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Florida Tort Reform-1999

Products Liability

Products liability refers to the legal liability of manufacturers and sellers to compensate buyers, users, and even bystanders, for damages or injuries suffered because of defects in goods purchased. Although the ultimate responsibility for injury or damage in a products liability case most frequently rests with the manufacturer, liability may also be imposed upon a retailer, occasionally upon a wholesaler or middleman, a bailor or lessor, and infrequently upon a party wholly outside the manufacturing and distributing process, such as a certifier. This ultimate responsibility may be imposed by an action by the plaintiff against the manufacturer directly, or by a claim for indemnification, asserted by way of a cross-claim or third party claim by the retailer or wholesaler, or others who might be held liable for the injury caused by a defective product.

In 1999, Florida passed Florida Statute '95.031, which shortened the statute of repose in products liability claims. The statute of repose cuts off a right of action after a specified time, similar to the statute of limitation. It is measured from the delivery of the product of the completion of work, regardless of time of accrual of a cause of action or of notice of invasion of legal rights.

Basically, this new law cuts off liability claims twelve (12) years after a product is put into service by creating a conclusive presumption that all products have a useful life of ten (10) years. The reason for this change is to eliminate uncertainty and unpredictability in products cases, which have been the center of controversy for many years.

Note that there are exceptions to this new rule. The statute of repose for aircraft, large vessels, railroad equipment, and improvements to real property is twenty (20) years. Also the statute may be avoided where there is A substantial and factual support for a claim of concealment.

Any claim that is currently actionable will remain so if brought by July 1, 2003, without regard to the reduced statute of repose.

Punitive Damages

Punitive (or exemplary) damages are damages on an increased scale, awarded to the plaintiff over and above what will compensate for the property loss, where the wrong done was aggravated by circumstances of violence, oppression, malice, fraud, or wanton and wicked conduct on the part of the defendant, and are intended to solace the plaintiff for mental anguish, abrasion of his feelings, shame, degradation, or other aggravations of the original wrong, or else to punish the defendant for evil behavior or to make an example of the wrongdoer.

Under existing law, where punitive damages could be assessed, the burden of proof was a preponderance of the evidence standard. Today, Florida Statutes, '768.72(2) requires proof of egregious conduct by clear and convincing evidence, a higher standard. Also, Florida Statutes ''768.73-768.737 limit the amount of punitive damages recoverable. The general rule is that punitive damages are capped at the greater of three (3) times the actual damages or five hundred thousand dollars ($500,000.00). If the wrongful conduct was motivated solely by unreasonable financial gain, punitive damages are capped at the greater of four times the actual damages or two million dollars ($2,000,000.00). Only where there has been a specific intent to cause harm is the cap removed. Courts may reduce, but not increase, these awards.

Under Florida Statutes '768.735 (1999), exceptions to the caps are created for civil actions based on abuse of children, the elderly, or the developmentally disabled, in which event the limit is three times the actual damages with no dollar cap (Note: higher awards are presumed excessive). Florida Statutes '768.736 (1999), a final exception is created for drunken tort-feasors (those having a blood alcohol content of 0.08 percent or more), where there is no cap on punitive damages .

Negligent Hiring

Florida's new statute, Florida Statutes '768.096, has given employers a safe harbor from negligent hiring claims. Under the new law, employers are now insulated from damages sought by third parties based upon the intentional conduct of an employee by creating a presumption that the employee was not negligently hired if a background investigation is done. However, the background investigation must have included at least:

  1. A criminal background check,
  2. A reference check,
  3. Completion of a job application that inquires into prior criminal convictions,
  4. A driver's license check, and
  5. An interview.

Failure to perform such an investigation creates no presumption of negligence.

Premises Liability

Under Florida Statutes '768.075, owners and possessors of real property now have additional protections from potential liability. Owners and possessors of real property continue to be immune from liability for injuries sustained by trespassers.

The immunity granted to owners and possessors for injuries sustained by trespassers can be destroyed if the property owner was intentionally or grossly negligent. For instance, if an owner or possessor is aware of trespassers, he has a duty to warn of dangerous conditions on the property not readily observable. However, if the claimant was injured while committing a felony, there is no liability.

Dangerous Instrumentality

A dangerous instrumentality is anything which has the inherent capacity to place people in peril, either in itself (e.g. dynamite), or by a careless use of it (e.g. boat). Traditionally, Florida has held owners and long-term lessees of vehicles involved in accidents liable under its dangerous instrumentality doctrine. As for leasing companies, they are absolved from liability where customers maintained a specified level of liability insurance. Recently, this exception has been broadened to include and protect rental car companies renting vehicles under short-term leases. A rental company will be deemed an owner only up to one hundred thousand dollars per person/three hundred thousand dollars per incident ($100,000.00/$300,000.00) for bodily injury and fifty thousand dollars ($50,000.00) for property damage. If the renter or operator of the vehicle is uninsured or has less than five hundred thousand dollars ($500,000.00) combined single limit coverage, the rental company is liable for up to an additional five hundred thousand dollars ($500,000.00) in economic damages only, reduced pro tanto (for as much as may be) by the coverage of the vehicle operator.


Apportionment refers to the allocation of a percentage of fault regarding two or more tortfeasors.Florida's apportionment rules are governed by Florida Statutes '768.81. This statute is very complex and difficult to comprehend.

Basically, Florida has four (4) levels of liability based upon a party's percentage of fault. The lower a defendant's percentage of fault, the less likely it need answer to a plaintiff beyond its pro rata (proportional) share.
When there is any fault apportioned against the plaintiff and a particular defendant's degree of fault is:

  • Less than or equal to ten percent (10%), there is no joint and several liability at all;
  • At least ten percent (10%) but less than twenty-five percent (25%), there is no joint and several liability for economic damages in excess of Two Hundred thousand Dollars ($200,000.00);
  • At least twenty-five percent (25%) but less than fifty percent (50%), there is no joint and several liability for economic damages in excess of Five Hundred Thousand Dollars ($500,000.00).
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