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Proving Negligence For A Wrongful Death Claim In Florida


Under the Florida Wrongful Death Act, a decedent’s loved ones can sue someone for a fairly broad range of bad acts that results in the decedent’s death, including negligence, default, or breach of contract or warranty.

The most common situation implicating a wrongful death claim in Florida is negligence in the operation of an automobile. In fact, Florida has more pedestrian-automobile accidents resulting in death than any other state in the country.

The first step to making a successful wrongful death claim in such cases is proving the negligence of the party that caused the accident. As will be discussed in the remainder of this article, this is not always a straightforward process, and may require the services of an experienced personal injury attorney.

What Makes Florida Negligence Law Special?

Essentially, negligence law is based around the idea that someone who does not exercise reasonable care in taking an action should be liable for damages, injuries, or death to another that result from those actions.

But what happens in cases where both parties were negligent to some extent? Especially due to the prevalence of personal electronics now, this situation happens more often than you would think. For example, imagine a pedestrian starts to jaywalk across a street while texting on his smartphone. At the same time, a speeding driver on the road is also distracted by an incoming text on his smartphone and runs into the pedestrian.

Both parties were clearly at fault for the accident, but it’s not clear who is more at fault and who should be liable for the pedestrian’s death.

In America, there are three ways that situations of negligence are handled, depending on the law of the state:

Pure Contributory Negligence – Pure contributory negligence law bars a party that was even the tiniest bit at fault for the accident from recovering damages. In states with pure contributory negligence law, the pedestrian’s loved ones would be barred from recovering any damages from the driver because he was also negligent in jaywalking while distracted on his smartphone. This is a rather harsh result and most states have moved away from this regime.

Pure Comparative Negligence – Pure comparative negligence law assigns the parties different levels of fault and limits the recovery of damages by the degree to which each party was at fault. In states with pure comparative negligence law, assuming the pedestrian was 60% at fault for the accident, the pedestrian’s loved ones would be able to recover 40% of the damages they can prove.

Modified Comparative Negligence – Modified comparative negligence law is similar to pure comparative negligence law, but bars a party that was more at fault for the accident from recovering any damages. In modified comparative negligence states, assuming the pedestrian was 60% at fault for the accident, the pedestrian’s loved ones would be barred from recovering any damages. But assuming the pedestrian was 40% at fault, the pedestrian’s loved ones could recover 60% of the damages they could prove.

Florida is a pure comparative negligence state, meaning that even if the decedent was mostly at fault for the accident, the decedent’s loved ones could still recover a portion of the damages that resulted from the accident.

Why Hire A Personal Injury Lawyer?

The hard part in both negligence and wrongful death cases is proving your damages. In negligence cases, apportioning fault is a difficult process and usually comes down to how effectively an attorney can use expert evidence and arguments to convince a jury that the fault should be apportioned in a particular way.

Similarly in wrongful death cases, proving damages involves actuarial estimations of the decedent’s and survivors’ lifespans and earning potentials.

An experienced personal injury lawyer will know how to handle these issues and effectively maximize the value of your claims.

Michael J. Babboni's wide-ranging legal career is based on the strong belief that everyone should be treated fairly and have access to effective legal help. Michael began putting his beliefs in action by helping the people of St. Petersburg Florida get what they are owed in civil trials fighting to protect families by making corporations pay, and honor their obligations.

Proving Negligence For A Wrongful Death Claim In Florida

Goldman Babboni Fernandez
Murphy & Walsh




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