If the decedent's survivors include a surviving spouse or lineal descendants; or

2.  If the decedent is not a minor child as defined in s. 768.18(2), there are no lost support and services recoverable under subsection (1), and there is a surviving parent.

(b)  Medical or funeral expenses due to the decedent's injury or death that have become a charge against her or his estate or that were paid by or on behalf of decedent, excluding amounts recoverable under subsection (5).

(c)  Evidence of remarriage of the decedent's spouse is admissible.

(7)  All awards for the decedent's estate are subject to the claims of creditors who have complied with the requirements of probate law concerning claims.

(8)  The damages specified in subsection (3) shall not be recoverable by adult children and the damages specified in subsection (4) shall not be recoverable by parents of an adult child with respect to claims for medical negligence as defined by s. 766.106(1).

History.--s. 1, ch. 72-35; s. 2, ch. 81-183; s. 1, ch. 85-260; s. 2, ch. 90-14; s. 1169, ch. 97-102; s. 1, ch. 2002-44; s. 66, ch. 2003-416.

768.22  Form of verdict.--The amounts awarded to each survivor and to the estate shall be stated separately in the verdict.

History.--s. 1, ch. 72-35.

768.23  Protection of minors and incompetents.--The court shall provide protection for any amount awarded for the benefit of a minor child or an incompetent pursuant to the Florida Guardianship Law.

History.--s. 1, ch. 72-35.

768.24  Death of a survivor before judgment.--A survivor's death before final judgment shall limit the survivor's recovery to lost support and services to the date of his or her death. The personal representative shall pay the amount recovered to the personal representative of the deceased survivor.

History.--s. 1, ch. 72-35; s. 1170, ch. 97-102.

768.25  Court approval of settlements.--While an action under this act is pending, no settlement as to amount or apportionment among the beneficiaries which is objected to by any survivor or which affects a survivor who is a minor or an incompetent shall be effective unless approved by the court.

History.--s. 1, ch. 72-35.

768.26  Litigation expenses.--Attorneys' fees and other expenses of litigation shall be paid by the personal representative and deducted from the awards to the survivors and the estate in proportion to the amounts awarded to them, but expenses incurred for the benefit of a particular survivor or the estate shall be paid from their awards.

History.--s. 1, ch. 72-35.

768.28  Waiver of sovereign immunity in tort actions; recovery limits; limitation on attorney fees; statute of limitations; exclusions; indemnification; risk management programs.--

(1)  In accordance with s. 13, Art. X of the State Constitution, the state, for itself and for its agencies or subdivisions, hereby waives sovereign immunity for liability for torts, but only to the extent specified in this act. Actions at law against the state or any of its agencies or subdivisions to recover damages in tort for money damages against the state or its agencies or subdivisions for injury or loss of property, personal injury, or death caused by the negligent or wrongful act or omission of any employee of the agency or subdivision while acting within the scope of the employee's office or employment under circumstances in which the state or such agency or subdivision, if a private person, would be liable to the claimant, in accordance with the general laws of this state, may be prosecuted subject to the limitations specified in this act. Any such action may be brought in the county where the property in litigation is located or, if the affected agency or subdivision has an office in such county for the transaction of its customary business, where the cause of action accrued. However, any such action against a state university board of trustees shall be brought in the county in which that university's main campus is located or in the county in which the cause of action accrued if the university maintains therein a substantial presence for the transaction of its customary business.

(2)  As used in this act, "state agencies or subdivisions" include the executive departments, the Legislature, the judicial branch (including public defenders), and the independent establishments of the state, including state university boards of trustees; counties and municipalities; and corporations primarily acting as instrumentalities or agencies of the state, counties, or municipalities, including the Florida Space Authority.

(3)  Except for a municipality and the Florida Space Authority, the affected agency or subdivision may, at its discretion, request the assistance of the Department of Financial Services in the consideration, adjustment, and settlement of any claim under this act.

(4)  Subject to the provisions of this section, any state agency or subdivision shall have the right to appeal any award, compromise, settlement, or determination to the court of appropriate jurisdiction.

(5)  The state and its agencies and subdivisions shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances, but liability shall not include punitive damages or interest for the period before judgment. Neither the state nor its agencies or subdivisions shall be liable to pay a claim or a judgment by any one person which exceeds the sum of $100,000 or any claim or judgment, or portions thereof, which, when totaled with all other claims or judgments paid by the state or its agencies or subdivisions arising out of the same incident or occurrence, exceeds the sum of $200,000. However, a judgment or judgments may be claimed and rendered in excess of these amounts and may be settled and paid pursuant to this act up to $100,000 or $200,000, as the case may be; and that portion of the judgment that exceeds these amounts may be reported to the Legislature, but may be paid in part or in whole only by further act of the Legislature. Notwithstanding the limited waiver of sovereign immunity provided herein, the state or an agency or subdivision thereof may agree, within the limits of insurance coverage provided, to settle a claim made or a judgment rendered against it without further action by the Legislature, but the state or agency or subdivision thereof shall not be deemed to have waived any defense of sovereign immunity or to have increased the limits of its liability as a result of its obtaining insurance coverage for tortious acts in excess of the $100,000 or $200,000 waiver provided above. The limitations of liability set forth in this subsection shall apply to the state and its agencies and subdivisions whether or not the state or its agencies or subdivisions possessed sovereign immunity before July 1, 1974.

(6)(a)  An action may not be instituted on a claim against the state or one of its agencies or subdivisions unless the claimant presents the claim in writing to the appropriate agency, and also, except as to any claim against a municipality or the Florida Space Authority, presents such claim in writing to the Department of Financial Services, within 3 years after such claim accrues and the Department of Financial Services or the appropriate agency denies the claim in writing; except that, if such claim is for contribution pursuant to s. 768.31, it must be so presented within 6 months after the judgment against the tortfeasor seeking contribution has become final by lapse of time for appeal or after appellate review or, if there is no such judgment, within 6 months after the tortfeasor seeking contribution has either discharged the common liability by payment or agreed, while the action is pending against her or him, to discharge the common liability.

(b)  For purposes of this section, the requirements of notice to the agency and denial of the claim pursuant to paragraph (a) are conditions precedent to maintaining an action but shall not be deemed to be elements of the cause of action and shall not affect the date on which the cause of action accrues.

(c)  The claimant shall also provide to the agency the claimant's date and place of birth and social security number if the claimant is an individual, or a federal identification number if the claimant is not an individual. The claimant shall also state the case style, tribunal, the nature and amount of all adjudicated penalties, fines, fees, victim restitution fund, and other judgments in excess of $200, whether imposed by a civil, criminal, or administrative tribunal, owed by the claimant to the state, its agency, officer or subdivision. If there exists no prior adjudicated unpaid claim in excess of $200, the claimant shall so state.

(d)  For purposes of this section, complete, accurate, and timely compliance with the requirements of paragraph (c) shall occur prior to settlement payment, close of discovery or commencement of trial, whichever is sooner; provided the ability to plead setoff is not precluded by the delay. This setoff shall apply only against that part of the settlement or judgment payable to the claimant, minus claimant's reasonable attorney's fees and costs. Incomplete or inaccurate disclosure of unpaid adjudicated claims due the state, its agency, officer, or subdivision, may be excused by the court upon a showing by the preponderance of the evidence of the claimant's lack of knowledge of an adjudicated claim and reasonable inquiry by, or on behalf of, the claimant to obtain the information from public records. Unless the appropriate agency had actual notice of the information required to be disclosed by paragraph (c) in time to assert a setoff, an unexcused failure to disclose shall, upon hearing and order of court, cause the claimant to be liable for double the original undisclosed judgment and, upon further motion, the court shall enter judgment for the agency in that amount. The failure of the Department of Financial Services or the appropriate agency to make final disposition of a claim within 6 months after it is filed shall be deemed a final denial of the claim for purposes of this section. For purposes of this subsection, in medical malpractice actions, the failure of the Department of Financial Services or the appropriate agency to make final disposition of a claim within 90 days after it is filed shall be deemed a final denial of the claim. The provisions of this subsection do not apply to such claims as may be asserted by counterclaim pursuant to s. 768.14.

