Florida Tort Reform: An Overview

As of June 1999, sweeping changes were signed into law which will have an effect on almost every civil cause of action filed in the State of Florida. All civil causes of action accruing after October, 1999, particularly tort actions, are now subject to changes made in the name of "tort reform." A "tort," which is defined by Black's Law Dictionary as a civil wrong or injury committed upon a person, encompasses everything from general slip-and-fall actions to complex products liability cases. As such, the significant changes made to the statutes governing these types of cases will affect, either directly or indirectly, all members of society, not just lawyers.

Employer Liability: Significant changes were also made to the statutes related to an employer's liability for tortious actions of its employees, as well as an employer's liability for its own actions.

In the past, an employer could be liable for punitive damages if it could be shown that there was some fault on the part of the employer independent of an employee's tortious conduct. Now, under Florida Statute Section 768.72, an employer is only liable for its employee's conduct if the employer either "actively and knowingly participated" in the conduct, "knowingly condoned, ratified, or consented" to the conduct, or "engaged in conduct that constituted gross negligence."

These statutory changes also insulate an employer from liability for negligent hiring in a civil action for death, injury or damage to a third person caused by the intentional tort of an employee. Florida Statute Section 768.096 now provides that an "employer is presumed not to have been negligent in hiring an employee if, before hiring the employee, the employer conducted a background investigation of the prospective employee and the investigation did not reveal any information that reasonably demonstrated the unsuitability of the prospective employee for the particular work to be performed, or of the employment in general." Such investigation must include a criminal background investigation, a reasonable effort to contact references and former employers, completion of a job application that includes particular questions related to crimes and past intentional tort claims, driving record check if related to work to be performed, and an interview with the prospective employee. However, if an employer chooses not to conduct an investigation as enumerated by the statute, no presumption is raised that the employer has failed to use reasonable care in hiring an employee.

Employers are now also immune from liability for disclosure of information regarding former or current employees to prospective employers. Florida Statute Section 768.095 provides immunity unless it can be shown that the employer made knowingly false statements or violated certain protected civil rights.

Punitive Damages: One of the most intensely debated areas of tort reform relates to the issue of punitive damages. Punitive damages are damages which are assessed as punishment and as a deterrent for similar future conduct, not damages which compensate an individual.

Recently, Florida juries have awarded multi-million dollar punitive damages awards in various cases. Changes to the statutes governing civil causes of action will now cap the amount of punitive damages awardable in all but a few cases. Generally, punitive damages will now be capped at the greater of three times the actual damages or $500,000. However, if the conduct can be shown to have been "motivated solely by unreasonable financial gain," the punitive damages cap is increased to the greater of four times the actual damages or $2 million. The court may only remove this cap on punitive damages when it can be shown that there was a specific intent on the part of the defendant to cause harm.

In addition to a cap on punitive damages, there are now stricter standards of proof governing entitlement and pleading of punitive damages claims. However, Florida Statute Section 768.735 makes these stricter standards of proof inapplicable to causes of action which are based upon certain abuses such as child abuse and abuse of the elderly, and cases in which the defendant was, at the time of the incident, under the influence of "any alcoholic beverage or drug" to the extent that their normal faculties were impaired or when the individual had a blood alcohol level of 0.08 percent or higher.

Products Liability: One of the most significant changes made in the area of products liability actions involves the imposition of a "statute of repose" or a limitation of time during which a cause of action can arise. Previously, manufacturers and retailers of products had almost unlimited exposure for alleged defective products, even if the product was well past its useful life. Now, Florida Statute Section 95.031 requires that an action related to an alleged defective product must be commenced within 12 years of the product's specified expected useful life. Under this statute, most products are conclusively presumed to have an expected useful life of 10 years or less.

Certain products including aircraft, railroad equipment, elevators and escalators are not subject to this statute of repose. Also, the statute of repose is tolled for any periods during which a manufacturer has actual knowledge of a product's defect as alleged by the claimant, yet takes affirmative steps to conceal the defect.

The items detailed in this article are but a fraction of the changes made to Florida statutory law governing civil litigation. It is only with the application of these changes to actual cases that the magnitude of these reform measures will be accurately assessed.

For a copy of the entire bill, please see www.leg.stat.fl.us/session/1999