Florida personal injury law operates under a comparative negligence system, in which negligence may be apportioned among various parties. In a lawsuit stemming from a rear end car accident, for example, a jury may find that the driver suing is 30 percent liable for the crash and that the driver being sued is 70 percent liable. In that scenario, the driver who sued would generally be entitled to an award of 70 percent of his or her damages.

In Hartong v. Bernhart, Florida’s Fifth District Court of Appeal explains that a plaintiff should be able to amend his or her pleadings to conform to the evidence presented at trial and ensure that the jury is instructed on the comparative negligence standard
Hartong sued Bernhart individually and on behalf of her deceased daughter, Ms. Wilkinson, alleging negligence and wrongful death. She alleged specifically that Wilkinson died of MRSA lobular necrotizing pneumonia, which Bernhart failed to identify and treat. In response, Benrhart argued that Wilkinson was comparatively negligent because she had alcohol and hydrocodone in her system at the time, which combined with the pneumonia to cause her death by limiting her ability to breathe.

He also sought to introduce two Department of Children and Families shelter orders in which state courts allegedly found probable cause to remove Wilkinson’s children from her. The records from those orders included findings about Wilkinson’s alcohol and drug abuse history, according to the court. The trial judge took judicial notice of the documents after Hartong argued that they were inadmissible hearsay.

Bernhart’s lawyer argued comparative negligence in his opening statement, relaying the narrative that drugs and alcohol contributed to Wilkinson’s death. An expert witness also testified that the pneumonia was complicated by the presence of alcohol and hydrocodone in her system.

When Bernhart rested his case, he withdrew the comparative negligence defense. Because Hartong’s complaint included claims for negligence and wrongful death, but not comparative negligence, she sought to amend the pleadings to include a comparative claim so that the jury would be instructed that it was entitled to award damages proportionately to fault. The trial court denied the request. The jury was ultimately asked simply whether there was negligence by Bernhart that was the “legal cause” of Wilkinson’s death. It answered “no.”

On appeal, the Fifth District said the lower court erred by denying Hartong’s motion to amend the complaint to conform the pleadings to the evidence presented at trial and include comparative negligence after Bernhart withdrew the affirmative defense. By allowing Bernhart to present evidence about Wilkinson’s drug and alcohol abuse and the effect of these substances combined with the pneumonia, but preventing the jury from considering comparative negligence, the trial court improperly created a “take it or leave it” scenario in which the jury could find only one party responsible for the death.
The court reversed the decision and remanded the case for a new trial.

If you or a loved one has been injured by another’s negligence, it’s important to have an experienced, competent attorney in your corner to help you seek any and all available remedies. Contact the South Florida personal injury lawyers at Anidjar & Levine for a free initial consultation. We represent clients throughout the region, including in Hialeah, Pompano Beach and Boca Raton, and are dedicated to helping people get back on their feet after an accident. Call the firm’s Fort Lauderdale offices today at 800-747-3733.

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Proving Gross Negligence in Florida Worksite Accidents – Vallejos v. Lan Cargo S.A.