(7)  In actions brought pursuant to this section, process shall be served upon the head of the agency concerned and also, except as to a defendant municipality or the Florida Space Authority, upon the Department of Financial Services; and the department or the agency concerned shall have 30 days within which to plead thereto.

(8)  No attorney may charge, demand, receive, or collect, for services rendered, fees in excess of 25 percent of any judgment or settlement.

(9)(a)  No officer, employee, or agent of the state or of any of its subdivisions shall be held personally liable in tort or named as a party defendant in any action for any injury or damage suffered as a result of any act, event, or omission of action in the scope of her or his employment or function, unless such officer, employee, or agent acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. However, such officer, employee, or agent shall be considered an adverse witness in a tort action for any injury or damage suffered as a result of any act, event, or omission of action in the scope of her or his employment or function. The exclusive remedy for injury or damage suffered as a result of an act, event, or omission of an officer, employee, or agent of the state or any of its subdivisions or constitutional officers shall be by action against the governmental entity, or the head of such entity in her or his official capacity, or the constitutional officer of which the officer, employee, or agent is an employee, unless such act or omission was committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. The state or its subdivisions shall not be liable in tort for the acts or omissions of an officer, employee, or agent committed while acting outside the course and scope of her or his employment or committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.

(b)  As used in this subsection, the term:

1.  "Employee" includes any volunteer firefighter.

2.  "Officer, employee, or agent" includes, but is not limited to, any health care provider when providing services pursuant to s. 766.1115, any member of the Florida Health Services Corps, as defined in s. 381.0302, who provides uncompensated care to medically indigent persons referred by the Department of Health, and any public defender or her or his employee or agent, including, among others, an assistant public defender and an investigator.

(c)  For purposes of the waiver of sovereign immunity only, a member of the Florida National Guard is not acting within the scope of state employment when performing duty under the provisions of Title 10 or Title 32 of the United States Code or other applicable federal law; and neither the state nor any individual may be named in any action under this chapter arising from the performance of such federal duty.

(10)(a)  Health care providers or vendors, or any of their employees or agents, that have contractually agreed to act as agents of the Department of Corrections to provide health care services to inmates of the state correctional system shall be considered agents of the State of Florida, Department of Corrections, for the purposes of this section, while acting within the scope of and pursuant to guidelines established in said contract or by rule. The contracts shall provide for the indemnification of the state by the agent for any liabilities incurred up to the limits set out in this chapter.

(b)  This subsection shall not be construed as designating persons providing contracted health care services to inmates as employees or agents of the state for the purposes of chapter 440.

(c)  For purposes of this section, regional poison control centers created in accordance with s. 395.1027 and coordinated and supervised under the Division of Children's Medical Services Prevention and Intervention of the Department of Health, or any of their employees or agents, shall be considered agents of the State of Florida, Department of Health. Any contracts with poison control centers must provide, to the extent permitted by law, for the indemnification of the state by the agency for any liabilities incurred up to the limits set out in this chapter.

(d)  For the purposes of this section, operators, dispatchers, and providers of security for rail services and rail facility maintenance providers in the South Florida Rail Corridor, or any of their employees or agents, performing such services under contract with and on behalf of the South Florida Regional Transportation Authority or the Department of Transportation shall be considered agents of the state while acting within the scope of and pursuant to guidelines established in said contract or by rule.

(e)  For purposes of this section, a professional firm that provides monitoring and inspection services of the work required for state roadway, bridge, or other transportation facility construction projects, or any of the firm's employees performing such services, shall be considered agents of the Department of Transportation while acting within the scope of the firm's contract with the Department of Transportation to ensure that the project is constructed in conformity with the project's plans, specifications, and contract provisions. Any contract between the professional firm and the state, to the extent permitted by law, shall provide for the indemnification of the department for any liability, including reasonable attorney's fees, incurred up to the limits set out in this chapter to the extent caused by the negligence of the firm or its employees. This paragraph shall not be construed as designating persons who provide monitoring and inspection services as employees or agents of the state for purposes of chapter 440. This paragraph is not applicable to the professional firm or its employees if involved in an accident while operating a motor vehicle. This paragraph is not applicable to a firm engaged by the Department of Transportation for the design or construction of a state roadway, bridge, or other transportation facility construction project or to its employees, agents, or subcontractors.

(11)(a)  Providers or vendors, or any of their employees or agents, that have contractually agreed to act on behalf of the state as agents of the Department of Juvenile Justice to provide services to children in need of services, families in need of services, or juvenile offenders are, solely with respect to such services, agents of the state for purposes of this section while acting within the scope of and pursuant to guidelines established in the contract or by rule. A contract must provide for the indemnification of the state by the agent for any liabilities incurred up to the limits set out in this chapter.

(b)  This subsection does not designate a person who provides contracted services to juvenile offenders as an employee or agent of the state for purposes of chapter 440.

(12)(a)  A health care practitioner, as defined in s. 456.001(4), who has contractually agreed to act as an agent of a state university board of trustees to provide medical services to a student athlete for participation in or as a result of intercollegiate athletics, to include team practices, training, and competitions, shall be considered an agent of the respective state university board of trustees, for the purposes of this section, while acting within the scope of and pursuant to guidelines established in that contract. The contracts shall provide for the indemnification of the state by the agent for any liabilities incurred up to the limits set out in this chapter.

(b)  This subsection shall not be construed as designating persons providing contracted health care services to athletes as employees or agents of a state university board of trustees for the purposes of chapter 440.

(13)  Laws allowing the state or its agencies or subdivisions to buy insurance are still in force and effect and are not restricted in any way by the terms of this act.

(14)  Every claim against the state or one of its agencies or subdivisions for damages for a negligent or wrongful act or omission pursuant to this section shall be forever barred unless the civil action is commenced by filing a complaint in the court of appropriate jurisdiction within 4 years after such claim accrues; except that an action for contribution must be commenced within the limitations provided in s. 768.31(4), and an action for damages arising from medical malpractice must be commenced within the limitations for such an action in s. 95.11(4).

(15)  No action may be brought against the state or any of its agencies or subdivisions by anyone who unlawfully participates in a riot, unlawful assembly, public demonstration, mob violence, or civil disobedience if the claim arises out of such riot, unlawful assembly, public demonstration, mob violence, or civil disobedience. Nothing in this act shall abridge traditional immunities pertaining to statements made in court.

(16)(a)  The state and its agencies and subdivisions are authorized to be self-insured, to enter into risk management programs, or to purchase liability insurance for whatever coverage they may choose, or to have any combination thereof, in anticipation of any claim, judgment, and claims bill which they may be liable to pay pursuant to this section. Agencies or subdivisions, and sheriffs, that are subject to homogeneous risks may purchase insurance jointly or may join together as self-insurers to provide other means of protection against tort claims, any charter provisions or laws to the contrary notwithstanding.

(b)  Claims files maintained by any risk management program administered by the state, its agencies, and its subdivisions are confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution until termination of all litigation and settlement of all claims arising out of the same incident, although portions of the claims files may remain exempt, as otherwise provided by law. Claims files records may be released to other governmental agencies upon written request and demonstration of need; such records held by the receiving agency remain confidential and exempt as provided for in this paragraph.

(c)  Portions of meetings and proceedings conducted pursuant to any risk management program administered by the state, its agencies, or its subdivisions, which relate solely to the evaluation of claims filed with the risk management program or which relate solely to offers of compromise of claims filed with the risk management program are exempt from the provisions of s. 286.011 and s. 24(b), Art. I of the State Constitution. Until termination of all litigation and settlement of all claims arising out of the same incident, persons privy to discussions pertinent to the evaluation of a filed claim shall not be subject to subpoena in any administrative or civil proceeding with regard to the content of those discussions.

