ENROLLED
2011 Legislature CS for SB 142, 1st Engrossed
2011142er
1
2 An act relating to negligence; amending s. 768.81,
3 F.S.; defining the terms “accident,” “negligence
4 action,” and “products liability action”; requiring
5 the trier of fact to consider the fault of all persons
6 who contributed to an accident when apportioning
7 damages in a products liability action alleging an
8 enhanced injury; requiring the jury instructions to
9 apportion certain fault in a products liability
10 action; providing the rules of evidence apply;
11 providing legislative intent to overrule a judicial
12 opinion; providing a legislative finding that fault
13 should be apportioned among all responsible persons in
14 a products liability action; providing for retroactive
15 application of the act; providing a legislative
16 finding that the retroactive application of the act
17 does not impair vested rights; providing an effective
18 date.
19
20 Be It Enacted by the Legislature of the State of Florida:
21
22 Section 1. Section 768.81, Florida Statutes, is amended to
23 read:
24 768.81 Comparative fault.—
25 (1) DEFINITIONS DEFINITION.—As used in this section, the
26 term:
27 (a) “Accident” means the events and actions that relate to
28 the incident as well as those events and actions that relate to
29 the alleged defect or injuries, including enhanced injuries.
30 (b) “Economic damages” means past lost income and future
31 lost income reduced to present value; medical and funeral
32 expenses; lost support and services; replacement value of lost
33 personal property; loss of appraised fair market value of real
34 property; costs of construction repairs, including labor,
35 overhead, and profit; and any other economic loss that which
36 would not have occurred but for the injury giving rise to the
37 cause of action.
38 (c) “Negligence action” means, without limitation, a civil
39 action for damages based upon a theory of negligence, strict
40 liability, products liability, professional malpractice whether
41 couched in terms of contract or tort, or breach of warranty and
42 like theories. The substance of an action, not conclusory terms
43 used by a party, determines whether an action is a negligence
44 action.
45 (d) “Products liability action” means a civil action based
46 upon a theory of strict liability, negligence, breach of
47 warranty, nuisance, or similar theories for damages caused by
48 the manufacture, construction, design, formulation,
49 installation, preparation, or assembly of a product. The term
50 includes an action alleging that injuries received by a claimant
51 in an accident were greater than the injuries the claimant would
52 have received but for a defective product. The substance of an
53 action, not the conclusory terms used by a party, determines
54 whether an action is a products liability action.
55 (2) EFFECT OF CONTRIBUTORY FAULT.—In a negligence an action
56 to which this section applies, any contributory fault chargeable
57 to the claimant diminishes proportionately the amount awarded as
58 economic and noneconomic damages for an injury attributable to
59 the claimant’s contributory fault, but does not bar recovery.
60 (3) APPORTIONMENT OF DAMAGES.—In a negligence action cases
61 to which this section applies, the court shall enter judgment
62 against each party liable on the basis of such party’s
63 percentage of fault and not on the basis of the doctrine of
64 joint and several liability.
65 (a)1. In order to allocate any or all fault to a nonparty,
66 a defendant must affirmatively plead the fault of a nonparty
67 and, absent a showing of good cause, identify the nonparty, if
68 known, or describe the nonparty as specifically as practicable,
69 either by motion or in the initial responsive pleading when
70 defenses are first presented, subject to amendment any time
71 before trial in accordance with the Florida Rules of Civil
72 Procedure.
73 2.(b) In order to allocate any or all fault to a nonparty
74 and include the named or unnamed nonparty on the verdict form
75 for purposes of apportioning damages, a defendant must prove at
76 trial, by a preponderance of the evidence, the fault of the
77 nonparty in causing the plaintiff’s injuries.
78 (b) In a products liability action alleging that injuries
79 received by a claimant in an accident were enhanced by a
80 defective product, the trier of fact shall consider the fault of
81 all persons who contributed to the accident when apportioning
82 fault between or among them. The jury shall be appropriately
83 instructed by the trial judge on the apportionment of fault in
84 products liability actions where there are allegations that the
85 injuries received by the claimant in an accident were enhanced
86 by a defective product. The rules of evidence apply to these
87 actions.
88 (4) APPLICABILITY.—
89 (a) This section applies to negligence cases. For purposes
90 of this section, “negligence cases” includes, but is not limited
91 to, civil actions for damages based upon theories of negligence,
92 strict liability, products liability, professional malpractice
93 whether couched in terms of contract or tort, or breach of
94 warranty and like theories. In determining whether a case falls
95 within the term “negligence cases,” the court shall look to the
96 substance of the action and not the conclusory terms used by the
97 parties.
98 (b) This section does not apply to any action brought by
99 any person to recover actual economic damages resulting from
100 pollution, to any action based upon an intentional tort, or to
101 any cause of action as to which application of the doctrine of
102 joint and several liability is specifically provided by chapter
103 403, chapter 498, chapter 517, chapter 542, or chapter 895.
104 (5) MEDICAL MALPRACTICE.—Notwithstanding anything in law to
105 the contrary, in an action for damages for personal injury or
106 wrongful death arising out of medical malpractice, whether in
107 contract or tort, if when an apportionment of damages pursuant
108 to this section is attributed to a teaching hospital as defined
109 in s. 408.07, the court shall enter judgment against the
110 teaching hospital on the basis of such party’s percentage of
111 fault and not on the basis of the doctrine of joint and several
112 liability.
113 Section 2. The Legislature intends that this act be applied
114 retroactively and overrule D’Amario v. Ford Motor Co., 806 So.
115 2d 424 (Fla. 2001), which adopted what the Florida Supreme Court
116 acknowledged to be a minority view. That minority view fails to
117 apportion fault for damages consistent with Florida’s statutory
118 comparative fault system, codified in s. 768.81, Florida
119 Statutes, and leads to inequitable and unfair results,
120 regardless of the damages sought in the litigation. The
121 Legislature finds that, in a products liability action as
122 defined in this act, fault should be apportioned among all
123 responsible persons.
124 Section 3. This act is remedial in nature and applies
125 retroactively. The Legislature finds that the retroactive
126 application of this act does not unconstitutionally impair
127 vested rights. Rather, the law affects only remedies, permitting
128 recovery against all tortfeasors while lessening the ultimate
129 liability of each consistent with this state’s statutory
130 comparative fault system, codified in s. 768.81, Florida
131 Statutes. In all cases, the Legislature intends that this act be
132 construed consistent with the due process provisions of the
133 State Constitution and the Constitution of the United States.
134 Section 4. This act shall take effect upon becoming a law.