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Weaponizing Comparative Negligence

Oct. 7, 2019


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 to 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 the 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 a 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 win 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 better results.