Florida is a comparative negligence state, see Section 768.81 Florida Statutes, which means that if a plaintiff’s negligence contributed to his or her injury, recovery can be offset to reflect his or her role in the harm caused. Accordingly, defendants in negligence suits will often argue that certain acts of the plaintiff contributed to the injury. However, to succeed in offsetting liability, the defendant must still prove that the contributory conduct was actually negligent. The Fifth District Court of Appeal recently addressed the dynamics of comparative negligence in its decision in Bongiorno v. Americorp, Inc.
The plaintiff in Bongiorno slipped on what she described as an unusually slippery bathroom floor in the office building where she worked. She brought a negligence suit against the property owner, arguing that negligence in maintaining the floor caused her fall. Among the affirmative defenses asserted by the defendant was comparative negligence. The evidence shows that the plaintiff was wearing four to five inch high heels at the time she fell. The case proceeded to a bench trial, after which the judge concluded both the property owner and the plaintiff were 50 percent liable for the fall. The judge found the plaintiff’s choice to wear heels of that height contributed to her fall. The plaintiff appealed to the Fifth District, arguing that there was insufficient evidence in the record to show that she was negligent for wearing high heels to work.
As noted above, comparative negligence is an affirmative defense, which places the burden on the defendant to prove the negligence of the injured party. See Cuozzo v. Ronan & Kunzl, Inc., 453 So. 2d 902, 903-04 (Fla. 4th DCA 1984). To prove negligence one must establish the four following elements: 1) existence of a duty of care; 2) breach of that duty; 3) causation (both direct and proximate) between the breach of duty and one’s injury; and 4) harm resulting from the breach. Curd v. Mosaic Fertilizer, LLC, 39 So. 3d 1216, 1227 (Fla. 2010). At issue is whether the defendant had established that the plaintiff had a duty of reasonable care to not wear high heels under the circumstances.
“As to duty, the proper inquiry for the reviewing appellate court is whether the [person’s] conduct created a foreseeable zone of risk, not whether the [person] could foresee the specific injury that actually occurred.” Dorsey v. Reider, 139 So. 3d 860, 863-64 (Fla. 2014) Although the plaintiff could foresee the possibility of falling attendant to wearing high heel shoes, the Third District determined that her acts, under the circumstances, did not create a foreseeable zone of risk. Since wearing high heels under the circumstances did not create a foreseeable zone of risk, it follows that the plaintiff did not have a duty to forego wearing heels and thus was not negligent. The Fifth District reversed the trial court with instruction that the plaintiff’s damages not be offset for comparative negligence.
Since comparative negligence allows for a plaintiff’s damages to be offset, a defendant in a negligence suit will almost always assert that the plaintiff’s conduct contributed to his or her injury. Thus, a plaintiff in a negligence suit must be ready to not only establish the negligence of the defendant but also to defend arguments related to his or her own possible negligence. Indeed, regardless of whether affirmative defenses are raised, taking a case from complaint to recovery is far from a simple undertaking. Accordingly, those who have been injured as a result of possible negligence should consider finding experienced counsel who can help maximize their chances for obtaining relief. The South Florida premises liability attorneys at FK Legal have considerable experience representing injured South Floridians and are eager to help those with a possible case. Contact us if you are interested in a complimentary case evaluation.
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