Bill Text: FL S0142 | 2011 | Regular Session | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Negligence

Spectrum: Slight Partisan Bill (Republican 3-1)

Status: (Engrossed - Dead) 2011-05-04 - Ordered enrolled -SJ 851 [S0142 Detail]

Download: Florida-2011-S0142-Introduced.html

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       Florida Senate - 2011                                     SB 142
       
       
       
       By Senator Richter
       
       
       
       
       37-00263B-11                                           2011142__
    1                        A bill to be entitled                      
    2         An act relating to negligence; amending s. 768.81,
    3         F.S.; defining the terms “negligence action” and
    4         “products liability action”; requiring the trier of
    5         fact to consider the fault of all persons who
    6         contributed to an accident when apportioning damages
    7         in a products liability action alleging an additional
    8         or enhanced injury; providing legislative intent to
    9         overrule a judicial opinion; providing a legislative
   10         finding that fault should be apportioned among all
   11         responsible persons in a products liability action;
   12         providing for retroactive application of the act;
   13         providing a legislative finding that the retroactive
   14         application of the act does not impair vested rights;
   15         providing an effective date.
   16  
   17  Be It Enacted by the Legislature of the State of Florida:
   18  
   19         Section 1. Section 768.81, Florida Statutes, is amended to
   20  read:
   21         768.81 Comparative fault.—
   22         (1) DEFINITIONS DEFINITION.—As used in this section, the
   23  term:
   24         (a) “Economic damages” means past lost income and future
   25  lost income reduced to present value; medical and funeral
   26  expenses; lost support and services; replacement value of lost
   27  personal property; loss of appraised fair market value of real
   28  property; costs of construction repairs, including labor,
   29  overhead, and profit; and any other economic loss that which
   30  would not have occurred but for the injury giving rise to the
   31  cause of action.
   32         (b) “Negligence action” means, without limitation, a civil
   33  action for damages based upon a theory of negligence; strict
   34  liability; products liability; or professional malpractice,
   35  whether couched in terms of contract, tort, or breach of
   36  warranty and like theories. The substance of an action, not
   37  conclusory terms used by a party, determines whether an action
   38  is a negligence action.
   39         (c) “Products liability action” means a civil action based
   40  upon a theory of strict liability, negligence, breach of
   41  warranty, nuisance, or similar theories for damages caused by
   42  the manufacture, construction, design, formulation,
   43  installation, preparation, or assembly of a product. The term
   44  includes an action alleging that injuries received by a claimant
   45  in an accident were greater than the injuries the claimant would
   46  have received but for a defective product. The substance of an
   47  action, not the conclusory terms used by a party, determines
   48  whether an action is a products liability action.
   49         (2) EFFECT OF CONTRIBUTORY FAULT.—In a negligence an action
   50  to which this section applies, any contributory fault chargeable
   51  to the claimant diminishes proportionately the amount awarded as
   52  economic and noneconomic damages for an injury attributable to
   53  the claimant’s contributory fault, but does not bar recovery.
   54         (3) APPORTIONMENT OF DAMAGES.—In a negligence action cases
   55  to which this section applies, the court shall enter judgment
   56  against each party liable on the basis of such party’s
   57  percentage of fault and not on the basis of the doctrine of
   58  joint and several liability.
   59         (a)1. In order to allocate any or all fault to a nonparty,
   60  a defendant must affirmatively plead the fault of a nonparty
   61  and, absent a showing of good cause, identify the nonparty, if
   62  known, or describe the nonparty as specifically as practicable,
   63  either by motion or in the initial responsive pleading when
   64  defenses are first presented, subject to amendment any time
   65  before trial in accordance with the Florida Rules of Civil
   66  Procedure.
   67         2.(b) In order to allocate any or all fault to a nonparty
   68  and include the named or unnamed nonparty on the verdict form
   69  for purposes of apportioning damages, a defendant must prove at
   70  trial, by a preponderance of the evidence, the fault of the
   71  nonparty in causing the plaintiff’s injuries.
   72         (b) In a products liability action alleging that injuries
   73  received by a claimant in an accident were greater than the
   74  injuries the claimant would have received but for a defective
   75  product, the trier of fact shall consider the fault of all
   76  persons who contributed to the accident when apportioning fault
   77  between or among them.
   78         (4) APPLICABILITY.—
   79         (a) This section applies to negligence cases. For purposes
   80  of this section, “negligence cases” includes, but is not limited
   81  to, civil actions for damages based upon theories of negligence,
   82  strict liability, products liability, professional malpractice
   83  whether couched in terms of contract or tort, or breach of
   84  warranty and like theories. In determining whether a case falls
   85  within the term “negligence cases,” the court shall look to the
   86  substance of the action and not the conclusory terms used by the
   87  parties.
   88         (b) This section does not apply to any action brought by
   89  any person to recover actual economic damages resulting from
   90  pollution, to any action based upon an intentional tort, or to
   91  any cause of action as to which application of the doctrine of
   92  joint and several liability is specifically provided by chapter
   93  403 or, chapter 498, chapter 517, chapter 542, or chapter 895.
   94         (5) MEDICAL MALPRACTICE.—Notwithstanding anything in law to
   95  the contrary, in an action for damages for personal injury or
   96  wrongful death arising out of medical malpractice, whether in
   97  contract or tort, if when an apportionment of damages pursuant
   98  to this section is attributed to a teaching hospital as defined
   99  in s. 408.07, the court shall enter judgment against the
  100  teaching hospital on the basis of such party’s percentage of
  101  fault and not on the basis of the doctrine of joint and several
  102  liability.
  103         Section 2. The Legislature intends that this act be applied
  104  retroactively and overrule D’Amario v. Ford Motor Co., 806 So.
  105  2d 424 (Fla. 2001), which adopted what the Florida Supreme Court
  106  acknowledged to be a minority view. That minority view fails to
  107  apportion fault for damages consistent with Florida’s statutory
  108  comparative fault system, codified in s. 768.81, Florida
  109  Statutes, and leads to inequitable and unfair results,
  110  regardless of the damages sought in the litigation. The
  111  Legislature finds that, in a products liability action as
  112  defined in this act, fault should be apportioned among all
  113  responsible persons.
  114         Section 3. This act is remedial in nature and applies
  115  retroactively. The Legislature finds that the retroactive
  116  application of this act does not unconstitutionally impair
  117  vested rights. Rather, the law affects only remedies, permitting
  118  recovery against all tortfeasors while lessening the ultimate
  119  liability of each consistent with this state’s statutory
  120  comparative fault system, codified in s. 768.81, Florida
  121  Statutes. In all cases, the Legislature intends that this act be
  122  construed consistent with the due process provisions of the
  123  State Constitution and the Constitution of the United States.
  124         Section 4. This act shall take effect upon becoming a law.