WEAPONIZING COMPARATIVE NEGLIGENCE
By John W. Dill, Esquire
The laws of many states allow a jury to assess the comparative fault of
the parties. Florida and several other states follow the “pure comparative”
model. This allows the jury to apportion any fault between the parties.
The judge later will reduce damages according the relative fault of the
defendant and plaintiff.
Many attorneys bristle at the jury assigning any fault to a plaintiff.
Often the resistance against accepting any responsibility on behalf of
our clients comes at a price. If our clients bear any fault in contributing
to their own injuries, we have a great opportunity to seize the high ground
in a trial and ultimately fetch a higher recovery than in an “all
or nothing” scenario. When we use the correct tools to let a jury
assess relative fault, we can turn a disadvantage into a weapon.
The best example of weaponizing comparative negligence comes from Florida’s
Engle tobacco litigation. For years, when plaintiffs sued Big Tobacco
they lost the vast majority of trials. When tobacco lawyers framed the
case as an all or nothing proposition between the plaintiff’s choice
to smoke and the bad acts of the tobacco corporations, tobacco won almost
exclusively. Fortunately, smart plaintiff’s attorneys came up with
the counter-intuitive notion of pleading the plaintiff’s own negligence
in the complaint. Tobacco resisted this fiercely, but the law in Florida
allows a party to allege he or she was comparatively negligent. In tobacco
trials, we now assert that our client contributed to their own injuries
in combination with the acts of the tobacco companies. This change in
strategy has resulted in a sea change in tobacco litigation. Plaintiffs
now win cases they previously lost, and the recovery for our clients after
reduction for comparative fault far outstrips the awards previously. It
is much easier to accept responsibility on behalf of our clients when
the defendant refuses to concede any fault at all. The verdicts we have
received prove that using comparative negligence offensively makes a huge
difference in the game.
Premises liability cases are particularly ripe for conceding partial fault.
For some reason, some plaintiffs’ lawyers shun conceding any fault
in a fall case for fear that the slippery slope will lessen their client’s
recovery. I believe this is a flawed strategy. Most people believe that
a person who slips or trips and falls bears at least some responsibility
for their own injuries. It is much easier to concede some fault in a trial
concerning a fall than to place all blame on the property owner. I have
found that when I concede that my client bears some responsibility for
falling, in combination with the acts of the defendant, juries respond
and do not punish us for being honest. Slip and fall cases that otherwise
would result in defense verdict have instead yielded significant plaintiffs
verdict when we embrace our client’s own negligence as a cause of injury.
So what is the best method to argue our client’s own responsibility
in closing argument? I usually ask the jury the rhetorical question “who
is in the best position to keep this from happening? Is it the lady who
walks into a store to buy cereal and doesn’t see a spill on the
floor, or the store owner that allows the spill to remain on the floor
for so long that it becomes a dangerous condition?” I then break
down the comparative negligence as 90/10 or 85/15, arguing that the lion’s
share of responsibility lies with the defendant whose job it was to keep
the premises in a reasonably safe condition. Using this method, I have
been fortunate enough to won many cases I would have lost using the all
or nothing method.
Plaintiffs’ lawyers should no longer fear a jury assessing comparative
fault against our clients. Juries rarely if ever punish a lawyer for being
honest about our case. In the right circumstances, we can “weaponize”
the comparative negligence and turn it into a huge advantage yielding