Comparative Fault is Back in Florida “Crashworthiness” Cases (UPDATE)

Contributed by Stephen Gibbons

Back in March we wrote about the Florida Senate’s bid to overturn D’Amario v. Ford Motor Co., 806. So. 2d 424 (Fla. 2001). In D’Amario, the Florida Supreme Court addressed the “crashworthiness” doctrine or theory of recovery which focuses not on an initial accident but on a secondary accident. This secondary accident is generally alleged to be caused by a defective condition created by a manufacturer that is unrelated to the cause of the initial accident, but causes additional and separate injuries beyond those suffered in the primary collision. In D’Amario, the court held that the principles of comparative fault did not apply in cases where the crashworthiness of a vehicle was at issue and where the sole focus of the trier of fact was on a secondary injury. In late June of this year, however, the Florida Legislature struck down D’Amario by passing Senate Bill 142 into law and applying it retroactively to pending cases. As a result of this new law, “the trier of fact [in cases where the theory of recovery is premised on the crashworthiness doctrine] shall consider the fault of all persons who contributed to the accident when apportioning fault between or among them.” Put another way, judges and juries are now entitled to hear and consider evidence of fault relating to the cause of the initial accident when apportioning fault for injuries caused by a subsequent or secondary accident.