(d)  Minutes of the meetings and proceedings of any risk management program administered by the state, its agencies, or its subdivisions, which relate solely to the evaluation of claims filed with the risk management program or which relate solely to offers of compromise of claims filed with the risk management program are exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution until termination of all litigation and settlement of all claims arising out of the same incident.

(17)  This section, as amended by chapter 81-317, Laws of Florida, shall apply only to causes of actions which accrue on or after October 1, 1981.

(18)  No provision of this section, or of any other section of the Florida Statutes, whether read separately or in conjunction with any other provision, shall be construed to waive the immunity of the state or any of its agencies from suit in federal court, as such immunity is guaranteed by the Eleventh Amendment to the Constitution of the United States, unless such waiver is explicitly and definitely stated to be a waiver of the immunity of the state and its agencies from suit in federal court. This subsection shall not be construed to mean that the state has at any time previously waived, by implication, its immunity, or that of any of its agencies, from suit in federal court through any statute in existence prior to June 24, 1984.

(19)  Neither the state nor any agency or subdivision of the state waives any defense of sovereign immunity, or increases the limits of its liability, upon entering into a contractual relationship with another agency or subdivision of the state. Such a contract must not contain any provision that requires one party to indemnify or insure the other party for the other party's negligence or to assume any liability for the other party's negligence. This does not preclude a party from requiring a nongovernmental entity to provide such indemnification or insurance. The restrictions of this subsection do not prevent a regional water supply authority from indemnifying and assuming the liabilities of its member governments for obligations arising from past acts or omissions at or with property acquired from a member government by the authority and arising from the acts or omissions of the authority in performing activities contemplated by an interlocal agreement. Such indemnification may not be considered to increase or otherwise waive the limits of liability to third-party claimants established by this section.

(20)  Every municipality, and any agency thereof, is authorized to undertake to indemnify those employees that are exposed to personal liability pursuant to the Clean Air Act Amendments of 1990, 42 U.S.C.A. ss. 7401 et seq., and all rules and regulations adopted to implement that act, for acts performed within the course and scope of their employment with the municipality or its agency, including but not limited to indemnification pertaining to the holding, transfer, or disposition of allowances allocated to the municipality's or its agency's electric generating units, and the monitoring, submission, certification, and compliance with permits, permit applications, records, compliance plans, and reports for those units, when such acts are performed within the course and scope of their employment with the municipality or its agency. The authority to indemnify under this section covers every act by an employee when such act is performed within the course and scope of her or his employment with the municipality or its agency, but does not cover any act of willful misconduct or any intentional or knowing violation of any law by the employee. The authority to indemnify under this section includes, but is not limited to, the authority to pay any fine and provide legal representation in any action.

History.--s. 1, ch. 73-313; s. 1, ch. 74-235; ss. 1, 2, 3, ch. 77-86; s. 9, ch. 79-139; s. 1, ch. 79-253; s. 284, ch. 79-400; s. 1, ch. 80-271; ss. 1, 2, ch. 81-317; s. 1, ch. 83-44; s. 1, ch. 83-257; s. 1, ch. 84-29; s. 1, ch. 84-335; s. 21, ch. 86-183; s. 1, ch. 86-184; s. 3, ch. 87-134; s. 2, ch. 88-173; ss. 55, 61, ch. 89-300; s. 92, ch. 89-360; s. 8, ch. 90-192; s. 3, ch. 91-209; s. 112, ch. 92-33; ss. 2, 11, ch. 92-278; s. 1, ch. 93-89; s. 34, ch. 93-129; s. 1, ch. 94-76; s. 2, ch. 94-147; s. 70, ch. 94-209; s. 21, ch. 94-321; s. 428, ch. 96-406; s. 34, ch. 97-93; s. 1809, ch. 97-102; s. 4, ch. 98-402; s. 289, ch. 99-8; s. 9, ch. 2000-155; s. 97, ch. 2002-20; s. 24, ch. 2002-183; s. 2, ch. 2002-401; s. 9, ch. 2003-159; s. 1903, ch. 2003-261; s. 1, ch. 2003-290; s. 67, ch. 2003-416.

768.295  Strategic Lawsuits Against Public Participation (SLAPP) suits by governmental entities prohibited.--

(1)  This section may be cited as the "Citizen Participation in Government Act."

(2)  It is the intent of the Legislature to protect the right of Florida's citizens to exercise their rights to peacefully assemble, instruct their representatives, and petition for redress of grievances before the various governmental entities of this state as protected by the First Amendment to the United States Constitution and s. 5, Art. I of the State Constitution. The Legislature recognizes that "Strategic Lawsuits Against Public Participation" or "SLAPP" suits, as they are typically called, have increased over the last 30 years and are mostly filed by private industry and individuals. However, it is the public policy of this state that government entities not engage in SLAPP suits because such actions are inconsistent with the right of individuals to participate in the state's institutions of government. Therefore, the Legislature finds and declares that prohibiting such lawsuits by governmental entities will preserve this fundamental state policy, preserve the constitutional rights of Florida citizens, and assure the continuation of representative government in this state. It is the intent of the Legislature that such lawsuits be expeditiously disposed of by the courts.

(3)  As used in this section, "governmental entity" or "government entity" means the state, including the executive, legislative, and the judicial branches of government and the independent establishments of the state, counties, municipalities, corporations primarily acting as instrumentalities of the state, counties, or municipalities, districts, authorities, boards, commissions, or any agencies thereof.

(4)  No governmental entity in this state shall file or cause to be filed, through its employees or agents, any lawsuit, cause of action, claim, cross-claim, or counterclaim against a person or entity without merit and solely because such person or entity has exercised the right to peacefully assemble, the right to instruct representatives, and the right to petition for redress of grievances before the various governmental entities of this state, as protected by the First Amendment to the United States Constitution and s. 5, Art. I of the State Constitution.

(5)  A person or entity sued by a governmental entity in violation of this section has a right to an expeditious resolution of a claim that the suit is in violation of this section. A person or entity may petition the court for an order dismissing the action or granting final judgment in favor of that person or entity. The petitioner may file a motion for summary judgment, together with supplemental affidavits, seeking a determination that the governmental entity's lawsuit has been brought in violation of this section. The governmental entity shall thereafter file its response and any supplemental affidavits. As soon as practicable, the court shall set a hearing on the petitioner's motion, which shall be held at the earliest possible time after the filing of the governmental entity's response. The court may award, subject to the limitations in s. 768.28, the party sued by a governmental entity actual damages arising from the governmental entity's violation of this act. The court shall award the prevailing party reasonable attorney's fees and costs incurred in connection with a claim that an action was filed in violation of this section.

(6)  In any case filed by a governmental entity which is found by a court to be in violation of this section, the governmental entity shall report such finding and provide a copy of the court's order to the Attorney General no later than 30 days after such order is final. The Attorney General shall report any violation of this section by a governmental entity to the Cabinet, the President of the Senate, and the Speaker of the House of Representatives. A copy of such report shall be provided to the affected governmental entity.

History.--s. 1, ch. 2000-174.

768.31  Contribution among tortfeasors.--

(1)  SHORT TITLE.--This act shall be cited as the "Uniform Contribution Among Tortfeasors Act."

(2)  RIGHT TO CONTRIBUTION.--

(a)  Except as otherwise provided in this act, when two or more persons become jointly or severally liable in tort for the same injury to person or property, or for the same wrongful death, there is a right of contribution among them even though judgment has not been recovered against all or any of them.

(b)  The right of contribution exists only in favor of a tortfeasor who has paid more than her or his pro rata share of the common liability, and the tortfeasor's total recovery is limited to the amount paid by her or him in excess of her or his pro rata share. No tortfeasor is compelled to make contribution beyond her or his own pro rata share of the entire liability.

