For example, a pedestrian is struck by a drunk driver. The driver may well be liable, but if the pedestrian was not using caution to cross safely in a designated crosswalk, he may be found to have committed contributory negligence. The way this affects a case varies greatly from state-to-state.
Florida, thankfully, has one of the more plaintiff-friendly interpretations. Our courts use a model called “pure comparative fault.” What that means, per F.S. 768.81(2) is that if a plaintiff is at-fault, that percentage is going to diminish proportionately the amount to which plaintiff is entitled to recovery. However, unlike many states, plaintiffs can recover damages so long as their own fault is less than 100 percent. So a person who is 99 percent at-fault for their own injuries can still recover 1 percent of the damages from the other liable party.
Many other states don’t operate that way. There are other states that follow the “pure contributory fault” model, which bars plaintiff from recovering any damages if he contributed in any way to his injuries. Most states, though, follow a modified comparative fault model, which bars recovery of damages if plaintiff’s own liability equals more than 50 or 51 percent.
In Maine, where the case of Estate of Gagnon v. Anthony was recently heard by the Maine Supreme Court, the system follows a model of Modified Comparative Fault with a 50 percent bar. What that means is plaintiffs who share 50 percent or more responsibility for their injuries can’t recover anything.
The facts giving rise to this case occurred in 2011, when defendant, an experienced woodcutter asked plaintiff, his neighbor and also an experienced woodcutter, to help him fell a rotted tree on his residence.
Plaintiff used a chainsaw to make a wedge cut in the tree while defendant used a skid-steer loader to push the limb away from the house. As they were doing this, both men say the tree “exploded.” A limb fell onto plaintiff, rendering him unconscious, pinning him to the ground and causing him to suffer numerous personal injuries.
Plaintiff filed a personal injury lawsuit two years later, alleging failure to warn about the fact the limb could snap due to the rotted condition of the tree, and also asserting defendant was negligent in his operation of the machinery. Defendant raised an affirmative defense of comparative negligence.
Plaintiff died of an unrelated illness prior to trial, and his estate was substituted as plaintiff.
The case went to trial, which lasted two days, and jurors determined both men were negligent and plaintiff was at least as negligent as defendant. Had the case happened in Florida, that would still entitle plaintiff to recover 50 percent of his damages. But in Maine, it meant plaintiff was entitled to nothing.
Estate appealed, requesting a new trial.
The Maine Supreme Court denied this request after reviewing the record. Justices pointed to a key statement made by plaintiff in deposition, which was that neither he nor defendant expected the tree would “explode” and that the tree broke far sooner then either man expected it to. At no time in that statement did he place blame on defendant, and he even indicated he didn’t believe defendant’s operation of the equipment contributed to the sudden breakage. This, combined with the fact both men were experienced woodcutters, meant that both men knew or should have known what they risked in cutting a rotted tree and that use of this particular equipment was “ill-advised.”
The state high court therefore found jury’s conclusion of comparative fault reasonable, and affirmed.
Call Freeman Injury Law — 1-800-561-7777 for a free appointment to discuss your rights. Now serving Orlando, West Palm Beach, Port St. Lucie and Fort Lauderdale.
Estate of Gagnon v. Anthony , Nov. 10, 2015, Maine Supreme Judicial Court
More Blog Entries:
Report: 106 Miles of Unsafe Sidewalks Span Fort Lauderdale, Oct. 23, 2015, Fort Lauderdale Injury Lawyer Blog