(c)  There is no right of contribution in favor of any tortfeasor who has intentionally (willfully or wantonly) caused or contributed to the injury or wrongful death.

(d)  A tortfeasor who enters into a settlement with a claimant is not entitled to recover contribution from another tortfeasor whose liability for the injury or wrongful death is not extinguished by the settlement or in respect to any amount paid in a settlement which is in excess of what was reasonable.

(e)  A liability insurer who by payment has discharged in full or in part the liability of a tortfeasor and has thereby discharged in full its obligation as insurer is subrogated to the tortfeasor's right of contribution to the extent of the amount it has paid in excess of the tortfeasor's pro rata share of the common liability. This provision does not limit or impair any right of subrogation arising from any other relationship.

(f)  This act does not impair any right of indemnity under existing law. When one tortfeasor is entitled to indemnity from another, the right of the indemnity obligee is for indemnity and not contribution, and the indemnity obligor is not entitled to contribution from the obligee for any portion of her or his indemnity obligation.

(g)  This act shall not apply to breaches of trust or of other fiduciary obligation.

(3)  PRO RATA SHARES.--In determining the pro rata shares of tortfeasors in the entire liability:

(a)  Their relative degrees of fault shall be the basis for allocation of liability.

(b)  If equity requires, the collective liability of some as a group shall constitute a single share.

(c)  Principles of equity applicable to contribution generally shall apply.

(4)  ENFORCEMENT.--

(a)  Whether or not judgment has been entered in an action against two or more tortfeasors for the same injury or wrongful death, contribution may be enforced by separate action.

(b)  When a judgment has been entered in an action against two or more tortfeasors for the same injury or wrongful death, contribution may be enforced in that action by judgment in favor of one against other judgment defendants, by motion upon notice to all parties to the action.

(c)  If there is a judgment for the injury or wrongful death against the tortfeasor seeking contribution, any separate action by her or him to enforce contribution must be commenced within 1 year after the judgment has become final by lapse of time for appeal or after appellate review.

(d)  If there is no judgment for the injury or wrongful death against the tortfeasor seeking contribution, the tortfeasor's right of contribution is barred unless she or he has either:

1.  Discharged by payment the common liability within the statute of limitations period applicable to claimant's right of action against her or him and has commenced her or his action for contribution within 1 year after payment, or

2.  Agreed, while action is pending against her or him, to discharge the common liability and has within 1 year after the agreement paid the liability and commenced her or his action for contribution.

(e)  The recovery of a judgment for an injury or wrongful death against one tortfeasor does not of itself discharge the other tortfeasors from liability for the injury or wrongful death unless the judgment is satisfied. The satisfaction of the judgment does not impair any right of contribution.

(f)  The judgment of the court in determining the liability of the several defendants to the claimant for an injury or wrongful death shall be binding as among such defendants in determining their right to contribution.

(5)  RELEASE OR COVENANT NOT TO SUE.--When a release or a covenant not to sue or not to enforce judgment is given in good faith to one of two or more persons liable in tort for the same injury or the same wrongful death:

(a)  It does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms so provide, but it reduces the claim against the others to the extent of any amount stipulated by the release or the covenant, or in the amount of the consideration paid for it, whichever is the greater; and,

(b)  It discharges the tortfeasor to whom it is given from all liability for contribution to any other tortfeasor.

(6)  UNIFORMITY OF INTERPRETATION.--This act shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states that enact it.

(7)  PENDING CAUSES OF ACTION.--This act shall apply to all causes of action pending on June 12, 1975, wherein the rights of contribution among joint tortfeasors is involved and to cases thereafter filed.

History.--ss. 1, 4, ch. 75-108; s. 1, ch. 76-186; s. 1171, ch. 97-102.

768.35  Continuing domestic violence.--

(1)  A victim of domestic violence, as defined in s. 741.28, who has suffered repeated physical or psychological injuries over an extended period of time, as a result of continuing domestic violence, has a cause of action against the perpetrator responsible for the violence.

(2)  The action may be brought in any court of competent jurisdiction to recover compensatory and punitive damages against the perpetrator causing the continued domestic violence. No plaintiff however, may recover twice for the same incident which gives rise to the cause of action.

(3)  Actions for recovery under this section must be commenced within 4 years. The time within which an action for recovery under this section must be begun runs from the time the last incident of domestic violence occurs.

(4)  Notwithstanding any other provision of law, punitive damages awarded in any civil tort action involving domestic violence as defined in s. 741.28 shall not be governed by the provisions of s. 768.73. The state hereby waives its right to collect any punitive damages from any victim of domestic violence not collected as of the effective date of this act.

History.--s. 9, ch. 95-182; s. 37, ch. 95-184.

768.36  Alcohol or drug defense.--

(1)  As used in this section, the term:

(a)  "Alcoholic beverage" means distilled spirits and any beverage that contains 0.5 percent or more alcohol by volume as determined in accordance with s. 561.01(4)(b).

(b)  "Drug" means any chemical substance set forth in s. 877.111 or any substance controlled under chapter 893. The term does not include any drug or medication obtained pursuant to a prescription as defined in s. 893.02 which was taken in accordance with the prescription, or any medication that is authorized under state or federal law for general distribution and use without a prescription in treating human diseases, ailments, or injuries and that was taken in the recommended dosage.

(2)  In any civil action, a plaintiff may not recover any damages for loss or injury to his or her person or property if the trier of fact finds that, at the time the plaintiff was injured:

(a)  The plaintiff was under the influence of any alcoholic beverage or drug to the extent that the plaintiff's normal faculties were impaired or the plaintiff had a blood or breath alcohol level of 0.08 percent or higher; and

(b)  As a result of the influence of such alcoholic beverage or drug the plaintiff was more than 50 percent at fault for his or her own harm.

History.--s. 20, ch. 99-225.

¹768.37  Limitation on civil liability arising from long-term consumption of food and nonalcoholic beverages.--No manufacturer, distributor, or seller of foods or nonalcoholic beverages intended for human consumption shall be subject to civil liability for personal injury or wrongful death to the extent such liability is premised upon a person's weight gain or obesity, or a health condition related to weight gain or obesity, resulting from the person's long-term consumption of such foods or nonalcoholic beverages. For purposes of this section, the term "long-term" means the cumulative effect of multiple instances over a period of time and not the effect of a single or isolated instance. Such limitation on civil liability shall not bar a claim for damages if otherwise available under any other provision of law against a manufacturer, distributor, or seller of foods or nonalcoholic beverages if such manufacturer, distributor, or seller has failed to provide nutritional content information as required by any applicable state or federal statute or regulation, or has provided materially false or misleading information to the public.

History.--s. 1, ch. 2004-88.

¹Note.--Section 2, ch. 2004-88, provides that "[t]his act shall take effect [May 21, 2004] and shall apply to all claims filed on or after the effective date."

768.71  Applicability; conflicts.

768.72  Pleading in civil actions; claim for punitive damages.

768.725  Punitive damages; burden of proof.

768.73  Punitive damages; limitation.

768.733  Bonds in class actions; limitations.

768.735  Punitive damages; exceptions; limitation.

768.736  Punitive damages; exceptions for intoxication.

768.737  Punitive damages; application in arbitration.

768.74  Remittitur and additur.

768.75  Optional settlement conference in certain tort actions.

768.76  Collateral sources of indemnity.

768.77  Itemized verdict.

768.78  Alternative methods of payment of damage awards.

768.79  Offer of judgment and demand for judgment.

768.81  Comparative fault.

768.71  Applicability; conflicts.--

(1)  Except as otherwise specifically provided, this part applies to any action for damages, whether in tort or in contract.

(2)  This part applies only to causes of action arising on or after July 1, 1986, and does not apply to any cause of action arising before that date.

(3)  If a provision of this part is in conflict with any other provision of the Florida Statutes, such other provision shall apply.

History.--s. 50, ch. 86-160.

768.72  Pleading in civil actions; claim for punitive damages.--

(1)  In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages. The claimant may move to amend her or his complaint to assert a claim for punitive damages as allowed by the rules of civil procedure. The rules of civil procedure shall be liberally construed so as to allow the claimant discovery of evidence which appears reasonably calculated to lead to admissible evidence on the issue of punitive damages. No discovery of financial worth shall proceed until after the pleading concerning punitive damages is permitted.

(2)  A defendant may be held liable for punitive damages only if the trier of fact, based on clear and convincing evidence, finds that the defendant was personally guilty of intentional misconduct or gross negligence. As used in this section, the term:

(a)  "Intentional misconduct" means that the defendant had actual knowledge of the wrongfulness of the conduct and the high probability that injury or damage to the claimant would result and, despite that knowledge, intentionally pursued that course of conduct, resulting in injury or damage.

(b)  "Gross negligence" means that the defendant's conduct was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct.

(3)  In the case of an employer, principal, corporation, or other legal entity, punitive damages may be imposed for the conduct of an employee or agent only if the conduct of the employee or agent meets the criteria specified in subsection (2) and:

(a)  The employer, principal, corporation, or other legal entity actively and knowingly participated in such conduct;

(b)  The officers, directors, or managers of the employer, principal, corporation, or other legal entity knowingly condoned, ratified, or consented to such conduct; or

(c)  The employer, principal, corporation, or other legal entity engaged in conduct that constituted gross negligence and that contributed to the loss, damages, or injury suffered by the claimant.

(4)  The provisions of this section shall be applied to all causes of action arising after the effective date of this act.

History.--s. 51, ch. 86-160; s. 1172, ch. 97-102; s. 22, ch. 99-225.

768.725  Punitive damages; burden of proof.--In all civil actions, the plaintiff must establish at trial, by clear and convincing evidence, its entitlement to an award of punitive damages. The "greater weight of the evidence" burden of proof applies to a determination of the amount of damages.

History.--s. 21, ch. 99-225.

768.73  Punitive damages; limitation.--

(1)(a)  Except as provided in paragraphs (b) and (c), an award of punitive damages may not exceed the greater of:

1.  Three times the amount of compensatory damages awarded to each claimant entitled thereto, consistent with the remaining provisions of this section; or

2.  The sum of $500,000.

(b)  Where the fact finder determines that the wrongful conduct proven under this section was motivated solely by unreasonable financial gain and determines that the unreasonably dangerous nature of the conduct, together with the high likelihood of injury resulting from the conduct, was actually known by the managing agent, director, officer, or other person responsible for making policy decisions on behalf of the defendant, it may award an amount of punitive damages not to exceed the greater of:

1.  Four times the amount of compensatory damages awarded to each claimant entitled thereto, consistent with the remaining provisions of this section; or

2.  The sum of $2 million.

(c)  Where the fact finder determines that at the time of injury the defendant had a specific intent to harm the claimant and determines that the defendant's conduct did in fact harm the claimant, there shall be no cap on punitive damages.

(d)  This subsection is not intended to prohibit an appropriate court from exercising its jurisdiction under s. 768.74 in determining the reasonableness of an award of punitive damages that is less than three times the amount of compensatory damages.

(2)(a)  Except as provided in paragraph (b), punitive damages may not be awarded against a defendant in a civil action if that defendant establishes, before trial, that punitive damages have previously been awarded against that defendant in any state or federal court in any action alleging harm from the same act or single course of conduct for which the claimant seeks compensatory damages. For purposes of a civil action, the term "the same act or single course of conduct" includes acts resulting in the same manufacturing defects, acts resulting in the same defects in design, or failure to warn of the same hazards, with respect to similar units of a product.

(b)  In subsequent civil actions involving the same act or single course of conduct for which punitive damages have already been awarded, if the court determines by clear and convincing evidence that the amount of prior punitive damages awarded was insufficient to punish that defendant's behavior, the court may permit a jury to consider an award of subsequent punitive damages. In permitting a jury to consider awarding subsequent punitive damages, the court shall make specific findings of fact in the record to support its conclusion. In addition, the court may consider whether the defendant's act or course of conduct has ceased. Any subsequent punitive damage awards must be reduced by the amount of any earlier punitive damage awards rendered in state or federal court.

(3)  The claimant attorney's fees, if payable from the judgment, are, to the extent that the fees are based on the punitive damages, calculated based on the final judgment for punitive damages. This subsection does not limit the payment of attorney's fees based upon an award of damages other than punitive damages.

(4)  The jury may neither be instructed nor informed as to the provisions of this section.

(5)  The provisions of this section shall be applied to all causes of action arising after the effective date of this act.

History.--ss. 52, 65, ch. 86-160; s. 1, ch. 87-42; s. 5, ch. 87-50; s. 1, ch. 88-335; s. 71, ch. 91-282; ss. 2, 3, ch. 92-85; s. 16, ch. 97-94; s. 23, ch. 99-225.

768.733  Bonds in class actions; limitations.--

(1)  In any civil action that is brought as a certified class action, the trial court, upon the posting of a bond or equivalent surety as provided in this section, shall stay the execution of any judgment, or portion thereof, entered on account of punitive damages pending completion of any appellate review of the judgment.

(2)  The required bond or equivalent surety acceptable to the court for imposition of the stay shall be the lower of:

(a)  The amount of the punitive-damages judgment, plus twice the statutory rate of interest; or

(b)  Ten percent of the net worth of the defendant as determined by applying generally accepted accounting principles to the defendant's financial status as of December 31 of the year prior to the judgment for punitive damages;

provided that in no case shall the amount of the required bond or equivalent surety exceed $100 million, regardless of the amount of punitive damages.

(3)  If, at any time after notice and hearing, the court finds that a defendant who has posted a bond or equivalent surety pursuant to subsection (2) is purposefully moving assets with the intent to avoid the punitive-damages judgment, the court shall increase the bond or equivalent surety to the amount determined pursuant to paragraph (2)(a). If the defendant does not post the additional bond required by the court, the stay shall be revoked.

History.--s. 4, ch. 2000-128.

768.735  Punitive damages; exceptions; limitation.--

(1)  Sections 768.72(2)-(4), 768.725, and 768.73 do not apply to any civil action based upon child abuse, abuse of the elderly under chapter 415, or abuse of the developmentally disabled. Such actions are governed by applicable statutes and controlling judicial precedent. This section does not apply to claims brought pursuant to s. 400.023 or s. 400.429.

(2)(a)  In any civil action based upon child abuse, abuse of the elderly under chapter 415, or abuse of the developmentally disabled, and involving the award of punitive damages, the judgment for the total amount of punitive damages awarded to a claimant may not exceed three times the amount of compensatory damages awarded to each person entitled thereto by the trier of fact, except as provided in paragraph (b). This subsection does not apply to any class action.

(b)  If any award for punitive damages exceeds the limitation specified in paragraph (a), the award is presumed to be excessive and the defendant is entitled to remittitur of the amount in excess of the limitation unless the claimant demonstrates to the court by clear and convincing evidence that the award is not excessive in light of the facts and circumstances that were presented to the trier of fact.

(c)  This subsection is not intended to prohibit an appropriate court from exercising its jurisdiction under s. 768.74 in determining the reasonableness of an award of punitive damages which is less than three times the amount of compensatory damages.

(d)  The jury may not be instructed or informed as to the provisions of this section.

(3)  This section is remedial in nature and shall take effect upon becoming a law.

History.--s. 24, ch. 99-225; s. 11, ch. 2001-45.

768.736  Punitive damages; exceptions for intoxication.--Sections 768.725 and 768.73 do not apply to any defendant who, at the time of the act or omission for which punitive damages are sought, was under the influence of any alcoholic beverage or drug to the extent that the defendant's normal faculties were impaired, or who had a blood or breath alcohol level of 0.08 percent or higher.

History.--s. 25, ch. 99-225.

768.737  Punitive damages; application in arbitration.--Where punitive damages are available as a remedy in an arbitration proceeding, ss. 768.72, 768.725, and 768.73 apply. When an award of punitive damages is made in an arbitration proceeding, the arbitrator who renders the award must issue a written opinion setting forth the conduct which gave rise to the award and how the arbitrator applied the standards in s. 768.72 to such conduct.

History.--s. 26, ch. 99-225.

768.74  Remittitur and additur.--

(1)  In any action to which this part applies wherein the trier of fact determines that liability exists on the part of the defendant and a verdict is rendered which awards money damages to the plaintiff, it shall be the responsibility of the court, upon proper motion, to review the amount of such award to determine if such amount is excessive or inadequate in light of the facts and circumstances which were presented to the trier of fact.

(2)  If the court finds that the amount awarded is excessive or inadequate, it shall order a remittitur or additur, as the case may be.

(3)  It is the intention of the Legislature that awards of damages be subject to close scrutiny by the courts and that all such awards be adequate and not excessive.

(4)  If the party adversely affected by such remittitur or additur does not agree, the court shall order a new trial in the cause on the issue of damages only.

(5)  In determining whether an award is excessive or inadequate in light of the facts and circumstances presented to the trier of fact and in determining the amount, if any, that such award exceeds a reasonable range of damages or is inadequate, the court shall consider the following criteria:

(a)  Whether the amount awarded is indicative of prejudice, passion, or corruption on the part of the trier of fact;

(b)  Whether it appears that the trier of fact ignored the evidence in reaching a verdict or misconceived the merits of the case relating to the amounts of damages recoverable;

(c)  Whether the trier of fact took improper elements of damages into account or arrived at the amount of damages by speculation and conjecture;

(d)  Whether the amount awarded bears a reasonable relation to the amount of damages proved and the injury suffered; and

(e)  Whether the amount awarded is supported by the evidence and is such that it could be adduced in a logical manner by reasonable persons.

(6)  It is the intent of the Legislature to vest the trial courts of this state with the discretionary authority to review the amounts of damages awarded by a trier of fact in light of a standard of excessiveness or inadequacy. The Legislature recognizes that the reasonable actions of a jury are a fundamental precept of American jurisprudence and that such actions should be disturbed or modified with caution and discretion. However, it is further recognized that a review by the courts in accordance with the standards set forth in this section provides an additional element of soundness and logic to our judicial system and is in the best interests of the citizens of this state.

History.--s. 53, ch. 86-160.

768.75  Optional settlement conference in certain tort actions.--

(1)  In any action to which this part applies, the court may require a settlement conference to be held at least 3 weeks before the date set for trial.

(2)  Attorneys who will conduct the trial, parties, and persons with authority to settle shall attend the settlement conference held before the court unless excused by the court for good cause.

History.--s. 54, ch. 86-160.

768.76  Collateral sources of indemnity.--

(1)  In any action to which this part applies in which liability is admitted or is determined by the trier of fact and in which damages are awarded to compensate the claimant for losses sustained, the court shall reduce the amount of such award by the total of all amounts which have been paid for the benefit of the claimant, or which are otherwise available to the claimant, from all collateral sources; however, there shall be no reduction for collateral sources for which a subrogation or reimbursement right exists. Such reduction shall be offset to the extent of any amount which has been paid, contributed, or forfeited by, or on behalf of, the claimant or members of the claimant's immediate family to secure her or his right to any collateral source benefit which the claimant is receiving as a result of her or his injury.

(2)  For purposes of this section:

(a)  "Collateral sources" means any payments made to the claimant, or made on the claimant's behalf, by or pursuant to:

1.  The United States Social Security Act, except Title XVIII and Title XIX; any federal, state, or local income disability act; or any other public programs providing medical expenses, disability payments, or other similar benefits, except those prohibited by federal law and those expressly excluded by law as collateral sources.

2.  Any health, sickness, or income disability insurance; automobile accident insurance that provides health benefits or income disability coverage; and any other similar insurance benefits, except life insurance benefits available to the claimant, whether purchased by her or him or provided by others.

3.  Any contract or agreement of any group, organization, partnership, or corporation to provide, pay for, or reimburse the costs of hospital, medical, dental, or other health care services.

4.  Any contractual or voluntary wage continuation plan provided by employers or by any other system intended to provide wages during a period of disability.

(b)  Notwithstanding any other provision of this section, benefits received under Medicare, or any other federal program providing for a Federal Government lien on or right of reimbursement from the plaintiff's recovery, the Workers' Compensation Law, the Medicaid program of Title XIX of the Social Security Act or from any medical services program administered by the Department of Health shall not be considered a collateral source.

(3)  In the event that the fees for legal services provided to the claimant are based on a percentage of the amount of money awarded to the claimant, such percentage shall be based on the net amount of the award as reduced by the amounts of collateral sources and as increased by insurance premiums paid.

(4)  A provider of collateral sources that has a right of subrogation or reimbursement that has complied with this section shall have a right of reimbursement from a claimant to whom it has provided collateral sources if such claimant has recovered all or part of such collateral sources from a tortfeasor. Such provider's right of reimbursement shall be limited to the actual amount of collateral sources recovered by the claimant from a tortfeasor, minus its pro rata share of costs and attorney's fees incurred by the claimant in recovering such collateral sources from the tortfeasor. In determining the provider's pro rata share of those costs and attorney's fees, the provider shall have deducted from its recovery a percentage amount equal to the percentage of the judgment or settlement which is for costs and attorney's fees.

(5)  Any disputes between the claimant and the provider as to the actual amount of collateral sources recovered by the claimant from a tortfeasor shall be subject to determination by a court of competent jurisdiction. In determining the actual amount of collateral sources recovered, the court shall give consideration to any offset in the amount of settlement or judgment for any comparative negligence of the claimant, limitations in the amount of liability insurance coverage available to the tortfeasor, or any other mitigating factors which the court deems equitable and appropriate under the circumstances.

(6)  A claimant shall send the provider of any collateral sources, by certified or registered mail, notification of claimant's intent to claim damages from the tortfeasor. If the claimant has filed suit against the tortfeasor at the time such notice is sent, a copy of the complaint against the tortfeasor should be sent along with such notice. Such notice must include a statement that the provider of collateral sources will waive any right to subrogation or reimbursement unless it provides the claimant or claimant's attorney a statement asserting payment of benefits and right of subrogation or reimbursement within 30 days following receipt of the claimant's notification to the collateral sources provider.

(7)  Within 30 days after receipt of the claimant's notification of intent to claim damages from the tortfeasor, the provider of collateral sources must provide the claimant or claimant's attorney a statement asserting its payment of collateral sources benefits and right of subrogation or reimbursement. Failure of the provider of collateral sources to provide such statement to the claimant or claimant's attorney within the 30-day period shall result in waiver of any claim to subrogation or reimbursement by the provider with respect to any such collateral sources. No right of subrogation or reimbursement shall exist for a provider of collateral sources that has waived its right of subrogation or reimbursement pursuant to this subsection.

(8)  Reimbursement of a collateral sources provider pursuant to this section shall satisfy such collateral sources provider's right of subrogation or reimbursement. The provider shall have no right of subrogation or reimbursement for collateral sources payments made after the date of waiver, settlement, or judgment.

(9)  A collateral source provider claiming a right of subrogation or reimbursement under this section shall cooperate with the claimant by producing such information as is reasonably necessary for the claimant to prove the nature and extent of the value of the collateral sources provided. The failure of the collateral source provider to cooperate may be taken into account by the court in determining the right to or the amount of the reimbursement asserted.

History.--s. 55, ch. 86-160; s. 1, ch. 93-245; s. 1173, ch. 97-102; s. 290, ch. 99-8.

768.77  Itemized verdict.--

(1)  Except as provided in subsection (2), in any action to which this part applies in which the trier of fact determines that liability exists on the part of the defendant, the trier of fact shall, as a part of the verdict, itemize the amounts to be awarded to the claimant into the following categories of damages:

(a)  Amounts intended to compensate the claimant for economic losses;

(b)  Amounts intended to compensate the claimant for noneconomic losses; and

(c)  Amounts awarded to the claimant for punitive damages, if applicable.

(2)  In any action for damages based on personal injury or wrongful death arising out of medical malpractice, whether in tort or contract, to which this part applies in which the trier of fact determines that liability exists on the part of the defendant, the trier of fact shall, as a part of the verdict, itemize the amounts to be awarded to the claimant into the following categories of damages:

(a)  Amounts intended to compensate the claimant for:

1.  Past economic losses; and

2.  Future economic losses, not reduced to present value, and the number of years or part thereof which the award is intended to cover;

(b)  Amounts intended to compensate the claimant for:

1.  Past noneconomic losses; and

2.  Future noneconomic losses and the number of years or part thereof which the award is intended to cover; and

(c)  Amounts awarded to the claimant for punitive damages, if applicable.

History.--s. 56, ch. 86-160; s. 7, ch. 99-225; s. 68, ch. 2003-416.

768.78  Alternative methods of payment of damage awards.--

(1)(a)  In any action to which this part applies in which the court determines that an award to compensate the claimant includes future economic losses which exceed $250,000, payment of amounts intended to compensate the claimant for these losses shall be made by one of the following means, unless an alternative method of payment of damages is provided in this section:

1.  The defendant may make a lump-sum payment for all damages so assessed, with future economic losses and expenses reduced to present value; or

2.  Subject to the provisions of this subsection, the court shall, at the request of either party, unless the court determines that manifest injustice would result to any party, enter a judgment ordering future economic damages, as itemized pursuant to s. 768.77(1), in excess of $250,000 to be paid in whole or in part by periodic payments rather than by a lump-sum payment.

(b)  In entering a judgment ordering the payment of such future damages by periodic payments, the court shall make a specific finding of the dollar amount of periodic payments which will compensate the judgment creditor for these future damages after offset for collateral sources. The total dollar amount of the periodic payments shall equal the dollar amount of all such future damages before any reduction to present value, less any attorney's fees payable from future damages in accordance with paragraph (f). The period of time over which the periodic payments shall be made is the period of years determined by the trier of fact in arriving at its itemized verdict and shall not be extended if the plaintiff lives beyond the determined period. If the claimant has been awarded damages to be discharged by periodic payments and the claimant dies prior to the termination of the period of years during which periodic payments are to be made, the remaining liability of the defendant, reduced to present value, shall be paid into the estate of the claimant in a lump sum. The court may order that the payments be equal or vary in amount, depending upon the need of the claimant.

(c)  As a condition to authorizing periodic payments of future damages, the court shall require the defendant to post a bond or security or otherwise to assure full payment of these damages awarded by the judgment. A bond is not adequate unless it is written by a company authorized to do business in this state and is rated A+ by Best's. If the defendant is unable to adequately assure full payment of the damages, the court shall order that all damages be paid to the claimant in a lump sum pursuant to the verdict. No bond may be canceled or be subject to cancellation unless at least 60 days' advance written notice is filed with the court and the judgment creditor. Upon termination of periodic payments, the court shall order the return of the security, or so much as remains, to the judgment debtor.

(d)1.  In the event that the court finds that the judgment debtor has exhibited a continuing pattern of failing to timely make the required periodic payments, the court shall:

a.  Order that all remaining amounts of the award be paid by lump sum within 30 days after entry of the order;

b.  Order that, in addition to the required periodic payments, the judgment debtor pay the claimant all damages caused by the failure to timely make periodic payments, including court costs and attorney's fees; or

c.  Enter other orders or sanctions as appropriate to protect the judgment creditor.

2.  If it appears that the judgment debtor may be insolvent or that there is a substantial risk that the judgment debtor may not have the financial responsibility to pay all amounts due and owing the judgment creditor, the court may:

a.  Order additional security;

b.  Order that the balance of payments due be placed in trust for the benefit of the claimant;

c.  Order that all remaining amounts of the award be paid by lump sum within 30 days after entry of the order; or

d.  Order such other protection as may be necessary to assure the payment of the remaining balance of the judgment.

(e)  The judgment providing for payment of future damages by periodic payments shall specify the recipient or recipients of the payments, the dollar amounts of the payments, the interval between payments, and the number of payments or the period of time over which payments shall be made. Periodic payments shall be subject to modification only as specified in this subsection.

(f)  Claimant's attorney's fee, if payable from the judgment, shall be based upon the total judgment, adding all amounts awarded for past and future damages. The attorney's fee shall be paid from past and future damages in the same proportion. If a claimant has agreed to pay her or his attorney's fees on a contingency fee basis, the claimant shall be responsible for paying the agreed percentage calculated solely on the basis of that portion of the award not subject to periodic payments. The remaining unpaid portion of the attorney's fees shall be paid in a lump sum by the defendant, who shall receive credit against future payments for this amount. However, the credit against each future payment is limited to an amount equal to the contingency fee percentage of each periodic payment. Any provision of this paragraph may be modified by the agreement of all interested parties.

(g)  Nothing in this subsection shall preclude any other method of payment of awards, if such method is consented to by the parties.

(2)(a)  In any action for damages based on personal injury or wrongful death arising out of medical malpractice, whether in tort or contract, in which the trier of fact makes an award to compensate the claimant for future economic losses, payment of amounts intended to compensate the claimant for these losses shall be made by one of the following means:

1.  The defendant may make a lump-sum payment for all damages so assessed, with future economic losses and expenses reduced to present value; or

2.  The court shall, at the request of either party, enter a judgment ordering future economic damages, as itemized pursuant to s. 768.77, to be paid by periodic payments rather than lump sum.

(b)  For purposes of this subsection, "periodic payment" means provision for the spreading of future economic damage payments, in whole or in part, over a period of time, as follows:

1.  A specific finding of the dollar amount of periodic payments which will compensate for these future damages after offset for collateral sources shall be made. The total dollar amount of the periodic payments shall equal the dollar amount of all such future damages before any reduction to present value.

2.  The defendant shall be required to post a bond or security or otherwise to assure full payment of these damages awarded. A bond is not adequate unless it is written by a company authorized to do business in this state and is rated A+ by Best's. If the defendant is unable to adequately assure full payment of the damages, all damages, reduced to present value, shall be paid to the claimant in a lump sum. No bond may be canceled or be subject to cancellation unless at least 60 days' advance written notice is filed with the court and the claimant. Upon termination of periodic payments, the security, or so much as remains, shall be returned to the defendant.

3.  The provision for payment of future damages by periodic payments shall specify the recipient or recipients of the payments, the dollar amounts of the payments, the interval between payments, and the number of payments or the period of time over which payments shall be made.

History.--ss. 57, 65, ch. 86-160; s. 5, ch. 87-50; s. 47, ch. 88-1; s. 25, ch. 88-277; s. 1, ch. 88-335; s. 1174, ch. 97-102; s. 8, ch. 99-225.

768.79  Offer of judgment and demand for judgment.--

(1)  In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney's fees incurred by her or him or on the defendant's behalf pursuant to a policy of liability insurance or other contract from the date of filing of the offer if the judgment is one of no liability or the judgment obtained by the plaintiff is at least 25 percent less than such offer, and the court shall set off such costs and attorney's fees against the award. Where such costs and attorney's fees total more than the judgment, the court shall enter judgment for the defendant against the plaintiff for the amount of the costs and fees, less the amount of the plaintiff's award. If a plaintiff files a demand for judgment which is not accepted by the defendant within 30 days and the plaintiff recovers a judgment in an amount at least 25 percent greater than the offer, she or he shall be entitled to recover reasonable costs and attorney's fees incurred from the date of the filing of the demand. If rejected, neither an offer nor demand is admissible in subsequent litigation, except for pursuing the penalties of this section.

(2)  The making of an offer of settlement which is not accepted does not preclude the making of a subsequent offer. An offer must:

(a)  Be in writing and state that it is being made pursuant to this section.

(b)  Name the party making it and the party to whom it is being made.

(c)  State with particularity the amount offered to settle a claim for punitive damages, if any.

(d)  State its total amount.

The offer shall be construed as including all damages which may be awarded in a final judgment.

(3)  The offer shall be served upon the party to whom it is made, but it shall not be filed unless it is accepted or unless filing is necessary to enforce the provisions of this section.

(4)  An offer shall be accepted by filing a written acceptance with the court within 30 days after service. Upon filing of both the offer and acceptance, the court has full jurisdiction to enforce the settlement agreement.

(5)  An offer may be withdrawn in writing which is served before the date a written acceptance is filed. Once withdrawn, an offer is void.

(6)  Upon motion made by the offeror within 30 days after the entry of judgment or after voluntary or involuntary dismissal, the court shall determine the following:

(a)  If a defendant serves an offer which is not accepted by the plaintiff, and if the judgment obtained by the plaintiff is at least 25 percent less than the amount of the offer, the defendant shall be awarded reasonable costs, including investigative expenses, and attorney's fees, calculated in accordance with the guidelines promulgated by the Supreme Court, incurred from the date the offer was served, and the court shall set off such costs in attorney's fees against the award. When such costs and attorney's fees total more than the amount of the judgment, the court shall enter judgment for the defendant against the plaintiff for the amount of the costs and fees, less the amount of the award to the plaintiff.

(b)  If a plaintiff serves an offer which is not accepted by the defendant, and if the judgment obtained by the plaintiff is at least 25 percent more than the amount of the offer, the plaintiff shall be awarded reasonable costs, including investigative expenses, and attorney's fees, calculated in accordance with the guidelines promulgated by the Supreme Court, incurred from the date the offer was served.

For purposes of the determination required by paragraph (a), the term "judgment obtained" means the amount of the net judgment entered, plus any postoffer collateral source payments received or due as of the date of the judgment, plus any postoffer settlement amounts by which the verdict was reduced. For purposes of the determination required by paragraph (b), the term "judgment obtained" means the amount of the net judgment entered, plus any postoffer settlement amounts by which the verdict was reduced.

(7)(a)  If a party is entitled to costs and fees pursuant to the provisions of this section, the court may, in its discretion, determine that an offer was not made in good faith. In such case, the court may disallow an award of costs and attorney's fees.

(b)  When determining the reasonableness of an award of attorney's fees pursuant to this section, the court shall consider, along with all other relevant criteria, the following additional factors:

1.  The then apparent merit or lack of merit in the claim.

2.  The number and nature of offers made by the parties.

3.  The closeness of questions of fact and law at issue.

4.  Whether the person making the offer had unreasonably refused to furnish information necessary to evaluate the reasonableness of such offer.

5.  Whether the suit was in the nature of a test case presenting questions of far-reaching importance affecting nonparties.

6.  The amount of the additional delay cost and expense that the person making the offer reasonably would be expected to incur if the litigation should be prolonged.

(8)  Evidence of an offer is admissible only in proceedings to enforce an accepted offer or to determine the imposition of sanctions under this section.

History.--s. 58, ch. 86-160; s. 48, ch. 90-119; s. 1175, ch. 97-102.

768.81  Comparative fault.--

(1)  DEFINITION.--As used in this section, "economic damages" means past lost income and future lost income reduced to present value; medical and funeral expenses; lost support and services; replacement value of lost personal property; loss of appraised fair market value of real property; costs of construction repairs, including labor, overhead, and profit; and any other economic loss which would not have occurred but for the injury giving rise to the cause of action.

(2)  EFFECT OF CONTRIBUTORY FAULT.--In an action to which this section applies, any 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.

(3)  APPORTIONMENT OF DAMAGES.--In cases to which this section applies, the court shall enter judgment against each party liable on the basis of such party's percentage of fault and not on the basis of the doctrine of joint and several liability, except as provided in paragraphs (a), (b), and (c):

(a)  Where a plaintiff is found to be at fault, the following shall apply:

1.  Any defendant found 10 percent or less at fault shall not be subject to joint and several liability.

2.  For any defendant found more than 10 percent but less than 25 percent at fault, joint and several liability shall not apply to that portion of economic damages in excess of $200,000.

3.  For any defendant found at least 25 percent but not more than 50 percent at fault, joint and several liability shall not apply to that portion of economic damages in excess of $500,000.

4.  For any defendant found more than 50 percent at fault, joint and several liability shall not apply to that portion of economic damages in excess of $1 million.

For any defendant under subparagraph 2., subparagraph 3., or subparagraph 4., the amount of economic damages calculated under joint and several liability shall be in addition to the amount of economic and noneconomic damages already apportioned to that defendant based on that defendant's percentage of fault.

(b)  Where a plaintiff is found to be without fault, the following shall apply:

1.  Any defendant found less than 10 percent at fault shall not be subject to joint and several liability.

2.  For any defendant found at least 10 percent but less than 25 percent at fault, joint and several liability shall not apply to that portion of economic damages in excess of $500,000.

3.  For any defendant found at least 25 percent but not more than 50 percent at fault, joint and several liability shall not apply to that portion of economic damages in excess of $1 million.

4.  For any defendant found more than 50 percent at fault, joint and several liability shall not apply to that portion of economic damages in excess of $2 million.

For any defendant under subparagraph 2., subparagraph 3., or subparagraph 4., the amount of economic damages calculated under joint and several liability shall be in addition to the amount of economic and noneconomic damages already apportioned to that defendant based on that defendant's percentage of fault.

(c)  With respect to any defendant whose percentage of fault is less than the fault of a particular plaintiff, the doctrine of joint and several liability shall not apply to any damages imposed against the defendant.

(d)  In order to allocate any or all fault to a nonparty, a defendant must affirmatively plead the fault of a nonparty and, absent a showing of good cause, identify the nonparty, if known, or describe the nonparty as specifically as practicable, either by motion or in the initial responsive pleading when defenses are first presented, subject to amendment any time before trial in accordance with the Florida Rules of Civil Procedure.

(e)  In order to allocate any or all fault to a nonparty and include the named or unnamed nonparty on the verdict form for purposes of apportioning damages, a defendant must prove at trial, by a preponderance of the evidence, the fault of the nonparty in causing the plaintiff's injuries.

(4)  APPLICABILITY.--

(a)  This section applies to negligence cases. For purposes of this section, "negligence cases" includes, but is not limited to, civil actions for damages based upon theories of negligence, strict liability, products liability, professional malpractice whether couched in terms of contract or tort, or breach of warranty and like theories. In determining whether a case falls within the term "negligence cases," the court shall look to the substance of the action and not the conclusory terms used by the parties.

(b)  This section does not apply to any action brought by any person to recover actual economic damages resulting from pollution, to any action based upon an intentional tort, or to any cause of action as to which application of the doctrine of joint and several liability is specifically provided by chapter 403, chapter 498, ¹chapter 517, ¹chapter 542, or ¹chapter 895.

²(5)  Notwithstanding anything in law to the contrary, in an action for damages for personal injury or wrongful death arising out of medical malpractice, whether in contract or tort, when an apportionment of damages pursuant to this section is attributed to a teaching hospital as defined in s. 408.07, the court shall enter judgment against the teaching hospital on the basis of such party's percentage of fault and not on the basis of the doctrine of joint and several liability.

History.--ss. 60, 65, ch. 86-160; s. 5, ch. 87-50; s. 79, ch. 88-1; s. 43, ch. 88-277; s. 1, ch. 88-335; s. 38, ch. 91-110; s. 104, ch. 92-33; s. 27, ch. 99-225.

¹Note.--Contains no readily apparent specific reference to joint and several liability.

²Note.--Also published at s. 766.112(1).